Made | 8th March 2005 | ||
Coming into operation | 31st March 2005 |
Regulation |
1. | Citation and commencement |
2. | Interpretation |
3. | Application |
4. | Registers and notices to be maintained and prepared by the Department |
5. | Approval of purchasers |
6. | Obligations of producers and purchasers with respect to registration and deliveries |
7. | Inspection of entries in the Department's registers |
8. | Registers as evidence |
9. | Transfer of quota with transfer of land: general |
10. | Transfer of part of holding |
11. | Prospective apportionment of quota |
12. | Cases where apportionment of quota by arbitration is required |
13. | Transfer of quota without transfer of land |
14. | Retention of quota at the end of a tenancy |
15. | Temporary transfer of quota |
16. | Restrictions on transfer of quota |
17. | Consequences of failure duly to submit a transfer notice |
18. | Allocation from national reserve |
19. | Temporary reallocation of quota |
20. | Special allocation of quota |
21. | Conversion of quota: general |
22. | Conversion of quota: restriction on transfers of converted quota in conversion year |
23. | Adjustment of purchaser quota |
24. | Restriction on use of quota in Scottish Islands area |
25. | Determination whether reduction in downward butterfat adjustment is required in relation to deliveries |
26. | Determination whether levy on deliveries is payable |
27. | Reallocation of producers' quota |
28. | Determination of liability for levy on deliveries |
29. | Notification of levy liability |
30. | Determination of liability for levy on direct sales |
31. | Payment and recovery of levy |
32. | Prevention of avoidance of levy |
33. | Information |
34. | Keeping and retention of records |
35. | Annual declarations and summaries |
36. | Administrative penalties |
37. | Withholding or recovery of compensation |
38. | Confiscation of quota |
39. | Restoration of quota |
40. | Offences and criminal penalties |
41. | Revocations and amendments |
Schedule 1 - | Apportionment and prospective apportionment by arbitration |
Schedule 2 - | Keeping and retention of records |
(2) In these Regulations any reference to anything done in writing or produced in written form shall include a reference to an electronic communication which has been recorded and is capable of being subsequently reproduced.
(3) Other expressions which are used -
shall have the same meaning as in the Community legislation.
(4) The Interpretation Act (Northern Ireland) 1954[9] shall apply to these Regulations as it applies to an Act of the Northern Ireland Assembly.
Application
3.
Except as otherwise provided, these Regulations shall apply to relevant persons in respect of whom the Department is the relevant competent authority.
(2) The direct sales register shall contain an entry in respect of each direct seller setting out in particular -
(3) The Department shall -
(4) The wholesale register shall contain an entry in respect of each wholesale producer setting out in particular -
(5) The Department shall -
(6) The register of purchasers shall contain an entry in respect of each purchaser setting out in particular -
(7) For the purposes of paragraphs (1) to (4), where the holding of a quota holder comprises more than one dairy enterprise, that quota holder may, after submitting to the Department a consent or sole interest notice in respect of that holding, agree with the Department the partition of the quota available to that quota holder relating to that holding between separate direct sales register entries or separate wholesale register entries, as the case may be.
(8) The Department -
(c) shall notify any person affected by any correction or amendment made by it.
(9) Notwithstanding that a person is no longer a producer, he shall -
until the start of the quota year following the year in which the quota available to him has been transferred or until the quota has been withdrawn under Article 15 of the Council Regulation.
(10) The obligation under paragraphs (1)(b), (3)(b) and (c) and (5)(b) is an obligation to send a copy of -
as the case may be, as it has effect on 1st April in each year.
Approval of purchasers
5.
- (1) For the purposes of Article 23 of the Commission Regulation (which concerns the approval of purchasers), a purchaser shall make an application to the Department for approval in such form as the Department may reasonably require.
(2) An application under paragraph (1) shall state the purchaser's trading address, or, if there is more than one such address, each such address and his principal trading address.
(3) For the purposes of Article 23(2) of the Commission Regulation (which permits Member States to lay down stricter rules on the approval of purchasers), the Department may only approve a purchaser if the purchaser has complied with the requirements of paragraph (4).
(4) The requirements referred to in paragraph (3) are that the purchaser -
(5) Each purchaser shall inform the Department of -
(6) Each purchaser shall -
Obligations of producers and purchasers with respect to registration and deliveries
6.
- (1) Each -
shall register his quota with the Department.
(2) Each purchaser shall maintain, in respect of all wholesale producers whose register entries include that purchaser's name on the list referred to in regulation 4(4)(e) -
(3) Each person who holds registered wholesale quota, including any producer who has temporarily ceased or who intends temporarily to cease making deliveries, shall register his quota with a purchaser.
