Joint Committee on Statutory Instruments Nineteenth Report


Memorandum by the Department of Trade and Industry


REGULATIONS 1999 (S.I. 1999/1053)

  1. In the letter dated 5 May 1999 from the Commons Clerk of the Committee, the Joint Committee on Statutory Instruments has requested a Memorandum from the Department on the following points:

    (1)  Given the definition in regulation 2(1)(c) of "non-road mobile machinery" as machinery (etc) "in which an ... engine ... is installed", explain how (consistently with this definition)-

    regulation 3(1) can make the Regulations applicable to new engines "to be installed in non-road mobile machinery";

    regulation 4(1) can restrict the placing on the market of any new engine, "whether or not already installed" in machinery.

    (2)  In relation to regulation 17, explain whether it is intended that a breach of the duty imposed by regulation 11(9) (manufacturer must permit the approval authority to inspect its production procedures), unlike a breach of the duty imposed by reg 11(8) (manufacturer must permit the authority to carry out tests and inspection of engines), should not be an offence. If so, explain the reason for this difference and what sanction is intended for a breach of the duty imposed by regulation 11 (9).

  2. On the first point, the definition of "non-road mobile machinery" is simply a definition of the term. It defines the term by reference to a mobile machine, transportable industrial equipment or vehicle in which an engine is installed. The present tense is used because the definition is descriptive of the machinery referred to.

  3. Regulation 3(1) is concerned with engines. It makes provision for the engines within the scope of the Regulations. It provides that the Regulations are to apply to new engines to be installed in non-road mobile machinery. The reference to the non-road mobile machinery is to the machinery in which the engines within the scope of the Regulations are installed. Regulation 4(1) is also concerned with engines. The prohibition is on placing on the market new engines, not machinery. It is therefore consistent with the definition of non-road mobile machinery for the prohibition to apply to an engine which is not installed in machinery, as well as an engine already installed in machinery.

  4. On the second point, the Regulations do not make the breach of regulation 11 (9) a criminal offence because the Department took the view that such a sanction would be disproportionate to the breach of obligation. The provision implements Article 11.2 of the Directive. It is very much a long stop provision. In practice the provision that would govern entry to the manufacturer's premises is section 28(2) of the Consumers Protection Act 1987 which is applied to the Regulations by regulation 16(3)(a). In addition, if a manufacturer refused access and the approval authority were concerned that this indicated that engines were being produced which did not conform to the approval given, the approval authority could exercise the power in regulation 11(8) to carry out tests and inspection of an engine. Failure to permit this is a criminal offence. Therefore, in practice, the approval authority would not need to be able to enforce directly the obligation in regulation 11(9) and therefore it was decided that it should not be subject to a criminal penalty.

10th May 1999

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