The Official Controls (Animals, Feed and Food, Plant Health Fees etc.) (Wales) Regulations 2020

Made: 21 January 2020

Laid before the National Assembly for Wales: 22 January 2020

Coming into force: 31 January 2020

The Welsh Ministers are designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to the common agricultural policy of the European Union , and in relation to the veterinary and phytosanitary fields for the protection of public health .

The Welsh Ministers make the following Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972, and, with the consent of Treasury, in exercise of powers conferred by section 56(1) of the Finance Act 1973 .

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 there has been open and transparent public consultation during the preparation of these Regulations.

PART 1 — General

Title, application and commencement

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• (1) The title of these Regulations is the Official Controls (Animals, Feed and Food, Plant Health Fees etc.) (Wales) Regulations 2020.

• (2) These Regulations apply in relation to Wales and come into force on 31 January 2020.

Interpretation

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• (1) In these Regulations—

• “the Agency” (“yr Asiantaeth”) means the Food Standards Agency;

• “audit” (“archwiliad”) means an audit of a competent authority carried out for the purposes of Article 6 in relation to relevant legislation;

• “auditor” (“archwilydd”) means a person carrying out an audit on behalf of a competent authority;

• “designated authority” (“awdurdod dynodedig”) means an authority designated by the Welsh Ministers under regulation 3;

• “the Official Controls Regulations” (“y Rheoliadau Rheolaethau Swyddogol”) means the EU Regulation and the Implementing Regulations, Delegated Regulations and statutory instruments made under it;

• “the EU Regulation” (“Rheoliad yr UE”) means Regulation (EU) 2017/625 of the European Parliament and of the Council of 15th March 2017 on official controls and other official activities performed to ensure the application of food and feed law, rules on animal health and welfare, plant health and plant protection products ;

• “enforcement officer” (“swyddog gorfodi”) means an officer authorised by the Welsh Ministers or a designated authority to enforce the ... Official Controls Regulations and these Regulations;

• “the Feed and Food Regulations” (“y Rheoliadau Bwyd Anifeiliaid a Bwyd”) means the Official Feed and Food Controls (Wales) Regulations 2009 ;

• “food authority” (“awdurdod bwyd”) in relation to any relevant legislation has the same meaning as it has in that relevant legislation;

• “inspector” (“arolygydd”), in relation to any relevant legislation, means an inspector, veterinary inspector, or other officer authorised by the Welsh Ministers or other designated authority to act under that relevant legislation;

• “local authority” (“awdurdod lleol”) means a county council or county borough council;

• “official auxiliary” (“cynorthwyydd swyddogol”) means a representative of the Welsh Ministers appropriately trained and acting under the responsibility or supervision of an official veterinarian to perform certain official controls or certain tasks related to other official activities;

• “official controls” (“rheolaethau swyddogol”) means the activities referred to in Article 2(1) other than those listed in Article 1(4);

• “official veterinarian” (“milfeddyg swyddogol”) means a veterinarian appointed by the Welsh Ministers and appropriately qualified to carry out official controls and other official activities for verification of compliance with the rules referred to in Article 1(2);

• “other official activities” (“gweithgareddau swyddogol eraill”) has the meaning given by Article 2(2);

• “premises” (“mangre”) includes any means of transport;

• “relevant legislation” (“deddfwriaeth berthnasol”) means assimilated direct and domestic legislation governing the areas listed in sub-paragraphs (a) to (f) of Article 1(2), with the exception of food and food safety, feed and feed safety legislation in so far as—such legislation is defined as “relevant feed law” or “relevant food law” in the Feed and Food Regulations,such legislation involves substances the use or presence of which on crops to produce or process food or feed may result in residues of those substances in food or feed, orit relates to feed additives or medicated feedingstuffs.

• (2) In the definition of “relevant legislation” in paragraph (1)—

• (a) “medicated feedingstuffs” means any mixture of feed with a veterinary medicinal product having properties for treating or preventing disease, restoring, correcting or modifying physiological functions in animals, or products and feed or feeds which are ready-prepared for marketing and intended to be fed to animals without further processing, and

• (b) “zootechnical additives” means feed additives in the categories mentioned in Article 6.1(d) and (e) of Regulation (EC) No 1831/2003 of the European Parliament and of the Council on additives for use in animal nutrition , with the exception of those belonging to the functional groups listed in paragraph 4(a), (b) and (c) of Annex 1 to that Regulation.

