The Time For Subchapter M Hesitation Is Long Past
The saying, “To keep respect for laws and sausages, it is best not to see either being made,” was long attributed to German Otto von Bismarck. Ever since, the term “sausage-making” has been used for lawmaking.
Subchapter M is a rule rather than a law, but in many respects, the Subchapter M sausage is still being ground. The process has been slow, and the rule is still far from complete.
The industry’s representatives, in the advocacy organizations and on the chartered committees like the Towing Safety Advisory Committee, have been talking, meeting and thinking about Subchapter M for years now, as we have reported.
Yet the buzz on the floor of the Inland Marine Expo was that some companies are still holding back on preparing for it. Some rumors even suggested that the regulations might be repealed at the last minute–or at least, that some companies hoped so. Despite rumors and hopes, there was little chance of that happening.
The Coast Guard is still issuing policy and guidance letters clarifying points of interpretation. That may frustrate some, because it shows the continuing gray areas of Subchapter M. But it also signals flexibility on the Coast Guard’s part. The Coast Guard’s leaders have unanimously said that it does not have the personnel to handle all the required inspections. It expects third-party organizations (TPOs) to shoulder much of the burden.
The Coast Guard is also reserving some discretion in interpretation to local officers in charge of marine inspection (OCMIs), even as it is, in effect, extending some its rulemaking authority to TPOs. This is an unprecedented experiment in authority that has the potential, at least, to set up conflicts between TPOs and OCMIs.
But it more likely means that potentially overwhelmed OCMIs are likely to look favorably on companies that have developed Towing Safety Management Systems and have a strong relationship with their TPO. The Coast Guard has already issued a policy keeping the listing of minor non-conformities that do not involve safety or firefighting away from the public-facing part of the Coast Guard website.
Some towing companies, especially smaller ones, are betting that a Coast Guard inspection may be less costly. Others, by not having a written TSMS in place by now, have chosen a Coast Guard inspection by default, since that is the only option left for vessels that have not been complying with their TSMS for at least six months.
As one speaker at a Subchapter M panel remarked, the Subchapter M voyage is not over, and won’t be over this July.