The Recreational Craft Regulations 2017

Regulation 2(1)

SCHEDULE 1 (Annex I of the Directive)

Regulation 2(1)

SCHEDULE 2 (Annex II of the Directive)

Regulation 7

SCHEDULE 3 (Annex III of the Directive)

Regulation 10

SCHEDULE 4 (Annex IV of the Directive)

Regulation 48

SCHEDULE 5 (Annex V of the Directive)

Regulation 50

SCHEDULE 6 (Annex VI of the Directive)

Regulation 51

SCHEDULE 7 (Annex VII of the Directive)

Regulation 52

SCHEDULE 8 (Annex VIII of the Directive)

Regulation 9

SCHEDULE 9 (Annex IX of the Directive)

Regulation 49

SCHEDULE 10 EU-type examination

1.  For the purposes of regulation 49, the conformity assessment carried out in accordance with Module B will be carried out in the manner set out in paragraphs 2, 3 and 4.

2.  The conformity assessment must include an assessment of the adequacy of the technical design of the watercraft through examination of the technical documentation specified in paragraph 3, plus examination of specimens, representative of the production envisaged, of one or more critical parts of the watercraft (combination of production type and design type).

3.  The conformity assessment must include an assessment of the adequacy of the following technical documentation—

(a) conceptual design and manufacturing drawings and schemes of components, sub-assemblies, circuits, etc;

(b) descriptions and explanations necessary for the understanding of those drawings and schemes and the operation of the watercraft;

(c) a list of the harmonised standards and/or other relevant technical specifications the references of which have been published in the Official Journal of the European Union, applied in full or in part, and descriptions of the solutions adopted to meet the essential requirements of the legislative instrument where those harmonised standards have not been applied. In the event of partly applied harmonised standards, the technical documentation shall specify the parts which have been applied;

(d) results of design calculations made, examinations carried out, etc.;

(e) test reports; and

(f) the supporting evidence for the adequacy of the technical design solution. This supporting evidence shall mention any documents that have been used, in particular where the relevant harmonised standards and/or technical specifications have not been applied in full. The supporting evidence shall include, where necessary, the results of tests carried out by the appropriate laboratory of the manufacturer, or by another testing laboratory on the manufacturer’s behalf and under the manufacturer’s responsibility.

4.  The technical documentation must include a general description of the watercraft.

Regulation 2(1)

SCHEDULE 11 Requirements of notified bodies

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

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

3.  A body belonging to a business association or professional federation representing undertakings involved in the design, manufacturing, provision, assembly, use or maintenance of products which it assesses may, on condition that its independence and the absence of any conflict of interest are demonstrated, be considered such a body.

4.  A conformity assessment body, its top level management and the personnel responsible for carrying out the conformity assessment must not be the—

(a) designer;

(b) manufacturer;

(c) supplier;

(d) installer;

(e) purchaser;

(f) owner;

(g) user; or

(h) maintainer

of the watercraft which the conformity assessment body assesses, nor the representative body of any of these persons.

5.  Nothing in paragraph 4 of this Schedule will preclude the use of assessed products that are necessary for the operations of the conformity assessment body or the use of such products for personal purposes.

6.  A conformity assessment body, its top level management and the personnel responsible for carrying out the conformity assessment must not be directly involved in the—

(a) design or manufacture;

(b) marketing;

(c) installation;

(d) use or maintenance

of the watercraft, or represent the persons engaged in those activities.

7.  A conformity assessment body must not engage in any activity, including consultancy services, that may conflict with their independence of judgement or integrity in relation to conformity assessment activities for which they are notified.

8.  Conformity assessment bodies must ensure that the activities of their subsidiaries or subcontractors do not affect the confidentiality, objectivity or impartiality of their conformity assessment activities.

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

10.  A conformity assessment body must be capable of carrying out the conformity assessment tasks assigned to it by regulations 42 (applicable conformity assessment procedures) to 52 (conformity assessments carried out under module C (conformity to type based on internal production control)) and in relation to which it has been notified, whether those tasks are carried out by the conformity assessment body itself or on its behalf and under its responsibility.

