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SCOTTISH STATUTORY INSTRUMENTS

2007 No. 537
FOOD
The Fishery Products (Official Controls Charges) (Scotland) Regulations 2007

	Made	28th November 2007
	Laid before the Scottish Parliament	29th November 2007
	Coming into force	1st January 2008

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972[1] and all other powers enabling them to do so.

     There has been 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].

PART 1
PRELIMINARY
Citation, commencement and extent
     1. —(1) These Regulations may be cited as the Fishery Products (Official Controls Charges) (Scotland) Regulations 2007 and come into force on 1st January 2008.

    (2) These Regulations extend to Scotland only.

Interpretation
     2. 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 by 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" has the meaning that the phrase "first sale in fish market" bears in Regulation 882/2004;

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

"food authority" means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994[

3

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

"official controls" is to be construed in accordance with the definition of "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;

4

"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 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 any duty is imposed under these Regulations on more than one person, the authority to which the duty is owed may enforce that duty–

(a) jointly against any two or more of them, or

(b) separately against any one 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;

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

(c) seek recovery of the amount so notified from that person.

(2) If that authority is satisfied that a calculation made under paragraph (1) is incorrect, it shall recalculate the charge and notify the recalculated charge to any person from whom it may be collected.

(3) Where a recalculated charge is notified under paragraph (2) and–

(a) the recalculated charge is more than the amount notified under paragraph (1), the authority shall recover the recalculated charge;

(b) the recalculated charge is less than the amount notified under paragraph (1) and that amount has not been recovered, the authority shall recover the lesser amount; or

(c) the recalculated charge is less than the amount notified under paragraph (1) or no charge is payable and, in either case, the amount notified under paragraph (1) has been recovered, the authority shall repay the difference between the recalculated charge and the amount recovered.

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

    (2) Section 37(4) to (6) of the Food Safety Act 1990[5] shall apply in relation to an appeal under paragraph (1) as it applies in relation to an appeal under section 37(1)(c) of that Act.

    (3) On an appeal under paragraph (1), the sheriff may–

    (4) Pending the outcome of an appeal under paragraph (1) the original amount of the charge shall remain payable, but if, pursuant to the sheriff's decision, the amount of the charge is recalculated, the recalculated charge shall be payable to the food authority concerned from the date on which the original charge was made.

    (5) If the sheriff determines that the amount of any charge payable under these Regulations is less than the amount which any person has so paid, the overpayment shall be reimbursed by the relevant food authority.

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 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 and the first sale in a fish market of 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 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 and date of landing of the fishery products to which it relates;

(c) the place and date of first placing on the market or first sale in a fish market, as the case may be, 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 one 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) 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 the supply of 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 2006[6] are revoked.

SHONA ROBISON
Authorised to sign by the Scottish Ministers

St Andrew's House, Edinburgh
28th November 2007

SCHEDULERegulation 2

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[7];

"Regulation 2406/96" means Council Regulation (EC) No. 2406/96 laying down common marketing standards for certain fishery products[8];

"Regulation 852/2004" means Regulation (EC) No. 852/2004 of the European Parliament and of the Council on the hygiene of foodstuffs[9] 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[10] 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[11] 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[12] 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[13];

"Regulation 2073/2005" means Commission Regulation (EC) No. 2073/2005 on microbiological criteria for foodstuffs[14];

"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[15];

"Regulation 2075/2005" means Commission Regulation (EC) No. 2075/2005 laying down specific rules on official controls for Trichinella in meat[16]; 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[17].

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations extend to Scotland only. They revoke and replace the Fishery Products (Official Controls Charges) (Scotland) Regulations 2006 (S.S.I. 2006/579).

These Regulations provide for the execution and enforcement in relation to Scotland 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 (O.J. No. L 165, 30.4.04, p.1), 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 (O.J. No. L 139, 30.4.04, p.206).

These Regulations–

A full regulatory impact assessment of the effect that this instrument will have on business costs has been prepared and placed in the Scottish Parliament Information Centre. Copies may be obtained from the Food Standards Agency, 6th Floor, St Magnus House, 25 Guild Street, Aberdeen, AB11 6NJ.

