HMRC consultation on Red Diesel This is your last chance to take part in it this before the deadline of
Summary
This consultation outlines how the government intends to implement the judgment by requiring private pleasure craft to use white diesel for propulsion, and seeks evidence about the impact this will have on users of diesel propelled craft operating in UK inland waterways and along the coast, and the companies that supply diesel to them.
The responses will be used to help determine whether a period will be required for suppliers, known as Registered Dealers in Controlled Oils (RDCOs), and users of diesel fuel, to adapt to using only white diesel for propulsion of private pleasure craft and, if needed, the length of any such period.
Link to the consultation papers is https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/817231/Implementation_of_CJEU_judgment_on_diesel_fuel.pdf
And please send an email to; gary.satchell@hmrc.gov.uk
Please do both to have a greater impact.
One reply used by one of our CQBHA members in their email to Gary Satchell.
You could use this and change the facts to suit your boat and circumstances or write your own. Don’t forget to also go to the consultation link above and answer the questions.
Please do both to have a greater impact.
Dear Mr Satchell,
Implementation of the Court of Justice of the European Union (CJEU) judgment on diesel fuel used in private pleasure craft
Introduction
I wish to respond to the consultation document published on 15 July 2019 which concerns the implementation of the Court of Justice of the European Union (CJEU) judgment on diesel fuel used in private pleasure craft.
Firstly I would just like to say that my boat was designed and built (in Germany) with one diesel tank in the centre of the engine bay and it would be impossible for me to add another diesel tank to run my heating system, should I be forced to use white diesel for my propulsion. It would unbalance the vessel making it dangerous to handle, even if we found a way of squeezing it in somewhere. I also feel that our local suppliers, who supply the larger commercial fishing vessels in our area as well, will not install white diesel tanks for me to fill up from and I would be forced to buy from car filling stations and carry the fuel to my boat in Gerry cans to fill it up. This risks spillage resulting in an inevitable increase in pollution.
Having said this the prohibitive costs of having to completely clear my original fuel tank of the Red diesel stain to keep the EU happy, and the increased cost of white diesel prices would force me out of boating permanently. I have a great fear that if this judgment were to be implemented it would be the end of our private pleasure craft industry because I would not be alone in this problem of not being able to afford the changes and increased running costs.
It is very interesting to note that generally white diesel prices in the EU are cheaper than petrol, unlike the UK where diesel is more expensive. If this judgment where to be implemented would the Government reduce the duty/price of white diesel available to the private boating community, therefore redressing the big difference in the price between Red and White diesel for boaters??
The job loses would be bad and the effect on our economy would be disastrous. We are an island nation and a huge amount of people enjoy the boating offered around our islands, please do not implement this judgment and help the EU ruin our British boating world. There is over 1,000 boats in my marina alone and I know well over half of these would give up boating if this judgement was implemented. I dread to think of the consequences to this country’s economy if this judgment goes through.
I refer to the RYA content below as back up to my concerns.
I know that the RYA believes that there are a number of policy and operational concerns raised by the Government’s intention to remove the right of operators of such craft to use red diesel for propulsion that may not be drawn out by the consultation questions which are aimed primarily at collecting data from the suppliers and user/owners of diesel fuelled craft.
It is these policy and operational concerns that the RYA wishes bring to the Government’s attention in this response.
The CJEU ruling
The RYA notes that clause 2.12 of the consultation document states that while the UK is legally bound by the Fuel Marker Directive (including during an implementation period agreed as part of our exit from the EU), the UK has a duty to implement the CJEU ruling. However this may not be the case once the UK exits the EU.
As things stand, the UK will cease to be a member state of the EU on 31 October 2019 and the UK will cease to have rights or obligations arising out of membership of the EU.
This fundamental change will affect the relationship between the UK and the CJEU: UK courts will have no power or duty to refer points of EU law to the CJEU for a preliminary ruling; and the EU Commission will have no power to bring proceedings against the UK for non-compliance with its obligations under the EU treaties. Moreover, the application of EU law in the UK has always been a matter for the UK courts, not for the CJEU, although the UK courts have always accepted their obligation to enforce EU law during the period of UK membership.
