1.—(1) These Regulations may be cited as the Fishery Products (Official Controls Charges) (Scotland) Regulations 2005 and come into force on 1st January 2006.
(2) These Regulations extend to Scotland only.
2. In these Regulations–
“chilled” means cooled to a temperature approaching that of melting ice;
“competent authority” means the Food Standards Agency, or such other person to whom the functions of competent authority may have been delegated, or with whom arrangements as to the exercise of those functions have been made, by the Food Standards Agency in accordance with regulation 4 of the Food Hygiene (Scotland) Regulations 2005(1);
“Directive 2004/41”, “Regulation 178/2002”, “Regulation 852/2004”, “Regulation 853/2004”, “Regulation 854/2004”, “Regulation 882/2004” and “Regulation 1688/2005” have the meanings respectively given to them in the Schedule;
“EEA State” means a member State, Norway, Iceland or Liechtenstein;
“employers' National Insurance contributions” means those social security contributions for which employers are liable under Part I of the Social Security Contributions and Benefits Act 1992(2);
“establishment” has the meaning given to it in Article 2.1(c) of Regulation 852/2004;
“factory vessel” and “fishery products” have the meanings respectively given to them in points 3.2 and 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” shall be construed in accordance with the definition of the term “official control” in Article 2.1 of Regulation 882/2004;
“placing on the market” has the meaning given to it in Article 3.8 of Regulation 178/2002;
“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 imported fishery products which–
originate in a third country;
were caught in their natural environment;
have not been on land prior to their proposed importation, or had not been on land prior to their importation, into an EEA State or Greenland;
are or will be landed in Scotland; and
are intended for placing on the market for human consumption;
“relevant food authority” means the food authority in whose area circumstances giving rise to an obligation under these Regulations to pay a charge to the relevant food authority arise;
“relevant landed fishery products” means fishery products which–
were caught in their natural environment;
have not or had not been on land prior to being landed;
are or will be landed in Scotland; and
are intended for placing on the market for human consumption,
other than relevant fishery products being sold for the first time in Scotland and third country imports;
“specified pelagic fish” means–
herring of the species Clupea harengus;
sardines of the species Sardinia pilchardus;
mackerel of the species Scomber scombrus or Scomber japonicus;
horse mackerel;
anchovies; and
picarels of the species Maena smaris;
“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;
“third country import” means an import in respect of which a charge is payable under regulation 48(1) of the Products of Animal Origin (Third Country Imports) (Scotland) Regulations 2002(4); and
“vendor” means–
where an agent sells fishery products on behalf of the owner or master of a vessel, that agent; and
in any other case, the owner or master of the vessel.
3.—(1) For the purposes of these Regulations, the actual costs of exercising official controls are the aggregate of costs of the types specified in paragraph (2) directly incurred in the exercise of the official controls required under Annex III to Regulation 854/2004.
(2) The types of costs are–
(a)the salaries and fees, including overtime payments and employers' pension contributions and employers' National Insurance contributions, of all staff directly involved in the exercise of the controls and of all staff engaged in the management or administration of the controls;
(b)the costs of in–service training for staff directly involved in the exercise of the controls;
(c)travelling costs and related incidental expenses incurred in exercising the controls, except those incurred by a person attending their normal place of work;
(d)the costs of office accommodation, equipment and services for staff involved in exercising the controls, including depreciation of any office furniture and equipment and the cost of information technology, stationery and forms;
(e)the costs of protective clothing and equipment used in exercising the controls;
(f)the costs of laundering protective clothing used in exercising the controls;
(g)sampling and analysis costs incurred in exercising the controls; and
(h)the routine administrative costs of accounting and collecting charges and of providing pay–roll and personnel services in connection with the employment of staff exercising the controls.
4.—(1) Any reference in these Regulations to a specified number of Euro 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 Euro shall be calculated by multiplying that number by the Euro/Sterling conversion rate specified in paragraph (3).
(3) The Euro/Sterling conversion rate is–
(a)for 2006, 1 Euro = £0.68290; 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.
5.—(1) For the purposes of these Regulations, the account period shall be 1 month or such longer period not exceeding 12 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.
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.
7.—(1) Where a relevant food authority or the competent 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 such an 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.
8.—(1) A person may appeal to the sheriff against any decision of a relevant food authority or the competent 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–
(a)confirm the decision of the authority imposing the charge;
(b)determine any charge which is payable under these Regulations and, in particular, may reduce the amount of any charge by 55% where the authority concerned is required to make that reduction under regulation 11, 14, 18 or 22 but has not done so; or
(c)determine that no charge is payable.
(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 authority concerned from the date on which the original charge was made.
(5) If the sheriff determines that the amount of any charge imposed under these Regulations is less than the amount which any person has paid to an authority in respect of it, the overpayment shall be reimbursed by that authority.
