The Animal By-Products (Enforcement) (England) Regulations 2011

PART 1 Introduction

Citation, commencement and application

1.  These Regulations—

(a) may be cited as the Animal By-Products (Enforcement) (England) Regulations 2011;

(b) come into force on 23rd March 2011; and

(c) apply in England.

Interpretation

2.—(1) In these Regulations—

“EU Control Regulation” means Regulation (EC) No. 1069/2009 of the European Parliament and of the Council laying down health rules as regards animal by-products and derived products not intended for human consumption and repealing Regulation (EC) No. 1774/2002 (Animal by-products Regulation)(1);

“EU Implementing Regulation” means Commission Regulation (EU) No. 142/2011 implementing Regulation (EC) No. 1069/2009 of the European Parliament and of the Council laying down health rules as regards animal by-products and derived products not intended for human consumption and implementing Council Directive 97/78/EC as regards certain samples and items exempt from veterinary checks at the border under that Directive(2) as amended from time to time;

“animal by-product requirement” has the meaning given in regulation 17(2);

“authorised person” means a person authorised under regulation 22;

“competent authority” has the meaning given in regulation 3;

“enforcement authority” means a body exercising functions under regulation 21(1) or (2);

“premises” includes—

(a)

any land, building, shed or pen;

(b)

any receptacle or container;

(c)

any ship; or

(d)

a vehicle of any description;

“ship” includes a hovercraft, submersible craft or any other floating craft but not a vessel which—

(a)

permanently rests on or is permanently attached to the seabed; or

(b)

is an installation within section 16 of the Energy Act 2008(3).

(2) Expressions used in these Regulations that are also used in the EU Control Regulation or the EU Implementing Regulation have the same meaning in these Regulations as they have in the EU Control Regulation or in the EU Implementing Regulation.

PART 2 The competent authority and miscellaneous provisions

The competent authority

3.  The competent authority for the purposes of the EU Control Regulation and the EU Implementing Regulation is the Secretary of State.

Access

4.  In relation to a prohibition on feeding in Article 11(1)(a), (b) or (d) (restrictions on use) of the EU Control Regulation, the requirements of regulations 5 and 6 apply.

5.—(1) Animal by-products, including catering waste, must not be brought on to any premises if farmed animals would have access to such animal by-products.

(2) Paragraph (1) does not apply to derived products, except for—

(a) products derived from catering waste; or

(b) meat and bone meal derived from Category 2 material and processed animal proteins intended to be used as or in organic fertilisers and soil improvers that do not comply with the requirements of Article 32(1)(d) (placing on the market and use) of the EU Control Regulation.

6.  A carcase or part of a carcase of any farmed animal that has not been slaughtered for human consumption must be held, pending consignment or disposal, in such manner as to ensure that any animal or bird will not have access to it.

Use of organic fertilisers and soil improvers

7.—(1) Where organic fertilisers or soil improvers are applied to land, no person may allow pigs to have access to that land or to be fed cut herbage from such land for a period of 60 days beginning with the application of the organic fertiliser or soil improver.

(2) Paragraph (1) does not apply to the following organic fertilisers or soil improvers—

(a) manure;

(b) milk;

(c) milk-based products;

(d) milk-derived products;

(e) colostrum;

(f) colostrum products; or

(g) digestive tract content.

Collection centres

8.  A processing plant for Category 2 material which is approved for the purpose of being a collection centre for Category 2 material is authorised as a collection centre.

Remote areas

9.  The following areas are remote areas for the purposes of Article 19(1)(b) of the EU Control Regulation (collection, transport and disposal)—

(a) Lundy Island;

(b) the Isles of Scilly;

(c) the Isle of Wight.

Placing on the market

10.  The placing on the market of untreated wool and untreated hair from farms or from establishments or plants is authorised except where they present a risk of any disease communicable through those products to humans or animals.

PART 3 Registration and approval

Procedure for registration of plants and establishments

11.  A notification must be made in writing to the competent authority, where it is made—

(a) with a view to registration in accordance with Article 23(1) (registration of operators, establishments or plants) of the EU Control Regulation; or

(b) to inform the authority of changes in accordance with Article 23(2) of that Regulation.

Notifications of competent authority in respect of registration

12.  The competent authority must give notice in writing to—

(a) the operator who has notified in accordance with regulation 11, of—

(i) the registration of such an operator; or

(ii) the decision not to register;

(b) a registered operator, of—

(i) a prohibition made under Article 46(2) (prohibition on operations) of the EU Control Regulation;

(ii) a requirement to comply with Article 23(1)(b) or (2) of the EU Control Regulation (information on activities and up-to-date information);

(iii) the amendment of the registration or the ending of the registration where an operator has notified the competent authority of the closure of an establishment in accordance with Article 23(2) (up to date information) of the EU Control Regulation.

