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Statutory Instrument 2003 No. 3294The Producer Responsibility Obligations (Packaging Waste) (Amendment) (England) Regulations 2003(The document as of February, 2008. Arhiv.Online Library) STATUTORY INSTRUMENTS2003 No. 3294ENVIRONMENTAL PROTECTION, ENGLANDThe Producer Responsibility Obligations (Packaging Waste) (Amendment) (England) Regulations 2003
Whereas the Secretary of State has consulted in accordance with section 93(2) of the Environment Act 1995[1] ("the Act") with such bodies and persons as appear to her to be representative of bodies or persons whose interests are, or are likely to be, substantially affected by these Regulations: And whereas the Secretary of State -
(b) is satisfied, in so far as these Regulations make other provision, as to the matters specified in section 93(6) of the Act in accordance with section 93(3) of the Act: And whereas the Secretary of State considers that making these Regulations exercises the power in sections 93, 94 and 95 of the Act in the manner required by section 93(6) of the Act:
(b) for the purposes of any provision of these Regulations relating to the obligations of any other person means -
(ii) SEPA, where at the beginning of the relevant year the person's registered office or principal place of business is in Scotland; or (iii) at the election of the person, either the Agency or SEPA, where at the beginning of the relevant year the person 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 either England or Wales and in Scotland;";
(b) aluminium; (c) steel; (d) paper/fibreboard; (e) plastic; or (f) wood; and packaging materials composed of a combination of any of those materials are to be treated as made of the material which is predominant by weight;";
(d) in the definition of "SIC Code" for the references to "1992" and "1997", in each case substitute "2003"; and (e) omit the definition of "special producer". (2) In regulation 2(2)(a) for "undertaking" substitute "condition".
(b) after paragraph (5A) insert -
(2) In regulation 4 omit paragraph (4).
(ii) for "Agency, being - " substitute "Agency."; and (iii) omit sub-paragraphs (a), (b) and (c); (b) omit paragraph (3)(a);
(g) in paragraph (4)(dd) -
(ii) for "a plan setting out the steps intended to be taken to comply with the producer's recovery and recycling obligations" substitute "an operational plan complying with Part IV of Schedule 4"; (h) in paragraph (5) -
(ii) at the end of sub-paragraph (b) omit "and"; and (iii) omit sub-paragraph (c); and (i) for paragraph (7) substitute -
(3) For regulation 7 substitute -
7.Registration of a producer shall be subject to the conditions that the producer will -
(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, within 28 days of the occurrence of any such change; (4) Omit regulation 8.
(ii) £90 for each of the 5th to the 20th subsidiaries inclusive; and (iii) £45 for each of the 21st and subsequent subsidiaries; and (b) on each resubmission of an application which is required by reason of its having failed to meet the requirements of regulation 6(4) or (7) on its previous submission, £220.". (6) In regulation 11 -
(b) in paragraph (1)(b)(i) for "undertakings referred to in regulation 7 and given to him by that Agency," substitute "conditions specified in regulation 7; or"; (c) in paragraph (1)(b)(ii) for "undertaking referred to in regulation 7, or with regulation 8" substitute "conditions specified in regulation 7"; (d) omit paragraph (1)(b)(iii); and (e) in paragraph (3) -
(ii) at the end of sub-paragraph (c), for the full stop substitute "; and"; and (iii) after sub paragraph (c), insert -
(7) In regulation 12 -
(ii) for "Agency, being - " substitute "Agency."; and (iii) omit sub-paragraphs (a), (b) and (c); (b) in paragraph (3)(c)(i) omit "class of";
(f) at the start of paragraph (3)(e) insert "on a first application for registration" and for "as provided in" substitute "complying with";
(j) after paragraph (4) insert -
(ii) any other information which demonstrates that the scheme is likely to subsist for a period of at least 5 years and will assist the objectives of the United Kingdom in relation to the recovery and recycling of packaging waste; and (b) be accompanied by the following documentation -
(ii) a copy of the rules with which a member of the scheme is obliged to comply; and (iii) a copy of the procedures under which the operator of the scheme would enforce the rules against a member of the scheme. (4B) An application for approval of a scheme by the Secretary of State shall be granted where the Secretary of State is satisfied that the scheme is likely to subsist for a period of at least 5 years and will assist the objectives of the United Kingdom in relation to the recovery and recycling of packaging waste, and shall otherwise be refused.
