The Official Controls (Agriculture etc.) (Scotland) Regulations 2019
| Year | 2019 |
2019 No. 412
Agriculture
Aquaculture
The Official Controls (Agriculture etc.) (Scotland) Regulations 2019
Made 3rd December 2019
Laid before the Scottish Parliament 3rd December 2019
Coming into force 14th December 2019
The Scottish Ministers make the following Regulations in exercise of powers conferred by section 2(2) of the European Communities Act 19721and all other powers enabling them to do so.
PART 1
General
Title, commencement and extent
1.—(1) These Regulations may be cited as the Official Controls (Agriculture etc.) (Scotland) Regulations 2019 and come into force on 14 December 2019.
(2) These Regulations extend to Scotland only.
Interpretation
2.—(1) In these Regulations—
“audit” means an audit of a competent or designated authority for the purposes of Article 6 in relation to any relevant legislation;
“auditor” means a person carrying out an audit on behalf of a competent authority;
“designated authority” means an authority designated under regulation 3;
“enforcement officer” means an officer authorised to enforce the EU Regulation and these Regulations by a competent or designated authority;
“inspector” in relation to any relevant legislation, means an inspector, veterinary inspector, or other officer authorised by a competent or designated authority to act in Scotland under that legislation;
“official controls” has the meaning given by Article 2(1);
“other official activities” has the meaning given by Article 2(2);
“premises” includes any means of transport;
“relevant legislation” means European and domestic legislation relating to the areas specified in sub-paragraphs (b), (d), (e) and (f) of Article 1(2);
“the EU Regulation” means Regulation (EU) 2017/625 of the European Parliament and of the Council of 15 March 2017 on official controls and other official activities performed to ensure the application of feed and food law, rules on animal health and welfare, plant health and plant protection products2, and where the context requires it includes a reference to measures in implementing and delegated regulations made under the EU Regulation;
“Feed and Food Regulations” means the Official Feed and Food Controls (Scotland) Regulations 20093.
(2) Unless otherwise provided in this regulation, terms used in these Regulations have the same meaning as they have in the EU Regulation.
(3) Unless the context otherwise requires, any reference in these Regulations to an “Article” or “Title” are to an Article or Title of the EU Regulation.
Designations of competent and designated authorities
3.—(1) The competent authority in respect of the relevant legislation is for the purposes of Article 4—
(a)
(a) to the extent that it has functions in relation to the welfare requirements of animals as the competent authority for the purposes of regulation 3 of the Welfare of Animals at the Time of Killing (Scotland) Regulations 20124, Food Standards Scotland;
(b)
(b) for all other purposes, the Scottish Ministers.
(2) Local authorities and food authorities are designated authorities in relation to enforcement functions (other than prosecution) which they exercise under relevant legislation.
(3) A designated authority must keep written records (which may be in electronic form) of official controls and other official activities that they perform, and such records must include—
(a)
(a) a description of the purpose of the official controls and other official activities;
(b)
(b) the control methods applied;
(c)
(c) any action that the designated authority requires to be taken; and
(d)
(d) the outcome.
(4) Where non-compliance has been identified by any designated authority through the application of official controls, the operator must be promptly informed of the non-compliance.
(5) In this regulation—
(a)
(a) “food authority” has in relation to any relevant legislation the same meaning as it has in that legislation, and includes a food authority that is an enforcement authority for the purposes of that legislation; and
(b)
(b) “local authority” has in relation to any relevant legislation the same meaning as it has in that legislation.
Disclosure of information
4. The Scottish Ministers or any other designated authority may disclose information to each other and to other competent authorities in the United Kingdom and other member States for the purposes of applying these Regulations and the EU Regulation.
PART 2
Audits and official controls
Powers of auditors
5.—(1) An auditor may exercise the powers in this regulation and carry out an audit in accordance with the EU Regulation if so authorised—
(a)
(a) in relation to carrying out an audit of the activities of a designated authority, by the designated authority; or
(b)
(b) in relation to carrying out an audit pursuant to regulation 6(2), by the Scottish Ministers.
