The Animal By-Products (Enforcement) (Scotland) Regulations 2011

PART 1 Introduction

Citation, commencement and extent

1.—(1) These Regulations may be cited as the Animal By-Products (Enforcement) (Scotland) Regulations 2011 and come into force on 4th March 2011.

(2) These Regulations extend to Scotland only.

Interpretation

2.—(1) In these Regulations—

“animal by-product requirement” has the meaning given in regulation 17;

“authorised person” has the meaning given in regulation 22;

“competent authority” has the meaning given in regulation 3;

“enforcement authority” has the meaning given in regulation 21(5);

“EU Control Regulation” means Regulation (EC) No 1069/2009 of the European Parliament and of the Council laying down health rules as regards animal by-products and derived products not intended for human consumption and repealing Regulation (EC) No 1774/2002 (Animal by-products Regulation)(1);

“EU Implementing Regulation” means Commission Regulation (EU) No 142/2011 implementing Regulation (EC) No 1069/2009 of the European Parliament and of the Council laying down health rules as regards animal by-products and derived products not intended for human consumption and implementing Council Directive 97/78/EC as regards certain samples and items exempt from veterinary checks at the border under that Directive, as amended from time to time;

“premises” includes—

(a)

any land, building (including any domestic premises), shed or pen;

(b)

any receptacle or container;

(c)

any ship; or

(d)

vehicle of any description; and

“ship” includes a hovercraft, submersible craft and any other floating craft but not a vessel which—

(a)

permanently rests on or is permanently attached to the seabed; or

(b)

is an installation within section 16 of the Energy Act 2008(2).

(2) Expressions used in these Regulations that are also used in the EU Control Regulation or the EU Implementing Regulation have the same meaning in these Regulations as they have in the EU Control Regulation and in the EU Implementing Regulation, as the context may require.

(3) Any reference in these Regulations to anything done in writing or produced in written form includes a reference to an electronic communication, as defined in the Electronic Communications Act 2000(3), which has been recorded and is consequently capable of being reproduced.

PART 2 The competent authority and miscellaneous provisions

The competent authority

3.  The Scottish Ministers are the competent authority for the purposes of—

(a) the EU Control Regulation; and

(b) the EU Implementing Regulation.

Access in relation to the prohibitions in Article 11(1)(a), (b) or (d) of the EU Control Regulation

4.  In relation to a prohibition on feeding in Article 11(1)(a), (b) or (d) of the EU Control Regulation, the requirements of regulations 5 and 6 apply.

5.—(1) Animal by-products, including catering waste, must not be brought on to any premises where farmed animals are kept.

(2) Paragraph (1) does not apply—

(a) where, in relation to bringing on to premises, the occupier of the premises and the person having control of the animal by-products ensure that bringing on to the premises will not allow farmed animals to have access to such products; and

(b) to derived products, except for the following derived products—

(i) products derived from catering waste; and

(ii) meat and bone meal derived from Category 2 material and processed animal proteins intended to be used as or in organic fertilisers and soil improvers that do not comply with the requirements of Article 32(1)(d) of the EU Control Regulation.

6.  A carcase or part of a carcase of any farmed animal that has not been slaughtered for human consumption must be held, pending consignment or disposal, in accordance with the EU Control Regulation as read with the EU Implementing Regulation, in such manner as to ensure that any animal or bird will not have access to it.

Use of organic fertilisers and soil improvers and extended waiting period for pigs in relation to the prohibition in Article 11(1)(c) of the EU Control Regulation

7.—(1) In accordance with Article 32(1) of the EU Control Regulation, the application of organic fertilisers or soil improvers to land is prohibited, where, during the period of 60 days from the application of such products, it is intended that pigs will—

(a) have access for grazing to such land; or

(b) be fed cut herbage from such land.

(2) Where organic fertilisers or soil improvers have been applied to land, in addition to the minimum waiting period that applies to farmed animals, pigs are prohibited during an additional waiting period, resulting in a total period of 60 days from such application, from—

(a) having access to such land; or

(b) being fed cut herbage from such land.

(3) Paragraphs (1) and (2) do not apply to the following organic fertilisers or soil improvers:—

(a) manure;

(b) milk;

(c) milk based products;

(d) milk derived products;

(e) colostrum;

(f) colostrum products; and

(g) digestive tract content.

