The Recreational Craft Regulations 2017

PART 1 GENERAL

Citation and commencement

1.  These Regulations may be cited as the Recreational Craft Regulations 2017 and come into force on 3rd August 2017 (“the commencement date”).

Interpretation

2.—(1) In these Regulations—

“the 1987 Act” means the Consumer Protection Act 1987(1);

“accreditation” has the meaning set out in point 10 of Article 2 of RAMS (as amended from time to time);

“accreditation certificate” means a certificate, issued by the United Kingdom Accreditation Service (a company limited by guarantee incorporated in England and Wales under number 03076190) or a national accreditation body of another Member State, attesting that a conformity assessment body meets the notified body requirements;

“adaptor” means a person who adapts an engine for use in watercraft;

“authorised representative” means a person appointed in accordance with regulation 39;

“CE marking” means a marking which takes the form set out in Annex II of RAMS (as amended from time to time);

“Commission” means the Commission of the European Union;

“competent national authority” means an authority having responsibility for enforcing the law of a Member State which implements the Directive;

“components” means the components of watercraft listed in Schedule 2 when placed on the EU market separately and when intended for installation in watercraft;

“conformity assessment” means the process demonstrating whether the essential requirements relating to a product have been fulfilled;

“conformity assessment body” means a body that performs conformity assessment activities including calibration, testing, certification and inspection;

“Decision 768/2008” means Decision No. 768/2008/EC of the European Parliament and of the Council of 9 July 2008 on a common framework for the marketing of products(2);

the “Directive” means Directive 2013/53/EU of the European Parliament and of the Council on recreational craft and personal watercraft repealing Directive 94/25/EC(3);

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

“district council” means a district council within the meaning of the Local Government Act (Northern Ireland) 1972(4);

“economic operator” means a manufacturer, an authorised representative, an importer or a distributor;

“enforcing authority” means any person enforcing these Regulations under regulation 66;

“engine family” means the manufacturer’s grouping of engines which, through their design, have similar exhaust or noise emission characteristics;

“essential requirements” means the requirements set out in regulation 6;

“EU declaration of conformity” means the declaration required to be drawn up in accordance with regulation 10(1)(a) (EU declaration of conformity and CE marking);

“harmonised standard” has the meaning set out in paragraph (c) of Article 2(1) of Regulation (EU) No 1025/2012 of the European Parliament and of the Council on European Standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC 2004/22/EC, 2007/23/EC 2009/23/EC and 2009/105/EC of the European Parliament and of the Council, and repealing Council Decision 87/95/EEC and Decision 1673/2006/EC of the European Parliament and of the Council(5) (as amended from time to time);

“hull length” means the length of the hull measured in accordance with the harmonised standard;

“importer” means a person who—

(a)

is established within the EU, and

(b)

places a product from a third country on the EU market;

“major craft conversion” means a conversion of a watercraft which—

(a)

changes the means of propulsion of the watercraft;

(b)

involves a major engine modification; or

(c)

alters the watercraft to such an extent that it may not meet the applicable essential requirements;

“major engine modification” means the modification of a propulsion engine which—

(a)

could potentially cause the engine to exceed the emissions limits set out in Part B of Schedule 1; or

(b)

increases the rated power of the engine by more than 15%;

“making available on the market” means any supply for distribution, consumption or use on the EU market in the course of a commercial activity, whether in return for payment or free of charge and related expressions must be construed accordingly;

“manufacturer” means a person who—

(a)

manufactures a product or has such a product designed or manufactured; and

(b)

markets that product under that person’s name or trademark;

“market surveillance authority” has the meaning set out in regulation 65 (designation of market surveillance authorities);

“means of propulsion” means the method by which the watercraft is propelled;

“national accreditation body” means national accreditation body as defined in point 11 of Article 2 of RAMS) (as amended from time to time);

“notified body requirements” means the requirements set out in Schedule 11;

“personal watercraft” means a watercraft intended for sports and leisure purposes of less than 4 metres in hull length which uses a propulsion engine having a water jet pump as its primary source of propulsion and designed to be operated by a person or persons sitting, standing or kneeling on, rather than within the confines of, a hull;

“placing on the market” means the first making available of a product on the EU market, and related expressions are to be construed accordingly;

“private importer” means a person established within the EU who imports in the course of a non-commercial activity a watercraft from a third country into the EU with the intention of putting it into service for that person’s own use;

“product” means a product to which these Regulations apply, in accordance with regulation 3;

“propulsion engine” means any spark or compression ignition internal combustion engine used directly or indirectly for propulsion purposes;

“putting into service” means the first use of a product in the EU market by its end-user and related expressions are to be construed accordingly;

“RAMS” means Regulation (EC) 765/2008 of the European Parliament and of the Council setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) 339/93(6);

“recall” means any measure aimed at achieving the return of a watercraft that has already been made available to the end-user and related expressions must be construed accordingly;

“recreational craft” means any watercraft of any type, excluding personal watercraft, intended for sports and leisure purposes of hull length from 2.5 metres to 24 metres, regardless of the means of propulsion;

“relevant conformity assessment procedure” means a conformity assessment procedure referred to in regulation 42 (applicable conformity assessment procedures);

“small or medium-sized enterprise” has the same meaning as in Commission Recommendation 2003/361/EC(7);

“technical documentation” has the meaning given in regulation 9 (technical documentation and conformity assessment);

“watercraft” means any recreational craft or personal watercraft;

“watercraft built for own use” means any watercraft predominantly built by its future user for that user’s own use; and

“withdrawal” means any measure aimed at preventing a watercraft in the supply chain from being made available on the market and related expressions must be construed accordingly.

(2) In these Regulations, a reference to a product being “in conformity with Part 2” means that—

(a) the product is in conformity with the essential requirements;

(b) each economic operator has complied with the obligations imposed on them by Part 2 of these Regulations which must be satisfied at or before the time at which the product is made available on the market.

(3) In these Regulations, except regulation 34 (monitoring) and Schedule 1, “risk” means a risk to—

(a) human health;

(b) the safety of consumers; or

(c) the environment.

(4) In these Regulations, a reference to a Member State is to be read as a reference to an EEA State and references to the EU are to be read as references to the European Economic Area.

(5) In these Regulations (except in Part 4 (notification of conformity assessment bodies) and Schedule 11 (notified body requirements) and 12 (obligations of notified bodies)), “notified body” means—

(a) a notified body within the meaning set out in regulation 55 (notified body); or

(b) a notified body under the laws of any other member State which implement the Directive.

Scope

3.—(1) Subject to regulation 4 (exclusions) these Regulations apply to the following products—

(a) recreational craft and partly completed recreational craft;

(b) personal watercraft and partly completed personal watercraft;

(c) components;

(d) propulsion engines which are installed or specifically intended for installation on or in watercraft;

(e) propulsion engines installed on or in watercraft that are subject to a major engine modification;

(f) watercraft that have been subject to major craft conversion.

(2) A watercraft that can also be used for charter or for sports and leisure training is covered by these Regulations when it is placed on the market for recreational purposes.

Exclusions

4.—(1) The design and construction requirements set out in Part A of Schedule 1 do not apply to the following watercraft—

(a) watercraft intended solely for racing, including rowing racing boats and training boats, labelled as such by the manufacturer;

(b) canoes and kayaks designed to be propelled solely by human power, gondolas and pedalos;

(c) surfboards designed to be propelled by wind and to be operated by a person or persons standing;

(d) other surfboards;

(e) original historical watercraft and individual replicas thereof designed before 1950 built predominantly with the original materials and labelled as such by the manufacturer;

(f) experimental watercraft, unless they are placed on the market;

(g) watercraft built for own use, provided that such watercraft are not subsequently placed on the EU market for a period of five years beginning with the date on which the watercraft was put into service;

(h) watercraft specifically intended to be crewed and to carry passengers for commercial purposes, except when they fall within regulation 3(2), regardless of the number of passengers;

(i) submersibles;

(j) air cushion vehicles;

(k) hydrofoils;

(l) external combustion steam powered watercraft, fuelled by coal, coke, wood, oil or gas;

(m) amphibious vehicles, that is to say wheeled or track-laying motor vehicles, which are able to operate both on water and on solid land.