(2) For the purposes of carrying out an audit, an auditor may enter premises to which an inspector has a power of entry under relevant legislation (“audit premises”) as if the auditor were an inspector meeting the criteria for gaining such entry under that relevant legislation.
(3) An auditor exercising a power of entry may be accompanied by any person whose assistance is reasonably required by the auditor.
(4) Any person at an audit premises must provide such information as may reasonably be required for the purposes of the audit to an auditor, upon request.
(5) An auditor may inspect such records as may reasonably be required for the purpose of the audit and may make or require copies to be provided of such records.
(6) When exercising the powers conferred by this regulation, an auditor must, upon request, produce evidence of authorisation under these Regulations.
(7) This regulation does not apply where an auditor undertakes an audit in accordance with regulation 7.
Powers of the Scottish Ministers in relation to audits of designated authorities
6.—(1) The Scottish Ministers may require a designated authority to provide them with such information by a specified date about any audits it has carried out or undergone or which it plans to carry out or undergo.
(2) The Scottish Ministers may require an auditor to carry out an audit of a designated authority.
(3) The designated authority must provide such assistance to that auditor as may reasonably be required in order for the auditor to carry out the audit effectively.
Powers of Food Standards Scotland undertaking audits on behalf of the Scottish Ministers
7.—(1) The Scottish Ministers may require Food Standards Scotland to carry out an audit of a competent or designated authority for the purposes of the EU Regulation.
(2) The audit provisions of the Feed and Food Regulations apply, for the purposes of such an audit, as if—
(a)
(a) the undertaking of the audit were for the purpose referred to in regulations 8(1) and 9(1) of those Regulations; and
(b)
(b) the authority concerned were an enforcement authority to which regulation 7 of those Regulations applied.
(3) For the purposes of paragraph (2), the audit provisions of the Feed and Food Regulations are—
(a)
(a) regulations 8 and 9(1) to (8) and (10) (as read with regulation 10 of those Regulations); and
(b)
(b) regulation 11 of those Regulations.
(4) Regulations 17(2), (4) and (5)(c), 18(2) to (9), 19 to 21 and 45 to 50 of the Feed and Food Regulations apply where Food Standards Scotland carry out an audit under this regulation as if the audit were undertaken under those Regulations and enforced or executed by Food Standards Scotland.
PART 3
Assistance and co-operation under Title IV and recovery of expenses
Duties of designated authorities
8. A designated authority must without delay notify the Scottish Ministers or Food Standards Scotland (as appropriate) if it considers that it is unable to undertake action required in any individual case under Title IV (administrative assistance and cooperation), and must provide such information to the Scottish Ministers or Food Standards Scotland as they may reasonably request.
Facilitating assistance and co-operation
9.—(1) For the purposes of assisting a competent authority of another member State as provided for in Article 104, or enabling a competent or designated authority to do so, an inspector may on entering premises or when inspecting records—
(a)
(a) be accompanied by an authorised officer of a competent authority of another member State;
(b)
(b) show records to such an officer; and
(c)
(c) make, or require the making of, copies of records for such an officer.
(2) For the purposes of facilitating a visit by an inspection team as provided for in Article 108, an inspector may be accompanied by a representative of the EU Commission when exercising powers under relevant legislation to enter premises or to inspect records.
(3) An enforcement officer may require any person to provide them with such assistance, information or facilities as they may reasonably require for the purposes of the execution or enforcement of these Regulations or the EU Regulations.
Recovery of expenses
10.—(1) Any expenses incurred by a competent authority or a designated authority in carrying out enforcement activities under these Regulations, or measures under Articles 66, 67, 69 or 138, may be recovered from the relevant operator, and such expenses must be paid on written demand.
(2) Any unpaid sum under these Regulations may be recovered—
(a)
(a) as a civil debt;
(b)
(b) under an order of the court, on such terms as the court may order.
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