The Manufacture and Storage of Explosives Regulations (Northern Ireland) 2006

PART I INTRODUCTION

Citation and commencement

1.  These Regulations may be cited as the Manufacture and Storage of Explosives Regulations (Northern Ireland) 2006 and shall come into operation on 1st December 2006.

Interpretation

2.—(1) In these Regulations—

“the 1875 Act” means the Explosives Act 1875(1);

“the 1978 Order” means the Health and Safety at Work (Northern Ireland) Order 1978;

“ammonium nitrate blasting intermediate” means non-sensitised mixtures of, primarily, ammonium nitrate and other substances which are not themselves explosive, such as oxidisers and fuels, intended to produce a blasting explosive only after further processing prior to use and classified in accordance with the United Nations Recommendations as falling within Class 5.1;

“black powder” means an intimate mixture, with or without sulphur, of charcoal or other carbon with potassium nitrate or sodium nitrate, whether the mixture is in meal, granular, compressed or pelletised form, being an explosive substance allocated in accordance with the United Nations Recommendations the U.N. nos. 0027 or 0028;

“centre point”, in relation to a store or a building, means the centre point of the store or building determined as far as is reasonably possible;

“Class 1” means Class 1 in respect of explosives or the classification of dangerous goods as set out in the United Nations Recommendations;

“desensitised explosive” means—

(a)

a solid explosive substance which has been wetted with water or alcohol or diluted with one or more other substances; or

(b)

a liquid explosive substance which has been dissolved or suspended in water with one or more other substances,

to form a homogeneous mixture so as to suppress its explosive properties and which, without that treatment, would be classified in accordance with the United Nations Recommendations as falling within Class 1;

“disposes”, in relation to explosives and explosive-contaminated items, means destroying the explosives or explosive-contaminated items or otherwise rendering them harmless;

“explosive” means—

(a)

any explosive article or explosive substance which would—

(i)

if packaged for transport, be classified in accordance with the United Nations Recommendations as falling within Class 1; or

(ii)

be classified in accordance with the United Nations Recommendations as—

(aa)

being unduly sensitive or so reactive as to be subject to spontaneous reaction and accordingly too dangerous to transport; and

(bb)

falling within Class 1; or

(b)

a desensitised explosive,

but it does not include an explosive substance produced as part of a manufacturing process which thereafter reprocesses it in order to produce a substance or preparation which is not an explosive substance;

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

“explosive substance” means a substance or preparation, not including a substance or preparation in a solely gaseous form or in the form of vapour, which is—

(a)

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

(b)

designed to produce an effect by heat, light, sound, gas or smoke, or a combination of any of these as a result of a non-detonative, self-sustaining, exothermic chemical reaction;

“firearm” and “firearms dealer” have the meaning given to them by Article 2(2) of the Firearms (Northern Ireland) Order 2004(2);

“fireworks” means the explosive articles allocated in accordance with the United Nations Recommendations any of the U.N. nos. 0333 to 0337;

“harbour” means a harbour which is within the jurisdiction of a harbour authority and includes—

(a)

the areas of water within the jurisdiction of that harbour authority; and

(b)

land within the jurisdiction of, or occupied by, the harbour authority and used in connection with the loading and unloading of ships,

but does not include the areas of water which are within the jurisdiction not only of the harbour authority but also of another harbour authority and which are used primarily by ships using berths within the harbour of that other harbour authority;

“harbour authority” means—

(a)

in relation to a harbour area, the statutory harbour authority by reference to which that harbour area is defined; and

(b)

in relation to a harbour, any person being, or claiming to be—

(i)

the proprietor of that harbour; or

(ii)

entrusted with the duty, or invested with the duty, or invested with the power of improving, managing, maintaining or regulating that harbour;

“hazard type” means any of Hazard Type 1 explosive, Hazard Type 2 explosive, Hazard Type 3 explosive or Hazard Type 4 explosive;

“Hazard Type 1 explosive” means an explosive which, as a result of, or as a result of any effect of, the conditions of its storage or process of manufacture, has a mass explosion hazard;

“Hazard Type 2 explosive” means an explosive which, as a result of, or as a result of any effect of, the conditions of its storage or process of manufacture, has a serious projectile hazard but does not have a mass explosion hazard;

“Hazard Type 3 explosive” means an explosive which, as a result of, or as a result of any effect of, the conditions of its storage or process of manufacture, has a fire hazard and either a minor blast hazard or a minor projectile hazard, or both, but does not have a mass explosion hazard;

“Hazard Type 4 explosive” means an explosive which, as a result of, or as a result of any effect of, the conditions of its storage or process of manufacture, has a fire hazard or slight explosion hazard, or both, with only local effect;

“headquarters” means a headquarters for the time being specified in Schedule 2 to the Visiting Forces and International Headquarters (Application of Law) Order 1999(3);

“Her Majesty’s Forces” means any of the naval, military or air forces of the Crown, whether raised inside or outside the United Kingdom and whether any such force is a regular, auxiliary or reserve force, and includes any civilian employee of the Ministry of Defence attached to those forces;

“licence” means a licence for the manufacture or storage of explosives granted under regulation 11 and includes a varied licence;

“licensee” means a person who has been granted a licence under regulation 11 and includes a person to whom a licence is transferred and a person treated under regulation 20 as being licensed;

“manufacture” includes—

(a)

in relation to explosive articles, their repair, modification, disassembly or unmaking; and

(b)

in relation to explosive substances, their reprocessing, modification or adaptation,

but it does not include the packing, unpacking, re-packing, labelling or testing of explosives or the division of a quantity of explosives stored in bulk into smaller quantities and the placing of those smaller quantities into containers;

“mine” means an excavation or system of excavations, including all such excavations to which a common system of ventilation is provided, made for the purpose of, or in connection with, the extraction, wholly or substantially by means involving the employment of persons below ground, of minerals (whether in their natural state or in solution or suspension) or products of minerals;

“non-sensitised” means giving a negative test result when subjected to Test Series 8 of the Manual of Tests and Criteria, fourth edition(4), supporting the United Nations Recommendations;

“percussion caps” means items intended for use in small arms ammunition allocated in accordance with the United Nations Recommendations the U.N. nos. 0044, 0377 or 0378;

“police force”, for the purposes of regulations 3(3)(c) and (5)(b), 5(3)(d) and 26(6), includes—

