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Final Coast Guard El Faro report: “This is a call to action for the entire maritime community”
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Final Coast Guard El Faro report: “This is a call to action for the entire maritime community”

Final Coast Guard El Faro report: “This is a call to action for the entire maritime community”
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Final Coast Guard El Faro report: “This is a call to action for the entire maritime community”

More than two years after the Jacksonville cargo ship El Faro sank in Hurricane Joaquin, killing all 33 people on board, the Coast Guard Commandant has released his orders on what should and will change to prevent this type of tragedy from happening again.

This past October, the Coast Guard Marine Board of Investigation that probed the sinking released its Report of Investigation, detailing dozens of recommendations they compiled through their two year investigation, which included holding three two-week hearing sessions in Jacksonville. Since then, the Commandant has been reviewing the ROI, and he has now issued a Final Action Memo. That FAM details what the Commandant concurs with, what he will order, and what he disputes from the MBI’s findings.

“The loss of El Faro and its crew members was tragic and preventable. The Coast Guard will take appropriate action on all that we have learned from this investigation,” says Coast Guard Commandant Admiral Paul Zukunft. 

FULL COVERAGE:  The sinking of El Faro

Zukunft approved the findings of fact, analysis, and conclusions detailed in the ROI.  It found the primary cause of the sinking was the decision to navigate the ship too close to the path of Hurricane Joaquin, although the Captain’s attorney has disputed this conclusion. Contributing factors to the sinking outlined in the FAM include the operating company, TOTE Services, having an ineffective safety management system; the ship’s surveyor, the American Bureau of Shipping, failing to uncover and resolve longstanding deficiencies; and the Coast Guard itself failing to adequately oversee third party inspections, including not sustaining the policy framework and proficiency.

“This casualty did not occur due to a lack of standards or requirements; rather it was the result of poor seamanship compounded by failure of the safety framework that should have triggered a series of corrective actions that likely would have prevented it,” the FAM says.

Coast Guard Assistant Commandant for Prevention Policy Rear Admiral John Nadeau will lead the efforts in response to the Commandant’s directives- with some of the orders falling under the purview of the Coast Guard and able to be implemented in themselves, but others requiring organized partnerships and even international cooperation.

“The Coast Guard takes the implementation of the safety recommendations in the Commandant’s Final Action Memo very seriously and is committed to providing sustainable policy, oversight, and accountability both internally and externally,” Nadeau says.

“This is a call to action for the entire maritime community. TOTE, ABS, and the Coast Guard must learn and more with a sense of urgency. This tragic story points to the need for a strong and enduring commitment at all elements of the safety framework,” the FAM says.

This is separate from the NTSB’s investigation, which recently concluded with the issuance of dozens of safety recommendations. The NTSB can only issue and lobby for the recommendations, but cannot order actual change.

Monitoring and alarms

The Commandant concurs with the MBI recommendation to require high water audio and visual alarms on new and existing multi-hold cargo ships. To achieve this, they will pursue domestic regulation and work with the International Maritime Organization on expanding the Safety of Life at Sea regulation.

The MBI recommended watertight closures have open/close indicators visible on the bridge. The FAM says existing regulations require that for most such fixtures, but there is no defined list of “watertight” openings for vessels built before 1992. As such, the Coast Guard is recommending companies identify those openings.

An area where the Commandant says the Coast Guard doesn’t object- but will not necessarily require- is the recommendation to have closed circuit television cameras installed in unmanned spaces, allowing monitoring from the bridge. The Commandant says high water alarms as recommended and existing fire detection requirements give sufficient early warning.

The focus on monitoring and alarm systems comes because of the sequence of flooding that’s believed to have transpired on El Faro. Water is believed to have gotten in to a cargo area through an open scuttle- which should have been closed. From there, investigators believe cargo may have been able to break loose on the now-wet deck, and may have hit a fire system on board, leading to more flooding. Water also is believed to have gotten on board through vents that were open- with conflicting guidance for the crew on whether those vent openings should have been open as vents are required, or closed as watertight and weathertight openings. With the vent openings, the Commandant agrees that dual purpose closures can be confusing and impractical, but he’s calling on the company to ensure crew is aware of those conflicts. While the FAM doesn’t conclude whether the fire pump piping was damaged by cargo in this case, the Coast Guard will consider requiring more protection for these types of “vital systems”.

