Dairy Produce Quotas Regulations (Northern Ireland) 2002

regulations 9(b),10(1)(b) and (4)(b), 11(2) and 33(5)(b)(iii)

SCHEDULE 1 Apportionment and prospective apportionment by arbitration

1.  Paragraphs 3 to 19 shall apply to every arbitration in Northern Ireland.

2.—(1) Parts I, II and IV of the Arbitration Act 1996(1) shall, except insofar as they are inconsistent with paragraphs 3 to 19, apply to every arbitration in Northern Ireland as if that arbitration were pursuant to an arbitration agreement and as if paragraphs 3 to 11 and 13 to 18 were contained in an arbitration agreement.

(2) For the purpose of this paragraph “arbitration agreement” shall be construed in accordance with sections 5(1) and 6 of the Arbitration Act 1996.

Appointment of arbitrator

3.—(1) Subject to sub-paragraph (2), in any case where an apportionment is to be carried out by arbitration, an arbitrator shall be appointed by agreement between the transferor and transferee, and the transferee shall give notice of the appointment of the arbitrator to the Department.

(2) The transferor or the transferee may at any time make an application to the President of the Law Society of Northern Ireland (referred to in this Schedule as “the President”) for the appointment of an arbitrator and the person who makes such an application to the President shall give notice of that fact to the Department.

(3) If an arbitrator has not been appointed by agreement between the transferor and the transferee and no application has been made to the President under sub-paragraph (2), the Department may make an application to the President for the appointment of an arbitrator.

(4) Where the Department gives a notice in accordance with regulation 11, it shall make an application to the President for the appointment of an arbitrator and the Department shall be a party to the arbitration.

(5) Where an apportionment under regulation 33(5)(b)(iii) is to be carried out by arbitration, the producer shall either appoint an arbitrator by agreement with all persons with an interest in the holding or make an application to the President for the appointment of an arbitrator.

4.—(1) In any case where a prospective apportionment is to be made by arbitration, an arbitrator shall be appointed—

(a) where regulation 11 applies, by the President;

(b) where regulation 10 applies, by agreement between the occupier of the holding to which the prospective apportionment relates and any other interested party, or, in default, by the President on an application by that occupier.

(2) Where sub-paragraph (1)(b) applies, the occupier shall give notice to the Department of the appointment of the arbitrator pursuant to the agreement, or of the application to the President for the appointment of an arbitrator.

5.—(1) An arbitrator appointed in accordance with paragraph 3(1) to (4) or 4 shall conduct the arbitration in accordance with this Schedule and shall base his award on findings made by him as to areas used for milk production in the last five year period during which production took place before the change of occupation, or, in the case of a prospective apportionment, in the last five year period during which production took place before the appointment of the arbitrator.

(2) An arbitrator appointed in accordance with paragraph 3(5) shall conduct the arbitration in accordance with this Schedule and shall base his award on findings made by him as to the areas used for milk production in the last five-year period during which production took place before the appointment of the arbitrator.

(3) An arbitrator appointed under any paragraph of this Schedule shall base his award on findings made by him in accordance with the law in force at the time the event giving rise to an application for arbitration took place.

6.  No application may be made to the President for an arbitrator to be appointed by him under this Schedule unless the application is accompanied by a fee which shall be £50 for such an application; but once the fee has been paid in connection with any such application no further fee shall be payable in connection with any subsequent application for the President to exercise any function exercisable by him in relation to the arbitration by virtue of this Schedule (including an application for the appointment by him in an appropriate case of a new arbitrator).

7.  Where the Department makes an application to the President under paragraph 3(3) or (4), the fee payable to the President in respect of that application referred to in paragraph 6 shall be recoverable by the Department as a debt due from the other parties to the arbitration jointly or severally.

8.  Any appointment of an arbitrator by the President shall be made by him as soon as possible after receiving the application.

9.  If the arbitrator dies, or is incapable of acting, or for seven days after notice from any party requiring him to act fails to act, a new arbitrator may be appointed as if no arbitrator had been appointed.

