Consultation outcome

Consultation on the draft Merchant Shipping (Anti-Fouling Systems) Regulations 2024

Updated 29 February 2024

Section 1: Overview of this consultation

Aim

1.1 This consultation seeks your views on the draft of The Merchant Shipping (Anti-Fouling Systems) Regulations 2024 (“the draft regulations”). The draft regulations are intended to implement the changes agreed at the International Maritime Organization (“the IMO”) to the International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001 (“the Convention”).

1.2 The draft regulations have three aims. These are:

a) To replace the existing instruments which implement the Convention in the United Kingdom: Regulation (EC) No 782/2003 of the European Parliament and of the Council of 14th April 2003 on the prohibition of organotin compounds on ships (“the EC Regulation”) and the Merchant Shipping (Anti-Fouling Systems) Regulations 2009 (“the 2009 Regulations”).

b) To implement the amendments to the Convention to prohibit the use of cybutryne in anti-fouling systems.

c) To introduce ambulatory provision to ensure that future amendments to the Convention have direct effect in the United Kingdom.

Views Sought

1.3 Consultees are invited to comment on any aspect of this consultation. However, you are specifically invited to respond to the following questions:

• Whether the draft regulations implement the requirements of the Convention accurately and appropriately.

• Whether the offences and penalties are appropriate.

• Whether the proposed guidance to accompany the draft regulations is adequate.

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

Deadline for responses

1.5 Responses are welcomed from 13 November 2023 (09:00) until 11 December 2023 (23:59). For an overview of the timetable please refer to section 4 of this document.

Section 2: Areas for consideration

Introduction

2.1 The Convention was adopted by the IMO in 2001 and entered into force internationally on 17 September 2008. The Convention aims to protect the marine environment and human health from the adverse effects of anti-fouling systems. It does this by prohibiting the use of the organotin compounds, which act as a biocide in anti-fouling systems, listed in Annex I in anti-fouling systems and providing a mechanism by which potentially harmful substances can be evaluated and prohibited if necessary.

2.2 The Convention was implemented into UK law by a combination of the EC Regulation and the 2009 Regulations. The 2009 Regulations were developed to provide offences, penalties and other enforcement mechanisms in relation to the EC Regulation which was introduced to encourage early adoption of the Convention.

2.3 In 2020 at Marine Environment Protection Committee (MEPC) 75 of the IMO, the Convention was amended to add cybutryne to Annex 1 to the Convention and is now prohibited for use in anti-fouling systems. This prohibition took effect for new ships from 1 January 2023 with a rolling 60-month implementation period for existing ships.

2.4 Following the United Kingdom’s departure from the European Union, it was not possible to amend the current UK regulations as these were made using the then available powers in UK legislation to implement EU obligations. The draft regulations are, however, able to rely on powers in the Retained EU Law (Revocation and Reform) Act 2023 to revoke and replace those current regulations. The draft regulations therefore incorporate content from the EC Regulation, the 2009 Regulations and the recent amendments made in the IMO into a single instrument. The outcome will be one statutory instrument implementing all the Convention requirements.

Proposed Changes

2.5 The draft regulations will revoke and replace the EC Regulation and the 2009 Regulations, incorporating the amendments agreed at the IMO into a single instrument. The draft regulations will ensure UK law is up to date and consolidated in one place. With the use of ambulatory referencing, it will mean that UK law will stay up to date with changes made at an international level more effectively in the future.

2.6 The draft regulations will incorporate amendments to the Convention that prohibit the use of cybutryne in anti-fouling systems, which were approved at the IMO on 1 November 2020 before being adopted on 17 June 2021 and coming into force, for new ships, on 1 January 2023.

2.7 The draft regulations will apply to all UK flagged ships, wherever they may be, and other flagged ships whilst in UK waters. Ships to which the draft regulations apply will be under an obligation to ensure that their anti-fouling systems do not include organotin compounds, which act as a biocide in anti-fouling systems, or cybutryne, in accordance with the obligations listed in Annex I to the Convention.

