STATUTORY INSTRUMENTS.

S.I. No. 711 of 2004 .

EUROPEAN COMMUNITIES (PROTEIN FEEDINGSTUFFS) REGULATIONS 2004.

S.I. No. 711 of 2004 .

EUROPEAN COMMUNITIES (PROTEIN FEEDINGSTUFFS) REGULATIONS 2004.

I, MARY COUGHLAN, Minister for Agriculture and Food, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 ( No. 27 of 1972 ) for the purpose of giving effect to Council Directive 82/471/EEC of 30 June 1982¹ . Commission Directive 84/443/EEC of 26 July 1984² , Commission Directive 85/509/EEC of 6 November 1985³ , Commission Directive 86/530/EEC of 28 October 1986⁴ . Council Directive 90/654/EEC of 4 December 1990⁵ , Commission Directive 93/56/EEC of 29 June 1993⁶ , Council Directive 93/74/EEC of 13 September 1993⁷ , Commission Directive 95/33/EC of 10 July 1995⁸ , Council Directive 95/69/EC of 22 December 1995⁹ , Council Directive 96/25/EC of 29 April 1996¹⁰ , Directive 2000/16/EC of the European Parliament and of the Council of 10 April 2000¹¹ , Council Directive 1999/20/EC of 22 March 1999¹² , and Commission Directive 2003/104/EC of 12 November 2003¹³ , hereby make the following regulations--

Citation.

1.  These Regulations may be cited as the European Communities (Protein Feedingstuffs) Regulations 2004.

Interpretation.

2.  (1)  In these Regulations--

“authorised officer” means--

(a)  an authorised officer under the European Communities (Animal Nutrition Inspections) Regulations 2003 ( S.I. No. 238 of 2003 ),

(b)  a person appointed under Regulation 5,

(c)  a member of the Garda Síochána, or

(d)  an officer of Customs and Excise.

“Directive” means Council Directive 82/471/EEC of 30 June 1982¹ as amended by Commission Directive 84/443/EEC of 26 July 1984² , Commission Directive 85/509/EEC of 6 November 1985³ , Commission Directive 86/530/EEC of 28 October 1986⁴ . Council Directive 90/654/EEC of 4 December 1990⁵ , Commission Directive 93/56/EEC of 29 June 1993⁶ , Council Directive 93/74/EEC of 13 September 1993⁷ , Commission Directive 95/33/EC of 10 July 1995⁸ , Council Directive 95/69/EC of 22 December 1995⁹ , Council Directive 96/25/EC of 29 April 1996¹⁰ , Directive 2000/16/EC of the European Parliament and of the Council of 10 April 2000¹¹ , Council Directive 1999/20/EC of 22 March 1999¹² , and Commission Directive 2003/104/EC of 12 November 2003¹³ .

“Member State” means a member state of the European Communities;

“Minister” means the Minister for Agriculture and Food;

“premises” includes land with or without buildings and, where the context so requires or admits, includes a vehicle, vessel, aircraft or container;

“product” means a product as listed in column 2 of the Annex of the Directive;

“third country” means a country other than a member state.

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

(3)  In these Regulations, unless the contrary intention appears, a reference to a Regulation is to a Regulation of these Regulations and a reference to a paragraph or subparagraph is a reference to a paragraph or subparagraph of the provision in which the reference appears.

Regulation of products.

3.  (1) A person shall not market a product or a feedingstuff containing a product belonging to one of the product groups mentioned in column 1 of the Annex to the Directive within the EU unless.

(a)  It complies with each of the conditions specified in columns 3, 4, 5 and 6 of the Annex to the Directive opposite the mention in column 2 thereof of the product; and

(b)  (i)  Any particulars specified in column 7 of the Annex to the Directive opposite the mention in column 2 thereof of that product are set out clearly, visible, legible and indelible on the feedingstuffs package or container or on a label attached to such package or container, or

(ii) In the case of a product or feedingstuff containing a product marketed in bulk, any particulars specified in column 7 of the Annex to the Directive opposite the mention in column 2 thereof of that product are set out clearly, visible, legible and indelible on an accompanying document.

(c)  When marketing in Member States the particulars in paragraph (b) shall be given in at least one of the official languages of the contrary of destination.