10.  A party to the arbitration shall have power to revoke the appointment of the arbitrator with the consent of all other parties.

11.  Every appointment, application, notice, revocation and consent under paragraph 3, 4, 5, 9 or 10 shall be in writing.

Persons with an interest in the holding

12.—(1) In any arbitration to which this Schedule applies, the arbitrator may, in his absolute discretion, subject to sub-paragraph (2), join as a party to the arbitration any person having an interest in the holding, whether or not such person has applied to become a party to the arbitration, provided that such person consents to be so joined.

(2) Where an apportionment under regulation 33(5)(b)(iii) is to be carried out by arbitration, any person with an interest in the holding who has refused to sign the statement referred to in regulation 33(5)(b)(ii) shall be a party to the arbitration.

Statement of case

13.  The parties to the arbitration shall, within 35 days of the appointment of the arbitrator, or within such further period as the arbitrator may determine, deliver to him a statement of their respective cases with all necessary particulars and—

(a) no amendment or addition to the statement or particulars delivered shall be allowed after the expiry of the said 35 days except with the consent of the arbitrator; and

(b) a party to the arbitration shall be confined at the hearing to the matters alleged in the statement and particulars delivered by him and any amendment or addition duly made.

Award

14.—(1) Subject to sub-paragraph (2), the arbitrator shall make and sign his award within 56 days of his appointment.

(2) The President may from time to time extend the time limited for making the award, whether that time has expired or not.

15.  The arbitrator shall notify the terms of his award to the Department within eight days of delivery of that award.

16.  The arbitrator shall have power to correct in the award any clerical mistake or error arising from any accidental slip or omission.

Reasons for award

17.  If requested by any party to the arbitration, on or before the making of the award, to make a statement, either written or oral, of the reasons for the award the arbitrator shall furnish such a statement.

18.  For the purposes of this Schedule, an arbitrator appointed by the President shall be taken to have been so appointed at the time when the President executed the instrument of appointment, and in the case of any such arbitrator the periods mentioned in paragraphs 13 and 14 shall run from that time.

19.  Any person having an interest in the holding to which the arbitration relates shall be entitled to make representations to the arbitrator.

regulation 19

SCHEDULE 2 Reallocation of quota and calculation of levy liability

Wholesale quota

1.  The Department shall determine the amount, if any, by which the wholesale deliveries of dairy produce to each purchaser exceeds his purchaser quota.

2.  In making that determination the Department shall complete in sequence the steps required by paragraphs 3 to 7, 9 and 10.

3.  The Department shall where necessary authorise an adjustment of the amount, if any, by which the quantity of wholesale deliveries of dairy produce to each purchaser must be adjusted to take account of its fat content, calculated in accordance with Article 4(1) of the Commission Regulation.

4.  The Department shall authorise the adjustment by purchasers (to the extent possible from within the quota available to the purchaser to whom the producer makes deliveries) of the quota of any producer making wholesale deliveries to whom a temporary reallocation of quota has been made, to take account of that reallocation and any purchaser who has insufficient quota unused by producers registered with him to meet that temporary reallocation shall notify the Department of the amount of the shortfall in such form as the Department may reasonably require.

5.  The Department shall determine for each purchaser the amount, if any, by which the purchaser quota of each purchaser exceeds or falls short of the quantity of wholesale deliveries of dairy produce made to him taking into account the amount of quota converted in accordance with regulation 17, and any temporary reallocation made in accordance with regulation 15.

6.  The Department shall determine the total amount, if any, of excess quota remaining for any purchaser whose purchaser quota exceeds the quantity of wholesale deliveries of dairy produce made to him, as determined in accordance with paragraph 5, and shall add that amount to the national reserve.

