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Statutory Rules of Northern Ireland

2023 No. 25

Environmental Protection

The Packaging Waste (Data Reporting) (No.2) Regulations (Northern Ireland) 2023

Made

27th February 2023

Coming into operation

28th February 2023

The Department of Agriculture, Environment and Rural Affairs makes these regulations in exercise of the powers conferred by Article 4 of and paragraphs 11 and 20 of Schedule 1 to, the Environment (Northern Ireland) Order 2002 (“the 2002 Order”)(1) and now vested in it(2).

In accordance with Article 4(4) of the 2002 Order, the Department of Agriculture, Environment and Rural Affairs has consulted—

(a)

district councils and such bodies or persons appearing to it to be representative of the interests of district councils as it considers appropriate;

(b)

such bodies or persons appearing to it to be representative of the interests of the industry, agriculture and business as it considers appropriate; and

(c)

such other bodies or persons as it considers appropriate.

PART 1N.I.General

Citation and commencementN.I.

1.—(1) These Regulations may be cited as the Packaging Waste (Data Reporting) (No.2) Regulations (Northern Ireland) 2023.

(2) These Regulations come into operation on 28th February 2023.

Commencement Information

I1Reg. 1 in operation at 28.2.2023, see reg. 1(2)

InterpretationN.I.

2.—(1) In these Regulations, “the Waste Directive” means Directive 2008/98/EC of the European Parliament and of the Council on waste(3), as last amended by Directive (EU) 2018/851(4), and as read in accordance with regulation 4.

(2) In these Regulations—

“the 2007 Regulations” means The Producer Responsibility Obligations (Packaging Waste) Regulations (Northern Ireland) 2007(5);

“approved person” means the person for the time being approved under regulation 25 for the purpose of verifying information provided by a producer—

(a)

to the Department of Agriculture, Environment, and Rural Affairs under regulation 18(4)(b); and

(b)

to the operator of the scheme under regulation 20(2)(b)(ii);

“brand owner” has the meaning given in regulation [F18(2B) read with 8(2A)] ;

“consumer” means an individual acting for purposes which are outside that individual’s trade, business, craft or profession;

“data collection obligations” means the obligations in regulation 17;

“data collection period” has the same meaning given in regulation 17(7);

“data reporting obligations” means the obligations in regulation 18;

“the Department” means the Department of Agriculture, Environment and Rural Affairs;

F2...

“distributor” means a person who manufactures or imports unfilled packaging and supplies that packaging to another person;

“drink” has the meaning given in regulation 5;

[F3“drink container” means a bottle or can which—

(a)

contains or used to contain drink;

(b)

is made wholly or mainly from polyethylene terephthalate (PET) plastic, glass, steel or aluminium;

(c)

has a capacity of at least 50 millilitres but no more than three litres of liquid;

(d)

is designed or intended to be sealed in an airtight and watertight state at the point of supply to a consumer in the United Kingdom; and

(e)

is not conceived, designed or marketed to be refilled or reused in any other way by any person;]

“exempt packaging” means the packaging which is exempt in relation to a producer in accordance with regulation 13(2);

“fibre-based composite material” means packaging material which is made of paperboard or paper fibres, laminated with plastic, and which may also have layers of other materials, to form a single unit that cannot be separated by hand;

[F4“first UK owner” in relation to packaging which is not imported, means the first person established in the United Kingdom who takes ownership of that packaging in the United Kingdom;

“group of companies” has the meaning given in regulation 12(7)(d);]

“household packaging” has the meaning given in regulation 7;

“importer” means—

(a)

the person responsible for importingF5... packaging into the United Kingdom, whether or not that packaging ends up being supplied, or

(b)

where the person referred to in paragraph (a) of this definition is not [F6established] in the United Kingdom, the first person [F7established] in the United Kingdom who takes ownership of the packaging;

“large producer” means a producer who satisfies—

(a)

the criteria in regulation 12(1) or;

(b)

the criteria in regulation 12(3);

“licence agreement” has the meaning given in regulation 9(2);

“licensee” has the meaning given in regulation 9(2);

“licensor” has the meaning given in regulation 9(1);

“online marketplace operator” means the operator of a website, or any other means by which information is made available over the internet, which facilitates the sale of goods through the website or other means by persons other than the operator, whether or not the operator also sells goods through the online marketplace;

“operator” in relation to an online marketplace, means the person who controls access to, and the contents of, the online marketplace provided that the person is involved in—

(a)

determining any terms and conditions applicable to the sale of goods;

(b)

processing, or facilitating the processing, of payment for the goods; and

(c)

the ordering or delivery, or facilitating the ordering or delivery, of the goods;

“packaging” has the meaning given in regulation 6;

“packaging category” means one of the categories referred to in regulation 6(4);

“packaging materials” means materials used in the manufacture of packaging and includes raw materials and processed materials prior to their conversion into packaging;

“packaging waste” means any packaging or packaging material which is waste, but does not include packaging which is discarded and becomes waste outside the United Kingdom;

“packer/filler” means the person who puts goods into packaging;

“primary packaging” has the meaning given in regulation 6(1)(a);

“producer” has the meaning given in regulation 8;

“pub operating agreement” has the meaning given in regulation 10(2);

“pub operating business” has the meaning given in regulation 10(1);

F8...

“recycling” has the meaning given in Article 3(17) of the Waste Directive;

“registered scheme” means a scheme which is registered in accordance with the 2007 Regulations;

“relevant year” means a calendar year in respect of which a person is a producer;

“reuse” has the meaning given to it in Article 3(13) of the Waste Directive;

“reusable packaging” means packaging which has been designed to be used multiple times by being refilled or reused for the same purpose for which it was conceived;

“scheme” means a scheme which is (or if it were registered in accordance with the 2007 Regulations would be) a scheme whose members for the time being are, by virtue of Part 3 of these Regulations and their membership of that scheme, exempt from the requirement to comply with their data reporting obligations;

“secondary packaging” has the meaning given in regulation 6(1)(b);

“seller” means a person who supplies packaging to a user or a consumer of that packaging, whether or not the packaging has been filled at the time of the supply;

“service provider” means a person who supplies reusable packaging to a user of that packaging where the supply is made by hiring out or lending the packaging;

“shipment packaging” has the meaning given in regulation 6(1)(d);

“small producer” means a producer who—

(a)

satisfies the criteria in regulation 12(2), but not those in regulation 12(1); or

(b)

satisfies the criteria in regulation 12(4), but not those in regulation 12(3);

“supply” has the meaning given in regulation 11;

“tenant” has the meaning given in regulation 10(2);

“tertiary packaging” has the meaning given in regulation 6(1)(c);

“trade mark” has the same meaning as in the Trade Marks Act 1994(6) (see section 1 of that Act);

“turnover” means, in relation to a person, their turnover as defined in section 539 of the Companies Act 2006(7) but as if the references to a company were references to that person;

“UK regulator” means—

(a)

the Environment Agency;

(b)

the Natural Resources Wales;

(c)

the Scottish Environment Protection Agency; or

(d)

the Department;

“waste” has the meaning given in Article 3(1) of the Waste Directive, read with Articles 5 and 6 of that Directive.

(3) For the purposes of the definition of “online marketplace operator”, an online marketplace facilitates the sale of goods if it allows a person to—

(a)offer goods for sale; and

(b)enter into a contract for the sale of those goods.

(4) In these Regulations—

(a)any document which is to be provided or given to any person may be provided or given to that person by electronic means if the document is capable of being reproduced by that person in legible form;

(b)any requirement to make, keep or retain a record or to maintain a register may be satisfied in electronic form if the text is capable of being produced by the person subject to the requirement in a legible documentary form;

(c)any requirement for a signature may be satisfied by an electronic signature incorporated into the document, and for these purposes, “electronic signature” means data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign.

Textual Amendments

Commencement Information

I2Reg. 2 in operation at 28.2.2023, see reg. 1(2)

Establishment in Northern Ireland and the United KingdomN.I.

3.—(1) In these Regulations, a person is established in—

(a)Northern Ireland if—

(i)that person is habitually resident in Northern Ireland;

(ii)the registered office of that person, or if they do not have a registered office, their head office, or principal place of business, is in Northern Ireland; or

(iii)paragraph (2) applies;

(b)the United Kingdom if—

(i)that person is habitually resident in the United Kingdom; or

(ii)the registered office of that person, or if they do not have a registered office, their head office, or principal place of business, is in the United Kingdom.

(2) This paragraph applies if—

(a)the registered office of that person, or if they have no registered office, their head office or principal place of business is outside the United Kingdom;

(b)the person has a branch or postal address in Northern Ireland; and

(c)the person has not given notice to the Department under paragraph (3).

