S.I. No. 133/2009 - European Communities (System For the Identification and Traceability of Explosives For Civil Uses) Regulations 2009

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 10th April, 2009.

I, DERMOT AHERN, Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Council Directive 93/15/EEC of 5 April 1993 1 and for the purpose of giving effect to Commission Directive 2008/43/EC of 4 April 2008 2 , hereby make the following Regulations:

Preliminary

1. (1) These Regulations may be cited as the European Communities (System for the Identification and Traceability of Explosives for Civil Uses) Regulations 2009.

(2) These Regulations and the Principal Regulations shall be construed as one and may be cited together as the European Communities (Placing on the Market, Supervision, Identification and Traceability of Explosives for Civil Uses) Regulations 1995 to 2009.

(3) These Regulations come into operation on 5 April 2012.

Interpretation

2. In these Regulations—

“ammunition” means the ammunition referred to in Regulation 3(2)(a) of the Principal Regulations;

“Principal Regulations” means the European Communities (Placing on the Market and Supervision of Explosives for Civil Uses) Regulations 1995 ( S.I. No. 115 of 1995 ) (as amended by the European Communities (Placing on the Market and Supervision of Explosives for Civil Uses)(Amendment) Regulations 2005 ( S.I. No. 546 of 2005 ));

“pump truck” means a mobile explosives manufacturing unit (MEMU);

“unique identification” shall be construed in accordance with Schedules 1 and 2.

Application

3. These Regulations shall not apply to the following:

(a) explosives transported and delivered unpackaged or in pump trucks for their direct unloading into a blast-hole;

(b) explosives manufactured at a blasting site, and that are loaded immediately after being produced (in situ production);

(c) ammunitions.

Marking of explosives, detonators and smallest packaging units

4. (1) Subject to paragraphs (2) and (3), undertakings in the explosives sector which manufacture or import explosives or assemble detonators shall mark explosives and each smallest packaging unit with a unique identification in accordance with Schedule 1.

(2) Where an explosive is subject to further manufacturing processes, manufacturers shall not be required to mark the explosive with a new unique identification unless the original unique identification is no longer marked in compliance with Regulation 5(1).

(3) Paragraph (1) shall not apply where the explosive is manufactured for export and is marked with an identification in accordance with the requirements of the importing country, which allows traceability of the explosive.

(4) Distributors which repackage explosives shall ensure that the unique identification is affixed to the explosive and the smallest packaging unit.

5. (1) The unique identification shall be marked on or firmly attached to the article concerned in a durable way and so as to ensure that it is clearly legible.

(2) (a) Undertakings may attach adhesive detachable copies of the original label to the explosives for use by their clients.

(b) The copies referred to in subparagraph (a) shall be visibly marked as copies of the original, to prevent misuse.

Unique identification

6. (1) The unique identification shall comprise the components described in Schedule 2.

(2) The Minister shall attribute the three digit code identifying the name of the manufacturing site, referred to in Schedule 2, to the following:

(a) each manufacturing site established in the State;

(b) a manufacturing site to which paragraph (3) applies.

(3) Where the State is the place of import onto the Community market of an explosive and the manufacturing site of that explosive is located outside the Community—

(a) the manufacturer, if established in the Community, or

(b) the importer of the explosive concerned, where the manufacturer is not established in the Community,

shall contact the Minister in order for that manufacturing site to be attributed a three digit code under paragraph (2).

Data collection

7. Undertakings in the explosives sector shall put in place a system for collecting data in relation to explosives including their unique identification throughout the supply chain and life cycle, which shall be sufficient to allow the undertakings to:

(a) comply with Regulation 9, and

(b) keep track of the explosives in such a way that those holding the explosives can be identified at any time.

8. Undertakings in the explosives sector shall keep and maintain the data collected in accordance with Regulation 7, including the unique identifications, for a period of 10 years after the delivery or whenever known after the end of the life cycle of the explosive even if undertakings have ceased trading.

9. Each undertaking in the explosives sector shall:

(a) keep a record of all identifications of explosives, together with all pertinent information including the type of explosive, the company or person to the custody of whom it was given;

(b) record the location of each explosive while the explosive is in its possession or custody until the explosive is either transferred to another undertaking or used;

(c) at regular interval test its data collection system in order to ensure its effectiveness and the quality of the data recorded;

(d) (i) keep and maintain the data collected including the unique identifications for the period specified in Regulation 8, or

(ii) in the case of explosives manufactured or imported before 5 April 2012, maintain records in accordance with the provisions of the Principal Regulations;

(e) protect the data collected against accidental or malicious damage or destruction;

(f) provide an authorised officer, upon his or her request, with the information concerning the origin and location of each explosive during its life cycle and throughout the supply chain;

(g) provide an authorised officer with the name and contact details of a person able to provide the information described in paragraph (f) outside normal business hours.

Penalties

10. (1) A person who contravenes any provision of these Regulations shall be guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding €20,000 or imprisonment for a term not exceeding 3 years or both.

(2) Where an offence under these Regulations is committed by a body corporate and is proved to have been so committed with the consent or connivance of, or to be attributable to any neglect on the part of, any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(3) If the affairs of a body corporate are managed by its members, paragraph (2) shall apply in relation to the acts and defaults of a member in connection with the functions of management as if the member is a director or manager of the body corporate.

(4) Proceedings for a summary offence under these Regulations may be brought and prosecuted by the Minister.

