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16 june 2015 FOGHORN legal 26 MAY 2013 FOGHORN REGuLaTORyREPoRT grandfathered compliance deferred for good and sufficient reason by the new regulation. Also your own records may contain the informa- tion you need if a previous oCMI accepted the installation or process under the equivalency or alternative provisions contained in regulation. If the response to your request for a cited regulation and reason is vague or one that threatens addi- tional actions it is likely founded on less than regulation. A threatening response is both unwarranted and unprofessional. Under ordinary cir- cumstances resolution should be at the lowest level possible. In this case the route to resolution is less clear but still ultimately leads to the oCMI or higher authority if not resolved beforehand. Should you decide to appeal POWERFUL FLEXIBLE INTUITIVE. 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Use it At the office At home On your laptop On your smartphone On your iPad At the dock Free setup training and ongoing support Fully hosted and managed 247 Personal U.S.-based account reps MOST TOUR OPERATORS CAN USE STARBOARD SUITE FOR FREE remember an appeal under regu- lation only starts when an oCMI has made a decision and you wish to challenge it or take it to a higher authority with more discretionary authority. You have the right and an acknowledged opportunity to work your way through the chain of command with dispatch and without hindrance to the oCMI. Shortly after the adoption of the Coast guards Enhanced Marine Safety Program many Sector Commanders invited comment from their regulated entities on any matter and many included their cell phone numbers and personal email addresses on their business cards. This may be the case in your sector. While the foregoing instances are relatively few they must be addressed promptly. With industry support Congress has repopulat- ed and adequately resourced the marine safety programs with several hundred new positions and billets. These new marine safety resources need to be trained in regulation and administrative processes exposed to missions under supervision and then tested on their knowledge. one senior officer indicated that goal is probably three to five years off. Like all the other Coast guard missions marine safety has a re- quirement for training and qualifica- tion before being assigned particular tasks. The Commandant has noted that training and qualification alone is not necessarily proficiency and his goal for mission performance is pro- ficiency. In marine safety proficiency is not only knowing the regulations and policies but understanding and using the embedded authorities to exercise equivalency consistency and alternative compliance when ap- propriate. That program fails when the operator cannot access the chain of command or when discouraged by the inspector or intermediate su- pervisory personnel. n hassle of having to make another hiring decision should not trump the diseconomies of hiring a merely marginal employee. Sometimes employers engage in the process of extending probation. It seldom works and is often merely delaying the inevi- table. Consistent with the B- and C analysis in the prior paragraph if an employees likely success is unclear termination should likely have occurred. Few business decisions for the purchase of a six-figure commodity should go forward with the standard of Im not sure . . . it might be okay. Finally some employers may point to employees who were poor at first yet grew into good employees. It is submitted that this is usually a long shot and that the odds of growing good long-term employees is better enhanced by requiring only top ratings from probation survivors. In summary the length of a pro- bationary period is irrelevant so long as an employer has a disci- plined commitment to use the pro- bationary period to taking decisive actions regarding continued em- ployment. The decision should not be avoided by the short-term in- convenience and expense of having to find another employee to fill a vacancy. Employers who require B or A performance during the proba- tionary period are less likely to be heard saying This person should have been terminated long ago. n About the Author Steven E. Bers Esq chairs the Employment and Maritime law practices of the Washington D.C.Baltimore law firm Whiteford Taylor Preston LLP and has served as PVAs General Counsel since 1988. He may be contacted through the PVA Legal Hotline by email at sberswtplaw.com or by phone 410 347-8724.