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PART IGENERAL

Citation and commencement

1.  These Regulations may be cited as the Producer Responsibility Obligations (Packaging Waste) Regulations 1997 and shall come into force on the day after the day on which they are made.

Interpretation and notices

2.  (1)  In these Regulations—

“the Act” means the Environment Act 1995;

“the 1990 Act” means the Environmental Protection Act 1990(1);

“the Director” means the Director General of Fair Trading;

“energy recovery” means the use of combustible packaging waste as a means to generate energy through direct incineration with or without other waste but with recovery of the heat;

“organic recycling” means the aerobic (composting) or anaerobic (biomethanization) treatment, under controlled conditions and using micro-organisms, of the biodegradable parts of packaging waste, which produces stabilized organic residues or methane; for the purposes of these Regulations landfill shall not be considered a form of organic recycling;

“packaging” means all products made of any materials of any nature to be used for the containment, protection, handling, delivery and presentation of goods, from raw materials to processed goods, from the producer to the user or the consumer, including non-returnable items used for the same purposes but only where the products are—

(a)

sales packaging or primary packaging, that is to say packaging conceived so as to constitute a sales unit to the final user or consumer at the point of purchase;

(b)

grouped packaging or secondary packaging, that is to say packaging conceived so as to constitute at the point of purchase a grouping of a certain number of sales units whether the latter is sold as such to the final user or consumer or whether it serves only as a means to replenish the shelves at the point of sale; it can be removed from the product without affecting its characteristics; or

(c)

transport packaging or tertiary packaging, that is to say packaging conceived so as to facilitate handling and transport of a number of sales units or grouped packagings in order to prevent physical handling and transport damage; for the purposes of these Regulations transport packaging does not include road, rail, ship and air containers;

“packaging materials” means materials used in the manufacture of packaging and includes raw materials and processed materials prior to their conversion into packaging;

“packaging waste” means any packaging or packaging material covered by the definition of waste in article 1 of Directive 75/442 EC(2) (“the Waste Directive”) which, together with Annex 1 to that Directive, is reproduced in Part I of Schedule 3 to these Regulations, other than production residues and, by virtue of article 2(1)(b)(i) of the Waste Directive, radioactive waste;

“preceding year” has the meaning given in regulation 3;

“producer” has the meaning given in regulation 3 and the classes of producer are those set out in column 4 of the Table in Schedule 1;

“producer responsibility obligations” are the producer registration, recovery and recycling, and certifying obligations specified in regulation 3;

“recovery” means any of the applicable operations provided for in Annex IIB to the Waste Directive, reproduced in Part II of Schedule 3;

“recycling” means the reprocessing in a production process of the waste materials for the original purpose or for other purposes including organic recycling but excluding energy recovery;

“relevant year” has the meaning given in regulation 3;

“reprocessor” means a person who, in the ordinary course of conduct of a trade, occupation or profession, carries out the activities of recovery or recycling;

“reuse” means any operation by which packaging, which has been conceived and designed to accomplish within its life cycle a minimum number of trips or rotations, is refilled or used for the same purpose for which it was conceived, with or without the support of auxiliary products present on the market enabling the packaging to be refilled; such reused packaging will become packaging waste when no longer subject to reuse;

“scheme” means a scheme which is (or, if it were to be registered in accordance with these Regulations would be) a scheme whose members for the time being are, by virtue of these Regulations and their membership of that scheme, exempt from the requirement to comply with their producer responsibility obligations and “registered scheme” means a scheme which is registered with the appropriate Agency in accordance with these Regulations;

“transit packaging” means—

(a)

grouped packaging or secondary packaging, as defined in paragraph (b) of the definition of packaging in this regulation; or

(b)

transport packaging or tertiary packaging as defined in paragraph (c) of that definition of packaging; and

“year” means a calendar year beginning on 1st January.

(2) Where notices are to be served on a producer under regulations 6(6), 10, and 11(3), information is to be provided by a producer under regulations 7 and 8, fees are to be paid by a producer under regulation 9(2), and records and returns are to be maintained and furnished by a producer under regulation 22, they shall be served on, provided, paid, or maintained and furnished, by

(a)in the case of a partnership with a principal place of business in England and Wales, the partner notified under regulation 6(4)(e), or in accordance with the undertaking referred to in regulation 7(a)(ii), or

(b)in the case of a partnership with a principal place of business in Scotland, by a partner acting on behalf of the partnership,

and references in these Regulations to the producer shall be read accordingly.

(3) Where the operator of a scheme is a partnership, or where this is not the case but there is more than one operator of a scheme—

(a)notices to be served on the operator of the scheme under regulations 12(6), 16, 17(3), 31(5) and (10), shall be served on the partner or operator, respectively, notified under regulation 12(3)(h), or in accordance with the condition referred to in regulation 13(d)(ii); and

(b)where information is to be provided by the operator of the scheme under regulations 13 and 14, fees are to be paid by the operator of the scheme under regulation 15(3), records and returns are to be maintained and furnished by the operator of the scheme under regulation 24, and appeals may be made by the operator of the scheme under regulation 18, they shall be provided, paid, or maintained and furnished, and such appeals may only be made, by the partner or operator, respectively, notified under regulation 12(3)(h), or in accordance with the condition referred to in regulation 13(d)(ii),

and references in these Regulations to the operator of the scheme shall be read accordingly.

