136. Federal law amending the Explosives Act 2010 (SprG-Novelle 2015)

The National Council has decided:

The Explosives Act 2010, BGBl. I n ° 121/2009, as last amended by the Federal Law BGBl. I No 161/2013, shall be amended as follows:

1. In the table of contents, after the entry to § 10 the following entry is inserted:

" § 10a

Supervisory measures "

2. In the table of contents, the entries to the main pieces 1. -7. the main denomination "2." to "8." and will be the entries of the previous 1. Main pieces are preceded by the following entries:

" 1. Main item
Duties of economic operators
§ 12a	General principles
§ 12b	Obligations of the manufacturer
§ 12c	Authorised representative
§ 12d	Obligations of the importer
§ 12e	Technical documentation
§ 12f	EU conformity assessment
§ 12g	EU Declaration of Conformity
§ 12h	Obligations of the trader
§ 12i	Circumstances under which the manufacturer ' s obligations shall also apply to the importer and the distributor "

3. In the table of contents, the heading is to 8. Main piece (new):

" 8. Main item

Authorities, procedures, powers and notification "

4. In the table of contents, after the entry to § 42 the following entry is inserted:

" § 42a

Transfer of personal data "

5. The following entries are inserted in the table of contents after the entry to § 42a (new):

" 3. Section
Notifying Authority and notified bodies
§ 42b	Notification procedure
Section 42c	Evaluation and monitoring
Section 42d	Tasks of the notified body
Section 42e	Notification and disclosure requirements of the notified body "

6. In § 1, after the word "Processing," the phrase "the placing on the market, the provision," inserted.

(7) The following paragraph 5 is added to § 3:

" (5) In the scope of this Federal Act, the following definitions shall also apply:

1.		Provision shall be made for any supply of a firing and explosive device for the purpose of distribution or use of this firing and explosive device on the Union market in the course of a business activity, whether in return for payment or free of charge;
2.		Placing on the market: any provision of a firing and explosive device on the Union market for the first time;
3.		Manufacturer: a natural or legal person who manufactures, develops or manufactures a firing and explosive device in order to place it on the market under his or her own name or brand or to use it for his own purposes;
4.		Authorized representative: any natural or legal person established within the Union who has been instructed in writing by a manufacturer to carry out certain tasks on his behalf;
5.		"importer" means any natural or legal person established within the Union who places a firing and disintegrant from a third country on the Union market;
6.		' dealer ' means any natural or legal person in the supply chain, other than the manufacturer or importer, who, in the course of its business operations, provides a firing and explosive device on the Union market;
7.		Economic operators: manufacturers, importers and distributors;
8.		Accreditation: the confirmation by a national accreditation body that a notified body meets the requirements applicable to it in order to carry out a specific conformity assessment activity;
9.		Accreditation body: the body which accreditations within the meaning of Article 2 Z 10 Regulation (EC) No 765/2008 on the requirements for accreditation and market surveillance relating to the marketing of products and repealing the Council Regulation (EEC) No 339/93, OJ L 393, 31.12.1993, p. No. OJ L 218, 13.08.2008 p. 30;
10.		Conformity assessment: the procedure for assessing whether the essential safety requirements of Directive 2014 /28/EU on the harmonisation of the laws of the Member States relating to the provision on the market and the control of Explosives for civil use (recast), OJ C 327, 28.4.2002 No. 1, to a shooting and explosive device have been complied with;
11.		Notified bodies: those bodies set up in the list of notified bodies published by the European Commission, indicating their identification number and the tasks assigned to them, in accordance with Directive 2014 /28/EU, and thus: the implementation of the conformity assessment as described in this Federal Act;
12.		Declaration of conformity: the confirmation by the manufacturer that the shooting and blowing agent complies with the essential safety requirements of Annex II to Directive 2014 /28/EU;
13.		CE marking: a marking by which the manufacturer declares that the means of firing and explosives satisfy the applicable requirements laid down in the Union's legislation on harmonisation;
14.		Leave a natural person to another natural person in the private sector any delivery of a shooting and explosive device from one natural person;
15.		Recall: any measure aimed at the return of a shooting and disinteer already provided to the end user;
16.		Withdrawal: any measure aimed at preventing a firing and explosives in the supply chain from being made available on the market. "

8. § 10 reads:

" § 10. (1) The Authority shall be responsible for market surveillance with regard to the verification of the placing on the market of only shooting and explosive devices and the provision on the market which comply with the requirements of this Federal Law. It is authorised to carry out the investigations and acts necessary for this purpose in the case of economic operators, such as, in particular, to enter production facilities, warehouses and other business premises, to draw samples free of charge and to enter into the to consult relevant business documents.