(a)

any Harbour or Airport Police;

(b)

the Ministry of Defence Police; and

(c)

the Police Service of Northern Ireland;

“preparation” means a mixture of two or more substances or a solution of any substance or substances;

“propellant” means a deflagrating explosive used as a propellant in firearms;

“public consultation zone” means the area around the building where the manufacture of explosives takes place or is proposed to take place or the store or proposed store, which, from the centre point of the building or store, has a radius equivalent to double the greatest separation distance required by virtue of these Regulations to apply in the case of that store or building;

“pyrotechnic” means an explosive article or substance of a kind designed to produce an effect by heat, light, sound, gas or smoke, or a combination of any of these, as a result of non-detonative, self-sustaining, exothermic chemical reactions;

“quarry” has the meaning assigned to it by regulation 3 of the Quarries Regulations (Northern Ireland) 2006(5);

“registered” in relation to a person, means a person registered in respect of the storage of explosives under regulation 13 and includes a person to whom a registration is transferred and a person treated under regulation 20 as being registered;

“registration” means registration under regulation 13 and “certificate of registration” means a certificate issued under regulation 13(3);

“renewal of a licence” or “renewal of a registration” means respectively the grant of a licence or issue of a certificate of registration to follow a previous licence or certificate of registration without any amendment or gap in time;

“separation distance” means the distance between the building in which explosives are, or are to be, manufactured or the store and a building, or other place, in or at which people are, or are likely to be, present either all the time or from time to time;

“ship” includes every description of vessel used in navigation;

“shooters' powder” means—

(a)

black powder;

(b)

smokeless powder; or

(c)

any other substance or preparation based on potassium nitrate or nitrocellulose, whether in powder, pelletised or granular form, used, or to be used, as a propellant;

“site” means the whole area under the control of the same person and for these purposes—

(a)

all places adjoining each other under the control of the same person shall be treated as a whole area; and

(b)

two or more areas under the control of the same person separated only by a road, railway or inland waterway shall be treated as a whole area;

“small arms ammunition” means the explosive articles allocated in accordance with the United Nations Recommendations the U.N. nos. 0012, 0014 or 0055 which are intended exclusively for use in small arms;

“smokeless powder” means an explosive substance allocated in accordance with the United Nations Recommendations the U.N. nos. 0160 or 0161;

“a store” means a building, enclosed area or metal structure in which explosives are, or are to be, stored;

“substance” means any natural or artificial substance whether in solid or liquid form or in the form of a gas or vapour;

“U.N. no.” means United Nations Serial Number, that is to say one of the four-digit numbers devised by the United Nations as a means of identification of types of explosives in accordance with the United Nations Recommendations;

“United Nations Recommendations” means the United Nations Recommendations on the Transport of Dangerous Goods (based on those originally prepared by the United Nations Committee of Experts on the Transport of Dangerous Goods considered by the Economic and Social Committee of Experts at its twenty-third session (Resolution 645G (XXIII) of 26 April 1957))(6) as revised or reissued from time to time;

“visiting force” has the same meaning as it does for the purpose of any provision of the Visiting Forces Act 1952(7);

“water-based”, in relation to explosives, means explosives which are based on water and ammonium nitrate and allocated in accordance with the United Nations Recommendations the U.N. no. 0241;

“wholly-owned subsidiary” has the same meaning as it is given by Article 4(2) of the Companies (Northern Ireland) Order 1986(8).

(2) For the purposes of these Regulations, and subject to regulation 3(6), the manufacture or storage of ammonium nitrate blasting intermediate shall be deemed to be the manufacture or storage of an explosive.

(3) For the purpose of measuring any distance required to be a separation distance by virtue of these Regulations, the distance to be measured shall be the distance between the outside edge of the building in which the explosives are, or are to be, manufactured or the store and the nearest point of the building, or other place, to which the separation distance applies.

(4) Any reference in these Regulations to the quantity of an explosive shall be construed as a reference to the net mass of explosive substance and, in the case of any pyrotechnic article, the net mass of the explosive shall, for the purposes of these Regulations, be deemed to be one quarter of the gross mass of the pyrotechnic article or, where the manufacturer, importer or supplier specifies a different net mass on the pyrotechnic article, its packaging or a document accompanying the pyrotechnic article, that quantity.

(5) For the purposes of these Regulations and subject to paragraph (6), “storage” in relation to explosives means their possession for any period after their manufacture except for any period during which they are being—

(a) prepared at any place for use at that place; and

(b) transported beyond the place where they are stored.

(6) Subject to paragraph (7), where, during any transport of any explosive beyond the place where it is stored, that explosive is, or is to be, kept at any place for more than 24 hours, that keeping shall be treated as storage within the meaning of these Regulations and the provisions of these Regulations shall apply to that keeping accordingly, notwithstanding any application of the provisions of the Carriage of Explosives Regulations (Northern Ireland) 2006(9) to that transport.

(7) Paragraph (6) shall not apply to explosives in respect of which there is in existence an explosives licence granted under regulation 8(1) of the Explosives in Harbour Areas Regulations (Northern Ireland) 1995(10).

(8) Any reference in the definitions in this regulation of “desensitised explosive”, “explosive substance”, “pyrotechnic” or “substance” to liquid, gas, gaseous form or vapour means, respectively, liquid, gas, gaseous form or vapour at normal atmospheric temperature and pressure.

Application

3.—(1) Regulations 4 to 24 shall not apply to—

(a) any activity to which regulations 3(2) and (3), 6 to 8, and 19 to 24 of the Explosives in Harbour Areas Regulations (Northern Ireland) 1995 apply;

(b) any activity to which the Carriage of Explosives Regulations (Northern Ireland) 2006 apply, apart from any activity which is to be treated as storage by virtue of regulation 2(6);

(c) the master or crew of a ship or to the employer of such persons in respect of the normal shipboard activities of a ship’s crew which are carried out solely by the crew under the direction of the master and in this sub-paragraph the reference to the normal shipboard activities of a ship’s crew shall include—

(i) the construction, reconstruction or conversion of a ship outside, but not inside, Northern Ireland; and

(ii) the repair of a ship except repair when carried out in dry dock;

(d) the transport of explosives by air; and

(e) an offshore installation within the meaning of regulation 3 of the Offshore Installations and Pipeline Works (Management and Administration) Regulations (Northern Ireland) 1995(11).

