Subchapter M — Part 138 — Towing Safety Management System (TSMS)
Houston tugboat injury lawyers at Morrow & Sheppard LLP keep up with changes in maritime law that affect our clients.
Subchapter M has significantly modified the safety rules that apply to the tugboat and maritime towing industry. Our Texas maritime injury attorneys are evaluating all parts of Subchapter M.
Part 138 of Subchapter M, copied below, contains requirements for the Towing Safety Management System.
If you or a loved one has been injured while working offshore, in a port or river, or on the high seas, please contact us now at 1-800-489-2216 for a free case evaluation.
PART 138—TOWING SAFETY MANAGEMENT SYSTEM (TSMS)
Subpart B—Towing Safety Management System (TSMS)
138.205 Purpose of a TSMS.
138.210 Objectives of a TSMS. 138.215 Functional requirements of a TSMS.
138.220 TSMS elements.
138.225 Existing safety management systems (SMSs).
Subpart C—Documenting Compliance
138.305 TSMS certificate.
138.310 Internal audits for a TSMS certificate.
138.315 External audits for a TSMS certificate.
138.405 Conduct of internal audits.
138.410 Conduct of external audits.
Subpart E—Coast Guard or Organizational Oversight and Review
138.500 Notification prior to audit.
138.505 Submittal of external audit results. 138.510 Required attendance.
Authority: 46 U.S.C. 3103, 3301, 3306, 3308, 3316, 8104, 8904; 33 CFR 1.05; DHS Delegation 0170.1.
The purpose of this part is to prescribe requirements for owners or managing operators of towing vessels who adopt a Towing Safety Management System (TSMS) under this subchapter.
Owners or managing operators selecting the TSMS option must obtain a TSMS certificate issued under §138.305 at least 6 months before obtaining a Certificate of Inspection (COI) for any of their vessels covered by the TSMS certificate.
Subpart B—Towing Safety
Management System (TSMS)
§138.205 Purpose of a TSMS.
The purpose of a TSMS is to establish policies, procedures, and required documentation to ensure the owner or managing operator meets its established goals while ensuring continuous compliance with all regulatory requirements. The TSMS must contain a method to ensure all levels of the organization are working within the framework.
A TSMS establishes and maintains:
Management policies and procedures that serve as an operational
protocol for all levels within management;
Procedures to produce objective evidence that demonstrates compliance with the requirements of this subchapter;
Procedures for an owner or managing operator to evaluate that they are following their own policies and procedures and complying with the requirements of this subchapter;
Arrangements for a periodic evaluation by an independent third- party organization (TPO) to determine how well an owner or managing operator and their towing vessels are complying with their stated policies and procedures, and to verify that those policies and procedures comply with the requirements of this subchapter; and (5) Procedures for correcting problems identified by management personnel and TPOs and facilitating continuous improvement.
§138.210 Objectives of a TSMS.
The TSMS, through policies, procedures, and documentation, must:
Demonstrate management responsibility. The management must demonstrate that they implemented the policies and procedures as contained in the TSMS and the entire organization is adhering to their safety management program.
Document management procedures. A TSMS must describe and document the owner or managing operator’s organizational structure, responsibilities, procedures, and resources which ensure quality monitoring.
Ensure document and data control. There must be clear identification of what types of documents and data are to be controlled, and who is responsible for controlling activities, including approval, issue, distribution, modification, removal of obsolete materials, and other related administrative functions.
Provide a process and criteria for selection of third parties. Procedures for selection of TPOs must exist that include how third parties are evaluated, including selection criteria.
Establish a system of recordkeeping. Records must be maintained to demonstrate effective implementation of the TSMS. This must include audit records, non-conformity reports and corrective actions, auditor qualifications, auditor training, and other records as considered necessary.
Identify and meet training needs. The owner or operator must establish and maintain documented procedures for identifying training needs and providing training.
Ensure adequate resources. Identify adequate resources and procedures necessary to comply with the TSMS.
