type: legislation

jurisdiction: UK

text:
PART 1
Preliminary
Title, application and commencement
1
These Regulations may be cited as the Feed (Hygiene and Enforcement) (England) Regulations 2005; they apply in relation to England only and come into force on 1st January 2006.
Interpretation
2
1
In these Regulations —
“ the Act ” means the Agriculture Act 1970 ;
“the Agency” means the Food Standards Agency;
“agricultural analyst” means an agricultural analyst appointed under section 67 of the Act, and includes a deputy analyst appointed for the same area;
“area” includes the district of the Port of London;
“authorised officer” means a person (whether or not an officer of the enforcement authority) who is authorised by the enforcement authority, either generally or specially, to act in relation to matters arising under these Regulations;
“enforcement authority” means the body identified as having the duty to enforce under regulation 16;
“feed authority” means an authority identified in section 67(1) of the Act as having the duty to enforce Part IV of that Act within its area;
“point 4 compliant laboratory” means a laboratory which complies with the fourth and fifth indents of Annex II to Commission Directive 2002/70/EC establishing requirements for the determination of levels of dioxins and dioxin-like PCBs in feedingstuffs ;
“premises” includes any establishment, any place, vehicle, stall or moveable structure and any ship or aircraft;
“prescribed manner” means the manner prescribed by the Feeding Stuffs (Sampling and Analysis) Regulations 1999 or otherwise in accordance with Article 11(1) of Regulation 882/2004;
“Regulation 178/2002” means Regulation (EC) No. 178/2002 of the European Parliament and of the Council laying down the general requirements and principles of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety;
“Regulation 882/2004” means Regulation (EC) No. 882/2004 of the European Parliament and of the Council on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules ;
“Regulation 183/2005” means Regulation (EC) No. 183/2005 of the European Parliament and of the Council laying down requirements for feed hygiene ;
“sampled portion” has the meaning given in Part I of Schedule 1 to the Feeding Stuffs (Sampling and Analysis) Regulations 1999;
“specified feed law” means the provisions listed in Schedule 1;
2
Subject to paragraph (3), other expressions used in these Regulations and in Regulation 178/2002, Regulation 882/2004 or Regulation 183/2005 have the same meaning in these Regulations as in that Regulation.
3
In these Regulations “feed” or “feeding stuff” does not include any of the following feed additives or premixtures consisting solely of such additives —
a
coccidiostats;
b
histomonostats; and
c
all other zootechnical additives except —
i
digestibility enhancers,
ii
gut flora stabilisers, and
iii
substances incorporated with the intention of favourably affecting the environment.
4
Where, apart from this paragraph, any period of less than seven days which is specified in these Regulations would include any day which is —
a
a Saturday, a Sunday, Christmas Day or Good Friday; or
b
a day which is a bank holiday under the Banking and Financial Dealings Act 1971 ,
that shall be excluded from the period.
PART 2
Enforcement of Regulation 183/2005
Scope and interpretation of Part 2
3
1
This Part does not apply to the activities mentioned in Article 2(2) of Regulation 183/2005.
2
Any reference in this Part to a numbered Article is a reference to the Article so numbered in Regulation 183/2005.
Competent authorities
4
The competent authorities for the purposes of Regulation 183/2005 are —
a
in respect of Articles 9(1) and (3), 18(3), 20(2), 21(1) and 22(2)(b), the Agency and the enforcement authority;
b
in respect of Articles 7, 9(2), 10, 13, 14, 15, 16, 17, 18(1), (2) and (4) and 19(2), the enforcement authority;
c
in respect of Article 19(1), the Agency.
Offences and penalties
5
1
Any person who contravenes or fails to comply with any of the specified provisions of Regulation 183/2005 set out in paragraph (2) is guilty of an offence and liable —
a
in the case of sub–paragraphs (d), (e), (g), (h), (i) and (j) of paragraph (2) —
i
on summary conviction to a term of imprisonment not exceeding three months or to a fine not exceeding the statutory maximum, or both, or
ii
on conviction on indictment to a term of imprisonment not exceeding two years or to a fine, or both;
b
in the case of sub–paragraphs (a), (b), (c), and (f) of paragraph (2), on summary conviction to a term of imprisonment not exceeding three months or to a fine not exceeding level 5 on the standard scale, or both.
2
The specified provisions referred to in paragraph (1) are —
a
Article 5(1), (2), (3), (5) and (6) (specific obligations);
b
Article 6(1), as read with (2) and (3) ( HACCP system);
c
Article 7(1) (documents concerning the HACCP system);
d
Article 9(2) (official controls, notification and registration);
e
Article 11 (prohibition on operating without approval or registration);
f
Article 17(2) (exemption from on–site visits);
g
Article 18(3) (declaration of compliance);
h
Article 23(1) (conditions relating to imports);
i
Article 24 (interim measures regarding third country establishments);
j
Article 25 (feed produced for export to third countries).
Form of notification with a view to registration
6
Any person who is required under Article 9 (officials controls, notification and registration) to notify the enforcement authority of the information mentioned in paragraph (2)(a) or (b) of that Article must ensure that any such notification —
a
is in writing and signed by him or on his behalf;
b
contains his name and, if different, his business name;
c
contains his address and, if different, the address of any establishment to which the notification relates;
d
identifies the feed business activities in such form as may be required by the enforcement authority; and
e
is properly addressed to the enforcement authority for the area in which the establishment to which the notification relates is situated.
Form of declaration in relation to transitional measures
7
Any person to whom Article 18(3) (transitional measures) applies must ensure that a declaration submitted in accordance with that provision —
a
is in writing and signed by him or on his behalf;
b
contains his registration or approval number, his name and, if different, his business name;
c
contains his address, and if different, the address of any establishment to which the declaration relates;
d
contains a statement to the effect that the feed business is one to which Article 18(2) applies; and
e
is properly addressed to the enforcement authority for the area in which the establishment to which the declaration relates is situated.
Form of application for approval
8
Where approval of a feed business establishment is required pursuant to Article 10, an application to the enforcement authority for the area in which the establishment is located must be made which —
a
is in writing and signed by or on behalf of the applicant;
b
contains the name or business name and the address of the applicant and, if different, the address of the establishment;
c
identifies which of the feed business activities specified in Article 10(1) or as may be specified pursuant to Article 10(3) the applicant is exercising or intends to exercise and for which approval is sought;
d
in the case of any person to whom Article 17(2) (exemption from on-site visits) applies, includes a statement to the effect that the establishment is one to which Article 17(1) applies and a declaration of compliance as required by paragraph (2) of that Article; and
e
is properly addressed to the enforcement authority for the area in which the establishment to which the declaration relates is situated.
Procedure for suspension of registration or approval
9
1
Where an enforcement authority proposes to take action pursuant to Article 14 (temporary suspension of registration or approval) it must serve on the feed business operator a notice in accordance with paragraph (2).
2
The notice served by the enforcement authority under paragraph (1) must —
a
specify the operative date of the notice, (“the operative date”);
b
state that it intends to suspend on the operative date approval or as the case may be registration pursuant to Article 14 and these Regulations;
c
specify the feed business activity or activities to which the notice relates;
d
identify the remedial action required;
e
state that unless remedial action has been carried out to the satisfaction of the enforcement authority within 1 year of the operative date , the registration or approval will be revoked without further notice on the first anniversary of the operative date;
f
provide information on the time limits for appealing under regulation 13.
Procedure for lifting of suspension
10
Where the enforcement authority which has served notice on a feed business operator under regulation 9 is satisfied that —
a
the remedial action required under paragraph (2)(e) of that regulation has been carried out; and
b
the period for action specified in that paragraph has not expired,
it must immediately lift the suspension and notify the feed business operator to that effect.
Procedure for the revocation of registration or approval
11
1
Where an enforcement authority proposes to take action in the circumstances set out in Article 15 (revocation of registration or approval) it must serve on the feed business operator a notice in accordance with paragraph (2).
2
The notice served by the enforcement authority under paragraph (1) must —
a
specify the operative date of the notice;
b
state that registration or approval as the case may be has been revoked;
c
specify the feed business activity or activities to which the revocation relates;
d
identify which of the conditions of revocation set out in Article 15 is applicable;
e
provide information on the time limits for appealing under regulation 13.
3
Where an enforcement authority has revoked a registration or approval pursuant to this regulation it shall —
a
make the appropriate amendments to its own register of feed business establishments; and
b
promptly transmit to the Agency the necessary information to ensure compliance with Article 19(3) (updating of national lists).
Form of application for amendments to approval or registration
12
1
Where a feed business operator wishes to apply for amendments to approval or registration pursuant to Article 16 (amendments to registration or approval of an establishment), an application to the enforcement authority for the area in which the relevant feed business establishment is located must be made which —
a
is signed by or on behalf of the applicant;
b
contains the name or business name and address of the applicant and, if different, the address of the establishment;
c
identifies the activities to which the application for amendments to approval or registration relates;
d
is properly addressed to the enforcement authority for the area in which the establishment to which the declaration relates is situated.
Rights of appeal in connection with registration or approval
13
1
Any person who is aggrieved by the decision of an enforcement authority taken in respect of —
a
the approval of an establishment under Article 13;
b
suspension of the registration or approval of an establishment under Article 14;
c
revocation of the registration or approval of an establishment under Article 15; or
d
amendment of the approval of an establishment under Article 16,
may appeal to a magistrates' court.
