Subchapter M is a Positive Regulation

file photo
file photo

Published Dec 29, 2019 6:35 PM by IJ Arora

The reluctance of industry toward the implementation of Subchapter M requirements is short-sighted. 

The U.S. Coast Guard is a premier internationally respected maritime authority, and they have taken a lot of time to produce Subchapter M, incorporating the best practices and lessons learned from years of implementation and enforcement of  the ISM Code (toned down as required for the domestic towing industry in U.S.). Based on the analysis of casualties, tragedies and near misses, statutory bodies, at the insistence of the executive (Congress as the representative of the citizens), the regulations are designed to ensure the safety of the marine environment. 

Owners, especially small businesses, often see the initial investment as an expensive inconvenience. They perhaps fail to recognize the long-term benefits of safe operations using a systematic approach. An incident, accident, loss of life or marine pollution will be far more expensive than the initial investment; not only to them but to the entire industry operating on inland waters. The cost of a closed waterway can amount to millions of dollars per day. 

Subchapter M regulations may initially seem to many like another “policing” activity by statutory bodies. However, when driving a car, people don’t wear a seat belt to avoid being caught by the police. It is to keep the passengers in the car safe. The industry too must implement the Subchapter M regulations in the spirit of ensuring safety, mitigating risks in the context of the maritime environment and systematizing their operations. It is all about the process-based management system approach.

The U.S. Coast Guard has produced Subchapter M to provide the framework for creating a management system, for its monitoring, inspection and audit to thereby ensure safety. The industry should understand this intent.

Industry maturity is essential in the implementation of any regulatory requirements. The NTSB concluded that the probable cause of the grounding of the MODU Kulluk was inadequate assessment of the risk for the planned tow of the Kulluk and implementation of a tow plan insufficient to mitigate that risk. This is not surprising. After all, “a bad system will let down a good person every time.” 

The tragic sinking of the Titanic a century ago is still teaching us lessons - which we often neglect. I cite this international example as it has a lesson for the domestic industry. The SOLAS convention was the outcome of the tragedy, and investigations and introspection by the maritime industry further led to MARPOL, the ISM Code and later the STCW convention. 

Ships had their Safety Management Certificate and other trading certificates; the maritime companies maintained standards by maintaining a Document of Compliance. Then the issue about Flag States doing their job came up. So, more regulations now. More regulations are not the answer, but they are essential when implementors are reluctant to implement in the spirit of the regulation.

The example of the Titanic is essential as Sub Chapter M is implemented. The ISM Code is a good safety initiative to be implemented. The learning in its clauses has been at the cost of precious seafarers blood.

One of the primary lead ups to the ISM Code was the sinking of the Herald of Free Enterprise, a British RoRo car passenger ferry on March 7,l 1987 killing 193 passengers in near calm seas, when the vessel put to sea with the bow door open. A public inquiry into the sinking led by Lord Justice Sheen “identified a disease of sloppiness and negligence at every level of the corporation’s hierarchy.” This was almost the first time that instead of blaming just those at sea, those ashore were held responsible. It is this need for the operators and owners of sea going vessels to have a management system with well designed procedures that are resourced and monitored that necessitated the ISM Code.

It is this ISM Code then which has been studied by the U.S. Coast Guard and converted into the Sub Chapter M with all their expertise and wisdom. The U.S. Coast Guard is following the pattern of monitoring based on Recognized Organizations (ROs) for international shipping by decentralizing and approving third party administrators for monitoring and controlling the implementation of Subchapter M. The purpose and objectives of these administrators is not to interpret the Subchapter M to the convenience of the industry, but to implement the U.S. Coast Guard intent to ensure safety. 

This simple Plan-Do-Check-Act cycle is the magic in ensuring a good plan based on company policy is wisely converted into measurable objectives to drive the procedures to good implementation. The Check stage should be all encompassing, primarily getting input from objective auditing, enabling better decision making by the leadership. The Check stage is mainly the audits, but it should consider any other input including failed inspections, near misses, industry input and new emerging risks. This stage also includes reports from the U.S. Coast Guard. It is vital and requires good training of auditors and auditors and management who understand that “the only bad nonconformity is the one which is not known to the organization.” 

The Act stage is often neglected; top management leave the review to their second-tier management. If they are committed to the management system, it is essential they conduct a management review at regular intervals, soon after a mishap and any time they are in doubt about the state of the system functioning. 

Risk must be considered at each stage of the Plan-Do-Check-Act cycle.

The third party administrators will be cleared by the U.S. Coast Guard as per U.S. Coast Guard procedures. A lot is dependent on them, as they will implement the Subchapter M requirements on behalf of the U.S. Coast Guard. The requirements are created to provide the required oversight, to maintain stakeholder focus, to protect the interests of the customer when tow boats and services are certified. The U.S. Coast Guard has outsourced this to these administrators who should perform to expectations, be well resourced, have the infrastructure and create the environment for compliance in the spirit of the regulations. They should maintain organizational knowledge levels and also maintain competent personnel and take accountability for the effectiveness of the Towing Safety Management System. 

The U.S. Coast Guard has provided options to the towing industry to ensure compliance. Option A - the “Coast Guard Option” per (46 CFR 136.130(a)(1)) offers the best solution for small towing companies who own just two or three vessels. This option requires annual visitation by the U.S. Coast Guard for the inspections. 

Option B - the “Towing Safety Management System” Option (137.130) would be the more logical choice, for larger operators, for convenience and for cost. It requires either internal (first party) surveys to be overseen by a third party administrator or external surveys, where the third party administartor conducts independent verification of compliance at appropriate times in the cycle. The U.S. Coast Guard Certificate of Inspection (COI) is valid for five years and requires a valid Towing Safety Management System issued by a third party administrator.

Whichever option is selected by the company they have to see the value of their system. If it is a paper exercise, of course it will not bring the results. The fear that this will increase paperwork is misplaced. The Towing Safety Management System does mean a little more of system implementation and so a little increased paperwork is to be expected. Companies should not go overboard with paperwork. Refrain from over documenting your system or using a template that does not reflect how they operate. 

Increased operating and compliance costs are not necessary. There will perhaps be some initial costs to comply. However, the cost of operating safely is much lower than the cost of an accident. 

Another fear owner may have could be the interference in their business. However, increased safety on the inland waterways benefits all including boat owners and other leisure craft operators, crew members, the environment and the economy (ensuring waterways not shut down).

In summing up, based on my experience and involvement as also work with the U.S. Coast Guard, I can say this is a very well-intended, well-meant initiative to help the towing industry. The real joy will come from its correct implementation. Subchapter M is not only about compliance. It is about building a safety culture. It encourages the industry to streamline and reduce the paperwork that supports compliance / conformity, by greater use of technology, by identifying common areas and integrating documentation requirements and also motivating the workforce to use and improve the system. 

The early appreciation of risk, based on data driving risks and non-conformities, driving corrective action will itself pay for the investment.

Dr. IJ Arora is President & CEO of QMII.

The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.