S.I. No. 283/1998 - European Communities (Feedingstuffs) (Tolerances of Undesirable Substances and Products) Regulations, 1998

S.I. No. 283 of 1998.

EUROPEAN COMMUNITIES (FEEDINGSTUFFS) (TOLERANCES OF UNDESIRABLE SUBSTANCES AND PRODUCTS) REGULATIONS, 1998

I, Joe Walsh, 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), and for the purpose of giving effect to Council Directive No. 74/63/EEC of 17 December, 1973¹, as amended by

¹ O.J. No. L 38, 11. 2. 1974, p. 31

Commission Directive No. 76/14/EEC of 15 December 1975²,

² O.J. No. L 4, 9. 1. 1976, p.24

Commission Directive No. 76/934/EEC of 1 December 1976³,

³ O.J. No. L 364, 31. 12. 1976, p. 20

Council Directive No. 80/502/EEC of 6 May 1980⁴,

⁴ O.J. No. L 124, 20. 5. 1980, p 17

Commission Directive No. 83/381/EEC of 28 July 1983⁵,

⁵ O.J. No. L 222, 13. 8. 1983, p. 31

Commission Directive No. 86/299/EEC of 3 June 1986⁶,

⁶ O.J. No. L 189, 11. 7. 1986, p.40

Council Directive No. 86/354/EEC of 21 July 1986⁷,

⁷ O.J. No. L 212, 2. 8. 1986, p. 27

Commission Directive No. 87/238/EEC of 1 April 1987⁸,

⁸ O.J. No L 110, 25. 4. 1987, p. 25

Commission Directive No. 91/126/EEC of 13 February, 1991⁹

⁹ O.J. No. L 60, 7. 3. 1991, p. 16

Commission Directive No. 92/63/EEC of 10 July, 1992¹⁰

¹⁰ O.J. No. L 221, 6. 8, 1992, p. 49

Council Directive No. 92/88/EEC of 26 October, 1992¹¹

¹¹ O.J. No. L 321, 6. 11. 1992, p. 24

Commission Directive No. 94/16/EEC of 22 April, 1994¹²

¹² O.J. No. L 104, 23. 4. 1994, p. 32

Council Directive No. 95/69/EC of 22 December, 1995¹³

¹³ O.J. No. L 332, 30. 12. 1995, p. 15

Commission Directive No. 96/6/EEC of 16 February, 1996¹⁴,

¹⁴ O.J. No. 49, 28. 2. 1996, p. 29

Council Directive No. 96/25/EC of 29 April, 1996¹⁵,

¹⁵ O.J. No. L 125, 23. 5. 1996, p. 35

Commission Directive No. 97/8/EC of 7 February, 1997¹⁶ and

¹⁶ O.J. No. L 48, 19. 2. 1997, p. 22

Commission Directive No 98/60/EC of 24 July, 1998¹⁷

¹⁷ O.J. No. L 209, 25.7.1998, p. 50

hereby make tile following, Regulations:

1. (1) These Regulations may be cited as the European Communities (Feedingstuffs) (Tolerances of Undesirable Substances and Products) Regulations, 1998.

2. (1) In these Regulations -

"animals" means animals belonging to species normally nourished and kept or consumed by man, as well as animals living freely in the wild in cases where they are nourished with feedingstuffs;

"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 feed materials, whether or not containing additives, which are intended for oral animal feeding as complete or complementary feedingstuffs;

"the Directive" means Council Directive No. 74/63/EEC of 17 December 1973 ¹ , as amended by:-

¹ O.J. No. L 38, 11.2. 1974, p.31

Commission Directive No. 76/14/EEC of 15 December 1975².

² O.J. No, L 4.9. 1. 1976, p.24

Commission Directive No. 76/934/EEC of 1 December 1976³,

³ O.J. No. L 364, 31. 12, 1976, p. 20

Council Directive No. 80/502/EEC of 6 May 1980⁴,

⁴ O.J. No. L 124, 20. 5. 1980, p. 17

Commission Directive No. 83/381/EEC of 28 July 1983⁵.

⁵ O.J. No. L 222, 13. 8. 1983, p. 31

Commission Directive No. 86/299/EEC of 3 June 1986⁶,

⁶ O.J. No. L 189, 11. 7. 1986, p.40

Council Directive No. 86/354/EEC of 21 July 1986⁷,

⁷ O.J. No. L 212, 2. 8. 1986, p. 27

Commission Directive No. 87/238/EEC of 1 April 1987⁸.