§138.215 Functional requirements of a TSMS.
The functional requirements of a TSMS include:
Policies and procedures to provide direction for the safe operation of towing vessels and protection of the marine environment in compliance with applicable U.S. law, including the Code of Federal Regulations, and, if on an international voyage, applicable international conventions to which the United States is a party;
Defined levels of authority and lines of communication between shoreside and vessel personnel;
Procedures for reporting accidents and non-conformities;
Procedures to prepare for and respond to emergency situations by shoreside and vessel personnel;
Procedures for verification of vessel compliance with this subchapter;
Procedures for internal auditing of the TSMS, including shoreside and vessel operations;
Procedures for external audits;
Procedures for management review of internal and external audit reports and correction of non- conformities; and
Procedures to evaluate recommendations made by management and other personnel.
§138.220 TSMS elements.
The TSMS must include the elements listed in paragrahs (a) through (d) of this section. If an element listed is not applicable to an owner or managing operator, appropriate justification must be documented and is subject to acceptance by the TPO.
(a) Administration and management organization. A policy must be in place that outlines the TSMS culture and how management intends to ensure compliance with this subpart. Supporting this policy, the following procedures and documentation must be included:
(1) Management organization—(i) Responsibilities. The management organization, authority, and responsibilities of individuals must be documented.
Designated person. Each owner or managing operator must designate in writing the shoreside person(s) responsible for ensuring the TSMS is implemented and continuously functions throughout management and the fleet. They must also designate the shoreside person(s) responsible for ensuring that the vessels are properly maintained and in operable condition, including those responsible for emergency assistance to each towing vessel.
Master authority. Each owner or managing operator must define the scope of the master’s authority. The master’s authority must provide for the ability to make final determinations on safe operations of the towing vessel. Specifically, it must provide the authority for the master to cease operation if an unsafe condition exists.
(2) Audits—(i) Procedures for conducting internal and external audits.
The TSMS must contain procedures for audits in accordance with §§138.310 and 138.315.
(ii) Procedures for identifying and correcting non-conformities. The TSMS must contain procedures for any person to report non-conformities. The procedures must describe how an initial report should be made and the actions taken to follow-up and ensure appropriate resolution.
(b) Personnel. Policies must be in place that cover the owner or managing operator’s approach to managing personnel, including, but not limited to, employment, training, and health and safety of personnel. Supporting these polices, the following procedures and documentation must be included:
Employment procedures. The TSMS must contain procedures related to the employment of individuals. Procedures must be in place to ensure adequate qualifications of personnel, to include background checks, compliance with drug and alcohol standards, and that personnel are able to perform required tasks.
Training of personnel. The TSMS must contain a policy related to the training of personnel, including:
Duties associated with the execution of the TSMS;
Execution of operational duties;
Execution of emergency procedures;
Crew safety; and
Training required by this Subchapter.
(c) Verification of vessel compliance. Policies must be in place that cover the owner or managing operator’s approach for ensuring vessel compliance, including, but not limited to, policies on maintenance and survey, safety, the environment, security, and emergency preparedness. Supporting these policies, the following procedures and documentation must be included:
Maintenance and survey. Procedures outlining the owner or managing operator’s survey regime must specify all maintenance, examination, and survey requirements, including the minimum qualifications of persons assigned to carry out required surveys the owner or managing operator is using the internal examination program. Applicable documentation must be maintained for all activities for a period of 5 years.
Safety, environment, and security. Procedures must be in place to ensure safety of property, the environment, and personnel. This must include procedures to ensure the selection of the appropriate vessel, including adequate maneuverability and horsepower, appropriate rigging and towing gear, proper management of the navigational watch, and compliance with applicable security measures.
(d) Compliance with this subchapter. Procedures and documentation must be in place to ensure that each towing vessel complies with the operational, equipment, and personnel requirements of this subchapter.
§138.225 Existing safety management systems (SMSs).
