Commission Regulation (EU) No 939/2010
of 20 October 2010
amending Annex IV to Regulation (EC) No 767/2009 on permitted tolerances for the compositional labelling of feed materials or compound feed as referred to in Article 11(5)
(Text with EEA relevance)

THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Regulation (EC) No 767/2009 of the European Parliament and of the Council of 13 July 2009 on the placing on the market and use of feed, amending European Parliament and Council Regulation (EC) No 1831/2003 and repealing Council Directive 79/373/EEC, Commission Directive 80/511/EEC, Council Directives 82/471/EEC, 83/228/EEC, 93/74/EEC, 93/113/EC and 96/25/EC and Commission Decision 2004/217/EC, and in particular Article 27(1) thereof,
OJ L 229, 1.9.2009, p. 1.
Whereas:
(1) Regulation (EC) No 767/2009 provides for a set of EU rules concerning the marketing conditions of feed materials and compound feed. Annex IV of this Regulation includes permitted tolerances for the compositional labelling of feed materials and compound feed.
(2) Statistical control data from the competent authorities in the Member States on deviations in feed samples have revealed that substantial changes need to be made to the parameters set out in Annex IV to Regulation (EC) No 767/2009 in order to consider the scientific and technological developments in sampling and analytical methods. The Commission has now completed the evaluation of that data and consequently the structure and the parameters of Annex IV should be modified.
(3) The amended tolerances for the moisture content should take into account certain feed materials with a moisture content greater than 50 % as for these feed materials new labelling provisions have been introduced by Articles 15 and 16 of Regulation (EC) No 767/2009.
(4) In the absence of methods to determine the energy value and the protein value at Union level, Member States should be allowed to maintain their national tolerances for these parameters.
(5) For the newly introduced tolerances for feed additives in feed it should be clarified that these only apply to the technical deviations, as the analytical tolerance is already determined in line with the official method of detection for the respective feed additive. The tolerances should apply to declared values in the list of feed additives and the list of analytical constituents.
(6) The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health and neither the European Parliament nor the Council has opposed them,
HAS ADOPTED THIS REGULATION:

Article 1 Annex IV to Regulation (EC) No 767/2009 is replaced in accordance with the Annex to this Regulation.
Article 2 This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Regulation shall apply from 1 September 2010.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 October 2010.
For the Commission
The President
José Manuel Barroso
ANNEX Annex IV to Regulation (EC) No 767/2009 is replaced by the following:

ANNEX IV Permitted tolerances for the compositional labelling of feed materials or compound feed provided for in Article 11(5)

Part A: Tolerances for the analytical constituents set out in Annexes I, V, VI and VII
1. The tolerances laid down in this Part include technical and analytical deviations. Once analytical tolerances covering measurement uncertainties and procedural variations are fixed at Union level, the values set in point 2 should be adapted accordingly in order to cover only the technical tolerances.

2. Where the composition of a feed material or compound feed is found to deviate from the labelled value of the analytical constituents set out in Annexes I, V, VI and VII the following tolerances shall apply:
(a) for crude oil and fats, crude protein and crude ash:
(i) ± 3 % of the total mass or volume for declared contents of 24 % or more;
(ii) ± 12,5 % of the declared content for declared contents of less than 24 % but not less than 8 %;
(iii) ± 1 % of the total mass or volume for declared contents of less than 8 %;
(b) for crude fibre, sugar and starch:
(i) ± 3,5 % of the total mass or volume for declared contents of 20 % or more;
(ii) ± 17,5 % of the declared content for declared contents of less than 20 % but not less than 10 %;
(iii) ± 1,7 % of the total mass or volume for declared contents of less than 10 %;
(c) for calcium, ash insoluble in hydrochloric acid, total phosphorus, sodium, potassium and magnesium:
(i) ± 1 % of the total mass or volume for declared contents of 5 % or more;
(ii) ± 20 % of the declared content for declared contents of less than 5 % but not less than 1 %;
(iii) ± 0,2 % of the total mass or volume for declared contents of less than 1 %;
(d) for moisture:
(i) ± 8 % of the declared content for declared contents of 12,5 % or more;
(ii) ± 1 % of the total mass or volume for declared contents of less than 12,5 % but not less than 5 %;
(iii) ± 20 % of the declared content for declared contents of less than 5 % but not less than 2 %;
(iv) ± 0,4 % of the total mass or volume for declared contents of less than 2 %;
(e) as regards the energy value and the protein value, where no tolerance has been laid down in accordance with an EU method or in accordance with an official national method in the Member State in which the feed is placed on the market, the following tolerances shall apply: for the energy value 5 % and for the protein value 10 %.
3. By way of derogation from point 2(a) as regards crude oil and fats and crude protein in pet food, where the declared content is less than 16 % the permitted deviation shall be ± 2 % of the total mass or volume.
4. By way of derogation from point 2, the permitted deviation from the declared content to the upper side for crude oil and fats, sugar, starch, calcium, sodium, potassium, magnesium, energy value and protein value may be up to twice the tolerance laid down in points 2 and 3.
5. By way of derogation from point 2, the tolerances for ash insoluble in hydrochloric acid and moisture apply only to the upper side and no limits to the tolerances are set to the lower side.

Part B: Tolerances for feed additives labelled according to Annexes I, V, VI and VII

1. The tolerances laid down in this Part include technical deviation only. They shall apply to feed additives in the list of feed additives and in the list of analytical constituents.
As regards feed additives listed as analytical constituents, the tolerances shall apply to the total amount labelled as the guaranteed quantity at the end of the minimum storage life of the feed.
Where the content of a feed additive in a feed material or compound feed is found to be below the declared content, the following tolerances shall apply:
(a) 10 % of the declared content if the declared content is 1 000 units or more;
(b) 100 units if the declared content is less than 1 000 units but not less than 500 units;
(c) 20 % of the declared content if the declared content is less than 500 units but not less than 1 unit;
(d) 0,2 units if the declared content is less than 1 unit but not less than 0,5 units;
(e) 40 % of the declared content if the declared content is less than 0,5 units.
1 unit in this point means 1 mg, 1 000 IU, 1 × 109 CFU or 100 enzyme activity units of the respective feed additive per kg feed, as appropriate.
2. Where a minimum and/or a maximum content of an additive in a feed is laid down in the respective authorisation act for that feed additive, the technical tolerances laid down in point 1 shall only apply above a minimum content or below a maximum content, where appropriate.
3. As long as the fixed maximum content of an additive as referred to in point 2 is not exceeded, the deviation above the declared content may go up to three times the tolerance laid down in point 1. However, if for feed additives belonging to the group of micro-organisms a maximum content is laid down in the respective authorising act for that feed additive, the maximum content shall constitute the upper permitted value.