Memorandum by the Department of Trade
1999 (S.I. 1999/1053)
1. In the letter dated 5 May 1999 from the Commons
Clerk of the Committee, the Joint Committee on Statutory Instruments
has requested a Memorandum from the Department on the following
(1) Given the definition in regulation
2(1)(c) of "non-road mobile machinery" as machinery
(etc) "in which an ... engine ... is installed",
explain how (consistently with this definition)-
regulation 3(1) can make the Regulations
applicable to new engines "to be installed
in non-road mobile machinery";
regulation 4(1) can restrict the placing
on the market of any new engine, "whether or not
already installed" in machinery.
(2) In relation to regulation 17,
explain whether it is intended that a breach of the duty imposed
by regulation 11(9) (manufacturer must permit the approval authority
to inspect its production procedures), unlike a breach of the
duty imposed by reg 11(8) (manufacturer must permit the authority
to carry out tests and inspection of engines), should not be an
offence. If so, explain the reason for this difference and what
sanction is intended for a breach of the duty imposed by regulation
2. On the first point, the definition of "non-road
mobile machinery" is simply a definition of the term. It
defines the term by reference to a mobile machine, transportable
industrial equipment or vehicle in which an engine is installed.
The present tense is used because the definition is descriptive
of the machinery referred to.
3. Regulation 3(1) is concerned with engines.
It makes provision for the engines within the scope of
the Regulations. It provides that the Regulations are to apply
to new engines to be installed in non-road mobile machinery. The
reference to the non-road mobile machinery is to the machinery
in which the engines within the scope of the Regulations are installed.
Regulation 4(1) is also concerned with engines. The prohibition
is on placing on the market new engines, not machinery. It is
therefore consistent with the definition of non-road mobile machinery
for the prohibition to apply to an engine which is not installed
in machinery, as well as an engine already installed in machinery.
4. On the second point, the Regulations do not
make the breach of regulation 11 (9) a criminal offence because
the Department took the view that such a sanction would be disproportionate
to the breach of obligation. The provision implements Article
11.2 of the Directive. It is very much a long stop provision.
In practice the provision that would govern entry to the manufacturer's
premises is section 28(2) of the Consumers Protection Act 1987
which is applied to the Regulations by regulation 16(3)(a). In
addition, if a manufacturer refused access and the approval authority
were concerned that this indicated that engines were being produced
which did not conform to the approval given, the approval authority
could exercise the power in regulation 11(8) to carry out tests
and inspection of an engine. Failure to permit this is a criminal
offence. Therefore, in practice, the approval authority would
not need to be able to enforce directly the obligation in regulation
11(9) and therefore it was decided that it should not be subject
to a criminal penalty.
10th May 1999