2
The procedure on appeal to a magistrates' court under paragraph (1) shall be by way of complaint for an order, and the Magistrates' Courts Act 1980 shall apply to the proceedings.
3
The period within which an appeal under paragraph (1) may be brought shall be one month from the date on which notice of the decision was served on the person desiring to appeal and the making of a complaint for an order shall be deemed for the purposes of this paragraph to be the bringing of the appeal.
4
Where on an appeal under paragraph (1) a magistrates' court determines that the decision of the enforcement authority is incorrect, the authority shall give effect to the determination of the court.
5
Where a registration or approval is suspended or revoked, the feed business operator who, immediately before such suspension or revocation, had been using the establishment concerned may continue to use it, subject to any conditions imposed by the enforcement authority for the protection of public health, unless —
a
the time limit for appealing against the decision to suspend or revoke registration or approval has expired without an appeal having been lodged; or
b
where an appeal against that decision has been lodged, the appeal has been finally disposed of or abandoned.
6
Nothing in paragraph (5) shall permit an establishment to be used for a feed business if a feed business prohibition order, a feed business emergency prohibition notice or a feed business emergency prohibition order has been imposed in relation to the establishment.
Fees for approvals or amendments to approvals
14
1
Subject to paragraph (3), a feed business operator who applies to an enforcement authority under regulation 8 for approval or under regulation 12 for amendment to an approval must —
a
pay the relevant fee to the enforcement authority when the application referred to in paragraph (1) is submitted; and
b
reimburse the enforcement authority on demand the cost of any laboratory analysis incurred by it in connection with the application.
2
In relation to any application submitted to it under regulations 8 or 12, the enforcement authority need not —
a
take any steps to approve an establishment in respect of one or more of its feed business activities until the relevant fee has been paid to it; or
b
approve an establishment in respect of one or more of its feed business activities until, in accordance with paragraph (1)(b), it has been reimbursed the cost of any laboratory analysis incurred by it in connection with the application.
3
Where a feed business operator makes an application under regulation 8 or 12 seeking approval or as the case may be the amendment of approval of an establishment as one on which more than one feed business activity requiring approval may be exercised, he is liable to pay a single relevant fee, which fee shall be the highest one otherwise payable.
4
In this regulation “relevant fee” means the fee specified in Schedule 2.
PART 3
Enforcement of Regulation 178/2002
Offences, penalties and enforcement
15
1
Any person who contravenes or fails to comply with any of the specified provisions of Regulation 178/2002 set out in paragraph (2) is guilty of an offence and liable —
a
in the case of paragraph (2)(a) and (b) —
i
on summary conviction to a term of imprisonment not exceeding three months or to a fine not exceeding the statutory maximum, or both; or
ii
on conviction on indictment to a term of imprisonment not exceeding two years or to a fine, or both;
b
in the case of paragraph (2)(c), (d) and (e) on summary conviction to a term of imprisonment not exceeding three months or to a fine not exceeding level 5 on the standard scale, or both.
2
The specified provisions referred to in paragraph (1) are —
a
Article 12 in so far as it relates to feed (export or re-export to third countries);
b
Article 15, paragraph 1 (prohibition on the placing on the market or feeding to any food-producing animal of unsafe feed);
c
Article 16 in so far as it relates to feed (prohibition on misleading labelling, advertising or presentation);
d
Article 18, paragraphs 2 and 3 (requirements of traceability) in so far as it relates to feed business operators;
e
Article 20 (responsibilities of feed business operators).
3
The competent authority for the purposes of Articles 15 and 18 is the enforcement authority and for the purposes of Article 20 is the enforcement authority or the Agency.
4
In this regulation “feed” means feed for food-producing animals.
PART 4
Administration and Enforcement Generally
Enforcement
16
It is the duty of each feed authority within its area to execute and enforce the provisions of these Regulations, Regulation 183/2005 and those provisions of Regulation 178/2002 mentioned in regulation 15(2).
Feed business improvement notices
17
1
If an authorised officer has reasonable grounds for believing that a feed business operator is failing to comply with specified feed law, he may by a notice served on that person (in these Regulations referred to as a “feed business improvement notice”) —
a
state the officer’s grounds for believing that the feed business operator is failing to comply with specified feed law;
b
specify the matters which constitute the feed business operator’s failure to comply;
c
specify the measures which, in the officer’s opinion, the feed business operator must take in order to secure compliance; and
d
require the feed business operator to take those measures, or measures which are at least equivalent to them, within such period (not being less than 14 days) as may be specified in the notice.
2
Any person who fails to comply with a feed business improvement notice is guilty of an offence.
3
A feed business improvement notice must state the right to appeal under regulation 18 and the appropriate time limit for bringing any such appeal.
Right of appeal against feed business improvement notices
18
1
Any person who is aggrieved by a decision of an authorised officer to serve a feed business improvement notice may appeal to a magistrates' court.
2
The procedure on an appeal to a magistrates' court under paragraph (1) shall be by way of complaint for an order, and the Magistrates' Courts Act 1980 shall apply to the proceedings.
3
The period within which an appeal under paragraph (1) may be brought shall be —
a
one month from the date on which notice of the decision was served on the person desiring to appeal; or
b
if it is shorter, the period specified in the notice pursuant to regulation 17(1)(d),
and the making of a complaint for an order shall be deemed for the purposes of this paragraph to be the bringing of the appeal.
Appeals to Crown Court
19
A person who is aggrieved by —
a
the decision of a magistrates' court to dismiss an appeal to it under regulation 13(1) or 18(1); or
b
any decision of such a court to make a feed business prohibition order or a feed business emergency prohibition order,
may appeal to the Crown Court.
Actions resulting from appeals
20
1
On an appeal against a feed business improvement notice the court may cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the court may in the circumstances think fit.
2
Where any period specified in a feed business improvement notice pursuant to regulation 17(1)(d) would otherwise include any day on which an appeal against that notice is pending, that day shall be excluded from that period.
3
Any appeal shall be regarded as pending for the purposes of paragraph (2) until it is finally disposed of, is withdrawn or is struck out for want of prosecution.
Feed business prohibition orders
21
1
If —
a
a feed business operator is convicted of an offence under specified feed law; and
b
the court by or before which he is so convicted is satisfied that the health risk condition is fulfilled with respect to the feed business concerned,
the court shall by an order impose the appropriate prohibition.
2
The health risk condition is fulfilled with respect to any feed business if any of the following involves risk of injury to health (including any impairment, whether permanent or temporary), namely —
a
the use for the purposes of the business of any process or treatment;
b
the construction of any premises used for the purposes of the business, or the use for those purposes of any equipment; or
c
the state or condition of any premises or equipment used for the purposes of the business;
and health means the health of an animal or, through the consumption of the products of such animal, human health.
3
The appropriate prohibition is —
a
in a case falling within sub–paragraph (a) of paragraph (2), a prohibition on the use of the process or treatment for the purposes of the business;
b
in a case falling within sub–paragraph (b) of that paragraph, a prohibition on the use of the premises or equipment for the purposes of the business or any other feed business of the same class or description; and
c
in a case falling within sub–paragraph (c) of that paragraph, a prohibition on the use of the premises or equipment for the purposes of any feed business.
4
If —
a
a feed business operator is convicted of an offence under specified feed law; and
b
the court by or before which he is so convicted thinks it proper to do so in all the circumstances of the case,
the court may, by an order, impose a prohibition on the feed business operator participating in the management of any feed business, or any feed business of a class or description specified in the order.
5
As soon as practicable after the making of an order under paragraph (1) or (4) (in these Regulations referred to as a “feed business prohibition order”), the enforcement authority shall —
a
serve a copy of the order on the relevant feed business operator; and
b
in the case of an order made under paragraph (1), affix a copy of the order in a conspicuous position on such premises used for the purposes of the feed business as they consider appropriate,
and any person who knowingly contravenes such an order is guilty of an offence.
6
A feed business prohibition order shall cease to have effect —
a
in the case of an order made under paragraph (1), on the issue by the enforcement authority of a certificate to the effect that it is satisfied that the feed business operator has taken sufficient measures to secure that the health risk condition is no longer fulfilled with respect to the feed business; and
b
in the case of an order made under paragraph (4), on the giving by the court of a direction to that effect.
7
The enforcement authority must issue a certificate under sub–paragraph (a) of paragraph (6) within three days of its being satisfied as mentioned in that sub–paragraph; and on an application by the feed business operator for such a certificate, the authority must —
a
determine, as soon as is reasonably practicable and in any event within 14 days, whether or not it is so satisfied; and
b
if it determines that it is not so satisfied, give notice to the feed business operator of the reasons for that determination.
8
The court shall give a direction under sub–paragraph (b) of paragraph (6) if, on an application by the feed business operator, the court thinks it proper to do so having regard to all the circumstances of the case, including in particular the conduct of the feed business operator since the making of the order; but no such application shall be entertained if it is made —
a
within six months of the making of the feed business prohibition order; or
b
within three months of the making by the feed business operator of a previous application for such a direction.
9
Where a magistrates' court makes an order under regulation 22(2) with respect to any feed business, paragraph (1) shall apply as if the feed business operator had been convicted by the court of an offence under specified feed law.
