FSA Consultation Letter, 27 April 2007

OFFICIAL CONTROL - Draft Official Feed and Food Controls (England) Regulations 2007

For a copy of the FSA consultation document relating to this item, see: Amendments to Official Control Regulations

The Official Feed and Food Controls ( England ) Regulations 2007 will update and replace the Official Feed and Food Controls ( England ) Regulations 2006. Responses are requested by: 20 July 2007

Consultation details

The reasons for introducing the new Statutory Iinstrument (SI) are to:

• give effect to EU requirements for the competent (regulatory) authorities to (a) charge businesses for expenses arising from 'additional official controls', and (b) recover certain administration costs associated with assistance and co-operation between the Member States and the Commission
• update the definitions required for interpretation of the SI to reflect changes/expected changes to Community and national legislation, and update the areas of responsibilities designated to the competent authorities
• update the legal powers of the authorities responsible for controls of feed/food of non-animal origin from outside the EU to help ensure more effective enforcement

Views are also sought on a partial Regulatory Impact Assessment (RIA) for the SI and on draft guidance on the application of the provision on charging businesses for expenses arising from 'additional official controls'.

Background

Regulation (EC) No 882/2004 on official controls

The proposed SI will apply certain elements of Regulation (EC) No 882/2004 on official controls. This regulation sets out requirements for the authorities in EU Member States that have responsibility for monitoring and verifying compliance with, and enforcement of, feed and food law (and animal health and animal welfare rules), i.e. the ‘competent authorities' responsible for organising and undertaking ‘official controls'. Most of the provisions applied from 1 January 2006 and the others from 1 January 2007. Detailed information on the feed and food elements of the Regulation is provided in Q&A Notes published by the Food Standards Agency (FSA).

The provisions in Regulation 882/2004 that are of particular relevance to this consultation relate to the financing of official controls, and to administrative assistance and co-operation between the Member States and the Commission. Detailed background information on these provisions is given in the partial RIA and in the draft guidance document.

Application of Regulation 882/2004 in the UK

Regulation 882/2004 is directly applicable in the Member States (that is its provisions are in themselves the law in Member States) but some measures are required at national level to give effect to its provisions. For the most part, responsibility for applying the feed and food elements of the Regulation in the UK lies with the Food Standards Agency (FSA). The Department for Environment, Food and Rural Affairs (DEFRA) and the agriculture/rural affairs departments in the devolved administrations have responsibility between them for those feed and food elements that fall outside the FSA's remit (for example beef labelling, standards for organic products, protected food names; residues of pesticides and veterinary drugs, medicated feed etc.). As regards FSA areas of responsibility, most of the provisions of Regulation 882/2004, which applied from 1 January 2006, are given effect by the Official Feed and Food Controls ( England ) Regulations 2006. Separate but parallel legislation is in place in Scotland , Wales and Northern Ireland .

Details of this consultation

The draft Official Feed and Food Controls ( England ) Regulations 2007

The proposed new SI will update and replace the 2006 SI. Separate but parallel SIs will be made in Scotland , Wales and Northern Ireland . These will be subject to separate consultations. The exercises in Scotland and Wales will not run in parallel to the consultations in England and Northern Ireland because of restrictions in place in the run up to the forthcoming elections. It is not possible, at this stage, to agree on a date for the new SIs in each of the four UK countries to come into force but the aim will be to have the same date in all four countries if at all possible.

The principal changes from the 2006 Regulations are:

• Recovery of expenses arising from additional official controls (regulation 41) – This new measure requires feed and food business operators to pay the competent authority on demand for expenses arising from 'additional official controls'. These are those controls (checks) carried out following the detection of non-compliance and which exceed the competent authority's normal control activities. Detailed information on this is provided in the partial RIA (see paras 2.4 to 2.7, and Annex A) and in the draft guidance document.
• Recovery of expenses relating to co-ordinated assistance with other Member States and follow-up by the Commission on intra-Community trade issues (regulation 42) – This new measure requires feed and food business operators to pay the competent authority on demand costs associated with the administrative actions required to inform the Commission and the competent authorities of the other Member States where repeated non-compliance with feed/food law is found and where the issue may have implications in other Member States, and for the costs incurred by the Commission if it sends an inspection team to investigate such cases. Detailed information on this is provided in the partial RIA (see para 2.8, and Annex A).
• Definitions – The definitions of Community legislation, 'relevant feed law and 'relevant food law' included respectively at Schedules 1, 2 and 3 of the SI, and of 'product' as it relates to the part of the regulations dealing with imports of feed and food of non-animal origin from third countries (see regulation 22), have been updated to reflect the changes/expected changes to Community and national legislation.
• Designation of competent authorities – The responsibilities of the competent authorities that are set out in Schedules 4 and 5 of the SI are updated to include reference to the provisions in Regulation 882/2004 on financing of official controls, that is Articles 27 and 28 (as these applied from 1 January 2007)
• Official controls on feed and food of non-animal origin from third countries – A number of amendments are being proposed to update the powers of the relevant authorities to ensure effective enforcement of the provisions. These include:
  • a revision to the prohibition on introducing feed and food into England that does not comply with EU legal requirements (at regulation 27) such that officers of Her Majesty's Revenue and Customs (HMRC) may withhold clearance of consignments pending official control by the enforcement authorities (the Agency will be liaising further with HMRC colleagues during the consultation to ensure that the proposed amendments in this respect are appropriate and sufficient to achieve the aim or whether other/additional amendments may be needed)
  • a requirement (at regulation 30) for an authorised officer of an enforcement authority to serve a notice where he proposes to place a consignment under official detention because of suspicion of non-compliance and until the results of official controls are known, together with minor technical revisions
  • reformulation of the provision on liability for charges at regulation 34 (this relates to recovery of costs for enforcement measures such as detention or destruction) such that it is consistent with that for the new provisions on expenses (see above)
  • a provision at regulation 39 (1)(c) making it an offence if the person responsible for introducing any product into England fails to provide adequate facilities for the enforcement officer to carry out checks on the products

Partial RIA

A partial RIA for the proposed SI is attached. The purpose of the RIA is to assess and record the likely costs and benefits for enforcement authorities, businesses and consumers of the proposed new and amended measures in the draft SI. It focuses on the provision relating to charging of businesses by the competent authorities for expenses arising from 'additional official controls'.

Comments on any aspect of the partial RIA are welcome. We would also welcome your views on the specific points and questions that are highlighted in the partial RIA itself. This will help us asses, in particular, the financial impact on both the enforcement authorities and businesses of the requirement for the competent authorities to charge feed/food businesses for expenses arising from 'additional official controls'.

Draft Guidance Notes on expenses arising from 'additional official controls'

These draft Guidance Notes are being developed in order to help ensure that charges for expenses arising from 'additional official controls' under regulation 41 of the Draft Official Feed and Food Controls ( England ) Regulations 2007 are applied in a fair and consistent manner.

Before the advice contained in the guidance may be finalised, there are a number of important issues and questions on which stakeholders' views are needed – these are highlighted at the relevant sections of the draft document. Any comments are welcome.