Consultation outcome

Consultation outcome report: Summary of consultee comments and government responses to them October 2022

Updated 20 October 2022

Section 1: Introduction

1.1 The Maritime and Coastguard Agency (MCA), an Executive Agency of the Department for Transport (DfT), carried out a public consultation on the draft Merchant Shipping (Fire Protection) Regulations 2023 and the associated guidance, which ran from 18 July to 24 September 2022, including an extension to account for the period of national mourning following the death of Queen Elizabeth the Second.

1.2 The proposed Regulations would revoke and replace the Merchant Shipping (Fire Protection) Regulations 2003 (SI 2003/2950) and the Merchant Shipping (Fire Protection: Large Ships) Regulations (SI 1998/1012) to implement the most up to date requirements of the International Convention for the Safety of Life at Sea, 1974 (SOLAS) affecting fire protection, contained in Chapter II-2 (Fire Protection, Fire Detection and Fire Extinction). The updates to Chapter II-2 of SOLAS agreed at the International Maritime Organization (IMO), and which the proposed Regulations seek to implement, include amendments to requirements for existing ships (those constructed before 1st July 2012) and new ships (those constructed on or after 1st July 2012). Amendments contained in 20 Resolutions have been agreed at the IMO since 2003 to further improve fire protection safety standards, but these have not yet been implemented into UK law. The UK supported these amendments during IMO discussions and, as a party to SOLAS, the UK has an obligation to implement these further updates.

1.3 The proposed Regulations include an ambulatory reference provision; this is a reference in domestic legislation to an international instrument (or part of it) which is interpreted as a reference to the international instrument as modified from time to time (and not simply the version of the instrument that exists at the time the domestic legislation is made). From a legal perspective, this will mean that any new amendments to provisions in SOLAS Chapter II-2 that are referenced in the domestic implementing legislation will automatically become UK law when they enter into force internationally. No new or amending regulations will be required to bring these amendments into force in the UK, as is currently the case. From a practical perspective, this means that ship owners, shipbuilders and other interested parties can refer directly to the text of SOLAS Chapter II-2 to determine both the domestic and international requirements. Where the international text is unclear or needs amplification - for instance, where it states that something is done ‘to the satisfaction of the administration’ - guidance will provide the additional clarity required.

1.4 The Regulations apply, with certain limited exceptions, to passenger ships engaged on international voyages, to a small class of passenger ships engaged on domestic voyages (Class II(A)), to cargo ships of 500 gross tons and above engaged on both international and non-international voyages, to sailing ships of 500 gross tons and above and to United Kingdom pleasure vessels of 500 gross tons and above. The particular classes of ship to which the Regulations apply are described in each Part of the Regulations and are defined in Schedule 2 to the Regulations.

1.5 The consultation was generally well received with no responses requesting substantial changes to the proposed Regulations or accompanying guidance. There was support for the use of ambulatory reference and alignment with SOLAS Chapter II-2 requirements. The concerns raised during consultation were over the applicability of new regulations to domestic passenger ships not covered by the proposed regulations, the means of alerting stakeholders to the changes taking place to the regulations by way of the ambulatory reference provision, and, finally, over the delay in implementing the updates to SOLAS II-2 requirements into domestic law.

1.6 This Report gives a high-level outline of the comments received from respondents. It does not seek to cover every individual comment received, but all comments received have been taken into consideration.

Section 2: Consultation

2.1 This consultation was carried out between 18 July and 24 September 2022. It can be found at: https://www.gov.uk/government/consultations/the-merchant-shipping-fire-protection-regulations-2023-public-consultation.

2.2 Whilst the consultation was promulgated on GOV.UK for anyone who wished to read it and/or respond to it, and triggered notifications for anyone who is subscribed to receive such government notifications, a sample of interested individuals and organisations were also contacted individually by email. These recipients comprised a mixture of domestic passenger vessel representative organisations, individual operators, government departments including devolved administrations, classification societies and other interested parties, including those contacted through working groups. All persons and organisations who had specifically requested notification were included. The MCA also made the consultation known through its industry liaison meetings, comprising government, industry and other interested parties, namely the Domestic Passenger Ship Steering Group (DPSSG) and the Group’s Roll-on/Roll-off (Ro-Ro) Sub-Committee, and also representative bodies including the UK Chamber of Shipping.

