The Fishery Products (Official Controls Charges) (England) Regulations 2007 No. 3392

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STATUTORY INSTRUMENTS

2007 No. 3392
FOOD, ENGLAND
The Fishery Products (Official Controls Charges) (England) Regulations 2007

	Made	29th November 2007
	Laid before Parliament	6th December 2007
	Coming into force	1st January 2008

The Secretary of State makes the following Regulations in exercise of the powers conferred on him by section 2(2) of the European Communities Act 1972[1].

     The Secretary of State has been designated for the purposes of that section in relation to measures relating to food (including drink) including the primary production of food[2].

     As required by Article 9 of Regulation (EC) No. 178/2002 of the European Parliament and of the Council laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety[3] there has been open and transparent public consultation during the preparation and evaluation of the following Regulations.

PART 1
PRELIMINARY
Title, application and commencement
     1. These Regulations may be cited as the Fishery Products (Official Controls Charges) (England) Regulations 2007, apply in relation to England only and come into force on 1^s^t January 2008.

Interpretation
     2. —(1) In these Regulations —

"Directive 2004/41", "Regulation 2406/96", “Regulation 852/2004, "Regulation 853/2004", "Regulation 854/2004", "Regulation 882/2004", "Regulation 1688/2005", "Regulation 2073/2005", "Regulation 2074/2005", "Regulation 2075/2005" and "Regulation 2076/2005" have the meanings respectively given to them in the Schedule;

"establishment" has the meaning given to it in paragraph 1(c) of Article 2 of Regulation 852/2004;

"first placing on the market" has the meaning that it bears in Regulation 882/2004;

"first sale in a fish market" shall be construed in accordance with the phrase "first sale in fish market" in Regulation 882/2004;

"fishery products" has the meaning given to it in point 3.1 of Annex I to Regulation 853/2004;

"food authority" has the meaning that it bears by virtue of section 5(1) of the Food Safety Act 1990[

"imported" means introduced into England other than from another part of the British Islands;

"official controls" shall be construed in accordance with the definition of the term "official control" in paragraph 1 of Article 2 of Regulation 882/2004;

"processing" has the meaning that it bears in Chapter V of Section B of Annex IV to Regulation 882/2004;

"processing establishment" means an establishment at which processing occurs;

"relevant fishery products" means fishery products which —

other than relevant landed fishery products and third country imports;

"relevant food authority" means the food authority in whose area circumstances giving rise to an obligation under these Regulations to pay a charge to that authority arise;

"relevant landed fishery products" means fishery products which —

other than relevant fishery products and third country imports;

"specified pelagic fish" means —

Clupea harengus

Sardinia pilchardus

Scomber scombrus

Scomber japonicus

Trachurus

Engraulis

Maena smaris

Sprattus sprattus

"third country", except in the expression "third country import", means any country or territory, other than Greenland, which does not comprise the whole or part of an EEA State;

"vendor" means —

(2) Where any functions under the Food Safety Act 1990 are assigned —

any reference in these Regulations to a food authority shall be construed, so far as relating to those functions, as a reference to the authority to whom they are so assigned.

Actual costs
     3. For the purposes of these Regulations, the actual costs of exercising official controls are the aggregate of the costs of the items listed in Annex VI to Regulation 882/2004 directly incurred in the exercise of the official controls required under Annex III to Regulation 854/2004.

Sterling equivalents of Euro
     4. —(1) Any reference in these Regulations to a specified number of Euros shall be deemed to be a reference to the Sterling equivalent of that number calculated in accordance with paragraph (2).

    (2) The Sterling equivalent of a specified number of Euros shall be calculated by multiplying that number by the Euro/Sterling conversion rate specified in paragraph (3).

    (3) The Euro/Sterling conversion rate shall be —

(a) for 2008, 1 Euro = £0.67575; and

(b) in each subsequent year, the rate published in the C Series of the Official Journal of the European Union on the first working day of the September of the preceding year or, if no rate is published in it on that day, the first rate published in it thereafter.

Account period
5. —(1) For the purposes of these Regulations, the account period shall be one month or such longer period not exceeding twelve months as is determined by the relevant food authority.

