Schedule 4: Producer responsibility obligations
1401 Schedule 4 makes provision for regulations under which producer responsibility obligations can be imposed on specified persons and in relation to specified products or materials.
Producer responsibility is a means by which businesses who place in-scope products or materials on the market are obligated to take greater responsibility for those products or materials, including once they have become waste. The Schedule specifies what regulations may make provision about in relation to the imposed obligations and the enforcement of those obligations.
Part 1: Requirements
General power
1402 Paragraph 1 sets out the power for the relevant national authority to make regulations to impose producer responsibility obligations on specified persons in respect of specified products or materials. Sub-paragraph (2) sets out that regulations may only be made for certain purposes. These purposes are preventing, or reducing the amount of, a product or material that becomes waste, and sustaining a minimum level of, or promoting or securing an increase in, the re-use, redistribution, recovery or recycling of products or materials.
1403 Paragraph 1(3) defines “producer responsibility obligations” to mean the steps required to be
taken to achieve a purpose in sub-paragraph (2).
Examples of provision that may be made
1404 Paragraph 2 sets out examples of what regulations may make provision about. This includes the persons and products or materials that producer responsibility obligations may apply to, and provisions about the obligations that are to be imposed. Regulations may also make provision about targets to be achieved as part of a producer responsibility obligation.
1405 Sub-paragraph (3) allows for a producer responsibility obligation to be met in whole or in part by the payment of a sum of money. Such a provision tends to be referred to as a “compliance fee”.
Registration of persons subject to producer responsibility obligations
1406 Paragraph 3 allows for regulations to mandate the registration of persons subject to a producer responsibility obligation. Regulations made under this paragraph may make provision about the details of the registration process and for registers to be published or made available for inspection.
Compliance schemes
1407 Paragraph 4 sets out the provisions that the regulations may include relating to the approval, withdrawal of approval, or establishment of compliance schemes. A compliance scheme is an organisation that persons who are subject to a producer responsibility obligation join. The compliance scheme operator then discharges those obligations on their behalf. Persons who are subject to a producer responsibility obligation may be required to join a compliance scheme, or it could be optional.
Registration of compliance schemes
1408 Paragraph 5 allows for regulations to make provisions in relation to the registration process for compliance schemes. This includes the procedures around appeals against the refusal of, imposition of conditions in connection with, or the cancellation of registration. Sub-paragraph
(4) allows for regulations to require registers to be published or made available for inspection.
Power to direct compliance scheme operators
1409 Paragraph 6(1) allows the relevant national authority to direct a compliance scheme not to take an action, if that action would be incompatible with any international agreement to which the United Kingdom is a party. The relevant national authority may also direct a compliance scheme to take any action that is required for the purpose of implementing an international agreement to which the United Kingdom is a party. Sub-paragraph (3)(a) sets out that a direction by a relevant national authority may include consequential, supplementary, incidental, transitional or saving provision. Sub-paragraph (3)(b) sets out the terms by which a direction may be enforceable.
Certificates of compliance
1410 Paragraph 7 allows for regulations to make provision about certificates of compliance. Sub- paragraph (2) outlines what provisions may be made, and sub-paragraph (3) sets out the definition of a “certificate of compliance”. A certificate of compliance is a document that certifies that an obligation has been met by an obligated business. It must be issued by a person who has been approved by an enforcement authority. This may be, for example, a Director of the obligated business. Sub-paragraph (4) allows for an enforcement authority to issue guidance on the issuing of certificates of compliance.
Consultation etc requirements
1411 Paragraph 8 requires the relevant national authority to consult the relevant stakeholders before making regulations under Part 1 of this Schedule. This consultation requirement may be met by a consultation before paragraph 8 comes into force.
1412 Paragraph 9(1) specifies conditions that the relevant national authority must be satisfied of before making regulations. The regulations must achieve one or more of the purposes in paragraph 1(2) and produce environmental or economic benefits. Those benefits should be significant compared to the likely costs and burdens. Any burdens imposed are imposed on persons most able to make a contribution to securing those benefits.
1413 Sub-paragraph (2) makes clear that the relevant national authority can impose obligations on any persons, to the exclusion of any others, even after having been satisfied by sub-paragraph (1)(e)(i). Sub-paragraph (3) specifies that if regulations are being made to implement an international agreement to which the UK is a party, then the relevant national authority does not need to be satisfied by the criteria in sub-paragraph (1).
1414 Paragraph 10 sets out that regulations made under this schedule must not restrict, distort, or prevent competition. If they do, then the effect must be the minimum possible to secure the environmental or economic benefits referred to in paragraph 9(1).
Interpretation
1415 Paragraph 11 defines certain terms used throughout Part 1 of the Schedule.
Part 2: Enforcement
General power
1416 Paragraph 12 introduces a power for the relevant national authority to make regulations about the enforcement of any requirements imposed by regulations made under Part 1 of this Schedule.
Powers to confer functions and Monitoring compliance
1417 Paragraphs 13 and 14 allow for functions to be conferred on one or more enforcement authorities. These functions may include the exercise of discretion, to monitor compliance with regulations, and to make available guidance about the exercise of its functions. Regulations may also provide for a person to be authorised to exercise functions on behalf of an enforcement authority.
Records and information
1418 Paragraph 15 makes provision for the keeping of records and to whom records, or information is to be provided to.
Powers of entry etc
1419 Paragraph 16 allows for regulations to confer on an enforcement authority powers of entry, inspection, examination, search and seizure. Sub-paragraph (2) sets out that regulations may include provision for powers to be exercisable only if a warrant is issued, and about the process of applying for and executing warrants. Warrants are needed to enter premises by force, enter a private dwelling without the consent of the occupier, and to search and seize material.
