2003 No. 353
FOOD
Food (Brazil Nuts) (Emergency Control) Regulations (Northern Ireland) 2003
Made 25th July 2003
Coming into operation 28th July 2003

The Department of Health, Social Services and Public Safety, being a Department designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to the common agricultural policy of the European Community, in exercise of the powers conferred on it by the said section 2(2) and of all other powers enabling it in that behalf, hereby makes the following Regulations:
S.I.2000/2812
1972 c. 68

1 Citation and commencement
These Regulations may be cited as the Food (Brazil Nuts) (Emergency Control) Regulations (Northern Ireland) 2003 and shall come into operation on 28th July 2003.

2 Interpretation
1 In these Regulations –
“Brazil nuts” means Brazil nuts in shell falling within CN code 0801 21 00 originating in or consigned from Brazil;
“the Commission Decision” means Commission Decision 2003/493/EC imposing special conditions on the import of Brazil nuts in shell originating in or consigned from Brazil;
“the Department” means the Department of Health, Social Services and Public Safety;
“Directive 98/53/EC” means Commission Directive 98/53/EC laying down the sampling methods and the methods of analysis for the official control of the levels for certain contaminants in foodstuffs as amended by Commission Decision 2002/27/EC;
“free circulation” has the same meaning as in Article 23.2, as read with Article 24, of the Treaty establishing the European Community; and
“the Order” means the Food Safety (Northern Ireland) Order 1991 and, subject to paragraph (2), any expression used both in these Regulations and in the Order has the meaning it bears in the Order;
O.J. No. L168, 5.7.2003, p. 33
O.J. No. L201, 17.7.1998, p. 93
O.J. No. L75, 16.3.2002, p. 44
S.I.1991/762 (N.I.7) as amended by S.I.1996/1633 (N.I.12) and paragraphs 26 to 42 of Schedule 5 and Schedule 6 to the Food Standards Act 1999 c. 28
2 Any term used in the definition of “Brazil nuts” in paragraph (1) has the same meaning as in the Commission Decision.
3 The Interpretation Act (Northern Ireland) 1954 shall apply to these Regulations as it applies to an Act of the Northern Ireland Assembly.
1954 c. 33 (N.I.)

3 Prohibition on import
1 Subject to paragraph (3), no person shall import any Brazil nuts unless –
(a) the conditions specified in Articles 1.1, 4.1 and 2 and 5 of the Commission Decision are satisfied in relation to those Brazil nuts; or
(b) the derogation contained in Article 1.2 of the Commission Decision (which is concerned with consignments which left Brazil prior to 1st July 2003) is satisfied in relation to them.
2 Subject to paragraph (3), no person shall import any Brazil nuts except through a point of entry listed in Annex II to the Commission Decision.
3 Neither paragraph (1) nor paragraph (2) shall be taken to prohibit the import from a member State of any Brazil nuts which are in free circulation in that State.
4 Any person who knowingly contravenes paragraph (1) or (2) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months.

4 Enforcement
1 These Regulations shall be enforced and executed by each district council within its district.
2 For the purposes of the exercise of the duty referred to in paragraph (1) an authorised officer shall –
(a) ensure that the requirements referred to in paragraph (3) are adhered to; and
(b) have the same powers of entry as are bestowed on an authorised officer by Article 33 of the Order for purposes connected with the Order or Regulations or orders made under the Order.
3 The requirements are those specified in –
(a) Articles 1.1 and 4.1 of the Commission Decision (which are concerned with documentary checks relating to consignments of Brazil nuts);
(b) Article 4.2 and 4 of that Decision (which is concerned with the sampling and analysis of such consignments); and
(c) Article 5 of that decision (which is concerned with the case where consignments are split).
4 Each district council shall give such assistance and information to the Department and the Food Standards Agency as they may reasonably request in connection with the execution and enforcement of these Regulations.

