Agriculture PART 1 Introductory and general Citation, extent and commencement 1 These Regulations may be cited as the Animal Feed (Scotland) Regulations 2010, extend to Scotland only and come into force on 23rd November 2010. Interpretation and scope 2 1 In these Regulations— “ the Act ” means the Agriculture Act 1970; ... ... “Regulation 1831/2003” means Regulation (EC) No 1831/2003 of the European Parliament and of the Council on additives for use in animal nutrition; ... “ Regulation 767/2009 ” means Regulation (EC) No. 767/2009 of the European Parliament and of the Council on the placing on the market and use of feed, amending European Parliament and Council Regulation (EC) No. 1831/2003 and repealing Council Directive 79/373/EEC , Commission Directive 80/511/EEC , Council Directives 82/471/EEC , 83/228/EEC , 93/74/EEC , 93/113/EC and 96/25/EC and Commission Decision 2004/217/EC ; “Regulation 2020/354” means Commission Regulation (EU) 2020/354 establishing a list of intended uses of feed intended for particular nutritional purposes and repealing Directive 2008/38/EC ; ... “ feed authority ” means Food Standards Scotland . 2 Any expression used in these Regulations and in Regulation 1831/2003 , Regulation 767/2009 or Regulation 2020/354 has the meaning in these Regulations that it bears in the Regulation concerned. 3 Any reference to an Annex to ... Regulation 1831/2003, Regulation 2020/354 or Regulation 767/2009 is a reference to that Annex as it may be amended from time to time. 4 These Regulations do not apply to any feed additive in category (d) or (e) of Article 6(1) of Regulation 1831/2003, with the exception of those in the functional groups listed in paragraph 4(a), (b) and (c) of Annex 1 to that Regulation . PART 2 Marketing and use of feed Interpretation of this Part and Schedule 1 3 In this Part and in Schedule 1 any reference to a numbered Article or Annex is a reference to the Article or Annex so numbered in Regulation 767/2009. Enforcement of requirements of Regulation 767/2009 4 1 A person who— a contravenes or fails to comply with the provisions of Regulation 767/2009 specified in Schedule 1; or b places on the market or uses any feed that fails to comply with Article 6(1) or 8, commits an offence. 2 Where, pursuant to Article 17(2)(c) (specific mandatory labelling requirements for compound feed), the name of a specific feed material may be replaced by the name of the category to which the feed material belongs, only the categories listed in schedule 3 may be indicated. Competent authority for the purposes of Regulation 767/2009 5 The feed authority is the competent authority for the purposes of Regulation 767/2009 PART 3 Feed additives Interpretation of this Part 6 In this Part any reference to a numbered Article is a reference to the Article so numbered in Regulation 1831/2003. Enforcement of requirements of Regulation 1831/2003 7 1 A person commits an offence if that person contravenes or fails to comply with a provision specified in paragraph (2), as read, in the case of sub-paragraphs (a) and (c), with Article 2 (transitional provision) of Commission Regulation ( EU ) 2015/327 amending Regulation (EC) No 1831/2003 of the European Parliament and of the Council as regards requirements for the placing on the market and conditions of use of additives consisting of preparations . 2 The provisions are— a Article 3, paragraphs (1) to (4), (placing on the market, processing and use of feed additives), as read with Article 10 (status of existing products); b Article 12 (post-authorisation monitoring); and c Article 16, paragraphs (1) to (5) (labelling and packaging of additives and premixtures). PART 4 Undesirable substances in feed Interpretation of this Part 8 In this Part— a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b “ undesirable substance ” means any substance or product, not being a pathogenic agent, which is present in or on a feed and— i constitutes a potential danger to human or animal health or to the environment; or ii could adversely affect livestock production. Control of animal feeds containing undesirable substances 9 1 Any person who— a places on the market any products intended for animal feed that are specified in column 2 of a table in schedule 4 ; or b uses any such feed, is guilty of an offence if it contains any undesirable substance listed in column 1 of that table in excess of the relevant maximum content specified in column 3. 2 Any person who places on the market or uses any complementary feed is guilty of an offence if— a having regard to the quantity of it recommended for use in a daily ration, it contains any undesirable substance listed in column 1 of a table in schedule 4 in excess of the maximum content specified for it in column 3 in relation to complete feeds; and b there is no provision relating to any complementary feed in the corresponding entry in column 2 of that table . 3 Any person who for the purpose of dilution mixes any feed with a feed that is specified in column 2 of a table in schedule 4 and which contains any undesirable substance listed in column 1 of that table in excess of the maximum content specified for it in column 3 is guilty of an offence. 4 Any person who places on the market or uses any feed which is not sound and genuine and of merchantable quality is guilty of an offence. 