Maritime Compliance Report

While there are plenty of examples of how safety management can be implemented incorrectly, I'd like to share with you an example of how to do it right, from scratch.


Last fall we contracted with American Tugs, Inc. in Puerto Rico, to develop and implement a safety management system.  Not just any safety management system, but a Towing Safety Management System (TSMS) which would meet the requirements laid out in the Notice of Proposed Rule Making (NPRM) for 46 CFR Subchapter M. Here's how we did it:

 


Developing the TSMS – We followed the format laid out in 46 CFR part 138.220, and determined that the TSMS would have five major sections. We left Section 4 - Compliance with Subchapter M "reserved for the Final Rule." The company provided their standard operating procedures and we included our recommended policies and procedures and standard industry practices in the appropriate sections. We drafted the TSMS in accordance with our company philosophy that the policies and procedures must be concise and written in a way that can be read, understood, and followed by all.


Company review – The draft TSMS was then passed along to American Tugs, with the instructions to have all responsible parties, including company personnel and vessel captains, to read through the draft, provided input and edits. The company did an outstanding job of reading the entire draft and questioning many of the policies and procedures. They requested a number of changes, all which had to be checked against the regulations to ensure full compliance. It was critical to achieve buy-in from the captains by ensuring their expertise on the policies and procedures was included.


Coaching program – At the same time American Tugs contracted with us for a comprehensive coaching program for the two company personnel responsible for compliance, health, safety, security and environment issues. The coaching program was essential for them to understand where all the regulations come from, USCG, EPA, OSHA, etc.., and why such policies and procedures were required. The three month coaching also included the essential leadership and management skills to ensure the program is successfully implemented over the long term.


Implementation – The Company is now entering into the implementation phase. We will continue to assist them throughout the year with on board inspection; training and drills to ensure the captains and crews understand the importance of the program and how to properly execute it.


It has been a very rewarding experience working with American Tugs, Inc., a company fully dedicated to a program which will surely reap substantial benefits from their hard work in the years to come.

Previously published in my worlboat.com blog: Regulatory Roundup 

 While we don't know when the towing vessel inspection regulations contained in Subchapter M will officially come into force, we do know it could be as soon as within the next year, and if published as proposed, it will drastically change the industry forever. Whether a company is dreading the day, or is confident in their readiness, it is interesting to take a look at what we know about the recent Costa Concordia cruise ship disaster and draw some parallels, which may provide some insight into the future.

 


What could the Costa Concordia disaster possibly have to do with Subchapter M? It would be a stretch to call it lessons learned, but it does provide some interesting food for thought.  Despite the history of how Subchapter M came to be, in reading the proposed rule it became obvious to me that the Coast Guard had put this concept of the use of safety management and third parties into a "box" they are familiar and comfortable with. The use of safety management systems and third party organizations, auditors and surveyors outlined in Subchapter M is designed very similarly to the International Safety Management (ISM) system.


Let's compare: While we wait on the official investigation report, almost all would agree that the Concordia ran into the rocks. This appears to have been a navigational error. We can argue as to why, but navigating a cruise ship is high risk and therefore navigation standards should be provided by the company to ensure prudent navigation and minimize human error.  These policies and procedures would be included in accordance with the ISM code, Section 7, "Shipboard Operations." The similar requirement in Subchapter M for the Towing Safety Management System (TSMS) is found in 46 CFR part 138.220(c)(2) – "proper management of the navigational watch."


So who, besides the company itself, is suppose to make sure the ISM policies and procedures are adequate? Concordia is an Italian flag ship. As allowed by the ISM code, it used surveyors from the classification society RINA to conduct external audits of their safety management system on behalf of the flag. Did the auditor anticipate such a scenario when auditing the company's policies and procedures? If so, did he ensure the crew and shore side company personnel were following them? Subchapter M also allows for third party auditors to conduct third party audits on behalf of the flag.


In the case of the Concordia, who is authorized to certify compliance with the ISM code on behalf of the flag?  The ISM code allows for "recognized organizations" to certify compliance with the ISM code, and in the case of the Concordia the recognized organization was the classification society RINA who had issued the Safety Management Certificate (SMC) for the Concordia on November 13, 2011. Subchapter M also allows for "third party organizations" to issue Towing Safety Management System Certificates on behalf of the flag as a requirement for obtaining a Coast Guard Certificate of Inspection (COI) under the TSMS option.


