Dairy Industry (Compliance Officers) Regulations, 2021 - Legal Notice no. 18/2021

122 Kenya Subsidiary Legislation, 2021 PART II—APPOINTMENT, CONDUCT AND DUTIES OF COMPLIANCE OFFICERS 5—Appointment of compliance officers. 6—Qualifications of compliance officers. 7—Revocation of appointment. 8—Identification of compliance officer. 9—Powers of a compliance officer. 10—Inspection of facilities, etc. 11—Collection of books, records, documents, etc. 12—Collection of samples and information. 13—Seizure and destruction. 14—Protection of information. 15—Offence. 16—Complaints against compliance officers. 17—Revocation of LN No.215/1964 Sub Leg. SCHEDULE Kenya Subsidiary Legislation, 2021 123 THE DAIRY INDUSTRY ACT (Cap. 336) THE DAIRY INDUSTRY (COMPLIANCE OFFICER) REGULATIONS, 2021 IN EXERCISE of the powers conferred by section 19 of the Dairy Industry Act, the Cabinet Secretary for Agriculture, Livestock, Fisheries and Cooperatives, on the advice of the Kenya Dairy Board makes the following Regulations — PART I — PRELIMINARY 1. These Regulations may be cited as the Dairy Industry Citation (Compliance Officer) Regulations, 2021. 2. In these Regulations, unless the context otherwise requires — Interpretation "Act" means the Dairy Industry Act; Cap 336 "Board" means the Kenya Dairy Board; "Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to dairy industry; "Compliance Officer" means an officer appointed by the Board under the Dairy Industry (Compliance Officers) Regulations, 2021; "County Executive Committee member" means the relevant County executive Committee member for the time being responsible for matters of dairy industry. 3. These Regulations shall apply to all compliance officer and all Application aspects of inspection in the dairy industry. 4. The objects of these Regulation are — Objects of the Regulations (a) to provide mechanisms for inspection of primary producers and dairy business operators; (b) to provide for procedures and conduct of a compliance officer. PART II—APPOINTMENT, CONDUCT AND DUTIES OF COMPLIANCE OFFICERS 5. (1) The Board shall appoint such compliance officer as may be Appointment of compliance officers necessary for purposes of monitoring of primary dairy products and dairy business operators. The appointment of the compliance officers shall be by notice in the Gazette. (2) Where a need arises, and no conflict of interest exists, the Board may request the County Executive Committee member to nominate qualified staff of the County government for gazettement by the Board as a compliance officer. (3) The Board shall, upon receiving the nominees from the County Government vet the nominee for suitability and shall, if found suitable, gazette the officer.

124 Kenya Subsidiary Legislation, 2021 (4) The compliance officer nominated by a County shall report on day today matters to the relevant officer of the County Executive Committee member, and where the report involves dairy produce safety matters, the compliance officer shall report to the Board and to the County Executive Committee member (5) In dealing with dairy produce safety matters compliance officer nominated by the county shall act under the supervision of an assigned Boards supervisor. (6) The Board shall keep and maintain a register of all gazetted compliance officers. 6. Subject to these Regulations, a person shall be qualified for Qualifications of compliance officers appointment as a compliance officer if the person— (a) holds a diploma or other higher qualification in dairy, animal or food science, public health, veterinary science or any other related fields; (b) has a minimum of two years' experience in the dairy industry or any other related field as the Board may approve; (c) is an employee of the Board, the National Government or a County government; (d) meets the requirement of the chapter 6 of the constitution of Kenya. 7. The appointment of a compliance officer may be revoked — Revocation of appointment (a) if the compliance officer fails to comply with these Regulations; (b) if a conflict of interests exists, or; (c) for any other sufficient cause. (2)A revocation shall not be effected unless the officer affected has been given an opportunity to respond to accusation made against him or her. (3) A compliance officer whose appointment has been revoked may appeal to the Board within thirty days of being notified of the revocation. 8. (1) The Board shall issue to every compliance officer an Identification of a compliance officer identity document, authenticated by an authorized officer, which the compliance officer shall produce before performing the inspection duties of any goods or premises, or performing any other functions under these Regulations. (2) The Board shall ensure that there is an accessible mechanism for a person to verify the identity or particulars of a compliance officer while undertaking duties in the field or otherwise. (4) A compliance officer shall ensure that the identification document is — Kenya Subsidiary Legislation, 2021 125 (a) at all times secured and avoid its unauthorized use; (b) legible and clear for proper identification and when lost, defaced or destroyed, to be reported and replaced immediately; (c) and shall returned to the Board upon the compliance officer ceasing to be employed as such. 9. (1) A compliance