Made | 25th February 2003 | ||
Coming into operation | 28th March 2003 |
(2) Unless the context indicates otherwise -
The competent authority
3.
The Department shall be the competent authority for the purposes of the principal Regulation.
Duty with respect to Articles 16 and 17
4.
It shall be the duty of any person having control of the controlled substances mentioned in Articles 16 (recovery of used controlled substances) and 17 (leakages of controlled substances) to comply with those provisions.
Proof of lawful export
5.
- (1) Where any controlled substance, new substance, product or equipment is being exported, or brought to any place for the purpose of being exported, a customs officer may require any person possessing or having control of that substance, product or equipment to furnish, within such reasonable period as he may specify, proof that its exportation is, or was not, unlawful by virtue of the principal Regulation.
(2) Until such proof is furnished to the satisfaction of the officer, the substance, product or equipment may be detained.
(3) If such proof is not furnished to the satisfaction of the officer within the specified period, the substance, product or equipment shall be liable to forfeiture and the 1979 Act shall apply in relation to it, as if it were liable to forfeiture under that Act.
Powers of authorised officers and authorised persons
6.
- (1) An authorised officer or an authorised person may, on production (if so required) of his authority, exercise any of the powers specified in paragraph (2) for the purpose of carrying into effect these Regulations other than regulation 4, in so far as that regulation relates to Article 17(l) and (2).
(2) The powers referred to in paragraph (1) are -
(c) to make such examination and investigation as may in any circumstances be necessary;
(d) as regards any premises which he has power to enter, to direct that those premises or any part of them, or anything in them, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under sub-paragraph (c);
(e) to take such measurements and photographs and make such recordings as he considers necessary for the purpose of any examination or investigation under sub-paragraph (c);
(f) to take samples of any articles or substances found in or on any premises which he has power to enter;
(g) in the case of any article or substance found in or on any premises which he has power to enter, being an article or substance which appears to him to have caused or to be likely to cause pollution of the environment or harm to human health or to the health of animals or plants, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it unless this is necessary);
(h) in the case of any such article or substance as is mentioned in sub-paragraph (g), to take possession of it and detain it for so long as is necessary for all or any of the following purposes, namely -
(i) to require any person whom he has reasonable cause to believe to be able to give any information relevant to any examination or investigation under sub-paragraph (c) to answer (in the absence of anyone, other than someone nominated by that person to be present and anyone whom the authorised officer or the authorised person may allow to be present) such questions as the authorised officer or the authorised person thinks fit to ask and to sign a declaration of the truth of his answers;
(j) to require the production of, or where the information is recorded in computerised form, the furnishing of extracts from, any records which it is necessary for him to see for the purposes of any examination or investigation under sub-paragraph (c) and to inspect and take copies of, or of any entry in, the records;
(k) to require any person to afford him such facilities and assistance with respect to any matters or things within that person's control or in relation to which that person has responsibilities as are necessary to enable the authorised officer or the authorised person to exercise any of the powers conferred on him by this regulation.
(3) Where an authorised officer or authorised person proposes to exercise the power conferred by paragraph (2)(g) in the case of an article or substance found in or on any premises, he shall, if so requested by a person who at the time is present on and has responsibilities in relation to those premises, cause anything which is to be done by virtue of that power to be done in the presence of that person.
(4) Before exercising the power conferred by paragraph (2)(g) in the case of any article or substance, an authorised officer or an authorised person shall consult such persons as appear to him appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which he proposes to do under the power.
(5) Where under the power conferred by paragraph (2)(h) an authorised officer or an authorised person takes possession of any article or substance found on any premises, he shall leave there, either with a responsible person or, if that is impracticable, fixed in a conspicuous position, a notice giving particulars of that article or substance sufficient to identify it and stating that he has taken possession of it under that power; and before taking possession of any such substance under that power an authorised officer or an authorised person shall, if it is practical for him to do so, take a sample of it and give to a responsible person at the premises a portion of the sample marked in a manner sufficient to identify it.
(6) No answer given by a person in pursuance of a requirement imposed under paragraph (2)(i) shall be admissible in evidence against that person in any proceedings.
(7) Nothing in this regulation shall be taken to compel the production by any person of a document of which he would on grounds of legal professional privilege be entitled to withhold production on an order for disclosure and inspection in an action in the High Court.
(8) No person shall -
Offences
7.
- (1) The Schedule to these Regulations (which creates offences for contravention of the principal Regulation, and makes other, related provision) shall have effect.
(2) Any person who knowingly supplies information that is false in a material particular for the purpose of obtaining from the Commission an authorisation under Article 12(1) commits an offence.
(3) Any person who fails to discharge a duty to which he is subject by virtue of regulation 4 commits an offence.
(4) Any person who -
commits an offence.
(5) Any person who contravenes, or causes or permits another person to contravene, regulation 6(8) commits an offence.
Offence by corporations etc.
8.
