2010 No. 2287 (W.199)

AGRICULTURE, WALES

The Feed (Sampling and Analysis and Specified Undesirable Substances) (Wales) Regulations 2010

Made

Laid before the National Assembly for Wales

Coming into force

The Welsh Ministers make the following Regulations in exercise of the powers conferred by sections 66(1), 67(5), 74A, 79(9) and 84 of the Agriculture Act 1970 F1, and under section 2(2) of the European Communities Act 1972 F2.

The Welsh Ministers are designated for the purposes of section 2(2) in relation to measures in the veterinary and phytosanitary fields for the protection of public health F3, the common agricultural policy of the European Union F4 and measures relating to feed produced for or fed to food-producing animals F5.

There has been consultation during the preparation of these Regulations in accordance with the requirements of section 84(1) of the Agriculture Act 1970 or, as appropriate, of Article 9 of Regulation (EC) No. 178/2002 of the European Parliament and of the Council laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety F6.

Annotations:
Amendments (Textual)
F1

1970 c. 40. Section 66(1) contains definitions of the expressions “the Ministers”, “prescribed” and “regulations”. The definition of “the Ministers” was amended by the Transfer of Functions (Wales) (No. 1) Order 1978 (S.I. 1978/272), Schedule 5, paragraph 1. Functions of “the Ministers”, so far as exercisable in relation to Wales, were transferred to the National Assembly for Wales by the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672) and thereafter transferred to the Welsh Ministers by paragraph 30 of Schedule 11 to the Government of Wales Act 2006 (2006 c. 32).

F4

S.I. 2005/2766. Functions of the National Assembly for Wales under this designation and the designation under S.I. 2005/1971 were transferred to the Welsh Ministers by paragraphs 28 and 30 of Schedule 11 to the Government of Wales Act 2006.

F6

OJ No. L31, 1.2.2002, p.1, as last amended by Regulation (EC) No. 596/2009 of the European Parliament and of the Council adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468 with regard to the regulatory procedure with scrutiny: Adaptation to the regulatory procedure with scrutiny — Part Four (OJ No. L188, 18.7.2009, p.14).

PART 1 General and introductory

Title, application and commencement1

The title of these Regulations is the Feed (Sampling and Analysis and Specified Undesirable Substances) (Wales) Regulations 2010, they apply in relation to Wales and come into force on 11 October 2010.

Interpretation2

1

In these Regulations—

  • the Act” (“y Ddeddf”) means the Agriculture Act 1970;

  • Regulation 152/2009” (“Rheoliad 152/2009”) means Commission Regulation (EC) No. 152/2009 laying down the methods of sampling and analysis for the official control of feed F7;

  • the Feed Hygiene Regulations” (“y Rheoliadau Hylendid Bwyd Anifeiliaid”) means the Feed (Hygiene and Enforcement) (Wales) Regulations 2005 F8;

  • the GM Feed Regulations” (“y Rheoliadau Bwyd Anifeiliaid AE”) means the Genetically Modified Animal Feed (Wales) Regulations 2004 F9; and

  • analyst” (“dadansoddwr”) means an agricultural analyst or deputy agricultural analyst.

2

Any expression used in these Regulations and Regulation 152/2009 has the meaning that it bears in Regulation 152/2009.

3

Any reference to a numbered section is a reference to the section so numbered in the Act as modified by these Regulations.

Prescribed metric substitution3

For the purposes of its application to feeding stuffs, the Act is to be read as if—

a

in section 68(2)(b) the words “to sales in quantities of not more than 25 kilograms” were substituted for the words “ to sales of small quantities (that is to say, sales in quantities of not more than fifty six pounds or the prescribed metric substitution) ”; and

b

in section 76(5) the words “six kilograms” were substituted for the words “ fourteen pounds or the prescribed metric substitution ”.

PART 2 Miscellaneous requirements relating to sampling and analysis

Methods of sending a final sampleF134

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Qualifications of analystsF145

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Analysis other than in the course of official controlsF156

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Form of certificate of analysisF167

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PART 3 Amendment and modification of other legislation with regard to sampling and analysis

Amendment or modification of the Act8

The Act is amended or as the case may be modified in accordance with regulations 9 to 20.

9

In section 66(1) (interpretation of Part IV) insert at the appropriate place the following definitions— “ “final sample” has the meaning that it bears in Annex I to Regulation 152/2009; ”;

Regulation 152/2009” means Commission Regulation (EC) No. 152/2009 laying down the methods of sampling and analysis for the official control of feed;

10

Section 68 (duty of seller to give statutory statement) in so far as it applies in relation to feeding stuffs will apply as if—

a

in subsection (4)(b) “final sample” were substituted for “ sampled portion ”; and

b

in subsection (5)—

i

“final sample” were substituted for “ sample taken from the portion in question ”, and

ii

“in accordance with Regulation 152/2009” were substituted for “ in the prescribed manner ”.