(3) Where a person to whom paragraph (2)(a) applies has a branch or postal address in Northern Ireland and in one or more other [F9nations of] the United Kingdom, that person may elect to be treated as established in one of those other [F10nations] instead of in Northern Ireland by giving notice to the Department.

(4) A notice given under paragraph (3) must specify the [F11nation] in which the person giving the notice wishes to be treated as established for the purposes of these Regulations.

(5) When the Department receives notice of an election under paragraph (3), the Department must notify the UK regulator in the [F12nation] specified in the notice.

Textual Amendments

Commencement Information

I3Reg. 3 in operation at 28.2.2023, see reg. 1(2)

Modifications to the Waste DirectiveN.I.

4.—(1) For the purposes of these Regulations, the Waste Directive is to be read in accordance with this regulation.

(2) A reference to one or more member States in a provision imposing an obligation or conferring a discretion on a member State or member States is to be read as a reference to the authority, agency or local authority which, immediately before IP completion day, was responsible for the United Kingdom’s compliance with that obligation or able to exercise that discretion.

(3) Article 5 is to be read as if—

(a)in paragraph 1, “Member States shall take appropriate measures to ensure that” were omitted;

(b)after paragraph 1 there were inserted—

“1A.  Any decision as to whether a substance or object is a by-product must be made —

(a)in accordance with any regulations setting out the detailed criteria on the application of the conditions in paragraph 1 to specific substances or objects; and

(b)having regard to any guidance published by the Department for the purposes of this Article.”;

(c)paragraphs 2 and 3 were omitted.

(4) Article 6 is to be read as if—

(a)in paragraph 1, “Member States shall take appropriate measures to ensure that” were omitted;

(b)after paragraph 1 there were inserted—

“1A.  Any decision as to whether a substance or object has ceased to be waste must be made—

(a)in accordance with any regulations or retained direct EU legislation setting out detailed criteria on the application of the condition in paragraph 1 to specific types of waste; and

(b)having regard to any guidance published by the Department for the purposes of this Article.”;

(c)in paragraph 2—

(i)the first subparagraph were omitted;

(ii)in the second subparagraph, for “Those detailed criteria” there were substituted “Any detailed criteria set out in guidance as referred to in paragraph 1A”;

(iii)the third and fourth subparagraphs were omitted;

(d)paragraph 3 were omitted;

(e)in paragraph 4—

(i)in the first subparagraph—

(aa)in the first sentence, for the words from the beginning to “Member State”, there were substituted “Where criteria have not been set out as referred to in paragraph 1A(a), the Department of Agriculture, Environment and Rural Affairs”;

(bb)the second sentence were omitted;

(ii)in the second subparagraph—

(aa)for “Member States” there were substituted “the Department of Agriculture, Environment and Rural Affairs”;

(bb)“by competent authorities” were omitted.

Commencement Information

I4Reg. 4 in operation at 28.2.2023, see reg. 1(2)

DrinkN.I.

5.—(1) For the purposes of these Regulations,F13... drink means—

(a)water suitable for human consumption;

(b)a beverage suitable for human consumption;

(c)a sports drink suitable for human consumption; or

(d)a liquid which, when prepared in a specified manner, constitutes a beverage suitable for human consumption (including, for example, a fruit cordial or a fruit squash) or a sports drink.

(2) For the avoidance of doubt, paragraph (1)(d) does not apply to a liquid which is used only as a flavouring or sweetener in another liquid which itself constitutes a beverage suitable for human consumption.

(3) A liquid is prepared in a specified manner if it is—

(a)diluted;

(b)combined with crushed ice, or processed so as to create crushed ice;

(c)combined with carbon dioxide; or

(d)prepared by way of a process that involves any combination of the processes mentioned in subparagraphs (a) to (c).

(4) In this regulation “sports drink” means a drink which is advertised or marketed as a product to enhance physical performance, accelerate recovery after exercise or build bulk, or other similar drink.

Textual Amendments

Commencement Information

I5Reg. 5 in operation at 28.2.2023, see reg. 1(2)

Packaging and packaging categoriesN.I.

6.—(1) “Packaging”, for the purposes of these Regulations, means all products made of any materials of any nature to be used for the containment, protection, handling, delivery and presentation of goods, from raw materials to processed goods, from the producer to the user or the consumer, including non-returnable items used for the same purposes, but only where the products are—

(a)primary packaging, which is packaging conceived so as to constitute a sales unit to the final user or consumer at the point of purchase;

(b)secondary packaging, which is packaging conceived so as to constitute at the point of purchase a grouping of a certain number of sales units whether the latter is supplied as such to the final user or consumer or whether it serves only as a means to replenish the shelves at the point of sale; it can be removed from the product without affecting the product’s characteristics;

(c)tertiary packaging, [F14which is not shipment packaging and] which is packaging conceived so as to facilitate handling and transport of a number of sales units or [F15secondary packaging] in order to prevent damage from physical handling and transport damage, and for the purposes of these Regulations, tertiary packaging does not include road, rail, ship and air containers;

(d)shipment packaging, which is packaging, F16...in addition to primary packaging, to items which are sold online or by a mail order which are either delivered direct to the purchaser or collected by the purchaser from a shop or other collection point after they have been purchased.

(2) The following items are also to be treated as packaging on the basis of the criteria set out below—

(a)items that fulfil the definition in paragraph (1), without prejudice to other functions which the item may perform, unless the item is an integral part of a product and it is necessary to contain, support or preserve that product throughout its lifetime and all elements are intended to be used, consumed or disposed of together;

(b)items designed and intended to be filled at the point of sale and disposable items supplied, filled, or designed and intended to be filled, at the point of sale, provided they fulfil a packaging function described in paragraph (1);

(c)packaging components and ancillary elements integrated into packaging are considered to be part of the packaging into which they are integrated, and ancillary elements hung directly on, or attached to, a product which performs a packaging function are considered to be packaging unless they are an integral part of the product and all elements are intended to be used, consumed or disposed of together.

(3) Schedule 5 to the Packaging (Essential Requirements) Regulations 2015(8) contains illustrative examples of the [F17application of the criteria] set out in paragraph (2).

(4) For the purpose of these Regulations, packaging and packaging waste is to be treated, subject to paragraphs (5) and (6), as falling into one of the following packaging categories, depending on the material from which the packaging is made—

(a)aluminium;

(b)fibre-based composite materials;

(c)glass;

(d)paper or board;

(e)plastic;

(f)steel;

(g)wood; or

(h)other materials.

(5) Packaging materials composed of a combination of the materials referred to in paragraph (4) (“paragraph (4) materials”) are to be treated as made of the material which is predominant by weight, unless paragraph (6) applies.

(6) Where packaging materials are composed of a combination of different paragraph (4) materials in equal proportions, each material of which the packaging materials are comprised is to be treated separately for the purpose of these Regulations.

[F18(7) Where a drink container consists of a number of components made of different materials—

(a)the drink container is to be treated as being made of the same material as the component which is predominant by weight (“the predominant component”), unless the predominant component is made of glass;

(b)where the predominant component is made of glass, each component of the drink container is to be treated separately for the purpose of these Regulations.]

Textual Amendments

Commencement Information

I6Reg. 6 in operation at 28.2.2023, see reg. 1(2)

Household packagingN.I.

[F197.—(1) In these Regulations, “household packaging” is primary or shipment packaging which is not packaging described in paragraph (2).

(2) The following primary or shipment packaging is not to be treated as household packaging—

(a)packaging supplied to a business or to a public institution which in either case is the final user of that packaging;

(b)packaging for a product, where—

(i)the product is designed only for use by a business or a public institution; and

(ii)the packaging for that product is not reasonably likely to be disposed of in a household bin or a public bin;

(c)packaging imported into the United Kingdom by an importer and discarded in the United Kingdom by that importer.

(3) Packaging is not to be treated as falling within paragraph (2)(a) or (b) unless the producer supplying that packaging can provide evidence that—

(a)in the case of paragraph (2)(a), the packaging is supplied to a business or a public institution which does not supply to any other person—

(i)the packaging; or

(ii)the product which the packaging contains in its packaged form;

(b)in the case of paragraph (2)(b)—

(i)the product in question satisfies the requirement in paragraph (i); and

(ii)the packaging for that product satisfies the requirement in paragraph (ii).

(4) For the purposes of paragraph (2)(b), “packaging for a product” means—

(a)packaging supplied with a product satisfying the conditions in paragraph (2)(b) (“a business product”); and

(b)unfilled packaging made to be used with a business product, provided that the supplier of that packaging has evidence that the packaging will be used with a business product.

