Joint Committee on Statutory Instruments Twenty-Fifth Report



APPENDIX IV

Memorandum by the Ministry of Agriculture, Fisheries and Food

FEEDING STUFFS (AMENDMENT) REGULATIONS 1999

  1. By a letter dated 30 June 1999 the Committee has requested that a memorandum be submitted by the Ministry on the following point:

      New regulation 15(3) (substituted by regulation 4(a)) prohibits any person from putting into circulation (a) phosphates containing cadmium or arsenic in excess of the specified maximum, and (b) citrus pulp containing dioxin in excess of the specified maximum (Chapter A of Part II of Schedule 5. On the other hand, new regulation 15(4) permits phosphates (containing cadmium or arsenic in excess of the maximum amount specified in Part I of Schedule 5) and citrus pulp (containing dioxin in excess of the maximum amount specified in that Part) to be put into circulation if certain conditions are met. Explain the effect of new regulation 15(3) and (4), given that the same maximum content is specified (in Part I of Schedule 5 and Chapter A of Part II of that Schedule) for the substances in question (cadmium, arsenic and dioxin).

  2. The Ministry understands that, in outline, what is called for is a structural explanation of the overlap between regulation 15(3) and 15(4).

  3. Regulation 15(3) contains an absolute rule on proportion in relation to four classes of potentially dangerous substance and (depending on the substance) nine classes of feed material.

  4. Regulation 15(4) contains a qualified rule on proportion in relation to around forty classes of potentially dangerous substance and (depending on the substance) up to all classes of feed material, the qualification, in simplified terms, being that the limit can be exceeded if the material goes to an approved destination for processing.

  5. Neither rule is expressed to be subject to the other and it therefore follows that compliance with the one cannot be lawful if it is a breach of the other.

  6. To give three examples of how the rules work:

      (a)  assume the feed material is fish meal and the potentially dangerous substance is nitrites:

        (i)  regulation 15(3) is irrelevant;

        (ii)  regulation 15(4) specifies a proportion limit of 60 mg/kg, subject to the qualification;

        (iii)  it follows that fish meal with more than 60mg/kg nitrites in it cannot be put into circulation otherwise than to an approved destination for processing, while if it goes to an approved destination for processing there is no limit on the nitrite proportion;

      (b)  assume the feed material is cotton seed and the potentially dangerous substance is aflatoxin B1:

        (i)  regulation 15(3) specifies an absolute proportion limit of 0.2 mg/kg;

        (ii)  regulation 15(4) specifies a proportion limit of 0.05 mg/kg, subject to the qualification;

        (iii)  it follows that cotton seed with more than 0.05 mg/kg aflatoxin B1 in it cannot be put into circulation otherwise than to an approved destination for processing, while if it goes to an approved destination for processing the limit on the aflatoxin B1 proportion is 0.02 mg/kg;

      (c)  assume the feed material is phosphates and the potentially dangerous substance is cadmium (one of the examples in the Committee's question):

        (i)    regulation 15(3) specifies an absolute proportion limit of 10 mg/kg;

        (ii)  regulation 15(4) specifies a proportion limit of 10mg/kg, subject to the qualification;

        (iii)  it follows that phosphates with more than 10mg/kg cadmium in them cannot be put into circulation, whether to an approved destination for processing or to any other destination.

  7. In answer to the potential supplementary question why cadmium in phosphates is covered by regulation 15(4) at all, the answer is that, regulation 15(4) operates so as to set limits by reference to Part I of Schedule 5, all the limits in which operate as unqualified limits in relation to use as feeding stuffs -see regulation 15(1).

  8. The Feeding Stuffs Regulations 1995 are due for consolidation later this year and the Ministry will then consider whether a different drafting mechanism can be used to make the position clearer.

5th July 1999


 
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