S.I. No. 216/1989:

EUROPEAN COMMUNITIES (FEEDING STUFFS) (TOLERANCES OF UNDESIRABLE SUBSTANCES AND PRODUCTS) REGULATIONS, 1989.

EUROPEAN COMMUNITIES (FEEDING STUFFS) (TOLERANCES OF UNDESIRABLE SUBSTANCES AND PRODUCTS) REGULATIONS, 1989.

I, MICHAEL O'KENNEDY, Minister for Agriculture and Food, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 and (No. 27 of 1972), for the purpose of giving effect to Council Directive No. 74/63/EEC of 17 December, 1973⁽¹⁾, as amended by Commission Directive No. 76/14/EEC of 15 December 1975⁽²⁾, Commission Directive No. 76/934/EEC of 1 December 1976⁽³⁾, Council Directive No. 80/502/EEC of 6 May 1980 ⁽⁴⁾, Commission Directive No. 83/381/EEC of 28 July 1983⁽⁵⁾, Commission Directive No. 86/299/EEC of 3 June 1986⁽⁶⁾, Council Directive No. 86/354/EEC of 21 July 1986 ⁽⁷⁾, and Commission Directive No. 87/238/EEC of 1 April 1987⁽⁸⁾, hereby make the following regulations:

¹ O.J. No. L38, 11.2.1974, p31.

² O.J. No. L4, 9.1.1976, p24.

³ O.J. No. L364, 31.12.1976, p20.

⁴ O.J. No. L124, 20.5.1980, p17.

⁵ O.J. No. L222, 13.8.1983, p31.

⁶ O.J. No. L189, 11.7.1986, p40.

⁷ O.J. No. L212, 2.8.1986, p27.

₈ O.J. No. L110, 25.4.1987, p25.

(1) These Regulations may be cited as the European Communities (Feeding Stuffs) (Tolerances of Undesirable Substances and Products) Regulations, 1989.

(2) These Regulations shall come into operation on the 1st day of November, 1989.

2. (1) In these Regulations--

"authorised officer" means a person authorised in writing by the Minister for the purposes of these Regulations;

"complementary feedingstuffs" means mixtures of feedingstuffs which have a high content of certain substances and which, by reason of their composition, are sufficient for a daily ration only if they are used in combination with other feedingstuffs;

"complete feedingstuffs" means mixtures of feedingstuffs which by reason of their composition, are sufficient for a daily ration;

"compound feedingstuffs" means mixtures of products of vegetable or animal origin in the natural state, fresh or preserved, and products derived from the industrial processing thereof, or of organic or inorganic substances, whether or not containing additives, for oral animal feeding in the form of complete feedingstuffs or complementary feedingstuffs;

"the Directive" means Council Directive No. 74/63/EEC of 17 December 1973⁽¹⁾, as amended by Commission Directive No. 76/14/EEC of 15 December 1975⁽²⁾, Commission Directive No. 76/934/EEC of 1 December 1976⁽³⁾, Council Directive No. 80/502/EEC of 6 May 1980⁽⁴⁾, Commission Directive No. 83/381/EEC of 28 July 1983⁽⁵⁾, Commission Directive No. 86/299/EEC of 3 June 1986⁽⁶⁾, Council Directive No. 86/354/EEC of 21 July 1986⁽⁷⁾, and Commission Directive No. 87/238/EEC of 1 April 1987⁽⁸⁾;

¹ O.J. No. L38, 11.2.1974, p31.

² O.J. No. L4, 9.1.1976, p24.

³ O.J. No. L364, 31.12.1976, p20.

⁴ O.J. No. L124, 20.5.1980, p17.

⁵ O.J. No. L222, 13.8.1983, p31.

⁶ O.J. No. L189, 11.7.1986, p40.

⁷ O.J. No. L212, 2.8.1986, p27.

₈ O.J. No. L110, 25.4.1987, p25.

