The Plant Health (Official Controls and Miscellaneous Provisions) (Miscellaneous Amendments) (Scotland) Regulations 2020

Amendment of schedule 1

20.—(1) Schedule 1 (temporary national measures) is amended as follows.

(2) In Part 1 (introduction), for paragraph 1(interpretation) substitute—

“1.   In this schedule—

“controlled material” means any plant, plant product or other object of a description specified in paragraph 2(1), 2A(1) or 2B(2),

“in transit”, in relation to a schedule 1 consignment or controlled material, means a schedule 1 consignment or controlled material which—

(a)

is being moved through Scotland under customs supervision on its journey from one third country to another third country, or

(b)

is being moved through Scotland on its journey from one part of the Union territory to another part of the Union territory and has passed or is passing through the territory of a third country during that journey,

“introduce” means introduce into Scotland from a third country or another part of the Union territory, and introduction is to be construed accordingly,

“IPPC” means the International Plant Protection Convention 1951(1),

“ISPM 4” means International Standard for Phytosanitary Measures No. 4 of November 1995 on the requirements for the establishment of pest free areas, prepared by the Secretariat of the IPPC established by the Food and Agriculture Organisation of the United Nations(2),

“phytosanitary certificate” means—

(a)

in the case of any plant, plant product or other object that must be accompanied by a phytosanitary certificate pursuant to Article 72, 73 or 74 of the EU Plant Health Regulation and paragraph 2A or 2B(2) of Part 2, a phytosanitary certificate which complies with the requirements in Article 71(1) and (2) of the EU Plant Health Regulation as modified by paragraph 2B(3) of Part 2 (as the case may be),

(b)

in the case of any other plant, plant product or other object that must be accompanied by a phytosanitary certificate pursuant to paragraph 2B(2) of Part 2 a phytosanitary certificate for export in the form set out in Part A of Annex 5 to the EU Plant Health Regulation, or a phytosanitary certificate for re-export in the form set out in Part B of Annex 5 to that Regulation, which—

(i)

complies with the requirements specified in Article 76(2) of the EU Plant Health Regulation,

(ii)

has been issued by the national plant protection organisation of the country of export or re-export in accordance with the provisions of Article 5(2) of the IPPC,

“schedule 1 consignment” means a consignment which contains controlled material, including any controlled material for non-commercial use,

“transhipment”, in relation to a schedule 1 consignment or controlled material, means its arrival in Scotland by sea or air from a third country, and its movement under customs supervision from the vessel or aircraft of arrival to another vessel or aircraft in the same port or airport in preparation for onward travel, and “transhipped” is to be construed accordingly,

“transit declaration”, in relation to any controlled material, means a signed declaration of the professional operator who is in control of the controlled material stating that the controlled material is in transit or for transhipment. ”.

(3) In Part 2 (plants, plant products or other objects from third countries)—

(a) for the heading to paragraph 2 substitute “Temporary measures in relation to Ceratocystis platani (J.M. Walter) Engelbr. & T.C. Harr”,

(b) for sub-paragraph (2), substitute “sub-paragraph (1) is subject to paragraph 2C(1)”

(c) after paragraph 2 insert—

“Temporary measures in relation to Candidatus Phytoplasma ulmi

2A.— (1) No person may introduce any plants intended for planting, other than seeds, of Ulmus L. which originate in Canada or the USA unless they are accompanied by a phytosanitary certificate which includes an official statement confirming that that no symptoms of Candidatus Phytoplasma ulmi have been observed at the place of production of the plants or in the immediate vicinity of the place of production since the beginning of the last complete cycle of vegetation.

(2) Sub-paragraph (1) is subject to paragraph 2C(1).

Temporary measures in relation to Agrilus planipennis Fairmaire

2B.— (1) This paragraph applies to plants, plant products or other objects described in columns (2) and (3) of Table A1 in so far as they are not subject to the prohibition on the introduction into the Union territory of high-risk plants, plant products or other objects that applies by virtue of Article 42(2) of the EU Plant Health Regulation.

(2) No person may introduce any plants, plant products or other objects described in columns (2) and (3) of Table A1 unless they are accompanied by a phytosanitary certificate which includes an official statement confirming—

(a) the matters set out in the corresponding entry in column (4) of that table, and

(b) in the case of any plants, plant products or other objects which are not subject to Article 72, 73 or 74 of the EU Plant Health Regulation, certifies that the plants, plant products or other objects are free from Union quarantine pests and pests subject to any measures adopted pursuant to Article 30(1) of that Regulation.

