EN Official Journal of the European Union L 194/11

COMMISSION REGULATION (EC) No 669/2009

of 24 July 2009

implementing Regulation (EC) No 882/2004 of the European Parliament and of the Council as regards the increased level of official controls on imports of certain feed and food of non-animal origin and amending Decision 2006/504/EC

(Text with EEA relevance)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Regulation (EC) No 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules (1), and in particular Article 15(5) and Article 63(1) thereof,

Having regard to Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 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 (2), and in particular Article 53(1),

Whereas:

(1) Regulation (EC) No 882/2004 establishes a harmonised framework of general rules for the organisation of official controls at Community level, including official controls on the introduction of food and feed from third countries. In addition, it provides for a list to be drawn up of feed and food of non-animal origin that is on the basis of a known or emerging risk to be subject to an increased level of official controls at the point of entry into the territories referred to in Annex I thereto (the list). Such an increased level of control should allow, on the one hand, the known or emerging risk to be countered more effectively, and, on the other hand, the collection of accurate monitoring data on the occurrence and prevalence of unfavourable results from laboratory analysis.

(2) In order to draw up the list, certain criteria, which would allow the identification of a known or emerging risk linked to a specific feed or food of non-animal origin, should be taken into account.

(3) Pending the adoption of a standardised methodology and criteria for the setting up of the list, data resulting from notifications received through the rapid alert system for food and feed (RASFF), as established by Regulation (EC) No 178/2002, reports by the Food and Veterinary Office, reports received from third countries, exchanges of information between the Commission, Member States, and the European Food Safety Authority and scientific assessments, should be considered for the purposes of drawing up and updating the list.

(4) Regulation (EC) No 882/2004 provides that Member States are, for the organisation of the increased level of controls, to designate particular points of entry which have access to the appropriate control facilities for the different types of feed and food. Accordingly, it is appropriate to set out in the present Regulation minimum requirements for designated points of entry in order to ensure a degree of uniformity in the effectiveness of the controls.

(5) Regulation (EC) No 882/2004 provides that Member States are, for the organisation of the increased level of controls, to require feed and food business operators, responsible for consignments, to give prior notification of the arrival and nature of such consignments. Accordingly, a model form of common entry document (CED) should be laid down for imports of feed and food of non-animal origin covered by this Regulation, in order to ensure a uniform approach throughout the Community. The CED should be made available to the customs authorities when consignments are declared for the release for free circulation.

(6) In addition, in order to ensure a certain level of uniformity at Community level with regard to the increased level of official controls, it is appropriate to lay down in this Regulation that those controls should cover documentary, identity and physical checks.

(7) Adequate financial resources should be made available for organising the increased levels of official controls. Therefore, the Member States should collect the fees necessary to cover the costs occasioned by those controls. The calculation of those fees should be in accordance with the criteria laid down in Annex VI to Regulation (EC) No 882/2004.

(8) Commission Decision 2005/402/EC of 23 May 2005 on emergency measures regarding chilli, chilli products, curcuma and palm oil (3) provides that all consignments of such products are to be accompanied by an analytical report demonstrating that the product does not contain any of the following substances: Sudan I (CAS number 842-07-9), Sudan II (CAS number 3118-97-6), Sudan III (CAS number 85-86-9) or Sudan IV (85-83-6). Since the adoption of those measures, the frequency of the notifications to the RASFF has decreased, which indicates a significant improvement in the situation as regards the presence of Sudan dyes in relevant products. It is therefore appropriate to discontinue the requirement to provide the analytical report for each consignment of imported products laid down in Decision 2005/402/EC and to establish instead a uniform, increased level of controls on those consignments at the point of entry into the Community. Decision 2005/402/EC should therefore be repealed.

(9) Commission Decision 2006/504/EC of 12 July 2006 on special conditions governing certain foodstuffs imported from certain third countries due to contamination risks of these products by aflatoxins (4), provides for an increased frequency of controls (50 % of all consignments) to be carried for the presence of aflatoxins in peanuts originating from Brazil. Since the adoption of those measures, the frequency of the notifications to the RASFF in relation to aflatoxins in peanuts from Brazil has decreased. It is therefore appropriate to discontinue the measures provided for in Decision 2006/504 as regards such commodities, which should instead be subject to a uniform, increased level of controls at the point of entry into the Community. Decision 2006/504/EC should be amended accordingly.

