In particular, USCG issued in August 2005, the NVIC 04-05, containing guidance to ensure foreign vessel compliance with the requirements of ISM Code and a checklist that PSCOs should use as the supplement to the inspection books. The following extract is from the aforementioned USCG Circular, addressing procedures for compliance.
Paragraph 8 - Procedures
a. Compliance with SOLAS Chapter IX and ISM Code Requirements
(1) Pre- Arrival Screening
Foreign ships must provide the date of issuance of their DOC/SMC and the name of the Flag Administration or the RO acting on its behalf, who issued those certificates prior to entry into the U.S. on the ship's Advance Notice of Arrival (ANOA) (33 CFR 160.206). If the COTP/OCMI cannot confirm that the ship holds a valid SMC/DOC by verifying its ANOA, the COTP/OCMI should assign the ship Priority I boarding status and deny the vessel entry into port.
(2) Including ISM Code Compliance in the PSC Examination.
As part of all PSC examinations conducted in accordance with reference (d), PSCOs should check to verify compliance with SOLAS Chapter IX and the ISM Code. PSCOs should be alert for any indications that major non-conformities exist with the ship's SMS (i.e. the SMS not implemented or not used by the ship's personnel). The identification of a major SMS non-confonuity by the PSCO is sufficient grounds for the COTP/OCMI to take appropriate enforcement actions. Be advised that a major non-conformity is a key indicator of an invalid SMS.
(a) Substantial non-compliance of a ship's SMS to the requirements of the ISM Code is indicative of a major non-conformity (ISM Code 1.1.10). By definition, a major non-conformity is a deviation from SMS requirements that poses a serious threat to personnel or ship safety, or a serious risk to the environment and requires an immediate corrective action.
(b) Also considered a major non-conformity is the lack of an effective and systematic implementation of a requirement of the ISM Code. It may take several boardings to identify a poor SMS. Accordingly, PSCO's should review the ship's history in order to track repeated deficiencies. For example, an inoperable fire pump repaired prior to departure is not usually grounds to question effective implementation of the ship's SMS. However, the deficiency taken with other material deficiencies from this and previous PSC examinations, and evidence that the ship and/or company is not meeting SMS requirements for reporting and correcting deficiencies may lead to the determination that major SMS non-conformities exist. The PSCO should to be able to distinguish between deficiencies that result from normal vessel operations (e.g. wear-and-tear, weather, operational environment) and those deficiencies that exist due to systemic failure of the ship to implement its SMS. It is possible for wear-and-tear in the extreme (i.e. long-standing deficient conditions), or in multiple systems, to be indicators of a failure of the SMS. Examples of such indicators are as follows.
1.Evidence that the ship was not taking corrective action for long-standing non-conformities in accordance with the company's established preventative maintenance system, and
2. Evidence that the company failed to address outstanding non-conformities reported by the ship to the company in accordance with the ship's SMS
(3) Clear Grounds and the Expanded Examination.
PSCOs should conduct an expanded examination when clear grounds lead the PSCO to believe that the ship has not effectively implemented its SMS. Examples of conditions that result in clear grounds for an expanded exam include, but are not limited to:
(a) improperly endorsed or expired ISM certificates;
(b) lack of SMS documentation;
(c) crewmembers having insufficient knowledge of their required duties under the SMS; and/or
(d) serious, long-standing material deficiencies or systemic lack of maintenance of critical equipment/systems as identified in the ship's SMS.
(4) Conducting an Expanded Examination of the SMS. During the expanded SMS examination, the PSCO verifies the basic components of a SMS related to the observed non-conformities. The PSCO also confirms that the Master and crew have a basic understanding of the SMS and their responsibilities. The PSCO should verify relevant items from the list below using Part B of the Addendum to the Foreign Vessel Examination Book:
(a) SMS documentation (may be in the form of a "Safety Management Manual") written in the working language of the ship, is on board and includes or identifies:
1. controlled documents with revision and/or issue dates or other means of control (ISM Code 11.1);
2. safety and environmental protection policy (ISM Code 2);
3. the authority of the master (ISM Code 5);
4. essential or critical equipment (ISM Code 10.3);
5. the name(s) or title(s) of the company's designated person(s) (ISM Code 4) ; and
6. procedures for reporting and analyzing non-confolinities, accidents and hazardous occurrences (ISM Code 9).