(b) a conviction of the operator of the scheme for an offence under these Regulations; or (c) a failure by the operator of the scheme to comply with the obligation referred to in regulation 3(5B). (4D) Where an application which is required by paragraph (4C) is not received by the due date, the Secretary of State may decide to withdraw approval of the scheme, and if he so decides shall serve written notice on the operator of the scheme of -
(b) the reasons for the decision; (c) the date when the withdrawal will take effect, not being earlier than 28 days from the date of the notice. (4E) The Secretary of State shall consider any representations made before the notice takes effect by the operator of the scheme, and may withdraw the notice under paragraph (4D) at any time.";
(l) in paragraph (6)(a) omit ", 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"; (m) in paragraph (7), for sub-paragraphs (a) and (b) substitute "be as accurate as reasonably possible"; and (n) omit paragraph (8). (8) In regulation 13 -
(b) in paragraph (d)(iv) for "regulations 12(3)(c) or 14" substitute "regulation 12(3)(c)";
(h) that the operator of the scheme will on or before 31st January in a relevant year provide to the appropriate Agency a revised version of the operational plan for the scheme.". (9) Omit regulation 14.
(ii) £90 for each of the 5th to 20th subsidiaries inclusive; and (iii) £45 for each of the 21st and subsequent subsidiaries;"; (b) in the case of an application which is received after 7th April in any year, £110; and (11) In regulation 17(1) -
(b) at the end of sub-paragraph (b)(i) insert "or"; (c) in sub-paragraph (b)(ii) omit ", or with regulation 14, or"; and (d) omit sub-paragraph (b)(iii). (12) Insert after regulation 17 -
17A. - (1) This regulation applies to information which -
(b) is information which the operator of the scheme will need to rely upon for the purposes of his application for registration of a scheme under regulation 12. (2) A producer who provides to the operator of the scheme information to which this regulation applies shall -
(b) ensure that the form is signed by the approved person; and (c) ensure that the information is as accurate as reasonably possible.". Amendment of Part IV (Registration of Schemes - Appeals)
18. - (1) A producer may appeal to the Secretary of State against a decision of the appropriate Agency -
(b) to cancel registration under regulation 11(1). (2) The operator of the scheme may appeal to the Secretary of State against a decision of the appropriate Agency -
(b) to cancel registration under regulation 17(1). (3) A reprocessor or exporter may appeal to the Secretary of State against a decision of the appropriate Agency -
(b) to specify a condition pursuant to paragraph 1(n)(iii) of Schedule 2A; or (c) to cancel accreditation under regulation 21D.". (3) In regulation 19(2) -
(b) omit all the words after "form of a hearing". (4) In regulation 21, for "regulation 17(1), the decision to cancel registration" substitute "regulations 11(1), 17(1) or 21D, the decision appealed against". Requirement for accreditation 21A. - (1) A person shall not at any time after 31st December 2004 issue a PRN unless he is at the time of the issue an accredited reprocessor and the PRN relates to packaging waste received by him for reprocessing on the site for which he is accredited. (2) A person shall not at any time after 31st December 2004 issue a PERN unless he is at the time of the issue an accredited exporter and the PERN relates to packaging waste exported by him for reprocessing outside the United Kingdom. Application for accreditation 21B. - (1) An application for accreditation shall be made to the appropriate Agency -
(ii) as an exporter, in respect of the export of one or more recyclable materials for reprocessing in one or more applicable recovery operations outside the United Kingdom; (b) before 30th September in the year immediately prior to that for which the reprocessor or exporter wishes to be accredited, the latter being a year not earlier than the year 2005;
(ii) arrangements for the collection and sorting of packaging waste; and (iii) the strategy, including communications, to be adopted in order to achieve the matters described in (i) and (ii) above; and (e) accompanied by a fee of -
(ii) in any other case, £2,590. (2) The appropriate Agency shall -
(ii) an exporter, to issue PERNs for the export of one or more specified recyclable materials for reprocessing in one or more applicable recovery operations outside the United Kingdom, and in each case subject to the conditions imposed by or under regulation 21C; or (3) The appropriate Agency shall, unless otherwise agreed with the applicant, notify him in writing of its decision under paragraph (2) before 30th November in the year in which the application is made.