PART IIPRODUCERS AND OBLIGATIONS

Producers and producer responsibility obligations

3.  (1)  This regulation is subject to regulations 4, 29 and 30.

(2) In respect of a year a person is a producer of a class specified in an entry in column 4 of the Table set out in Schedule 1 if—

(a)in that year and the preceding year he performs the relevant functions of the class of producer specified in Column 1 of that Table in relation to that entry;

(b)in the preceding year he made supplies of the materials or products specified in Column 2 of that Table in relation to that entry of a class in Column 3 of that Table in relation to that entry; and

(c)in relation to that year he satisfies the threshold tests as provided by paragraph 3 of that Schedule,

and the other provisions of that Schedule shall also have effect for the purposes of determining whether a person is a producer of any class.

(3) Where in respect of a year a person is a producer and satisfies the provisions of Columns 1 to 3 of the Table in Schedule 1 in relation to more than one class of producer specified in an entry in Column 4 of that Table, whether or not in relation to the same materials or products specified in Column 2 of that Table, or the same transaction or process, for that year that person belongs to each such class.

(4) For the purposes of these Regulations—

(a)“relevant year” is the year referred to in paragraph (2) above, that is to say a year in respect of which a person is a producer; and

(b)“preceding year” is the year immediately preceding a relevant year.

(5) A person who is a producer in respect of a year has producer responsibility obligations in respect of that year, that is to say he shall—

(a)be registered as provided in regulation 5 (in these Regulations referred to as the “producer registration obligation”); and

(b)for the year 1998 and subsequent years—

(i)take reasonable steps to recover and recycle packaging waste (in these Regulations referred to as the “recovery and recycling obligations”) in relation to each of the classes of producer to which the producer belongs, calculated as provided in Schedule 2, and

(ii)furnish a certificate of compliance in respect of his recovery and recycling obligations in accordance with regulation 23 (in these Regulations referred to as the “certifying obligation”).

(6) The recovery and recycling obligations of producers are to enable the United Kingdom to attain the recovery and recycling targets for Member States set out in article 6(1) of Directive 94/62/EC and those targets are set out in Schedule 10.

Exclusions and limitations

4.  (1)  Where a producer is a member of a registered scheme throughout a relevant year—

(a)the producer is exempt from complying with his producer responsibility obligations for the relevant year; and

(b)the recovery and recycling obligations with which, but for his membership of the scheme, the producer would have had to comply in relation to the relevant year shall be performed through the scheme.

(2) These Regulations do not apply to a charity within the meaning given in section 506 of the Income and Corporation Taxes Act 1988(3).

(3) The producer responsibility obligations of the producer class of wholesaler apply only in respect of the year 2000 and subsequent years.

(4) A special producer as defined in Part III of Schedule 3 shall have producer responsibility obligations as provided in Part IV of that Schedule and shall provide records and returns to the appropriate Agency in accordance with Part V of that Schedule.

PART IIIREGISTRATION

Producer registration obligation

5.  Subject to regulations 4(3) and (4), 29 and 30, a producer shall be registered with an appropriate Agency in respect of a relevant year, or any part of that year, during which he is not a member of a registered scheme.

Application for producer registration

6.  (1)  Subject to paragraph (3) below, a producer who is required by regulation 5 to be registered and who is not registered shall, on or before 1st April in a relevant year, make an application for producer registration to the appropriate Agency, being—

(a)the Agency, where at the beginning of the relevant year the applicant’s registered office or principal place of business is in England or Wales;

(b)SEPA, where at the beginning of the relevant year the applicant’s registered office or principal place of business is in Scotland; or

(c)either the Agency or SEPA where at the beginning of the relevant year the applicant does not have a registered office or principal place of business in Great Britain.

(2) Where the producer is a partnership, where the principal place of business of the partnership is in England or Wales, the application shall be made by all the partners, and where the principal place of business of the partnership is in Scotland, the application shall be made by any partner acting on behalf of the partnership.

(3) Where—

(a)the relevant year is the year 1997, the application for registration shall be made on or before 31st August 1997; or

(b)any of the following occurs in a relevant year—

(i)the application for registration of a scheme of which the applicant was a member is refused,

(ii)the registration of a scheme of which the applicant was a member is cancelled,

(iii)the applicant’s membership of a scheme is discontinued,

(iv)the applicant becomes a producer in respect of that year, or

(v)an application to register made within the time limit in paragraph (1) or sub-paragraph (a), above, is refused,

an application for registration shall be made within 28 days of the occurrence.

(4) An application for producer registration shall—

(a)be made in writing;

(b)contain the initial information set out in Part I of Schedule 4;

(c)subject to paragraphs (7) and (8) below, be accompanied by the further information specified in, and provided on a form corresponding to, the form set out in Part II of Schedule 4, or provided on a form substantially to that effect,

(d)be accompanied by the fee referred to in regulation 9; and

(e)where the applicant is a partnership whose principal place of business is in England and Wales, be accompanied by a statement as to which partner is able to accept notices and act on behalf of the partnership as provided in regulation (2).

