Consultation outcome

Consultation document

Updated 14 April 2023

Section 1: Overview of this consultation

Aim

1.1 This consultation seeks your views on changes to UK secondary legislation to delay the deadline for electronic reporting and widen the discretion of the Secretary of State to grant exemptions to the persons counting obligations. The amending Statutory Instrument is the Merchant Shipping (Counting and Registration of Persons on Board) (Amendment) Regulations 2023.

Views sought

1.2 Your views are sought in respect of the following areas:

• the regulatory proposals
• the clarity and effectiveness of the draft documents to implement the changes to The Merchant Shipping (Counting and Registration of Persons on Board Passenger Ships) Regulations 1999 (SI 1999/1869) (as amended, particularly by the Merchant Shipping (Counting and Registration of Persons on Board Passenger Ships) Regulations 2021 (SI 2021/81)).

1.3. A full list of consultation questions is contained in Section 5 of this consultation document.

Deadline for responses

1.4. Responses are welcomed from </b>28 February until 28 March 2023</b>.

1.5 Following the conclusion of this consultation and consideration of the feedback, the new Regulations and associated documents in this package will be finalised, including any revisions made as a result of this consultation.

Section 2: Areas for consideration

Background

2.1 The Merchant Shipping (Registration and Counting of Persons on Board Passenger Ships) (Amendment) Regulations 2021 (SI 2021/81) (“the 2021 Regulations”) came into force on 22 February 2021, implementing Directive 2017/2109/EU (“the 2017 Directive”) and amending the Merchant Shipping (Counting and Registration of Persons on Board Passenger Ships) Regulations 1999 (SI 1999/1869) (“the 1999 Regulations”).

2.2 Passenger ships on voyages of over 20 nautical miles were already required under the 1999 Regulations to collect several items of persons data, namely:

• number of persons
• family names of persons
• forenames or initials
• their gender
• an indication of age category (i.e., adult, child, infant)’ or age; or year of birth and to which category each person belongs

2.3 The measures in the 2021 Regulations, implementing the 2017 Directive, included additional items of data to be reported by passenger ships on voyages of over 20 miles, namely:

• full forenames (instead of the option of simply initials);
• dates of birth (rather than just years of birth or age categories);
• nationality; and
• when volunteered by a passenger, a contact telephone number in case of emergency.

2.4 Passenger ships on voyages of less than 20 miles were required under the 1999 Regulations to report persons numbers only, and this was not changed by the 2021 Regulations.

2.5 Another requirement imposed by the 2017 Directive and therefore by the 2021 Regulations was that seagoing passenger ships must report persons data through specified electronic methods from 20 December 2023. The specified methods were through the Maritime National Single Window (MNSW) or (for persons numbers only) through the Automatic Identification System (AIS).

Proposed Changes

2.6 The changes proposed are outlined below:

2.7 The Joint Committee on Statutory Instruments (JCSI) a House of Commons Committee, have commented on the Regulations. The Department for Transport/ Maritime and Coastguard Agency (DfT/MCA) are therefore seeking to take action on the comments. They relate to:

a) the adjustment of the drafting so that the words “after which it shall be erased without undue delay” (currently contained in r8(2)(b)) are moved to the end of r8(2) so they apply to both r8(2)(a) and r8(2)(b) of the target (1999) Regulations as amended by the 2021 Regulations. This change is to clarify the obligation to erase data when it is no longer necessary for the purpose of the Regulations as well as at the moment the ship’s voyage is safety completed (which may be the same moment); and

b) the removal of the term “other member states” (referring to European Union member states). This is because the UK has now left the EU and legislation should no longer refer to “other” EU member states but simply to EU member states as the UK is no longer numbered among them.

2.8 At the same time the Department intends to correct an error (not identified by the JCSI) which:

c) requires the amendment of the word “Passengers” to read “Persons” on one occasion in the Regulations, as crew data must also be reported, so the term “passenger” is too narrow and should be replaced with “Persons”;

and exploit two post EU-Exit opportunities:

d) as well as performing the tasks required by the JCSI, it is intended that the deadline date of 20 December 2023 which was set by the Directive and the 2021 Regulations for seagoing ships to report data by means of the Maritime National Single Window or (for persons numbers only) the Automatic Identification System (AIS) should be deferred for two years to allow more time for both operators and government to be ready for compliance. The UK is now in a position to make this unilateral change as it is no longer a member of the EU;

e) the Regulations will also widen the Secretary of State’s (SoS) exemption powers to remove restrictions on the type of exemptions which may be granted, allowing the SoS to exempt any passenger ships in whatever circumstances and to whatever extent is believed to be appropriate, except for passenger ships which are subject to the International Convention on the Safety of Life at Sea 1974 (SOLAS) where exemptions to such requirements is limited to the extent permitted by SOLAS. The rationale for expansion of the Secretary of State’s power to grant exemptions is to provide greater flexibility around exemptions. Currently, a small number of vessels have to comply with more onerous and costly reporting requirements due to technicalities or unusual occasional circumstances. The proposed change will give the government more discretion to relieve this burden on business in a small number of cases, for example operators who ordinarily perform activities insufficient to qualify for the more stringent reporting requirements but risk being brought into scope due to very rare instances of voyages which are longer or go further out from shore than normal. This change includes the removal of definitions of “Sea Area D”, “Regular Service”, “Regular Community Service” and “High Speed Craft” as reference to them in the Regulations will no longer be required, because they will no longer be factors when determining exemption eligibility.

