The Ammonium Nitrate Materials (High Nitrogen Content) Safety Regulations 2003

Explanatory Note

(This note is not part of the Regulations)

These Regulations, which extend to Great Britain, implement article 7 of Council Directive 80/876/EEC (OJ No. L250, 23.9.80 p. 7) in providing for checks to be carried out by the enforcing authority to establish that any ammonium nitrate based fertiliser manufactured chemically and containing more than 28% by weight of nitrogen, and described as an `EC fertiliser' satisfies the detonation resistance test (regulation 8(2) and Schedule 2). They also introduce equivalent safety controls for other ammonium nitrate material, where the material contains more than 28% nitrogen by weight derived from ammonium nitrate unless a person who has such material (that is not sold or to be used as a fertiliser) has been granted an exemption certificate by the Health and Safety Executive (`HSE') in accordance with regulation 10.

All persons manufacturing (regulation 3), importing (regulation 4), supplying (regulation 5), or keeping (regulation 6) ammonium nitrate material, with the exception of final users of ammonium nitrate, are required to have in their possession either a detonation resistance certificate (Schedule 1), or unique numbered copy relating to the material under their control. Detonation resistance certificates can be invalidated by subsequent detonation resistance tests taken by enforcing authorities, and there are procedures for restoring validation (regulation 8). The certificate must contain at least the details set out in Schedule 1, to the effect that a sample has passed a detonation resistance test in accordance with the method and procedure as set out in Schedule 2. Representative samples taken from the ammonium nitrate material for the purpose of such a test, with the exception of those taken on behalf of an enforcing authority, must be certified as being representative by a sampling body. Transitional arrangements are dealt with in regulation 7.

Where ammonium nitrate material is imported from outside of the European Union it must be accompanied by a certificate to indicate that a sampling body has certified that a representative sample of the material has been taken and subjected to a detonation resistance test undertaken in a competent laboratory within the European Union not more than sixty days before the material arrives into Great Britain (regulation 4(2)), with delay permitted only as a consequence of circumstances beyond the importer’s control. Importers must send copies of test certificate and the details required in an identification document (regulation 4 (2)(d) and Schedule 3) to the Secretary of State for Environment, Food and Rural Affairs no later than five days before the anticipated date of arrival in Great Britain.

The procedure by which an inspector may take samples to test whether any material is incorrectly described by a person so as to take it outside the scope of these Regulations when the material is in fact relevant ammonium nitrate material covered by these Regulations is set out in regulation 9. Powers of inspectors are contained in section 20 of the Health and Safety at Work etc Act 1974 (`the 1974 Act').

Where material is not to be sold or used as a fertiliser, then a person, being either a manufacturer, importer, supplier or keeper (other than those keepers who are automatically excluded from the ambit of these Regulations in accordance with regulation 6 (2)) can apply in writing to HSE for an exemption certificate. Subject to a condition that the person making the application does not supply ammonium nitrate material for use as a fertiliser then HSE may issue an exemption certificate and can impose any further conditions as they see fit. HSE will keep a record of persons who have been granted such an exemption under regulation 10. Possession of such an exempting certificate will enable that person to be exempt from having to obtain a detonation resistance test in accordance with Schedule 2, and from having a detonation resistance certificate accompanying the material. Such an exempted person will still be required to keep records of the quantities of material supplied and details of the recipient in accordance with the various relevant regulations depending on them acting in their capacity as either manufacturer, importer, supplier or keeper.

For the purposes of enforcing all the provisions of these Regulations with the exception of HSE enforcing any conditions imposed by them for an exemption granted under regulation 10, the enforcing authority specified in regulation 11 is—

(1)

in England, the council of a county, or of a district where there is no county council, a London Borough Council or the Common Council of the City of London within their respective areas;

(2)

in Wales, each county council and each county borough council constituted by the Local Government (Wales) Act 1994;

(3)

in Scotland, every council constituted under the Local Government etc. (Scotland) Act 1994.

Regulation 12 provides for a defence for certain contraventions of these Regulations where reasonable precautions and due diligence have been observed. Offences for contravention of these Regulations are provided for in section 33 of the 1974 Act. The Commissioners of Customs and Excise are able to exercise their powers contained in both section 27A of the 1974 Act and in the Customs and Excise Management Act 1979 (1979 c. 2) over imported ammonium nitrate material (regulation 4 as read with sections 49 (1) (b) and 170 (2) of the 1979 Act).

These Regulations have been subject to consultation in accordance with section 50 of the 1974 Act, and were notified in draft to the European Commission on 31st December 2002 in accordance with Council Directive 98/34/EC, as amended by Council Directive 98/48/EC.