Office of Public Sector Information

PART 3 Audits and Community controls

Powers of auditors and exception for Food Standards Agency auditors

7.—(1) An auditor may exercise the powers in this regulation if he or she is authorised—

(a) by a competent authority designated under these Regulations to carry out an audit of its activities; or

(b) by the National Assembly to carry out an audit pursuant to regulation 8(3).

(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 his or her power of entry may bring with him or her any person whose assistance he or she reasonably requires.

(4) An auditor may request such information from any person at any audit premises as he or she reasonably requires for purposes of the audit, and may inspect such records as he or she reasonably requires 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 his or her authorisation under these Regulations.

(7) This regulation does not apply where regulation 9 applies.

Powers of the National Assembly in relation to audits of local authorities, etc.

8.—(1) The National Assembly may require a competent authority designated under regulation 5 to provide it with information about any audits that competent authority has carried out or undergone or which that competent authority plans to carry out or undergo.

(2) Where the National Assembly requires information under paragraph (1), it must do so in writing and must state the time limit within which the required information is to be provided.

(3) The National Assembly may require—

(a) an auditor to carry out an audit of a competent authority designated under regulation 5; and

(b) the competent authority concerned to provide such assistance to that auditor as the auditor may reasonably require in order to carry out the audit.

Powers of the Food Standards Agency undertaking audits on behalf of the National Assembly

9.—(1) Where the National Assembly arranges for the Food Standards Agency to undertake an audit in relation to relevant legislation, the audit provisions of the 2006 Regulations apply as if—

(a) the undertaking of such an audit were a purpose described in regulation 8(1) and 9(1) of the 2006 Regulations; and

(b) the competent authority concerned were an enforcement authority to which regulations 8 and 9 of the 2006 Regulations applied.

(2) The audit provisions of the 2006 Regulations are—

(a) regulations 8 and 9(1) to (8) and (10), as read with regulation 10; and

(b) regulation 11.

(3) Regulations 17(2), (4) and (5)(c), 18(2) to (9), 19 to 21, 41 to 43, 45 and 46 of the 2006 Regulations apply where paragraph (1) of this regulation applies as if that paragraph were a provision of the 2006 Regulations falling to be enforced or executed under the 2006 Regulations.

Community controls

10.  In so far as an inspector does not already have powers to do so, for the purposes of facilitating audits to be carried out by Commission experts pursuant to Article 45, an inspector may enter any premises to which he or she has a power of entry under relevant legislation, and—

(a) bring with him or her any such experts; and

(b) show them such records as he or she inspects.

PART 4 Assistance and co-operation under Title IV

Duties of local authorities, etc, under Title IV

11.  A local authority or food authority which is designated a competent authority under regulation 5 must notify the National Assembly if it considers that it is unable to undertake action required in any individual case under Title IV (administrative assistance and cooperation in the areas of feed and food) and must provide such information to the National Assembly as the National Assembly may reasonably request.

Facilitating assistance and co-operation under Title IV

12.—(1) For the purposes of assisting a competent authority of another member State as provided for under Article 36.3, or enabling a competent authority designated under these Regulations to do so, an inspector exercising his or her powers under relevant legislation to enter premises or to inspect records may—

(a) bring with him or her authorised officers of a competent authority of another member State;

(b) show to them such records as he or she inspects; and

(c) make copies for them or require copies to be made for them of such records as he or she has powers to make or require under the relevant legislation.

(2) For the purposes of facilitating a visit by an inspection team sent by the Commission as provided for in Article 40.3(a), an inspector may bring with him or her representatives of the Commission when exercising his or her powers under relevant legislation to enter premises or to inspect records.

Recovery of expenses

13.—(1) Expenses charged by a competent authority to a feed or food business pursuant to Article 40.4 must be paid by that business on the written demand of the competent authority concerned.

(2) Expenses charged by a competent authority to an operator pursuant to Article 28 must be paid by that operator on the written demand of the competent authority concerned.

(3) In this regulation “competent authority” (“awdurdod cymwys”) means a competent authority designated under regulation 4 or 5.

PART 5 Enforcement and penalties

Interpretation and application of Part 5, etc.