(4) Each purchaser shall maintain a system approved by the Department for -
(5) Each purchaser shall amend the register referred to in paragraph (2)(a) as directed by the Department on each occasion when he is notified by the Department that the equivalent register maintained by the Department has been amended in relation to wholesale producers registered in that purchaser's register.
Inspection of entries in the Department's registers
7.
If a request -
(b) is made by a purchaser in respect of an entry in the register referred to in regulation 4(6) relating to himself,
the Department may, on payment of a reasonable charge, supply to the person making the request a copy of the register entry.
Registers as evidence
8.
In any proceedings, any entry in a register which the Department is required by these Regulations to maintain shall be evidence of the matters stated in it.
as the Department may reasonably require.
(3) The notice of transfer shall reach the Department -
(4) The information referred to in paragraph (2)(b) shall reach the Department within such time as the Department may reasonably require.
(5) The notice of transfer shall include -
(c) in the case of a transfer of the whole of a holding, a consent or sole interest notice, provided by the transferor in respect of the holding.
Transfer of part of holding
10.
- (1) Subject to regulations 14 and 16, this regulation shall apply where there is a transfer of part of a holding.
(2) Subject to regulations 11(4) and (5) and 12, where a notice of transfer has been duly submitted in accordance with regulation 9, an apportionment of the quota relating to the holding shall -
(3) Subject to paragraph (4) and regulations 11(4) and (5) and 12, any dairy produce which has been -
from the holding during the quota year in which the change of occupation takes place and prior to the transfer of the part of the holding shall be treated for the purposes of any levy calculation as if it were sold, transferred free of charge or delivered, as the case may be from each part of the holding in proportion to the apportionment under paragraph (2).
(4) Paragraph (3) shall not apply if the parties agree otherwise and submit to the Department a notice of that agreement.
(5) A notice referred to in paragraph (4) shall be submitted -
Prospective apportionment of quota
11.
- (1) Where the occupier of a holding requires a prospective apportionment of quota relating to that holding, he shall apply for such an apportionment to the Department in such form as the Department may reasonably require, requesting either -
(2) A request for a prospective apportionment may be withdrawn by a notice in writing given to the Department by the person who made the request.
(3) If the occupier of a holding -
the request or notice shall be accompanied by a consent or sole interest notice in respect of the holding.
(4) Subject to paragraph (6), where there is a change of occupation of part of a holding and within the period of six months ending with the date of that change of occupation -
(b) a prospective apportionment of quota relating to that part of that holding has been or is in the process of being determined by arbitration under Schedule 1, paragraph (5) shall apply.
(5) The apportionment of quota shall be carried out in accordance with -
(6) Paragraph (4) shall not apply to a change of occupation to which regulation 16(1) applies.
Cases where apportionment of quota by arbitration is required
12.
- (1) This regulation shall apply where -
(2) The Department may give notice that it has reasonable grounds for believing the matters referred to in paragraph (1)(b) -
(3) Where the Department gives a notice under paragraph (2), the apportionment or prospective apportionment of the quota concerned shall be determined by arbitration in accordance with Schedule 1.
Transfer of quota without transfer of land
13.
- (1) This regulation shall be subject to regulation 16(2) and (3).
(2) This regulation shall apply where the competent authorities in England, Wales, Scotland and Northern Ireland have jointly determined, in accordance with paragraphs (1)(e) and (2) of Article 18 of the Council Regulation, that within each United Kingdom quota region the transfer of quota without transfer of the corresponding land is authorised.
(3) A transferee of quota for whom the Department is the relevant competent authority shall submit to it a notice of any such transfer within the general quota region in such form as the Department may reasonably require.
(4) The notice shall reach the Department no later than 31st March in the quota year in which the transfer takes place and shall include -
(5) Where the Department has received a notice pursuant to paragraph (3), it may require the transferor or transferee to produce such other information relating to the transfer, and within such time, as the Department may reasonably require.
(6) In this regulation -
Retention of quota at the end of a tenancy
14.
- (1) This regulation shall have effect as respects tenancies ending after 31st March 2005.
(2) Where -
the tenant may submit a notice to the Department that the quota is to be available to him by virtue of his occupation of that other holding or that other part of the holding of which the land formed part.
(3) A notice submitted pursuant to paragraph (2) shall -
Temporary transfer of quota
15.
- (1) Subject to regulation 16(2), for the purposes of Article 16 of the Council Regulation (which concerns the temporary transfer of quota), a producer may agree with another producer to make a temporary transfer to that other producer of any unused quota which is registered under regulation 4 as permanently held by the producer if other quota (whether or not unused) remains so registered.