(2) The economic operators shall, at the request of the Authority, draw samples of the firing and explosives placed on the market or made available, and shall have all the information and documents necessary for the verification of conformity of the shooting and the and explosives are required to be provided. They shall participate in any action to avert hazards associated with shooting and explosives which they have placed on the market or made available to them.

(3) The economic operators shall, at the request of the Authority, name the economic operator;

1.		of which they referred to a shooting and explosives, or
2.		to which they have delivered a shooting and explosives.

(4) Economic operators must be able to provide the information referred to in paragraph 3 for a period of ten years after the shooting and explosives have been made and for a period of ten years after the release of the firing and disinteer.

(5) The Authority shall, in particular, take supervisory measures in accordance with Section 10a if:

1.		the economic operators do not comply with their obligations in accordance with section 12b (4), § 12d (3) and § 12h (2) without delay and independently, or
2.		may be at risk of life, health, property of humans or public safety by means of the placing on the market or the provision of shooting and explosives.
Until such time as the legal status is established, the shooting and explosive device may not be placed on the market or made available on the market by the economic operator. In the event of a risk of default, the Authority shall arrange for the use of the firing and explosive device (§ 40).

(6) The measures referred to in paragraph 5 may also cover products whose omission has been suspended by the customs authorities in accordance with Article 27 (3) of Regulation (EC) No 765/2008. The products concerned are, in this case, in temporary custody pursuant to Article 50 of Regulation (EEC) No 2913/92 establishing the Community Customs Code (Customs Code), OJ L 327, 31.12.1992, p. No. OJ L 302, 19.10.1992, p. 1, as last amended by Regulation (EU) No 952/2013, OJ L 327, 31.12.2013, p. No. OJ L 269, 10.10.2013 p. 1.

9. In accordance with § 10, the following § 10a and title shall be inserted:

" Supervisory measures

§ 10a. (1) The supervisory measures of the Authority shall be orders

1.		to improve,
2.		for the withdrawal or
3.		to recall.

(2) The supervisory measures referred to in paragraph 1 (1) (2) and (3) may be subject to such a measure by any authority in whose scope the shooting and explosives are to be placed on the market or prepared to be the subject of such a measure, with effect for the Business activity of the economic operator in the entire Federal Republic of Germany. "

10. The following paragraph 5 is added to § 11:

" (5) The labelling requirement does not apply to shooting and disintestation, which are delivered unpacked or are produced in mixing loaders and which are loaded or pumped directly into the explosive hole, as well as for shooting and explosives, which are located at the detonation site. and then loaded immediately (on site production). "

11. In the second part, the 7. Main item the name " 8. Main piece " , the 6. The name of the main item shall be " 7. Main piece " , the 5. Main item the name " 6. Main piece " , the 4. Main item the name " 5. Main piece " , the 3. Main item the name " 4. Main piece " , the second main piece is the name " 3. Main piece " , the 1. Main item the name " 2. Main piece " and in front of the second main piece, the following 1. Main piece (new) with headline inserted:

" 1. Main item

Duties of economic operators

General principles

§ 12a. (1) Shooting and explosives shall be placed on the market only if:

1.		they comply with the safety requirements laid down in Annex II to Directive 2014 /28/EU or the harmonised European standards published in the Official Journal of the European Union,
2.		certify their conformity within the meaning of Z 1 by a notified body after carrying out a procedure in accordance with § 12f, and an EU declaration of conformity has been issued for them,
3.		they are marked with a CE marking and are marked in accordance with § 11,
4.		ensuring that they can be traced in accordance with Section 12; and
5.		are accompanied by a user manual and safety information in the German language.

(2) In the context of a special obligation of participation by the Authority, economic operators shall, at the request of the Authority, provide all the information and documentation necessary for the verification of conformity of shooting and explosives. .

Obligations of the manufacturer

§ 12b. (1) The manufacturer may only place on the market the shooting and explosives that meet the requirements of § 12a (1), or use them for his own purposes.