9. In any case where the exercise of official controls is deferred and the food authority responsible for the exercise of official controls on vessels and on conditions of landing (“authority A”), or the food authority responsible for the exercise of official controls required under Chapter II of Annex III to Regulation 854/2004 (“authority B”), is not the relevant food authority to which a charge is required to be paid under these Regulations (“authority C”), authority C shall remit–
(a)to authority A, a sum equal to any amount received by authority C which is referable to official controls exercised by authority A; and
(b)to authority B, a sum equal to any amount received by authority C which is referable to official controls exercised by authority B.
10.—(1) The first sale in Scotland of relevant landed fishery products shall be a chargeable transaction for the purposes of this Part.
(2) Where there is a chargeable transaction, the vendor shall include in the price which the purchaser is charged an amount equal to the charge referred to in this Part as “the general landings charge”.
(3) Subject to paragraph (4) and regulation 11, the amount of the general landings charge shall be a contribution in respect of the expenditure incurred in exercising the official controls required under Chapter II of Annex III to Regulation 854/2004 and shall be 1 Euro per tonne for the first 50 tonnes of relevantly landed fishery products and 0.5 Euro per tonne for each additional tonne of such products.
(4) Where the actual costs attributable to the exercise of official controls in relation to an unloaded consignment of specified pelagic fish do not exceed 50 Euro, the general landings charge in respect of that consignment shall not exceed that amount.
(5) The general landings charge shall be payable to the relevant food authority by the vendor.
11. The relevant food authority to which a charge is payable under regulation 10(5) shall reduce that charge by 55% where any of the official controls required under Chapter II of Annex III to Regulation 854/2004 are facilitated on the basis that–
(a)the fish are graded for freshness or size in accordance with relevant national or Community rules; or
(b)the first sale transactions are grouped together.
12.—(1) Within 7 days of the end of each account period in which a vendor enters into a chargeable transaction, the vendor shall make a written return in respect of that transaction to the relevant food authority to which the general landings charge is payable.
(2) The return shall give information which relates to the chargeable transaction entered into during that account period or, if there has been more than one such transaction, information in respect of the aggregate of the transactions.
(3) A return made under this paragraph shall include the following information–
(a)the account period to which the return relates;
(b)the place of landing and first sale of the fishery products to which it relates; and
(c)for landings of fishery products other than specified pelagic fish–
(i)the name of each vessel and the number of consignments landed from it,
(ii)the aggregate weight of consignments landed by each vessel which do not exceed 50 tonnes and the first 50 tonnes of consignments the weight of which exceeds that amount, and
(iii)the aggregate weight of consignments less the weight calculated under paragraph (ii);
(d)for landings of specified pelagic fish–
(i)the name of each vessel and the number of consignments landed from it, and
(ii)the aggregate weight of consignments landed by each vessel which do not exceed 50 tonnes and the first 50 tonnes of consignments the weight of which exceeds that amount;
(e)the amount of any reduction under regulation 11 which has been made in respect of–
(i)consignments of fish consisting only of fish other than specified pelagic fish, and
(ii)consignments of specified pelagic fish only,
specifying under which of paragraphs (a) or (b) of that regulation that reduction has been made; and
(f)the amount of the general landings charge.
(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 provide separate information of the kind required by paragraph (3) in respect of each transaction included in it; and
(b)the vendor shall retain records which are sufficient to enable any such information to be supplied on request.
13.—(1) Subject to paragraph (2), a charge of 1 Euro per tonne of fishery products which is landed shall be payable to the relevant food authority by the owner or master of a factory vessel, by way of contribution in respect of the expenditure incurred by that authority in exercising the official controls required under Annex III to Regulation 854/2004.
(2) The charge payable under paragraph (1) shall be payable in addition to the charge payable under regulation 10 but shall not apply in relation to third country imports or relevant fishery products which are sold for the first time in Scotland.
14. The relevant food authority to which a charge is payable under regulation 13(1) shall reduce that charge by 55% where–
(a)first sale and preparation or processing is carried out on the same factory vessel; or
(b)operating conditions on a factory vessel, and guarantees as to the vessel’s own checks, are such that inspection staff requirements can be reduced.
15.—(1) Within 7 days of the end of each account period in which fishery products in respect of which a charge is payable under regulation 13(1) have been landed from a factory vessel, the owner or master of the vessel who is responsible for paying that charge shall make a written return in respect of it to the relevant food authority to which it is payable.
(2) The return shall give information which relates to the landing of fishery products from a factory vessel during that account period or, if there has been more than one such landing, information in respect of the aggregate of them.
(3) A return made under this paragraph shall include the following information–
(a)the account period to which the return relates;
(b)the name of each factory vessel from which fishery products are landed and each place of landing;
(c)the number of landings during that account period;
(d)the weight of the fishery products landed;
(e)the amount of any reduction made under regulation 14, specifying under which of paragraphs (a) or (b) of that regulation that reduction has been made; and
(f)the amount of the charge payable under regulation 13(1).
