S.I. No. 135/1995 - European Communities (Export and Import of Certain Dangerous Chemicals) (Pesticides) (Enforcement) Regulations, 1995

S.I. No. 135 of 1995.

EUROPEAN COMMUNITIES (EXPORT AND IMPORT OF CERTAIN DANGEROUS CHEMICALS) (PESTICIDES) (ENFORCEMENT) REGULATIONS, 1995

I, IVAN YATES, Minister for Agriculture, Food and Forestry, 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 Regulation (EEC) No. 2455/92 of 23 July 1992¹, and Commission Regulation (EC) No. 41/94 of 11 January 1994², hereby make the following Regulations:

1 Citation and Commencement.

1. (1) These Regulations may be cited as the European Communities (Export and Import of Certain Dangerous Chemicals) (Pesticides) (Enforcement) Regulations, 1995.

(2) These Regulations shall come into operation on the first day of June, 1995.

2 Interpretation.

2. (1) In these Regulations—

"active substance" means substances or micro-organisms including viruses, having general or specific effects;

"Annex I" (which is set out in the First Schedule) means Annex I to the Council Regulation of 1992;

"Annex II" (which is set out in the First Schedule) means Annex II to the Council Regulation of 1992, as amended by the Commission Regulation of 1994;

"Annex III" (which is set out in the First Schedule) means Annex III to the Council Regulation of 1992;

"Annex IV" (which is set out in the First Schedule) means the list of reference numbers assigned by the Commission for the notification of the export of certain dangerous chemicals³;

¹O.J. No. L251/13 29/8/1992.

²O.J. No. L8/1 12/1/1994.

³O.J. No. C239/4 27/1994.

"aircraft" includes hovercraft;

"authorised officer" means an officer of the Minister appointed in writing by the Minister to be an authorised officer for the purpose of these Regulations;

"banned chemical" means a chemical which has, for health or environmental reasons, been prohibited for all uses by final governmental regulatory action;

"chemical subject to notification" means any of the chemical substances listed in Annex I and preparations containing any of these chemicals if the preparation has a labelling obligation under Community legislation as a result of the presence of the Annex I chemical;

"chemical subject to the PIC procedure" means each chemical listed in Annex II, whether by itself or in preparations, whether manufactured or obtained from nature, unless its concentration in a preparation is insufficient for a labelling requirement under Community legislation;

"controlled pesticide" means a pesticide containing any of the chemical substances listed in Annex I;

"the Council Regulation of 1992" means Council Regulation (EEC) No. 2455/92 of 23 July 1992¹;

"the Commission Regulation of 1994" means Commission Regulation (EC) No. 41/94 of 11 January 1994^2;

"the Directive of 1967" means Council Directive 67/548/EEC of 27 June, 1967⁴ as amended and adapted;

"the Directive of 1978" means Council Directive No. 78/631/EEC of 26 June, 1978⁵, as amended and adapted;

"designated chemist" means an officer of the Minister holding the position of a chemist authorized in writing by the Minister for the purposes of these Regulations;

"designated national authority" for the purposes of these Regulations, and the Council Regulation of 1992, is the Pesticide Control Service of the Department of Agriculture, Food and Forestry;

¹O.J. No. L251/13 29/8/1992.

²O.J. No. L8/1 12/1/1994.

⁴O.J. No L196/1 16/8/1967.

⁵O.J. No. L206/13 29/7/1978.

"export" means the permanent or temporary export of products meeting the conditions of Article 9 (2) of the Treaty and includes the re-export of products which are placed under a customs procedure other than transit procedure.

"import" means the physical introduction into the customs territory of the Community of products which are placed under a customs procedure other than transit procedure;

"labelling" means the provision on a label of information related to the potential hazard to health, safety or the environment from use of the chemical. It does not refer to labelling requirements for the transport of dangerous goods;

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

"pesticide" means substances or preparations which, in accordance with Regulation 3 of the Regulations of 1994, are pesticides for the purposes of those Regulations;

"prior informed consent" (PIC) means the principle that international shipment of a chemical which is banned or severely restricted in order to protect human health or the environment should not proceed without the agreement, where such agreement exists, or contrary to the decision of the designated national authority of the importing country;

"reference number" means the number assigned by the Commission to each chemical subject to notification when it is exported for the first time to a third country. This number remains unchanged for every subsequent export of the same chemical from the Community to the same third country. The list of current export reference numbers assigned by the Commission ⁶ is set out in Annex IV;

"the Regulations of 1994" means the European Communities (Classification, Packaging and Labelling of Pesticides) Regulations, 1994 ( S.I. No. 138 of 1994 );

"scientific research and development" means scientific experimentation, analysis or chemical research carried out under controlled conditions; it includes the determination of intrinsic properties, performance and efficacy as well as scientific investigation related to product development;

⁶O.J. No. C239/4 27/8/1994.

