Customs Red Tape (Ireland)

There is a lot of chatter about the new processes required for goods movements between Ireland (north and south) and its neighbour, Britain. This blog does not focus on Customs, Tariffs or VAT.

Irish Revenue information on Imports from Britain is here. Note the requirement for an Entry Summary Declaration (ENS). The ENS is a safety and security entry summary declaration needed for moving goods on ‘roll-on, roll-off’ lorries and other goods vehicles.

An emergency code (number) was supplied initially by Irish Revenue to allow importers temporarily bypass some of the documentation rules on border controls. This is a facilitation and is temporary.

Further information is accessed from this Irish Revenue location – here.

The Irish Times reports again this morning re the rules of origin matter (Peppa Pig etc) –

Government officials have raised queries with the European Commission Commission about Brexit “rules of origin” restrictions that are disrupting supply chains of foods and other products coming from mainland Europe to Ireland.

Rules of origin are designed to prevent a UK company buying cheap products from a non-EU country and repackaging and rebranding them and then selling them into the EU tariff-free.

The restriction is, however, preventing some products moving between two EU countries where the products are repackaged in UK distribution centres before being supplied into the Irish market.

Under the EU-UK trade deal, signed before Christmas, goods that are unpacked and repacked in the UK – and not subject to further manufacturing – face customs taxes, or tariffs, when reimported back into the EU.

The rules have led to severe disruption in supply chains and food shortages and empty shelves in Irish retail outlets of UK supermarket chains, in the Republic and Northern Ireland, and delayed the shipment of other goods.

The Irish Times notes – government officials warned a fix was unlikely

Government officials have made “technical inquiries” with officials within the commission “to see what the possibilities are”, said one Government source, though they warned that finding a fix for the issue was unlikely.

“This is Brexit. The UK has left the single market and the customs union. They are a third country. That is the problem,” said the source.

“If a good comes through England, that doesn’t mean that it should come under these rules, but if they are repackaged, there is a problem. That is not transit.

“This is an issue which was unforeseen or not foreseen to the extent to which it should have been.”

My Peppa Pig blog post concerns re-distribution. But even then, EU Commission clarification would be required,

Update on 1st Jan Registers (Our Services)

1st Jan Cardinal Environment EHS Registers & Law Checklists are rolling out, but last minute law changes on the UK aside is hampering progress.

GB (Britain, Britain Offshore, England, Wales, Scotland) ENV is rolling out first – Brexit changes :

(1) Air – F-gas and ODS regulations are back to yellow on the Brexit Consolidated Law List (due to late UK laws), having been stable hitherto, we will get these back to green shortly

(2) Energy – UK ETS law makes use of 2x 2018 EU texts and 2x 2019 EU texts, late UK document amends all 4 EU texts and UK ETS law

(3) Hazardous Substances – further UK law amends both UK REACH and GB CLP

(4) Waste – late decision to use EU waste code list (with amends) reverses earlier removal of the EU text from Registers

Late amendment to Waste Transhipment changes it to Waste International Shipment and puts it ahead of EU Transhipment, but we have completed the law consolidation

We are working to complete the roll out of the 1st Jan GB ENV Registers & Checklists by Monday – these will roll out without live links to –

* UK ETS 4x EU texts (refer to Brexit Consolidated Law List for status), but with local law updated

* UK REACH and GB CLP texts (refer to Brexit Consolidated Law List for status), but with local law updated

Any questions, please email me.

GMO Regulation Changes (England)

In its first Brexit de-regulation foray (of relevance to this blog) – the UK government today seeks views on its plans to change its regulation of genetically modified organisms (GMOs) in England – here.

The consultation ends on 17 March 2021.

Part 1 of the consultation focuses on the regulation of gene edited (GE) organisms possessing genetic changes which could anyway have been introduced by traditional breeding.

Part 2 of the consultation engages separately and starts gathering views on the wider regulatory framework governing genetically modified organisms (GMOs).

