The Producer Responsibility Obligations (Packaging Waste) Regulations 1997

For the purposes of the provision of further information by a special producer under regulations 6(4), or (8), if applicable, and 8, such information shall only be in respect of packaging or packaging materials other than packaging referred to in Part III of this Schedule.

5

For the purposes of the calculation of the recovery and recycling obligations of a special producer, Schedule 2 to these Regulations shall apply and item “P” in that Schedule shall be the amount by tonnage of packaging and packaging materials handled by the producer in the preceding year other than packaging referred to in Part III of this Schedule.

PART V — SPECIAL PRODUCERS—RECORDS AND RETURNS

6

A special producer shall, in relation to any relevant year—

• (a) make records and returns as required under regulation 22 in relation to the packaging and packaging materials referred to in paragraph 4 above, and in relation to such packaging and packaging materials when it becomes waste; and

• (b) in addition to any records and returns he is required to make under regulation 22 maintain, and retain for at least 4 years after the record is made, records of the information referred to in paragraph 7 below in respect of each relevant year, and shall make a return to the appropriate Agency of that information on or before 31st January in the year immediately following the relevant year.

7

The information is—

• (a) the amount in tonnes to the nearest tonne of packaging handled by the producer in the preceding year;

• (b) the amount in tonnes to the nearest tonne of the packaging referred to in sub-paragraph (a) above which was packaging referred to in Part III of this Schedule; and

• (c) any steps taken by the producer to promote or increase the recovery of the packaging referred to in sub-paragraph (b) above when it becomes waste.

8

In relation to a special producer the reference in regulation 7(c) to regulation 22 shall be read as a reference to regulation 22 and this Part of this Schedule.

SCHEDULE 4 — INFORMATION

PART I — Information to be contained in application for producer registration

1

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

2

The business name of the producer if different from that referred to in paragraph 1 above.

3

The address for service of notices on the producer if different from that referred to in paragraph 1 above.

PART II — Producer and Scheme Registration

PART III — Information to be included in application for registration of a scheme or competition scrutiny

4

The name of the scheme.

5

The name of the operator, and where the operator is a partnership whose principal place of business is in Scotland, the names of all the partners.

6

The address and telephone number of the registered office of the operator or, if not a company, the principal place of business of the operator, and, if more than one, all the operators.

7

The address for service of notices if different from that referred to in paragraph 6 above.

8

The names and addresses of the registered offices, or, if not companies, the principal places of business, of the scheme’s members.

9

Full particulars of the agreement for the constitution of the scheme including any rules or regulations to be observed by its members.

PART IV — Statement of the scheme’s policies and scheme’s operational plan

10

The matters to be contained in the statement with regard to the scheme’s policies referred to in regulation 12(3)(d) are—

• (a) the steps intended to be taken through the scheme to increase the use of recycled packaging waste in the manufacture of packaging, packaging materials or other products or materials supplied by its members; and

• (b) the principal methods by which packaging waste is to be recovered and recycled through the scheme, together with information about the steps the user or consumer may take to assist the scheme in applying these methods.

11

The matters to be contained in the scheme’s operational plan referred to in regulation 12(3)(e) are matters which demonstrate—

• (a) that sufficient financial resources and technical expertise will be available to enable the recovery and recycling obligations of the scheme’s members referred to in regulation 4(1)(b) to be discharged through the scheme;

• (b) that the arrangements for recovery and recycling through a scheme take account of any statement which, where the scheme is to be registered with the Agency, contains the Secretary of State’s policies in relation to the recovery and disposal of waste in England and Wales, and which is made under section 44A[^f00013] of the 1990 Act, and, where the scheme is to be registered with SEPA, contains that Agency’s policies in relation to the recovery and disposal of waste in Scotland, and which is made under section 44B of the 1990 Act;

• (c) that there are arrangements in place to enable the operator to supply further information as required under regulation 14;

• (d) how the recovery and recycling obligations of its members referred to in regulation 4(1)(b) will be performed as regards each of the packaging materials relevant to those obligations including—

• (i) the names and addresses of the reprocessors it is intended to use,

• (ii) the names of any waste collection or disposal authorities from whom packaging waste is intended to be obtained,

• (iii) the proportions in which the packaging waste which is to be recovered and recycled is to be obtained from the waste of a producer who is a member of the scheme, other industrial or commercial waste, household waste or other waste,

• (iv) the amounts to the nearest tonne of packaging waste it is proposed to recover in the three years immediately following registration, and

• (v) the amounts to the nearest tonne of each such packaging material which it is proposed to recycle in the three years immediately following registration; and

• (e) the steps it is proposed to take to recover and recycle any of the packaging materials relevant to the recovery and recycling obligations of the scheme’s members in order not to adversely affect the interests of any member of the scheme, or any other producer, whose recovery and recycling obligations are predominantly in relation to another such packaging material.

