Consultation outcome

Consultation document

Updated 4 May 2023

Section 1: Overview of this Consultation

Aim

1.1 This consultation seeks your views on a new Statutory Instrument (SI) and accompanying Code of Practice titled “The Safety of Small Workboats and Pilot Boats — A Code of Practice (“Workboat Code Edition 3”)”. The purpose of this Code is to provide a single point of reference for all the mandatory requirements and guidance concerning workboats, including remotely operated unmanned vessels (ROUVs) operating as workboats, and pilot boats, all of which are less than 24 metres in load line length (or in the case of those vessels constructed before 21 July 1968, less than 150 tons).

1.2 The Workboat Code Edition 3, like its predecessors, only applies to such vessels when they are in commercial use. It does not apply when they are in use for recreational, sport or pleasure use, for which there are more appropriate codes of practice.

1.3 The specific requirements for vessels to which the Workboat Code Edition 3 is intended to apply will be given legal effect by the proposed “Merchant Shipping (Small Workboats and Pilot Boats) Regulations 2023” (“the 2023 Regulations”). The 2023 Regulations will revoke and replace the Merchant Shipping (Small Workboats and Pilot Boats) Regulations 1998. The 2023 Regulations included in this consultation are in draft and may be subject to further amendment and refinement following this consultation in order fully to reflect the policy objectives. The purpose of the 2023 Regulations is to provide the legislative framework for the safe operation of workboats and pilot boats and under which any contravention of the Code will be enforced. The 2023 Regulations include provision for:

• the certification of such vessels;
• the safety and prevention of pollution requirements that must be satisfied for certification, i.e. compliance with the Workboat Code Edition 3;
• the Secretary of State to grant exemptions from those requirements;
• equivalence, and when those equivalent standards may apply;
• action that may be taken where a vessel is deficient or if a surveyor of a vessel determines that the vessel no longer corresponds with particulars under which the vessel was certified;
• owners and masters to report incidents;
• enforcement of the Code and Regulations, including criminal penalties where there are contraventions of the Code and the Regulations, as well as sanctions such as suspension and cancellation of a certificate, and provision for detention of non-compliant vessels;
• savings and transitional arrangements for vessels already certified under the current provisions, to ensure that these vessels have a reasonable period in which to comply with any new requirements.

1.4 This Code has been developed in order to provide a more suitable legal framework for workboats, pilot boats and ROUVs working as workboats than all the merchant shipping legislation that would otherwise apply to it, for example, the Merchant Shipping (Load Line) Regulations 1998 (SI 1998/2241). However, compliance with the 2023 Regulations and the Workboat Code Edition 3 is not mandatory; it is an alternative regulatory regime, and a vessel may choose instead to continue to comply with that merchant shipping legislation. Vessels that can demonstrate compliance with the Code will be certified under the 2023 Regulations and the merchant shipping legislation that would otherwise apply to them (and which is listed in Schedule 1 to the 2023 Regulations) will be disapplied.

1.5 Our intention is to ensure that the 2023 Regulations and the Workboat Code Edition 3 set out with greater clarity the requirements that vessels and their owners and masters must meet in order to obtain, and retain, the certificates under which such vessels are legally permitted to operate. Much of the content of the 2023 Regulations and the Workboat Code Edition 3 is a restatement of the existing provisions and therefore not a new requirement that must be met. However, the 2023 Regulations and the Remotely Operated Unmanned Vessels Annex in the Workboat Code Edition 3 will introduce new requirements for ROUVs which are operated as small workboats. Although many of the technical requirements that apply to ROUVs will be similar to those for other workboats under the provisions, there will be some obvious differences so that, for example, the manning requirements or the requirements relating to logbooks or radio installations are modified for such vessels.

Views Sought

1.6 Consultees are invited to comment on any aspect of this consultation. A more in-depth explanation of the areas for consideration can be found in Section 2 of this document.

1.7 A full list of consultation questions you are specifically invited to respond to is contained in Section 5 of this consultation. We are particularly interested to know your views on the draft Workboat Code Edition 3 which is at Annex B of this consultation document.

Deadline for responses

1.8 Responses are welcomed from 06 October 2022 until 29 December 2022.

1.9 Following the conclusion of this consultation and consideration of the feedback, the 2023 Regulations, the Workboat Code Edition 3 and associated documents will be reviewed and then finalised, to include any revisions made as a result of this consultation.