(2) Quota may only be temporarily transferred pursuant to paragraph (1) for such period as shall end on the 31st March in the quota year in which the transfer takes place.
(3) The Department may require a reasonable charge to be paid for the registration of any temporary transfer of quota if, before the quota year in which the transfer takes place, it has announced that it intends to make such a charge in respect of such transfers in that year in such a manner as it considers likely to come to the attention of producers.
(4) Where there is an agreement to make a temporary transfer pursuant to paragraph (1), the transferee shall submit to the Department notice of the agreement, together with any charge payable under paragraph (3), so that the notice and any charge reach it no later than 31st March in the quota year in which the transfer takes place.
(5) A notice referred to in paragraph (4) shall be in such form as the Department may reasonably require.
Restrictions on transfer of quota
16.
- (1) A person shall not transfer quota on the grant or termination of -
(2) A person may not transfer quota if the transfer would result in an increase or reduction in the total wholesale quota or the total direct sales quota available for use by dairy enterprises located within a Scottish Islands area.
(3) A person may not transfer quota that is necessary to cover -
made by him before the date of the transfer.
Consequences of failure duly to submit a transfer notice
17.
- (1) This regulation shall apply if a notice of transfer is not duly submitted in accordance with regulation 9 or 13.
(2) Any unused quota transferred shall not be treated as a part of the transferee's quota entitlement for the relevant quota year, but it shall be treated as if it remained unused quota and available where appropriate for reallocation by the Department in that quota year in accordance with regulation 27 or 30.
(3) The transfer of quota shall have effect only from the beginning of the quota year in which the notice of transfer is received.
(4) The amount of quota, if any, which has been reallocated to the transferee under regulation 27 or 30 for the relevant quota year (or any subsequent year) shall not be varied to take the transfer into account until the quota year in which the transfer notice is received.
(5) In this regulation "relevant quota year" means -
(2) For the purposes of the reallocation of quota referred to in Article 10(3) of the Council Regulation, and subject to paragraph (10), the Department may award to a producer a temporary reallocation of an amount of any unused quota in accordance with the provisions of paragraphs (3) to (5).
(3) An award may only be made for a quota year in which the notice, declaration or order referred to in paragraph (1) has effect or remains in force.
(4) The amount of any such award shall be the lower of -
(5) An award to a producer under this regulation shall not be available in respect of a quota year during which the producer -
unless the Department is satisfied that the agreement to transfer, temporarily to transfer or to purchase, was entered into before the service of the notice or the making of the declaration referred to in paragraph (1)(a) or, as the case may be, the coming into force of the order referred to in paragraph (1)(b).
(6) If a producer requires an award of a temporary reallocation of quota under this regulation, he shall submit to the Department an application in such form as the Department may reasonably require.
(7) An application referred to in paragraph (6) shall reach the Department no later than 30th April following the end of the quota year in which the holding, or part of the holding, in question, was -
(8) If the Department awards to a producer a temporary reallocation of an amount of any surplus quota in accordance with this regulation, the Department shall notify each purchaser to whom the producer makes deliveries of that reallocation.
(9) The Department may make an award of a temporary reallocation of quota only from the aggregate of the amounts of quota referred to in regulations 27(3)(a) and 30(9)(a) once the aggregate has been determined under those regulations.
(10) An eligible heifer which is a qualifying cow for the purposes of a quota year shall not be a qualifying cow for the purposes of any subsequent quota year.
(11) In this regulation -
(d) "qualifying day", in relation to any qualifying cow, means the day on which it calves and each later day or part of a later day during which the relevant notice, the relevant declaration or the relevant order in question has effect or, as the case may be, remains in force;
(e) "relevant declaration" means a declaration referred to in paragraph (1)(a);
(f) "relevant notice" means a notice referred to in paragraph (1)(a);
(g) "relevant order" means an order referred to in paragraph (1)(b).
(12) In this regulation, "relevant calving day", in relation to a qualifying heifer, means a day which falls -
(13) In this regulation, "replacement number" means the nearest whole number to 20 per cent of the total number of dairy cows on land -
and where 20 per cent of the total number is half way between two whole numbers, the nearest even whole number is deemed to be the nearest one.
Special allocation of quota
20.
- (1) This regulation shall apply if by reason of a mistake made by the Department -
(2) The Department may allocate to that person from the national reserve such quota as will compensate, in whole or in part, for that mistake.
Conversion of quota: general
21.
- (1) For the purposes of -
a producer may apply to convert direct sales quota to wholesale quota or wholesale quota to direct sales quota either temporarily or permanently.
(2) If a producer wishes to convert quota in any quota year, he shall submit to the Department an application in such form as the Department may reasonably require -
(b) including such other information as the Department may reasonably require in order to assess whether the requirements of Article 6(2) and (5) of the Council Regulation and Article 7 of the Commission Regulation (which concerns representative fat content) are met.
