The Plant Health (Official Controls and Miscellaneous Provisions) (Scotland) Regulations 2019

PART 1 S Introduction

Citation, commencement and extent S

1.—(1) These Regulations may be cited as the Plant Health (Official Controls and Miscellaneous Provisions) (Scotland) Regulations 2019 and come into force on 14 December 2019.

(2) These Regulations extend to Scotland only.

Commencement Information

I1 Reg. 1 in force at 14.12.2019, see reg. 1(1)

Interpretation: general S

2.—(1) In these Regulations—

“the 2005 Order” means the Plant Health (Scotland) Order 2005 M1 ,

“commencement date” means the date on which these Regulations come into force,

“controlled consignment” means a consignment containing any plant, plant product or other object—

(a)

which may not be brought into the Union territory without a phytosanitary certificate pursuant to—

(i)

Article 72 or 74 of the EU Plant Health Regulation,

(ii)

an EU emergency decision, or

(iii)

any other EU plant health rule, other than Article 73 of the EU Plant Health Regulation,

(b)

which was exported from the Union territory to a third country and is returning to the Union territory following the refusal by that third country to allow its entry into the country,

“controlled plant pest” means—

(a)

a plant pest of a description specified in Annexes 2, 3 or 4 to Regulation (EU) 2019/2072,

(b)

a plant pest of a description specified in an EU emergency decision, or

(c)

a plant pest subject to any other EU plant health rule,

“EU emergency decision” means an instrument referred to in regulation 3(1),

“EU Plant Health Regulation” means Regulation (EU) 2016/2031 of the European Parliament of the Council on protective measures against pests of plants, amending Regulations (EU) No 228/2013, (EU) No 652/2014 and (EU) No 1143/2014 of the European Parliament and of the Council and repealing Council Directives 69/464/EEC, 74/647/EEC, 93/85/EEC, 98/57/EC, 2000/29/EC, 2006/91/EC and 2007/33/EC M2 ,

“EU plant health rule” means a rule within the meaning given in Article 1(2)(g) of the Official Controls Regulation,

“the Forestry Order” means the Plant Health (Forestry) Order 2005 M3 ,

“Official Controls Regulation” means Regulation (EU) 2017/625 of the European Parliament and of the Council on official controls and other official activities performed to ensure the application of food and feed law, rules on animal health and welfare, plant health and plant protection products, amending Regulations (EC) No 999/2001, (EC) No 396/2005, (EC) No 1069/2009, (EC) No 1107/2009, (EU) No 1151/2012, (EU) No 652/2014, (EU) 2016/429 and (EU) 2016/2031 of the European Parliament and of the Council, Council Regulations (EC) No 1/2005 and (EC) No 1099/2009 and Council Directives 98/58/EC, 1999/74/EC, 2007/43/EC, 2008/119/EC and 2008/120/EC, and repealing Regulations (EC) No 854/2004 and (EC) No 882/2004 of the European Parliament and of the Council, Council Directives 89/608/EEC, 89/662/EEC, 90/425/EEC, 91/496/EEC, 96/23/EC, 96/93/EC and 97/78/EC and Council Decision 92/438/EEC, insofar as it applies to EU plant health rules M4 ,

“plant health inspector” means an official plant health officer appointed by the Scottish Ministers,

“plant pest” means a pest within the meaning given in Article 1(1) and (2) of the EU Plant Health Regulation,

“regulated item” means—

(a)

any plant, plant product or other object to which an EU plant health rule applies, other than any plant, plant product or other object which is part of a controlled consignment, or

(b)

a controlled plant pest,

“Regulation (EU) 2019/2072” means Commission Implementing Regulation (EU) 2019/2072 establishing uniform conditions for the implementation of Regulation (EU) 2016/2031 of the European Parliament and the Council, as regards protective measures against pests of plants, and repealing Commission Regulation (EC) No 690/2008 and amending Commission Implementing Regulation (EU) 2018/2019 M5 ,

“working day” means any day, other than—

(a)

a Saturday or a Sunday,

(b)

Easter Monday,

(c)

26 December if it is not a Saturday or a Sunday,

(d)

27 December in a year in which 25 or 26 December is a Sunday, or

(e)

a bank holiday in Scotland under the Banking and Financial Dealings Act 1971 M6 ,

“working hour” means a period of one hour during a working day.

(2) Unless the context otherwise requires, words and expressions which are not defined in these Regulations and which appear in both these Regulations and in the EU Plant Health Regulation or the Official Controls Regulation have the same meaning in these Regulations as in the EU Plant Health Regulation or, as the case may be, in the Official Controls Regulation.

Commencement Information

I2 Reg. 2 in force at 14.12.2019, see reg. 1(1)

Marginal Citations

M1 S.S.I. 2005/613, as last amended by S.S.I. 2019/290. S.S.I. 2005/613 is revoked by these Regulations.

M2 OJ L 317, 23.11.2016, p.4, as last amended by Regulation (EU) 2017/625 (OJ L 95, 7.4.2017, p.1) with effect from 14 December 2019.

M3 S.I. 2005/2517, as last amended by S.S.I. 2019/278. S.S.I. 2005/2517 is revoked by these Regulations.

M4 OJ L 95, 7.4.2017, p.1, as last amended by Commission Delegated Regulation (EU) 2019/478 (OJ L 82, 25.3.2019, p.4) with effect from 14 December 2019.

M5 OJ L 319, 10.12.2019, p.1.

M6 1971 c.80. Schedule 1, paragraph 2 sets out the Scottish bank holidays; it is amended by the St Andrew's Day Bank Holiday (Scotland) Act 2007 (asp 2), section 1.

Interpretation: EU instruments S

3.—(1) In these Regulations—

“Commission Decision 98/109/EC” means Commission Decision 98/109/EC authorising Member States temporarily to take emergency measures against the dissemination of Thrips palmi Karny as regards Thailand M7 ,

“Commission Decision 2002/757/EC” means Commission Decision 2002/757/EC on provisional emergency phytosanitary measures to prevent the introduction into and the spread within the Community of Phytophthora ramorum Werres, De Cock & Man in ‘t Veld sp. nov. M8 ,

“Commission Decision 2004/200/EC” means Commission Decision 2004/200/EC on measures to prevent the introduction into and the spread within the Community of Pepino mosaic virus M9 ,

“Commission Decision 2011/787/EU” means Commission Decision 2011/787/EU authorising Member States temporarily to take emergency measures against the dissemination of Ralstonia solanacearum (Smith) Yabuuchi et al. as regards Egypt M10 ,

“Commission Implementing Decision 2012/138/EU” means Commission Implementing Decision 2012/138/EU as regards emergency measures to prevent the introduction into and the spread within the Union of Anoplophora chinensis (Forster) M11 ,

“Commission Implementing Decision 2012/270/EU” means Commission Implementing Decision 2012/270/EU as regards emergency measures to prevent the introduction into and the spread within the Union of Epitrix cucumeris (Harris), Epitrix papa sp.n., Epitrix subcrinita (Lec.) and Epitrix tuberis (Gentner) M12 ,

“Commission Implementing Decision 2012/535/EU” means Commission Implementing Decision 2012/535/EU on emergency measures to prevent the spread within the Union of Bursaphelenchus xylophilus (Steiner et Buhrer) Nickle et al. (the pine wood nematode) M13 ,

“Commission Implementing Decision 2012/697/EU” means Commission Implementing Decision 2012/697/EU as regards measures to prevent the introduction into and the spread within the Union of the genus Pomacea (Perry) M14 ,

“Commission Implementing Decision (EU) 2015/789” means Commission Implementing Decision (EU) 2015/789 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells et al.) M15 ,

