The Placing on the Market and Supervision of Transfers of Explosives Regulations 1993

Citation and commencement

1.—(1) These Regulations may be cited as the Placing on the Market and Supervision of Transfers of Explosives Regulations 1993.

(2) Subject to paragraphs (3) and (4), these Regulations shall come into force on 1st December 1993.

(3) In respect of transfers which take place wholly within the United Kingdom or which terminate outside the United Kingdom, regulation 8 shall come into force on 26th September 1994.

(4) Regulations 4 to 7 and 13 shall come into force on 1st January 1995.

Interpretation

2.—(1) In these Regulations, unless the context otherwise requires—

“the 1972 Act” means the European Communities Act 1972;

“the 1974 Act” means the Health and Safety at Work etc. Act 1974;

“the 1983 Regulations” means the Classification and Labelling of Explosives Regulations 1983(1);

“the CE marking” means the marking referred to in regulation 7(4);

“the Civil Uses Directive” means Council Directive 93/15/EEC on the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil uses(2);

“the Commission” means the Commission of the European Communities;

“the essential safety requirements” means the requirements listed in Schedule 1;

“the Executive” means the Health and Safety Executive;

“explosives” means explosive articles or explosive substances which have been assigned on classification in accordance with the 1983 Regulations to Class 1;

“explosive article” means an article containing one or more explosive substances;

“explosive substance” means—

which is capable by chemical reaction in itself of producing gas at such a temperature and pressure and at such a speed as could cause damage to surroundings or which is designed to produce an effect by heat, light, sound, gas or smoke or a combination of these as a result of non-detonative self-sustaining exothermic chemical reactions;

“harmonised standard” means a text setting out technical specifications adopted by the European Committee for Standardisation (CEN) under a mandate from the Commission in accordance with Council Directive 83/189/EEC laying down a procedure for the provision of information in the field of technical standards and regulations(3), and of which the reference number is published in the Official Journal of the European Communities;

“notified body” means a body notified to the Commission by a member State pursuant to Article 6.2 of the Civil Uses Directive.

(2) Any reference in these Regulations to—

(a)a numbered regulation or Schedule is a reference to the regulation in or Schedule to these Regulations so numbered;

(b)a numbered paragraph is a reference to the paragraph so numbered in the regulation, Schedule or Part of the Schedule in which the reference appears; and

(c)a numbered Annex is a reference to the Annex to the Civil Uses Directive so numbered.

Application

3.—(1) Subject to paragraph (2), these Regulations shall apply to all explosives.

(2) Regulations 4 to 8 shall not apply to—

(a)ammunition the acquisition of which is regulated or prohibited by virtue of the Firearms Acts 1968 to 1992(4); or

(b)any explosives which it is shown are intended for lawful use by the armed forces or police of any country; or

(c)a pyrotechnic article; or

(d)an explosive which is used immediately at the place of manufacture; or

(e)an explosive article intended for use as a life saving device in a motor vehicle.

(3) Regulations 4 to 8 shall not apply in respect of the transfer of explosives to, by or on behalf of, or where, following the transfer, the explosives are in the possession of—

(a)any person such as is mentioned in regulation 3(3) of the Control of Explosives Regulations 1991(5);

(b)the Crown in respect of any explosives which are intended for use for the purposes of the department of the Secretary of State having responsibility for defence or that of the Secretary of State having responsibility for home affairs; or

(c)the Executive.

Placing on the market of explosives

4.—(1) No person shall place any explosives on the market unless—

(a)the explosives satisfy such of the essential safety requirements as apply to those explosives; and

(b)the conformity of the explosives to the requirements of these Regulations has been attested in accordance with regulation 5; and

(c)the CE marking has been affixed to the explosives in accordance with regulation 7.

(2) For the purposes of paragraph (1), explosives shall be treated as satisfying the essential safety requirements if they conform to any relevant national standard.