10
Where the commission of an offence by a feed business operator leads to the conviction of another person pursuant to regulation 35(1), paragraph (4) shall apply in relation to that other person as it applies in relation to the feed business operator and any reference in paragraph (5) or (8) to the feed business operator shall be construed accordingly.
Feed business emergency prohibition notices and orders
22
1
If an authorised officer of an enforcement authority is satisfied that the health risk condition is fulfilled with respect to any feed business he may by a notice served on the relevant feed business operator (in these Regulations referred to as a “feed business emergency prohibition notice”) impose the appropriate prohibition.
2
If a magistrates' court is satisfied, on the application of such an officer, that the health risk condition is fulfilled with respect to any feed business, the court shall, by an order (in these Regulations referred to as a “feed business emergency prohibition order”), impose the appropriate prohibition.
3
Such an officer shall not apply for a feed business emergency prohibition order unless, at least one day before the date of the application, he has served notice on the relevant feed business operator of his intention to apply for the order.
4
Paragraphs (2) and (3) of regulation 21 apply for the purposes of this regulation as they apply for the purposes of that regulation, but as if the reference in paragraph (2) to risk of injury to health were a reference to imminent risk of such injury.
5
As soon as practicable after the service of a feed business emergency prohibition notice, an authorised officer of an enforcement authority must affix a copy of the notice in a conspicuous position on such premises used for the purposes of the feed business as he considers appropriate; and any person who knowingly contravenes such a notice shall be guilty of an offence.
6
As soon as practicable after the making of a feed business emergency prohibition order, an authorised officer of an enforcement authority must —
a
serve a copy of the order on the relevant feed business operator; and
b
affix a copy of the order in a conspicuous position on such premises used for the purposes of the feed business as he considers appropriate,
and any person who knowingly contravenes such an order shall be guilty of an offence.
7
A feed business emergency prohibition notice shall cease to have effect —
a
if no application for a feed business emergency prohibition order is made within the period of three days beginning with the service of the notice, at the end of that period; or
b
if such an application is so made, on the determination or abandonment of the application.
8
A feed business emergency prohibition notice or a feed business emergency prohibition order shall cease to have effect on the issue by the enforcement authority of a certificate to the effect that it is satisfied that the feed business operator has taken sufficient measures to secure that the health risk condition is no longer fulfilled with respect to the feed business.
9
The enforcement authority must issue a certificate under paragraph (8) within three days of being satisfied as mentioned in that paragraph; and on an application by the feed business operator for such a certificate, the authority must —
a
determine as soon as is reasonably practicable and in any event within 14 days whether or not it is so satisfied; and
b
if it determines that it is not so satisfied, give notice to the feed business operator of the reasons for that determination.
10
Where a feed business emergency prohibition notice is served on a feed business operator, the enforcement authority must compensate him in respect of any loss suffered by reason of his complying with the notice unless —
a
an application for a feed business emergency prohibition order is made within the period of three days beginning with the service of the notice; and
b
the court declares itself satisfied, on the hearing of the application, that the health risk condition was fulfilled with respect to the feed business at the time when the notice was served,
and any disputed question as to the right to or the amount of any compensation payable under this paragraph shall be determined by arbitration.
Penalties for offences in relation to improvement notices, prohibition orders etc
23
Anyone guilty of an offence under regulation 17(2), 21(5) or 22(5) or (6) is liable —
a
on summary conviction to a term of imprisonment not exceeding three months or a fine not exceeding the statutory maximum or both;
b
on conviction on indictment to a term of imprisonment not exceeding two years or a fine or both.
Powers of entry for authorised officers
24
1
For the purposes of executing and enforcing specified feed law an authorised officer may at all reasonable times, and on producing, if requested to do so, some duly authenticated document showing his authority, enter —
a
any premises on which he has reasonable cause to believe that feed has been, or is being, manufactured or produced, or is being kept for the purpose of being placed on the market, incorporated in another product or used; or
b
any premises (not being premises used only as a dwelling) on which he has reasonable cause to believe that there is any feed which the occupier of the premises has in his possession or under his control.
2
If a justice of the peace, on sworn information in writing, is satisfied that there is reasonable ground for entry into any such premises as are mentioned in paragraph (1), and either —
a
that admission to the premises has been refused, or a refusal is apprehended, and that notice of the intention to apply for a warrant has been given to the occupier; or
b
that an application for admission or the giving of such a notice would defeat the object of the entry, or that the case is one of urgency, or that the premises are unoccupied or the occupier temporarily absent,
the justice may by warrant signed by him authorise the authorised officer to enter the premises, if need be by reasonable force.
3
Every warrant granted under this regulation shall continue in force for a period of one month.
4
An authorised officer entering premises by virtue of this regulation, or of a warrant issued under it, may take with him such other persons and such equipment as may appear to him to be necessary, and on leaving any unoccupied premises which he has entered by virtue of such a warrant, must leave them as effectively secured against unauthorised entry as he found them.
5
An authorised officer entering premises by virtue of this regulation, or of a warrant issued under it, has the right to inspect —
a
any material appearing to him to be feed;
b
any article appearing to him to be a container or package used or intended to be used to store, wrap or package any feed, or to be a label or advertisement used or intended to be used in connection with feed; or
c
any vehicle, plant or equipment appearing to him to be used, or intended to be used, in connection with the manufacture, production, storage, transport or use of feed, and any process of manufacture, production, storage, transport or use of feed.
6
Subject to paragraph (8), an authorised officer entering premises by virtue of this regulation, or of a warrant issued under it, has the right to take on those premises, in the prescribed manner, a sample of any material appearing to him to be a feed manufactured, produced, placed on the market or intended to be placed on the market or to be material used, or intended to be used, as feed.
7
Without prejudice to his powers and duties as to the taking of samples in the prescribed manner, an authorised officer may take a sample in a manner other than that prescribed of any material which has been sold for use as feed or which he has reasonable cause to believe to be intended for sale as such.
8
Where, for the purpose of taking a sample pursuant to paragraph (6) or (7), an authorised officer takes some of it from each of one or more containers, which are exposed for sale by retail, and none of which weighs more than six kilograms, the owner of the container or containers may require the authorised officer to purchase the container or containers on behalf of the authority for whom he acts.
9
An authorised officer entering premises by virtue of this regulation, or of a warrant issued under it, has the right —
a
to require any person carrying on, or appearing to be carrying on, a feed business, or any person employed in connection with such a business, to produce any record (in whatever form it is held) relating to or arising out of the exercise in the course of that business of any such activity, and which is in his possession or under his control; and
b
to inspect and take copies of any record, or of any entry in any record produced in pursuance of the preceding sub-paragraph.
10
An authorised officer exercising the power conferred by paragraph (9) in respect of a record held by means of a computer —
a
is entitled at any reasonable time to have access to, and inspect and check the operation of, any computer and associated apparatus or material which is or has been, or which it appears is or has been, in use in connection with the record in question;
b
may require —
i
the person by whom or on whose behalf the computer is or has been so used, or
ii
any person having charge of, or otherwise concerned with the operation of, the computer, apparatus or material,
to afford the authorised officer such reasonable assistance as he may require for that purpose; and
c
may require the record, or an extract from the record, to be produced in a form in which it may be taken away.
11
Where (in the case of a person carrying on, or appearing to carry on, a business which consists of or includes the manufacture of a compound feeding stuff) —
a
a requirement is made under paragraph (9)(a) in relation to any feeding stuff which is, or appears to be, intended for a particular nutritional purpose; and
b
at the time the requirement is made, the record in respect of which it is made has been published and is available in accessible form for public use,
the person of whom the requirement is made shall be deemed to comply with it if, at the time it is made, he supplies the authorised officer making it with correct and adequate details of the publication concerned, and of where a copy of it may be obtained.
12
An authorised officer entering premises by virtue of this regulation, or of a warrant issued under it, has the right to seize and detain any record which he has reasonable cause to believe to be a record which may be required as evidence in proceedings under specified feed law.
13
In this regulation —
“compound feeding stuff” has the meaning given in regulation 2(1) of the Feeding Stuffs (England) Regulations 2005 ;
“feeding stuff which is intended for a particular nutritional purpose” shall be construed in accordance with the definitions of “feeding stuff intended for a particular nutritional purpose” and “particular nutritional purpose” in regulation 2(1) of the Feeding Stuffs (England) Regulations 2005;
14
Nothing in this regulation authorises any person, except with the permission of the local authority under the Animal Health Act 1981 , to enter any premises —
a
on which an animal or bird affected with any disease to which that Act applies is kept; and
b
which is situated in a place declared under that Act to be infected with such a disease.
Inspection, seizure and detention of suspect feed
25
1
Where an authorised officer has inspected or sampled any material under regulation 24, paragraphs (2) to (7) shall apply where, on such an inspection, or upon analysis of samples taken, it appears to him that the material fails to comply with the requirements of specified feed law.
2
The authorised officer may either —
a
give notice to the person in charge of the material that, until the notice is withdrawn, the material or any specified portion of it —
i
is not to be used as feed; and
ii
either is not to be removed or is not to be removed except to some place specified in the notice; or
b
seize the material in order to have it dealt with by a justice of the peace,
and any person who knowingly contravenes the requirements of a notice under sub–paragraph (a) above is guilty of an offence.
