The Biocidal Products and Chemicals (Appointment of Authorities and Enforcement) Regulations 2013

Made: 18th June 2013

Laid before Parliament: 27th June 2013

Coming into force in accordance with regulation 2

These Regulations make provision for a purpose mentioned in section 2(2) of the 1972 Act and it appears to the Secretary of State that it is expedient for references in these Regulations to— Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012[^f00010] concerning the making available on the market and use of biocidal products to be construed as including references to Annexes I to IV of that Regulation as those Annexes are amended from time to time; Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008[^f00011] on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC and amending Regulation (EC) No 1907/2006, to be construed as including references to Articles 6(5), 11(3), 12, 14, 18(3)(b), 23, 25 to 29, 35(2) second and third sub-paragraphs and Annexes I to VII of that Regulation as those Articles and Annexes are amended from time to time; and Regulation (EU) No 649/2012 of the European Parliament and of the Council of 4 July 2012[^f00012] concerning the export and import of hazardous chemicals to be construed as including references to Annexes I, II, V and VI of that Regulation as those Annexes are amended from time to time.

Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012[^f00010] concerning the making available on the market and use of biocidal products to be construed as including references to Annexes I to IV of that Regulation as those Annexes are amended from time to time;

Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008[^f00011] on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC and amending Regulation (EC) No 1907/2006, to be construed as including references to Articles 6(5), 11(3), 12, 14, 18(3)(b), 23, 25 to 29, 35(2) second and third sub-paragraphs and Annexes I to VII of that Regulation as those Articles and Annexes are amended from time to time; and

Regulation (EU) No 649/2012 of the European Parliament and of the Council of 4 July 2012[^f00012] concerning the export and import of hazardous chemicals to be construed as including references to Annexes I, II, V and VI of that Regulation as those Annexes are amended from time to time.

PART 1 — INTRODUCTION

Citation, commencement and extent

1

These Regulations may be cited as the Biocidal Products and Chemicals (Appointment of Authorities and Enforcement) Regulations 2013.

2

• (1) Except as provided by paragraphs (2) to (5), these Regulations come into force on 1st September 2013.

• (2) Chapter 2 of Part 3 of these Regulations comes into force on 1st June 2015.

• (3) In so far as they apply to Chapter 2 of Part 3 of these Regulations or the CLP Regulation, regulations 4, 30 to 32 and 33(1) and Schedule 3 come into force on 1st June 2015.

• (4) Chapter 3 of Part 3 of these Regulations, regulations 7, 33(2) and 34(f) and Part 1 of Schedule 4 come into force on 1st March 2014.

• (5) In so far as they apply to Chapter 3 of Part 3 of these Regulations or the PIC Regulation, regulations 4, 31, 32 and 33(1) come into force on 1st March 2014.

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• (1) These Regulations shall not extend to Northern Ireland except as provided by paragraphs (2) and (3).

• (2) Regulations 1, 2(1), (4) and (5), 7, 33(2) and 34 (f) and Chapter 3 of Part 3 of these Regulations shall extend to Northern Ireland.

• (3) In so far as regulations 4, 31, 32 and 38 apply to Chapter 3 of Part 3 of these Regulations or the PIC Regulation, they shall extend to Northern Ireland.

• (4) Except for the regulations listed in paragraph (5), these Regulations apply outside Great Britain as sections 1 to 59 and 80 to 82 of the 1974 Act apply by virtue of the Health and Safety at Work etc. Act 1974 (Application Outside Great Britain) Order 2013[^f00013].

• (5) The regulations referred to in paragraph (4) are—

• (a) regulation 7;

• (b) Chapter 3 of Part 3; and

• (c) regulations 4, 31, 32 and 33 in so far as they apply to Chapter 3 of Part 3 or to the PIC Regulation.

Interpretation

4

• (1) In these Regulations—

• “the 1974 Act” means the Health and Safety at Work etc. Act 1974;

• “the 1978 Order” means the Health and Safety at Work (Northern Ireland) Order 1978[^f00014];

• “the Great Britain Executive” means, for the purposes of regulation 7 and Chapter 3 of Part 3, the Health and Safety Executive established under section 10[^f00015] of the 1974 Act;

• “the 1998 Regulations” means the Health and Safety (Enforcing Authority) Regulations 1998[^f00016];

• “the 2006 Regulations” means the Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006[^f00017];

• “the 2009 Regulations” means the Chemicals (Hazard Information and Packaging for Supply) Regulations 2009[^f00018];

• “the Biocides Regulation” means Regulation (EU) No 528/2012 of the European Parliament and of the Council concerning the making available on the market and use of biocidal products, of which Annexes II to IV are to be read as amended from time to time;

• “the CLP Regulation” means Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006, of which Articles 6(5), 11(3), 12, 14, 18(3)(b), 23, 25 to 29, 35(2) second and third sub-paragraphs and Annexes I to VII are to be read as amended from time to time;

• ...