(10) The application of the minimum requirements for designated points of entry may present practical difficulties for the Member States. Therefore, this Regulation should provide for a transitional period during which those requirements may be progressively implemented. Accordingly, the competent authorities in the Member States should be allowed, during that transitional period, to carry out the required identity and physical checks at control points other than the designated point of entry. In those cases, such control points should comply with the minimum requirements for designated points of entry set out in this Regulation.

(11) The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,

HAS ADOPTED THIS REGULATION:

Article 1

Subject matter

This Regulation lays down rules concerning the increased level of official controls to be carried out pursuant to Article 15(5) of Regulation (EC) No 882/2004 at the points of entry into the territories referred to Annex I thereto, on imports of the feed and food of non-animal origin listed in Annex I to this Regulation.

Article 2

Updates to Annex I

In order to set up and regularly amend the list in Annex I, at least the following sources of information shall be taken into account:

(a) data resulting from notifications received through the RASFF;

(b) reports and information resulting from the activities of the Food and Veterinary Office;

(c) reports and information received from third countries;

(d) information exchanged between the Commission and Member States, and the European Food Safety Authority;

(e) scientific assessments, where appropriate.

The list in Annex I shall be reviewed on a regular basis, and at least quarterly.

Article 3

Definitions

For the purposes of this Regulation, the following definitions shall apply:

(a) ‘common entry document (CED)’ means the document to be completed by the feed and food business operator or its representative as provided for in Article 6, a model of which is set out in Annex II, and by the competent authority confirming completion of official controls;

(b) ‘designated point of entry (DPE)’ means the point of entry provided for in the first indent of Article 17(1) of Regulation (EC) No 882/2004, into one of the territories referred to in Annex I thereto; in cases of consignments arriving by sea, which are unloaded for the purposes of being loaded on another vessel for onwards transportation to a port in another Member State, the designated point of entry shall be the latter port;

(c) ‘consignment’ means a quantity of any of the feed or food of non-animal origin listed in Annex I to this Regulation 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.

Article 4

Minimum requirements for designated points of entry

Without prejudice to Article 19, the designated points of entry shall have at least the following available:

(a) a sufficient number of suitably qualified and experienced staff to perform the prescribed checks on consignments;

(b) appropriate facilities for the competent authority to undertake the necessary checks;

(c) detailed instructions regarding sampling for analysis and the sending of such samples for analysis to a laboratory designated pursuant to Article 12(1) of Regulation (EC) No 882/2004 (the designated laboratory);

(d) facilities to store consignments (and containerised consignment) in appropriate conditions during the period of detention, where appropriate, awaiting the results of the analysis referred to in point (c), and a sufficient number of storage rooms, including cold stores, in cases where a controlled temperature is required due to the nature of the consignment;

(e) unloading equipment and appropriate equipment for carrying out sampling for analysis;

(f) the possibility to perform the unloading and the sampling for analysis in a sheltered place, where appropriate;

(g) a designated laboratory which can perform the analysis referred to in point (c), situated at a place to which the samples can be transported within a short period of time.

Article 5

List of designated points of entry

The Member States shall maintain and make publicly available on the Internet for each of the products listed in Annex I an up-to-date list of the designated points of entry. The Member States shall communicate the Internet addresses of these lists to the Commission.

The Commission shall display the national links to those lists on the Commission’s website, for information purposes.

Article 6

Prior notification of consignments

Feed and food business operators or their representatives shall give adequate prior notification of the estimated date and time of physical arrival of the consignment at the designated point of entry and of the nature of the consignment.

For that purpose, they shall complete Part I of the common entry document and transmit that document to the competent authority at the designated point of entry, at least one working day prior to the physical arrival of the consignment.