(2) The exhaust emission requirements set out in Part B of Schedule 1 do not apply to the following—

(a) propulsion engines installed or specifically intended for installation in the following products—

(i) watercraft intended solely for racing and labelled as such by the manufacturer;

(ii) experimental watercraft, unless they are placed on the market;

(iii) watercraft specifically intended to be crewed and to carry passengers for commercial purposes, except when they fall within regulation 3(2) regardless of the number of passengers;

(iv) submersibles;

(v) air cushion vehicles;

(vi) hydrofoils;

(vii) amphibious vehicles, that is to say wheeled or track-laying motor vehicles, which are able to operate on water and on solid land;

(b) original historical propulsion engines and individual replicas thereof, which are based on a pre-1950 design, not produced in series and fitted on watercraft referred to in paragraph 4(1)(e) or paragraph 4(1)(h) above;

(c) propulsion engines built for own use provided that such engines are not subsequently placed on the market for a period of five years beginning with the date on which the watercraft was put into service.

(3) The noise emission requirements referred to in Part C of Schedule 1 do not apply to—

(a) any watercraft referred to in paragraph (2); and

(b) watercraft built for own use, provided that they are not placed on the market for a period of five years beginning with the date on which the watercraft was put into service.

Exhibition at trade fairs

5.  Nothing in these Regulations prevents the showing of a watercraft which does not comply with Part 2 of these Regulations at a trade fair, exhibition or demonstration, provided that a visible sign clearly indicates —

(a) that the product is not in conformity with Part 2 of these Regulations; and

(b) that the product will not be made available on the market or be put into service until it has been brought into conformity.

PART 2 PLACING PRODUCTS ON THE MARKET

Essential requirements

6.  A person may only make a product available on the market or put it into service if that product—

(a) complies with the requirements in Schedule 1; and

(b) does not endanger the health and safety of persons, property or the environment when correctly maintained and used in accordance with its intended purpose.

Making available and putting into service

7.—(1) Nothing in these Regulations prevents a person making available in the United Kingdom or putting into service in the United Kingdom—

(a) any watercraft in conformity with Part 2;

(b) any component which is in conformity with Part 2 and which is intended to be incorporated into any watercraft in accordance with the declaration completed by a manufacturer or importer in accordance with Schedule 3;

(c) any of the following propulsion engines—

(i) engines, whether or not installed in watercraft, that are in conformity with Part 2;

(ii) engines installed in watercraft and type-approved in accordance with Directive 97/68/EC of the European Parliament and of the Council of 16 December 1997 on the approximation of the laws of the Member States relating to measures against the emission of gaseous and particulate pollutants from internal combustion engines to be installed in non-road mobile machinery(8), which comply with—

(aa) stage III A or stage III B or stage IV emission limits for C1 engines, used in other applications than the propulsion of inland waterway vessels, locomotives and railcars, as provided for in point 4.1.2 of Annex I of Directive 97/68/EC; and

(bb) these Regulations, with the exclusion of the exhaust emission requirements set out in Part B of Schedule 1;

(iii) engines installed in watercraft and type-approved in accordance with Regulation (EC) No 595/2009(9) on type-approval of motor vehicles and engines with respect to emissions from heavy duty vehicles (Euro VI) and on access to vehicle repair and maintenance information and amending Regulation (EC) No 715/2007 and Directive 2007/46/EC and repealing Directives 80/1269/EEC, 2005/55/EC and 2005/78/EC complying with these Regulations, with the exclusion of the exhaust emission requirements set out in Part B of Schedule 1.

(2) Where an engine is adapted for installation in a watercraft, a person who so adapts that engine must—

(a) make a declaration, in accordance with Schedule 3, that the adapted engine will continue to meet the emission requirements of either Directive 97/68/EC or Regulation 595/2009, when installed in accordance with the installation instructions the adaptor has provided; and

(b) take full account of the data and other information available from the manufacturer, so that, when the adapted engine is installed in accordance with the installation instructions the adaptor provides, the adapted engine continues to meet the exhaust emission requirements in either the Directive or the Regulation referred to in paragraph (a), whichever is referred to in the declaration submitted in accordance with Schedule 3.

(3) Nothing in these Regulations prevents the making available in the United Kingdom of any partly completed watercraft where the manufacturer or the importer has declared, in accordance with Schedule 3, that the craft complies with the essential requirements at this stage in its construction and that the craft will be completed by others in full compliance with these Regulations.

MANUFACTURERS

Duty to ensure products comply with the essential requirements

8.  Before placing a product on the market, a manufacturer must ensure that it has been designed and manufactured in accordance with the essential requirements.

Technical documentation and conformity assessment

9.  Before placing a product on the market a manufacturer must—

(a) have a relevant conformity assessment procedure carried out; and

(b) draw up—

(i) the technical documentation referred to in Schedule 9; and

(ii) any other technical documentation required as part of the relevant conformity assessment procedure to demonstrate the means used by the manufacturer to ensure that the product complies with the essential requirements.

EU declaration of conformity and CE marking

10.—(1) Where the conformity of a product with the essential requirements has been demonstrated by a relevant conformity assessment procedure, the manufacturer must, before placing the product on the market—

(a) draw up the EU declaration of conformity in accordance with regulation 53 (EU declaration of conformity); and

(b) affix the CE marking to the product in accordance with regulation 54 (CE marking).

(2) The EU declaration of conformity must follow the format set out in Schedule 4 (EU Declaration of conformity), and be translated into a language required by the Member State where the product will be made available or put into service, unless paragraph (3) applies.

(3) If an EU declaration of conformity relates to a partly completed watercraft, that declaration must follow the format set out in Schedule 3 and be translated into a language required by the Member State where the partly completed watercraft will be made available or put into service.

(4) The manufacturer must keep the EU declaration of conformity up-to-date.

(5) Where a product is subject to more than one EU instrument requiring a declaration of conformity to be drawn up, the manufacturer must draw up a single declaration of conformity, which—

(a) identifies all of the applicable EU instruments; and

(b) includes references to the publication of those EU instruments in the Official Journal of the European Union

Duty of manufacturers to retain technical documentation and EU declaration of conformity

11.  A manufacturer must keep the technical documentation and the EU declaration of conformity drawn up in respect of a product for a period of 10 years beginning with the day on which the product is placed on the market.

Compliance procedures for series production

12.—(1) The manufacturer of a product which is manufactured by series production must ensure that, before placing the product on the market, procedures are in place to ensure that any product so manufactured will be in conformity with the manufacturer’s obligations under Part 2.

(2) In doing so, the manufacturer must take adequate account of—

(a) any changes in the design or characteristics of a product; and

(b) any changes in the harmonised standard or in another technical specification by reference to which the EU declaration of conformity of the product was drawn up.

Duty of manufacturers to ensure products are labelled

13.—(1) Before placing a product on the market, a manufacturer must indicate on the product—

(a) a type, batch or serial number; or

(b) another element which identifies the manufacturer as the manufacturer of the product;

(2) Where, in the case of a component, it is not possible to indicate the information on the component because of the size or nature of the component, the manufacturer must provide the information specified in paragraph (1)—

(a) on the packaging; or

(b) in a document accompanying the component.

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.

Instructions and safety information

15.—(1) When placing a product on the market, a manufacturer must ensure that it is accompanied by instructions and safety information in a language which can be easily understood by consumers and other end-users in the Member State in which the product is to be made available.

(2) When the product is being made available to consumers and other end-users in the United Kingdom, that language which can be easily understood is English.

Duty to take action in respect of product placed on the market which is considered not to be in conformity

16.—(1) A manufacturer who considers or has reason to believe that a product that it has placed on the market is not in conformity Part 2, must immediately take the corrective measures necessary to—

(a) bring the product into conformity;

(b) withdraw the product from the market; or

(c) recall it.

(2) Where the product presents a risk, the manufacturer must immediately inform the market surveillance authority and the competent national authorities in any Member State in which the manufacturer has made the product available on the market of the risk, giving details of—

(a) the reason why the product is not considered to be in conformity; and

(b) any corrective measures taken.

Provision of information and co-operation

17.—(1) A manufacturer must, following a reasoned request from an enforcing authority, provide it with all of the information and documentation necessary to demonstrate the conformity of the product with the requirements of this Part.

(2) The information and documentation referred to in paragraph (1) must be in a language that can be easily understood by the enforcing authority.

