The Making Available on the Market and Supervision of Transfers of Explosives Regulations (Northern Ireland) 2016

• (8) For the purposes of sub-paragraph (4), “take the necessary measures” includes the Department making arrangements with the competent national authority for Great Britain as to measures referred to that in that sub-paragraph being taken there by that authority.

Enforcement action in respect of civil explosives which are in conformity, but present a risk

11

• (1) Where, having carried out an evaluation under paragraph 8, the Department finds that although a civil explosive is in conformity with Part 3 of these Regulations it presents a risk, the Department must require a relevant economic operator to take appropriate measures to—

• (a) ensure that the civil explosive concerned, when placed on the market, no longer presents a risk;

• (b) withdraw the civil explosive within a prescribed period; or

• (c) recall the civil explosive within a prescribed period.

• (2) Where the Department takes measures under sub-paragraph (1), it must notify the Secretary of State immediately.

• (3) Where the Secretary of State receives a notice under sub-paragraph (2), the Secretary of State must notify the European Commission and the other EEA States immediately.

• (4) The notices referred to in sub-paragraphs (2) and (3) must include details about the civil explosive and, in particular—

• (a) the data necessary for the identification of the civil explosive concerned;

• (b) the origin and the supply chain of the civil explosive;

• (c) the nature of the risk involved; and

• (d) the nature and duration of the measures taken by the Department.

• (5) In this paragraph, “prescribed period” means a period which is—

• (a) prescribed by the Department; and

• (b) reasonable and commensurate with the nature of the risk presented by the civil explosive.

Enforcement action in respect of formal non-compliance

12

• (1) Where the Department makes one of the following findings relating to a civil explosive, it must require a relevant economic operator to put an end to the non-compliance concerned within a specified period—

• (a) the CE marking—

• (i) has not been affixed; or

• (ii) has been affixed otherwise than in accordance with regulations 30 (Prohibition on improper use of CE marking) and 34 (CE marking);

• (b) where a notified body is involved in the production control phase for the civil explosive, the identification number of the notified body—

• (i) has not been affixed; or

• (ii) has been affixed otherwise than in accordance with regulation 34 (CE marking);

• (c) the EU declaration of conformity—

• (i) has not been drawn up; or

• (ii) has been drawn up otherwise than in accordance with regulations 7 (EU declaration of conformity and CE marking) and 33 (EU declaration of conformity);

• (d) the technical documentation is either not available or not complete;

• (e) the following information that is required in respect of the civil explosive is absent, false or incomplete—

• (i) the information specified in regulation 10 (Traceability of certain civil explosives excluded from the scope of regulations 4, 5 and 6 of ITOER (NI) 2013);

• (ii) the information specified in regulation 16 (Information identifying importer); or

• (f) any other administrative requirement imposed on the manufacturer or importer under Part 3 has not been fulfilled.

• (2) Until the specified period has elapsed, the Department must not commence proceedings in relation to Part 3 of these Regulations, or take any other enforcement action in relation to that Part, against the relevant economic operator in respect of the non-compliance concerned.

• (3) Where the non-compliance referred to in sub-paragraph (1) persists, the Department must take the appropriate measures to—

• (a) restrict or prohibit the civil explosive being made available on the market;

• (b) ensure that the civil explosive is withdrawn; or

• (c) ensure that the civil explosive is recalled.

• (4) This paragraph does not apply where a civil explosive presents a risk.

Restrictive measures

13

• (1) When enforcing Part 3, the Department must comply with the requirements of Article 21 of RAMS (as amended from time to time) in relation to any measure to—

• (a) prohibit or restrict a civil explosive being made available on the market;

• (b) withdraw a civil explosive; or

• (c) recall a civil explosive.

PART 2 — COMPLIANCE, WITHDRAWAL AND RECALL NOTICES

Compliance, withdrawal and recall notices

14

In addition to the powers available to the Department under Part 1 of this Schedule for enforcing Part 3 of these Regulations, the Department may use the powers set out in this Part.

