The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Carcinogens and Mutagens) Regulations 2007

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations implement, in relation to United Kingdom ships (as defined by regulation 2), Directive 2004/37/EC (O.J.No. L158, 30/04/2004 p. 50), which consolidates Directive 1990/394/EEC of 28th June 1990 on the protection of workers from the risks related to exposure to carcinogens and mutagens, as amended by Directives 1997/42/EC and 1999/38/EC and is an individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC, on the introduction of measures to encourage improvements in the safety and health of workers at work.

Regulation 3 sets out the precise application of the Regulations and applies regulations 21 and 23 also to non-United Kingdom ships when they are in UK waters (regulation 3(5)). Regulation 16 prescribes the persons whose duty it is to comply with the provisions of the Regulations.

In the case of an activity likely to involve the risk of exposure to carcinogens or mutagens, regulation 4 imposes particular duties on an employer in relation to the risk assessment which he is required to carry out under regulation 7 of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997 and regulation 5 and regulation 6 (which introduces Schedules 2 and 3) place employers under duties in relation to the reduction and replacement of carcinogens and mutagens and the prevention and reduction of exposure to them.

Regulation 7 specifies types of information which an employer, whose assessment under regulation 4 reveals risks to health or safety, must make available to the Secretary of State upon request.

Regulation 8 provides that, if an unforeseeable event or accident likely to result in an abnormal exposure of workers occurs, employers must inform the workers and take the precautions specified in regulation 8(2). Regulation 9 places a duty on employers to take various measures in respect of activities giving rise to a foreseeable risk of exposure. Regulations 10 and 11 require employers to take appropriate measures to restrict access to risk areas and as respects hygiene and individual protection in relation to any activity involving a risk of contamination.

Regulation 12 specifies the information and training that employers must provide for workers and regulation 13 imposes a general duty on employers to consult with workers or their representatives about matters covered by these Regulations. Regulation 14 requires employers to ensure that there are arrangements whereby workers for whom an assessment under regulation 4 reveals a risk to health are kept under health surveillance and makes detailed provision as to such surveillance. In particular the doctor or body undertaking health surveillance is required to have regard to the practical recommendations set out in Schedule 4. Regulation 15 requires employers to keep specified records for at least 40 years following the end of exposure to carcinogens or mutagens and to pass the records to the Secretary of State if they cease to trade.

Regulations 17 to 24 concern enforcement. By regulation 17 contraventions of these Regulations are made criminal offences. Provision is made for corporate offences (regulation 18) and the burden of showing that compliance with a duty in these Regulations is not reasonably practicable is on the defendant (regulation 19). Inspection and detention of United Kingdom and of non-United Kingdom ships are separately provided for (regulations 20 and 21). Regulation 22 provides that sections 258 to 260 of the Merchant Shipping Act 1995 are, for the purposes of these Regulations to apply in relation to Government ships. Provisions of the 1995 Act and of the Merchant Shipping (Port State Control) Regulations 1995 dealing with the enforcement of detention and with arbitration and compensation are also applied (regulations 23 and 24).

Regulation 25 prohibits the levying of any charge on a worker in respect of anything done or provided in pursuance of any specific requirement of these Regulations.

These Regulations are made under powers contained in the Merchant Shipping Act 1995, except in their application to Government ships (regulation 2(1)) where the power is provided by section 2(2) of the European Communities Act 1972.

A regulatory impact assessment and a transposition note have been prepared and a copy of each has been placed in the Library of each House of Parliament. Copies can be obtained from the Maritime and Coastguard Agency, Spring Place, 105 Commercial Road, Southampton SO15 1EG (telephone number 012380 329100).