• (3) Unless otherwise provided in this regulation, terms used in these Regulations have the same meaning as they have in the EU Regulation.

• (4) Unless the context otherwise requires, any reference in these Regulations to an “Article” or “Title” is to an Article or Title of the EU Regulation.

Designations for the purposes of Article 4

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• (1) The Agency is designated as the competent authority for the purposes of Article 4 in relation to welfare requirements of animals, to the extent that it is designated as the competent authority mentioned in regulation 4(1) of the Welfare of Animals at the Time of Killing (Wales) Regulations 2014 .

• (2) In any other case the Welsh Ministers are designated as the competent authority for the purposes of Article 4 in relation to areas governed by the relevant legislation.

• (3) Local authorities and local food authorities (including any that are enforcement authorities under any relevant legislation) are designated authorities in relation to functions of enforcement and execution (other than prosecution) which they exercise under relevant legislation.

• (4) Any designated authority must draw up written records (on paper or electronic form) of official controls and other official activities that they perform, and such records must contain—

• (a) a description of the purpose of the relevant official controls and other official activities,

• (b) the control methods applied,

• (c) the outcome, and

• (d) where appropriate, any action required by the designated authority.

• (5) Where non-compliance has been identified by any designated authority through the application of official controls, it must promptly inform the business operator of the non-compliance.

Exchange of information

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The Welsh Ministers and any other designated authorities may disclose information to each other and to other competent authorities ... for the purposes of applying these Regulations and the Official Controls Regulations.

PART 2 — Audits and official controls

Powers of auditors

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• (1) An auditor may exercise the powers in this regulation and carry out an audit in accordance with the Official Controls Regulations if so authorised—

• (a) in relation to carrying out an audit of the activities of a designated authority, by the designated authority, or

• (b) in relation to carrying out an audit pursuant to regulation 6(2), by the Welsh 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) An auditor may request such information from any person at any premises that is subject to an audit as may reasonably be required for purposes of the audit, and may inspect such records as may reasonably be required for those purposes.

• (5) An auditor may make or require copies 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 on behalf of the Agency.

Powers of the Welsh Ministers in relation to audits of designated authorities

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• (1) The Welsh Ministers may make a written request to a designated authority to provide 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 Welsh 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 the Agency undertaking audits on behalf of the Welsh Ministers

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• (1) Where the Welsh Ministers arranges for the Agency to undertake an audit, the audit provisions of the Feed and Food Regulations apply as if—

• (a) the undertaking of the audit were a purpose referred to in regulations 8(1) and 9(1) of the Feed and Food Regulations, and

• (b) the competent authority concerned were an enforcement authority to which regulations 8 and 9 of the Feed and Food Regulations applied.

• (2) For the purposes of paragraph (1), the audit provisions of the Feed and Food Regulations are—

• (a) regulations 8 and 9(1) to (8) and (10), as read with regulation 10 of those Regulations, and

• (b) regulation 11 of those Regulations.

• (3) Where the Agency undertakes an audit, regulations 17(2), (4) and (5)(c), 18(2) to (9), 19 to 21, 45 to 47, 49 and 50 of the Feed and Food Regulations apply as if the audit were undertaken under those Regulations and enforced or undertaken thereunder by the Agency.

PART 3 — Assistance and co-operation under Title IV and recovery of expenses

Duties of designated authorities

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A designated authority must notify the Welsh Ministers 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 Welsh Ministers as may reasonably be requested.

Facilitating assistance and co-operation

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• (1) For the purposes of assisting a competent authority ... as provided for in Article 104, or enabling the Welsh Ministers or a designated authority to do so, an inspector exercising powers under relevant legislation to enter premises or to inspect records may—

• (a) be accompanied by authorised officers of another competent authority,

• (b) show records to such accompanying authorised officers, and

• (c) make copies for them, or require copies to be made for them, of the records.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Any person may be required to provide an enforcement officer with such assistance, information or facilities as the officer may reasonably require for the purpose of the execution or enforcement of these Regulations or the Official Controls Regulations.

Recovery of expenses

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• (1) Any expenses incurred by the Welsh Ministers or a designated authority in carrying out enforcement activities under these Regulations, or measures under Article 66, 67, 69 or 138 may be charged to the relevant business operator and such expenses must be paid on written demand.