(5) An application for producer registration shall be granted where—

(a)the producer has complied with paragraph (4)(a), (b), (d) and (e) above and, where applicable, paragraph (8) below;

(b)the Agency is satisfied that the information provided in accordance with paragraph (4)(c) above, or (8) below, has been provided in accordance with paragraph (7) below; and

(c)the producer has given the undertakings referred to in regulation 7, which have been required by the appropriate Agency;

and shall otherwise be refused.

(6) Where an application for producer registration is granted—

(a)the appropriate Agency shall, within 28 days of it being granted confirm to the producer in writing that he is registered with it; and

(b)the producer shall be treated as having been registered from the beginning of the relevant year or, where the producer has applied to be registered for part of a year, from the date specified in the confirmation, until any cancellation of the producer’s registration in accordance with regulation 11.

(7) The further information shall—

(a)where the application for registration, or compliance with regulation 8, is in respect of any of the years 1997, 1998 1999, be provided using the producer’s reasonable estimates of the information required; and

(b)where the application for registration, or compliance with regulation 8, is in respect of the year 2000 or any subsequent year, the information provided shall be as accurate as reasonably possible.

(8) Where the application to register is made in one of the circumstances set out in paragraph (3)(b) above, the further information referred to in paragraph (4)(c) above need not accompany the application but shall be provided within 56 days of the application being made.

Requirements for producer registration

7.  As requirements for producer registration the appropriate Agency may require the applicant to undertake that he will—

(a)inform the appropriate Agency of—

(i)any change in the circumstances of the producer which relate to the registration of the producer, and where the producer is a partnership, any change of partners;

(ii)any change in the person who is the partner who is able to accept notices and act on behalf of the partnership as stated as required in regulation 6(4)(e);

(iii)any material change in the initial information provided in accordance with regulation 6(4)(b), or

(iv)any material change in the further information provided in accordance with regulation 6(4)(c), or (8), as the case may be, or regulation 8,

within 28 days of the occurrence of any such change;

(b)comply with the requirements of regulation 8;

(c)provide records and returns to the appropriate Agency as required by regulation 22; and

(d)apply to the appropriate Agency to cancel his registration where he has become a member of a registered scheme or has ceased to be a producer in respect of a year.

Continuation of producer registration

8.  On or before 1st April in a relevant year a producer who is registered shall provide to the appropriate Agency—

(a)in accordance with regulation 6(7), the further information referred to in regulation 6(4)(c); and

(b)the fee referred to in regulation 9.

Forms and fees for producer registration

9.  (1)  The appropriate Agency shall provide a copy of any form referred to in regulation 6 free of charge to any person requesting one.

(2) The fee which is to be charged by an appropriate Agency on an application for producer registration or continuation of producer registration is £750.

Refusal to register producers

10.  Any decision of the appropriate Agency under regulation 6(5) to refuse to register a producer shall be notified within 28 days of the decision to the producer in writing together with the reasons for the decision and a statement as to the offence specified in regulation 34(1)(a).

Cancellation of registration of producers

11.  (1)  An appropriate Agency may cancel the registration with it of a producer where—

(a)the information or the fee required by regulation 8 are not provided;

(b)it appears to the appropriate Agency that—

(i)the producer is in breach of any of the undertakings referred to in regulation 7 and given by him to that Agency,

(ii)the producer knowingly supplied false information in connection with his application for registration, or with compliance with any undertaking referred to in regulation 7, or with regulation 8; or

(iii)information provided pursuant to regulation 8 was not provided in accordance with regulation 6(7).

(2) An appropriate Agency shall cancel the registration with it of a producer where it is notified that the producer has become a member of a registered scheme or has otherwise ceased to be subject to the producer registration obligation in respect of a year.

(3) Before cancellation of a registration under paragraphs (1) or (2) above, an appropriate Agency shall serve on the producer concerned written notice of—

(a)its decision to cancel;

(b)the reasons for the decision; and

(c)the date when cancellation will take effect, not being earlier than—

(i)in the case of cancellation under paragraph (1) above, 28 days from the date of the notice, and

(ii)in the case of cancellation under paragraph (2) above, 5 days from the date of the notice.

Application for registration of a scheme

12.  (1)  Subject to paragraph (8) below, an application for registration of a scheme in relation to a year shall be made by the operator of the scheme, on or before 1st April in the year, to the appropriate Agency, being—

(a)the Agency, where at the date of the application the registered office or principal place of business of the operator of the scheme is in England or Wales;

(b)SEPA, where at the date of the application the registered office or principal place of business of the operator of the scheme is in Scotland; or

(c)either the Agency or SEPA, where at the date of the application the operator of the scheme does not have a registered office or principal place of business in Great Britain, or there is more than one operator of the scheme and such operators have registered offices or principal places of business in England and Wales, and in Scotland.

(2) Where the operator of the scheme is a partnership the application for registration shall, where at the date of the application the principal place of business of the partnership is in England and Wales, be made by all the partners, and where at that date the principal place of business of the partnership is in Scotland, be made by any partner acting on behalf of the partnership.

