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

Made: 29th October 2007

Laid before Parliament: 1st November 2007

Coming into force: 1st March 2008

The Secretary of State makes the following Regulations in exercise of the powers conferred upon her by section 2(2) of the European Communities Act 1972 and sections 85(1), (3), (5), (6) and (7) and 86(1) of the Merchant Shipping Act 1995 .

The Secretary of State is a Minister designated for the purpose of section 2(2) of the European Communities Act 1972 in relation to measures relating to the safety of ships, and the health and safety of persons in them.

In so far as the following Regulations are made in the exercise of powers conferred by section 85 of the Merchant Shipping Act 1995, the Secretary of State has in pursuance of section 86(4) of that Act consulted persons in the United Kingdom that she considered would be affected by her proposal to make these Regulations.

Citation and commencement

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These Regulations may be cited as the Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Carcinogens And Mutagens) Regulations 2007 and shall come into force on 1st March 2008.

Interpretation

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• (1) In these Regulations—

• “the Act” means the Merchant Shipping Act 1995;

• “carcinogen” means—a substance or mixture which meets the criteria for classification as a category 1A or 1B carcinogen set out in Annex I to the CLP Regulation whether or not the substance or mixture would be required to be classified under that Regulation; ora substance or mixture which is—referred to in Schedule 1; orreleased by a process referred to in Schedule 1 and is a substance hazardous to health;

• “CLP Regulation” means Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC and amending Regulation (EC) No 1907/2006, of which Articles 6(5), 11(3), 12, 14, 18(3)(b), 23, 25 to 29, 35(2) second and third sub-paragraphs and Annexes I to VII are to be read as amended from time to time;

• “employer” means a person by whom a worker is employed on a ship under a contract of employment;

• “exposure” means exposure to carcinogens or mutagens or to both;

• “the General Duties Regulations” means the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997 ;

• “health and safety” means the health and safety of persons whilst on board, or boarding or leaving, a ship;

• “ionising radiation” means the transfer of energy in the form of particles or electromagnetic waves of a wavelength of 100 nanometres or less or a frequency of 3 x 10¹⁵ hertz or more capable of producing ions directly or indirectly;

• “mutagen” means a substance or mixture which meets the criteria for classification as a category 1A or 1B germ cell mutagen set out in Annex I to the CLP Regulation, whether or not the substance or mixture would be required to be classified under that Regulation;

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

• “regulation 4 assessment” has the meaning given by regulation 4(2);

• “representative” in relation to workers means any person lawfully elected, chosen or designated to represent the workers in regard to issues about the safety and health protection of workers at work;

• “ship” includes hovercraft;

• “substance” means any natural or artificial substance whether in solid or in liquid form or in the form of a gas or vapour and includes micro-organisms;

• “trainees and apprentices” does not include persons who are training in a sail training vessel;

• “United Kingdom ship” means a ship which is—a United Kingdom ship within the meaning of s 85(2) of the Act;a Government ship within the meaning of section 308(4) of the Act; ora hovercraft registered under the Hovercraft Act 1968 ; and

• “United Kingdom waters” means the sea or other waters within the seaward limits of the territorial sea of the United Kingdom.

• (2) In these Regulations, “worker” means a person employed under a contract of employment, whether express or implied, and if express whether oral or in writing, to work on activities to which these Regulations apply and includes a trainee or apprentice so employed except a trainee to whom paragraph (3) applies.

• (3) This paragraph applies to a trainee training in a sailing vessel which is—

• (a) being used either—

• (i) to provide instruction in the principles of responsibility, resourcefulness, loyalty and team endeavour and to advance education in the art of seamanship; or

• (ii) to provide instruction in navigation and seamanship for yachtsmen; and

• (b) is being operated under one of the following codes—

• (i) the Large Commercial Yacht Code as set out in Merchant Shipping Notice No. 1792(M), issued by the Maritime and Coastguard Agency, an executive agency of the Department for Transport;

• (ii) the Code of Practice for the Safety of Small Commercial Sailing Vessels ;

• (iii) the Code of Practice for the Safety of Small Commercial Motor Vessels ; or

• (iv) the Code of Practice for the Safety of Small Vessels in Commercial Use for Sport or Pleasure Operating from a Nominated Departure Point .

• (4) In paragraph (3) each reference to a Code includes a reference to any document containing an amendment or replacement of that Code which is considered by the Secretary of State to be relevant from time to time.

• (5) In the application of these Regulations to a hovercraft, a reference to the master of a ship includes a reference to the captain of that hovercraft.

