The Avian Influenza (H5N1 in Wild Birds) (Scotland) Order 2007

Made: 8th February 2007

Coming into force: 15th February 2007

The Scottish Ministers, in exercise of the powers conferred by sections 1, 7, 8(1), 11, 15(5), 17(1), 23, 25, 28, 35(1) and 35(3), and 83(2) of the Animal Health Act 1981 , and of all other powers enabling them in that behalf, make the following Order:

Citation, commencement and extent

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• (1) This Order may be cited as the Avian Influenza (H5N1 in Wild Birds) (Scotland) Order 2007, and comes into force on 15th February 2007.

• (2) This Order extends to Scotland only.

Interpretation

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In this Order–

• “the Act” means the Animal Health Act 1981;

• “avian influenza” means an infection of birds caused by an influenza A virus of the subtypes H5 or H7 or with an intravenous pathogenicity index in six week old chickens greater than 1.2;

• “Avian Influenza Order” means the Avian Influenza and Influenza of Avian Origin in Mammals (Scotland) Order 2006 ;

• “bird by product” means entire bodies or parts of birds or products of avian origin not intended for human consumption included in Article8, 9 or 10 of Regulation (EC) No1069/2009;

• “controlled meat” means any fresh meat, minced meat, meat preparation, mechanically separated meat or meat product which has not undergone a heat treatment at a minimum temperature of 70°C (which must be reached throughout the meat) derived from poultry or wild game bird originating from within the wild bird control area;

• “day old chicks” means poultry less than 72 hours old which have not yet fed and muscovy ducks (Cairina moschata) and their crosses less than 72 hours old, whether or not fed;

• “designated” means designated in accordance with article 13, except where the context otherwise requires, and “undesignated” is to be construed accordingly;

• “fresh meat” means meat that has not undergone any preserving process other than chilling, freezing or quick freezing, including meat that is vacuum wrapped or wrapped in a controlled atmosphere;

• “H5N1” means a highly pathogenic avian influenza virus of the H5 subtype and neuraminidase N1 of significant risk to animal and human health,

• “hatching egg” means an egg for incubation laid by any poultry;

• “highly pathogenic avian influenza” means—a virus with genome sequences codifying for multiple basic amino acids at the cleavage site of the haemagglutinin molecule similar to that observed for other highly pathogenic avian influenza viruses, indicating that the haemagglutinin molecule can be cleaved by a host ubiquitous protease, oravian influenza viruses with an intravenous pathogenicity index in six-week old chickens greater than 1.2,

• “keeper” means any person responsible for birds or animals, whether on a permanent or temporary basis, but does not include a person responsible for them solely because they are transporting them;

• “meat preparation” means fresh meat, including meat that has been reduced to fragments, which has had foodstuffs, seasonings or additives added to it or which has undergone processes insufficient to modify the internal muscle fibre structure of the meat and thus to eliminate the characteristics of fresh meat;

• “meat product” means a processed product resulting from the processing of meat or from the further processing of such processed products, so that the cut surface shows that the product no longer has the characteristics of fresh meat;

• “mechanically separated meat” means the product obtained by removing meat from flesh-bearing bones after boning, using mechanical means resulting in the loss or modification of the muscle fibre structure;

• “minced meat” means boned fresh meat that has been minced into fragments and contains less than 1% salt;

• “occupier” means, in relation to any premises, the person in charge of those premises;

• “other captive bird” means a bird kept in captivity excluding–poultry;pet birds;sentinel birds placed by the Scottish Ministers for the purpose of surveillance and research activities; andbirds kept in any of the following establishments–zoos, within the meaning of the Avian Influenza (Preventive Measures in Zoos) (Scotland) Regulations 2005 ;circuses;amusement parks; andlaboratories;

• “outbreak point” has the meaning given by article 6(1);

• “pet bird” means a bird, other than poultry, reared or kept in captivity as a pet;

• “poultry” means a bird reared or kept in captivity for the production of meat or eggs for consumption, or for the production of other products, for restocking supplies of game or for the purposes of any breeding programme for the production of such categories of bird;

• “premises” includes any land, building or other place;

• “processed fresh meat” means any minced meat, meat preparation or mechanically separated meat;

• “Regulation (EC) No. 853/2004” means Regulation (EC) No. 853/2004 of the European Parliament and of the Council laying down specific hygiene rules for food of animal origin , as last amended by Commission Regulation (EU) 2017/1981;

• “Regulation (EC) No1069/2009” means Regulation (EC) No1069/2009 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) No1774/2002 (Animal by-products Regulation), as last amended by Regulation (EU) 2017/625;

• “Regulation (EU) No 142/2011” 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 . . . as amended from time to time;

• “slaughterhouse” means premises used for slaughtering poultry, the meat of which is intended for human consumption;

• “SPF egg” means a hatching egg for use for diagnostic procedures in laboratories for the production and testing of vaccines and for research or pharmaceutical purposes;

• “vehicle” includes–a trailer, semi-trailer or other thing which is designed or adapted to be towed by another vehicle;a detachable part of a vehicle; anda container or other structure designed or adapted to be carried by or on a vehicle;

• “wild bird” means a bird that is not poultry or any other captive bird;

• “wild bird control area” means a wild bird control area declared under article 5(2) or(3);

• “wild bird monitoring area” means a wild bird monitoring area declared under article 5(2) or (3); and

• “wild game bird” means a bird which lives freely in the wild and is hunted for human consumption.