Article 7

Language of common entry documents

Common entry documents shall be drawn up in the official language, or in one of the official languages, of the Member State where the designated point of entry is located.

However, a Member State may consent to common entry documents being drawn up in another official language of the Community.

Article 8

Increased level of official controls at designated points of entry

1. The competent authority at the designated point of entry shall carry out without undue delay:

(a) documentary checks on all consignments within 2 working days from the time of arrival at the DPE, unless exceptional and unavoidable circumstances arise;

(b) identity and physical checks, including laboratory analysis, at the frequencies set out in Annex I, and in such a way that it is not possible for feed and food business operators or their representatives to predict whether any particular consignment will be subjected to such checks; the results of physical checks must be available as soon as technically possible.

2. After completion of the checks provided for in paragraph 1, the competent authority shall:

(a) complete the relevant part of Part II of the common entry document; and the responsible official of the competent authority shall stamp and sign the original of that document;

(b) make and retain a copy of the signed and stamped common entry document.

The original of the common entry document shall accompany the consignment on its onward transport until it reaches its destination as indicated in the CED.

The competent authority at the DPE may authorise onward transportation of the consignment pending the results of the physical checks. Where authorisation is given, the competent authority at the DPE shall notify the competent authority at the point of destination and appropriate arrangements shall be put in place to ensure that the consignment remains under the continuous control of the competent authorities and cannot be tampered with in any manner pending the results of the physical checks.

In cases where the consignment is transported pending the availability of results from the physical checks, a certified copy of the original CED shall be issued for that purpose.

Article 9

Special circumstances

1. On request of the Member State concerned, the Commission may authorise the competent authorities of certain designated points of entry operating under specific geographical constraints to carry out physical checks at the premises of a feed and food business operator, provided that the following conditions are met:

(a) the efficiency of controls carried out at the DPE is not adversely affected;

(b) the premises fulfil the requirements indicated in Article 4, as relevant, and are approved for that purpose by the Member State;

(c) appropriate arrangements are in place to guarantee that the consignment remains under the continuous control of the competent authorities of the DPE as from the moment of its arrival at the DPE and cannot be tampered with in any manner throughout all checks.

2. By derogation to Article 8(1), under exceptional circumstances, the decision to list a new product in Annex I may provide that identity and physical checks on consignments of that product can be carried out by the competent authority of the place of destination as indicated in the CED, if appropriate at the premises of the feed and food business operator if the conditions laid down in paragraph 1 (b) and (c) are satisfied, provided that the following conditions are met:

(a) the highly perishable nature of the product or the specific characteristics of the packaging are such that the performance of sampling operations at the DPE would inevitably result in a serious risk to food safety or in the product being damaged to an unacceptable extent;

(b) appropriate cooperation arrangements are put in place by the competent authorities at the DPE and the competent authorities performing the physical checks to ensure that: (i) the consignment cannot be tampered with in any manner throughout all checks; (ii) the reporting requirements laid down in Article 15 are fully met.

Article 10

Release for free circulation

The release for free circulation of consignments shall be subject to the presentation by the feed and food business operator or their representative to the custom authorities of a common entry document or its electronic equivalent duly completed by the competent authority once all controls required in accordance with Article 8(1) have been carried out and favourable results from physical checks, where such checks are required, are known.

Article 11

Obligations of feed and food business operators

In cases where the special characteristics of the consignment so warrant, feed and food business operator or their representative shall make available to the competent authority:

(a) sufficient human resources and logistics to unload the consignment, in order that the official controls may take place;

(b) the appropriate equipment for sampling for analysis as regards special transport and/or specific packaging forms, insofar as such sampling cannot be representatively performed with standard sampling equipment.

Article 12

Splitting of consignments

Consignments shall not be split until the increased level of official controls has been completed, and the common entry document has been completed by the competent authority as provided for in Article 8.

In the case of subsequent splitting of the consignment, an authenticated copy of the common entry document shall accompany each part of the consignment until it is released for free circulation.