Up until whatever date the UK ultimately withdraws from the EU, the position remains as currently specified in section 3 of the European Communities Act 1972, so that UK courts remain bound by rulings on EU law by the CJEU. However, clause 6 of the European Union (Withdrawal) Act 2018 provides that, after Brexit, existing rulings of the CJEU on EU law (i.e. rulings given before Brexit day) could in principle be overridden by a contrary ruling of the Supreme Court.
As a consequence after Brexit, it may not be strictly necessary to implement the CJEU judgement on diesel fuel used in private pleasure craft and any plans that the Government has to implement the CJEU judgment need not be brought into to force. Therefore the RYA urges the Government to consider this as the most logical way forward in view of the difficulties of implementing the judgement as set out below. Not implementing this ruling once we are not a member of the EU will eliminate the significant damage that implementation will bring to the UK boating market.
Practical impacts
The consultation document correctly identifies that in some situations a boat may be entitled to use diesel with both lower and higher rates of duty paid. Examples include a private recreational boat which may use lower duty diesel for non-propulsion purposes, or a commercial vessel, e.g. a charter yacht used occasionally for recreation by its owners.
The Government proposals will affect operators of such boats as it requires them to clean traces of red dye from tanks when used for recreational purposes, install a separate fuel tank, or pay the higher rate of duty on fuel when doing so.
Practically, many craft will not have the space for a separate tank and associated equipment to be safely installed, and even if space was available such work may be prohibitively expensive, or require substantial changes to the vessel, which may in turn impact on a boats compliance with the Recreational Craft Directive.
The true cost of properly installing an additional tank is likely to substantially exceed the costs mentioned in the consultation document. As a result, operators of diesel powered private pleasure craft with only one tank will be penalised because they will have to use full duty paid diesel when they may otherwise be entitled to use diesel with a lower rate of duty paid.
In addition to the practical difficulties of storing diesel subject to different rates of duty with different colours separately, it is not believed appropriate to align the penalties for the misuse of red diesel with the penalties in force for road vehicles.
This is because existing craft will have detectable traces of red marker in their fuel systems for many years, this being a design function of the red marker currently in use, and it may take many years of use before traces of red marker disappear, or alternatively require substantial and expensive professional cleaning of fuel systems, which is likely to be beyond the reach of many boat owners.
While it may be appropriate to test new boats (put into use after any prohibition of red diesel becomes effective) for traces of red diesel it will therefore be impossible to accurately test existing boats, and as a consequences any penalty for misuse of red diesel must reflect this.
Availability of fuel at the waterside
Waterside businesses (whether on the coast or inland waterways) that currently supply red diesel to the boating public will face hard commercial decisions if they can no longer sell red diesel to private pleasure craft. These companies will typically have one red diesel storage tank and pumping facilities which will only be of ongoing use to them if they intend to continue to supply red diesel to commercial customers.
The consultation document suggests that marine refuelling stations may opt to supply only white diesel making it difficult for commercial craft to refuel with red diesel, however this opinion is not supported by research carried out by British Marine, the trade association representing businesses operating in the UK leisure marine industries. In fact the reverse is true in that many suppliers have indicated that they will not be in a position to make the investment that these changes will require, which increases our concerns about shortages of fuel supply in the future.
This is because suppliers cannot simply switch existing tanks to store white diesel because that tank and pumping equipment will be tainted with red dye, which would contaminate white fuel. If these suppliers decide to sell white diesel to private pleasure craft, they will have to have their existing (red diesel) tanks industrially cleaned or make a capital investment in new tank and pumping facilities specifically for white diesel. It is noted that the nature of marine refuelling stations (for instance floating facilities, or with fuel dispensers on pontoons) makes the instillation of additional tanks and infrastructure significantly more costly than for a roadside fuelling station.
