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Passenger Vessel Workshop: Information to assist Owners/Operators

Passenger Vessel Workshop: Information to assist Owners/Operators “Our goal is to promote safe marine operations within the scope of law.”. March 04, 2019. The Passenger Vessel Safety Act of 1993 ( NVIC 7-94) :

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Passenger Vessel Workshop: Information to assist Owners/Operators

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  1. Passenger Vessel Workshop: Information to assist Owners/Operators “Our goal is to promote safe marine operations within the scope of law.” March 04, 2019

  2. The Passenger Vessel Safety Act of 1993 (NVIC 7-94): • Signed into law on December 20, 1993, making significant changes to the laws at the time that regulated passenger carrying vessels • Provided clarification on the use of bareboat and charter agreements • Divided passenger vessels into 3 categories: • Recreational • Inspected (PV, SPV) • Uninspected (UPV) (Does not mean unregulated)

  3. Key Definitions: • Passenger: an individual carried on the vessel except: • the owner or an individual representative of the owner or, • in the case of a Vessel under charter, an individual charterer or individual representative of the charterer; • the Master (captain); or • a member of the crew engaged in the business of the vessel who has not contributed consideration for carriage and who is paid for on board services. • Passenger-for-Hire: a passenger for whom consideration is contributed as a condition of carriage on the vessel, whether directly or indirectly flowing to the owner, charterer, operator, agent, or any other person having an interest in the vessel. • Consideration: An economic benefit, inducement, right, or profit including pecuniary payment (money) accruing to an individual, person, or entity, but not including a voluntary sharing of the actual expenses of the voyage, by monetary contribution or donation of fuel, food, beverage, or other supplies.

  4. Inspected :requires annual inspection and • certification by the Coast Guard to operate • as a passenger vessel. Issued Certificate of • Inspection and decal. • Passenger Vessel (PV): A vessel of at least 100 gross tons that: • is carrying more than 12 passengers, including at least 1 for hire; • is chartered and carrying more than 12 passengers • Small Passenger Vessel (SPV): Each vessel of less than 100 gross tons that: • carries more than 6 passengers, including at least 1 for hire; • is chartered with a crew provided or specified by the owner or the owner’s representative and is carrying more than 6 passengers; • is chartered with NO CREW PROVIDED or specified by the owner or the owner’s representative and is carrying more than 12 passengers

  5. Uninspected : Regulated by 46 CFR Subchapter C. • *Voluntary examination program to verify that operators are • in compliance with federal regulations. A decal is issued. • Uninspected Passenger Vessel (<100 GT UPV, “6 pack”): A vessel not subject to inspection by the Coast Guard under 46 USC 3301, less than 100 gross tons that is: • Carrying no more than 6 passengers, including at least 1 person for hire; • Chartered with the crew provided by the owner or owner’s representative, and carrying 6 or fewer passengers. • Uninspected Passenger Vessel (≥100 GT UPV) A vessel not subject to inspection by the Coast Guard under 46 USC 3301,100 gross tons or more that is: • Carrying no more than 12 passengers, including at least 1 person for hire; • Chartered with the crew provided by the owner or owner’s representative, and carrying 12 or fewer passengers.

  6. *Submersible vessels, w/ at least one passenger for hire must be U.S.C.G. certificated

  7. Vessel Documentation Requirements: • Vessels over five net tons used in fishing activities on navigable waters of the U.S. or in the Exclusive Economic Zone (EEZ), or used in coastwise trade must have a Certificate of Documentation (COD) bearing a valid endorsement for the activity in which it is engaged. • A COD is valid for one year from the date of issue and must be renewed on an annual basis. • Original COD must be aboard the vessel. • A Certificate of Documentation may be endorsed for • fishery, coastwise, registry, or recreation. • Vessel must have been built in the U.S. to be used in the • fisheries or coastwise trade. • Exception: May apply for a SPV Coastwise waiver for • Foreign built vessels. • Registry Endorsement required for passenger-for-hire • operations on foreign route or on “voyage to nowhere”. • National Vessel Documentation Center