11

Section 69 (marking of material prepared for sale) in so far as it applies in relation to feeding stuffs will apply as if—

a

in subsection (4)(c) “final sample” were substituted for “ sampled portion ”; and

b

in subsection (5) “final sample in question” were substituted for “ sample taken from the portion in question ”.

12

Section 70 (use of names or expressions with prescribed meanings) in so far as it applies in relation to feeding stuffs will apply as if–

a

in subsection (2) “final sample” were substituted for “ sampled portion ”; and

b

in subsection (4)—

i

“final sample” were substituted for “ sampled portion ”, and

ii

“that sample” were substituted for “ the sample taken from that portion ”.

13

Section 71 (particulars to be given of certain attributes if claimed to be present) in so far as it applies in relation to feeding stuffs will apply as if—

a

in subsection (2)(b) “final sample” were substituted for “ sampled portion ”; and

b

in subsection (3)—

i

“final sample” were substituted for “ sampled portion ”, and

ii

“that sample” were substituted for “ the sample taken from that portion ”.

14

In section 73 (deleterious ingredients in feeding stuff)—

a

in subsection (1)—

i

for “sampled portion” substitute “ final sample ”, and

ii

omit “the sample taken from”; and

b

in subsections (2)(a) and (b), (2A) and (3)(b) in each case for “sampled portion” substitute “ final sample ”.

15

In section 73A—

a

in subsection (1)—

i

for “sampled portion” substitute “ final sample ”, and

ii

omit “the sample taken from”; and

b

in subsections (2)(a) and (b) and (3) in each case for “sampled portion” substitute “ final sample ”.

16

Section 75 (purchaser's right to have sample taken and analysed) in so far as it applies in relation to feeding stuffs will apply as if in subsection (1) “in accordance with Regulation 152/2009” were substituted for “ in the prescribed manner ”.

17

Section 76 (inspector's power to enter premises and take samples) in so far as it applies in relation to feeding stuffs will apply as if—

a

in subsection (1) “in accordance with Regulation 152/2009” were substituted for “ in the prescribed manner ”; and

b

for subsection (4) the following were substituted—

4

Without prejudice to any other power or duty as to the taking of samples, an inspector may for the purposes of this Part of this Act take a sample of any material which has been sold for use as a feeding stuff or which he has reasonable cause to believe to be intended for sale as such.

18

Section 77 (division of samples and analysis by agricultural analyst) in so far as it applies in relation to feeding stuffs will apply as if—

a

for subsection (1) the following were substituted—

1

Where an inspector has taken a sample and prepared and packaged final samples in accordance with Regulation 152/2009 the inspector, in addition to sending a final sample to the agricultural analyst for the inspector's area in accordance with the requirements of paragraph 8 of Annex I to that Regulation—

a

shall send one final sample—

i

where the sample was taken pursuant to the request of a purchaser under section 75 of this Act, to the seller or his agent;

ii

in any other case, to the person on whose premises the sample was taken, or, if the person on whose premises the sample was taken purchased the material in question for use and not for resale, to the seller or his agent; and

b

subject to section 78 of this Act, shall retain at least one final sample for nine months.

b

for subsection (2) the following were substituted—

2

If the person who manufactured any material of which an inspector has taken a sample as mentioned in subsection (1) is not a person to whom a final sample is required to be sent under that subsection, the inspector shall send a final sample to the manufacturer unless he does not know and is unable after making reasonable inquiries to ascertain before the expiration of fourteen days from the date when the sample was taken—

a

the manufacturer's name; or

b

any address of the manufacturer in the United Kingdom.

c

in subsection (3)—

i

“final sample” were substituted for “ part of a sample ”, and

ii

“in accordance with Regulation 152/2009” were substituted for “ in the prescribed manner ”; and

d

in subsection (4)—

i

“final sample” were substituted in each case for “ part of a sample ” or “ part of the sample ” as the case may be,

ii

“in such manner, if any, as may be prescribed” were omitted,

iii

“subsection (1)” were substituted for “ subsection (1)(a) ”, and

iv

in paragraph (b) “subsection (1)(a)(ii)” were substituted for “ subsection (1)(b)(ii) ”.