(5) For the purposes of paragraph (3)(a)(ii), a product is to be treated as being supplied in its packaged form unless all packaging is removed from the product before it is supplied to the final user of that product.

(6) For the purposes of this regulation and regulation 7A, the following institutions are to be treated as public institutions—

(a)a school, university or other educational establishment;

(b)a hospital or the practice of a general medical practitioner or dentist;

(c)a nursing home or other residential home;

(d)a government department;

(e)a relevant authority;

(f)a court, or tribunal;

(g)a person appointed, or body established, by or under any enactment to discharge public functions;

(h)a charity or other not-for-profit body;

(i)a penal institution.

(7) In this regulation—

(a)“dentist” means a person registered in the dentists register kept under section 14(1) of the Dentists Act 1984(5);

(b)“general medical practitioner” means a person registered in the General Practitioner Register kept by the General Medical Council under section 34C of the Medical Act 1983(6);

(c)“not-for-profit body” means a body which, by virtue of its constitution or any enactment—

(i)is required (after payment of outgoings) to apply the whole of its income, and any capital which it expends, for charitable or public purposes; and

(ii)is prohibited from directly or indirectly distributing among its members any part of its assets otherwise than for charitable or public purposes.

(8) In this regulation and in regulation 7A—

(a)“household bin” means a receptacle designed to collect waste material from a household which is not a business or a public institution;

(b)“public bin” means a receptacle—

(i)maintained by a relevant authority in a street or public place; and

(ii)designed to collect waste material.

Textual Amendments

Commencement Information

I7Reg. 7 in operation at 28.2.2023, see reg. 1(2)

Department of Agriculture, Environment and Rural Affairs GuidanceN.I.

7A.—(1) The Department must provide guidance for the purposes of regulation 7—

(a)on the evidence which may be used by a producer to demonstrate that primary packaging or shipment packaging is supplied to a business or a public institution which in either case is the final user of the packaging;

(b)on when—

(i)a product is to be treated as being designed only for use by a business or a public institution; and

(ii)packaging for that product is to be treated as not reasonably likely to be disposed of in a household bin or a public bin.

(2) The Department may take the following factors into account in the preparation of guidance under paragraph (1)(b)—

(a)the size of the packaging;

(b)the weight of the packaging;

(c)whether the supply of a product is subject to restrictions imposed by or under primary or secondary legislation;

(d)how available a product or its packaging is to consumers;

(e)whether a product is likely to be used by a business in a household;

(f)any other factor the Department considers relevant.]

Textual Amendments

ProducersN.I.

8.—[F20(1) A person is a producer in relation to the packaging specified in this regulation if they perform in any nation of the United Kingdom the functions of one or more of the following in relation to packaging, either on their own behalf, or through an agent acting on their behalf, and in the course of business—

(a)a brand owner;

(b)a packer/filler;

(c)an importer or first UK owner;

(d)a distributor;

(e)an online marketplace operator;

(f)a service provider; or

(g)a seller.

(1A) No person may be treated as performing one of the functions listed in paragraph (1) for the purposes of this regulation unless they are established in the United Kingdom.]

[F21(2) Unless paragraph [F22(3)(b)(iii), (3A) or (4)] applies, and subject to [F23paragraphs (2A) and (8A)] , a brand owner is a producer in relation to—

(a)filled packaging on which that brand owner’s, brand appears;

(b)any packaging contained within, or forming part of, branded packaging (whether or not that packaging is branded).]

[F24(2A) [F25Unless paragraph (3A) or (4) applies, and subject] to [F26paragraph (8A)] , when more than one brand appears on filled packaging, the owner of the brand who makes the first supply of the filled packaging is to be treated as the brand owner and producer in relation to that packaging [F27and any packaging contained in, or forming part of, that packaging (whether or not that part of the packaging is branded)] .

(2B) In this regulation—

“brand” means a brand name, trade mark or other distinctive mark;

“branded packaging” means packaging on which the brand owner’s brand appears; and,

“brand owner” means, subject to paragraph (2A), a person whose brand appears on an item of filled packaging.

F28(2C)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) A packer/filler is a producer in relation to any filled packaging—

(a)which is filled by the packer/filler; and

(b)for which there is no brand owner.

[F29(b)for which—

(i)there is no brand owner established in the United Kingdom,

(ii)the brand owner is not a large producer, or

(iii)the only brand on the packaging relates to the packaging and not to the product contained in that packaging.]

[F30(3A) A packer/filler is also a producer [F31in relation to any packaging] —

(a)where—

(i)the packer/filler has filled [F32the] packaging;

(ii)the packer/filler has put a brand on the packaging to assist with distribution and not at the request of the brand owner;

(iii)there is no other brand on the packaging;

(b)F33...which the packer/filler adds to branded packaging otherwise than at the request of the brand owner.]

[F34(4) An importer (“IM”) is a producer in relation to any packaging imported into the United Kingdom to which paragraph (4A) applies—

(a)for which IM is the importer; and

(b)which is—

(i)filled packaging; or

(ii)packaging discarded by IM in the United Kingdom.

(4A) This paragraph applies to packaging—

(a)for which there is no brand owner established in the United Kingdom;

(b)where the brand owner is not responsible for the import of the packaging; or

(c)where the brand owner is responsible for the import of the packaging but is not a large producer.]

[F35(4B) A first UK owner is a producer in relation to any packaging where—

(a)the packaging is packed or filled in the United Kingdom on behalf of a person who is not established in the United Kingdom;

(b)at the time it is packed or filled no person established in the United Kingdom is or has been the owner of the packaging; and

(c)the filled packaging is supplied to the first UK owner.]

(5) A distributor is a producer in relation to any unfilled packaging which is—

(a)manufactured or imported by the distributor; and

[F36(b)supplied to any person, other than a large producer who fills or packs the packaging before supplying it to any other person]

[F37except where a large producer who is a brand owner or a packer/filler is the producer in relation to that packaging under paragraph (2), (2A), (3) or (3A) once the packaging is filled.]

(6) An online marketplace operator is a producer in relation to—

(a)any packaging on items which are sold on their online marketplace by a person, acting in the course of business, who is not established in the United Kingdom, and

(b)any unfilled packaging supplied on their online marketplace—

(i)by a person, acting in the course of business, who is not established in the United Kingdom;

(ii)to a business who is not a large producer subject to obligations under regulation 16(3),

provided that the packaging is received in the United Kingdom.

(7) A service provider is a producer in relation to any reusable packaging, the first time that packaging is supplied, but not otherwise.

(8) A seller of filled packaging to the [F38final user] of that packaging is a producer in relation to that packaging, and for these purposes, the [F38final user] is the person who last uses the packaging in question before discarding it.

[F39(8A) Where different individual products are grouped together to be sold as a single sales unit, this regulation must be applied separately to determine the producer of—

(a)the packaging for each individual product within the sales unit; and

(b)the packaging for the sales unit as a whole, including any packaging within the sales unit which is not part of the packaging of any individual product within that sales unit.]

(9) For the purposes of this regulation, a person acts “in the course of business” if they act in the ordinary course of conduct of a trade, occupation or profession.

Textual Amendments

Commencement Information

I8Reg. 8 in operation at 28.2.2023, see reg. 1(2)

LicensorsN.I.

9.—(1) For the purposes of these Regulations, a person (“L”) is a licensor where L is a party to a licence agreement in or under which L grants a licence to use a trade mark to another.

(2) In this regulation—

“licence agreement” means an agreement or number of related agreements in or under which the licensor grants the licensee a licence that allows the licensee to use a trade mark as the name under which the licensee sells from premises goods that are associated with that trade mark, and includes an obligation (whether expressed as a positive or as a negative obligation) on the licensee that relates to the presentation of those premises;

“licensee” means the party to the licence agreement to whom a licence to use a trade mark is granted;

“premises” means any sales outlet on which packaging is handled and includes any land, vehicle, vessel, mobile plant and stall.

Commencement Information

I9Reg. 9 in operation at 28.2.2023, see reg. 1(2)

Pub operating businessN.I.

10.—(1) For the purposes of these Regulations, a person (“P”) is a pub operating business where—

(a)P is a party to a pub operating agreement in or under which P grants a lease or tenancy of premises to another; and

(b)those premises are used by the tenant in order to carry on the licensable activity of—

(i)selling intoxicating liquor by retail for consumption in, or both in or off the premises; or

(ii)the supply of intoxicating liquor by or on behalf of a club, or to the order of, a member of the club or both, for consumption on the premises or both on and off the premises;

and the tenant holds a licence in respect of those premises.

