The Feed (Sampling and Analysis and Specified Undesirable Substances) (Wales) Regulations 2010

Methods and procedures for the sampling and analysis of animal feedingstuffs are laid down in a number of Commission directives, which date back almost forty years and which have been amended and extended on numerous occasions. These directives have now been replaced by a measure which brings their provisions together in a single, comprehensive document – Commission Regulation (EC) No 152/2009 of 27 January 2009 laying down the methods of sampling and analysis for the official control of feed, which is directly applicable in all EU member states.

It is also necessary to transpose into national law the provisions of Commission Directive 2009/141/EC of 23 November 2009 amending certain entries in annexe 1 of Directive 2002/32 on undesirable substances. This annexe has been transposed into national law as Schedule 5 to the Feeding Stuffs (Wales) Regulations 2006 (as amended), which lays down statutory upper limits for a range of contaminants from various sources.

EC Regulation 152/2009 primarily consolidates existing sampling and analysis methods and procedures, although it also deletes a number of methods of analysis that are considered to be no longer valid or fit for purpose. However, EC Regulations apply directly in member states and their provisions cannot be repeated in national legislation. It will therefore be necessary to repeal existing secondary legislation that implements the Commission directives and introduce a new measure to provide for the administration and application of the EC regulation by linking its provisions to the powers of enforcement officers.

It will also be necessary to modify primary legislation, the Agriculture Act 1970, to bring certain of its provisions into line with those in the EC regulation and to disapply those of its provisions that cover territory now occupied by the EC regulation.

Commission Directive 2009/141 extends and in some cases tightens the current range of statutory upper limits known as maximum permitted levels (MPLs) for the undesirable substances arsenic, theobromine and certain alkaloid containing or toxic weed seeds. The amendments are being made following an Opinion from the relevant panel of the European Food Safety Authority, which has been undertaking a review of the MPLs in the light of advances in scientific knowledge and experience of the actual presence of these undesirable substances in feed and their effects on animal health.

The key features of the draft Feed (Sampling and Analysis and Specified Undesirable Substances) (Wales) Regulations 2010 are set out below:

• Revocation of the Feed (Sampling and Analysis) Regulations 1999 (which applies on a UK-wide basis) and associated measures. Among other things, this revocation will remove from national legislation all references to a prescribed amount for the purposes of the definition of sampled portion
• prescribing the qualifications required for an analyst to undertake work under the Feed (Sampling and Analysis and Specified Undesirable Substances) (Wales) Regulations 2010
• linking the requirements of sections 75(1) and 78(1) of the Agriculture Act 1970 to the methods of analysis laid down in EC Regulation 152/2009
• laying down the form of the certificate of analysis to be completed by the analyst; amending section 66(1) of the Agriculture Act 1970 to include the defined term 'final sample' and to insert a reference to EC Regulation 152/2009
• modifying sections 68–71 inclusive and section 77, and amending sections 73 and 73A, to replace 'sampled portion' with 'final sample'
• amending sections 77 and 78 to replace the existing text concerning the taking, sealing and marking of samples with references to the procedures laid down in EC Regulation 152/2009
• making consequential amendments to regulation 29 of the Feed (Hygiene and Enforcement) (Wales) Regulations 2005 to align the requirements for the appointment of analysts, the taking of samples and the notification of results with those of EC Regulation 152/2009
• making consequential amendments to the Genetically Modified Animal Feed (Wales) Regulations 2004 to remove existing references to the Agriculture Act 1970 and the Feeding Stuffs (Sampling and Analysis) Regulations 1999
• transposing into national law the amended entries for arsenic, theobromine and certain alkaloid-containing and toxic weed seeds from Annexe I of Directive 2009/141.

There will be separate but parallel regulations for England, Scotland and Northern Ireland.

Key stakeholders were kept apprised of the content of both the draft European regulation and the draft Commission directive while they were under discussion in the Standing Committee on the Food Chain and Animal Health in Brussels. We are now formally consulting on the draft Feed (Sampling and Analysis and Specified Undesirable Substances) (Wales) Regulations 2010. The issues on which we would like stakeholders' views are set out in the box immediately below. Comments from small businesses are particularly requested.

• whether the qualifications for analysts have been correctly set out, and if not whether there are any additional or alternative qualifications that should be specified
• whether the methods of analysis set out in EC Regulation 152/2009 are appropriate to the work involved
• whether there are any methods of analysis that have been deleted from EC Regulation 152/2009 which should be retained in national legislation, and if so why?
• whether it is appropriate to replace the methods of taking samples laid down in the Agriculture Act 1970 and the Feed (Sampling and Analysis) Regulations 1999 with their equivalents in EC Regulation 152/2009, and if not why the existing methods should be retained
• whether the consequential amendments to the Feed (Hygiene and Enforcement) Regulations and the GM Feed Regulations will achieve their intended purpose
• whether it is appropriate to increase the current MPLs for arsenic in products of marine origin, such as seaweed and fishmeal, and in feedingstuffs for fish
• whether it is appropriate to introduce limits for arsenic in feed additives
• whether it is appropriate to remove the existing limit for theobromine in feed for cattle
• whether it is appropriate to introduce new, lower limits for theobromine in feed for pigs, dogs, rabbits and horses; whether it is appropriate to consolidate the existing entries for certain alkaloid-containing or toxic weed seeds
• whether the potential benefits set out in section 5 of the impact assessment are likely to be realised, and if not what factors may militate against this
• whether the potential costs set out in section 6 of the impact assessment have been correctly calculated, and if not what alternative or additional costs may potentially be incurred
• what if any new administrative burdens may be incurred, with supporting evidence where possible; and whether the competition, sustainability and other assessments set out in the annexe to the impact assessment are justified, and if not what alternative arguments or evidence should be used.

All comments received will be summarised and published on the Food Standards Agency website as part of the post-consultation action unless stakeholders particularly request that their comments be treated as confidential. Comments can be made by post, by fax, or by email.

Responses are required by 5pm 19 April 2010. Please state, in your response, whether you are responding as a private individual or on behalf of an organisation or company (including details of any stakeholders your organisation represents).

This consultation has been prepared in accordance with the HM Government Code of Practice on Consultation, which states that a consultation must follow better regulation best practice, including carrying out an Impact Assessment (Regulatory Impact Assessment in Scotland). The assessment is included in the consultation documents.

We are interested in what you thought of this consultation and would therefore welcome your general feedback on both the consultation package and overall consultation process. If you would like to assist us to improve the quality of future consultations, please feel free to share your thoughts with us by using the consultation feedback questionnaire.

Consultation feedback questionnaire (Word)

Consultation feedback questionnaire (pdf)

In accordance with the FSA principle of openness our Information Centre at Aviation House will hold a copy of the completed consultation. The FSA will publish a summary of responses, which may include personal data, such as your full name. Disclosure of any other personal data would be made only upon request for the full consultation responses. If you do not want this information to be released, please complete and return the Publication of Personal Data Form. Return of this form does not mean that we will treat your response to the consultation as confidential, just your personal data.

Data protection form (Word)

Data protection form (pdf)

Within three months of a consultation ending we aim to publish a summary of responses received and provide a link to it from this page.

If, after three months, the summary is still not showing, please contact the person who was responsible for the original consultation. Alternatively, you can contact the FSA Consultation Co-ordinator by email: consultationcoordinator@foodstandards.gsi.gov.uk