"severely restricted chemical" means a chemical for which, for health or environmental reasons, virtually all uses have been prohibited by final governmental regulatory action but for which certain specific uses remain authorized;

"the State Chemist" means the Head of the State Laboratory or a member of the staff of the State Laboratory holding the position of a chemist authorized by the State Chemist in writing to perform functions assigned to the State Chemist under Regulation 9;

"substance" means chemical elements and their compounds, as they occur naturally or by manufacture, including any impurity resulting from the manufacturing process;

"third Country" means a country which is not a Member State of the European Union.

(2) In these Regulations, unless otherwise indicated—

( a ) a reference to a Regulation is a reference to a Regulation of these Regulations,

( b ) a reference to a paragraph or subparagraph is a reference to a paragraph or subparagraph of the provision in which the reference occurs,

( c ) a reference to a Schedule is a reference to a Schedule to these Regulations.

(3) A word or expression that is used in any Council Directive or Regulation of the European Communities mentioned in these Regulations has, unless the contrary intention appears, the meaning in these Regulations that it has in the Directive concerned.

3 Application.

3. (1) Subject to paragraph (2), these Regulations apply to any pesticide which is or contains a chemical subject to notification.

(2) These Regulations shall not apply to any—

( a ) substance or preparation imported or exported for the purposes of analysis or scientific research and development, where the quantities involved are sufficiently small that they are unlikely to affect human health or the environment adversely, or

( b ) active substance as manufactured, which is not a pesticide for the purposes of the Regulations of 1994.

4 Prohibited Exports.

4. Exporters shall comply with the decision of the country of destination participating in the PIC procedure and accordingly shall not export a pesticide which is or contains a chemical listed in the first column of Annex II, to a country listed in the second column of that Annex, where the final import decision listed in the third column for that country is to prohibit imports.

5 Duties and Exporters.

5. (1) Where an exporter is due to export a pesticide which contains a chemical subject to notification for which a reference number has not yet been assigned by the Commission, to a third country, the exporter shall provide the designated national authority, no later than 30 days before export is due to take place, with the information contained in Annex III.

(2) Notwithstanding the provisions of paragraph (1), where an export referred to in that paragraph relates to an emergency situation in which any delay may endanger public health or the Environment in the importing country, on application made to and at the discretion of the designated national authority, the obligation to provide the designated national authority, no later than 30 days before export is due to take place, with the information contained in Annex III, may be waived wholly or partly.

(3) Where an exporter is to export a pesticide which contains a chemical subject to notification, for which a reference number has been assigned by the Commission, to a third country to which the reference number relates, the exporter shall ensure that the export is accompanied by the reference number as listed in Annex IV.

(4) Where an exporter is to export a pesticide which contains a chemical listed in the first column of Annex II, whether or not a reference number has been assigned by the Commission, to a third country, the exporter shall ensure that—

( a ) where it is to be exported to a country listed in the second column of that Annex, where the final import decision listed in the third column for that country is to permit imports subject to specified conditions, those conditions shall be respected, and

( b ) without prejudice to the requirements of the importing third country, it is classified, packaged and labelled in accordance with the provisions of the Regulations of 1994.

6 Inspections, Sampling, Tests and Examinations.

6. (1) Subject to paragraph (5) an authorised officer may at any reasonable time enter—

( a ) any place or premises in which he has reasonable grounds for believing that a controlled pesticide is being manufactured, packaged, stored, imported or exported,

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

( 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 manufacture, packaging, storage, transport, import or export of a controlled pesticide,

and there or at any other place—

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

(ii) take samples in accordance with the methods described in the manual on the development and use of FAO specifications for plant protection products (Food and Agriculture Organization of the United Nations, FAO Plant Production and Protection Paper 85, Fourth Revised Edition), of any pesticide which he finds in the course of his inspection and which he believes is or may be a controlled pesticide to which these Regulations apply, as he may consider appropriate and provided the quantity which a sample taken pursuant to this Regulation comprises is reasonable.

(2) A person who has in any place, on any premises or in any railway wagon, vehicle, ship, vessel, aircraft, container or other thing a controlled pesticide to which these Regulations apply 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 manufacture, purchase, importation, storage, sale, transport or exportation of any such controlled pesticide and which is within the person's knowledge or procurement, and

( c ) produce to an authorised officer any document relating to the raw materials used in the formulation of any controlled pesticide which the authorised officer may reasonably require and when produced permit the officer to inspect and take extracts from the document.

