Consultation outcome

Consultation Outcome Report: Consultation on draft merchant shipping (anti-fouling systems) regulations 2024

Updated 29 February 2024

Section 1: Introduction

The Maritime and Coastguard Agency (MCA), an executive Agency of the Department for Transport (DfT), carried out a public consultation from 13th November to 11th December 2023 on the draft Merchant Shipping (Anti-Fouling Systems) Regulations 2024 (“the draft Regulations”).

The draft Regulations have been produced in order to consolidate the existing anti-fouling systems regulations and implement amendments made at the International Maritime Organization (IMO) to the International Convention on the Control of Harmful Anti-fouling Systems on Ships, 2001 (“the Convention”).

The consultation was published on www.gov.uk and notifications of the consultation were sent to more than 250 organisations including shipping and marine industry companies, government departments and agencies, and other interested parties. The consultation consisted of the proposed draft legislation, a draft Marine Guidance Note (MGN) and a De Minimis Assessment (DMA).  

Consultees were invited to comment on any aspect of the consultation and specifically to respond to the consultation questions as outlined in this report.

A total of 4 responses were received which have been fully considered. A list of respondents can be found in Section 5 below. The MCA thanks all those individuals and organisations who submitted responses to this consultation.

Section 2: Key Findings

2.1 The consultation was carried out between 13 November and 11 December 2023.

2.2 A total of 4 responses were received, of which 3 (75%) were generally in favour or had no specific views. One responder (25%) raised concerns.

2.3 Out of the four respondents, two provided a detailed response using the consultation form, one provided a general approval of the changes in regulations, and one did not provide specific details in their comments. Focusing on the two detailed forms received, respondents agreed generally with the draft Regulations, their implementation, and the guidance provided by the MCA. They both agreed that the draft Regulations would not have unintended consequences or a disproportionate impact on micro, small and medium businesses. Additionally, both respondents agreed that the dates in regulation 6(3) relating to fixed or floating platforms etc. were no longer needed as sufficient time had elapsed. However, the Government decided not to remove the dates for completeness.

2.4 One of the respondents disagreed with the provision for offence and penalties made by the draft Regulations. According to this respondent, ship owners often do not know the anti-fouling system used by shipyards, so the offence and penalties should focus on the supply and sale of the banned system. Whilst the draft Regulations, and the offences and penalties they prescribe, are focused on shipping, the UK banned the manufacture and sale of cybutryne in anti-fouling systems in 2017 following Commission Implementing Decision (EU) 2016/107. This means there are separate offences and penalties for those manufacturing and selling anti-fouling systems with prohibited substances in the relevant Health and Safety Executive legislation. The EU, USA and UK have all banned cybutryne and, as such, it will be unavailable at shipyards in these countries. The draft Regulations are aimed at preventing ships that have anti-fouling systems applied in countries other than those mentioned above from entering UK waters, therefore protecting our marine environment.

2.5 One of the respondents thought that more investigation could be done on the costs, lifespan and effectiveness between different systems. Additionally, none of the respondents have provided cost estimates. Several sources have been used to estimate the costs of the cheapest alternative to the banned anti-fouling systems in order to make comparisons and to verify the lifespan and effectiveness of the alternative anti-fouling systems. Hence, the existing estimates have been kept in the de minimis assessment.

2.6 Overall, the responses have shown that stakeholders are in favour of the proposed changes and have confirmed that changes to the draft Regulations and Marine Guidance Notice are not required.

Section 3: Summary of Responses

The following questions were posed during the consultation. Government responses are also shown below.

Questions posed

Question 1 – Do you think that the draft regulations will implement the requirements of the Convention accurately and appropriately? If no, please add further details in the comment box below.

Two respondents did not answer the question, those that did agreed that the draft regulations will implement the requirements of the Convention accurately and appropriately. No further comments were provided.

Government comments:

The Government notes that the regulations will implement requirements accurately and appropriately.

Question 2 – Do you consider that you have received sufficient notification of the requirements with which you will have to comply? If no, please add further details in the comment box below.

Two respondents did not answer the question, those that did agreed that they had received sufficient notification of the requirements. No further comments were provided.

Government comments:

The Government notes that sufficient notification of requirements has been given.

Question 3 – Do you think, where the UK has some discretion, it has been used accurately and appropriately? If no, please add further details in the comment box below.

Two respondents did not answer the question, those that did agreed that any areas of discretion have been used accurately and appropriately. No further comments were provided.

Government comments:

The Government notes that discretion has been used accurately and appropriately.

Question 4 – Regulation 6(3) (prohibitions and requirements for ships) provides:

(3) Paragraph (2) does not apply to a fixed or floating platform, a floating storage unit or a floating production storage and off-loading unit—

(a) constructed before 1st January 2003; and

(b) which has not been in dry dock on or after 1st January 2003.

Paragraph (2) contains the prohibition to not bear an organotin compound which acts as a biocide in anti-fouling systems, and the requirement to bear a coating which forms a barrier to prevent an organotin compound, which acts as a biocide, from leaching.

4a - Do you consider that the dates in paragraph 3(a) and (b) are still necessary? If yes, please add further details in the comment box below.

4b - Are you content with the removal of the dates in paragraph 3(a) and (b)? Please add further details in the comment box below if required.

