Irish Statutory Instruments

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 31st May, 2013.

I, JAMES REILLY, Minister for Health, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972), and for the purpose of giving effect to Commission Implementing Regulation (EU) No. 91/2013 of 31 January 2013¹ , hereby make the following regulations:

PART I

Preliminary

1. These Regulations may be cited as the European Union (Special Conditions Governing the Import of Certain Food from Certain Third Countries Due to Contamination Risk) Regulations 2013.

2. (1) In these Regulations-

“Act of 1998” means the Food Safety Authority of Ireland Act 1998 (No. 29 of 1998);

“authorised officer” means an authorised officer appointed under section 49 of the Act of 1998;

“Authority” means the Food Safety Authority of Ireland, established under section 9 of the Act of 1998;

“common entry document (CED)” means the document to be completed by the food business operator or its representative as provided for in Article 6 of EC Regulation 669/2009, a model of which is set out in Annex II to EC Regulation 669/2009, and by the competent authority confirming completion of official controls, completed in English;

“consignment” means a quantity of the food and compound food imported from third countries covered by Article 1(1)(a), (d) and (e) and (2) of EU Regulation 91/2013 of the same class or description, covered by the same document(s), conveyed by the same means of transport and coming from the same third country or part of such country;

“designated point of entry (DPE)” means a particular point of entry designated by the State pursuant to Article 17 of EC Regulation 882/2004, and listed on the website www.fsai.ie for the purposes of importation of a food and compound food imported from third countries covered by Articles 1(1)(a)(d) and (e) and (2) of EU Regulation 91/2013; in cases of consignments arriving by sea, which are unloaded at a port in the State for the purposes of being loaded on another vessel for onwards transportation to a port in another Member State of the European Economic Area, the designated point of entry shall be the latter port;

“EC Regulation 669/2009” has the meaning assigned to it by Regulation 2(1) of the European Communities (Official Controls on the Import of Food of Non-Animal Origin) Regulations 2010 ( S.I. No. 391 of 2010 );

“EC Regulation 1152/2009” has the meaning assigned to it by Regulation 2(1) of the European Union (Special Conditions Governing the Import of Certain Food from Certain Third Countries Due to Contamination Risk by Aflatoxins) Regulations 2011 ( S.I. No. 650 of 2011 );

“EU Regulation 91/2013” means Commission Implementing Regulation (EU) No. 91/2013 of 31 January 2013¹;

“food business operator” means a food business operator engaged in the import of food and compound food, covered by Articles 1(1)(a)(d) and (e) and (2) of EU Regulation 91/2013;

“General Food Law Regulation” means Regulation (EC) No. 178/2002 of the European Parliament and of the Council of 28 January 2002² ;

“health certificate” means the health certificate required by Article 5 of EU Regulation 91/2013, a model for which is set out in Annex II to that Regulation, completed in an official language of the Member State of arrival, or in another language that the competent authorities of that Member State have decided to accept;

“Health Service Executive” (HSE) means the Health Service Executive, established under section 6 of the Health Act 2004 (No. 42 of 2004);

“official agency” means the Health Service Executive, carrying out functions under these Regulations and EU Regulation 91/2013, pursuant to section 48 of the Act of 1998;

“Official Controls Regulation” means Regulation (EC) No. 882/2004 of the European Parliament and of the Council of 29 April 2004³ , as affected by the Corrigendum to Regulation (EC) No. 882/2004 of 28 May 2004⁴ , as amended by Council Regulation (EC) No. 301/2008 of 17 March 2008⁵ , Commission Regulation (EC) No. 1029/2008 of 20 October 2008⁶ , Commission Regulation (EC) No. 596/2009 of 18 June 2009⁷ and Commission Regulation (EU) No. 208/2011 of 2 March 2011⁸ ;

“official detention” has the meaning assigned to it by Article 2(13) of the Official Controls Regulation.

(2) A word or expression which is used in these Regulations and which is also used in EU Regulation 91/2013, the General Food Law Regulation or the Official Controls Regulation has, unless the context otherwise requires, the same meaning in these Regulations as it has in EU Regulation 91/2013, the General Food Law Regulation or the Official Controls Regulation.

(3)(a) A reference in these Regulations to a Regulation is to a Regulation of these Regulations, unless it is indicated that reference to some other Regulations is intended.

(b) A reference in these Regulations to a paragraph or subparagraph is to the paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

(c) A reference in these Regulations to an Article is to an Article of EU Regulation 91/2013, unless it is indicated that reference to some other instrument is intended.

3. These Regulations shall be deemed to be food legislation for the purposes of the Act of 1998.

PART 2

General Provisions

4. The competent authority for the purposes of EU Regulation 91/2013 and of these Regulations shall be the Authority, or the official agency, as appropriate.

5. The Authority or the official agency, as the case may be, shall carry out official controls on consignments of food and compound food covered by Article 1(1)(a), (d) and (e) and (2) of EU Regulation 91/2013 in accordance with that Regulation.

