Food Law News - EU - 2007

FSA Consultation, 1 March 2007

OFFICIAL CONTROL - Import controls for “high-risk” feed and food of non-animal origin

Note: A copy of the Commision Working Document is available at: Working Document

The Agency seeks views on a European Commission Working Document setting out implementing rules under Regulation (EC) No 882/2004 on official controls for “high-risk” feed and food products of non-animal origin (non-POAO) imported from outside the Community. Responses are requested by: 24 May 2007

Consultation details

The key proposals are:

• establishing a list of “high-risk” non-POAO to be subject to an increased level of official controls
• standard documentation to facilitate prior notification of imports of these products
• designated points at which controls of these products must be undertaken
• fees for controls of these products

Views are also sought on the associated draft partial Regulatory Impact Assessment (RIA).

The Working Document is due to be discussed at a Commission Working Group meeting in late March/early April (the Commission hope to adopt the implementing rules in June or July). In view of this, it would be helpful to have initial responses by 21 March and any other comments by 24 May 2007 at the latest.

Regulation (EC) No 882/2004 on official controls

Regulation 882/2004 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”.

These include requirements for official controls of non-POAO feed and food from third countries that is imported into the Community. These are set out at Articles 15 to 25. For products which represent a known or emerging risk (“high-risk”), a framework is established under which importers will be required to pre-notify the relevant authorities of the arrival of such consignments, and will have to present these products at specific points that have been designated specially to carry out the necessary controls.

Article 15(5) of the Regulation empowers the Commission to establish the list of these “high-risk” products and to detail the frequency and nature of the controls that must take place. It also allows for the possibility of establishing a system of fees for these controls. Implementation of this framework will bring arrangements for “high-risk” non-POAO more into line with those for products of animal origin (POAO).

In January 2007, the Agency announced that initial discussions at EU level on the necessary implementing rules were underway and sought views on the main issues that had emerged. We are grateful for the many useful comments that we received and these will help inform the UK position on the Working Document which was issued earlier this month.

Commission Working Document on “high-risk” non-POAO feed and food

The proposal is for a Commission Regulation, but the current draft is in the form of a Working Document - this is enclosed at the link below. Please note that it may not necessarily represent the views of the Commission and the document that is presented for formal adoption may differ. Please note also that further drafts of the Working Document may be issued before the Regulation is finalised. If so, we will publish these and we will also update you regarding any further discussions at EU level.

Views on any aspect of the Working Document are welcome, but we would particularly value any additional comments that you may have on the main issues now that they are set out in the context of the draft legal measure.

List of products representing a known or emerging risk

It is proposed that the Working Document will include at Annex I a list of non-POAO of known or emerging risk and details of the frequency and nature of the checks that must be carried out (please note that the list has not yet been completed).

The mechanisms for identifying products for inclusion in this list, and for determining the frequency of official controls to which they will be subject, is still not clear. However, recent EU level discussions indicate that information gathered from a variety of sources may be used. These include: evidence from RASFF notifications; the outcome of Commission controls in third countries; and reports and intelligence from the Member States.

Similarly, is it not clear how the Commission propose to keep the list under review so that products may be removed when they no longer represent a known or emerging risk.

• Are there any other sources of information/intelligence that should be used for identifying non-POAO for possible inclusion in the list?
• What criteria should be used to assess whether such products should be added to/removed from the list i.e. for determining if they do in fact represent a known or emerging risk, and for determining the frequency of controls that should be undertaken?

As regards safeguard measures established under Article 53 of Regulation 178/2002, it is still not clear how these will fit with the list of products subject to the provisions in the Working Document. There was some discussion of linking the two systems by referencing the Article 53 safeguard measures in Annex I of the Working Document.

This would mean that the general framework of the Working Document - prior notification by Common Entry Document (CED), designated points for checks and a system of fees - would also apply to non-POAO subject to Article 53 safeguard measures.

The safeguard measures themselves would continue to impose any special import conditions, such as requirements for health certification, or certificates on the outcome of analysis. At this stage, however, we are not clear if this is practical and we have some misgivings about whether this is feasible in legal terms.

• Do you have any views on this approach?
• Do you think that the common framework for official controls that will be provided by this Working Document - prior notification using the CED, controls at designated points only, mandatory fees for all controls - is appropriate for, and should apply to, all those products that are currently or will in the future be subject to emergency measures made under Article 53 of Regulation 178/2002 other than those which suspend or prohibit imports?

Standard documentation for prior notification

It is proposed in the Working Document that prior notification of the arrival of consignments of “high-risk” non-POAO from importers to the relevant competent authority be facilitated by means of the CED - this is at Annex II of the Working Document. This is based on the common veterinary entry document (CVED) used for POAO imports.

It is also proposed that prior notification should be given via TRACES (Trade Control and Export System). This is an internet based system providing information on intra-Community movements and imports of POAO and live animals.

• Do you agree that the CED will facilitate prior notification?
• Do you have any comments on the information requirements set out in the CED and the associated guidance notes?
• As regards timing, we believe that the requirement should be in line with that for POAO, i.e. prior notification should be given before consignments physically arrive in the Community. Do you agree?
• What are your views on using TRACES for non-POAO generally and for prior notifications in particular?

Designated points of entry

The Working Document proposes that documentary checks must be carried out at a designated “point of introduction” but permits Member States to designate “points of entry”, which may be inland, where identity and, as appropriate physical, checks may be carried out before release into free circulation. It will be for Member States to designate these points. For 'points of entry', these may only be designated if they meet the requirements for facilities etc. set out in Annex III.

• Do you support this flexible approach - this would mean that for relevant products entering the Community via the UK, we could require all checks at the first point of arrival, but it also provides flexibility to other Member States where this is not feasible or practical?
• With regard to appropriate facilities and other requirements (see Annex III of the Working Document), should anything else be included?
• The proposal envisages that consignments may be split following documentary checks at the 'point of introduction' and before other checks at the 'point of entry' - do you agree or disagree that this should be permitted? Would it be helpful to define 'consignment' in the Document and, if so, how should it be defined?

Fees

The proposal includes mandatory fees for official controls of “high-risk” non-POAO. A minimum fee is to be set but the relevant competent authority may recover up to full costs. Again, this is in line with the system of fees for POAO imports.

• Do you have any comments on this approach?

Where minimum fees are being set, it is essential that any figures agreed take account of costs in all the Member States so we would be grateful if stakeholders, particularly enforcement stakeholders, could provide up-to-date information on typical costs for relevant official controls.