(2) The account period shall be determined with a view to reducing to a reasonable amount, in comparison with the charges which are expected to fall due, the costs of —

(a) making returns; and

(b) collecting charges.

Recovery of charges
6. Where a duty to pay a charge under these Regulations is imposed on either of two persons the authority to which the charge is payable may recover it —

(a) jointly from both of them; or

(b) separately from either of them.

Calculation, payment and repayment of charges
7. —(1) Where the relevant food authority becomes aware that a charge is due to it under these Regulations it shall —

(a) calculate the amount of the charge having regard to the information in its possession; and

(b) give notice of the amount so calculated to any person from whom it may be collected.

(2) If the relevant food authority is satisfied that a calculation made under paragraph (1) is incorrect, it shall recalculate the charge and —

(a) where the correct amount is more than the amount calculated under paragraph (1), it shall recover the higher amount in accordance with that paragraph;

(b) where the correct amount is less than the amount calculated under that paragraph and that amount has not been recovered, it shall recover the lesser amount in accordance with that paragraph; and

(c) where no charge is payable or the charge payable is less than the amount calculated under that paragraph, and that amount has been recovered, it shall repay the difference.

Appeals
     8. —(1) A person may appeal against any decision of the relevant food authority imposing a charge under these Regulations.

    (2) The appeal shall be heard by a magistrates' court and section 37(3), (5) and (6) of the Food Safety Act 1990 shall apply in relation to such an appeal as it applies in relation to an appeal under section 37(1)(c) of that Act.

    (3) On any such appeal, the court may —

(a) confirm the decision of the relevant food authority;

(b) determine any charge which is payable under these Regulations; or

(c) determine that no charge is payable.

    (4) Pending the outcome of the appeal the original amount of the charge shall remain payable, but if after the court's decision the amount of the charge needs to be recalculated, the new amount of the charge shall have effect from the date on which the original charge was made and the sum equal to that new amount shall be payable to the relevant food authority.

    (5) If the court determines that a charge payable under these Regulations is less than the charge that has been so paid, the relevant food authority shall reimburse the overpayment to the successful appellant.

Sums remitted from one food authority to another
     9. In any case where the exercise of official controls is deferred and the food authority responsible for the exercise of the official controls required under Annex III to Regulation 854/2004 ("authority A") is not the relevant food authority to which a charge is required to be paid under these Regulations ("authority B"), authority B shall remit to authority A a sum equal to any amount received by authority B which is referable to official controls exercised by authority A.

PART 2
OFFICIAL CONTROLS CHARGES OTHER THAN CHARGES FOR THIRD COUNTRY IMPORTS
Payment of landings charge in respect of the first placing on the market of relevant fishery products or relevant landed fishery products and the first sale in a fish market of relevant fishery products or relevant landed fishery products
10. —(1) Each of the following is a chargeable transaction for the purposes of this regulation and regulation 11—

    (2) Subject to paragraph (8), where there is a chargeable transaction for the purposes of this regulation and regulation 11, the vendor shall pay the charge determined in accordance with paragraphs (3) to (7) ("the landings charge") to the relevant food authority.

    (3) Subject to paragraph (7), where the chargeable transaction is the first placing on the market of relevant fishery products or relevant landed fishery products, the landings charge shall be a contribution towards the expenditure incurred in exercising the official controls required under Annex III to Regulation 854/2004, calculated at the rate of 1 Euro per tonne for the first 50 tonnes and 0.5 Euro per tonne for each additional tonne of relevant fishery products or relevant landed fishery products first placed on the market in a calendar month.

    (4) Where the chargeable transaction is the first sale in a fish market of relevant fishery products, the landings charge shall be a contribution towards the expenditure incurred in exercising the official controls required under Annex III to Regulation 854/2004, calculated at the rate of 1 Euro per tonne for the first 50 tonnes and 0.5 Euro per tonne for each additional tonne of relevant fishery products first sold in a fish market in a calendar month.