(2) Regulation 8 shall not apply to—

(a) a constable in the execution of his duties;

(b) an inspector appointed under section 53 of the 1875 Act or Article 21 of the 1978 Order in the performance of his functions; and

(c) an officer of Revenue and Customs in the performance of his functions.

(3) Regulation 10 shall not apply to—

(a) an inspector appointed under Article 21 of the 1978 Order;

(b) Commissioners for Her Majesty’s Revenue and Customs;

(c) a police force; and

(d) a person employed as mentioned in section 4 of the Police (Northern Ireland) Act 2000(12) who is duly authorised in writing by the Chief Constable to store explosives.

(4) Regulations 5 and 9 to 20 shall not apply to the manufacture or storage of explosives at any site under the control of the Secretary of State for Defence, or held for the purpose of a visiting force or headquarters, under a scheme approved by him which—

(a) provides for their safe manufacture and storage; and

(b) prescribes—

(i) separation distances; or

(ii) a combination of separation distances and other safety measures,

which are designed to ensure a standard of safety which is equivalent to that ensured by the separation distances prescribed by regulation 5 and Schedule 1.

(5) Regulations 5 to 20 and 23 shall not apply to explosives—

(a) seized by a constable in the execution of his duties;

(b) received by a police force from a member of the public; or

(c) which, for reasons of public safety or protection of property, are undergoing ordnance disposal by persons under the direction of a member of Her Majesty’s Forces or civilian employees of the Ministry of Defence authorised in writing by the Secretary of State for Defence to carry out ordnance disposal.

(6) In relation to the application of these Regulations to ammonium nitrate blasting intermediate by virtue of regulation 2(2), regulation 10 shall not apply to the storage of ammonium nitrate blasting intermediate.

(7) These Regulations shall not derogate from the provisions of the Explosives Act (Northern Ireland) 1970(13) or any regulations made under it.

PART II SAFETY REQUIREMENTS

Fire and explosion measures

4.—(1) Any person who manufactures or stores explosives shall take appropriate measures—

(a) to prevent fire or explosion;

(b) to limit the extent of fire or explosion including measures to prevent the spreading of fires and the communication of explosions from one location to another; and

(c) to protect persons from the effects of fire or explosion.

(2) For the purpose of paragraph (1), the reference to the manufacture or storage of explosives shall be deemed to include a reference to any handling, on-site transport and testing of explosives which are associated with that manufacture or storage.

(3) In this regulation, “fire or explosion” means unplanned fire or explosion at the site of manufacture or storage.

Separation distances

5.—(1) Subject to paragraphs (2) and (3), every person who stores explosives at a site shall ensure that the relevant separation distance prescribed by Schedule 1 is maintained between a store and a building or other place not within that site to which that Schedule applies.

(2) Paragraph (1) shall not apply to desensitised explosives or explosives which are stored under a licence granted in cases where the public hearing procedure was required pursuant to regulation 11(4).

(3) Subject to paragraph (4), paragraph (1) shall not apply to the storage of explosives where the total quantity of explosives stored at a site, excluding in the case of sub-paragraph (b) any quantity of small arms ammunition, does not exceed—

(a) 100 grams;

(b) 30 kilograms of shooters' powder and 300 grams of percussion caps;

(c) 200 detonators and—

(i) 5 kilograms of water-based explosive and detonating cord; or

(ii) 5 kilograms of water-based explosive or detonating cord; or

(d) 4 kilograms of explosive kept by a police force or the Northern Ireland Prison Service for the purpose of training dogs used for the detection of explosives,

and the explosives are stored in a safe and suitable place with all due precautions for public safety.

(4) For the purposes of paragraph (3), a person may not rely on more than one of the exceptions listed in sub-paragraphs (a) to (d) of that paragraph.

(5) Every person to whom the duty under paragraph (1) applies shall ensure that the separation distance referred to in paragraph (6) is maintained between a store and any building on the site on which the store is situated which is used either for accommodation or for work but not including any building used for work which is normally unoccupied by any person and is not a store.

(6) The separation distance referred to in paragraph (5) is that which is equal to half the relevant separation distance determined in accordance with Schedule 1.

(7) Every person, in a case to which regulation 11(4) applies, who is granted a licence to manufacture or store explosives, or whose licence is varied in a way which affects the separation distances required to be maintained, shall ensure that within 28 days of the grant or variation the Department of the Environment is given a plan of the site and its immediate surrounding area showing the separation distances required to be maintained pursuant to the licence.

Disposal of explosives and decontamination of explosive-contaminated items

6.—(1) Any person who disposes of explosives shall ensure, so far as is reasonably practicable, that they are disposed of safely.

(2) Any person who decontaminates explosive-contaminated items shall ensure, so far as is reasonably practicable, that they are decontaminated safely.

Employment of young persons

7.  A person who manufactures or stores explosives shall not permit a person—

(a) under the age of 16 years to work in that manufacture or storage; or

(b) under the age of 18 years to work in that manufacture or storage except under supervision.

Unauthorised access

8.—(1) A person shall not—

(a) without the permission of the occupier, enter—

(i) any building used for the manufacture of explosives in or at a site;

(ii) any store in or at a site; or

(iii) any site with clearly marked boundaries at which explosives are manufactured or stored; or

(b) having so entered, refuse to leave that site when requested to do so by a constable or the occupier, his employee or agent.

(2) Where following a request referred to in paragraph (1)(b) the person who has entered that site without permission refuses to leave it, a constable or the occupier, his employee or agent may remove that person from the site using reasonable force, if necessary.

(3) “Enter” for the purpose of this regulation includes entering onto a roof of a building in which explosives are manufactured or a store.

PART III LICENSING AND REGISTRATION REQUIREMENTS

Explosives not to be manufactured without a licence

9.—(1) Subject to paragraph (2), a person shall not manufacture explosives unless he holds a licence for that manufacture and complies with the conditions of that licence.