“Commission Implementing Decision (EU) 2015/893” means Commission Implementing Decision (EU) 2015/893 as regards measures to prevent the introduction into and the spread within the Union of Anoplophora glabripennis (Motschulsky) M16 ,

“Commission Implementing Decision (EU) 2016/715” means Commission Implementing Decision (EU) 2016/715 setting out measures in respect of certain fruits originating in certain third countries to prevent the introduction into and the spread within the Union of the harmful organism Phyllosticta citricarpa (McAlpine) Van der Aa M17 ,

“Commission Implementing Decision (EU) 2017/198” means Commission Implementing Decision (EU) 2017/198 as regards measures to prevent the introduction into and the spread within the Union of Pseudomonas syringae pv. actinidiae Takikawa, Serizawa, Ichikawa, Tsuyumu & Goto M18 ,

“Commission Implementing Decision (EU) 2018/638” means Commission Implementing Decision (EU) 2018/638 establishing emergency measures to prevent the introduction into and spread within the Union of the harmful organism Spodoptera frugiperda (Smith) M19 ,

“Commission Implementing Decision (EU) 2018/1503” means Commission Implementing Decision (EU) 2018/1503 establishing measures to prevent the introduction into and the spread within the Union of Aromia bungii (Faldermann) M20 ,

“Commission Implementing Decision (EU) 2019/1615” means Commission Implementing Decision (EU) 2019/1615 establishing emergency measures to prevent the introduction into and the spread within the Union of Tomato brown rugose fruit virus (ToBRFV) M21 ,

“Commission Implementing Decision (EU) 2019/1739” means Commission Implementing Decision (EU) 2019/1739 establishing emergency measures to prevent the introduction into and the spread within the Union of Rose Rosette Virus M22 ,

“Commission Implementing Decision (EU) 2019/2032” means Commission Implementing Decision (EU) 2019/2032 establishing measures to prevent the introduction into and the spread within the Union of Fusarium circinatum Nirenberg & O'Donnell (formerly Gibberella circinata) and repealing Decision 2007/433/EC M23 .

(2) References to Regulation (EU) 2019/2072 and the European Union instruments referred to in paragraph (1) are to be construed as references to those instruments as amended from time to time.

Commencement Information

I3 Reg. 3 in force at 14.12.2019, see reg. 1(1)

Marginal Citations

M7 OJ L 27, 3.2.1998, p.47.

M8 OJ L 252, 20.9.2002, p.37, as last amended by Commission Implementing Decision (EU) 2016/1967 (OJ L 303, 10.11.2016, p.21).

M9 OJ L 64, 2.3.2004, p.43.

M10 OJ L 319, 2.12.2011, p.112.

M11 OJ L 64, 3.3.2012, p.38, as amended by Commission Implementing Decision (EU) 2014/356/EU (OJ L 175, 14.6.2014, p.38).

M12 OJ L 132, 23.5.2012, p.18, as last amended by Commission Implementing Decision (EU) 2018/5 (OJ L 2, 5.1.2018, p.11).

M13 OJ L 266, 2.10.2012, p.42, as last amended by Commission Implementing Decision (EU) 2018/618 (OJ L 102, 23.4.2018, p. 17).

M14 OJ L 311, 10.11.2012, p.14.

M15 OJ L 125, 21.5.2015, p.36, as last amended by Commission Implementing Decision (EU) 2018/1511 (OJ L 255, 11.10.2018, p. 16).

M16 OJ L 146, 11.6.2015, p.16.

M17 OJ L 125, 13.5.2016, p.16, as last amended by Commission Implementing Decision (EU) 2019/449 (OJ L 77, 20.3.2019, p.76).

M18 OJ L 31, 4.2.2017, p.29.

M19 OJ L 105, 25.4.2018, p.31, as amended by Commission Implementing Decision (EU) 2019/1598 (OJ L 248, 27.9.2019, p.86).

M20 OJ L 254, 10.10.2018, p.9.

M21 OJ L 250, 30.9.2019, p.91.

M22 OJ L 265, 18.10.2019, p.12.

M23 OJ L 313, 4.12.2019, p.94.

Article 82 of the EU Plant Health Regulation: meaning of “close proximity” S

4.—(1) For the purposes of Article 82 of the EU Plant Health Regulation, the premises of a registered operator are to be regarded as being in “close proximity” to other premises of that operator if any point on the boundary of its operative area, or of any of its operative areas, is within ten miles of any point on the boundary of the operative area, or of any of the operative areas, of the other premises.

(2) In paragraph (1), “operative area”, in relation to the premises of a registered operator means—

(a) in the case of premises which are used entirely by the registered operator to carry out one or more of the activities mentioned in Article 65(1) of the EU Plant Health Regulation, the area comprising those premises,

(b) in the case of any other premises used by the registered operator to carry out one or more of the activities mentioned in Article 65(1) of the EU Plant Health Regulation applies, an area within the premises which is used by the registered operator to carry out any of those activities.

Commencement Information

I4 Reg. 4 in force at 14.12.2019, see reg. 1(1)

PART 2 S Competent authorities

Designation of competent authority S

5.—(1) The Scottish Ministers are designated as the competent authority responsible for the organisation and performance of official controls and other official activities in Scotland insofar as they relate to—

(a) plant pests, plants, plant products or other objects, and

(b) professional operators.

(2) For the purpose of carrying out those of their functions described in paragraph (3), Scottish Ministers may enter into arrangements with the Forestry Commissioners for those functions to be exercised by the Forestry Commissioners on behalf of the Scottish Ministers and in such manner as the Ministers may determine.

(3) The functions are functions under—

(a) paragraph (1)(a) so far as exercisable in relation to tree pests, trees or forestry material,

(b) paragraph (1)(b) so far as they relate to forestry professional operators.

(4) In this regulation—

“forestry material” means—

(a)

wood which retains part or all of its natural round surface, with or without bark,

(b)

wood in the form of chips, particles, shavings, sawdust, wood waste or scrap,

(c)

conifer trees over 3m in height,

(d)

bark which has been removed or become detached from a living, felled or fallen tree or from part of a living, felled or fallen tree,

“forestry professional operator” means a professional operator who carries out one or more of the following activities, but no other activities in relation to plants or plant products described in Article 2(9) of the EU Plant Health Regulation—

(a)

the introduction of forestry material into Scotland,

(b)

the storage, aggregation or movement of forestry material within Scotland, the movement of forestry material into Scotland from another part of the Union territory or the movement of forestry material from Scotland to another part of the Union territory,

(c)

the export of forestry material from Scotland to a third country,

(d)

the treatment and marking of wood packaging material or forestry material in accordance with Annex 1 to ISPM 15 or the repair of wood packaging material in Scotland,

(e)

the introduction of tree pests into Scotland, the movement of tree pests within Scotland or the holding or multiplication of tree pests in Scotland for official testing, scientific or educational purposes, trials, varietal selection or breeding,

(f)

the introduction of trees or forestry material into Scotland or the movement of trees or forestry material within Scotland for use in official testing, scientific or educational purposes, trials, varietal selection or breeding,

“ISPM 15” means International Standard for Phytosanitary Measures No 15 of March 2002 on Guidelines for regulating wood packaging material in international trade, prepared by the Secretariat of the International Plant Protection Convention established by the Food and Agriculture Organisation of the United Nations M24 ,

“non-forestry material” means plants, plant products or other objects, other than forestry material,

“tree” means a living tree or shrub, or a living part of a tree or shrub, at any stage of its growth,

“tree pest” means a plant pest which is injurious to trees or wood,

“wood packaging material” means wood or wood products (excluding paper products) used, or intended to be used, for supporting, protecting or carrying a commodity of any kind, including dunnage.