(2) In this regulation—

“intoxicating liquor” has the same meaning as in Article 2(2) of the Licensing (Northern Ireland) Order 1996(9);

“licence” has the same meaning as in Article 2(2) of the Licensing (Northern Ireland) Order 1996;

“premises” means any sales outlet on which packaging is handled and includes any land, vehicle, vessel, mobile plant and stall;

“pub operating agreement” means an agreement or number of related agreements in or under which one person (the pub operating business) grants a tenancy or lease of the premises to another person (the tenant) that includes an obligation (whether expressed as a positive or as a negative obligation) on the tenant to purchase some or all of the intoxicating liquor to be sold or otherwise supplied on or from the premises, from the pub operating business or from a person or persons nominated or authorised by or on behalf of that business;

“selling by retail” in relation to any intoxicating liquor shall be construed in accordance with section 4(4) of the Alcoholic Liquor Duties Act 1979(10);

“supply of intoxicating liquor” shall be construed in accordance with the Registration of Clubs (Northern Ireland) Order 1996(11);

“tenant” means the party to a pub operating agreement to whom the lease or tenancy of premises is granted.

Commencement Information

I10Reg. 10 in operation at 28.2.2023, see reg. 1(2)

SupplyN.I.

11.—(1) In these Regulations, a person “supplies” materials if that person does any of the following, either themselves or through an agent acting on their behalf, in relation to packaging or packaging materials owned by that person—

(a)selling, hiring out or lending;

(b)providing in exchange for any consideration other than money;

(c)providing in or in connection with the performance of any statutory function; or

(d)giving as a prize or otherwise making a gift.

[F40(1A) In these Regulations [F41—

(a)a first UK owner is to be treated as “supplying” any packaging which—

(i)has not been supplied, within the meaning of these Regulations, before coming into the ownership of the first UK owner; and

(ii)is discarded by the first UK owner in the United Kingdom;]

[F42(b)] an importer is to be treated as “supplying” packaging or packaging materials which the importer imports into and discards in the United Kingdom.]

F43(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where the packaging is branded packaging, within the meaning of [F44regulation 8(2B)] , the brand owner is to be treated for the purposes of these Regulations as supplying that packaging even if the brand owner does not do any of the actions listed in paragraph (1) in relation to the packaging.

(4) Paragraph (3) does not apply in relation to—

(a)any packaging which is imported into the United Kingdom by—

(i)an importer, unless the importer is acting as an agent for the brand owner; or

(ii)an online marketplace operator;

(b)any reusable packaging supplied by a service provider.

Textual Amendments

Commencement Information

I11Reg. 11 in operation at 28.2.2023, see reg. 1(2)

Threshold criteria for large and small producersN.I.

12.—(1) A person satisfies the criteria in this paragraph if—

(a)that person’s turnover in the last financial year—

(i)in respect of which audited accounts are available; or

(ii)where audited accounts are not required for that person, in respect of which accounts are available;

before the relevant date was more than £2,000,000, and

(b)in the calculation year the person handled in aggregate more than 50 tonnes of packaging or packaging materials.

(2) A person satisfies the criteria in this paragraph if—

(a)that person’s turnover in the last financial year—

(i)in respect of which the audited accounts are available; or

(ii)where audited accounts are not required for that person, in respect of which accounts are available;

before the relevant date was more than £1,000,000, and

(b)in the calculation year the person handled in aggregate more than 25 tonnes of packaging or packaging materials.

(3) Each company in a group of companies which is a producer satisfies the criteria in this paragraph if—

(a)the aggregate of the turnovers of the companies in the group which are producers was more than £2,000,000 in the last financial year in respect of which audited accounts are available before the relevant date; and

(b)in the calculation year the aggregate of the amounts of packaging or packaging materials handled by each such company is more than 50 tonnes of packaging or packaging materials.

(4) Each company in a group of companies which is a producer satisfies the criteria in this paragraph if—

(a)the aggregate of the turnovers in the last financial year in respect of which audited accounts are available before the relevant date of the companies in the group which are producers was more than £1,000,000; and

(b)in the calculation year the aggregate of the amounts of packaging or packaging materials handled by each such company is more than 25 tonnes of packaging or packaging materials.

(5) Where the person (“MB”) is a corporate body which has been formed by the merger of two or more corporate bodies—

(a)MB’s turnover in the year of the merger is to be calculated for the purposes of this regulation as the sum of the turnovers in the last financial year of each company which has been merged; and

(b)MB is to be treated as having handled in the year of the merger the sum of the amount of packaging or packaging materials handled by each of those companies in the calculation year.

(6) Where the assets and liabilities of a corporate body (“CB”) have been divided between two or more corporate bodies (“new bodies”), and no audited accounts are yet available for the new bodies—

(a)each new body is to be treated as having a turnover equal to—

formula

where—

(i)

“A” is the value of the assets of the new body following the division;

(ii)

“XA” is the value of the assets of CB before the division; and

(iii)

“XT” is the turnover of CB in the year preceding the division year;

(b)each new body is to be treated as having handled an amount of packaging or packaging materials equal to—

formula

where “A” and “XA” have the meaning given in sub-paragraph (a), and “XP” means the amount of packaging or packaging materials handled by CB in the year preceding the division year.

(7) For the purposes of this regulation—

(a)audited accounts are to be treated as being available, where the person is a company, where annual accounts have been delivered to the registrar under section 441 of the Companies Act 2006(12);

(b)“the division year” is the calendar year in which the assets and liabilities of CB were divided between two or more companies;

(c)the “relevant date” is 7th April in an obligation year;

(d)a “group of companies” means a holding company and one or more subsidiaries, and for this purpose, “subsidiary” and “holding company” have the same meanings as they have in section 1159 of the Companies Act 2006.

(8) For the purposes of this regulation, the amount of packaging or packaging materials handled by a person (“P”) is the amount supplied in any nation in the United Kingdom in respect of which P is a producer under regulation 8, calculated in tonnes to the nearest tonne—

(a)including packaging or packaging materials which were imported into the United Kingdom by P or an agent acting on P’s behalf (and for these purposes, packaging includes reusable packaging on the first occasion that packaging is used);

(b)excluding exempt packaging.

(9) If P performs two or more functions as producer under regulation 8 in relation to the packaging—

(a)subject to sub-paragraph (b), all packaging in relation to which P performs a function is to be taken into account for the purposes of paragraphs (1)(b), (2)(b), (3)(b)[F45, (4)(b), (5)(b) and (6)(b)];

(b)if the functions P performs are performed in relation to the same packaging, that packaging is only to be taken into account once for the purposes of paragraphs (1)(b), (2)(b), (3)(b)[F46, (4)(b), (5)(b) and (6)(b)].

(10) In this regulation—

“calculation year” means the calendar year preceding an obligation year;

“obligation year” means a calendar year in respect of which it is being considered whether a person is subject to [F47data collection obligations alone, or both data collection obligations and data reporting obligations,] under these Regulations.

Textual Amendments

Commencement Information

I12Reg. 12 in operation at 28.2.2023, see reg. 1(2)

Exempt PackagingN.I.

13.—(1) A producer is not subject to data collection obligations or data reporting obligations in relation to any packaging or packaging materials which are exempt in relation to that producer.

(2) Packaging and packaging materials are exempt in relation to a producer (“P”) for the purposes of these Regulations, where the packaging or packaging materials are—

(a)reused packaging which is primary packaging;

(b)production residues from the production of packaging or packaging materials or from any other production process occurring before, during or after P handled the packaging or packaging materials;

(c)any packaging or packaging materials exported from the United Kingdom by P, including packaging or packaging materials exported through an agent acting on P’s behalf or which to P’s reasonable knowledge were otherwise exported from the United Kingdom (with the exception of any packaging or packaging materials exported from the United Kingdom to a marine installation);

(d)reused secondary or tertiary packaging, with the exception of any such reused packaging imported into the United Kingdom; or

[F48(e)packaging which is a deposit item for the purposes of a relevant deposit scheme and for these purposes, “deposit item” includes packaging which is a scheme article under the Deposit and Return Scheme for Scotland Regulations 2020, or returnable packaging as provided for in regulations made under section 84 of the Climate Change (Scotland) Act 2009.]

(3) In paragraph (2)(c), “marine installation” means any artificial island, installation or structure at sea, other than a vessel.

[F49(4) In paragraph (2)(e), a relevant deposit scheme is a deposit scheme which—

(a)has been established in—

(i)the Deposit and Return Scheme for Scotland Regulations 2020; or

(ii)regulations made under Schedule 8 to the Environment Act 2021, or under section 84 of the Climate Change (Scotland) Act 2009; and

(b)is in operation in any part of the United Kingdom.]

F50(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I13Reg. 13 in operation at 28.2.2023, see reg. 1(2)

Exclusion of charities from data collection and data reporting obligationsN.I.