(4) In this regulation—

(a) “the minimum waiting period” is the period of 21 days commencing from the date of application of organic fertilisers or soil improvers to land as provided in Article 11(1)(c) of the EU Control Regulation, as read with Article 5(2) of, and Chapter II of Annex II to, the EU Implementing Regulation; and

(b) “the additional waiting period” is the period of 39 days commencing on the expiration of the minimum waiting period.

Collection centres for feeding in relation to Article 18(1) of the EU Control Regulation

8.  In relation to Article 18(1) of the EU Control Regulation and in accordance with Article 13 of the EU Implementing Regulation, as read with point 3 of Section 1 of Chapter II of Annex VI to that Regulation, a processing plant for Category 2 material which is approved for the purpose of being a collection centre for Category 2 material is authorised as a collection centre.

Remote areas referred to in Article 19(1)(b) of the EU Control Regulation

9.  For the purposes of applying Article 19(1)(b) of the EU Control Regulation, the following areas are categorised as remote areas:—

(a) the area of the Argyll and Bute Council, excluding the Parishes of Arrochar (339), Cardross (347), Dunoon and Kilmun (140), Inverchaolain (141), Kilfinan (142), Kilmodan (143), Kingarth (276), Lochgoilhead and Kilmorich (144), Luss (349), North Bute (other than the island of Inchmarnock) (277), Rhu (340), Rosneath (341), Rothesay (278), Strachur (145) and Strathlachlan (146);

(b) the area of Comhairle nan Eilean Siar;

(c) the area of the Highland Council, excluding the Parishes of Abernethy and Kincardine (438), Alvie (439), Ardclach (605), Ardersier (445), Auldearn (606), Boleskine and Abertarff (433), Cawdor (607), Cromdale, Inverallan and Advie (586), Croy (446), Croy and Dalcross (608), Daviot and Dunlichity (447), Dores (448), Duthil and Rothiemurchus (440), Inverness and Bona (449), Kingussie and Insh (441), Kirkhill (436), Moy and Dalarossie (450), Nairn (609) and Petty (451);

(d) in the area of North Ayrshire Council, the parishes of Cumbrae (279), Kilbride (274) and Kilmory (275);

(e) the area of the Orkney Islands Council;

(f) in the area of the Perth and Kinross Council, the Parish of Fortingall (679); and

(g) the area of the Shetland Islands Council.

Placing on the market in relation to Article 36 of the EU Control Regulation

10.  In relation to Article 36 of the EU Control Regulation and in accordance with Article 24(4) of the EU Implementing Regulation, as read with point B of Chapter VII to Annex XIII to that Regulation, the placing of untreated wool and hair from farms or from establishments or plants is authorised without restrictions except where they present a risk of any disease communicable through those products to humans or animals.

PART 3 Registration and approval

Procedure for registration of plants and establishments

11.  A notification must be made in writing to the competent authority, where it is made in relation to the following Article of the EU Control Regulation:—

(a) with a view to registration in accordance with Article 23(1); or

(b) to inform the competent authority of changes in accordance with Article 23(2).

Notifications of competent authority in respect of registration

12.  The competent authority must give notice in writing to—

(a) the operator who has notified in accordance with regulation 11 of—

(i) the registration of such an operator; or

(ii) the decision not to register; and

(b) a registered operator of—

(i) a prohibition made under Article 46(2) of the EU Control Regulation (prohibition on operations);

(ii) a requirement to comply with Article 23(1)(b) or (2) of the EU Control Regulation (information on activities and up to date information); or

(iii) the amendment of the registration or the ending of the registration where an operator has notified the competent authority of the closure of an establishment in accordance with Article 23(2) of the EU Control Regulation (up-to-date information).

Procedure for application for approval

13.  Operators to whom Article 24(1) of the EU Control Regulation applies, must apply in writing to the competent authority to be—

(a) approved; or

(b) where Article 33 of the EU Implementing Regulation applies, re-approved.

