Wide-Ranging Subchapter M Panel Attracts Close Attention

March 20, 2017

By David Murray


The signature event at this year’s Inland Waterways Conference held March 7-8 in Cincinnati, Ohio, was the special forum on Subchapter M, which was attended by about 200 towing industry insiders.

The panel highlighted the extent to which the final publication of Subchapter M last August still left a host of questions, some important, to be worked out through policy letters and guidance from the Coast Guard.

Moderator Greg Menke—business development manager at Evansville Marine Service and a veteran of many river committees—remarked, “In planning this conference, we thought the Coast Guard would have all kinds of things published by now.”

Since Subchapter M’s publication, the deadlines for compliance on several items have already been moved. According to the Coast Guard’s timeline, by July 19, 2021, 75 percent of a company’s fleet must have a valid certificate of inspection (COI), and by the same date the following year, 100 percent.

It is only by July 20, 2027, however, according to the timeline, that the implementation of Sub M will be deemed “complete.” That is the 5-year window within which existing vessels that already have valid COIs will have to comply with 46 CFR 143.450, dealing with pilothouse alerter systems.

‘Building Blocks’

The first panelist, Caitlyn Stewart, director of regulatory affairs for The American Waterways Operators, noted Sub M landmarks, including the Coast Guard’s acceptance of AWO’s Responsible Carrier Program (RCP) as a Towing Safety Management System (TSMS), which, she noted, is currently the most widely used TSMS. The approval “back-dates” previously conducted RCP audits for three years prior to the final Sub M enactment.

The Coast Guard has further approved several maritime class societies as third-party organizations (TPOs) empowered to carry out audits of those systems.

“We now have the building blocks of Subchapter M, but we need the mortar to bind them together, in the form of Coast Guard guidances and policies,” said Stewart. “The Coast Guard is working on a policy to reward companies that are early adopters” of safety management systems.

The Coast Guard has also drafted a guidance for third-party organizations; it is currently under review by the members of the Towing Safety Advisory Committee (TSAC). “All those pieces of guidance will be published as part of the Coast Guard’s Sub M implementation,” said Stewart. She said the industry was looking to the coast guard for more guidance on what it will consider a “major conversion” of a vessel under Sub M, as well as on the issue of the person-in-charge (POC) of fuel transfers.

Stewart noted that the TSMS is just “one foundation” of the COI; the vessel inspection is the other requirement. “Vessel compliance is a new requirement for most of you,” she said. AWO is rolling out a new guide on compliance with the RCP.

“AWO’s highest regulatory priority is to ensure that its members are fully prepared for compliance,” she concluded

Culture Of Compliance

The next panelist was Tava Foret, director of audit and survey services at the Towing Vessel Inspection Bureau (TVIB), which has also been certified as a TPO by the Coast Guard. Between 2011 and 2016, she said, TVIB has carried out more than 600 third-party vendor reviews, using its proprietary Vendor Review Tool, and more than 280 management reviews. The non-RCP clients have outnumbered the RCP clients by about 3 to 1. TVIB has also documented the training of fuel transfer persons-in-charge. “Many companies may have crewmen who are in fact trained to do fuel transfers, but that training also must be documented,” she said.

Foret said that TVIB’s audits are guided by a warning “not to let your safety management system become shelfware,” and an all-important question: “Are you developing a culture of compliance at your company?”

Electrical Considerations

Subchapter M inspections require surveys of equipment and hull as well as audits of safety management systems.

Joshua LaVire, an inland market manager at the American Bureau of Shipping (ABS), spoke on electrical consideration in complying with Subchapter M. LaVire described himself as “a surveyor at heart” and said he had spent his 15 years with ABS in shipyards in China, Korea, Singapore and Dubai.

LaVire’s message was that “Subchapter M required much more than simply the RCP.” He noted that one little-known requirement of Subchapter M that will eventually kick in is for wheelhouses to have both visible and audible alarms; most have only one type now. Furthermore, the regular testing of those alarms must be documented.

Another Sub M requirement is that emergency lighting must have at least two hours of emergency backup battery life. Motors and generators must have nameplate information as well as their current and voltage on display. Cable transits through bulkheads must be adequate, and any fuel shutoff valves must be located as close to the tanks as is possible and practicable.