Depending on the results of part 1, DEFRA may change the legislation to amend the definition of a GMO as it applies in England. Currently GMOs are defined in section 106 of the Environmental Protection Act 1990 (amended by the GMO Deliberate Release Regulations). This would mean that the law would not apply to organisms produced by gene editing (GE) and other genetic technologies if they could have been developed using traditional breeding methods. DEFRA’s view is that organisms produced by GE or by other genetic technologies should not be regulated as GMOs if they could have been produced by traditional breeding methods.

The responses from part 2 of the consultation will be used by the UK government to inform policy development and stakeholder engagement plans on any potential wider GMO reform.

On 25 July 2018 the Court of Justice of the European Union (CJEU) clarified that organisms obtained by mutagenesis are genetically modified organisms (GMOs) as defined in the European Directive 18/2001/EC. The journal Nature has a useful summary article on this technical field – here.

Note – the Court also clarified that organisms obtained by mutagenesis techniques which have conventionally been used in a number of applications and have a long safety record are exempt from those obligations, on the understanding that the Member States are free to subject them, in compliance with EU law, to the obligations laid down by the directive or to other obligations.

The ECJ Press Release on the matter is here.

Happy New Year!

Here we go, 1st Jan 2021, and the start of the new rules for EU-UK trade.

(new 1st Jan) GB Cardinal Environment EHS Registers & Checklists (ENV) are being uploaded in alphabetical order, some have already been uploaded, uploading is taking place today, and will take a further 5-7 calendar days to complete. Any questions, please email me.

Northern Ireland Cardinal Environment EHS Registers & Checklists (ENV) will be next.

The December Email Alert will be issued on Monday 4th Jan, so look out for it in your inboxes on that day.

A couple of new items to note :

(1) the UK government issued a 31st Dec update (159 pages with worked examples) to its border model – here.

(2) the UK government issued a 3 month temporary approach to sending parcels to Northern Ireland from Britain – here.

(3) the UK government issued an unofficial list of waste codes for international shipping (note the List of Waste codes for domestic movement is found in WM3) – here.

(4) the UK government updated more of its guidance (notably data) to incorporate the EU-UK trade and cooperation agreement – the Brexit Guidance List in Cardinal Environment EHS Registers & Checklists.

(5) Stena, who manage Holyhead port, report they turned away 6 freight lorries carrying goods to Ireland so far this morning because the Ireland-required Pre-boarding Notification (PBN) had not been completed – this Blog does not focus on customs – the Irish Revenue link is here.

F-Gases and ODS (Northern Ireland from 1 Jan 2021)

DEFRA has today, 15 Oct, issued stipulations for F-Gases and ODS in Northern Ireland – here.

After the end of the transition period, EU regulations will continue to apply to all businesses in Northern Ireland who produce, supply, import, export or use F gases or ODS.

This means two changes for businesses in Northern Ireland:

• Businesses who import and supply the Northern Ireland market with F gases or equipment containing F gas will need to have enough EU quota/authorisations to cover their imports from Great Britain, if they do not already have this. Engineers and end-users, such as equipment manufacturers, installers and supermarkets, working with F gas should ensure they get their F gas from someone that has EU quota.

• F gas and ODS technicians in Northern Ireland will need to qualify for an Irish certificate if they are to continue working in the Republic of Ireland from January 2021. However, they will be able to continue to work in Northern Ireland with their current certificate.

The new free-to-use Trader Support Service will provide support and guidance to businesses moving goods under the Northern Ireland Protocol. Businesses who sign up to the Trader Support Service will be guided through the new processes under the Northern Ireland Protocol and can also use it to complete digital declarations.

Please also read the stipulations that apply to GB, including GB quotas, set out in separate instructions – here.

F-Gases and ODS (GB from 1st Jan 2021)

I posted a few days ago with the stipulations if exports to the EU are rejected. Today, 15th Oct, DEFRA and the Environment Agency issued full instructions on the regulations that will apply in England, Scotland and Wales (Great Britain – GB), for F-Gases and ODS from 1st Jan 2021.

The updated webpage is here.

