Consultation outcome

Annex C Consultation Document

Updated 20 February 2024

Section 1:       Overview of this consultation

Aim

1.1.      This consultation seeks your views on the draft Merchant Shipping (Prevention of Pollution by Sewage from Ships and Prevention of Pollution by Garbage from Ships) (Amendment) Regulations 2024 (“the draft Regulations”). This instrument would amend the Merchant Shipping (Prevention of Pollution by Garbage from Ships) Regulations 2020 (“the 2020 Regulations”) and the Merchant Shipping (Prevention of Pollution by Sewage from Ships) Regulations 2020 (“the Sewage Regulations”). The draft Regulations will bring UK legislation up to date with the latest requirements of Annex V of the International Maritime Organization’s (IMO) International Convention for the Prevention of Pollution from Ships, 1973 (“MARPOL”).

1.2.      The main objective of the proposed amendments to be implemented by the draft Regulations is to further reduce marine debris, in particular plastic waste coming from shipping. Regulation 10 of MARPOL Annex V currently requires every ship of 400 gross tonnage (“GT”) and above and every ship which is certified to carry 15 or more persons engaged in voyages to ports or offshore terminals under the jurisdiction of another Party to the Convention to be provided with a Garbage Record Book (“GRB”).

1.3       Regulation 10 of MARPOL Annex V has been amended so that it will require every ship of 100 GT and above and every ship which is certified to carry 15 or more persons engaged in voyages to ports or offshore terminals under the jurisdiction of another Party to the Convention to be provided with a GRB. This amendment also makes corresponding revision to Regulation 10.3.6 of MARPOL Annex V to require ships of 100 GT or above to enter information in the GRB about specified discharges which currently only applies to ships of 400 GT or above.

1.4       Further details can be found in Section 2.

1.5       The draft Regulations also amend the general application provision of both the 2020 Regulations and the Sewage Regulations to clarify the application of the requirements in those instruments to ships engaged on voyages in polar waters. These amendments do not represent a change in policy but are intended only to further facilitate enforcement by UK authorities, in particular in relation to any breaches of requirements in polar waters by non-UK ships.

Views sought

1.6       Consultees are invited to comment on any aspect of this consultation; however, you are specifically invited to respond to the following areas:

• whether the draft regulations would transpose the MARPOL Annex V requirements accurately and appropriately.

• whether the proposed guidance to accompany the Regulations is adequate and in the right format.

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

Deadline for responses

1.8       Responses are welcomed from 16/10/2023 until 13/11/2023.

Section 2:       Areas for consideration

Background

2.1       MARPOL is one of a number of Conventions adopted by the IMO to which the UK is a signatory. As a signatory, the UK has an obligation to implement any amendments to MARPOL in UK law.

2.1       Annex V of MARPOL contains a general prohibition on the discharge of garbage from ships into the sea, subject to limited exceptions which specify circumstances when garbage may be discharged and how it is treated onboard ships. Consequently, Annex V has great significance for the protection of the environment.

2.3       Annex V is regularly amended to protect the environment by enhancing the measures with which ships must comply. An amendment to the UK legislation is proposed to ensure that it continues to reflect current international requirements.

Proposed Changes

2.4       The draft Regulations will lower the threshold for ships that are required to be provided with a Garbage Record Book from ships of 400 GT and above to ships of 100 GT and above.

2.5       The draft Regulations will apply to all UK flagged ships, wherever they may be, and other flagged ships whilst in UK waters.

2.6       To enforce these requirements, there are powers to inspect and detain ships where they do not comply with requirements, including those to be introduced in the draft Regulations. A breach of any of those requirements will be an offence.

Summary of Options and Recommendations

2.7       As the proposed costs are below the de minimis threshold of £5m per annum cost or benefit to business and the changes are non-controversial, an impact assessment is not required. However, the effect of the changes has been considered, as detailed below.

2.8       Option 0 – Do nothing – this option would mean that the MARPOL Annex V amendment is not implemented in UK law. This option would not solve the issue and would leave the UK non-compliant with its international obligations as a signatory to MARPOL. This would risk reputational damage. UK flagged ships of between 100 GT and 399 GT that do not carry 15 or more persons on board on international voyages may find themselves subject to sanctions in foreign ports such as port state control deficiencies or detentions causing unnecessary delays and costs to industry and further reputational damage to the UK. Overall costs/benefits would not be realised. It would also leave UK waters unprotected as there would be no way to enforce the international requirements within the UK.

2.9       Option 1 – Advice to industry (Non-regulatory) – It would be possible, with minimal resources, to publish a Marine Guidance Note (MGN) which sets out the amendments to MARPOL Annex V, highlights the associated IMO guidance and explains to industry the requirement. Unlike Option 1, Option 2 would achieve a level of awareness within the industry of the new requirement. However, it would not achieve the intended outcomes of implementation of mandatory requirements into UK law, protecting the marine environment and setting a level playing field for UK flagged vessels. The consequential result and the risks associated with this option would be the same as for Option 0 (do nothing).