12

• (1) For the purposes of paragraph 11(d)(ii) above “waste collection authority” and “waste disposal authority” shall have the meanings given in section 30 of the 1990 Act.

• (2) For the purposes of paragraph 11(d)(iii) above “household waste”, “industrial waste” and “commercial waste” shall have the same meanings as in section 75 of the 1990 Act.

SCHEDULE 5 — PROCEDURE ON APPEALS

1

• (1) An operator of a scheme who wishes to appeal to the Secretary of State under regulation 18 shall do so by notice in writing given or sent to the Secretary of State.

• (2) The notice shall be accompanied by—

• (a) a statement of the grounds of appeal;

• (b) where the appeal relates to refusal of registration under regulation 16, a copy of the appellant’s application and any supporting documents;

• (c) where the appeal relates to cancellation of registration under regulation 17(1), a copy of the notification of the decision and any supporting documents;

• (d) a copy of any correspondence relevant to the appeal;

• (e) a copy of any other document relevant to the appeal; and

• (f) a statement indicating whether the appellant wishes the appeal to be in the form of a hearing or to be determined on the basis of written representations.

• (3) The appellant shall serve a copy of his notice of appeal on the appropriate Agency together with copies of the documents mentioned in sub-paragraph (2) above.

2

• (1) Subject to sub-paragraph (2) below, notice of appeal shall be given before the expiry of the period of 6 months beginning with the date of the decision which is the subject of the appeal.

• (2) The Secretary of State may at any time allow notice of an appeal to be given after the expiry of the period mentioned in sub-paragraph (1) above.

3

Where under regulation 19(2) the appeal is by way of a hearing, the person hearing the appeal shall, unless he has been appointed to determine an appeal under regulation 19(1)(a), make a written report to the Secretary of State which shall include his conclusions and recommendations or his reasons for not making any recommendations.

4

• (1) The Secretary of State or other person determining an appeal shall notify the appellant in writing of his decision and of his reasons.

• (2) If the Secretary of State determines an appeal after a hearing under regulation 19(2) he shall provide the appellant with a copy of any report made to him under paragraph 3 above.

• (3) The Secretary of State or other person determining an appeal shall, at the same time as notifying the appellant of his decision, send the appropriate Agency a copy of any document sent to the appellant under this paragraph.

SCHEDULE 6 — INFORMATION IN CERTIFICATE OF COMPLIANCE

The information to be contained in a certificate of compliance is as follows—

• (a) the name and address of the approved person who is issuing the certificate;

• (b) the date of the certificate;

• (c) the producer in respect of whom the approved person is issuing the certificate (“the relevant producer”);

• (d) the initial and further information provided by the relevant producer to the appropriate Agency in accordance with regulations 6(4)(b), 6(4)(c) or (8), as the case may be, and regulation 8, together with any changes made to such information and provided to the appropriate Agency in accordance with the undertakings referred to in regulations 7(a)(iii) and (iv);

• (e) a statement by the approved person that the certificate has been issued in accordance with any guidance issued by the appropriate Agency under section 94(4) of the Act; and

• (f) certification by the approved person as to whether the relevant producer has complied with his recovery and recycling obligations.

SCHEDULE 7 — PUBLIC REGISTER

Information regarding producer registration

1

The information to be contained in the register shall be—

• (a) for the years 1997 and 1998, the name and address of the registered office or principal place of business of the producer registered; and

• (b) for the year 1999 and subsequent years, the information referred to in sub-paragraph (a) above together with a statement in relation to each producer registered and each relevant year as to whether a certificate of compliance has been furnished.