Commencement Information

I5 Reg. 5 in force at 14.12.2019, see reg. 1(1)

Marginal Citations

M24 Available from the Secretariat of the International Plant Protection Convention, AGPP-FAO, Viale Delle Terme di Caracalla, 00153, Rome, Italy and at https://www.ippc.int/en/core-activities/standards-setting/ispms/

Disclosure of information S

6.—(1) For the purposes of enabling any UK authority to fulfil the obligations placed on it by the EU Plant Health Regulation, the Official Controls Regulation and relevant legislation the Scottish Ministers may disclose information to another UK authority that the Scottish Ministers have received in the execution and performance of their functions.

(2) Nothing in paragraph (1) affects any other power or requirement of the Scottish Ministers to disclose information which exists under or by virtue of Union legislation or a statutory provision.

(3) In this regulation—

“functions” means functions under the EU Plant Health Regulation, the Official Controls Regulation and relevant legislation,

“relevant legislation” means these Regulations and any equivalent Regulations having effect in a UK territory other than Scotland,

“UK authority” means—

(a)

in relation to England, the Secretary of State or the Forestry Commissioners,

(b)

in relation to Northern Ireland, the Department for Agriculture, Environment and Rural Affairs,

(c)

in relation to Scotland, the Scottish Ministers,

(d)

in relation to Wales, the Welsh Ministers,

“UK territory” means—

(a)

England,

(b)

Northern Ireland,

(c)

Scotland, or

(d)

Wales.

Commencement Information

I6 Reg. 6 in force at 14.12.2019, see reg. 1(1)

PART 3 S Official Controls on controlled consignments from third countries and other official controls on goods from third countries

Derogation to the requirement to give prior notification in accordance with Article 1(1) of Commission Implementing Regulation (EU) 2019/1013 S

7.—(1) In the case of any controlled consignment which consists, in whole or in part, of unprocessed logs or sawn or chipped wood and is to be brought into Scotland at a point of entry which only has a temporary border control post, the operator who is responsible for the controlled consignment must notify the Scottish Ministers of the consignment's arrival at least three working days before its expected arrival in Scotland.

(2) Article 1(1) of Commission Implementing Regulation (EU) 2019/1013 does not apply to any operator who is responsible for a controlled consignment referred to in paragraph (1).

(3) In this regulation—

“Commission Implementing Regulation (EU) 2019/1013” means Commission Implementing Regulation (EU) 2019/1013 on prior notification of consignments of certain categories of animals and goods entering the Union M25 ,

“temporary border control post” means a border control post in Scotland which has been exempted from the obligations in Article 64(3)(a), (c) and (f) of the Official Controls Regulation pursuant to Article 4 of Commission Delegated Regulation (EU) 2019/1012 supplementing Regulation (EU) 2017/625 of the European Parliament and of the Council by derogating from the rules on the designation of control points and from the minimum requirements for border control posts M26 .

Commencement Information

I7 Reg. 7 in force at 14.12.2019, see reg. 1(1)

Marginal Citations

M25 OJ L 165, 21.6.2019, p.8.

M26 OJ L 165, 21.6.2019, p.4.

Suspicion of non-compliance S

8.—(1) This regulation applies where a plant health inspector suspects that a controlled consignment or a regulated item is likely to be, or has been, brought into Scotland from a third country in contravention of an EU plant health rule or that any such consignment or item may not otherwise comply with an EU plant health rule.

(2) A plant health inspector must serve a notice on the operator who is responsible for the controlled consignment or regulated item—

(a) placing the consignment or item under official detention, and

(b) prohibiting the entry of the consignment or item into the Union territory,

pending the outcome of official controls to confirm or eliminate the suspicion referred to in paragraph (1).

(3) This regulation applies to any controlled consignment or regulated item whether or not its ultimate destination is in Scotland.

Commencement Information

I8 Reg. 8 in force at 14.12.2019, see reg. 1(1)

Consignments not correctly presented for official controls S

9.  Where a plant health inspector suspects or is aware that a controlled consignment has not been presented for official controls in accordance with Article 47(1) of the Official Controls Regulation, or in accordance with the other requirements referred to in Article 66(6) of that Regulation, the plant health inspector must serve a notice on the operator who is responsible for the controlled consignment recalling the consignment and placing the consignment under official detention.

Commencement Information

I9 Reg. 9 in force at 14.12.2019, see reg. 1(1)

Official measures in relation to non-compliant consignments or consignments which pose a risk to plant health S

10.—(1) This regulation applies to—

(a) any controlled consignment or regulated item which, in the opinion of a plant health inspector, has been brought into Scotland from a third country in contravention of an EU plant health rule,

(b) any controlled consignment or regulated item which has been brought into Scotland from a third country and which does not otherwise comply with an EU plant health rule, or

(c) any consignment which has been brought into Scotland from a third country and which, in the opinion of a plant health inspector, poses a risk to plant health in Scotland or to any other part of the Union territory.

(2) A plant health inspector must serve a notice on the operator who is responsible for the controlled consignment or regulated item—

(a) placing the consignment or item under official detention, and

(b) setting out the measures which the operator must take in relation to the consignment or item.

Commencement Information

I10 Reg. 10 in force at 14.12.2019, see reg. 1(1)

Notices under regulation 8, 9 or 10 S

11.  A notice under regulation 8, 9 or 10 may include any of the following—

(a) the measures that the operator who is responsible for the controlled consignment or regulated item must take in relation to the consignment or item to isolate or quarantine the consignment or item or otherwise deal with the risk to plant health arising from the consignment or item,

(b) where a plant health inspector requires the consignment or item to be destroyed or otherwise disposed of, re-exported or treated, the measures that the operator who is responsible for the controlled consignment or regulated item must take to destroy or otherwise dispose of, re-export or treat the consignment or item,

(c) any other measures which the plant health inspector considers are appropriate in light of the suspected or known contravention or the risk to plant health in Scotland or to any other part of the Union territory arising from the consignment or item.

Commencement Information

I11 Reg. 11 in force at 14.12.2019, see reg. 1(1)

Border control posts: authorisation of inspection centre and commercial storage facilities S

12.—(1) The Scottish Ministers may grant a permit which authorises—

(a) the use of a facility which is located within a border control post as an inspection centre for the purposes of carrying out official controls and other official activities on controlled consignments and other regulated items on their arrival at the border control post,

(b) the use of commercial storage facilities within the close vicinity of a border control post as a place at which identity checks and physical checks may be performed on controlled consignments and other regulated items on their arrival at the border control post.

(2) An application for a permit must be made to the Scottish Ministers by the operator of the facility or commercial storage facilities in the manner and form required by the Scottish Ministers.

(3) A permit may only be granted under paragraph (1)(a) if the Scottish Ministers are satisfied that the facility complies with the requirements specified in respect of inspection centres in Article 8 of Regulation (EU) 2019/1014.

(4) A permit may only be granted under paragraph (1)(b) if the Scottish Ministers are satisfied that the commercial storage facilities comply with the requirements specified in respect of commercial storage facilities in Article 3(11) of Regulation (EU) 2019/1014.

(5) A permit granted under paragraph (1)(a) or (b) must be in writing and may be granted—

(a) subject to conditions,

(b) for an indefinite period or a specified period.

(6) A permit granted under paragraph (1)(a) or (b) may be modified, suspended or revoked at any time by the Scottish Ministers by notice in writing.

(7) In this regulation, “Regulation (EU) 2019/1014” means Commission Implementing Regulation (EU) 2019/1014 to lay down detailed rules on minimum requirements for border control posts, including inspection centres, and for the format, categories and abbreviations to use for listing border control posts and control points M27 .