  8. Vessel Documentation Cont. : • All documented vessels must comply with the laws of the state in which they are operated. • States may require documented vessels to be registered (but not numbered) and to display state decals showing that they have complied with state requirements. • Vessels 5 net tons or less used in fishing activities or used in coastwise trade must have a valid state registration certificate aboard when underway, indicating Commercial service. • How do I know if my vessel measures 5 net tons? • Net tonnage is a measure of a vessel's useful capacity, expressed as a volume (gross tonnage minus deductible spaces). • Vessels of more than 25 ft are likely to measure 5 net tons or more under the Simplified Measurement System, although, they may measure less than 5 net tons if formally measured. • For information about how tonnages are determined, visit the U.S.C.G. Marine Safety Center's web site at the Marine Safety Center's Tonnage Page.

  9. Personnel Credentialing: • Every UPV, SPV, or PV must be under the direction and control of an individual credentialed by the U.S.C.G. for the intended route and service. • The original license or Merchant Mariner Credential (MMC) must be aboard and be available for immediate presentation to CG officials whenever passengers are being carried for hire. • Initial issuance of the MMC requires a TWIC, Renewals of the MMC do not. • MMC is not valid without a current medical certificate. • National Maritime Center

  10. Drug & Alcohol Testing Program: • Regulations are in place to provide a means to deter the illegal use of controlled substances by merchant marine personnel and to promote a drug-free and safe work environment for the safe passage of embarked passengers and for carriage of cargo on U.S. waterways. • All company personnel, full-time, part-time, year round, seasonal, or contracted, who meet the definition of a crewmember, are subject to U.S. Coast Guard Drug and Alcohol Testing, in accordance with 46 CFR Parts 4 & 16. • Who is responsible for implementing this program? • Marine Employer: A marine employer is anyone, including the self-employed, who will be one of more of the following: • (a) Owner, • (b) Managing operator, • (c) Charterer, • (d) Agent, • (e) Master, or • (f) A person in charge of a vessel, other than a recreational vessel

  11. Drug & Alcohol Testing Program Cont. : Crewmember: An individual who is either; (a) On board a vessel acting under the authority of a license or merchant mariner’s document (b) Engaged or employed on board a vessel owned in the United States that is required by law or regulation to engage, employ, or be operated by an individual holding a license, certificate of registry, or merchant mariner’s document (c) Exception: Individuals aboard a vessel, not fulfilling a requirement for manning under 46 CFR Part 15, who are not in a Safety Sensitive Position Safety Sensitive Position: Is any position (billet) aboard a vessel, that requires the person filling that position to perform one or more safety sensitive duties or operation of a vessel on either a routine or emergency only basis. Safety Sensitive Duties: Include but are not limited to; (a) Directing and mustering passengers in emergencies (b) Passing out lifejackets (c) Controlling and operating lifesaving equipment (d) Controlling and operating firefighting equipment

  12. Drug & Alcohol Testing Program Cont. : • Each marine employer is required to have a written drug and alcohol testing policy distributed to crewmembers as stated in the Employee Assistance Program (EAP) regulations. Details a company’s position regarding their expectations with regard to drug and alcohol testing and actions to be taken as a result of drug testing results. • Requires employers to report all positive drug tests on mariners that hold a credential to the local U.S. Coast Guard office. Also requests reports of ALL positive test or refusals. • Employers shall immediately remove from service any crewmember in a safety sensitive position that has had a positive drug test or refusal. • The mariner may not return to work in a safety sensitive position until completing the return to work process detailed in 46 CFR Part 16 & 49 CFR Part 40. • Holders of Merchant Mariner Credentials are also subject to S&R action.

