Summary of responses to HSE consultation paper CD225 on legislation to transpose the directive on the identification and traceability of explosives for civil uses

Introduction

This consultation concerned the proposed legislation transposing the European Commission Directive 2008/43/EC on the Identification and Traceability of Explosives for Civil Uses. The consultation included Northern Ireland and the Northern Ireland Office used the results to draft the Northern Ireland Regulations transposing the Directive.

The Directive requires that explosives for civil uses are uniquely identified and can be traced from the production site through to their final use. This is with a view to preventing misuse and theft and assisting authorities in tracing the origin of lost or stolen explosives. It does not apply to:

•  pyrotechnics for example, flares or fireworks;
•  ammunition;
•  unpackaged explosives transported and delivered for direct unloading into the blast-hole for example in pump trucks;
•  explosives produced in situ for immediate use; and
•  explosives for legal use by the military or police.

The main duties in the Directive are:

• Product identification - explosives manufactured in, or imported into a member state after 5 April 2012 are uniquely marked with an alphanumeric code and barcode;
• Record keeping - all undertakings involved in the manufacture, import, transfer or use of the explosives:
• record their involvement in the movement of the explosives and keep these records for 10 years; and
• provide the responsible authorities with contact details so that information in their records can be accessed at any time necessary.

Existing legislation

There are already requirements on labelling and recordkeeping in the UK. The Directive additionally requires the following:

Marking/labelling

• all items of explosives must marked with a unique identification;
• the identification must use the format prescribed by the directive;
• articles such as detonators and cartridges must be marked or labelled.

Record-keeping

The major changes to record-keeping requirements are that the unique identification is recorded and the record kept for 10 years rather than 3 years.

Impact on existing legislation

The duties in the Directive, and therefore the proposed regulations (Identification and Traceability of Explosives Regulations – ITOER), overlap duties in two existing sets of regulations, the Classification and Labelling of Explosives Regulations 1983 (CLER) and the Control of Explosives Regulations 1991 (COER) which will remain in force until superseded by ITOER on 5 April 2012.

A review of health and safety explosives legislation has begun.  It includes CLER and COER. It aims to reduce the regulatory burden on business through clarification and simplification.  It will engage with all interested parties beginning in 2010 delivering a consolidated and integrated suite of updated explosives legislation that will include ITOER in April 2012.

Conducting the consultation exercise

HSE consulted businesses involved in the manufacture, importation, storage and commercial carriage of the explosives to which the Directive applies as well as others affected by the proposed regulations. This was primarily to avoid unintended consequences of the wording in the regulations, although the duties in ITOER follow on directly from the Directive.

Views were sought on:

• how we intend to implement the Directive (but not views on the Directive itself which was agreed by the European Commission and published in April 2008); and
• the draft impact assessment.

The consultation lasted for 8 weeks rather than the normal 12 for the following reasons:

• the part of the explosives sector affected by this Directive is mature and compact with well-established and effective formal and informal intelligence gathering and dissemination networks;
• this Directive further implements a part of a parent Directive (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) that had itself been consulted upon and the regulations implementing that Directive have been in force for a number of years;
• the impact of these regulations will be relatively small as the majority of the duties exist to a large degree in current explosives legislation;
• businesses have been aware for some months that this Directive would affect explosives marking and record keeping;

• there had already been considerable informal consultation with both trade associations and businesses in the affected sector on the duties in the regulations and how they can be met;
• best endeavours have been made to directly inform those affected by these regulations of this consultation.

Summary

The consultation began on 1 September 2009. Twenty-eight organisations were notified directly about the publication of the consultation document (see Annex 1) and 12 responses were received by the closing date of 2 November 2009.

Detail of responses

Of the twelve organisations that responded to the consultation, six made use of the questionnaire to express their views whilst six provided comments by letter or e-mail. The questionnaire asked those responding to the consultation to indicate the capacity in which they were responding, the type of organisation they represented and the number of employees. Seven organisations provided this information (see tables below).

Responses and comments were also received from:

• Association of Chief Police Officers (ACPO) Firearms & Explosives Licensing Working Group,
• PSNI
• The British Association for Shooting & Conservation (BASC),
• QinetiQ, and
• BAE Systems

Summary of responses

A summary of the responses to the consultation is set out below. Any reference to percentage is the percentage of the total responses received, including those where no response was given to a particular question, it was not applicable or no specific preference was expressed. Several minor amendments were made to the draft regulations as a result of comments / suggestions received during the consultation. The impact assessment was also re-visited.

• Prior to implementation of ITOER, HSE intends to carry out a review of existing explosives legislation. Those who responded to the consultation were generally in favour of the review with 64% of respondents agreeing that a review was needed, and 73% believing that the development of an integrated suite of explosives legislation would be beneficial.
• Regarding the proposed Regulation 4, we asked consultees whether they agreed that paragraphs (1) to (6) of the regulation cover the instances when explosives and the smallest packaging units will require marking. 46% of those who responded agreed, whilst 27% disagreed. A further 27% neither agreed nor disagreed. Whilst some organisations felt it would be simpler and more consistent to have a unique marking for each explosive and their smallest packaging unit, others felt that this would simply complicate matters.
• With regards the proposed Regulation 5, we asked consultees whether they agreed that the circumstances described in the regulation would cover all situations when a manufacturing site code will be requested. Of the responses received, those agreeing or disagreeing were evenly split at 36.5%, whilst the remaining 27% did not express an opinion one way or the other. One point raised was that a site could have several manufacturers on it.  The issue of multiple site numbers being required for one manufacturer in the USA who exports to several EU member states was also made.
• The majority of those respondents who expressed a view (46% of total responses) agreed that carriers should be required to keep records of explosives that they transport in order to have a means of tracing explosives right through the supply chain. Some respondents however, whilst agreeing with the need to have a continuous audit trail, felt that this should not lead to the duplication of documentation just for the sake of keeping records.
• We asked consultees whether the ability to record “logistical information designed by the manufacturer” would be beneficial to them. There was a mixed response; however, the majority (46%) felt that this would not be beneficial. Most of those organisations responding felt that the information should be limited to e.g. batch code and date, or product code, manufacturer code, and state of origin. Any further information was not considered beneficial and could be confusing.     
• Regarding the content of Schedule 2, 46% of respondents felt that the schedule should be expanded, as certain explosives relevant to their particular industry were not included. Others felt that further guidance was required in relation to packaging. One point raised by a number of respondents was that whilst Schedule 2 mentions that electronic tags should be inert, the tag readers would not be.
• With regards the costs in the initial impact assessment, 55% of those responding felt that the costs were under-represented, whilst the remaining 45% did not express any particular view or did not answer the question. The impact assessment has been revised accordingly.

Annex 1

List of consultees

The following organisations were notified about the publication of this document:

• Association of Chief Police Officers
• Association of Chief Police Officers (Scotland)
• Confederation of British Industries
• CBI Explosives Industry Group and member companies
• British Pyrotechnic Association
• Mineral Products Association
• British Aggregates Association
• Coal Producers Association (COALPRO)
• UK Coal
• Mining Association UK
• Federation of Small Mines in Great Britain
• Union of Democratic Mineworkers
• Trades Union Congress
• Institute of Explosives Engineers
• Department for Business Innovation and Skills
• Home Office
• Ministry of Defence
• Welsh Assembly
• Scottish Executive
• Northern Ireland Office
• Gun Trade Association
• British Shooting Sports Council
• British Association for Shooting and Conservation
• American Civil War Society
• Construction Federation
• Road Haulage Association
• Police Service of Northern Ireland
• Health & Safety Executive, Northern Ireland