- (1) Where an offence under regulation 7 (including any offence specified in the Schedule) which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or any other person purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
(2) Where the affairs of a body corporate are managed by its members, paragraph (1) shall apply in relation to the acts or defaults of a member in connection with his functions of management as if he were a director of the body corporate.
Penalties
9.
A person who -
Sealed with the Official Seal of the Department of the Environment on
25th February 2003.
L.S.
Judena Goldring
A senior officer of the Department of the Environment
otherwise than in accordance with an authorisation issued by the Department under Article 3(5) pursuant to a licence issued by the Commission under Article 3(4) for the purposes of the second sub-paragraph of paragraph (1) of Article 3 (essential uses), commits an offence.
2.
- (1) Subject to paragraph 3, a producer of methyl bromide whose calculated level of production -
its calculated 1991 level | × | the number of days beginning with the commencement date to 31st December 2003; |
commits an offence.
(2) In sub-paragraph (1), "calculated 1991 level", in relation to a producer of methyl bromide, means its calculated level of production in 1991.
3.
Paragraph 2 shall apply in a case where an authorisation has been issued -
as if, for the maximum calculated level of production ascertained in accordance with sub-paragraph (a) or (b), as the case may be, there were substituted the maximum calculated level of production specified in the authorisation or ascertained in accordance with the relevant paragraph of Article 5.
4.
A person who produces, or causes or permits another person to produce, methyl bromide after 31st December 2004 otherwise than in accordance with an authorisation issued by the Department pursuant to a licence issued by the Commission under Article 3(4) for the purposes of Article 3(2)(ii) (critical uses) commits an offence.
5.
- (1) Subject to paragraph 6, a producer of hydrochlorofluorocarbons whose calculated level of production -
its calculated 1997 level | × | the number of days beginning with the commencement date to 31st December 2003; |
commits an offence.
(2) In sub-paragraph (1), "calculated 1997 level", in relation to a producer of hydrochlorofluorocarbons, means its calculated level of production in 1997.
6.
Paragraph 5 shall apply in a case where an authorisation has been issued -
as if, for the maximum calculated level of production ascertained in accordance with sub-paragraph (a), (b), (c) or (d), as the case may be, there were substituted the maximum calculated level of production specified in the authorisation or ascertained in accordance with the relevant paragraph of Article 5.
7.
A person who produces, or causes or permits another person to produce, hydrochlorofluorocarbons after 31st December 2025 commits an offence.
(c) uses, or causes or permits another person to use, chlorofluorocarbons in an application referred to in sub-paragraph (b)(ii) or (iii) otherwise than in accordance with the terms of an authorisation issued by the Commission under Article 4(l),
commits an offence.
9.
A person who, on or after the commencement date, uses, or causes or permits another person to use, chlorofluorocarbons in an application referred to in paragraph 8(b)(i), commits an offence.
10.
A person who, on or after 31st December 2004, uses, or causes or permits another person to use, chlorofluorocarbons in an application referred to in paragraph 8(b)(ii), commits an offence.
11.
A person who, on or after 31st December 2008, uses, or causes or permits another person to use, chlorofluorocarbons in any military application, commits an offence.
12.
A person who, on or after the commencement date subject to Article 4(4)(i)(a) and (b) and (5) -
(b) subject to Article 4(4)(i)(b) and (5), uses any of those substances otherwise than in the maintenance or servicing of refrigeration and air-conditioning equipment or finger-printing processes,
commits an offence.
13.
A person who, on or after the commencement date, uses, or causes or permits another person to use, any of the substances mentioned in paragraph 12 in the maintenance or servicing of refrigeration and air-conditioning equipment or in finger-printing processes, commits an offence.
14.
A person who, on or after the commencement date, places, or causes or permits another person to place, on the market halons that have been recovered, recycled or reclaimed in existing fire protection systems, commits an offence unless -
15.
A person who, on or after the commencement date, uses, or causes or permits another person to use, halons that have been recovered, recycled or reclaimed in existing fire protection systems, commits an offence unless -
16.
A person who maintains a fire protection system or fire extinguisher containing halons after 30th December 2003 commits an offence unless -
17.
A person who fails to recover halons from a fire protection system or fire extinguisher whose decommissioning is required by Article 4(4)(v) commits an offence.
18.
- (1) A producer or importer of methyl bromide which places on the market or uses for its own account a calculated level of methyl bromide which -
its calculated 1991 level | × | the number of days beginning with the commencement date to 31st December 2003; |
commits an offence unless -
(2) Paragraph (b) of sub-paragraph (1) shall apply in a case where an adjustment has been made by the Commission pursuant to Article 4(2) as if, for the maximum calculated level ascertained in accordance with that paragraph, there were substituted the maximum calculated level specified by the Commission.
(3) In sub-paragraph (1) "calculated 1991 level", in relation to a producer or importer of methyl bromide, means the calculated level of methyl bromide which it placed on the market or used for its own account in 1991.
(4) Any reference in sub-paragraphs (1) and (2) to a calculated level, other than a calculated 1991 level, excludes a reference to amounts of methyl bromide placed on the market.
19.
A producer or importer which places on the market a calculated level of methyl bromide which -
the average of the calculated level of methyl bromide | × | the number of days beginning with the commencement date to 31st December 2003; |
commits an offence.
20.
A producer or importer which places methyl bromide on the market after 31st December 2004 or uses methyl bromide for its own account after that date commits an offence unless -
21.
An undertaking, other than a producer or importer, which, after 31st December 2005 -
commits an offence.
22.
- (1) A producer or importer of controlled substances who places on the market or uses for its own account a calculated level of hydrochlorofluorocarbons which -
the quota allocated to it for that year pursuant to the mechanism determined by the Commission under Article 4(3)(ii) | × | the number of days beginning with the commencement date to 31st December 2003; |
commits an offence unless sub-paragraph (2) applies to their placing on the market or use.
(2) This sub-paragraph applies -
(b) to the placing of hydrochlorofluorocarbons on the market for destruction within the Community by technologies approved by the Parties.
23.
A producer or importer which, after 31st December 2009, places hydrochlorofluorocarbons on the market or uses them for its own account, commits an offence unless -
(b) they are placed on the market for destruction within the Community by technologies approved by the Parties.
24.
A person who, on or after the commencement date, places, or causes or permits another person to place, on the market any product or equipment containing -
commits an offence unless -
(c) on or after the commencement date, as carrier gas for sterilisation substances in closed systems, in equipment produced after 31st December 1997;
(d) after the commencement date, as solvents in any application other than the precision cleaning of electrical and other components in aerospace or aeronautic applications; or
(e) after 31st December 2008, as solvents in any application.
26.
- (1) Subject to Article 5(2) and (5) and paragraph 30, a person commits an offence if he uses, or causes or permits another person to use, hydrochlorofluorocarbons as refrigerants -
(b) on or after the commencement date, in equipment produced after 31st December 1997, in rail transport air-conditioning;
(c) on or after the commencement date, in equipment produced after 31st December 1999, for either of the following uses -
(d) after the commencement date, in refrigeration or air-conditioning equipment produced after that date, other than -
(e) on or after the commencement date, in fixed air-conditioning equipment with a cooling capacity of less than l00kW, produced after 30th June 2002;
(f) on or after 1st January 2004, in reversible air-conditioning/heat pump systems whose equipment is produced after 31st December 2003;
(g) on or after 31st December 2008, in any military use of motor vehicle, tractor or off-road vehicle or trailer air-conditioning system.
27.
Subject to Article 5(5) and paragraph 30, a person commits an offence -
28.
Subject to Article 5(2) and (5) and paragraph 30, a person commits an offence if he uses, or causes or permits another person to use, hydrochlorofluorocarbons -
(d) on or after 1st January 2004, for the production of any foams (including polyurethane spray and block foams).
29.
Subject to Article 5(2) and (5) and paragraph 30, a person commits an offence if, on or after the commencement date, he uses, or causes or permits another person to use, hydrochlorofluorocarbons otherwise than in an application mentioned in any of paragraphs 25 to 28.
30.
The use of hydrochlorofluorocarbons in accordance with any authorisation of the Commission pursuant to Article 5(7) does not constitute an offence under any of paragraphs 25 to 29 provided that the use is conducted wholly in accordance with the terms of the authorisation.
31.
On or after the commencement date, a person who places, or causes or permits another person to place, on the market any product or equipment containing hydrochlorofluorocarbons the use of which is, and was when it was manufactured, prohibited by virtue of Article 5, commits an offence.
Member States are required to deal with a number of matters by means of their domestic legislation. With the exception of regulation 5, these Regulations fulfil this requirement. In particular, they -
Parts I, II and III of the Schedule give effect to Article 21 of the principal Regulation in relation to breaches of Articles 3, 4 and 5, respectively. Part IV of the Schedule gives effect to Article 21 in relation to breaches of so much of Article 22 as relates to the production, placing on the market and use of new substances.
Contraventions of the prohibitions imposed by Article 11 (export of controlled substances or products containing controlled substances) are enforceable under section 68 of the Customs and Excise Management Act 1979.
Regulation 5 enables customs officers to require proof of lawful export, and to detain controlled substances, products and equipment until such proof has been furnished. In the absence of such proof, the substance, product or equipment is liable to forfeiture.
Copies of the EC Regulation and extracts from the Official Journal may be obtained from Her Majesty's Stationery Office, 16 Arthur Street, Belfast, BT1 4GD.
[3] S.I. 1997/2778 (N.I. 19)back
[6] O.J. No. L244, 29.9.00, p. 1. The text of the amending Regulations will be found at O.J. No. L244, 29.9.00, p. 25 and p. 26back
[7] Article 5(2) provides derogations for laboratory uses and use as feedstock or processing agents. Article 5(5) suspends use restrictions until 31st December 2009 in relation to production of products for export to countries where the use of hydrochlorofluorocarbons is for the time being permitted.back