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CONSULTATIVE DOCUMENT ON PROPOSALS FOR NEW MERCHANT SHIPPING AND FISHING VESSELS (HEALTH AND SAFETY AT WORK) REGULATIONS TO IMPLEMENT THE EC ASBESTOS DIRECTIVE

The Maritime and Coastguard Agency’s (MCA) has prepared Consultation Documents in relation to its proposals for new Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations to implement EC Directive 83/477/EEC (as amended) which introduced minimum safety and health requirements for the protection of workers from the risks related to exposure to asbestos at work.

The main aims and objectives of the proposed Regulations are to implement the Directive for the merchant shipping, fishing, yachting and code vessel sectors. The provisions of the Directive have already been implemented for land-based workers.

It is intended that the new Regulations will be brought into operation some on the next common commencement date after the close of the consultation period, probably 1 October 2010.

The MCA seeks your views on the proposals contained in the Consultation Documents and, in particular on the assumptions relating to costs and benefits set out in the draft Impact Assessment.

CONSULTATION DOCUMENTS

Consultation Letter

Annex A - EC Directive 83/477/EEC (as amended)

Annex B - Draft Asbestos Regulations

Annex C - Draft Asbestos MGN

Annex D - Draft Asbestos Impact Assessment

Annex E - Draft Asbestos Explanatory Memoranda and Transposition Note

Annex F - Code of Practice on Consultation

Annex G - List of Consultees

Annex H - Consultation Feedback Form

Any comments you wish to make on the proposals, together with any other related comments you wish to make, should be provided in writing by post, fax or email to:-

Sharon Judge
Deputy Manager (Health & Safety)
Seafarer Safety & Health Branch
Maritime & Coastguard Agency
Bay 1/29 Spring Place
105 Commercial Road
Southampton
SO15 1EG

Tel:   023 8032 9328
Fax:   023 8032 9251

Email:  sharon.judge@mcga.gov.uk

to arrive no later than 26 April 2010.

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Consultation Letter

Dear Sir/Madam

CONSULTATION ON PROPOSALS TO IMPLEMENT, BY MEANS OF MERCHANT SHIPPING AND FISHING VESSEL REGULATIONS, COUNCIL DIRECTIVE 1983/477/EEC, AS AMENDED BY DIRECTIVES 1991/382/EEC, 1998/24/EC, 2003/18/EC AND 2007/30/EC ON THE PROTECTION OF THE HEALTH AND SAFETY OF WORKERS FROM THE RISKS RELATED TO EXPOSURE TO ASBESTOS AT WORK

1. This consultation letter seeks your views on the Maritime and Coastguard Agency’s (MCA) proposals for implementing Council Directive 1983/477/EC (the “Asbestos Directive”), (as amended by Directives 1991/382/EEC, 1998/24/EC,  2003/18/EC and 2007/30/EC), which introduced provisions intended to improve the health and safety of workers potentially at risk as a result of exposure to asbestos at work, by means of new Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Asbestos) Regulations 200x (the “Asbestos Regulations”). This Directive has already been implemented by the Health and Safety Executive and Health and Safety Executive (Northern Ireland) in respect of land based workers and the new Asbestos Regulations are necessary to complete the United Kingdom’s implementation of this Directive.

2. The Asbestos Directive builds on the requirements of Council Directive 89/391/EEC (the “Framework Directive”) which introduced general measures to encourage improvements in the safety and health of workers at work. The Framework Directive was implemented for the maritime sector by the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997 (as amended) (SI 1997/2962) (the “General Duties Regulations”) which require employers to assess risks to their employees from the carrying out of their work. Where a risk is identified, an employer is required to take appropriate measures to either remove that risk completely or, where this is not possible, reduce the risk so far as is reasonably practicable. The draft Asbestos Regulations build on these requirements by introducing specific requirements relating to asbestos. As with previous health and safety measures the draft Asbestos Regulations apply to persons employed on seagoing vessels, including fishing vessels, as well as those on inland waterways vessels.  

