40 Series - FAQs
Updated September 2021
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Background and reasons for change
What are the 40-Series rules?
The 40-Series rules set standards and obligations for:
- the design, construction and equipment requirements for New Zealand domestic commercial ships (i.e. not international ships, and not pleasure craft); and
- the survey and certification of New Zealand ships
- some foreign ships that are operating commercially in New Zealand
Examples of the design, construction and equipment topics covered by the 40-Series rules include stability, watertight and weather tight integrity, fire safety, machinery, electrical, communications equipment and life-saving equipment.
How big is the set of 40-Series rules?
- There are 17 rules parts in the 40-Series. The reform project is reviewing 15 – we are not looking at Hovercraft and Novel ships.
- The 40-Series has about 550 pages of rules and another 55 pages of definitions.
- All up, there are about 10,000 rules, sub-rules and sub-sub-rules.
- Most of the rules were introduced in 2000 or 2001 so they are about 20 years old.
What is the 40-Series reform project aiming to achieve?
The aim of the project is to revise the 40-Series rules so that they are clear, easy to understand and user-friendly for those applying them; set standards that are proportionate and appropriate to the risk: to design a new framework for the rules that is easy to maintain and update; to overcome the issues the sector has raised about the current rules (see below).
Why are the 40-Series rules being reformed?
The Reform is in response to a number of factors, including:
- Feedback from the sector that the rules have numerous technical issues, are hard to use, inconsistent and inflexible. These issues cause uncertainty, inconvenience and delays which lead to unnecessary costs and a high volume of queries and applications for exemptions.
- Policy investigations and analysis have found that the rules are unwieldy, repetitive, inconsistent, often complex and overly prescriptive.
- Reform of the 40-Series rules is part of the transport sector rules programme agreed to by Cabinet to improve regulation as a core part of Maritime NZ’s regulatory stewardship.
What rules are in scope?
The project is concerned with the 40-Series rules, Parts 40A to 49 inclusive.
The reform is not reviewing Parts 40F (Hovercraft) and 40G (Novel ships), and is not reviewing the rules in Part 44 that address the recognition of and role of surveyors.
Why is the review not looking at Hovercraft and Novel ships?
While Part 40F Hovercraft and Part 40G Novel Ships include design, construction and equipment requirements and reference surveyor approval, they predominantly set requirements for developing a safety case. In this sense they are separate to other 40-Series rules which primarily focus on design, construction and equipment requirements.
How does the 40-Series work programme relate to the wider set of maritime rules?
The maritime rules work as a three-part system to manage risks (‘three legs of the stool’):
- The 40-Series rules regulate vessel design, construction, and equipment
- Maritime Operator Safety System – MOSS (Part 19) regulates ship operators
- Seafarer Certification regulates the people who work on ships.
As part of assessing whether the current 40-Series rules set standards that are proportionate and appropriate to the risk, the 40-Series Reform project is mindful of other work and considering whether the risks are already being adequately addressed by regulating the operation of the ship and the people who work on it.
When will changes take effect?
It will depend on the responses we get through engaging, then formally consulting with the sector and the public (see the table below).
Given the importance of this work, and the complex nature of the current rules, the 40-Series Reform team is emphasising engagement and advice from all parts of the sector before the proposed new rules and Transport Instruments are drafted and shared for formal public consultation.
The ‘exploring change’ phase of the work is an important factor in ensuring that when the rules are drafted, they are fit for purpose and do bring greater clarity and usability to the sector. The work programme is, therefore, necessarily long.
We can’t definitely say when we will complete formal public consultation, final drafting and providing the Minister of Transport with advice on the changes before the rules are signed. However, as of mid-2021, the overall work programme looks like this.
|Establishment Phase - Initial design of a rules structure – outcome-based; transport instruments containing detail to allow flexibility; consolidated and harmonised; and risk-based.||2019 - 2020|
|Exploring Change Phase - Development of content for new rules with wide sector engagement (Started by going through each topic area to harmonise the rules, then exploring change in-depth with TAGs and wider sector)||2021 - mid 2023|
|Drafting Phase - Draft formal rules and associated material (will commence in parallel with Exploring Change phase, as engagement on each topic is completed)||Mid 2021 – late 2023|
|Consultation Phase - Formal public consultation on draft rules||Early 2024 to mid-2024|
|Finalisation Phase - Analysis of submissions and final drafting||Dependent on the consultation processes – expected second half of 2024|
|Legislative Phase – Final Ministerial and government approval||Dependent on progress of previous phases|
When / how will the sector and public be consulted about the reform of the 40-Series rules?
As you can see in the table above, it is important to differentiate between the ‘exploring change’ engagement period, when we are looking for wide-ranging input to test our thinking, and the Formal Consultation period, when we will present draft rules and transport instruments to the public for formal written submissions.