(3) The application shall reach the Department -
Conversion of quota: restriction on transfers of converted quota in conversion year
22.
- (1) This regulation shall not apply to permanently converted quota which is transferred with a holding pursuant to Article 17 of the Council Regulation.
(2) Subject to paragraphs (3) and (6), where a producer has permanently converted quota in any quota year, he shall not transfer later in that quota year quota of the type to which he has converted, whether temporarily or otherwise.
(3) Where a producer who has permanently converted quota in any quota year applies to the Department for a release from the restriction in paragraph (2), the Department, being satisfied as to the matters set out in paragraph (5), may release that producer from that restriction.
(4) A release from the restriction in paragraph (2) shall be to the extent necessary to allow the transfer of the amount of quota that the Department considers has remained unused in the particular case.
(5) The matters referred to in paragraph (3) are -
(6) The restriction in paragraph (2) shall not apply if -
(7) The following are examples of circumstances which shall be taken to be exceptional for the purposes of paragraph (5) -
Adjustment of purchaser quota
23.
- (1) Where a quota holder's wholesale quota is increased or reduced in accordance with the Community legislation or these Regulations, the purchaser quota of any purchaser to whom that wholesale quota is applicable shall be correspondingly increased or reduced.
(2) As regards a transaction to which Article 11(2) of the Council Regulation applies (which concerns replacements of purchasers and changes of purchasers by producers), a purchaser whose purchaser quota has been increased by virtue of such a transaction shall submit to the Department an application for his purchaser quota to be increased by the specified amount.
(3) An application referred to in paragraph (2) shall include -
(4) The application referred to in paragraph (2) -
(5) The specified amount shall not include the remaining registered wholesale quota except so far as the increase registered in pursuance of paragraph (8) includes that quota.
(6) The remaining registered wholesale quota shall remain available to the original purchaser.
(7) If insufficient quota is registered with the original purchaser to cover deliveries made by the producer before the date of change of purchaser, any additional quota obtained by a producer shall be allocated to the original purchaser until all deliveries to the original purchaser made by the producer before that date are covered after any adjustment for butterfat content in accordance with Article 10(1) of the Commission Regulation.
(8) At the beginning of the quota year immediately following the quota year in which the increase referred to in paragraph (2) took place, the purchaser quota of the purchaser with whom the producer is newly registered shall be increased by such part of the remaining registered wholesale quota of the producer as is included in the specified amount.
(9) If the amount of quota necessary to cover the deliveries made to an original purchaser is affected by -
then, subject to paragraph (10), the Department shall make such adjustments in the purchaser quota of the original purchaser, and of the purchaser with whom the producer is newly registered, as shall be required to ensure that sufficient quota is registered with the original purchaser to cover deliveries made.
(10) The Department shall make an adjustment pursuant to paragraph (9) after the end of the quota year in question.
(11) Where a producer has quota registered with two or more purchasers, the producer may apply to the Department temporarily to change the quota registered between them, except so far as the quota registered with each of them is necessary to cover the deliveries made by him before the date of the transfer after any adjustment for butterfat content in accordance with Article 10(1) of the Commission Regulation.
(12) A producer who makes an application to the Department pursuant to paragraph (11) shall submit with his application -
(13) The statement and declaration referred to in paragraph (12) -
(14) In this regulation -
Restriction on use of quota in Scottish Islands area
24.
- (1) Quota registered under regulation 4 to quota holders within a Scottish Islands area may be used by producers and purchasers only against direct sales or deliveries of milk produced within that Scottish Islands area.
(2) If a quota holder has a part of his dairy enterprise outside a Scottish Islands area, he shall be treated for the purposes of this regulation as a quota holder within a Scottish Islands area if he has 50 per cent or more of his dairy enterprise within that area.
(3) Paragraph (1) shall not apply to the reallocation of quota undertaken in accordance with regulations 27 and 30.
(2) The determination under paragraph (1) shall be made by reference to the summaries purchasers are required to submit to the Department for the purposes of Article 8(2) of the Commission Regulation.
(3) If for any quota year a purchaser has not submitted the summaries so required or is unable to provide such proof of the volume of milk delivered to him in that year as the Department may reasonably require for the purposes of these Regulations, the Department shall for the purposes of paragraph (1) -
(4) If the volume referred to in paragraph (1)(a) exceeds that referred to in paragraph (1)(b), the Department shall calculate the proportionate reduction required to be made in all downward butterfat adjustments that have previously been made in order to increase the volume referred to in paragraph (1)(b) so that it equals the volume referred to in paragraph (1)(a).