Sanctions
1420 Paragraphs 17 and 18 makes provision for penalties for a breach of a requirement in regulations and for the obstruction of or failure to assist an enforcement authority. These can be criminal offences (punishable with a fine) or civil sanctions. Provision for “civil sanction” and criteria around the imposition of sanctions are set out in paragraph 17(3) and paragraph 18, respectively.
Charges
1421 Paragraph 19 makes provision for:
- the payment of a charge to cover the costs incurred by an enforcement authority in performing its functions under the regulations; and
- a court order to include the payment of the costs incurred by an enforcement
authority’s in relation to the matter the court or tribunal has dealt with.
Consultation requirement
1422 Paragraph 20 requires the relevant national authority to consult relevant stakeholders before making regulations relating to enforcement. This consultation requirement may be met by a consultation before paragraph 20 comes into force.
Schedule 5: Producer responsibility for disposal costs
1423 Schedule 5 makes provision for regulations under which those involved in the manufacture, processing, distribution or supply of products or materials may be required to pay for or contribute to the costs of disposing of those items. Part 1 of the Schedule covers disposal costs, and the appointment of one or more administrators and Part 2 covers enforcement and the appointment of one or more regulators.
Part 1: Requirements
General power
1424 Paragraph 1 sets out the power for the relevant national authority to make regulations to require the payment of sums by specified persons relating to the disposal of specified products or materials.
Sub-paragraph (2) sets out that only those involved in manufacturing, processing, distributing or supplying the specified products or materials can be required to meet or contribute to such costs.
“Disposal costs” and “disposal”
1425 Paragraph 2 makes provision for determining what disposal costs are. These costs may include the costs of collecting, transporting, sorting, and treating products or materials for disposal.
They may also include the costs of providing the public with information about the disposal of products, for example through communication campaigns. Costs in relation to products or materials that have been disposed of unlawfully may also be included (for example, the costs of clearing up products or materials that have been littered or fly-tipped). Sub-paragraph (2)
clarifies that “disposal” includes the re-use, redistribution, recovery, and recycling of products or materials. Sub-paragraph (4) allows for disposal costs to be calculated in accordance with provision made in the regulations.
Calculation of sums payable
1426 Paragraph 3 allows for the amount to be paid to be calculated in accordance with the regulations and for this amount to vary according to the design or composition of a product or materials, or the methods by which it was made, or other factors such as its impact on the environment. For example, a producer of easily recycled products might pay less, and producers of unrecyclable products might pay more.
Administration
1427 Paragraph 4 provides for the appointment of one or more administrators. An administrator’s role is to manage provision made in relation to disposal costs in the regulations. Paragraph 4(1) includes the option of setting out a process for appointing an administrator(s) in regulations.
Registration
1428 Paragraph 5 makes provision for those who are required to pay disposal costs to register with an administrator and the payment of a registration fee. The administrator may also be required to register with an enforcement authority appointed by regulations made under this Schedule. Provision is also made for the regulations to establish the process for registering with an administrator. The regulations may require any registers that are made to be published or made available for inspection.
Payment of sums
1429 Paragraph 6 outlines the provisions that regulations may make regarding payments of sums to an administrator. This includes how the sums paid are to be held by the administrator. This might be, for example, into a bank account.
Distribution of sums paid
1430 Paragraph 7 makes provision for sums paid to an administrator to be distributed to persons who have incurred disposal costs in relation to the products or materials covered by the regulations. These sums can be distributed directly by the administrator to whom they have been paid, or to another administrator who then distributes among such persons. For example, an administrator may distribute sums to local authorities who have incurred costs in collecting and disposing of the products to which the regulations apply.
Repayment of sums paid
1431 Paragraph 8 allows for sums paid to an administrator to be paid back, in whole or in part, to the person who paid them. It allows for regulations to set out how the amount to be re-paid is calculated and the conditions under which any repayment may be made. For example, a repayment might be made if a material has been recycled into a high value application.
Charges
1432 Paragraph 9 makes provision for the payment of a charge to administrators to cover the
administrator’s costs incurred in relation to its functions.
Consultation requirements
1433 Paragraph 10 sets out that the relevant national authority must first consult the relevant stakeholders before making regulations under this Schedule. This consultation requirement may be met by a consultation before paragraph 10 comes into force.
Part 2: Enforcement
General power
1434 Paragraph 11 makes provision for the relevant national authority to make regulations for the enforcement of regulations made under Part 1 of this Schedule.
Powers to confer functions and Monitoring compliance
1435 Paragraphs 12 and 13 allow for functions to be conferred on one or more enforcement authority. These functions may include the exercise of discretion, to monitor compliance with regulations, and to provide guidance about the exercise of its functions available. Regulations may also provide for a person to be authorised to exercise functions on behalf of an enforcement authority.
Records and information
1436 Paragraph 14 makes provision for the keeping of records and to whom records or information is to be provided to.
Powers of entry etc
1437 Paragraph 15 allows for regulations to confer on an enforcement authority powers of entry, inspection, examination, search and seizure.
Sanctions
1438 Paragraph 16 makes provision for penalties for a breach of a requirement in regulations. These can be criminal or civil sanctions. A criminal offence (punishable with a fine) can only be imposed for breach of a civil sanction or for the obstruction of or failure to assist an enforcement authority.
Costs
1439 Paragraph 17 makes:
- provision for the payment of a charge to cover the costs incurred by an enforcement authority in performing its functions under the regulations; and
- provision for a court order to include for the payment of the costs incurred by an enforcement authority in relation to the matter the court or tribunal has dealt
Consultation requirements
1440 Paragraph 18 sets out that the relevant national authority must first consult the relevant stakeholders before making regulations under this Schedule. This consultation requirement may be met by a consultation before paragraph 18 comes into force.