(2) In particular, prior to placing on the market, the manufacturer

1.		to produce the technical documentation in accordance with § 12e,
2.		to have the conformity assessment carried out in accordance with § 12f,
3.		after completion of the conformity assessment procedure and the receipt of the certificate of conformity, print or permanently and permanently place a CE marking on the shooting and explosive device from the notified body, and
4.		to issue an EU declaration of conformity in accordance with § 12g.

(3) The manufacturer must keep the technical documentation in accordance with § 12e and the EU declaration of conformity in accordance with § 12g 10 years from the placing on the market of the shooting and disinteer. In the event of termination of its business, these records shall be transmitted to the Authority.

(4) If the manufacturer has reason to believe that a firing and explosive device no longer complies with the requirements of section 12a (1), it shall, as far as is necessary to protect the health and safety of consumers, immediately take all measures to: , in particular to withdraw or recall the shooting and explosives concerned in order to restore the lawful condition; it shall immediately inform the Authority of the measures taken.

Authorised representative

§ 12c. (1) A manufacturer may appoint in writing an authorised representative who shall assist him in the performance of his duties. The delegation shall at least include:

1.		the holding of the EU declaration of conformity in accordance with § 12g and the technical documentation referred to in § 12e for the authorities for a period of ten years after the placing on the market of the firing and explosive device;
2.		the issuing of all necessary information and documents proving the conformity of a firing and explosive device within the meaning of Article 12 (1) (1) (1), on the basis of a substantiated request from the Authority;
3.		The participation in all measures to prevent risks associated with shooting and explosives.

(2) The manufacturer's obligations pursuant to Section 12b (1) and (2) may not be included in the order of the authorized representative.

Obligations of the importer

§ 12d. (1) The importer may only place on the market shooting and explosives;

1.		which comply with the requirements of Section 12a (1) (1) (1),
2.		for which the conformity assessment procedure in question has been carried out by the manufacturer and the technical documentation and the EU declaration of conformity have been drawn up, and
3.		which meet the requirements of Section 12a (1) (1) (3) to (5).

(2) The importer shall keep a copy of the EU declaration of conformity in accordance with § 12g for the market surveillance authorities for ten years from the placing on the market and shall provide the authority on request as well as the technical documentation in accordance with § § 12g. 12e shall be provided at the request of the Authority. In the event of termination of its business, the records shall be transmitted to the Authority.

(3) If the importer has reason to believe that a firing and explosive device no longer complies with the requirements of section 12a (1), he shall, in so far as it is necessary to protect the health and safety of the consumer, immediately take all measures to: , in particular to withdraw or recall the shooting and explosives concerned in order to restore the lawful condition; it shall immediately inform the Authority of the measures taken.

Technical documentation

§ 12e. The technical documentation shall contain all relevant information for an assessment of the conformity of the firing and explosive device with the requirements of section 12a (1) (1) (1) (1). In particular, they shall contain the elements referred to in Annex III to Directive 2014 /28/EU in the relevant module, including a risk analysis and assessment referred to.

EU conformity assessment

§ 12f. (1) In the assessment of the conformity of shooting and explosives, one of the following procedures shall be carried out in Annex III to Directive 2014 /28/EU:

1.		the EU type-examination procedure (module B) and, at the choice of the manufacturer, either
a)			the procedure for testing the design on the basis of internal production control with monitored product tests at irregular intervals (module C2), or
b)			the procedure for testing the design on the basis of a quality assurance related to the production process (module D), or
c)			the procedure for testing the design on the basis of quality assurance in relation to the product (module E), or
d)			the procedure for testing the design on the basis of a test of products (module F); or
2.		the procedure on the basis of an individual examination (module G).

(2) After the successful completion of the conformity assessment, the manufacturer must affix the CE marking on the firing and explosive device. The exact nature of the CE marking and its affixing shall be determined by Regulation.

EU Declaration of Conformity

§ 12g. (1) Before being placed on the market, the manufacturer must confirm, by means of an EU declaration of conformity, that the essential requirements set out in Annex II to Directive 2014 /28/EU are met.

(2) The EU declaration of conformity shall be in accordance with the model in Annex IV to Directive 2014 /28/EU and shall contain the elements specified in the modules in Annex III to Directive 2014 /28/EU. It is to be written in German.

(3) In the event that a firing and explosive device is subject to several European Union legislation, each of which is subject to an EU declaration of conformity, only one EU declaration of conformity is required for all EU legislation , This declaration shall specify the legislation in force in the Union, together with its reference in the Official Journal.