Application

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• (1) Without prejudice to regulation 5 of the General Duties Regulations and subject to paragraphs (2) to (6), these Regulations apply to activities on United Kingdom ships in which workers are or are likely to be exposed to carcinogens or mutagens as a result of their work.

• (2) Where—

• (a) a ship is being used in the course of public service activities or activities for the purpose of civil protection services; and

• (b) characteristics peculiar to those activities inevitably conflict with a provision of these Regulations,

that provision does not apply in relation to that ship to the extent of that conflict.

• (3) To the extent that a provision of these Regulations does not apply in relation to a ship because of paragraph (2) there is in relation to that ship a duty on the employer to ensure, so far as reasonably practicable, the health and safety of the workers engaged in that activity.

• (4) These Regulations do not apply—

• (a) to workers exposed only to ionising radiation; or

• (b) to, or in relation to the activities of, workers to which the Control of Substances Hazardous to Health Regulations 2002 or the Control of Substances Hazardous to Health Regulations (Northern Ireland) 2003 apply.

• (5) The provisions of the General Duties Regulations continue to apply to activities to which these Regulations apply; where these Regulations contain more stringent or specific provisions then such provisions apply.

• (6) This regulation (other than paragraph (1)) and regulations 21 and 23 apply in relation to ships which are not United Kingdom ships, when they are in United Kingdom waters.

• (7) In paragraph (2)—

• “civil protection services” includes the fire and rescue and ambulance services and search and rescue services provided by any other person;

• “public service activities” includes the activities of the armed forces, HM Coastguard, HM Revenue and Customs, immigration officers, police, prison officers and the security and intelligence services.

Assessment of health risks

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• (1) In the case of any activity likely to involve a risk of exposure, the employer shall—

• (a) in carrying out the risk assessment required by regulation 7 of the General Duties Regulations—

• (i) determine the nature, degree and duration of workers' exposure in order to make it possible to assess any risk to the workers' health or safety and to lay down the measures to be taken;

• (ii) in assessing the risk of such exposure take account of all routes of exposure, such as absorption into or through the skin; and

• (iii) give particular attention to any effects concerning the health and safety of workers at particular risk and take account of the desirability of not employing such workers in areas where they may come into contact with carcinogens or mutagens;

• (b) renew the assessment regularly and in any event when any change occurs in the conditions which may affect workers' exposure; and

• (c) supply the Secretary of State, if she so requests, with the information used for making the assessment.

• (2) An assessment carried out in accordance with this regulation, whether for the first time or by way of renewal, is in these Regulations called a regulation 4 assessment.

Reduction and replacement of carcinogens and mutagens

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• (1) The employer shall reduce the use of carcinogens and mutagens on United Kingdom ships where workers are employed to work, in particular by replacing them, in so far as it is technically possible, by substances, preparations or processes which, under their conditions of use, are not dangerous or are less dangerous to workers' health or safety.

• (2) The employer shall, upon request, submit the findings of his investigations to the Secretary of State.

Prevention and reduction of exposure

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• (1) Where the results of a regulation 4 assessment reveal a risk to workers' health or safety from their exposure, the employer shall take the steps required by this regulation to prevent that exposure.

• (2) The employer shall replace the carcinogen or mutagen as mentioned in regulation 5(1).

• (3) Where that is not possible the employer shall ensure that the carcinogen or mutagen is, so far as technically possible, manufactured or used in a closed system.

• (4) Where a closed system is not technically possible, the employer shall ensure that the level of exposure of workers is reduced to as low a level as is technically possible.

• (5) In no circumstances shall exposure exceed the limit values set out in the table in Schedule 2.

• (6) Wherever a carcinogen or mutagen is used, the employer shall, in addition to the measures required by the preceding provisions of this regulation, take all the measures specified in Schedule 3.

• (7) In this regulation and in Schedule 2 “limit value” means, unless otherwise specified, the limit of the time-weighted average of the concentration for a carcinogen or mutagen in the air within the breathing zone of a worker in relation to a specified reference period as set out in that Schedule.

Information for the Secretary of State

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Where a regulation 4 assessment reveals a risk to workers' health or safety, the employer who carried out the assessment shall, if so requested by the Secretary of State, make available to the Secretary of State appropriate information on—

• (a) the activities or industrial processes assessed, including the reasons for using carcinogens or mutagens;

• (b) the quantities of substances or preparations manufactured or used which contain carcinogens or mutagens;

• (c) the number of workers exposed;

• (d) the preventive measures taken;

• (e) the type of protective equipment used;

• (f) the nature and degree of exposure;

• (g) the cases of replacement.

