A Regulatory Seascape

Raina Clark (taken from MarineNews May 2012 edition)
Wednesday, May 30, 2012
Raina Clark

Regulation shapes the workboat industry perhaps more than any other single factor. This regulatory seascape includes a myriad of onerous and ever-changing rules. A ‘SITREP’ on those choppy waters is therefore in order.



  • Towing Vessel Safety & Subchapter M: Wait and See

Last December, the Coast Guard closed the public comment period following its Notice of Proposed Rulemaking (NPRM) requiring nearly all towing vessels to obtain Certificates of Inspection under Subchapter M of CFR 46. The Coast Guard’s Towing Vessel National Center of Expertise (NCE) estimates that there are 5,800 U.S. towing vessels, 26-ft or longer, that will be affected by this ruling. Fortunately, at least half of these vessels already operate under a full safety management system, which is one of the main requirements of this coming regulation. In addition, there are an uncertain number of vessels under 26-ft that will be affected because they are involved in the transport of hazardous materials.

With this rulemaking, vessels will have the choice of operating under a safety management systems, outlined in the regulations, or submitting to a traditional Coast Guard inspection regime. Jennifer Carpenter, Senior Vice President of National Advocacy for the American Waterways Operators (AWO) said, “We don’t believe a towing safety management system should be optional, because it’s the single most important thing that can be done to improve safety in our industry.” The Towing Vessel NCE calculated that 1,059 companies will be affected by the new regulations and although the largest fleets already operate under safety management systems, 827 companies have yet to institute such systems.

The second key concern AWO has with the proposed rulemaking, Carpenter said, is “prescriptive equipment requirements, especially for existing vessels, that don’t add real value and should be eliminated.” Specifically, she noted the NPRM’s requirement for fully independent, redundant means of propulsion, steering and related controls. This would have a major financial impact, she said, “at least a couple hundred thousand dollars per vessel,” without adding to safety in many cases.

The Coast Guard is in the process of reviewing thousands of comments received from industry. Once the agency has completed its review it will likely either publish an interim rule or a supplemental notice of proposed rulemaking. An interim rule would have an effective date, but include further opportunity for public comment and more tweaking down the road. At this point, there is no way to know how the Coast Guard is leaning.
Addressing the timeline for a final ruling, the Coast Guard’s Patrick Mannion, said “This rulemaking has the potential to dramatically improve safety, enhance efficiency and strengthen the maritime mass transportation system. We are focused on getting it right more so than getting it done fast.”


  • Salvage & Marine FireFighting: Non-Tankers Up Next

Tank vessels were mandated to come into compliance with the U.S. Coast Guard’s Salvage and Marine Firefighting (SMFF) Final Rule more than one year ago. Now, operators and salvers must have more agreements in place and equipment identified in their Vessel Response Plans (VRP) to ensure swift response in the event of a casualty. Although the new SMFF rules apply only to tankers, the Coast Guard is expected to extend these mandates to non-tanker vessels in the future.

“Nobody knows when the non-tank rules are going into effect,” said Alan Matykiewicz, General Manager for the Marine Response Alliance (MRA). “I’m preparing the MRA for this. But do I know exactly when it will happen? No.” Matykiewicz also said some non-tank vessel operators, such as cruise lines, are being proactive, especially given recent cruise line incidents making the news.

Other changes include revisions to the guidelines for the National Preparedness for Response Exercise Program (PREP), a voluntary program designed to facilitate the periodic testing of oil spill response plans of certain vessels and facilities. New PREP guidelines are to include salvage and marine firefighting. PREP drills consist of private industry and multiple government agencies including the Coast Guard, Environmental Protection Agency (EPA), Department of Transportation's Pipeline and Hazardous Materials Safety Administration, and Department of the Interior's Bureau of Safety and Environmental Enforcement. Public comments on the proposed new PREP guidelines were due in April.