Compliance notice

15

• (1) The Department may serve a compliance notice on a relevant economic operator in respect of a civil explosive if the Department has reasonable grounds for believing that there is non-compliance.

• (2) A compliance notice must—

• (a) require the relevant economic operator on which it is served to—

• (i) end the non-compliance within such period as may be specified in the notice; or

• (ii) provide evidence, within such period as may be specified in the notice, demonstrating to the satisfaction of the Department that the non-compliance has not in fact occurred; and

• (b) warn the economic operator that, if the non-compliance persists or if satisfactory evidence has not been produced under paragraph (a) within the period specified in the notice, further action may be taken in respect of the civil explosive or any civil explosive of the same type made available on the market by that relevant economic operator.

• (3) A compliance notice may include directions as to the measures to be taken by the economic operator to secure compliance, including different ways of securing compliance.

• (4) Subject to sub-paragraph (5), the Department may revoke or vary a compliance notice by serving a notification on the economic operator.

• (5) The Department may not vary a compliance notice so as to make it more restrictive for the economic operator or more onerous for the economic operator to comply.

Withdrawal notice

16

• (1) The Department may serve a withdrawal notice on a relevant economic operator in respect of a civil explosive if the Department has reasonable grounds for believing that—

• (a) the civil explosive has been made available on the market; and

• (b) there is non-compliance.

• (2) A withdrawal notice must prohibit the relevant economic operator from making the civil explosive available on the market without the consent of the Department.

• (3) A withdrawal notice may require the relevant economic operator to take action to alert end-users to any risk presented by the civil explosive.

• (4) A withdrawal notice may require the relevant economic operator to keep the Department informed of the whereabouts of any civil explosive referred to in the notice.

• (5) A consent given by the Department pursuant to a withdrawal notice may impose such conditions on the making available on the market as the Department considers appropriate.

• (6) Subject to sub-paragraph (7), the Department may revoke or vary a withdrawal notice by serving a notification on the economic operator.

• (7) The Department may not vary a withdrawal notice so as to make it more restrictive for the economic operator or more onerous for the economic operator to comply.

Recall notice

17

• (1) The Department may serve a recall notice on a relevant economic operator in respect of a civil explosive if the Department has reasonable grounds for believing that—

• (a) the civil explosive has been made available to end-users; and

• (b) there is non-compliance.

• (2) A recall notice must require the relevant economic operator to use reasonable endeavours to organise the return of the civil explosive from end-users to the relevant economic operator or another person specified in the notice.

• (3) A recall notice may—

• (a) require the recall to be effected in accordance with a code of practice;

• (b) require the relevant economic operator to—

• (i) contact end-users in order to inform them of the recall, to the extent that it is practicable to do so;

• (ii) publish a notice in such form and such manner as is likely to bring to the attention of end-users any risk the civil explosive poses and the fact of the recall; or

• (iii) make arrangements for the collection or return of the civil explosive from end-users or its disposal; or

• (c) impose such additional requirements on the relevant economic operator as are reasonable and practicable with a view to achieving the return of the civil explosive.

• (4) In determining what requirements to include in a recall notice, the Department must take into consideration the need to encourage distributors and end-users to contribute to its implementation.

• (5) A recall notice may only be issued by the Department where—

• (a) other action which it may require under or by virtue of this Schedule would not suffice to address the non-compliance;

• (b) the action being undertaken by the relevant economic operator is unsatisfactory or insufficient to address the non-compliance;

• (c) the Department has given not less than 10 days' notice to the relevant economic operator of its intention to serve such a notice; and

• (d) the Department has taken account of any advice obtained under sub-paragraph (6).

• (6) A relevant economic operator which has received notice from the Department of an intention to serve a recall notice may, at any time prior to the service of the recall notice, require the Department to seek the advice of such person as the Institute determines on the questions of—

• (a) whether there is non-compliance; and

• (b) whether the issue of a recall notice would be proportionate.

• (7) Sub-paragraphs (5)(b), (c) and (d) do not apply in the case of a civil explosive presenting a serious risk requiring, in the view of the Department, urgent action.