(b) the person who is accredited has knowingly supplied false information in his application for accreditation made under regulation 21B or in connection with compliance with any of the conditions specified in or under Schedule 2A. (2) Before suspending or cancelling an accreditation under paragraph (1), the appropriate Agency shall serve on the reprocessor or exporter concerned written notice of -
(b) the reasons for the decision; (c) the right of appeal under Part IV of these Regulations; (d) the date when the cancellation or suspension will take effect, not being earlier than 28 days from the date of the notice; and (e) in the case of a notification of suspension, the period of the suspension or any steps which are required to be taken in order to bring the suspension to an end. (3) The accreditation of a reprocessor or exporter shall be deemed to be cancelled -
(ii) the person who is accredited ceases to be a reprocessor or exporter; or (b) in a case where the person who is accredited requests that his accreditation should be cancelled, with effect from the date for cancellation specified by that person. (4) For the purposes of paragraph (3) "relevant authorisation" means -
(b) a waste management licence granted under section 36 of the 1990 Act[5]; or (c) an exemption registered under regulation 18 of the Waste Management Licensing Regulations 1994[6].". Amendment of Part V (Records, Returns and Certificate)
(ii) in sub-paragraph (a), for "provided to a reprocessor" substitute "delivered respectively for recycling and for recovery"; (iii) in sub-paragraph (b) omit "and,"; (iv) at the end of sub-paragraph (c) insert "and"; and (v) after sub-paragraph (c) insert -
(e) the number of PRNs or PERNs acquired; and (f) a statement which demonstrates how the producer has complied with his operational plan (where he has one) for the period in question."; (b) in paragraph (3) omit "for the year 1998 and subsequent years,". (2) In regulation 24 -
(ii) for sub-paragraphs (a) and (b) substitute "on or before 31st January in the year immediately following the year to which the information relates"; (b) omit paragraph (2);
(ii) in sub-paragraph (a) after "provided" insert "respectively for recycling and for recovery"; (iii) at the end of sub-paragraph (c) omit "and"; (iv) for sub-paragraph (d) substitute -
(e) the total number of tonnes of each material which is the subject of both the recovery and recycling obligations for which the operator of the scheme is responsible under regulation 3(5B); (f) the number of PRNs or PERNs acquired by the operator of the scheme; and (g) a statement which demonstrates how the scheme has complied with its operational plan in the period in question."; and (d) in paragraph (4) for the words "for the year 1998 and subsequent years packaging materials" substitute "packaging material". Amendment of Part VI (Agencies' Powers and Duties)
(c) compliance by persons who are accredited reprocessors or exporters with the conditions specified in or under Schedule 2A."; (b) in paragraph (2) -
(ii) in sub-paragraph (c) omit "or Part V of Schedule 3"; (iii) in sub-paragraph (e) for "regulations 12 and 14" substitute "regulation 12"; and (iv) after sub-paragraph (f) insert -
(c) in paragraph (3) -
(ii) at the end of sub-paragraph (b), for the comma substitute "; or"; and (iii) after sub-paragraph (b) insert -
(2) In regulation 25A -
(b) for paragraph (a) substitute -
(3) For paragraph (1) of regulation 26 substitute -
(b) the reprocessors and exporters accredited by it in accordance with Part IVA, and containing the relevant information prescribed in Schedule 7.". (4) In regulation 27 after "compliance" insert "and signing the form referred to in regulation 6(4)(c) or 17A(2) (as the case may be)".