Notification in respect of decisions on approval

14.  The competent authority must give notice in writing to—

(a) the applicant for approval of the—

(i) grant of approval in accordance with Articles 24 and 44 of the EU Control Regulation;

(ii) grant of conditional approval in accordance with Articles 24 and 44 of the EU Control Regulation, or the extension of such approval in accordance with that Article; or

(iii) refusal to grant approval in accordance with the initial application or extension;

(b) where conditional approval has been granted in accordance with Articles 24 and 44 of the EU Control Regulation, the operator of the plant or establishment subject to such approval of the—

(i) grant of full approval;

(ii) extension of such approval;

(iii) imposition of conditions in accordance with Article 46(1)(c) of the EU Control Regulation;

(iv) suspension of such approval in accordance with Article 46(1)(a) of the EU Control Regulation;

(v) withdrawal of such approval in accordance with Article 46(1)(b) of the EU Control Regulation;

(vi) refusal to extend or grant full approval; or

(vii) prohibition in accordance with Article 46(2) of the EU Control Regulation; or

(c) the operator of an approved plant or establishment of the—

(i) imposition of conditions in accordance with Article 46(1)(c) of the EU Control Regulation;

(ii) suspension of such approval in accordance with Article 46(1)(a) of the EU Control Regulation;

(iii) withdrawal of such approval in accordance with Article 46(1)(b) of the EU Control Regulation; or

(iv) prohibition in accordance with Article 46(2) of the EU Control Regulation.

Reasons for decisions

15.—(1) Where a decision is made by the competent authority as provided in paragraph (2), the competent authority must give reasons in writing for that decision, with the decision.

(2) The types of decision are those made—

(a) in respect of registration, under regulation 12(a)(ii) (not to register) or regulation 12(b) (requirements, amendments or ending of registration);

(b) in respect of an application of approval, as mentioned in regulation 14(a)(ii) (conditional approval) or regulation 14(a)(iii) (refusal);

(c) in respect of conditional approval, as mentioned in regulation 14(b)(v) (withdrawal) or regulation 14(b)(vii) (refusal);

(d) in respect of the suspension or withdrawal of full approval, as mentioned in regulation 14(c)(ii) or regulation 14(c)(iii);

(e) in respect of the imposition of conditions, as mentioned in regulation 14(b)(iii) or regulation 14(c)(i);

(f) in respect of a prohibition as mentioned in regulation 14(b)(vii) or regulation 14(c)(iv).

Appeals procedure

16.—(1) Where the competent authority has notified a decision referred to in regulation 15(2), a person may make written representations to a person appointed for the purpose by the Scottish Ministers within 21 days of the notification of that decision.

(2) The competent authority may also make written representations to the appointed person concerning the decision.

(3) The appointed person must then report in writing to the Scottish Ministers, who will then make their final determination.

(4) The Scottish Ministers must give to the appellant written notification of the Scottish Ministers’ final determination and the reasons for it.

PART 4 Offences and penalties

Offence in respect of EU Control Regulation

17.—(1) Any person—

(a) to whom an animal by-product requirement applies; and

(b) who contravenes or fails to comply with such a requirement,

commits an offence.

(2) In these Regulations “animal by-product requirement” means a requirement in any provision of the EU Control Regulation or the EU Implementing Regulation specified in column 2 of Schedule 1 to these Regulations as read with, where applicable, any provision of the EU Control Regulation, the EU Implementing Regulation or these Regulations specified in column 3 of that Schedule.

Offence of obstruction

18.  A person is guilty of an offence if that person, in relation to an authorised person acting under these Regulations—

(a) intentionally obstructs the authorised person;

(b) without reasonable cause, fails to give to the authorised person any information or assistance or to provide any facilities that such person may reasonably require;

(c) knowingly or recklessly gives false or misleading information to the authorised person; or

(d) fails to produce a record or document when required to do so by the authorised person.

Offences by bodies corporate, Scottish partnerships and unincorporated associations

19.—(1) Where—

(a) an offence under these Regulations has been committed by a body corporate or a Scottish partnership or other unincorporated association; and

(b) it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of—

(i) a relevant individual; or

(ii) an individual purporting to act in the capacity of a relevant individual,

the individual as well as the body corporate, Scottish partnership or unincorporated association, is guilty of the offence and is liable to be proceeded against and punished accordingly.

(2) In paragraph (1), “relevant individual” means—

(a) in relation to a body corporate—

(i) a director, manager, secretary or other similar officer of the body;

(ii) where the affairs of the body are managed by its members, a member;

(b) in relation to a Scottish partnership, a partner; and

(c) in relation to an unincorporated association other than a Scottish partnership, a person who is concerned in the management or control of the association.