• “competent authority” means the authority or authorities appointed in Great Britain for the purpose of carrying out the duties of a competent authority under the Biocides Regulation or the CLP Regulation;

• “contravention” includes a failure to comply and “contravene” has a corresponding meaning;

• “devolved administration” means the Scottish Ministers or the Welsh Ministers;

• “Devolved Authority” means— the Scottish Ministers, orthe Welsh Ministers;

• “inspector” means—a person appointed under section 19 of the 1974 Act; orfor the purposes of Chapter 3 of Part 3, a person falling within paragraph (a) or a person appointed under Article 21 of the 1978 Order;

• “local authority” means—in relation to England, a county council so far as it is the council for an area for which there are no district councils, a district council, a London borough council, the Common Council of the City of London, the Sub-Treasurer of the Inner Temple, the Under-Treasurer of the Middle Temple, or the Council of the Isles of Scilly;in relation to Wales, a county council or county borough council; andin relation to Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994[^f00019];

• “local weights and measures authority” has the meaning in section 69 of the Weights and Measures Act 1985[^f00020];

• “the Northern Ireland Executive” means the Health and Safety Executive for Northern Ireland established under Article 12 of the 1978 Order;

• “the PIC Regulation” means—in relation to Great Britain, Regulation (EU) No 649/2012 of the European Parliament and of the Council of 4 July 2012 concerning the export and import of hazardous chemicals, of which Annexes II, IV and VI are to be read as amended from time to time;in relation to Northern Ireland, Regulation (EU) No 649/2012 of the European Parliament and of the Council of 4 July 2012 concerning the export and import of hazardous chemicals as it has effect in Northern Ireland by virtue of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement;

• “the Review Regulation” means Commission Delegated Regulation (EU) No 1062/2014 of 4 August 2014 on the work programme for the systematic examination of all existing active substances contained in biocidal products referred to in Regulation (EU) No 528/2012 of the European Parliament and of the Council;

• “work” shall be construed in accordance with section 52 of the 1974 Act.

• (2) Expressions used in both—

• (a) Chapter 1 of Part 3 of, or Schedule 2 to, these Regulations; and

• (b) the Biocides Regulation,

have the same meaning in these Regulations as they have in the Biocides Regulation.

• (3) Expressions used in both—

• (a) Chapter 2 of Part 3 of these Regulations; and

• (b) the CLP Regulation,

have the same meaning in these Regulations as they have in the CLP Regulation.

• (4) Expressions used in both—

• (a) regulation 7 or Chapter 3 of Part 3 of these Regulations; and

• (b) the PIC Regulation,

have the same meaning in these Regulations as they have in the PIC Regulation.

PART 2 — APPOINTMENT OF COMPETENT AUTHORITIES AND DESIGNATED NATIONAL AUTHORITIES

Competent authorities and designated national authorities

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• (1) Subject to paragraph (2), for the purposes of Article 81(1) of the Biocides Regulation the competent authority is—

• (a) in England, the Secretary of State;

• (b) in Scotland, the Scottish Ministers; and

• (c) in Wales, the Welsh Ministers.

• (2) In relation to matters outside the competence of a devolved administration, the competent authority is the Secretary of State.

6

• (1) Subject to paragraph (2), for the purposes ... of the CLP Regulation the competent authority is—

• (a) in England, the Secretary of State;

• (b) in Scotland, the Scottish Ministers; and

• (c) in Wales, the Welsh Ministers.

• (2) In relation to matters outside the competence of a devolved administration, the competent authority is the Secretary of State.

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• (1) For the purposes of the PIC Regulation, the Designated National Authority is—

• (a) in England, Scotland and Wales, the Great Britain Executive;

• (b) in Northern Ireland, the Northern Ireland Executive.

• (2) In accordance with Article 18 of the PIC Regulation, the Designated National Authority is responsible for controlling the export and import of the following chemicals—

• (a) in relation to Great Britain, the chemicals listed in Parts 1, 2 and 3 of the GB PIC list;

• (b) in relation to Northern Ireland, the chemicals listed in Annex I to the PIC Regulation.

• (3) In paragraph (2), “the GB PIC list” means the list established and maintained in accordance with Articles 7 and 23 of the PIC Regulation.

PART 3 — CHAPTER 1

BIOCIDAL PRODUCTS

Application of the 1974 Act

8

• (1) The following provisions of the 1974 Act apply to regulations 12 and 13(2) of these Regulations and the Biocides Regulation as if they were health and safety regulations for the purposes of that Act, subject to the following provisions of this Chapter and to the extent that they would not otherwise do so—

• (a) sections 18 to 26 (in relation to enforcement); and

• (b) subject to regulations 32 and 33(1), sections 33 to 42 (in relation to offences).

• (2) The sections of the 1974 Act referred to in paragraph (1) shall not apply to duties placed by the Biocides Regulation on the competent authority ....

• (3) A failure by any person to discharge a duty referred to in paragraph (4) shall not constitute an offence under section 33(1)(c) of the 1974 Act.