⁸ O.J. No L 110, 25. 4. 1987, p. 25

Commission Directive No. 91/126/EEC of 13 February, 1991⁹

⁹ O.J. No. L 60, 7. 3. 1991, p. 16

Commission Directive No. 92/63/EEC of 10 July, 1992¹⁰

¹⁰ O.J. No. L 221, 6. 8. 1992, p. 49

Council Directive No. 92/88/EEC of 26 October, 1992¹¹

¹¹ O.J. No. L 321, 6. 11. 1992, p. 24

Commission Directive No. 94/16/EEC of 22 April, 1994¹²

¹² O.J. No. L 104, 23. 4. 1994, p. 24

Council Directive No. 95/69/EEC of 22 December, 1995¹³

¹³ O.J. No. L 332,30. 12. 1995, p. 15

Commission Directive No. 96/6/EEC of 16 February, 1996¹⁴,

¹⁴ O.J. No. L 49, 28. 12. 1996, p. 29

Commission Directive No. 96/25/EC of 29 April, 1996¹⁵,

¹⁵ O.J. No. L 125, 23. 5. 1996, p. 35

Commission Directive No. 97/8/EC of 7 February, 1997¹⁶, and

¹⁶ O.J. No. L 48, 19. 2. 1997, p. 22

Commission Directive No. 98/60/EC of 25 July, 1998¹⁷

¹⁷ O.J. No. L 209, 25.7. 1998, p. 50

"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;

"feed materials" means 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 for use in oral animal feeding, either directly as such or after processing, in the preparation of compound feeding stuffs or as carriers of premixtures;

"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 (Feedingstuffs) (Method of Analysis) Regulations, 1978 to 1994;

"pet animals" means animals belonging to species normally nourished and

kept but not consumed by man, except animals bred for fur production;

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

"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 the First Schedule or the Second Schedule 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. (1) Feed materials may only be put into circulation if they are sound, genuine and of merchantable quality.

(2) In particular, and subject to Part I of the Second Schedule to these Regulations, feed materials cannot be considered as sound, genuine and of merchantable quality if the level of undesirable substances or products is so high as to make it impossible to respect the maximum levels fixed for compound feedingstuffs in the First Schedule to these Regulations.

4. A person shall not -

(a) put into circulation,

(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 feed material unless the feed material complies with Regulations 7 and 8 of these Regulations.

5. (1) The amount of any undesirable substance or product contained in a feeding stuff 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 feeding stuff 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 feeding stuff, be construed as including a reference to a complementary feedingstuff.

(3) Notwithstanding paragraph (2) 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 thereto, 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 feed 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 feed material in the said second column.

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

(a) it is intended for use by manufacturers of compound feedingstuffs approved in accordance with the provisions of Council Directive 95/69/EC of 22 December, 1995¹, and

(b) it is accompanied by a document stating:

(i) that the feed material is intended for manufacturers of compound feedingstuffs approved in accordance with the provisions of Article 2 of Council Directive 95/69/EC of 22 December, 1995,

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

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

9. A consignment of a feed material, referred to in Part I of the Second Schedule to these Regulations, which has a content of an undesirable substance or product higher than the maximum level fixed in column (3) of Part I of the said Schedule shall not be mixed with other consignments of feed materials or with consignments of feeding stuffs.

10. (1) Where an operator or a person who, by virtue of his professional activities possesses, or has possessed, or has had direct contact with a consignment of a feed material or of a feedingstuff and has knowledge to the effect that -

(a) the consignment of feed material is unsuitable for any use in animal feedingstuffs because of contamination by an undesirable substance or product covered by the Council Directive and therefore does not comply with Regulation 5(1) of these Regulations and consequently constitutes a serious risk for animal and public health, or

(b) the consignment of feedingstuff does not meet the provision of the First Schedule to these Regulations and therefore constitutes a serious risk for animal and public health,

such a person or operator shall immediately inform the Minister even if it is intended that the consignment be destroyed.

(2) Having verified the information received under paragraph (1) of this Regulation, the Minister shall, in the case of a contaminated consignment, ensure that all the necessary measures are taken to prevent the consignment, from being used in animal nutrition.

(3) Where a contaminated consignment of a feed material or feedingstuff is to be destroyed, the Minister shall require that it is destroyed in a manner which cannot have harmful effects on public or animal health, or on the environment.

11. (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 sixty 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/EEC¹, and

¹O.J. No. L 102, 15. 4. 1976, p. 1

(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 purpose 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 feedingstuff in the course of his farming operations, or

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

(d) the applicant does not furnish such information relating, to such feedingstuff 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 (Feedingstuffs) (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 feedingstuff 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.

