The Meat (Official Controls Charges) Regulations (Northern Ireland) 2009

Regulation 2

SCHEDULE 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(1);

“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;

“Regulation 852/2004” means Regulation (EC) No. 852/2004 of the European Parliament and of the Council on the hygiene of foodstuffs(2) 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(3) 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(4) 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(5) 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(6);

“Regulation 2073/2005” means Commission Regulation (EC) No. 2073/2005 on microbiological criteria for foodstuffs(7);

“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(8);

“Regulation 2075/2005” means Commission Regulation (EC) No. 2075/2005 laying down specific rules on official controls for Trichinella in meat(9); 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(10) .

Regulation 2(1)

SCHEDULE 2 CALCULATION OF THE OFFICIAL CONTROLS CHARGE

The official controls charge

1.  The official controls charge payable by the operator of any premises for any accounting period shall be the sum that is equal to such percentage of the time costs generated by those premises in that period as the Agency considers appropriate and the Agency may determine different percentages for different premises or different types of premises.

2.  The Agency may vary any percentage determined pursuant to paragraph 1 where it appears to it to be appropriate to do so.

Declarations by operators

3.  The operator of any premises shall, on demand being made by the Agency, declare the working hours and working practices to be undertaken by the operator at the premises.

Agreements between the Agency and operators concerning the performance of controls other than audit

4.—(1) The Agency and the operator of any premises shall—

(a) make all reasonable efforts to agree the number of inspectors required for the purpose of carrying out controls other than audit at the premises and the number of hours required daily for that purpose; and

(b) keep the matters agreed under sub-paragraph (a) under review.

(2) Where, following any such review, it appears to the Agency and the operator that it is appropriate to do so, they may by further agreement vary any matters agreed pursuant to sub–paragraph (1)(a).

(3) Where any matters agreed pursuant to sub-paragraph (1)(a) have been varied pursuant to sub–paragraph (2) they shall be treated as having been agreed pursuant to sub–paragraph (1)(a).

5.—(1) Where the Agency and the operator fail to agree as to a matter specified in sub- paragraph (1)(a) of paragraph 4, the Agency shall determine the matter and shall notify the operator of that determination.

(2) An operator who does not agree with a determination made by the Agency pursuant to sub-paragraph (1) may, within 3 weeks of the Agency giving notification to him under that sub-paragraph, request that the determination be reviewed by the Agency.

(3) Where an operator makes a request under sub-paragraph (2) and pays to the Agency the sum of £250 by way of contribution to the costs incurred by the Agency in connection with the review, the Agency shall review the determination concerned and notify the operator of its decision.

(4) Where, pursuant to sub-paragraph (3), the Agency decides that a determination made by it pursuant to sub-paragraph (1) was incorrect, it shall refund to the operator the payment made by him in accordance with sub-paragraph (3).

(5) Where—

(a) following a review conducted pursuant to sub-paragraph (3), the Agency decides that its determination was correct ; and

(b) the operator has complied with the most recent demand made by the Agency pursuant to paragraph 3,

the operator may request that the matter that is the subject of that decision be determined by a person nominated for the purpose pursuant to sub-paragraph (7)(a).

(6) A request under sub–paragraph (5) shall be made within 1 week of the Agency giving notification to the operator under sub-paragraph (3).

(7) Where an operator makes a request under sub–paragraph (5) —

(a) the Agency shall nominate a person to determine the matter from the list established under sub–paragraph (8); and

(b) within 1 month of being nominated, the person so nominated—

(i) shall give the operator and the Agency an opportunity to make representations on the matter to be determined,

(ii) shall determine the matter concerned,

(iii) may make such order as to the costs incurred by the operator and the Agency as he considers appropriate, and

(iv) shall notify the operator and the Agency of his determination and of any such order.

(8) The Agency shall establish and maintain a list of people who may be nominated for the purposes of this paragraph and shall consult those organisations appearing to represent operators before including any person on the list.