3
Where the authorised officer exercises the powers conferred by paragraph (2)(a), he must, as soon as is reasonably practicable and in any event within 21 days, determine whether or not he is satisfied that the material complies with the requirements mentioned in paragraph (1) and —
a
if he is so satisfied, forthwith withdraw the notice;
b
if he is not so satisfied, proceed to have the matter dealt with by a justice of the peace under paragraph (5).
4
Where the authorised officer exercises the powers conferred by paragraph (2)(b) or takes action under paragraph (3)(b), he must inform the person in charge of the material of his intention to have it dealt with by a justice of the peace and —
a
any person who might be liable under the provisions of specified feed law to a prosecution in respect of the material shall, if he attends before the justice of the peace by whom the material falls to be dealt with, be entitled to be heard and to call witnesses; and
b
that justice of the peace may, but need not, be a member of the court before which any person is charged with an offence under those provisions in relation to that material.
5
If it appears to a justice of the peace, on the basis of such evidence as he considers appropriate in the circumstances, that any material falling to be dealt with by him under this regulation fails to comply with the requirements of specified feed law then he shall condemn the material and order —
a
the material to be destroyed or to be so disposed of as to prevent it from being used as food for human consumption, or for feed; and
b
any expenses reasonably incurred in connection with the destruction or disposal to be defrayed by the feed business operator.
6
If a notice under paragraph (2)(a) is withdrawn, or the justice of the peace by whom any material falls to be dealt with under this regulation refuses to condemn it, the enforcement authority must compensate the owner of the material for any depreciation in its value resulting from the action taken by the authorised officer.
7
Any disputed question as to the right or the amount of any compensation payable under paragraph (6) shall be determined by arbitration.
8
Anyone found guilty of an offence under paragraph (2) is liable —
a
on summary conviction to a term of imprisonment not exceeding three months or a fine not exceeding the statutory maximum or both; or
b
on conviction on indictment to a term of imprisonment not exceeding two years or a fine or both.
Service of notices
26
1
Any notice to be given by an enforcement authority under regulation 9, 10, 11, 17, 22 or 25 —
a
must be in writing and signed by an authorised officer acting on behalf of the enforcement authority;
b
if purporting to bear the signature (which includes a facsimile of a signature by whatever means reproduced) of a person who is expressed to be an authorised officer, shall be deemed, unless the contrary is proven, to have been duly issued by such an authorised officer;
c
subject to paragraph (2), must be given to the feed business operator or to the person mentioned in regulation 25(2)(a) by —
i
delivering it to that person; or
ii
by leaving it, or sending it in a prepaid letter addressed to him at his office; or
iii
in the case of an incorporated company or body, by delivering it to their secretary or clerk at their registered or principal office, or by sending it in a prepaid letter addressed to him at that office; or
iv
in the case of any other person by leaving it or sending it in a prepaid letter addressed to him at his usual or last known residence.
2
Where it is not practicable after reasonable enquiry to ascertain the name and address of the person on whom the notice should be served, or where the premises in which a feed business is carried on are unoccupied, the notice may be addressed to the “owner” or “occupier” of the premises in which the feed business is carried on, and delivered to some person on those premises, or if there is no person on the premises to whom it can be delivered, by affixing it or a copy of it to some conspicuous part of the premises.
Offences relating to the exercise of powers by authorised officers
27
1
Any person who wilfully obstructs an authorised officer in the exercise of his powers under these Regulations or fails to comply with any requirement lawfully made by him in the exercise of such powers is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to a term of imprisonment not exceeding three months or to both.
2
Any person not being an authorised officer who purports to act as such under these Regulations is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale or to a term of imprisonment not exceeding three months or to both.
3
Subject to paragraph (4), if any person discloses to any other person —
a
any information in relation to any manufacturing process or trade secret which has been obtained by him on premises he has entered by virtue of these Regulations, or
b
any other information obtained by him in pursuance of these Regulations,
he is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale unless the disclosure was made in and for the purpose of the performance by him or any other person of functions under these Regulations.
4
Paragraph (3) does not apply to prevent an authorised officer who has taken a sample under regulation 24 from disclosing —
a
to the manufacturer or to the last seller of the material, information as to the place where and the person from whom the sample was taken;
b
to that manufacturer or last seller or to any person who had that material on his premises, information as to the results of any analysis of that sample; or
c
any information which it is necessary to disclose in order to prevent the occurrence of a serious risk to human or animal health or to the environment.
Liability for expenditure
28
1
Subject to paragraph (2) any sums due to the enforcement authority by virtue of Article 54(5) (action in the case of non-compliance) of Regulation 882/2004 must be paid by the feed business operator to the authority on demand.
2
This regulation does not apply in relation to Article 54(2)(g), (measures referred to in Article 19 on consignments from third countries), of Regulation 882/2004.
Application of various provisions of the Feeding Stuffs (Sampling and Analysis) Regulations
29
1
The following provisions of the Feeding Stuffs (Sampling and Analysis) Regulations 1999 apply, subject to the modifications specified in paragraph (2), for the purposes of these Regulations as they apply in relation to sampling and analysis under those Regulations —
a
regulation 2 (prescribed amount for the purposes of a sampled portion);
b
regulation 3 (manner of taking and sealing samples);
c
regulation 4 (method of sending samples);
d
regulation 5 (qualifications of agricultural analysts);
e
regulation 6 (application of methods of analysis);
f
regulation 7 (form of certificate of analysis);
g
regulation 8 (time limit for analysis of oil content);
h
Schedule 1 (detailed rules for sampling);
i
Schedule 2 (methods of analysis);
j
Schedule 3 (form of certificate of analysis)
2
The Feeding Stuffs (Sampling and Analysis) Regulations 1999 as they apply in relation to England shall be read as if in those Regulations —
a
any reference to “feeding stuffs” were a reference to “feed”;
b
any reference to “ inspector” were a reference to “authorised officer”;
c
for the expression “analysed pursuant to the Act” there were substituted “analysed for the purposes of carrying out official controls and the enforcement of specified feed law as that term is defined in the Feed (Hygiene and Enforcement) (England) Regulations 2005”;
d
in regulation 4, for the expression “in pursuance of subsection (1)(b) or (2) of section 77 of the Act” there were substituted “under regulation 30(1)(b) and (c) of the Feed (Hygiene and Enforcement) (England) Regulations 2005”;
e
in regulation 7, for the expression “pursuant to section 77(4) of the Act” there were substituted “under regulation 30(4) of the Feed (Hygiene and Enforcement) (England) Regulations 2005”;
f
in Schedule 1, in paragraph 5(1) of Part II for the expression “in accordance with section 76(7) of the Act as that section is modified by regulation 10 of the Feeding Stuffs (Enforcement) Regulations 1999” there were substituted “under regulation 24(6) of the Feed (Hygiene and Enforcement) (England) Regulations 2005”;
g
in Schedule 3 —
i
in Part I after the expression “Part IV of the Agriculture Act 1970” there were inserted “ or of the Feed (Hygiene and Enforcement) (England) Regulations 2005”;
ii
in Part II in note (1) after the expression “the Agriculture Act 1970” there were added “or the Feed (Hygiene and Enforcement) (England) Regulations 2005”.
Procedure relating to samples for analysis
30
1
Where in accordance with regulation 24(6) an authorised officer obtains a sample and decides to have it analysed for the purpose of ascertaining whether there is or has been any contravention of specified feed law, he must divide the sample into three parts of as near as may be equal size and —
a
cause each part to be marked sealed and fastened in the prescribed manner;
b
send one part for analysis —
i
to the agricultural analyst for the area of the enforcement authority from which the authorised officer derives his authority; or
ii
where the purpose of the analysis is to determine the levels of dioxins or dioxin-like PCBs in the sample, to a point 4 compliant laboratory;
c
send another part to the person on whose premises the material was sampled or to his agent;
d
retain and preserve the remaining part as an officially sealed reference sample.
2
If the person who manufactured any material sampled under these Regulations is not a person to whom part of the sample should be sent under paragraph (1), that paragraph shall have effect as if for the reference to three parts there were substituted a reference to four parts, and the authorised officer must within fourteen days of the date of sampling send the fourth part to the manufacturer, unless he does not know and is unable to ascertain after making reasonable enquiries the identity of the manufacturer or his address in the United Kingdom.
3
The part of the sample sent to the agricultural analyst or as the case may be to the point 4 compliant laboratory must be accompanied by a statement signed by the authorised officer confirming that the sample was taken in the manner prescribed by Part II of Schedule 1 to the Feeding Stuffs (Sampling and Analysis) Regulations 1999.
4
The agricultural analyst or as the case may be the point 4 compliant laboratory shall analyse the part of the sample sent to him under paragraph (1), and send a certificate of analysis to the authorised officer, who must send a copy to —
a
the person on whose premises the material was sampled or his agent, and
b
if a part of the sample was sent under paragraph (2), to the person to whom that part was sent.
5
If the agricultural analyst to whom the sample was sent under paragraph (1)(b)(i) determines that an effective analysis of the sample cannot be performed by him or under his direction he shall send it to the agricultural analyst for another area, together with any documents received by him with the sample, and paragraph (4) shall then apply as if the sample had originally been sent to that other analyst.