(3) An application for registration of a scheme shall—

(a)be made in writing;

(b)contain the initial information set out in Part III of Schedule 4;

(c)subject to paragraph (7) below, be accompanied by the information specified in, and provided on a form corresponding to, the form set out in Part II of Schedule 4, or provided on a form substantially to that effect, for each class of producer, and aggregating the information in relation to all of the scheme’s members who belong to that class;

(d)be accompanied by a published statement as provided in Part IV of Schedule 4;

(e)be accompanied by an operational plan for the scheme as provided in Part IV of Schedule 4;

(f)be accompanied by an undertaking by the operator of the scheme that the conditions referred to in regulation 13 will be complied with;

(g)be accompanied by a fee calculated as provided in regulation 15; and

(h)where the operator of the scheme is a partnership whose principal place of business is in England and Wales, or where there is more than one operator of the scheme, be accompanied by a statement as to which partner or operator, respectively, is able to accept notices or act on behalf of all the partners, or all the operators of the scheme, as the case may be, as provided in regulation 2 above.

(4) A scheme shall not be registered unless it has been approved by the Secretary of State and the operator of the scheme has been notified under regulation 31(5) that it meets the requirements of competition scrutiny referred to in regulation 31, and the operator of the scheme shall supply evidence of that approval and notification to the appropriate Agency—

(a)where such approval or notification is obtained before making the application to register the scheme, at the time of the application; or

(b)where such approval or notification is obtained after the application to register is made, as soon as possible after receipt.

(5) An application for registration shall be granted where—

(a)the operator has complied with paragraphs (3)(a), (b), (d)(, (f), (g) and (h) and (4) above;

(b)the appropriate Agency is satisfied that the information provided in accordance with paragraph (3)(c) above, has been provided in accordance with paragraph (7) below; and

(c)the appropriate Agency is satisfied as to the contents of the operational plan provided as required by paragraph (3)(e) above and shall otherwise be refused.

(6) Where an application for registration of a scheme is granted—

(a)the appropriate Agency shall, within 28 days of it being granted confirm to the operator of the scheme in writing that the scheme is registered with it; and

(b)the scheme shall be treated as registered from the beginning of the year of application until any cancellation of the scheme’s registration in accordance with regulation 17, except that for the purposes of regulations 32 and 33 the scheme shall be treated as registered from the date of confirmation until any such cancellation.

(7) The further information shall—

(a)where the application for registration, or compliance with regulation 14, is in relation to any of the years 1997, 1998 or 1999 be provided using the reasonable estimates of the operator of the scheme; and

(b)where the application for registration, or compliance with regulation 14, is in relation to the year 2000 or any subsequent year, be as accurate as reasonably possible.

(8) Where an application for registration is made in the year 1997 the application shall be made on or before 31st August 1997,

Conditions of registration of a scheme

13.  Registration of a scheme shall be subject to the following conditions—

(a)that the recovery and recycling obligations of all of its members referred to in regulation 4(1)(b) will be performed through the scheme;

(b)that the operator of the scheme will provide information at the request of the appropriate Agency with regard to the obligations referred to in paragraph (a) above;

(c)that the operator of the scheme will notify the appropriate Agency in writing at intervals as required by the Agency of any change in the membership of the scheme and that any such notification will be accompanied by the additional fee calculated as provided in regulation 15(3);

(d)that the operator of the scheme will inform the appropriate Agency in writing of—

(i)any change in the person who is the operator of the scheme, and in the case where the operator of the scheme is a partnership, or where there is more than one operator of a scheme, any change of partners or operators,

(ii)any change in the person who is the partner or operator who is able to accept notices and act on behalf of the partners or operators as stated as provided in regulation 12(3)(h),

(iii)any material change in the initial information provided in accordance with regulation 12(3)(b), or

(iv)any material change in the further information provided in accordance with regulations 12(3)(c) or 14,

within 28 days of the occurrence of any such change;

(e)that the operator of the scheme will comply with the requirements of regulation 14;

(f)that the operator of the scheme will provide records and returns to the appropriate Agency as required by regulation 24; and

(g)that the operator of the scheme will inform the appropriate Agency in writing if the Secretary of State withdraws approval of the scheme or notifies the operator under regulation 31(10) that he has ceased to be satisfied that the scheme meets the requirements of competition scrutiny.

Continuation of registration of a scheme

14.  On or before 1st April in a relevant year and in respect of a scheme which is registered, the operator of the scheme shall provide to the appropriate Agency—

(a)in accordance with regulation 12(7), the further information referred to in regulation 12(3)(c); and

(b)a fee calculated as provided in regulation 15.

Forms and fees for registration of a scheme

15.  (1)  The appropriate Agency shall provide a copy of any form referred to in regulation 12 free of charge to any person requesting one.

(2) The fee which is to be charged by an appropriate Agency on an application for registration of a scheme, and under regulation 14, is calculated as follows—

A × B = F

where—

  • A is the number of members of the scheme at the date of the application, or the date of compliance with regulation 14, whichever is applicable,

  • B is an amount calculated by reference to the number of members of the scheme at that date as follows—

    2 to 500 members£600
    501 to 1500 members£450
    1501 to 3000 members£300
    Over 3000 members£100, and
  • F is the fee.