(3) The manufacturer 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 manufacturer has placed on the market.

IMPORTERS

Prohibition on placing products on the market

18.  An importer must not place a product on the market unless it complies with the essential requirements.

Requirements that must be satisfied before an importer places a product on the market

19.—(1) Before placing a product on the market an importer must ensure that—

(a) a relevant conformity assessment has been carried out by the manufacturer;

(b) the manufacturer has drawn up the technical documentation;

(c) the product—

(i) bears the CE marking; and

(ii) is accompanied by the required documents; and;

(d) the manufacturer has complied with the requirements of regulations 13 (duty of manufacturers to ensure products are labelled) and 14 (duty to provide information).

(2) In paragraph (1)(c)(ii) “required documents” means—

(a) the EU declaration of conformity; and

(b) the owner’s manual referred to in Schedule 1.

Duty not to place a product on the market where an importer suspects that it is not in conformity

20.—(1) Where an importer believes or has reason to believe that a product is not in conformity with the essential requirements, the importer must not place the product on the market.

(2) Where a product presents a risk, the importer must inform the manufacturer and the market surveillance authority of that risk.

Duty of importer to ensure products are labelled

21.—(1) Before placing a product on the market, an importer must indicate on the product—

(a) the importer’s name, registered trade name or registered trade mark; and

(b) the address at which they can be contacted.

(2) Where, in the case of components, it is not possible to indicate the information on the component, the importer must indicate the information specified in paragraph (1)—

(a) on the packaging; or

(b) in a document accompanying the component.

Instructions and safety information

22.—(1) When placing a product on the market, an importer must ensure that it is accompanied by instructions and safety information in a language which can be easily understood by consumers and other end-users in the Member State in which the product is to be made available.

(2) When the product is being made available to consumers and other end-users in the United Kingdom, the language which can be easily understood by consumers and other end-users is English.

Storage and transport

23.  An importer must ensure that, while a product is the importer’s responsibility, its storage or transport conditions do not jeopardise its conformity with the essential requirements.

Duty to take action in respect of product placed on the market which is considered not to be in conformity

24.—(1) An importer who considers or has reason to believe that a product which the importer has placed on the market is not in conformity with Part 2 must immediately take the corrective measures necessary to—

(a) bring the product into conformity;

(b) to withdraw the product from the market; or

(c) recall it, if appropriate.

(2) Where the product presents a risk, the importer must immediately inform the market surveillance authority and the competent national authorities of any other Member State in which the importer has made the product available on the market of the risk, giving details of—

(a) the reason or reasons why the product is not considered to be in conformity with Part 2; and

(b) any corrective measures taken.

Duty of importers to retain technical documentation and EU declaration of conformity

25.  An importer must, for the period of 10 years beginning on the day on which the product is placed on the market—

(a) keep a copy of the EU declaration of conformity at the disposal of the market surveillance authorities; and

(b) ensure that the technical documentation relating to that product can be made available to the market surveillance authorities upon request.

Provision of information and co-operation

26.—(1) An importer must, following a reasoned request from an enforcing authority, provide it with all of the information and documentation necessary to demonstrate the conformity of the product with the requirements of this Part.

(2) The information and documentation referred to in paragraph (1) must be in a language that can be easily understood by the enforcing authority.

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

DISTRIBUTORS

Duty to act with due care

27.  When making a product available on the market, a distributor must act with due care to ensure the conformity of that product with Part 2.

Making available on the market

28.—(1) Before making a product available on the market, a distributor must verify that—

(a) the product—

(i) bears the CE marking;

(ii) is accompanied by the required documents;

(iii) is accompanied by the instructions and safety information in a language that can be easily understood by consumers and other end-users in the Member State in which the product is to be made available on the market; and

(b) the manufacturer has complied with the requirements of—

(i) regulation 13 (duty of manufacturers to ensure products are labelled); and

(ii) regulation 14 (duty to provide information); and

(c) the importer has complied with the requirements of regulation 21 (duty of importers to ensure products are labelled).

(2) For the purposes of this regulation “required documents” has the same meaning as in regulation 19(2) (requirements that must be satisfied before an importer places a product on the market).

Duty not to place a product on the market where a distributor suspects that it is not in conformity

29.—(1) Where a distributor considers or has reason to believe that a product is not in conformity with the essential requirements, the distributor must not place the product on the market.

(2) Where a product presents a risk, the distributor must inform the manufacturer or importer, and the market surveillance authority and the competent national authorities of other Member States in which the distributor has made the product available on the market of that risk.

Storage and transport

30.  A distributor must ensure that, while a product is the distributor’s responsibility, its storage or transport conditions do not jeopardise its conformity with the essential requirements.

Duty to take action in respect of watercraft placed on the market which is considered not to be in conformity

31.—(1) A distributor who considers or has reason to believe that a product that the distributor has made available on the market is not in conformity with Part 2 must ensure that corrective measures necessary are taken to—

(a) bring the product into conformity;

(b) to withdraw the product from the market; or

(c) recall it.

(2) Where the product presents a risk, the distributor must immediately inform the market surveillance authority and the competent national authorities of any other Member State in which the distributor has made the product available on the market of the risk, giving details of—

(a) the reason or reasons why the product is not considered to be in conformity; and

(b) any corrective measures taken.

Provision of information and co-operation

32.—(1) A distributor must, following a reasoned request from an enforcing authority, provide it with all of the information and documentation necessary to demonstrate the conformity of the product with the requirements of this Part.

(2) The information and documentation referred to in paragraph (1) must be in a language that can be easily understood by the enforcing authority.

(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.

IMPORTERS AND DISTRIBUTORS

Cases in which the obligations of manufacturers apply to importers and distributors

33.  An importer or a distributor (“A”) who—

(a) places a product on the market under A’s own name or trademark; or

(b) modifies a product already placed on the market in such a way that it may affect whether the product is in conformity with Part 2

is to be treated as the manufacturer of that product for the purposes of these Regulations and must comply with the obligations of a manufacturer set out in this Part.

MANUFACTURERS AND IMPORTERS

Monitoring

34.—(1) Where appropriate with regard to the risks presented by the product to the health and safety of consumers the manufacturer or the importer must carry out monitoring to protect the health and safety of consumers by—

(a) carrying out sample testing of a product made available on the market;

(b) investigate any complaint that a product is not in conformity with Part 2; and

(c) keep a register of—

(i) complaints;

(ii) products that are not in conformity; and

(iii) the recall of any product.

(2) The manufacturer or the importer must keep distributors informed of monitoring carried out under this regulation.

(3) The manufacturer must keep an entry made in the register for a period of at least 10 years beginning on the day on which the obligation to make the entry arose.

Translation of EU declaration of conformity

35.—(1) For the purposes of regulation 10(2) and (3), where the product is to be made available on the market in the United Kingdom, the language required is English.

PRIVATE IMPORTERS AND ECONOMIC OPERATORS

Private importers

36.—(1) If a manufacturer has not complied with the manufacturer’s obligations under this Part, a private importer must ensure, before putting a product into service, that—

(a) the product has been designed and manufactured in accordance with the essential requirements; and

(b) the obligations of the manufacturer under the following regulations have been met or carried out in relation to the product—

(i) regulation 9 (technical documentation and conformity assessment);

(ii) regulation 10 (EU declaration of conformity and CE marking);

(iii) regulation 11 (duty of manufacturers to retain technical documentation and EU declaration of conformity); and

(iv) regulation 22 (instructions and safety information).

(2) A private importer must also carry out or have carried out any obligation to provide information and co-operation imposed on a manufacturer pursuant to regulation 17 (provision of information and co-operation).

(3) Where the technical documentation is not available from the manufacturer, a private importer must have this documentation drawn up using appropriate expertise.

(4) The private importer must ensure that the name and postal address of the notified body that carried out the relevant conformity assessment procedure in relation to the product under regulation 9(1)(a) is marked on the product.

Identification of economic operators

37.—(1) An economic operator (“E”) who receives a request from the market surveillance authority before the end of the relevant period, must, within such period as the authority may specify, identify to the authority—

(a) any economic operator who has supplied E with a product; and

(b) any economic operator to whom E has supplied a product.

