Consultation on Registerable Marine Activities and on Marine Licence Applications Requiring Pre-Application Consultation

PARTIAL BUSINESS AND REGULATORY IMPACT ASSESSMENT

Title of Proposal

Marine Licensing - Introduction of Registerable Activities

Ref: Consultation on Registerable Marine Activities and on Marine Licence Applications Requiring Pre-Application Consultation

Ref: Marine (Scotland) Act 2010

Purpose and intended effect

• Background

The 6 ^th of April of this year saw the beginning of a new marine licensing regime for Scotland's seas. The new system, provided for by the Marine (Scotland) Act 2010 and the Marine and Coastal Access Act 2009, provides an equitable, efficient and streamlined licensing process for Scotland's seas. The Marine (Scotland) Act covers the region from 0 - 12 Nautical miles (Nm) and the Marine and Coastal Access Act covers the region from 12 - 200 Nm.

Currently, licensable activity in the 0 - 12 Nm region is either fully licensable or, in certain circumstances, exempt from needing a marine licence. Exempt activities include those covered by other legislation, of negligible impact or where the licence application process would be inappropriate (such as fire-fighting).

The Marine (Scotland) Act also provides for Scottish Ministers to prescribe that certain activities that fall below a specified threshold of environmental impact need not be licensed, but may be registered instead. This would allow low impact activity to go ahead without the relatively more time consuming and costly necessity of going through the licence application process.

• Objective

To introduce categories of 'Registerable Activity' into the licensing regime in order to reduce the regulatory burden on those wishing to carry out activities that fall below a specified level of environmental impact.

• Rationale for Government intervention

Before this process can be introduced to augment the current licensing system, secondary legislation will need to be laid before parliament. We intend to go out to consultation with internal and external stakeholders in order to inform the detail of this legislation. It is hoped that the new 'Registerable Activity' legislation will be implemented in the summer of 2012.

As the competent authority responsible for all licensing (except for reserved matters) in Scotland's seas, Scottish Ministers have a duty to ensure that the regulatory framework that supports responsible development in Scotland's seas is as efficient, streamlined and equitable as possible. The introduction of 'Registerable Activities' into the marine licensing regime will help to achieve this goal.

As part of the streamlined licensing process, the introduction of 'Registerable Activities' fits into the National Performance Framework by reducing the regulatory burden upon businesses wishing to carry out low impact activities. This conforms to the National Outcome of making Scotland an attractive place to do business.

Consultation

• Within Government

Colleagues within the Scottish Government have been consulted. No inter-departmental consultation is required, although other administrations ( e.g. DEFRA) will be copied in for information.

Marine Scotland LOT were consulted regarding the categories of activity included and the practical application of procedure. SGLD was consulted regarding the legal parameters within which the registerable activities must take place. Final approval of the proposals was approved at Branch Head level.

• Public Consultation

This Partial Business and Regulatory Impact Assessment is produced as part of the 'Consultation on Registerable Marine Activities and on Marine Licence Applications Requiring Pre-Application Consultation', a public consultation covering both registerable activities and those subject to pre-application consultation (covered by a separate BRIA). This consultation will be launched in the spring for the standard consultation period of 12 weeks.

• Business

Throughout the consultation period, the Scottish Government will meet directly with a range of bodies affected by these proposals. There will be two consultation events held at different locations in Scotland where we will have face-to-face discussions with a number of businesses.

Options

• Option 1.

No introduction of 'Registerable Activities' to the Scottish marine licensing regime. This would result in the specified low impact activities requiring to be licensed.

• Option 2.

Introduce 'Registerable Activities' into the Scottish marine licensing regime. This new tier will allow for minimalist regulation of low-impact activities, streamlining the process for both applicants and regulators.

• Sectors and groups affected

Those carrying out low impact activities such as recreational diving, underwater archaeology, yacht racing and those responsible for removing marine mammal carcasses from the foreshore (usually the local authority).

• Benefits
• Option 1.

A small saving to the Scottish Government due to there being no need to go to the expense of laying the associated legislation.

• Option 2.

The reduced regulatory burden for applicants under this category would include savings associated with the application process. The policy is not to charge applicants to register activities with MS LOT. In turn, for MS LOT, the process of approving an activity for registration would be less labour-intensive and demand fewer resources than that of applying for a marine licence.

• Costs
• Option 1.

If 'Registerable Activities' are not introduced into the Scottish marine licensing regime, then those activities will remain licensable. In those circumstances, industry and individuals wishing to carry out those activities will incur the cost associated with applying for a licence. These activities are likely to fall into the lower bandings, attracting fees between £50 and £600. There will also be costs associated with preparing the application and providing supporting information.

• Option 2.

Some costs will be borne by the Scottish Government. Because the policy is not to charge applicants for registering an activity, the Scottish Government would lose this income. However, registration will require less administrative resource than processing licence applications and so savings would be made in this regard.

Scottish Firms Impact Test

Throughout the consultation period, Marine Scotland will meet directly with a range of bodies and businesses affected by the proposals to introduce registerable activities, so we can better assess the costs and/or benefits. We will update this section with the results of these discussions post consultation

• Competition Assessment

We have assumed there will not be any competition impacts as a result of the changes we are proposing and the answers to the Office of Fair Trading's Competition Filter questions below confirm this. We would welcome views on this assumption.

Does the policy:

1. Directly limit the number or range of suppliers?

No.

2. Indirectly limit the number or range of suppliers?

No.

3. Limit the ability of suppliers to compete?

No.

4. Reduce suppliers' incentives to compete vigorously?

No.

• Test run of business forms

The registration process may involve the use of a simple form. This form will be a 'living' document which will develop as the process is refined. Forms will be 'test run' at consultation events carried out as part of the consultation process.

Legal Aid Impact Test

There should be no impact on legal aid issues under these proposals. We have passed this to the Access to Justice Team who are following up with the Legal Aid Board and this section will be updated post-consultation.

Enforcement, sanctions and monitoring

It is not thought likely that the proposals will result in non-compliance. Registering an activity will not attract a fee, so there is little disincentive to apply. If the activity exceeds the specified level of environmental impact, then it no longer qualifies as 'registerable' and becomes a licensable activity.

The requirement for a licence is monitored and enforced by Marine Scotland Compliance. A person found guilty of carrying out a licensable activity under the Marine (Scotland) Act 2010, without an appropriate licence, is liable to a fine not exceeding £50,000 or to imprisonment for a period not exceeding 2 years, or both.

Implementation and delivery plan

Section 33 of the Marine (Scotland) Act 2010, regarding 'Registerable Activities', is expected to be implemented in the summer of 2012.

• Post-implementation review

The performance of the system implemented under the SSI will be assessed one year after its implementation, to ensure that it is fit for purpose.

Summary and recommendation

Option 2 is being recommended due to the clear streamlining and regulatory benefits it will provide.

	Costs	Benefits
Option 1:	Licensing costs and delays to industry	Reduced cost to the Scottish Government
Option 2:	Minor administrative costs to the Scottish Government	Reduced regulatory burden and costs to industry

Declaration and publication

I have read the impact assessment and I am satisfied that, given the available evidence, it represents a reasonable view of the likely costs, benefits and impact of the leading options. I am satisfied that business impact will be assessed with the support of businesses in Scotland.

Signed:

Date:

Richard Lochhead, Cabinet Secretary for Rural Affairs and the Environment

Scottish Government Contact point: Matt Cartney 46231