(5) If paragraph (4) applies, the Department shall -
(6) If the volume referred to in paragraph (1)(b) equals or exceeds that referred to in paragraph (1)(a), the Department shall notify all purchasers that no such reduction need be made.
(7) In this regulation, "downward butterfat adjustment", in relation to deliveries to a purchaser, means an adjustment of the volume of the deliveries for butterfat content that results in that volume being reduced for the purposes of the levy calculation in accordance with Article 10(2) of the Council Regulation.
Determination whether levy on deliveries is payable
26.
- (1) Where the total amount of the wholesale quota of producers, including converted quota, together with the total amount of wholesale quota in the national reserve exceeds whichever is the higher of -
the Department shall determine that no levy is payable on deliveries.
(2) The Department shall notify all purchasers of a determination made under paragraph (1).
(3) Where the total amount of the wholesale quota of producers, including converted quota, together with the total amount of wholesale quota in the national reserve is less than whichever is the higher of -
the Department shall notify all purchasers that levy is payable on the higher volume of deliveries.
Reallocation of producers' quota
27.
- (1) This regulation shall apply for the purposes of Article 10(3) of the Council Regulation (which concerns the calculation of levy on deliveries).
(2) After the end of each quota year, the Department shall determine for each producer the amount, if any, of unused quota available to that producer, taking into account any adjustment required under regulation 25(4) and the amount of any converted quota.
(3) If the Department determines pursuant to paragraph (2) that a producer has unused quota, it shall -
(4) The amount of an award made under paragraph (3)(b) shall be reduced proportionately if there is insufficient quota after the Department has complied with paragraph (3)(a) to make a full award to all producers who are eligible to receive a temporary allocation of quota under regulation 19.
(5) Subject to paragraph (6), if the total amount of unused quota available for reallocation to a producer under paragraph (3)(c) is not required by that producer to cover his butterfat-adjusted deliveries, the Department shall reallocate the amount of unused quota not required amongst all producers whose butterfat-adjusted deliveries are in excess of their quota in proportion to their respective quotas.
(6) A producer shall not receive any unused quota under paragraph (5) in excess of the amount of quota required by him to cover the amount by which his butterfat-adjusted deliveries exceed his quota.
(7) In this regulation, "butterfat-adjusted deliveries" means deliveries adjusted for butterfat content in accordance with Article 10(1) of the Commission Regulation.
Determination of liability for levy on deliveries
28.
- (1) This regulation shall apply for the purposes of Article 10(3) of the Council Regulation (which concerns the calculation of levy on deliveries).
(2) After the end of each quota year, the Department shall -
Notification of levy liability
29.
After the end of each quota year, the Department shall -
Determination of liability for levy on direct sales
30.
- (1) This regulation shall apply for the purposes of Article 12 of the Council Regulation (which concerns the calculation of levy on direct sales).
(2) After the end of each quota year, the Department shall make a determination of the total quantity of dairy produce sold or transferred free of charge by direct sellers in the quota year in question.
(3) A determination under paragraph (2) shall be made by reference to the declarations direct sellers are required to submit to the Department in accordance with Article 11(2) of the Commission Regulation.
(4) If for any quota year a direct seller has not submitted to the Department a declaration in accordance with that Article or is unable to provide such proof of the quantities of dairy produce sold or transferred free of charge by him in that year as the Department may reasonably require for the purposes of these Regulations, the Department shall for the purposes of paragraph (2) -
(5) Where, in respect of a quota year -
together exceed the total quantity determined by the Department under paragraph (2), the Department shall determine that no levy in respect of direct sales is payable.
(6) The Department shall notify all direct sales quota holders of its determination made under paragraph (5).
(7) Where, in respect of a quota year -
together are less than the total quantity determined by the Department under paragraph (2), the Department shall notify all direct sellers that levy is payable.
(8) After the end of each quota year, the Department shall determine in respect of each direct sales quota holder the amount of any unused direct sales quota available to that direct sales quota holder in the quota year in question, taking into account any converted quota.
(9) If the Department determines under paragraph (8) that a direct sales quota holder has unused direct sales quota, it shall -
(10) If, after the Department has complied with paragraph (9)(a), there is insufficient direct sales quota to make a full award under regulation 19 to each direct sales quota holder who is eligible to receive such an award, the amount of each award under paragraph (9)(b) shall be reduced proportionately.
(11) In respect of the quota year in question, the Department shall then establish -
(b) the total amount of levy payable by direct sales quota holders by multiplying the amount determined under sub-paragraph (a) by the rate of levy set in Article 2 of the Council Regulation; and
(c) the amount by which the total quantity referred to in paragraph (2) exceeds all the direct sales quota of the direct sales quota holders whose direct sales are greater than their quota.
