The Poultrymeat (Scotland) Regulations 2011

Made: 7th September 2011

Laid before the Scottish Parliament: 9th September 2011

Coming into force: 10th October 2011

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 6(4), 16(1), 17, 26(2) and (3), 45(1) and 48(1) of the Food Safety Act 1990 and section 2(2) of, and paragraph 1A of Schedule 2 to, the European Communities Act 1972 and all other powers enabling them to do so.

These Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972 and it appears to the Scottish Ministers that it is expedient for references in these Regulations to the following Regulations to be construed as references to those Regulations as amended from time to time—Part B of Annex XIV to Council Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation); andCommission Regulation (EC) No 543/2008 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 as regards the marketing standards for poultrymeat.

These Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972 and it appears to the Scottish Ministers that it is expedient for references in these Regulations to the following Regulations to be construed as references to those Regulations as amended from time to time—

Part B of Annex XIV to Council Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation); and

Commission Regulation (EC) No 543/2008 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 as regards the marketing standards for poultrymeat.

The Scottish Ministers have carried out consultation as required by Article 9 of Regulation (EC) No 178/2002 of the European Parliament and of the Council laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety .

To the extent that these Regulations have been made in exercise of the powers under the Food Safety Act 1990, the Scottish Ministers have had regard to relevant advice given by the Food Standards Agency, as required by section 48(4A) of that Act .

Citation, commencement, extent and application

1

• (1) These Regulations may be cited as the Poultrymeat (Scotland) Regulations 2011.

• (2) These Regulations come into force on 10th October 2011.

• (3) These Regulations extend to Scotland only.

• (4) These Regulations apply to poultrymeat described in point 1 of Part V of Annex VII to Council Regulation 2013 ... , excluding poultrymeat described in point I(2) of Part B of Annex XIV to the Single CMO Regulation.

• (5) These Regulations do not apply to the direct supply of small quantities of poultrymeat by a producer with an annual production of under 10,000 birds where the meat—

• (a) comes from poultry slaughtered on the producer's farm; and

• (b) is supplied to—

• (i) the final consumer; or

• (ii) a local retail establishment directly supplying such meat to the final consumer as fresh meat.

Interpretation

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• (1) In these Regulations—

• “the Agency” means the Food Standards Scotland;

• “authorised officer” means any person who has written authority from an enforcement authority to act in matters arising under these Regulations;

• “Commission Regulation” means Commission Regulation (EC) No 543/2008 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 as regards the marketing standards for poultrymeat, as amended from time to time;

• “computer equipment” means any computer, and any associated electronic storage device or apparatus;

• “contravene” includes fail to comply, and contravention is to be construed accordingly;

• “Council Regulation 2013” means Regulation (EU) No 1308/2013 of the European Parliament and of the Council establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007, as amended from time to time,

• “cutting plant” means an establishment used for boning and/or cutting up meat;

• “enforcement authority” means an authority exercising a function conferred on it by regulation 8;

• “retained EU poultrymeat provision” means a provision of the Single CMO Regulation or, as the case may be, Council Regulation 2013 or the Commission Regulation specified in column 1 of Part 1 or 2 of Schedule 1, as read with any provision mentioned in the corresponding entry in column 2 of Part 1 or 2 of that Schedule;

• “food authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 ;

• “poultrymeat” “has the meaning given by point II(1) of Part V of Annex VII to Council Regulation 2013;

• “premises” means any place, including those requiring inspection under Article 12(5)(a) to (d) of the Commission Regulation, and any vehicle, trailer, stall or moveable structure;

• “relevant individual” means—in relation to a body corporate—a director, manager, secretary or other similar officer of the body;where the affairs of the body are managed by its members, a member;in relation to a Scottish partnership, a partner;in relation to an unincorporated association other than a Scottish partnership, a person who is concerned in the management or control of the association; and

• “Single CMO Regulation” means Council Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation).

• (2) In these Regulations, any reference to Part B of Annex XIV to the Single CMO Regulation is a reference to Part B of Annex XIV as amended from time to time.

• (3) Any expressions used in these Regulations to which meanings are given in either the Single CMO Regulations or, as the case may be, Council Regulation 2013 or the Commission Regulation have the same meaning as in those EU Regulations.

Offences

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A person commits an offence if that person contravenes a retained EU poultrymeat provision.