(5) An authorised officer may seize any explosive if there is sufficient evidence that the explosive has not been marked in accordance with these Regulations.

(6) Where a person is convicted of an offence under these Regulations, the court may order the forfeiture to the Minister of any explosive to which the offence relates.

(7) Where an order is made under paragraph (6), an authorised officer may for the purpose of giving effect to it seize and detain the explosive where it has not already been seized under this Regulation.

Amendment of Principal Regulations

11. The Principal Regulations are amended by the substitution of the following Regulation for Regulation 12:

“12. (1) A person who contravenes any provision of these Regulations shall be guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding €20,000 or imprisonment for a term not exceeding 3 years or both.

(2) Where an offence under these Regulations is committed by a body corporate and is proved to have been so committed with the consent or connivance of, or to be attributable to any neglect on the part of, any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(3) If the affairs of a body corporate are managed by its members, paragraph (2) shall apply in relation to the acts and defaults of a member in connection with the functions of management as if the member is a director or manager of the body corporate.

(4) Proceedings for a summary offence under these Regulations may be brought and prosecuted by the Minister.

(5) An authorised officer may seize any explosives if there is sufficient evidence that the explosives will be illicitly acquired, used or dealt in.

(6) Where a person is convicted of an offence under these Regulations, the court may order the forfeiture to the Minister of any explosive to which the offence relates.

(7) Where an order is made under paragraph (6), an authorised officer may for the purpose of giving effect to it seize and detain the explosive where it has not already been seized under this Regulation.”.

Regulation 4

Schedule 1

Cartridged explosives and explosives in sacks

For cartridged explosives and explosives in sacks, the unique identification shall consist of an adhesive label or direct printing on each cartridge or sack.

An associated label shall be placed on each case of cartridges.

In addition, undertakings may use a passive inert electronic tag attached to each cartridge or sack and similarly, an associated electronic tag for each case of cartridges.

Two-component explosives

For packaged two-component explosives, the unique identification shall consist of an adhesive label or direct printing on each smallest packaging unit containing the two components.

Plain detonators and fuses

For plain detonators or fuses, the unique identification shall consist of an adhesive label or direct printing or stamping on the detonator shell.

An associated label shall be placed on each case of detonators or fuses.

In addition, undertakings may use a passive inert electronic tag attached to each detonator or fuse, and an associated tag for each case of detonators or fuses.

Electric, non-electric and electronic detonators

For electric, non-electric and electronic detonators, the unique identification shall consist either of an adhesive label on the wires or tube, or an adhesive label or direct printing or stamping on the detonator shell.

An associated label shall be placed on each case of detonators.

In addition, undertakings may use a passive inert electronic tag attached to each detonator, and an associated tag for each case of detonators.

Primers and boosters

For primers and boosters, the unique identification shall consist of an adhesive label or direct printing on the primer or booster.

An associated label shall be placed on each case of primers or boosters.

In addition, undertakings may use a passive inert electronic tag attached to each primer or booster, and an associated tag for each case of primers or boosters.

Detonating cords and safety fuses

For detonating cords and safety fuses, the unique identification shall consist of an adhesive label or direct printing on the bobbin. The unique identification will be marked every 5 meters on either the external envelope of the cord or fuse or the plastic extruded inner layer immediately under the exterior fibre of the cord or fuse.

An associated label shall be placed on each case of detonating cord or fuse.

In addition, undertakings may use a passive inert electronic tag inserted within the cord, and an associated tag for each case of cord or fuse.

Cans and drums containing explosives

For cans and drums containing explosives, the unique identification shall consist of an adhesive label or direct printing on the can or drum containing the explosives.

In addition, undertakings may use a passive inert electronic tag attached to each can and drum.

Regulation 6

Schedule 2

The unique identification shall comprise:

1. a human readable part of the identification containing the following:

(a) the name of the manufacturer;

(b) an alphanumerical code containing:

(i) the two letters IE identifying the State as the place of production or import onto the Community market;

(ii) three digits identifying the name of the manufacturing site (attributed by the Minister);

(iii) the unique product code and logistical information designed by the manufacturer;

2. an electronic readable identification in barcode and/or matrix code format that relates directly to the alphanumerical identification code.

Example:

3. For articles too small to affix the unique product code and logistical information designed by the manufacturer, the information under 1(b)(i), 1(b)(ii) and 2 shall be considered sufficient.

GIVEN under my Official Seal,

3 April 2009

DERMOT AHERN,

Minister for Justice, Equality and Law Reform.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation)

These Regulations give effect to Commission Directive 2008/48/EC setting up, pursuant to Council Directive 93/15/EEC, a system for the identification and traceability of explosives for civil uses. The aim of the Directive is to strengthen the control of explosives for civil uses, thus helping to combat terrorism.

The Regulations require the unique labelling of explosives in accordance with the schedule to the regulations. Manufacturers, traders and users of explosives are also required to tighten record keeping and stock management. This should allow the identification and traceability of an explosive from its production site and its first placing on the market until its final user and use, thereby assisting in the prevention of theft and ensuring that any thefts or losses are quickly detected.

The Regulations also amend the European Communities (Placing on the Market and Supervision of Explosives for Civil Uses) Regulations 1995 ( S.I. No. 115 of 1995 ). Penal sanctions for those who contravene the 1995 to 2009 Regulations are prescribed.

1 OJ L 121, 15.5.93, p.20.

2 OJ No. L94/8, 5.4.08.