(12) The Department shall establish the rate of levy per litre to be paid by each direct sales quota holder by dividing the amount determined in accordance with paragraph (11)(b) by the amount determined in accordance with paragraph (11)(c).
(13) The Department shall -
(14) If a direct seller fails to submit to the Department in accordance with Article 11(2) of the Commission Regulation a declaration of the total quantity of dairy produce sold or transferred free of charge by him in a quota year, the rate of levy per litre to be paid by that direct seller on the quantity not notified or determined under paragraph (4) shall be the rate set in Article 2 of the Commission Regulation.
Payment and recovery of levy
31.
- (1) In respect of the collection of levy, the Department is the competent authority for the purposes of the Community legislation.
(2) For the purposes of -
the levy and penalties referred to in those provisions shall be paid to the Department.
(3) Paragraph (4) shall apply for the purposes of Article 11(3) of the Council Regulation (which concerns deduction of levy liability) where a producer making deliveries to a purchaser exceeds his wholesale quota.
(4) Following any adjustment of the quantity delivered in accordance with Article 10(1) of the Commission Regulation, the purchaser may immediately deduct from the sums owed to the producer in respect of the deliveries an amount corresponding to the amount of levy that would otherwise be payable by him in respect of the excess.
(5) Where any part of the levy remains unpaid after 1st September in any year, the Department may recover the amount of the levy outstanding at that date together with interest in respect of each day after that date until that amount is recovered -
(6) Interest under paragraph (5) shall be payable at the rate of one percentage point above the sterling three month London interbank offered rate.
(7) If -
subject to paragraph (8), the Department may require any levy payable by the purchaser that has not been paid by him to be paid in such proportions as it may reasonably require by any producers whose deliveries to that purchaser have given rise to the liability for levy.
(8) Paragraph (7) shall not apply in respect of a producer who has paid the purchaser in question, either directly or by deduction, the levy payable by that producer.
Prevention of avoidance of levy
32.
- (1) Subject to paragraphs (2) and (3), if -
B shall be deemed for the purposes of these Regulations to have made those sales or deliveries as agent for A.
(2) Paragraph (1) shall not apply if -
(3) Paragraph (1) shall not apply if -
as the Department may reasonably require.
(4) The information referred to in paragraph (2) shall be submitted so as to reach the Department before the expiry of the period of three working days beginning with the end of the period to which the information relates or within seven working days beginning with the date of notification of the requirement, whichever is the later.
(5) Each purchaser shall provide the Department with a list of those quota holders registered with that purchaser at 31st March in each quota year (whether they have been so registered for the whole or part of that quota year) who -
and ensure that the list reaches it no later than 14th May following the end of that quota year.
(6) The Department shall provide each purchaser with a copy of such information as the purchaser may reasonably require for the purposes of -
Keeping and retention of records
34.
- (1) For the purposes of Article 17 of the Commission Regulation (which requires Member States to take all necessary measures to ensure that the levy is correctly charged), a relevant person shall comply with the requirements of paragraph (2) in addition to meeting any relevant requirement of paragraphs 2 to 6 of Article 24 of the Commission Regulation (which concerns record keeping obligations of purchasers and producers).
(2) The requirements referred to in paragraph (1) are -
as are specified in Schedule 2.
(3) Paragraph (1) shall be without prejudice to regulation 3 of the Common Agricultural Policy (Protection of Community Arrangements) Regulations 1992[12].
Annual declarations and summaries
35.
- (1) If -
the Department may recover a reasonable charge from that producer or that purchaser, as the case may be, in respect of any visit to any premises which it reasonably considers an authorised officer should make in order to obtain the declaration or summary in question.
(2) If the Department sends to a purchaser a revised version of a summary submitted by him in accordance with Article 8(2) of the Commission Regulation, the purchaser shall submit either -
so that such confirmation or amendments, as the case may be, reaches the Department before the expiry of the period of ten working days beginning with the date on which the revised version was sent to the purchaser.
(3) In this regulation, "authorised officer" means a person (whether or not an officer of the Department) who is authorised by the Department, either generally or specifically, to act in matters arising under these Regulations and the Community legislation.
he shall be liable to pay to the Department a penalty equivalent to the theoretical amount of levy that would be due on 0.01 per cent of the quantity by volume of milk covered by that application, statement, declaration or revised version, or that information, for each day of the period of delay in the submission reaching the Department.
(3) Where a purchaser fails to maintain accurate and updated records pursuant to Article 24(2) of the Commission Regulation and regulation 34, he shall be liable to pay to the Department a penalty equivalent to the theoretical amount of the levy that would be due on 0.5 per cent of the quantity by volume of milk concerned.