(2) Paragraph (1) shall not apply to—

(a) the manufacture of explosives for the purpose of laboratory analysis, testing, demonstration or experimentation (but not for practical use or sale) where the total quantity of explosives being manufactured at any time does not exceed 100 grams;

(b) the making or unmaking of small arms ammunition, or the preparation of cartridges for use with firearms which are to be used at historical re-enactment events, where the total quantity of primer and propellant used at any one time does not exceed 2 kilograms and, for these purposes, the quantity of propellant used includes propellant removed from cartridges;

(c) the preparation of shot firing charges in connection with their use;

(d) the preparation, assembly, disassembly and fusing of firework displays at the place of intended use;

(e) the preparation, assembly and fusing of fireworks, in quantities of no more than 10 kilograms at a time, at a site in relation to which a person holds a licence or certificate of registration for the storage of explosives, for the purpose of a firework display to be put on by that person;

(f) the preparation, assembly and fusing of explosives commissioned for use in theatrical, television or cinematic special effects;

(g) the reprocessing of an explosive to form a pharmaceutical product which is not in itself an explosive;

(h) the mixing for immediate use of—

(i) ammonium nitrate with fuel oil; or

(ii) ammonium nitrate blasting intermediate with another substance,

at a mine or quarry, to produce an explosive which is not cap-sensitive;

(i) the use of desensitised explosives in the manufacture of products which are not in themselves explosives; or

(j) the manufacture of explosives by a company which is a wholly-owned subsidiary of another company at a site in relation to which that other company holds a licence to manufacture explosives and that manufacture by the wholly-owned subsidiary is in accordance with the conditions of that licence.

(3) In this regulation—

(a) in paragraph (2)(c), “shot firing charges” means charges used in shot firing operations; and

(b) in paragraph (2)(h), “cap-sensitive” means an explosive which gives a positive result when tested in accordance with the Series 5(a) test of the Manual of Tests and Criteria, fourth edition(14) supporting the United Nations Recommendations.

Explosives not to be stored without a licence or certificate of registration

10.—(1) Subject to paragraph (2), a person shall not store explosives unless he holds a licence or certificate of registration for their storage and complies with the conditions of that licence or certificate of registration.

(2) Paragraph (1) shall not apply to—

(a) the storage of one or more of the following—

(i) no more than 10 kilograms of black powder;

(ii) no more than 5 kilograms of—

(aa) shooters' powder;

(bb) any explosive or combination of explosives listed in Schedule 2; or

(cc) a combination of shooters' powder and any one or more of the explosives listed in Schedule 2;

(iii) no more than 15 kilograms of percussion caps or small arms ammunition or a mixture of them;

(b) the storage of no more than 7 kilograms of—

(i) Hazard Type 1 or 2 explosives; or

(ii) a combination of Hazard Type 1 or 2 explosives with explosives of another hazard type,

for no longer than 24 hours;

(c) the storage of Hazard Type 3 or 4 explosives for no longer than 24 hours;

(d) the storage of no more than 100 kilograms of—

(i) Hazard Type 3 explosives consisting of fireworks;

(ii) shooters' powder; or

(iii) a combination of shooters' powder and Hazard Type 3 and 4 explosives consisting of fireworks,

provided that the explosives are stored for no longer than 3 days in their place of intended use;

(e) the storage of—

(i) no more than 250 kilograms of Hazard Type 4 explosives provided that the explosives are stored for no longer than 3 days in their place of intended use; or

(ii) no more than 50 kilograms of Hazard Type 4 explosives consisting solely of fireworks, provided that the fireworks are stored for no longer than 21 days and are not for sale or for use at work;

(f) the storage of desensitised explosives which have been allocated in accordance with the United Nations Recommendations the U.N. nos. 1336, 1337, 2059, 2555, 2556 or 2557; or

(g) the storage of explosives by a company which is a wholly-owned subsidiary of another company at a site in relation to which that other company holds a licence or certificate of registration to store explosives and that storage by the wholly-owned subsidiary is in accordance with the conditions of that licence or certificate of registration.

(3) For the purpose of paragraph (2)—

(a) no more than one of the exceptions listed in sub-paragraphs (a) to (e) of paragraph (2) may be relied on in relation to explosives stored at the same site at the same time, irrespective of the person who is storing them; and

(b) the quantities referred to in that paragraph are the maximum quantities of the explosives or explosive articles to which they respectively relate which may be present at a site at any one time.

Grant of licences

11.—(1) An application for a licence shall be made to the Secretary of State on a form approved for the purpose of this regulation by him.

(2) A licence, including the renewal of a licence, may be granted—

(a) for such period not exceeding 3 years; or

(b) for any period or without a time limit—

(i) in a case to which paragraph (4) applies; or

(ii) if the application relates only to the manufacture of ammonium nitrate blasting intermediate,

as the Secretary of State determines.

(3) Subject to paragraph (4), the Secretary of State shall grant a licence unless any of the grounds for refusing to do so referred to in regulation 14 apply.

(4) Subject to paragraph (5), the procedure set out in regulation 12 for holding a public hearing shall apply.

(5) Paragraph (4) shall not apply to an application for a licence—

(a) to store no more than 2000 kilograms of explosives to which paragraph (a)(i) or (b) of the definition of “explosive” in regulation 2(1) applies;

(b) to store no more than 2000 kilograms of explosives to which paragraph (a)(i) or (b) of the definition of “explosive” in regulation 2(1) applies at a mine or within a harbour;

(c) relating to the manufacture of explosives by means of on-site mixing;

(d) relating to the manufacture of ammonium nitrate blasting intermediate; or

(e) relating to the manufacture or storage of explosives by a person who wishes to carry on such manufacture or storage within a part of a site where another person already holds a licence for the manufacture or storage of explosives, and either—

(i) the application relates to manufacturing or storage activities which would be permitted at that part of the site under the existing licence; or

(ii) in the opinion of the Secretary of State, no significant new health and safety issues are raised by the application.

(6) The conditions of every licence shall specify—

(a) the site and, within it, the places where the explosives may be manufactured or stored;

(b) except in the case of desensitised explosives, the hazard type; and

(c) the maximum quantity of explosives which may be manufactured, stored or otherwise present, as the case may be, at any one time at or in any place so specified.

