Joint Committee on Statutory Instruments Twenty-Ninth Report


APPENDIX 1

Memorandum by the Department of Trade and Industry

PRESSURE EQUIPMENT REGULATIONS 1999 (S.I. 1999/2001)

  1. The Committee has requested a Memorandum from the Department on the following points:-

  "(1) Regulation 11 provides that for the purposes of regulations 7, 8 or 9, pressure equipment or an assembly is not to be regarded as being "placed on the market" in certain cases. Given that regulations 7, 8 and 9 impose a prohibition against placing on the market or putting into service the specified equipment or assembly, explain why the exclusion in the opening part of regulation 11 does not extend to the case where the equipment or assembly is put into service.

  (2) Regulation 20(4) provides that a notified body or recognised third-party organisation shall not be required to carry out the specified functions (including surveillance of the manufacturer's equipment) if [(c)] the body reasonably believes that, having regard to the number of outstanding applications, it will be unable to commence the required work within 3 months of receiving the application. Explain the effect of regulation 20(4)(c) in relation to applications which are outstanding at any particular time. Is the intended effect of regulation 20(4)(c) that the functions of the body, in relation to those outstanding applications, are suspended for 3 months or that they cease altogether? If the latter, explain what effect this would have on the outstanding applications and how those applications will be dealt with.

  (3)  Ought not the reference to sub-paragraph (b), in paragraph 2(d) of Schedule 8, to have been a reference to sub-paragraph (c)?"

  2. In relation to the first point, regulation 11 of these Regulations makes provision for certain activities not to be regarded as placing on the market or supply in respect of pressure equipment or an assembly. Those circumstances arise if the equipment or assembly will be put into service outside the Community, where it is imported into the Community for re-export to a third country or when the equipment or assembly is exhibited at trade fairs or exhibitions. The Department considered that it would be inappropriate to extend any exceptions to the activity of putting into service of pressure equipment or an assembly as the Regulations can only apply to the putting into service of the equipment or the assembly within the United Kingdom. To implement the provisions of Directive 97/23/EC, the Department considered that there could be no exceptions to the activity of putting into service in the Community. However, in relation to the activities of placing on the market or supply it was necessary to reflect the possibility that the pressure equipment or assembly had been manufactured within or outwith the Community for, or imported into the Community for re-export to, a third country market and not destined for the Community market. Such activities could constitute a placing on the market or supply. In such circumstances it is necessary that the provisions of the Regulations would not apply. Similarly, the exhibition at trade fairs or exhibitions of pressure equipment or an assembly would, but for the exception, be capable of being a placing on the market or supply within the meaning of the Regulations. It will be noted that "supply" includes, "offering to supply, agreeing to supply, exposing for supply and possessing for supply ..." (regulation 2(2)) and the exhibiting of the equipment, but for the exception, would otherwise be within the scope of the definition. However, the act of exhibiting the equipment or an assembly, the showing of that equipment or assembly, would not amount to a putting into service of the equipment or assembly so no exception is needed.

  3. In relation to the second point, regulation 20 of these Regulations makes provision for the appointment of notified bodies and recognised third-party organisations by the Secretary of State. Such an appointment obliges the body or organisation to carry out the functions for which it is appointed. The provisions of paragraph (4) relieve an appointed body or organisation from carrying out its functions in three circumstances. Of these, regulation 20(4)(c) relieves the body or organisation from carrying out its functions if the body or organisation believes that it will not be in a position to commence its functions within three months of receiving the particular application; it does not commence work for that application. This sub-paragraph has the effect that the body or organisation forming that belief will not carry out any functions in relation to the particular application. This allows the applicant to choose an alternative body or organisation to carry out the appropriate work for him. It does not permit the body or organisation to to refuse to carry out any functions in relation to outstanding applications which it has already accepted. Having regard to the provisions of regulation 20(4)(c) the Department would submit that the relevance of any outstanding applications would only relate to the forming by the body or organisation of its belief as to its capability to commence work on a new specific application within a three month period. If the number of other applications already received is such that the body or organisation believes that it cannot undertake a further application then it is not obliged to carry out any functions in relation to that application.

  4. In relation to the final point, the Department regrets that the reference in sub-paragraph (d) of paragraph 2 in Schedule 8 to these Regulations had not been altered after a drafting change to insert a new sub-paragraph (b) in the same paragraph. The continued reference to sub-paragraph (b) is in error as the Committee points out and the Department regrets that the reference had not been updated. The Department undertakes to rectify this error at the first available opportunity.

25 October 1999


 
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