During the ‘exploring change’ process Maritime NZ is seeking to engage widely through direct contact with sector organisations and is making information progressively available as we work through the different rules parts and issues as they arise.
We have formed Technical Advisory Groups (TAGs) of surveyors to work through specific rules areas and issues in those areas.
Surveyors are an integral part of New Zealand’s system to regulate vessel design, construction and equipment carried. Their input on the appropriateness of standards and practical issues in utilising them is immensely valuable for us in forming the discussion with the wider sector.
It allows us to engage with owners, operators, boat builders, equipment suppliers, and other key stakeholders with the knowledge that we have had practical as well as policy and regulatory input.
But it is important that all parts of the sector are involved, before the new rules are formulated. You are welcome to contact us at any time by emailing 40.Series@maritimenz.govt.nz. It is important that we get as much feedback as possible, before we embark on formal public consultation (which is a legal requirement), the last stage before final approval of the new rules and transport instruments.
How will changes to the 40-Series rules be rolled out?
We are undertaking a detailed implementation plan to ensure that the new rules – to be known as the Design, Construction and Equipment (DCE) Rules – are effectively introduced. This includes technical advisory groups to examine specific topics and wide interaction with the sector to allow feedback as we work through the new rules structure. This is different to the formal public consultation we will do prior to the rules being finalised.
How will the 40-Series project affect ships that are already in the fleet?
The rules will include arrangements for existing commercial ships. The new rules will apply to both commercial vessels entering the fleet and those already in the fleet.
The details of changes to requirements haven’t been developed yet and we recognise the need to provide solutions for existing vessels.
We are conscious of the need for owners and operators (and others) to have plenty of warning about proposed changes which will affect them, and will ensure we keep the sector informed as the reform project develops – noting that we are still in the ‘exploring change’ phase.
Why can’t Maritime NZ deal with the current issues now?
The rules are so interconnected, and the change in their organisation so profound, that it is difficult to introduce changes individually. However, we are currently considering if there are some changes which can be introduced into the existing rules to provide a benefit in the short term.
The 40-Series Reform project team is always keen to hear about the issues you face with the current rules. You can email us at: 40.Series@maritimenz.govt.nz.
Issues with the current 40-Series rules
What’s wrong with the level of prescription in the current rules?
Prescription is a problem when a rule, or a part of a rule, becomes outdated.
The current rules leave little room for alternative ways to meet a requirement, even where a solution is equivalent to (or better than) the prescribed requirement.
The only option is to apply to the Director of Maritime NZ for an exemption. This results in costs for the sector, and rules that lag behind sector innovations and changes. It’s time consuming, sucks up resources and, for the sector, can be frustrating and costly.
What do we mean when we say the rules have ‘technical issues’?
Surveyors, boat designers and builders and operators who work with the rules have identified hundreds of technical issues with them.
Rules may be incorrect technically for reasons that include:
- they don’t work for some ships or in some situations; or
- they are outdated; or
- they contradict / clash with other rules.
In such cases, the only option is to apply to the Director of Maritime NZ for an exemption.
Why is it difficult to change individual rules?
Under the current rules regime, any changes have to be signed off by the Minister of Transport, which requires a large amount of policy work to be done, and the change has to go through various arms of Government before it can be ratified.
Each year a list of potential changes is proposed by Maritime NZ and they are then triaged and prioritised across the three transport modes. This may result in some proposed changes not progressing as quickly as we would have hoped.
What makes the 40-Series rules unwieldy and repetitive?
The main reason is that they are organised by vessel type (30 different ship types) and so many of the requirements are repeated for each category (e.g. 5 operating limits, 36 length bands). This also causes confusion when a vessel is used for multiple categories (e.g. as a passenger and workboat) as there are different sets of requirements.
We are working to eliminate this by organising the rules in a different way – by topic – so that in the main the requirements apply to all ship types. Why has this inconsistency arisen?
Over the last 20 years or so, rules have been introduced piecemeal to address specific situations and specific classes of ship, and that has led to the current situation. We are now looking more widely at a structure for the new rules that will be more future-proofed by arranging the rules by topics which will apply to all ship types as much as possible.
Overview of the approach to the reform
What is the approach being taken to the reform of the 40-Series rules?
The reform project sets out the proposed regulatory approach. This includes:
- Developing a system of rules and associated transport instruments that are responsive to changes in technology and other industry changes.
- Reducing the volume and complexity of current rules while still allowing necessary detail and variation.
- Setting standards to reflect the level of risk - i.e. not setting standards too high or too low.
- Designing a new rules structure that works for ships entering the fleet and ships that are already operating commercially.
The approach being taken is outlined in detail in a Framework document, which can be found here.
What are the main features being proposed for the reform of the 40-Series rules?