11.  At all times and for each conformity assessment procedure and each kind or category of products in relation to which it has been notified, a conformity assessment body must have at its disposal, the necessary—

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

(b) descriptions of procedures in accordance with which conformity assessment is carried out ensuring the transparency and ability of reproduction of those procedures;

(c) policies and procedures in place to distinguish between tasks that it carries out as a notified body and other activities;

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

(e) means to perform the technical and administrative tasks connected with the conformity assessment activities in an appropriate manner and must have access to all necessary equipment and facilities to perform these activities.

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

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

(b) satisfactory knowledge of the requirements of the assessments that they carry out and adequate authority to carry out those assessments.

Regulation 2(1)

SCHEDULE 12 Operational requirements of notified bodies

1.  Notified bodies must carry out conformity assessments in accordance with the conformity assessment procedures provided for in regulations 42 (applicable conformity assessment procedures) to 52 (conformity assessments carried out under module C (conformity to type based on internal production control)).

2.  Conformity assessments must be carried out in a proportionate manner, avoiding unnecessary burdens for economic operators and private importers. Conformity assessment bodies must perform their activities taking due account of the size of an undertaking the sector in which it operates, its structure, the degree of complexity of the watercraft technology in question and the mass or serial nature of the production process.

3.  Conformity assessment bodies must respect the degree of rigour and level of protection required for the compliance of the watercraft with the Directive.

4.  Where a notified body finds that the requirements of regulation 6 (essential requirements) and Schedule 1 or the corresponding harmonised standards have not been met by the manufacturer or a private importer, that body must require that the manufacturer or private importer takes appropriate corrective measures and must not issue a conformity assessment certificate until the appropriate corrective measures have been taken.

5.  Where, in the course of the monitoring of the conformity of the watercraft following the issue of a conformity assessment certificate, a notified body finds that a watercraft is no longer in compliance, it will require the manufacturer to take appropriate corrective measures and must suspend or withdraw the conformity assessment certificate if necessary.

6.  Where corrective measures are not taken or do not have the required corrective effect, the notified body must restrict, suspend or withdraw any conformity assessment certificates as appropriate.

7.—(1) A notified body must inform the Secretary of State in writing of—

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

(b) any circumstances affecting the scope of and conditions for notification; and

(c) any request for information which the notified body has received from a market surveillance authority regarding conformity assessment activities.

(2) A notified body must, following a request from the Secretary of State, inform the Secretary of State in writing of any conformity assessment activities performed within the scope of its notification provided under regulation 56 and any other activity performed, including cross-border activities and subcontracting.

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

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

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

9.  A notified body must provide other bodies notified under these Regulations carrying on similar conformity assessment activities covering the same products with relevant information on issues relating to negative and, on request, positive conformity assessment results.

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

Regulation 67

SCHEDULE 13 Enforcement and investigatory powers conferred on the market surveillance authority

Enforcement powers under the 1987 Act

1.  For the purposes of enforcing these Regulations, the following sections of the 1987 Act apply subject to the modifications in paragraph 2—

(a) section 13 (prohibition notices and notices to warn);

(b) section 14 (suspension notices);

(c) section 16 (forfeiture: England and Wales and Northern Ireland);

(d) section 17 (forfeiture: Scotland);

(e) section 18 (power to obtain information);

(f) section 19 (interpretation of Part II);

(g) section 29 (powers of search etc);

(h) section 30 (provisions supplemental to s 29);

(i) section 31 (powers of customs officer to detain goods);

(j) section 33 (appeals against detention of goods);

(k) section 34 (compensation for seizure and detention);

(l) section 35 (recovery of expenses of enforcement);

(m) section 37 (power of Commissioners for Revenue and Customs);

(n) section 42 (reports, etc.);

(o) section 45 (interpretation);

(p) section 46(1) (meaning of “supply”);

(q) Schedule 2 (prohibition notices and notices to warn).