Summary of the Provisions

3. The provisions of the Asbestos Regulations are similar in form to other Regulations introduced to implement EC Health and Safety Directives but their content is directed towards the risks arising from exposure to asbestos. The Regulations require amongst other things:

  • that the risk assessment, which employers are required to carry out under the General Duties Regulations, takes account of the risks or potential risks of workers being exposed to asbestos at work;
  • notification of any work relating to asbestos;
  • prohibition of certain activities relating to asbestos;
  • that measures be introduced to remove entirely, or where that is not possible, reduce as far as possible, exposure of workers to asbestos at work;
  • measurement of air quality;
  • compliance with specified maximum limit values;
  • identification of any asbestos present, or suspected to be present, before any demolition or maintenance work is undertaken;
  • production of plans of work before any work involving the potential for exposure to asbestos is undertaken;
  • the introduction of hygiene and individual protection measures;
  • information for, and appropriate training of, workers be provided;
  • that health surveillance be introduced for workers where the risk assessment identifies a risk to workers as a result of actual or potential exposure to asbestos at work;
  • consultation with workers;
  • full and proper use of protective equipment by workers and compliance by them with instructions or health and safety training provided by their employer.

4. Provision is made for exemption from the requirement to notify the Secretary of State of work involving asbestos and the requirement to provide health surveillance for workers where:-  

(a) worker exposure to asbestos is sporadic and of low intensity,
(b) it is clear from the results of the risk assessment required in accordance with paragraph (2) above  that the limit value will not be exceeded in the air of the working areas, and
(c) work involves—
(i) short, non-continuous maintenance activities in which only non-friable materials are handled,
(ii) removal without deterioration of non-degraded materials in which the asbestos fibres are firmly linked in a matrix,
(iii) encapsulation or sealing of asbestos-containing materials which are in good condition, or
(iv) air monitoring and control, and the collection of samples to ascertain whether a specific material contains asbestos.

In this context it should however be noted that exposure to asbestos will not be considered to be sporadic and of low intensity if the concentration of asbestos in the atmosphere when measured in accordance with the 1997 WHO recommended method, or by a method giving equivalent results to that method, exceeds or is liable to exceed 0.6 fibres per cubic centimetres in the air measured over a tem minute period. This complies with the requirement in paragraph 3a of Article 3 of the Directive that Member States lay down guidelines for the determination of sporadic and low-intensity exposure and is in line with the limits already established by the Health and Safety Executive.  

5. Standard enforcement and penalty provisions are included in the draft Regulations.

6. A draft Marine Guidance Note giving a general outline of the provisions of the draft Regulations and giving advice on other sources of information which may be helpful in implementing and applying them has been produced. It is, however, not an authoritative interpretation of the Regulations as such an interpretation can only be given by the courts.

Consultation Package

7. Accompanying this letter is a consultation package on the Asbestos Directive containing the following documents:

Annex A: Directive 1983/477/EC as amended by Directives 1991/382/EEC, 1998/24/EC, 2003/18/EC and 2007/30/EC - the “Asbestos Directive”
Annex B:  Draft Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Asbestos) Regulations 200X
Annex C: Draft Marine Guidance Note on the Asbestos Regulations
Annex D: Draft Impact Assessment (IA) for the Asbestos Regulations
Annex E: Draft Explanatory Memorandum and Transposition Note
Annex F: ode of Practice on Consultation
Annex G: List of Consultees
Annex H: Customer Feedback Form

Invitation to comment

8. Your views on the consultation package are invited. In particular:

DRAFT REGULATIONS

  • Do you consider that, as drafted, the proposed Asbestos Regulations appropriately cover the requirements of the Asbestos Directive?

DRAFT MARINE GUIDANCE NOTE

  • Is the content of the draft Marine Guidance Note appropriate? If you consider that amended, additional or different guidance would be helpful, please provide specific suggestions and details of how you consider this could be achieved.