5 Application of various provisions of the Food Safety (Northern Ireland) Order 1991 and sampling and analysis
1 The following provisions of the Order shall apply for the purposes of these Regulations and any reference in those provisions to the Order shall be construed for the purposes of these Regulations as a reference to these Regulations –
(a) Article 19 (offences due to fault of another person);
(b) Article 34 (obstruction, etc., of officers); and
(c) Article 36(1) (punishment of offences), in so far as it relates to offences under Article 34(1) and (2) as applied by sub–paragraph (b).
2 Article 29 of the Order (procurement of samples) shall apply for the purposes of these Regulations with the modifications that –
(a) for paragraph (b)(ii) there shall be substituted the following provision –
(ii) is found by him at any premises which he is authorised to enter by virtue of regulation 4(2)(b) of the Food (Brazil Nuts) (Emergency Control) Regulations (Northern Ireland) 2003”;
(b) the power to take samples under paragraphs (b) and (d) shall be limited to the taking of samples in accordance with the methods of taking samples described or referred to in Annex I to Directive 98/53/EC;
(c) paragraph (c) shall be omitted; and
(d) for “any of the provisions of this Order or of regulations or orders made under it” in paragraph (d) there shall be substituted “the Food (Brazil Nuts) (Emergency Control) Regulations (Northern Ireland) 2003”.
3 Where, pursuant to Article 29(b) of the Order as applied for the purposes of these Regulations by paragraph (2), an authorised officer has taken a sample of any Brazil nuts, he shall ensure that –
(a) the sample is prepared in accordance with –
(i) paragraphs 1.1, 2 and 3 of Annex II to Directive 98/53/EC, and
(ii) in the case of whole nuts, paragraph 1.2 of that Annex;
(b) an analysis of the sample is carried out at a laboratory which complies with Council Directive 93/99/EEC on the subject of additional measures concerning the official control of foodstuffs;
O.J. No. L290, 24.11.93, p. 14
(c) that analysis is carried out as soon as practicable by a suitably qualified analyst in accordance with methods of analysis which –
(i) so far as practicable, comply with paragraphs 1 and 2 of the Annex to Council Directive 85/591/EEC concerning the introduction of Community methods of sampling and analysis for the monitoring of foodstuffs intended for human consumption, and
O.J. No. L372, 31.12.85, p. 50
(ii) meet the criteria specified in paragraph 4.3 of Annex II to Directive 98/53/EC as read with the notes thereto; and
(d) the reporting of the result of that analysis –
(i) makes use of the definitions in paragraph 4.1 of Annex II to Directive 98/53/EC, and
(ii) is in accordance with paragraph 4.4 of that Annex.
4 Before an analyst agrees to analyse a sample in accordance with paragraph (3)(c) he may demand the payment in advance of such reasonable fee as he may require.
5 An analyst who has analysed a sample in accordance with paragraph (3)(c) shall give to the person by whom it was submitted a certificate which shall both specify the result of the analysis and be signed by the analyst.
6 In any proceedings under these Regulations, the production by one of the parties of –
(a) a document purporting to be a certificate given by an analyst under paragraph (5); or
(b) a document supplied to him by the other party as being a copy of such a certificate,
shall be sufficient evidence of the facts stated in it unless, in a case falling within sub-paragraph (a), the other party requires that the analyst shall be called as a witness.
7 Where a sample procured under Article 29 of the Order as applied for the purposes of these Regulations by paragraph (2) has been analysed in accordance with paragraph (3)(b) and (c), the owner shall be entitled on request to be supplied with a copy of the certificate of analysis by the district council.
8 Nothing in paragraph (3)(c) shall be taken as preventing an analysis being made by a person acting under the analyst’s direction.