Penalties

20.  A person guilty of an offence under these Regulations is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding 12 months or both; or

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 2 years or both.

PART 5 Enforcement

Enforcement authority

21.—(1) These Regulations are enforced by—

(a) subject to paragraph (2), a local authority; or

(b) in relation to a food hygiene establishment, the Scottish Ministers.

(2) The Scottish Ministers may, in relation to particular cases or cases of particular descriptions, as they may direct, enforce these Regulations in place of the local authority.

(3) In paragraph (1)(a) “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994(4).

(4) In paragraph (1)(b), “food hygiene establishment” means an establishment referred to in regulation 5(2)(a) of the Food Hygiene (Scotland) Regulations 2006(5) in respect of which the Food Standards Agency has enforcement functions under those Regulations.

(5) A body exercising functions by virtue of paragraph (1) or (2) is referred to in these Regulations as an enforcement authority.

Authorised person

22.—(1) An enforcement authority may authorise in writing such persons as the authority considers appropriate to act for the purpose of enforcing these Regulations.

(2) A person authorised under paragraph (1) is referred to in these Regulations as an authorised person.

Powers of authorised person

23.  An authorised person may, on production, if so required, of his or her duly authenticated authorisation, exercise any of the powers specified in regulations 24 and 26.

Powers of entry and additional powers

24.—(1) For the purpose of ensuring that the EU Control Regulation, the EU Implementing Regulation and these Regulations are complied with, an authorised person may enter any premises (excluding any premises used only as a private dwelling house) at any reasonable hour.

(2) The authorised person may in relation to the power under paragraph (1)—

(a) be accompanied by such other persons as the authorised person considers necessary (including, where there is reasonable cause to anticipate any serious obstruction in the execution of the authorised person’s duty, a constable);

(b) take any equipment or materials required for any purpose for which the power of entry is being exercised;

(c) carry out any examination and investigation as may in the circumstances be necessary;

(d) as regards any premises which the authorised person has power to enter, direct that those premises, or part of them, are left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under sub-paragraph (c);

(e) take such measurements and photographs and make such recordings as are considered necessary for the purpose of any examination or investigation under sub-paragraph (c);

(f) in the case of any articles or substances found in or on any premises which the authorised person has power to enter—

(i) take samples;

(ii) test any sample or subject any sample to any process, where it appears that it has or is likely to cause harm to human health or to the health of animals or plants;

(iii) take possession of any sample and retain it for so long as is necessary for any of the following purposes:—

(aa) to examine it and to exercise the power within paragraph (ii);

(bb) to ensure that it is not tampered with before examination of it is completed; and

(cc) to ensure that it is available for use as evidence in any proceedings for an offence under these Regulations;

(g) require the production of or, where the information is recorded in computerised form, the furnishing of extracts from, any records which it is necessary to see for the purposes of any examination or investigation under sub-paragraph (c) and to inspect and take copies of, or of any entry in, the records;

(h) require any person to afford such facilities and assistance with respect to any matters or things within that person’s control or in relation to which that person has responsibilities as are necessary to enable the authorised person to exercise any of the powers conferred on the authorised person by this regulation; or

(i) mark any animal or animal by-product as the authorised person considers necessary.

(3) Where an authorised person proposes to exercise the power in paragraph (2)(f)(ii) in the case of any article or substance found in or on any premises, the authorised person must—

(a) if so requested by a person who at the time is present and has responsibilities in relation to those premises, cause anything which is to be done by virtue of that power, to be done in that person’s presence; and

(b) consult such persons as appear to the authorised person appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which is proposed under that power.

(4) Where an authorised person in respect of the power in paragraph (2)(f)(iii)—

(a) proposes to exercise that power, the authorised person must before taking possession, if it is practicable to do so, give to a responsible person at the premises a portion of the sample, marked in a manner sufficient to identify it; or

(b) exercises that power, the authorised person must leave a notice giving particulars of the article or substance sufficient to identify it and stating that possession has been taken under that power, such notice to be left either—

(i) with a responsible person; or

(ii) if that is impracticable, fixed in a conspicuous place at those premises.

(5) Nothing in this regulation compels the production by any person of information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings.