Registration as required by Article 12 of the Commission Regulation

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• (1) The Scottish Ministers are designated as the competent authority for the purpose of registration of slaughterhouses and producers as required by Article 12 of the Commission Regulation.

• (2) Any person who wishes to operate as a slaughterhouse or a producer authorised to use the terms specified in Article 11 of the Commission Regulation must make an application in writing to the Scottish Ministers.

• (3) Where the Scottish Ministers receive an application for registration the Scottish Ministers must notify the applicant in writing of the matters specified in paragraph (4) without unreasonable delay.

• (4) The specified matters are—

• (a) the Scottish Ministers' decision on the application;

• (b) the reasons for any refusal of registration; and

• (c) the right of appeal conferred by regulation 5 in the case of any refusal to register.

• (5) Where the Scottish Ministers decide to cancel a registration, the Scottish Ministers must notify the producer, or the person carrying on the business of the slaughterhouse concerned, as the case may be, of the matters specified in paragraph (6).

• (6) The specified matters are—

• (a) the Scottish Ministers' decision to cancel the registration;

• (b) the date on which the cancellation is to take effect;

• (c) the reasons for the cancellation; and

• (d) the right of appeal conferred by regulation 5.

Appeals against registration decisions

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• (1) Any person who is aggrieved about a decision specified in paragraph (2) may appeal against that decision to the sheriff.

• (2) The decisions are—

• (a) refusal of registration under regulation 4(3); or

• (b) cancellation of a registration under regulation 4(5).

• (3) The Scottish Ministers may be a party to an appeal under this regulation.

• (4) An appeal under this regulation must be made by way of summary application and must be lodged with the sheriff clerk within the period of 28 days, beginning with the day on which notification of the decision is given.

• (5) On good cause being shown, the sheriff may hear an appeal under this regulation notwithstanding that it was not lodged within the time mentioned in paragraph (4) above.

• (6) The cancellation of a registration mentioned in paragraph (2)(b) does not take effect until the time for appealing against it has expired or, if an appeal is lodged, until the appeal is finally disposed of or withdrawn.

Powers of a sheriff on appeal

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• (1) For the purposes of an appeal under regulation 5, the sheriff may require the Scottish Ministers to give reasons for that decision, and the Scottish Ministers must comply with such a requirement.

• (2) The sheriff may uphold an appeal under regulation 5 only if the sheriff considers that the Scottish Ministers, in arriving at their decision—

• (a) erred in law;

• (b) based their decision on any incorrect material fact;

• (c) acted contrary to natural justice; or

• (d) exercised their discretion in an unreasonable manner.

• (3) In considering an appeal under regulation 5, the sheriff may hear evidence by or on behalf of any party to the appeal.

• (4) On upholding an appeal under regulation 5, the sheriff may—

• (a) remit the case with the reasons for the decision to the Scottish Ministers for reconsideration of their decision; or

• (b) reverse or modify the decision of the Scottish Ministers.

• (5) On remitting a case under paragraph (4)(a) above, the sheriff may—

• (a) specify a date by which the reconsideration by the Scottish Ministers must take place;

• (b) modify any procedural steps which otherwise would be required in relation to the matter by or under any enactment (including these Regulations).

• (6) The sheriff may include in the decision on an appeal under regulation 5 such order as to the expenses of the appeal as the sheriff thinks proper.

• (7) The decision of the sheriff is final.

Water content checks

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• (1) Except where a water content check required by Article 16(1), (2), (3) or (4) or 20(2), (3) or (4) of the Commission Regulation is carried out by the Agency or food authority, such a check must be carried out by the food business operator of the slaughterhouse or cutting plant concerned.

• (2) Except where a water content check referred to in paragraph (1) is carried out by the Agency or food authority, such a check must be carried out—

• (a) at the food business operator's expense; and

• (b) under the responsibility of, and in accordance with any directions given by, the Agency or food authority.

• (3) Schedule 2 has effect in relation to the fees payable to the Agency or food authority for water content checks carried out by the Agency or food authority.

• (4) In this regulation “food business operator” has the same meaning as in Article 3(3) of Regulation (EC) No 178/2002 of the European Parliament and of the Council laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety.

Enforcement

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• (1) The Agency must enforce the retained EU poultrymeat provisions at slaughterhouses and approved cutting plants.

• (2) Subject to paragraphs (3) and (4), a food authority must enforce the retained EU poultrymeat provisions in its area other than at slaughterhouses and approved cutting plants.