19

Section 78 (further analysis by Government Chemist) in so far as it applies in relation to feeding stuffs will apply as if—

a

in subsection (1)—

i

for paragraph (a) the following were substituted—

a

to send the final sample retained by the inspector under section 77(1)(b) of this Act (as that section is modified by regulation 18(a) of the Feed (Sampling and Analysis and Specified Undesirable Substances) (Wales) Regulations 2010) (“the retained sample”) to the Government Chemist for analysis;

ii

in paragraph (b) “retained sample” were substituted for “ remaining part ” and “that sample” were substituted for “ that part ”;

b

in subsection (2)—

i

“in accordance with Regulation 152/2009” were substituted for “ in the prescribed manner ”,

ii

in paragraph (a)(i) “retained sample” were substituted for “ remaining part of the sample ”,

iii

in paragraph (a)(ii) “retained sample, whether that sample” were substituted for “ remaining part, whether that part ”, and

iv

in paragraph (b) “the retained sample” were substituted for “ that remaining part ”;

c

in subsection (4)—

i

“in accordance with Regulation 152/2009” were substituted for “ in the prescribed manner ”, and

ii

“retained sample” were substituted for “ remaining part of the sample ”;

d

in subsection (5)—

i

“part of a” were omitted,

ii

in paragraph (a) “part of the” were omitted, and

iii

in paragraph (b) “the retained sample” were substituted for “ the part ”; and

e

in subsection (6)—

i

“in such manner, if any, as may be prescribed any part of” were omitted, and

ii

“the sample” were substituted for “ the part ”.

20

Section 79 (supplementary provisions relating to samples and analysis) in so far as it applies in relation to feeding stuffs will apply as if in subsection (3)–

a

“ is specified by Regulation 152/2009 or ” were inserted after “quality of any material”; and

b

“the method so specified or prescribed” were substituted for “ the method prescribed ”.

Amendment of the Feed Hygiene RegulationsF1721

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Amendment of the Genetically Modified Animal Feed (Wales) Regulations 2004F1822

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Amendment of the Official Feed and Food Controls (Wales) Regulations 2009F1923

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Revocation24

The Feeding Stuffs (Sampling and Analysis) Regulations 1999 F10 are revoked.

PART 4 Undesirable substances

Amendment of the Feeding Stuffs (Wales) Regulations 200625

1

The Feeding Stuffs (Wales) Regulations 2006 F11 are amended in accordance with paragraphs (2) and (3).

2

In paragraph (9) of regulation 14 (control of products intended for animal feed containing undesirable substances), for the expression “is within the limit specified in the relevant entry in column 3” substitute “ is less than 2 parts per million ”.

3

In Schedule 5 (prescribed limits for undesirable substances)—

a

in Chapter A, for the entries relating to arsenic substitute the entries set out in Schedule 2 to these Regulations;

b

in Chapter B, for the entries relating to castor oil plant (Ricinus communis L.) substitute the entries set out in Schedule 3 to these Regulations; and

c

in Chapter C—

i

for the entries relating to theobromine substitute the entries set out in Schedule 4 to these Regulations,

ii

omit the expression “Croton – Croton tiglium L.”, and

iii

for the expression “Datura stramonium L.” substitute “ Datura sp. ”.

Gwenda ThomasDeputy Minister for Social Services, under authority of The Minister for Health and Social Services, one of the Welsh Ministers

F12SCHEDULE 1Form of Certificate of Analysis

Regulation 7

Annotations:

Image_r00001

F12

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F121

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F122

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F123

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F124

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F125

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F126

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F127

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F128

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SCHEDULE 2Entries to be substituted in Chapter A of Schedule 5 to the Feeding Stuffs (Wales) Regulations 2006

Regulation 25(3)(a)

Column 1

Column 2

Column 3

Undesirable substances

Products intended for animal feed

Maximum content in mg/kg of feeding stuffs referred to a moisture content of 12%

Arsenic

Feed materials

2

 

except:

 

 

— meal made from grass, from dried lucerne or from dried clover, and dried sugar beet pulp and dried molasses sugar beet pulp

4

 

— palm kernel expeller

4

 

— phosphates and calcareous marine algae

10

 

— calcium carbonate

15

 

— magnesium oxide

20

 

— feeding stuffs obtained from the processing of fish or other marine animals

25

 

— seaweed meal and feed materials derived from seaweed

40

 

Iron particles used as tracer

50

 

Additives belonging to the functional group of compounds of trace elements

30

 

except

 

 

— copper sulphate pentahydrate and copper carbonate

50

 

— zinc oxide, manganese oxide and copper oxide

100

 

Complete feeding stuffs

2

 

except

 

 

— complete feeding stuffs for fish and for fur-producing animals

10

 

Complementary feeding stuffs

4

 

except

 

 

— mineral feeding stuffs

12

 

 

Notes in respect of all entries incolumn 3:

 

 

The maximum contents refer to total arsenic.