(2) The relevant period is—

(a) for information under paragraph (1)(a), a period of 10 years beginning on the day on which E was supplied with the product;

(b) for information under paragraph (1)(b) a period of 10 years beginning on the day on which E supplied the product.

Obligations on private importers to identify economic operators

38.—(1) A private importer who receives a request from the market surveillance authority before the end of the relevant period, must, within such period as the market surveillance authority may specify, identify to the market surveillance authority any economic operator which has supplied the private importer with a product.

(2) The relevant period is a period of 10 years beginning on the day on which the private importer was supplied with a product.

AUTHORISED REPRESENTATIVES

Authorised representatives

39.—(1) A manufacturer may by written mandate, appoint a person established in the EU as their authorised representative to perform specified tasks on their behalf.

(2) A manufacturer who has appointed an authorised representative to perform, on the manufacturer’s behalf, a task under these Regulations remains responsible for the proper performance of the task.

(3) The mandate must allow the authorised representative to do at least the following in relation to a product covered by the mandate—

(a) keep a copy of—

(i) the EU declaration of conformity; and

(ii) the technical documentation referred to in regulation 9 (technical documentation and conformity assessment)

at the disposal of the enforcing authority and competent national authorities, for a period of 10 years beginning on the day on which the product is placed on the market;

(b) provide, following a reasoned request from an enforcing authority, all of the information and documentation necessary to demonstrate the conformity of a the product with the essential requirements; and

(c) co-operate with the competent national authorities, upon their request, on any action to eliminate the risks posed by a product covered by their mandate.

(4) The obligations in regulation 8 (duty to ensure watercraft comply with essential requirements) and regulation 9 (technical documentation and conformity assessment) must not form part of an authorised representative’s mandate.

(5) An authorised representative must comply with all the duties imposed on the manufacturer in relation to each obligation under these Regulations that the representative is appointed by the mandate to perform and accordingly—

(a) as far as those duties are concerned, as well as the penalties for failure to comply with those duties, a reference in these Regulations to the manufacturer (except in this regulation) is to be taken as including a reference to the authorised representative; and

(b) if the authorised representative contravenes or fails to comply with any of those duties, the authorised representative may be proceeded against as though the authorised representative were the manufacturer.

MISCELLANEOUS

Prohibition on improper use of CE marking

40.—(1) An economic operator must not affix the CE marking to a product unless—

(a) the economic operator is the manufacturer; and

(b) the conformity of the product with the essential requirements has been demonstrated by the relevant conformity assessment procedure.

(2) An economic operator must not affix to a product a marking, sign or inscription which is likely to mislead any other person as to the meaning or form of the CE marking.

(3) An economic operator must not affix to a product any other marking if the visibility, legibility and meaning of the CE marking would be impaired as a result.

PART 3 CONFORMITY OF THE PRODUCT AND CONFORMITY ASSESSMENT PROCEDURES

Presumption of conformity

41.—(1) A product which is in conformity with a harmonised standard (or part of such a standard) the reference to which has been published in the Official Journal of the European Union is to be presumed to be in conformity with the essential requirements covered by that standard (or that part of that standard).

(2) The presumption in paragraph (1) is rebuttable.

Applicable conformity assessment procedures

42.  Before placing a product on the market the manufacturer must apply the conformity assessment procedures set out in the modules set out in Annex II of Decision 768/2008 and referred to in regulations 44 (design and construction) to 47 (noise emissions: personal watercraft).

Duty to carry out the post construction assessment

43.—(1) Before putting a product into service a private importer must apply the procedure referred to in regulation 48 (requirements of the post-construction assessment) to that product if the manufacturer of the product has not already carried out the conformity assessment for the product concerned.

(2) Any person must, before placing or putting into service on the market—

(a) a propulsion engine or watercraft which has had a major engine modification or major craft conversion; or

(b) a watercraft which has had a change in its intended purpose so that it falls within scope of these Regulations

apply the procedure referred to in regulation 48 (requirements of the post-construction assessment).

(3) Any person placing on the market a watercraft built for own use before the end of the five-year period beginning on the day on which the watercraft was put into service, must apply the procedure referred to in regulation 48 before placing the watercraft on the market.

Design and construction

44.—(1) With regard to the design and construction of recreational craft, the following conformity assessment procedures set out in Annex II to Decision 768/2008/EC apply—

(a) for design categories A and B referred to in paragraph 1 of Part A of Schedule 1—

(i) for recreational craft of hull length from 2.5 metres to less than 12 metres, any of the following modules—

(aa) Module A1 (internal production control plus supervised product testing);

(bb) Module B (EU-type examination) together with Module C (conformity to type based on internal production control), Module D (conformity to type based on quality assurance of the production process), Module E (conformity to type based on product quality assurance) or Module F (conformity to type based on product verification);

(cc) Module G (conformity based on unit verification);

(dd) Module H (conformity based on full quality assurance);

(ii) for recreational craft of hull length from 12 metres to less than 24 metres, any of the following modules—

(aa) Module B (EU-type examination) together with Module C (conformity to type based on internal production control), Module D (conformity to type based on quality assurance of the production process), Module E (conformity to type based on quality product assurance) or Module F (conformity to type based on product verification);

(bb) Module G (conformity based on unit verification);

(cc) Module H (conformity based on full quality assurance);

(b) for design category C referred to in paragraph 1 of Part A of Schedule 1—

(i) for recreational craft of hull length from 2.5 metres to less than 12 metres where the harmonised standards relating to paragraphs 3.2 and 3.3 of Part A of Schedule 1 are complied with, any of the following modules—

(aa) Module A (internal production control);

(bb) Module A1 (internal production control plus supervised product testing);

(cc) Module B (EU type-examination together with Module C (conformity to type based on internal production control)), Module D (conformity to type based on quality assurance of the production process), Module E (conformity to type based on quality product assurance) or Module F (conformity to type based on product verification);

(dd) Module G (conformity based on unit verification);

(ee) Module H (conformity based on full quality assurance);

(ii) for recreational craft of hull length from 2.5 metres to less than 12 metres where the harmonised standards relating to paragraphs 3.2 and 3.3 of Part A of Schedule 1 are not complied with, any of the following modules—

(aa) Module A1 (internal production control plus supervised testing);

(bb) Module B (EU type-examination) together with Module C (conformity to type based on internal production control), Module D (conformity to type based on quality assurance of the production process), Module E (conformity to type based on quality product assurance) or Module F (conformity to type based on product verification;

(cc) Module G (conformity based on unit verification);

(dd) Module H (conformity based on full quality assurance);

(iii) for recreational craft of hull length from 12 metres to 24 metres, any of the following modules—

(aa) Module B (EU type-examination) together with Module C (conformity to type based on internal production control), Module D (conformity to type based on quality assurance of the production process), Module E (conformity to type based on quality product assurance) or Module F (conformity to type based on product verification;

(bb) Module G (conformity based on unit verification);

(cc) Module H (conformity based on full quality assurance);

(c) for design category D referred to in paragraph 1 of Part A of Schedule 1 for recreational craft of hull length of 2.5 metres to 24 metres, any of the following modules—

(i) Module A (internal production control);

(ii) Module A1 (internal production control plus supervised testing);

(iii) Module B (EU- type examination together with Module C (conformity to type based on internal production control)), Module D (conformity to type based on quality assurance of the production process), Module E (conformity to type based on product quality assurance) or Module F (conformity to type based on product verification);

(iv) Module G (conformity based on unit verification);

(v) Module H (conformity based on full quality assurance).

(2) With regard to the design and construction of personal watercraft, any of the following procedures set out in Annex II to Decision 768/2008/EC apply—

(a) Module A (internal production control);

(b) Module A1 (internal production control plus supervised testing);

(c) Module B (EU type-examination together with Module C conformity to type based on internal production control), Module D (conformity to type based on quality assurance of the production process), Module E (conformity to type based on quality product assurance) or Module F (conformity to type based on product verification);

(d) Module G (conformity based on unit verification);

(e) Module H (conformity based on full quality assurance).

(3) With regard to the design and construction of components any of the following procedures set out in Annex II to Decision 768/2008/EC apply—

(a) Module B (EU type-examination) together with Module C (conformity to type based on internal production control), Module D (conformity to type based on quality assurance of the production process), Module E (conformity to type based on quality product assurance) or Module F (conformity to type based on product verification);

(b) Module G (conformity based on unit verification);

(c) Module H (conformity based on full quality assurance).