GB will continue to:

• restrict ODS

• use the same schedule as the EU to phase down HFCs (hydrofluorocarbons, the most common type of F gas) by 79% by 2030 relative to a 2009 to 2012 baseline

That means new GB F gas quotas will follow the same phase down steps as the EU:

• limited to 63% of the baseline in 2019 and 2020

• reducing to 45% of the baseline in 2021

Most of the rules for F gas and ODS will not change. However, new GB IT systems will need to be used to:

• manage new GB quotas

• report on use

EU regulations will still apply for F gas, ODS and products containing them placed on the EU and Northern Ireland market after 1 January 2021.

The Environment Agency will administer the GB system on behalf of England, Scotland and Wales, if it receives the direction of the Scottish and Welsh Governments, from 1 January 2021.

Businesses preparing for 1 January 2021 should continue to work with the Environment Agency to register on the GB system and apply for GB quotas.

Please read the entire webpage, as the above is only part of the stipulations.

Industrial Emissions (BAT) (GB from 1st Jan 2021)

Yesterday, 14 Oct, the UK government issued a short guidance note on EU BAT (Best Available Techniques) from 1st Jan 2021 – here.

This confirms the UK will no longer be part of the EU-Sevilla BATC (binding BAT Conclusions) document production process from 1st Jan 2021.

The UK government note states

it would make secondary legislation to ensure the existing BAT Conclusions continue to have effect in UK law after we leave the EU, to provide powers to adopt future BAT Conclusions in the UK and ensure the devolved administrations maintain powers to determine BAT through their regulatory regimes.

The UK government will put in place a process for determining future UK BAT Conclusions for industrial emissions. This would be developed with the devolved administrations and competent authorities across the UK. The UK government’s Clean Air Strategy for England sets out actions for determining future UK Best Available Techniques for industrial emissions.

The note makes no mention of Northern Ireland, where via the Withdrawal Agreement Ireland/Northern Ireland Protocol, the EU Industrial Emissions Directive, and the EU BATC process would stay applicable in Northern Ireland.

F-Gases and ODS (GB from 1st Jan 2021)

I posted before about F-Gases and ODS after the Transition Period.

On 8 October, DEFRA and the Environment Agency (hitherto the lead agency for the UK in this matter) issued a major update – here.

Reporting F gas activity

F gas activities must be reported each year where a person –

• produces, imports or exports one or more metric tonnes of F gas, or a quantity of F gas equivalent to 100 tonnes or more of CO2

• destroys F gas equivalent to one metric tonne or 1,000 tonnes or more of CO2

• uses F gas as feedstock equivalent to 1000 tonnes or more of CO2

• places pre-charged products and equipment containing the equivalent of 500 tonnes or more of CO2 on the market.

A person must report F gas activities from 1 Jan 2020 to 31 December 2020 to the European Commission by 31 March 2021. This is a Transition Period obligation.

HFC exports rejected at an EU border control post (BCP) – new

If HFC exports from GB to EU (and Northern Ireland) are rejected at a BCP and need to return to GB free circulation status for the goods in GB will need to be regained.

This applies to both HFCs in bulk and in products and equipment.

To regain free circulation status the HFCs must comply with clearance processes, a person must:

• have a full customs declaration

• be registered on the GB HFC registry

• have sufficient HFC quota authorisations or delegations at the time of re-entry

The Environment Agency will administer the GB HFC systems on behalf of England, Scotland and Wales, subject to receiving the direction of the Scottish and Welsh Governments, from 1 January 2021.

The National Clearance Hub (NCH) will check the customs declaration against the HFC Registry. If the person has sufficient quota or authorisations, they will give permission for the goods to move on from the GB port of re-entry.

A person’s HFCs may not be able to re-enter GB if that person:

• is not on the HFC Registry

• does not have sufficient quota or authorisations

NCH will instruct Border Force to stop and detain the consignment at the border when returning from an EU BCP.

NCH or Border Force and the regulator will check the consignment and decide how to deal with the returned HFCs.