Two respondents did not answer the question. Those that did agreed that the dates were no longer necessary and could be removed.

Government comments:

The Government notes that these dates can be removed but has decided to retain them for completeness.

Question 5 - The 2009 Regulations implemented the EC Regulation and as such applied the survey and certification requirements in a specific way. The draft regulations will apply them in a slightly different way which is more in line with the Convention requirements. The table below shows the comparison:

Do you agree with the proposed changes? If no, please add further details in the comment box below.

Two respondents did not answer the question. Those that did agreed with the proposed changes. One provided further comments welcoming the reduction in paperwork and emphasising the need to ensure the relevant surveyors are aware of the change.

Government comments:

The Government thanks the respondents for their answers and will ensure that the relevant documents are up to date with the changes ensuring that surveyors are aware.

Question 6a – Do you agree that the offences and penalties as set out in the draft regulations are necessary, fair and proportionate? If no, please add further details in the comment box below.

6b - Is there a way that the penalties can be further streamlined? If so, please add further details in the comment box below.

6c - Do you feel that the proposed penalties will act as an effective deterrent for non-compliance with the requirements of the draft regulations? If no, please add further details in the comment box below.   

Two respondents did not answer the question. One agreed that offences and penalties are both necessary, fair and proportionate and effective as a deterrent. They declined to comment on whether the penalties could be streamlined. One respondent disagreed that offences and penalties in the regulations are necessary fair and proportionate and felt that the focus should be on the manufacture and sale of prohibited anti-fouling systems instead of placing a legal burden on the ship operators, owners or masters. They thought this would help streamline offences and disagreed that these offences and penalties would be effective as a deterrent. This was due to the fact that often shipyards choose and apply products without the owner having much decision-making control.

Government comments:

The Government thanks the respondents for their comments and notes that whilst these draft regulations with its associated offences and penalties are focused on shipping, the UK banned the manufacture and sale of cybutryne in anti-fouling systems in 2017 following Commission Implementing Decision (EU) 2016/107. This means there are associated offences and penalties for those manufacturing and selling anti-fouling systems with prohibited substances in the relevant Health and Safety Executive legislation. The EU, USA and UK have all banned cybutryne and as such it will be unavailable at shipyards in these countries – the draft regulations are aimed at preventing ships that have anti-fouling systems applied in countries other than those above from entering UK waters, therefore protecting our marine environment. The offences and penalties have therefore remained the same.

Question 7a – Does the proposed MGN (guidance) meet your needs in terms of (i) format; and (ii) content? If no, please add further details in the comment box below.

7b - Do you feel there is a better way of providing guidance in respect of the requirements in the draft regulations? Please provide reasoning for your answer. If yes, please add further details in the comment box below.

Two respondents didn’t answer the question but of those that did both agreed that the MGN met their needs in terms of both format and content and that there wasn’t a better way of providing guidance.

Government comments:

The Government notes that the guidance provided is sufficient.

Question 8 - Are you able to provide possible estimates of the costs of complying with the draft regulations? If yes, please add further details in the comment box below.

Two respondents didn’t answer the question and those that did stated they could not provide estimates.

Government comments:

The Government noted that no respondents were able to provide cost estimates.

Question 9a - Do you consider the assessment of the impacts and costs of the changes resulting from the proposed draft regulations compared to the current regulations to be accurate? If no, how would you expect the impact to vary? Please provide a brief explanation.

9b - Are you or do you know of a small, medium and/or micro business(es) that will be disproportionally affected by any of the measures outlined? If yes, please provide relevant details and evidence.

9c - Do you foresee any unintended consequences of the proposed 2024 Regulations that have not been mentioned in the consultation documents? If yes, please provide any relevant insights and/or evidence.

Two respondents did not answer the question but of those that did, one confirmed that the assessment of the impacts and costs compared to the current regulations were accurate. They were not aware of any smaller businesses that will be disproportionately affected and they did not foresee any unintended consequences of the proposed 2024 Regulations. The other respondent thought that more work could have been done investigating the cost difference between compliant and banned systems as well as the efficiency and lifespan of compliant systems compared to systems that will be prohibited. They did confirm that they were not aware of any small, medium and/or micro businesses that will be disproportionately affected and they could not foresee any unintended consequences.  

Government comments:

The Government noted the comments provided and used the comments to revisit the modelling in the De Minimis Assessment. As several sources were used to estimate costs and to verify the lifespan and effectiveness of the alternate anti-fouling systems the existing estimates have been kept in the analysis.

Question 10 - Do you have any additional comments to add to the response?

One respondent did not provide any comments in this response however those that did provided positive comments that confirmed the respondents support for the proposed Regulations in order to protect the environment.

Government comments:

The Government notes the responses and thanks all respondents for their time and effort.

Section 4: MCA Response

The MCA would like to thank the respondents for taking the time to read and respond to the consultation.

The consultation has provided useful feedback which has helped to amend and refine both the statutory instrument and the associated guidance documents.

The Government will finalise the Regulations with a view to bringing them into force in Spring 2024.

Section 5: Who Responded

Responses were received from the following organisations:

• Natural England
• Scottish Environment Protection Agency
• Port of London Authority,
• National Federation of Fishermen’s Organisations.