(b) The Master is familiar with the SMS (ISM Code 6.1.2)
(c) Shipboard personnel involved with the SMS have an adequate understanding of the process. The ship's officers should:
1. have knowledge of documented procedures to be followed;
2. be familiar with documented preventative procedures for essential equipment; and
3. have knowledge of reporting requirements of a non-conformity.
(d) The company's training program is in place for all personnel, including newly assigned or transferred persons, to enable all personnel to be familiar with their duties.
(e) The Master and Chief Engineer are familiar with the company's internal audit procedures.
(f) The ship has an established maintenance system in which:
1. procedures are documented in writing;
2. procedures are readily available, in a working language(s) understood by those who must use them; and
3. procedures are followed and records of maintenance are maintained.
(g) The ship follows established procedures for shipboard operations covering the following areas as appropriate.
1. Preventative Maintenance;
2. Navigation Procedures;
3. Bunkering Operations;
4. Emergency Preparedness;
5. Pollution Prevention Procedures;
6. Technical Systems Operations; and
7. Communications Procedures.
(h) Audits conducted as required by the ISM Code.
1. Internal Audit: The company conducts internal audits to verify safety and pollution prevention activities comply with the SMS. These audits demonstrate the level of implementation in assessing if the SMS is effective. The PSCO should only seek evidence that the company is conducting internal audits at intervals specified in the company's SMS documentation. The PSCO should not examine the records which result from the audits for specific non-conformities. Evidence of a properly used SMS should show that the company or the ship's crew have identified these non-conformities and evaluated each for corrective action. These records are objective evidence that the company is complying with the ISM Code and is finding, correcting, and preventing the reoccurrence of any deficiencies. The PSCO may ask the master if identified non-conformities were SOLAS-related.
2. External Audit: Although the ISM Code does not define external audits, they are literally the extensive undertakings involved with the initial, renewal, intermediate, or follow-up verifications completed by the Administration or RO. If possible, the PSCO should review the results of such external audits during an expanded examination only. The goal of this audit is to provide a systematic and independent examination to determine whether the ship
effectively implements arrangements suitable to achieve the objectives of the company's SMS. When working with Flag Administrations or RO's to rectify ISM related non-conformities, the COTP/OCMI can only recommend, but not require an external audit Although the Flag Administration or RO auditor makes the final disposition for the external audit, the Coast Guard (as a representative of the Port State administration) reserves the right of the COTP/OCMI to either accept or reject the audit findings and to take independent action with regard to any restrictions placed on the ship.
b. Enforcement Actions for Non-Conformities with the ISM Code.
(1) IMO-Related Detentions
An IMO related detention consistent with SOLAS Chapter I, Regulation 19 should be the primary course of action when there are clear grounds that a vessel subject to SOLAS is substandard and corrective measures are necessary. In such cases, an OCMI should consider revoking or placing conditions on the vessel's Certificate of Compliance (COC) relevant to the substandard conditions identified.
(2) COTP Orders
A COTP Order is an important tool used when it is necessary to control or restrict the vessel's movement or operations for safety or security reasons. Only the COTP may use such an order to implement a variety of control actions, including controlling the vessel's movement as it enters or departs a port. The COTP may also use such an order to expel a vessel from port. The COTP may initiate enforcement action if a ship fails to comply with a COTP Order. A COTP Order may be used in addition to or in lieu of revocation of a vessel's COC. Although, it is not a substitute for pursuing and processing a detention and completing the associated notifications and administrative requirements under the applicable provisions of SOLAS, the ISPS Code, MARPOL, STCW, or the Load Line Convention.
(3) IMO Notification Requirements.
Whenever a foreign vessel is denied entry into a port or offshore terminal, or is detained, the unit taking that action must notify the vessel's flag State as soon as possible. The unit must also notify the local office of the classification societies or Recognized Organization that issued the relevant certificates of the related detention. The table entitled "IMO Detention Notification Responsibility Chart," located in section C of NVIC 06-03, summarizes unit notification responsibilities. The G-MOC PSC Website provides point of contact information.
(4) Ship Discovered in Port without valid ISM Code Certificates. The COTP/OCMI should take the following enforcement actions if the COTP/OCMI discovers ships in port without the certificates required by SOLAS Chapter IX and the ISM Code.