Information regarding scheme registration

2

The information to be contained in the register shall be—

• (a) for the years 1997 and 1998—

• (i) the name of the scheme,

• (ii) the name and address of the registered office or principal place of business of each operator of the scheme, and

• (iii) the name and address of the registered office or principal place of business of the members of the scheme; and

• (b) for the year and subsequent years, the information referred to in sub-paragraph (a) above together with a statement in relation to each scheme member and each year as to whether the scheme has discharged the recovery and recycling obligations of its members referred to in regulation 4(1)(b).

SCHEDULE 8 — GROUPS OF COMPANIES

1

This Schedule applies in relation to a relevant year—

• (a) where a holding company and one or more of its subsidiaries, or two or more subsidiary companies of the same holding company (in either case referred to in this Schedule and Schedule 9 as “a group of companies”) each satisfies the provisions of Columns 1 to 3 of the Table in Schedule 1 in relation to a class or classes of producer; and

• (b) where the aggregate of the turnovers, and the aggregate of the amounts of packaging or packaging materials handled by each such company, are sufficient to satisfy the threshold tests as provided by paragraph 3 of Schedule 1.

2

Subject to regulation 4, in respect of a year each company referred to in paragraph 1 above is a producer of a class specified in an entry in Column 4 of the Table set out in Schedule 1 if—

• (a) in that year and the preceding year he performs the relevant functions specified in Column 1 of that Table in relation to that entry; and

• (b) in the preceding year he made supplies of the materials or products specified in Column 2 of that Table in relation to that entry of a class specified in Column 3 of that Table in relation to that entry;

and the other provisions of that Schedule, other than paragraph 3, shall also have effect for the purposes of determining to which class of producer such a company belongs.

3

For the purposes of this Schedule and Schedule 9 “subsidiary” and “holding company” have the same meanings as they have in section 736(1) of the Companies Act 1985[^f00014].

4

Subject to regulation 4, companies who are producers and are in a group of companies shall comply with their producer registration obligations for a relevant year by either—

• (a) being registered for that year with the appropriate Agency as required by regulation 5, in which case each company so registered has its own recovery, recycling and certifying obligations; or

• (b) the holding company and one or more of the subsidiaries being registered together for that year with the appropriate Agency, (in this Schedule and Schedule 9 referred to as a “group registration”) in which case paragraphs 5 and 6 below shall apply.

5

Where there is a group registration—

• (a) the subsidiary companies in the group registration are exempt from complying with their producer responsibility obligations for the relevant year;

• (b) the holding company has a producer registration obligation for the relevant year which is an obligation to make the group registration and for this purpose regulations 5 to 11, and Parts I and II of Schedule 4, shall be read as if—

• (i) references to the applicant or the producer were references to the holding company,

• (ii) references to information to be provided regarding the producer were to information to be provided regarding each company in the group registration, and

• (iii) the references in regulations 6(4)(d) and 9 to a fee for producer registration were read as references to a fee for group registration;

• (c) the holding company has recovery and recycling obligations for the relevant year which are the aggregate of its own obligations in respect of that year, if any, and the obligations which the subsidiary companies in the group registration would have had but for the group registration;

• (d) the holding company shall furnish records and returns and provide a certificate of compliance, and references in regulation 23 and Schedule 6—

• (i) to a producer shall be read as references to the holding company, and

• (ii) to information shall be read as references to information regarding each company in the group registration; and

• (e) regulation 34(1) (offences) shall not apply to the companies in the group and paragraphs 6 and 7 below shall apply instead.

6

Where in accordance with this Schedule there is a group registration the holding company is guilty of an offence if—

• (a) it does not comply with its recovery and recycling obligations referred to in paragraph 5(c) above; or

• (b) it does not furnish a certificate of compliance in accordance with paragraph 5(d) above.

7

A person guilty of an offence under paragraph 6 above shall be liable—

• (a) on summary conviction to a fine not exceeding the statutory maximum; or

• (b) on conviction on indictment, to a fine.

8

This Schedule is subject to the provisions of Schedule 9.

SCHEDULE 9 — MID-YEAR CHANGES

PART I — SCHEME MEMBERSHIP

1

Subject to paragraph 4 below, where a person who is a producer in respect of a year becomes a member of a registered scheme during that year, the recovery and recycling obligations of the producer for that year, referred to in regulation 4(1)(b), shall be performed through the scheme.