"feedingstuffs" means products of vegetable or animal origin, in their natural state, fresh or preserved, and products derived from the industrial processing thereof, and organic or inorganic substances, used singly or in mixtures whether or not containing additives, for oral animal feeding;

"Member State" means a Member State of the European Communities;

"Minister" means the Minister for Agriculture and Food;

"official method of analysis" means a method of analysis specified in the European Communities (Feeding Stuffs) (Methods of Analysis) Regulations, 1978 ( S.I. No. 250 of 1978 );

"raw materials" means ingredients being various products of vegetable or animal origin, in their natural state, fresh or preserved, and products derived from the industrial processing thereof, and organic or inorganic substances, whether or not containing additives, which are intended to be entered for circulation as straight feedingstuffs or for the preparation of compound feedingstuffs or as carriers of premixtures;

"the State Chemist" means the head of the State Laboratory or a person authorised by him in writing to perform the functions assigned to the State chemist by these Regulations;

"straight feedingstuffs" means the various vegetable or animal products in their natural state, fresh or preserved, and products derived from the industrial processing thereof, and various organic or inorganic substances, whether or not containing additives, intended as such for oral animal feeding;

"third country" means a country or territory which is not a Member State;

"undesirable substance or product" means a substance or product specified in the first column of Schedule I or Schedule II to these Regulations.

(2) A word or phrase that is used in these Regulations and is also used in the Directive shall, unless the contrary intention appears, have the meaning that it has in the Directive.

3. These Regulations apply to feedingstuffs and raw materials, other than feedingstuffs and raw materials which are shown to the satisfaction of the Minister to be intended for export to a third country.

4. A person shall not--

( a ) place on the market,

( b ) use to feed animals,

( c ) use in the manufacture of compound feedingstuffs,

( d ) have in his possession for such uses--

(i) a feedingstuff to which these Regulations apply and which contains an undesirable substance or product unless the feedingstuff complies with Regulation 5 of these Regulations, or

(ii) a raw material unless the raw material complies with Regulations 7 and 8 of these Regulations.

5. (1) The amount of any undesirable substance or product contained in a feedingstuff mentioned in the second column of the first Schedule to these Regulations opposite the mention of the substance or product in the first column of the said Schedule shall not exceed the maximum content specified in the third column of the said Schedule opposite the mention of the feedingstuff in the said second column.

(2) The reference in the second column of the First Schedule to these Regulations opposite the mention of an undesirable substance or product to a complete feedingstuff shall in a case in which there is no mention in that column opposite the mention of the substance or product of a complementary feedingstuff, be construed as including a reference to a complementary feedingstuff.

(3) Notwithstanding paragraph (1) of this Regulation, where a complementary feedingstuff is such that were it diluted in accordance with instructions issued by its manufacturer and printed on its packaging, or on a label attached to, or, in case the complementary feedingstuff is delivered in bulk, on documents accompanying the feedingstuff, the resulting feedingstuff would comply with the requirements of paragraph (1) of this Regulation, then the said requirements shall, as regards the feedingstuff, be regarded as having been complied with.

6. The maximum permitted level for lead in green fodder provided for in the First Schedule to these Regulations may be exceeded in the case of fodder which is produced and used in the same state on the same agricultural holding where, in the opinion of the Minister, this is necessary because of the proximity of the holding to a mining site, provided that the Minister is satisfied that neither animal nor human health can suffer harm because of such excess level.

7. The amount of any undesirable substance or product contained in a raw material mentioned in column (2) of Part I of the Second Schedule to these Regulations opposite the mention of the substance or product in column (1) to the said Schedule shall not exceed the maximum content specified in the third column of the said Schedule opposite the mention of the raw material in the said second column.

8. (1) Subject to the provision of Regulation 7 of these Regulations, where the content of an undesirable substance or product mentioned in column (1) of Part I of the Second Schedule to these Regulations in a raw material mentioned in column (2) of the said Part I exceeds the level laid down in column (3) of the First Schedule to these Regulations in respect of the corresponding straight feedingstuff, the raw material mentioned in column (2) of Part I of the said Second Schedule, may be marketed only if--

( a ) it is intended for use by manufacturers of compound feedingstuffs licensed in accordance with the provisions of Regulation 7 of the European Communities (Additives in Feedingstuffs) Regulations, 1989 ( S.I. No. 49 of 1989 ), and

( b ) it is accompanied by a document staling:

(i) that the raw material is intended for manufacturers of compound feedingstuffs who fulfil the conditions laid down in Regulation 7 of the said Regulations,

(ii) that the raw material may not be fed unprocessed to livestock, and

(iii) the amount of the undesirable substance or product contained in the raw material.