The regulator is:

• Environment Agency in England

• Scottish Environmental Protection Agency in Scotland

• Natural Resources Wales in Wales

The HFCs may be destroyed.

Reporting ODS activity

ODS activities must be reported if a person –

• produces, imports or exports ODS

• destroys ODS

• uses ODS as feedstock or process agent

A person must report ODS activities for 1 Jan 2020 to 31 December 2020 to the European Commission by 31 March 2021. This is a Transition Period obligation.

ODS exports rejected by an EU border control post – new

If ODS exports from GB to EU (and Northern Ireland) are rejected at a EU border control post (BCP) and need to return to GB! free circulation status for the goods in GB will need to be re-attained.

To regain free circulation status the ODS must comply with clearance processes.

A person must –

• have a full customs declaration

• be registered on the GB ODS licensing system

• hold sufficient ODS quota

• have a valid ODS import licence at the time of re-entry

The Environment Agency will administer the GB ODS system on behalf of England, Scotland and Wales, subject to receiving the direction of the Scottish and Welsh Governments from 1 January 2021.

The National Clearance Hub (NCH) will check the customs declaration against the ODS licensing system.

ODS may not be able to re-enter GB if:

• the person is not on the ODS Licensing System

• the consignment does not have a valid ODS import licence

NCH will instruct Border Force to stop and detain the consignment at the border when returning from an EU BCP.

NCH or Border Force and the regulator will check the consignment and decide how to deal with the returned ODS.

The regulator is:

• Environment Agency in England

• Scottish Environmental Protection Agency in Scotland

• Natural Resources Wales in Wales

The ODS may be destroyed.

GB-EU Border Operating Model (GB from 1st Jan 2021)

I posted about the Border Operating Model before. New border controls for entry to GB from the EU will operate in three stages up until 1 July 2021.

Only the Border Operating model for the Great Britain (GB) border with the European Union (EU) is yet published.

A further major update is published to the GB-EU Border Operating Model (138 pages) – here (dated 8 Oct 2020) – further changes from now on are expected to be minor only.

The updated GB-EU Border Operating Model:

• Maps out the intended locations of inland border infrastructure. These sites will provide additional capacity to carry out checks on freight.

• Announces that passports will be required for entry into the UK from October 2021 as the Government phases out the use of EU, EEA and Swiss national identity cards as a valid travel document for entry to the UK.

• Confirms that a Kent Access Permit will be mandatory for HGVs using the short strait channel crossings in Kent. A ‘Check an HGV’ service will allow hauliers to check if they have the correct customs documentation and obtain a Kent Access Permit.

The full list of changes since the July publication is below –

• Details of the new infrastructure requirements including locations;

• Updates in a number of agrifood and environmental policy areas including fish,
chemicals, fluorinated greenhouse gases and ozone-depleting substances, high-
priority plants and plant products;

• Further detail on delayed customs declarations and the requirements of Entry in Declarants Records (EIDR);

• Further details regarding the approach to liabilities for intermediaries;

• Information on what ‘poor compliance history’ means;

• Clarity on guarantees and DDA requirements;

• Bulk import reduced data set details;

• Further clarity on level of checks applying to goods subject to sanitary and
phytosanitary controls in July 2021;

• The ”Check an HGV is Ready to Cross the Border” Service (formerly referred to as Smart Freight);

• Refreshed process maps to reflect where greater detail is now available;

• A number of new annexes including passengers policies, requirements for
aviation, rail and energy sectors; and

• Updated annexes regarding Member State requirements.

EU Safer Food Package (EU and UK from 1st Jan 2021)

The smarter rules for safer food (SRSF) package is a set of EU regulations for the protection against animal disease and plant pests. The package modernises, simplifies and improves existing health and safety standards for the agri-food chain. It takes a risk-based approach to animal, plant and public health protection, introducing more efficient pest and disease control measures.

