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PART VIIE+W+SAGENCIES’ POWERS & DUTIES

MonitoringE+W+S

31.—(1) The appropriate Agency shall monitor in accordance with this regulation—

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

(b)compliance by operators of schemes with the obligations referred to in regulation 12(1) ;

(c)compliance by operators of schemes with the conditions referred to in [F1regulation 13A(1) and (2); and]

(d)compliance by persons who are accredited reprocessors or exporters with the conditions specified in or under Schedule 5; and

F2(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(a)the registration of producers as required by regulation 6;

(b)the accuracy of the information provided by producers pursuant to regulations 7 and 8;

(c)the accuracy of the returns furnished to the appropriate Agency by a producer under regulation 20;

(d)the accuracy of the information contained in certificates of compliance furnished to the appropriate Agency under regulation 21;

(e)the accuracy of the information provided by an operator of a scheme pursuant to regulations 14 and 15; and

(f)the accuracy of the returns provided to the appropriate Agency by an operator of a scheme under [F3regulations 13A(2)(c) and 22].

(3) For the purposes of the discharge of its functions under these Regulations, the appropriate Agency may, by notice in writing served on—

(a)any person who has, or who the appropriate Agency has reason to believe has, producer responsibility obligations under regulation 4;

(b)in relation to any person who is a member of a registered scheme, the operator of that scheme;

(c)any person who is, or who the Agency has reason to believe is, issuing PERNs or PRNs;

(d)any person who is engaged in trading in, or brokerage in relation to, PERNs or PRNs; or

(e)any accredited reprocessor or exporter,

require him to maintain such records, and furnish such returns to the appropriate Agency, of such information specified in the notice as the appropriate Agency reasonably considers it needs for those purposes, in such form and within such period following service of the notice, or at such time, as is so specified.

Textual Amendments

Monitoring—publicationE+W+S

32.  The appropriate Agency shall provide to the appropriate authority by 1st December, and publish by 31st December, in each year in respect of the following calendar year a report setting out its proposed monitoring plan including the following details of the monitoring to be carried out under regulation 31—

(a)the Agency’s policy in relation to the monitoring it is required to carry out under regulation 31; and

(b)an indication of the minimum number of persons which it proposes to monitor in the course of that year.

Public registerE+W+S

33.—(1) The appropriate Agency shall maintain and make available in accordance with this regulation a register relating to—

(a)the producers and schemes registered with it in accordance with Part III; and

(b)the reprocessors and exporters accredited by it in accordance with Part V,

and containing the relevant information prescribed in 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 working 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 appropriate Agency shall within 7 days of receipt of the information amend the relevant entry in the register to record any change to the information entered F4....

(5) Nothing in this regulation shall require a register maintained by the 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 the 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.

Textual Amendments

[F5Approved personsE+W+S

34.—(1) The appropriate Agency may approve a person listed in paragraph (2) for the purposes of—

(a)in relation to a producer, issuing certificates of compliance and signing the form referred to in regulation 7(4)(c) or (ca) or 19(2) (as the case may be);

(b)in relation to the operator of a scheme, signing the form referred to in regulation 14(3)(c) or the statement referred to in regulation 22(4).

(2) A person listed is, where the relevant person—

(a)is an individual, that individual;

(b)is a partnership, a partner;

(c)is a company registered in Great Britain, a director or company secretary of that company;

(d)is an unincorporated body, an individual who has control or management of that body; or

(e)does not have a registered office in Great Britain, an individual who has control or management of the relevant person.

(3) For the purposes of paragraph (2), the “relevant person” means a producer or the operator of a scheme (as the case may be).

[F6(4) Subject to regulation 34A, the appropriate Agency may approve the delegation by an approved person of the person’s functions to any other person.

(5) An approved person who has delegated functions under paragraph (4) may continue to perform those functions.

(6) For the purposes of these Regulations, an act of a delegate performing the functions of an approved person on that person’s behalf is to be treated as an act of the approved person.

(7) In this regulation, and in regulation 34A, “functions” means the functions referred to in paragraph (1)(a) and (b).]]