(7) In addition to the matters specified in paragraph (6), a licence which is granted by the Secretary of State in cases where the public hearing procedure was required pursuant to paragraph (4)—

(a) shall be granted subject to such conditions as the Secretary of State considers appropriate which relate to separation distances;

(b) may be granted subject to such conditions as the Secretary of State considers appropriate which relate to—

(i) the construction, siting or orientation of any building (including any protective works around the building) where the activity will be undertaken; and

(ii) the activities which may be undertaken in specified buildings,

and in this sub-paragraph—

“activity” means the manufacture or storage of explosives and it includes any handling, on-site transport, testing and disposal of explosives; and

“construction” means the materials used in, and the design of, a building; and

(c)

may, where the application was for both the manufacture and storage of explosives at the same site, cover both that manufacture and storage for the purposes of, respectively, regulations 9 and 10.

(8) In addition to the matters specified in paragraphs (6) and (7), where the Secretary of State grants a licence which relates to the storage of pyrotechnic articles at any site where those articles are to be offered for sale, the Secretary of State may attach such conditions to the licence as he considers appropriate which relate to—

(a) the storage and display of those pyrotechnic articles in areas where they can be purchased;

(b) the prevention of risk of fire arising in respect of those pyrotechnic articles; and

(c) the safe use of fire escapes in that area.

(9) A licence granted pursuant to this regulation shall be in a form approved by the Secretary of State.

(10) In this regulation, “on-site mixing” means the mixing at any place of non-explosive substances or preparations to form an explosive for immediate use at that place.

Public hearing

12.—(1) Subject to regulation 14, where this regulation applies by virtue of regulation 11(4), the Secretary of State shall issue to the applicant a draft licence containing the conditions which the Secretary of State proposes to attach to the licence.

(2) Within 28 days of receiving the draft licence from the Secretary of State, the applicant shall—

(a) have published in a newspaper circulating in the locality where he proposes to manufacture or store explosives a notice which shall—

(i) give details of the application;

(ii) invite representations on matters affecting the health and safety of persons other than the applicant’s employees to be made in writing to the Secretary of State within 28 days of the date that the notice is first published; and

(iii) give an address, within the district council area where the manufacture or storage of explosives is proposed, at which a copy of the application and draft licence may be inspected and the address of the Secretary of State to which any representations must be sent; and

(b) take other reasonable steps to give that information to every person who resides, owns land or carries on a business or other undertaking within the public consultation zone.

(3) The Secretary of State shall send a copy of any representations referred to in paragraph (2)(a)(ii) to the applicant as soon as reasonably practicable after receiving them.

(4) In considering the representations, the Secretary of State shall have regard only to health and safety matters.

(5) Subject to paragraph (6), the Secretary of State shall, before deciding whether to grant a licence, hold a public hearing within 4 months of the date of his issuing to the applicant the draft licence referred to in paragraph (1).

(6) If, after the period of 28 days referred to in paragraph (2)(a)(ii) has elapsed, the Secretary of State has not received objections to the application, or has only received objections which in his opinion are frivolous or immaterial, he may grant a licence without holding a hearing.

(7) Not less than 28 days before the hearing referred to in paragraph (5), the Secretary of State shall have published in a newspaper circulating in the locality where the applicant proposes to manufacture or store explosives a notice which shall give details of the date, time and place fixed for the hearing and he shall send a copy of the notice to—

(a) the applicant; and

(b) any person who made representations referred to in paragraph (2)(a)(ii),

within 7 days from its publication.

(8) The Secretary of State shall notify the applicant of his decision within 7 days of making it.

(9) The applicant shall pay a fee to the Secretary of State for the performance by him of his functions under this regulation, which fee shall not exceed the sum of the costs reasonably incurred by the Secretary of State in performing those functions.

(10) In this regulation, “applicant” means the applicant for a licence or variation of a licence and “application” means his application.

Registration in relation to storage

13.—(1) Subject to paragraph (5), a person who wishes to store within one site at any one time no more than—

(a) 30 kilograms of explosives of any hazard type;

(b) 100 kilograms of Hazard Type 3 explosives;

(c) 100 kilograms of a combination of Hazard Type 3 explosives with explosives of Hazard Type 4;

(d) 250 kilograms of Hazard Type 4 explosives; or

(e) 250 kilograms of small arms ammunition and percussion caps and 30 kilograms of shooters' powder,

may apply to the Secretary of State on a form approved for the purpose of this regulation by him to be registered in respect of that storage.

(2) The Secretary of State shall register the applicant unless any of the grounds for refusing to do so referred to in regulation 14 apply.

(3) Where the Secretary of State registers an applicant, he shall issue to the applicant a certificate of registration, in a form approved for the purpose of this regulation by him.

(4) A registration, including the renewal of a registration, may be issued for such period not exceeding 3 years as the Secretary of State determines.

(5) For the purpose of paragraph (1), no more than one of the exceptions listed in sub-paragraphs (a) to (e) of paragraph (1) shall apply to explosives stored at the same site at the same time, irrespective of the person who is storing them.

(6) Where the registration relates to the storage of Hazard Type 4 pyrotechnic articles which are to be offered for sale at the site, the quantity of those pyrotechnic articles which may be kept for any period of time in a sales area at that site shall be restricted to the quantity determined in accordance with Schedule 3 and for these purposes and those of Schedule 3, “sales area” means an area where Hazard Type 4 pyrotechnic articles are sold and to which any person who is not an employee of the person who is registered in respect of the storage of those pyrotechnic articles has access.

(7) An application for registration may not be made in respect of the storage of explosives at a site at which the manufacture of explosives also takes place or is to take place except if a licence to manufacture explosives is not required by virtue of regulation 9(2).

(8) The quantities referred to in paragraph (1) are the maximum quantities of explosives or explosive articles to which they respectively relate which may be present at a site at any one time.

Refusal of licences, registration and draft licences

14.—(1) Subject to regulation 17, the Secretary of State shall—

(a) refuse an application for a licence or registration; and

(b) where regulation 12(1) applies, refuse to issue the draft licence referred to in it,

where paragraph (2) applies.

(2) This paragraph applies when the Secretary of State is of the opinion that—

(a) the proposed site or, within it, any place in which explosives are proposed to be manufactured or stored is unsuitable for that manufacture or storage; or

(b) the applicant is not a fit person—

(i) to manufacture explosives, in the case of an application for a licence to do so; or

(ii) to store explosives, in the case of an application for a licence or registration to do so.

(3) A refusal by the Secretary of State, pursuant to paragraph (1), to issue the draft licence referred to in regulation 12(1) shall be treated for the purposes of these Regulations as a refusal of an application for a licence and the provisions of regulation 17 shall apply to a refusal to issue a draft licence as if the references in that regulation to “refuse an application for a licence” included refusing to issue a draft licence.