Exhaust emissions

45.  With regard to exhaust emissions, for products referred to in regulation 3(1)(d) and (e), the engine manufacturer must apply the following procedures set out in Annex II to Decision 768/2008/EC—

(a) where the tests are conducted using the harmonised standard, any of the following modules—

(i) Module B (EU-type examination) together with Module C (conformity to type based on internal production control), Module D (conformity to type based on quality assurance of the production process), Module E (conformity to type based on product quality assurance) or Module F (conformity to type based on product verification);

(ii) Module G (conformity based on unit verification);

(iii) Module H (conformity based on full quality assurance);

(b) where the tests are conducted without using the harmonised standard, either of the following modules—

(i) Module B (the EU- type examination) together with Module C1 (conformity to type based on internal production control plus supervised product testing);

(ii) Module G (conformity based on unit verification).

Noise emissions: recreational craft

46.—(1) The manufacturer must apply the relevant procedures in paragraphs (2) to (4) as set out in Annex II to Decision 768/2008/EC with regard to the noise emissions for recreational craft with—

(a) stern drive propulsion engines without integral exhausts or inboard propulsion engine installations; and

(b) stern drive propulsion engines without integral exhausts or inboard propulsion engine installations which are subject to major craft conversion and are subsequently placed on the market within the period of 5 years from the day on which that conversion was completed.

(2) Where tests are conducted using the harmonised standard for noise measurement, any of the following modules apply—

(a) Module A1 (internal production plus supervised product testing);

(b) Module G (conformity based on unit verification);

(c) Module H (conformity based on full quality assurance).

(3) Where tests are conducted without using the harmonised standard for noise measurement, Module G (conformity based on unit verification) applies.

(4) Where the Froude number of power displacement ratio method is used for assessment, any of the following modules apply—

(a) Module A (internal production control);

(b) Module G (conformity based on unit verification);

(c) Module H (conformity based on full quality assurance).

Noise emissions: personal watercraft

47.—(1) The personal watercraft or engine manufacturer must apply the relevant procedure in paragraphs (2) or (3) as set out in Annex II to Decision 768/2008/EC, with regard to noise emissions for—

(a) personal watercraft and outboard propulsion engines; and

(b) stern drive propulsion engines with integral exhausts intended for installation on recreational craft.

(2) Where the tests are conducted using the harmonised standard for noise measurement, any of the following modules apply—

(a) Module A1 (internal production control plus supervised product testing);

(b) Module G (conformity based on unit verification);

(c) Module H (conformity based on full quality assurance).

(3) Where the tests are conducted without using the harmonised standard for noise measurement, Module G (conformity based on unit verification) applies.

Requirements of the post-construction assessment

48.  A post-construction assessment must be carried out in accordance with the process set out in Schedule 5.

SUPPLEMENTARY REQUIREMENTS FOR CERTAIN CONFORMITY ASSESSMENTS

Conformity assessments carried out under Module B (EU-type examination)

49.—(1) Where an economic operator has a conformity assessment carried out on a product under Module B (EU-type examination) of Annex II to Decision 768/2008/EC in relation to a product, the conformity assessment must be carried out in the manner set out in Schedule 10.

(2) A production type may cover several versions of the assessed product, if—

(a) the differences between the versions of the product do not affect the level of safety and the other requirements concerning the performance of the product; and

(b) the different versions of the product are referred to in the corresponding EU-type examination certificate, if necessary by means of amendments to the original certificate.

(3) For the purposes of this regulation—

“production type” means an examination of the adequacy of the technical design of the watercraft through examination of the technical documentation specified in paragraph 3 of Schedule 10 and a specimen watercraft that is representative of the completed watercraft that is to be or has been produced by the manufacturer.

Conformity assessments carried out under Module A1 (internal production control plus supervised product testing)

50.—(1) Where an economic operator has a conformity assessment carried out on a product under Module A1 (internal production control plus supervised product testing) of Annex II to Decision 768/2008/EC—

(a) the product checks must be carried out on at least one watercraft that is representative of the watercraft that is to be or has been produced by the manufacturer; and

(b) the requirements set out in Schedule 6 apply.

(2) The possibility, referred to in Modules A1 and C1 of Annex II of Decision 768/2008, of using an accredited in-house body to perform a conformity assessment under those modules is not applicable in relation to watercraft.

Conformity assessments carried out under Module F (conformity to type based on product verification)

51.  Where an economic operator has a conformity assessment carried out on a product under Module F (conformity to type based on product verification) of Annex II to Decision 768/2008/EC, the procedure set out in Schedule 7 applies.

Conformity assessments carried out under Module C (conformity to type based on internal production control)

52.—(1) This regulation applies where—

(a) an economic operator has a conformity assessment carried out on a watercraft under Module C (conformity to type based on internal production control) of Annex II of Decision 768/2008/EC;

(b) Module C is used to assess the conformity of the product with the exhaust emission requirements of these Regulations; and

(c) the manufacturer is not working under a relevant quality system as described in Module H of Annex II to Decision 768/2008/EC.

(2) A notified body chosen by the manufacturer must carry out product checks as required by Module C or have them carried out at random intervals to be determined by the notified body, in order to verify the quality of the internal checks on the product carried out under the manufacturer’s own checking measures.

(3) When the quality level appears unsatisfactory or when it seems necessary to verify the validity of the data presented by the manufacturer, the procedure set out in Schedule 8 applies.

EU declaration of conformity

53.  The EU declaration of conformity for a product must—

(a) state that the product complies with the essential requirements;

(b) contain the elements specified in regulations 44 to 47 for the relevant conformity assessment in respect of the product; and

(c) be set out in accordance with the model structure set out in Schedule 4.

CE marking

54.—(1) The CE marking must be affixed visibly, legibly and indelibly to the product.

(2) Where it is not possible or warranted, on account of the nature of a component to affix the CE marking in accordance with paragraph (1), the CE marking must be affixed to—

(a) the packaging; and

(b) the accompanying documents.

(3) Where the product referred to in paragraph (1)—

(a) is a watercraft, the CE marking must be affixed to the watercraft builder’s plate and mounted separately from the watercraft identification number; or

(b) is a propulsion engine, the CE marking must be affixed on the engine.

(4) The CE marking must be followed by the identification number of the notified body where—

(a) that body is involved in the production control phase of the conformity assessment under Modules A (internal production control), A1 (internal production control plus supervised product testing) or C (conformity to type based on internal production control) set out in Annex II of Decision 768/2008; or

(b) where a post construction assessment set out in Schedule 5 of these Regulations is being used.

(5) The identification number of the notified body must be affixed—

(a) by the notified body itself; or

(b) under the instructions of the notified body by the manufacturer.

PART 4 NOTIFICATION OF CONFORMITY ASSESSMENT BODIES

Notified bodies

55.  For the purposes of this Part, a notified body is a conformity assessment body—

(a) which has been notified by the Secretary of State, to the European Commission and to the other Member States—

(i) under regulation 56 (notification); or

(ii) before the date these Regulations come into force, in accordance with Article 26 of the Directive; and

(b) in respect of which no objections were raised by the European Commission or other Member States—

(i) within 2 weeks of the date of notification, where notification is accompanied by an accreditation certificate; or

(ii) within 2 months of the date of notification, where the notification is not accompanied by an accreditation certificate.

Notification

56.—(1) The Secretary of State may notify to the European Commission and the other Member States only those conformity assessment bodies that qualify for notification.

(2) A conformity assessment body qualifies for notification if the first and second conditions below are met.

(3) The first condition is that the conformity assessment body has applied to the Secretary of State to become a notified body and the application is accompanied by—

(a) a description of—

(i) the conformity assessment activities that the conformity assessment body intends to carry out;

(ii) the conformity assessment module or modules in respect of which the conformity body claims to be competent; and

(iii) the product for which the conformity assessment body claims to be competent; and either—

(b) an accreditation certificate; or

(c) the documentary evidence necessary for the Secretary of State to verify, recognise and regularly monitor the conformity assessment body’s compliance with the notified body requirements.

(4) The second condition is that the Secretary of State is satisfied that the conformity assessment body meets the notified body requirements.