The reform has five key goals:
NEW RULES STRUCTURE – Providing a clear rules structure, simple for the sector and regulator to follow.
OUTCOME-BASED RULES – a set of over-arching rules which give a framework for the sector to work within, which are flexible enough to sustain changes to technology and sector practice.
TRANSPORT INSTRUMENTS CONTAIN DETAIL – Specific requirements are contained in a set of transport instruments which are easier to amend and can be kept up to date with advances in technology.
CONSOLIDATION AND HARMONISATION – Rules are consolidated wherever possible across commercial passenger carrying, non-passenger carrying, sailing and fishing vessels to eliminate the inconsistencies that currently exist. We will have a set of rules for all vessels, with specific detail for the different classes only where necessary.
RISK-BASED APPROACH TO SETTING STANDARDS – Ensuring the rules are commensurate with the risk - so that we don’t over-regulate where it is not necessary, but nor do we under-estimate the risk for the conditions in which a vessel is operating.
Will requirements change under the new DCE rules?
It is difficult to anticipate how much the actual requirements will change, without having taken into account maritime sector and public input to draft proposals, and questions the project team has about specific rules.
It seems likely that the standards for many construction and equipment rules will, in effect, be very similar or stay the same when the new rules are introduced, but much easier to locate and interpret.
However, the new rules will look different to the current rules. The changes should make it easier to find rules about a given topic and easier to understand the requirements.
The following changes are also possible:
- Minor changes may arise as rules are harmonised and consolidated.
- The standards for some items of construction and equipment may reduce where the standard set by the rules is not justified by the level of risk, and therefore impose unnecessary costs. For example, this may be the case where rules apply international convention standards to domestic ships when this is not required by the convention.
- It is possible that standards may be raised where safety concerns are raised.
How will the proposed approach make things better for owners, operators, boat designers and builders and surveyors?
The rules will be easier to read, understand and follow when:
- the technical issues have been addressed,
- the duplication, ambiguity and inconsistencies have been removed,
- drafting is made less complex; and
- technical detail in rules has been relocated to transport instruments (refer to section 4 of the Q&As below).
Outcomes-based rules (refer to section 3 of the Q&As) will be more enduring, logical and consistent, so once they are established they won’t require many ongoing amendments.
Outcome-based rules and Transport Instruments
What are ‘Outcome-based’ rules?
Under the proposed approach, rules would move away from the current largely prescriptive approach to an approach that sets outcomes.
Each rule part will set required outcomes that state what must be achieved, but not how to do it. These outcomes are mandatory, but an outcome-based approach allows a streamlined approach to exemptions based on alternative ways to meet those requirements.
Under an outcomes-based approach, the technical detail for how to meet the outcomes will be contained in a transport instrument.
Example of an outcome-based rule
An example of an outcome-based rule might be a revised barriers and guard rails rule, which could simply state:
‘Provide effective guard rails at edges of exposed decks to protect persons from falling’
This states what must be done – protect people from falling – but does not state how this must be achieved.
Detail for how to meet the rules could go in a transport instrument. For example, a transport instrument may have:
- Design specs [distance between guard rails etc.]
- Special cases [e.g. arrangements for marine farming vessels]
- Minimum guard rail heights [refer current rule]
Why are outcome-based rules better?
Outcome-based rules can deliver multiple benefits:
- Enduring rules – once the outcomes are established they are likely to remain stable for many years
- The approach supports innovation by providing mechanisms to recognise new and different ways of complying with the rules. Clearly stated outcomes provide a ‘yardstick’ for measuring whether the rule(s) have been met. This makes it easier for Maritime NZ to assess exemption applications that are based on alternative solutions.
- Once outcomes have been established in rules (i.e. the ‘what’), a lot of the detail for how to meet the rule can move into transport instruments. This separation allows for more flexibility. In future it will be quicker to change the requirements that are in transport instruments.
What is a Transport Instrument?
Transport instruments, are a form of secondary legislation and will be part of the regulatory regime for Design, Construction and Equipment requirements.
Transport instruments will contain technical solutions for how to meet the outcome rules. The detail in the Transport instrument must align with the rules and required outcomes.
Transport instruments will be a new way of formally setting requirements. Parliament delegates power to the Minister of Transport to make rules. The Maritime Transport Act 1994 was amended in March 2021 to establish transport instruments as a legislative tool. The Minister of Transport can allow Maritime New Zealand or the Director of Maritime New Zealand to make and amend a transport instrument. This will make it faster and less complex to add or change the instruments’ content.
What benefits will Transport Instruments have?
Because of the way transport instruments can be updated, the regulatory system can respond more quickly to new technology, changes in standards or changes in industry practice. The transport instruments will still need to undergo public consultation.
By following the transport instrument, you automatically comply with the rule.
The rules will be easier to read and understand when a lot of the detail is located in transport instruments.