Secondary analysis by the Government Chemist
31
1
Where a part of a sample sent under regulation 30(1)(b) has been analysed and —
a
proceedings are intended to be or have been commenced against a person for an offence under specified feed law; and
b
the prosecution intends to adduce evidence of the result of that part of the sample,
paragraphs (2) to (6) shall apply.
2
The authorised officer —
a
may of his own volition;
b
shall if requested by the prosecutor (if a person other than the authorised officer); or
c
shall (subject to paragraph (5)) if requested by the defendant,
send the retained part of the sample to the Government Chemist for analysis.
3
the Government Chemist shall analyse in the prescribed manner the part of the sample sent to him under paragraph (2) and shall send to the authorised officer a certificate of the analysis which shall be —
a
completed in the form set out in Part I of Schedule 3 to the Feeding Stuffs (Sampling and Analysis) Regulations1999 and in accordance with the notes set out in Part II of Schedule 3 to those Regulations; and
b
signed by the Government Chemist or by a person authorised by him to sign.
4
The authorised officer shall immediately on receipt supply the prosecutor (if a person other than the authorised officer) and the defendant with a copy of the Government Chemist’s certificate of analysis.
5
Where a request is made under paragraph (2)(c) the authorised officer may give notice in writing to the defendant requesting payment of a fee specified in the notice in respect of the functions mentioned in paragraph (3), and if the specified fee does not exceed either —
a
the cost of performing those functions; or
b
the appropriate fee for the performance of any similar function under section 78 of the Act,
the authorised officer may in the absence of agreement by the defendant to pay the fee refuse to comply with the request made under paragraph (2)(c).
6
In this regulation —
a
“defendant” includes a prospective defendant; and
b
“the appropriate fee” means such fee as may be fixed in accordance with the provisions of section 78(10) of the Act.
Additional provisions relating to sampling and analysis
32
1
Any person who —
a
tampers with any material so as to procure that any sample of it taken or submitted for analysis under these Regulations does not correctly represent the material; or
b
tampers or interferes with any sample taken or submitted for analysis under these Regulations,
is guilty of an offence and liable on summary conviction to a fine not exceeding level five on the standard scale or imprisonment for a term not exceeding three months or both.
2
Any analysis required to be made under regulation 30(4) or 31(3) may be performed by any person acting under the direction of the agricultural analyst, the analyst at the point 4 compliant laboratory or the Government Chemist as the case may be.
3
A certificate of analysis by an agricultural analyst, an analyst at a point 4 compliant laboratory or the Government Chemist shall in any legal proceedings be received as evidence of the facts stated in the certificate if the party against whom it is to be given in evidence —
a
has been served with a copy of it not less than twenty-one days before the hearing; and
b
has not, before the seventh day preceding the hearing, served on the other party a notice requiring the attendance of the person who made the analysis.
4
Any document purporting to be a certificate of analysis for the purposes of paragraph (3) shall be deemed to be such a certificate unless the contrary is proved.
Secretary of State’s default powers and area of authorised officer’s powers
33
1
If the Secretary of State considers that these Regulations, or Regulation 178/2002 or Regulation 183/2005 have been insufficiently enforced in the area of any enforcement authority she may herself appoint one or more persons to exercise in that area the powers exercisable by authorised officers appointed by the authority, and any expenses certified by her as having been incurred by her under this regulation in respect of that area shall be repaid to her on demand by the authority in question.
2
An authorised officer may not exercise his powers under these Regulations in respect of any premises outside the area for which he is appointed except with the consent of the enforcement authority for the area in which those premises are situated.
Protection of authorised officers acting in good faith
34
1
An authorised officer is not personally liable in respect of any act done by him —
a
in the execution or purported execution of these Regulations; and
b
within the scope of his employment,
if he did that act in the honest belief that his duty under these Regulations required or entitled him to do it.
2
Nothing in paragraph (1) shall be construed as relieving any enforcement authority of any liability in respect of the acts of their officers.
3
Where an action has been brought against an authorised officer in respect of an act done by him —
a
in the execution or purported execution of these Regulations; but
b
outside the scope of his employment,
the authority may indemnify him against the whole or a part of any damages which he has been ordered to pay or any costs which he may have incurred if it is satisfied that he honestly believed that the act complained of was within the scope of his employment.
4
An agricultural analyst is to be treated for the purposes of this regulation as being an authorised officer, whether or not his appointment is a whole–time one.
Defences of fault of another person, mistake etc and export
35
1
Where the commission by any person of an offence under these Regulations is due to the act or default of some other person, that other person is guilty of the offence and may be accused and convicted of the offence whether or not proceedings are taken against the first-mentioned person.
2
In any proceedings for an offence under these Regulations it shall, subject to paragraph (3), be a defence to prove —
a
that the commission of the offence was due to a mistake, or to reliance on information supplied to him, or to the act or default of another person, or to an accident or some other cause beyond his control; and
b
that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control.
3
If in any case the defence provided by paragraph (2) involves the allegation that the commission of the offence was due to the act or default of another person or to reliance on information supplied by another person, the person accused shall not, without leave of the court, be entitled to rely on that defence unless —
a
at least seven clear days before the hearing; and
b
where he has previously appeared before a court in connection with the alleged offence, within one month of his first such appearance,
he has served on the prosecutor a notice giving such information as he may have to identify or assist in identifying that other person.
4
In any proceedings in which it alleged that a material has contravened or failed to comply with the requirements of specified feed law it is a defence for the person accused to prove that the material in respect of which the offence was alleged to have been committed —
a
was feed to which Article 25 of Regulation 183/2005 applies; and
b
could lawfully be exported in accordance with the requirements of Article 12 of Regulation 178/2002.
Offences by corporate bodies or Scottish partnerships
36
1
Where an offence under these Regulations which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of —
a
any director, manager, secretary or other similar officer of the body corporate; or
b
any person who was purporting to act in any such capacity,
he as well as the body corporate shall be deemed to be guilty of that offence and liable to be proceeded against and punished accordingly.
2
In paragraph (1) “director” in relation to any body corporate established by or under any enactment for the purpose of carrying on under national ownership any undertaking, being a body corporate whose affairs are managed by its members, means a member of that body corporate.
3
Where an offence under these Regulations which has been committed by a Scottish partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he as well as the partnership shall be deemed to be guilty of that offence and liable to be proceeded against and punished accordingly.
Institution of and time limit for prosecutions
37
1
Without prejudice to any enactment relating to the place where proceedings may be taken, proceedings for an offence under these Regulations may be taken in the place where the person accused resides or carries on business.
2
No prosecution for an offence under these Regulations may be begun after the expiry of —
a
three years from the commission of the offence; or
b
one year from its discovery by the prosecutor,
whichever is the earlier.
Revocations
38
The Regulations or parts thereof listed in Schedule 3 to these Regulations are revoked in so far as they apply in relation to England.
Signed by authority of the Secretary of State for Health
Caroline Flint
Parliamentary Under Secretary of State,
Department of Health
28th November 2005


text:
Citation, commencement and interpretation
1
1
This Order may be cited as the Communications (Jersey) (Amendment) Order 2005 and shall come into force on 31 st March 2005.
2
In this Order “the 2003 Order ” means the Communications (Jersey) Order 2003 .
Amendment of the 2003 Order
2
The 2003 Order is amended as follows —
a
in article 6 —
i
for the words, “sections 211” to “244;” substitute “sections 211, 212 and 214 to 244;”; and
ii
for the words, “sections 263, 264, 271,” substitute “sections 263 to 271,”; and
b
after paragraph 49 of Schedule 2 (modifications with which provisions of the Communications Act 2003 extend to Jersey) insert —
49A
In section 270 (Enforcement of public service remits) after the words “United Kingdom” wherever they occur insert “or the Bailiwick of Jersey”.
.
A.K. Galloway
Clerk of the Privy Council
22nd March 2005


text:
Citation and commencement
1
These Regulations may be cited as the Royal Parks (Establishment of Eligibility for Transfer and Termination of Employment) Regulations 2005 and shall come into force on 10th November 2005.
Establishment of eligibility for transfer
2
Every person who, on the date on which these Regulations come into force, is serving as a park constable with the Royal Parks Constabulary shall comply with the requirements set out in regulation 3 for the purposes of establishing whether he is eligible —
a
to be employed by the Authority, or
b
to serve as a member of the police force for the metropolitan police district.
3
1
The requirements referred to in regulation 2 are —
a
to provide such information, and
b
to submit to such medical or eyesight examinations,
as are necessary for the Authority to determine whether the person satisfies the qualifications for appointment to a police force set out in regulation 10(1)(b), (d), (e) and (h) of the Police Regulations 2003 (qualifications for appointment to a police force).
2
The information required by paragraph (1)(a) shall be provided on or before 25th November 2005.
3
If further information is necessary for the Authority to make the determination mentioned in paragraph (1) because the information provided in accordance with paragraph (2) is incomplete or insufficient, or if a medical or eyesight examination is necessary, the further information shall be provided, and the examination shall take place, within a reasonable time after 25th November 2005.