Obligations of the trader

§ 12h. (1) The trader may only provide shooting and explosives which shall:

1.		with a CE marking and marked in accordance with § 11, and
2.		are provided with instructions for use and safety information in German.

(2) If the trader has reason to believe that a firing and explosive device no longer complies with § 12a (1) Z 1, 3, 4 and 5, it shall, in so far as the protection of the health and safety of consumers, require all measures to be taken immediately, , in particular, to withdraw or recall the affected shooting and explosives in order to restore the lawful condition and, by means of the measures taken, to immediately notify the Authority, the manufacturer or the importer. information.

(3) If the trader does not have to lead directories according to § 33, he must keep records of the acquisition, provision, return, use or destruction of shooting and explosives according to the specimen of the Appendix H. Section 33 (4) and (5) shall apply mutatily.

Circumstances under which the manufacturer ' s obligations shall also apply to the importer and the trader

§ 12i. Where an importer places a shooting and explosive device under his or her own name or trademark on the market, an importer or a trader changes an already on the market firing and explosives so that the conformity with the The requirements of this Federal Act may be affected, it shall be deemed to be a manufacturer and shall be subject to the obligations of manufacturers in accordance with § 12b. "

12. In § 21 (6), after the word "Rules" the phrase " , in particular those pursuant to § 12h, " inserted.

Section 29 (2) reads as follows:

" (2) In the escein

1.		name and address of the consignee, of the sender and of the transporter,
2.		the number and quantity of shooting and explosives approved for shipment,
3.		description of the shooting and explosives, including the UN number,
4.		transport type and route, and
5.		the border crossing points between the Member States of the European Union and, at the request of the authority, the planned departure and arrival date
can be seen. The shipment may only be carried out by the transport operator referred to in the accompanying reference. "

14. In § 29 (3), after the word order "authorized" the phrase "and it is a shooting and explosive device fitted with a CE marking" .

15. The following paragraphs 8 and 9 are added to § 29 (7):

" (8) The consignee shall keep a copy of the consignment note three years from the date of the official authorisation and shall submit it at the request of the authority for inspection.

(9) The addressee shall, at the request of the Authority, transmit to the Authority all the information available to him on the shipment. "

Section 30 (2) reads as follows:

" (2) In the escein

1.		name and address of the consignee, of the sender and of the transporter,
2.		the number and quantity of shooting and explosives approved for shipment,
3.		description of the shooting and explosives, including the UN number,
4.		transport type and route, and
5.		the border crossing points between the Member States of the European Union and, at the request of the authority, the planned departure and arrival date
can be seen. The shipment may only be carried out by the transport operator referred to in the accompanying reference. "

17. In § 33 (1), before the word "Acquisition" the word "Deployment," inserted.

18. In Section 36 (2), the following Z 2a is inserted after Z 2:

" 2a.		has a mixing charger suitable for manufacture, "

19. The following sentence shall be added to Article 36 (3):

"Each year the Authority shall check whether the safe operation of the mixing charger is still guaranteed."

20. The title of the 8. The main item is:

"Authorities, procedures, powers and notifiers"

21. According to § 42, the following § 42a and title is inserted:

" Transmission of personal data

§ 42a. The authorities are empowered to request, on a case-by-case basis, data processed by them in full compliance with this Federal Act to courts, security authorities and public prosecutors for their activities in the service of criminal justice, as well as to to communicate to the security authorities in matters of security administration or to the European Commission and to notified bodies in compliance with Union legal obligations, in so far as they do so in order to comply with their legal or regulatory obligations, or to do Union-law tasks. The data being transmitted may also be personal, provided that this is necessary for the identification of a shooting and explosive device, its traceability in the distribution chain and the risk assessment. "

22. The main part of the second part will be 3. Section with headline inserted:

" 3. Section

Notifying Authority and notified bodies

Notification procedure

§ 42b. (1) The Federal Minister for the Interior shall decide on requests for establishment as a notified body.