Procedure for approval

13.  Operators to whom Article 24(1) (approval of establishments or plants) of the EU Control Regulation applies, must apply in writing to the competent authority to be approved, including approval after the grant of temporary approval where Article 33 of the EU Implementing Regulation (re-approval of plants and establishments after the grant of temporary approval) applies.

Notification in respect of decisions on approval

14.  The competent authority must give notice in writing to—

(a) the applicant for approval, of the—

(i) grant of approval in accordance with Articles 24 (approval) and 44 (procedure for approval) of the EU Control Regulation;

(ii) grant of conditional approval in accordance with Articles 24 and 44 of the EU Control Regulation, or the extension of such approval in accordance with that Article; or

(iii) refusal to grant approval in respect of an initial application or extension;

(b) where conditional approval has been granted in accordance with Articles 24 and 44 of the EU Control Regulation, the operator of the plant or establishment subject to such approval, of the—

(i) grant of full approval;

(ii) extension of such approval;

(iii) imposition of conditions in accordance with Article 46(1)(c) (suspensions, withdrawals and prohibitions on operators) of the EU Control Regulation;

(iv) suspension of such approval in accordance with Article 46(1)(a) of the EU Control Regulation;

(v) withdrawal of such approval in accordance with Article 46(1)(b) of the EU Control Regulation;

(vi) making of a prohibition in accordance with Article 46(2) of the EU Control Regulation; or

(vii) refusal to extend or grant full approval; or

(c) the operator of an approved plant or establishment, of the—

(i) imposition of conditions in accordance with Article 46(1)(c) of the EU Control Regulation (suspension, withdrawal);

(ii) suspension of such approval in accordance with Article 46(1)(a) of the EU Control Regulation;

(iii) making of a prohibition in accordance with Article 46(2) of the EU Control Regulation; or

(iv) withdrawal of such approval in accordance Article 46(1)(b) of the EU Control Regulation.

Reasons for decisions

15.—(1) Where a decision is made by the competent authority and notified in accordance with regulation 12 or regulation 14, the competent authority must give reasons in writing for that decision.

(2) Paragraph (1) does not apply to decisions notified under—

(a) regulation 12(a)(i);

(b) regulation 14(a)(i); or

(c) regulation 14(b)(i) or (ii).

Appeals procedure

16.—(1) Where the competent authority has made a notification to which regulation 15(1) applies, a person may appeal against it by making written representations, within 21 days of the notification of that decision, to a person appointed for the purpose by the Secretary of State.

(2) The competent authority may also make written representations to the appointed person concerning the decision.

(3) The appointed person must then report in writing to the Secretary of State.

(4) The Secretary of State must give to the applicant written notification of the final determination of the Secretary of State and the reasons for it.

PART 4 Offences and penalties

Offences in respect of the EU Control Regulation and the EU Implementing Regulation

17.—(1) A person who fails to comply with an animal by-product requirement commits an offence.

(2) “Animal by-product requirement” means any requirement in Column 2 of Schedule 1 to these Regulations as read with the provisions in Column 3 to that Schedule.

Offence of obstruction

18.  It is an offence—

(a) intentionally to obstruct an authorised person;

(b) without reasonable cause, to fail to give to an authorised person any information or assistance or to provide any facilities that such person may reasonably require;

(c) knowingly or recklessly to give false or misleading information to an authorised person; or

(d) to fail to produce a record or document when required to do so by an authorised person.

Corporate, partnership and unincorporated association offences

19.—(1) Where—

(a) an offence under these Regulations has been committed by a body corporate or a partnership or Scottish partnership or other unincorporated association; and

(b) it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of, a relevant individual (including an individual purporting to act in the capacity of a relevant individual),

the relevant individual as well as the body corporate, partnership, Scottish partnership or unincorporated association, is guilty of the offence and is liable to be proceeded against and punished accordingly.

(2) In paragraph (1), “relevant individual” means—

(a) in relation to a body corporate—

(i) a director, manager, secretary or other similar officer of the body;

(ii) where the affairs of the body are managed by its members, a member;

(b) in relation to a partnership or Scottish partnership, a partner;

(c) in relation to an unincorporated association other than a Scottish partnership, a person who is concerned in the management or control of the association.

(3) Proceedings for an offence under these Regulations alleged to have been committed by a partnership or an unincorporated association may be brought against the partnership or association in the name of the partnership or association.