2

Subject to paragraph 3 below, where a person who is a producer in respect of a year ceases to be a member of a registered scheme during that year, he shall comply with his recovery and recycling obligations for that year, calculated as provided in regulation 3 and Schedule 2.

3

Where a person who is a producer in respect of a year ceases to be a member of a registered scheme, because the registration of the scheme has been cancelled in accordance with regulation 17, during that year he shall comply with a proportion of his recovery and recycling obligations for the year, calculated as follows—

$$DE$ where— D is the number of days in the relevant year from the date when such membership ceased, and E is the number of days in the relevant 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 shall not be required to perform any of the producer’s recovery and recycling obligations, referred to in regulation 4(1)(b), and all such obligations shall be performed through the second scheme.

PART II — GROUP MEMBERSHIP

5

This Part applies where—

• (a) a company joins a group of companies and becomes a company to which paragraph 1 of Schedule 8 applies; or

• (b) a holding company or subsidiary company to which paragraph 1 of Schedule 8 applies ceases to belong to a group of companies.

6

Where paragraph 5(a) above applies the company shall either—

• (a) be registered separately with the appropriate Agency as required by regulation 5; or

• (b) be registered with the appropriate Agency as part of a group registration under Schedule 8 and for the purposes of this paragraph—

• (i) such registration is effected upon notice being given by the holding company to the appropriate Agency of the change in the group registration, and

• (ii) where prior to joining the group of companies the company was registered with an appropriate Agency, the Agency shall cancel the company’s registration on receipt of that notice and regulations 11(2) and (3) shall apply to that cancellation.

7

Where—

• (a) paragraph 5(a) above applies;

• (b) in relation to the obligation year the company itself satisfies the threshold tests; and

• (c) the company is registered as part of a group registration;

the holding company shall be required to comply with the requirements of the company’s recovery and recycling obligations for the year in which it joins the group.

8

Where—

• (a) paragraph 5(a) above applies;

• (b) in relation to the obligation year the company itself satisfies the threshold tests; and

• (c) the company is registered separately with the appropriate Agency;

the company shall comply with its recovery and recycling obligations for the year in which it joins the group.

9

Where—

• (a) paragraph 5(a) above applies;

• (b) in relation to the obligation year the company itself does not satisfy the threshold tests; and

• (c) the company is part of a group registration;

the holding company shall comply with a proportion of the requirements of the company’s recovery and recycling obligations for the year in which it joins the group, such proportion being calculated as provided in paragraph 17(1) below.

10

Where—

• (a) paragraph 5(a) above applies;

• (b) in relation to the obligation year the company itself does not satisfy the threshold tests; and

• (c) the company is registered separately with the appropriate Agency;

the company shall comply with a proportion of its recovery and recycling obligations for the year in which it joins the group, such proportion being calculated as provided in paragraph 17(1) below.

11

Where—

• (a) paragraph 5(b) above applies; and

• (b) in relation to the obligation year the company itself satisfies the threshold tests;

it shall register with the appropriate Agency as required by regulation 5 within 28 days of ceasing to be a member of a group and regulations 6 to 11 shall apply as if this were an occurrence specified in regulation 6(3).

12

Where—

• (a) paragraph 5(b) above applies;

• (b) in relation to the obligation year the company itself satisfies the threshold tests; and

• (c) the company was registered as part of a group registration;

the following shall apply—

• (i) the holding company shall comply with a proportion, calculated as provided in paragraph 17(1) below, of the requirements of the company’s recovery and recycling obligations for the year in which it ceases to be a member of the group, and

• (ii) the company shall comply with a proportion of its recovery and recycling obligations for that year, such proportion being calculated as provided in paragraph 17(1) below, except that for this purpose G is the number of days in the relevant year during which the company was not a member of the group.

13

Where—

• (a) paragraph 5(b) above applies;

• (b) in relation to the obligation year the company itself satisfies the threshold tests; and

• (c) the company is registered separately with the appropriate Agency;

the company shall comply with its recovery and recycling obligations for the year in which it ceases to be a member of the group.