DRAFT IMPACT ASSESSMENT

  • All new legislation is now required to be accompanied by an Impact Assessment which sets out the potential additional costs and benefits likely to arise from its introduction. In producing the Impact Assessment at Annex D we have sought to identify the nature and extent of the risks arising from asbestos and the additional costs and potential benefits arising from the proposed Regulations to address these risks. In order that a more robust, quantified assessment can be produced it would however be appreciated if you could provide responses to the following questions:-

(a) are your existing practices already in line with the proposed new asbestos requirements? If not, how many hours of training will be necessary to meet the requirements and at what overall cost?
(b) are your vessels in compliance with the proposed new asbestos requirements? If not, what changes do you envisage being required and at what overall cost?
(c ) what other changes, if any, do you see being required to enable you to comply with the new requirements and at what overall costs?
(d) do you foresee any potential benefits arising from the new requirements? If so, what do you envisage the financial result of such benefits to be?    

To facilitate the production of the quantified risk assessment referred to above, it would be appreciated if your responses could be provided under the following headings:-

(A) COSTS

(a) Description and scale of key monetised costs
(b) One-off (Transition) Annual Costs
(c) Annual Average Cost (excluding one-off costs)
(d) Total Cost
(e) Other key non-monetised costs

(B) BENEFITS

(a) Description and scale of key monetised benefits  
(b) One-off (Transition) Annual Benefits
(c) Annual Average Benefits (excluding one-off costs)
(d) Total Benefit
(e) Other key non-monetised benefits

(C) ANNUAL COST PER ORGANISATION (excluding one-off)

In producing a figure for annual costs per organisation it will first be necessary to separate the responses, together with any cost  figures supplied, into the relevant business size category i.e. “Micro” (0 - 9 employees); “Small” (10 - 49 employees); “Medium” (50 - 249 employees) and “Large” (250 + employees). It would be appreciated therefore if, when submitting cost or benefit figures or even confirming that no costs or benefits arise, you could also advise which business size category your organisation fits into.   

Your assistance in providing these figures would be greatly appreciated. In the event that cost/benefit information is not provided it will be assumed that you do not envisage that the proposed Regulations will result in any additional costs or benefits for your organisation.

9. Comments on these points and any other comments you wish to make should be provided in writing by post, fax or email to:-

Sharon Judge
Deputy Manager (Health and Safety)
Seafarer Safety and Health Branch
Maritime & Coastguard Agency
Bay 1/29 Spring Place
105 Commercial Road
Southampton
SO15 1EG

Tel:   023 8032 9328
Fax:   023 8032 9251

Email:  sharon.judge@mcga.gov.uk

to arrive no later than 26 April 2010.

10. Information provided in response to this consultation, including personal information, may be published or disclosed in accordance with the access to information regimes. These are primarily the Freedom of Information Act 2000 (FOIA), the Data Protection Act 1998 (DPA) and the Environmental Information Regulations 2004.

11. If you want the information that you provide to be treated as confidential please be aware that, under the FOIA, there is a statutory Code of Practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence. In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimed generated by your IT system will not, of itself, be regarded as binding on the MCA.

12. The MCA will process your personal data in accordance with the Data Protection Act and in the majority of circumstances this will mean that your personal data will not be disclosed to third parties.

13. In the light of any comments received, the draft Regulations and MGN will be reviewed with the aim of finalising them by the end of July 2010, and their coming into force on the next common commencement date after that (1 October 2010).

14. If your address details require any amendment, or you consider there are other persons who should be consulted or if you do not wish in the future to be consulted on the implementation of EC Health and Safety Directives, please could you advise Sharon accordingly.  

15. This consultation is being conducted in accordance with HM Government’s Code of Practice on Consultation (see Annex “F”). If you have any complaints or comments about the way this consultation has been conducted, please contact:

Timothy Grabham
Consultation Coordinator
Office of the Chief Executive
MCA
Bay 3/29, Spring Place
105 Commercial Rd
Southampton
SO15 1EG

Tel: +44 (0) 2380 329 469
Fax: +44 (0) 2380 329 105

Email: consultation.coordinator@mcga.gov.uk  

16. Electronic versions of the consultation documents can be found on the MCA Website using the following address http://www.mcga.gov.uk/c4mca/mcga07-home/shipsandcargoes/consultations/mcga-currentconsultations.htm. This will open up the "Current Consultations" page on which is listed the consultation on "Asbestos”.

Yours faithfully

Julie Carlton

Head of Seafarer Safety and Health Branch

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Links to Annexes: