Statutory Rule 2002 No. 293

Food (Peanuts from China) (Emergency Control) Regulations (Northern Ireland) 2002

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© Crown Copyright 2002

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"the Commission Decision" means Commission Decision 2002/79/EC imposing special conditions on the import of peanuts and certain products derived from peanuts originating in or consigned from China[3] as amended by Commission Decision 2002/233/EC[4] and Commission Decision 2002/678/EC[5];

"controlled Chinese peanuts" means Chinese peanuts which are intended for human consumption or to be used as an ingredient in foodstuffs;

"the Department" means the Department of Health, Social Services and Public Safety;

"Directive 98/53/EC" means Commission Directive 98/53/EC laying down the sampling methods and the methods of analysis for the official control of the levels for certain contaminants in foodstuffs[6] as amended by Commission Decision 2002/27/EC[7];

"free circulation" has the same meaning as in Article 23.2, as read with Article 24, of the Treaty establishing the European Community; and

"the Order" means the Food Safety (Northern Ireland) Order 1991[8], and, subject to paragraph (2), any expression used both in these Regulations and in the Order has the meaning it bears in the Order.

    (2) Any term used in the definition of "Chinese peanuts" or "controlled Chinese peanuts" in paragraph (1) has the same meaning as in the Commission Decision.

Prohibition on import
     3.  - (1) Subject to paragraph (3), no person shall import any controlled Chinese peanuts unless -

(a) the conditions specified in Article 1.1 and 1.3 of the Commission Decision are satisfied in relation to those peanuts; or

(b) the derogation contained in Article 1a of the Commission Decision (which is concerned with consignments which left China prior to 11th March 2002) is satisfied in relation to them.

    (2) Subject to paragraph (3), no person shall import any controlled Chinese peanuts, except through a point of entry listed in Annex II to the Commission Decision.

    (3) Neither paragraph (1) nor paragraph (2) shall be taken to prohibit the import from a member State of any controlled Chinese peanuts which are in free circulation in that State.

    (4) Any person who knowingly contravenes paragraph (1) or (2) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months.

    (5) For the purpose of determining whether or not any person is guilty of an offence consisting of a breach of paragraph (4), any Chinese peanuts shall be presumed until the contrary is proved to be controlled Chinese peanuts.

Enforcement
     4.  - (1) These Regulations shall be enforced and executed by each district council within its district.

    (2) For the purposes of the exercise of the duty referred to in paragraph (1), an authorised officer shall -

(a) ensure that the requirements referred to in paragraph (3) are adhered to; and

(b) have the same powers of entry as are bestowed on an authorised officer by Article 33 of the Order for purposes connected with the Order or Regulations or orders made under the Order.

    (3) The requirements are those specified in -

(a) Article 1.4 of the Commission Decision (which is concerned with documentary checks relating to consignments of controlled Chinese peanuts); and

(b) Article 1.5 and 1.6 of that Decision (which provisions are concerned with the sampling and analysis of such consignments) other than the requirement under Article 1.5 to supply the Commission with specified information.

    (4) Each district council shall give such assistance and information to the Department and the Food Standards Agency as they may reasonably request in connection with the execution and enforcement of these Regulations.

Application of various provisions of the Order
     5.  - (1) The following provisions of the Order shall apply for the purposes of these Regulations and any reference in those provisions to the Order shall be construed for the purposes of these Regulations as a reference to these Regulations -

(a) Article 19 (offences due to fault of another person);

(b) Article 34 (obstruction, etc., of officers);

(c) Article 36(1) (punishment of offences) in so far as it relates to offences under Article 34 as applied by sub-paragraph (b).

    (2) Article 29 of the Order (procurement of samples) shall apply for the purposes of these Regulations with the modifications that -

(a) for paragraph (b)(ii) there shall be substituted the following provision -


" (ii) is found by him on or in any premises which he is authorised to enter in pursuance of regulation 4(2)(b) of the Food (Peanuts from China) (Emergency Control) Regulations (Northern Ireland) 2002;";



(b) the power to take samples under paragraphs (b) and (d) shall be limited to the taking of samples in accordance with the methods of taking samples described or referred to in Annex I to Directive 98/53/EC;

(c) paragraph (c) shall be omitted; and

(d) for "any of the provisions of this Order or of regulations or orders made under it" in paragraph (d) there shall be substituted "the Food (Peanuts from China) (Emergency Control) Regulations (Northern Ireland) 2002".