(4) During the period of 1 year beginning on the day on which an owner or master makes a return under this regulation–
(a)the relevant food authority to which the return was made may require the owner or master to provide separate information of the kind required by paragraph (3) in respect of each landing included in it; and
(b)the owner or master shall retain records which are sufficient to enable any such information to be supplied.
16. The owner or master of a factory vessel shall pay to the competent authority the actual costs incurred by that authority in exercising the official controls required under paragraphs 2(c) and 3(a) (insofar as they apply in relation to factory vessels) and 3(b) of Chapter I of Annex III to Regulation 854/2004.
17. A charge of 1 Euro per tonne of fishery products entering a preparation or processing establishment shall be payable to the relevant food authority by the proprietor or operator of that establishment, by way of contribution in respect of the expenditure incurred by that authority in exercising the official controls required under Annex III to Regulation 854/2004 in respect of that establishment.
18. The relevant food authority to which a charge is payable under regulation 17 shall reduce that charge by 55% where preparation or processing is carried out–
(a)on the same site as the first sale; or
(b)in an establishment in which operating conditions and guarantees as to the establishment’s own checks are such that inspection staff requirements can be reduced.
19.—(1) Within 7 days of the end of each account period in which fishery products have entered a preparation or processing establishment, the proprietor or operator who is responsible for paying the charge under regulation 17 relating to that establishment shall make a written return in respect of that charge to the relevant food authority to which it is payable.
(2) The return shall give information which relates to the fishery products which have entered that establishment during that account period.
(3) A return made under this regulation 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)the amount of any reduction made under regulation 18, specifying under which of paragraphs (a) or (b) of that regulation that reduction has been made; and
(d)the amount of the charge payable under regulation 17.
(4) 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 provide separate information of the kind required by paragraph (3) 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 any such information to be supplied.
20. The proprietor of an establishment in which fishery products are only chilled, frozen, packaged or stored shall pay to the relevant food authority the actual costs incurred by that authority in carrying out a programmed inspection for the purposes of the official controls required under Annex III to Regulation 854/2004.
21.—(1) When any relevant fishery products are sold for the first time in Scotland (referred to in this Part as a “chargeable transaction”), the vendor shall include in the price which the purchaser is required to pay for them an amount equal to the charge referred to in this Part as “the third country direct landings charge”.
(2) Subject to regulation 22, the amount of the third country direct landings charge shall be–
(a)in respect of the expenditure incurred in exercising the official controls required under Chapter II of Annex III to Regulation 854/2004, 1 Euro per tonne of relevant fishery products for the first 50 tonnes and 0.5 Euro per tonne for each additional tonne of such products, except that where the actual costs attributable to the exercise of the official controls in relation to an unloaded consignment of specified pelagic fish do not exceed 50 Euro, the third country direct landings charge in respect of that consignment shall not exceed that amount; and
(b)in respect of the expenditure incurred in exercising official controls on vessels and on conditions of landing, 1 Euro per tonne.
(3) The third country direct landings charge shall be payable to the relevant food authority by the vendor.
22. The relevant food authority to which a charge is payable under regulation 21(3) shall reduce by 55% the part of the third country direct landings charge which is calculated in accordance with regulation 21(2)(a) where any of the official controls required under Chapter II of Annex III to Regulation 854/2004 are facilitated on the basis that–
(a)the fish are graded for freshness and/or size in accordance with relevant national or Community rules; or
(b)the first sale transactions are grouped together.
23.—(1) A vendor who has entered into a chargeable transaction shall within 7 days of the end of the account period during which the chargeable transaction took place make a return in respect of it to the relevant food authority to which the third country direct landings charge is payable or, if there has been more than one such transaction, information in respect of the aggregate of the transactions.
(2) The vendor shall include in that return the following information–
(a)the account period to which the return relates;
(b)the place of landing and first sale of the fishery products to which it relates;
(c)for landings of fishery products other than specified pelagic fish–
(i)the name of each vessel and the number of consignments landed from it,
(ii)the aggregate weight of consignments landed by each vessel which do not exceed 50 tonnes and the first 50 tonnes of consignments the weight of which exceeds that amount, and
(iii)the aggregate weight of consignments less the weight calculated under paragraph (ii);
(d)for landings of specified pelagic fish–
(i)the name of each vessel and the number of consignments landed from it, and
(ii)the aggregate weight of consignments landed by each vessel which do not exceed 50 tonnes and the first 50 tonnes of consignments the weight of which exceeds that amount;
(e)the amount of any reduction made under regulation 22 in respect of–
(i)consignments of fish consisting only of fish other than specified pelagic fish, and
(ii)consignments of specified pelagic fish only,
specifying under which of paragraphs (a) or (b) of that regulation that reduction has been made; and
(f)the amount of the third country direct landings charge.
(3) The vendor shall, in addition to the information required under paragraph (2), include in the return information on–
(a)the total weight of all fishery products landed, including specified pelagic fish; and
(b)the amount of the charge in respect of those products.
LEWIS MACDONALD
Authorised to sign by the Scottish Ministers
St Andrew’s House, Edinburgh
24th November 2005