14.  These Regulations do not apply to a charity, and for these purposes, “charity” includes anything which is a charity—

(a)within the meaning of section 1(1) of the Charities Act (Northern Ireland) 2008(13), or

(b)for the purposes of section 202 of the Corporation Tax Act 2010(14)

Commencement Information

I14Reg. 14 in operation at 28.2.2023, see reg. 1(2)

Incapacity etc.N.I.

15.—(1) Where in the relevant year a producer dies or becomes bankrupt or incapacitated (“the first producer”), that person ceases to be subject to any obligations under these Regulations for that year.

(2) Any person who carries on the activities of the first producer following that event is to be treated as a producer and to have the obligations of the producer for that year and subsequent years.

(3) Any person carrying on the activities of the first producer referred to in paragraph (1) must within 28 days of commencing to do so inform the Department in writing of that fact and the date of the death, the date of bankruptcy or the nature of the incapacity and the date on which it began.

(4) In relation to a producer which is a company, the references to a person becoming bankrupt or incapacitated in paragraph (1) and (3) are to be construed as references to it going into liquidation or receivership or entering administration.

Commencement Information

I15Reg. 15 in operation at 28.2.2023, see reg. 1(2)

PART 2N.I.Producers and obligations

Producer obligationsN.I.

16.—(1) This regulation applies to a producer (“P”) who is established in Northern Ireland.

(2) If P is a small producer, but not an online marketplace operator or a seller, P is subject to the data collection obligations in regulation 17(2).

(3) If P is a large producer, but not an online marketplace operator or a seller, P is subject to—

(a)the data collection obligations in regulation 17(3); and

(b)the data reporting obligations in regulation 18.

(4) If P is an online marketplace operator, P is subject to—

(a)the data collection obligations in regulation 17(4); and

(b)the data reporting obligations in regulation 18.

(5) If P is a small or large producer who is a seller, P is subject to the data collection obligations in regulation 17(5).

(6) The references in paragraphs (2) and (3) to an online marketplace operator and a seller are to an online marketplace operator or seller which performs no other function referred to in regulation 8(1) in relation to packaging.

(7) Where P is a small or large producer and P performs more than one such function in relation to packaging, P is subject to the obligations imposed under paragraphs (2) to (5), so far as relevant, in relation to each function P performs.

(8) If P is a producer who is a licensor or pub operating business, Schedule 2 applies to determine whether P is subject to the data collection obligations in regulation 17(6).

(9) Paragraph (8) does not affect any obligations which a licensor or a pub operating business has under these Regulations otherwise than under Schedule 2.

Commencement Information

I16Reg. 16 in operation at 28.2.2023, see reg. 1(2)

Data collection obligationsN.I.

17.—(1) The data collection obligations in this regulation are as follows.

Small producers other than online marketplace operators and sellers

(2) A producer subject to the data collection obligations in this paragraph, must maintain for each data collection period, and retain for at least 7 years after the end of the data collection period to which they relate, records of the information referred to in paragraphs 10(2) and 21(a) of Schedule 1.

Large producers other than online marketplace operators and sellers

(3) A producer subject to the data collection obligations in this paragraph must—

(a)maintain for each data collection period, and retain for at least 7 years after the end of the data collection period to which they relate, records of the information listed in Schedule 1;

(b)retain for 7 years evidence—

(i)of the amount of packaging waste which they have collected and sent for recycling, as reported on under paragraph [F5123(1) to (4)] of Schedule 1;

(ii)that any relevant packaging waste included in the packaging waste referred to paragraph (i) has been recycled, and for these purposes “relevant packaging waste” has the same meaning in paragraph 23(5) [F52and (6)] of Schedule 1.

Online marketplace operators

(4) A producer subject to the data collection obligations in this paragraph must maintain for each data collection period, and retain for at least 7 years after the end of the data collection period to which they relate, records of the information listed in Parts 4 and 5 of Schedule 1.

Sellers

(5) A producer subject to the data collection obligations in this paragraph must maintain for each data collection period, and retain for at least 7 years after the end of the data collection period to which they relate, records of the information listed in Part 5 of Schedule 1.

Licensors and pub operating businesses

(6) A producer subject to the data collection obligations in this paragraph must maintain for each data collection period, and retain for at least 7 years after the end of the data collection period to which they relate, records of the information listed in paragraphs 22 and [F5323(2) and (3)] of Part 5 of Schedule 1.

(7) For the purposes of this regulation, “data collection period” means—

(a)the period from 28th February 2023 until 31st December 2023; and

(b)in subsequent years, the period of 12 months starting on 1st January.

Textual Amendments

Commencement Information

I17Reg. 17 in operation at 28.2.2023, see reg. 1(2)

Data reporting obligationsN.I.

18.—(1) A large producer (“LP”) who is subject to obligations in this regulation must, subject to paragraph (2), report the following information to the Department every six months, in accordance with this regulation, in such form and manner as the Department may direct—

(a)the information in Part 2 of Schedule 1;

(b)where LP is a brand owner, packer/filler, importer [F54or first UK owner,] or service provider, the information in [F55paragraphs 11 to 13, 16, 17 and] 23 of Schedule 1;

(c)where LP is a distributor, the information in paragraphs [F5611] to 13, 16, 17 and 23 of Schedule 1; and

(d)where LP is an online marketplace operator, the information in Part 4 and paragraph 23 of Schedule 1.

(2) The first report required under paragraph (1) must be made—

(a)for the six months ending on 30th June 2023; or

(b)if LP does not have sufficient data to report on the period from 1st January 2023 to 28th February 2023, for the period starting on 28th February and ending on 30th June 2023;

and must be submitted on or before 1st October 2023.

(3) Subsequent reports must be submitted—

(a)for the six months ending on 31st December , on or before 1st April in the following year;

(b)for the six months ending on 30th June, on or before 1st October in the same year.

(4) LP must ensure that the information reported to the Department under this regulation—

(a)is as accurate as reasonably possible; and

(b)is verified by the signature of the approved person of LP.

Textual Amendments

Commencement Information

I18Reg. 18 in operation at 28.2.2023, see reg. 1(2)

[F57Recycling dataN.I.

18A.—(1) Where information in a report submitted by a producer (“LP”) under regulation 18 in relation to a period of six months ending on or after 30th June 2024 (“regulation 18 report”) concerns packaging which has already been the subject of recycling obligations under regulation 4(4)(b) of, and Schedule 2 to, the 2007 Regulations (“relevant packaging”), LP may choose to submit a report under paragraph (2) (a “regulation 18A report”).

(2) A regulation 18A report must state the proportion of relevant packaging which LP has been required to recycle under the 2007 Regulations (“P”), calculated as follows —

formula

where—

(a)

“AP” is the amount in kilograms of relevant packaging which has previously been taken into account to calculate the recycling obligations of a producer under the 2007 Regulations;

(b)

“SP” is the sum of the percentages of that packaging which any class of producer has been required to recycle under the 2007 Regulations, as set out in paragraph 4 of Schedule 2 to those Regulations.

(3) Where LP chooses to submit a regulation 18A report, LP must submit the report—

(a)in such form and manner as the Department may direct;

(b)on the date on which LP submits a regulation 18 report or such other date as the Department may direct.

(4) Where a regulation 18A report is not submitted on the same date as the regulation 18 report, the regulation 18A report must also identify which data collection period it relates to.]

Textual Amendments

Notification of winding-up, receivership, administration, etcN.I.

19.—(1) A producer must inform the Department as soon as is practicable upon becoming aware that one or more of the relevant circumstances apply or are about to apply to them.

(2) For the purposes of this regulation “relevant circumstances” are—

(a)in the case of a corporate body—

(i)a winding-up order has been made or a resolution for voluntary winding-up has been passed;

(ii)a determination for a voluntary winding-up has been made;

(iii)a receiver or a manager of the company or limited liability partnership’s undertaking has been duly appointed;

(iv)its undertaking has entered administration;

(v)a voluntary arrangement proposed for the purposes of Part 2 of the Insolvency (Northern Ireland) Order 1989(15) has been approved under that Part of the Act;

(b)in the case of an individual—

(i)a moratorium has been granted in a debt relief order, within the meaning of Article 208A of the Insolvency (Northern Ireland) Order 1989(16);

(ii)a composition or arrangement has been made with creditors;

(iii)a receiver or trustee in bankruptcy has been duly appointed;

(iv)a bankruptcy order has been made.

Commencement Information

I19Reg. 19 in operation at 28.2.2023, see reg. 1(2)

PART 3N.I.Producers and schemes

Producers and Scheme membershipN.I.

20.—(1) Where a producer is a member of a registered scheme throughout a relevant year, the producer is exempt from its data reporting obligations under regulation 18 for the relevant year.