(3) For the purposes of this regulation, “national standard” means a standard of a member State—

(a)which transposes a relevant harmonised standard; and

(b)the reference number of which has been published by that member State pursuant to Article 4.1 of the Civil Uses Directive.

(4) For the purpose of this regulation, explosives are placed on the market when they are first supplied or made available to any person with a view to their distribution or use within the Communities or are imported, except with a view to re-export, from outside the Communities, and “place on the market” shall be construed accordingly.

Conformity attestation

5.  For the purposes of regulation 4(1)(b), the procedure for attesting conformity of explosives to the requirements of these Regulations shall be—

(a)EC type examination (Module B) referred to in Annex II(1) together with—

(i)type conformity (Module C) referred to in Annex II(2), or

(ii)production quality assurance (Module D) referred to in Annex II(3), or

(iii)product quality assurance (Module E) referred to in Annex II(4), or

(iv)product verification (Module F) referred to in Annex II(5); or

(b)unit verification (Module G) referred to in Annex II(6).

Notified bodies

6.—(1) The Secretary of State may from time to time appoint in writing such qualified bodies as he thinks fit to be notified bodies for the purposes of these Regulations.

(2) An appointment under this regulation may relate to all or any description or class of explosives, may be subject to conditions or to limit of time, and may be revoked in writing at any time.

(3) For the purposes of this regulation a body is qualified if it meets the criteria set out in Annex III (minimum criteria to be taken into account by member States for the notification of bodies) or if it meets the assessment criteria laid down by a relevant harmonised standard.

(4) The Secretary of State shall—

(a)notify the Commission and the other member States of any body appointed under this regulation;

(b)revoke the appointment of any such body if it appears to the Secretary of State that that body is no longer qualified; and

(c)notify the Commission and the other member States of the revocation of any such appointment.

(5) A body appointed by the Secretary of State under this regulation, after agreeing with the applicant any fee in respect of the work to be undertaken by it, shall perform the functions of a notified body under the Civil Uses Directive.

CE marking

7.—(1) For the purposes of regulation 4(1)(c), the CE marking is properly affixed if—

(a)it is visible, easily legible and indelible; and

(b)it is of a durable nature such that it will remain visible, easily legible and indelible during normal transport or storage; and

(c)it is affixed either—

(i)to the explosives themselves, or, where that is not practicable,

(ii)to an identification plate which is attached to the explosives and which is so designed as to make its re-use impossible, or, where neither of the above is practicable,

(iii)to the packaging of the explosives; and

(d)in the case of explosives which are subject to any Community Directive other than the Civil Uses Directive, the requirements imposed by virtue of that other Directive have also been complied with in respect of those explosives.

(2) No person shall affix to any explosives the CE marking or any marking or inscription which is liable to be confused with the CE marking except by properly affixing the CE marking to explosives which satisfy the requirements of sub-paragraphs (a) and (b) of paragraph (1) of regulation 4.

(3) Parts I and III of Schedule 2 shall have effect with respect to any explosives to which the CE marking has been affixed but which do not satisfy the requirements of sub-paragraphs (a) and (b) of paragraph (1) of regulation 4.

(4) The CE marking shall be in the form shown in Schedule 3.

Transfer of explosives

8.—(1) Before any explosives are transferred, the consignee shall obtain from the competent authority for the place where the transfer will terminate, a recipient competent authority document which grants approval for the transfer.

(2) No person shall consign any explosives for carriage to a place outside Great Britain unless the approval of the relevant authority has been obtained.

(3) No person shall consign any explosives for carriage unless he is satisfied that the consignee has the recipient competent authority document required by paragraph (1).

(4) No person shall carry explosives unless the explosives are accompanied by the recipient competent authority document required by paragraph (1) or a copy of that document certified by or on behalf of the consignee to be a true copy thereof.

(5) For the purposes of this regulation, any transfer of explosives to a place outside the Communities shall be treated as a transfer which will terminate at the place where the explosives are immediately before leaving the Communities.

(6) The consignee of any explosives shall retain the recipient competent authority document or a copy thereof for a period of 3 years from the completion of the transfer.