Commencement Information

I12 Reg. 12 in force at 14.12.2019, see reg. 1(1)

Marginal Citations

M27 OJ L 165, 21.6.2019, p.10.

Transitional provision: approved places of inspection S

13.—(1) The Scottish Ministers may during the relevant period authorise—

(a) the transportation of a controlled consignment to an approved place of inspection, and

(b) the performance of identity checks and plant health checks by a plant health inspector at an approved place of inspection.

(2) The operator who is responsible for a controlled consignment that is destined for an approved place of inspection must—

(a) by notice in writing give the Scottish Ministers the particulars set out in paragraph (3) no later than three working days before the consignment arrives in Scotland,

(b) ensure that the consignment, its packaging and the vehicle in which it is transported are closed or sealed in such a way that there is no risk of the plants, plant products or objects in the consignment causing infestation, infection or contamination or a change occurring in the contents of the consignment, and

(c) ensure that the consignment is accompanied by a plant health movement document.

(3) The particulars are—

(a) the name, address and location of the approved place of inspection to which the consignment is destined,

(b) the scheduled date and time of arrival of the consignment at the place referred to in sub-paragraph (a),

(c) if available, the individual serial number of the plant health movement document in relation to that consignment,

(d) if available, the date and place at which that plant health movement document was drawn up,

(e) the name, address and registration number of the operator, and

(f) the reference number of the phytosanitary certificate or phytosanitary certificate for re-export required in relation to the consignment pursuant to Article 72(1) or 74(1) of the EU Plant Health Regulation.

(4) The operator must notify the Scottish Ministers immediately in writing of any changes to the particulars which the operator has given under paragraph (2)(a).

(5) The notice must be given to the Scottish Ministers at the address given by the Scottish Ministers from time to time for the purposes of this regulation.

(6) The Scottish Ministers may for the purposes of paragraph (1) approve a place to which a controlled consignment may be destined as a place at which identity checks and plant health checks may be performed by a plant health inspector during the relevant period.

(7) An application for approval under paragraph (6) must be made to the Scottish Ministers in the manner and form required by the Scottish Ministers.

(8) An approval may be granted subject to conditions, including conditions relating to the storage of controlled consignments, and may be withdrawn at any time if the Scottish Ministers no longer consider that the place to which the approval relates is suitable for the purpose for which the approval was given.

(9) The Scottish Ministers may only approve a place as an approved place of inspection if the place has been approved by the Commissioners for Her Majesty's Revenue and Customs for use as a temporary storage facility.

(10) In this regulation—

“approved place of inspection” means a place which was approved as a place of inspection by the Scottish Ministers under article 17(1) of the Forestry Order or the 2005 Order before the commencement date and which remains approved by virtue of regulation 53(1) or a place approved under paragraph (6),

“plant health movement document” means a document in the form set out in the Annex to Commission Directive 2004/103/EC on identity and plant health checks of plants, plant products or other objects, listed in Part B of Annex V to Council Directive 2000/29/EC, which may be carried out at a place other than the point of entry into the Community or at a place close by and specifying the conditions related to these checks M28 ,

“relevant period” means the period beginning on the commencement date and ending on 13th December 2020,

“temporary storage facility” means a temporary storage facility within the meaning of Article 148 of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code M29 .

Commencement Information

I13 Reg. 13 in force at 14.12.2019, see reg. 1(1)

Marginal Citations

M28 OJ L 313, 12.10.2004, p.16.

M29 OJ L 269, 10.10.2013, p.1, as last amended by Regulation (EU) 2019/632 of the European Parliament and of the Council (OJ L 111, 25.4.2019, p.54).

PART 4 S Official activities to prevent the establishment or spread of plant pests

Introduction S

14.—(1) This Part applies if a plant health inspector suspects that a controlled plant pest or prohibited material is present or likely to be present, or becomes aware that a controlled plant pest or prohibited material is present, on any premises in Scotland.

(2) In this Part—

“premises” includes any place, including land, building, vehicle, vessel, aircraft, hovercraft, freight container, railway wagon, trailer or movable building or structure,

“prohibited material” means—

(a)

a plant, plant product or other object which is carrying or is infested by or infected with a controlled plant pest or which may be carrying or may be infested by or infected with a controlled plant pest,

(b)

a plant, plant product or other object the entry of which into the Union territory or Scotland is prohibited under an EU plant health rule,

(c)

a plant, plant product or other object the movement of which within the Union territory, or into, within or from Scotland is prohibited under an EU plant health rule.

Commencement Information

I14 Reg. 14 in force at 14.12.2019, see reg. 1(1)

Notices in relation to controlled plant pests or prohibited material S

15.—(1) A plant health inspector may serve a notice on the appropriate person—

(a) requiring the appropriate person to treat, destroy or otherwise dispose of the controlled plant pest or prohibited material,

(b) prohibiting for the period specified in the notice—

(i) the removal of any controlled plant pest or prohibited material from the premises, or

(ii) any activity which the inspector considers necessary to prohibit in order to prevent the establishment or spread of a controlled plant pest,

(c) requiring the removal of any controlled plant pest or prohibited material from the premises, or

(d) requiring the taking of any other steps, as specified in the notice, which the inspector considers necessary to eradicate the controlled plant pest or prevent its establishment or spread.

(2) If a plant health inspector has reasonable grounds for believing that it is necessary for the purpose of preventing the spread of, or ensuring the eradication of, any controlled plant pest from any premises, the inspector may serve a notice on the occupier imposing any prohibition or requiring any reasonable step to be taken for that purpose.

(3) In paragraph (1), “appropriate person” means—

(a) in the case of premises used by a professional operator, the professional operator,

(b) in the case of any other premises—

(i) the occupier or any other person in charge of the premises,

(ii) any other person who is charge of the controlled plant pest or the prohibited material at those premises.

Commencement Information

I15 Reg. 15 in force at 14.12.2019, see reg. 1(1)

Action which may be taken by a plant health inspector S

16.—(1) A plant health inspector may, on giving reasonable notice, enter any premises and any adjacent premises for the purpose of taking steps to—

(a) eradicate, destroy or otherwise deal with any controlled plant pest,

(b) prevent the spread of any controlled plant pest,

(c) destroy, treat or otherwise deal with any infected material.

(2) A plant health inspector must, if requested to do so, produce evidence of the inspector's authority before entering any premises for the purposes specified in paragraph (1).

(3) Paragraph (1) does not apply to any premises which are used wholly or mainly as a private dwelling unless 24 hours' notice has been given to the occupier.

(4) A plant health inspector may be accompanied by such other persons (including representatives of the European Commission) and may bring onto the premises such equipment and vehicles as the inspector considers necessary.

(5) A person accompanying a plant health inspector under paragraph (4) may—

(a) remain on the premises and from time to time re-enter the premises without a plant health inspector,

(b) bring onto the premises any equipment or vehicles that the person considers necessary,

(c) carry out work on the premises in a manner directed by a plant health inspector.

(6) In paragraph (1)(c), “infected material” means—

(a) a plant, plant product or other object which is carrying, or is infested by or infected with, a controlled plant pest or may be carrying or infected with a controlled plant pest,

(b) a plant, plant product or other object which is not carrying or is not infested by or infected with, a controlled plant pest but the presence or existence of which may, in the opinion of a plant health inspector, cause a controlled plant pest to spread or be spread.

Commencement Information

I16 Reg. 16 in force at 14.12.2019, see reg. 1(1)

Establishment of demarcated areas and measures to be taken in those areas S

17.—(1) This regulation applies where the Scottish Ministers have officially confirmed the presence of a controlled plant pest which is not known to be present in Scotland or the presence of a controlled plant pest in an area of Scotland where it was not previously present.