(3) In addition to the foregoing any person who carries on the business of manufacturing, formulating, packaging, storing, transporting, importing or exporting a controlled pesticide shall—

( a ) keep records of all transactions regarding the controlled pesticide,

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

( c ) permit such an officer to inspect and take extracts from such records, books or other documents and give to the officer any information which is within his knowledge or under his control and which such officer may reasonably require in relation to any entries therein,

( d ) afford to any such an officer such facilities and assistance as are reasonably necessary for inspecting the stock of any controlled pesticide on any premises on which such person carries on such a business, and

( e ) give to such an officer any information he may reasonably require in relation to such transactions, including, in particular, information which he may reasonably require regarding any controlled pesticide specified by him.

(4) Where a sample is taken pursuant to this Regulation, the authorised officer concerned shall—

( a ) divide the sample into three parts, each of which he shall seal and mark,

( b ) give one part thereof to a designated chemist for analysis in accordance with paragraph (5),

( c ) leave with, or send by registered post to, the defendant or his agent, a second part thereof, and

( d ) retain the remaining part thereof for possible analysis by the State Chemist in accordance with Regulation 9.

(5) Where a designated chemist receives a sample from an authorized officer in pursuance of these Regulations he shall make analyses thereof in accordance with the relevant CIPAC method (Collaborative International Pesticides Analytical Council Limited, Handbook Volume I, IA, IB, IC, and D), or the method included as part of the documentation approved in accordance with Regulation 6 of the Regulations of 1994, as appropriate.

(6) ( a ) In any proceedings for an offence under these Regulations, 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, before the proceedings were instituted, one of the parts into which the sample was divided (as required by paragraph (4) was left with, or sent by registered post to, the defendant or his agent.

( b ) In any proceedings for an offence under these Regulations, evidence of the presence of a controlled pesticide, in or on equipment capable of use for handling, transport or storage of the controlled pesticide, shall be evidence, until the contrary is proved, of the handling, transport or storage of the controlled pesticide by the owner or person in possession of the equipment.

( c ) In any proceedings for an offence under these Regulations, a certificate in the form set out in the Second or Third Schedule showing the results of an analysis shall, until the contrary is shown, be sufficient evidence of the facts certified to therein in relation to the presence in a pesticide of a chemical subject to notification, and the level of such presence and a document purporting to be such a certificate shall be deemed, until the contrary is shown, to be such a certificate.

( d ) In any proceedings for an offence under these Regulations, each of the documents referred to in subparagraph (1) (ii) and paragraph (5) may be proved by a production of a copy thereof purporting to have been published in the Official Journal of European Communities, by the Food and Agriculture Organization of the United Nations, by the World Health Organization, by the Collaborative International Pesticides Analytical Council Limited, or by the production of the document describing the method, certified by the officer-in-charge of the Pesticide Control Service as being part of the documentation approved in accordance with Regulation 6 of the Regulations of 1994, as appropriate.

( e ) For the purpose of these Regulations, the presence of a controlled pesticide, to which these Regulations apply, on any premises (including any stores), shall, until the contrary is shown, be sufficient evidence that the controlled pesticide in question is or was being imported or exported by the owner and by the occupier of such premises.

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

(8) A designated chemist shall be furnished with a warrant of his appointment by the Minister to carry out analyses as required by these Regulations.

7 General Offences.

7. (1) A person who contravenes Regulation 4 shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000, or to imprisonment for a term not exceeding six months, or to both.

(2) If any person—

( a ) tampers with any controlled pesticide so as to procure that any sample of it taken pursuant to Regulation 6 does not correctly represent the controlled pesticide, or

( b ) tampers or interferes with any sample taken pursuant to Regulation 6,

he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding six months or to both.

(3) A person who—

( a ) fails to comply with the requirements of Regulation 5, or Regulation 6 (2) or (3), or

( b ) obstructs or interferes with an authorised officer in the course of exercising a power conferred on him by Regulation 6,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000, or to imprisonment for a term not exceeding six months, or to both.

8 Prosecutions.

8. An Offence under these Regulations may be prosecuted by the Minister.

9 Referee Analysis.

9. (1) Where an appeal is made to the District Court concerning the results of any analysis made under Regulation 6 (5) the third part of the sample shall if the defendant so requests be analyzed by the State Chemist.