officer may— Powers of a compliance officer (a) at any reasonable time, enter premises whether, plant, facility, structure, place or area in connection with which he or she has reason to believe that an offence under this regulation is being, is about to or has been committed, in order to investigate and obtain evidence; (b) examine or test or cause to be examined or tested, any dairy produce to which the Act or the Regulations apply and which is found in or at such premises, plant, facility, structure, place or area; (c) examine or test or cause to be examined or tested any equipment, material, substance or other article which is used or is suspected to be used or likely to be used at or in connection with the collection, evaluation, processing, packing or storing of any dairy produce; (d) inspect the operations or process in connection with any action referred to in paragraph (c), and demand from the owner or the person in whose custody the dairy produce, equipment, material, substance or things concerned are, or who supervises such operations or processes, any information or explanation regarding the operation, process, material, substance or thing; (e) order correction of non-compliances detected or closure of dairy or any related business in the manner specified in the inspection notice or order set out in Form B of the Schedule; (f) examine and make copies of or take extracts from any book or document either in hard copy or electronically in respect of which he or she reasonably suspects that it relates to such dairy produce, material or any other thing, irrespective of whether or not it is kept on or at the place, premises, facility or conveyance concerned or at any other place or area, and demand from the owner of such book or document or from the person who has it in his or her custody an explanation regarding any record or entry therein; (g) seize and remove from any premises, place, area or vehicle any dairy produce, or the whole or any part of material, substance, equipment or any other thing, or any book or document relating to such dairy produce, premises, place, area or vehicle, material, substance or other article or sale of the dairy produce, material, substance or thing which he has reasonable cause to believe constitutes evidence of

126 Kenya Subsidiary Legislation, 2021 contravention of any of the provisions of the Act or these Regulations. (h) examine any dairy produce, product, material, substance, equipment or any other thing and — (i) if, in the compliance officer's professional determination, there is need for further analysis, take samples thereof in such quantities as is reasonable in the circumstances and give a dairy business operator the reason for his or her determination; and (ii) where a compliance officer determines that there is nothing wrong with the produce, material, substance, equipment or thing, make a record covering the relevant period of inspection accordingly and give a copy of that record to the concerned dairy business operator; or (iii) as soon as the results of the analysis are known, inform a dairy business operator in writing of the results, including, if any, remedial action the dairy business operator is required to take. (i) inspect any process or operation, manufacture, production, processing, mixing, packaging or treatment that may relate to any dairy product which is or appears to be carried out in those premises or places for purposes of determining whether or not the provisions the Act or these Regulations are being contravened; and (j) require from a dairy business operator or any person whom he reasonably believes to be in charge or control of any premises, place, dairy produce, material, substance or thing being inspected, to supply information or produce for inspection or for the purpose of obtaining copies thereof or extracts therefrom, any books, records, receipts, invoices, shipping bills, bills of lading, documents containing mixing instructions, operational procedures or other documents or papers which are reasonably suspected or expected to be in the operator's possession the production of which will render successful inspection. (2) Any seizure or confiscation made under these Regulations shall be recorded in Form A as set out in the First Schedule. 10. (1) A compliance officer may at any reasonable time, inspect Inspection facilities, etc any farm, where dairy activity is being carried on or is about to be carried on in relation thereto, for the purpose of ascertaining compliance with the Act or the Regulations. (2) Where a compliance officer has reason to believe that the dairy product, material, substance, equipment or other thing which is the subject of inspection under these Regulations, or any record or thing connected therewith, is in a dwelling house, the compliance officer shall request the owner, the occupant or the person who appears to be in charge thereof for permission to enter the house to conduct an Kenya Subsidiary Legislation, 2021 127 inspection. (3)Where the occupant neglects or delays to grant permission, the compliance officer may seek the assistance of the nearest police officer to facilitate a forced entry into the business premise and the owner, the occupant or the person who appears to be in charge of the house or premises shall cooperate with the compliance officer until the inspection is concluded. 