(5) For the purposes of paragraph (4), the Secretary of State may accept an accreditation certificate, provided in accordance with paragraph 3(b), as sufficient evidence that the conformity assessment body meets the notified body requirements.

(6) When deciding whether to notify a conformity assessment body that qualifies for notification to the European Commission and the other Member States, the Secretary of State may—

(a) have regard to any other matter which appears to the Secretary of State to be relevant; and

(b) set conditions that the conformity assessment body must meet.

(7) The Secretary of State must inform the European Commission of the United Kingdom’s procedures for the assessment and notification of conformity assessment bodies, and any changes to those procedures.

Contents of notification

57.  A notification under regulation 56 (notification) must include—

(a) the details of—

(i) the conformity assessment activities in respect of which the conformity assessment body has made its application for notification;

(ii) the conformity assessment module or modules in respect of which the conformity assessment body has made its application for notification;

(iii) the product in respect of which the conformity assessment body has made its application for notification; and either

(b) an accreditation certificate; or

(c) documentary evidence which attests to—

(i) the conformity assessment body’s competence; and

(ii) the arrangements in place to ensure that the conformity assessment body will be monitored regularly and will continue to satisfy the notified body requirements.

Presumption of conformity of notified bodies

58.—(1) Where a conformity assessment body demonstrates its conformity with the criteria laid down in a harmonised standard (or part of such a standard), the reference of which has been published in the Official Journal of the European Union, the Secretary of State is to presume that the conformity assessment body meets the notified body requirements covered by that standard (or part of that standard).

(2) The presumption in paragraph (1) is rebuttable.

Monitoring of notified bodies

59.—(1) The Secretary of State must monitor each notified body with a view to verifying that the notified body—

(a) continues to meet the notified body requirements;

(b) complies with any condition set in accordance with regulation 56(6)(b); and

(c) carries out its functions in accordance with these Regulations.

(2) The Secretary of State must inform the European Commission of the United Kingdom’s procedures for the monitoring of notified bodies, and any changes to those procedures.

Authorisation of the United Kingdom Accreditation Service

60.  The Secretary of State may authorise the United Kingdom Accreditation Service (a company limited by guarantee incorporated in England and Wales under number 03076190) to carry out the following activities on behalf of the Secretary of State—

(a) assessing applications for designation as a notified body made under regulation 56 (application for designation as a notified body); and

(b) monitoring notified bodies required by regulation 59 (monitoring of notified bodies).

Changes to notifications

61.—(1) Where the Secretary of State determines that a notified body no longer meets a notified body requirements or that it is failing to fulfil its obligations under these Regulations other than a condition set in accordance with regulation 56(6)(b), the Secretary of State must restrict, suspend or withdraw the body’s status as a notified body under regulation 55.

(2) With the consent of the notified body, or where the Secretary of State determines that a notified body no longer meets a condition set in accordance with regulation 56(6)(b), the Secretary of State may restrict, suspend or withdraw the body’s status as a notified body under regulation 55.

(3) In deciding what action is required under paragraph (1) or (2), the Secretary of State must have regard to the seriousness of the non-compliance.

(4) Where the Secretary of State takes action under paragraph (1) or (2), the Secretary of State must immediately inform the European Commission and the other Member States.

(5) Where the Secretary of State has taken action under paragraph (1) or (2), or where the notified body has ceased its activity, the notified body must—

(a) at the request of the Secretary of State, transfer its files relating to the activities it has undertaken as a notified body to another notified body or to the Secretary of State; or

(b) in the absence of a request under sub-paragraph (a), keep its files relating to the activities it has undertaken as a notified body available for inspection by the Secretary of State and the market surveillance authorities for a period of 10 years from the date they were created.

Operational requirements of notified bodies

62.  When a notified body carries out a relevant conformity assessment procedure, Schedule 12 (operational requirements of notified bodies) has effect.

Subsidiaries and contractors

63.—(1) Where a notified body subcontracts specific tasks connected with conformity assessment, or has such tasks carried out by a subsidiary, the tasks are only to be treated as having been carried out by a notified body for the purposes of regulations 44 to 47 where the conditions in paragraphs (2) and (3) are satisfied.

(2) The notified body must—

(a) ensure that the subcontractor or subsidiary meets the notified body requirements; and

(b) inform the Secretary of State accordingly.

(3) The notified body must have obtained the agreement of the client economic operator to the use of a subcontractor or subsidiary.

(4) Where a notified body subcontracts specific tasks connected with conformity assessment, or has such tasks carried out by a subsidiary, the notified body must, for a period of 10 years beginning on the day on which the tasks are carried out, keep at the disposal of the Secretary of State the documentation concerning—

(a) the assessment of the qualifications of the subcontractor or the subsidiary; and

(b) the conformity assessment activities carried out by the subcontractor or subsidiary.

(5) When monitoring a notified body in accordance with regulation 59 (monitoring of notified bodies), the Secretary of State must treat the notified body as responsible for the tasks performed by a subcontractor or subsidiary, wherever the subcontractor or subsidiary is established.

Appeal against a change to a notification

64.—(1) Where the Secretary of State intends to restrict, suspend or withdraw a notification in accordance with regulation 61 (changes to notifications) the Secretary of State must give notice in writing to the notified body concerned that its notification will be restricted, suspended or withdrawn.

(2) A written notice provided in accordance with paragraph (1) must—

(a) state the date on which the notice is issued;

(b) state of the reasons why the notification is being restricted, suspended or withdrawn;

(c) state the date on which the restriction, suspension or withdrawal of the notification is to take effect;

(d) where a notification has been restricted or suspended, state what the effect of that restriction or suspension is upon the notified body;

(e) inform the notified body of its right to make representations to the Secretary of State, in writing, within 14 days of the date on the notice, against this decision.

(3) Where a notified body submits written representations to the Secretary of State, the Secretary of State must respond to those representations within 21 days of the date on which those representations are received, stating whether, having considered those representations, the notice issued under paragraph (1) will be modified or withdrawn.

PART 5 MARKET SURVEILLANCE AND ENFORCEMENT

Designation of market surveillance authorities

65.  The market surveillance authority is—

(a) within its area in Great Britain, the weights and measures authority; and

(b) in Northern Ireland, every district council.

Enforcement

66.—(1) The market surveillance authority must enforce these Regulations and RAMS (in its application to products covered by these Regulations).

(2) The Secretary of State, or a person appointed by the Secretary of State to act on behalf of the Secretary of State, may enforce these Regulations and RAMS (in its application to products covered by these Regulations).

(3) Before taking action under paragraph (2), the Secretary of State or the person appointed by the Secretary of State to act on the Secretary of State’s behalf, must notify the relevant market surveillance authority.

(4) In Scotland, only the Lord Advocate may prosecute an offence under these Regulations.

Enforcement powers

67.  Schedule 13 (enforcement and investigatory powers conferred on the market surveillance authority) and Schedule 14 (compliance, withdrawal and recall notices) of these Regulations have effect.

Evaluation of a product presenting a risk

68.—(1) Where the market surveillance authority has sufficient reason to believe that a product presents a risk, that authority must carry out an evaluation of that product in order to determine whether the product satisfies the requirements of Part 2 of these Regulations in respect of that product.

(2) Where an enforcing authority other than a market surveillance authority has sufficient reason to believe that a product presents a risk, that authority may carry out an evaluation of that product in order to determine whether the product satisfied the requirements of Part 2 of these Regulations in respect of that product.

Enforcement action in respect of products that are not in conformity and which present a risk

69.—(1) Where in the course of the evaluation referred to in regulation 68 (evaluation of product presenting a risk), an enforcing authority finds that the product is not in conformity with Part 2 of these Regulations it must, without delay, require a relevant economic operator to—

(a) take the appropriate corrective action to bring the product into conformity with those requirements within a prescribed period;

(b) withdraw the product within a prescribed period; or

(c) recall the product within a prescribed period.

(2) The enforcing authority must inform the notified body that carried out the conformity assessment in relation to the product of—

(a) the respect in which the product is not in conformity with Part 2 ; and

(b) the actions which the market surveillance authority requires the relevant economic operator to take to bring the product into conformity with Part 2.

(3) Where the enforcing authority is not the Secretary of State and it considers that the non-conformity referred to in paragraph (1) is not restricted to products that have been placed or made available on the market in the United Kingdom, it must notify the Secretary of State of—

(a) the results of the evaluation; and

(b) the actions which it has required the economic operator to take.