(ii) omit sub-paragraphs (b) and (c); and (iii) in sub-paragraph (g), for "regulations 22 and 24 and Part V of Schedule 3" substitute "regulations 21C, 22 and 24"; and (b) in paragraph (3) for "the appropriate Agency's servant or agent" substitute "a person authorised under paragraph (1) of this regulation". Amendment of Part X (Offences)
(2B) A person who contravenes a requirement of regulation 21A or who is in breach of either of the conditions specified in paragraph 1(a) or (b) of Schedule 2A is guilty of an offence."; and
(b) furnishes such information recklessly and it is false or misleading in a material particular. (3A) A person who fails without reasonable excuse to comply with any requirement imposed in a notice under regulation 25(3) shall be guilty of an offence.". Amendment of Schedule 1 (Producers)
(b) in paragraph 4(1)(c) -
Amendment of Schedule 2 (Recovery and Recycling Obligations)
(b) in the years 2007 and 2008, not less than 95%, of the amount by tonnage of packaging waste represented by "Z" in sub-paragraph (1) above;";
(b) for the year 2005 65%; (c) for the year 2006 67%; (d) for the year 2007 69%; and (e) for the year 2008 70%."; (c) for paragraph 5 substitute -
Table: Recycling targets
Insertion of new Schedule 2A (Conditions of Accreditation) 1.The conditions referred to in regulation 21C are the following -
(b) all PRNs and PERNs which have not been issued before 1st February of the year following that in which the packaging waste to which they relate was received shall be returned to the appropriate Agency before 15th February immediately following that 1st February; (c) PRNs shall be issued for no more than the total amount of packaging waste which -
(ii) will be capable of being reprocessed on the site for which he is accredited by not later than the end of the year following that for which he is accredited; (d) PERNs shall be issued for no more than the total amount of packaging waste which an accredited exporter exports for reprocessing in the year for which he is accredited;
(ii) the tonnage of packaging waste reprocessed in that quarter; and (iii) the number of PRNs or PERNs issued in that quarter together with copies of those notes; (l) a report shall be provided to the appropriate Agency before 28th February in each year which sets out -
(ii) the amount of revenue received in the previous year from the sale of PRNs or PERNs and a statement of what it has been spent on; (m) except in the case of a reprocessor or exporter who has made the undertaking specified in regulation 21B(1)(e)(i), a report shall be provided to the appropriate Agency before 28th February in any year which -
(ii) demonstrates that the PRNs or PERNs issued by the reprocessor or exporter in the previous year are consistent with the tonnage of packaging waste received or exported for that year; (n) a reprocessor or exporter must -
(ii) undertake sampling and inspection of packaging waste received or exported, in accordance with a plan approved by the appropriate Agency; and (iii) comply with such other conditions as the appropriate Agency may specify in the notification of a grant of accreditation. 2.For the purposes of this Schedule -
(b) "quarter year" means the first, second, third and fourth three months of the year; and (c) "independent auditor" means an auditor who would be eligible for appointment as company auditor of the reprocessor or exporter under Part II of the Companies Act 1989[7].". Amendment of Schedule 3 (Definitions of Waste, Recovery and Special Producers)
(b) in the shoulder note for the reference to "Regulation 12(3)(d) and (e)" substitute "Regulations 6(4)(dd) and 12(3)(d) and (e)"; (c) in paragraph 11 -
(ii) in sub-paragraph (a) for "scheme's members referred to in regulation 4(1)(b) to be discharged through the scheme" substitute "producer or the obligation of the operator of the scheme under regulation 3(5B) (as the case may be)."; (iii) for sub-paragraph (b) substitute -
(v) in sub-paragraph (d) for "of its members referred to in regulation 4(1)(b)" substitute "or the obligation of the operator of the scheme under regulation 3(5B) (as the case may be)"; (vi) in sub-paragraph (d)(iii) omit "who is a member of the scheme"; (vii) at the end of sub-paragraph (d)(v) omit "and"; (viii) in sub-paragraph (e) for "of the scheme's members" substitute "or the obligation of the operator of the scheme under regulation 3(5B) (as the case may be)" and for "any member of the scheme, or any other producer" substitute "any producer"; and (ix) after sub-paragraph (e) insert -
(g) the quantity of packaging waste which is expected to be acquired during the three years immediately following registration; (h) the amounts to the nearest tonne of the recovery and recycling obligations in respect of each recyclable material that are expected to have to be discharged in each of the three years immediately following registration; (i) a statement indicating the contracts anticipated to be made with reprocessors and packaging waste suppliers in the three years immediately following registration; (j) a statement as to the purposes for which it is intended to apply funds supplied to reprocessors for the acquisition of PRNs or PERNs in the three years immediately following registration, including the amounts to be applied to the following matters -
(ii) encouraging the development of markets for materials or goods made from recycled packaging waste; (iii) the strategy, including communications, to be adopted in order to achieve the objectives described in heads (i) and (ii) above. Amendment of Schedule 5 (Procedure on appeals)
(b) in sub-paragraph (2)(b), for "regulation 16" substitute "regulation 6(5) or 16"; and (c) in sub-paragraph (2)(c), for "regulation 17(1)" substitute "regulation 11 or 17". (3) In paragraph 2(1) for "6 months" substitute "2 months".