AUDIO: El Faro’s Captain describes ‘marine emergency’ in final shore side communication

The flooding and significant list, followed by an overcorrection that resulted in a more substantial list to the other side, ultimately is believed to have led to a loss of suction in the lube oil system, which led to a loss of propulsion. The MBI raised concerns about the operating limitations of these systems- specifically that suction was lost at that list on that specific side of the ship. The Commandant says the Coast Guard will publish a “Marine Safety Alert” to let maritime operators know about the MBI’s findings about the lube oil sump, but added that there is no “compelling evidence” to suggest testing and design standards need to be revised.

The Commandant did not concur with a recommendation which would have required vessels keep electronic records for areas like bridge and engine room logs, and periodically transmit those logs to the shore during their voyage. Through the hearing process, MBI investigators noted that they didn’t have some information- including crew work/rest hours- because the ship’s logs were lost with the vessel.

The MBI also sought to require a company have onboard and shore side tracking for incremental weight changes. This recommendation largely comes from the MBI’s findings that work was being done on El Faro to convert her to the Alaskan trade, but that work was not being factored in to ship calculations. The FAM says the preferred way to track incremental weight changes is a deadweight survey, and they will recommend that is done when a ship undergoes a stability test, although the Commandant notes that proposal has been put forward twice before, without success.

Safety equipment and Search and Rescue

The NTSB called on new regulations to require enclosed lifeboats on all vessels in their recommendations. The MBI put forward a similar call, wanting the Commandant to work toward eliminating open top gravity launched lifeboats for US ships. The FAM says the Commandant supports phasing out open lifeboats and supports proposals to achieve that, but stops short of saying he will work to require it for existing vessels. On existing vessels with open lifeboats, the Coast Guard is initiating a “concentrated inspection campaign” to make sure the lifeboats are in “serviceable condition”.

There’s no evidence El Faro’s lifeboats ever launched, and investigators largely don’t believe the crew would have been able to survive in the conditions they faced, but they believe the best chance the crew could have had would have been in enclosed lifeboats. El Faro’s lifeboat systems also had work done just ahead of her final departure, and testimony during the hearing showed that work wasn’t properly surveyed.

The MBI recommended that Voyage Data Recorders- or the ship’s black box- be installed in a “float-free” arrangement, which would allow it to break free of the wreckage at the time of a sinking. The MBI further recommends the VDR have an EPIRB, or locating beacon. It took two missions to locate El Faro’s VDR and a third to recover it from the ocean floor, where it was still affixed to the wreckage.

DETAILS: El Faro’s Voyage Data Recorder captures audio ahead of sinking

The Commandant acknowledged that, while the requirement for a ship to have a VDR was retroactive, guidelines like having a float-free arrangement were neither mandatory nor retroactive. The Commandant says he will propose to the International Maritime Organization that new VDR installations be required to be float-free and have location indicators. There is no mention of any retroactive requirement.

The MBI further recommended VDRs capture communications on internal ship telephone systems or other two-way communications. The Commandant says the Coast Guard will propose to IMO that additional data sources be captured by the VDR. Investigators believe having that additional audio captured by the VDR can help paint a more complete picture of what is happening on board.

During the MBI’s investigation, it became clear that locating beacons- or Self-Locating Datum Marker Buoys- being used at the time were not effective- the FAM says their success rate was 30%-50%. Since then, those buoys have been taken out of service and replaced with a newer version that the FAM says has a 92% success rate. The MBI recommendation, therefore, that these buoys be evaluated for their reliability has already taken place, although the Coast Guard says it will continue to work with manufacturers about improving functionality and reliability. The Commandant has also identified several products they may acquire to better mark and track floating objects that can’t be immediately recovered during search and rescue.

The Coast Guard is also working with organizations developing domestic and international standards on how to integrate distress signaling and location technology in personal lifesaving appliances, like personal floatation devices.

Only one set of remains was ever found during search and rescue operations after El Faro’s sinking, but none were recovered. Had the Coast Guard immediately recovered the remains, they would have had to return to land immediately. Instead, they put a beacon with the remains and went to check a report of a possible person in the water waving. They didn’t find anything during that search, and the beacon left with the remains malfunctioned, and the remains could not be located again.