Section 2: Areas for Consideration

Background

2.1 The original Code of Practice for the Safety of Small Workboats and Pilot Boats (“the Brown Code”) was one of four Codes of Practice published for small commercial vessels operating in UK waters under a common set of standards. The Code set a national standard and was generally accepted by industry because it could be easily referenced and understood, and it created a level playing field within the sector. The Code was recognised internationally and used by other national maritime administrations as a basis for standards of their own vessels. As a result, UK flagged workboats were able to win contracts and operate widely across the UK and the rest of Europe.

2.2 In 2003 a decision was made to combine the four Codes of Practice into one consolidated Code of Practice which was issued as Marine Guidance Note 280 (M) (“MGN 280”) in 2004.

2.3 As the workboat industry developed over the next decade, the harmonised approach of MGN 280 meant that specific areas of the workboat industry (such as the offshore windfarm sector) were not appropriately catered for within the Code of Practice. There were further unforeseen impacts following the harmonisation of the four Codes of Practice and in 2013 work to begin to divide the Codes of Practice and create a distinct set of standards for the workboat industry which would replace both the Brown Code (parts of which were still applicable) and MGN 280. In 2018 a revised version of the Workboat Code (“Workboat Code Edition 2”) was published following consultation with an industry working group made up of multiple Certifying Authorities and industry specialists, which sought to set policy on developed or developing industry practices and provide amendments in relevant international conventions and guidance to allow vessels and personnel to work safely.

2.4 Although Workboat Code Edition 2 was published following consultation with industry throughout its development, some aspects of the Code of Practice were found to fall short of the intended objectives for the Code, either through unintended ambiguities that were introduced, discrepancies between the powers within Workboat Code Edition 2 and the underlying Statutory Instrument, or areas that simply still did not provide sufficient policy solutions to industry in practice, despite the intention to do so.

2.5 Naturally, with any publication of standards, as the industry develops over time, policies may become outdated or references to particular standards and regulations that the Code of Practice relies upon may change and thereby necessitate the need to update the Code of Practice. Workboat Code Edition 3 updates the requirements in line with currently applicable standards that have developed since the publication of Workboat Code Edition 2 in 2018.The new Code also aims to deal with some foreseeable developments in this sector by making provision for ROUVs as indicated above and for the use of alternative fuel sources and propulsion types.

Application

2.6 It is intended that the 2023 Regulations and Workboat Code Edition 3 will apply to small workboats (including ROUVs operating as workboats) and pilot boats that are less than 24 metres in load line length or, in the case of a vessel the keel of which was laid or which was at a similar stage of construction before 21 July 1968, less than 150 tons. A workboat is a small vessel in commercial use other than for sport or pleasure, including a dedicated pilot boat. A pilot boat is a small vessel employed in pilotage services. The provisions apply to workboats and pilot boats that are United Kingdom vessels or, in the case of workboats only, they are non-United Kingdom vessels operating in United Kingdom waters. The provisions do not apply to workboats or pilot boats carrying more than 12 passengers.

Proposed changes

2.7 The 1998 Regulations are being revoked and remade as they do not provide a sufficiently coherent legal framework for the certification of vessels they are intended to apply to and the requirements for such vessels. Additionally, they do not make sufficient provision for the consequences of non-compliance. There are some ambiguities and inconsistencies in the 1998 Regulations we are seeking to rectify in the 2023 Regulations so vessel owners and operators can continue to operate with confidence that they are fulfilling their legal obligations under the 2023 Regulations, including the mandatory obligations in the Workboat Code Edition 3.

2.8 The provision in the 2023 Regulations and the Workboat Code Edition 3 is subject to De Minimis Assessment (DMA) no. DfTDMA232 which is included in this consultation document at ANNEX C, and which includes further details of all the proposed amendments to the existing Code.

2.9 The proposed 2023 Regulations and updated Code will clarify, and give legal certainty to, the certification process. The certification requirements will be set out in the 2023 Regulations and are explained in detail in the Code. One objective is to reduce the amount of time required to assess certification applications for ROUVs; because the standards against which certifying authorities will approve certification of these vessels will be fully set out in the Code, this should facilitate a more rapid expansion of the fleet of ROUVs to support a dynamically growing sector.

2.10 There is significant growth in the use of ROUVs as small workboats and future fuels and technologies which are not provided for under the existing Regulations. We expect the 2023 Regulations and Workboat Code Edition 3 to help fill most of these gaps and to do so in a way which ensures that they remain relevant to quickly developing areas and maintain the UK’s leadership role at the forefront of decarbonising the shipping industry.