  13. Pre-Employment Testing : • The company cannot put this person to work in a safety sensitive position until the results of the negative pre-employment test are received.  • Pre-Employment Exception: 2 scenarios in which a marine employer may waive a pre-employment drug test. i) The mariner has passed a DOT drug test within the previous six (6) months, and has had no positive tests within those 6 months; or, ii) The mariner has been subject to a random drug testing program in accordance with Coast Guard regulations for at least 60 of the preceding 185 days, did not have any positive test results, and did not refuse to take a required test. • MUST obtain documentation that supports either of the exemptions. Ex) A letter from the mariners previous marine employer and/or negative drug test result that has been verified by a qualified MRO.  • Simply verifying the mariner has a consortium card is NOT sufficient. • The card verifies the mariner is enrolled in random testing not the results of past tests.

  14. Random Testing : • In accordance with 46 CFR Part 16 & 49 CFR Part 40 • The minimum annual percentage rate for random drug testing shall be 50 percent of covered crewmembers. (May be lowered by Commandant) • The selection of crewmembers for random drug testing shall be made by a scientifically valid method  • Test must be done without delay once notified of selection Consortium/Third Party Administrator (C/TPA): A service agent that provides or coordinates a variety of drug and alcohol testing services (administrative tasks) to employers. Designated Employer Representative (DER) : An employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes including random selection notifications. The DER also receives test results and other communications for the employer.

  15. Reasonable Cause Testing : • Any crewmember in a safety sensitive position reasonably suspected of using a dangerous drug or suspected of being intoxicated or under the influence of alcohol, shall be subjected to chemical testing. • An individual is under the influence of alcohol or a dangerous drug when:  a) The individual is operating a vessel other than a recreational vessel and has an alcohol concentration of percent by weight or more in their blood; or,  b) The individual is operating any vessel and the effect of the intoxicant(s) consumed by the individual on the person’s manner, disposition, speech, muscular movement, general appearance or behavior is apparent by observation  • The marine employer’s decision to test must be based on a reasonable and articulable belief that the individual has used a dangerous drug based on direct observation of specific, contemporaneous physical, behavioral, or performance indicators of probable use. • Where practicable, this belief should be based on the observation of the individual by 2 persons in supervisory positions. 

  16. Drug & Alcohol Testing Program Cont. : • May marine employers “share” crewmembers enrolled in another operator’s chemical testing program? • Marine employers may share crew members with other operators and/or hire independent consortium members as long as the chemical testing regulations are followed.  • Written agreements between the employers defining positive test reporting must be in effect in order to share crewmembers. • These agreements must be retained on file and produced during a DAPI audit. • USCG Drug and Alcohol Program

  17. Records: • Pre-Employment Exception Documentation kept for length of employment • NEGATIVE test result(s) must be kept on file for 1 year. • POSITIVE or NON-NEGATIVE test result(s) must be kept on file for 5 years, whether or not the mariner was hired. • If the mariner holds a license or merchant mariner document, the positive or non-negative test result must be reported to the nearest U.S. Coast Guard, Officer in Charge Marine Inspection (OCMI).  • Background Check from all DOT employers w/in last 2 years: • DOT Alcohol Test ≥ 0.04, Test Refusals, Positive & Non-Negative Results • Within 30 days of starting Employment • Written consent from mariner on each request • Maintained for 3 years • Annual MIS reports

  18. Marine Casualty Reporting: • Immediately after addressing safety concerns, the owner, agent, master, operator, or person in charge of a vessel in commercial service, shall notify the Coast Guard. • The owner, agent, master, operator, or person in charge of the vessel shall, within five days, file a written report (Form CG-2692, Report of Marine Accident, Injury or Death) of any reportable marine casualty. • Make reports to the Sector Key West Command Center, • 24/7, Channel 16 VHF/FM or (305) 292-8727 • CG-2692 reporting forms can be obtained online at: • CG-2692 Forms • Additional marine casualty reporting guidance can • be obtained from NVIC 01-15 at: U.S.C.G. NVICs