• (8) Where a relevant economic operator requires the Department to seek advice under sub-paragraph (6), that relevant economic operator is to be responsible for the fees, costs and expenses of the Institute and of the person appointed by the Institute to advise the Department.

• (9) In this paragraph “Institute” means the charitable organisation with the registered number 803725 and known as the Chartered Institute of Arbitrators.

• (10) A recall notice served by the Department may require the relevant economic operator to keep the Department informed of the whereabouts of a civil explosive to which the recall notice relates, so far as the relevant economic operator is able to do so.

• (11) Subject to sub-paragraph (12), the Department may revoke or vary a recall notice by serving a notification on the economic operator.

• (12) The Department may not vary a recall notice so as to make it more restrictive for the economic operator or more onerous for the economic operator to comply.

Compliance with a withdrawal or recall notice

18

• (1) A person must not contravene any requirement or prohibition imposed by a withdrawal or recall notice served pursuant to this Part (including any such notice as varied by the Department or on appeal).

• (2) The provisions of Article 31(1)(c) of the 1978 Order apply to sub-paragraph (1) for the purposes of its enforcement as if it were health and safety regulations for the purposes of that Order.

• (3) The maximum penalty for an offence under Article 31(1)(c) of the 1978 Order, as applied by sub-paragraph (2), is determined in accordance with sub-paragraph (4).

• (4) The penalty referred to in sub-paragraph (3) is—

• (a) on summary conviction, imprisonment for a term not exceeding three months or a fine not exceeding the statutory minimum, or both; and

• (b) on conviction on indictment, imprisonment for a term not exceeding two years, or a fine, or both.

Interpretation

19

In this Part, “non-compliance” means that a civil explosive—

• (a) presents a risk; or

• (b) is not in conformity with Part 3 of these Regulations or RAMS in its application to civil explosives.

PART 3 — DEFENCE OF DUE DILIGENCE, APPEALS AGAINST NOTICES AND FURTHER PROVISIONS IN RELATION TO ENFORCEMENT

Defence of due diligence

20

• (1) Subject to sub-paragraphs (2) and (4), in proceedings for an offence under Article 31(1)(c) of the 1978 Order involving a contravention of Part 3 or paragraph 18, it is a defence for a person (“P”) to show that P took all reasonable steps and exercised all due diligence to avoid committing the offence.

• (2) P may not rely on a defence under sub-paragraph (1) which involves a third party allegation unless P has—

• (a) served a notice in accordance with sub-paragraph (3); or

• (b) obtained the leave of the court.

• (3) The notice must—

• (a) give any information on P's possession which identifies or assists in identifying the person who—

• (i) committed the act or default; or

• (ii) supplied the information on which P relied; and

• (b) be served on the person bringing the proceedings not less than seven clear days before the hearing of the proceedings.

• (4) P may not rely on a defence under sub-paragraph (1) which involves an allegation that the commission of the offence was due to reliance on information supplied by another person unless it was reasonable for P to have relied upon the information, having regard in particular—

• (a) to the steps that P took, and those which might reasonably have been taken, for the purpose of verifying the information; and

• (b) to whether P had any reason to believe the information.

• (5) In this paragraph, “third party allegation” means an allegation that the commission of the offence was due—

• (a) to the act or default of another person; or

• (b) to reliance on information supplied by another person.

Service of documents

21

Any document required or authorised by these Regulations to be served on a person may be served by—

• (a) delivering it to that person in person;

• (b) leaving it at that person's proper address; or

• (c) sending it by post or electronic means to that person's proper address.

• (2) In the case of a body corporate, a document may be served on a director of that body.

• (3) In the case of a partnership, a document may be served on a partner or a person having control or management of the partnership business.

• (4) For the purposes of this paragraph, “proper address” means—

• (a) in the case of a body corporate or its director—

• (i) the registered or principal office of that body; or

• (ii) the email address of the secretary or clerk of that body;

• (b) in the case of a partnership, a partner or person having control or management of the partnership business—

• (i) the principal office of the partnership; or

• (ii) the email address of the partner or person having that control or management;

• (c) in any other case, a person's last known address, which includes an email address.

