Held on Tuesday February 23rd, The Coast Guard Regulation Changes and BSEE & USCG after incident investigation Panel Discussion took place at the Hyatt Place Hotel. This effort was spearheaded by JCRoat Subject Mater Services and Fisk Marine Insurance.
On the Panel were Dennis Farr; from the USCG, who has been instrumental in working with the industry during the notice of proposed rule making (NPRM) and has been listening closely to our recommendations. Robert Carroll; from the regional N.O. office of the BSEE (Bureau of Safety and Environmental Enforcement). Thomas Garret; SME/Consultant BP. Mike Ehlers; owner Saturation Services LLC. Peter Sieniewicz; Technical Adviser Diving IMCA; with 14 years of experience in UK HSE as a Specialist Diving Inspector. Allan Palmer; VP of Subsea Operations at Bisso Marine. Vic Merritt; HR & HSE Compliance. Rick Walker; Consultant for Subsea Marine Construction.
The purpose of this panel was to inform on upcoming regulatory changes, how future audits by BSEE might change and how these may impact the commercial diving industry. More importantly, this was a discussion meant to gain our commitment to safety and get the audience to understand that we can impact how these changes take place by speaking up, and asking questions before and not after the changes have been made.
John Roat made a presentation on the importance of internal auditing. He discussed the two main players in an internal audit, the USCG regulations and the BSEE regulations. BSEE “enforces compliance with regulations and periodically updates rules to reflect advancements in technology and new information.†But what this boils down to is a simple message which Roat says is: “Do what you say you are going to do.†Currently, under the USCG, the supervisor holds all responsibility; but under BSEE regulation it is the operator’s responsibility to follow regulations. This means a company can be fined for non-compliance if the BSEE finds a violation. What does this mean to you?
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Do what you say you do.
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Keep all your paperwork in order (cross your ‘T’s†and dot your “I’sâ€). As painful as that can be, being meticulous about your paperwork can mean the difference between compliance and non-compliance. And for you, the difference between a raise or promotion or potentially losing your job because now the company you work for has to pay a fine because you thought “paperwork schmakerworkâ€.
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Ensure your procedures are not contradicting each other and are meeting the intent of the law.
Next up, Dennis Farr mentioned that the many comments and recommendations received by the USCG concerning the NPRM are still being reviewed. They have currently reviewed 50% of the comments and are approximately 70% complete in their review of each section. It appears that the USCG is seriously considering incorporating IMCA Guidelines by reference.
Will there be another opportunity to comment? Apparently, yes! It seems participation during the comment periods have been so tremendous, that the USCG may re-open for further comments. There was a question from the audience regarding where to read these proposed changes. If you visit this site you know we have periodically posted the link, but it is here, yet again. The USCG provides full disclosure of the proposed changes as well as the comments. You are free to read through them and provide your own recommendations, and we encourage you to do so. Do not wait for others to speak for you in hopes that they will fix what you believe needs fixing.
Allan Palmer clarified, yet again, where the USCG has jurisdiction. Remember this, when in doubt: the USCG will have jurisdiction on a USCG certified vessel, whether inland or offshore.
Rob Carroll’s presentation dealt with the audit process of the BSEE. He revisited the BSEE’s mission statement which is: “The Bureau of Safety and Environmental Enforcement (BSEE) works to promote safety, protect the environment, and conserve resources offshore through vigorous regulatory oversight and enforcement.†He stressed the word “vigorous.†He then explained the history of SEMS (safety and Environmental Management Systems). If this seems a little distant from diving, it is not. Carroll explained what a diver should be aware of regarding what can apply to a diver. Check out their webpage to get a more complete picture of what the BSEE can do for you.
Remember this: Neither regulation nor regulatory enforcement agency can do much or can stand to improve anything if we DON’T REPORT!! And we’re not just talking about incidents. Don’t wait until the proverbial shit has hit the fan. The BSEE (and the DA as well) want to know about near misses. These are the events which can help us prevent recurrence if we know about and learn from them. The DA site is one place to report concerns as well, but don’t miss out on the BSEE near miss reporting capabilities either.
From SEMS (borrowing from the Macondo event) comes the Ultimate Work Authority. Perhaps you didn’t know but any time you’re on a job, you and everyone should know who has the Ultimate Work Authority. This means who has the authority to allow work to recommence when someone has called an All Stop. And remember this: EVERYONE has the authority to call and All Stop. That means you. You the tender, or the diver the supervisor.
The meat of the Panel centered on a fantastic discussion by Peter Sieniewicz on the history of the development of diving regulations and their enforcement in the UK. Mr. Sieniewicz went into some detail on how UK legislation works, and how the regulatory regime overarching and how it works; and specifically diving regulations and guidance, and inspections and enforcement. As many may know, the UK has a sordid history in commercial diving in the North Sea from late 60’s, early 70’s and into the 80’s. Yes, Peter said, the HSE has been rather draconian in its enforcement of regulations. But have results been commensurate with that enforcement approach? The UK has not had a commercial diving fatality since 2000. What do you think?
This couldn’t be better proof not only that it is not just about regulation, but also bout enforcing the regulations. Sieniewicz noted that the UK has on average 3-5 diving related prosecutions per year. And the UK will not hesitate to levy fines and/or jail time. For example, not speaking to the inspector during an investigation is a criminal offense. That means there is no hiding behind the “I didn’t see or hear,†or “I don’t know. I can’t say.†as is often the case on this side of the pond.
Regarding regulations themselves, formal prescriptive diving regulations came about in 1981. They were black and white and backed up with “very very strong regulatory enforcementâ€. In the UK you end up with a criminal record if you break HSE law, you can go to jail and in Crown Court the fines are unlimited. If you decide that you want to run away and close up your company, the government has the power to reopen your company so they can go after you.