(3) The fee which is to be paid by an operator of a scheme in compliance with the condition referred to in regulation 13(c) is calculated as follows—

A × B = AF

where—

  • A is the number of new members of the scheme which are the subject of the notification,

  • B is the amount referred to in B in paragraph (2) above except that it is calculated by reference to the number of members of the scheme at the date of notification to the appropriate Agency, and

  • AF is the fee.

Refusal to register a scheme

16.  Any decision of the appropriate Agency under regulation 12(5) to refuse to register a scheme shall be notified, within 28 days of the decision, to the operator of the scheme in writing together with—

(a)the reasons for the decision;

(b)a statement as to the right of appeal under Part IV of these Regulations; and

(c)a statement as to the offence specified in regulation 34(1)(a).

Cancellation of registration of a scheme

17.  (1)  Subject to the right of appeal under Part IV of these Regulations, the appropriate Agency may cancel the registration with it of a scheme where—

(a)the information or the fee required by regulation 14 are not provided; or

(b)it appears to the appropriate Agency that—

(i)any of the conditions referred to in regulation 13 has been broken,

(ii)the operator knowingly supplied false information in connection with the application for registration, or with compliance with the conditions referred to in regulation 13, or with regulation 14, or

(iii)information provided pursuant to regulation 14 was not provided in accordance with regulation 12(7).

(2) An appropriate Agency shall cancel the registration with it of a scheme if the Secretary of State withdraws his approval of the scheme or gives notice under regulation 31(10) that he has ceased to be satisfied that the scheme meets the requirements of competition scrutiny.

(3) Before the cancellation of a registration an appropriate Agency shall serve on the operator of the scheme written notice of—

(a)its decision under paragraph (1) or (2) above to cancel the registration;

(b)the reasons for the decision;

(c)where the decision is made under paragraph (1) above, the right of appeal under Part IV of these Regulations; and

(d)the date when cancellation will take effect, not being earlier than—

(i)in the case of cancellation under paragraph (1) above, the expiration of the time limit for an appeal against the notice provided for in paragraph 2 of Schedule 5, or

(ii)in the case of cancellation under paragraph (2) above, 5 days from the date of the notice.

PART IVREGISTRATION OF SCHEMES—APPEALS

Right of appeal

18.  The operator of a scheme may appeal to the Secretary of State against a decision of the appropriate Agency—

(a)to refuse registration under regulation 12(5), except where the refusal arises from failure to comply with regulation 12(4); or

(b)to cancel registration under regulation 17(1).

Procedure of appeals

19.  (1)  Where an appeal is made to the Secretary of State, he may—

(a)appoint any person to exercise on his behalf, with or without payment, the function of determination of the appeal; or

(b)refer any matter involved in the appeal to such person as the Secretary of State may appoint for the purpose, with or without payment.

(2) If the operator of the scheme so requests, or the Secretary of State so decides, the appeal shall be or continue in the form of a hearing (which may, if the person hearing the appeal so decides, be held or held to any extent in private).

(3) Schedule 5 shall have effect with respect to the procedure on any such appeal.

Determination of appeals

20.  Where, on such an appeal, the Secretary of State determines that the decision of the appropriate Agency shall be altered it shall be the duty of the appropriate Agency to give effect to the determination.

Status pending appeal

21.  Where an appeal is pending in a case falling within regulation 17(1), the decision to cancel registration shall be ineffective until the appeal is disposed of; and if the appeal is dismissed or withdrawn the decision shall become effective from the end of the day on which the appeal is dismissed or withdrawn.

PART VRECORDS, RETURNS AND CERTIFICATE

Producers—records and returns

22.  (1)  A producer who is subject to the certifying obligation shall maintain, and retain for at least 4 years after the record is made, records of the information referred to in paragraph (2) below and shall, at the same time as he furnishes a certificate of compliance to the appropriate Agency in accordance with regulation 23, make a return to that Agency of that information.

(2) The information is, in respect of the year 1998 and subsequent years—

(a)the amount in tonnes, to the nearest tonne, of packaging waste provided to a reprocessor by or on behalf of the producer;

(b)the amount in tonnes, to the nearest tonne, of each packaging material comprised in the packaging waste referred to in sub-paragraph (a) above, received by a reprocessor from the producer or a person acting on the producer’s behalf; and

(c)the dates on which, and the name and address of the reprocessor to which, the packaging waste referred to in sub-paragraph (a) above, was so provided.

(3) For the purposes of paragraph (2) above, for the year 1998 and subsequent years, packaging materials means the materials mentioned in paragraph 6(1)(b) of Schedule 2.

Producers—certifying obligation

23.  (1)  Subject to regulations 4 and 29, a producer shall furnish in accordance with this regulation a certificate of compliance to the appropriate Agency.

(2) A certificate of compliance shall be furnished as evidence of whether or not the producer has complied with its recovery and recycling obligations for a relevant year and shall be furnished on or before 31st January in the year immediately following the relevant year.

(3) The provisions of Schedule 6 shall apply as regards the information to be contained in a certificate of compliance.

Schemes—records and returns

24.  (1)  The operator of a scheme shall maintain, and retain for at least 4 years after they are made, records of the information referred to in paragraphs (2) and (3) below, and make returns of the information referred to in paragraph (3) below to the appropriate Agency upon request.