(2) Paragraph (1) of this Regulation shall also apply to raw materials mentioned in column (2) of Part II of the Second Schedule to these Regulations which contain undesirable substances or products mentioned in column (1) of Part II of the Second Schedule to these Regulations, the maximum level of which is not restricted in column (3) of Part I of the said Schedule, if the level of the undesirable substance or product present in the raw material exceeds that laid down in column (3) of the First Schedule to these Regulations for the corresponding straight feedingstuff.

9. (1) Where a person has on his premises any feedingstuff which he has purchased and which he proposes to use in the course of his farming operations, he may apply to the Minister to have a sample thereof taken for analysis.

(2) An application under this Regulation shall be--

( a ) made within the period of thirty days beginning on the date on which the feedingstuff to which the application relates was delivered to the applicant, and

( b ) accompanied by a fee which shall be calculated by reference to the rates in the Third Schedule to these Regulations.

(3) Where an application is made under this Regulation, an authorised officer shall, subject to paragraph (4) of this Regulation--

( a ) take and deal with a sample of the relevant feedingstuff according to the methods described in the Annex to Commission Directive 76/371/EEC⁽¹⁾, and

¹O.J. No. L102, 15.4.1976, p1.

( b ) give or cause to be given, or send by registered post or by such other method as for the time being stands approved of for the purposes of this paragraph by the Minister, to the State Chemist and to the person whose name or trade name appears on the label of the feedingstuff or, in the case of an imported feedingstuff, to the importer, samples prepared pursuant to the requirements of subparagraph (a) of this paragraph.

(4) Where an application is made under this Regulation, an authorised officer may, if he thinks fit, decline to take a sample if--

( a ) he is not satisfied that the applicant has purchased the feedingstuff to which the application relates, or

( b ) he is not satisfied that the applicant proposes to use such feeding stuff in the course of his farming operations, or

( c ) he is not satisfied that such feeding stuff as presented for sampling is fairly representative of the feeding stuff as delivered to the applicant, or

( d ) the applicant does not furnish such information relating to such feeding stuff as the authorised officer may reasonably require.

(5) Where the State chemist receives a sample taken in pursuance of an application under this Regulation, he shall in making an analysis thereof comply with any official method of analysis as applies in the particular case and send to the applicant and to the person (other than the State Chemist) referred to in paragraph (3) (b) of this Regulation a certificate in the form set out in the Schedule to the European Communities (Feeding Stuffs) (Method of Analysis (Amendment) and Methods of Sampling) Regulations, 1980 ( S.I. No. 14 of 1980 ).

(6) Subject to paragraph (7) of this Regulation, all fees under this Regulation shall be paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance and, accordingly, the Public Offices Fees Act, 1879, shall not apply in respect thereof.

(7) Nothing in this Regulation shall be construed as requiring the State Chemist to make a test, examination or analysis regarding the presence in or absence from a sample given or sent to him pursuant to these Regulations of any particular substance, product or other thing, if in his opinion there is not in relation to such presence or absence a method of testing, examination or analysis which is sufficiently reliable or if there is not available to the State Chemist the apparatus or other means by which such a test, examination or analysis could be made.

(8) In any case in which he considers it proper so to do (not being a case in which the applicant has received a certificate under this Regulation), the Minister may refund a fee paid in relation to an application under this Regulation.

(9) For the purpose of this Regulation a feeding stuff shall not be regarded as having been delivered to a purchaser until it arrives at the destination to which it is consigned whether the consignment is by direction of the supplier or the purchaser.

10. (1) The Minister may appoint persons to be authorised officers for the purposes of these Regulations and may revoke such appointment.

(2) An authorised officer shall be furnished with a warrant of his appointment and when visiting any premises to which these Regulations apply shall, if so required, produce the warrant to the occupier or any other person holding a responsible position of management at the premises.