Although the proposals may reduce the administrative burden for suppliers because they will not be required to collect the duty differential between white diesel and red diesel for HM Revenue & Customs, the impact assessment fails to articulate the cost to suppliers. Ultimately, for those suppliers able to invest in suitable equipment to dispense white diesel it is likely they will pass the associated costs to consumers via the price of fuel sold.
The British Marine research suggests that many waterside suppliers would stop supplying fuel to private pleasure craft. Waterside diesel will therefore be less available and this is likely to make boating in some parts of the UK less attractive and less popular and ultimately may mean a reduction in participation and boat usage leading to in a reduction in the related spend received from recreational boating – recreational boating makes a significant contribution to local economies that border coastal and inland waters that rely upon visiting boats for a significant part of their overall income.
Safety and Environmental Concerns
The practical difficulties faced by waterside suppliers are covered above. In areas where private leisure craft are the main users of diesel, it is likely that supplies of red diesel will become scarce. In areas where commercial craft dominate, white diesel is unlikely to be available at all.
If the Government intends to implement its proposals, the net effect will be that the correct type of waterside diesel will be less available to boaters, particularly in more rural and remote parts of the UK, and especially where coastal harbours cater predominantly for commercial (fishing) craft. Such areas include Scotland, Northern Ireland and the West Country where there are often long distances between ports/marinas.
Boaters will therefore be faced with having to make longer passages between fuel stops, which in the case of adverse weather, unexpected gear failure or other unforeseen events, is likely to result in an unacceptable risk to safety, as it is considered good practice to ensure tanks are full to allow for any eventuality on route, as the possibility of walking to the nearest fuel station does not exist when at sea!
Unavailability of fuel in close proximity to the water will lead to boaters carrying greater quantities of fuel in containers, either on board their boats or by vehicle from roadside filling stations. Environmental impact will increase through spillage which may occur when fuel is being decanted into tanks, especially if this is carried out when the vessel is under way, and the carriage of large quantities of fuel, either on board or by road to boats gives rise to additional safety and environmental concerns.
In the long term, and particularly in the case of motor cruises it is probable that difficulties in obtaining diesel, or higher costs of doing so will lead to a resurgence in the use of inboard petrol engines, which due to the more flammable nature of petrol, and possibility of petrol vapour settling in bilges are regarded as a higher risk than diesel engines for marine use.
Period of Adjustment
The consultation document fails to quantify the impact of the costs from changing from red to white diesel for private recreational craft. These are not assessed in the impact assessment, but the preferred and most cost effective method will be through turnover where it may take several refills of a fuel tank to reduce traces of red diesel to an acceptable level. Many sailing yachts with auxiliary diesel engines use only small amounts of fuel each year, perhaps only running engines while entering harbour meaning that diesel turnover is low.
For many recreational boat owners, it will take a considerable period for traces of red dye to disappear.
If the government still intends to remove the right of private pleasure craft operators to use red diesel for propulsion following this consultation, then the RYA believes that any subsequent transition period must be long enough to ensure that red diesel (which will be detectable in boat fuel systems for a considerable period of time after the commencement date of any change to the use of white diesel) does not taint the fuel. Furthermore, The Government must ensure that the transition period set by the UK for implementing the CJEU ruling is respected by EU member states.
Conclusions
If the current system of permitting recreational boaters to use red diesel subject to the payment of duty at the rate applicable for the intended use is removed, and the use of white diesel mandated, it will have significant practical, cost and safety consequences for a great many UK private pleasure boaters who enjoy their sport and recreation afloat or earn their livelihood from the leisure marine industry. There will also be an increased adverse impact on the marine environment.
We therefore urge Government to fight for the retention of the current system of red diesel supply, particularly as our imminent exit from the EU means there will be no requirement to uphold the preliminary ruling of the CJEU on this matter in the near future.
Yours in Hope
PLEASE PUT YOUR THOUGHTS TO THIS CONSULTATION BEFORE 9th SEPTEMBER AND HELP US TO MAKE A DIFFERENCE.
Many Thanks
Kevin Butler
