2003 No. 2254 (W.224)
FOOD, WALES
The Food (Brazil Nuts) (Emergency Control) (Wales) Regulations 2003
Made 2nd September 2003
Coming into force 5th September 2003

The National Assembly for Wales, being designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to the common agricultural policy of the European Community, in exercise of the powers conferred on it by that section, makes the following Regulations:
S.I. 1999/2788.
1972 c. 68.

1 Title, commencement and application
1 These Regulations may be cited as the Food (Brazil Nuts) (Emergency Control) (Wales) Regulations 2003 and shall come into force on 5th September 2003.
2 These Regulations apply in relation to Wales only.

2 Interpretation
1 In these Regulations —
“the Act” (“y Ddeddf”) means the Food Safety Act 1990 and, save where the context otherwise requires and subject to paragraph (2), any expression used both in these Regulations and in the Act has the meaning it bears in the Act;
“Brazil nuts” (“cnau Brasil”) means Brazil nuts in shell falling within CN code 0801 21 00 originating in or consigned from Brazil ;
“the Commission Decision” (“Penderfyniad y Comisiwn”) means Commission Decision 2003/493/EC imposing special conditions on the import of Brazil nuts in shell originating in or consigned from Brazil as amended by Commission Decision 2004/428/EC amending Decision 2003/493/EC as regards the points of entry through which Brazil nuts in shell originating in or consigned from Brazil may only be imported into the Community;
“Directive 98/53/EC” (“Cyfarwyddeb 98/53/EC”) means Commission Directive 98/53/EC laying down the sampling methods and the methods of analysis for the official control of the levels for certain contaminants in foodstuffs as amended by Commission Decision 2002/27/EC;
“food authority” (“awdurdod bwyd”) has the same meaning as in section 5(1A) and (3)(a) and (b) of the Act;
“free circulation” (“cylchrediad rhydd”) has the same meaning as in Article 23.2, as read with Article 24, of the Treaty establishing the European Community; and
“port health authority” (“awdurdod iechyd porthladd”) means in relation to any port health district constituted by order under section 2(3) of the Public Health (Control of Disease) Act 1984 , a port health authority for that district constituted by order under section 2(4) of that Act.
2 Any term used in the definition of “Brazil nuts” in paragraph (1) has the same meaning as in the Commission Decision.
1990 c. 16.
CN Code is the code number of the “combined nomenclature” established by Council Regulation 2658/87 on the tariff and statistical nomenclature and on the customs tariff (OJ No. L256, 7.9.87, p.1).
Words in reg. 2(1) substituted (31.7.2004) by The Food (Emergency Control) (Wales) (Miscellaneous Amendments) (No. 2) Regulations 2004 (S.I. 2004/1804), regs. 1, 4
OJ No. L201, 17.7.1998, p.93.
OJ No. L75, 16.3.2002, p.44.
1984 c. 22.

3 Prohibition on import
1 Subject to paragraph (3), no person shall import into Wales any Brazil nuts unless —
(a) the conditions specified in Articles 1.1, 4.1, 4.2 and Article 5 of the Commission Decision are satisfied in relation to those Brazil nuts; or
(b) the derogation contained in Article 1.2 of the Commission Decision (which is concerned with consignments which left Brazil prior to 5th July 2003) is satisfied in relation to them.
2 Subject to paragraph (3), no person shall import into Wales any Brazil nuts, except through a point of entry listed in Annex II to the Commission Decision.
3 Neither paragraph (1) nor paragraph (2) shall be taken to prohibit the import into Wales from a member State of any Brazil nuts which are in free circulation in that State.
4 Any person who knowingly contravenes paragraph (1) or (2) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months.

4 Enforcement
1 Subject to paragraph (2), it shall be the duty of each port health authority to execute and enforce these Regulations within its district.
2 In relation to any place which is not situated in the district of a port health authority, these Regulations shall be executed and enforced by the food authority for the area in which that place is situated.
3 For the purposes of the exercise of the duty referred to in paragraph (1) or, as the case may be, (2), an authorised officer of the authority concerned shall —
(a) ensure that the requirements referred to in paragraph (4) are adhered to; and
(b) have the same powers of entry as are bestowed on an authorised officer of an enforcement authority by section 32 of the Act for purposes connected with the Act or Regulations or Orders made under the Act.
4 The requirements are those specified in —
(a) Articles 1.1 and 4.1 of the Commission Decision (which are concerned with documentary checks relating to consignments of Brazil nuts);
(b) Article 4.2 and 4.4 of that Decision (which is concerned with the sampling and analysis of such consignments); and
(c) Article 5 of that Decision (which is concerned with the case where consignments are split).
5 Each port health authority and food authority shall give such assistance and information to the National Assembly for Wales and the Food Standards Agency as they may reasonably request in connection with the execution and enforcement of these Regulations.