The UK regulatory regime reaches both inland and offshore. It is covered by the HSE which is aquango or department and this means inspectors are warranted and have powers to go with those warrants; such as allowing them to enter a worksite at any time, we can enter any premises where they believe a breach of health and/or safety has occurred and they can compel individuals to speak. The Health and Safety at Work Act was put together in 1974, and it covers all people while they are at work. Everyone has a duty and a responsibility. Underneath that are the diving regulations of 1997. They are made up 17 regulations and they cover diving anywhere. If you’re diving inland or offshore, you’re diving. The details are in the Approved Code of Practice (ACOP). The ACOPs are what provide the guidance for diving within a specific sector. The regulatory authority within the diving regulations covers military diving, covers the police, recreational diving, scientists, archeologists, anybody at work, who dives. And the ACOPs are used together with industry guidance as well. They are expected to be followed to make the dive as safe a reasonably practicable. What does reasonably practicable mean? The HSE evaluates this using a cost benefit analysis. Where the cost or benefit to the improvement to safety outweighs the cost of tragedy. Regulations are legal duties that are placed on contractors, there are two types of regulations that are enshrined in the UK health and safety law the first one is goal setting. Goal setting is “as safe as reasonably practical. The other is absolute, or prescriptive in the UK diving regulation there are only two which are absolutely prescriptive; and they are 1) you must have a diving medical and 2) must have a qualification for the work activity you are undertaking.
The only drawback with the UK goal setting regulation approach is that there is no defined line. So it’s a judgment decision between you and the regulator, and worst case, if and incident led to a prosecution, it is up to the court to decide whether the actions you took at that time were safe or not safe. To overcome this problem, the ACOPs step in. If you comply with the requirements of ACOP you are deemed to be compliant with the law. The interesting part is: you don’t have to comply with the ACOP, but you do have to comply with the law. Guidance is seen as “best practice†but you don’t have to comply with it. Regulations are law and you must comply.
In the UK, all deaths at work are initially treated as a murder. It is for this reason that initially the police will also be involved. Usually, rather quickly it is downgraded to manslaughter. And when the HSE comes in they will look at the breaches in regulation which may have occurred. The death is also investigated by the coroners, they look at the cause of death without apportioning blame. They just want to know how the individual died. What is of major importance to the HSE investigator is the autopsy, because if the inspector is going to prosecute somebody, the regulatory breach has to be tied to the death; the death becomes an aggrevating factor and this means that the penalties are more severe. An HSE inspectors have a number of “powers†available to them such as: a verbal advice, stop work authority, formal letter (which will require you to address), formal enforcement notice like an improvement notice or a prohibition notice. Failure to comply is a criminal offence and can be punished with two years in jail.
The biggest difference between the UK and the US at the moment, is that our legal approach and concerns cause companies to be very closed up when it comes to providing and sharing information after an event or injury has occurred. We need to get past this fear of perceived weakness and stigmatization and for be more forthcoming. We are losing our lessons learned when we do not have disclosure. We are potentially placing other lives at risk when we do not share what could be life saving lessons. The information is only as good as what we get, and we’re often getting very skewed and meager information if we’re getting any at all
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Now, it is not all a rose garden. Sieniewicz noted that because there has not been a single DCS case in the UK or Norway for many years now, the downside is that many less experienced supervisors and dive crew do not recognize the symptoms or may not recognize them when they see them. Why is this a concern if the fatality rate has been zero for so long? Because after the economic downturn such as the one the oil and gas industry had had, there is a money crunch driving safety standards down combined with an influx of new and inexperienced divers and thus a rising trend of smaller incidents. This is a “perfect storm†build up for a more serious, if not fatal, incident to occur. This hasn’t just happened overseas, it’s happening in our own backyard, so to speak. Are we ready for this?
This tied in very well with the last part of the panel discussion which was on JHAs.
Canned vs. Fresh, was the question.
On the table was the debate over the benefit of a tried and true JHA and a JHA which is prepared prior to every task. When is the JHA written, when is it updated, and what is covered? All these questions were asked by the audience and the recommendations/reminders from the panel were:
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The JHA is a legal document.
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Don’t focus on the process but instead the outcome. Ask yourself,
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How does this JHA help manage when things are not happening as planned?
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Did you not only identify the hazards but also made sure to document how you mitigated them or can mitigate them?
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Are you familiar with the process of Management of Change (MOC) in your company?
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Is everyone in your crew actually reading the JHA?
So when to pull back when things are not going as planned? How to handle MOC?
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Stop Work- when and where do I pull back?
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Ultimate Work Authority
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Management of Change (should be well outlined in procedures).
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Not all decisions can be made on the boat, some need to go back to shore for decision making.
A panel member mentioned, once again, the importance of reporting incidents. While investigating the Bibby incident, it was noted that there had been a similar prior event which had not been captured in a shareable lessons learned. Would knowing this have prevented the Bibby incident? Who knows, he said, but that does not mean for a second that information should not be put out there and shared. What was admirable was the disclosure of information following the incident. He showed great frustration, noting that 1-2 divers die due to delta P every year.
This was a good moment to ask the audience if they are familiar with the IMCA Safety Flashes. Probably the widest read documentation IMCA produces. The key with these is to remember that they are only as good as the information they get. This is guidance put together with input from the industry. The guidance is out there, it’s available, it’s free, and it’s up to us to use it.
With this, the panel discussion came to a close. This was a very informative session, and well worth sharing with those of you who couldn’t be there.
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