6. The Authority or the official agency, as the case may be, may order the official detention of consignments of food where that is required to fulfil its obligations under EU Regulation 91/2013. The place and length of such detention shall be determined by the Authority or the official agency, as appropriate.

7. (1) In the case of food and compound food, imported from third countries and covered by Article 1(1)(a), (d) and (e) of EU Regulation 91/2013-

(a) food business operators may only import consignments of such food into the State through the designated point of entry for the particular food;

(b) food business operators or their representatives shall, at least one working day prior to the physical arrival of a consignment of such food, notify the official agency at the designated point of entry of the arrival and nature of the consignment, by means of Part I of the common entry document, taking into account the notes for guidance for the common entry document laid down in Annex II to EC Regulation 1152/2009;

(c) where such food is not presented for official controls, or is not presented in accordance with any specific requirements established in accordance with EU Regulation 91/2013, or where official controls establish non-compliance with relevant European Union legislation, the official agency shall complete part III of the common entry document and take action pursuant to Articles 19, 20 and 21 of the Official Controls Regulation;

(d) consignments of such food shall be subject to official controls at the designated point of entry, in accordance with Article 8 of EU Regulation 91/2013;

(e) the release for free circulation of consignments of such food shall be subject to the presentation by the food business operator or their representative to the custom authorities of a common entry document, or its electronic equivalent, duly completed by the official agency once all official controls required by EU Regulation 91/2013 have been carried out and favourable results from physical checks, where such checks are required, are known;

(f) where the official agency informs the food business operator that a consignment of such food has special characteristics within the meaning of Article 6(3) of EC Regulation 1152/2009, the food business operator shall make available to the official agency the resources, logistics and equipment referred to in that Article;

(g) sampling and analysis for the official controls shall be carried out in accordance with Commission Regulation (EC) No. 401/2006;

(h) in addition to the requirements of subparagraph (g), sampling and analysis for the official control of aflatoxins shall be in accordance with Part 4 of the European Communities (Certain Contaminants in Food) Regulations 2010 ( S.I. No. 218 of 2010 );

(i) food business operators shall, at the time of presentation for import into the State from outside the European Economic Area, present the results of sampling and analysis in accordance with Article 4 of EU Regulation 91/2013;

(j) food business operators shall, at the time of presentation for import into the State from outside the European Economic Area, present a completed health certificate issued not more than four months prior to the date of presentation of the food for import;

(k) food business operators shall ensure that each consignment of food is identified with an identification code which corresponds to the identification code on the sampling and analysis results referred to in subparagraph (i) and the health certificate and each individual bag or other form of packaging of the consignment is identified with that identification code;

(l) food business operators shall not split consignments until all official controls have been completed and the common entry document has been completed by the official agency in accordance with Article 8 of EU Regulation 91/2013; and

(m) where a consignment is subsequently split, the food business operator shall ensure that an authenticated copy of the common entry document accompanies each part of the consignment until it is released for free circulation in accordance with Article 9 of EU Regulation 91/2013.

(2) Paragraph (1)(i) and (j) shall not apply to consignments of food and compound food which have left the country of origin prior to 18 February 2013.

(3) Paragraph (1) shall not apply to-

(a) compound food containing the food referred to in Article 1(1)(a),(d) and (e) in a quantity of 20% or below, or

(b) consignments of food which are destined to a private person for personal consumption and use only.

(4) It is the responsibility of the recipient of the consignment to prove that paragraph (3)(b) applies.

PART 3

Fees and Sanctions

8. (1) The Authority and the official agency shall, pursuant to Article 13 of EU Regulation 91/2013, set and charge fees to cover the costs occasioned by the official controls carried out pursuant to that Regulation and these Regulations.

(2) The food business operator responsible for the particular consignment, or representatives thereof, shall pay the fees set pursuant to paragraph (1).

(3) A fee payable pursuant to this Regulation may be recovered by the Authority or the official agency from the person by whom it is payable as a simple contract debt in a court of competent jurisdiction.

(4) Moneys received under this Regulation shall be paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance.

(5) The Public Offices Fees Act 1879 (42 & 43 Vict. Cap 58) does not apply to a fee charged pursuant to this Regulation.

(6) The Authority or the official agency, as the case may be, may order that a consignment be destroyed, or otherwise disposed of, where a food business operator has failed to pay a fee charged pursuant to this Regulation in relation to said consignment and the Authority or official agency forms the view that the consignment has been abandoned.

9. (1) A person is guilty of an offence if he or she fails to comply with these Regulations.

(2) Paragraph (1) shall not apply to an authorised officer or approved examiner acting in the course of his or her duties pursuant to these Regulations.