Safety management

There was testimony during the MBI hearings that it was difficult to truly anonymously report any issues on a ship while at sea, because email capabilities were on the bridge and the Captain gave permission for use of the phone. The Commandant says there are already systems in place that allow for anonymous reporting of safety issues, if all levels are properly implemented. Therefore, he agreed with the intent of a recommendation to develop a shipboard emergency alert system for anonymous reporting, but cited the rules, regulations, and protections already in place.

The Coast Guard is going to issue new guidance on development, implementation, and verification of a ship’s Safety Management System, dealing specifically with assessing risk, developing contingency plans for emergency situations, and other areas. The FAM says the company is responsible for developing the SMS, but the Coast Guard is responsible for ensuring compliance with International Safety Management code.

In the SMS, the Coast Guard will also specifically look for damage control information that’s required of newer vessels but was not retroactive. The Commandant also concurred with a recommendation to update policies dealing with the approval of stability software.

The Commandant is putting the responsibility for the accuracy of any cargo loading and securing software that’s used on the company, to ensure it’s consistent with a ship’s Loading Manual and- if one exists- Cargo Securing Manual.

The MBI had also recommended civil penalty action against TOTE Services, El Faro’s operator, over four alleged violations including failure to comply with work/rest standards and a lack of safety training and orientation for the Polish riding gang that was on board. The Commandant concurs with the recommendation.

“The investigation has determined that there is evidence that TSI may have committed multiple violations of law or regulation. As such, the alleged violations identified in this recommendation will be referred to the Officer in Charge, Marine Inspections, Jacksonville for investigation and enforcement action, as appropriate,” the FAM says.

On the Coast Guard side, the Commandant is directing a review of their policies for making and documenting a “major conversion” determination. When work on a ship is determined to be a “major conversion”, it generally leads to more modern standards- like for safety systems- being put on the vessel. Investigators determined that work done on El Faro around 2005-06 should have been a “major conversion”, even though that initial ruling from the Coast Guard was overturned on appeal. Had that determination been made, it likely would have led to the ship being required to update to new, enclosed lifeboats, among other things.

Training and inspections

El Faro was surveyed under the Alternate Compliance Program- a special protocol that allows an Alternate Classification Society to perform inspections and other activities on behalf of the Coast Guard. El Faro’s surveyor was the American Bureau of Shipping, which does the lion’s share of the work under this program that is still used on commercial vessels to this day. The MBI recommended the Coast Guard increase oversight and attendance for certifications and audits, after hearing during testimony that there was a lack of oversight and communication among the entities involved. The Commandant says “rather than arbitrarily increasing oversight frequency”, they will determine attendance based on risk and data.

El Faro was set to be put on an increased protocol at the time of her sinking, because of a cluster of recent issues. After El Faro’s sinking, the Coast Guard’s advanced inspectors did a concentrated inspection effort on some of the most at-risk vessels, and that resulted in several vessels getting no-sail orders and others being scrapped.

The Coast Guard will also establish an auditing process, and begin publishing an annual report on domestic vessel compliance, to include no-sail orders and ACS performance statistics.

“The Coast Guard must, and will, establish a risk-based and enduring policy framework that is simpler to execute and enables more robust oversight of delegated functions,” the FAM says.

Training for ACS surveyors is another question. The Coast Guard says they will establish a procedure to assess the effectiveness of ACS surveyor training programs and will ensure inadequacies are immediately addressed. 

Under ACP, any issues that aren’t addressed in the various rules and regulations governing the entities involved are detailed in what’s called US Supplements. 

“As additional ACS’s were authorized to participate in ACP, inconsistency between the supplements of the various ACSs, multiple versions of the same supplement, and the lack of consistent reviews/updates has led to an anthology of supplements that have created more confusion than clarity,” the FAM says.

While the MBI recommended eliminating the use of Supplements, The Commandant says the Coast Guard will work with the ACSs to create a single Supplement, focused mainly on critical systems.

GALLERY: Tributes to the El Faro crew

The Commandant is also ordering the Coast Guard upgrade and enhance its Marine Information for Safety and Law Enforcement system, which documents deficiencies on a vessel. The upgrade will better allow for capturing, tracking, and analyzing important data about deficiencies.