Regulatory Pendulum

Chris Myskowski, senior vice president of operations at Marquette Transportation and a 20-year Coast Guard veteran who has a Marquette boat named after him, opened his panel with a quote from a 1915 steamboating memoir by Capt. Wilson Daniels, Steam-boating on the Ohio and Mississippi Before the Civil War. In his memoir, quoted by Myskowski, Daniels recalled that, “Those were the days when ‘hot engineers’ and ‘close-fit pilots’ were eagerly sought by all owners”–i.e., men who would make the best time, regardless of risk.

“There were no such things as pilots’ or engineers’ licenses back then,” said Myskowski, but there were a lot of river disasters! Each swing of the regulatory pendulum, he said, has come after one of those disasters. He mentioned the Big Bayou Canot disaster of 1993, in which a towboat damaged the pier of a railroad bridge, off which a train plunged eight minutes later, killing 47 and injuring 103.

Myskowski, who recently became a member of the TSAC, said that its upcoming April 11–12 meeting had been moved from Puerto Rico to Memphis so that more people could attend.

Towboat Firefighting Regulations

One apparently unintended consequence of Subchapter M is the triggering of 33 CFR 155.710(e)(1), which requires the person in charge onboard an inspected vessel transferring fuel oil to hold an tankerman’s endorsement. Myskoswki said the rule could be mitigated by policy language soon. (Note: Shortly after the conference, the Coast Guard did in fact release a policy letter addressing this very issue; see related article in “Washington Waves.”)

In a nod to his Coast Guard past, Myskowski concluded by quoting from Alexander Hamilton’s 1791 instructions to the commanders of Coast Guard revenue cutters, the first naval force of the United States. Hamilton wrote, “They will always keep in mind that their countrymen are freemen, and, as such, are impatient of everything that bears the least mark of a domineering spirit. They will, therefore, refrain, with the most guarded circumspection, from whatever has the semblance of haughtiness, rudeness, or insult. … This reflection, and a regard to the good of the service, will prevent, at all times a spirit of irritation or resentment.”

Scheduling Hull Inspections

Matt LaGarde, manager of tank barge regulatory programs at American Commercial Barge Lines and also a TSAC member, noted that ACBL has “more boats than crews”—i.e., many of its boats are chartered—and it has to be particularly concerned about the compliance of all of them. He said that Sub M will undoubtedly increase the cost of operating boats and will reduce their efficiency. “We are struggling with how to manage the scheduling on this.”

LaGarde said he is especially concerned about drydock availability, an issue that was often raised during the conference. “Unlike with blue-water vessels, we can’t do hull inspections underwater,” he said. He is also concerned about route permits for boats on their COIs not matching the route specifications of their personnel, i.e., captains and pilots.

Panelist Kyle Aldrich, executive vice president at Evansville Marine Service Inc., spoke to just that issue. Evansville operates three repair facilities and two drydocks. Aldrich stressed “big differences” between the RCP and Sub M inspection requirements. RCP requires a hull inspection every 3 years, while the Sub M only requires one every 5 years. Aldrich asked a pointed question: “Which required items add cost with no safety value?”

Audit Crunch Coming

The next panelist was Robert Keister, manager of compliance and special projects at Sabine Surveyors, Keister is another 20-year Coast Guard veteran, but with a slight difference: he spent time as Chief of Inspectors.

The largest marine surveyor, Sabine is on the front lines of Subchapter M, performing about 2,400 surveys or audits per year, said Keister. He said Sabine has a dedicated Sub M staff of 11. Sabine only used in-house auditors, training them itself.

Keister said that within the next 2-1/2 years (by July 2019), 3,000 audits of individual boats will have to be carried out. There are five approved TPOs now, although more are surely to come. All take slightly different approaches.

Global Changes To Marine Safety Regulations

Michael Klein-Ureña, area business development manager-North America southeast at Lloyd's Register, spoke on “Evolving Cultures of Safety In the Towing Vessel Industry.” He said that both Canada and South America have seen regulatory changes to their inland waterways in recent years. “Marine transportation safety regulations are happening globally,” he said. Lloyd’s has partnered with MarineCFO to offer its Sub M compliance solutions; “We are integrating its software platforms with our systems now,” said Klein-Ureña.