PART 1 — Introduction

Declarations and notices

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• (1) A declaration of a wild bird control area or a wild bird monitoring area under this Order–

• (a) must be in writing;

• (b) may be amended or revoked by further declaration at any time;

• (c) must designate the extent of the area being declared; and

• (d) must list or refer to the measures which apply in the area, and if they apply only in part of the area, specify to which part they apply.

• (2) Notices issued under this Order–

• (a) may be amended or revoked, by further notice, at any time; and

• (b) must, if they apply to only part of premises, specify to which part they apply.

• (3) The Scottish Ministers must ensure that the extent of any wild bird control area or wild bird monitoring area declared under this Order, the nature of the restrictions and requirements applicable within it, and the dates of its declaration and revocation are publicised.

Licences

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• (1) No person shall grant a licence under this Order for the movement of any poultry, other captive bird, hatching egg, controlled meat or bird by product, unless that person has taken account of the relevant risk assessment.

• (2) In paragraph (1), “the relevant risk assessment” means the Scottish Ministers' assessment of the risk that the particular movement or a movement of that type would spread avian influenza.

• (3) Licences granted under this Order–

• (a) must be in writing;

• (b) may be general or specific;

• (c) may be made subject to such conditions as the person granting the licence considers necessary to control the spread of avian influenza; and

• (d) may be amended, suspended or revoked, in writing, at any time.

• (4) Licences granted in England or Wales for activities that could be licensed in Scotland under this Order have effect in Scotland as if they were movement licences granted under this Order, but an inspector acting under the direction of the Scottish Ministers may serve a notice on any person moving any thing under the authority of such a licence, directing them to move it to and keep it on premises specified in the notice or move it out of Scotland.

• (5) A person moving anything under the authority of a specific licence granted under this Order must–

• (a) keep the licence or a copy of it with them at all times during the licensed movement;

• (b) on demand by an inspector, veterinary inspector or other officer of the Scottish Ministers, produce the licence or copy and allow a copy or extract of it to be taken; and

• (c) on such demand, provide their name and address.

• (6) A person moving anything under the authority of a general licence granted under this Order must–

• (a) keep with them at all times during the licensed movement a copy of that general licence and a consignment note that contains details of–

• (i) what is moved (including its quantity);

• (ii) the date of the movement;

• (iii) the name of the consignor;

• (iv) the address of the premises from which the movement started;

• (v) the name of the consignee; and

• (vi) the address of the premises of destination;

• (b) on demand by a local authority inspector, a veterinary inspector or other officer of the Scottish Ministers, produce the consignment note and allow a copy or extract to be taken; and

• (c) on such demand, provide their name and address.

• (7) Unless the Scottish Ministers direct otherwise in a declaration of a wild bird control area or a wild bird monitoring area or by notice to the occupier of any premises or to the owner or occupier of any vehicle, any movement that has already started when such a declaration comes into force may be completed.

PART 2 — Confirmation or suspicion of H5N1

Confirmation or suspicion of H5N1 in wild birds

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• (1) This article applies if the Chief Veterinary Officer (Scotland) advises the Scottish Ministers that—

• (a) a highly pathogenic avian influenza virus of the H5 subtype and neuraminidase N1 is present in a wild bird or the carcase of a wild bird in Great Britain, and

• (b) the Chief Veterinary Officer (Scotland) suspects, or is of the opinion, that the virus is a significant risk to animal and human health.

• (2) If the wild bird or carcase was found in Scotland, the Scottish Ministers must declare–

• (a) a wild bird control area; and

• (b) a wild bird monitoring area.

• (3) If the wild bird or carcase was found in England or Wales–

• (a) subject to sub paragraphs (b) and (c), the Scottish Ministers may declare a wild bird control area or a wild bird monitoring area;

• (b) the Scottish Ministers must declare a wild bird control area if the wild bird or carcase was found within three kilometres of the border with Scotland;

• (c) the Scottish Ministers must declare a wild bird monitoring area if the wild bird or carcase was found within ten kilometres of the border with Scotland.