(4) Where the Secretary of State receives notice from an enforcing authority under paragraph (3), or otherwise considers that the lack of conformity referred to in paragraph (1) is not restricted to the United Kingdom, the Secretary of State must inform the European Commission and the other Member States of—

(a) the results of the evaluation; and

(b) the actions which the enforcing authority has required the economic operator to take.

(5) Where the relevant economic operator does not take adequate corrective action within the prescribed period, the enforcing authority must take appropriate measures to—

(a) prohibit or restrict the product being made available on the market in the United Kingdom;

(b) withdraw the product from the United Kingdom market; or

(c) recall the product.

(6) Where the enforcing authority is not the Secretary of State and it takes measures under paragraph (5), it must notify the Secretary of State of those measures without delay.

(7) Where the Secretary of State receives a notice under paragraph (6), or takes measures under paragraph (5), the Secretary of State must notify the European Commission and the other Member States without delay.

(8) The notices referred to in paragraphs (6) and (7) must include details about the product and, in particular—

(a) the information necessary to identify the product that is not in conformity;

(b) the origin of the product;

(c) the nature of the alleged lack of conformity and the risk involved;

(d) the nature and duration of the measures taken;

(e) the arguments put forward by the economic operator; and

(f) whether the failure of the product to conform with the requirements of Part 2 is due to—

(i) the failure of the product to meet the requirements of that Part and Schedule 1 relating to risk; or

(ii) shortcomings in a harmonised standards referred to in regulation 41 (presumption of conformity) which confer a presumption of conformity.

(9) In this regulation, “prescribed period” means a period which is—

(a) prescribed by the enforcing authority; and

(b) reasonable and commensurate with the nature of the risk presented by the product.

EU Safeguard procedure

70.—(1) Where another Member State has initiated the procedure under Article 44 of the Directive (as amended from time to time), the market surveillance authority must, without delay, inform the Secretary of State of—

(a) any measures taken by the market surveillance authority in respect of the product; and

(b) any additional information which the market surveillance authority has at its disposal relating to the lack of conformity of the product.

(2) Where another Member State has initiated the procedure under Article 44 of the Directive (as amended from time to time), the Secretary of State must, without delay, inform the Commission and the other Member State of—

(a) any measures taken by a market surveillance authority in respect of the product;

(b) any additional information which a market surveillance authority has at its disposal relating to the lack of conformity with the product; and

(c) any objections the Secretary of State may have to the measures taken by the Member State initiating the procedure.

(3) Where a measure taken by another Member State in respect of a product is considered justified under Article 45(2) of the Directive (as amended from time to time), the market surveillance authority must ensure that appropriate measures, such as withdrawal, are taken in respect of the product without delay.

(4) Where a measure taken by another Member State in respect of a product is considered justified by the Commission under Article 45(2) of the Directive (as amended from time to time), the market surveillance authority must take the necessary measures to ensure that the product is withdrawn from the market in the United Kingdom.

(5) Where the market surveillance authority has taken action under paragraphs (3) or (4), it must inform the Secretary of State.

(6) Where the Secretary of State receives a notice under paragraph (5), the Secretary of State must inform the Commission of the action taken.

(7) If a measure taken by the market surveillance authority pursuant to regulation 69 is considered unjustified by the Commission under Article 44(1) of the Directive (as amended from time to time), the market surveillance authority must withdraw that measure.

Enforcement action in respect of formal non-compliance

71.—(1) Where an enforcing authority makes one of the following findings relating to a product, it must require a relevant economic operator to remedy the non-compliance concerned within such reasonable period as the enforcing authority specifies—

(a) the CE marking—

(i) has not been affixed; or

(ii) has been affixed in violation of regulation 40 (prohibition on improper use of CE marking) or regulation 54 (CE marking);

(b) the EU declaration of conformity or the declaration referred to in Schedule 3—

(i) has not been drawn up; or

(ii) has not been drawn up correctly;

(c) the technical documentation is either not available or is incomplete;

(d) the information set out in regulation 14 (duty to provide information) and regulation 21 (duty of importer to ensure products are labelled) is absent, false or incomplete;

(e) that there has been non-compliance with any other requirement referred to—

(i) in the case of the manufacturer or their authorised representative in regulations 8 to 17;

(ii) in the case of the importer in regulations 18 to 26;

(iii) in the case of a distributor in regulations 27 to 32; and

(iv) in the case of a private importer in regulations 36 to 38.

(2) The enforcing authority must not commence proceedings under these Regulations, or take any other enforcement action under these Regulations, against the relevant economic operator in respect of the non-compliance concerned until the period referred to in paragraph (1) has elapsed.

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

(a) restrict or prohibit the product being made available on the market;

(b) ensure that the product is recalled or withdrawn from the market; or

(c) in the case of a product imported by a private importer for their own use, that that product is prohibited or restricted.

(4) This regulation does not apply where the product presents a risk.

Restrictive measures

72.  When enforcing these Regulations, an enforcing authority 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 product from being made available on the market;

(b) withdraw a product from the market; or

(c) recall a product.

Offences

73.—(1) It is an offence for a person to contravene or fail to comply with any requirement of—

(a) regulation 6;

(b) regulations 8 to 16;

(c) regulation 17(3);

(d) regulations 20 to 25;

(e) regulation 26(3);

(f) regulations 27 to 31;

(g) regulation 32(3);

(h) regulation 34;

(i) regulation 36 to 38; or

(j) regulation 40.

(2) It is an offence for any person to contravene or fail to comply with any requirement of a withdrawal or recall notice served on that person by an enforcing authority under these Regulations.

Penalties

74.  Any person who is guilty of an offence under regulation 73 (offences) is liable on summary conviction—

(a) in England and Wales—

(i) to imprisonment for a term not exceeding 3 months;

(ii) to a fine; or

(iii) to both.

(b) in Scotland and Northern Ireland—

(i) to imprisonment for a term not exceeding 3 months; or

(ii) to a fine not exceeding level 5 on the standard scale; or

(iii) to both.

Defence of due diligence

75.—(1) Subject to paragraphs (2) and (4), in proceedings for an offence under regulation 73 (offences) 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 paragraph (1) which involves a third party allegation unless P has—

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

(b) obtained the leave of the court.

(3) The notice must—

(a) give any information in 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;

(b) be served on the person bringing the proceedings not less than 7 clear days before—

(i) in England, Wales and Northern Ireland, the hearing of the proceedings;

(ii) in Scotland, the trial diet.

(4) P may not rely on a defence under 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 disbelieve the information.

(5) In this regulation, “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.

Liability of persons other than the principal offender

76.—(1) Where the commission by one person (“X”) of an offence under these Regulations is due to anything which another person (“Y”) did or failed to do in the course of business, Y is guilty of an offence and may be proceeded against and punished, whether or not proceedings are taken against X.

(2) Where a body corporate commits an offence, a relevant person is also guilty of the offence where the body corporate’s offence was committed—

(a) with the consent or connivance of the relevant person; or

(b) as a result of the negligence of the relevant person.

(3) In paragraph (2), “relevant person” means—

(a) a director, manager, secretary or other similar officer of the body corporate;

(b) in relation to a body corporate managed by its members, a member of that body corporate performing managerial functions;

(c) in relation to a Scottish partnership, a partner; or

(d) a person purporting to act as a person described in sub-paragraphs (a), (b) or (c).

Service of documents

77.—(1) 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 regulation, “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 a 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 must also be treated as that person’s proper address.

(6) In this regulation, “partnership” includes a Scottish partnership.

Recovery of expenses of enforcement

78.—(1) This regulation applies where a person commits an offence under regulation 73 (offences).

(2) The court may (in addition to any other order it may make as to costs or expenses) order the person to reimburse the enforcing authority for any expenditure which the authority has incurred in investigating the offence.

Action by enforcing authority

79.—(1) An enforcing authority may take action which an economic operator could have been required to take by a notice served under these Regulations where the conditions for serving such a notice are met and either—

(a) the authority 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 enforcing authority takes action as a result of the condition in paragraph (1)(b) being met, the authority may recover from the economic operator, as a civil debt, any costs or expenses reasonably incurred by the authority in taking the action.