    (3) Where, pursuant to Article 29(b) of the Order as applied for the purposes of these Regulations by paragraph (2), an authorised officer has taken a sample of any controlled Chinese peanuts, he shall ensure that -

(a) the sample is prepared in accordance with -


(i) paragraphs 1.1, 2 and 3 of Annex II to Directive 98/53/EC, and

(ii) in the case of whole nuts, paragraph 1.2 of that Annex;



(b) an analysis of the sample is carried out at a laboratory which complies with Council Directive 93/99/EEC on the subject of additional measures concerning the official control of foodstuffs[9];

(c) that analysis is carried out as soon as practicable by a suitably qualified analyst in accordance with methods of analysis which -



(i) so far as practicable, comply with paragraphs 1 and 2 of the Annex to Council Directive 85/591/EEC concerning the introduction of Community methods of sampling and analysis for the monitoring of foodstuffs intended for human consumption[10], and

(ii) meet the criteria specified in paragraph 4.3 of Annex II to Directive 98/53/EC as read with the notes thereto; and



(d) the reporting of the result of that analysis -



(i) makes use of the definitions in paragraph 4.1 of Annex II to Directive 98/53/EC, and

(ii) is in accordance with paragraph 4.4 of that Annex.

    (4) Before an analyst agrees to analyse a sample in accordance with paragraph (3)(c) he may demand the payment in advance of such reasonable fee as he may require.

    (5) An analyst who has analysed a sample in accordance with paragraph (3)(c) shall give to the person by whom it was submitted a certificate which shall both specify the result of the analysis and be signed by the analyst.

    (6) In any proceedings under these Regulations, the production by one of the parties of -

(a) a document purporting to be a certificate given by an analyst under paragraph (5); or

(b) a document supplied by him to the other party as being a copy of such a certificate,

shall be sufficient evidence of the facts stated in it unless, in a case falling within sub-paragraph (a), the other party requires that the analyst shall be called as a witness.

    (7) Where a sample procured under Article 29 of the Order as applied for the purposes of these Regulations by paragraph (2) has been analysed in accordance with paragraph (3)(b) and (c), the owner shall be entitled on request to be supplied with a copy of the certificate of analysis by the district council.

    (8) Nothing in paragraph (3)(c) shall be taken as preventing an analysis being made by a person acting under the analyst's direction.

Re-dispatch or destruction of illegal imports
     6.  - (1) If on an inspection or examination of any Chinese peanuts it appears to an authorised officer that they have been imported in contravention of regulation 3(1) or (2) he may after appropriate consultation with a person appearing to him to be the importer serve on that person a notice ordering -

(a) the re-dispatch of the Chinese peanuts outside the European Community within such reasonable period as shall be specified in the notice; or

(b) (where such re-dispatch would in his opinion involve serious risks to human health) the destruction of the Chinese peanuts within such reasonable period as shall be so specified.

    (2) In any case where such an appeal as is mentioned in paragraph (3) may be brought, the notice served under paragraph (1) shall state -

(a) the right of appeal to a court of summary jurisdiction; and

(b) the period within which such an appeal may be brought.

    (3) Any person who is aggrieved by a decision of an authorised officer to serve a notice under paragraph (1) may appeal to a court of summary jurisdiction, which shall determine whether or not the notice was lawfully served.

    (4) The period within which such an appeal as is mentioned in paragraph (3) may be brought shall be six days, exclusive of Saturdays, Sundays and public holidays, from the date on which notice of the decision was served on the person desiring to appeal.

    (5) The procedure on an appeal to a court of summary jurisdiction under paragraph (3) shall be by way of notice under Part VII of the Magistrates' Courts (Northern Ireland) Order 1981[11].

    (6) If the court allows an appeal brought under paragraph (3) the district council shall compensate the owner of the Chinese peanuts concerned for any depreciation in their value resulting from the action taken by the authorised officer.

    (7) Any disputed question as to the right to or the amount of any compensation payable under paragraph (6) shall be determined by a single arbitrator appointed, failing agreement between the parties, by the Department of Health, Social Services and Public Safety; and the provisions of the Arbitration Act 1996[12] shall apply accordingly.

    (8) Any person who breaches the terms of a notice served under paragraph (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months.



Sealed with the Official Seal of the Department of Health, Social Services and Public Safety on


19th September 2002.

L.S.

D. Kenny
A Senior Officer of the Department of Health, Social Services and Public Safety

[2] 1972 c. 68back

[3] O.J. No. L34, 5.2.2002, p. 21back

[4] O.J. No. L78, 21.3.2002, p. 14back

[5] O.J. No. L229, 27.8.2002, p. 33back

[6] O.J. No. L201, 17.7.1998, p. 93back

[7] O.J. No. L75, 16.3.2002, p. 44back

[8] S.I. 1991/762 (N.I. 7) as amended by S.I.1996 /1633 (N.I. 12) and paragraphs 26 to 42 of Schedule 5 and Schedule 6 to the Food Standards Act 1999 c. 28back

[9] O.J. No. L290, 24.11.93, p. 14back

[10] O.J. No. L372, 31.12.85, p. 50back

[11] S.I.1981/1675 (N.I. 26)back

[12] 1996 c. 23back