Section 3: Consultation outcome

Questions posed

3.1. The government’s proposals were described in the consultation document, which then posed six generic questions and offered a free comment box for respondents to provide detail and other thoughts they had in the content of the proposed guidance. A total of five responses were received from a mix of individuals, small and large organisations. Two responses were from domestic operators who were concerned about the update to domestic ship regulation that they perceived may be introduced based on the changes to internationally operated ships. One response was from a professional body for the legal industry expressing concerns around how changes made as a result of ambulatory provision would be published and scrutinised and raised concerns about the use of the term “internal waters” in the consultation document. The UK Chamber of Shipping provided a response welcoming the alignment of UK regulations with SOLAS and the introduction of an ambulatory reference provision to ensure that the previous gap between domestic (UK) requirements and international (SOLAS) requirements does not re-occur. One response was from a ship operator who was disappointed that the UK had allowed domestic regulations to come out of alignment with the international requirements and questioned how the MCA could be sure that ships were already compliant with the requirements of SOLAS. The government response to these questions is provided below.

3.2 Change to regulations for passenger vessels operating domestically

The Regulations apply, with certain limited exceptions, to passenger ships engaged on international voyages, to a small class of passenger ships engaged on domestic voyages (Class II(A)), to cargo ships of 500 gross tons and above engaged on both international and non-international voyages, to sailing ships of 500 gross tons and above and to United Kingdom pleasure vessels of 500 gross tons and above. The particular classes of ship to which the Regulations apply are described in each Part of the Regulations and are defined in Schedule 2 to the Regulations. However, some operators were concerned that SOLAS requirements that are applied to ships may be extended to apply to passenger ships operating solely on domestic voyages (other than those of Class II(A)) without full consultation and process.

3.2.1 Government comments

The Government is aware of the concerns and has no plans to extend SOLAS fire protection requirements to domestic passenger ships, including amending Merchant Shipping Notice (MSN) 1823.

The MCA will, of course, always consider whether additional safety measures for domestic shipping is necessary. Any proposed changes to the domestic operating regulations would be communicated through the MCA’s Domestic Passenger Ship Steering Group and would be subject to the same level of scrutiny as any other change to regulations. A public consultation would take place prior to any change to domestic passenger ships regulations, where the proposed changes to regulations could be challenged.

3.3 Ambulatory reference and scope for scrutiny of changes to regulations made

Four of the five consultees confirmed that they agreed with the proposed use of ambulatory reference (AR) provision in the context of SOLAS Chapter II-2 (which includes fire safety Codes). One of the four consultees, who was positive about the use of AR, advised that we must ensure early engagement with the marine industry during IMO negotiations of future proposed amendments to the Chapter II-2 and the associated Codes. This consultee also expressed the importance of the Secretary of State retaining the powers to legislate to prevent an unwanted amendment to SOLAS from becoming UK law. The fifth consultee made no mention of AR.

3.3.1 Government comments

It is noted that the consultees agree with the Government’s proposal to introduce an AR provision to help keep future UK law aligned with international maritime obligations. The MCA already engages with the maritime industry across the spectrum of IMO convention negotiations, including SOLAS and its Codes, with particular engagement with a number of relevant maritime trade associations, such as the UK Chamber of Shipping, International Association of Classification Societies & the International Marine Contractors Association. Given the UK’s good standing at the IMO, our strong policy and negotiating teams and our wide industry engagement, it is very unlikely that the UK would not wish to accept amendments to SOLAS II-2 or the associated Codes, and to implement them, where the UK had been engaged in developing the changes. However, the UK retains the right to object to an amendment in the IMO, in which case it will not come into force for the UK. In such circumstances, the Secretary of State retains the power to make any legislative amendments necessary to prevent the amendments which have been objected to entering into UK law as a result of the ambulatory reference provision.