  19. Marine Casualty Reporting : • What is a Reportable Marine Casualty? • Unintended grounding, or bridge allision; • Intended grounding, or bridge allision causing a hazard to navigation, the environment, safety of a vessel, or creates #3 to # 8 below; • Loss of main propulsion, primary steering, or any associated component or control system that reduces the maneuverability of the vessel; • An occurrence materially and adversely affecting the vessel’s seaworthiness or fitness for service or route; • Loss of life; • Injuries requiring professional medical treatment (treatment beyond first aid), and, for persons engaged or employed aboard, renders them unfit to perform routine duties; • An occurrence causing property damage in excess of $75,000; or • 8) An occurrence involving significant harm to the environment as defined in 46 CFR 4.03-65 (a)

  20. Marine Casualty Reporting: • What is a Serious Marine Incident (SMI)? • Marine casualty involving one or more deaths; • Injury requiring professional medical treatment (treatment beyond first aid); • Damage to property in excess of $250,000; • Actual or constructive loss of an inspected vessel; • Actual or constructive loss of any vessel >100GT; • Discharge of oil of 10,000 gallons or more; or • Discharge of a reportable quantity of hazardous substance • Coast Guard regulations require marine employers to take all practical steps after a Serious Marine Incident to have each crewmember who is directly involved and whose actions, orders or inactions may have contributed to the incident, to be chemically tested for evidence of drug and alcohol use. • Alcohol testing is mandatory within 2 hours following a Serious Marine Incident by a National Highway Traffic Safety Administration approved device. • DOT Drug testing is mandatory within 32 hours following a Serious Marine Incident.

  21. Marine Casualty Reporting: • Why does the Coast Guard investigate Marine Casualties? • Determine the causal factors that contributed to the casualty; • Whether there is evidence that any failure of material (either physical or design) was involved or contributed to the casualty, so that proper recommendations for the prevention of the recurrence of similar casualties may be made; • Whether there is evidence that any act of misconduct, inattention to duty, negligence or willful violation of the law on the part of any licensed or certificated person contributed to the casualty; • Whether there is evidence that any Coast Guard personnel or employee of another government agency caused or contributed to the cause of the casualty; or • Whether the accident shall be further investigated by a Marine Board of Investigation in accordance with regulations in 46 C.F.R. 4.09

  22. Hazardous Condition Reporting: • Whenever there is a hazardous condition either on board a vessel or caused by a vessel or its operation, the owner, agent, master, operator, or person in charge must immediately notify the nearest Coast Guard Sector Office. 33 CFR 160.216 • Hazardous condition:Any condition that may adversely affect the safety of any vessel, bridge, structure, or shore area or the environmental quality of any port, harbor, or navigable waterway of the United States. • It may, but need not, involve a(n): • Collision • Allision • Fire • Explosion • Grounding • Leaking • Damage • Injury or illness of a person aboard • Manning-shortage

  23. Bareboat Charters: In simple terms, a bareboat charter is a written charter agreement that provides no crew and the crew is not specified by the vessel owner. 1.The charterer must have the option of selecting and paying crew. Owner may provide recommendations. 2. The master and crew shall be paid by the charterer. 3. All food, fuel, and stores are provided by the charterer. 4. All port and pilotage fees are paid by the charterer. 5. Insurance is obtained by the charterer at least to the extent of covering liability not included in the owners insurance. 6. The charterer may discharge, for cause, the master or any crew without approval from the vessel owner. 7. The vessel is surveyed upon delivery and return to the owner.

  24. Bareboat Charters Cont. : • COI required for >12 passengers • The charterer is NOT considered a passenger, there can only be 1 charterer. It is not uncommon that several individuals charter a vessel, in this case, 1 person would be considered the charterer and the rest would be counted as passengers. • A licensed Master is not required to operate the vessel. • The owner may require minimum levels of proficiency for whatever crew is retained based on federal statute in the interest of ensuring the vessel is manned by a competent crew (i.e., licenses, credentials, etc.) • The charterer has complete command, control, and possession of the vessel as if it were his or her own. • The charterer assumes responsibility for the vessel operations within the maritime laws and regulations for the duration of the charter. • The owner of the vessel may NOT be the vessel master, be part of the crew, or in any way be on board during the vessel’s charter.