7.  The Department shall reallocate the amount, if any, referred to in paragraph 6—

(a) in the first instance, to meet any award of a temporary reallocation of quota which has not been met by the adjustment referred to in paragraph 4;

(b) thereafter, to offset the amount by which the deliveries made to any purchaser exceed his purchaser quota, such allocation being made proportionately to the amount of quota; and

(c) where the allocations referred to in sub-paragraph (b) exceed the amount required by the purchaser, the surplus shall be allocated to all purchasers where the deliveries exceed purchaser quota, until all unallocated quota has been exhausted.

8.  Where a purchaser fails to notify the Department on or before 14th May immediately following the end of the quota year of the actual quantity of milk or milk products delivered to him in that year, the Department may decide that that purchaser shall not benefit from the reallocation of quota referred to in paragraph 7(b).

9.  The Department shall determine the total amount of the levy payable by a purchaser by multiplying the amount, if any, by which deliveries to him exceed his purchaser quota following the steps specified in paragraphs 3 to 7 by the rate of levy calculated in accordance with Article 1 of the Council Regulation.

10.  Where, for any quota year, a purchaser is unable to supply such proof of the quantities of dairy produce delivered to him that year as the Department may reasonably require, the Department shall make its own determination of those quantities, based on all the information available to it, for the purposes of calculating any levy payable by that purchaser, and shall inform the purchaser of such determination.

11.  Where a purchaser—

(a) has not been approved pursuant to regulation 25; or

(b) has had his approval withdrawn by the Department pursuant to Article 13(3) of the Commission Regulation,

the Department may require any levy payable by that purchaser to be paid in such proportion as it may reasonably require by any producer whose wholesale deliveries to that purchaser have given rise to the liability for levy.

Direct sales quota

12.  The Department shall determine for each direct seller the amount, if any, after taking into account the amount of quota converted in accordance with regulation 17, by which his direct sales quota exceeds the quantity of dairy produce sold by direct sale by him, and shall add this to any quantities available in the national reserve.

13.  The Department shall make an award of a temporary reallocation of direct sales quota, under the terms of regulation 15 from the aggregate of amounts, if any, referred to in paragraph 12.

14.  The Department shall determine the aggregate amount, if any, by which the direct sales quota of all direct sellers falls short of the total quantity of dairy produce sold by direct sales by them, after taking into account the amount of quota converted in accordance with regulation 17, and any temporary reallocation made in accordance with paragraph 13.

15.  The Department shall determine for each direct seller the amount, if any, by which his direct sales quota falls short of the quantity of dairy produce sold by direct sale by him, taking into account the amount of quota converted in accordance with regulation 17, and any temporary reallocation of quota made in accordance with paragraph 13.

16.  The Department shall determine the aggregate of the amounts, if any, referred to in paragraph 15.

17.  The Department shall determine the total amount of the levy payable by multiplying the amount, if any, referred to in paragraph 14 by the rate of levy calculated in accordance with Article 1 of the Council Regulation.

18.  The Department shall calculate the rate of levy per litre, if any, to be paid by each direct seller on the amount, if any, at paragraph 15 by dividing the amount calculated in accordance with paragraph 17 by the aggregate referred to in paragraph 16.

19.  Where a direct seller fails to notify the Department on or before 14th May immediately following the end of the quota year of the total quantity of milk products sold by him by direct sales in that year, the Department may require that the rate of levy per litre to be paid by that direct seller on the quantity not notified shall be the rate calculated in accordance with Article 1 of the Council Regulation.

20.  Where for any quota year a direct seller is unable to supply such proof as the Department may reasonably require of the quantities of dairy produce sold by him in that year, the Department shall make its own determination of those quantities, based on all the information available to it, for the purposes of calculating any levy payable by that direct seller, and shall inform the direct seller of its determination.

regulation 30

SCHEDULE 3 Keeping and retention of records

Records to be kept by purchasers

1.  In respect of each quota year, a purchaser shall keep, and retain for the relevant period, records comprising—

(a) details of each producer making deliveries to him, including—

(i) that producer’s name and address;

(ii) the wholesale quota available to that producer at the beginning and end of each quota year;

(iii) the representative fat content (butterfat base) of the milk delivered by that producer; and

