Fifth Report Contents

Appendix 6

S.I. 2017/737

Recreational Craft Regulations 2017

1.In its letter to the Department of Business, Energy and Industrial Strategy of 22 November 2017, the Joint Committee requested a memorandum on the following points:

Explain:

(1) Why regulation 14(2) does not state who is responsible for complying with the obligation in that regulation;

(2) Whether the obligation in regulation 32(3) arises when the product is placed on the market or made available on the market;

(3) Why contraventions of regulations 18 and 19 in relation to importers are not made offences under regulation 73 (especially given that similar contraventions in relation to distributors in regulations 27 and 28 are made offences under that regulation); and

(4) Whether the amendments to primary legislation in paragraphs 2(h), (j), (k)(ii)(bb), (l)(ii) to (iv) and (vi) to (viii) of Schedule 13 are correct given that they refer to the Recreational Craft Regulations 2016.

(1) why regulation 14(2) does not state who is responsible for complying with the obligation in that regulation

2.Regulation 14 provides:

Duty to provide information

14.—(1) Before placing a product on the market, a manufacturer must ensure that the product is labelled with—

a.the manufacturer’s name;

b. their registered trade name or registered trade mark; and

c. an address, which is the single point at which they can be contacted.

(2) Where it is not possible to provide the information referred to in paragraph (1) on the product that information must be provided—

a. on the packaging;

b. or in a document accompanying the product.

3.The Department considers that given that regulation 14(1) clearly places the obligation to label the product on the manufacturer and that regulation 14(2) is an exception to the general rule in regulation 14(1), it is sufficiently clear from that context that the manufacturer is responsible for complying with the obligation in regulation 14(2). Furthermore, the regulation is in a set of regulations under the sub-heading “Manufacturers”. The Department is, therefore, of the view that even though regulation 14(2) does not specifically mention the manufacturer, it is clear from the surrounding provisions that the obligation rests with the manufacturer, without the need to state who is responsible for the obligation in that paragraph.

(2) Whether the obligation in regulation 32(3) arises when the product is placed on the market or made available on the market;

4.Regulation 32(3) provides:

(3) The distributor must, at the request of the enforcing authority, co-operate with the authority on any action taken to eliminate the risks posed by a product that the distributor has made available placed on the market.

5.The expression “distributor” is defined in regulation 2 (interpretation) as follows:

““distributor” means a person in the supply chain, other than the manufacturer or the importer, who makes a product available on the market;”

6.Since the distributor is defined by reference to being a person who makes a product on the market and therefore not one who places a product on the market, it is clear from this that regulation 32(2) should refer to products made available on the market.

7.The Department is grateful to the Joint Committee for drawing its attention to this error. The word “placed” should be removed. The Department will explore with the Registrar of Statutory Instruments whether this word can be removed by way of correction slip. If this is not possible, the Department will amend this error when a suitable opportunity arises.

(3) Why contraventions of regulations 18 and 19 in relation to importers are not made offences under regulation 73 (especially given that similar contraventions in relation to distributors in regulations 27 and 28 are made offences under that regulation);

8.The Department is again grateful to the Joint Committee for drawing this to the Department’s attention. We intend to amend regulation 73 to include regulations 18 and 19 when a suitable opportunity arises.

9.The Joint Committee may wish to note that until such opportunity arises, there are provisions which will help to ensure both that only compliant products are placed on the market by the importer and that action can be taken if the importer does not comply with the duties placed on the importer.

10.Regulation 20 places a duty on the importer not to place a product on the market where the importer believes that the product is not in conformity with the essential requirements. Regulation 73 provides that breach of regulation 20 is a criminal offence. Regulation 24 places a duty on the importer to take action in respect of a product the importer has placed on the market which the importer considers is not in conformity with Part 2 of the Regulations. Breach of regulation 24 is also a criminal offence.

11.Furthermore, there is provision in regulation 71 that where an enforcing authority finds that there has been non-compliance with the requirements in regulation 18 or 19 (amongst others) it must require the importer to remedy the non-compliance within a reasonable period prescribed by the enforcing authority, where the product does not present a risk. Indeed regulation 71(2) provides that no other proceedings can be commenced under the Regulations until the period prescribed has elapsed. If the non-compliance persists, the enforcing authority must restrict or prohibit the product being made available on the market or ensure that the product is recalled or withdrawn from the market. The purpose of the provision in regulation 71(2) is to give the importer (and other economic operators to which the regulation applies) time to correct non-compliance before commencing criminal proceedings.

12.In the case of a product presenting a risk, where an enforcing authority finds that a product is not in conformity with Part 2 of the Regulations, the enforcing authority must without delay require a relevant economic operator (which can include the importer) to take corrective action to bring the product into conformity within a prescribed period, withdraw the product within a prescribed period or recall the product within a prescribed period. If the economic operator does not do so, the enforcing authority must take appropriate measures to prohibit the product being made available or ensure that the product is recalled or withdrawn.

(4) Whether the amendments to primary legislation in paragraphs 2(h), (j), (k)(ii)(bb), (l)(ii) to (iv) and (vi) to (viii) of Schedule 13 are correct given that they refer to the Recreational Craft Regulations 2016.

13.Again the Department is grateful to the Joint Committee for drawing these errors to the Department’s attention. The references are clearly not correct and should refer to the Recreational Craft Regulations 2017. The Department will explore with the Registrar of Statutory Instruments whether the references to “2016” can be replaced with “2017” by way of correction slip. If this is not possible, the Department will amend this error when a suitable opportunity arises.

Department for Business, Energy and Industrial Strategy

28 November 2017





7 December 2017