Variation of licences

15.—(1) The Secretary of State may vary a licence—

(a) where there is a change in circumstances such that the separation distances can no longer be maintained and a consequent reduction in the maximum quantity of explosives that may be stored is required;

(b) (in cases where the public hearing procedure was required pursuant to regulation 11(4) before the grant of the licence) where there is a material change in circumstances so that a variation is necessary to ensure safety; or

(c) in relation to any of the matters to which it relates, by agreement with the licensee.

(2) Subject to regulation 17, a licence may be varied on the grounds referred to in paragraph (1)(a) or (b) without the agreement of the licensee.

(3) In cases where the public hearing procedure—

(a) was required under regulation 11(4) before the grant of the licence; or

(b) would have been so required but for the operation of regulation 26(4) or (14),

the provisions of regulation 12 shall apply in respect of a proposed variation referred to in paragraph (4).

(4) A proposed variation for the purpose of paragraph (3) is one which—

(a) relates to changes in the permitted quantities or types of explosive as a result of which the licensee could be required to maintain a separation distance greater than the separation distance required before the variation and, in the opinion of the Secretary of State, significant new health and safety issues are raised by that proposed variation; or

(b) would remove the period of the licence so that it would be unlimited as to time,

and the Secretary of State shall refuse to vary a licence unless the procedure referred to in regulation 11(4) has been applied.

(5) In this regulation any reference to varying a licence includes varying its conditions.

Revocation of licences and registration

16.—(1) Subject to regulation 17, the Secretary of State may revoke a licence or registration—

(a) where it appears to him on information obtained by him after the issue of a certificate of registration that the site at which the explosives are stored is unsuitable for that storage;

(b) where there has been a change in circumstances such that the site or, within it, any place in which explosives are manufactured or stored to which the licence or registration relates is no longer suitable for that manufacture or storage;

(c) where it appears to him on information obtained by him after the grant of the licence or issue of the certificate of registration that the licensee or registered person is not a fit person—

(i) to manufacture explosives, in the case of a person licensed to do so; or

(ii) to store explosives, in the case of a person licensed or registered to do so; or

(d) by agreement with the licensee or registered person.

(2) A person whose licence or registration is revoked shall ensure that—

(a) all explosives are removed from a site as soon as is practicable after revocation of a licence or registration in respect of that site;

(b) those explosives are deposited at a site which is the subject of a licence or registration which permits any storage resulting from that depositing or that suitable arrangements are made for the disposal of those explosives; and

(c) the licence or certificate of registration is returned to the Secretary of State within 28 days of the date from which the revocation takes effect pursuant to regulation 17(4).

Further provisions concerning refusals, variations and revocations

17.—(1) Where the Secretary of State proposes to—

(a) refuse an application for a licence or registration;

(b) vary a licence without the agreement of the licensee; or

(c) revoke a licence or registration,

he shall, before taking any such action, notify the applicant, licensee or registered person, as the case may be, of his proposed course of action and afford that person the opportunity of making representations to him about it, within a period of 28 days from the date of the notification.

(2) Representations made for the purpose of paragraph (1) shall be made in writing.

(3) Where the Secretary of State decides to—

(a) refuse an application for a licence or registration;

(b) vary a licence without the agreement of the licensee; or

(c) revoke a licence or registration,

he shall provide in writing to the applicant, licensee or registered person, as the case may be, the reasons for his decision.

(4) Where the Secretary of State varies a licence without the agreement of the licensee or revokes a licence or registration, that variation or revocation shall take effect from a date to be determined by the Secretary of State which shall be a date after the 28 day period referred to in paragraph (1).

Transfer of licences and registration

18.—(1) A licence or registration may be transferred in writing by the licensee or registered person to any other person who wishes to manufacture or store explosives in place of the licensee or registered person.

(2) Where the licensee or registered person wishes to transfer the licence or registration, he shall notify the Secretary of State of the name and address of the proposed transferee at least 28 days before the licence or registration is transferred.

Fees

19.—(1) Where any application in relation to a provision specified in column 1 of Schedule 4 is made to the Secretary of State for a purpose specified in column 2 of that Schedule, the fee specified in the corresponding entry in column 3 of that Schedule shall be payable by the applicant to the Secretary of State, except that in the case of an application referred to in column 2 of that Schedule for a licence to manufacture ammonium nitrate blasting intermediate, or to vary any such licence, the fee referred to in column 3 of that Schedule as an amount per hour worked—

(a) shall be adjusted pro rata for a period worked of less than one hour; and

(b) shall be payable prior to notification of the result of the application.

(2) A fee shall be payable by the applicant to the Secretary of State where the Secretary of State requires any work to be carried out by his specialist inspectors in connection with any application in respect of which a fee is payable by virtue of paragraph (1) for any purpose specified in column 2 of Schedule 4 for which there is a corresponding entry in column 4 of that Schedule, and the fee for the work in connection with such purpose shall be that specified in the corresponding entry in column 4 of that Schedule for each hour worked, adjusted pro rata for a period worked of less than one hour, and such fee shall be payable prior to the notification of the result of the application.

(3) Schedule 4 shall have effect subject to the Notes to it.

(4) Where any fee is to be assessed on the reasonable cost to the Secretary of State of carrying out any work under paragraph (1), he shall on receipt of the application first prepare and send to the applicant an estimate of that cost and shall, before carrying out the work, obtain confirmation from the applicant that he wishes the work to be carried out on the basis of that estimate of cost.

(5) Nothing in this regulation shall be construed as making a fee payable by a person in any of the capacities referred to in Article 40(4) of the 1978 Order.

Death, incapacity or bankruptcy

20.—(1) If a licensee or registered person dies or becomes incapacitated, a person manufacturing or storing explosives in accordance with the terms of the first-named person’s licence or certificate of registration shall be treated as being licensed or registered in accordance with the first-named person’s licence or certificate of registration until either—

(a) the expiry of 28 days from such death or incapacity; or

(b) the grant or refusal of a new licence or registration,

whichever is the earlier.

(2) If a licensee or registered person becomes bankrupt or, in the case of a company, goes into liquidation or receivership or has a receiving order made against it, any receiver, trustee in bankruptcy or liquidator shall be treated as being the licensee or registered person and shall notify the Secretary of State of his appointment within 28 days from such appointment.