• (5) If a person to be served with a document has specified an address in the United Kingdom (other than that person's proper address) at which that person or someone on that person's behalf will accept service, that address shall also be treated as that person's proper address.

Action by enforcing authority

22

• (1) The Department may itself take action which an economic operator could have been required to take by a notice served under or by virtue of Parts 1 or 2 of this Schedule where the conditions for serving such a notice are met and either—

• (a) the Department has been unable to identify any economic operator on whom to serve such a notice; or

• (b) the economic operator on whom such a notice has been served has failed to comply with it.

• (2) If the Department has taken action as a result of the condition in sub-paragraph (1)(b) being met, the Department may recover from the economic operator, as a civil debt, any costs or expenses reasonably incurred by the Department in taking the action.

• (3) A civil debt recoverable under sub-paragraph (2) may be recovered summarily by way of a complaint pursuant to Article 62 of the Magistrates' Court (Northern Ireland) Order 1981 .

Appeals against notices

23

• (1) An application for an order to vary or set aside the terms of a notice served under Part 2 of this Schedule may be made to the appropriate court—

• (a) by the economic operator on whom the notice has been served; and

• (b) in the case of a notice other than a recall notice, by a person having an interest in the civil explosive in respect of which the notice has been served.

• (2) An application must be made before the end of the period of 21 days beginning with the day on which the notice was served.

• (3) The appropriate court may only make an order setting aside a notice served under Part 2 of this Schedule if satisfied—

• (a) that the civil explosive to which that notice relates is in conformity with Part 3 and does not present a risk; or

• (b) that the enforcing authority failed to comply with paragraph 4 when serving the notice.

• (4) On an application to vary the terms of a notice referred to in Part 2 of this Schedule, the appropriate court may vary the terms of the notice as it considers appropriate.

• (5) In this paragraph, the “appropriate court” is to be determined in accordance with paragraph 24 (appropriate court for appeals against notices).

Appropriate court for appeals against notices

24

• (1) The appropriate court for the purposes of paragraph 23 is—

• (a) the court in which proceedings have been brought for an offence in relation to the civil explosive under Article 31 (Offences) of the 1978 Order;

• (b) an industrial tribunal seized of appeal proceedings against a notice which relates to the civil explosive and which had been served under or by virtue of Part 1 of this Schedule; or

• (c) in any other case, a magistrates' court.

• (2) A person aggrieved by an order made by a magistrates' court pursuant to an application under paragraph 23, or by a decision of such a court not to make such an order, may appeal against that order or decision to the Crown Court.

SCHEDULE 3 — NOTIFIED BODY REQUIREMENTS

1

A conformity assessment body must be established in the United Kingdom and have legal personality.

2

A conformity assessment body must be a third party body independent of the organisation or the explosive it assesses.

3

• (1) A conformity assessment body, its top level management and the personnel responsible for carrying out the conformity assessment activities must not be the designer, manufacturer, supplier, installer, purchaser, owner, user or maintainer of explosives, nor the representative of any of those parties.

• (2) Sub-paragraph (1) does not preclude the use of explosives that are necessary for the operations of the conformity assessment body or the use of explosives for personal purposes.

4

A conformity assessment body, its top level management and the personnel responsible for carrying out the conformity assessment activities must not be directly involved in the design, manufacture or construction, the marketing, installation, use or maintenance of explosives, or represent the parties engaged in those activities.

5

A conformity assessment body, its top level management and the personnel responsible for carrying out the conformity assessment activities must not engage in activity that may conflict with their independence of judgement or integrity in relation to conformity assessment activities for which they are notified (including consultancy services).

6

A conformity assessment body must ensure that the activities of its subsidiaries or subcontractors do not affect the confidentiality, objectivity or impartiality of their conformity assessment activities.

7

A conformity assessment body and its personnel must carry out the conformity assessment activities with the highest degree of professional integrity and the requisite technical competence in the specific field and must be free from all pressures and inducements, particularly financial, which might influence their judgement or the results of their conformity assessment activities, especially as regards persons or groups of persons with an interest in those activities.

