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PART IV
REGISTRATION OF SCHEMES - APPEALS
Right of appeal
18.
The operator of a scheme may appeal to the Planning Appeals Commission against a decision of the Department -
(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 Planning Appeals Commission, if the operator of the scheme so requests, or the Planning Appeals Commission 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).
(2) Schedule 5 shall have effect with respect to the procedure on any such appeal.
Determination of appeals
20.
Where, on such an appeal, the Planning Appeals Commission determines that the decision of the Department shall be altered it shall be the duty of the Department 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decision to cancel registration shall be ineffective until the appeal is disposed of; and if the appeal is dismissed or withdrawn the decision shall become effective from end of the day on which the appeal is dismissed or withdrawn.
PART V
RECORDS, RETURNS AND CERTIFICATE
Producers - records and returns
22.
- (1) A producer who is subject to the certifying obligation shall maintain for at least four years after the record is made, records of the information referred to in paragraph (2) and shall, at the same time as he furnishes a certificate of compliance to the Department in accordance with regulation 23, furnish a return to the Department of that information.
(2) The information is, in respect of the year 2000 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), 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), was so provided.
(3) For the purposes of paragraph (2), for the year 2000 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 Department.
(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 for at least four years after they are made, records of the information referred to in paragraphs (2) and (3), and make returns of the information referred to in paragraph (3) to the Department upon request.
(2) In respect of the year 1999 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 2000 and subsequent years the information is, in addition to the information referred to in paragraph (2) -
(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), 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) was so provided.
(4) For the purposes of paragraph (3), for the year 2000 and subsequent years packing materials means the materials mentioned in paragraph 6(1)(b) of Schedule 2.
PART VI
POWERS AND DUTIES OF THE DEPARTMENT
Monitoring
25.
- (1) The Department shall monitor in accordance with this regulation -
(a) compliance with their producer responsibility obligations by persons who are 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) 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 Department 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 Department 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 Department by an operator of a scheme under regulation 24.
Public register
26.
- (1) The Department shall maintain and make available in accordance with this regulation a register relating to the producers and schemes registered with it in accordance with regulation 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 Department shall -
(a) secure that the register is open for inspection 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) The Department 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 the Department 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 the Department to contain any information which has been superseded by later information after four 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 the Department 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) An officer of the Department who has been authorised in writing by the Department for the purpose of performing its function under these Regulations may exercise the powers of entry and inspection referred to in paragraph (2).
(2) The powers of entry and inspection are -
(a) to enter at any reasonable time any premises which he has reason to believe it is necessary for him to enter;
(b) to make such examination and investigation as may in any circumstances be necessary;
(c) as regards any premises which he has power to enter, to direct that those premises or any part of them, or anything in them, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under paragraph (b);
(d) to take such photographs and make such recordings as he considers necessary for the purpose of any examination or investigation under paragraph (b);
(e) to take samples, or cause samples to be taken, of any records and packaging and packaging materials found in or on any premises which he has power to enter;
(f) in the case of any such records and packaging and packaging materials as are mentioned in paragraph (e), to take possession of them and detain them for so long as is necessary for all or any of the following purposes, namely -
(i) to examine them, or cause them to be examined, and to do, or cause to be done, to them anything which he has power to do under that paragraph,
(ii) to ensure that they are not tampered with before examination of them is completed,
(iii) to ensure that they are available for use as evidence in any proceedings for an offence under regulation 34;
(g) to require any person whom he has reasonable cause to believe to be able to give any information relevant to any examination or investigation under paragraph (b) to answer (in the absence of persons other than a person nominated by that person to be present and any persons whom the authorised person may allow to be present) such questions as the authorised person thinks fit to ask and to sign a declaration of the truth of his answers;
(h) to require the production of, or where the information is recorded in computerised form, the furnishing of extracts from, any record and return -
(i) which are required to be kept and provided to the Department under regulations 22 and 24 and Part V of Schedule 3, or
(ii) which it is necessary for him to see for the purposes of an examination or investigation under paragraph (b), and to inspect and take copies of, or of any entry in, the records and returns; and
(i) to require any person to afford him such facilities and assistance with respect to any matters or things within that person's control or in relation to which that person has responsibilities as are necessary to enable the authorised person to exercise any of the powers conferred on him by this regulation.
(3) In any case where it is proposed to enter any premises used for residential purposes, any entry shall only be effected -
(a) after the expiration of at least seven day's notice of the proposed entry given to a person who appears to the Department's servant or agent to be in occupation of the premises in question; and
(b) either -
(i) with the consent of a person who is in occupation of those premises, or
(ii) when a justice of the peace by warrant under his hand authorises the authorised person to enter the premises in question.
(4) Where it is shown to the satisfaction of a justice of the peace on complaint on oath that an authorised person proposes to enter any premises and -
(a) entry has been refused and he apprehends on reasonable grounds that the use of force may be necessary to effect entry; or
(b) he apprehends on reasonable grounds that entry is likely to be refused and that the use of force may be necessary to effect entry;
an entry on to those premises shall only be effected under the authority of a warrant by virtue of Schedule 8.
(5) No answer given by a person in pursuance of a requirement imposed under paragraph (2)(g) shall be admissible in evidence in Northern Ireland against that person in any proceedings.
(6) Nothing in this regulation shall be taken to compel the production by any person of a document of which he would on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the High Court.
(7) In this regulation "warrant" means a warrant under the provisions set out in Schedule 8 as applied by paragraph (4).
PART VII
GROUPS OF COMPANIES AND MID-YEAR CHANGES
Groups of companies
29.
The provisions of Schedule 9 shall apply with regard to groups of companies as defined in that Schedule.
Mid-year changes
30.
The provisions of Schedule 10 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 VIII
COMPETITION 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 Article 3(6)(b) of the Order; 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 purposes of the Director's advice under paragraph (3) or (8) 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).
(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 serve notice in writing to the Department, and to the operator of the scheme to that effect.
(6) The Secretary of State shall send a copy of any notice served under paragraph (5) 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).
(8) Subject to paragraph (9), 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 advice the Secretary of State of his opinion and the reasons therefore.
(9) Paragraph (8) shall not require the Director to repeat advice in respect of any scheme which he has previously given under paragraphs (3) or (8) 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 serving a notice under paragraph (5) 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 serve notice on the operator of the scheme to that effect.
(11) The Secretary of State shall send a copy of any notice given under paragraph (10) 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 IX
THE RESTRICTIVE TRADE PRACTICES ACT 1976
The 1976 Act
32.
- (1) In this Part "the 1976 Act" means the Restrictive Trade Practices Act 1976[6].
(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) 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.
Agreement 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 Article 3(6) of the Order;
he may give a direction to the Director requiring him not to make an application to the Court under Part I 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); 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),
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 I 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 I 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).
(7) The Director shall not make an application to the Court under Part I 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 X
OFFENCES
Offences and penalties
34.
- (1) Subject to paragraph 5 of Schedule 9, a producer who contravenes a requirement of -
(a) subject to paragraph (2), 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) 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 Department 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, 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 the Department 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) shall be liable -
(a) on summary conviction to a fine not exceeding the statutory maximum; or
(b) on conviction on indictment, to a fine.
Sealed with the Official Seal of the Department of the Environment on
L.S.
R. W. Rogers
Assistant Secretary
12th March 1999.
Notes:
[6]
1976 c. 34back
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