2.10     Option 2 – Amend the UK Regulations (Regulatory) – This option requires the amendment of the 2020 Regulations to implement the amendments as set out in IMO Resolution MEPC.360(79). This will achieve the desired outcomes of reducing marine debris and therefore protecting the marine environment, fulfilling the UK’s international obligations, maintaining the UK’s reputation as a responsible flag state and party to MARPOL and ensuring an international level playing field for UK flagged ships. This is the most resource-heavy of the options listed here but the benefits of a successful end result outweigh the initial expenditure of policy, legal and parliamentary time needed to effect the change.

2.11     Our preferred option is Option 2. Option 2 will require policy lead, economic and legal resource and parliamentary time to achieve implementation. However, regulatory intervention (Option 2) is the only way that this amendment to MARPOL Annex V can be fully implemented into UK law and ensure that all the intended outcomes can be achieved. The ramifications of inaction are summarised above in Option 0. Option 2 would address all those ramifications.

Supporting Information

2.12     Marine Notices

The draft amendment to the Marine Guidance Note (MGN) prepared to supplement the draft Regulations is included in this consultation package (Annex D). The purpose of the MGN is to:

a)         explain the function of the draft Regulations, including the effect of using provision for ambulatory reference.

b)         provide clarification/ amplification to the international text of Annex V where this is considered necessary, e.g., where the text states that something is to be done “to the satisfaction of the administration”, or that an item should meet “an approved standard”.

2.13     The MGN can be updated much more quickly than a Statutory Instrument, or a Merchant Shipping Notice (MSN), both of which have mandatory status (the MSN is mandatory if it is underpinned by domestic legislation). It will therefore be possible for the UK government to be more responsive in issuing guidance to industry, and this approach will also not preclude flexibility required to accommodate innovative solutions where appropriate.

2.14     Penalties and Offences

The MCA, as the UK’s maritime regulatory and enforcement authority, has responsibility for both delivering and enforcing the Government’s maritime policy relating to ships, seafarers and the seas around the UK. The MCA’s approach to breaches of maritime legislation relies on a range of civil and criminal remedies in which, like many other regulatory regimes in the UK, civil and criminal sanctions sit alongside each other to enable the MCA to take the most proportionate action in relation to a particular breach. The decision on what is the most proportionate approach is determined by matters such as the importance of the requirement being breached, the gravity of the contravention, the effect of the contravention on third parties, etc.

2.15     MCA surveyors have enforcement and sanction 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 (“MSA”). These powers, including improvement and prohibition orders, are limited in scope and available only for specific purposes. Other than the power to detain a ship, it is not possible to replicate all the civil sanctions in the MSA in secondary legislation implementing international obligations or other policy objectives as there is no power to do so in the MSA. Because these civil sanctions are contained in primary legislation (the MSA), if they are needed, the sanctions will be enforced directly under the MSA. The general policy approach, in line with the MCA’s published enforcement policy, is to use these civil sanctions whenever possible before using criminal offences. The MCA is aware that other legislation provides a means of introducing new civil sanctions, and this is currently the subject of a review.

2.16     The draft Regulations, by virtue of existing provision in the 2020 Regulations they will amend, would use civil penalties where it is possible to do so. This includes the ability to detain ships or issue improvement and prohibition notices if the prohibitions or requirements in the draft regulations are breached.

2.17     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.

2.18     Article 4 of the Convention requires legal sanctions to be established to deal with any violation of its obligations. The draft regulations will extend existing relevant offences in the 2020 Regulations to the category of ships which the draft regulations will bring within the scope of the requirements to be provided with a Garbage Record Book.

2.19     The provision in the proposed Regulations will have the effect of extending the application of the offences currently prescribed in regulation 21(1)(d), (j), (k) and (m) of the 2020 Regulations. The proposed Regulations will amend the 2020 Regulations by lowering the threshold at which ships will be required to carry a Garbage Record Book, from ships of 400 GT and above to ships of 100 GT and above. The offences in the 2020 Regulations described above all relate to requirements in respect of the use of a Garbage Record Book. Contravention of any of those requirements gives rise to the listed offences. Although the requirements will not change, the proposed Regulations will extend their application to ships of between 100 GT and 399 GT. Correspondingly, the scope of the offences will also be extended.

2.20     The proposed Regulations also amend the general application provision of both the 2020 Regulations and the Sewage Regulations to clarify the application of the requirements in both instruments to ships engaged on voyages in polar waters. These amendments have no effect on the offences in either instrument but may further facilitate enforcement by UK authorities of breaches of requirements in polar waters by non-UK ships.

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: ship owners, shipping companies, protection and indemnity clubs and other parties with an interest in shipping and the marine environment.

Duration

3.3.      This consultation is open for 4 weeks from 16 October 2023. The deadline for responses is 13 November 2023.

Submitting your response

3.4.      The preference is for consultation responses to be emailed to [email protected]. Any questions should also be sent to this email address. You can also send in your response by post. Any questions should be received prior to the end date of the consultation as mentioned above. It may not be possible to consider comments received after the closing date.

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. 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 [email protected]

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 Autumn 2023. Our aim is to publish an overview of the responses and the MCA’s comments by Winter 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 Merchant Shipping (Prevention of Pollution by Sewage from Ships and Prevention of Pollution by Garbage from Ships) (Amendment) Regulations 2024 to come into force on 1 May 2024. 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 the regulations coming into force.

4.6.      An overview timetable is below for reference:

Section 5:       Response form

Is available here.

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 [email protected].

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.

Is available here.