2.11 The new regulatory framework will come into force on a date to be specified in the 2023 Regulations, which we anticipate may be some time in the Summer of 2023. From that date, any new vessels to which the 2023 Regulations and the Workboat Code Edition 3 apply will need to be able to comply with the new requirements before they may be operated. We recognise that existing vessels, to which the new requirements also apply, may require more time over which they may be adapted or modified in order to comply with the new requirements; on that basis, over this transitional period they may continue to operate if they satisfy the requirements under the previous Regulations and the relevant Code. The precise transitional arrangements in relation to compliance with the different sections of the Workboat Code Edition 3 are set out in Schedule 3 to the 2023 Regulations and in Appendix 9 of Workboat Code Edition 3.

Summary of options and recommendation

2.12 The options being considered are:

Option 0 - Do Nothing scenario.

One option would be to do nothing, which would be the continuation of the current position which does not provide a coherent legal framework and certification process for the vessels which the Code is intended to cover. There would also be no new regulation for the use of future fuels or ROUVs, which now operate in this sector, making regulatory oversight of this developing sector cumbersome and a burden on the industry and MCA.

This option is not viable because clarity is required, and the current code does not provide satisfactorily standards for this growing bespoke ROUV industry.  It will also see the UK, fall out of line with other foreign Administrations who are supporting the use of these types of vessels by regulating for them to operate safely.

Option 1 –Replace the 1998 Regulations and issue a new Code of Practice (Workboat Code Edition 3).

The preferred option is to proceed with the revised Workboat Code Edition 3, together with the 2023 Regulations so that the mandatory requirements for operators in this sector are clear. The Code has been developed to address the concerns of the existing fleet owners and to help expand the market of ROUVs used in the UK. The mandatory requirements in the new Code have statutory force under the 2023 Regulations. With support from industry, the Code provides for appropriate safety standards for the construction and operation of workboats, including ROUVs operating as workboats, and pilot boats and contains prevention of pollution requirements.

2.13 Our preferred option is Option 1.

Supporting information

Publication

2.14 It is our intention to publish the Code detailing the amended requirements that are expected to come into force in Summer 2023. This will outline what vessel owners/operators will be required to follow in order to be able to continue to operate.

2.15 The Code can be found at Annex B as part of this consultation.

Offences and Penalties

2.16 Maritime regulatory requirements govern both safety and pollution prevention. As such, their purpose includes the prevention of loss of life or injury to persons and the protection of the marine environment and adjoining coastlines. These very compelling objectives necessitate the availability of criminal sanctions in the more serious cases and provide a vital deterrent. MCA surveyors have enforcement and sanctioning powers which can be applied locally to ships calling at UK ports. The MCA’s powers to use civil sanctions are primarily contained in the Merchant Shipping Act 1995 and include improvement and prohibition orders (to which a criminal sanction is available for non-compliance).

2.17 The 2023 Regulations contain provision for offences and penalties. If there is a breach of the Workboat Code Edition 3, or failure to meet its mandatory requirements, then enforcement action may be taken in accordance with regulation 23 of the Merchant Shipping (Small Workboats and Pilot Boats) Regulations 2023. The 2023 Regulations set out how the offence is made out and persons who may be liable to be charged and the maximum penalty that could apply.

2.18 In terms of civil sanctions, the 2023 Regulations contain powers to detain a ship where there is non-compliance with the Regulations and/or the Code, as well containing provision for certificates to be suspended or cancelled.

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. While the consultation is published on GOV.UK for any member of the public who wishes to read it and/or respond to it. Maritime Coastguard Agency has specifically notified other Maritime Associations such as The Workboat Association, Certifying Authorities, Recognised Organisations, and other interested parties, including Government departments.

Duration

3.3. Regular engagement has taken place with those with an interest in this consultation throughout the policy development therefore this consultation is open for 12 weeks from 06 October 2022. The deadline for responses is 29 December 2022.

Submitting your response

3.4. The preference is for consultation responses to be emailed to Codes@mcga.gov.uk. Any questions should also be sent to this email address. You can also send in your response by post.

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 most 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 under the enabling provisions of the Merchant Shipping Act 1995 Part IV Section 86. 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 Codes@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 Winter 2022 and Spring 2023. Our aim is to publish an overview of the responses and the MCA’s comments by the end of Spring 2023, which will be available on www.gov.uk along with the consultation.

4.3. Where appropriate the draft Regulations/Guidance, accompanying guidance and impact assessment will be revised to take into consideration the consultation responses.

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

4.5. Every effort will be made to publish the revised accompanying guidance on gov.uk in advance of Regulations coming into force.

4.6. An overview timetable is below for reference:

Section 5: Response form

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1102765/Consultation_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 Principals 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.