The package includes 3 principal EU regulations:

• Official Controls Regulation (EU) 2017/625: how controls across the agri-food chain will be monitored and enforced – applies from 14 December 2019

• Plant Health Regulation (EU) 2016/2031: controls for protecting plants from disease and pests – applies from 14 December 2019

• Animal Health Regulation (EU) 2016/429: a framework for the principles of European animal health – applies from 21 April 2021

The new Official Controls and Plant Health Regulations now apply in the UK. From 1 January 2021, these regulations will be retained by the Withdrawal Act and will continue to apply subject to any amendments Parliament may agree. UK legislation is also enacted.

The new Animal Health Regulation is not applicable until 21 April 2021, after the end of the transition period, and so the UK is not obliged to implement it.

EU Official Controls Regulation 2017/625

The new EU Official Controls Regulation (OCR) was published on 15 March 2017 and will apply in EU member states from 14 December 2019, alongside the Plant Health Regulation.

It sets out mechanisms for ensuring that responsible persons and authorities enforce the rules and must verify that businesses are complying with the legal requirements. It explains what action enforcement authorities must take when they spot such non-compliance. This covers:

• food and food safety, integrity and wholesomeness at any stage of production, processing and distribution of food

• feed and feed safety at any stage of production, processing and distribution of feed and the use of feed

• animal health requirements

• prevention and minimisation of risks to human and animal health emerging from animal by-products and derived products

• welfare requirements for animals

• protective measures against pests of plants

• requirements for the placing on the market and use of plant protection products and the sustainable use of pesticides, with the exception of pesticides application equipment

• organic production and labelling of organic products

• use and labelling of protected designations of origin, protected geographical indications and traditional specialities guaranteed

• deliberate release into the environment of Genetically Modified Organisms (GMOs) for the purpose of food and feed production.

The requirements of the OCR legislation cover how inspections, audits and sampling take place. It simplifies the current rules and makes sure there is consistency across the entire agricultural industry and food chain by including plants and plant products and animal by-products.

The OCR simplifies and brings together several existing control rules. It repeals Regulation 882/2004 and Regulation 854/2004.

Some of the areas changing include:

• extending official controls to plant health and animal by-products

• increasing the transparency of controls carried out by national enforcement authorities

• creating a common framework for carrying out border controls on animals and goods entering or crossing the EU

• strengthening controls to identify fraudulent practices at an early stage

• modernising the computerised systems for the management of data and information on official controls

EU Plant Health Regulation 2016/2031

The EU Plant Health Regulation (PHR) was published on 26 October 2016 and will apply to EU member states from 14 December 2019, alongside the Official Controls Regulation.

The new EU PHR sets out controls and restrictions that will apply to imports and internal movement of certain plants, plant pests, and other materials like soil, to help reduce these risks.

The SRSF package revises and improves the current EU plant health legislation. The PHR repeals Directive 2000/29.

Some of the areas changing include:

• extending the scope and changing the format of plant passporting

• new requirements for authorisation to issue plant passports

• more goods imported to the EU will need a phytosanitary certificate

• new requirements for the registration of professional operators

• movements within the EU – restrictions between disease free and pest free areas

• a strengthened protected zone

• new requirements applying to high risk plants and regulated non quarantine pests (RNQPs)

• a more precautionary approach to new trade flows and a commitment to undertake thorough pest risk assessments

• new category of priority pests, including annual surveying requirements and outbreak contingency planning

EU Animal Health Regulation 2016/429

The EU Animal Health Regulation (AHR) was published on 31 March 2016.

The UK and other EU member states are currently in a 5-year implementation period for AHR. The new rules will apply in EU member states from 21 April 2021.

The AHR outlines the principles of European animal health, supporting:

• a quick reaction in cases of emerging animal diseases and controlling outbreaks as effectively and efficiently as possible

• a consistent approach in dealing with different animal health diseases

• reducing the effect of animal disease outbreaks on animal and public health, animal welfare, the economy and the wider rural community

• functioning of the EU internal market in animals and animal products.

The above is not a full list, please read the contents of the webpage – here.

Further useful information is here.

Note: a plant passport is NOT the same as a phytosanitary certificate.