12. (1) The Minister may appoint persons to be authorised officers for the purpose 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.

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

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

(i) feedingstuffs and feed materials are being manufactured, put into circulation or stored for putting into circulation, or

(ii) feedingstuffs and feed 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 feed materials are being either transported for putting into circulation 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, feed 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 feed 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 document relating to the feedingstuffs or feed 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 putting into circulation of feedingstuffs or feed materials shall,

(a) keep records of his transactions regarding feedingstuffs or feed 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 feed 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 feed 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. L 102, 15. 4. 1976, p. 1

(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 11 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.

14. Where an authorised officer is satisfied that a feedingstuff or feed material which is put into circulation, or which he believes will be put into circulation, 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 feed material and the person whose name or trade name appears on the label of the feedingstuff or feed material to take such steps as are necessary to ensure that it does not continue to be put into circulation, or, as may be appropriate, is not put into circulation until such authorised officer is satisfied that the requirement is complied with.

15. Where a sample of a feedingstuff or a feed material is taken pursuant to these Regulations by an authorised officer, a person shall not move the feed material or feedingstuff, as the case may be, during the period of fourteen 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 feed material or feedingstuff concerned other than in accordance with the terms and conditions of the consent.

16. (1) Where a sample of a feed 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 feed 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 provision shall apply:

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

(b) where such person is so informed, pending the disposal of such feed material or feedingstuff in accordance with the said requirement, the feed 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 feed material or feedingstuff, or cause or permit it to be disposed of, only in accordance with the requirement.

17. (1) Any person who -

(a) contravenes Regulations 3, 4, 5, 6, 7, 8, 9, 10(1), 13(2), 13)(3), 13(4), or 15 of these Regulations, or

(b) obstructs or interferes with an authorised officer in the course of exercising a power conferred on him by Regulation 13 of these Regulations, or

(c) fraudulently tampers with any feed material or feedingstuff so as to procure that any sample of it taken pursuant to these Regulations does not correctly represent the feed 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 14 or Regulation 15 of these Regulations or of the Minister pursuant to Regulation 10(3) or Regulation 16 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.

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

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

19. In any proceeding 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 a feedingstuff, 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 feeding stuff, 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.

20. The European Communities (Feedingstuffs) (Tolerances of Undesirable Substances and Products) Regulations, 1989 ( S.I. No. 216 of 1989 ), the European Communities (Feedingstuffs) (Tolerances of Undesirable Substances and Products) (Amendment) Regulations, 1991 ( S.I. No. 241 of 1991 ), the European Communities (Feedingstuffs) (Tolerances of Undesirable Substances and Products) (Amendment) Regulations, 1993 ( S.I. No. 86 of 1993 ), the European Communities (Feedingstuffs) (Tolerances of Undesirable Substances and Products) (Amendment) Regulations, 1994 ( S.I. No. 34 of 1994 ), the European Communities (Feedingstuffs) (Tolerances of Undesirable Substances and Products) (Amendment) Regulations, 1995 (S.I. No. 73) of 1995), and the European Communities (Feedingstuffs) (Tolerances of Undesirable Substances and Products) (Amendment) Regulations, 1996 ( S.I. No. 275 of 1996 ) are hereby revoked.

SECOND SCHEDULE

"FIRST SCHEDULE

¹ Expressed as mg per 1% phosphorus.

¹ Upper bound concentrations are calculated assuming that all values of the different congeners less than the limit of detection are equal to the limit of detection.

SECOND SCHEDULE

PART I

(Regulation 7)

¹ Expressed as mg per 1% phosphorus.

² Upper bound concentrations are calculated assuming that all values of the different congeners less than the limit of detection are equal to the limit of detection.

PART II

(Regulation 8)

THIRD SCHEDULE

Fees referred to in Regulation 11(2)(b)

The fee payable in respect of analysis for undesirable substances and products in feedingstuffs shall be calculated at the rate of£15 per hour

Given under my Official seal, this 7th day of August, 1998

Joe Walsh

Minister for Agriculture and Food

EXPLANATORY NOTE

These Regulations, which control the content of undesirable substances and products in feedingstuffs and feed materials, consolidate existing legislation and implement additional amendments to Council Directive 74/63/EEC. The Regulations revoke the European Communities (Feeding Stuffs) (Tolerances of Undesirable Substances and Products) Regulations, 1989 to 1996