Closed consultation

MCA Consultation responses

Updated 20 December 2022

1. Chamber of Shipping

Comments	MCA response
5.1.1 – Reasonable assumption	Your comments are noted with thanks
5.1.2 – None reported to the Chamber
5.1.3 – None reported to the Chamber
5.1.4 – None reported to the Chamber
5.1.5 – None reported to the Chamber
5.1.6 – Should increase, however impact may be negligible if operators are already complying with IMO standards as assumed.
No explicit concerns have been raised to the Chamber by its membership following consultation. The Chamber supports the introduction of ambulatory reference as a means to provide certainty and remove opportunity for gold-plating.

2. Law Society

Comment	MCA response
We have no substantive comment to make in relation to the proposed changes to the Regulations themselves, beyond noting that the proposed changes are something of a formality as they bring into UK law matters that have already been agreed in the IMO.	Your comments are noted with thanks.
In relation to the proposed approach to include an Ambulatory Reference provision for future amendments, we consider that this appears sensible and we note the potential benefits of using such power. In particular, we support the simplicity and savings, legal certainty and clarity, and reduced burdens on businesses which this approach is likely to deliver.
However, we note that it remains important that there are suitable opportunities for consultation and scrutiny, and we are pleased to note reference to this in the consultation document (paragraph 2.8). It will therefore remain crucial for the UK to be part of the consultation and negotiation process in relation to any proposed changes to Chapter II-1 of the Annex to SOLAS. There may require to be enhanced opportunities for domestic consultation and scrutiny when changes are being considered at IMO level. It is important that relevant stakeholders who will be affected by any changes are consulted.	With respect to consultation on new and emerging changes to the regulations in SOLAS II-1, the MCA (through its International Liaison Branch), has a well-established arrangement in place which aims to ensure stakeholder engagement throughout the entire process from initial proposals being made at the IMO, through to final adoption. We take the view therefore, that consultation and scrutiny is applied throughout this process.
We consider that it will be of upmost importance to ensure that ship-owners, potential owners and other interested or affected parties are aware of these provisions and fully understand their implications. Consultations themselves are often a trigger point for the industry to become aware of planned rule changes. We therefore consider that awareness-raising will be crucial to the success of use of the ambulatory reference provisions. This will help to ensure that industry stakeholders have the ability to influence and scrutinise the provisions, are aware when changes are made, and may guide their conduct based on a clear understanding of the legal framework.

3. LLoyd Register

Comments	MCA response
I think the title of the regulation could be more specific as I understand that these are applicable to all ships that come under the scope of the SOLAS convention. It may therefore be clearer to name the regulations as “The Merchant Shipping (Ship Construction - SOLAS Convention) Regulations, or even simply the MS(Ship Construction) Regulations	Many thanks for your comments. Regarding the title of the SI, we note your suggestion and we have carefully considered this and are satisfied that, in accordance with the formal Statutory Instrument Practice, the title represents the most accurate description of the subject matter of the SI, and distinguishes it from others.
Anything that clarifies, simplifies the content and amount of regulations will make them easier to understand, implement and comply with.
The use of ambulatory reference is very welcome, although I am not convinced that this will fully prevent the use of gold-plating for instance by use or mis-use of MSN’s MGN’s etc. It remains to be seen how the related “Guidance” information will be implemented, e.g. will it actually be guidance or somehow “made mandatory”	The use of ambulatory referencing is intended to eliminate the use of gold-plating because it would have the effect of imposing international requirements directly as they are set out in the relevant international instrument (i.e. without the UK being able to add its own requirements on top). Any guidance which is published is intended to provide background e.g. as to how the MCA exercises its discretion in cases where this is permitted by the relevant international obligations. Although guidance can be taken into account in determining whether there has been a breach of the mandatory requirement to which the guidance relates, the guidance itself is non- mandatory and there is no provision in the new regulations which would enable guidance to impose enforceable legal requirements. In addition, MCA welcomes the opportunity to engage with LR on any published guidance where there may be a case for such guidance to be revised.
This method of regulating should make it much easier for MCA to advise its Recognised Organisations of the UK’s specific requirements for survey and certification of UK ships.
Reg 12 (1) (2) It is not clear how the word “conflict” is to be interpreted. Does it mean where something in the regulations would actually prevent or “clash” with a requirement in SOLAS or does it mean anything that simply differs between the two? So if MSN1907 requires e certain fitting or arrangement which is not covered by SOLAS does that mean that it is not required (as SOLAS is taking precedence)?	Regulation 12 deals with compliance by ships constructed before 1st January 2009. It provides: 12.—(1) A ship must comply with each requirement in (a) Merchant Shipping Notice 1907(M)( ); and (b) Chapter II-1, that applies to it.
	(2) For the purposes of paragraph (1), where there is a conflict between the requirements of Merchant Shipping Notice 1907(M) and the applicable requirements in Chapter II-1, the requirements of Chapter II-1 take precedence.
	You may recall that paragraph (2) is intended to deal with those cases in which Chapter II-1 imposes requirements on “all ships”. These are defined in Regulation 1 of Chapter II-1 as ships built before, on or after 1 January 2009. There are very few such requirements (possibly just two at the moment). One such requirement is Regulation 3-5. This is: Regulation 3-5 - New Installation of Materials Containing Asbestos.
	1) This regulation shall apply to materials used for the structure, machinery, electrical installations and equipment covered by the present Convention.
	2) From 1 January 2011, for all ships, new installation of materials which contain asbestos shall be prohibited.
	So, any ship whenever built cannot install materials which contain asbestos and therefore any conflicting provision in MSN 1907(M) to the contrary is overridden. This is an example of the intended purpose of paragraph (2). It’s conceivable that Chapter II-1 might in future specify other requirements which apply specifically to ships built before 1 January 2009, and in such cases those requirements would also override anything in MSN 1907(M) to the contrary.