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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 for email alerts by using the Subscribe to blog link above.

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The towing vessel inspection regulations known as Subchapter M have been cleared by the Office of Management and Budget (OMB). The Notice of Proposed Rule Making (NPRM) is expected to be published this month. These regulations include a safety management system (SMS) for the towing industry. Some companies have had an SMS for many years and may be less concerned than those who have not yet adopted an SMS.  However, there may be cause for concern even for those who have had an SMS for quite some time due to differing expectations on implementation.

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The U.S. Coast Guard and the U.S. Environmental Protection Agency have recently signed a memorandum of understanding (MOU) regarding the enforcement of MARPOL Annex VI.  MARPOL Annex VI deals with air pollution from vessels.  I used the word "vessels" because this Annex has wide applicability and does not only apply to ships or vessels on an international voyage. In fact in the U.S. Coast Guard had previously published enforcement guidance specifically for enforcing this Annex on U.S. vessel of any gross tons, not on an international voyage. This recent MOU explains each agency's role in the enforcement of the Annex. It comes in the wake of the MOU earlier this year between the same two agencies regarding the enforcement of the Vessel General Permit (VGP).
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When it comes to what constitutes full implementation of a safety management system such as the International Safety Management (ISM) Code, there seems to be a disconnect between what different stakeholders believe to be adequate. Different flag states, recognized organizations, class societies, and port state control authorities enforce the code to their own standards, not to mention each individual auditor’s experience and subjective opinions.  The real disparity becomes painfully clear during times of major accident investigations and litigation, when everything is put under a microscope and the level of implementation that was considered “satisfactory” at the last audit can now constitute alleged negligence.

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The proposed rule containing regulations for the inspection of towing vessels, known as Subchapter M, is due to be published in a few months.  It is expected that these regulations will include a towing vessel safety management systems. Many towing vessel companies currently have a safety management system (SMS) in place known as the American Waterways Operators (AWO) Responsible Carrier Program (RCP).  Having been both a U.S. Coast Guard marine inspector and an AWO RCP auditor, I have noticed a different expectation regarding the level of implementation required between inspected vessel's SMS and RCP. I suspect that some RCP companies might have a difficult time with Subchapter M enforcement if they don't step up the level of implementation.

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A common practice throughout the maritime industry, despite elaborate safety management systems (SMS) which have been put in place, is to simply rely on the credentials and experience of mariners to operate safely. But the expectation with Safety Management Systems (SMS) is that written policies and procedures are to be followed by employees, both ashore and afloat.   Just ask anyone who has been involved in a serious accident investigation, or litigation. 

The hard truth is, best way to learn the company’s policies and procedures is to “hit the books” and actually look up the information and apply it to real-life situations.  The best way to ensure this is done is to provide a tool to shipboard and shore-side employees which will help them do the work.

 

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These days there are many policies and procedures for crews to follow. As we have discussed in the past, many policies and procedures may be unreasonable or unrealistic, but once they have been customized and refined, what's the best way to get captains and crews to learn and follow them? Unfortunately, the answer is to "crack the books" which not too many people enjoy.  This is a true leadership challenge, but with the right skills and tools it can be done.

Please join us in New Orleans on April 29th for an important seminar on the proper implemenation of safety management systems.  Please follow the link below for further details:
http://www.marcomint.com/index.php?option=com_content&view=article&id=24&Itemid=16

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Beginning March 11, 2011 during vessel boardings and inspections, the U.S. Coast Guard will begin evaluating compliance with the U.S. Environmental Protection Agency (EPA) Vessel General Permit (VGP).  A Memorandum of Understanding (MOU) was recently signed between the two agencies, and a USCG policy letter was published, requiring Coast Guard inspectors to use a job aid to evaluate the level of compliance on a particular vessel, document any discrepancies, and pass them along to the EPA.  The EPA retains enforcement authority and will take enforcement action based upon the information gathered by the USCG.

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Please watch this brief, but important video message...

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Each vessel owner/operator I ask about EPA VGP compliance gives me a different response:  “Oh yeah, I heard about that…We’ve got it covered we just log how much graywater we discharge and try not to wash any oil over the side…I asked the Coast Guard and they don’t know anything about it…Is that for real..?” 

This year I was selected to do a session on EPA VGP compliance at the International WorkBoat Show Professional Series being held in New Orleans from December 1-3.  In preparation for my presentation, I just concluded a meeting in Houston with EPA officials who are responsible for the EPA VGP in EPA Region 6.

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Recently, a group of U.S. Marines were able to board and regain control of a German-owned ship, which had been taken over by pirates off the coast of Somalia. They were able to do so without firing a single shot. According to a CNN report, a military spokesman claimed the members of the ship’s crew had locked themselves in a safe room, so the military felt it was a good time to board the ship.    