6 Re-dispatch or destruction of illegal imports
1 If on an inspection or examination of any Brazil nuts it appears to an authorised officer that they have been imported in contravention of regulation 3(1) or (2) he may after appropriate consultation with a person appearing him to be the importer serve on that person a notice ordering –
(a) the re-dispatch of the Brazil nuts to the country of origin within such reasonable period as shall be specified in the notice, but only if the requirements of Article 6 of the Commission Decision are complied with; or
(b) (where those requirements are not complied with) the destruction of the Brazil nuts within such reasonable period as shall be so specified.
2 In any case where such an appeal as is mentioned in paragraph (4) may be brought the notice served under paragraph (1) shall state –
(a) the right of appeal to a court of summary jurisdiction; and
(b) the period within which such an appeal may be brought.
3 The person appearing to be the importer of Brazil nuts in respect of which a notice has been served under paragraph (1) shall ensure that they are stored until re-dispatch or destruction under the supervision of the authorised officer at such places and under such conditions as the authorised officer may in the notice direct.
4 Any person who is aggrieved by a decision of an authorised officer to serve a notice under paragraph (1) may appeal to a court of summary jurisdiction, which shall determine whether or not the notice was lawfully served.
5 The period within which such an appeal as is mentioned in paragraph (4) may be brought shall be 6 days, exclusive of Saturdays, Sundays and public holidays, from the date on which notice of the decision was served on the person desiring to appeal.
6 The procedure on an appeal to a court of summary jurisdiction under paragraph (4) shall be by way of notice under Part VII of the Magistrates' Courts (Northern Ireland) Order 1981.
S.I.1981/1675 (N.I. 26)
7 If the court allows an appeal brought under paragraph (4) the district council concerned shall compensate the owner of the Brazil nuts concerned for any depreciation in their value resulting from the action taken by the authorised officer.
8 Any disputed question as to the right to or the amount of any compensation payable under paragraph (6) shall be determined by a single arbitrator appointed, failing agreement between the parties, by the Department; and the provisions of the Arbitration Act 1996 shall apply accordingly.
1996 c. 23
9 Any person who breaches the terms of a notice served under paragraph (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months.
10 The costs of re-dispatch, storage and distribution of Brazil nuts under this regulation shall be borne by the importer.
Sealed with the Official Seal of the Department of Health, Social Services and Public Safety on 25th July 2003.
Denis McMahon A Senior Officer of the Department of Health, Social Services and Public Safety

(This note is not part of the Regulations.)
These Regulations implement Commission Decision 2003/493/EC imposing special conditions on the import of Brazil nuts in shell originating in or consigned from Brazil (O.J. No. L168, 5.7.2003, p. 33).
These Regulations –
(a) prohibit (subject to the derogation described below) the importation of “Brazil nuts” (defined in regulation 2(1)), except where –
(i) they are accompanied by an Brazilian Government health certificate and the results of official sampling and analysis, the importation takes place only though a specified point of entry and each consignment is identified with a code corresponding with that specified on the health certificate and the accompanying report containing the sampling and analysis results;
(ii) they are subject to specified documentary checks; and
(iii) each consignment is subjected to analysis of aflatoxin B1 and total aflatoxin levels before release onto the market (regulation 3);
(b) provide for their enforcement (regulation 4);
(c) apply with modifications certain provisions of the Food Safety (Northern Ireland) Order 1991 for the purposes of the Regulations and provide for sampling and analysis (regulation 5); and
(d) provide for the re-dispatch to the country of origin or destruction of illegal imports of Brazil nuts (regulation 6).
The derogation is that Brazil nuts may be imported even though they are not accompanied by a Brazilian Government health certificate and a report containing the results of official sampling and analysis if –
(a) they left Brazil before 1st July 2003;
(b) the operator can show by means of sampling and analysis in the prescribed manner that the levels of aflatoxin B1 and total aflatoxin in the products do not exceed the maximum permitted levels; and
(c) the importation takes place through a specified point of entry (regulation 3).
The CN codes referred to in the definition of “Brazil nuts” are the code numbers of the combined nomenclature established by Council Regulation 2658/87 on the tariff and statistical nomenclature and on the Customs tariff (O.J. No. L256, 7.9.87, p. 1).