2.8 These obligations comprise:

• a prohibition on the application or re-application of an anti-fouling system containing a compound listed in Annex 1 to the Convention;

(A) in relation to organotin compounds,

• a prohibition on bearing an organotin compound which acts as a biocide in anti-fouling systems on its hull or another external part or surface;

• a requirement to bear a coating which forms a barrier to prevent an organotin compound which acts as a biocide leaching from the anti-fouling system containing that substance; and

(B) in relation to cybutryne,

• a prohibition on bearing this substance, or a requirement to bear a coating to prevent leaching of this substance, which must be met no later than the earliest scheduled renewal of the anti-fouling system after the date on which the draft regulations come into force, and in any event by 31st December 2027.

2.9 The draft regulations require ships of 400 gross tonnage (GT) and above that are engaged on international voyages to be subject to the survey and certification requirements. This is to ensure that their anti-fouling system fully complies with the Convention requirements. Ships of less than 400GT and of 24 metres or more in length, engaged on international voyages, are required to carry a Declaration which must be accompanied by appropriate documentation (for example, a paint receipt). Survey and certification requirements do not apply to fixed or floating platforms, floating storage units or floating production storage and off-loading units.

2.10 To enforce these obligations, there are powers to inspect and detain ships where they do not comply with the prohibitions or requirements in the draft regulations.  A breach of any of those obligations will be an offence. Details of the offences and penalties are described in paragraph 2.17. The offences cover not only breaches of the obligations about the use of anti-fouling systems but also breaches of requirements which specifically relate to the carriage, content etc. of Certificates and Declarations.

2.11 This is a low-cost measure with an estimated net cost to industry for the preferred option is £0.36m discounted over the 10 year appraisal period in the central scenario. The equivalent annual new direct cost to business is £0.04m, well below the £5m annual threshold for a de minimis assessment (DMA). The measure does not have contentious or novel elements, significant wider social, environmental, financial or economic impacts, distributional impacts, large gross impacts, or disproportionate impacts on small, micro and medium businesses. Full details of the policy impacts have been set out in the De Minimis Assessment.

Application

2.12 The application of the draft regulations is specified in regulation 4. They apply to:

• All UK ships, wherever they may be; and
• All other ships within UK waters or controlled waters.

2.13 Note that for the purposes of the Convention and the draft regulations ‘ship’ means a vessel of any type whatsoever operating in the marine environment and includes hydrofoil boats, air-cushion vehicles, submersibles, floating craft, fixed or floating platforms, floating storage units (FSUs) and floating production storage and offloading units (FPSOs).

2.14 Consultees are invited to review the application of the draft regulations to assess whether the Maritime & Coastguard Agency (MCA) has made provision for application which accurately circumscribes the application of the Convention requirements.

Penalties and Offences

2.15 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.

2.16 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 formal review.

2.17 The draft regulations 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. Additionally, a ship may have its International Anti-Fouling Systems Certificate cancelled if the certificate was issued on the basis of false or erroneous information or if the anti-fouling system has sustained damage or has become deficient since the last survey required under the draft regulations.

2.18 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.

2.19 Article 12 of the Convention requires legal sanctions to be established to deal with any violation of its obligations. Existing offences in relation to the use of organotin compounds which act as biocides in anti-fouling systems are being broadly replicated but are being extended to apply in relation to the use of cybutryne in anti-fouling systems. The offences in the draft regulations are as shown in the Table below.