(2) In respect of the year 1997 the information is, for each producer which is a member of the scheme in that year, the information referred to in regulations 12(3)(c) and 14, together with any changes notified in accordance with the condition referred to in regulation 13(d)(iv).

(3) In respect of the year 1998 and subsequent years the information is, in addition to the information referred to in paragraph (2) above—

(a)the amount in tonnes, to the nearest tonne, of packaging waste provided to a reprocessor through the scheme;

(b)the amount in tonnes, to the nearest tonne, of each packaging material comprised in the packaging waste referred to in sub-paragraph (a) above, provided to a reprocessor through the scheme; and

(c)the dates on which, and the name and address of the reprocessor to which, the packaging waste referred to in sub-paragraph (a) above was so provided.

(4) For the purposes of paragraph (3) above, for the year 1998 and subsequent years packaging materials means the materials mentioned in paragraph 6(1)(b) of Schedule 2.

PART VIAGENCIES' POWERS & DUTIES

Monitoring

25.  (1)  An appropriate Agency shall monitor in accordance with this regulation—

(a)compliance with their producer responsibility obligations by persons who are or may be producers; and

(b)the discharge through schemes registered with it of the obligations of their members referred to in regulation 4(1)(b).

(2) The duty referred to in paragraph (1) above includes a duty to monitor—

(a)the registration of producers as required by regulation 5;

(b)the accuracy of the initial information and the further information provided by producers and referred to in regulations 6 and 8, together with any changes notified in accordance with the undertakings referred to in regulation 7(a)(iii) and (iv);

(c)the accuracy of the returns furnished to the Agency by a producer under regulation 22 or Part V of Schedule 3;

(d)the accuracy of the information contained in certificates of compliance furnished to the Agency under regulation 23;

(e)the accuracy of the initial information and the further information provided by an operator of a scheme and referred to in regulations 12 and 14, together with any changes notified in accordance with the conditions referred to in regulation 13(d)(iii) and (iv); and

(f)the accuracy of the returns provided to the Agency by an operator of a scheme under regulation 24.

Public register

26.  (1)  The appropriate Agency shall maintain and make available in accordance with this regulation a register relating to the producers and schemes registered with it in accordance with regulations 5 to 16 and containing—

(a)the information relating to producer registration prescribed in paragraph 1 of Schedule 7; and

(b)the information relating to registration of schemes prescribed in paragraph 2 of Schedule 7.

(2) The appropriate Agency shall—

(a)secure that the register is open for inspection at its principal office by members of the public free of charge at all reasonable hours; and

(b)permit members of the public to obtain copies of entries in the register on payment of reasonable charges.

(3) The register may be kept in any form but shall be indexed and arranged so that members of the public can readily trace information contained in it.

(4) An appropriate Agency shall amend the relevant entry in the register to record any change to the information entered and shall note the date on which the amendment is made.

(5) Nothing in this regulation shall require a register maintained by an appropriate Agency to contain information relating to, or to anything which is the subject-matter of, any criminal proceedings (including prospective proceedings) at any time before those proceedings are finally disposed of.

(6) Nothing in this regulation shall require a register maintained by an appropriate Agency to contain any information which has been superseded by later information after 4 years have elapsed from that later information being entered in the register.

Approval of persons to issue certificates of compliance

27.  For the purposes of issuing certificates of compliance an appropriate Agency may approve—

(a)where the producer is an individual, that individual;

(b)where the producer is a partnership, a partner; or

(c)where the producer is a company, a director of that company.

Entry and inspection

28.  (1)  A person who appears suitable to an appropriate Agency may be authorised in writing by that Agency for the purposes of its functions under these Regulations to exercise the powers of entry and inspection referred to in paragraph (2) below.

(2) The powers of entry and inspection are those set out in section 108(4)(a) to (l) of the Act (powers of enforcing authorities and persons authorised by them) and for this purpose section 108(4) shall be read as if references to the authorised person were references to the appropriate Agency’s servant or agent and as if—

(a)the words “(or, in an emergency, at any time and, if need be, by force)” in section 108(4)(a) were omitted;

(b)the power set out in section 108(4)(b) were omitted;

(c)the reference to measurements in section 108(4)(e) were omitted;

(d)the reference in section 108(4)(f) to articles or substances in relation to which samples may be taken were to records and packaging and packaging materials and as if the power in that paragraph to take samples of the air, water or land in, on, or in the vicinity of, the premises were omitted;

(e)the power set out in section 108(4)(g) were omitted;

(f)the reference in section 108(4)(h) to any article or substance were to any sample as is mentioned in paragraph (d) above and as if the reference to an offence in section 108(4)(h)(iii) were to an offence under regulation 34 of these Regulations;

(g)the reference to records in section 108(4)(k)(i) were to the records and returns required to be kept and provided to the appropriate Agency under regulations 22 and 24 and Part V of Schedule 3; and

(h)the reference to the power in section 108(l) were to the power conferred by this regulation.

(3) The provisions of section 108(6) and (7) of the Act shall apply to the powers conferred by paragraphs (1) and (2) above as they apply to the powers conferred by section 108(4) of the Act, but as if any reference to an authorised person were to the appropriate Agency’s servant or agent, and as if—

(a)in section 108(6) and (7) the words “except in an emergency” were omitted; and

(b)in section 108(6) the words “or to take heavy equipment on to any premises” were omitted.