5 For the purposes of paragraph (4) a feed listed in column 2 of a table in schedule 4 is not sound, genuine and of merchantable quality if it contains any undesirable substance specified in column 1 of that table in excess of the maximum content specified in relation to it in column 3. 6 Any person who has, for the purpose of a trade or business, possession or control of any of the feeds specified in paragraph (7) shall, if required by an inspector, procure and produce to the inspector an analysis in order to demonstrate that the content of inorganic arsenic in the feed specified in that paragraph is less than 2 parts per million. 7 The feeds are— a palm kernel expeller; b feeds obtained from the processing of fish and other marine animals; c seaweed meal and feed materials derived from seaweed; ... d complete feeds for fish or for fur-producing animals ; and e peat; leonardite . 8 Any person who, without reasonable excuse, fails to comply with a requirement made under paragraph (6) is guilty of an offence. 9 In order to reduce or eliminate sources of undesirable substances in products intended for animal feed, the feed authority must, in cooperation with feed business operators, carry out investigations to identify the sources of undesirable substances, in cases where the maximum levels are exceeded and in cases where increased levels of such substances are detected, taking into account background levels; for the purpose of ensuring a uniform approach in cases of increased levels, action thresholds to trigger investigations are set out in table in schedule 5. PART 5 Enforcement of Regulation 2020/354 Interpretation of this Part 10 In this Part any reference to a numbered Article is a reference to the Article so numbered in Regulation 2020/354. Offence of failing to comply with a specified provision of Regulation 2020/354 11 A person who contravenes or fails to comply with Article 1 (conditions on marketing) as read with Article 2 (derogation for feed which complies with the provisions of Directive 2008/38/EC ) and Article 3 (derogation for feed labelled before 25 March 2022 in accordance with the rules applicable before 25 March 2020) commits an offence. PART 6 Administration and enforcement Penalties for offences under these Regulations 12 1 Any person found guilty of an offence under regulation 4(1), 7(1), 9(1) to (4) or 11 is liable— a on summary conviction, to a term of imprisonment not exceeding three months or to a fine not exceeding the statutory maximum, or both; or b on conviction on indictment, to a term of imprisonment not exceeding three months or to a fine, or both. 2 Any person found guilty of an offence under regulation 9(8) is liable on summary conviction to a fine not exceeding level 3 on the standard scale. Duties to enforce 13 It is the duty of the feed authority to execute and enforce the provisions of these Regulations. Delegation by the feed authority 13A 1 Where the feed authority may delegate any function under these Regulations, it may delegate the function to any person. 2 Before delegating, the feed authority must consult the person to whom any delegation is to be made. 3 Where the feed authority delegates any function, it must specify the function and the area within which that function is to be performed. 4 Where the feed authority has delegated any of its functions, the feed authority may vary, suspend or cancel that delegation, in whole or in part. 5 The feed authority must publish and maintain an up to date register containing the details and operative date of any delegation. PART 7 Amendments and modifications to the Agriculture Act 1970 Amendments and modifications to the Agriculture Act 1970 14 1 The Act is amended or modified, as the case may be, in accordance with paragraphs (2) to (9). 2 In section 66 (interpretation of Part IV)— a in subsection (1) , insert at the appropriate place the following definitions:— “ Regulation (EC) No. 1831/2003 ” means Regulation (EC) No. 1831/2003 of the European Parliament and of the Council on additives for use in animal nutrition; ; “ Regulation (EC) No. 767/2009 ” means Regulation (EC) No. 767/2009 of the European Parliament and of the Council on the placing on the market and use of feed, amending European Parliament and Council Regulation (EC) No. 1831/2003 and repealing Council Directive 79/373/EEC , Commission Directive 80/511/EEC , Council Directives 82/471/EEC , 83/228/EEC , 93/74/EEC , 93/113/EC and 96/25/EC and Commission Decision 2004/217/EC ; ; and b for subsection (2) substitute— 2 For the purposes of this Part of this Act material shall be treated as sold for use as a fertiliser or feeding stuff whether it is sold to be so used by itself or as an ingredient in something which is to be so used. . 3 In section 68 (duty of seller to give statutory statement)— a after subsection (5) insert the following subsection:— 5A Nothing in subsections (1) to (5) applies to anyone to whom the requirements of Article 16 of Regulation (EC) No. 1831/2003 (labelling and packaging of feed additives and premixtures) or of Chapter 4 of Regulation (EC) No. 767/2009 (labelling, presentation and packaging) apply. ; and b after subsection (6) insert the following subsection:— 7 Failure to comply with the labelling requirements of Article 16 of Regulation (EC) No. 1831/2003 or of Chapter 4 of Regulation (EC) No. 767/2009 shall not invalidate a contract of sale, but such labelling shall, regardless of any contract or notice to the contrary, have effect as a warranty by the person who gives it that the particulars contained in it are correct. . 