Provision/Offence	Subject Matter	Penalty on Summary conviction/ indictment
Regulation 12(1)(a)	To comply with the obligations in regulation 6(1), (2) and (4) relating to the prohibition on the application, reapplication or bearing of a prescribed substance in anti-fouling substances, or the requirement to bear a barrier to prevent leaching of such a prescribed substance: the owner and master are each guilty of an offence for each non-compliance.	On summary conviction, a fine not exceeding the statutory maximum/ on indictment, an unlimited fine. Applies to owner and master.
Regulation 12(1)(b)	To comply with the requirements in regulation 7(3)(a) or (b), or (6) that a ship of 400GT or above, engaged on an international voyage, undergo surveys and not proceed or continue on any voyage unless there is in force in relation to the ship an AFS-Certificate: the owner and master are each guilty of an offence for each non-compliance.	On summary conviction, a fine not exceeding the statutory maximum/ on indictment, an unlimited fine. Applies to owner and master.
Regulation 12(1)(c)	To comply with the requirements in regulation 8(3) that a ship of less than 400GT/24m or more in length, engaged on an international voyage, not proceed or continue on any voyage unless there is in force in relation to the ship an AFS-Declaration: the owner and master are each guilty of an offence for each non-compliance.	On summary conviction, a fine not exceeding the statutory maximum/ on indictment, an unlimited fine. Applies to owner and master.
Regulation 12(1)(d)	To comply with the requirements in regulation 10(1) or (2) that the AFS-Certificate or AFS-Declaration is readily available for examination at all times on board a ship: the owner and master are each guilty of an offence for each non-compliance.	On summary conviction, a fine not exceeding the statutory maximum/ on indictment, an unlimited fine. Applies to owner and master.
Regulation 12(2)	In accordance with regulation 9(3), not to (a) intentionally alter a certificate, (b)  intentionally make a false certificate, (c) knowingly or recklessly provide false information in connection with any survey required by the draft Regulations (d) with intent to deceive, use or lend a certificate or permit a certificate to be used by another person, (e) fail to surrender a certificate (which has expired or been cancelled) when required to do so; or (f) in Scotland, forge a certificate.	On summary conviction, a fine not exceeding the statutory maximum/ on indictment, an unlimited fine. Applies to person in question.

2.20 All of the offences are triable either way (as either a summary offence or an indictable offence). The maximum penalties are: - on summary conviction, a fine of a maximum up to the statutory maximum, which in England and Wales is unlimited, and in Scotland or Northern Ireland level 5 on the standard scale; and - on indictment, an unlimited fine.

2.21 The enforcement arrangements are set out in Part 4 of the draft regulations.

2.22 A Marine Guidance Note “MGN” (Annex B) has been drafted to supplement the draft regulations and is included in this consultation package. The purpose of the MGN is to: a) explain the function and application of the draft regulations; b) provide clarification/amplification to the international text of the Convention, where this is considered helpful; c) provide procedural guidance in relation to the draft regulations (for example, how to notify the Secretary of State where this is required under the draft regulations).

2.23 Where, under the Convention, the UK has some discretion, the MGN also provides guidance. There is the opportunity to provide feedback on this area in the consultation response form below (see question 5.3).

• The Convention provides that ships of less than 400GT, engaged on international voyages, do not need remove the AFS containing cybutryne or apply a barrier coating if accepted by the relevant coastal states. This would also remove the need for an AFS Declaration for these ships. The UK effectively banned the manufacture, sale and use of cybutryne in AFS in 2017 following EU commission implementing decision 2016/107^{[footnote 1]}. As a result of this, the potentially harmful effect of cybutryne on UK waters, marine life and the difficulties ships will face getting coastal state approval, the UK has decided that these ships must either remove the AFS containing cybutryne or apply a barrier coating.

2.24 The MGN can be updated much more quickly than a statutory instrument. Use of an MGN allows for the UK government to be more responsive in issuing guidance in relation to the application and effect of technical requirements to industry, and this approach will also not preclude the flexibility required to accommodate innovative solutions where appropriate.

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.

Audience

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, port and terminal operators and other parties with an interest in shipping and the marine environment.

Duration

3.3 This consultation is open for 4 weeks from 13 November 2023 (09:00). The deadline for responses is 11 December 2023 (23:59).

Submitting your response

3.4 The response form is available at Section 5 of this document. Consultation responses should be emailed to [email protected] or you can telephone Megan Cousins-Booth at the MCA on 07769 284 548.  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.

Data Protection

3.9 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 128. 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.

3.10 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.

3.11 Details about how the MCA looks after personal data, your rights, and how to contact our Data Protection Manager can be found on gov.uk^{[footnote 2]}.

3.12 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.

3.13 If you do not wish to remain on this list, please reply and 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 Winter 2023. Our aim is to publish an overview of the responses and the MCA’s comments by the end of 2023, which will be available from: www.gov.uk/government/publications

4.3 Where appropriate the draft regulations, accompanying guidance and De Minimis Assessment will be revised to take into consideration the consultation responses.

4.4 Our aim is for the Merchant Shipping (Anti-Fouling Systems) Regulations 2024 to come into force in early 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 of the timetable is below for reference:

Section 5: Response form

The response form can be found 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 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 [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.

The feedback form can be found here

1. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016D0107 ↩

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