14.—(1) In this Part—

(a) “an enforcement officer” (“swyddog gorfodi”) means an officer authorised to enforce these Regulations by the competent authority responsible for enforcement pursuant to regulation 15;

(b) “premises” (“mangre”) excludes any premises or part of premises used exclusively as a dwelling;

(c) “a relevant auditor” (“archwilydd perthnasol”) means an auditor exercising his or her powers under regulation 7;

(d) “a relevant inspector” (“arolygydd perthnasol”) includes accompanied by any person an inspector pursuant to regulations 10 or 12.

(2) Regulations 15 to 19 do not apply where regulation 9 applies.

Enforcement

15.  Enforcement of these Regulations is the responsibility of the competent authority which in any given circumstances authorises the exercise of powers under these Regulations.

Powers of enforcement officers

16.—(1) An enforcement officer may—

(a) at any reasonable hour enter premises;

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

(c) inspect any article or records of any class which appear to the enforcement officer to be relevant for the purposes of his or her investigation, and may make or require copies of such records and remove such records as he or she reasonably requires.

(2) An enforcement officer must—

(a) produce evidence of his or her authorisation when requested to do so;

(b) as soon as he or she reasonably can, provide to the person appearing to him or her to be responsible for records he or she removes under paragraph (1)(c) a written receipt identifying those records; and

(c) as soon as he or she reasonably can after deciding that they are no longer required, return such records, apart from those used as evidence in court proceedings.

Offences and penalties

17.—(1) A person is guilty of an offence if without reasonable excuse he or she obstructs or causes or permits to be obstructed—

(a) a relevant auditor;

(b) a relevant inspector;

(c) any person who accompanies a relevant auditor or relevant inspector under regulations 7(3), 10, or 12; or

(d) an enforcement officer.

(2) For the purposes of paragraph (1), to obstruct includes—

(a) failure—

(i) to produce records;

(ii) to provide copies; or

(iii) to provide reasonable facilities for copying records,

as required under these Regulations; and—

(b) failure by any person to provide information in his or her possession when requested to do so by a relevant auditor, a relevant inspector or an enforcement officer.

(3) A person is guilty of an offence if without reasonable excuse he or she supplies to a relevant auditor, a relevant inspector or an enforcement officer information which, in any material particular, is false or misleading.

(4) A person guilty of an offence under this regulation is liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months, or to both.

Offences by bodies corporate

18.—(1) If an offence under regulation 17 committed by a body corporate is shown to have been committed with the consent or connivance of an officer, or to be attributable to any neglect on his or her part, the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(2) If the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director of the body.

(3) “Officer”, in relation to a body corporate, means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.

Time limits for prosecution

19.  A prosecution for an offence under this Part may begin no later than after the expiry of—

(a) three years from the commission of the offence; or

(b) one year from its discovery by the prosecutor,

whichever is the earlier.

Amendment to the 2006 Regulations

20.—(1) The 2006 Regulations are amended as follows.

(2) In regulation 2(1), in the paragraph which begins ““Regulation 178/2002” (“Rheoliad 178/2002”)” insert after the words ““Directive 2004/41” (“Cyfarwyddeb 2004/41”),” the words ““Regulation 999/2001” (“Rheoliad 999/2001”)”.

(3) In Schedule 1, after the definition of ““Directive 2004/41” (“Cyfarwyddeb 2004/41”)”, insert—

““Regulation 999/2001” (“Rheoliad 999/2001”) means Regulation (EC) No. 999/2001 of the European Parliament and of the Council laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies as amended(15) and has the same meaning as the definition of “Community TSE Regulation” (“Rheoliad TSE y Gymuned”) in the Transmissible Spongiform Encephalopathies (Wales) Regulations 2006(16);”.

(4) In paragraph (a) of Schedule 3—

(a) after sub-paragraph (vi) delete “and”;

(b) at the end of paragraph (vii)(bb) delete “;” and add—

“, and

(viii) the matters regulated under Schedule 2 to the Transmissible Spongiform Encephalopathies (Wales) Regulations 2006 in so far as that Schedule applies in relation to animals slaughtered for human consumption, together with point 2 of Part II of Chapter A of Annex III to Regulation 999/2001 in so far as that point applies in relation to animals slaughtered for human consumption”.