8

A conformity assessment body must be capable of carrying out all of the conformity assessment activities in relation to which it has been, or it is to be, notified, whether those tasks are carried out by the conformity assessment body itself or on its behalf and under its responsibility.

9

A conformity assessment body must have at its disposal—

• (a) personnel with technical knowledge and sufficient and appropriate experience to perform the conformity assessment activities;

• (b) descriptions of procedures in accordance with which conformity assessment is carried out, ensuring the transparency and the ability of reproduction of those procedures, and have appropriate policies and procedures in place that distinguish between tasks it carries out as a notified body and other activities;

• (c) procedures for the performance of activities which take due account of the size of an undertaking, the sector in which it operates, its structure, the degree of complexity of the product technology in question and the mass or serial nature of the process.

10

A conformity assessment body must have the means necessary to perform the technical and administrative tasks connected with the conformity assessment activities in an appropriate manner and must have access to the necessary equipment or facilities.

11

The personnel responsible for carrying out conformity assessment activities must have—

• (a) sound technical and vocational training covering all the conformity assessment activities in relation to which the conformity assessment body has been notified;

• (b) satisfactory knowledge of the requirements of the assessments which the personnel carry out and adequate authority to carry out those assessments;

• (c) appropriate knowledge and understanding of the essential safety requirements, of the applicable harmonised standards and of the Directive and of these Regulations;

• (d) the ability to draw up certificates, records and reports demonstrating that assessments have been carried out.

12

A conformity assessment body must be able to demonstrate the impartiality of its top level management and the personnel responsible for carrying out the conformity assessment activities.

13

The remuneration of the top level management and the personnel responsible for carrying out the conformity assessment activities must not depend on the number of assessments carried out or on the results of those activities.

14

A conformity assessment body must have, and must satisfy the Secretary of State that it has, adequate civil liability insurance in respect of its activities.

15

A conformity assessment body must ensure that its personnel observe professional secrecy with regard to all information obtained in carrying out their tasks in accordance with these Regulations and that proprietary rights are protected.

16

Paragraph 15 does not prevent the personnel from providing information to the Secretary of State or the enforcing authority in respect of Part 3 of these Regulations.

17

A conformity assessment body must participate in, or ensure that its personnel who are responsible for carrying out the conformity assessment activities are informed of, the relevant standardisation activities and the activities of any notified body coordination group established under the Directive and must apply as general guidance the administrative decisions and documents produced as a result of the work of that group.

SCHEDULE 4 — OPERATIONAL OBLIGATIONS OF NOTIFIED BODIES

1

A notified body must carry out conformity assessments in accordance with the relevant conformity assessment procedures.

2

A notified body must carry out conformity assessments in a proportionate manner, avoiding unnecessary burdens on economic operators.

3

A notified body must perform its activities taking due account of the size of an undertaking, the sector in which it operates, its structure, the degree of complexity of the product technology in question and the mass or serial nature of the production process.

4

A notified body must respect the degree of rigour and the level of protection required to ensure that the explosive is in conformity with the requirements of these Regulations.

5

Where a notified body finds that essential safety requirements or corresponding harmonised standards or other technical specifications have not been met by a manufacturer, it must require the manufacturer to take appropriate corrective measures and must not issue a certificate of conformity or grant an approval.

6

Where, in the course of the monitoring of conformity following the issue of a certificate or grant of an approval, a notified body finds that an explosive is no longer in conformity with the essential safety requirements, it must require the manufacturer to take appropriate corrective measures and must suspend or withdraw the certificate of conformity or approval (if necessary).

7

Where the notified body has required a manufacturer to take corrective measures and the manufacturer has failed to take such measures, or those measures have not had the required effect, the notified body must restrict, suspend or withdraw any certificate od conformity or approval.

8

Paragraph 9 applies where a notified body is minded to—

• (a) refuse to issue a certificate of conformity or grant an approval;

• (b) restrict, suspend or withdraw a certificate of conformity or approval.