4 In section 69(1) (marking of material prepared for sale) omit “or feeding stuff”. 5 In section 70 (use of names or expressions with prescribed meanings)— a subsection (1)(a) in so far as it applies in relation to feeding stuffs shall apply as if “under Regulation (EC) No. 767/2009 ” were substituted for “ ;by regulations made for the purposes of this section ” ; and b after subsection (5) insert the following subsection:— 6 Nothing in subsections (2) to (4) of this section shall apply to anyone to whom the labelling requirements of Regulation (EC) No. 767/2009 apply. . 6 In section 71 (particulars to be given of certain attributes if claimed to be present)— a subsection (4) in so far as it applies in relation to feeding stuffs shall apply as if— i “the requirements of Article 13 (claims) of Regulation (EC) No. 767/2009 ” were substituted for “ ;subsection (1) of this section ” ; and ii “that Article” were substituted for “ ;that subsection ” ; and b after subsection (5) insert the following subsection:— 6 Nothing in subsections (1) to (3) of this section shall apply to anyone to whom Article 13 (claims) of Regulation (EC) No. 767/2009 applies. . 7 Omit sections 73 (deleterious ingredients in feeding stuff) and 73A. 8 In section 74 (limits of variation) after subsection (2) insert the following subsection:— 3 Nothing in subsection (2) shall apply to anyone to whom Article 11.5 and Annex IV (permitted tolerances) of Regulation (EC) No. 767/2009 applies. . 9 Section 74A(3) does not apply to regulations concerning feed. PART 8 Amendments to Regulations Amendment of the Feed (Hygiene and Enforcement) (Scotland) Regulations 2005 15 1 The Feed (Hygiene and Enforcement) (Scotland) Regulations 2005 are amended in accordance with paragraphs (2) to (6). 2 In regulation 2(1) (interpretation)— a after the definition of “agricultural analyst” insert the definition— “ the Animal Feed Regulations ” means the Animal Feed (Scotland) Regulations 2010; ; and b after the definition of “Regulation 183/2005” insert the definition— “ Regulation 767/2009 ” means Regulation (EC) No. 767/2009 of the European Parliament and of the Council on the placing on the market and use of feed, amending European Parliament and Council Regulation (EC) No. 1831/2003 and repealing Council Directive 79/373/EEC , Commission Directive 80/511/EEC , Council Directives 82/471/EEC , 83/228/EEC , 93/74/EEC , 93/113/EC and 96/25/EC and Commission Decision 2004/217/EC ; . 3 In regulation 15(2)(b) (offences, penalties and enforcement) omit “food-producing”. 4 For regulation 24(13) (powers of entry for authorised officers) substitute— 13 In this regulation— a “compound feeding stuff” bears the same meaning as “ compound feed ” as defined in Article 3(2)(h) of Regulation 767/2009; b “feeding stuff which is intended for a particular nutritional purpose” bears the same meaning as “ feed intended for particular nutritional purposes ” as defined in Article 3(2)(o) of that Regulation; and c “ prescribed manner ” means prescribed by any provision referred to in regulation 29. . 5 In each of regulations 34(1) and (2) (defences of fault of another person, mistake etc and export), 35(1) and (3) (defences by corporate bodies or Scottish partnerships) and 36(1) (time limit for prosecutions) after “these Regulations” insert “ ;or the Animal Feed Regulations ” . 6 In Schedule 1 (specified feed law)— a omit “The Feeding Stuffs (Scotland) Regulations 2000”; b for “The Feeding Stuffs (Scotland) Regulations 2005 (as modified by the Feeding Stuffs (Application to Zootechnical Additives etc.) (Scotland) Regulations 2005)” substitute “ ;The Animal Feed (Scotland) Regulations 2010 ” ; and c insert at the end— Regulation 767/2009 . Amendment of the Official Feed and Food Controls (Scotland) Regulations 2009 16 1 The Official Feed and Food Controls (Scotland) Regulations 2009 are amended in accordance with paragraph (2). 2 In paragraph (f) of Schedule 2 (definition of relevant feed law), for “the Feeding Stuffs (Scotland) Regulations 2005” substitute “ ;the Animal Feed (Scotland) Regulations 2010 ” . Revocations 17 The enactments listed in Schedule 2 are revoked. Transitional provisions 18 1 The validity, effect or consequences of anything done under these Regulations as they had effect immediately before the Food Standards Scotland becomes the feed authority is not affected by the Food Standards Scotland becoming the feed authority. 2 Any inspection, investigation or legal proceedings commenced prior to the Food Standards Scotland becoming the feed authority is not affected by the Food Standards Scotland becoming the feed authority. 3 Any inspection, investigation or legal proceeding commenced prior to the Food Standards Scotland becoming the feed authority may be continued after that date as if the amendments to these Regulations coming into force on that day had not been made. 4 Any liability to a penalty for an offence committed before the Food Standards Scotland becoming the feed authority is not affected by the Food Standards Scotland becoming the feed authority. 5 Despite Food Standards Scotland becoming the feed authority, these Regulations as they had effect before that day continue to have effect for the purposes of investigating any offence referred in paragraph (4). RICHARD LOCHHEAD A member of the Scottish Executive St Andrew's House, Edinburgh