(2) The State Chemist shall in making an analysis under this Regulation comply with the methods of analysis that apply in the particular case as specified in Regulation 6 (5) and issue a certificate in the form set out in the Third Schedule to the defendant and to the designated chemist concerned.

10 ..

10. The defendant shall be liable for the cost of the analysis carried out by the State Chemist under Regulation 9 in the event that the results of that analysis confirm that there has been a breach of these Regulations.

FIRST SCHEDULE.

ANNEX I.

(Annex I to Council Regulation (EEC) No. 2455/92 concerning the export and import of certain dangerous chemicals).

List of chemicals banned or severely restricted to certain uses by Community legislation owing to their effects on health and the environment.

(a) CAS = Chemical Abstracts Service.

(b) EINECS = European Inventory of Existing Commercial Chemical Substances.

(c) Use category:

p: plant parotection product,

i: industrial chemical.

(d) Use limitation:

sr: severe restriction.

b: ban.

ANNEX II

(Annex II to Council Regulation (EEC) No. 2455/92 concerning the export and import of certain dangerous chemicals as amended by Commission Regulation (EC) No. 41/94).

Chemicals subject to PIC and the import decisions of third countries.

⁽¹⁾Registrar of Pesticides,

Department of Agriculture,

PO Box 49 Getambe,

Peradeniya,

Sri Lanka.

ANNEX III.

(Annex III to Council Regulation (EEC) No. 2455/92 concerning the export and import of certain dangerous chemicals).

Information required pursuant to Regulation 5 (1) and (2).

1. Identity of the substance or preparation to be exported:

1.1 Substances:

—name in nomenclature of the International Union of Pure and Applied Chemistry,

—other names (usual name, trade name, abbreviation),

—EINECS-number and CAS-number, if available,

—main impurities of the substance, when particularly relevant.

1.2 Preparations:

—trade name or designation of the preparation,

—for each substance listed in Annex I, percentage and details as specified under 1.1.

2. Information on precautions to be taken, including category of danger and risk and safety advice.

3. The name, address, telephone and telex or fax numbers of the designated authority from which further information may be obtained.

4. Summary of regulatory restrictions and reasons for them.

5. Expected date of first export.

6. Reference number.

7. Country of destination.

8. Use category.

9. Estimated amount of the chemical to be exported to the destination country in the next year if possible.

The above information should be provided on an export notification form as shown hereafter.

EXPORT NOTIFICATION FORM FOR BANNED AND SEVERELY RESTRICTED CHEMICALS.

⁽¹⁾ Box 2 or box 3 to be completed.

Note: Chemical and legal date overleaf.

DATA SHEET FOR A BANNED OR SEVERELY RESTRICTED CHEMICAL.

Note: If a preparation contains more than one chemical which is banned or severely restricted in the Community, data sheets on the additional chemicals must be attached hereto.

ANNEX IV.

Reference numbers for the notification of the export of certain dangerous chemicals.

Reference numbers for chemicals (not preparations).

Reference numbers for preparations.

SECOND SCHEDULE.

Regulation 6 (5) (c)

CERTIFICATE OF RESULT OF ANALYSIS.

This is to certify that the above mentioned sample, which was duly fastened and sealed, has been analyzed under the provisions of the European Communities (Export and Import of Certain Dangerous Chemicals) (Pesticides) (Enforcement) Regulations, 1995 ( S.I. No. 135 of 1995 ) and that the results of the analysis are as follows:—

This certificate is issued under the European Communities (Export and Import of Certain Dangerous Chemicals) (Pesticides) (Enforcement) Regulations, 1995 ( S.I. No. 135 of 1995 ).

THIRD SCHEDULE.

Regulation 6 (5) (c)

CERTIFICATE OF RESULT OF ANALYSIS.

This is to certify that the above mentioned sample, which was duly fastened and sealed, has been analysed under the provisions of the European Communities (Export and Import of Certain Dangerous Chemicals) (Pesticides) (Enforcement) Regulations, 1995 ( S.I. No. 135 of 1995 ) and that the results of the analysis are as follows:—

This certificate is issued under the European Communities (Export and Import of Certain Dangerous Chemicals) (Pesticides) (Enforcement) Regulations, 1995 ( S.I. No. 135 of 1995 ).

GIVEN under my Official Seal, this 26th day of May 1995.

IVAN YATES,

Minister for Agriculture, Food and

Forestry.

EXPLANATORY NOTE.

These Regulations serve to implement the provisions of Council Regulation (EEC) No. 2455/92 for those pesticides which are covered by the Council Regulation, introduce necessary enforcement powers and make provision for the penalties that may be applied by the courts in the event of infringements.