The Coast Guard identified two areas in their training for mariners which they will work to improve, as a result of this investigation. Both deal with policy guidance for maritime training schools, with one dealing with management level training in advanced meteorology and the other with operational level training in meteorology.  The Coast Guard is also now expanding and enhancing training and qualifications to ensure Sector Commanders and designees can deal with their responsibilities.

The Commandant says the Coast Guard has already acted on another recommendation- creating a steam plant inspection training program. They’re also now establishing an Advanced Journeyman Inspector course to give training on ACP inspections and related areas. Third parties, like ACS surveyors, will be allowed to attend these courses as space allows.

Additionally, the Coast Guard is now considering how to monitor global performance of the US fleet and ACSs. While the MBI recommended establishing a Third Party Oversight National Center of Expertise or Third Party Oversight Office at Coast Guard headquarters, the Commandant said only that they’re considering the available options.

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Original report: President Donald Trump is expected to sign the deal lawmakers have hammered out to avoid a second shutdown, CNN is reporting. >> From Cox Media Group’s Jamie Dupree: Trump hints at ‘national emergency’ to funnel money to border wall On Tuesday, Trump said he was “not happy” with the spending plan negotiators came up with Monday night, CNN reported. That deal includes $1.375 billion in funding for border barriers, but not a concrete wall, according to Cox Media Group Washington correspondent Jamie Dupree. “It’s not doing the trick,” Trump said, adding that he is “considering everything” when asked whether a national emergency declaration was on the table. He said that if there is another shutdown, it would be “the Democrats’ fault.” Trump also took to Twitter later Tuesday, claiming that the wall is already being built. >> See the tweet here The Associated Press contributed to this report.
  • As President Donald Trump on Friday announced a pair of executive actions and declared a national emergency to funnel more money into border security, lawmakers in both parties in Congress were left in the dark on how the Pentagon would deal with the largest part of the President’s declaration, carving $3.6 billion out of military construction projects authorized and funded by the U.S. House and Senate. “I strongly believe securing our border should not be done at the expense of previously funded military construction projects,” said Rep. Mike Turner (R-OH), whose district is home to Wright Patterson Air Force Base, which received $116 million in 2019 for construction of a new building for the National Air and Space Intelligence Center. “We certainly cannot allow him to rob our military of $3.5 billion for critical construction projects that serve our troops, support our allies, and deter our adversaries,” said Sen. Brian Schatz (D-HI). Congress approved $10.3 billion for military construction for Fiscal Year 2019, doling out money to dozens of domestic and overseas military facilities, projects which are often prized as bring-home-the-bacon items for Democrats and Republicans alike in Congress. The list of military construction projects in each year’s budget runs the gamut of military needs – from an F-35 maintenance hangar at Camp Pendleton in California, to a training facility at the Mayport Naval Base near Jacksonville, Florida, to a reserve training center at Fort Benning in Georgia, to a dry dock facility at Pearl Harbor in Hawaii, and much more. In all, military construction money was approved last fall by lawmakers for defense installations in 38 different states, and at least 14 overseas locations, some of those U.S. possessions. You can read through the list of projects from the bill here. A quick look at the list of military facilities with 2019 funding shows that many of them are located in House districts held by Republican lawmakers – who could find money for their local military project in jeopardy, as the President tries to funnel more money to his signature border wall. Democrats from around the country were quick to issue statements asking that their home state military construction projects be spared from any cuts, and challenging their GOP colleagues to do the same. Trump’s “National Emergency” strips billlions of dollars from base housing construction. Martha will you join me in opposing this farce? Who is more important the military spouses or your obedience to the President? https://t.co/Z56pZ9VRYr — Ruben Gallego (@RubenGallego) February 15, 2019 The President's unconstitutional action threatens to take money away from construction at Nellis Air Force Base, and local national security activities that keep Nevada families safe. I will support the House’s actions to restore order and protect Nevadans. — Rep. Steven Horsford (@RepHorsford) February 15, 2019 Since Trump reportedly plans to take money from existing military construction projects for his #nationalemergency, this could steal millions in approved & necessary funding away from the Portsmouth Naval Shipyard. #mepolitics My full statement on his authoritarian power grab pic.twitter.com/djQdIcHmub — Chellie Pingree (@chelliepingree) February 15, 2019 The Pentagon and the White House had no answers for reporters on Friday on which military construction projects would be put on hold, whether from the 2019 budget, or