  • Ballast Water Treatment: Two Cooks in the Kitchen

Both the U.S. Coast Guard and the EPA are mandated to address ballast water standards. The Coast Guard’s Final Rulemaking on Ballast water management, 33 CFR 151 subparts C and D, was published on March 23, 2012. The new rule adopts limits on living organisms in ballast water discharge proposed by the International Maritime Organization (IMO) in 2004 and establishes an approval process for ballast water management systems. The Coast Guard also called for more research and anticipated tightening of standards in coming years as technology improves.

During the comment period, AWO asked the Coast Guard not to require ballast water treatment systems on towing vessels and barges. Such systems, they said, would not be practical, economically feasible, or environmentally beneficial. The final rule requires treatment systems on only two groups of vessels: seagoing vessels operating beyond the U.S. exclusive economic zone (EEZ) and discharging ballast water taken on in areas less than 200 nautical miles from any shore into U.S. waters; and seagoing vessels greater than 1,600 tons that do not operate beyond the U.S. EEZ and that take on and discharge ballast water in more than one Captain of the Port Zone.

Affected vessels built on or after December 1, 2013 must have approved ballast water treatment systems upon delivery. Vessels built before this day, with a ballast water capacity of 1,500 to 5,000 cubic meters, must have treatment systems installed during their first drydocking in 2014. Existing vessels with lesser or greater ballast water capacity have until their first drydocking in 2016.

“The Coast Guard’s final rule for ballast water discharges applies to a much smaller universe of vessels than the EPA proposes to regulate in its draft 2013 Vessel General Permit (VGP),” the AWO noted in its newsletter. The EPA published its draft of the updated VGP scheme in December 2011. The new VGP would replace the current program when it expires in December 2013 and include a Small Vessel General Permit (SVGP) for commercial vessels less than 79 feet, which would be structured more simply with fewer discharge types.

Within the EPA standard is the opportunity for states to impose their own individual rules on ballast water discharge. States have until June 30, 2012 to submit their additional requirements to the EPA. The EPA is currently collecting comments from the public on the proposed rulemaking and is expected to issue a final rule in November 2012, which would become effective in 2015.


  • NMC & Mariner’s Medical Fitness: Good News, Bad News

The Coast Guard consolidated its regionally-based Mariner Licensing and Documentation program into the National Maritime Center (NMC), which opened in W. Va. in 2008 in an effort to make the notoriously long and painful licensing process more tolerable. The Coast Guard estimates that 212,000 actively employed merchant mariners now receive their licenses and/or credentials through the NMC. Four years after NMC opened, can we call it a success?

Bob Arnold, Exec. Director of SeaSchool based in St. Petersburg, Fla. said “Two years ago, the Coast Guard took an average of six months or longer to process mariners’ licenses in the southern part of U.S. Now they’re promising four to six weeks, but they’re actually doing better than that.”

Carpenter agreed that the experience for mariners has improved greatly. “They have made some significant process improvements. Overall processing time is down and throughput is up.” Still, there is some work yet to be done, Arnold said. Consolidating regional credentialing staff reduced confusion by eliminating varied interpretations of standards but the consolidation cost the Coast Guard a great deal of expertise. Many experienced staff did not make the move to West Virginia. Although routine credentialing issues are dealt with far more quickly, when things get technical, Arnold said, it’s obvious “they’ve lost expertise because they have so many new people at the NMC.”

“There are still mariners getting stuck in the process,” Carpenter said. “If that’s you, you don’t take a lot of comfort in the fact that the average is better.” By far, the stickiest area of the credentialing process is the medical review. Every five years or less, mariners must undergo a physical and submit the results to the Coast Guard. The Coast Guard’s Navigation and Vessel Inspection Circular (NVIC) 04-08 is the document used to determine mariner medical and physical fitness, but the agency has said itself these guidelines are undefined and broad.