Article 13

Non-compliance

If the official controls establish non-compliance, the responsible official of the competent authority shall complete Part III of the common entry document and action shall be taken pursuant to Articles 19, 20 and 21 of Regulation (EC) No 882/2004.

Article 14

Fees

1. Member States shall ensure the collection of fees occasioned by the increased level of official controls provided for in this Regulation in accordance with Article 27(4) of Regulation (EC) No 882/2004, and the criteria laid down in Annex VI to Regulation (EC) No 882/2004.

2. Feed and food business operators responsible for the consignment or their representatives shall pay the fees referred to in paragraph 1.

Article 15

Reporting to the Commission

1. Member States shall submit to the Commission a report on consignments, for the purposes of a continuous assessment of the feed and food of non-animal origin listed in Annex I.

That report shall be submitted quarterly by the end of the month following each quarter.

2. The report shall include the following information:

(a) details of each consignment, including: (i) the size in terms of net weight of the consignment; (ii) the country of origin of each consignment;

(b) the number of consignments subjected to sampling for analysis;

(c) the results of the checks as provided for in Article 8(1);

3. The Commission shall compile the reports received pursuant to paragraph 2 and make them available to the Member States.

Article 16

Amendment to Decision 2006/504/EC

Decision 2006/504/EC is amended as follows:

1. in Article 1, point (a) (iii), (iv) and (v) are deleted,

2. in Article 5, paragraph 2 (a) is replaced by the following: ‘(a) each consignment of foodstuffs from Brazil’,

3. in Article 7, paragraph 3 is deleted.

Article 17

Repeal of Decision 2005/402/EC

Commission Decision 2005/402/EC is repealed.

Article 18

Applicability

This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

It shall apply from 25 January 2010.

Article 19

Transitional measures

1. For a period of five years from the date of entry into force of this Regulation, where a designated point of entry is not equipped with the facilities required to carry out physical checks as provided for in Article 8(1)(b), those checks may be carried out at another point of control in the same Member State, authorised for that purpose by the competent authority, before the goods are declared for release for free circulation, provided that such control point complies with the minimum requirements laid down in Article 4.

2. Member States shall make publicly available, by electronic publication on their website, a list of the control points authorised in accordance with the first paragraph.

This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 24 July 2009. For the Commission Androulla VASSILIOU Member of the Commission

(1) OJ L 165, 30.4.2004, p. 1.

(2) OJ L 31, 1.2.2002, p. 1.

(3) OJ L 135, 28.5.2005, p. 34.

(4) OJ L 199, 21.7.2006, p. 21.