9

Where this paragraph applies, the notified body must—

• (a) give the person applying for the certificate of approval, or the person to whom the certificate or approval was given, a notice in writing giving reasons and specifying the date on which the refusal, restriction, suspension or withdrawal is intended to take effect;

• (b) give the person applying for the certificate or approval, or the person to whom the certificate or approval was given, an opportunity to make representations within a reasonable period from the date of the notice; and

• (c) take account of any such representations before taking its decision.

10

A notified body must inform the Secretary of State of—

• (a) any refusal, restriction, suspension or withdrawal of a certificate of conformity or approval;

• (b) any circumstances affecting the scope of, or conditions for, notification under regulation 36 (notification);

• (c) any request for information which it has received from the enforcing authority in respect of Part 3 regarding conformity assessment activities; and

• (d) on request, conformity assessment activities performed within the scope of its notification under regulation 10 and any other activity performed, including cross-border activities and subcontracting.

11

A notified body must make provision in its contracts with its clients enabling such clients to appeal against a decision—

• (a) to refuse to issue a certificate of conformity or grant an approval; or

• (b) to restrict, suspend or withdraw a certificate of conformity or approval.

12

A notified body must provide other bodies notified under the Directive carrying out similar conformity assessment activities covering the same civil explosives with relevant information on issues relating to negative and, on request, positive conformity assessment results.

13

A notified body must participate in the work of any notified body coordination group established under the Directive, directly, or by means of its designated representatives.

Signed

Sealed with the Official Seal of the Department of Justice on 29th September 2016

Claire Sugden — Minister of Justice

Explanatory note

(This note is not part of the Regulations)

1These Regulations, in respect of Northern Ireland, implement Directive 2014/28/EU of the European Parliament and of the Council on the harmonisation of the laws of the Member States relating to the making available on the market and supervision of explosives for civil uses (recast) (the Directive).

2The Directive repeals and replaces Council Directive 93/15/EEC on the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil uses (the repealed Directive) as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29th September 2003 , Regulation (EC) No 219/2009 of the European Parliament and of the Council of 11th March 2009 and Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25th October 2012 .

3The repealed Directive was implemented in Northern Ireland by the Placing on the Market and Supervision of Transfers of Explosives Regulations (Northern Ireland) 1993 (the 1993 Regulations). These Regulations repeal and replace the 1993 Regulations.

4Part 2 establishes a system for the supervision of transfers of civil explosives. Before any civil explosives are moved, apart from movement on the same site, the consignee must obtain a recipient competent authority document from the competent authority for the place within the EEA States where the transfer will terminate.

5Part 3 makes provision in relation to “economic operators”, conformity assessment and notification of conformity assessment bodies. Duties are imposed on manufacturers, importers and distributors of civil explosives. Provision is made as to the appointment in writing of authorised representatives by manufacturers who may then perform certain tasks on the manufacturer's behalf.

6For manufacturers the duties include ensuring that a civil explosive has been designed and manufactured in accordance with the essential safety requirements set out in Schedule 1, having a relevant conformity assessment procedure carried out before the civil explosive is placed on the market and affixing the CE marking.

7For importers the obligations include ensuring that they are not placing on the market civil explosives which are not in conformity with the essential safety requirements, checking that the manufacturer has carried out a relevant conformity assessment procedure and indicating on the civil explosives the address, name, registered trade name or trade mark of the importer.

8The obligations on distributors include acting with due care to ensure that civil explosives are in conformity and checking that the civil explosives bear the CE marking.

9Sub-Part C of Part 3 sets out provisions concerning the bodies which can carry out conformity assessment procedures.

10Part 4 and Schedule 2 make provisions as to enforcement and market surveillance and related matters

11Part 5 provides for the power to grant exemptions and miscellaneous provisions..

12Schedules 3 and 4 set out, respectively, notified body requirements and operational obligations of notified bodies.

Footnotes

(This Schedule reproduces, with minor modifications, the provision of Annex II to the Directive)

Editorial notes