(4) The provisions of section 108(12) and (13) of the Act shall apply to the powers conferred by paragraphs (1) and (2) above as they apply to the powers conferred by section 108(4) of the Act.

(5) The provisions of paragraphs 2 to 6 of Schedule 18 to the Act (supplemental provisions with respect to powers of entry) shall apply to the powers conferred by this regulation as they apply to the powers conferred by section 108 of the Act, but as if any reference—

(a)to a designated person were to a person authorised in writing by an appropriate Agency to exercise on its behalf any power conferred by this regulation;

(b)to a relevant power were to a power conferred by this regulation, including a power exercisable by virtue of a warrant under the provisions of that Schedule as applied by this paragraph;

(c)in paragraph 2(3) to subsection (6) of section 108 of the Act were to paragraph (2) of this regulation;

(d)in paragraph 4(1) to section 108(12) of the Act were to paragraph (4) of this regulation; and

(e)in paragraph 6(1) to section 108(4)(a) or (b) or (5) of the Act were to paragraph (1)(a) or (b) of this regulation.

(6) In this regulation “warrant” means a warrant under the provisions set out in Schedule 18 to the Act as applied by paragraph (5) above.

PART VIIGROUPS OF COMPANIES AND MID-YEAR CHANGES

Groups of companies

29.  The provisions of Schedule 8 shall apply with regard to groups of companies as defined in that Schedule.

Mid-year changes

30.  The provisions of Schedule 9 shall apply with regard to changes in a year in respect of a person who is a producer in respect of that year and any change in membership of a group of companies or of a scheme by such a producer, or other event affecting a producer in the relevant year.

PART VIIICOMPETITION SCRUTINY

Competition scrutiny

31.  (1)  For the purposes of this regulation, the requirements of competition scrutiny in relation to a scheme are that—

(a)the scheme does not have, and is not likely to have, the effect of restricting, distorting or preventing competition or, where it appears to the Secretary of State that the scheme has or is likely to have any such effect, the effect is or is likely to be no greater than is necessary for achieving the environmental or economic benefits mentioned in section 93(6) of the Act; and

(b)the scheme does not lead, and is not likely to lead, to an abuse of market power.

(2) An operator who intends to apply for registration of a scheme under regulation 12 shall apply to the Director for the purpose of competition scrutiny, and shall submit with the application the information referred to in regulation 12(3)(h) and the information set out in Part III of Schedule 4.

(3) The Director shall advise the Secretary of State whether, in the Director’s opinion, the Secretary of State may be satisfied that the scheme meets the requirements of competition scrutiny.

(4) For the purpose of the Director’s advice under paragraph (3) above or (8) below as to whether, in his opinion, a scheme may meet or no longer meets the requirements of competition scrutiny, the words “where it appears to the Director” shall be substituted for the words “where it appears to the Secretary of State” in paragraph (1)(a) above.

(5) If, after considering the advice of the Director, the Secretary of State decides that he is satisfied that the scheme meets the requirements of competition scrutiny, he shall give notice in writing to the appropriate Agency, and to the operator of the scheme to that effect.

(6) The Secretary of State shall send a copy of any notice given under paragraph (5) above to the Director.

(7) The Director shall keep under review the operation of—

(a)any registered scheme; and

(b)any scheme in respect of which an application for registration is pending and the Secretary of State has given notice under paragraph (5) above.

(8) Subject to paragraph (9) below, if at any time the Director is of the opinion that any scheme whose operation he is keeping under review no longer meets the requirements of competition scrutiny, he shall advise the Secretary of State of his opinion and the reasons therefor.

(9) Paragraph (8) above shall not require the Director to repeat advice in respect of any scheme which he has previously given under paragraphs (3) or (8) above in respect of that scheme unless there has been a material change of circumstances since the advice was given.

(10) If at any time after giving a notice under paragraph (5) above the Secretary of State decides, after considering any advice on the matter from the Director, that he has ceased to be satisfied that the scheme meets the requirements of competition scrutiny, he shall give notice to the appropriate Agency and to the operator of the scheme to that effect.

(11) The Secretary of State shall send a copy of any notice given under paragraph (10) above to the Director.

(12) For the purposes of, or otherwise in connection with, competition scrutiny, the Director may, by notice in writing, require any person to provide within a specified time such information as may be specified or described in the notice and which that person has, or which he may at any future time acquire, relating to any scheme or to any acts or omissions of an operator of such a scheme or of any person dealing with such an operator.

PART IXTHE RESTRICTIVE TRADE PRACTICES ACT 1976

The 1976 Act

32.  (1)  In this Part “the 1976 Act” means the Restrictive Trade Practices Act 1976(4).

(2) The 1976 Act shall not apply to any agreement for the constitution of a body (whether corporate or unincorporated) which operates a registered scheme by reason of—

(a)any term of the agreement; or

(b)any implied term deemed to be contained in the agreement by virtue of section 8(2) or section 16(3) of the 1976 Act;

being in either case a term which is required or contemplated by that scheme.

(3) Where an agreement ceases by virtue of this regulation to be subject to registration under the 1976 Act—

(a)the Director shall remove from the register maintained by him under the 1976 Act any particulars which are entered or filed in that register in respect of the agreement; and

(b)any proceedings in respect of the agreement which are pending before the Restrictive Practices Court shall be discontinued.