(4) For the purpose of proceedings in paragraph (3)—

(a) rules of court relating to the service of documents have effect as if the partnership or unincorporated association were a body corporate; and

(b) the following provisions apply as they apply in relation to a body corporate—

(i) section 33 of the Criminal Justice Act 1925(4); and

(ii) Schedule 3 to the Magistrates’ Courts Act 1980(5).

(5) A fine imposed on a partnership or unincorporated association on its conviction of an offence under these Regulations is to be paid out of the funds of the partnership or association

Penalties

20.  A person guilty of an offence under these Regulations is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum or to imprisonment not exceeding three months or both; or

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years, or both.

PART 5 Enforcement

Enforcement authority

21.—(1) These Regulations are enforced by—

(a) the local authority;

(b) the port health authority in relation to—

(i) the London port health district (within the meaning given by section 7(1) of the Public Health (Control of Disease) Act 1984(6)), or

(ii) a port health district constituted by order under section 2(3) of that Act; or

(c) the Secretary of State in relation to a food hygiene establishment.

(2) Paragraph (1)(a) and (b) does not apply where the Secretary of State directs that the enforcement duty is to be exercised in relation to cases of a particular description or any particular case by the Secretary of State.

(3) In paragraph (1)(a) “local authority” means—

(a) where there is a unitary authority, within the meaning of the Local Government Changes for England Regulations 1994(7), that authority;

(b) where there is not a unitary authority—

(i) in a metropolitan district, the council of that district;

(ii) in a non-metropolitan county, the council of that county or the council of a district within the county area;

(iii) in each London borough, the council of that borough;

(c) in the City of London, the Common Council; or

(d) the Council of the Isles of Scilly.

(4) In paragraph (1)(b) “port health authority” means—

(i) in relation to the London port health district, the Common Council of the City of London; or

(ii) in relation to any other port health district, the port health authority for that district.

(5) In paragraph (1)(c), “food hygiene establishment” means an establishment referred to in regulation 5(2) of the Food Hygiene (England) Regulations 2006(8) in respect of which the Food Standards Agency has enforcement functions under those Regulations.

Authorised person

22.  An enforcement authority may authorise in writing such persons as the authority considers appropriate to act for the purpose of enforcing these Regulations.

Powers of entry and additional powers

23.—(1) An authorised person may, on production of that person’s authority if so required—

(a) enter and inspect premises (except a dwelling-house) at all reasonable hours;

(b) take such other persons and any equipment or materials as necessary;

(c) make such examination or investigation as necessary;

(d) direct that the premises, or part of them, are left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under sub-paragraph (c);

(e) take such measurements and photographs and make such recordings as are considered necessary for the purpose of any examination or investigation under sub-paragraph (c);

(f) in the case of any article or substance found in or on the premises—

(i) take samples;

(ii) test or subject it to any process, where it appears that it has caused or is likely to cause harm to human health or to the health of animals or plants;

(iii) take possession of it and retain it for so long as is necessary—

(aa) to examine it and to exercise the power within paragraph (ii);

(bb) to ensure that it is not tampered with before examination of it is completed; and

(cc) to ensure that it is available for use as evidence in any proceedings for an offence under these Regulations;

(g) require the production of, or where the information is recorded in computerised form the furnishing of extracts from, any records which it is necessary to see for the purposes of any examination or investigation under sub-paragraph (c) and to inspect and take copies of, or of any entry in, the records;

(h) require any person to afford such facilities and assistance with respect to any matters or things within that person’s control or in relation to which that person has responsibilities as are necessary to enable the authorised person to exercise any of the powers conferred by this regulation; or

(i) mark any animal or animal by-product as the authorised person considers necessary.

(2) Where an authorised person proposes to exercise the power in paragraph (1)(f)(ii), the authorised person must—

(a) if so requested by a person who at the time is present and has responsibilities in relation to those premises, cause anything which is to be done by virtue of that power to be done in that person’s presence;

(b) consult such persons as appear to the authorised person appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which is proposed under that power.

(3) Where an authorised person in respect of the power in paragraph (1)(f)(iii)—

(a) proposes to exercise that power, the authorised person must, if it is practicable to do so, take a sample of it and give to a responsible person at the premises a portion of the sample marked in a manner sufficient to identify it; or

(b) exercises that power, the authorised person must leave a notice giving particulars of the article or substance sufficient to identify it and stating that possession has been taken, such notice to be left either—

(i) with a responsible person; or

(ii) if that is impracticable, fixed in a conspicuous place at those premises.