(2) The Scottish Ministers may by notice—

(a) demarcate an area in relation to the presence of the controlled plant pest for the purpose of eradicating or containing the plant pest,

(b) specify the prohibitions or restrictions which are to apply to the demarcated area for that purpose.

(3) A notice under paragraph (2)—

(a) must be in writing,

(b) must describe the extent of the demarcated area,

(c) must specify the date on which any such prohibitions or restrictions are to commence,

(d) must be published in a manner appropriate to bring it to the attention of the public,

(e) may be amended or revoked, in whole or in part, by further notice.

Commencement Information

I17 Reg. 17 in force at 14.12.2019, see reg. 1(1)

PART 5 S Temporary national measures

Temporary national measures S

18.  Schedule 1 has effect and makes provision for additional temporary measures to prevent the introduction of certain controlled plant pests into Scotland, or their establishment in, or spread within, Scotland.

Commencement Information

I18 Reg. 18 in force at 14.12.2019, see reg. 1(1)

PART 6 S Registration, authorisations and certificates

Applications for registration S

19.  An application for registration pursuant to Article 66(1) of the EU Plant Health Regulation which is to be submitted to the Scottish Ministers must be submitted in the manner and form required by the Scottish Ministers.

Commencement Information

I19 Reg. 19 in force at 14.12.2019, see reg. 1(1)

Other applications S

20.—(1) The following applications must be made to the Scottish Ministers in the manner and form required by the Scottish Ministers—

(a) an application for a temporary authorisation to permit a relevant activity for official testing, scientific or educational purposes, trials, varietal selection or breeding,

(b) an application for an authorisation referred to in Article 64(2) of the EU Plant Health Regulation,

(c) an application for an authorisation referred to in Article 89(1) of the EU Plant Health Regulation,

(d) an application for an authorisation referred to in Article 98(1) of the EU Plant Health Regulation,

(e) an application for the issue of a phytosanitary certificate for export, a phytosanitary certificate for re-export or a pre-export certificate.

(2) In this regulation—

“relevant activity” means an activity which would otherwise be prohibited under the EU Plant Health Regulation or any other EU plant health rule involving—

(a)

the introduction of a plant pest or a plant, plant product or other object into Scotland,

(b)

the movement of a plant pest or a plant, plant product or other object within Scotland,

(c)

the holding of a controlled plant pest or a plant, plant product or other object at premises in Scotland,

(d)

the multiplication of a plant pest at premises in Scotland.

Commencement Information

I20 Reg. 20 in force at 14.12.2019, see reg. 1(1)

Authorisations for other purposes S

21.—(1) This regulation applies to any derogation from provisions of the EU Plant Health Regulation which is set out in the EU Plant Health Regulation, in an implementing or delegated act adopted by the European Commission under the EU Plant Health Regulation or the Official Controls Regulation or in any decision within the meaning of Article 288 of the Treaty on the Functioning of the European Union which continues to apply for the purposes of the EU Plant Health Regulation on or after the commencement date which allows member States to authorise an activity which would otherwise be prohibited by or under the EU Plant Health Regulation.

(2) The Scottish Ministers may grant an authorisation to permit the carrying out of the activity in the manner specified in the relevant derogation.

(3) An application for any such authorisation must be made to the Scottish Ministers in the manner and form required by the Scottish Ministers.

Commencement Information

I21 Reg. 21 in force at 14.12.2019, see reg. 1(1)

Authorisations granted by the Scottish Ministers S

22.  An authorisation granted by the Scottish Ministers for the purposes of the EU Plant Health Regulation or these Regulations must be in writing and may be granted—

(a) subject to conditions,

(b) for an indefinite period or a specified period.

(2) An authorisation granted by the Scottish Ministers may be modified, suspended or revoked at any time by the Scottish Ministers by notice in writing.

Commencement Information

I22 Reg. 22 in force at 14.12.2019, see reg. 1(1)

PART 7 S Measures relating to certain solanaceous species

Specific measures relating to certain solanaceous species S

23.  Schedule 2 has effect and makes provision for specific measures relating to certain solanaceous species.

Commencement Information

I23 Reg. 23 in force at 14.12.2019, see reg. 1(1)

PART 8 S Notification requirements

Notification requirements in relation to seed potatoes S

24.—(1) A professional operator who is bringing any of the following potatoes into Scotland must, at least two days before the expected date of their arrival in Scotland, provide written notification to a plant health inspector of the matters referred to in paragraph (2)—

(a) seed potatoes grown outside Scotland, or

(b) potatoes, other than seed potatoes, grown or suspected to have been grown in Poland, Portugal, Romania or Spain.

(2) The matters are—

(a) the proposed time, date and means of landing,

(b) the proposed place of landing,

(c) their proposed destination and use,

(d) their variety and quantity, and

(e) the identification number of the producer of the potatoes or the reference number of the lot.

(3) In paragraph (1)(b), “Spain” has the meaning given in paragraph 3 of schedule 1.

Commencement Information

I24 Reg. 24 in force at 14.12.2019, see reg. 1(1)

Notification requirements in relation to citrus fruits S

25.—(1) A professional operator who is introducing notifiable citrus fruits into the Union territory through a border control post in another part of the Union territory must, before their arrival at that border control post, provide written notification to the Scottish Ministers at the specified address of the matters referred to in paragraph (2).

(2) The matters are—

(a) the expected date of their introduction into the European Union,

(b) the name of the border control post,

(c) their volume,

(d) the identification numbers of their containers,

(e) the names, addresses and the locations of the premises in Scotland at which they are to be processed.

(3) In paragraph (1)—

“notifiable citrus fruits” means fruits of Citrus L., Fortunella Swingle, Poncirus Raf., Microcitrus Swingle, Naringi Adans., or Swinglea Merr., originating in a third country, which are to be industrially processed into juice in Scotland,

“specified address” means the address given by the Scottish Ministers from time to time for the purposes of this regulation.

Commencement Information

I25 Reg. 25 in force at 14.12.2019, see reg. 1(1)

Notification requirements in relation to other plants and plant products S

26.—(1) A professional operator who is bringing any of the following plants or plant products into Scotland must, before or no later than five days after the date of their arrival in Scotland, provide written notification to a plant health inspector of the matters referred to in paragraph (2)—

(a) plants of Castanea Mill., Fraxinus L., Olea europaea L., Pinus L., Platanus L., Prunus L., Quercus L. or Ulmus L. intended for planting, which have been grown or are suspected of having been grown in another member State,

(b) plants of Castanea Mill., Fraxinus L., Olea europaea L., Pinus L., Platanus L., Prunus L., Quercus L. or Ulmus L. intended for planting, which have been grown or are suspected of having been grown in Switzerland and to which Article 47(1) of the Official Controls Regulation does not apply,

(c) solid fuel wood from another member State.

(2) The matters are—

(a) the expected date of the arrival of the consignment or, if the consignment has arrived in Scotland, the date on which it first arrived in Scotland,

(b) the intended destination of the consignment, or if the consignment has arrived at its intended destination in Scotland, its current location,

(c) the genus, species and quantity of the plants or wood in the consignment,

(d) the country from which the plants or wood have been consigned,

(e) in the case of plants intended for planting, the identification number of the supplier of the plants,

(f) in the case of solid fuel wood—

(i) the address of the consignor,

(ii) details of any phytosanitary treatments applied to the wood.

(3) In this regulation “solid fuel wood” means fuel wood in the form of logs, billets, twigs, faggots or other similar forms.

