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Sub M – What Should You Be Doing Now?

Six months and counting… Perhaps this deadline for the Subchapter M Final Rule will be the final one. It certainly feels that way. Folks in the know seem to be more confident than ever before. I’m also starting to see the media buzz, and our company has received requests for assistance from five new towboat companies just in the past month. So, what should towboat companies be doing now to prepare? The first thing towboat companies should do is decide on their compliance option.

As proposed, 46 CFR 136.130 outlines that towing vessel companies have two options for obtaining a Certificate of Inspection (COI) for a vessel. The first option is inspection of the vessel by the Coast Guard. This is a traditional Coast Guard inspection of the vessel, not an audit. A health and safety plan will be required and there are significant record requirements contained in Subchapter M, but those items fall far short of a safety management system. Under the proposed Subchapter M, a safety management system is not required for towing vessels. In fact, under the U.S. flag, safety management systems are not required for any class of vessel other than a deep draft ship on an international voyage.

The second compliance option is to comply with the requirements of a Towing Safety Management System (TSMS) and to use approved third parties. Making this choice will be the single biggest decision for any towing vessel company, because the demands placed upon the company by voluntarily choosing to use a TSMS as a compliance option to obtain a vessel’s COI will be much greater.

It makes no difference if a towing company is already operating under a safety management system. They may still choose to go with the Coast Guard option to get its COI, because, as proposed, safety management is not required by regulation for towing vessels. The proposed regulation requires vessel operators to fill out an application for inspection for each vessel, and each application will require the operator to check the compliance option for each vessel. Therefore, an operator may choose the TSMS option for some vessels and the Coast Guard option for others.

There are lots of opinions being expressed about this. Some sound like sales pitches disguised as sound advice. But even though our company develops TSMSs as a major part of our business, if I owned a towboat, I would check the Coast Guard compliance option. I would not bet my COI that the captain and crew are going to convince the auditor that the vessel is in compliance with proposed 46 CFR 140.205(b). That federal regulations states: “towing vessels with a TSMS must be operated in accordance with the TSMS applicable to the vessel.” For example, the auditor finds a four-inch thick TSMS on board and asks the captain if he has read it yet. The captain responds that he has skimmed through it, which means no. Some auditors might not care. But who wants to bet that you won’t get the auditor who says: How can I certify, under penalty of 18 USC 1001 (making false statements), that the vessel is being operated in accordance with the TSMS, if the captain admits he hasn’t even read it yet?

Choose wisely.
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