(9) Where, pursuant to sub-paragraph (7)(b)(ii), a person nominated pursuant to sub-paragraph (7)(a) determines that a decision made by the Agency pursuant to sub-paragraph (3) was incorrect, the Agency shall refund to the operator the payment made by him in accordance with sub-paragraph (3).

6.  Nothing in paragraph 4 or 5 shall restrict the Agency in the performance of such controls as it considers necessary in order to ensure that the objectives specified in Article 1.1 of Regulation 882/2004 are achieved and that the obligation specified in Article 3.1 of that Regulation is fulfilled.

Time costs

7.  The time costs generated by any premises in any accounting period shall (subject to paragraphs 8 and 9) be calculated by —

(a) multiplying the time (expressed in hours and fractions of an hour) spent by each inspector exercising controls at those premises in the period by the hourly rate applicable to that inspector determined in accordance with paragraph 10 or varied in accordance with paragraph 12; and

(b) adding the results together.

8.  The time costs in respect of any controls shall include any overtime payments or allowances made to the inspector concerned under his contract of employment or contract for services for exercising them.

9.—(1) In determining the total time spent in exercising controls, any time spent by an inspector in travelling to or from premises at which he exercises controls and for which he is paid under a contract of employment or contract for services may be counted as if it were time when the inspector was exercising controls.

(2) In determining the total time spent in exercising controls, any time spent by an inspector—

(a) at any premises to which he has gone for the purpose of exercising controls and for which he is paid under a contract of employment or contract for services (regardless of whether or not he is able to exercise controls there); and

(b) at any other place—

(i) when he is available for exercising controls but is not in fact exercising any controls, and

(ii) for which he is paid under his contract of employment or contract for services,

shall be counted as if it were time when the inspector was exercising controls.

10.  The Agency shall determine the hourly rate applicable to inspectors, and may determine different rates for different inspectors or different classes of inspector, having regard to the level of qualifications and experience of different inspectors or classes of inspector and to the cost of exercising controls by different inspectors or classes of inspector.

11.  The hourly rate for any inspector or class of inspector shall be calculated so as to reflect such proportion of the costs of the items listed in Annex VI to Regulation 882/2004 incurred by that inspector or class of inspector in exercising controls (excluding any payments or allowances taken into account pursuant to paragraph 8) as the Agency considers it appropriate to apportion to that hourly rate.

12.  The Agency may vary any rate determined pursuant to paragraph 10 where, having regard to variations in the costs referred to in paragraph 11, it appears to it to be necessary to do so.

(1)

OJ No. L157, 30.4.2004, p.33. The revised text of Directive 2004/41/EC is now set out in a Corrigendum (OJ No. L195, 2.6.2004, p.12)

(2)

OJ No. L139, 30.4.2004, p.1. The revised text of Regulation (EC) No. 852/2004 is now set out in a Corrigendum (OJ No. L226, 25.6.2004, p.3) which should be read with a further Corrigendum (OJ No. L204, 4.8.2007, p.26). Regulation (EC) No. 852/2004 has been amended by Commission Regulation (EC) No. 1019/2008 amending Annex II to Regulation (EC) No. 852/2004 of the European Parliament and of the Council on the hygiene of foodstuffs (OJ No. L277, 18.10.2008, p.7)

(3)

O.J. No. L 139, 30.4.2004, p.55. The revised text of Regulation (EC) No. 853/2004 is now set out in a Corrigendum (O.J. No. L 226, 25.6.2004, 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, 18.11.2006, 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, 20.12.2006, 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. L 281, 25.10.2007, p.8) and corrected by Corrigendum (O.J. No. L 204, 4.8.2007, p.26). Regulation 853/2004 was last amended by Commission Regulation (EC) No. 1020/2008 amending Annexes II and III to Regulation (EC) No. 853/2004 of the European Parliament and the Council laying down specific hygiene rules for food of animal origin and Regulation (EC) No. 2076/2005 as regards identification marking, raw milk and dairy products, eggs and egg products and certain fishery products (OJ No. L277, 18.10.2008, p.8)