(iv) the total quota available for the purchaser group concerned and the weighted butterfat of that quota;

(b) details, in terms of each delivery and each month, of the quantities of milk or milk products which each producer has delivered to him;

(c) details of the cumulative total of the quantities delivered to him each month by all producers;

(d) details of the average fat content of each producer’s deliveries per month;

(e) details of the weighted average fat content of the cumulative total referred to in sub-paragraph (c);

(f) a list of purchasers and other undertakings which deliver treated or processed milk or milk products to him;

(g) details, in terms of each such purchaser or undertaking and each month, of the quantities delivered to him by that purchaser or undertaking;

(h) details of the use to which milk and milk products collected from him has been put;

(i) records of individual deliveries and accompanying collection documents identifying each delivery by producer, purchaser or other undertaking; and

(j) all books, registers, accounts, correspondence, commercial data, vouchers and supporting documents relating to his business activities.

Records to be kept by producers

2.—(1) In respect of each quota year, a direct seller shall keep, and retain for the relevant period, records comprising—

(a) details of the quota held by him, including any permanent and temporary transfers of quota if appropriate;

(b) his herd records (comprising number and breed of cows and calved heifers in dairy herd with details of number of cows in milk and number of cows dry);

(c) daily records of milk produced;

(d) details recorded as a result of his participation in a milk recording scheme;

(e) details of quantities of milk processed, methods of processing and quantities and type of milk products produced;

(f) details of quantities of wholemilk used in the production of milk products (with conversion rates applied);

(g) details of quantities and types of milk and milk products which are produced and used on his holding for stockfeeding and human consumption;

(h) details of quantities and types of milk and milk products which are disposed of (other than under sub-paragraph (g)) or wasted on the holding;

(i) details of quantities and types of milk and milk products sold direct to the consumer or transferred free of charge from his holding (including milk and milk products sold on his holding);

(j) details of quantities and types of milk and milk products purchased, exchanged or otherwise received by him, and records relating to their disposal; and

(k) details of stocks of milk and milk products held by him on a monthly basis.

(2) Where a direct seller delivers milk or milk products to a purchaser, he shall, in respect of each quota year, also keep, and retain for the relevant period, records comprising—

(a) details of quantities and types of milk and milk products delivered wholesale by him and the name and address of any purchaser involved;

(b) the payment slips issued in respect of any such purchaser; and

(c) where there is a discrepancy between a purchaser’s payment slip and the relevant tanker receipt, that tanker receipt.

(3) For the purposes of sub-paragraph (1)(d) and paragraph 3(g)—

(a) “milk recording scheme” means a scheme under which the amount of milk produced by a cow during a lactation is measured in terms of volume and compositional quality by a person independent of the producer; and

(b) “lactation” means the period commencing with calving and ending when the cow requires to be milked only once a day.

3.  A producer, other than a direct seller, who makes wholesale deliveries to a purchaser shall, in respect of each quota year, keep, and retain for the relevant period, records comprising—

(a) details of the quota held by him, showing permanent and temporary transfers of quota if appropriate;

(b) his herd records (comprising number and breed of cows and calved heifers in dairy herd with details of number of cows in milk and number of cows dry);

(c) daily records of milk produced;

(d) details of quantities and types of milk and milk products delivered wholesale by him, and the name and address of any purchaser involved;

(e) the payment slips issued in respect of any such purchaser;

(f) where there is a discrepancy between a purchaser’s payment slip and the relevant tanker receipt, that tanker receipt;

(g) details recorded as a result of his participation in a milk recording scheme;

(h) details of quantities and types of milk and milk products produced and used on his holding for stockfeeding and human consumption;

(i) details of quantities and types of milk and milk products which are disposed of (other than under sub-paragraph (h)) or wasted on the holding;

(j) details of quantities and types of milk and milk products transferred free of charge from his holding;

(k) details of quantities and types of milk and milk products purchased, swapped or otherwise received, and records relating to their disposal; and

(l) details of stocks of milk produced on his holding and any resulting milk products.

