Memorandum by the Ministry of Agriculture, Fisheries
ANIMALS AND ANIMAL PRODUCTS (EXAMINATION
FOR RESIDUES AND MAXIMUM RESIDUE LIMITS) REGULATIONS 1997 (S.I. 1997/1729)
The Committee, by letter dated 30 July 1997, requested that
a memorandum be submitted on the following points:
1. Given that the recital of powers refers to the exercise
of powers under section 17(1) and (2) of the Food Safety Act 1990,
and under section 2(2) of the European Communities Act 1972, identify
the provisions made under section 17 and the provisions made under
Section 2(2) of the European Communities Act 1972 was relied
upon for -
(a) making those provisions which regulate or concern
activities not directly relating to food or food sources (regulations
3, 4, 9(2) and (3), 24(1) and 33);
(b) making regulations in so far as they regulate or concern
activities in relation to substances or products that are neither
food nor food sources (regulations 5, 6(2) and (3), 11, 13 to
23, 25 to 28 and 30); and
(c) the revocation in whole or part of those instruments
in Schedule 2 which were made in exercise of the powers under
section 2(2) (regulation 36).
The remainder of the regulations are made under powers in
the Food Safety Act 1990. None of the regulations is made solely
in reliance on section 17 of that Act. It is the Ministry's practice,
when implementing or providing for the enforcement and execution
of Community obligations in instruments made under that Act, to
cite the appropriate subsection or subsections of section 17 together
with such other sections of the Act as give power to make the
necessary provisions in the instrument.
2. In relation to the definition of "enforcement
authority" in regulation 2(1), explain -
(a) who is the enforcement authority for the purposes
of regulation 22;
(b) whether the enforcement authority (except for the
purposes of regulations 12, 20, 21 and 23(1)(b)) is intended to
(a) The enforcement authority for the purposes of regulation
22 is intended to be the Ministers only but in error that regulation
is not referred to as a provision excepted from those to be enforced
by the Ministers and food authorities/local authorities. The Ministry
will correct this omission in Regulations ("the amending
Regulations") to be made before the end of the year.
(b) The enforcement authority (other than for the purposes
of the excepted regulations) is intended to be the Ministers and
the food authority/local authority.
3. Regulation 2(1) provides that the expression "`unauthorised
substance' includes Annex IV substances, prohibited substances
and unlicensed substances". Explain what other substances
are intended to be comprised in that expression.
Other substances intended to be comprised within that expression
are those which fall within the definition of "unauthorised
substances" in Article 2(a) of Council Directive 96/23/EC.
In the amending Regulations the Ministry proposes to amend this
regulation to insert after the words "unauthorised substances"
the words "has the meaning given by Article 2(a) of Directive
4. Various provisions of the Regulations refer to "authorised
substance" and "beta-agonist". Explain what is
meant by these expressions, and why they are not defined.
In the Regulations both of these expressions are, by virtue
of regulation 2(3), intended to have the same meaning as they
bear in Council Directive 96/22/EC and Council Directive 96/23/EC.
Because the expression "beta-agonist" is defined in
Article 2(i) of Council Directive 96/23/EC but is not defined
in Council Directive 96/22/EC the form of words used in regulation
2(3) was relied upon rather than making reference to the specific
meaning given in Directive 96/23.
5. In regulation 3(4) the first presumption (relating
to sale of certain substances for administration to an animal)
is applicable "until the contrary is proven", whereas
the second presumption (relating to animal or animal products
intended for human consumption) is not subject to a similar qualification.
Is this difference intended? If so, explain the reason for the
The Ministry accepts that for the reason of consistency
the second presumption should be subject to a qualification similar
to that in the first presumption and the amending Regulations
will make an appropriate amendment.
6. Regulation 15(3), for the purposes of the duties to
give analysis certificates to the relevant person or give his
name and address to an analyst, defines "relevant person"
as the owner of the animal or substance from which the sample
was taken or the owner of the premises where the sample was taken.
In circumstances where there is both an owner of the animal or
substance and an owner of the premises (who is a different person),
who is the relevant person?
Where the owner of the animal or substance is a different
person from the owner of the premises then either person could
be the relevant person. It is submitted that in such circumstances
the authorised officer who carried out the sampling will give
some thought as to what enforcement action may be considered subject
to the result of the analysis. The officer may take into account
the nature of the possible enforcement action and against whom
it may be taken in deciding who to treat as the relevant person
for the purposes of regulations 15 to 17. In relation to a given
sample it was intended, that, for the purposes of regulations
16 and 17, the relevant person would be whoever was the relevant
person for the purposes of regulation 15. The amending Regulations
will clarify this.
7. Regulation 20 authorises an officer to require an animal's
owner to detain or remove it and authorises him to do so "by
notice in writing reasonably given to the owner". Explain
whether "reasonably" refers to the length of notice
to be given or to the decision to require the animal to be detained
The word "reasonably" is intended to refer to the
requirements specified in the notice relating to detention or
removal. If the notice requires an animal to be detained at, or
removed to, a particular place the officer has to act reasonably
in requiring it to be detained at, or removed to, that place.
The Ministry will clarify this in the amending Regulations.
8. Regulation 23(2) makes the offences specified in paragraph
(1) triable either way, that is, either on indictment or summarily,
and, as regards summary conviction, states the maximum fine in
terms of "level 5 on the standard scale". Given that
section 35(2) and (3) of the parent Act (the Food Safety Act 1990)
expresses the maximum fine on summary conviction (for offences
triable either way) in terms of the "statutory maximum",
explain why this formulation is not followed in regulation 23(2).
The Ministry accepts that the formulation "the statutory
maximum" should have been used and will make the requisite
amendment in the amending Regulations.
9. Regulation 34(4) applies the sampling powers of section
29 of the parent Act with the substitution of "these Regulations"
for "section 32" [of that Act] in the provision of section
29 which describes the premises where the substance must be as
"premises which [the officer] is authorised to enter by or
under section 32".
(a) the identification of that provision of section 29
as [paragraph] "(a)(ii)", rather than "(b)(ii)";
(b) why the substitution is not "section 32 as applied
by this regulation" (rather than "these Regulations")
as the correct identification of the power to enter premises.
The Ministry accepts that in regulation 34(4) the provision
of section 29 which should have been identified is "(b)(ii)"
not "(a)(ii)" and that the correct identification of
the power to enter premises is "section 32 as applied by
this regulation" rather than "these Regulations".
The appropriate amendments will be made in the amending Regulations.
10. In view of the fact that the definition in regulation
2(1) of "maximum residue limit" refers to Council Regulation
(EEC) No. 2377/90 amended by the 27 Regulations specified in Schedule
1, please furnish 6 copies of a consolidated text of the Regulation
as so amended.
Save for Council Regulation (EC) No. 434/97 the amendments
made by the Regulations mentioned in Schedule 1 are confined to
the Annexes to Council Regulation (EEC) No. 2377/90. Six copies
of those Council Regulations accompany this memorandum and the
Annexes to Regulation No. 2377/90 are in consolidated form.
12th August 1997