(2) Paragraph (1) does not apply unless the producer—

(a)provides any information the operator of the scheme requests for the purposes of meeting its obligations under regulation 21 within a reasonable period of receiving such a request;

(b)ensures that the information provided—

(i)is in such form as the scheme operator and the Department may direct;

(ii)is verified by the signature of the approved person of the producer; and

(iii)is as accurate as reasonably possible; and

(c)pays any fee required for membership of the scheme.

Commencement Information

I20Reg. 20 in operation at 28.2.2023, see reg. 1(2)

Schemes: general provisionsN.I.

21.—(1) The operator of a registered scheme (“OS”) must carry out the data reporting obligations under regulation 18 of each producer who is a member of the scheme that OS operates, provided that the producer satisfies the conditions in regulation 20(2).

(2) OS must retain records of any information provided to OS by its members to enable OS to make the reports required under paragraph (1), for at least 7 years after the date on which the report is submitted to the Department.

[F58(3) OS must monitor the accuracy of information provided by a producer to the scheme for the purposes of this regulation to ensure that the information complies with the requirement in regulation 20 (2)(b)(iii).]

Textual Amendments

Commencement Information

I21Reg. 21 in operation at 28.2.2023, see reg. 1(2)

Mid-year changesN.I.

22.—(1) This regulation applies with regard to changes in membership of a registered scheme.

(2) Subject to paragraphs (3) and (4), where a person who is a producer in respect of a year becomes a member of a registered scheme during that year, the data reporting obligations of the producer for that year, referred to in regulation 21(1), must be performed through the scheme.

(3) Subject to paragraph (4), where a person who is a producer in respect of a year ceases to be a member of a registered scheme during that year, that person must comply with their data reporting obligations for that year.

(4) Where a person who is a producer in respect of a year ceases to be a member of one registered scheme (“the first scheme”) and becomes a member of another registered scheme (“the second scheme”) during that year, the first scheme is not required to perform any of the producer’s data reporting obligations, referred to in regulation 21(1), and all such obligations must be performed through the second scheme.

Commencement Information

I22Reg. 22 in operation at 28.2.2023, see reg. 1(2)

PART 4N.I.The Department’s powers and duties

Publication of items recycled by district councilsN.I.

23.  The Department must publish—

(a)a list of those items which are collected for recycling from households by every district council in Northern Ireland responsible for waste collection; and

(b)a list of those items which are collected for recycling from households by more than 75% of district councils in Northern Ireland responsible for waste collection.

Commencement Information

I23Reg. 23 in operation at 28.2.2023, see reg. 1(2)

[F59Publication of list of large producersN.I.

23A.—(1) The Department must publish on a website a list of all large producers (“the list”) who have reported information to the Department under regulation 18.

(2) An entry for a producer on the list must contain—

(a)the name of the producer:

(b)the business name of the producer if different from that referred to in sub-paragraph (a);

(c)the name and address of the registered office of the producer, or if it is not a company, its head office or principal place of business.

(3) The list must be arranged and indexed so that it is capable of being searched by a member of the public.

(4) The Department must enter information on the list as soon as practicable after the information has been received by the Department.]

Textual Amendments

MonitoringN.I.

24.—(1) The Department must monitor in accordance with this regulation—

(a)compliance with their data collection obligations and reporting obligations by persons who are or may be producers; and

(b)compliance by operators of schemes with the obligations referred to in regulation 21(1) and (2).

F60(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) For the purposes of the discharge of its functions under these Regulations, the Department may serve a notice in writing (“an information notice”) on—

(a)any person who has, or who the Department has reason to believe has, data collection obligations or data reporting obligations,

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

(4) An information notice may require that person to maintain records, and supply to the Department any data specified in the notice which the Department 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 specified in the notice.

F61(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I24Reg. 24 in operation at 28.2.2023, see reg. 1(2)

Approved personsN.I.

25.—(1) The Department may approve a person listed in paragraph (2) for the purposes of—

(a)verifying information reported by a producer to the Department under regulation 18(4)(b); or

(b)verifying information provided by a producer to the operator of a scheme under regulation 20(2)(b)(ii).

(2) The persons listed are, where the producer—

(a)is an individual, that individual;

(b)is a partnership, a partner;

[F62(ba)is a limited liability partnership, a member of that partnership;]

(c)is a company registered in the United Kingdom, 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)is a company which does not have a registered office in the United Kingdom, an individual who has control or management of the producer.

(3) Subject to regulation 26, the Department may approve the delegation by an approved person of the person’s functions to any other person.

(4) An approved person who has delegated functions under paragraph (3) may continue to perform those functions.

(5) 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.

(6) In this regulation, and in regulation 26, “functions” means the functions referred to in paragraph (1)(a) and (b).

Textual Amendments

Commencement Information

I25Reg. 25 in operation at 28.2.2023, see reg. 1(2)

Delegation of approved persons’ functions: procedureN.I.

26.—(1) An approved person who proposes the delegation of their functions to another person under regulation 25(3) must apply for approval to the Department on a form supplied for that purpose by the Department, signed by the approved person.

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

(a)be granted where the Department 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 Department 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 Department may specify.

(5) Where an application for approval is granted in accordance with paragraph (2)(a), the Department must 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 Department may decide to withdraw approval granted under paragraph (2)(a) and, if such a decision is taken, must serve on the approved person written notice of—

(a)the decision to withdraw approval;

(b)the reasons for the decision;

(c)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 that has been approved under paragraph (2)(a), the person must serve written notice on the Department of this and of the date when the revocation takes effect, not being earlier than 28 days from the date of the notice.

Commencement Information

I26Reg. 26 in operation at 28.2.2023, see reg. 1(2)

Information sharingN.I.

27.  The Department may share any information it receives under these Regulations with the following entities to enable them to carry out their functions—

(a)another UK regulator;

(b)any person or entity authorised by the Department to receive that information.

Commencement Information

I27Reg. 27 in operation at 28.2.2023, see reg. 1(2)

PART 5N.I.Revocation

RevocationN.I.

28.  The Packaging Waste (Data Reporting) Regulations (Northern Ireland) 2023(17) are revoked.

Commencement Information

I28Reg. 28 in operation at 28.2.2023, see reg. 1(2)

Sealed with the Official Seal of the Department of Agriculture, Environment and Rural Affairs on 27th February 2023.

Legal seal

John Mills

A senior officer of the

Department of Agriculture, Environment and Rural Affairs

Regulation 17 and 18

SCHEDULE 1N.I.Collection and reporting information

PART 1N.I.Interpretation

1.  In this Schedule—N.I.

(a)“first reporting period” means—

(i)the period of six months starting on 1st January and ending on 30th June 2023; or

(ii)where regulation 18(2)(b) applies, the period starting on 28th February 2023 and ending on 30th June 2023;

(b)“reporting period”, other than the first reporting period, means a period of six months, starting on 1st January or 1st July;

(c)“relevant period” means the data collection period for information required for the purposes of regulation 17, and the reporting period for the purposes of regulation 18;

(d)references to the weight of packaging in kilograms or tonnes are references to the actual, measured weight of that packaging in kilograms to the nearest kilogram, or in tonnes to the nearest tonne.

Commencement Information

I29Sch. 1 para. 1 in operation at 28.2.2023, see reg. 1(2)

PART 2N.I.General Information

2.  The name, address and telephone number of the registered office of the producer or, if not a company, the head office or principal place of business of the producer.N.I.

Commencement Information

I30Sch. 1 para. 2 in operation at 28.2.2023, see reg. 1(2)

3.  The business name of the producer if different from that referred to in paragraph 2 above.N.I.

Commencement Information

I31Sch. 1 para. 3 in operation at 28.2.2023, see reg. 1(2)

4.  The name and contact details for the individual at the producer who is responsible for dealing with enquiries from the Department.N.I.

Commencement Information

I32Sch. 1 para. 4 in operation at 28.2.2023, see reg. 1(2)

5.  The address for service of notices on the producer if different from that referred to in paragraph 2 above.N.I.

Commencement Information

I33Sch. 1 para. 5 in operation at 28.2.2023, see reg. 1(2)

6.  Where the producer is a partnership, the names of all the partners.N.I.

Commencement Information

I34Sch. 1 para. 6 in operation at 28.2.2023, see reg. 1(2)

7.  Each class of producer to which the applicant belongs.N.I.

Commencement Information

I35Sch. 1 para. 7 in operation at 28.2.2023, see reg. 1(2)

8.  If they belong to more than one class of producer, which of these classes constitutes their main activity as a producer.N.I.

