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SCOTTISH STATUTORY INSTRUMENTS

2006 No. 579
FOOD
The Fishery Products (Official Controls Charges) (Scotland) Regulations 2006

	Made	29th November 2006
	Laid before the Scottish Parliament	30th November 2006
	Coming into force	1st January 2007

The Scottish Ministers, in exercise of the powers conferred by section 2(2) of the European Communities Act 1972[1] and of all other powers enabling them in that behalf, after consultation 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[2], hereby make the following Regulations:

PART I
PRELIMINARY
Citation, commencement and extent
     1. —(1) These Regulations may be cited as the Fishery Products (Official Controls Charges) (Scotland) Regulations 2006 and come into force on 1st January 2007.

    (2) These Regulations extend to Scotland only.

Interpretation
     2. —(1) In these Regulations–

"Directive 2004/41", "Regulation 178/2002", "Regulation 1642/2003", "Regulation 852/2004", "Regulation 853/2004", "Regulation 854/2004", "Regulation 882/2004", "Regulation 1688/2005", "Regulation 2073/2005", "Regulation 2074/2005", "Regulation 2075/2005", "Regulation 2076/2005" and "Regulation 776/2006" have the meanings respectively given to them in the Schedule;

"EEA State" means a member State, Norway, Iceland or Liechtenstein;

"establishment" has the meaning given to it in Article 2.1(c) 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(2) of the Food Safety Act 1990[

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"imported" means introduced into Scotland 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 Article 2.1 of Regulation 882/2004;

"processing" has the meaning given to it in Article 2.1(m) of Regulation 852/2004;

"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–

"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;

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"vendor" means–

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 2007, 1 Euro = £0.67410; and

(b) in each subsequent year, the rate published in the C Series of the Official Journal of the European Communities 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 the sheriff and section 37(4), (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.

Charges payable to more than one food authority
     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 II
OFFICIAL CONTROLS CHARGES OTHER THAN CHARGES FOR THIRD COUNTRY IMPORTS
Charge in respect of the first placing on the market or the first sale in a fish market of relevant fishery products or relevant landed fishery products
     10. —(1) The first placing on the market or first sale in a fish market of relevant fishery products or relevant landed fishery products shall be a chargeable transaction for the purposes of this Part.

    (2) Subject to paragraph (6), where there is a chargeable transaction for the purposes of this Part, the vendor shall pay the charge determined in accordance with paragraphs (3) to (5) ("the landings charge") to the relevant food authority.

    (3) Subject to paragraphs (4) and (5), the landings charge shall be a contribution of 1 Euro per tonne for the first 50 tonnes of fishery products and 0.5 Euro per tonne for each additional tonne towards the expenditure incurred in exercising the official controls required under Annex III to Regulation 854/2004.

    (4) Subject to paragraph (5), in respect of any consignment of specified pelagic fish which are relevant landed fishery products, the landings charge shall not exceed 50 Euros.

    (5) Where–

the landings charge shall be 45% of the amount that it would otherwise be under paragraph (3) or (4).

    (6) 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 the vendor 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 of landing and first placing on the market or first sale in a fish market of the fishery products to which it relates; and

(c) for landings of relevant fishery products and for landings of relevant landed fishery products other than specified pelagic fish–

(d) for landings of relevant landed fishery products which are specified pelagic fish–

(e) notification of any amount paid under regulation 10(5) which has been paid in respect of–

specifying which of the circumstances described in sub paragraph (b)(i) or (b)(ii) of that paragraph led to the payment of that amount;

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

(g) the amount of the landings charge.

(3) Subject to paragraph (4), 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 the vendor to supply any such information.

(4) Paragraph (3) shall not apply in relation to landings of relevant fishery products.

(5) 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),

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

Charge in respect of processing establishments
     12. —(1) Subject to paragraph (4), the proprietor or operator of a processing establishment shall pay the charge determined in accordance with paragraphs (2) and (3) ("the processing establishment charge") to the relevant food authority.

    (2) Subject to paragraph (3), the processing establishment charge shall be a contribution of 1 Euro per tonne of fishery products entering the establishment towards the expenditure incurred by the relevant food authority in exercising the official controls required under Annex III to Regulation 854/2004.

    (3) Where processing is carried out–

(a) on the same site as that on which the first placing on the market or first sale in a fish market of the fishery products concerned is effected; or

(b) in an establishment in which operating conditions and guarantees as to the establishment's own checks are such that staff requirements for the exercise of official controls can be reduced,

the processing establishment charge shall be 45% of the amount that it would otherwise be under paragraph (2).

    (4) Where the actual costs of exercising the official controls required under Annex III to Regulation 854/2004 are less than the processing establishment charge, the proprietor or operator shall pay an amount equal to those costs to the relevant food authority, instead of the processing establishment charge.

Returns and records relating to processing establishments
     13. —(1) Within 7 days of the end of each account period, the proprietor or operator who is responsible for paying the processing establishment charge shall make a written return to the relevant food authority to which that charge is payable in respect of the fishery products which have entered the establishment concerned 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 weight of the fishery products entering the establishment;

(c) notification of any amount paid under regulation 12(3), specifying which of the circumstances described in sub paragraph (a) or as the case may be (b) of that paragraph led to the payment of that amount; and

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

(3) During the period of 1 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 the proprietor or operator 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) (Scotland) Regulations 2005[5] are revoked.

LEWIS MACDONALD
Authorised to sign by the Scottish Ministers

St Andrew's House, Edinburgh
29th November 2007

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[

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"Regulation 178/2002" means 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 as last amended by Regulation 1642/2003;

"Regulation 1642/2003" means Regulation (EC) No. 1642/2003 of the European Parliament and of the Council amending Regulation (EC) No. 178/2002 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;