Termination of employment
4
The following persons shall not be eligible for compensation for early retirement or severance under schemes made under section 1 of the Superannuation Act 1972 —
a
any person whose Crown employment is terminated under paragraph 3(1) of Schedule 13 to the Serious Organised Crime and Police Act 2005 as a consequence of failing to comply with any requirement imposed on him by regulations 2 and 3; and
b
any person who is eligible to serve as a member of the police force of the metropolitan police district whose Crown employment is terminated as a result of a provision in a transfer scheme made under Schedule 13 to that Act of the kind described in paragraph 4(2)(f) of that Schedule.
David Lammy
Minister for Culture
Department for Culture, Media and Sport
12th October 2005


text:
Preliminary
Citation, commencement, application and extent
1
1
These Regulations may be cited as the Occupational Pension Schemes (Employer Debt) Regulations 2005.
2
These Regulations come into force on 6th April 2005.
3
These Regulations do not apply to —
a
any scheme other than a money purchase scheme if a debt to the trustees or managers of the scheme has been treated as arising under section 75(1) of the 1995 Act before that date;
b
any scheme which immediately before that date was regarded by virtue of regulation 2 of the Occupational Pension Schemes (Winding Up) Regulations 1996 as having begun to be wound up before that date for the purposes of those Regulations; or
c
any scheme which according to the rules in section 124(3A) to (3E) of the 1995 Act began to wind up before that date.
4
These Regulations extend to England and Wales and Scotland.
Interpretation
2
1
In these Regulations––
“the 1993 Act ” means the Pension Schemes Act 1993 ;
“the 1995 Act” means the Pensions Act 1995;
“the 2004 Act ” means the Pensions Act 2004;
“the 1996 Regulations ” means the Occupational Pension Schemes (Deficiency on Winding Up etc. ) Regulations 1996 ;
“the actuary” means the actuary appointed for the scheme in pursuance of subsection (1)(b) of section 47 of the 1995 Act or, in the case of a scheme to which that provision does not apply by virtue of regulations made under subsection (5) of that section, an actuary otherwise authorised by the trustees or managers to provide such valuations or certifications as may be required under these Regulations;
“the applicable time” means the time as at which the value of the assets of a scheme and the amount of its liabilities are to be determined, calculated and verified for the purposes of section 75 of the 1995 Act;
“employer” has the same meaning as in section 75 of the 1995 Act (but see paragraph (2) and regulations 9 and 13);
“employment-cessation event” has the meaning given in regulation 6(4);
“the MFR Regulations ” means the Occupational Pension Schemes (Minimum Funding Requirement and Actuarial Valuations) Regulations 1996 ;
“money purchase scheme” means an occupational pension scheme under which all the benefits that may be provided other than death benefits are money purchase benefits;
“multi-employer scheme” means a scheme in relation to which there is more than one employer (including, except in regulation 8, any section of a scheme treated under that regulation as a scheme if there is more than one employer in relation to that section);
“the tax condition”, in relation to a scheme, means–
that the scheme has been approved by the Commissioners of the Board of Inland Revenue for the purposes of section 590 or 591 of the Taxes Act at any time before 6th April 2006; or
that the scheme is registered under section 153 of the Finance Act 2004 ;
“the Taxes Act” means the Income and Corporation Taxes Act 1988 .
2
In these Regulations “scheme” must be read in appropriate cases in accordance with the modifications of section 75 of the 1995 Act made by regulation 8, 14 or 15, as the case may be; and “employer” and “member” must be read accordingly.
3
References in these Regulations to the guidance in GN19 are to the guidelines on winding up and scheme asset deficiency (GN19), prepared and published by the Institute of Actuaries and the Faculty of Actuaries and approved for the purposes of these Regulations by the Secretary of State, with such revisions as have been so approved at the applicable time.
4
References in these Regulations to the guidance in GN 27 are to the guidelines on minimum funding requirement (GN 27), prepared and published by the Institute of Actuaries and the Faculty of Actuaries and approved for the purposes of the MFR Regulations by the Secretary of State, with such revisions as have been so approved at the applicable time.
5
Subject to the previous provisions of this regulation, expressions used in these Regulations have the same meaning as in Part 1 of the 1995 Act (see section 124).
Disapplication of the 1996 Regulations
3
The 1996 Regulations do not apply in any case where these Regulations apply (and accordingly they only apply to a scheme as respects which regulation 1(3)(a), (b) or (c) applies).
Schemes to which section 75 of the 1995 Act does not apply
4
1
Section 75 of the 1995 Act does not apply to any scheme which is —
a
a public service pension scheme under the provisions of which there is no requirement for assets related to the intended rate or amount of benefit under the scheme to be set aside in advance (disregarding requirements relating to additional voluntary contributions);
b
a scheme which is made under section 7 of the Superannuation Act 1972 (superannuation of persons employed in local government etc.) and provides pensions to local government employees;
c
a scheme which is made under section 2 of the Parliamentary and Other Pensions Act 1987 (power to provide for pensions for Members of the House of Commons etc.);
d
a scheme in respect of which a relevant public authority, as defined in section 307(4) of the 2004 Act, has given a guarantee or made any other arrangements for the purposes of securing that the assets of the scheme are sufficient to meet its liabilities;
e
a scheme which does not meet the tax condition;
f
a scheme which —
i
has been categorised by the Commissioners of the Board of Inland Revenue for the purposes of its approval as a centralised scheme for non-associated employers;
ii
which is not contracted-out; and
iii
under the provisions of which the only benefits that may be provided on or after retirement (other than money purchase benefits derived from the payment of voluntary contributions by any person) are lump sum benefits which are not calculated by reference to a member’s salary;
g
a scheme with such a superannuation fund as is mentioned in section 615(6) of the Taxes Act (fund established to provide superannuation benefits in respect of persons' employment in a trade or undertaking wholly outside the United Kingdom);
h
a scheme with fewer than two members;
i
a scheme with fewer than twelve members where all the members are trustees of the scheme and either —
i
the rules of the scheme provide that all decisions are made only by the trustees who are members of the scheme by unanimous agreement; or
ii
the scheme has a trustee who is independent in relation to the scheme for the purposes of section 23 of the 1995 Act (power to appoint independent trustees) (see subsection (3) of that section) and is registered in the register maintained by the Authority in accordance with regulations made under subsection (4) of that section;
j
a scheme with fewer than twelve members where all the members are directors of a company which is the sole trustee of the scheme and either —
i
the rules of the scheme provide that all decisions are made only by the members of the scheme by unanimous agreement, or
ii
one of the directors of the company is independent in relation to the scheme for the purposes of section 23 of the 1995 Act and is registered in the register maintained by the Authority in accordance with regulations made under subsection (4) of that section;
k
the Chatsworth Settlement Estate Pension Scheme; or
l
the scheme established by the Salvation Army Act 1963 .
2
Before 6th April 2006 paragraph (1)(e) applies with the addition at the end of the words “and is not a relevant statutory scheme providing relevant benefits”; and for the purposes of that paragraph “relevant statutory scheme” and “relevant benefits” have the same meaning as in Chapter 1 of Part 14 of the Taxes Act (see sections 611A and 612(1) of that Act).
Valuations
Calculation of the value of scheme liabilities and assets: defined benefit schemes
5
1
The liabilities and assets of a scheme which are to be taken into account for the purposes of section 75(2) and (4) of the 1995 Act and their amount or value must be determined, calculated and verified by the actuary as at the applicable time —
a
in the case of liabilities in respect of pensions or other benefits, on the assumption that the liabilities will be discharged by the purchase of annuities of the kind described in section 74(3)(c) of the 1995 Act (discharge of liabilities: annuity purchase);
b
subject to sub-paragraph (a), on the general assumptions specified in regulation 3(2)(a) to (c) and (3) of the MFR Regulations (determination, valuation and verification of assets and liabilities: general);
c
subject to sub-paragraph (a) and paragraphs (2), (3), (5) and (6), in accordance with regulations 4 to 8 of the MFR Regulations (determination and valuation of assets and liabilities);
d
subject to sub-paragraph (e), so far as the guidance given in GN 27 applies as respects regulations 3(2)(a) to (c) and (3) and 4 to 8 of the MFR Regulations or as respects sub-paragraph (a) and paragraphs (2) and (3) of this regulation, in accordance with that guidance; and
e
in accordance with the guidance given in GN 19 so far as that guidance applies for the purposes of these Regulations.
2
For the purposes of paragraph (1)(a) the actuary must estimate the cost of purchasing the annuities.
3
The liabilities of a scheme which are to be taken into account under paragraph (1) include all expenses (except the cost of the annuities referred to in paragraph (1)(a)) which, in the opinion of the trustees or managers of the scheme, are likely to be incurred in connection with the winding up of the scheme.
4
Where in these Regulations (or in the MFR Regulations as applied by this regulation) there is a reference to the value of any asset or the amount of any liability being calculated or verified in accordance with the opinion of the actuary or as he thinks appropriate, he must comply with any relevant provision in the guidance given in GN 27 or, as the case may be, GN 19 in making that calculation or verification.
5
The value of the assets and the amount of the liabilities of a scheme which are to be taken into account for the purposes of section 75(2) and (4) of the 1995 Act must be certified by the actuary in the form set out in Schedule 1 to these Regulations, but if the scheme is being wound up on the date as at which the valuation is made, the actuary must modify the note at the end of the certificate by omitting the words from “if the scheme” onwards.