(a) Ships Detained (IMO-related Detention) due to Missing ISM Certificates.
1. If the ship cannot transit safely to sea the COTP/OCMI should detain the ship and carefully control the ship's movement commensurate with the identified risks.
2. The COTP/OCMI should detain the ship under SOLAS Regulation 1/19 for non-compliance with SOLAS Chapter IX and work with the Flag Administration forthwith to rectify the situation. Violation of SOLAS Chapter IX subjects ships to control measures by the COTP/OCMI, in accordance with the provisions of SOLAS Chapter I, Regulation 19 and associated guidelines for port state control related to the ISM Code contained in section 3.7 of IMO Resolution A.882(21).
3. The COTP/OCMI should issue USCG Port State Control Report of
Inspection, Form A (CG-5437A) and USCG Port State Control Report of Inspection, Form B (CG-5437B) to the ship's master, citing the ship for not having a SMC and/or copy of the DOC per SOLAS Regulation IX/4. COTP/OCMIs should scan and then e-mail both Forms A and B and any related COTP Orders or documents to G-MOC-2 at [email protected] via the chain-of-command.
4. Ships found in substantial non-compliance with the ISM Code may pose a serious threat to passengers and crew, be unable to conduct safe cargo operations, or pose an unreasonable risk to the marine environment or ship safety. The COTP/OCMI must evaluate these risks and make a determination as to the appropriateness of the ship retaining its Coast Guard issued COC until the ship corrects the unsafe conditions.
5. If the COTP/OCMI finds that the ship does not possess an original of the SMC or a copy of the DOC, then the COTP/OCMI may commence civil penalty action (See 33 CFR 96.380(c) and 46 USC 3205(d)). The COTP/OCMI can release the ship once the company has addressed all deficiencies and non-conformities and has posted a bond or other surety to cover the amount equal to the maximum civil penalty.
(b) Ships Expelled from Port (IMO-related Detention) due to Invalid or No ISM Certificates.
1. If the ship can transit safely to sea, the COTP may only expel the ship from port under the authorities in the Ports and Waterways Safety Act (PWSA), 33 U.S. Code 1221-1236. The PWSA provides authority for the COTP to order a ship from port when the ship poses a hazard to navigation or the marine environment, or when a ship in port is in violation of any regulation, law, or treaty (See 33 USC 1223 (b)(1) and 33 CFR 160.111(a)).
2. The COTP should not expel a ship if the ISM violations do not constitute a hazard to navigation in the port of such a nature and severity that poses a serious threat to personnel or ship safety, or a serious risk to the
3. If the COTP expels the ship from port, the written COTP Order should indicate that the COTP will deny entry of the ship until the ship possesses a valid SMC and a copy of the company's DOC and has implemented an effective SMS. COTP/OCMIs should enter a Special Note in MISLE indicating that the COTP/OCMI discovered the ship without certification and has targeted the vessel as non-compliant with ISM and the vessel must provide evidence of compliance with the ISM Code prior to entering U.S. waters. COTP authority only applies to the COTP AOR and does not extend to all U.S. waters.
4. The COTP/OCMI may allow the ship to leave port if the conditions established in 33 CFR 96.380 (b) are satisfied.
(5) Ship Discovered With Major Non-Conformities During Expanded Examination. The COTP/OCMI should take the following enforcement actions if the PSCO identifies major non-conformities during an expanded examination of a ship's SMS.
(a) Ships Detained (IMO-related Detention) due to ISM Major Non-Conformities.
1. If the PSCO identifies major non-conformities during an expanded examination of a ship's SMS that indicate that the company has not implemented the SMS, the COTP/OCMI should detain the ship and notify the flag immediately.
2. The COTP/OCMI should notify the ship's Flag State or RO noting that the implementation of the ship's SMS is in question and should request that the Flag Administration or RO attend the ship to determine if the ship is operating in compliance with the ISM Code.
3. The COTP/OCMI should issue a USCG Port State Control Report of Inspection, Form A (CG-5437A) and the USCG Port State Control Report of Inspection, Form B (CG-5437B), citing specific ISM non-conformities. Note that FoHn A and Form B are sufficient documentation authorizing an IMO detention; however, the COTP may execute a COTP Order under the authority of PWSA, referring to SOLAS Regulation 1/19 to outline specific instructions related to the detention and conditions for lifting the detention. COTP/OCMIs should scan and then e-mail both Forms A and B and related COTP Orders or documents to G-MOC-2 at [email protected] via the chain-of-command.