• (4) Paragraphs (2), (3)(b) and (3)(c) do not apply if the Scottish Ministers are satisfied, pursuant to a risk assessment, that–

• (a) H5N1 is not present in poultry, other captive birds or wild birds in the area which would otherwise be declared as the wild bird monitoring area; and

• (b) the infected wild bird or carcase did not present a risk of spreading that virus to such birds in that area.

• (5) The risk assessment under paragraph (4) must take into account any geographical and ecological considerations.

• (6) An area remains a wild bird control area until–

• (a) the Scottish Ministers amend the declaration made under paragraph (2)(a), (3)(a) or (3)(b) so that the area within its boundaries becomes part of the wild bird monitoring area; or

• (b) the Scottish Ministers revoke the declaration.

• (7) An area remains a wild bird monitoring area until the Scottish Ministers revoke the declaration made under paragraph (2)(b), (3)(a) or (3)(c).

• (8) Subject to paragraph (9), premises which are only partly in a wild bird control area or a wild bird monitoring area are deemed to be wholly within that area.

• (9) Premises which are partly in a wild bird control area and partly in a wild bird monitoring area are deemed to be wholly in the wild bird control area.

Extent of wild bird control and monitoring areas

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• (1) A wild bird control area must–

• (a) be centred on the place where the wild bird or carcase referred to in article 5(1) was found (“the outbreak point”); and

• (b) have a boundary which is at least three kilometres from the outbreak point.

• (2) A wild bird monitoring area must–

• (a) be centred on the outbreak point; and

• (b) have a boundary which is at least ten kilometres from the outbreak point.

• (3) The Scottish Ministers must take into account the following factors in deciding the extent of any wild bird control area or wild bird monitoring area–

• (a) the geographical features of the proposed areas;

• (b) any administrative boundaries;

• (c) any limnological factors;

• (d) any ecological factors;

• (e) any epizootic factors;

• (f) monitoring facilities; and

• (g) any other factor they consider relevant.

• (4) Paragraphs (5) and (6) apply if the Scottish Ministers are satisfied, having carried out a risk assessment, that due to natural barriers or the absence of suitable habitats for wild birds, there is sufficient protection of poultry and other captive birds in the area that would otherwise be declared to be the wild bird control area.

• (5) The wild bird control area may have a boundary which is at least one kilometre from the outbreak point.

• (6) Where the outbreak point is less than one kilometre away from a river, a lake or the coast, the wild bird control area may be an area of land–

• (i) having a width of one kilometre from the river bank, lake shore or coast; and

• (ii) at least three kilometres in length.

• (7) The risk assessment under paragraph (4) must take account of the factors listed at paragraph (3).

• (8) If the Scottish Ministers declare a wild bird control area of the dimensions provided for under paragraph (5) or (6), the wild bird monitoring area must be of such size and shape as the Scottish Ministers consider necessary to prevent the spread of avian influenza.

• (9) A wild bird control area or a wild bird monitoring area declared under article 5(3) must be of such size and shape as the Scottish Ministers consider necessary to prevent the spread of avian influenza.

• (10) If an area declared in accordance with this article would otherwise include land in England, the Scottish Ministers must declare an area only of such part of that land as is in Scotland.

Wild bird or carcase found within a protection zone or surveillance zone

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If the wild bird or carcase referred to in article 5(1) is found within a protection zone or surveillance zone declared under article 26 (declaration of protection, surveillance and restricted zones) of the Avian Influenza Order, the Scottish Ministers must, when declaring a wild bird control area and a wild bird monitoring area, consider, on the basis of a risk assessment, whether the control and monitoring areas should include part or all of the protection or surveillance zone.

Measures applicable in a wild bird control area or wild bird monitoring area

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• (1) The measures in Schedule 1 apply in respect of a wild bird control area, including movements from that area.

• (2) The measures in Schedule 2 apply in respect of a wild bird monitoring area, including movements from that area.

• (3) The biosecurity measures in Schedule 3 apply in respect of a wild bird control area and a wild bird monitoring area.

• (4) Where the conditions in paragraph (5) are fulfilled, the Scottish Ministers may–

• (a) amend the declaration of the wild bird control area to disapply any of the measures listed at paragraphs 1 to 16 of Schedule 1; and

• (b) amend the declaration of the wild bird monitoring area to disapply any of the measures listed in Schedule 2.

• (5) The conditions are–

• (a) a risk assessment indicates that the disapplication of the measure in that wild bird control area or wild bird monitoring area would not endanger disease control;

• (b) there has been no outbreak of H5N1 in poultry or other captive birds in either of those areas;

• (c) the wild bird control area or the wild bird monitoring area (as the case may be) has been established for at least 21 days; and

• (d) the Scottish Ministers do not suspect that there is avian influenza in poultry or other captive birds within either of those areas.