Harmonising and consolidating 40-Series rules
What does it mean to ‘harmonise’ rules?
Harmonise means to align rules that address the same design, construction or equipment (DCE) topics across different categories or types of ship (e.g. fishing, passenger, non-passenger, sailing). Harmonised rules will be more straightforward to understand and apply.
There are many examples in the current rules where different categories or types of ship have small differences in requirements for the same items of design, construction or equipment. Where possible these differences will be aligned, unless there is a good reason to keep them.
In some cases, harmonising rules may involve changing requirements for some types of vessel. The impacts of these changes are often minor. A change that is not minor will only be proposed where it is supported by a cost-benefit analysis and after consultation with the sector and the public.
What does it mean to ‘consolidate’ rules?
Consolidate means to reduce duplication. Requirements will be grouped by topic rather than by ship type. Duplication will reduce, and it will be easier to understand and apply the rules.
About 20% of the fleet has more than one use (e.g. fishing and passenger). Consolidated rules will be more straightforward for these vessels, because at present they need to meet multiple sets of requirements for the same items of construction or equipment. The current rules have many examples where requirements for the same items of construction or equipment are repeated across different categories or types of ship, and spread across multiple rules.
What are the benefits of harmonising and consolidating rules?
When requirements are harmonised across different categories or types of ship, rules can also be consolidated – there is no need to have multiple rules saying the same thing. This helps to improve clarity and make the rules easier to read and understand.
Will consolidating and harmonising rules change requirements for some ships?
It has the potential to reduce or increase some requirements for some ships. This is being considered as part of the rules development process.
The rules will include requirements for existing ships. Any proposed changes will need to be justified using cost-benefit analyses and regulatory impact assessments.
The maritime sector and the public will be consulted on all proposals to retain or change requirements and obligations in rules and Transport Instruments, and on any proposed offences and penalties for non-compliance.
What does a ‘risk-based’ approach mean in terms of setting requirements?
With a risk-based approach, requirements in rules should be set at a level that reasonably reflects the actual risks. For example, all other things being equal, the risks faced by a ship and the people on board are greater when it is 200 miles off-shore, compared to a ship operating in a sheltered harbour. This risk informs what equipment the ship needs to carry to keep people on board safe.
Risk-based thinking can help to assess whether requirements in rules are set at the right level, or even whether rules are required at all.
- Some rules apply requirements, intended for large ocean-going ships, to small vessels operating close to shore. A risk-based assessment might conclude that these requirements are unnecessarily high and can be safely reduced.
- Alternatively, a risk-based assessment for other rules might conclude that the requirements do not provide a sufficient level of safety for people on board, and that the standard needs tobe raised.
Risk-based thinking helps to inform decisions about whether it is appropriate to harmonise and consolidate rules. Different categories or types of ship that face the same level of risk in a given situation should logically need to meet the same or similar design, construction and equipment requirements.
New rules structure
How will the new rules be structured?
Under the proposed new structure, the rules would be arranged in three clusters.
Core rules will apply across the series. For example, we are proposing to have:
- Ship survey and certification. This will collect in one place all of the requirements for the survey and certification of ships.
Convention rules will be used to give effect to the International Conventions to which New Zealand is a signatory, e.g. -
- Design, Construction & Equipment - SOLAS Ships
- Cape Town Agreement
- Load Lines
- Tonnage Measurement
Currently, Part 40B sets out the requirements for ships that must meet standards under SOLAS (International Convention for the Safety of Life at Sea). The reform won’t change obligations under SOLAS, so apart from consequential and cosmetic changes, the required standards won’t change.
Rules by topic will set the requirements for domestic ships by subject. The proposed topics are listed below.
- Accommodation and facilities
- Fire safety
- Safety of persons on board (Lifesaving appliances and bulwarks and rails)
- Machinery and related equipment
- Navigation equipment
- Radio communication
- Watertight and weathertight integrity
In most cases, requirements for how specific types of ship meet the rules will be contained in transport instruments.
Why have rules by topic? Why not base rules on the category or type of ship?
A move to rules by topic is the natural result of:
- Outcomes-based rules (with detail in transport instruments); and
- Using a risk-based approach to harmonise and consolidate rules.
The current 40-Series rules start with a category or type of ship and set out the rules that apply to that ship. The rules for the four main categories of ship have a similar format and use the same subject headings. This approach involves a high degree of repetition. In addition, requirements often vary between categories and types of ship, when the reason for these differences is often not clear. When a ship changes parts of its operation it is penalised by being treated like a new vessel, even though the risk profile hasn’t changed.
Under the proposed new approach, all ships will need to meet the same high-level outcomes set in the rules. Some differences between ships may remain. In most cases, the specific requirements that are needed to address a particular type of ship will be contained in Transport Instruments.