(4) For the purposes of the third sub-paragraph of Article 11(3) of the Commission Regulation (which requires Member States to impose proportionate penalties where producers submit incorrect declarations), and subject to the provisions of Article 11(5) of that Regulation (which authorises Member States not to impose penalties in certain circumstances) and to paragraph (5), where a direct seller submits an annual declaration which overstates or understates the volume of direct sales for the quota year covered by that declaration, he shall be liable to pay to the Department -
except in any case where, for the quota year covered by the declaration, he is liable to pay to the Department levy which exceeds that amount.
(5) Notwithstanding anything in paragraphs (2) to (4), the penalties referred to in those paragraphs -
(6) Subject to paragraph (7), if a purchaser fails to submit a summary required to be submitted under Article 8(2) of the Commission Regulation before 1st July in the year in which it is required to be submitted, he shall be liable to pay to the Department a penalty equivalent to the theoretical amount of levy that would be due on 0.01 per cent of the quantity by volume of milk covered by that declaration for each day of the period of the delay in the submission reaching the Department.
(7) A purchaser shall not be liable to pay a penalty under paragraph (6) if, in the opinion of the Department, the failure -
Withholding or recovery of compensation
37.
- (1) Where -
the Department may withhold, or recover on demand from that producer, the whole or any part of the compensation payable or paid to him.
(2) In this regulation, "Community compensation scheme" means the scheme instituted by Council Regulation (EC) No. 2330/98 providing for an offer of compensation to certain producers of milk and milk products temporarily restricted in carrying out their trade[13] and Commission Regulation (EC) No. 2647/98 laying down detailed rules for the application of Council Regulation (EC) No. 2330/98[14].
Confiscation of quota
38.
- (1) In pursuance of Article 15 of the Council Regulation (which relates to the confiscation and restoration of quota in cases of inactivity), the Department shall notify a quota holder that his quota has been taken into the national reserve if it appears from information available to the Department that he has made no deliveries or direct sales during the previous quota year.
(2) In pursuance of Article 11(4) of the Commission Regulation (which relates to the confiscation of quota in cases of failure to submit declarations of direct sales before 1st July), the Department shall notify any direct sales quota holder who contravenes Article 11 of that Regulation, by failing to submit an annual declaration to the Department so that the annual declaration reaches it before 1st July, that his quota will be taken into the national reserve 30 days after notification.
(3) Any quota withdrawn pursuant to Article 15 of the Council Regulation shall be placed in the national reserve with effect from 1st April following the quota year for which information became available to the Department indicating to it that no deliveries or no direct sales, as the case may be, were made.
(4) A wholesale quota holder or direct sales quota holder who receives a notification of confiscation under paragraph (1) or, as the case may be, paragraph (2) shall notify any person with an interest in the land comprised in the holding in question of the contents of that notification before the expiry of the period of 28 days beginning with the day on which he received it.
Restoration of quota
39.
- (1) Subject to the second sub-paragraph of Article 15(1) of the Council Regulation (which specifies the time limit for quota restoration), a person whose quota has been taken into the national reserve may request the Department to restore to him the quota in respect of the holding from which it was confiscated or in respect of part of that holding if he is a producer.
(2) Subject to paragraph (3), a request under paragraph (1) -
(b) in a case falling within sub-paragraph (a)(ii), shall include the declaration which the person making the request failed to submit under Article 11 of the Commission Regulation.
(3) Where -
the new occupier may submit a request to the Department to restore to him the quota relating to that holding or part holding before the expiry of the time limit for quota restoration specified by the second sub-paragraph of Article 15(1) of the Council Regulation.
(4) A request for restoration of quota to part of a holding made under paragraph (1) or (3) shall include -
(5) Where quota is restored to part of a holding in accordance with a request made under paragraph (1) or (3), the amount of quota to be restored to that part shall be determined in accordance with the apportionment referred to in paragraph (4)(a) or (b).
Offences and criminal penalties
40.
- (1) A person shall be guilty of an offence if -
(c) disposes of quota which he knows or might reasonably be expected to know is incorrectly registered in his name.
(2) A person guilty of an offence under paragraph (1) shall be liable -
(3) The Department may, following any conviction under paragraph (1)(b) against which there is no subsisting right of appeal or further appeal, by notice served on the person whose quota that conviction relates withdraw from him such quota as may reasonably be regarded by the Department as obtained by him by reason of the falsehood upon which the conviction was founded.
(4) A notice served under paragraph (3) may not be served after the expiry of the period of twelve months beginning with the first day on which the notice may be served.