Unforeseen exposure

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• (1) If an unforeseeable event or an accident likely to result in an abnormal exposure of workers occurs, the employer shall—

• (a) inform the workers of the occurrence; and

• (b) until the situation has been restored to normal and the causes of the abnormal exposure eliminated, take the following precautions.

• (2) The precautions are that—

• (a) only those workers essential to the carrying out of repairs and other necessary works are to be permitted to work in the affected area;

• (b) the workers concerned must be provided with, and required to wear, protective clothing and individual respiratory protection equipment;

• (c) the exposure must not be permanent and must be limited to the minimum time strictly necessary for each worker; and

• (d) unprotected workers must not be allowed to work in the affected area.

Foreseeable exposure

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• (1) This regulation applies to activities (“relevant activities”), such as maintenance, in respect of which—

• (a) it is foreseeable that there is potential for a significant increase in the exposure of workers; and

• (b) all scope for further technical preventive measures for limiting exposure has been exhausted.

• (2) The employer shall, subject to the following provisions of this regulation, determine the measures necessary to reduce the workers' exposure to the minimum possible and to ensure their protection while they are engaged in relevant activities.

• (3) Without prejudice to his responsibility, the employer shall consult the workers engaged in relevant activities in his undertaking or establishment, or both, before making a determination under paragraph (2).

• (4) The employer shall in particular—

• (a) ensure that the exposure of workers engaged in relevant activities is not permanent and is kept to the strict minimum of time necessary for each worker;

• (b) provide workers engaged in relevant activities with protective clothing and individual respiratory equipment which they must be required to wear as long as the abnormal exposure persists; and

• (c) take appropriate measures to ensure that the areas in which relevant activities take place are clearly demarcated and indicated or that unauthorised persons are prevented by other means from entering those areas.

• (5) This regulation is without prejudice to the provisions of the Merchant Shipping and Fishing Vessels (Personal Protective Equipment) Regulations 1999 .

Access to risk areas

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• (1) The employer shall take appropriate measures to ensure that risk areas are accessible only to workers who are required to enter them by reason of their work or duties.

• (2) In paragraph (1) “risk areas” means the areas in which any activity takes place which has been shown by a regulation 4 assessment to involve a risk to workers' health and safety.

Hygiene and individual protection

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The employer shall take appropriate measures to ensure that, in relation to any activity involving a risk of contamination by carcinogens or mutagens,—

• (a) workers do not eat, drink or smoke in working areas where there is a risk of contamination by carcinogens or mutagens;

• (b) without prejudice to regulation 9, workers are provided with appropriate special clothing;

• (c) separate storage places are provided for working or protective clothing and for other clothes;

• (d) workers are provided with appropriate and adequate washing and toilet facilities;

• (e) protective equipment is properly stored in a well defined place and is checked and cleaned if possible before, and in any case after, each use; and

• (f) defective equipment is properly repaired or replaced before further use.

Information and training of workers

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• (1) The employer shall take appropriate measures to ensure that workers or their representatives, or both, receive sufficient and appropriate training, on the basis of all available information, in particular in the form of information and instructions concerning—

• (a) potential risks to health, including the additional risks due to tobacco consumption;

• (b) precautions to prevent exposure;

• (c) the requirements of hygiene;

• (d) the wearing and use of protective clothing; and

• (e) the steps to be taken by workers, including rescue workers, in the case of incidents and to prevent incidents.

• (2) Training provided under paragraph (1) shall be—

• (a) adapted to take account of new or changed risks; and

• (b) repeated periodically if necessary.

• (3) The employer shall, in relation to all installations, containers and packages containing carcinogens or mutagens—

• (a) tell workers where they are;

• (b) ensure that they are clearly and legibly labelled; and

• (c) ensure that clearly visible warning and hazard signs are displayed on them.

• (4) The employer shall take appropriate measures to ensure that—

• (a) without prejudice to the duties imposed on the employer by these Regulations (in particular by regulation 9) workers or their representatives can verify that these Regulations are being applied or can be involved in their application, in particular with regard to—

• (i) the consequences for workers' safety and health of the selection, wearing and use of protective clothing and equipment; and

• (ii) the measures to be determined by the employer under regulation 9;

• (b) workers or their representatives are informed as quickly as possible of abnormal exposures, including those referred to in regulation 9, of the causes thereof and the corrective measures to be taken;

• (c) an up-to-date list is kept of the workers engaged in activities as respects which a regulation 4 assessment has revealed a risk to the health or safety of workers, including (if the information is available) the exposure to which they have been subjected;

• (d) the doctor or the Secretary of State as well as any other person with responsibility for the health and safety of workers at work has access to that list;