11. (1) A compliance officer shall take such steps as are Collection of books, records, documents, reasonably practicable to afford a primary producer or dairy business Etc operator of anything or other person who appears to be engaged in dairy production of business, that is the subject of inspection under these Regulations, an opportunity to be present during the inspection and the primary producer or dairy business operator, assignee or agent shall have the right to put any relevant questions to the compliance officer and the compliance officer shall be obligated to answer unless the questions are calculated to, in any way, defeat the inspection. (2) Where, in the process of inspection, the compliance officer takes any copy or extract of book, record, document, material or other thing, the officer shall issue to the person from whom custody any book, record, document, material or any other thing has been taken a confiscation receipt in Form B in the Schedule, and the recipient of the receipt shall sign the duplicate thereof except where the original document are required as evidence of possible prosecution for an offence under the Act or regulations. (3) If the person to whom the receipt is issued under paragraph 2 refuses to sign the duplicate of the receipt, the compliance officer shall record the circumstances of the refusal to sign and this shall be prima facie evidence of obstruction of a compliance officer. (4) Anything taken away from a dairy business operator under this regulation shall, at the conclusion of the purposes for which it is taken, and where practicable, be expeditiously returned in whole or in part to the operator or other person unless the thing taken is part of the evidence for possible prosecution for an offence under the Act or the Regulations. 12. (1) A sample required pursuant to these Regulations shall be Collection of samples and information taken — (a) at no cost; (b) with such care as not to prejudice the results and in the best opinion of the compliance officer that the sample is representative of the whole; and (c) in accordance with the method of sampling prescribed in the relevant standard in the presence of the primary producer, the dairy business operator or their representatives and, in their absence, the compliance officer shall take the sample and record the circumstances under which the sample is taken. (2) A primary producer or dairy business operator or their

128 Kenya Subsidiary Legislation, 2021 representatives shall give the compliance officer all reasonable assistance as the compliance officer may require, including the actual taking of samples, to enable carrying out of duties under these Regulations and shall provide the compliance officer with any relevant information which may be required. (3) In the course of the performance of duties under these regulations, the compliance officer may put any relevant question to a dairy business operator assignee, agent or other person, but no person shall be compelled to give an answer that will incriminate the person. (4) Where a primary producer or dairy business operator or their representatives being interrogated by a compliance officer requests for more time to prepare a written response, the compliance officer may allow the primary producer or dairy business operator or their representatives reasonable time not exceeding five working days, to prepare and provide the written answer. 13. (1) In consultation with the supervisor, a compliance officer Seizure and destruction may at any time seize, any product, material, substance, article, plant and machinery, or any other thing which he has reason to believe or about which he has received credible information to the effect that it has been used or is likely to be used in contravention of any of the provisions of the Act or these Regulations. (2) Where a compliance officer seizes any dairy produce, equipment, materials or additives, the compliance officer shall issue a seizure receipt to the primary producer or dairy business operator with the details of the dairy produce confiscated in Form A of the First Schedule. (3) A compliance officer carrying out seizure shall file a complaint without delay at the nearest police station for possible prosecution, with or without the owner or a representative consent in writing on the destruction or forfeiture of the subject dairy produce, equipment, materials or additives to the Board. (4) Any destruction pursuant to these Regulations shall be carried out in compliance with the relevant law and regulations. (5) Where the owner of seized dairy produce, equipment, materials or additives institutes legal proceedings in relation to the seizure, the process shall be concluded as may be directed by the court, unless in the meantime the legal proceedings are dismissed, in which case the process shall proceed as provided under these Regulations. 