Modifications to the 1987 Act

2.  The sections of the 1987 Act referred to in paragraph 1 are to apply as if—

(a) in section 13—

(i) in subsection (1), for “unsafe” on each occasion that it appears, there were substituted “non-compliant”;

(ii) in subsection (1), “relevant” were omitted on each occasion that it appears;

(iii) in subsection (2), the words from “; and the Secretary of State may” to the end were omitted;

(iv) in subsection (4), the words “three months” were substituted for the words “six months;”

(v) subsections (5) to (7) were omitted;

(b) in section 14—

(i) in subsection (1), after “any safety provision has been contravened in relation to the goods”, there were inserted “or that such goods present a risk”;

(ii) in subsection (2)(b), after “a safety provision has been contravened in relation to the goods”, there were inserted “or that such goods present a risk”;

(iii) in subsection (2)(c), “under section 15 below” was omitted;

(iv) subsections (6) to (8) were omitted;

(c) in section 16—

(i) in subsection (1), after “a contravention in relation to the goods of a safety provision” there were inserted “or that such goods present a risk”;

(ii) in subsection (3), after “a contravention in relation to the goods of a safety provision” there were inserted “or that such goods present a risk”;

(iii) after subsection (4), there were inserted—

“(4A) A court may infer for the purposes of this section that any goods present a risk, if it is satisfied that such a risk is presented by goods which are representative of those goods (whether by reason of being of the same design or part of the same consignment or batch or otherwise).”;

(d) in section 17—

(i) in subsection (1), after “a contravention of a safety provision”, there were inserted “or where the goods present a risk”;

(ii) in subsection (6), after “a contravention in relation to those goods of a safety provision” there were inserted “or that those goods present a risk”;

(iii) after subsection (7), there were inserted—

“(7A) The Sheriff may infer for the purposes of this section that any goods present a risk, if satisfied that such a risk is presented by goods which are representative of those goods (whether by reason of being of the same design or part of the same consignment or batch or otherwise).”;

(e) in section 18, subsections (3) and (4) were omitted;

(f) in section 29—

(i) in subsection (4)(a), after “any contravention of any safety provision in relation to the goods” there were inserted “or whether the goods present a risk”;

(ii) in subsection (4)(b), after “any such contravention” there were inserted “or whether the goods present a risk”;

(g) in section 30—

(i) at the end of subsection (2)(a)(ii), for “and” there were substituted “or”;

(ii) after subsection (2)(a)(ii), there were inserted—

“(iii) that any goods which any officer has power to inspect under section 29 are on any premises and their inspection is likely to demonstrate that they present a risk; and”; and

(iii) subsections (5), (7) and (8) were omitted;

(h) in section 31(1), for “Part II of this Act”, there were substituted “the 2017 Regulations”;

(i) in section 34—

(i) omit the word “and” at the end of subsection (1)(a); and

(ii) after that subsection, insert—

“(aa) the goods do not present a risk; and”;

(j) in section 37(1), for “Part II of this Act”, there were substituted “the 2017 Regulations”;

(k) in section 42—

(i) subsections (1), (2) and (5) were omitted;

(ii) in subsection (3)—

(aa) the words from “and every person” to “section 27 above” were omitted; and

(bb) the words “under that section or by that person by virtue of any such regulations” were substituted by “under the 2017 Regulations”;

(l) in section 45(1)—

(i) the definitions of “conditional sale agreement”, “gas”, “motor vehicle”, “personal injury”, “subordinate legislation” and “substance” were omitted;

(ii) before the definition of “aircraft”, there were inserted—

““2017 Regulations” means the Recreational Craft Regulations 2017”;

(iii) for the definition of “enforcing authority” there were substituted—

““enforcing authority” has the same meaning as in regulation 2(1) of the 2017 Regulations;”;

(iv) for the definition of “goods” there were substituted—

““goods” means products or within the scope of the 2017 Regulations;”;

(v) after the definition of “modifications” there were inserted—

““non-compliant” in relation to any goods means that—

(a)

a safety provision has been contravened in relation to the goods; or

(b)

the goods present a risk;”;