Textual Amendments

[F7Delegation of approved persons’ functions: procedureE+W+S

34A.—(1) An approved person who proposes the delegation of the person’s functions to another person under regulation 34(4) shall apply for approval to the appropriate Agency on a form supplied for that purpose by that Agency, signed by the approved person.

(2) An application for approval under paragraph (1) shall, within 28 days of receipt of the application—

(a)be granted where the appropriate Agency is satisfied that the proposed delegate, taking into account the factors specified in paragraph (3), is capable of carrying out the functions on behalf of the approved person; or

(b)otherwise be refused.

(3) The factors mentioned in paragraph (2)(a) are—

(a)if the proposed delegate is an employee of the producer or the operator of the scheme, the proposed delegate’s level of seniority;

(b)if the proposed delegate is not an employee of the producer or the operator of the scheme, the nature of the proposed delegate’s relationship with the approved person;

(c)the degree of the proposed delegate’s knowledge of, or access to, information necessary for the purposes of carrying out the functions on behalf of the approved person; and

(d)any other factor which the appropriate Agency reasonably thinks is relevant.

(4) An approval granted in accordance with paragraph (2)(a) may be for such period, or subject to such other conditions, as the appropriate Agency may specify.

(5) Where an application for approval is granted in accordance with paragraph (2)(a), the appropriate Agency shall notify the approved person in writing of this, and of any conditions it has imposed pursuant to paragraph (4), within 28 days of its decision.

(6) The appropriate Agency may decide to withdraw approval granted under paragraph (2)(a) and, if such a decision is taken, shall serve on the approved person written notice of—

(a)the decision to withdraw approval;

(b)the reasons for the decision; and

(b)the date on which the withdrawal takes effect, not being earlier than 28 days from the date of the notice.

(7) If an approved person proposes to revoke a delegation granted under paragraph (2)(a), the person shall serve written notice on the appropriate Agency of this and of the date when the revocation takes effect, not being earlier than 28 days from the date of the notice.]

Textual Amendments

Entry and inspectionE+W+S

35.—(1) A person who appears suitable to the 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 1995 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 a person authorised under paragraph (1) of this regulation 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 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;

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

(d)the reference in section 108(4)(h) to any article or substance were to any sample as is mentioned in sub-paragraph (b) above and as if the reference to an offence in section 108(4)(h)(iii) were to an offence under regulation 40;

(e)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 these Regulations; and

(f)the reference to the power in section 108(1) were to the power conferred by this regulation.

(3) The provisions of section 108(6) and (7) of the 1995 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 1995 Act, but as if any reference to an authorised person were to a person authorised under paragraph (1) of this regulation, 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 which are to be entered” were omitted.

(4) The provisions of section 108(12) and (13) of the 1995 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 1995 Act.

(5) The provisions of paragraphs 2 to 6 of Schedule 18 to the 1995 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 1995 Act, but as if any reference—

(a)to a designated person were to a person authorised in writing by the 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; and

(c)in paragraph 6(1) to section 108(4)(a) or (b) or (5) of the 1995 Act were to paragraph (1) of this regulation.

(6) In this regulation “warrant” means a warrant under the provisions set out in Schedule 18 to the 1995 Act as applied by paragraph (5) above.

Collation and provision of informationE+W+S

36.—(1) The appropriate Agency shall collate and place in the common database every report provided to it under paragraph 1(n) of Schedule 5 no later than 21 days after receipt.

(2) The appropriate Agency shall, by the same dates as it places the reports under paragraph (1), place in the common database the information in its possession required under regulations 7(4)(c) [F8and (ca)] and 14(3)(c).

(3) The Environment Agency shall, by 31st March in the year following the year in which the reports are due to be provided under paragraph 1(n) of Schedule 5, provide the Secretary of State with a copy of every report collated under paragraph (1) above.

(4) The Environment Agency shall provide the Secretary of State with any information placed under paragraph (2) above by 30th June in the year in which it has been provided to the appropriate Agency or, where the information is provided after this date, by [F928th February] in the following year.

Textual Amendments