While we wait for the final rule to be published on Subchapter M, it will be interesting to watch how the Concordia investigation unfolds and where the "blame" is placed. One thing we know already is, three days after the disaster, after questioning the company's denial of knowledge of the Concordia's fatal maneuvers, the president of RINA resigned.

My associate, Capt. Tom O'Farrell, and I just completed a week long OSHA Maritime Outreach Training with the University of Texas. OSHA, the Occupational Safety and Health Administration has regulations which apply to Marine Terminals, Shipyard Employment and Longshoring, as well as regulations which apply to uninspected vessels.

 


Upon returning home from the training I noticed that OSHA had published a long list of violations for JeffBoat in Indiana. The fines were pretty stiff. Some of the violations were for employees being between or near railways, improper lock-out tag-out, employees not properly trained on equipment, employees not properly inspecting equipment prior to use, etc. Each of these violations came with a $7,000.00 fine. The total proposed penalties in this case amounted to $119,000.00. OSHA gives them 15 days to pay in full and even tells them how to make out the check! It's interesting to see the different tactics that government agencies use to compel compliance.


We are now authorized OSHA Maritime Outreach Trainers. We are authorized to conduct, and issue completion cards for, six different OSHA Maritime Outreach courses including a 10 hour worker course and a 30 hour supervisory course for each of the following programs: Marine Terminals, Shipyard Employment, and Longshoring. This training is also useful to vessel operators as the OSHA topics are similar to those that apply to certain vessels, as well as the health and safety training requirements contained in the proposed Subchapter M.

Please contact us if you are interested in learning more about this training program. 

 It's hard to believe that a modern cruise ship, in this age of technology, could end up on its side on the rocks, only a few hours after leaving port. Was it a bizarre one-time event, or could it happen again? Unfortunately, the answer is yes, it could happen again. But the good news is we already know how to prevent it.

 


On the evening of January 13, 2012, the cruise ship Costa Concordia departed the port of Citiavecchia, Italy bound for her homeport of Savona with 4,200 passenger and crew. A few hours later she lay on her side, wrecked on the rocks on the shore of Giglio Island. If early reporting is accurate, the answer as to why is the same as in many of disasters in the maritime industry: the human factor. There is already talk of changes to laws and regulations. The truth is we've got plenty of laws and regulations. What should be done is to look at what laws and regulations we already have and see what may be on the books that may have prevented it.


The International Maritime Organization (IMO) produced the International Safety Management (ISM) Code, in part, to address human factors in accidents. The ISM code has been mandatory for passenger vessels since July 1, 1998. Section 7 of the code refers to "shipboard operations." This section includes navigation. ISM manuals will vary since it is up to the owner/operator to produce their own policies and procedures. It requires careful risk assessment when producing ISM manuals to make sure that all the critical evolutions are accounted for in the policies and procedures and not just talk of hardhats and steel toed shoes. Certainly a cruise ship navigating close to a rocky coast is a risky evolution. The question for the investigators will be, did the company have adequate navigation standards which could have prevented the accident and if so, why did the captain and crew not follow the company policies and procedures?


The ISM Code is not easy to implement or enforce. It's not in the nature of ship captains to be governed by manuals. However, in order to minimize the risk of human error, certain high risk evolutions must be managed. The role of enforcement personnel, flag states and recognized organizations is critical. These governing bodies should also use a targeted risk based approach to ensure that all the high risk evolutions are addressed and that the policies and procedures are followed. The tools are already in place to prevent the next disaster. The question is, are we willing to do the work to do it right?

Current regulations have required all credentialed merchant mariners to hold a valid TWIC. But that is no longer the case due to a recent change in the law. Some credentialed mariners will no longer have to obtain a TWIC. For example: on a towboat which opts not to have a security plan, only the licensed captain has been required to have a TWIC due to the fact that he has a license. Now, due to the recent law change, the captain of the towboat with no security plan will no longer have to hold a valid TWIC. The same goes for most small passenger vessel captains who will no longer be required to maintain a valid TWIC. Some think it is a good thing that the Coast Guard has had to revise the requirement because they feel the TWIC is useless.