Sub M Q&A

The question-and-answer period saw a lively discussion. To a questioner who asked why AWO didn’t insist on a supplemental rule, Stewart answered that the rulemaking process is controlled by the issuing agency (the Coast Guard), and it is limited and constrained legally by how and when it can communicate outside of the normal regulatory process. Administratively, she said, a supplemental rule cannot be an “outgrowth” of a previous rule.

One questioner asked whether a boat in for regularly scheduled repairs can undergo an external audit. The answer was yes, as long as it is once every five years. Foret noted that both Sub M and RCP prohibit interchanging scheduled external and internal audits. Menke said that at his company, one boat had to do an internal and external audit within one month, costing lots of downtime.

Foret noted that the TVIB had to share its own management system with the Coast Guard to be reviewed according to the standards of the International Association of Classification Societies (IACS).

Stewart said that Sub M superseded many RCP requirements on equipment and human factors. “RCP should not be redundant,” said Stewart. “AWO’s board of directors recognize that they need to sunset and/or streamline some RCP requirements.”

Stewart confirmed that, for now, an auditor and surveyor cannot be the same person. Furthermore, internal surveys can use contractors who are not part of a Coast Guard-approved TPO.

Coast Guard Panel

After a break, a Coast Guard panel gave presentations on Subchapter M from the inspection point of view. It included Lt. Cmdr. Judd Coleman of the Office of Commercial Vessel Compliance (formerly the Office of Vessel Activities); Lt. Cmdr. Parris Stratton, assistant supervisor of the Towing Vessel National Center of Expertise (TVNCOE) in Paducah, Ky.; and Jill Bessetti, a towing vessel specialist with the Coast Guard’s Eighth District and coordinator for towing vessel issues with Rear Adm. David Callahan.

Myskowski wondered about consistency of approach to audits and inspections among TPOs. Stratton noted that all applications from TPOs come through his office and said, “The start of consistency in is the review of applications. We verify that all auditors and surveyors meet regulatory standards.” He said the Coast Guard would “actively monitor” TPOs to make sure they continued to meet those standards.

Stratton said that as of now, the Coast Guard recognizes two types of class societies with regard to Sub M. A “recognized” group can perform both hull surveys and audits, whereas an “authorized” group can only perform audits of a TSMS.

New ‘Tugsafe’ Website

Stratton said that a brand-new Coast Guard website called Tugsafe, providing authoritative information on Subchapter M compliance issues, had just gone into beta testing mode and would be fully operational by the middle of April (he hoped).

Coleman said his office had received 320 questions related to Sub M and had posted answers to 170 to date. “We are also working on policy and guidance for TPOs,” he said, as well as on a guidebook for TSMS and a draft Subchapter M compliance guidebook that will feature side-by-side excerpts from all the relevant regulations and FAQs.

Regulatory Policy Questions

One question arose several times during the various presentations. President Donald Trump has announced a policy of all federal agencies having to retire two older regulations for every new one they write. One questioner asked Coleman how that was playing out at the Coast Guard. Coleman said that nothing in the new policy requires that work stops on regulations that have already been passed.

Compliance Options

Bessetti’s presentation illustrated a common confusion about Subchapter M. In her Powerpoint display, she listed three options for compliance: 1) direct inspections by the Coast Guard; 2) the TSMS option using a TPO; or 3) the option of complying with International Safety Management (ISM) standards, which are already required for boats operating in international waters and are therefore used by companies that have vessels operating offshore or in those waters.

However, it may be a distinction without a difference. Other presenters and Sub M experts regard the ISM standards as another form of TSMS, and therefore really part of the second option.

Bessetti said that a COI is valid for 5 years. If a vessel’s TSMS is revoked, so is its COI. A COI will indicate the routes a vessel follows.

One questioner asked whether a COI would follow a vessel from one owner to another, of whether a new one would have to be issued. From the audience, Capt. Wayne Arguin, Sector New Orleans commander, said, “I would expect a temporary COI would be issued, but I’ll get back to you.”