11. (1) Subject to paragraph (6) of this Regulation, an authorised person may at all reasonable times enter,

( a ) any premises in which he has reasonable grounds for believing that,

(i) feedingstuffs and raw materials are being manufactured, placed on the market or stored for placing on the market, or

(ii) feedingstuffs and raw materials which are used to feed animals are kept, or

(iii) feedingstuffs and raw materials which have been landed or otherwise brought into the State are kept,

( b ) any railway wagon, vehicle, ship, vessel or aircraft in which he has reasonable grounds for believing that feedingstuffs and raw materials are being either transported for placing on the market or kept for the purposes of such transport or for use in feeding animals,

and there or at any other place,

( c ) make such examinations, tests and inspections, and

( d ) take such samples of any feedingstuff, raw material or any other substance which he reasonably believes may be used to feed animals and which he finds in the course of his inspection, as he may consider appropriate for the purpose of these Regulations and the Directive.

(2) Every person who has on any premises any feedingstuffs or raw materials shall at all reasonable times--

( a ) afford to an authorised officer such facilities and assistance as are reasonably necessary for an inspection and taking of samples pursuant to these Regulations or for such an inspection or for such a taking,

( b ) give an authorised officer any information which he may reasonably require regarding the purchase, importation, sale or use of the feedingstuffs or raw materials,

( c ) produce to an authorised officer any document relating to the feedingstuffs or raw materials which the authorised officer may reasonably require and permit the authorised officer to inspect and take extracts from such document.

(3) In addition to the foregoing, any person who carries on the business of manufacturing, packaging, processing or marketing of feedingstuffs or raw materials shall,

( a ) keep records of his transactions regarding feedingstuffs or raw materials,

( b ) produce, at the request of an authorised officer, any such records or any books or other documents relating to the said business which are in the possession or under the control of the person carrying on such business,

( c ) permit any authorised officer to inspect and take extracts from such records, books or other documents and give to the authorised officer any information which he may reasonably require in relation to any entries therein,

( d ) afford to any authorised officer such facilities and assistance as are reasonably necessary for inspecting the stock of any feedingstuffs or raw materials on any premises on which such person carries on such a business,

( e ) give to an authorised officer any information he may reasonably require in relation to such transactions, including in particular, information which he may reasonably require regarding any feedingstuff or raw material specified by him, whether imported from other Member States or from third countries.

(4) An importer shall notify the Minister if he intends to import any of the materials specified in Part I of the Second Schedule to these Regulations and shall provide the Minister with information concerning the date of arrival and place of entry into the State of such materials.

(5) In any proceedings for an offence under these Regulations, evidence of the result of any test, examination or analysis of, or of any report on, a sample taken under these Regulations may be given if, and only if, it is proved that--

( a ) the sample was taken and dealt with in accordance with the methods described in the Annex to Commission Directive 76/371/EEC ⁽¹⁾.

¹O.J. No. L102, 15.4.1976, p1.

( b ) before the proceedings were instituted one of the final samples prepared pursuant to the requirements of the said Annex was given or caused to be given to the defendant and to the State Chemist or sent or given to them by registered post or by such other method as stands approved of for the purposes of paragraphs (3) (b) of Regulation 9 of these Regulations by the Minister, and

( c ) the test, examination or analysis was carried out in accordance with such official method of analysis as applied in the particular case.

(6) Nothing in this Regulation shall be construed as enabling an authorised officer to enter a dwelling.

12. Where an authorised officer is satisfied that a feedingstuff or raw material which is placed on the market, or which he believes will be placed on the market, does not comply with any one or more of the requirements of these Regulations, he may require either or both of the following persons, namely, the person who appears to him to have for the time being possession or control of the feedingstuff or raw material and the person whose name or trade name appears on the label of the feedingstuff or raw material to take such steps as are necessary to ensure that it does not continue to be placed on the market, or, as may be appropriate, is not placed on the market until such authorised officer is satisfied that the requirement is complied with.