3.4 Use of the term “Internal Waters” in the Consultation document

One consultation response highlighted the use of the term “internal waters” in the consultation document, noting that “‘internal waters’ is not the common phraseology used if referring to domestic passenger vessels. The term “internal waters” has a specific meaning under the “United Nations Convention on the Law of the Sea” (UNCLOS) and is defined in Article 8 as being “the waters on the landward side of the baseline of the territorial sea”. The consultee explained that it is unclear if the reference to “internal waters” is intended to have the same meaning as under UNCLOS, instead anticipating that the vessels being referred to are:

• Merchant Shipping (Passenger Ships on Domestic Voyages) Regulations 2000

• Merchant Shipping (Fire Protection: Small Ships) Regulations 1998 (especially those of Classes III to VI(A))
• MSN 1823 Inland Waterways Passenger Ship Code

The point was made that the Regulations should be very clear on this point so as to avoid ambiguity and uncertainty.”

3.4.1 Government comments

The phrase “internal waters” was used only in the consultation document and was not used in the proposed Regulations. The intention was to explain that the proposed Regulations will not apply to any vessels operating in categorised waters (as more fully described in MSN 1837 (Amendment 2)), which are subject to separate legislation - that is, the Merchant Shipping (Passenger Ships) (Safety Code for UK Categorised Waters) Regulations 2010 (which incorporates MSN 1823, the Passenger Ship Safety Code for Categorised Waters). Out of an abundance of caution, the proposed Regulations now make it clear that vessels to which the Merchant Shipping (Technical Requirements for Inland Waterway Vessels) Regulations 2010 apply are also excluded from the scope of the proposed Regulations. The Regulations also do not apply to those ships to which the Merchant Shipping (Fire Protection: Small Ships) Regulations 1998 apply, and also any passenger ship to which the Merchant Shipping (Passenger Ships on Domestic Voyages) Regulations 2000 apply (as a consequence of the definition of Class II(A) ships in the proposed Regulations).

This phraseology was only used in the consultation document and has not been used in the proposed Regulations or associated guidance documents. As the application provision in the proposed Regulations is clear, ambiguity and uncertainty will be avoided.

3.5 Alignment with the requirements of SOLAS II-2 and the delay in implementation

One consultee raised concerns that amendments to Chapter II-2 of the Convention have not been incorporated into domestic law since 2003. There was further concern that, as the UK has not implemented the updates, the MCA was not able accurately to advise on how to comply.

3.5.1 Government comments

The MCA acknowledges the delay in incorporating the amendments to SOLAS II-2 made at IMO. A commitment has been made by the Government to deal with the implementation backlog of international maritime legislation by the end of 2023. The UK was audited under the IMO Instruments Implementation Code (IIIC) in October 2021 and the auditors found that the UK was on track to fully implement the international requirements. The proposed Regulations formed part of that audit and will assist in reaching the goal of full implementation of IMO instruments.

The inclusion of ambulatory reference provision in the proposed Regulations will mean that delay in incorporating amendments in the future can be avoided.

The delay in incorporating the amendments has not impacted the UK’s ability to interpret and advise on the convention as these are implemented through marine notices and instructions to surveyors. The recent IIIC Audit by the IMO of the UK as a flag state found two findings of non-compliance, well below average for any flag state audit they have undertaken and reasserts the UK’s position as a leader in the maritime world.

3.6. Statement of minimal impact as ships already compliant

One of the assumptions of the analysis undertaken for the purposes of the consultation that UK passenger ships engaged on international voyages and cargo ships of 500 gross tons and over are already compliant with the relevant requirements of Chapter II-2 of the SOLAS convention. One consultee questioned why the MCA would assume this was case rather than not state it as being the case.

3.6.1 Government comments

The use of “assume” is standard terminology in MCA analysis. It is the term used by the economists who review the proposed policy to establish the economic impact from making the changes proposed in the policy. Because all ships that will be impacted by the change in regulations must comply with the up to date SOLAS Chapter II-2 requirements in their operation or risk action being taken by other flags when operating internationally, it is “assumed” that they are compliant for reasons of the economic analysis.

Section 4: Next steps

4.1. The government will finalise the proposed Regulations and guidance with a view to publishing them by the end of 2022. They will then be laid in draft in the first quarter of 2023, following which they will be subject to debate in both Houses of Parliament. Once approved by both Houses, they will be made and will come into law.