Substitution of Schedule 7 (Public Register) 1.The name and address of the registered office or principal place of business of -
(b) each registered operator of a scheme and each member of the scheme for which he is the operator; and (c) each accredited reprocessor and accredited exporter. 2.A statement in relation to each registered producer and each relevant year as to whether a certificate of compliance has been furnished. Amendment of Schedule 9 (Mid-year Changes) (This note is not part of the Regulations) These Regulations amend the Producer Responsibility Obligations (Packaging Waste) Regulations 1997 (the "1997 Regulations"), which imposed on producers, and, on their behalf, operators of schemes, obligations to recover and recycle specified tonnages of packaging waste, and related obligations, in order to attain the targets in Article 6(1) of Directive 94/62/EC ( the "Directive") which had to be met in 2001. A revision of the Directive which will set new targets to be met in 2008 is presently being negotiated and is expected to be agreed by the end of 2003. In order to ensure that the absence of targets higher than those presently in the 1997 Regulations does not prejudice the United Kingdom`s ability to increase its rates of recovery and recycling sufficiently to meet the new Directive targets in 2008, these Regulations set interim domestic targets and recovery and recycling obligations which take account of the probable new targets which the United Kingdom is likely to have to meet in 2008. Regulation 4 makes amendments to regulation 2 of the 1997 Regulations by way of inserting a number of new definitions and amending others. Regulation 5 introduces a new obligation of operators of schemes to take reasonable steps to discharge the recovery and recycling obligations which the members of the schemes would have had but for their membership of the schemes. Regulation 6 makes a number of amendments to Part III of the 1997 Regulations concerning registration, including in particular -
(b) provision for the appropriate Agency to include additional information requirements within the application form; (c) requirements for producers above certain turnover and tonnage thresholds and for operators of schemes to comply with the operational plans they are required to have submitted; (d) alignment of the conditions of registration applying to producers and operators of schemes; (e) a change in the date by which revised operational plans are to be submitted to 31st January in each year; (f) the introduction of new charges are as follows -
- £180 for each of the first 4 subsidiaries; - £90 for the 5th to the 20th subsidiaries; - £45 for the 21st and subsequent subsidiaries. (ii) for late producer or scheme applications for registrations and for those requiring data correction and resubmission, £220 per registration for each occurrence; (g) a requirement on operators of schemes to submit monitoring plans relating to the steps they propose to take to ensure the accuracy of the information they receive from scheme members; Regulation 7 introduces rights of appeal for producers and for reprocessors and exporters. Notes: [1]1995 c. 25; see the definitions of "prescribed" and "regulations" section 93(8). The functions of the Secretary of State under section 93 to 95, insofar as they relate to Scotland, were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c. 46). In relation to Wales, those functions were transferred to the National Assembly for Wales (see article 2 of, and the entry relating to the Environment Act 1995 in Schedule 1, to the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1996/672)).back [2]The relevant obligation is Article 6(1) of European Parliament and Council Directive 94/62/EC on packaging and packaging waste (OJ No L365, 31.12.94, p 10); the Directive was amended with effect from 20th November 2003 in Article 21 (Committee Procedure) by paragraph 53 of Annex III (Regulatory Procedure) to Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ No L284, 31.10.2003, p 1).back [3]S.I. 1997/648. These Regulations have been amended in relation to Great Britain by S.I. 1999/1361 and 1999/3447, in relation to England and Wales by S.I. 2000/3375, and in relation to England by S.I. 2002/732. These regulations have also been amended in relation to Scotland and Wales.back [4]S.I. 2000/1973, to which there are amendments not relevant to these Regulations.back [5]The Environmental Protection Act 1990 (c. 43).back [6]S.I. 1994/1056, amended by S.I. 1995/288, 1996/593, 1998/606, 2000/1973; there are other amending instruments but none is relevant.back [7]1995 c. 40; see Part II.back ISBN0 11 048419 3 -- Back--
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