14

Where—

• (a) paragraph 5(b) above applies;

• (b) in relation to the obligation year the company itself does not satisfy the threshold tests; and

• (c) the company was registered as part of a group registration;

the holding company shall be required to comply with a proportion of the requirements of the company’s recovery and recycling obligations for the year in which it ceases to be a member of the group, such proportion being calculated as provided in paragraph 17(1) below.

15

Where—

• (a) paragraph 5(b) above applies;

• (b) in relation to the obligation year the company itself does not satisfy the threshold tests; and

• (c) the company was registered separately with the appropriate Agency;

the holding company shall comply with a proportion of the requirements of the company’s recovery and recycling obligations for the year in which it ceases to be a member of the group, such proportion being calculated as provided in paragraph 17(1) below.

16

Where in a relevant year paragraph 5 above applies to a company as a result of that company ceasing to be a member of one group (“the first group”) and becoming a member of another group (“the second group”)—

• (a) where in relation to each group the company is registered as part of a group registration, each holding company shall comply with the requirements of a proportion of the company’s recovery and recycling obligations, such proportion being calculated as provided in paragraph 17(2) below;

• (b) where in relation to each group the company is registered separately with the appropriate Agency, the company shall comply with its recovery and recycling obligations for the year;

• (c) where in relation to the first group the company was registered as part of a group registration and in relation to the second group the company is registered separately with the appropriate Agency, the holding company in relation to the first group, and the company, shall each comply with a proportion of the company’s recovery and recycling obligations, such proportion being calculated as provided in paragraph 17(2) below; or

• (d) where in relation to the first group the company was registered separately with the appropriate Agency and in relation to the second group the company is registered as part of a group registration, the company, and the holding company in relation to the second group, shall each comply with a proportion of the company’s recovery and recycling obligations, such proportion being calculated as provided in paragraph 17(2) below.

17

• (1) The proportion referred to in paragraphs 9, 10, 12(c)(i) and (ii), 14 and 15 above shall be calculated as follows—

$$GH$ where— G is the number of days in the relevant year during which the company was a member of the group, and H is the number of days in the relevant year.$

• (2) The proportion referred to in paragraph 16(a), (c) and (d) above shall be calculated as provided in sub-paragraph (1) above except that for this purpose G is the number of days in the relevant year during which the company was a member of the group in relation to which the calculation is being made.

18

For the purposes of this Part of this Schedule—

• (a) the “threshold tests” means the threshold tests provided in paragraph 3 of Schedule 1; and

• (b) “obligation year” has the meaning given in that Schedule for the purposes of the definition of the threshold tests.

PART III — INCAPACITY

19

Where in a relevant year a producer dies or becomes bankrupt or incapacitated (“the first producer”) that person shall cease to have any producer responsibility obligations for that year and any person who carries on the activities of the first producer following that event shall be treated as a producer and shall have the producer responsibility obligations of the producer for that year.

20

Any person carrying on the activities of the first producer referred to in paragraph 19 above shall within 28 days of commencing to do so—

• (a) inform the appropriate Agency 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; and

• (b) apply to be registered as required by regulation 5 and for this purpose the requirement in regulation 6(4)(d) (payment of a fee) shall not apply.

21

In relation to a producer which is a company, the references to a person becoming bankrupt or incapacitated in paragraph 19 above shall be construed as references to it going into liquidation or receivership or to an administration order being made in relation to it.

SCHEDULE 10 — UNITED KINGDOM'S RECOVERY AND RECYCLING TARGETS

The United Kingdom’s recovery and recycling targets are—

• (a) no later than the year 2001 between 50 per cent as a minimum and 65 per cent as a maximum by weight of the packaging waste is to be recovered; and

• (b) within this general target and with the same time limit between 25 per cent as a minimum and 45 per cent as a maximum by weight of the totality of packaging materials contained in packaging waste are to be recycled with a minimum of 15 per cent by weight for each packaging material.

Signed

John Gummer — Secretary of State for the Environment — 5th March 1997

Lindsay — Parliamentary Under-Secretary of State, Scottish Office — 5th March 1997

Explanatory note

(This note is not part of the Regulations)

These Regulations impose on producers obligations to recover and recycle packaging waste, and related obligations, in order to attain the targets in article 6(1) of Directive 94/62/EC.