(d)  The establishment or intermediary putting products referred to in Chapter 1.1 (a) of Council Directive 95/69/EC of 22 December 1995⁹ into circulation, meets the conditions laid down in Article 2 or Article 3 of that Directive, as appropriate, these provisions shall without prejudice to Article 4(2) of Directive 95/69/EC.

(2)  A person marketing a product or a feedingstuff containing a product belonging to one of the product groups mentioned in column 1 of the Annex to the Directive to a third country shall mark that product or feedingstuff or accompanying document so as to clearly indicate the country where it is being exported to.

(3) A person marketing a product or a feedingstuff containing a product belonging to one of the product groups mentioned in column 1 of the Annex to the Directive for experimental or scientific purposes shall mark that product or feedingstuff or accompanying document so as to clearly indicate that it is for experimental or scientific purposes.

Records.

4.  (1) A person who imports, exports, puts into circulation, manufactures or incorporates a product in a feedingstuff, shall maintain a record of each transaction relating to a product or a feedingstuff, maintain the record for a period not less than 8 years and make it available on request to an authorised officer.

(2)  The Minister may, by notice in writing, prescribe the form and manner in which a record maintained under paragraph (1) is to be maintained and, if he or she does so, a person shall comply with the notice.

Authorised officers.

5.  (1) The Minister may appoint such and so many of his or her officers or other persons as the Minister thinks fit to be authorised officers for the purposes of some or all of the provisions of these Regulations.

(2)  A warrant of appointment as an authorised officer shall be issued to a person appointed under this Regulation and when exercising any function conferred on the person as an authorised officer he or she shall, if requested by a person affected, produce the warrant to that person.

(3)  The Minister may at any time terminate an appointment as an authorised officer, whether or not the appointment was for a fixed period.

(4)  An appointment as an authorised officer shall cease--

(a) where the Minister terminates it pursuant to paragraph (3),

(b) where it is for a fixed period, on the expiry of that period, or

(c) where the person appointed is an officer of the Minister, upon his or her ceasing to be such an officer.

(5)  Nothing in paragraph (4) shall be construed so as to prevent the Minister from reappointing a person as an authorised officer.

Powers of authorised officers.

6.  (1)  An authorised officer or a person employed by or acting on the authority of the Commission of the European Communities accompanied by an authorised officer, if the authorised officer has reasonable cause to suspect that--

(a)  a product is present or may be present on a premises,

(b)  a product is or has been manufactured, incorporated in feedingstuff, processed, stored or otherwise dealt with on the premises.

(c)  a document relating to a product or other thing is or may be on a premises, or

(d)  any offence is being or has been committed under these Regulations.

may enter any premises and the authorised officer may--

(i)  search the premises,

(ii)  stop any person, vehicle, vessel or container,

(iii)  board and search any vehicle, aircraft, vessel or container,

(iv)  examine a feedingstuff, by-product, vehicle, aircraft, vessel, container or other thing that may consist of or contain a product,

(v)  take, without payment, samples, including samples from an animal, of a product, feedingstuff, other thing or any article or substance as he or she may reasonably require and carry out or cause to be carried out on the samples such tests, analyses, examinations, tests or inspections as he or she considers necessary or expedient,

(vi) seize and detain (for so long as is necessary) any animal, product, feedingstuff, vehicle or container,

(vii) require the production of a relevant document or thing relating to an animal, product, feedingstuff process, or premises,

(viii) retain any such document or thing (for so long as is necessary),

(ix) dispose of, or require the owner or person in charge of or in possession of, an animal, product or feedingstuff to dispose of it (or any equipment, machinery, plant or other thing used in connection with, or that may have been in contact with, a product) in such manner as the authorised officer sees fit,

(x) give such directions to, or request such information of, such person regarding the animal product, feedingstuff, vessel, vehicle, aircraft or container as the authorised officer considers necessary,

(xi) require the name and address of a person and the name and address of any other relevant person including the person to whom the animal, product is being delivered or who is causing it to be delivered,

(xii) require of a person the ownership, identify and origin of an animal, product or feedingstuff, or

(xiii) mark or otherwise identify an animal, product, feedingstuff or a sample taken under subparagraph (vi).