Notes:

[1] 1972 c.68. Section 2(2) was amended by the Scotland Act 1998 (c.46) ("the 1998 Act"), Schedule 8, paragraph 15(3) and the Legislative and Regulatory Reform Act 2006 (c.51), section 27(1). The functions conferred on a Minister of the Crown under section 2(2) of the 1972 Act, so far as exercisable within devolved competence, were transferred to the Scottish Ministers by section 53 of the 1998 Act. In so far as not so transferred and in so far as relating to food (including drink) including the primary production of food, those functions were transferred to the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2005 (S.I. 2005/849).back

[2] O.J. No. L 31, 1.2.02, p.1. The Regulation was amended by Regulation (EC) No. 1642/2003 of the European Parliament and of the Council (O.J. No. L 245, 29.9.03, p.4) and Commission Regulation (EC) No. 575/2006 (O.J. No. L 100, 8.4.06, p.3).back

[3] 1994 c.39. Section 2 was amended by the Environment Act 1995 (c.25), Schedule 22, paragraph 232.back

[4] S.S.I. 2007/1.back

[5] 1990 c.16.back

[6] S.S.I. 2006/579.back

[7] O.J. No. L 157, 30.4.04, p.33. The revised text of Directive 2004/41/EC is now set out in a Corrigendum (O.J. No. L 195, 2.6.04, p.12).back

[8] O.J. No. L 334, 23.12.96, p.1. The Regulation was amended by Commission Regulation (EC) No. 323/97 amending Council Regulation (EC) No. 2406/96 laying down common marketing standards for certain fishery products (O.J. No. L 52, 22.2.97, p.8), Council Regulation (EC) No. 2578/2000 amending Regulation (EC) No. 2406/96 laying down common marketing standards for certain fishery products (O.J. No. L 298, 25.11.00, p.1), Commission Regulation (EC) No. 2495/2001 amending Regulation (EC) No. 2406/96 laying down common marketing standards for certain fishery products (O.J. No. L 337, 20.12.01, p.23) and Commission Regulation (EC) No. 790/2005 amending Council Regulation (EC) No. 2406/96 laying down common marketing standards for certain fishery products (O.J. No. L 132, 26.5.05, p.15). The Regulation was also amended by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded.back

[9] O.J. No. L 139, 30.4.04, p.1. The revised text of Regulation (EC) No. 852/2004 is now set out in a Corrigendum (O.J. No. L 226, 25.6.04, p.3) and is corrected by Corrigendum (O.J. No. L 204, 4.8.07, p.26).back

[10] O.J. No. L 139, 30.4.04, p.55. The revised text of Regulation (EC) No. 853/2004 is now set out in a Corrigendum (O.J. No. L 226, 25.6.04, p.22). The Regulation was amended by Regulation 2074/2005, Regulation 2076/2005, Commission Regulation (EC) No. 1662/2006 amending Regulation (EC) No. 853/2004 of the European Parliament and of the Council laying down specific hygiene rules for food of animal origin (O.J. No. L 320, 18.11.06, p.1), 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 (O.J. No. L 363, 20.12.06, p.1), Commission Regulation (EC) No. 1243/2007 amending Annex III to Regulation (EC) No. 853/2004 of the European Parliament and of the Council laying down specific hygiene rules for food of animal origin (O.J. No. L281, 25.10.07, p.8) and corrected by Corrigendum (O.J. No. L 204, 4.8.07, p.26).back

[11] O.J. No. L 139, 30.4.04, p.206. The revised text of Regulation (EC) No. 854/2004 is now set out in a Corrigendum (O.J. No. L 226, 25.6.04, p.83). The Regulation was amended by Regulation 882/2004, Regulation 2074/2005, Regulation 2076/2005, Council Regulation (EC) No. 1791/2006 and corrected by Corrigendum (O.J. No. L 204, 4.8.07, p.26).back

[12] O.J. No. L 165, 30.4.04, p.1. The revised text of Regulation (EC) No. 882/2004 is now set out in a Corrigendum (O.J. No. L 191, 28.5.04, p.1). Regulation (EC) No. 882/2004 was amended by Commission Regulation (EC) No. 776/2006 amending Annex VII to Regulation (EC) No. 882/2004 of the European Parliament and of the Council as regards Community reference laboratories (O.J. No. L 136, 24.5.06), Council Regulation (EC) No. 1791/2006 and corrected by Corrigendum (O.J. No. L 204, 4.8.07, p.29).back