5 Application of various provisions of the Food Safety Act 1990 and sampling and analysis
1 The following provisions of the Act shall apply for the purposes of these Regulations with the modification that any reference in those provisions to the Act or Part thereof shall be construed as a reference to these Regulations —
(a) section 20 (offences due to fault of another person);
(b) section 33(1) (obstruction etc. of officers);
(c) section 33(2), with the modification that the reference to “any such requirement as is mentioned in subsection (1)(b) above” shall be deemed to be a reference to any such requirement as is mentioned in section 33(1)(b) as applied by sub-paragraph (b);
(d) section 35(1) (punishment of offences), in so far as it relates to offences under section 33(1) as applied by sub-paragraph (b);
(e) section 35(2) and (3), in so far as it relates to offences under section 33(2) as applied by sub-paragraph (c);
(f) section 36 (offences by bodies corporate); and
(g) section 44 (protection of officers acting in good faith).
2 Section 29 of the Act (procurement of samples) shall apply for the purposes of these Regulations with the modifications that —
(a) for the words “an enforcement authority” there shall be substituted the words “ a food authority or as the case may be a port health authority ”;
(b) for subsection (b)(ii) there shall be substituted the following provision —

“(ii) is found by him at any premises which he is authorised to enter by virtue of regulation 4(3)(b) of the Food (Brazil Nuts) (Emergency Control) (Wales) Regulations 2003”

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

6 Re-dispatch or destruction of illegal imports
1 If on an inspection or examination of any Brazil nuts it appears to an authorised officer of a port health authority or as the case may be food authority that they do not comply with the maximum levels for aflatoxin B1 and aflatoxin total established by Commission Regulation (EC) No. 466/2001 setting maximum levels for certain contaminants in foodstuffs the authorised officer may after appropriate consultation with a person appearing to the authorised officer to be the importer serve on that person a notice ordering —
(a) the re-dispatch of the Brazil nuts to the country of origin within such reasonable period as shall be specified in the notice, but only if the conditions specified in points (a) to (c) of Article 6 of the Commission Decision are complied with; or
(b) (where those conditions are not complied with) the destruction of the Brazil nuts within such reasonable period as shall be so specified.
Reg. 6(1)(2) substituted (8.2.2004) by The Food (Emergency Control) (Miscellaneous Amendments) (Wales) Regulations 2004 (S.I. 2004/245), regs. 1(1), 2(2)
2 The notice served under paragraph (1) shall state —
(a) the right of appeal to a magistrates' court; and
(b) the period within which such an appeal may be brought.
3 Any person who is aggrieved by a decision of an authorised officer to serve a notice under paragraph (1) may appeal to a magistrates' court, which shall determine whether or not the notice should be upheld or set aside.
Words in reg. 6(3) substituted (8.2.2004) by The Food (Emergency Control) (Miscellaneous Amendments) (Wales) Regulations 2004 (S.I. 2004/245), regs. 1(1), 2(3)
4 The period within which such an appeal as is mentioned in paragraph (3) may be brought shall be 6 days from the date on which the notice was served exclusive of Saturdays, Sundays and Public Holidays and the making of the complaint shall be deemed for the purpose of this paragraph to be the bringing of the appeal.
5 The procedure on an appeal to a magistrates' court under paragraph (3) shall be by way of complaint for an order and the Magistrates' Court Act 1980 shall apply to the proceedings.
1980 c. 43.
6 If the court allows an appeal brought under paragraph (3) the authority concerned shall compensate the owner of the Brazil nuts concerned for any depreciation in their value resulting from the action taken by the authorised officer.
7 Any disputed question as to the right to or the amount of any compensation payable under paragraph (6) shall be determined by arbitration.
8 Any person who breaches the terms of a notice served under paragraph (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months.
Signed on behalf of the National Assembly for Wales under section 66(1) of the Government of Wales Act 1998 .
1998 c. 38.
Jane E. Hutt Minister for Health and Social Services.

(This note is not part of the Regulations)
These Regulations, which apply in relation to Wales only, implement Commission Decision 2003/493/EC imposing special conditions on the import of Brazil nuts in shell originating in or consigned from Brazil (OJ No. L168, 5.7.2003, p.33).
These Regulations —
(a) prohibit (subject to the derogation described below) the importation of “Brazil nuts” (defined in regulation 2(1)), except where —
(i) they are accompanied by a Brazilian Government health certificate and a report containing the results of official sampling and analysis, the importation takes place only through a specified point of entry and each consignment is identified with a code corresponding with that specified on the health certificate and the accompanying report containing the sampling and analysis results;
(ii) they are subject to specified documentary checks; and
(iii) each consignment is subjected to analysis for aflatoxin B1 and total aflatoxin levels before release onto the market (regulation 3);
(b) provide for their enforcement (regulation 4);
(c) apply with modifications certain provisions of the Food Safety Act 1990 for the purposes of the Regulations and provide for sampling and analysis (regulation 5); and
(d) provide for the re-dispatch to the country of origin or destruction of illegal imports of Brazil nuts (regulation 6).
The derogation is that Brazil nuts may be imported even though they are not accompanied by a Brazilian Government health certificate and a report containing the results of official sampling and analysis if —
(a) they left Brazil on or before 5th July 2003;
(b) the operator can show by means of sampling and analysis in the prescribed manner that the levels of aflatoxin B1 and total aflatoxin in the products do not exceed the maximum permitted levels; and
(c) the importation takes place through a specified point of entry (regulation 3).
The CN code referred to in the definition of “Brazil nuts” is a code number of the combined nomenclature established by Council Regulation 2658/87 on the tariff and statistical nomenclature and on the customs tariff (OJ No. L256, 7.9.87, p.1).
No regulatory appraisal has been prepared in relation to these Regulations.