13. Where a sample of a feeding stuff or a raw material is taken pursuant to these Regulations by an authorised officer, a person shall not move the raw material or feeding stuff, as the case may be, during the period of seven working days immediately following the day on which the sample is taken, without the consent of an authorised officer and, where a consent under this Regulation is given, a person shall not move the raw material or feeding stuff concerned other than in accordance with the terms and conditions of the consent.

14. (1) Where a sample of a raw material or feedingstuff is taken pursuant to these Regulations by an authorised officer and is found on official examination not to comply with a requirement of these Regulations, then the Minister may require that the raw material or feedingstuff shall be destroyed or otherwise disposed of in such manner as the Minister shall determine.

(2) In case the Minister makes a requirement under this Regulation the following provisions shall apply:

( a ) he shall inform in writing of the requirement the person who is in possession or control of the raw material or feedingstuff to which the requirement relates,

( b ) where such person is so informed, pending the disposal of such raw material or feedingstuff in accordance with the said requirement, the raw material or feedingstuff shall be moved only with the consent of an authorised officer, and

( c ) the person in such possession or control shall dispose of the raw material or feedingstuff, or cause or permit it to be disposed of, only in accordance with the requirement.

15. (1) Any person who--

( a ) contravenes Regulations 4, 5, 6, 7, 8, 11 (2), 11 (3), 11 (4), or 13 of these Regulations, or

( b ) obstructs or interferes with an authorised officer in the course of exercising a power conferred on him by Regulation 11 of these Regulations, or

( c ) fraudulently tampers with any raw material or feedingstuff so as to procure that any sample of it taken pursuant to these Regulations does not correctly represent the raw material or feedingstuff, or

( d ) tampers or interferes with any sample taken pursuant to these Regulations, or

( e ) fails to comply with a requirement of an authorised officer pursuant to Regulation 12 of these Regulations or of the Minister pursuant to Regulation 14 of these Regulations

shall be guilty of an offence.

(2) Any person guilty of an offence under these Regulations shall be liable on summary conviction to a fine not exceeding £1,000, or, at the discretion of the Court, to imprisonment for a term not exceeding 12 months.

16. An offence under these Regulations may be prosecuted by the Minister.

17. In any proceedings for an offence under these Regulations in which it is proved that the feedingstuff to which the proceedings relate did not comply with the requirements of Regulation 4 of these Regulations, in respect of feedingstuffs, it shall be a defence for the defendant to prove that he did not know that the feedingstuff failed so to comply and that having regard to the manner in which he acquired the feedingstuff it would have been reasonable for him, in the circumstances of the case, to assume that the feedingstuff was one which complied with the said Regulation 4.

18. The European Communities (Feeding Stuffs) (Tolerances of Undesirable Substances and Products) Regulations, 1977 ( S.I. No. 246 of 1977 ), the European Communities (Feeding Stuffs) (Tolerances of Aflatoxin B1) Regulations, 1982 ( S.I. No. 96 of 1982 ) and the European Communities (Feeding Stuffs) Tolerances of Undesirable Substances and Products) (Amendment) Regulations, 1986 ( S.I. No. 353 of 1986 ) are hereby revoked.

FIRST SCHEDULE

⁽¹⁾Flourine content per percentage point phosphorus in the feedingstuff.

⁽¹⁾Cadium content per percentage point phosphorus in the feedingstuff.

SECOND SCHEDULE

PART I

⁽¹⁾Cadium content per percentage point phosphorus.

PART II

THIRD SCHEDULE

Fees referred to in regulation 9 (2) (b)

The fee payable in respect of analysis for undesirable substances and products in feedingstuffs shall be calculated at the rate of £9.00 per hour.

GIVEN under my Official Seal, this 28th day of August, 1989.

MICHAEL O'KENNEDY,

Minister for Agriculture and Food.

EXPLANATORY NOTE.

The Regulations, which control the content of undesirable substances and products in feedingstuffs, and raw materials, consolidate existing legislation and implement additional amendments to Council Directive No. 74/63/EEC. The Regulations revoke the European Communities (Feeding Stuffs) (Tolerances of Undesirable Substances and Products) Regulations, 1977 and 1986 and also the European Communities (Tolerances of Aflatoxin B1) Regulations, 1982.