Records to be kept by any person undertaking butterfat testing in a laboratory

4.  Any person undertaking butterfat testing for a purchaser in a laboratory shall keep, and retain for the relevant period, records comprising details of all samples of milk analysed, showing—

(a) the time and date the sample was taken on the holding;

(b) the time and date of his receipt of the sample;

(c) the time and date of the analysis;

(d) the identity of the purchaser concerned;

(e) the identity of the producer concerned (by name or reference number);

(f) the butterfat content of each sample recorded to two decimal places;

(g) the method of analysis used; and

(h) the results of any repeat analyses undertaken.

Records to be kept by hauliers

5.  Any haulier collecting milk or milk products on behalf of a purchaser shall keep, and retain for the relevant period, records comprising details of all quantities of milk or milk products so collected, showing—

(a) the time and date of collection from each producer;

(b) the time and date of sampling of the milk or milk products of each producer;

(c) the identity of the producer concerned;

(d) the volume of milk collected (including a copy of the tanker receipt in the cases referred to in paragraphs 2(2)(c) and 3(f));

(e) the identity of the purchaser concerned;

(f) the volume of milk delivered, and the name and address of each reception site;

(g) the sources of all the milk carried on each tanker; and

(h) details of any malfunction in any equipment used by him.

Records to be kept by processors

6.  Any processor in receipt of milk or milk products for processing or treating shall keep, and retain for the relevant period, records comprising details of all quantities of milk or milk products received, showing—

(a) the time and date of their delivery;

(b) their volume or weight per delivery (including copies of tanker receipts and weighbridge tickets in the cases referred to in paragraphs 2(2)(c) and 3(f));

(c) the name and address of the haulier concerned;

(d) the name and address of their vendor or donor;

(e) the quantities of milk processed, types of processing undertaken, and quantities and types of milk products produced;

(f) the quantities of milk used in the production of milk products (if not ascertainable from the information provided under sub-paragraph (e));

(g) the calculated stocks of milk and milk products held by that processor at the end of each month and details of actual stocks physically held as at 31st March each year; and

(h) the quantities of milk or milk products sold or otherwise disposed of, with the date of supply or disposal, and the names and addresses of the buyers or recipients concerned.

Records to be kept by persons buying, selling or supplying milk or milk products obtained directly from a producer or purchaser

7.  Any person buying, selling or supplying milk products obtained directly from a producer or purchaser shall keep, and retain for the relevant period, records comprising details of all quantities of milk or milk products received, showing—

(a) the time and date of their receipt;

(b) their volume or weight per delivery (including copies of tanker receipts or invoices in the cases referred to in paragraphs 2(2)(c) and 3(f));

(c) the name and address of the haulier concerned;

(d) the name and address of their vendor or donor;

(e) the quantities of milk or milk products sold or supplied, with the date of sale or supply, and the names and addresses of the buyers or recipients concerned; and

(f) the quantities of milk or milk products returned to the producer or purchaser unsold or unused, and the date of that return.

8.  In this Schedule, in relation to any records—

(a) “the relevant period” means the remainder of the year of record and a period of at least three calendar years thereafter; and

(b) “the remainder of the year of record” means, following the making of the records, the remainder of the year in which they were made.

regulation 35

SCHEDULE 4 Revocations

Title	Number	Extent of Revocation
The Dairy Produce Quotas Regulations 1997	S.I. 1997/733	The whole Regulations
The Dairy Produce Quotas (Amendment) (Time Limits) Regulations 1997	S.I. 1997/1093	The whole Regulations
The Charges for Inspections and Controls (Amendment) Regulations 1998	S.I. 1998/2880	Regulation 6
The Dairy Produce Quotas (Amendment) Regulations (Northern Ireland) 2000	S.R. 2000 No. 83	The whole Regulations
The Dairy Produce Quotas (Amendment) Regulations (Northern Ireland) 2001	S.R. 2001 No. 27	The whole Regulations

(1)

1996 c. 23