6
For the purposes of this regulation —
a
references in regulations 3(2), 4, 5, 7 and 8 of the MFR Regulations to the relevant date are to be taken as references to the applicable time;
b
regulations 4(1), 7(1) and 8(2) of the MFR Regulations have effect with the substitution for the words “the minimum funding requirement is met” of the words “the value of the assets of the scheme is less than the amount of the liabilities of the scheme”;
c
regulation 6(1)(b) of the MFR Regulations has effect with the addition at the end of the words “(and any amount treated as a debt due to the trustees or managers of the scheme under section 75(2) or (4) by virtue of the valuation in question)”.
7
In its application for the purposes of this regulation in a case where the applicable time falls after the scheme has begun to be wound up, regulation 6(1) of the MFR Regulations has effect with the addition after sub-paragraph (c) of the words —
; and for the purposes of sub-paragraph (a), regulation 5(1)(a) of the Occupational Pension Schemes (Investment) Regulations 1996 (exclusion of employer-related investments over 5 per cent. of current market value) shall be disregarded.
.
8
This regulation has effect subject to regulation 7 (multi-employer schemes: valuations for employment cessation events).
Multi-employer schemes
Multi-employer schemes: general
6
1
In its application to a multi-employer scheme, section 75 of the 1995 Act has effect in relation to each employer as if —
a
the reference in section 75(2)(a) to a time which falls before any relevant event in relation to the employer which occurs while the scheme is being wound up were a reference to a time which falls before relevant events have occurred in relation to all the employers;
b
the reference in section 75(2) to an amount equal to the difference being treated as a debt due from the employer were a reference to an amount equal to that employer’s share of the difference being treated as a debt due from that employer;
c
the references in section 75(3)(a)(i) and (b) to no relevant event of the kind there mentioned occurring in relation to the employer were references to no event of that kind occurring in relation to all the employers;
d
the reference in section 75(4)(a) to a relevant event (“the current event”) occurring in relation to the employer were a reference to a relevant event or an employment-cessation event occurring only in relation to that employer;
e
the reference in section 75(4) to an amount equal to the difference being treated as a debt due from the employer were––
i
in a case where the difference is ascertained immediately before a relevant event occurs in relation to the employer, a reference to an amount equal to the employer’s share of the difference being treated as a debt due from the employer; and
ii
in a case where the difference is ascertained immediately before an employment cessation event occurs in relation to the employer, a reference to an amount equal to the sum of the cessation expenses attributable to the employer and the employer’s share of the difference being treated as a debt due from the employer; and
f
section 75(4)(d) and (e) were omitted.
2
For the purposes of paragraph (1), an employer’s share of the difference is —
a
such proportion of the total difference as, in the opinion of the actuary after consultation with the trustees or managers, the amount of the scheme’s liabilities attributable to employment with that employer bears to the total amount of the scheme’s liabilities attributable to employment with the employers; or
b
if the scheme provides for the total amount of that debt to be otherwise apportioned amongst the employers, the amount due from that employer under that provision.
3
For the purposes of paragraph (2) —
a
the total amount of the scheme’s liabilities which are attributable to employment with the employers; and
b
the amount of the liabilities attributable to employment with any one employer,
are such amounts as are determined, calculated and verified by the actuary in accordance with the guidance given in GN 19; and a determination under this paragraph must be certified by the actuary as being in accordance with that guidance.
4
For the purposes of these Regulations an employment-cessation event occurs in relation to an employer if he ceases to be an employer employing persons in the description of employment to which the scheme relates at a time when at least one other person continues to employ such persons.
5
For the purposes of paragraph (1), the cessation expenses attributable to an employer are all expenses which, in the opinion of the trustees or managers of the scheme, are likely to be incurred in connection with the employment-cessation event occurring in relation to the employer.
Multi-employer schemes: valuations for employment cessation events
7
1
This regulation applies where —
a
section 75 applies with the modifications referred to in regulation 6; and
b
the amount of the liabilities of a scheme immediately before an employment cessation event is being determined in order to determine whether a debt is to be treated as due from the employer under section 75(4) of the 1995 Act.
2
Regulation 5 applies —
a
with the omission of paragraphs (1)(a) and (2) and the references to those provisions in paragraph (1)(b), (c) and (d) (by virtue of which liabilities for pensions and other benefits are to be valued on the assumption that they will be discharged by the purchase of annuities); and
b
with the omission of paragraph (3).
Multi-employer schemes: sectionalised schemes
8
1
In its application to a multi-employer scheme––
a
which is divided into two or more sections; and
b
the provisions of which are such that the sections meet conditions A and B,
section 75 of the 1995 Act and the provisions of these Regulations (apart from this regulation) apply as if each section of the scheme were a separate scheme.
2
Condition A is that contributions payable to the scheme by an employer, or by a member in employment under that employer, are allocated to that employer’s section (or, if more than one section applies to that employer, to the section which is appropriate in respect of the employment in question).
3
Condition B is that a specified part or proportion of the assets of the scheme is attributable to each section and cannot be used for the purposes of any other section.
4
In their application to a scheme —
a
which has been such a scheme as is mentioned in paragraph (1);
b
which is divided into two or more sections, one or more of which apply only to members who are not in pensionable service under the section;
c
the provisions of which have not been amended so as to prevent conditions A and B being met in relation to two or more sections; and
d
in relation to one or more sections of which those conditions have ceased to be met at any time by reason only of there being no members in pensionable service under the section and no contributions which are to be allocated to it,
section 75 of the 1995 Act and the provisions of these Regulations (apart from this paragraph) apply as if any section in relation to which those conditions have ceased to be met were a separate scheme.
5
For the purposes of paragraphs (1) to (4), any provisions of the scheme by virtue of which contributions or transfers of assets may be made to make provision for death benefits are disregarded.
6
But if paragraph (1) or (4) applies and, by virtue of any provisions of the scheme, contributions or transfers of assets to make such provision are made to a section (“the death benefits section”) the assets of which may only be applied for the provision of death benefits, the death benefits section is also to be treated as a separate scheme.
7
For the purpose of this regulation, any provisions of the scheme by virtue of which assets attributable to one section may on the winding up of the scheme or a section be used for the purposes of another section are disregarded.
Former employers
Former employers
9
1
In the application of section 75 of the 1995 Act and these Regulations to a scheme which has no active members, references to employers include every person who employed persons in the description of employment to which the scheme relates immediately before the occurrence of the event after which the scheme ceased to have any active members.
2
In the application of section 75 of the 1995 Act and these Regulations to a scheme, references to employers include–
a
any pre-April 1997 participator (see paragraph (7)); and
b
any person who has ceased on or after 6th April 1997 and before the applicable time to be a person employing persons in the description of employment to which the scheme relates, unless —
i
when he so ceased the scheme was not being wound up and continued to have active members; and
ii
condition A, B, C or D is met.
3
Condition A is that no debt was treated as becoming due from him under section 75(2) or (4) of the 1995 Act (or, if he so ceased before 6th April 2005, under section 75(1) of that Act) by virtue of his so ceasing.
4
Condition B is that such a debt was treated as becoming due from him and has been paid before the applicable time.
5
Condition C is that such a debt was treated as becoming due from him and has not been so paid solely because he was not notified of the debt, and of the amount of it, sufficiently in advance of the applicable time for it to be paid before that time.
6
Condition D is that such a debt was treated as becoming due from him but at the applicable time it is excluded from the value of the assets of the scheme because it is unlikely to be recovered without disproportionate cost or within a reasonable time.
7
In this regulation “pre-April 1997 participator” means a person who immediately before 6th April 2005 was regarded as an employer for the purposes of the 1996 Regulations by virtue of regulation 6 of those Regulations (ceasing to participate: transitional provision).
Money purchase schemes
Money purchase schemes: fraud and levy deficiencies etc.
10
1
Notwithstanding subsection (1)(a) of section 75 of the 1995 Act, that section applies to money purchase schemes as if —
a
subsection (2) —
i
provided that if the levy deficit condition is met the levy deficit is to be treated as a debt due from the employer to the trustees or managers of the scheme; and
ii
was not subject to subsection (3) of that section;
b
subsection (4) provided that where the criminal reduction conditions are met the criminal deficit is to be treated as a debt due from the employer to the trustees or managers of the scheme; and
c
subsections (4A) to (4C) and (6) were omitted.
2
The levy deficit condition is that an amount payable by way of general levy in respect of any money purchase scheme exceeds the value of the unallocated assets of the scheme either —
a
at the time when the amount first becomes payable to the Secretary of State; or
b
at a later time designated by the trustees or managers of the scheme for the purposes of this paragraph.
3
The criminal reduction conditions are that —
a
a reduction in the aggregate value of the allocated assets of the scheme occurs;
b
the reduction is attributable to an act or omission which —
i
constitutes an offence prescribed for the purposes of section 81(1)(c) of the 1995 Act; or
ii
in the case of an act or omission which occurred outside England and Wales or Scotland, would constitute such an offence if it occurred in England and Wales or in Scotland; and
c
immediately after the act or omission or, if that time cannot be determined, at the earliest time when the auditor of the scheme knows that the reduction has occurred, the amount of that reduction exceeds the value of the unallocated assets of the scheme.