    (5) Subject to paragraphs (6) and (7), where the chargeable transaction is the first sale in a fish market of relevant landed fishery products, the landings charge shall be a contribution towards the expenditure incurred in exercising the official controls required under Annex III to Regulation 854/2004, calculated at the rate of 0.5 Euro per tonne for the first 50 tonnes and 0.25 Euro per tonne for each additional tonne of relevant landed fishery products first sold in a fish market in a calendar month.

    (6) Subject to paragraph (7), where—

the landings charge shall be a contribution towards the expenditure incurred in exercising the official controls required under Annex III to Regulation 854/2004, calculated at the rate of 1 Euro per tonne for the first 50 tonnes and 0.5 Euro per tonne for each additional tonne of relevant landed fishery products first sold in a fish market in a calendar month.

    (7) In respect of any consignment of relevant landed fishery products consisting of specified pelagic fish, the landings charge shall not exceed 50 Euros.

    (8) Where the actual costs of exercising the official controls required under Annex III to Regulation 854/2004 are less than the landings charge, the vendor shall pay an amount equal to those costs to the relevant food authority, instead of the landings charge.

Returns and records relating to relevant fishery products or relevant landed fishery products
     11. —(1) Within 7 days of the end of each account period, the vendor shall make a written return to the relevant food authority to which the landings charge is payable in respect of the aggregate of chargeable transactions that he has entered into during that period.

    (2) The return referred to in paragraph (1) shall include the following information —

(a) the account period to which the return relates;

(b) the place and date of landing of the fishery products to which it relates;

(c) the place and date of the first placing on the market or as the case may be the first sale in a fish market of those products;

(d) for landings of relevant fishery products and for landings of relevant landed fishery products other than specified pelagic fish —

(e) for landings of relevant landed fishery products which are specified pelagic fish —

(f) notification of any amount paid by virtue of paragraph (4) of regulation 10 which has been paid in respect of —

identifying the circumstances that led to the payment of that amount;

(g) in relation to consignments of relevant fishery products –

(h) the amount of the landings charge.

(3) During the period of 1 year beginning on the day on which a vendor makes a return under this regulation —

(a) the relevant food authority to which it was made may require the vendor to supply separate information of the kind required by paragraph (2) in respect of each transaction included in it; and

(b) the vendor shall retain records which are sufficient to enable him to supply any such information.

(4) Any vendor who without reasonable excuse —

(a) fails to comply with paragraph (1) or (3)(b); or

(b) fails to comply with a requirement made under paragraph (3)(a),

(a) the account period to which the return relates;

(b) the weight of the fishery products entering the establishment; and

(c) the amount of the charge payable under regulation 12.

(3) During the period of one year beginning on the day on which a proprietor or operator makes a return under this regulation —

(a) the relevant food authority to which the return was made may require the proprietor or operator to supply separate information of the kind required by paragraph (2) in respect of each batch of fishery products included in it; and

(b) the proprietor or operator shall retain records which are sufficient to enable him to supply any such information.

(4) Any proprietor or operator who without reasonable excuse —

(a) fails to comply with paragraph (1) or (3)(b); or

(b) fails to comply with a requirement made under paragraph (3)(a),

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Revocation
14. The Fishery Products (Official Controls Charges) (England) Regulations 2006[9] are revoked.

Signed by authority of the Secretary of State for Health

Dawn Primarolo
Minister of State, Department of Health

29th November 2007

THE SCHEDULERegulation 2(1)

DEFINITIONS OF COMMUNITY LEGISLATION

"Directive 2004/41" means Directive 2004/41/EC of the European Parliament and of the Council repealing certain Directives concerning food hygiene and health conditions for the production and placing on the market of certain products of animal origin intended for human consumption and amending Council Directives 89/662/EEC and 92/118/EEC and Council Decision 95/408/EC[10];

"Regulation 2406/96" means Council Regulation (EC) No. 2406/96 laying down common marketing standards for certain fishery products[11];

"Regulation 852/2004" means Regulation (EC) No. 852/2004 of the European Parliament and of the Council on the hygiene of foodstuffs[12] as read with Regulation 2073/2005;

"Regulation 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[13] as read with Directive 2004/41, Regulation 1688/2005, Regulation 2074/2005 and Regulation 2076/2005;