(2)  An authorised officer shall not enter, other than with the consent of the occupier, a private dwelling, unless he or she has obtained a search warrant under Regulation 8 other than if he or she has reasonable cause to suspect that, before a search warrant could be sought in relation to the dwelling, anything to which paragraph (1) relates is being or is likely to be destroyed or disposed.

(3)  An authorised officer may use reasonable force, if necessary, in the exercise of his or her powers under this Regulation.

(4)  An authorised officer when exercising any powers under this Regulation may be accompanied by other persons and may take with him or her, or those persons may take with them, any equipment or materials to assist the officer in the exercise of those powers.

(5)  An authorised officer is not liable in any proceedings for anything done in the purported exercise of his or her powers under this Regulation if the court is satisfied that the act was done in good faith and that there were reasonable grounds for doing it.

(6)  Where a member of the Garda Síochána has reasonable cause to suspect that a person has committed an offence under these Regulations, the member may without warrant arrest the person.

Search warrant.

7.  (1) If a judge of the District Court is satisfied by information on oath of an authorised officer that there are reasonable grounds for suspecting--

(a)  that there is in or on any premises--

(i)   a product,

(ii)  a feedingstuff containing a product, or

(iii) an animal,

that has been, may have been or may be imported, exported, put into circulation, manufactured, incorporated in a feedingstuff, fed or held in possession in contravention of Regulation 3, or

(b)  that there is evidence of an offence under these regulations relating to a product therein or thereon,

the judge may issue a search warrant.

(2)  A search warrant issued under this Regulation shall be expressed and operate to authorise a named authorised officer, accompanied by such authorised officers, members of the Garda Síochána, officers of Customs and Excise and other persons as the named officer thinks necessary, at any time or times, within one month from the date of issue of the warrant, on production if so requested of the warrant, to enter (if necessary by force) the land, premises or vehicle, vessel, aircraft or container named in the warrant.

(3)  Where any premises, land, vehicle, vessel, aircraft or container is entered pursuant to a warrant issued under this Regulation, an authorised officer so entering may exercise all or any of the powers conferred on an authorised officer under these Regulations.

Product Control Notice.

8.  (1) Where an authorised officer is of the opinion that--

(a)  these Regulations are not being or have not been complied with or there are reasons to believe that they will not be complied with, or

(b)  there is a danger to public or animal health

he or she may, by a notice in writing (“product control notice”) stating that opinion and served on the person who appears to be the owner, operator or person in charge of the premises, animal, product, feedingstuff or other thing to which the notice relates--

(i) seize and detain the animal, product, feedingstuff, premises, or other thing, or

(ii) require him or her to take such action as the authorised officer considers necessary.

(2)  A product control notice may--

(a) require that an animal, product, feedingstuff or other thing be disposed of or destroyed in a manner specified in the notice,

(b) prohibit or regulate any operation or processing on the premises to which the notice relates,

(c) prohibit the transport or, as the case may be, the further transport of an animal, product, feedingstuff or other thing either absolutely or unless such conditions as may be specified in the notice are complied with,

(d) require a person to return an animal, product, feedingstuff or other thing to the place of departure by a route which in the opinion of the authorised officer is the most direct or prudent,

(e) require that such alterations be made to a premises or means of transport as may be specified in the notice, or

(f) require a person to cleanse and disinfect a vehicle, premises, container or part thereof.

(3)  A person shall comply with a product control notice or a requirement of a product control notice unless and until the notice is annulled under paragraph (8).

(4)  A requirement contained in a product control notice may specify a time limit within which it is to be complied with.

(5)  A requirement specified in a product control notice (in this paragraph referred to as “the earlier notice”) may be modified or withdrawn in a further notice and the earlier notice shall have effect subject to the modification or withdrawal.

(6)  A product control notice may require the person in possession of or control of an animal, product, feedingstuff, premises, means of transport or other thing to choose between two or more of the requirements specified in the notice.

(7) (a) A person affected by a product control notice may, within 7 days of the service of the notice, apply to the Judge of the District Court having jurisdiction in the District Court District where an animal, product, feedingstuff, premises, means of transport or other thing is situated or to the Judge of the District Court having jurisdiction in the District Court District where the person bringing the appeal ordinarily resides or carries on business on the grounds that the notice or any of the terms thereof are not justified having regard to these Regulations (in this Regulation referred to as “an appeal”).