Commencement Information

I36Sch. 1 para. 8 in operation at 28.2.2023, see reg. 1(2)

9.  Where the producer is a brand owner—N.I.

(a)details of all the names, trade marks and other distinctive marks which appear on packaging for which the brand owner is responsible;

(b)whether the brand owner also produces packaging on which no name, trade mark or other distinctive mark appears.

Commencement Information

I37Sch. 1 para. 9 in operation at 28.2.2023, see reg. 1(2)

PART 3N.I.Information required from brand owners [F63, packers/fillers] , importers [F64or first UK owners] , distributors and service providers

Textual Amendments

10.—(1) This Part applies to producers who are—N.I.

(a)brand ownersF65... packaging for which there is no brand owner, packer/fillers;

[F66(aa)packers/fillers;]

(b)importers [F67or first UK owners] ;

(c)distributors; or

(d)service providers.

[F68(1A) A producer required by regulation 18 to report information in this Part—

(a)must only report that information in relation to packaging for which that person is a producer of a class listed in sub-paragraph (1);

(b)must not report any information in relation to any packaging in relation to which the producer only performs the function of a seller or an online marketplace operator.]

(2) A small producer must keep records of the information in paragraphs 11 and 13(1)(a), (b) and (d) to comply with [F69regulation 17(2)] .

(3) A large producer (“LP”) must—

(a)keep records of the information set out in paragraphs 11 to 17 for the data collection period as required by regulation 17(3); and

(b)as required by regulation 18(1)—

(i)report on [F70the information set out in paragraphs 11 to 13, 16, 17 and 23] in relation to the first reporting period and subsequent reporting periods; F71...

F72(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I38Sch. 1 para. 10 in operation at 28.2.2023, see reg. 1(2)

11.  The weight in kilograms of packaging in each packaging category the producer has supplied during the relevant period.N.I.

Commencement Information

I39Sch. 1 para. 11 in operation at 28.2.2023, see reg. 1(2)

12.  The weight in kilograms of household packaging in each packaging category the producer has supplied during the relevant period.N.I.

Commencement Information

I40Sch. 1 para. 12 in operation at 28.2.2023, see reg. 1(2)

13.—(1) A breakdown for the packaging supplied in each packaging category during the [F73relevant] period, specifying—N.I.

(a)whether the packaging is primary packaging, shipment packaging, secondary packaging, or tertiary packaging (its “packaging type”);

(b)the weight in kilograms of packaging supplied in each packaging type;

(c)the weight in kilograms of household packaging supplied which is primary packaging or shipment packaging;

(d)the weight in kilograms of packaging, and the number of units of packaging, in each packaging category which consist of drinks containers.

F74(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F75(3) Sub-paragraph (1) does not apply in relation to packaging which an importer or first UK owner is treated as supplying within the meaning of regulation 11(1A).]

Textual Amendments

Commencement Information

I41Sch. 1 para. 13 in operation at 28.2.2023, see reg. 1(2)

F7614.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.I.

Textual Amendments

15.  Producers who are distributors must also, for each large producer subject to obligations under regulation 16(3) to whom the producer has supplied unfilled household packaging or other unfilled packaging during the relevant period, keep records of—N.I.

(a)the identity of the producer;

(b)the number of units of such packaging supplied; and

(c)the weight of unfilled packaging and [F77of unfilled household] packaging supplied to that producer.

Textual Amendments

Commencement Information

I42Sch. 1 para. 15 in operation at 28.2.2023, see reg. 1(2)

[F7816.—(1)  Where the producer has instituted a system of reusing reusable packaging, a description of that system, including the following information––

(i)the weight in kilograms of all the packaging supplied during the relevant period that is reusable or refillable;

(ii)the weight in kilograms of the packaging which is primary packaging.

(2) The information provided under sub-paragraph (1) must be given for each packaging category supplied by the producer in the relevant period.

(3) The producer need only include information on the reusable household packaging in the year in which it is first supplied.]

Textual Amendments

17.—(1) The weight in kilograms of household packaging supplied by the producer [F79in the relevant period in each packaging category] which consists of items listed in sub-paragraph (2).N.I.

(2) The following items are relevant for the purposes of sub-paragraph (1)—

(a)packaging provided to consumers with take-away food or drink, including wraps, boxes, cups, cup-holders, bags [F80and paper] ;

(b)packaging on confectionary, where the confectionary weighs less than 230 grams, including chewing gum packaging and chocolate wrappers;

(c)packaging on cigarettes, cigars, tobacco and e-cigarettes;

(d)crisp packets or packaging on other savoury snacks, where the crisps or snacks weigh less than 60 grams;

(e)packaging on single portions of food which can be consumed immediately without further preparation, including sausage rolls, sushi, sandwiches, biscuits and individual cakes;

(f)cartons holding 850 millilitres or less of drink whose contents can be consumed immediately without dilution;

(g)pouches containing less than 600 millilitres of drink, whose contents can be consumed immediately without dilution.

Textual Amendments

Commencement Information

I43Sch. 1 para. 17 in operation at 28.2.2023, see reg. 1(2)

PART 4N.I.Information required from online marketplace operators

18.  Producers who are online marketplace operators—N.I.

(a)must keep records of, and report on, the information set out in paragraphs 19 and 20 [F81for all packaging in respect of which they are a producer under regulation 8(6)] ; and

(b)must provide a description of the methodology they use to collate the information required under sub-paragraph (a) to the Department.

Textual Amendments

Commencement Information

I44Sch. 1 para. 18 in operation at 28.2.2023, see reg. 1(2)

19.  The weight in kilograms of packaging in each packaging category [F82supplied through an online marketplace operated by the producer] during the relevant period.N.I.

Textual Amendments

Commencement Information

I45Sch. 1 para. 19 in operation at 28.2.2023, see reg. 1(2)

20.  The weight in kilograms of household packaging in each packaging category [F83supplied through an online marketplace operated by the producer] during the relevant period.N.I.

Textual Amendments

Commencement Information

I46Sch. 1 para. 20 in operation at 28.2.2023, see reg. 1(2)

PART 5N.I.Supply and discarding of packaging by nation

21.  Producers who are subject to the data collection obligations in regulation 17 must maintain records of the following information [F84for all packaging in respect of which they are a producer, or, for the information in paragraph 22, a producer of a class specified in that paragraph] —N.I.

(a)for small producers, the information in paragraph 22(1) [F85,where applicable] ;

[F86(b)for large producers, the information in paragraphs 22 and 23, where applicable.

(c)............]

Textual Amendments

Commencement Information

I47Sch. 1 para. 21 in operation at 28.2.2023, see reg. 1(2)

22.—(1) The weight in kilograms of—N.I.

(a)all packaging the producer supplies, where the producer is a seller, online marketplace operator, distributor or service provider;

(b)all packaging the producer [F87imports and then] discards where the producer is an importer;

[F88(c)all packaging the producer takes ownership of and then discards, when the producer is a first UK owner;]

in a year in each nation in the United Kingdom, in each packaging category.

[F89(2) For the purposes of reports submitted in relation to the relevant years 2024, 2025 and 2026, but not in relation to any later years, producers who are—

(a)sellers who supply secondary or tertiary packaging may estimate the amount of packaging which had been supplied to a nation of the United Kingdom in order to calculate the weight of packaging supplied to that nation;

(b)importers who import secondary or tertiary packaging [F90and first UK owners who are treated as supplying secondary or tertiary packaging] may estimate the amount of packaging discarded in a nation of the United Kingdom in order to calculate the weight of packaging discarded in that nation.]

(3) Sub-paragraph (2) does not apply to packaging which is supplied directly by the seller to the person using it.

Textual Amendments

Commencement Information

I48Sch. 1 para. 22 in operation at 28.2.2023, see reg. 1(2)

23.—(1) How much relevant packaging waste the producer has collected during the relevant period from persons other than the producer [F91and sent for recycling].N.I.

(2) How much packaging waste the producer has collected during the relevant period—

(a)consisting of the producer’s own packaging waste; and

(b)consisting of packaging waste from other persons.

(3) How much of the waste referred to in paragraph (2) was—

(a)collected from each nation within the United Kingdom;

(b)sent for recycling to another nation in the United Kingdom, identifying the nation concerned.

(4) The amount of waste declared under sub-paragraphs (1), (2) and (3) must be declared by weight, in kilograms, and be further broken down by packaging category.

(5) In this paragraph, packaging waste is “relevant packaging waste” if it is not collected from households for recycling by more than 75% of the district councils in Northern Ireland responsible for waste collection.

[F92(6) “Relevant packaging waste” includes reusable packaging which has been reused and has become waste, whether or not it is collected from households for recycling by more than 75% of relevant authorities in Northern Ireland responsible for waste collection.]