(3) A civil debt recoverable under paragraph (2) may be recovered summarily—

(a) in England and Wales by way of a complaint pursuant to section 58 of the Magistrates’ Courts Act 1980(10);

(b) in Northern Ireland in proceedings under article 62 (debt proceedings) of the Magistrates Courts (Northern Ireland) Order 1981(11).

(4) In this regulation, “notice” means a notice served under Schedule 14.

Appeals against notices

80.—(1) An application for an order to vary or set aside the terms of a notice served under these Regulations may be made—

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

(b) by a person having an interest in the product in respect of which the notice has been served, unless the notice is a recall notice.

(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 these Regulations if satisfied that the product to which the notice relates is in conformity with Part 2 and does not present a risk.

(4) On an application under paragraph (1) to vary the terms of a notice served under these Regulations, the appropriate court may vary the terms of the notice as it considers appropriate.

(5) In this regulation—

(a) the “appropriate court” is to be determined in accordance with regulation 81 (appropriate court for appeals against notices); and

(b) “notice” means any notice served under Schedule 14.

Appropriate court for appeals against notices

81.—(1) In England and Wales or Northern Ireland, the appropriate court for the purposes of regulation 80 (appeals against notices) is—

(a) the court in which proceedings have been brought in relation to the product for an offence under regulation 73 (offences);

(b) in any other case, a magistrates’ court.

(2) In Scotland, the appropriate court for the purposes of regulation 80 is the sheriff of the sheriffdom in which the person making the appeal resides or has a registered principal office.

(3) A person aggrieved by an order made by a magistrates’ court in England and Wales or Northern Ireland pursuant to an application under regulation 80 (appeals against notices), or by a decision of such a court not to make such an order, may appeal against that order or decision—

(a) in England and Wales, to the crown court;

(b) in Northern Ireland, to the county court.

Time limit for commencement of proceedings

82.—(1) Subject to paragraph (4), in England and Wales, an information relating to an offence under regulation 73 (offences) that is triable by a magistrates’ court may be so tried if it is laid within 12 months after the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings comes to the knowledge of the prosecutor.

(2) Subject to paragraph (4), in Scotland—

(a) summary proceedings for an offence under regulation 73 may be commenced before the end of 12 months after the date on which evidence sufficient in the Lord Advocate’s opinion to justify the proceedings came to the Lord Advocate’s knowledge; and

(b) section 136(3) of the Criminal Procedure (Scotland) Act 1995(12) (time limit for certain offences) applies for the purpose of this paragraph as it applies for the purpose of that section.

(3) Subject to paragraph (4), in Northern Ireland, summary proceedings for an offence under regulation 73 may be instituted within 12 months after the date on which evidence sufficient in the opinion of the prosecutor to justify proceedings comes to the knowledge of the prosecutor.

(4) No proceedings may be brought more than 3 years after the commission of the offence.

(5) For the purposes of this regulation a certificate of the prosecutor (or in Scotland, the Lord Advocate) as to the date on which the evidence referred to paragraphs (1), (2) or (3) came to light, is conclusive evidence.

Compensation

83.—(1) Where an enforcing authority serves a relevant notice in respect of a product, that authority is liable to pay compensation to a person having an interest in the product for any loss or damage suffered by reason of the notice if both of the conditions in paragraph (2) are met.

(2) The conditions are that—

(a) the product in respect of which the relevant notice was served neither—

(i) presents a risk; nor

(ii) contravenes any requirement of these Regulations; and

(b) the exercise of the power to serve the relevant notice was not attributable to neglect or default by a relevant economic operator.

(3) In this regulation, “relevant notice” means a notice served in accordance with Schedule 14.

PART 6 MISCELLANEOUS

Amendment to the Consumer Rights Act 2015

84.  In paragraph 10 of Schedule 5 to the Consumer Rights Act 2015(13) at the appropriate place insert—

“regulation 66(1) or (2) of the Recreational Craft Regulations 2017 (S.I. 2017/737);”.

Amendment to the Enterprise Act 2002 (Part 9 Restrictions on Disclosure of Information) (Specification) Order 2004

85.  The Enterprise Act 2002 (Part 9 Restrictions on Disclosure of Information) (Specification) Order 2004(14) Schedule 1 (specified subordinate legislation) is amended as follows—

(a) “The Recreational Craft Regulations 1996 insofar as not revoked by the Recreational Craft Regulations 2004” substitute “The Recreational Craft Regulations 2004 insofar as not revoked by the Recreational Craft Regulations 2017”; and

(b) omit the entry “The Recreational Craft Regulations 2004” and at the appropriate place insert “The Recreational Craft Regulations 2017”.

Amendment to the Legislative and Regulatory Reform (Regulatory Functions) Order 2007

86.  The Legislative and Regulatory Reform (Regulatory Functions) Order 2007(15) is amended as follows—

(a) in Part 3 of the Schedule, under the heading “Public health and safety” omit the entry “The Recreational Craft Regulations 2004” and after the last entry insert “The Recreational Craft Regulations 2017”;

(b) in Part 8 of the Schedule, omit the entry “The Recreational Craft Regulations 2004” and after the last entry insert “The Recreational Craft Regulations 2017”; and

(c) in Part 13 of the Schedule, omit the entry “The Recreational Craft Regulations 2004” and after the last entry insert “The Recreational Craft Regulations 2017”.

Amendment to the Co-ordination of Regulatory Enforcement (Regulatory Functions in Scotland and Northern Ireland) Order 2009

87.  The Co-ordination of Regulatory Enforcement (Regulatory Functions in Scotland and Northern Ireland) Order(16) is amended as follows—

(a) in Part 4 of Schedule 1 omit the entry “The Recreational Craft Regulations 2004” ; and at the end insert “The Recreational Craft Regulations 2017”; and

(b) in Part 2 of Schedule 2 omit the entry “The Recreational Craft Regulations 2004” and at the end insert “The Recreational Craft Regulations 2017”.

Review

88.—(1) The Secretary of State must from time to time—

(a) carry out a review of the regulatory provisions contained in these Regulations; and

(b) publish a report setting out the conclusions of the review.

(2) The first report must be published before the end of the period of 5 years beginning on the commencement date.

(3) Subsequent reports must be published at intervals not exceeding 5 years.

(4) Section 30(3) of the Small Business, Enterprise and Employment Act 2015(17) requires that a review carried out under this regulation must, so far as is reasonable, have regard to how the Directive is implemented in other member States.

(5) Section 30(4) of the Small Business, Enterprise and Employment Act 2015 requires that a report published under this regulations must, in particular—

(a) set out the objectives intended to be achieved by the regulatory provisions referred to in paragraph 1(a);

(b) assess the extent to which those objectives are achieved;

(c) assess whether those objectives remain appropriate; and

(d) if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves less onerous regulatory provision.

(6) In this regulation, “regulatory provision” has the same meaning as in sections 28 to 32 of the Small Business, Enterprise and Employment Act 2015 (see section 32 of that Act).

Transitional provisions

89.—(1) Nothing in these Regulations prevents the making available on the market of a product which—

(a) is in conformity with the requirements of Directive 94/25/EC on the approximation of laws, regulations and administrative provisions of the Member States relating to recreational craft(18); and

(b) was placed on the market before the commencement date.

(2) Nothing in these Regulations prevents the making available on the market or the putting into service of outboard SI (Spark Ignition) propulsion engines with power equal to less than 15kW which comply with the stage 1 exhaust emission limits laid down in point 2.1 of Part B of Annex 1 of the Directive which are—

(a) manufactured by small or medium-sized enterprises; and

(b) placed on the market before 18th January 2020.

Revocations and savings

90.—(1) The Recreational Craft Regulations 1996(19) are revoked save as regard their application to—

(a) any watercraft that was placed on the market or put into service prior to 1st January 2005; and

(b) the appointment or termination of appointment of any notified body for the purposes of those Regulations.

(2) The Recreational Craft Regulations 2004(20) are revoked save as regards their application to—

(a) any watercraft that was placed on the market or put into service prior to the commencement date; and

(b) the appointment or termination of appointment of any notified body for the purposes of those Regulations.

Margot James

Parliamentary Under Secretary of State

Department for Business, Energy and Industrial Strategy

11th July 2017