(3) A person is guilty of an offence if he or she, by act or omission-

(a) obstructs or interferes with an authorised officer in the exercise of the officer’s powers under these Regulations;

(b) fails or refuses to state his or her name or address in compliance with a request under these Regulations;

(c) fails to comply with a request or notice from an authorised officer under these Regulations;

(d) makes a statement to an authorised officer which the person knows is false or misleading;

(e) gives, in purported compliance with a request under these Regulations, a name, an address or corroborative evidence which is false or misleading;

(f) imports a consignment of food into the State other than through the designated point of entry for the particular food, contrary to Regulation 7(1)(a);

(g) imports a consignment of food but fails to submit a common entry document in accordance with Regulation 7(1)(b);

(h) imports a consignment of food but fails to submit the results of sampling and analysis in accordance with Regulation 7(1)(i);

(i) imports a consignment of food but fails to submit a health certificate in accordance with Regulation 7(1)(j);

(j) releases for free circulation in the State, a consignment of food not having presented to the customs authorities a common entry document, or its electronic equivalent, duly completed by the official agency in accordance with Regulation 7(1)(e);

(k) forges, or utters knowing it to be forged, a common entry document or other document purporting to be issued, granted or given under these Regulations, or required for the purposes of these Regulations (hereafter in this Regulation referred to as “a forged document”);

(l) alters with intent to defraud or deceive, or utters knowing it to be so altered, a common entry document or other document issued, granted or given under these Regulations, or required for the purposes of these Regulations (hereafter referred to as “an altered document”);

(m) has in his or her possession, without lawful authority, a forged document or an altered document, knowing it to be a forged or altered document as the case may be;

(n) tampers with any substance or thing with intent to defraud or deceive and with the result that a sample taken pursuant to these Regulations does not correctly represent the substance sampled;

(o) tampers or interferes with any sample taken under these Regulations, with intent to defraud or deceive;

(p) fails to make available to the official agency resources, logistics and equipment required by the official agency pursuant to Regulation 7(1)(f);

(q) fails to pay a fee payable pursuant to Regulation 8;

(r) fails to fully and properly identify a consignment of food with an identification code, pursuant to Regulation 7(1)(k);

(s) splits a consignment of food contrary to Regulation 7(1)(l);

(t) fails to ensure that an authenticated copy of the relevant common entry document accompanies each part of a consignment split in accordance with Regulation 7(1)(m);

(u) provides misleading information in relation to a proposed re-dispatch of a consignment in accordance with Article 11.

(4) Where a body corporate, or a person acting on behalf of a body corporate, commits an offence under these Regulations and the offence is committed with the consent, connivance or approval of, or is attributable to any neglect or default on the part of, any director, manager, secretary or any other officer of such body, or a person purporting to act in any such capacity, such person is also guilty of an offence and is liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(5) For the purposes of these Regulations, every contravention of a provision of these Regulations shall be deemed a separate contravention and every contravention of a paragraph or a subparagraph of such provision shall also be deemed to be a separate contravention and shall carry the same penalty as for a single contravention of any such provision.

(6) A person who is guilty of an offence under these Regulations is liable-

(a) on summary conviction, to a class A fine or, at the discretion of the court, to imprisonment for a term not exceeding 3 months, or both, or,

(b) on conviction on indictment, to a fine not exceeding €500,000, or imprisonment for a term not exceeding 3 years, or both.

(7) Where a person is convicted of an offence under these Regulations, the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the Authority or the official agency, as the case may be, the costs and expenses, measured by the court, incurred by the Authority or official agency in relation to the investigation, detection and prosecution of the offence, including costs and expenses incurred in the taking of samples, the carrying out of tests, examinations and analyses and in respect of the remuneration and other expenses of employees, consultants and advisors engaged by the Authority or official agency.

10. Notwithstanding section 57 of the Act of 1998, a summary offence under these Regulations may be prosecuted by:

(a) the Authority, or

(b) the official agency.

GIVEN under my Official Seal,

24 May 2013.

JAMES REILLY,

Minister for Health.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Regulations give partial effect to Commission Implementing Regulation (EU) No 91/2013 of 31 January 2013 laying down specific conditions applicable to the import of groundnuts from Ghana and India, okra and curry leaves from India and watermelon seeds from Nigeria and amending Regulations (EC) No 669/2009 and (EC) No 1152/2009.

These Regulations may be cited as the European Union (Special Conditions Governing the Import of Certain Food from Certain Third Countries Due to Contamination Risk) Regulations 2013.

These Regulations should be read in conjunction with the European Communities (Official Controls on the Import of Food of Non-Animal Origin) Regulations 2010 ( S.I. No. 391 of 2010 ) and European Union (Special Conditions Governing the Import of Certain Food from Certain Third Countries Due to Contamination Risk by Aflatoxins) Regulations 2011 as some of the general conditions relating to the import of foods of non-animal origin are derived from those Regulations.

1 OJ L 33, 2.2.2013, p. 2.

2 OJ L 31, 1.2.2002, p. 1.

3 OJ L 165, 30.4.2004, p. 1.

4 OJ L 191, 28.5.2004, p. 1.

5 OJ L 97, 9.4.2008, p. 85.

6 OJ L 278, 21.10.2008, p. 6.

7 OJ L 188, 18.7.2009, p. 14.

8 OJ L 58, 3.3.2011, p. 29.