4. The COTP/OCMI may prohibit/suspend/restrict ship operations, as appropriate. The COTP/OCMI may place restrictions on cargo/passenger operations only if the non-conformities make these operations hazardous. If the COTP/OCMI detains a passenger ship due to major ISM non- conformities, the COTP/OCMI should permit passengers to disembark.
5. The COTP/OCMI may release the ship after receiving a report from the Flag State, or its RO, indicating that the ship complies with the ISM Code. Furthermore, the COTP/OCMI may release the ship from detention after the company has addressed all deficiencies and non-conformities. In addition, the responsible company should establish a set course of action for updating or correcting the ship's SMS in accordance with its documented procedures. The company, not the Port State, sets corrective action deadlines for non-conformities.
6. If the COTP/OCMI verifies that the ship has a valid SMS, but has detained the ship due to deficiencies associated with other international requirements (i.e. STCW, MARPOL, ICLL, or SOLAS), the PSCO should ensure that the ship used the procedures as outlined in the SMS to correct the material deficiencies. Prior to releasing the ship from detention, the COTP/OCMI should require the ship to correct the material deficiencies that led to
detention. If the PSCO identifies any non-conformity in the ship's SMS, the COTP/OCMI should require the ship to initiate steps to correct these deficiencies.
(b) Ships Expelled from Port due to ISM Major Non-conformities.
1. The COTP may not expel a ship from port solely for non-compliance with the ISM Code. The law does not give the Coast Guard the authority to expel a ship solely for a violation of the ISM Code. When there are instances where a non-compliant ship poses a danger to the port and its infrastructure (33 USC 1223), then the Coast Guard may expel the ship under the PWSA authority. Additionally, the ship's company should sufficiently address any existing conditions that pose a threat to the ship, crew, or environment before the COTP expels the ship from port.
2. Expulsion orders must cite the appropriate PWSA authority articulating the reasons the ship's operation poses an unreasonable threat to the safety of the port, ship or the marine environment.
(c) Ships Denied Entry due to ISM Major Non-conformities.
1. When ships arriving are in substantial non-compliance with the ISM Code, the COTP should notify the master and require adequate proof of compliance with the ISM Code and deny the ship entry into the port. Upon acceptable verification of the ship's compliance with the ISM Code, the COTP should allow the vessel entry. Documents for consideration may include providing copies of the ships SMC, DOC, or evidence that the company downgraded major non-conformities to non-conformities or conducted additional audits/reviews indicating a process of continued improvement of the ship's SMS.
2. Should the ship's management not be able to provide acceptable verification of ISM Code compliance, the local COTP should issue an order denying the ship entry and with all appropriate notifications made in accordance with NVIC 06-03 (series). The COTP/OCMI should make the earliest notification of denied entry to G-MOC-2 to facilitate consistency of the enforcement policy, ensure all information is available for internal and outside agency briefings, and document appropriate MISLE entries.
3. COTP/OCMIs should enter a Special Note in MISLE describing the ship's non-compliance with the ISM Code. The COTP/OCMI should ensure the ship has taken acceptable measures to correct the ship's non-compliance with the ISM Code prior to the ship entering U.S. waters.
4. COTPs may allow a foreign vessel entry into U.S. waters if the vessel is under force majeure as contained in 33 CFR 96.390.
(6) Vessel Targeting Related to IMO related Detentions due to ISM Major Non-Conformities.
(a) If the COTP denies a vessel entry, expels a vessel from port (when permitted), ordetains a vessel due to non-compliance with the ISM Code, the COTP/OCMI should document these vessel operational controls into MISLE to ensure accurate targeting and evaluation of individual ships.
(b) Whenever a foreign vessel has an intervention leading to IMO-related detention, the COTP/OCMI must conduct several notifications. The table entitled "IMO Detention Notification Responsibility Chart," located in section C of NVIC 06- 03, summarizes unit notification responsibilities.
(c) G-MOC reports all detentions of ships due to ISM Code deficiencies to the IMO in accordance with SOLAS Chapter I, Regulation 19.
Explore more by reading USCG NVIC 04-05 herebelow