from money approved by Congress, but not yet spent from previous years. “We would be looking at lower priority military construction projects,” a senior administration official told reporters on a Friday conference call before the President’s announcement. That official – and another senior White House official on the call – both downplayed the amount of money being taken from military construction, with one saying the budget was ‘substantially’ more than the $3.6 billion being diverted by the President. But that’s not the case. “I sit on the committee that funds Military Construction,” said Rep. Tim Ryan (D-OH) tweeted on Friday. “Trump is taking $3.5 billion out of the $10 billion that’s in the account. That’s 35%.” Earlier this month, the Republican chairman of the Senate Armed Services Committee specifically said his biggest concern about an emergency would be taking money out of military construction, a point Sen. Jim Inhofe (R-OK) emphasized again this week. “As I heard in a hearing yesterday, military housing and all military installations are facing disrepair and poor conditions,” Inhofe said. “We cannot afford to allow them to be further impacted.”
  • Can President Donald Trump declare a national emergency in order to fund the wall?  >> Read more trending news Here is a look at the powers that come into play when a president declares a national emergency and just what the law allows him to do. Can he do that? The president, at his or her discretion, has the authority to declare a national emergency. Historically, that authority comes from Congress, which by 1973 had enacted more than 470 statutes pertaining to the president’s authority during a national emergency.  In 1976, Congress enacted the National Emergencies Act that limited the scope of response to declared states of emergency.The act: Revoked the powers that had been granted to the president under the four states of emergency that were still active in 1976. Prescribed procedures for invoking any powers in the future. Declared that states of emergency would automatically end one year after their declaration unless the president publishes a notice of renewal in the Federal Register within 90 days of the termination date. He or she must also officially notify Congress of the renewal. Required each house of Congress meet every six months to consider a vote to end the state of emergency. The incoming chairman of the House Armed Services Committee, Adam Smith, D-Washington, agreed that Trump has the authority to declare an emergency and have the U.S. military build the wall. He said on ABC’s “This Week with George Stephanopoulos” that while Trump can do it, such an action would likely be challenged in court. >> National emergency likely to be blocked by courts, DOJ tells White House: reports “Unfortunately, the short answer is yes,” Smith said when asked if Trump has the authority to declare a national emergency and build the wall.“I think the president would be wide open to a court challenge saying, ‘Where is the emergency?’ You have to establish that in order to do this,” Smith continued. “But beyond that, this would be a terrible use of Department of Defense dollars.”What is considered a national emergency?What constitutes a national emergency is open to interpretation, but generally, it is seen as an event that threatens the security of the people of the United States. According to the Congressional Review Service, a 1934 Supreme Court majority opinion characterized an emergency in terms of “urgency and relative infrequency of occurrence as well as equivalence to a public calamity resulting from fire, flood, or like disaster not reasonably subject to anticipation.”  What powers does a president have when a national emergency is declared?Through federal law, when an emergency is declared, a variety of powers are available to the president to use. Some of those powers require very little qualification from the president for their use. The Brennan Center for Justice lists 136 special provisions that become available to a president when he declares a national emergency. A CRS report states, 'Under the powers delegated by such statutes, the president may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens.” However, under the National Emergencies Act, the president must name the specific emergency power he is invoking. How can he get funds for a wall by declaring a national emergency? Where does the money come from? According to U.S. law, a president can divert funds to a federal construction project during a declared national emergency. In the case of the border wall, the money could come from the budget for the Department of Defense under something called “un-obligated” money. Under federal law, un-obligated money in the Department of Defense's budget may be used by the military to fund construction projects during war or emergencies. Department of Defense spokesman Jamie Davis said in a statement that, “To date, there is no plan to build sections of the wall. However, Congress has provided options under Title 10 U.S. Code that could permit the Department of Defense to fund border barrier projects, such as in support of counter drug operations or national emergencies.” Can Congress get around it? Congress can end a president’s call of a national emergency with a joint resolution. A joint resolution is a legislative measure that requires the approval of both the House and the Senate. The resolution is submitted, just as a bill is, to the president for his or her signature, making it a law. 

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