SCHEDULE 31 Amendment of the Making Available on the Market and Supervision of Transfers of Explosives Regulations (Northern Ireland) 2016

28 Amendment to Part 3, Sub-Part C
For Part 3, Sub-Part C (NOTIFICATION OF CONFORMITY ASSESSMENT BODIES) substitute—

“SUB-PART C: APPROVAL OF CONFORMITY ASSESSMENT BODIES

35 Approved bodies
1 An approved body is a conformity assessment body which—
(a) has been approved by the Secretary of State pursuant to the procedure set out in regulation 36 (approval of conformity assessment bodies); or
(b) immediately before exit day was a notified body in respect of which the Secretary of State had taken no action under regulation 41(1) or (2) as they had effect immediately before exit day to suspend or withdraw the body’s status as a notified body.
2 Paragraph (1) has effect subject to regulation 39 (restriction, suspension or withdrawal of approval).
3 In this Sub-Part—
“notified body” means a body—
(a) which the Secretary of State had before exit day notified to the European Commission and to the other EEA states, in accordance with Article 24 of the Directive; and
(b) in respect of which no objections had been raised, as referred to in regulation 35(1)(b), as it had effect immediately before exit day;
“approved body requirements” means the requirements set out in Schedule 3.

36 Approval of conformity assessment bodies
1 The Secretary of State may approve only those conformity assessment bodies that qualify for approval.
2 A conformity assessment body qualifies for approval if the first and second condition are met.
3 The first condition is that the conformity assessment body has applied to the Secretary of State to become an approved body and that 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 procedure in respect of which the conformity assessment body claims to be competent;
(iii) the civil explosives in respect of which the conformity assessment body claims to be competent; and
(b) either—
(i) an accreditation certificate; or
(ii) the documentary evidence necessary for the Secretary of State to verify, recognise and regularly monitor the conformity assessment body’s compliance with the approved body requirements.
4 The second condition is that the Secretary of State is satisfied that the conformity assessment body meets the approved 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 approved body requirements.
6 When deciding whether to approve a conformity assessment body that qualifies for approval, 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 For the purposes of this regulation, “accreditation certificate” means a certificate, issued by the UK national accreditation body, attesting that a conformity assessment body meets the approved body requirements.

37 Presumption of conformity of approved bodies
1 Where a conformity assessment body demonstrates its conformity with the criteria laid down in a designated standard (or part of such standard), the Secretary of State is to presume that the conformity assessment body meets the approved body requirements covered by that standard (or part of that standard).
2 The presumption in paragraph (1) is rebuttable.

38 Monitoring
The Secretary of State must monitor each approved body with a view to verifying that the body—
(a) continues to meet the approved body requirements;
(b) meets any conditions set—
(i) in accordance with regulation 36(6)(b); or
(ii) in the case of an approved body which was a notified body immediately before exit day, in accordance with conditions set under regulation 36(6)(b) as it applied immediately before exit day; and
(c) carries out its functions in accordance with these Regulations.

39 Restriction, suspension or withdrawal of approval
1 Where the Secretary of State determines that an approved body—
(a) no longer meets an approved body requirement; or
(b) is failing to fulfil its obligations under these Regulations, other than a condition referred to in regulation 38(b),
the Secretary of State must restrict, suspend or withdraw the body’s status as an approved body under regulation 35 (approved bodies).
2 Where the Secretary of State determines that an approved body no longer meets a condition referred to in regulation 38(b), the Secretary of State may restrict, suspend or withdraw the body’s status as an approved body under regulation 35.
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 Before taking action under paragraph (1) or (2), the Secretary of State must—
(a) give notice in writing to the approved body of the proposed action and the reasons for it;
(b) give the approved body an opportunity to make representations to the Secretary of State regarding the proposed action within a reasonable period from the date of the notice; and
(c) consider any such representations.
5 Where the Secretary of State has taken action in respect of an approved body under paragraph (1) or (2), or where an approved body has ceased its activity, the approved body must, at the request of the Secretary of State—
(a) transfer its files relating to the activities it has undertaken as an approved body to another approved body or to the Secretary of State; or
(b) keep its files relating to the activities it has undertaken as an approved body available for the Secretary of State and market surveillance authority for a period of 10 years from the date they were created.
6 The activities undertaken as an approved body referred to in paragraph (5) include any activities that the body has undertaken as a notified body.

40 Operational matters in relation to approved bodies
1 Subject to the terms of its appointment, an approved body must carry out the conformity assessment activities and procedures—
(a) in respect of which the body’s approval was given under regulation 36; or
(b) in respect of which the body’s notification as a notified body was made.
2 Where an approved body carries out a conformity assessment procedure, it must do so in accordance with Schedule 4 (operational obligations of approved bodies).
3 An approved body must make provision for a manufacturer to be able to make an appeal against a refusal by the approved body—
(a) to issue a Type examination certificate referred to in Schedule 5 (conformity assessment procedures); or
(b) to affix, or cause to be affixed, the body’s identification number pursuant to regulation 34 (UK marking).

41 Subsidiaries and contractors
1 An approved body may subcontract specific conformity assessment activities or use a subsidiary to carry out such activities provided—
(a) the body is satisfied that the subcontractor or subsidiary meets the approved body requirements;
(b) the body has informed the Secretary of State that it is satisfied that the subcontractor or subsidiary meets those requirements; and
(c) the economic operator for whom the activities are to be carried out has consented to the activities being carried out by that person.
2 The approved body which subcontracts specific conformity assessment activities or uses a subsidiary to carry out such activities remains responsible for the proper performance of those activities (irrespective of where the subcontractor or subsidiary is established).
3 Where an approved body subcontracts, or uses a subsidiary to carry out, a specific conformity assessment activity, the approved body must, for a period of 10 years beginning on the day on which the activity is first carried out, keep available for inspection by the Secretary of State all relevant documentation concerning—
(a) the assessment of the qualifications of the subcontractor or the subsidiary; and
(b) the conformity assessment activity carried out by the subcontractor or subsidiary.
4 In this regulation “subsidiary” has the meaning given to it in section 1159 of the Companies Act 2006.
2006 c.46.

42 Register of approved bodies
1 The Secretary of State must—
(a) assign an approved body identification number to each approved body; and
(b) compile and maintain a register of—
(i) approved bodies;
(ii) their approved body identification numbers;
(iii) the activities for which they have been approved; and
(iv) any restrictions on those activities.
2 The register referred to in paragraph (1) must be made publicly available.

43 UK national accreditation body
The Secretary of State may authorise the UK national accreditation body to carry out the following activities on behalf of the Secretary of State—
(a) assessing whether a conformity assessment body meets the approved body requirements;
(b) monitoring approved bodies in accordance with regulation 38; and
(c) compiling and maintaining the register of approved bodies, in accordance with regulation 42.”

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