Appendix 2: Merchant Shipping (Counting and Registration of Persons on board Passenger Ships) (Amendment) Regulations 2023 (SI 2023/787)
Responses from the Department for Transport to questions on the Merchant Shipping (Counting and Registration of Persons on board Passenger Ships) (Amendment) Regulations 2023 (SI 2023/787)
Extended deadline
Q1. “An amendment has been made to the electronic data reporting provisions of the 1999 Regulations” - who has triggered the 2-year delay? Is it a UK-only decision or has some international convention body decided the Single Window system is not ready yet?
A1. This is a UK policy decision to postpone an electronic reporting deadline set by the EU, as it is considered this will have benefits for both for UK industry and the UK Government – for the Government, time for the system to bed in and have any snags ironed out, and for industry, time to familiarise themselves with the system before it becomes a legal requirement. This instrument is deregulatory in nature in that it places no additional burdens on industry, and in some cases reduces burdens. It is therefore supported by industry.
Q2. Please explain the background of the system and is it just for use by the UK coast guard or will data also be available for French/Dutch equivalents?
A2. Regulation 27 in Chapter III of the Annex to the International Convention for the Safety of Life at Sea 1974 (SOLAS) contains a requirement for passenger ships to collect particular data on persons on ships and it has been a requirement in UK law for many years, to keep a record of those on board for search and rescue purposes. The EU added some additional data reporting requirements to the SOLAS requirements. The EU requires all its member States to have their own Maritime National Single Window (MNSW) unless they are subject to a derogation.
Directive 2017/2109/EU imposed a requirement to report this data electronically through specified systems - i.e. the MNSW or (for persons numbers only) the Automatic Identification System (AIS) (“the electronic reporting requirement”) - which the UK implemented in domestic law as the Directive took effect before the end of the EU Exit Implementation Period. The Directive set a deadline of 20 December 2023 for mandatory reporting of this data through these systems by passenger vessels. This is not an international deadline; it is an EU deadline.
While this manner of reporting will undoubtedly become more common over the coming years, it is not currently an international requirement. One of the objectives of these amending Regulations is to defer the deadline for mandatory reporting of the electronic reporting obligations until 20 December 2025. The data itself will still be collected and stored for use in an emergency, as it has been for many years, and made available to HM Coastguard if required in the event of urgent need; however, the requirement to use the specified electronic systems for this purpose will be deferred.
Once the reporting of data through the specified systems becomes a legal requirement, the data will be made directly available to HM Coastguard (HMCG) via these systems. HMCG will be able to share data on persons on ships with their counterparts in other countries if necessary for search and rescue operations, as is the case now.
Q3. Why is industry and the UK system not yet ready, when are they expected to be ready (i.e. is there the possibility of a further extension being needed?)
A3. There is no expectation of a further extension being needed. The UK MNSW system is being updated for a number of purposes, the DfT/ MCA persons counting functionality being one, and although it is fully expected to be available for use in advance of 20 December 2023, shipowners will undoubtedly benefit from some time to become familiar with it and accustomed to using it. The Government will benefit from time to iron out any snags with the new functionality in the system, before it becomes mandatory for operators to use it.
Passenger vessel operators are free to make a choice between using MNSW and AIS to report persons numbers. Other persons data cannot be reported through AIS. It is anticipated that those which need to report data in excess of simple persons numbers will choose to report it all through the MNSW rather than use two systems. However, if they are only required to report persons numbers (which is determined by the length of their voyage) some may choose to upgrade their AIS rather than use the MNSW. This would involve a small cost, albeit a voluntary cost, given that they can use the MNSW without cost. Deferment of the deadline gives operators more time to make decisions about how they wish to comply with the requirement when it eventually becomes mandatory, and, if they wish to upgrade equipment, to spread that voluntary cost.
Exemptions
Q4. Context please - what were the restrictions in reg 9 and why are they no longer necessary?
A4. The restricted provision for exemptions that was contained in regulation 9 was derived from Directive 2017/2109/EU. The Government’s view was that this provision was not appropriate for the UK person counting and data collection regime. The exemption provisions were complex and restricted the scope of the exemption power to just certain vessels on certain types of routes with restrictive conditions.
A relaxation of these exemption restrictions is not only desirable for pragmatic application of the Regulations, but in some cases are expected to be essential to permit vessels which have been operating safety for many years to continue to do so in circumstances when meeting certain requirements are impractical.
The relaxation of the exemption restrictions only applies to ships engaged on non-international voyages. For ships on international voyages, the scope of the exemption is limited to the exemption permitted by regulation 27 of Chapter III in the Annex to SOLAS (see regulation 9(2)). The international exemption from the reporting requirement applies where the scheduled voyages of ships render it impracticable for them to prepare such records.
Q5. What would make it “impractical for the ship owner to comply”?
A5. This would depend on the circumstances of the particular operation and would need to be considered on a case-by-case basis, but may involve turn-around times and instances where a disproportionate use of resources would be needed to comply with a reporting requirement.
Q6. What risk assessment has been done to support the policy - is a passenger ship making an occasional voyage outside its normal pattern of operation not more likely to have an accident/incident than one that regularly makes the same trip?
A6. The example of an exemption being granted in this situation does not degrade safety requirements, as the data is still being collected and deposited in a place ashore in case of emergency, as it has been for years. This example concerns the electronic reporting requirement, which is simply the way the data is conveyed, so would not have safety implications.
Additionally, exemptions are, by definition, designed to cater for situations which fall outside the scope of policy objectives or where there are circumstances that mean the objectives cannot be achieved and it is safe to permit non-compliance, or to allow alternative compliance. The Secretary of State/MCA will only grant an exemption if satisfied that it is safe to do so and this safeguard is written into the exemption provision. The safety case for an exemption would be carried out within the MCA’s ship surveyor structure, where a decision would be made about whether an application for an exemption is reasonable. This is consistent with the system of exemptions across merchant shipping legislation.
The example given in paragraph 7.3 of the Explanatory Memorandum is a case in point. This example focuses on the electronic reporting requirement; if a vessel in this situation were to be exempt from the electronic reporting requirements, this would not change its obligation to collect the data and make it available in the event on an emergency.
Directive 2017/2109/EU did not contain authority to be able to grant exemptions to all ships which may need them. The consequence of this was that a UK ship could have been placed in a position where the law mandated an obligation which was impossible for a shipowner to comply with.
Q7. The EM states “. The Secretary of State’s discretion to grant an exemption will only be exercised when safety and applicable international law is not compromised.” but the revised regulations make no reference to international law:
“(3) An exemption under paragraph (1) or (2) may be granted subject to such safety conditions as the Secretary of State thinks fit to ensure the overall safety of the passenger ship, class of passenger ship or group of passenger ships.”
Is DfT confident that that concept is included in the current wording?
A7. The substituted regulation 9 takes into account the requirements of international law on the basis that the requirements of regulation 27 of Chapter III in the Annex to SOLAS are implemented in these Regulations, and ensures that passenger ships on international voyages may only benefit from exemptions that do not contravene international law. The Regulations therefore do not refer to international law (there is no need for them to do so) but they do fully implement the international law requirements in the exemption provision.
Maritime and Coastguard Agency
4 August 2023