A safety management system
(SMS) which is fully compliant with the
International Safety Management (ISM)
Code requirements, implemented in 33 CFR part 96, will be deemed in compliance with TSMS-related requirements in this subchapter.
Other existing SMSs may be considered for acceptance as meeting the TSMS requirements of this part. The Coast Guard may:
Accept such system in full;
Require modifications to the system as a condition of acceptance; or
Reject the system.
An owner or managing operator who seeks to meet TSMS requirements using provisions in paragraph (a) or (b) of this section must submit documentation to the Coast Guard based on the initial audit and one full audit cycle of at least 3 years.
The Coast Guard may elect to inspect equipment and records, including:
Contents of the SMS;
Objective evidence of internal and external audits;
Objective evidence that non- conformities were identified and corrected; and
Objective evidence of vessel compliance with applicable regulations.
Subpart C—Documenting Compliance
§138.305 TSMS certificate.
The owner or managing operator will be issued a TSMS certificate by a TPO when his or her organization is deemed in compliance with the TSMS requirements. It should be kept on file at the owner or managing operator’s shoreside office and available for review, at the request of the Coast Guard.
A TSMS certificate is valid for 5 years from the date of issue, unless suspended, revoked or rescinded as provided in paragraphs (d) and (e) of this section.
The vessel owner or managing operator must maintain a list of vessels currently covered by each TSMS certificate and must provide it to the Coast Guard upon request.
A TSMS certificate may be suspended or revoked by the Coast Guard at any time for non-compliance with the requirements of this part.
The TPO that issued the TSMS certificate may rescind the certificate for non-compliance with the requirements of this part.
A copy of the TSMS certificate must be maintained on each towing vessel that is covered by the TSMS certificate and on file at the owner or managing operator’s shoreside office.
§138.310 Internal audits for a TSMS certificate.
Internal management audits must be conducted annually, within 3 months of the anniversary date of the TSMS certificate, to ensure the owner or managing operator is effectively implementing all elements of their TSMS.
The internal management audit must ensure that management has implemented the TSMS throughout all levels of the organization, including audits of all the owner or managing operator’s towing vessels to which a TSMS applies to ensure implementation at the operational level.
The results of internal audits must be documented and maintained for a period of 5 years and made available to the Coast Guard upon request.
Must have knowledge of the management, its SMS, and the standards contained in this subchapter;
Must have completed an ANSI/
ISO/ASQ Q9001–2000 or ISO
9001:2008(E) (incorporated by reference, see §136.112 of this subchapter) internal auditor/assessor course or Coast Guard-recognized equivalent;
May not be the designated person, or any other person, within the organization that is responsible for development or implementation of the TSMS; and
Must be independent of the procedures being audited, unless this is impracticable due to the size and the nature of the organization.
§138.315 External audits for a TSMS certificate.
External audits for obtaining and renewing a TSMS certificate are conducted through a TPO and must include both management and vessels as follows:
(a) Management audits. (1) Prior to the issuance of an owner or managing operator’s initial TSMS certificate, or subsequent renewals, an external management audit must be conducted by an auditor from a TPO.
(2) A mid-period external management audit must be conducted between the 27th and 33rd month of the certificate’s period of validity.
(b) Vessel audits. (1) An external audit must be conducted prior to the issuance of the initial COI for vessels subject to an owner or managing operator’s TSMS that have been owned or operated for 6 or more months prior to receiving the initial COI.
An external audit must be conducted no later than 6 months after the issuance of the initial COI for vessels subject to the owner or managing operator’s TSMS that have been owned or operated for fewer than 6 months prior to receiving the initial COI.
An external audit of all vessels covered by a TSMS certificate must be conducted during the 5-year period of validity of the TSMS certificate. The vessels must be selected randomly and distributed as evenly as possible.
External audits may include the use of objective evidence which may be available at the owner or managing operator’s corporate office. Some portions of this audit require visiting each vessel at some point during the 5- year period of validity of the TSMS certificate.
(c) Documentation. The results of the external audit must be documented and maintained for a period of 5 years and made available to the Coast Guard or the external auditor upon request.
