FSA Consultation Letter, 2 August 2006
The draft Fishery Products (Official Controls Charges) (England) Regulations 2006 will implement Article 27 of European Council Regulation 882/2004 on Official Feed and Food Controls (OFFC) relating to the application of hygiene inspection charges for direct landings of fish and fishery products in England. Responses are requested by 27 October 2006
Consultation details
The proposed regulations will continue the application of the current regulatory principles in respect of hygiene inspection charges for direct landings of fish. This is a national measure required by EU law as the current regulations that apply the EU charging provisions in the UK are to be revoked as a requirement of Article 27 of Regulation 882/2004 effective from 1 January 2007 .
However, in addition to the above, there are some technical and clarification changes in the proposed draft SI. Of these, the main changes are as follows:
Separate consultations are taking place in Scotland , Wales and Northern Ireland on the proposal to introduce similar legislation in those countries.
Background
The legal provisions in England for the current hygiene inspection charges regime for fish and fishery products are contained in The Fishery Products (Official Controls Charges) (England) Regulations 2005 SI No 2991. These regulations implement the requirements of Council Directive 85/73 (as amended) relating to fish and fishery products.
A change in the national legislation is now required to amend the legal basis of the financing of official controls, including those relating to hygiene inspection charges to implement the provisions contained in Article 27 of European Council Regulation 882/2004 on the Official Food and Feed Controls. We are therefore required by the EU to revoke the current SI and introduce new national measures. The attached draft Regulations contain the national measures to be introduced in England on 1 January 2007 .
Effect of the regulations
The proposed new regulations will allow for the continuation of official control charges for direct landings of fish and fishery products under Article 27 of Regulation 882/2004. The rates for these charges remain the same as in the current legislation. The proposed regulations shall apply in England from 1 January 2007 until 31 December 2007 (when Directive 85/73/EEC (as amended) will be repealed).
Although the draft regulations apply the same rates as the current regulations, they introduce the option for official controls to be charged for either at the actual costs borne by the competent authority for carrying out the activities listed in Annex VI of Regulation 882/2004 or at the minimum amounts specified in Directive 85/73 (as amended), whichever is the lower. There are also some technical and clarification changes in the draft regulations, which are summarised in the attached appendix.
The draft SI does not apply Article 28 of Regulation 882/2004, which is concerned with the costs of 'excess official controls', i.e. controls necessary following detection of infringements or non-compliance with food law requirements, and which exceed normal control activities. A separate consultation will be undertaken on this in due course.
It is also worth noting that the requirements for rates relating to official control charges for imported fishery products through Border Inspection Posts under Regulation 882/2004 will be implemented through a separate SI. Currently, the rates for these inspections, also defined in Directive 85/73, are implemented in England through the Products of Animal Origin (Third Country Imports) ( England ) (No. 4) Regulations 2004 (Statutory Instrument 3388). The policy responsibility for these Regulations lies with DEFRA (the Department for Environment, Food and Rural Affairs) who are preparing an exercise to apply the corresponding new rates laid down in Annex V, Chapter II of Regulation 882/2004 in England .
It should be noted that rates relating to direct landings from third country vessels, as prescribed in Paragraph 3 of Chapter II, as in the current SI, are also included in the attached draft regulations. These are not regarded as direct imports.
Possible further changes to the fishery products official control charges beyond 1 January 2008
With effect from 1 January 2008, new rates for official controls and hygiene inspection charges, pursuant to Regulation 882/2004/EC (Annex IV, Section B, Chapter V), will be applied in all Member States. The Food Standards Agency is considering the options for applying the provisions on financing these rates and will consult with stakeholders in due course.
Other changes in the draft regulations
The charge for official controls under the new regulations, referred to as the ‘general landings charge', is now generally payable where fishery products are ‘first placed on the market' rather than on ‘first sale'. However, in the case of fishery products in processing establishments and products which have not been sufficiently graded for freshness or size, the general landings charge will still be payable upon ‘first sale'.
The draft regulations combines Parts II and III of the current Fishery Products (Official Controls Charges) ( England ) Regulations 2005 SI No 2991 to simplify interpretation by stakeholders. Furthermore, the schedule to the regulations updates the list of legislation contained in it.
The draft SI amends the definitions of ‘relevant fishery products' and ‘relevant landed fishery products'. These definitions now reflect the inclusion of fishery products caught and then landed in England by a fishing vessel flying the flag of a third country and the inclusion of aquaculture products, respectively.
The draft SI also removes the provision for the vendor to reclaim the general landings charge from the purchaser. However, under the new regulations, this can still be reclaimed should the vendor wish to do so.
The provisions relating to specified pelagic fish now apply to general landings rather than direct landings from third country vessels. As a result, there are additional requirements for returns to be lodged with the relevant food authority in the case of the latter category. Furthermore, the draft SI requires that charges for the general landings category of specified pelagic fish apply irrespective of the level of actual cost of carrying out the official controls.
The current 55% reducible element allowed for fish that have been sufficiently graded for freshness or size will continue until 31 December 2007 . However, in the draft SI we have referred to the actual amount to be paid i.e. 45% of the cost of the official control activity in such circumstances. This change has been made to reflect the new practices that will be required with effect from 1 January 2008 when the payable element will be 50% of the cost, which will mean a small change (see paragraph 11 of the consultation letter). Furthermore, and as in paragraph 5 above, this provision does not apply to those fishery products sourced from direct landings from third country vessels.
All provisions for factory vessels have been removed in the new draft regulations as Regulation 882/2004 does not prescribe special provisions for this type of establishment. The charges applicable for such vessels will be those payable for all other fishery products upon first sale in a fish market. In most cases, however, fishery products from factory vessels are required to go through border inspection posts as they are processed products.
Official control charges are no longer required for ‘preparation establishments', but only for ‘processing establishments'.
Finally, the draft SI makes it an offence for failure to comply with the provisions for submitting to the relevant local authority a written return of information, which will be used as the basis for calculating the official control charge. Such an offence does not exist in the current SI even though written returns are required.
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