Many flag states and recognized security organizations world-wide require anti-piracy procedures to be contained in ship security plans required under the International Ship and Port Security (ISPS) code. While this recent intervention was a great success, it complicates things for those responsible for coming up with anti-piracy procedures and ensuring their implementation through drills and training.  Is this the new “best practice?”

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“Regulators are either industry rejects, or wannabes, neither of which makes for good regulators.” At least that is the opinion of one law professor at a recent lecture series I attended regarding the BP/ Deepwater Horizon oil disaster in the Gulf of Mexico. The comment was made during a discussion about what the responsibility and liability of federal regulators should be, such as those regulators from the agency formerly known as MMS (Mineral Management Service), who may not have performed their duties to the fullest of their abilities. I found the comment both offensive and intriguing at the same time. Offensive perhaps, because I have served as a federal marine inspector in the past; intriguing, because on some level, it rings true.

 

The implication is that a wannabe is more likely to look the other way in hopes of gaining favor with industry and ultimately securing a comfortable position. When I started out as a U.S. Coast Guard marine inspector years ago, an old-timer and co-worker told me, as I was writing a long list of deficiencies for a vessel, “You’re never going to get a job in this industry when you retire.”

 

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Years ago my psychology professor told us that in order for punishment to be effective, it must be swift, severe and consistent. The example he used was that if you want a child to stop playing with matches you should immediately hold his hand over a lit stove every time you catch him doing it. Of course, that was an extreme example used to make an important point. But based upon recently published reports, it seems that Hollywood actor Brad Pitt may be of the same mind. According to Mail Online, UK, Brad Pitt has weighed in on the Gulf oil spill controversy and said he would consider the death penalty for those to blame for the disaster which killed 11 men and spilled millions of gallons of oil into the Gulf of Mexico. When asked about the people responsible for the crisis, Pitt reportedly said: “I was never for the death penalty before - I am willing to look at it again.” While Mr. Pitt’s comments may seem over the top, and based upon emotion, they raise an important point about compliance.

 

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Port security funds are supposed to be allocated to projects that will have the greatest impact. So, why would scarce taxpayer dollars be spent on fences and cameras to protect non-threatening areas such as settling ponds far away from the nearest waterway? The answer, most likely, is human error. The International Ship and Port Security (ISPS) Code requires port facilities around the globe to comply with the maritime security requirements of the Code. For U.S. port facilities, the U.S. Coast Guard regulations derived from Maritime Transportation Security Act (MTSA) of 2002 provided a definition of the term “facility.” However, many years later, there are still conflicting opinions regarding what portions of a facility must be included under the maritime security regulations. The definition of a facility, beyond the description of the waterfront portion, calls for “any contiguous or adjoining property” to be included. Despite this definition, some facilities simply fenced off their docks, called that their facility, and got away with it. Other similar facilities were required to spend tens of thousands of dollars on fencing and other access control issues for their entire property.
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Here in New Orleans much of the discussion on talk radio is centered on the Coast Guard’s handling of the BP/ Deepwater Horizon oil disaster. Following the lackluster response to Katrina, the general public and local officials want swift and decisive action from federal responders. The problem is that the existing process set up by law makes the spiller responsible for the clean-up. The federal government requires operators to have response plans and contracts in place to clean up oil spills. The feds are responsible to make sure that the approved plans are followed. The general public and local officials have little understanding or tolerance for such processes during an emergency. In fact, some people seem to think that in a disaster all laws become suggestions commonly referred to as “red tape.”

 

If we want to improve our response in the future we must look at the factors which make government respond the way it does: laws and regulations. If an agency charged with enforcing laws and regulations steps in to intervene on response activities, they are looked at as obstructionist bureaucrats. Nothing will make federal agencies respond differently the next time by declaring them “Stuck on stupid.” Perhaps if the federal on-scene coordinator had waiver authority for all laws and regulations, and was shielded from all personal liability, the response would be smoother. Short of that, I suspect the general public will continue to be disappointed.

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As we wait for the results of the investigation into the BP/ Deepwater Horizon oil spill in the Gulf of Mexico, one thing appears fairly certain based upon currently published information, and that is that corners may have been cut and unnecessary risks may have been taken. This is not really surprising. We cut corners and take calculated risks every day, often with no negative consequences. Who has never exceeded the speed limit while driving? The natural reaction of politicians and bureaucrats is to make more laws and regulations to fix the problems before we know for sure what the problems are. We may find that the problem wasn’t a lack of adequate laws and regulations, but perhaps it was the lack of enforcement, oversight and compliance with the existing laws and regulations. If so, why would the level of enforcement, oversight and compliance drop to a level where an accident like this might occur? Perhaps because they had not had a major accident with similar operations in the recent past to remind them of the threat. BP was reportedly celebrating a safety milestone at the time of the disastrous blowout. If people have not experienced a major accident in quite some time, their minds allow them to believe the threat has become diminished. In actuality the threat has not diminished with the passage of time, but still corners are cut and unnecessary risks are taken, because the precautions that once seemed necessary may now seem like overkill.
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