Management and vessels are subject to internal and external audits to assess compliance with TSMS and the vessel standards requirements of this subchapter.
§138.405 Conduct of internal audits.
Internal audits are conducted by, or on behalf of, the management and may be performed by a designated employee or by contracted individual(s) who conduct the audit as if an employee of the owner or managing operator.
Internal audits are not necessarily conducted as one event; they can be taken in segments over time.
Internal audits must be of sufficient depth and breadth to ensure the owner or managing operator established adequate procedures and documentation to comply with the TSMS requirements of this part, that the TSMS was implemented throughout all levels of the organization, and that the owner or managing operator’s vessels comply with this subchapter and the TSMS.
The auditor must have the authority to examine documentation, question personnel, examine vessel equipment, witness system testing, and observe personnel training, including drills, as necessary to verify TSMS effectiveness.
§138.410 Conduct of external audits.
External audits must be conducted by an auditor from a TPO and cover all elements of the TSMS requirements of this subchapter, but may be conducted on a sampling basis of each of those TSMS elements.
External audits must be of sufficient depth and breadth to ensure the owner or operating manager effectively implemented its TSMS throughout all levels of the organization, including onboard its vessels.
The auditor must be provided access to examine any requested documentation, question personnel, examine vessel equipment, witness system testing, and observe personnel training, including drills, as necessary to verify TSMS effectiveness.
The auditor may broaden the scope of the audit if:
The TSMS is incomplete or not effectively implemented;
Conditions found are not consistent with the records; or
Unsafe conditions are identified.
The auditor may verify compliance with vessel standards and TSMS requirements through a review of objective evidence such as checklists, invoices, and reports, and may conduct a visual sampling onboard the vessels to determine whether or not the conditions onboard the vessel are consistent with the records reviewed.
If an auditor identifies a major non- conformity during the course of the external audit, then the auditor must notify the local Officer in Charge, Marine Inspection (OCMI) within 24 hours and the owner or managing operator’s designated representative in accordance with the TSMS applicable to the vessel.
Subpart E—Coast Guard or
Organizational Oversight and Review
§138.500 Notification prior to audit.
The owner or managing operator of a towing vessel must notify the local OCMI at least 72 hours prior to an external audit being conducted under this part.
The Coast Guard may require that a Coast Guard representative accompany the auditor during part, or all, of an external audit.
The Coast Guard may conduct a separate audit of the owner or managing operator or its towing vessels, at its discretion.
§138.505 Submittal of external audit results.
Submission of external management audits. The results of an external management audit as required by §138.315 must be submitted to the Towing Vessel National Center of Expertise within 30 days of audit completion by the TPO conducting the external audit. The mailing address for the Coast Guard Towing Vessel National Center of Expertise is 504 Broadway Street, Suite 101, Paducah, Kentucky
Submission of external vessel audits. The results of any external vessel audits required by §138.315 must be submitted to the cognizant OCMI within 30 days of audit completion by the TPO conducting the external audit.
Electronic submissions. The results of external audits required by this section may be submitted electronically so long as the means used allows the Coast Guard to reliably verify the person making the submission and the authenticity of the records submitted. For those seeking to submit external audit records to the Coast Guard electronically, the TSMS must address the means to be used to make these electronic submissions.
§138.510 Required attendance.
The TPO and the owner or managing operator may be required to explain or otherwise demonstrate areas of the TSMS to the Coast Guard if there is evidence that a TSMS, for which a TSMS certificate was issued, is not in compliance with the provisions of this part. The Coast Guard may require a third party’s attendance at the vessel or the office of the owner or managing operator for this purpose.
The Coast Guard will not bear any of the costs for a third party’s attendance at the vessel or the office of the owner or managing operator when complying with this provision.
Contact Our Jones Act Lawyers Now
If you or a loved one has been injured offshore, on the high seas, or on a navigable waterway, contact our Jones Act attorneys now at 1-800-489-2216 for a free case evaluation.