(2) A notified body must be a legal person or a registered partnership established under Austrian law, which shall:

1.		has committed itself to independence vis-à-vis third parties, to impartiality, to the exclusion of any influence by third parties and to the observance of professional secrecy,
2.		has committed itself as a notified body in order to comply with the national and European Union rules relating to its activities,
3.		has an upright accreditation certificate corresponding to its intended activity,
4.		have the human, financial, organisational and technical resources to carry out the conformity assessment activities listed in Annex III to Directive 2014 /28/EU, and
5.		have an upright and reasonable liability insurance cover, which shall cover persons, property and property losses arising from their activities.

(3) The notification of the notified bodies to the European Commission shall be made by the Federal Minister of the Interior.

(4) The activity of the notified body may not be carried out until such time as it appears in the list of notified bodies of the Commission.

Evaluation and monitoring

§ 42c. The assessment and supervision of the bodies referred to in § 42b shall be carried out by the national accreditation body in accordance with the provisions of the Accreditation Act 2012, BGBl. I No 28/2012, and in accordance with Regulation (EC) No 765/2008.

Tasks of the notified body

§ 42d. (1) The notified body must carry out the conformity assessment in accordance with § 12f and issue a certificate of conformity in the case of a positive assessment.

(2) Where the notified body finds, within the framework of conformity assessment, that shooting and explosives do not meet the essential safety requirements, it shall require the manufacturer to take appropriate corrective measures and shall do not issue a certificate of conformity.

(3) The notified body shall regularly monitor the conformity of a firing and explosive device. If it finds, in the context of monitoring, that the shooting and disintestation no longer meets the requirements, it shall require the manufacturer to take appropriate corrective measures and, if necessary, an attestation which has already been issued to suspend or withdraw.

(4) conformity assessment tasks may only be awarded and transferred to subcontractors or to branch companies after the consent of the contracting authority, if they meet the requirements of § 42b (2). Responsibility for the proper implementation of the conformity assessment procedure shall remain with the notified body.

Reporting and reporting requirements of the notified body

§ 42e. (1) The notified body shall be notified to the Federal Minister for the Interior

1.		any change in accreditation and accredited procedures in the field of activity of the nomination,
2.		any denial, restriction, suspension or withdrawal of a certificate of conformity and
3.		all circumstances which could have an impact on the scope and content of the decision in accordance with § 42b,
and, on request, to provide information on their activities, including cross-border activities and the award of sub-contracts which they have carried out.

(2) The notified body must provide other bodies designated under Directive 2014 /28/EU with relevant information on the negative and on request also on the positive results of conformity assessments. "

23. In § 44 (1), before the word order "and is from the district administration authority" the phrase "commit an administrative surrender" is inserted and is the entry sentence:

"Anyone who is contrary to this federal law or a regulation adopted pursuant to this Federal Act"

24. In § 44 (1) (1) (1), after the word "Shooting" the word "produces" inserted.

25. In § 44, the following paragraph 1 is inserted after paragraph 1:

"(1a) A administrative penalty shall be applied and shall be punishable by a fine of up to 3600 euros, who is in breach of this federal law, provided that the conduct is not to be punished in accordance with § 43 or § 44 (1)."

26. In § 47, the Federal Law Gazette is awarded the Federal Act BGBl. I 2013/161, paragraph 4 added to the sales designation "(5)" and the following paragraph 6 is added:

" (6) § 1, § 3 para. 5, § 10, § 10a including the title, § 11 para. 5, the 1. The main part of the second part, together with the title, the numbering of the 2. to 8. The main part of the second part, § 21 (6), § 29 (2), (3), (8) and (9), § 30 (2), (7) and (8), § 33 (1), § 36 (2) (2a) and (3), the title of the 8. Main part of the second part, § 42a, including the title, the 3. Section of the 8. The main part of the second part, including the title, section 44 (1) and (1a), section 48 (7), section 49 (1) and (2a), as well as the table of contents in the version of the Federal Law Gazette BGBl. I N ° 136/2015 will enter into force on 1 April 2016. "

27. The following paragraph 7 is added to § 48:

" (7) Explosives, which according to the Explosives Ordinance, BGBl. II No 27/2001, as amended by the BGBl Regulation. II No 303/2011, placed on the market before 1 April 2016, may continue to be made available or used on the market. The provisions of this Federal Act shall apply to them. "

28. In § 49 (1) the expression "§ 10 (4)" by the expression "§ 10 (7)" replaced and in accordance with paragraph 2, the following paragraph 2a is inserted:

"(2a) The Federal Minister for Science, Research and the Economy is responsible for the enforcement of § 42c."

Fischer

Faymann