Textual Amendments

Commencement Information

I49Sch. 1 para. 23 in operation at 28.2.2023, see reg. 1(2)

Regulation 16(8)

SCHEDULE 2N.I.Licensors and Pub Operating Businesses

PART 1N.I.General

1.—(1) A head organisation is subject to data collection obligations under regulation 17(6) in the situations set out in paragraph 2(1) below where the conditions in paragraph 2(2) below are met.N.I.

(2) Where a head organisation has such obligations—

(a)paragraph 6 below applies to determine the obligations of a licensor; and

(b)paragraph 8 below applies to determine the obligations of a pub operating business.

Commencement Information

I50Sch. 2 para. 1 in operation at 28.2.2023, see reg. 1(2)

2.—(1) The situations referred to in paragraph 1 above are that—N.I.

(a)the head organisation and one or more of its members would, but for the fact that they do not all satisfy one or both of the tests for the threshold criteria in regulation 12(2), each have obligations under these Regulations;

(b)two or more members of the head organisation would, but for not satisfying one or both of the tests for the threshold criteria in regulation 12(2), each have obligations under these Regulations; or

(c)the head organisation has obligations under these Regulations and one or more of its members would, but for the failure to satisfy one or both of the tests for the threshold criteria in regulation 12(2), each have obligations under these Regulations.

(2) The conditions referred to in paragraph 1 above are that—

(a)the head organisation satisfies the threshold test relating to turnover in regulation 12(2)(a); and

(b)subject to paragraphs [F935 and 7] below, the head organisation and one or more of its members, or its members alone, in one of the situations in sub-paragraph (1)(a), (b) or (c) above, together satisfy the threshold test relating to packaging handled in regulation 12(2)(b).

Textual Amendments

Commencement Information

I51Sch. 2 para. 2 in operation at 28.2.2023, see reg. 1(2)

3.  Where the head organisation does not have the information necessary for the purposes of Parts 2 and 3 the organisation—N.I.

(a)must use its best endeavours to obtain such information; and

(b)where despite having used its best endeavours it nevertheless does not have such information it must produce its best estimate and that estimate must be used for the purposes of Parts 2 and 3.

Commencement Information

I52Sch. 2 para. 3 in operation at 28.2.2023, see reg. 1(2)

4.  For the purposes of this Schedule—N.I.

(a)“head organisation” means a licensor as defined in regulation 9 or a pub operating business as defined in regulation 10; and

(b)“member” means—

(i)where the head organisation is a licensor, a licensee being the person granted a licence to use a trade mark by the licensor under a licence agreement as provided for in regulation 9; or

(ii)where the head organisation is a pub operating business, a tenant being the person granted a lease or tenancy by the pub operating business as provided for in regulation 10.

Commencement Information

I53Sch. 2 para. 4 in operation at 28.2.2023, see reg. 1(2)

PART 2N.I.Licensors

5.  Where the head organisation is a licensor for the purposes of determining whether the condition in regulation 12(2)(b) is met, only the following packaging or packaging materials are to be taken into account—N.I.

(a)packaging or packaging materials that bear a trade mark of the head organisation for which a licence to use such trade mark has been granted under the licence agreement,

(b)packaging associated with goods that bear a trade mark of the head organisation for which a licence to use such a trade mark has been granted under the licence agreement; and

(c)where the member is obliged to—

(i)purchase goods in packaging;

(ii)purchase goods and associated packaging or packaging materials to be used to contain or protect such goods or to facilitate the handling of or for the presentation of such goods;

(iii)purchase packaging or packaging materials to be used to contain or protect such goods or to facilitate the handling of or for the presentation of such goods,

from the head organisation or, where the head organisation has negotiated some or all of the terms of the supply, a supplier nominated or authorised by the head organisation under the licence agreement, such packaging or packaging materials.

Commencement Information

I54Sch. 2 para. 5 in operation at 28.2.2023, see reg. 1(2)

6.  Where the head organisation is a licensor—N.I.

(a)where there is a situation falling in paragraph 2(1)(a) or (b) above and the conditions in paragraph 2(2) above have been met, the head organisation—

(i)is deemed to be a producer of a class or classes specified in regulation 8; and

(ii)has data collection obligations in respect of its own activities, where applicable, and those of its members in respect of the packaging or packaging materials set out in paragraph 5;

(b)where there is a situation falling in paragraph 2(1)(c) above and the conditions in paragraph 2(2) above have been met, the head organisation—

(i)has obligations as a producer in respect of its own activities;

(ii)is deemed to be a producer of one or more classes specified in regulation 8; and

(iii)has data collection obligations in respect of the activities of its members in respect of packaging or packaging materials set out in paragraph 5.

Commencement Information

I55Sch. 2 para. 6 in operation at 28.2.2023, see reg. 1(2)

PART 3N.I.Pub operating businesses

7.—(1) Where the head organisation is a pub operating business, for the purposes of determining whether the condition in regulation 12(2)(b) is met, only packaging or packaging materials specified in sub-paragraph (2) are to be taken into account.N.I.

(2) The packaging or packaging materials referred to in sub-paragraph (1) are packaging or packaging materials that contain the goods that are the subject of the obligation to purchase from the head organisation or person nominated or authorised by that head organisation under the pub operating agreement, whether or not the goods have been packed or filled in the packaging or packaging materials when they are purchased by the member.

Commencement Information

I56Sch. 2 para. 7 in operation at 28.2.2023, see reg. 1(2)

8.  Where the head organisation is a pub operating business—N.I.

(a)where there is a situation falling in paragraph 2(1)(a) or (b) above and the conditions in paragraph 2(2) above have been met, the head organisation—

(i)is deemed to be a producer of one or more classes specified in regulation 8; and

(ii)has data collection obligations in respect of its own activities, where applicable, and those of its members in respect of the packaging or packaging materials set out in [F94paragraph 7(2)] ; or

(b)where there is a situation falling in paragraph 2(1)(c) above and the conditions in paragraph 2(2) above have been met, the head organisation—

(i)has obligations as a producer in respect of its own activities;

(ii)is deemed to be a producer of one or more classes specified in regulation 8; and

(iii)has data collection obligations in respect of the activities of its members in respect of the packaging or packaging materials set out in paragraph 7(2).

Textual Amendments

Commencement Information

I57Sch. 2 para. 8 in operation at 28.2.2023, see reg. 1(2)

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations impose requirements on producers who are established in Northern Ireland to collect data on the packaging they supply to others, and, in some cases, to report some of that information to the Department of Agriculture, Environment and Rural Affairs.

Part 1 (regulations 1 to 15) contains the interpretation and general provisions for the rule. Part 2 (regulations 16 to 19) sets out the obligations on producers. Schedule 1 identifies the information which producers are required to collect and report on. Part 3 (regulations 20 to 22) makes provision for registered schemes and exempts producers who are members of a registered scheme from their data reporting obligations under these Regulations provided that they satisfy the requirements in regulation 20(2). Registered schemes are required to make reports on behalf of each of their members who satisfy these requirements. Part 3 also makes provision in relation to changes to the membership of a scheme in the middle of a relevant year.

Part 4 (regulations 23 to 27) sets out the powers and duties of the Department of Agriculture, Environment and Rural Affairs under these Regulations.

Part 5 (regulation 28) revokes the Packaging Waste (Data Reporting) Regulations (Northern Ireland) 2023.

A full impact assessment of the effect that this instrument will have on the costs of business, the voluntary sector and the public sector is available from www.legislation.gov.uk and from the Department of Agriculture, Environment and Rural Affairs, Klondyke Building, Cromac Avenue, Gasworks Business Park, Malone Lower, Belfast BT7 2JA.

(2)

The Department of the Environment was dissolved by Section 1(9) of the Departments Act (Northern Ireland) 2016 and, by virtue of Article 8(1)(c) of the Departments (Transfer of Functions) Order (Northern Ireland) 2016, its functions for the purposes of these Regulations were transferred to the Department of Agriculture, Environment and Rural Affairs.

(3)

OJ L312, 22.11.2008, p. 3.

(4)

OJ L150, 14.6.2018, p.109.

(6)

1994 c.26. Section 1 was amended by S.I. 2018/825.

(7)

2006 c.46. There are amendments to section 539 which are not relevant to these Regulations.

(10)

1979 c.4.

(12)

2006 c.46. Section 441 has been amended by S.I. 2008/393 and 2012/2301.

(14)

2010 c.4. Section 202 has been amended by paragraph 27(2) of Schedule 6 of the Finance Act 2010 (c. 13), section 35(5) of the Finance Act 2014 (c.26) and S.I. 2012/964.

(16)

S.I. 1989/2405 (N.I. 19) Articles 208A to 208X were inserted by N.I. 2010 c.16.

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