Warrant

25.—(1) If a sheriff or justice of the peace, on sworn information in writing, is satisfied that there is reasonable ground for entry into any premises by an authorised person under regulation 24 and either—

(a) that entry has been refused, or a refusal is reasonably expected, and the authorised person has given notice of his or her intention to apply for an entry warrant to the occupier; or

(b) a request for entry, or the giving of such a notice, would defeat the object of entry, or entry is urgently required, or the premises are unoccupied, or the occupier is temporarily absent, and it would defeat the object of entry to await the occupier’s return,

the sheriff or justice may by signed warrant, valid for one month, authorise the authorised person to enter the premises, if need be by reasonable force.

(2) An authorised person leaving any unoccupied premises which that person has entered by virtue of a warrant must leave them as effectively secured against unauthorised entry as they were found.

Notices served by an authorised person

26.—(1) An authorised person may serve a notice in accordance with paragraph (2) where that person—

(a) considers that there is a contravention of, or failure to comply with, an animal by-product requirement; or

(b) reasonably suspects that, as a result of such contravention or failure to comply, premises constitute a risk to human or animal health.

(2) A notice may be served on the occupier of any premises or the person in charge of the premises—

(a) requiring the disposal and, where applicable, storage pending such disposal of animal by-products and derived products;

(b) requiring the cleansing and disinfection of any premises and where applicable, the method for such cleansing and disinfection; or

(c) prohibiting animal by-products and derived products being—

(i) brought on to any premises;

(ii) brought on to any premises unless in accordance with conditions specified in the notice; or

(iii) moved on to or into any premises until the satisfactory completion of the cleansing and disinfection in accordance with a notice as provided in sub-paragraph (b).

(3) A notice served under paragraph (2) must be complied with at the expense of the person on whom the notice is served, and if it is not complied with, an authorised person may arrange for it to be complied with at the expense of that person.

(4) Paragraph (1) does not apply where Article 46(1) of the EU Control Regulation applies.

(5) Failure to comply with notices served under paragraph (2) is an offence.

Power to share information for enforcement purposes

27.—(1) Information sent to, or acquired, in compliance or purported compliance with the obligations of the EU Control Regulation and the EU Implementing Regulation or as a result of enforcing these Regulations may be shared, in accordance with paragraph (2), where it has been so received by—

(a) the competent authority;

(b) an enforcement authority; or

(c) an authorised person.

(2) Where a body within paragraph (1) has received information in accordance with that paragraph, then such a body may share such information with any other—

(a) competent authority;

(b) enforcement authority; or

(c) authorised person,

appointed within the United Kingdom for the purposes of implementing or enforcing the EU Control Regulation and the EU Implementing Regulation.

(3) Information received in accordance with paragraph (2) must only be used for the purposes of enforcing these Regulations.

(4) For the purposes of this regulation, “an enforcement authority” includes the Food Standards Agency.

PART 6 Consequential amendments

Consequential amendments

28.  The consequential amendments specified in Schedule 2 to these Regulations have effect.

PART 7 Revocations and saving and transitional provisions

Revocations

29.  The instruments specified in column 1 of Schedule 3 to these Regulations are revoked to the extent specified in column 3 of that Schedule.

Saving provisions

30.  Notwithstanding their revocation, the Animal By-Products (Scotland) Regulations 2003(6) continue to have effect in relation to any amendments made by regulation 51(2) of, and paragraph 1 of Part 2 of Schedule 5 to, those Regulations.

Small quantities transitional provision

31.—(1) The collection, transport and disposal of Category 3 material in Article 10(f) of the EU Control Regulation, by way of derogation from Article 14 of the EU Control Regulation, is authorised under Article 36(3) of the EU Implementing Regulation for the period ending on 31st December 2012, where the requirements of paragraph (2) are satisfied.

(2) The requirements are—

(a) the material satisfies Article 36(3) of, and paragraphs (a) to (c) of Chapter IV of Annex VI to, the EU Implementing Regulation; and

(b) the means of disposal for such material, in addition to the means in Article 14 of the EU Control Regulation, is disposal—

(i) in an authorised landfill without prior processing; or

(ii) where Article 21 of the EU Control Regulation is satisfied, to a biogas or composting plant for transformation in accordance with an authorisation under point 2 of section 2 of Chapter III of Annex V to the EU Implementing Regulation.

RICHARD LOCHHEAD

A member of the Scottish Executive

St Andrew’s House,

Edinburgh

1st March 2011