(b) An appeal may be heard at any sitting of the District Court within the appropriate District Court District.

(c) Notice of an appeal shall contain a statement of the grounds upon which it is alleged that the product control notice or any of the terms thereof are not justified and shall be served on the Minister at least 48 hours prior to the hearing of the appeal.

(d)  A copy of the notice of appeal shall be lodged with the District Court Clerk at least 48 hours prior to the hearing of the appeal.

(8)  On the hearing of an appeal a Judge of the District Court may confirm, modify, or annul a notice.

(9)  A person, including a person on whom a product control notice has been served, shall not--

(a)  pending the determination of an appeal, deal with an animal, product, feedingstuff, premises, means of transport or other thing to which the notice relates, other than in accordance with the terms of the notice, or

(b)  after such appeal, deal with an animal, product, feedingstuff, premises, means of transport or other thing concerned other than in accordance with the product control notice or notice as modified.

(10) (a)  Where--

(i)  the person in control of an animal, product, feedingstuff, premises, means of transport or other thing fails to comply with the terms of a notice under this Regulation within the time specified therein,

(ii) an authorised officer has reasonable grounds for believing that the terms of a product control notice will not be complied with,

(iii) a product contorl notice has been confirmed with or without modification under paragraph (8) and the notice has not been complied with,

(iv) an authorised officer has reasonable grounds for believing that the terms of a product control notice which has been confirmed with or without modification under paragraph (8) will not be complied with, or

(v) pending the determination of an appeal, an authorised officer has reasonable grounds for believing that directions given pursuant to paragraph (9) have not been or will not be complied with, an authorised officer may at any time seize the animal, product, feedingstuff, premises, means of transport or other thing concerned.

(b)  Where an animal, product, feedingstuff, premises, means of transport or other thing is seized in accordance with subparagraph (a), an authorised officer may--

(i) sell, destroy or dispose of the animal, product, feedingstuff or other thing or cause it to be sold, destroyed or be disposed of, or

(ii) take such other measures in relation to the animal, product, feedingstuff, premises, means of transport or other thing as the authorised officer considers appropriate in the circumstances of the case.

(c)  Any profits arising out of the sale, destruction or disposal of an animal, product, feedingstuff or other thing in accordance with subparagraph (b) shall be paid to the owner thereof less any expenses incurred in connection with the seizure, sale, destruction or disposal.

(11)  The costs of a measure taken under this Regulation is recoverable by the Minister--

(a)  as a simple contract debt in a court of competent jurisdiction from the person who was the owner of the animal, product, feedingstuff, premises, means of transport or other thing at the time the measure was carried out, or

(b)  by deducting the costs from any sum due by the Minister to a person on whom a product control notice has been served.

Forgery.

9.  (1) A person shall not forge or utter knowing it to be forged, a product control notice or a record purporting to be kept and maintained under these Regulations or a document purporting to be an extract therefrom (hereinafter in this Regulation referred to as “a forged document”).

(2)  A person shall not alter with intent to defraud or deceive, or utter knowing it to be so altered a product control notice or a record kept and maintained under these Regulations or an extract therefrom (hereinafter in this Regulation referred to as “an altered document”).

(3)  A person shall not have, without lawful authority, in his or her possession or under his or her control a forged document or an altered document.

Service.

10.  (1) A notice under Regulation 4(2) or a product control notice shall, subject to paragraph (2), be adressed to the person concerned by name, and may be served on or given to the person in one of the following ways--

(a) by delivering it to the person,

(b) by leaving it at the address at which the person ordinarily resides or, in a case where an address for service has been furnished, at that address,

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case where an address for service has been furnished, at that address, or

(d) where the address at which the person ordinarily resides cannot be ascertained by reasonable enquiry and the welfare notice relates to a premises, by delivering it to some person over 16 years of age resident or employed on the premises or by affixing it in a conspicuous position on or near the premises.

(2)  Where a notice under Regulation 4(2) or a product control notice is to be served on or given to a person who is the owner or occupier of a premises and the name of the person cannot be ascertained by reasonable enquiry, it may be addressed to the person by using the words the owner or as the case may require, the occupier.