• (3) A food authority must enforce the retained EU Poultrymeat provisions in its area in relation to poultrymeat imported from a third country.

• (4) The record keeping requirements in Article 12(2), (3) and (4) of the Commission Regulation must be enforced by the Scottish Ministers.

• (5) In this regulation an “approved cutting plant” has the meaning given to it in paragraph 1(17) of Annex I to Regulation (EC) No 853/2004 of the European Parliament and of the Council laying down specific hygiene rules for food of animal origin , and is an establishment that is—

• (a) approved or conditionally approved as such by the Agency under Article 31(2) of Regulation (EC) No 882/2004 of the European Parliament and of the Council on controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules ; or

• (b) operating as such under Article 4(5) of Regulation (EC) No 853/2004, pending such approval.

Duty to give assistance and provide information

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Each enforcement authority must give such assistance and information to any other enforcement authority as that authority may reasonably require for the purpose of helping that authority perform its duties under these Regulations.

Powers of entry

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• (1) An authorised officer may enter any premises at any reasonable hour for the purpose of ensuring that the provisions of these Regulations are being complied with.

• (2) The authorised officer may be accompanied by such other persons as the authorised officer considers necessary.

• (3) An authorised officer must not exercise the powers under paragraph (1) or (2) except on the production, if so required, of a duly authenticated document showing the authorised officer's authority.

• (4) In paragraph (1) the reference to premises is to be construed as not including premises used only as a private dwelling-house.

• (5) If a sheriff or justice of the peace, on information in writing sworn on oath, is satisfied of the matters mentioned in paragraph (6), the sheriff or justice of the peace may grant a warrant permitting an authorised officer to enter any premises, if need be by reasonable force.

• (6) The matters are that—

• (a) there are reasonable grounds for believing that Condition A or B is met; and

• (b) Condition C, D or E is met.

• (7) Condition A is that on the premises there are items of the type mentioned in regulation 11(1)(a) or documents or records of the type mentioned in regulation 11(1)(d) and that their inspection is likely to disclose evidence of a contravention of these Regulations.

• (8) Condition B is that a contravention of these Regulations has occurred, is occurring or is about to occur on the premises.

• (9) Condition C is that admission by an authorised officer to the premises has been, or is likely to be, refused, and that the occupier has been informed (whether orally or in writing) that a warrant may be applied for.

• (10) Condition D is that admission by an authorised officer to the premises has been, or is likely to be, refused, and informing the occupier that a warrant under this regulation may be applied for may defeat the object of the entry.

• (11) Condition E is that the premises are unoccupied or that the occupier is temporarily absent and it may defeat the object of the entry to await the occupier's return.

• (12) A warrant granted under paragraph (5)—

• (a) is valid for one month, beginning with the day on which it is granted; and

• (b) must be produced for inspection to the person (if there is one) who appears to the authorised officer to be the occupier, or the person in charge of the premises.

• (13) An authorised officer who enters any premises that are unoccupied or where the occupier is temporarily absent must leave the premises as effectively secured against unauthorised entry as when the authorised officer found them.

Powers of an authorised officer

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• (1) An authorised officer entering premises under regulation 10 may—

• (a) inspect the premises, and any plant, machinery or equipment on those premises, and any of the following found on those premises—

• (i) any meat that the authorised officer has reasonable grounds for believing is poultrymeat, (including giblets and any packaging in which the meat is found);

• (ii) any empty container;

• (iii) any label;

• (iv) any packaging; and

• (v) any live poultry (within the meaning given to it in Part XX of Annex I to the Council Regulation 2013);

• (b) search the premises;

• (c) carry out any inquiries, examinations or tests;

• (d) have access to, and inspect and copy, any documents or records (in whatever form they are held) relating to matters covered by these Regulations, and remove them to enable them to be copied;

• (e) have access to, and inspect and check the data on, and operation of, any computer equipment that is, or has been in use in connection with, the documents or records mentioned in sub-paragraph (d), including data relating to deleted files and activity logs; and for this purpose the authorised officer may require any person having charge of, or otherwise concerned with the operation of, the computer equipment to afford to the authorised officer such assistance (including the provision of passwords) as the authorised officer may reasonably require, and, during the course of the checks, the authorised officer may recover data held on the computer equipment; and

• (f) where a document or record mentioned in sub-paragraph (d) is kept by means of a computer, require the record to be produced in a form in which it may be taken away.