S.I. No. 216/1988 - European Communities (Pesticide Residues) (Cereals) Regulations, 1988.

S.I. No. 216 of 1988.

EUROPEAN COMMUNITIES (PESTICIDE RESIDUES) (CEREALS) REGULATIONS, 1988.

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 (No. 27 of 1972), and for the purpose of giving effect to Council Directive No. 86/362/EEC of 24 July 1986¹ as amended by Council Directive No. 88/298/EEC of 16 May 1988², hereby make the following Regulations:

¹O.J. No. L 221/37, 7.8.86.

²O.J. No. L 126/53. 20.5.88.

1. These Regulations may be cited as the European Communities (Pesticide Residues) (Cereals) Regulations, 1988, and shall come into operation on the 1st day of October, 1988.

2. In these Regulations—

"the Directive" means Council Directive No. 86/362/EEC of 24 July, 1986¹;

¹O.J. No. L 221/37, 7.8.86.

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

"the Minister" means the Minister for Agriculture and Food;

"aircraft" includes hovercraft;

"Annex 1" (which is set out in the Schedule hereto) means Annex 1 to the Directive;

"Annex 11" (which is set out in the Schedule hereto) means Annex 11 to the Directive;

"pesticide residues" means residues of the pesticides and of their metabolites, and breakdown or reaction products listed in the first column of Annex 11;

"putting into circulation" means any handing over, whether or not for a consideration;

"controlled products" means the products listed in Annex 1;

"foodstuffs" includes beverages.

3. (1) These Regulations shall apply to any product which is a product listed in Annex 1, except where it can be established by appropriate evidence that they are intended for—

( a ) export to a country other than a Member State of the European Communities;

( b ) the manufacture of products other than foodstuffs; or

( c ) sowing,

and unless the owner or person in charge establishes that they are so intended, it shall be presumed that these Regulations apply to such a product.

(2) The provisions of these Regulations are without prejudice to the provisions of the European Communities (Feeding Stuffs) (Tolerances of Undesirable Substances and Products) Regulations, 1977 and 1986 (S.I. Nos. 246 of 1977 and 353 of 1986).

4. (1) A person shall not put into circulation any controlled product if—

( a ) the product contains within it or on it a pesticide residue, and

( b ) the level of such pesticide residue exceeds the maximum specified in relation to the controlled product in the second column of Annex II opposite the mention of such pesticide residue in the first column of the said Annex II.

(2) A person who contravenes the provisions of paragraph (1) of this Regulation shall be guilty of an offence and 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 six months, or to both.

5. (1) Subject to paragraph (3) of this Regulation, an authorised officer may at any reasonable time enter—

( a ) any place or premises, including farms, in which he has reasonable grounds for believing that a controlled product is being produced, put into circulation, processed, stored or used,

( b ) any railway wagon, vehicle, ship, vessel, aircraft, container or other thing in which he has reasonable grounds for believing that such a product is being transported, stored or used, or

( c ) any premises in which he has reasonable grounds for believing that there are any books, documents, or records, relating to any business whose activities consist of or include the putting into circulation, processing or storage of any controlled product,

and there or at any other place—

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

(ii) take samples from or of any product which he finds in the course of his inspection and which he believes is or may be a product to which the Regulations apply.

as he may consider appropriate and provided that the quantity comprising such samples is reasonable.

(2) A person who has in any place or land or on any premises or in any railway wagon, vehicle, ship, vessel, aircraft, container or other thing a controlled product 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 this Regulation,

( b ) give an authorised officer any information which he may reasonably require regarding the purchase, importation, processing, production, sale or use of any such product and which is within the person's knowledge or procurement, and

( c ) produce to an authorised officer any document relating to any such product which the authorised officer may reasonably require and when produced permit the officer to inspect and take extracts from or copy such document.

(3) Where a sample is taken pursuant to this Regulation, the authorised officer concerned shall divide the sample into not more than three parts, each of which he shall seal and mark.

(4) In any proceedings for an offence under these Regulations, evidence of the result of any test, examination or analysis of, or any report on, a sample taken pursuant to this Regulation, shall not be adduced unless it is proved that before the proceedings were instituted one of the parts into which the sample was duly divided was left with, or sent by registered post to, the defendant or his agent.

(5) ( a ) In any proceedings for an offence under these Regulations, a certificate issued by or on behalf of the Minister showing the results of an analysis carried out on behalf of the Minister shall, until the contrary is shown, be sufficient evidence of the facts certified to therein in relation to the presence of any pesticide residues and the level of such pesticide residues within or on a controlled product.

