The Motor Fuel (Composition and Content) and Merchant Shipping (Prevention of Air Pollution from Ships) (Amendment) Regulations 2010

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Motor Fuel (Composition and Content) Regulations 1999 (S.I. 1999/3107) (“the 1999 Regulations”) and, to a lesser extent, the Merchant Shipping (Prevention of Air Pollution from Ships) Regulations 2008 (S.I. 2008/2924) (“the 2008 Regulations”).

These Regulations transpose Articles 1 to 4, 8a and Annexes I and II of Directive 98/70/EC of the European Parliament and of the Council of 13th October 1998 relating to the quality of petrol and diesel fuels (OJ L 350, 28.12.1998, pp. 58–68) as amended by Directive 2009/30/EC of the European Parliament and of the Council of 23rd April 2009 (OJ L 140, 5.6.2009, pp. 88–113). They also transpose the free-standing Article 2(2) of Directive 2009/30/EC.

Regulation 3 amends the definition of “the Directive” so as to refer to Directive 98/70/EC in its most recently amended form. This regulation also amends the definitions of “motor fuel” and “sell” to include references to liquid fuel other than petrol, diesel fuel and gas oil.

Regulation 4 amends regulation 3 to remove a number of obsolete provisions and to update references to the technical Annexes of the Directive. This regulation also specifies that, where super unleaded petrol is sold at filling stations at which more than 3 million litres of petrol and diesel fuel is sold in a given year, super unleaded petrol sold at that filling station in the subsequent calendar year will only satisfy the specified requirements if it has an oxygen content of no more than 2.7% and an ethanol content of no more than 5%. This requirement applies until the end of 2013.

Regulation 5 inserts new paragraphs 4 and 5 into regulation 4 limiting the manganese content of petrol and diesel fuel to 6 milligrammes per litre until 31st December 2013 and to 2 milligrammes per litre thereafter.

Regulation 6 inserts new paragraph 7 into regulation 5 which has the effect of permitting the sale of diesel fuel with a biofuel content of between 7% and 30% on condition that the dispenser from which it is sold is prominently labelled “Not suitable for all vehicles: consult vehicle manufacturer before use”. This regulation also inserts new paragraphs 8 and 9 into regulation 5 prohibiting the sale of petrol or diesel fuel containing metallic additives unless the dispenser from which it is sold is prominently labelled “Contains metallic additives”.

Regulation 7 substitutes new regulations 5A to C. New regulation 5A re-enacts the restrictions on the marketing of marine diesel oil and marine gas oil previously set out at paragraphs 8 and 9 of Schedule 2A to the 2008 Regulations. It also sets out relevant associated provisions. The corresponding offences are re-enacted at new regulation 5C(1). New regulation 5C(2) sets out the associated defence. These provisions transpose Articles 4a(7) and 4b(3) of Directive 1999/32/EC of 26th April 1999 relating to a reduction in the sulphur content of certain liquid fuels (OJ L 121, 11.5.1999, p. 13) as amended.

New regulation 5B prohibits the distribution of gas oil and other liquid fuel intended for use in non-road mobile machinery including inland waterway vessels which do not normally operate at sea, agricultural tractors, forestry tractors or recreational craft which do not normally operate at sea if its sulphur content is more than 10 mg/kg. However, to allow for minor contamination in the supply chain, a maximum sulphur content of 20 mg/kg is allowed at the point of sale. These provisions are made in reliance on section 30 of the Clean Air Act 1993 (‘the 1993 Act’) to the extent that they apply to fuel intended for use in motor vehicles. In relation to other liquid fuel they are made under section 31 of the 1993 Act save in respect of Northern Ireland where they are made under section 2(2) of the European Communities Act 1972 (‘the 1972 Act’). To the extent that these provisions are made under the 1972 Act they are not subject to the criminal offence set out at section 32(2) of the 1993 Act. Accordingly a separate criminal offence of breach of these provisions in Northern Ireland is created by new regulation 5C(4).