ANNEX I A. Feed and food of non-animal origin subject to an increased level of official controls at the designated point of entry Feed and food (intended use) CN code Country of origin Hazard Frequency of physical and identity checks (2) (%) Groundnuts (peanuts) and derived products (feed and food) 1202 10 90; 1202 20 00; 2008 11; Argentina Aflatoxins 10 Groundnuts (peanuts) and derived products (feed and food) 1202 10 90; 1202 20 00; 2008 11; Brazil Aflatoxins 50 Trace elements (feed and food) (3) (4) 2817 00 00; 2820; 2821; 2825 50 00; 2833 25 00; 2833 29 20; 2833 29 80; 2836 99; China Cadmium and lead 50 Groundnuts (peanuts) and derived products (feed and food), in particular peanut butter (food) 1202 10; 1202 20 00; 2008 11; Ghana Aflatoxins 50 Spices (food): — Capsicum spp (dried fruits thereof, whole or ground, including chillies, chilli powder, cayenne and paprika) — Myristica fragrans (nutmeg) — Zingiber officinale (ginger) — Curcuma longa (turmeric) 0904 20; 0908 10 00; 0908 20 00; 0910 10 00; 0910 30 00; India Aflatoxins 50 Groundnuts (peanuts) and derived products (feed and food) 1202 10 90; 1202 20 00; 2008 11 India Aflatoxins 10 Melon (egusi) seeds and derived products (5) (food) ex 1207 99 Nigeria Aflatoxins 50 Dried vine fruit (food) 0806 20 Uzbekistan Ochratoxin A 50 Chilli, chilli products, curcuma and palm oil (food) 0904 20 90; 0910 99 60; 0910 30 00; 1511 10 90 All third countries Sudan dyes 20 Groundnuts (peanuts) and derived products (feed and food) 1202 10 90; 1202 20 00; 2008 11 Vietnam Aflatoxins 10 Basmati rice for direct human consumption (food) ex 1006 30 Pakistan Aflatoxins 50 Basmati rice for direct human consumption (food) ex 1006 30 India Aflatoxins 10 Mangos, yard long beans (Vigna sesquipedalis), melon bitter (Momordica charantia), Lauki, (Lagenaria siceraria), peppers and aubergines (food) ex 0804 50 00; 0708 20 00; 0807 11 00; 0707 00; 0709 60; 0709 30 00 Dominican Republic Pesticide residues analysed with Multiresidue methods based on CG-MS and LC-MS (1) 50 Bananas 0803 00 11 Dominican Republic Pesticide residues analysed with Multiresidue methods based on CG-MS and LC-MS (1) 10 Vegetables, fresh, chilled or frozen (peppers, courgettes and tomatoes) 0709 60; 0709 90 70; 0702 00 00 Turkey Pesticides: methomyl and oxamyl 10 Pears 0808 20 10 Turkey Pesticide: amitraz 10 Vegetables, fresh, chilled or frozen (food) — yard long beans (Vigna sesquipedalis) — aubergines — Brassica vegetables 0708 20 00; 0709 30 00; 0704; Thailand Organo-phosphorus pesticide residues 50 B. Definitions For the purposes of this Annex, the following definitions shall apply: (a) ‘chilli’ means fruits of the genus Capsicum dried and crushed or ground falling within CN Code 0904 20 90, in whatever form, intended for human consumption; (b) ‘chilli products’ means curry powder falling within CN Code 0910 99 60, in whatever form, intended for human consumption; (c) ‘curcuma’, means curcuma dried and crushed or ground falling within CN Code 0910 30 00, in whatever form, intended for human consumption; (d) ‘palm oil’, means palm oil falling within CN Code 1511 10 90, intended for direct human consumption. (e) ‘Sudan dyes’ refers to the following chemical substances: (i) Sudan I (CAS Number 842-07-9); (ii) Sudan II (CAS Number 3118-97-6); (iii) Sudan III (CAS Number 85-86-9); (iv) Scarlet Red; or Sudan IV (CAS Number 85-83-6). (1) In particular residues of: Amitraz, Acephate, Aldicarb, Benomyl, Carbendazim, Chlorfenapyr, Chlorpyrifos, CS2 (Dithiocarbamates), Diafenthiuron, Diazinon, Dichlorvos, Dicofol, Dimethoate, Endosulfan, Fenamidone, Imidacloprid, Malathion, Methamidophos, Methiocarb, Methomyl, Monocrotophos, Omethoate, oxamyl, Profenofos, Propiconazole, thiabendazol, Thiacloprid. (2) Where only certain products under any code are required to be examined and no specific subdivision under this code exists in the goods nomenclature, the code is marked ‘Ex’ (for example Ex20079997: only products containing hazelnuts should be included). (3) The trace elements referred to in this entry are the trace elements belonging to the functional group of compounds of trace elements referred to in Annex I, 3 b) of Regulation (EC) No 1831/2003 of the European Parliament and of the Council (OJ L 268, 18.10.2003, p. 29). (4) The maximum levels established for lead and cadmium in additives belonging to the functional group of compounds of trace elements in Annex I of Directive 2002/32/EC of the European Parliament and of the Council (OJ L 140, 30.5.2002, p. 10) shall be the reference points for action. If the trace elements are labelled as food supplements as defined in Article 2 of Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (OJ L 183, 12.7.2002, p. 51), the maximum levels set in Regulation (EC) No 1881/2006 shall apply. (5) The maximum levels established for aflatoxins in groundnuts and derived products in the Annex to Regulation (EC) 1881/2006 (OJ L 364, 20.12.2006, p. 5) shall be the reference points for action.