• (4) The duties referred to in paragraph (3) are those contained in Articles 6(1), 7(1), 13(1) and (2)(b), 20(1), 26(1), 29(1), 31(1), 50(2), 54(1) and (2), 59(2), 62(1), 63(1), (2) and (3), 64(2), 71(3), 79, 93 and 95(1) of the Biocides Regulation.

• (5) Any function of the Health and Safety Executive under any provision of the 1974 Act in respect of health and safety regulations (including their enforcement) shall be exercisable as if this Chapter and the Biocides Regulation were, to the extent that they would not otherwise be so, health and safety regulations for the purposes of that Act.

• (6) The sections of the 1974 Act which are applied to the Biocides Regulation by paragraph (1) apply to the Biocides Regulation as if any reference to—

• (a) danger, or danger to health and safety, were a reference to danger to the health or safety of humans or animals or to danger to the environment; and

• (b) harm were a reference to harm to humans, animals or the environment.

• (7) Sections 22 and 25 of the 1974 Act apply to the Biocides Regulation as if the reference to serious personal injury in those sections were a reference to—

• (a) serious personal injury to humans;

• (b) a breach of the Biocides Regulation and serious injury to animals; or

• (c) a breach of the Biocides Regulation and serious harm to the environment.

Allocation of enforcement responsibility

9

• (1) Notwithstanding the 1998 Regulations, and subject to section 18(1A) of the 1974 Act and to paragraphs (2) to (7), the enforcing authority for regulations 12 and 13(2) of these Regulations and the Biocides Regulation is the Health and Safety Executive or the Office of Rail and Road, determined in accordance with the provisions of the 2006 Regulations.

• (2) Where a biocidal product or treated article is placed on the market or made available on the market—

• (a) in or from any shop, mobile vehicle, market stall or other retail outlet; or

• (b) otherwise to members of the public, including by way of free sample, prize or mail order,

the enforcing authority for regulation 12 of these Regulations and for the Articles of the Biocides Regulation listed in paragraph (3) is the local weights and measures authority.

• (3) The Articles referred to in paragraph (2) are—

• (a) Article 17(1), in so far as it relates to making biocidal products available on the market;

• (b) Article 58(2) to (6);

• (c) Article 69(1) and (2); and

• (d) Article 95(3).

• (4) The enforcing authority for Article 72 of the Biocides Regulation is the local weights and measures authority.

• (5) Subject to section 18(1A) of the 1974 Act and paragraph (6), the 1998 Regulations apply to the enforcement of Article 17(1) (in so far as it relates to the use of biocidal products) and Articles 17(5), 56(1) and (2) of the Biocides Regulation.

• (6) The enforcing authority for Article 17(1) (in so far as it relates to the use of biocidal products) and Article 17(5) of the Biocides Regulation—

• (a) in respect of any use not related to an activity involving work; or

• (b) in respect of any use by a domestic servant in a private household,

is the local authority for the area in which the use occurs.

• (7) Paragraph (6) does not apply in relation to any use which occurs on premises which are or are on—

• (a) an authorised defence site (within the meaning given in regulation 2(1) of the 1998 Regulations);

• (b) a new nuclear build site (within the meaning given in regulation 2A of those Regulations).

Limitation on entry to domestic premises in certain circumstances

10

• (1) In this regulation—

• “domestic premises” means premises occupied as a private dwelling (including any garden, yard, garage, outhouse or other appurtenance of such premises which is not used in common by the occupants of more than one such dwelling); and

• “justice” means—in relation to England and Wales, a justice of the peace; andin relation to Scotland, a sheriff, stipendiary magistrate or justice of the peace.

• (2) An inspector may not enter domestic premises in the exercise of that inspector’s powers under the 1974 Act, as applied to the Biocides Regulation by virtue of regulation 8(1)(a) of these Regulations, in respect of an activity which is not, or is not related to, an activity involving work, unless a justice has issued a warrant authorising the inspector to enter and exercise that inspector’s powers in those premises.

• (3) A justice may not issue such a warrant unless, on an application made by the inspector, the justice is satisfied—

• (a) that the inspector has reasonable grounds for believing that there is present in the domestic premises anything to which those powers relate; and

• (b) that—

• (i) it is not practicable to communicate with any person entitled to grant entry to those premises;

• (ii) a person entitled to grant entry to those premises has unreasonably refused an inspector entry;

• (iii) entry to those premises is unlikely to be granted unless a warrant is produced; or

• (iv) the purpose of entry may be frustrated or seriously prejudiced unless an inspector arriving at those premises can secure immediate entry to them.

Confidentiality

11

Information provided to the competent authority under the Biocides Regulation must not be treated as relevant information for the purposes of section 28 of the 1974 Act.

Labelling

12

The information required by Article 69 of the Biocides Regulation to be shown on the label of a biocidal product must be in English, whether or not it is also in another language.