 


However, one of the main purposes of a TWIC is to run the applicant through the terrorist watch list to see if they have any links to terrorist organizations or terrorist activities. Some feel that this is unnecessary and that it criminalizes mariners. The truth is that in the past terrorists have blown up passenger ferries in the Philippines, resulting in many lives lost. So what's that got to do with the U.S.? It is a viable threat scenario here as well. Also, according to the FBI's joint "Operation Drydock," with the Coast Guard in 2004 nine credentialed mariners were found to have "possible associations to terrorism." How bad would it be if a vessel was used in a terrorist attack, and it was later found that the captain was a terrorist and that it could have been prevented if anyone had bothered to check? I don't think TWICs are useless.

So why is it OK now if some credentialed mariners don't have TWICs? The Maritime Transportation Security Act of 2002 is counter-terrorism legislation which requires the prevention or deterrence of a transportation security incident (TSI). A "TSI" is defined as a security incident resulting in significant loss of life, environmental damage, transportation system disruption, or economic disruption in a particular area. The Coast Guard, in establishing the applicability of the security regulations, determined some vessels to be at a low risk of being involved in a TSI, and excluded them from the applicability. It is those vessels, which are at low risk of a TSI and have no security plan, which will be allowed to have captains without TWICs. Whether you agree with this or not, one good thing which I hope may come from it is it may help us refocus on the intent of the security regulations, which is to prevent or deter a transportation security incident (TSI), and to avoid the complacency of, to borrow a phrase, "security theater." 

Sorry, it's not going away… The Environmental Protection Agency (EPA) released the new Vessel General Permit (VGP) on November 30, 2011. This is a draft of the permit which will go into effect on December 19, 2013. This draft has been released for public comment, so don't miss the opportunity to provide your input.

 


I must commend the EPA for providing some constructive clarifications and procedures in this updated version of the permit.

Here are some highlights:


"This permit does not apply to any vessel when it is operating in a capacity other than as a means of transportation."

Vessels less than 300 gross tons that do not have capacity for 8 cubic meters of ballast water, that do not have to submit a notice of intent, but fall under the permit because they are over 79 feet, will now have to complete a Permit Authorization and Record of Inspection "PARI" form and carry it on the vessel at all times.

For each vessel, owner/operators are required to submit an Annual Report by February 28.

All reporting, such as annual reports, must be done electronically, with limited exceptions.

"For cargoes or onboard materials which might wash overboard or dissolve as a result of contact with precipitation or surface water spray, or which may be blown overboard by air currents, you must minimize the amount of time these items are exposed to such conditions."

General training is now required for those who actively take part in the management of incidental discharges.

"Vessel owner/operators must minimize deck washdowns while in port."

"Before deck washdowns occur, you must broom clean exposed decks or use comparable management measures and remove all existing debris."

"Vessels using water from a public water supply (PWS) as ballast must maintain a record of which PWS they received and a receipt, invoice, or other documentation from the PWS indicating that water came form that system."

"Unmanned, unpowered barges such as hopper barges are not required to meet the ballast water management measures of Part 2.2.3.5."

"Examples of ways to minimize the production of graywater include…restricting the length of showers while in port."

4.1.1.2 Extended Unmanned Period (EUP) Inspections



The EPA has also release the Small Vessel General Permit (sVGP). This sVGP applies to all commercial vessels less than 79 feet. This permit was also released for comment and will also go into effect on December 19, 2013. It will affect commercial fishing vessels, crew boats, utility boats and towboats excluded from the current VGP. The document is much shorter than the large vessel VGP, but contains many of the same requirements and is much more prescriptive.

For those owner/operators subject to the current VGP, don't forget to submit the required one-time reports, which are currently due during the 30-36 month of coverage. 

 As most of you know the proposed regulations to make towing vessels Coast Guard inspected vessels has been on the streets for about four months. The comment period is now over and so we will wait to see how the Coast Guard decides on the many issues raised when the final rule is published.

 


Over the past few months we have held our own public forum, studied the proposed rule, participated in two Coast Guard meetings, provided many comments to the docket and have just put our first client on our first Towing Safety Management System (TSMS) based upon 46 CFR 138.220. Creating the TSMS based upon the proposed rule was a learning experience.


If you haven't had a chance to study the proposed rule, or could benefit from a different perspective, please join us Wednesday December 21, at 1pm EST, for a free WorkBoat Professional Series seminar.


For more information and to register simply click on the link below and follow the instructions: WorkBoat Professional Series Webinar on Towing Vessel Inspection with Kevin Gilheany