Register and retention of documents

21.—(1) The Secretary of State shall—

(a) maintain a register in accordance with Schedule 5; and

(b) keep a copy of any licence granted or certificate of registration issued by him (together with a copy of the application for the licence or registration) for as long as the licence or registration remains valid.

(2) For the purposes of this regulation and Schedule 5, in a case where regulation 3(4) applies disapplying regulations 5 and 9 to 20, any reference to—

(a) the Secretary of State or licensee shall be construed as a reference to the Secretary of State for Defence;

(b) a licence granted shall be construed as a reference to the scheme referred to in regulation 3(4); and

(c) separation distances shall be construed as a reference to the separation distances prescribed in the scheme approved by the Secretary of State for Defence.

Defences

22.—(1) In proceedings against a person for a contravention of regulation 9(1), which involves using a building or part of a building licensed for the manufacture of explosives for another manufacturing process not specified in the licence, it shall be a defence for that person to prove that—

(a) that use was temporary;

(b) that other process of manufacture involved explosive of the same, or a lower, hazard type than the explosives which the conditions of the licence permitted in that building or part of a building;

(c) the maximum quantity of explosives in that building or part of a building at any one time permitted under the conditions of the licence was not exceeded; and

(d) he informed the Secretary of State as soon as was reasonably practicable after the start of that use.

(2) In proceedings against a person for a contravention of regulation 10(1), it shall be a defence for that person to prove that the storage of explosives without a licence or certificate of registration, or in breach of a condition of a licence or certificate of registration, was caused by an emergency being an emergency which that person took all reasonable precautions and exercised all due diligence to avoid.

(3) In proceedings against a person for a contravention of regulation 10(1) where it is alleged against that person that the storage concerned was for a period longer than a period (“the permitted period”) referred to in regulation 10(2)(b) to (e), it shall be for that person to prove that the storage concerned was for no longer than the permitted period.

PART IV PROHIBITIONS CONCERNING CERTAIN EXPLOSIVES AND MISCELLANEOUS PROVISIONS

Prohibition concerning the manufacture and storage of certain explosives

23.—(1) Subject to paragraph (2), a pyrotechnic which consists of—

(a) sulphur; or

(b) phosphorus,

mixed with chlorate of potassium or other chlorates or which contains any such mixture shall not be manufactured or stored.

(2) This regulation does not apply to any pyrotechnic named in a list, approved by the Health and Safety Executive established under section 10 of the Health and Safety at Work etc Act 1974(15), of pyrotechnics falling within the description referred to in paragraph (1).

Prohibition concerning the acquisition and supply of fireworks

24.—(1) A person shall not—

(a) acquire more than 50 kilograms of fireworks unless he (“Person A”) or another person produces a valid licence or certificate of registration for the storage by Person A of those fireworks; or

(b) sell or otherwise transfer to any person (“Person B”) more than 50 kilograms of fireworks unless Person B produces a valid licence or certificate of registration for the storage by Person B of those fireworks, to the person selling or otherwise transferring the fireworks.

(2) This regulation does not apply to a person who is transporting fireworks on behalf of another person.

Power to grant exemptions

25.—(1) Subject to paragraph (2), the Secretary of State may, by a certificate in writing, exempt any person or class of persons or any explosive or class of explosives from any requirement or prohibition imposed by these Regulations, and any such exemption may be granted subject to such conditions and to a time limit and may be revoked by him in writing at any time.

(2) The Secretary of State 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 he proposes to attach to the exemption; and

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

he is satisfied that the health and safety of persons who are likely to be affected by the exemption will not be prejudiced in consequence of it.

(3) The Secretary of State for Defence may, in the interests of national security, by a certificate in writing, exempt any of Her Majesty’s Forces, any visiting force, any headquarters or any civilian employee or class of civilian employees of the Ministry of Defence from all or any of the requirements or prohibitions imposed by these Regulations and any such exemption may be granted subject to conditions and to a time limit and may be revoked by him in writing at any time.

Savings and transitional provisions

26.—(1) A licence, amending licence or store licence granted under section 8, 12 or 15 of the 1875 Act or a licence granted under regulation 5 of the Explosives Regulations (Northern Ireland) 1970(16) which was valid immediately before the relevant date shall be deemed to be a licence granted under regulation 11 and shall continue in operation, notwithstanding the repeal by these Regulations of those provisions, on its existing terms and conditions, subject to—

(a) any variation under regulation 15(1);

(b) any variation for the purpose of requiring the licensee to maintain a separation distance greater than a separation distance which was required before the variation; or

(c) its expiry on the date it was due to expire or its revocation under regulation 16, whichever is the sooner.

(2) A registration under section 21 of the 1875 Act which was valid immediately before the relevant date shall be deemed to be a registration under regulation 13 and shall continue in operation, notwithstanding the repeal by these Regulations of the said section 21, until the date it was due to expire or it is revoked, whichever is the sooner.

(3) Where the manufacture or storage of explosives at any place—

(a) was immediately before the relevant date exempt from—

(i) the provisions of the 1875 Act by virtue of section 97 of that Act(17); or

(ii) the requirement for a licence in respect of such manufacture or storage under that Act by virtue of an exemption certificate granted under the Explosives Act 1875 (Exemptions) Regulations (Northern Ireland) 1983(18); and

(b) is not manufacture or storage to which regulation 3(4) relates,

the person carrying on such manufacture or storage shall be deemed to hold a licence granted by the Secretary of State under regulation 11 with an expiry date of 1st December 2009.

(4) In a case to which paragraph (3) applies, regulation 11(4) shall not apply in relation to an application for a licence made to, and received by, the Secretary of State before 1st December 2009.

(5) In relation to the application of these Regulations to the manufacture of ammonium nitrate blasting intermediate by virtue of regulation 2(2), where a person is manufacturing any ammonium nitrate blasting intermediate on the relevant date, regulations 9, 11 and 14 to 22 shall not apply to that manufacture by that person until 1st December 2009.

(6) The requirements of regulation 5 and Schedule 1 shall not apply until 1st December 2009 to a police force storing explosives.

(7) The requirements of regulation 5 and Schedule 1 shall not apply until 1st December 2011 to a person who stores explosives in respect of which storage there is a deemed registration in operation on the relevant date.