(4) Where an agreement which has been exempt from registration under the 1976 Act by virtue of paragraph (2) above ceases to be exempt in consequence of the cancellation of the registration of a scheme under regulation 17, the time within which particulars of the agreement are to be furnished in accordance with section 24 of and Schedule 2 to the 1976 Act shall be the period of one month beginning with the day on which the agreement ceased to be exempt from registration under the 1976 Act.

Agreements to which the 1976 Act applies

33.  (1)  In this regulation, “the Court”, “information provision” and “restriction” have the same meanings as they have in the 1976 Act.

(2) This regulation applies to an agreement to which the 1976 Act applies—

(a)at least one of the parties to which is an operator of a registered scheme; and

(b)which is made for the purposes of that scheme.

(3) If it appears to the Secretary of State—

(a)that the restrictions in an agreement to which this regulation applies do not have and are not intended or likely to have the effect of restricting, distorting or preventing competition; or

(b)in a case where all or any of those restrictions have, or are intended or likely to have, that effect, that the effect is not greater than is necessary for achieving the environmental or economic benefits mentioned in section 93(6) of the Act;

he may give a direction to the Director requiring him not to make an application to the Court under Part 1 of the 1976 Act in respect of the agreement.

(4) If it appears to the Secretary of State that one or more (but not all) of the restrictions in an agreement to which this regulation applies—

(a)do not have, and are not intended or likely to have, the effect mentioned in paragraph (3) above; or

(b)if they have, or are intended or likely to have, that effect, that the effect is not greater than is necessary for achieving the benefits mentioned in paragraph (3) above,

he may make a declaration to that effect and give notice of it to the Director and to the Court.

(5) The Court shall not in any proceedings begun by an application made after notice has been given to it of a declaration under this regulation make any finding or exercise any power under Part 1 of the 1976 Act in relation to a restriction in respect of which the declaration has effect.

(6) Before making an application to the Court under Part 1 of the 1976 Act in respect of an agreement to which this regulation applies, the Director shall—

(a)notify the Secretary of State of his intention to do so and give him particulars of the agreement together with such other information as he considers will assist the Secretary of State in deciding whether to exercise his powers under this regulation, or as the Secretary of State may request; and

(b)advise the Secretary of State as to his opinion—

(i)of the effects or likely effects on competition of the restrictions in the agreement, and

(ii)as to whether any such effects are necessary for achieving the benefits mentioned in paragraph (3) above.

(7) The Director shall not make an application to the Court under Part 1 of the 1976 Act in respect of an agreement to which this regulation applies unless the Secretary of State has either notified him that he does not intend to give a direction or make a declaration under this regulation or has given him notice of a declaration in respect of it.

(8) The Secretary of State may—

(a)revoke a direction or declaration under this regulation;

(b)vary any such declaration; or

(c)give a direction or make a declaration notwithstanding a previous notification to the Director that he did not intend to give a direction or make a declaration,

if he is satisfied that there has been a material change of circumstances since the direction, declaration or notification was given.

(9) The Secretary of State shall give notice to the Director of the revocation of a direction and to the Director and the Court of the revocation or variation of a declaration; and no such variation shall have effect so as to restrict the powers of the Court in any proceedings begun by an application already made by the Director.

(10) A direction or declaration under this regulation shall cease to have effect if the agreement in question ceases to be an agreement to which this regulation applies.

(11) This regulation applies to information provisions as it applies to restrictions.

PART XOFFENCES

Offences and penalties

34.  (1)  Subject to paragraph 5 of Schedule 8, a producer who contravenes a requirement of—

(a)subject to paragraph (2) below, regulation 3(5)(a);

(b)regulation 3(5)(b)(i); or

(c)regulation 3(5)(b)(ii),

is guilty of an offence.

(2) A producer is not guilty of an offence under paragraph (1)(a) above in respect of any period during which, under regulation 6(6), he is treated as having been registered.

(3) A person who—

(a)furnishes a certificate of compliance under regulation 23 and either—

(i)knows the information provided in or in connection with the certificate to be false or misleading in a material particular, or

(ii)furnishes such information recklessly and it is false or misleading in a material particular;

(b)fails without reasonable excuse to furnish any information required by the Director in accordance with regulation 31(12); or

(c)furnishes any information to the appropriate Agency in connection with its functions under these Regulations, or to the Secretary of State or to the Director in connection with the functions of either of them under Part VIII of these Regulations, and either—

(i)knows the information to be false or misleading in a material particular, or

(ii)furnishes such information recklessly and it is false or misleading in a material particular,

is guilty of an offence.

(4) A person who intentionally delays or obstructs a person authorised by an appropriate Agency in the exercise of powers referred to in regulation 28 is guilty of an offence.

(5) A person guilty of an offence under any of paragraphs (1) to (4) above shall be liable—

(a)on summary conviction to a fine not exceeding the statutory maximum; or

(b)on conviction on indictment, to a fine.

John Gummer

Secretary of State for the Environment

5th March 1997

Lindsay

Parliamentary Under-Secretary of State, Scottish Office

5th March 1997