Commencement Information

I26 Reg. 26 in force at 14.12.2019, see reg. 1(1)

Notification requirements in relation to Tomato brown rugose fruit virus and Rose Rosette virus S

27.—(1) This regulation applies to the following plant pests—

(a) Tomato brown rugose fruit virus,

(b) Rose Rosette virus.

(2) Article 9(3) of the EU Plant Health Regulation applies to the plant pests referred to in paragraph (1), but as if the references to Union quarantine pest were references to each of those plant pests.

Commencement Information

I27 Reg. 27 in force at 14.12.2019, see reg. 1(1)

PART 9 S General powers of inspectors and enforcement

Interpretation S

28.  In this Part, “ premises” includes any place, including land, building, vehicle, vessel, aircraft, hovercraft, freight container, railway wagon, trailer or movable building or structure.

Commencement Information

I28 Reg. 28 in force at 14.12.2019, see reg. 1(1)

Powers of entry S

29.—(1) A plant health inspector may enter any premises at a reasonable time for the purpose of—

(a) performing official controls to verify—

(i) that an operator is complying with the Official Controls Regulation, the EU Plant Health Regulation and these Regulations,

(ii) that any plants, plant products or other objects which are subject to an EU plant health rule or to the requirements in schedule 1 comply with the rule or those requirements,

(b) carrying out other official activities which are to be performed by the Scottish Ministers pursuant to the Official Controls Regulation, the EU Plant Health Regulation or these Regulations,

(c) enforcing the Official Controls Regulation, the EU Plant Health Regulation or these Regulations,

(d) verifying information supplied by a person in connection with an application for registration or for an authorisation or permit granted, or to be granted, under these Regulations,

(e) ascertaining whether a condition of an authorisation or permit granted by the Scottish Ministers for the purpose of the EU Plant Health Regulation or the Official Controls Regulation is being or has been complied with.

(2) A plant health inspector must, if requested to do so, produce evidence of the inspector's authority before entering any premises for the purposes specified in paragraph (1).

(3) Paragraph (1) does not apply to any premises which are used wholly or mainly as a private dwelling unless 24 hours' notice has been given to the occupier.

(4) A plant health inspector who enters premises for a purpose specified in paragraph (1) or under a warrant issued by a sheriff, a summary sheriff or a justice of the peace may—

(a) examine, photograph or mark any part of the premises, any object on the premises or anything that is attached to or otherwise forms part of the premises,

(b) in the case of premises being used to manufacture wood packaging material, examine or test any treatment facility, machinery, tools or other equipment used for the manufacture of wood packaging material or observe and monitor the manufacture of wood packaging material,

(c) take samples of or from any plant pest or any plant, plant product or other object or any container, package or item which has been or may have been in contact with a plant pest or plant, plant product or other object,

(d) open any container or package or require the owner or person in charge of any container or package to open the container or package,

(e) inspect or make copies of any documents or records (in whatever form they may be held) relating to the production of, or any activities relating to, any plant, plant product or other object.

(5) A plant health inspector may destroy or otherwise dispose of any sample taken under this regulation when the sample is no longer required.

(6) A plant health inspector may be accompanied by such other persons (including representatives of the European Commission) and may bring onto the premises such equipment and vehicles as the inspector considers necessary.

(7) A person accompanying a plant health inspector under paragraph (6) may—

(a) remain on the premises and from time to time re-enter the premises without a plant health inspector,

(b) bring onto the premises any equipment or vehicles that the person considers necessary,

(c) carry out work on the premises in a manner directed by a plant health inspector.

Commencement Information

I29 Reg. 29 in force at 14.12.2019, see reg. 1(1)

Right of entry conferred by a warrant issued by a sheriff, a summary sheriff or a justice of the peace S

30.—(1) A sheriff, a summary sheriff or a justice of the peace may by signed warrant permit a plant health inspector to enter premises under regulation 16 or 29 if necessary by reasonable force, if the sheriff, the summary sheriff or the justice of the peace, on sworn information in writing, is satisfied that—

(a) there are reasonable grounds to enter those premises, and

(b) any of the conditions in paragraph (2) are met.

(2) The conditions are that—

(a) entry to the premises has been, or is likely to be, refused and notice of the intention to apply for a warrant has been given to the occupier,

(b) asking for admission to the premises, or giving notice of the intention to apply for a warrant, would defeat the object of the entry,

(c) entry is required urgently,

(d) the premises are unoccupied or the occupier is temporarily absent.

(3) A warrant is valid for one month.

(4) A plant health inspector who enters any unoccupied premises must leave them as effectively secured against unauthorised entry as they were before entry.

Commencement Information

I30 Reg. 30 in force at 14.12.2019, see reg. 1(1)

Information notices S

31.—(1) A plant health inspector or any other officer of the Scottish Ministers may by notice in writing require an appropriate person to give to the inspector or officer, within the time specified in the notice, any information which the person may possess as to—

(a) the plants grown or products stored at any time on the premises specified in the notice,

(b) any plant pest or plant, plant product or other object referred to in paragraph (4)(b),

(c) the persons who have had, or are likely to have had, any plant pest or plant, plant product or other object referred to in paragraph (4)(b) in their possession or under their charge.

(2) The time within which the information is required to be given to the plant health inspector or other officer must be reasonable.

(3) An appropriate person must produce for examination by the plant health inspector or other officer any authorisation, official statement, certificate, plant passport, record, invoice or other document relating to a plant pest or any plant, plant product or other object specified in the notice.

(4) In this regulation, “appropriate person” means—

(a) in relation to any premises to be specified in a notice under paragraph (1), a person who is the owner, occupier or other person in charge of the premises,

(b) a person who has, has had, or is reasonably suspected by the plant health inspector or officer to have or have had, possession or charge of—

(i) a controlled plant pest,

(ii) any plant, plant product or other object which was carrying a controlled plant pest or which was infested by or infected with a controlled plant pest,

(iii) any plant, plant product or other object which the inspector or officer knows or suspects to have been imported into or exported from Scotland,

(c) a person who, as auctioneer, salesman or otherwise, has sold, offered for sale or otherwise disposed of a controlled plant pest.

Commencement Information

I31 Reg. 31 in force at 14.12.2019, see reg. 1(1)

Failure to comply with a notice S

32.—(1) If a person fails to comply with a notice served on that person under these Regulations, a plant health inspector may enter any affected premises at all reasonable times to take or cause to be taken any steps that the plant health inspector considers necessary to ensure compliance with the notice or to remedy the consequences of the failure to carry them out.

(2) A plant health inspector acting under paragraph (1) must, if requested to do so, show evidence of the inspector's authority to act.

(3) Paragraph (1) does not apply to any premises which are used wholly or mainly as a private dwelling unless 24 hours' notice has been given to the occupier.

(4) Paragraph (1) does not affect any right of entry conferred by a warrant issued by a sheriff, a summary sheriff or a justice of the peace.

(5) A plant health inspector may be accompanied by such other persons (including representatives of the European Commission) and bring onto the premises such equipment and vehicles as the inspector considers necessary.

(6) A person accompanying a plant health inspector under paragraph (5) may—

(a) remain on the premises and from time to time re-enter the premises without a plant health inspector,

(b) bring onto the premises any equipment or vehicles that the person considers necessary,

(c) carry out work on the premises in a manner directed by a plant health inspector.

Commencement Information

I32 Reg. 32 in force at 14.12.2019, see reg. 1(1)

Disclosure of information held by Revenue and Customs S

33.—(1) The Commissioners for Her Majesty's Revenue and Customs may disclose any information in their possession to the Scottish Ministers for the purposes of enabling or assisting the Scottish Ministers to carry out any function conferred on them under or by virtue of the EU Plant Health Regulation, the Official Controls Regulation or these Regulations.

(2) Nothing in paragraph (1) affects any other power or requirement of the Commissioners to disclose information.