( b ) A document purporting to be a certificate such as is referred to in subparagraph (a) of this paragraph and to be issued by or on behalf of the Minister shall be deemed, until the contrary is shown, to be such a certificate.

(6) Any person who—

( a ) fails to comply with a requirement of paragraph (2) of this Regulation, or

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

shall be guilty of an offence and 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 six months, or to both.

(7) The Minister shall furnish an authorised officer with a certificate of his appointment and, when exercising any power conferred on him by these Regulations, the officer shall, if requested by a person affected, produce that certificate to that person.

6. (1) An authorised officer may seize and retain or seize, remove and retain any controlled product in relation to which the officer has reasonable grounds for suspecting that there is or has been a failure to comply with any provision of these Regulations.

(2) An authorised officer who has seized any controlled product pursuant to this Regulation may be a notice in writing, given to the owner or to the person in apparent charge or control of the product, require either—

( a ) specified things to be done in relation to the product before it is released by the officer, or

( b ) the disposal of the product by the owner, or the person in apparent charge or control of the product, in a manner and within a time specified in the notice and at the expense of the owner, such disposal to be such as will prevent the product from being used for human or animal consumption, and

in either case, the authorised officer shall retain control of the product to which the notice relates until the requirements of the notice have been complied with.

(3) Where there has been a failure to comply with a requirement of a notice given under paragraph (2) (b) of this Regulation, an authorised officer who in pursuance of this Regulation has seized any product may, on giving notice in writing to the owner or the person in apparent charge or control of such product of his intention to do so, apply to the District Court in the District Court district in which the notice has been served for an order directing that the product be disposed of (by destruction or otherwise) in a manner, specified in the order, that will prevent its being used for human or animal consumption.

(4) Where an application is made under paragraph (3) of this Regulation to the District Court for an order directing the disposal of a controlled product, the Court, if it is satisfied that—

(i) the controlled product to which the notice relates contains within it or on it a pesticide residue in excess of the maximum specified in relation to that product under these Regulations;

(ii) if such product were released, it might be put into circulation contrary to Regulation 4 of these Regulations, and

(iii) such product if consumed would constitute a danger to human or animal health,

shall order that the product be disposed by (by destruction or otherwise) in a manner, specified in the order, that will prevent its being used for human or animal consumption.

(5) Where an order is made by the District Court under paragraph (4) of this Regulation, the order may provide that the product to which it relates shall be disposed of in the manner specified in the notice given under paragraph (2) (b) of this Regulation, or in such other manner as may be specified in the Court's order and which, in the opinion of the Court, will prevent the product being used for human or animal consumption.

(6) Where an order made by the District Court under paragraph (4) of this Regulation requires that a product to which it relates to be disposed of by an authorised officer, the cost of disposing of the relevant product pursuant to and in accordance with the order shall be recoverable by the Minister as a simple contract debt in any court of competent jurisdiction from the person who was the owner of the product at the time it was seized.

(7) Any person who obstructs or interferes with an authorised officer in the course of exercising a power conferred on him under this Regulation shall be guilty of an offence and 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 six months, or to both.

7. (1) Where a product is seized pursuant to Regulation 6 (1) of these Regulations, a person shall not tamper with, or without the permission of an authorised officer, move, dispose of or otherwise interfere in any way with the product.

(2) A person who contravenes paragraph (1) of this Regulation shall be guilty of an offence and 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 six months, or to both.

8. If any person fraudulently—

(a) tampers with anything so as to procure that any sample taken pursuant to these Regulations does not correctly represent the product sampled, or

(b) tampers or interferes with any sample taken under these Regulations,

he shall be guilty of an offence and 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 six months, or to both.

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

SCHEDULE

Regulation 2

ANNEX I

ANNEX II

⁽¹⁾ During a transitional period expiring no later than 30th June 1991, Member States whose monitoring authorities are as yet unable to determine the residues at the set level of 0.01 mg/kg in a routine manner may use methods with determination limits not exceeding 0.05 mg/kg.

⁽²⁾ As from 1st January 1990.

GIVEN under my Official Seal, this 9th day of September 1988.

MICHAEL O'KENNEDY,

Minister for Agriculture and

Food.

EXPLANATORY NOTE.

The Regulations provide that a person shall not put into circulation any cereal, to which these Regulations apply, if it contains the residue of a pesticide specified in the Regulations in a quantity greater than the maximum laid down.