• (2) Any sum owing under these Regulations and unpaid may be recovered—

• (a) as a civil debt;

• (b) under an order of the court, on such terms as the court may order.

PART 4 — Enforcement and penalties

Enforcement and prosecution

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• (1) Enforcement of these Regulations and the Official Controls Regulations is the responsibility of the competent authority or a designated authority.

• (2) The Welsh Ministers may direct, in relation to cases of a particular description or to a particular case that these Regulations are to be enforced by the Welsh Ministers instead of a local authority.

Powers of enforcement officers

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• (1) An enforcement officer may—

• (a) make any enquiries, observe any activity or process, and take photographs;

• (b) inspect any article, container, plant, equipment or records of any class which appear to the enforcement officer to be relevant for the purposes of the investigation, and may make or require copies of such records and remove such records as may reasonably be required;

• (c) mark any item for identification purposes;

• (d) require the production of any label, document or record (in whatever form it is held);

• (e) inspect and take a copy of, or take a copy of an extract from, any label, document or record;

• (f) have access to, and inspect and check the data on, and operation of, any computer;

• (g) if the enforcement officer has reason to believe that a person is in contravention of these Regulations or the Official Controls Regulations, and that the data may be relevant to the contravention, seize and detain any computer equipment for the purpose of copying the data or, if it has not been possible carry out adequate inspection on the premises, of further inspection;

• (h) if the enforcement officer has reason to believe that a person is in contravention of these Regulations or the Official Controls Regulations, and that certain records may be relevant to the contravention, seize and detain the records.

• (2) An enforcement officer must—

• (a) produce evidence of authorisation when requested to do so;

• (b) as soon as reasonably possible—

• (i) provide to the person appearing to be responsible for any records removed from any premises a written receipt identifying those records, and

• (ii) after deciding that they are no longer required, return anything removed, apart from records or other things to be used as evidence in court proceedings.

Powers of entry

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• (1) An enforcement officer may enter any premises (except any premises used wholly or mainly as a private dwelling) during normal working hours without prior notice, if the officer believes that it is necessary for the purpose of official controls or other official activities under these Regulations or the Official Controls Regulations.

• (2) In circumstances where an enforcement officer is carrying out routine verification checks, notice must be provided before exercising a power of entry to premises during normal working hours.

• (3) The requirement to give notice in paragraph (2) does not apply—

• (a) where reasonable efforts to agree an appointment have failed,

• (b) where the enforcement officer reasonably believes that giving notice would defeat the object of the entry, including any situation in which notice is not required under Article 9(4), or

• (c) where the enforcement officer has a reasonable suspicion that any provision of these Regulations or the Official Controls Regulations has been contravened.

• (4) An enforcement officer must, if requested to do so, produce a duly authenticated authorisation document.

• (5) A justice of the peace may sign a warrant to permit an enforcement officer to enter any premises, including a dwelling-house, if necessary by reasonable force, if the justice on sworn information in writing is satisfied—

• (a) that there are reasonable grounds to enter those premises for the purpose of enforcing these Regulations or the Official Controls Regulations, and

• (b) that one or more of the conditions in paragraph (6) are met.

• (6) The conditions are—

• (a) that entry to the premises has been, or is likely to be, refused, and notice of the intention to apply for a warrant has been given to the occupier;

• (b) that asking for admission to the premises, or giving such a notice, would defeat the object of the entry;

• (c) that entry to the premises is required urgently;

• (d) that the premises are unoccupied or the occupier is temporarily absent.

• (7) A warrant is valid for 30 days from the date of signature.

• (8) An enforcement officer entering any premises which are unoccupied or from which the occupier is temporarily absent must leave them as effectively secured against unauthorised entry as they were before entry.

• (9) An enforcement officer may—

• (a) be accompanied by such other persons, up to a maximum of three, as the enforcement officer considers necessary;

• (b) bring onto the premises such equipment as the enforcement officer considers necessary.

Offences and penalties

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• (1) A person is guilty of an offence if without reasonable excuse that person obstructs or causes or permits to be obstructed—

• (a) an auditor,

• (b) an inspector,

• (c) any person who accompanies a relevant auditor or relevant inspector, or

• (d) an enforcement officer.

• (2) For the purposes of paragraph (1), obstruction includes failure by any person—