 

 

The maximum contents refer to an analytical determination of arsenic, whereby extraction is performed in nitric acid (5% w/w) for 30 minutes at boiling point. Equivalent extraction procedures can be applied where it can be demonstrated that the procedure used has an equal extraction efficiency.

SCHEDULE 3Entries to be substituted in Chapter B of Schedule 5 to the Feeding Stuffs (Wales) Regulations 2006

Regulation 25(3)(b)

Column 1

Column 2

Column 3

Undesirable substances

Products intended for animal feed

Maximum content in mg/kg of feeding stuffs referred to a moisture content of 12%

Seeds and husks from Ricinus communis L., Croton tiglium L. and Abrus precatorius L. as well as their process derivatives (in so far as determinable by analytical microscopy), separately or in combination.

All feeding stuffs

10

SCHEDULE 4Entries to be substituted in Chapter C of Schedule 5 to the Feeding Stuffs (Wales) Regulations 2006

Regulation 25(3)(c)(i)

Column 1

Column 2

Column 3

Undesirable substances

Products intended for animal feed

Maximum content in mg/kg of feeding stuffs referred to a moisture content of 12%

Theobromine

Complete feeding stuffs except:

300

 

— complete feeding stuffs for pigs

200

 

— complete feeding stuffs for dogs, rabbits, horses and fur-producing animals

50

(This note is not part of the Regulations)

1

These Regulations provide for the execution in Wales of Commission Regulation (EC) No. 152/2009 laying down the methods of sampling and analysis for the official control of feed (OJ No. L54, 26.2.2009, p.1), (“the Commission Regulation”). The Commission Regulation repeals and re-enacts with certain amendments a large number of European directives concerning methods of sampling and analysis of feeding stuffs. The Regulations revoke (in relation to Wales) the Feeding Stuffs (Sampling and Analysis) Regulations 1999 (S.I. 1999/1663, amended by S.I. 2001/2253 (W.163), S.I. 2002/1797 (W.172), S.I. 2003/1677 (W.180), S.I. 2003/1850 (W.200), S.I. 2004/2734 (W.241), S.I. 2006/116 (W.14) and S.I. 2006/617 (W.69)), which implemented those directives, and re-enact those administrative provisions of the 1999 Regulations which need to be kept in force.

2

These Regulations also, in Part 4, amend the Feeding Stuffs (Wales) Regulations 2006 (S.I. 2006/116 (W.14), previous amending instruments are S.I. 2006/617 (W.69), S.I. 2006/2928 (W.263), S.I. 2006/3256 (W.296), S.I. 2007/3171 (W.277), S.I. 2008/1806 (W.174), S.I. 2009/106 (W.20) and S.I. 2009/2881 (W.254)), in order to implement Commission Directive 2009/141/EC amending Annex 1 to Directive 2002/32/EC of the European Parliament and of the Council as regards maximum levels for arsenic, theobromine, Datura sp., Ricinus communis L., Croton tiglium L. and Abrus precatorius L., (OJ No. L308, 24.11.2009, p.20) (“the Commission Directive”).

3

The Regulations put in place administrative and other measures for the execution of the Commission Regulation, in particular by—

a

providing for metric equivalents of imperial quantities mentioned in the Agriculture Act 1970 (regulation 3);

b

prescribing the methods of sending samples for analysis (regulation 4);

c

prescribing the required qualifications for agricultural analysts (regulation 5);

d

providing for the methods to be used where an analysis is carried out other than in the context of official controls (regulation 6); and

e

prescribing the form to be used for a certificate of analysis (regulation 7 and Schedule 1).

4

The Regulations in Part 3 make textual amendments to primary and secondary legislation in order to avoid any instances of overlap or inconsistency between the Commission Regulation and domestic legislation (regulations 8 to 23) and revoke the 1999 Regulations (regulation 24).

5

The Regulations implement the Commission Directive by amending provisions of the Feeding Stuffs (Wales) Regulations 2006 concerning undesirable substances in animal feeds, notably in relation to maximum permitted levels for the substances mentioned in the title to the Commission Directive as set out in paragraph 2 above (regulation 25 and Schedules 2, 3 and 4).

6

A regulatory impact assessment has been prepared as to the likely costs and benefits of complying with these Regulations and is available from the Food Standards Agency, 11th Floor, Southgate House, Cardiff CF10 1EW.