(4) Nothing in this regulation compels the production by any person of a document which that person would be entitled to withhold production of on the grounds of legal professional privilege on an order for discovery in an action in the High Court.

Warrant

24.—(1) If, in relation to the power to enter premises under regulation 23, a justice of the peace, on written information on oath—

(a) is satisfied that there are reasonable grounds to believe that any information or material relevant to the examination or investigation under regulation 23(1)(c) is on any such premises; and

(b) is satisfied that—

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

(ii) an application for entry, or the giving of such a notice would defeat the object of the entry, or that the case is one of urgency, or that such premises are unoccupied or the occupier is temporarily absent,

the justice may by warrant, which continues in force for a period of one month, authorise an authorised person to enter the premises, if necessary by force.

(2) If, in relation to a dwelling-house, a justice of the peace on written information on oath—

(a) is satisfied that there are reasonable grounds to believe that information or material relevant to an examination or investigation for the purpose of enforcing the EU Control Regulation, the EU Implementing Regulation and these Regulations is on such premises; and

(b) is satisfied that—

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

(ii) an application for entry, or the giving of such a notice would defeat the object of the entry, or that the case is one of urgency, or that such premises are unoccupied or the occupier is temporarily absent,

the justice may by warrant, which continues in force for a period of one month, authorise an authorised person to enter such premises, if necessary by force, and inspect them.

(3) Where an authorised person has been authorised under paragraph (2) to enter by warrant, the authorised person has the powers in regulation 23(1)(b) to (i).

Notices served by an authorised person

25.—(1) An authorised person may serve a notice in accordance with paragraph (2) where that person—

(a) considers that there is a contravention of, or failure to comply with an animal by-product requirement; or

(b) reasonably suspects that as a result of such contravention or failure to comply, premises constitute a risk to human or animal health.

(2) Notices may be served on the occupier of any premises, or the person in charge of the premises—

(a) requiring the disposal and, where applicable, storage pending such disposal of—

(i) animal by-products and derived products;

(ii) material in premises to which paragraph (1)(b) applies;

(b) requiring the cleansing and disinfection of premises to which paragraph (1)(b) applies and, where applicable, specifying the method for such cleansing and disinfection;

(c) prohibiting animal by-products and derived products being—

(i) moved in or brought on to premises;

(ii) moved in or brought on to premises unless in accordance with conditions specified in the notice, including a condition as to the satisfactory completion of the cleansing and disinfection in accordance with a notice as provided in sub-paragraph (b).

(3) A notice served under paragraph (2) must be complied with at the expense of the person on whom the notice is served and, if it is not complied with, an authorised person may arrange for it to be complied with at the expense of that person.

(4) Paragraph (1) does not apply where Article 46(1) (suspensions, withdrawals and prohibitions on operations) of the EU Control Regulation applies.

Power to disclose information for enforcement purposes

26.—(1) This regulation applies to information received by an enforcement authority or an authorised person in the course of enforcing these Regulations.

(2) That person may disclose the information to any comparable enforcement authority or authorised person (appointed elsewhere within the United Kingdom to enforce the EU Control Regulation and the EU Implementing Regulation) for the purposes of their enforcement role.

(3) For the purposes of this regulation, “an enforcement authority” includes the Food Standards Agency.

PART 6 Consequential amendments

Consequential amendments

27.  Schedule 2 to these Regulations provides for consequential amendments.

PART 7 Revocations and transitional provision

Revocations

28.  The following instruments are revoked—

(a) the Animal By-Products Regulations 2005(9);

(b) the Avian Influenza (H5N1) (Miscellaneous Amendments) Order 2007(10); and

(c) the Animal By-Products (Amendment) Regulations 2009(11).

Transitional provision

29.—(1) The collection, transport and disposal of Category 3 material in Article 10(f) of the EU Control Regulation (Category 3 material) is authorised for the period ending on 31 December 2012, where the requirements of paragraph (2) are satisfied.

(2) The requirements are—

(a) the material satisfies Article 36(3) of, and paragraphs (a) to (c) of Chapter 4 of Annex 6 to, the EU Implementing Regulation; and

(b) the means of disposal for such material, in addition to the means in Article 14 of the EU Control Regulation (disposal and use of Category 3 material), are disposal—

(i) in an authorised landfill without prior processing; or

(ii) where Article 21 of the EU Control Regulation is satisfied, to a biogas or composting plant for transformation in accordance with an authorisation under paragraph 2 of Section 2 of Chapter 3 of Annex 5 to the EU Implementing Regulation.

Jim Paice

Minister of State

Department for Environment, Food and Rural Affairs

21st March 2011