14. The information or document obtained under these Protection of information Regulations shall be handled in accordance with any relevant provision of the Data Protection Act, 2019. No. 24 of 2019 15. (1) A compliance officer who — Offences (a) solicits for, or receives in connection with any of his duties, a payment or other reward whatsoever, whether pecuniary or otherwise, or a promise or security for any such payment or reward whether or not he is entitled to claim; Kenya Subsidiary Legislation, 2021 129 (b) enters into any agreement to do, abstain from doing, permit, conceal or connive at any act whereby the Board is or may be defrauded, or which is contrary to any of the provisions of these Regulations or contrary to the power conferred to the compliance officer; (c) discloses, except for the purposes of these regulations or when required to do so as a witness in a court of law or with the approval of the Board, information acquired by him in the performance of his duties relating to a person, premises, place, material, substance or thing being or already inspected, or (d) uses his or her position to enrich himself or herself or any other person, commits an offence and is liable on conviction to fine not exceeding ten thousand shillings or to imprisonment not exceeding twelve months or both such fine and imprisonment. (2) A person who — (a) in any manner or style, wilfully obstructs, impedes or hinders a compliance officer, or a police officer accompanying the compliance officer, from exercising any of his powers or performing duties under these regulations; (b) knowingly makes a false statement in terms of questions put to him or information required from him under these regulations; (c) refuses or neglects to furnish any information or to produce any document, to attend at any place when required, or instigates any person to disobey or make it difficult for the compliance officer to conduct inspection; (d) assaults or threatens a compliance officer or any person lawfully accompanying the compliance officer or discharging duties under these Regulations; (e) refuses or unreasonably delays to obey any instructions given to him by the compliance officer for the attainment of the purposes of these regulations; or (f) abets or facilitates the violation of any of the provisions of this regulation, commits an offence and is liable on conviction to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding twelve months or, both. 16. (1) Where a primary producer or a dairy business operator is Complaints against compliance officers aggrieved by a decision or action of a compliance officer, the primary producer or dairy business operator may immediately, and in any case not later than fourteen days, lodge a written complaint to the Board. (2) Upon receipt of a complaint the Board shall investigate and make a decision and communicate to the complainant within thirty

130 Kenya Subsidiary Legislation, 2021 days. (3) Where the complainant is not satisfied with the decision of the Board, the complainant may appeal to the Cabinet Secretary within thirty days of the decision. 17. The Dairy Industry (Dairy Inspector) Regulations, 1964 are Revocation of LN No.215/1964 hereby revoked. Sub Leg Kenya Subsidiary Legislation, 2021 131 SCHEDULE FORM A (reg. 9(2)13(2) THE DAIRY INDUSTRY (COMPLIANCE OFFICER) REGULATIONS 2021 THE KENYA DAIRY BOARD SEIZURE /CONFISCATION RECEIPT Serial No. A The following dairy produce has been seized by on behalf of the Kenya Dairy Board in accordance with the powers given under the Dairy Industry (Compliance Officer) Regulations 2021. From (Name) Vehicle (if bicycle list frame number) Address Type and quantity of dairy produce seized Containers seized Books or records seized Any other item seized How disposed of Date Signed Witness Note: The person issuing this receipt should ensure that he/she obtains a receipt from any person to whom he/she disposes or whom he leaves in charge of any item mentioned in this receipt.

132 Kenya Subsidiary Legislation, 2021 FORM B (reg. 9(1)(e)11(2) THE DAIRY INDUSTRY (COMPLIANCE OFFICERS) REGULATIONS 2021 INSPECTION NOTICE/ORDER S/No• KENYA DAIRY BOARD COMPLIANCE OFFICER AT THE DIVISION INSPECTION NOTICE/ORDER Branch: Date: INSPECTION PARTICULARS Name of premise: Located at: Licence No: Category: Volume of milk (On site) (litres) Nature of milk: Following an inspection conducted at your premise(s) on (date) at (time) the following non-compliances were established: (a) (b) (c) (d) (e) You are hereby notified that you are to correct the non-compliances identified at your premises [IMMEDIATELY] or [WITHIN FOURTEEN (14) DAYS] of this notice or [CLOSE THE BUSINESS OPERATIONS], failure to which necessary enforcement action will be undertaken in accordance with the Dairy Industry Client Acknowledgem Compliance ent Officer Name Name Designation: Designation: Signature: Signature: Date: pate: DISTRIBUTION Kenya Subsidiary Legislation, 2021 133 DETAILS: I I ORIGINAL: CLIENT DUPLICATE: BRANCH FILE TRIPLICATE: To HEAD COPY COPY OFFICE Dated the 9th February, 2021. PETER MUNYA, Cabinet Secretary for Agriculture, Livestock, Fisheries and Co-operatives. LEGAL NOTICE NO. 19 THE DAIRY INDUSTRY ACT (Cap. 336) THE DAIRY INDUSTRY (PRODUCE TRACEABILITY AND RECALL) REGULATIONS, 2021 ARRANGEMENT OF REGULATIONS Regulation 1—Citation. 2—Interpretation. 3—Application. 4—Objects of the Regulations. 5—Requirements for traceability. 6—Suppliers and customers to be identified. 7—Mandatory information on consignments. 8—Confidentiality and protection of information. 9—Labelling of dairy produce. 10—Recall plan. 11—Requirements for recall. 12—Authority to recall. 13—Offences SCHEDULE