(4)

OJ No. L139, 30.4.2004, p.206. The revised text of Regulation (EC) No. 854/2004 is now set out in a Corrigendum (OJ No. L226, 25.6.2004, p.83) which should be read with a further Corrigendum (OJ No. L204, 4.8.2007, p.26). Regulation (EC) No. 854/2004 was amended by Regulation 882/2004, Regulation 2074/2005, Regulation 2076/2005 and Council Regulation (EC) No. 1791/2006, and corrected by Corrigendum (O.J. No. L204, 4.8.2007, p.29) and last amended by Commission Regulation (EC) No. 1021/2008 amending Annexes I, II and 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 and Regulation (EC) No. 2076/2005 as regards live bivalve molluscs, certain fishery products and staff assisting with official controls in slaughterhouses (OJ No. L277, 18.10.2008, p.15)

(5)

OJ No. L165, 30.4.2004, p.1. The revised text of Regulation (EC) No. 882/2004 is now set out in a Corrigendum (OJ No. L191, 28.5.2004, p.1) which should be read with a further Corrigendum (OJ No. L204, 4.8.2007, p.29). 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, 24.5.2006 p.3), Council Regulation (EC) No. 1791/2006 was last amended by Commission Regulation (EC) No. 1029/2008 amending Regulation (EC) No. 882/2004 of the European Parliament and of the Council to update a reference to certain European standards (OJ No. L278, 21.10.2008, p.6)

(6)

OJ No. L271, 15.10.2005, p.17

(7)

OJ No. L338, 22.12.2005, p.1, as read with the Corrigenda at OJ No. L278, 10.10.2006, p.32 and OJ No. L283, 14.10.2006, p.62 and as amended by Commission Regulation (EC) No. 1441/2007 amending Regulation (EC) No. 2073/2005 on microbiological criteria for foodstuffs (OJ No. L322, 7.12.2007, p.12)

(8)

OJ No.L338, 22.12.2005, p.27, as amended by Commission Regulation (EC) No. 1664/2006 amending Regulation (EC) No. 2074/2005 as regards implementing measures for certain products of animal origin intended for human consumption and repealing certain implementing measures (O.J. No. L 320, 18.11.2006, p.13) and Commission Regulation (EC) No. 1244/2007 amending Regulation (EC) No. 2074/2005 as regards implementing measures for certain products of animal origin intended for human consumption and laying down specific rules on official controls for the inspection of meat (O.J. No. L 281, 25.10.2007, p.12) and last amended by Commission Regulation (EC) No. 1022/2008 amending Regulation (EC) No. 2074/2005 as regards the total volatile basic nitrogen (TVB-N) limits (OJ No. L277, 18.10.2008, p.18)

(9)

O.J. No. L 338, 22.12.2005, p.60, as amended by Commission Regulation (EC) No. 1665/2006 amending Regulation (EC) No. 2075/2005 laying down specific rules on official controls for Trichinella in meat (O.J. No. L 320, 18.11.2006, p.46) and Commission Regulation (EC) No. 1245/2007 amending Annex I to Regulation (EC) No. 2075/2005 as regards the use of liquid pepsin for the detection of Trichinella in meat (O.J. No. L 281, 25.10.2007, p.19)

(10)

O.J. No. L 338, 22.12.2005, p.83, as amended by Commission Regulation (EC) No. 1666/2006 amending 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 (O.J. No. L 320, 18.11.2006, p.47), Commission Regulation (EC) No. 479/2007 amending 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 and amending Regulations (EC) No. 853/2004 and (EC) No. 854/2004 (O.J. No. L 111, 28.04.2007, p.46), Commission Regulation (EC) No. 1246/2007 amending Regulation (EC) No. 2076/2005 and last amended by Commission Regulation (EC) No. 1023/2008 amending Regulation (EC) No. 2076/2005 as regards the extension of the transitional period granted to food business operators importing fish oil for human consumption (OJ No. L277, 18.10.2008, p.21)