Commencement Information

I33 Reg. 33 in force at 14.12.2019, see reg. 1(1)

PART 10 S General and supplemental provisions relating to notices

Interpretation S

34.  In this Part, “ premises” includes any place, including land, building, vehicle, vessel, aircraft, hovercraft, freight container, railway wagon, trailer or movable building or structure.

Commencement Information

I34 Reg. 34 in force at 14.12.2019, see reg. 1(1)

Miscellaneous provisions as to notices S

35.—(1) This regulation applies to any notice given by a plant health inspector under these Regulations.

(2) The notice may—

(a) specify—

(i) one or more requirements or alternative requirements,

(ii) the manner in which and the period in which any requirement or condition specified in the notice must be carried out or fulfilled,

(b) require the owner or any other person who appears to be in charge of the premises to which the notice relates to—

(i) notify the Scottish Ministers of any change in occupation of the premises, the date of the change and the name of the new occupier, and

(ii) inform the new occupier of the premises of the contents of the notice.

(3) Any destruction, disposal, re-export or treatment of a plant, plant product or other object or a plant pest which is required to be carried out under the notice must be carried out, or arranged to be carried out, to the satisfaction of a plant health inspector by the person on whom the notice has been served from or at the place specified in the notice.

(4) A plant health inspector may amend or withdraw the notice by a further notice.

(5) The notice may define by reference to a map or plan or otherwise the extent of the premises referred to in the notice.

Commencement Information

I35 Reg. 35 in force at 14.12.2019, see reg. 1(1)

Service of notices S

36.—(1) A notice may be served on a registered operator by—

(a) delivering it personally,

(b) leaving it at, or sending it by post to, the contact address of the registered operator,

(c) sending it to the email address that the operator has given to the Scottish Ministers for the service of notices.

(2) A notice may be served on any other person by—

(a) delivering it personally,

(b) leaving it at, or sending it by post to, the person's last known place of abode or business, or

(c) sending it to any email address that the person has given to the Scottish Ministers for the service of notices.

(3) If a notice is to be given by a plant health inspector to an occupier or other person in charge of premises and the last known place of abode or address of that person cannot be ascertained after reasonable enquiry, the notice may be served on that person by addressing it to “the occupier” and leaving it conspicuously affixed to an object on the premises for a period of seven days.

(4) A notice may—

(a) in the case of a body corporate (other than a limited liability partnership), be served on the secretary or clerk of that body at the address of the registered or principal office of that body,

(b) in the case of a partnership (other than a limited liability partnership), be served on a partner or a person having the control or management of the partnership business at the address of the principal office of the partnership,

(c) in the case of a limited liability partnership, be served on a member of the partnership at the address of the registered or principal office of the partnership.

(5) For the purposes of paragraph (4), the principal office of a company registered outside the United Kingdom or a partnership carrying on business outside the United Kingdom is its principal office within the United Kingdom.

(6) In this regulation—

“notice” means a notice to be given by a plant health inspector under these Regulations,

“contact address”, in relation to a registered operator, means—

(a)

the address of the operator's principal place of business in the United Kingdom, or

(b)

any other postal address in Scotland that the operator has given to the Scottish Ministers as a contact address for the service of notices.

Commencement Information

I36 Reg. 36 in force at 14.12.2019, see reg. 1(1)

PART 11 S Offences

General S

37.—(1) A person commits an offence if the person contravenes or fails to comply with—

(a) paragraphs 2 or 4 of schedule 1,

(b) paragraphs 2(1), (2), (3) or (4) or 4(1) of schedule 2,

(c) regulations 24(1), 25(1) or 26(1),

(d) regulation 27(2),

(e) a provision of the EU Plant Health Regulation specified in Part 1 of schedule 3,

(f) a provision of the Official Controls Regulation specified in Part 2 of schedule 3 in so far as it applies to plants, plant products or other objects which are subject to an EU plant health rule,

(g) a provision in other EU legislation specified in Part 3 of schedule 3,

(h) a provision of an EU instrument specified in schedule 4.

(2) But paragraph (1) does not apply to anything done under, or in accordance with—

(a) an authorisation or permit which is granted under these Regulations or has effect under or by virtue of these Regulations,

(b) an approval granted under regulation 13(6) or an approval referred to in regulation 53(1),

(c) a notice which is given by a plant health inspector or the Scottish Ministers under these Regulations, or has effect under or by virtue of these Regulations.

Commencement Information

I37 Reg. 37 in force at 14.12.2019, see reg. 1(1)

Failure to comply with requirements of notices etc. S

38.  A person commits an offence if the person fails to comply with—

(a) a provision or condition of a notice which has been served on the person under these Regulations or has effect under or by virtue of these Regulations,

(b) a provision or condition of an authorisation or permit which has been granted to the person under these Regulations or has effect under or by virtue of these Regulations,

(c) a provision or condition of a direction given under these Regulations.

Commencement Information

I38 Reg. 38 in force at 14.12.2019, see reg. 1(1)

Defence: reasonable excuse for failure to comply with requirements of notices etc. S

39.  It is a defence for a person charged with an offence under regulation 37 or 38 to show that the person had a reasonable excuse for contravening or failing to comply with the prohibition or requirement in question.

Commencement Information

I39 Reg. 39 in force at 14.12.2019, see reg. 1(1)

Provision of false or misleading information S

40.—(1) A person commits an offence if, for the purposes of obtaining an authorisation or a permit or procuring the issue of a plant passport or certificate, the person—

(a) knowingly or recklessly makes a statement or representation which is false in a material particular,

(b) knowingly or recklessly furnishes a document or information which is false in a material particular,

(c) intentionally fails to disclose any material information.

(2) In this regulation “certificate” means a certificate referred to in Articles 100, 101 and 102 of the EU Plant Health Regulation.

Commencement Information

I40 Reg. 40 in force at 14.12.2019, see reg. 1(1)

Improper use of plant passports or certificates S

41.—(1) A person commits an offence if the person—

(a) dishonestly issues a plant passport or a certificate,

(b) dishonestly alters a plant passport or a certificate,

(c) dishonestly re-uses a plant passport or a certificate.

(2) In this regulation, “certificate” has the same meaning as in regulation 40.

Commencement Information

I41 Reg. 41 in force at 14.12.2019, see reg. 1(1)

Obstruction etc. S

42.—(1) A person commits an offence if the person—

(a) intentionally obstructs a plant health inspector or an authorised person acting in the execution or enforcement of the EU Plant Health Regulation, the Official Controls Regulation or these Regulations,

(b) fails to give to a plant health inspector or an authorised person acting in the execution or enforcement of the EU Plant Health Regulation, the Official Controls Regulation or these Regulations any assistance or information which the inspector or authorised person may reasonably require for those purposes,

(c) fails to produce a document or record when required to do so by a plant health inspector or authorised person acting in the execution or enforcement of the EU Plant Health Regulation, the Official Controls Regulation or these Regulations.

(2) In paragraph (1), “authorised person” means a person authorised by the Scottish Ministers.

Commencement Information

I42 Reg. 42 in force at 14.12.2019, see reg. 1(1)

Defence: reasonable excuse for obstruction etc. S

43.  It is a defence for a person charged with an offence under regulation 42 to show that the person had a reasonable excuse for the obstruction or failure in question.

Commencement Information

I43 Reg. 43 in force at 14.12.2019, see reg. 1(1)

Offence relating to the disclosure of information held by Revenue and Customs S

44.  A person commits an offence if the person discloses any information received from the Commissioners for Her Majesty's Revenue and Customs under regulation 33(1) and—

(a) the information relates to a person whose identity is specified in the disclosure or can be deduced from the disclosure,

(b) the disclosure is for a purpose other than specified in regulation 33(1), and

(c) the Commissioners have not given their prior consent to the disclosure.