"Regulation 854/2004" means Regulation (EC) No. 854/2004 of the European Parliament and of the Council laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption[14] as read with Directive 2004/41, Regulation 2074/2005, Regulation 2075/2005 and Regulation 2076/2005;

"Regulation 882/2004" means Regulation (EC) No. 882/2004 of the European Parliament and of the Council on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules[15] as read with Regulation 2074/2005 and Regulation 2076/2005;

"Regulation 1688/2005" means Commission Regulation (EC) No. 1688/2005 implementing Regulation (EC) No. 853/2004 of the European Parliament and of the Council as regards special guarantees concerning salmonella for consignments to Finland and Sweden of certain meat and eggs[16];

"Regulation 2073/2005" means Commission Regulation (EC) No. 2073/2005 on microbiological criteria for foodstuffs[17];

"Regulation 2074/2005" means Commission Regulation (EC) No. 2074/2005 laying down implementing measures for certain products under Regulation (EC) No. 853/2004 of the European Parliament and of the Council and for the organisation of official controls under Regulation (EC) No. 854/2004 of the European Parliament and of the Council and Regulation (EC) No. 882/2004 of the European Parliament and of the Council, derogating from Regulation (EC) No. 852/2004 of the European Parliament and of the Council and amending Regulations (EC) No. 853/2004 and (EC) No. 854/2004[18];

"Regulation 2075/2005" means Commission Regulation (EC) No. 2075/2005 laying down specific rules on official controls for Trichinella in meat[19]; and

"Regulation 2076/2005" means Commission Regulation (EC) No. 2076/2005 laying down transitional arrangements for the implementation of Regulations (EC) No. 853/2004, (EC) No. 854/2004 and (EC) No. 882/2004 of the European Parliament and of the Council and amending Regulations (EC) No. 853/2004 and (EC) No. 854/2004[20] .

EXPLANATORY NOTE

(This note is not part of the Regulations)

     1. These Regulations apply in relation to England only. They revoke and replace the Fishery Products (Official Controls Charges) (England) Regulations 2006 (S.I. 2006/2904).

     2. These Regulations provide for the execution and enforcement in relation to England of Articles 26 and 27 of Regulation (EC) No. 882/2004 of the European Parliament and of the Council on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules (OJ No. L165, 30.4.2004, p.1; the revised text of Regulation (EC) No. 882/2004 is now set out in a Corrigendum, OJ No. L191, 28.5.2004, p.1, which should be read with a further Corrigendum, OJ No. L 204, 4.8.2007, p. 29), in so far as those provisions require fees to be collected to cover the costs occasioned by official controls performed on fishery products under Annex III to Regulation (EC) No. 854/2004 of the European Parliament and of the Council laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption (OJ L139, 30.4.2004, p.206; the revised text of Regulation (EC) No. 854/2004 is now set out in a Corrigendum, OJ No. L226, 25.6.2004, p.83, which should be read with a further Corrigendum, OJ No. L204, 4.8.2007, p.26).

     3. These Regulations —

4. An impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is available from the Fish and Shellfish Hygiene Branch, Primary Production Division, of the Food Standards Agency at Aviation House, 125 Kingsway, London, WC2B 6NH and is annexed to the Explanatory Memorandum which is available alongside the instrument on the OPSI website.

Notes:

[1] 1972 c.68.back

[2] S.I. 2003/2901.back

[3] OJ No. L31, 1.2.2002, p.1, as last amended by Commission Regulation (EC) No. 575/2006 amending Regulation (EC) No. 178/2002 of the European Parliament and of the Council as regards the number and names of the permanent Scientific Panels of the European Food Safety Authority (OJ No. L100, 8.4.2006, p.3).back

[4] 1990 c.16; section 5 was amended by paragraphs 8 and 9 of Schedule 5 to the Food Standards Act 1999 (1999 c. 28).back

[5] S.I. 2006/2841, amended by S.I. 2007/1605.back

[6] 1984 c.22; section 7(3)(d) was substituted by paragraph 27 of Schedule 3 to the Food Safety Act 1990 (1990 c.16).back