A producer (defined in regulation 3) who in a year (“a relevant year”) has a specified level of turnover (set out in Schedule 1) and handles (as defined in Schedule 1) packaging or packaging materials (defined in regulation 2) weighing more than 50 tonnes has an obligation in the following year to recover and to recycle packaging waste, as set out in Schedule 2 (“the individual route”). These obligations will apply from the year 1998, except in relation to wholesalers to whom they will only apply from the year 2000.

Certain categories of producer are excluded by regulation 4. In particular, a producer who joins a scheme which undertakes to meet the recovery and recycling targets of all its members is not required to comply with its obligations. In such cases the obligations are performed through the scheme.

There are special provisions for groups of companies (regulation 29 and Schedule 8) and special producers (regulation 4 and Schedule 3 Parts III to V). “Packaging”, “packaging waste”, “recovery”, “recycling” and “reuse” are defined as in Directive 94/62/EC.

Under regulation 5 producers who are not members of registered schemes need to be registered with the Environment Agency or, in Scotland, the Scottish Environment Protection Agency. The producer applies in accordance with regulation 6 and must supply, in particular, the information set out in Parts I and II of Schedule 4. The Agency will normally require the applicant to undertake to inform the Agency of material changes and to give the other undertakings mentioned in regulation 7. An applicant who complies with the relevant requirements (regulation 6(5)) will be registered. Registration will continue unless and until cancelled, but is subject to an updating of information before 1 April each year (regulation 8). There is provision for cancellation of registration where, for example, a producer fails to provide information (regulation 11(1)) or joins a registered scheme (regulation 11(2)).

There are similar registration requirements for schemes in regulations 12 to 17. To be registered must have the approval of the Secretary of State and satisfy the requirements of competition scrutiny in regulation 31 (regulation 12(4)).

Registered producers, and operators of schemes, are required to maintain records and furnish returns to the appropriate Agency (regulations 22 and 24). Registered producers are also to provide certificates of compliance with their recovery and recycling obligations (regulation 23).

Regulations 25 and 26 set out the duties of the appropriate Agencies to monitor compliance and in relation to a public register. Regulations 27 and 28 concern the powers of the appropriate Agencies to approve persons to issue certificates of compliance and of entry and inspection. Regulations 32 and 33 exclude and modify the Restrictive Trade Practices Act 1976 respectively.

Under regulation 34 it is an offence to contravene the producer responsibility obligations to register, recover and recycle packaging waste, and furnish a certificate of compliance to the appropriate Agency, or to provide false or misleading information, or to prevent the appropriate Agencies from exercising their powers of entry and inspection, or to fail to furnish information in connection with competition scrutiny.

An assessment which shows the cost of compliance to businesses (a “compliance cost assessment”) in respect of these Regulations may be obtained from the Department of the Environment, Environment Business and Management Division, Branch EBM2, Room C9/02, 2 Marsham Street,London SW1P 3EB. A copy has been placed in the library of each of the Houses of Parliament.

Footnotes

[^f00001]: 1995 c. 25; see section 93(8) for the definitions of “prescribed” and “regulations”.

[^f00002]: O.J. No. L365, 31.12.94, p. 10.

[^f00003]: 1990 c. 43.

[^f00004]: O.J. No. L194, 25.7.75, p. 39; articles 1 to 12 and Annexes I and IIB were amended by Directive 91/156/EEC, O.J. No. L78, 26.3.91, p. 32.

[^f00005]: 1996 c. 1.

[^f00006]: 1976 c. 34.

[^f00007]: 1964 c. 71.

[^f00008]: 1985 c. 6; section 223 was inserted by section 3 of the Companies Act 1989 c. 40.

[^f00009]: Section 262 was inserted by section 22 of the Companies Act 1989.

[^f00010]: Section 242 was inserted by section 11 of the Companies Act 1989.

[^f00011]: S.I. 1996/No. 972. Regulation 2 was substituted by S.I. 1996/No. 2019.

[^f00012]: S.I. 1996/No. 2092.

[^f00013]: Sections 44A and 44B were inserted by section 92 of the Environment Act 1995. At the date of making these Regulations no such policies have been prepared.

[^f00014]: Section 736 was substituted by section 144(1) of the Companies Act 1989.