This regulation also prohibits the sale of gas oil or other liquid fuel intended for such use and containing metallic additives unless the dispenser from which it is sold is prominently labelled “Contains metallic additives”. In addition this regulation limits the manganese content of gas oil or other liquid fuel intended for such use to 6 milligrammes per litre until 31st December 2013 and to 2 milligrammes per litre thereafter. These provisions are made in reliance on section 30 of the 1993 Act to the extent that they apply to fuel intended for use in motor vehicles. In relation to other liquid fuel they are made under section 2(2) of the 1972 Act and are therefore not subject to the criminal offence set out at section 32(2) of the 1993 Act. Accordingly a separate criminal offence of breach of these provisions is created by new regulation 5C(3).

Regulation 8 amends regulation 6 for consistency with the changes made by regulation 7 of these regulations and inserts new paragraph 6 which, by way of an exception to regulation 5B, permits the distribution and sale of gas oil with a sulphur content of up to 1000 mg/kg for use in rail vehicles but only until the end of 2011.

Regulation 9 amends paragraph 1 of regulation 7 to permit the Secretary of State to act pursuant to article 7 of the Directive to relax the gas oil specification requirements in regulation 5B if exceptional events cause a sudden change in the supply of crude oils or petroleum products.

Regulation 10 amends paragraph 3 of regulation 9 to reduce the total sales of leaded petrol that the Secretary of State may authorise by permit to 0.03% of the previous year’s total national petrol sales. This regulation also amends paragraph (5)(c) of the same regulation to correct a minor inconsistency with regulation 10(6)(a)(iii) as to the criteria to be satisfied by an applicant for a leaded petrol permit.

Regulation 11 amends paragraph 6 of regulation 10 to correct further minor inconsistencies with regulation 9 as to the criteria to be satisfied by an applicant for a leaded petrol permit.

Regulation 12 inserts new Schedule A1 and provides for matters relating to the enforcement of offences under regulation 5C(3) and (4) alone. Paragraph 1 sets out the circumstances in which persons other than the principal offender may be liable for these offences and provides that such liability can arise regardless of whether proceedings are taken against the principal offender. Paragraph 2 provides local authorities in Great Britain, and the Department of Enterprise, Trade and Investment in Northern Ireland, with powers to search premises and to take samples in order effectively to enforce an offence. Paragraph 3 contains safeguards for occupiers of land whose premises the enforcement authority wishes to search including a right to compensation where damage is caused in the course of a search. This paragraph also makes it a criminal offence to obstruct an officer exercising the power to search premises and to take samples. Paragraph 4 provides enforcement authorities with powers to require persons to provide information reasonably required to allow it effectively to enforce offences under regulation 5C(3) and (4). This paragraph also makes it an offence to fail without reasonable excuse to comply with such a request or to provide false information, whether intentionally or recklessly, in complying with such a request.

Regulation 13 amends Schedule 1 for consistency with the changes made by regulations 10 and 11 of these regulations.

Regulation 14 amends paragraph 5 of Schedule 2 to update the terminology used.

Regulations 15 to 17 amend the 2008 Regulations to revoke the provisions re-enacted in these regulations, and to revoke further provisions regulating the maximum sulphur content of fuels used by inland waterway vessels in accordance with Article 2(2) of Directive 2009/30/EC.

A Transposition Note in respect of the relevant parts of Directive 98/70/EC as amended and Article 2(2) of Directive 2009/30/EC has been laid before each House of Parliament.

An impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is available from the Cleaner Fuels and Vehicles Division, Department for Transport, Great Minster House, 76 Marsham Street, London SW1P 4DR (telephone [phone]). That impact assessment and an Explanatory Memorandum are available alongside the instrument on the UK legislation website, www.legislation.gov.uk . A copy of the impact assessment has been placed in the library of each House of Parliament.

A copy of the Directives referred to in this Explanatory Note may be obtained from the Office of Public Sector Information or viewed in the Official Journal of the European Union via the EUR-Lex website at http://eur-lex.europa.eu/.

Merchant Shipping Notices are published by the Maritime and Coastguard Agency. Copies are available from M-Notices Subscriptions, P O Box 362, Europa Park, Grays, Essex RM17 9AY (telephone number 01375 484548; fax [phone]; e-mail orders [e-mail]) and they can be viewed on the Agency’s website at http://www.mcga.gov.uk .