[7] 1936 c.49; section 6 is to be read with paragraph 1 of Schedule 3 to the Food Safety Act 1990.back

[8] 1985 c.51; paragraph 15(6) was amended by paragraph 31(b) of Schedule 3 to the Food Safety Act 1990.back

[9] S.I. 2006/2904.back

[10] OJ No. L157, 30.4.2004, p.33. The revised text of Directive 2004/41/EC is now set out in a Corrigendum (OJ No. L195, 2.6.2004, p.12).back

[11] OJ No. L334, 23.12.1996, p.1, as last amended by Commission Regulation (EC) No. 790/2005 amending Council Regulation (EC) No. 2406/96 laying down common marketing standards for certain fishery products (OJ No. L132, 26.5.2005, p.15).back

[12] OJ No. L139, 30.4.2004, p.1. The revised text of Regulation (EC) No. 852/2004 is now set out in a Corrigendum (OJ No. L226, 25.6.2004, p.3) which should be read with a further Corrigendum (OJ No. L204, 4.8.2007, p.26).back

[13] OJ No. L139, 30.4.2004, p.55. The revised text of Regulation (EC) No. 853/2004 is now set out in a Corrigendum (OJ No. L226, 25.6.2004, p.22) which should be read with a further Corrigendum (OJ No. L204, 4.8.2007, p.26). Regulation (EC) No. 853/2004 was last amended by Commision Regulation (EC) No. 1243/2007 amending Annex III to Regulation (EC) No. 853/2004 of the European Parliament and the Council laying down specific hygiene rules for food of animal origin (OJ No. L281, 25.10.2007, p.8).back

[14] OJ No. L139, 30.4.2004, p.206. The revised text of Regulation (EC) No. 854/2004 is now set out in a Corrigendum (OJ No. L226, 25.6.2004, p.83) which should be read with a further Corrigendum (OJ No. L204, 4.8.2007, p.26). Regulation (EC) No. 854/2004 was last amended by Council Regulation (EC) No. 1791/2006 adapting certain Regulations and Decisions in the fields of free movement of goods, freedom of movement of persons, company law, competition policy, agriculture (including veterinary and phytosanitary legislation), transport policy, taxation, statistics, energy, environment, cooperation in the fields of justice and home affairs, customs union, external relations, common foreign and security policy and institutions, by reason of the accession of Bulgaria and Romania (OJ No. L363, 20.12.2006, p.1).back

[15] OJ No. L165, 30.4.2004, p.1. The revised text of Regulation (EC) No. 882/2004 is now set out in a Corrigendum (OJ No. L191, 28.5.2004, p.1) which should be read with a further corrigendum (OJ No. L204, 4.8.2007, p.29). Regulation (EC) No. 882/2004 was last amended by Council Regulation (EC) No. 1791/2006.back

[16] OJ No. L271, 15.10.2005, p.17.back

[17] OJ No. L338, 22.12.2005, p.1, as read with the Corrigenda at OJ No. L278, 10.10.2006, p.32 and OJ No. L283, 14.10.2006, p.62.back

[18] OJ No.L338, 22.12.2005, p.27, as last amended by Commission Regulation (EC) No. 1244/2007 amending Regulation (EC) No. 2074/2005 as regards implementing measures for certain products of animal origin intended for human consumption and laying down specific rules on official controls for the inspection of meat (OJ No. L 281, 25.10.2007, p.12).back

[19] OJ No.L338, 22.12.2005, p.60, as last amended by Commission Regulation (EC) No. 1245/2007 amending Annex I to Regulation (EC) No. 2075/2005 as regards the use of liquid pepsin for the detection of Trichinella in meat (OJ No. L281, 25.10.2007, p.19).back

[20] OJ No.L338, 22.12.2005, p.83, as last amended by Commission Regulation (EC) No. 1246/2007 amending Regulation (EC) No. 2076/2005 as regards the extension of the transitional period granted to food business operators importing fish oil intended for human consumption (OJ No. L281, 25.10.2007, p.21).back

ISBN 978 0 11 080500 9

Prepared 6 December 2007

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