(3) None of the requirements specified in points 36 and 87 to 89 of Annex 7 to the Phytosanitary Conditions Regulation are to be treated for the purposes of Articles 41(1) and 71(1)(c) of the EU Plant Health Regulation as applying to the introduction of any plants, plant products or other objects described in columns (2) and (3) of Table A1 where they originate in Canada, China, the Democratic People’s Republic of Korea, Japan, Mongolia, the Republic of Korea, Russia, Taiwan or the USA.

(4) Sub-paragraph (2) is subject to paragraph 2C(1).

Table A1

(1)	(2) Description of plants, plant products or other objects	(3) CN code	(4) Details of official statement
(1) The name of the area(s) must be included in the phytosanitary certificate under the heading “Additional declaration”.
(2) “wood packaging material” means wood in the form of packing cases, boxes, crates, drums or similar packings, pallets, box pallets or other load boards, pallet collars or dunnage, whether or not actually in use in the transport of objects of any kind.
1.	Plants, other than fruit or seeds, of Fraxinus L., Juglans ailantifolia Carr., Juglans mandshurica Maxim., Ulmus davidiana Planch. or Pterocarya rhoifolia Siebold & Zucc., originating in Belarus, Canada, China, the Democratic People’s Republic of Korea, Japan, Kazakhstan, Mongolia, the Republic of Korea, Russia, Taiwan, Ukraine or the USA	ex 0602 10 90 ex 0602 20 20 ex 0602 20 80 ex 0602 90 41 ex 0602 90 45 ex 0602 90 46 ex 0602 90 48 ex 0602 90 50 ex 0602 90 70 ex 0602 90 99 ex 0604 20 90 ex 1404 90 00	The official statement must confirm that the plants originate in an area(1) established by the national plant protection organisation in accordance with ISPM 4 as an area that is free from Agrilus planipennis Fairmaire and that no part of the area lies within 100km of a known outbreak of Agrilus planipennis Fairmaire.
			A phytosanitary certificate may not include any such official statement unless the national plant protection organisation of the country of origin has previously provided the national plant protection organisation of the United Kingdom with written details of the area or areas.
2.	Wood of Fraxinus L., Juglans ailantifolia Carr., Juglans mandshurica Maxim., Ulmus davidiana Planch. or Pterocarya rhoifolia Siebold & Zucc., other than in the form of: —chips, particles, sawdust, shavings, wood waste or scrap, obtained in whole or in part from these trees, or —wood packaging material(2), except dunnage which is supporting the wood in the consignment and which is constructed from wood of the same type and quality as that wood and meets the requirements in column (4), but including wood which has not kept its natural round surface, furniture or other objects made of untreated wood, originating in Belarus, Canada, China, the Democratic People’s Republic of Korea, Japan, Kazakhstan, Mongolia, the Republic of Korea, Russia, Taiwan, Ukraine or the USA	ex 4401 12 00 ex 4403 12 00 ex 4403 99 00 ex 4404 20 00 ex 4406 12 00 ex 4406 92 00 4407 95 10 4407 95 91 4407 95 99 ex 4407 99 27 ex 4407 99 40 ex 4407 99 90 ex 4408 90 15 ex 4408 90 35 ex 4408 90 85 ex 4408 90 95 ex 4416 00 00 ex 9406 10 00	The official statement must confirm:
			(a) that the wood has undergone ionizing irradiation to achieve a minimum absorbed dose of 1kGy throughout the wood, or
			(b) that the wood originates in an area(1) established by the national plant protection organisation in accordance with ISPM 4 as an area that is free from Agrilus planipennis Fairmaire and that no part of the area lies within 100km of a known outbreak of Agrilus planipennis Fairmaire.
			A phytosanitary certificate may not include the official statement referred to in sub-paragraph 2(b) unless the national plant protection organisation of the country of origin has previously provided the national plant protection organisation of the United Kingdom with written details of the area or areas.
3.	Wood in the form of chips, particles, sawdust, shavings, wood waste or scrap obtained in whole or in part from Fraxinus L., Juglans ailantifolia Carr., Juglans mandshurica Maxim., Ulmus davidiana Planch. or Pterocarya rhoifolia Siebold & Zucc., originating in Belarus, Canada, China, the Democratic People’s Republic of Korea, Japan, Kazakhstan, Mongolia, the Republic of Korea, Russia, Taiwan, Ukraine or the USA	ex 4401 22 00 ex 4401 40 10 ex 4401 40 90	The official statement must confirm that the wood originates in an area(1) established by the national plant protection organisation in accordance with ISPM 4 as an area that is free from Agrilus planipennis Fairmaire and that no part of the area lies within 100km of a known outbreak of Agrilus planipennis Fairmaire.
			A phytosanitary certificate may not include any such official statement unless the national plant protection organisation of the country of origin has previously provided the national plant protection organisation of the United Kingdom with written details of the area or areas.
4.	Isolated bark or objects made out of bark of Fraxinus L., Juglans ailantifolia Carr., Juglans mandshurica Maxim., Ulmus davidiana Planch. or Pterocarya rhoifolia Siebold & Zucc., originating in Belarus, Canada, China, the Democratic People’s Republic of Korea, Japan, Kazakhstan, Mongolia, the Republic of Korea, Russia, Taiwan, Ukraine or the USA	ex 1404 90 00 ex 4401 40 90	The official statement must confirm that the bark originates in an area(1) established by the national plant protection organisation in accordance with ISPM 4 as an area that is free from Agrilus planipennis Fairmaire and that no part of the area lies within 100km of a known outbreak of Agrilus planipennis Fairmaire.
			A phytosanitary certificate may not include any such official statement unless the national plant protection organisation of the country of origin has previously provided the national plant protection organisation of the United Kingdom with written details of the area or areas.