(3)  A person shall not at any time within 6 months after a notice under Regulation 4(2) or a product control notice is affixed to a premises remove, damage or deface the notice without lawful authority.

(4)  For the purposes of this Regulation, a company within the meaning of the Companies Acts 1963 to 1990, is deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body is deemed to be ordinarily resident at its principal office or place of business.

Obstruction.

11.  A person shall not--

(a)  obstruct or impede an authorised officer in the exercise of any of his or her powers under Regulation 6 or 7,

(b)  fail, without reasonable excuse, to comply with a requirement or direction made by an authorised officer under Regulation 6,

(c)  adulterate or interfere with a product or feedingstuff,

(d)  tamper with or interfere with a sample, or

(e)  in purporting to give information required by an authorised officer under Regulation 6--

(i)  make a statement which he or she knows to be false in a material particular or recklessly make a statement which is false in a material particular, or

(ii) fail to disclose any material particular.

Offences.

12.  (1) A person who contravenes Regulation 3, 4, 8, 9, 10 (3) or 11 is guilty of an offence and is liable on conviction to a fine not exceeding €3,000 or a term of imprisonment not exceeding 6 months or to both.

(2)  An offence under these Regulations may be prosecuted by the Minister.

(3)  Where an offence under these Regulations has been committed by a body corporate and it is proved to have been so committed with the consent or connivance of or to be attributable to any neglect on the part of any person who, when the offence was committed, was a director, manager, secretary or other officer of the body corporate, or a person purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if guilty of the first-mentioned offence.

(4)  Where the affairs of a body corporate are managed by its members, paragraph (3) shall apply in relation to the acts and defaults of a member in connection with the functions of management as if such a member were a director or manager of the body coporate.

Revocations.

13.  The following are revoked--

(a) the European Communities (Protein Feedingstuffs) Regulations 1986 ( S.I. No. 433 of 1986 ),

(b) the European Communities (Protein Feedingstuffs) (Amendment) Regulations 1996 ( S.I. No. 186 of 1996 ),

(c) the European Communities (Protein Feedingstuffs) (Amendment) Regulations 1999 ( S.I. No. 334 of 1999 ) and

(d) the European Communities (Protein Feedingstuffs) (Amendment) Regulations 2000 ( S.I. No. 190 of 2000 ).

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Regulations give effect to the provisions of Council Directive 82/471/EEC of 30 June 1982 (as amended) which lays down marketing controls to be applied on bioproteins in feedingstuffs.

¹O.J. No. L 213 of 21.7.1982, p.8.

²O.J. No. L 245 of 14.9.1984, p.21.

³O.J. No. L 314 of 23.11.1985, p.25.

⁴O.J. No. L 312 of 7.11.1986, p.39.

⁵O.J. No. L 353 of 17.12.1990, p.48.

⁶O.J. No. L 206 of 18.8.1993, p.13.

⁷O.J. No. L 237 of 22.9.1993, p.23.

⁸O.J. No. L 167 of 18.7.1995, p.17.

⁹O.J. No. L 332 of 30.12.1995, p.15.

¹⁰O.J. No. L 125 of 23.5.1996, p.35.

¹¹O.J. No. L 105 of 3.5.2000, p.36.

¹²O.J. No. L 80 of 25.3.1999, p.20.

¹³O.J. No. L 295 of 13.11.2003, p.83.

¹O.J. No. L 213 of 21.7.1982, p.8.

²O.J. No. L 245 of 14.9.1984, p.21.

³O.J. No. L 314 of 23.11.1985, p.25.

⁴O.J. No. L 312 of 7.11.1986, p.39.

⁵O.J. No. L 353 of 17.12.1990, p.48.

⁶O.J. No. L 206 of 18.8.1993, p.13.

⁷O.J. No. L 237 of 22.9.1993, p.23.

⁸O.J. No. L 167 of 18.7.1995, p.17.

⁹O.J. No. L 332 of 30.12.1995, p.15.

¹⁰O.J. No. L 125 of 23.5.1996, p.35.

¹¹O.J. No. L 105 of 3.5.2000, p.36.

¹²O.J. No. L 80 of 25.3.1999, p.20.

¹³O.J. No. L 295 of 13.11.2003, p.83.

⁹O.J. No. L 332 of 30.12.1995, p.15.