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

PART 2 N.I. COMPLIANCE, WITHDRAWAL AND RECALL NOTICES

Compliance, withdrawal and recall notices N.I.

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 N.I.

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 N.I.

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 N.I.

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 N.I.

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 N.I.

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.