  25. Vessel Vacation Rentals: • Either a Bareboat Charter or Passenger-for-hire operation (UPV, SPV, PV). • Federal regulations apply if the vessel is moored at the dock or anchored • Bareboat Charter: • Valid written bareboat charter agreement in place • Meets all bareboat charter requirements • Passenger-for-hire operation: • Not a valid bareboat charter • Owner/owner representative remains onboard (renting a room) • More that one charterer (separate group of renters) • *Water Taxi services to and from an anchored vacation rental vessel are • passenger-for-hire operations.

  26. Potential Penalties: • If a vessel is operated in violation of applicable laws and regulations, the owner, charterer, managing operator, agent, master, and individual in charge may each be liable for criminal or civil penalties. • Failure to comply with a Captain of the Port (COTP) Order is punishable by a civil penalty of up to $91,901 for each day the vessel is in violation (33 U.S.C. § 1232). • Willful and knowing violation of a COTP order is a class D felony, punishable by up to 6 years in prison (18 U.S.C. § 3581) or fines of up to $250,000 for an individual or $500,000 for an organization (18 U.S.C. § 3571). • Knowingly and willfully making false, fictitious, or fraudulent statements to federal law enforcement officers is punishable by fines and up to 5 years in prison. (18 U.S.C. § 1001). • Additionally, insurance companies may deny coverage

  27. Potential Max Civil Penalty Fines: (subject to increase w/ inflation) • $15,995 per day: Operating a vessel without a COD, an invalid COD, or in trade other than endorsed upon the COD. 46 U.S.C. § 12151(a)(1) • $7,520 per day: Failure of a marine employer to comply with the Drug and Alcohol Program requirements: 46 U.S.C. § 2115 • $18,477 per day: Employment of an individual, or service in a position by an individual, without the appropriate license. 46 U.S.C. § 8101(g) • $18,477 per day: Failure to have a licensed Master on inspected passenger vessels. 46 U.S.C. § 8101(g) • $38,954 per violation: Failure to have an assistance towing vessel, uninspected passenger vessel, or inspected small passenger vessel; under the control of a properly licensed individual. 46 U.S.C. § 8906 • $38,954 per violation: Failure to give immediate notice of a reportable marine casualty. • 46 U.S.C. § 6103(a) • $7,520 per violation: Failure to conduct post casualty chemical testing in accordance with 46 CFR Part 4.06. 46 U.S.C. § 2115 • $91,901 per day: Failure to report a Hazardous Condition. 33 U.S.C. § 1232(a)

  28. Sector Key West Points of Contact: • Inspected Vessels: • LT Nicholas Olmstead- Chief, Inspections Division, SKWInspections@uscg.mil • (305) 295-1417 • Uninspected Passenger and Commercial Fishing Vessel Examinations: • Mr. Jeff Lewis – Commercial Fishing Vessel Examiner, SKWInspections@uscg.mil • (305) 292-1405 • Marine Casualty Reporting, Drug & Alcohol Program, Bareboat Inquires: • LT Scott Ledee - Chief, Investigation Division, KeyWestIO@uscg.mil • (305) 292-8804 • Please contact our Sector Key West Command Center for: • Emergencies • Hazardous Condition and Marine Casualty Reporting • Reports of Illegal Activity • After-hours inquires • (305) 292-8727

  29. Links to Reference Material: Sector Key West-Homeport Code of Federal Regulations CGMIX/PSIX USCG Domestic Vessel Compliance NHTSA-List of Evidential Breath Alcohol Measurement Devices NHTSA-List of Screening Devices to Measure Alcohol in Bodily Fluids

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