4
In this section —
“allocated assets”, in relation to a scheme, means assets which have been specifically allocated for the provision of benefits to or in respect of members (whether generally or individually) or for the payment of the scheme’s expenses (and “unallocated” is to be read accordingly);
“the criminal deficit” means the amount of the excess mentioned in paragraph (3)(c);
“the levy deficit” means the amount of the excess mentioned in paragraph (2);
“the general levy” means the levy imposed under section 175 of the 1993 Act by regulation 3(1) or (2) of the Occupational and Personal Pension Schemes (General Levy) Regulations 2005 .
Money purchase schemes: valuations etc.
11
1
For the purposes of section 75 of the 1995 Act as applied by regulation 10, this regulation applies instead of regulation 5 and 7.
2
In the case of a scheme other than an ear-marked scheme —
a
the value at any time of the unallocated assets of the scheme is to be taken to be the value of those assets as certified in a statement by the scheme’s auditor; and
b
the amount of the criminal reduction in the aggregate value of the allocated assets of the scheme at any time is to be calculated by subtracting the actual aggregate value of those assets at that time from the notional aggregate value of those assets.
3
The notional aggregate value mentioned in paragraph (2)(b) is to be taken to be the sum of the values of the assets —
a
as stated in the audited accounts which most immediately precede the relevant act or omission; or
b
if there are none, as certified in a statement by the scheme’s auditor,
adjusted appropriately to take account of any alteration in their values (other than any alteration attributable to that act or omission) between the date as at which those accounts are prepared or, as the case may be, as at which that statement is given and the time in question.
4
The actual aggregate value mentioned in paragraph (2)(b) is to be calculated in the same manner as it was calculated for the purposes of the accounts mentioned in paragraph (3)(a) or, as the case may be, the statement mentioned in paragraph (3)(b).
5
In the case of an ear-marked scheme —
a
the value at any time of the unallocated assets of the scheme; and
b
the amount of the criminal reduction in the aggregate value of the allocated assets of the scheme,
are the amounts certified in a statement by the relevant insurer.
6
In this regulation —
“ear-marked scheme” means a scheme under which all the benefits are secured by one or more policies of insurance or annuity contracts, being policies or contracts specifically allocated to the provision of benefits for individual members or any other person who has a right to benefits under the scheme; and
“the relevant insurer”, in relation to such a scheme, is the insurer with whom the insurance contract or annuity contract is made.
Multi-employer money purchase schemes
12
1
In its application to a money purchase scheme that is a multi-employer scheme regulation 10 applies with the substitution for paragraph (1) of the following paragraphs —
1
Notwithstanding subsection (1)(a) of section 75 of the 1995 Act, that section applies to money purchase schemes as if —
a
subsection (2) —
i
provided that if the levy deficit condition is met each employer’s share of the levy deficit is to be treated as a debt due from that employer to the trustees or managers of the scheme; and
ii
was not subject to subsection (3) of that section;
b
subsection (4) provided that where the criminal reduction conditions are met each employer’s share of the criminal deficit is to be treated as a debt due from the employer to the trustees or managers of the scheme; and
c
subsections (4A) to (4C) and (6) were omitted.
1A
For the purposes of paragraph (1), an employer’s share of the levy deficit or the criminal deficit is —
a
such proportion of that total deficit as, in the opinion of the actuary, the amount of the scheme’s liabilities attributable to employment with that employer bears to the total amount of the scheme’s liabilities attributable to employment with the employers; or
b
if the scheme provides for the total amount of that debt to be otherwise apportioned amongst the employers, the amount due from that employer under that provision.
1B
For the purposes of paragraph (1A) —
a
the total amount of the scheme’s liabilities which are attributable to employment with the employers; and
b
the amount of the liabilities attributable to employment with any one employer,
are such amounts as are determined, calculated and verified by the actuary in accordance with the guidance given in GN 19; and a determination under this paragraph must be certified by the actuary as being in accordance with that guidance.
.
2
Regulation 6 does not apply to a money purchase scheme that is a multi-employer scheme.
Former employers of money purchase schemes
13
Regulation 9 does not apply to a money purchase scheme, but in the application of section 75 of the 1995 Act and these Regulations to such a scheme which has no active members references to employers include every person who employed persons in the description of employment to which the scheme relates immediately before the occurrence of the event after which the scheme ceased to have any active members.
Other schemes treated as more than one scheme
Schemes covering United Kingdom and foreign employment
14
1
Paragraph (2) applies where a scheme which applies to members in employment in the United Kingdom and members in employment outside the United Kingdom is divided into two or more sections and the provisions of the scheme are such that––
a
different sections of the scheme apply to members in employment in the United Kingdom and to members in employment outside the United Kingdom (“the United Kingdom section” and “the foreign section”);
b
contributions payable to the scheme in respect of a member are allocated to the section applying to that member’s employment;
c
a specified part or proportion of the assets of the scheme is attributable to each section and cannot be used for the purposes of any other section; and
d
the United Kingdom section meets the tax condition and the foreign section does not do so.
2
If this paragraph applies —
a
section 75 of the 1995 Act and these Regulations (apart from this regulation) apply as if each section of the scheme were a separate scheme; and
b
the reference to the scheme in the form set out in Schedule 1 may be modified appropriately.
3
Paragraph (4) applies where —
a
a scheme applies to members in employment in the United Kingdom and members in employment outside the United Kingdom;
b
paragraph (2) does not apply to the scheme; and
c
part of the scheme meets paragraph (b) of the tax condition by virtue of that part having been treated as a separate scheme under section 611(3) of the Taxes Act that is treated as becoming a registered pension scheme under paragraph 1(1) of Schedule 36 to the Finance Act 2004 by virtue of paragraph 1(2) of that Schedule.
4
If this paragraph applies —
a
section 75 of the 1995 Act and these Regulations (apart from this regulation) apply as if the approved and unapproved parts of the scheme were separate schemes; and
b
the reference to the scheme in the form set out in Schedule 1 may be modified appropriately.
5
Paragraph (6) applies where —
a
a scheme has been such a scheme as is mentioned in paragraph (1) or (3),
b
the scheme is divided into two or more sections, some or all of which apply only to members who are not in pensionable service under the section;
c
the provisions of the scheme have not been amended so as to prevent the conditions in paragraph (1) or, as the case may be, paragraph (3) being met in relation to two or more sections; and
d
in relation to one or more sections of the scheme those conditions have ceased to be met at any time by reason only of there being no members in pensionable service under the section and, in the case of paragraph (1), no contributions which are to be allocated to it.
6
If this paragraph applies —
a
section 75 of the 1995 Act and these Regulations (apart from this regulation) apply as if any section in relation to which those conditions have ceased to be met were a separate scheme; and
b
the reference to the scheme in the form set out in Schedule 1 may be modified appropriately.
7
Before 6th April 2006 paragraph (3) applies with the substitution for sub-paragraph (c) of the following paragraph —
c
part of the scheme meets paragraph (a) of the tax condition by virtue of section 611(3) of the Taxes Act.
Schemes with partial government guarantee
15
1
This regulation applies if a relevant public authority has —
a
given a guarantee in relation to any part of a scheme, any benefits payable under the scheme or any member of the scheme; or
b
made any other arrangements for the purposes of securing that the assets of the scheme are sufficient to meet any part of its liabilities.
2
Where this regulation applies —
a
section 75 of the 1995 Act and these Regulations (apart from this regulation) apply as if the guaranteed part of the scheme and the other part of the scheme were separate schemes; and
b
the reference to the scheme in the form set out in Schedule 1 may be modified appropriately.
3
In this regulation —
“the guaranteed part of the scheme” means the part of the scheme —
in relation to which the guarantee has been given;
which relates to benefits payable under the scheme in relation to which the guarantee has been given; or
which relates to benefits payable under the scheme in relation to the liabilities for which those other arrangements have been made; and
“relevant public authority” has the meaning given in section 307(4) of the 2004 Act.
Supplementary
Modification of schemes: apportionment of section 75 debts
16
1
This regulation applies for the purposes of section 68(2)(e) of the 1995 (power of trustees to modify schemes by resolution for prescribed purposes).
2
In the case of a trust scheme (whether or not a money purchase scheme) which apart from this regulation could not be modified for the purpose of making provision for the total amount of a debt due under section 75(2) or (4) of the 1995 Act to be apportioned amongst the employers in different proportions from those which would otherwise apply by virtue of regulation 6(2)(a) or, as the case may be, regulation 10(1A) (as it has effect by virtue of regulation 12), for the purposes of section 68(2)(e), such a modification of the scheme is a modification for a prescribed purpose.
Disregard of staying of voluntary winding up of employer for purposes of section 75 of the 1995 Act
17
1
This regulation applies for the purposes of section 75(6D)(i) of the 1995 Act (by virtue of which where a members' voluntary winding up of an employer is stayed section 75 of the 1995 Act has effect as if the resolution for the winding up had never been passed and any debt which arose under that section by virtue of the passing of the resolution had never arisen, except where the winding up is stayed in prescribed circumstances).
2
The circumstances that are prescribed are where the stay is granted for a limited period.
Consequential amendments
18
The Regulations specified in Schedule 2 are amended as specified in that Schedule.
Signed by authority of the Secretary of State for Work and Pensions.
Malcolm Wicks
Minister of State,
Department for Work and Pensions
11th March 2005