Commencement Information

I44 Reg. 44 in force at 14.12.2019, see reg. 1(1)

Defence: lawful disclosure of information held by Revenue and Customs S

45.  It is a defence for a person charged with an offence under regulation 44 to prove that the person reasonably believed that—

(a) the disclosure was lawful, or

(b) the information had previously been made available lawfully.

Commencement Information

I45 Reg. 45 in force at 14.12.2019, see reg. 1(1)

Offences by bodies corporate, etc. S

46.—(1) Where—

(a) an offence under these Regulations has been committed by a body corporate or a Scottish partnership or other unincorporated association, and

(b) it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of—

(i) a relevant individual, or

(ii) an individual purporting to act in the capacity of a relevant individual,

the individual as well as the body corporate, Scottish partnership or unincorporated association commits the offence and is liable to be proceeded against and punished accordingly.

(2) In paragraph (1), “relevant individual” means—

(a) in relation to a body corporate—

(i) a director, manager, secretary or other similar officer of the body,

(ii) where the affairs of the body are managed by its members, a member,

(b) in relation to a Scottish partnership, a partner, or

(c) in relation to an unincorporated association other than a Scottish partnership, a person who is concerned in the management or control of the association.

Commencement Information

I46 Reg. 46 in force at 14.12.2019, see reg. 1(1)

Penalties S

47.—(1) A person guilty of an offence under regulation 37(1), 38, 40(1), 41(1) or 42(1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(2) A person guilty of an offence under regulation 44 is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 3 months or a fine not exceeding the statutory maximum (or both),

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both).

Commencement Information

I47 Reg. 47 in force at 14.12.2019, see reg. 1(1)

PART 12 S Miscellaneous

Minor and consequential amendments S

48.  Schedule 5 has effect and makes provision for minor and consequential amendments to secondary legislation.

Commencement Information

I48 Reg. 48 in force at 14.12.2019, see reg. 1(1)

Revocation S

49.  The instruments listed in column 1 of the table in schedule 6 are revoked to the extent specified in the corresponding entry in column 3 of that schedule.

Commencement Information

I49 Reg. 49 in force at 14.12.2019, see reg. 1(1)

Transitional provisions: licences under article 39(1) of the Forestry Order or article 41(1) of the 2005 Order S

50.—(1) Any licence granted by the Forestry Commissioners or by the Scottish Ministers under article 39(1) of the Forestry Order or by the Scottish Ministers under article 41(1) of the 2005 Order, which is in force immediately before the commencement date, has effect during the relevant period as if it had been an authorisation granted by the Scottish Ministers in accordance with Article 5 of Commission Delegated Regulation (EU) 2019/829 on the date on which it was granted under the Forestry Order or the 2005 Order.

(2) Nothing in paragraph (1) affects anything carried out prior to the commencement date under, or for the purposes of, the licence.

(3) Any reference in the licence to the Forestry Order, the 2005 Order, Council Directive 2000/29/EC or Commission Directive 2008/61/EC is to be read as a reference to the corresponding provision in or under the EU Plant Health Regulation or these Regulations.

(4) In this regulation—

“Commission Delegated Regulation (EU) 2019/829” means Commission Delegated Regulation (EU) supplementing Regulation (EU) 2016/2031 of the European Parliament and of the Council on protective measures against pests of plants, authorising Member States to provide for temporary derogations in view of official testing, scientific or educational purposes, trials, varietal selections, or breeding M30 ,

“Council Directive 2000/29/EC” means Council Directive 2000/29/EC on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community M31 ,

“Commission Directive 2008/61/EC” means Commission Directive 2008/61/EC establishing the conditions under which certain harmful organisms, plants, plant products and other objects listed in Annexes 1 to 5 to Council Directive 2000/29/EC may be introduced into or moved within the Community or certain protected zones thereof, for trial or scientific purposes and for work on varietal selections M32 ,

“relevant period”, in relation to a licence, means—

(a)

if the licence expires on or after 31 December 2020, the period beginning on the commencement date and ending on 31 December 2020, or

(b)

if the licence expires before 31 December 2020, the period beginning with the commencement date and ending on the date of expiry of the licence specified in the licence.

Commencement Information

I50 Reg. 50 in force at 14.12.2019, see reg. 1(1)

Marginal Citations

M30 OJ L 137, 23.5.2019, p.15.

M31 OJ L 169, 10.7.2000, p.1, as last amended by Commission Implementing Directive (EU) 2019/523 (OJ L 86, 28.3.2019, p.41). Council Directive 2000/29/EC is partially repealed by Regulation (EU) 2016/2031 (OJ L 317, 23.11.2016, p.4) with effect from 14 December 2019.

M32 OJ L 158, 18.6.2008, p.41, repealed by Commission Delegated Regulation (EU) 2019/829 (OJ L 137, 23.5.2019, p.15) with effect from 14 December 2019.

Transitional provisions: other licences under the Forestry Order or the 2005 Order S

51.—(1) Any licence granted by the Forestry Commissioners or by the Scottish Ministers under article 38(1)(a) of the Forestry Order or by the Scottish Ministers under article 40(a) of the 2005 Order and which has effect on the commencement date remains in force as if it had been an authorisation granted by the Scottish Ministers under regulation 21(2) on the date on which the licence was granted under the Forestry Order or the 2005 Order.

(2) Nothing in paragraph (1) affects anything carried out before the commencement date under, or for the purposes of, the licence.

(3) Any reference in the licence to the Forestry Order, the 2005 Order or Council Directive 2000/29/EC is to be read as a reference to the corresponding provision in or under the EU Plant Health Regulation or these Regulations.

(4) In paragraph (3), “Council Directive 2000/29/EC” has the same meaning as in regulation 50.

Commencement Information

I51 Reg. 51 in force at 14.12.2019, see reg. 1(1)

Transitional provisions: notices S

52.—(1) Any notice given under the Forestry Order, the Plant Health (Wood Packaging Material Marking) (Forestry) Order 2006 M33 or the 2005 Order and which has effect on the commencement date—

(a) remains in force and continues to have effect as if it were given under these Regulations for an equivalent purpose on the date on which it was given under the Forestry Order or the 2005 Order, and

(b) is to be read with such modifications as are necessary for it to do so.

(2) In paragraph (1), the reference to any notice under the Forestry Order or the 2005 Order includes any official approval given for the purposes of the notice.

Commencement Information

I52 Reg. 52 in force at 14.12.2019, see reg. 1(1)

Marginal Citations

M33 S.I. 2006/2695, amended by S.I. 2013/755 (W. 90) and S.I. 2019/734.

Transitional provisions: approvals granted under article 17(1) of the Forestry Order or article 17(1) of the 2005 Order S

53.—(1) Any approval granted by the Forestry Commissioners or by the Scottish Ministers under article 17(1) of the Forestry Order or by the Scottish Ministers under article 17(1) of the 2005 Order, which is in force immediately before the commencement date, remains in force and continues to have effect during the relevant period.

(2) In paragraph (1), “relevant period”, in relation to an approval granted under article 17(1) of the Forestry Order or the 2005 Order, means—

(a) if the approval expires on or after 13 December 2020, the period beginning on the commencement date and ending on 13 December 2020, or

(b) if the approval expires before 13 December 2020, the period beginning on the commencement date and ending on the date of expiry of the approval specified in the approval.

Commencement Information

I53 Reg. 53 in force at 14.12.2019, see reg. 1(1)

FERGUS EWING

A member of the Scottish Government

St Andrew's House,

Edinburgh