“Delays are tremendous in the medical area,” Arnold said, complaining that the current process requires expensive and unnecessary tests. “It takes months to handle routine things. They have taken a simple, two page form that has worked for years, and turned into a nine page document that scares most doctors.” Carpenter adds, “It seems to us [the AWO] there are two safety imperatives that need to be honored: that mariners are medically and physically fit to do their jobs, and secondly, that the industry doesn’t prematurely lose its most experienced personnel.”

If a mariner has one of the more than two hundred medical conditions listed in the NVIC, they must submit additional tests and documentation to the Coast Guard. But the NVIC doesn’t tell mariners when the numbers put them at risk of losing or failing to attain their licenses. “The process is well-intended, but there is a real need to clarify the standards,” said Carpenter. “Mariners need to know what the goal posts are in order to retain their licenses.” If a mariner needs to lose 70 pounds, better to know that a couple years ahead of time, rather than finding out from the NMC after they have submitted their application for renewal.

To tackle this problem, the Coast Guard formed the Merchant Mariner Advisory Committee (MMAC), which held its inaugural meeting in September 2011. As of April this year, the MMAC consisted of ten medical professionals from organizations such as Seafarers Health and Benefits, Pilot Healthcare Inc. and Horizon Lines, LLC and three mariners: Captain William Mahoney of APL Maritime Ltd, Captain Robert Walter of Light Tackle Charters, Inc. and Michael Hochscheidt of the Great Lakes Maritime Academy.

The Coast Guard has asked the committee to review the following problems: The agency has been using broad guidelines (via the NVIC 04-08) borrowed from the Federal Motor Carrier Safety Administration and the Federal Aviation Administration rather than standards specific to merchant mariners; the current CG-719K Medical Evaluation Report Form is complex and long without providing all the tools required by medical examiners to efficiently conduct physicals; Proposed changes in the regulations refer to Designated Medical Examiners approved to conduct medical and physical examinations of merchant mariners, however there is currently no training nor approval process in place for these examiners.

“We [the AWO] want to work with the Coast Guard to try to clarify standards and improve processes,” said Carpenter, but this work “is in the very early stages.”


  • OICNW Requirements: Hawsepipe Reopened

The Coast Guard’s flip-flopping on the mate licensing scheme for Officer in Charge of a Navigational Watch (OICNW) has caused a stir. The OICNW endorsement is required for all mariners holding an endorsement as Master or Mate 500 tons or higher. In 2002, NMC released a set of policy letters dictating that the OICNW endorsement required completion of approved courses, which could cost about $20,000 and take several months, rather than just practical assessments completed on board a seagoing vessel. In June 2011, U.S. Coast Guard Policy Letter 11-07 canceled these OICNW qualification provisions.

While this may look like bad news for schools, Wayne Conwell of SeaSchool said “schools are still a path many mariners choose in order to get assessments done.” Getting supervisors and other qualified mariners to sign off on assessments can sometimes be difficult, Conwell said, because many fear liability if the aspiring OINCW should go on to cause some type of accident underway.

Some have expressed concerns that assessments are not as reliable a training device as approved training courses, while others are happy to see the hawsepipe reopened for mariners seeking officer endorsements on seagoing vessels greater than 200 gross tons. At this point the Coast Guard has made no public plans to take further action on the issue.


  • The Cost of Doing Business

Keeping track of federal proposed and final rulemakings, compliance dates and other details is a significant burden. It is also part of the cost of doing business. Arguably, the Coast Guard has improved its processes and is (today) better overall at working with the industry. Further progress is needed, especially with the mariner medical review process and some of the impractical requirements proposed in the new towing vessel safety regulation. Beyond this, dealing with other agencies – EPA for example – that have little or no maritime knowledge, is especially challenging. In the meantime, industry organizations – AWO, for example – continue to educate the public and regulatory agencies about the workboat industry, guiding the process toward fair and reasonable solutions. That said, the regulatory seascape remains choppy and it is very much a work in progress.

(this article taken from MarineNews May 2012 edition)

Raina O Clark is a journalist and communications consultant for the maritime industry. Contact Raina at raina@rainaoclark.com


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