(8) The requirements of regulation 5 and Schedule 1 shall not apply until 1st December 2009 to a person who stores explosives in respect of which storage there is a deemed licence in operation on the relevant date.

(9) A firearms dealer who has a Mode A deemed registration in operation on the relevant date may continue to store the quantity of explosives permitted by that registration until 1st December 2011.

(10) A person who—

(a) has a deemed licence in respect of the storage of explosives; or

(b) had a deemed licence which had expired and been replaced by a licence granted under regulation 11 in respect of that storage,

may apply at any time to the Secretary of State for a licence in respect of that storage, to replace that existing one, which provides for different separation distances to apply in respect of that storage from any which would otherwise apply on and after 1st December 2009 under regulation 5 and Schedule 1.

(11) The Secretary of State shall not grant a licence applied for pursuant to paragraph (10) unless he is satisfied that it would not be reasonably practicable for the applicant to comply with the separation distances required by regulation 5 and Schedule 1 to which the application relates.

(12) Where, on the relevant date, a person holds more than one deemed licence, each relating to the storage of explosive at separate places within the same site and the aggregate quantity of explosives allowed to be stored at that site pursuant to those deemed licences exceeds 2000 kilograms, that person shall apply before 1st December 2009 to the Secretary of State for a licence to replace those deemed licences for the storage of any explosives that he wishes to store at that site; and, on the date that a licence is granted pursuant to such an application, any such deemed licence shall be treated as revoked under regulation 16 as from that last mentioned date.

(13) Where, before the relevant date, a person would not have been required to apply for a licence under the 1875 Act because he was manufacturing or storing explosives in a part of premises already licensed under that Act to cover that manufacture or storage but, by virtue of regulation 9(1) or 10(1) he would need to hold a licence in respect of such manufacture or storage on and after that date—

(a) he shall be deemed to hold a licence granted under regulation 11 containing the same conditions as the existing licence until 1st December 2009 or the expiry of that existing licence, whichever is the sooner; and

(b) he shall have until that earliest date to apply for a licence under these Regulations in respect of such manufacture or storage carried on by him after that date.

(14) Regulation 11(4) shall not apply in relation to an application for a licence to which paragraph (10), (12) or (13) relates, except where—

(a) if the licence applied for were to be granted, it would result in an increase in the quantity, or a change in the hazard type, of any explosive presently permitted at the site under a deemed licence; or

(b) the application is received by the Secretary of State on or after 1st January 2007.

(15) Where an application for a licence pursuant to section 6 of the 1875 Act(19) has been made to, and received by, the Secretary of State before the relevant date and the application has not been refused nor has a licence been granted by that date, the application shall be deemed to be an application for a licence under these Regulations and the provisions of these Regulations shall apply to the application, subject to paragraph (16) in relation to the application of any requirements of regulations 11(4) and 12 to any such licence application.

(16) In relation to the application of the requirements of regulations 11(4) and 12 to an application to which paragraph (15) relates—

(a) a draft licence approved by the Secretary of State pursuant to section 6 of the 1875 Act before the relevant date shall be deemed to be a draft licence for the purpose of regulation 12(1);

(b) where notice under section 7 of the 1875 Act in respect of the application and of the time and place at which the Secretary of State will be prepared to hear the applicant has been published before the relevant date—

(i) the provisions of regulation 12(2) and (7) relating to notices shall not apply; and

(ii) if the hearing to which the notice relates would be held or continue to be held on or after the relevant date, it may continue to be so held and it shall be deemed to be a hearing for the purpose of regulation 12;

(c) where a notice under section 7 of the 1875 Act referred to in sub-paragraph (b) has not been published before the relevant date, regulation 12(2) shall have effect as if after “paragraph (2)” there were inserted “or within 28 days of the coming into operation of these Regulations, whichever is the later,”; and

(d) a hearing held by the Secretary of State pursuant to section 7 of the 1875 Act before the relevant date shall be deemed to be a public hearing for the purposes of regulations 11(4) and 12 and the Secretary of State shall grant a licence under regulation 11 which accords with the draft licence approved by him pursuant to section 6 of the 1875 Act, subject to any amendments approved by him following representations made at that hearing.

(17) An application for an amending licence under section 12 of the 1875 Act which is made to and received by, but not decided by, the Secretary of State before the relevant date, shall be deemed to be an application for a variation of a licence under these Regulations and the provisions of these Regulations shall apply to the application accordingly.

(18) Despite the repeal by these Regulations of section 40 of the 1875 Act—

(a) paragraphs (4) and (8) of that section shall continue to apply; and

(b) paragraph (9) of that section (as it had effect before the commencement of Schedule 4 to the Placing on the Market and Supervision of Transfers of Explosives Regulations (Northern Ireland) 1993(20)) shall continue to apply to acetylene as it applied before the commencement of these Regulations.

(19) Notwithstanding the repeal by these Regulations of section 50 of the 1875 Act, Order in Council (No. 9) of 27th November 1875 relating to the Sale of Explosive(21) shall continue in operation.

(20) For the purpose of this regulation—

(a) “deemed licence” means—

(i) any licence, amending licence or store licence deemed by virtue of paragraph (1) to be a licence granted under regulation 11; and

(ii) a licence deemed to be held by a person pursuant to paragraph (3);

(b) “deemed registration” means a registration deemed by virtue of paragraph (2) to be a registration under regulation 13;

(c) “licence under the 1875 Act” in paragraph (13) means either—

(i) a licence; or

(ii) an amending licence,

granted under section 8 or 12 of the 1875 Act and “licensed under that Act” and “existing licence” shall be construed accordingly; and

(d) “relevant date” means the date when these Regulations come into operation.

Repeals, revocations and amendments

27.—(1) The primary legislation specified in Part 1 of Schedule 6 and the secondary legislation specified in Part 2 of that Schedule shall be amended in accordance with the provisions of that Schedule.

(2) The primary legislation specified in column 1 of Part 1 of Schedule 7 shall be repealed to the extent specified in column 3 of that Schedule.

(3) The secondary legislation specified in column 1 of Part 2 of Schedule 7 shall be revoked to the extent specified in column 3 of that Schedule.

Peter Hain

One of Her Majesty’s Principal Secretaries of State

Northern Ireland Office

19th October 2006