(7) This regulation shall not apply to the transfer of any component of small arms ammunition by a person for his own sporting or other recreational use and not for sale, or to the transfer of such component following which the component is in the possession of a person for such purposes.

(8) Except as part of a transfer carried out in accordance with this regulation, the importation of explosives into the United Kingdom is prohibited.

(9) In this regulation—

• “competent authority” means—

  (a)

  in respect of Great Britain, the Executive, and

  (b)

  in respect of Northern Ireland or a place in the territory of a member State other than the United Kingdom, the authority whose responsibilities are specified in Article 9 of the Civil Uses Directive;

• “recipient competent authority document” means a document issued in accordance with Article 9.3, 9.5, or 9.6 of the Civil Uses Directive by the competent authority of the member State in which the transfer will terminate;

• “relevant authority” means—

  (a)

  in respect of a transfer or part of a transfer which takes place within Great Britain, the Executive, and

  (b)

  in respect of a transfer or part of a transfer which takes place in Northern Ireland or a place in the territory of a member State other than the United Kingdom, the competent authority for each place where the transfer takes or is to take place;

• “transfer” means any physical movement of explosives apart from movement within one site.

Enforcement

9.—(1) Notwithstanding the provisions of the Health and Safety (Enforcing Authority) Regulations 1989(6), the Executive shall be the enforcing authority for these Regulations.

(2) An inspector appointed under section 19 of the 1974 Act may seize and detain in accordance with section 74 of the Explosives Act 1875(7) any explosives which he has reasonable cause to believe will be unlawfully acquired, used or dealt in.

(3) Parts II and III of Schedule 2 shall have effect with respect to any explosives to which the CE marking has been affixed but which may compromise safety when used for their intended purpose.

(4) Insofar as any provision of regulations 4 to 13 is made under section 2(2) of the 1972 Act—

(a)the provisions of the 1974 Act which relate to the approval of codes of practice and their use in criminal proceedings, enforcement and offences shall apply to that provision as if that provision had been made under section 15 of that Act; and

(b)breach of a duty imposed by that provision shall confer a right of action in civil proceedings, insofar as that breach of duty causes damage.

Extension outside Great Britain

10.—(1) These Regulations shall apply to and in relation to the premises and activities outside Great Britain to which sections 1 to 59 and 80 to 82 of the 1974 Act apply by virtue of the Health and Safety at Work etc. Act 1974 (Application outside Great Britain) Order 1989(8) as they apply within Great Britain.

(2) These Regulations shall not extend to Northern Ireland.

Exemption certificates

11.—(1) Subject to paragraph (2) below, the Health and Safety Executive may, by certificate in writing, exempt any person or class of persons or any activity or class of activities from any requirement imposed by these Regulations and any such exemption may be granted subject to conditions and to a limit of time and may be revoked by a certificate in writing at any time.

(2) The Executive shall not grant any such exemption unless having regard to the circumstances of the case, and in particular to—

(a)the conditions, if any, which it proposes to attach to the exemption; and

(b)any other requirements imposed by or under any enactment which apply to the case,

it is satisfied that the health and safety of persons who are likely to be affected by the exemption will not be prejudiced because of it, that the security of explosives will not be prejudiced and that any provision imposed by the European Communities in respect of the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil uses will be satisfied.

Modifications

12.—(1) The Explosives Act 1875(9) shall be modified to the extent set out in Part I of Schedule 4.

(2) The Control of Explosives Regulations 1991(10) shall be modified to the extent set out in Part II of Schedule 4.

Saving

13.  Until 31st December 2002, it shall be sufficient compliance with regulation 4 if any explosives comply with any requirement of the relevant statutory provisions to which they would have been subject on 31st December 1994.

Revocations

14.  Except in their application to Northern Ireland, Order in Council (No. 10) dated 27th November 1875(11) and Order in Council (No. 10A) dated 26th June 1884(12) are revoked.