(5) Where an offence under this regulation which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
(6) Where the affairs of a body corporate are managed by its members, the provisions of paragraphs (1) and (2) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(7) In this regulation "requirement" does not include any restriction or obligation in or under regulations 11(1) and (3), 14(3), 16, 19(6) and (7), 21(2) and (3), 22(2), 23(12) and (13) and 39(2) and (4).
Revocations and amendments
41.
The Dairy Produce Quotas Regulations (Northern Ireland) 2002[15] and the Dairy Produce Quotas (Amendment) Regulations (Northern Ireland) 2004[16] are revoked.
Sealed with the Official Seal of the Department of Agriculture and Rural Development on
8th March 2005.
L.S.
Liam McKibben
A senior officer of the Department of Agriculture and Rural Development
(2) Where sub-paragraph (1)(a) 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.
An application may not 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, 9 or 10 shall be in writing.
Persons with an interest in the holding
12.
- (1) Subject to sub-paragraph (2), in any arbitration to which this Schedule applies, the arbitrator may 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 pursuant to a request in a statement under regulation 39(4)(b) is to be carried out by arbitration, any person with an interest in the holding who has refused to sign such a statement as is referred to in regulation 39(4)(a) shall be a party to the arbitration.
Statement of case
13.
Within 35 days of the appointment of the arbitrator, or within such further period as the arbitrator may determine, the parties to the arbitration shall deliver to him a statement of their respective cases with all necessary particulars and -
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 may correct any clerical mistake or error in the award 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.
(b) details, in terms of each delivery and each month, of the quantities of milk 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 butterfat content of each producer's deliveries per month;
(e) details of the weighted average butterfat content of the cumulative total referred to in sub-paragraph (c);
(f) a list of purchasers and other undertakings which supply 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 supplied 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 supplies and accompanying collection documents identifying each delivery or supply 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 -
including information about the reason why such destruction was necessary and details of where, when and how such destruction occurred;
(k) details of quantities and types of milk and milk products sold directly to the consumer or transferred free of charge from his holding (including milk and milk products sold on his holding);
(l) details of quantities and types of milk and milk products purchased, exchanged or otherwise received by him, and records relating to their disposal; and
(m) details of stocks of milk and milk products held by him on a monthly basis.
(2) Where a direct seller also 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 -
(3) For the purposes of sub-paragraph (1)(e) and paragraph 3(h) "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 for this purpose "lactation" means the period commencing with calving and ending when the cow requires to be milked only once a day.
3.
A wholesale quota holder who makes deliveries to a purchaser shall, in respect of each quota year, keep, and retain for the relevant period, records, comprising -
including information about the reason why such destruction was necessary and details of where, when and how such destruction occurred;
(l) details of quantities of milk transferred free of charge from his holding;
(m) details of quantities of milk purchased, swapped or otherwise received, and records relating to its disposal; and
(n) details of stocks of milk produced on his holding.
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 -
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 -
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 -
Records to be kept by persons buying, selling or supplying milk or milk products obtained directly from a producer or purchaser
7.
Any person who in the course of a business buys, sells or supplies milk or 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 -
8.
In this Schedule, in relation to any records -
The map referred to in the definition of "Scottish Islands area" is held at the offices of the Department for Environment, Food and Rural Affairs, Nobel House, 17 Smith Square, London SW1P 3JR. A copy of the map is available for inspection at the offices of the Department of Agriculture and Rural Development, Dundonald House, Upper Newtownards Road, Belfast, BT4 3SB.
[3] O.J. No. L94, 31.3.2004, p. 22back
[4] O.J. No. L161, 2.7.1993, p. 48, as last amended by Commission Regulation (EC) No. 569/1999 (O.J. No. L70, 17.3.1999, p. 12)back
[5] O.J. No. L270, 21.10.03, p. 123, most recently amended by Council Regulation (EC) No. 2217/2004 (O.J. No. L375, 23.12.2004 p. 1)back
[6] 2001 c. 9 (N.I.): the definition of "electronic communication" given in section 4 amended by section 406(1) of and paragraph 170 of Schedule 17 to the Communications Act 2003 c. 21back
[7] S.I. 2002/458, as amended by S.I. 2005/466back
[10] S.I. 1981/1115 (N.I. 22)back
[11] 1985 c. 48; section 1 was amended by the Food Safety Act 1991 (c. 16), section 51(2) by the Food Standards Act 1999 (c. 28), section 40(1) and Schedule 5, paragraph 6(1) and (3) by S.I. 1999/1756 and by S.I. 2000/2040back
[12] S.I. 1992/314; relevant amending instruments are S.I. 2001/3198 and S.I. 2001/3686back
[13] O.J. No. L291, 30.10.98, p. 4back
[14] O.J. No. L335,10.12.98, p. 33back