2.9 the Regulations also amend the Merchant Shipping (Life-Saving Appliances and Arrangements) Regulations 2020 (“the 2020 Regulations”) to disapply the ambulatory reference which exists in those Regulations to the persons data obligations contained in Regulation 27 of Chapter III of SOLAS. This will correct a legislative duplication which currently exists, and to keep all the persons counting obligations together.

Summary of Options and Recommendations

2.10 “Do nothing” is the baseline against which Options 1 and 2 are assessed. As the problem under consideration is the alignment of UK legislation with international standards with which the UK is committed to comply, there is no viable option other than regulation. As such, no non-regulatory measures have been considered.

• “Do nothing” – The DfT/MCA are required to action the JCSI’s changes and leaving JCSI recommendations unactioned will not reflect well on the Department and is not considered a realistic option.
• Option 1 – Update the Regulations in line with the JCSI instructions, change the word “passenger” to “person” in one place, broaden the SoS exemption powers, defer deadline date for electronic reporting until 20 December 2025 and remove the legislative duplication.
• Option 2 - Update the Regulations in line with the JCSI instructions only.

The government’s preferred option is Option 1 because it rectifies all issues with the earlier regulations and offers some deregulation.

Section 3: Responding to this consultation

3.1. There are specific questions highlighted in section 5 of this document and information on how to respond to this consultation document.

Consultees

3.2. Anyone may respond to this consultation and consideration will be given to all responses. We will be particularly interested to hear from operators of passenger ships affected by the Regulations.

Duration

3.3. This consultation is open for 4 weeks from 28 February 2023. The deadline for responses is 28 March 2023.

Submitting your response

3.4. The preference is for consultation responses to be emailed to dpv@mcga.gov.uk. Any questions should also be sent to this email address. You can also send in your response by post to: Maritime and Coastguard Agency, Spring Place, (Attn: Matt Giacomini, Passenger Ships Team, Bay 2/23), 105 Commercial Road, Southampton SO15 1EG.

3.5. When responding, representative groups are asked to give a summary of the people and organisations they represent, and where relevant who else they have consulted in reaching their conclusions.

Freedom of Information

3.6. Information provided in response to this consultation, including personal information, may be subject to publication or disclosure in accordance with the Freedom of Information Act 2000 (FOIA) or the Environmental Information Regulations 2004.

3.7. If you want the information that you provide to be treated as confidential, please be aware that, under the FOIA, there is a statutory Code of Practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence.

3.8. In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information, we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Department/MCA.

3.9. The MCA will process your personal data in accordance with the data protection framework and, in the majority of circumstances, this will mean that your personal data will not be disclosed to third parties.

Data Protection

3.10. The MCA is carrying out this consultation to gather evidence to inform the development and implementation of policy and legislation (in accordance with section 86(4) of the Merchant Shipping Act 1995). This consultation and the processing of personal data that it entails is necessary for the exercise of our functions as a government department. If your answers contain information that allows you to be identified, under data protection law, the MCA, as an Executive Agency of the Department for Transport, will be the Controller for this information.

3.11. The MCA will use your contact details to send you information about the consultation, for example if we need to ask follow-up questions. You do not have to give us this personal information but if you do choose to provide it, it will not be used for any other purpose without your permission.

3.12. Details about how the MCA looks after personal data, your rights, how to complain, and how to contact our Data Protection Manager can be found on gov.uk at:

https://www.gov.uk/government/organisations/maritime-and-coastguard-agency/about/personal-information-charter

3.13. Your information will be kept securely on the MCA’s IT system and any written responses will be held in a secure file and cabinet and kept for up to five years, until a post-implementation review has been completed.

3.14. If you do not wish to remain on this list, please let us know at dpv@mcga.gov.uk .

Section 4: Outline of plans beyond this consultation

4.1. Once this consultation closes, we will review all responses. In considering the responses we will apply appropriate weight to those from organisations and individuals with specialist knowledge of the subject area.

4.2. We will be analysing the responses during April 2023. Our aim is to publish an overview of the responses and the MCA’s comments within at most 3 months of the end of the consultation, which will be made available on www.gov.uk on the same page as the consultation documents. To be notified of changes to this page, subscribe here free of charge.

4.3. Where appropriate the draft Regulations/Guidance, accompanying guidance and De Minimis Assessment will be revised to take into account the consultation responses.

4.4. Our aim is for the new Regulations to come into force in the summer of 2023. The Regulations will be published on www.legislation.gov.uk

4.5. The update of the Merchant Shipping Notice will be published with the Regulations.

4.6. An overview timetable is below for reference:

Section 5: Response form – Merchant Shipping (Counting and Registration of Persons On Board Passenger Ships) Regulations 2023

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1127932/Section_5_Response_form.odt

Section 6: Conduct of this consultation

6.1. This consultation has been conducted in accordance with the Cabinet Office Consultation Principles.

Consultation principles

6.2. The Cabinet Office Consultation Principles can be found at Consultation Principles 2018:

Feedback on conduct of consultation

6.3. If you have any comments regarding the conduct of this consultation, please contact the Consultation Co-ordinator at consultation.coordinator@mcga.gov.uk.

6.4. We are continually trying to improve the way in which we conduct consultations and appreciate your views. We would be grateful if you could complete and return the attached feedback form. These should be submitted to the Consultation Co-ordinator and are not affected by the deadline for this consultation.

6.5 If you require this consultation in an alternative format, please contact either the Consultation Co-ordinator or the named official conducting this consultation.