(vi) after the definition of “premises”, there were inserted—

““present a risk” means present a risk within the meaning of “risk” set out in regulation 2(3) of the 2017 Regulations;”;

(vii) for the definition of “safety provision” there were substituted—

““safety provision” means any provision of the 2017 Regulations”; and

(viii) for the definition of “safety regulations” there were substituted—

““safety regulations” means the 2017 Regulations;”;

(m) in section 46(1), omit “and, in relation to gas or water, those references shall be construed as including references to providing the service by which the gas or water is made available for use”; and

(n) in Schedule 2—

(i) for “unsafe”, on each occasion that it appears, there were substituted “non-compliant”; and

(ii) for “safe”, on each occasion that it appears, there were substituted “not non-compliant”.

Regulation 67

SCHEDULE 14 Compliance notices, withdrawal notices and recall notices

Compliance notice

1.  An enforcing authority may serve a compliance notice on a relevant economic operator in respect of a product if the authority 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 market surveillance authority 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 sub-paragraph (a) within the period specified in the notice, further action may be taken in respect of the product or any product 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 paragraph 5, an enforcing authority may revoke or vary a compliance notice by serving a notification on the economic operator.

5.  An enforcing authority 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

6.  An enforcing authority may serve a withdrawal notice on a relevant economic operator in respect of product if the authority has reasonable grounds for believing that—

(a) the product has been made available on the market; and

(b) there is non-compliance.

7.  A withdrawal notice must prohibit the relevant economic operator from making the product available on the market without the consent of the market surveillance authority.

8.  A withdrawal notice may require the relevant economic operator to take action to alert end-users to any risk presented by the product.

9.  A withdrawal notice may require the relevant economic operator to keep the enforcing authority informed of the whereabouts of any product referred to in the notice.

10.  A consent given by the enforcing authority pursuant to a withdrawal notice may impose such conditions on the making available on the market of the product as the enforcing authority considers appropriate.

11.  Subject to paragraph 7, an enforcing authority may revoke or vary a withdrawal notice by serving a notification on the economic operator.

12.  An enforcing authority 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

13.  The enforcing authority may serve a recall notice on a relevant economic operator in respect of a product if the authority has reasonable grounds for believing that—

(a) the product has been made available to end-users; and

(b) there is non-compliance.

14.  A recall notice must require the relevant economic operator to use reasonable endeavours to organise the return of the product from end-users to the relevant economic operator or another person specified in the notice.

15.  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 product poses and the fact of the recall; or

(iii) make arrangements for the collection or return of the product 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 product.

16.  In determining what requirements to include in a recall notice, the market surveillance authority must take into consideration the need to encourage distributors and end-users to contribute to its implementation.

17.  A recall notice may only be issued by the market surveillance authority where—

(a) other action which it may require under these Regulations 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 market surveillance authority has given not less than 10 days’ notice to the relevant economic operator of its intention to serve such a notice; and

(d) the market surveillance authority has taken account of any advice obtained under paragraph 18.

18.  A relevant economic operator which has received notice from the market surveillance authority of an intention to serve a recall notice may at any time prior to the service of the recall notice require the authority to seek the advice of such persons 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.

19.  Sub-paragraphs 17(b), (c) and (d) do not apply in the case of product presenting a serious risk requiring, in the view of the market surveillance authority, urgent action.

20.  Where a relevant economic operator requires the enforcing authority to seek advice under paragraph 18, 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 market surveillance authority.

21.  In this Schedule, “Institute” means the charitable organisation with registered number 803725 and known as the Chartered Institute of Arbitrators.

22.  A recall notice served by the market surveillance authority may require the relevant economic operator to keep the authority informed of the whereabouts of products to which the recall notice relates, so far as the relevant economic operator is able to do so.

23.  Subject to paragraph 24, a market surveillance authority may revoke or vary a recall notice by serving a notification on the economic operator.

24.  A market surveillance authority 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.

Interpretation

25.  In this Schedule, “non-compliance” means that a product—

(a) presents a risk; or

(b) is not in conformity with Part 2 or RAMS (in its application to the product).