Exception for controlled material in transit

2C.— (1) Paragraphs 2(1), 2A(1) and 2B(2) do not apply to the introduction of any controlled material from a third country if the controlled material is in transit when it arrives in Scotland or is transhipped on its arrival in Scotland and the conditions in sub-paragraph (2) are met.

(2) The conditions are that the controlled material is—

(a) accompanied by a transit declaration, and

(b) packed and introduced in such a way that there is no risk of any Union quarantine pests, protected zone quarantine pests or pests subject to the measures adopted pursuant to Article 30(1) of the EU Plant Health Regulation being spread on its introduction.

(3) No person may move any controlled material in transit through Scotland unless it is—

(a) accompanied by a transit declaration, and

(b) packed and transported in such a way that there is no risk of any Union quarantine pests, protected zone quarantine pests or pests subject to the measures adopted pursuant to Article 30(1) of the EU Plant Health Regulation being spread on its movement through Scotland.”.

(4) In Part 3 (plants, plant products or other objects from another part of the Union territory), in paragraph 4—

(a) for “they” substitute “that person is a registered operator and the plants, plant products or other objects”,

(b) in Table 1, after entry 2 insert—

“3.

Plants intended for planting, other than seeds, of Ulmus L., originating in any part of the Union territory, other than the United Kingdom.

The official statement must confirm that no symptoms of Candidatus Phytoplasma ulmi have been observed at the place of production of the plants or in the immediate vicinity of the place of production since the beginning of the last complete cycle of vegetation.”.

(5) After Part 3 insert—

“PART 4 Official controls on consignments from third countries

5.   In this Part—

“border control post” means a border control post in Scotland which has been designated pursuant to Article 59(1) of the Official Controls Regulation for the purposes of the rules referred to in Article 1(2)(g) of that Regulation,

“documentary check”, in relation to a schedule 1 consignment, means an examination of the phytosanitary certificate or transit declaration which is required to accompany the consignment on its introduction from a third country pursuant to Part 2,

“domestic import rule” means any prohibition, restriction or requirement in respect of the introduction of controlled material which applies by virtue of Part 2,

“identity check”, in relation to a schedule 1 consignment, means a visual inspection of the controlled material in the consignment to verify that its contents correspond to the information provided in the phytosanitary certificate or transit declaration accompanying the consignment,

“official controls” means activities performed by the Scottish Ministers or a plant health inspector pursuant to this Part to verify that the controlled material in a schedule 1 consignment complies with the domestic import rules relating to the material and that the operator of the consignment complies with this Part,

“operator”, in relation to a schedule 1 consignment, means the importer of the consignment, or the person acting on behalf of the importer who is in charge of the consignment when presented at the border control post of first arrival in Scotland and makes the necessary declarations to the Scottish Ministers,

“physical check”, in relation to the controlled material in a schedule 1 consignment, means any check on that material, the packaging of the consignment or its means of transport which, in the opinion of a plant health inspector, is necessary to verify that the controlled material complies with the domestic import rules relating to that material,

“plant health entry document” has the meaning given in paragraph 7(1).

(2) Where any controlled material is required to be accompanied by a phytosanitary certificate pursuant to Part 2, any reference in this Part to the controlled material complying with the domestic import rules relating to that material is to be construed as including its compliance with the matters certified in the official statement that has been included in the phytosanitary certificate in respect of the controlled material.

Application of this Part

6.— (1) This Part applies to a schedule 1 consignment which is to be, or is, brought into the Union territory from a third country where its point of first arrival into the Union territory is in Scotland.

(2) But it does not apply to—

(a) any schedule 1 consignment which forms part of the personal luggage of a passenger where the controlled material in the consignment is intended for personal consumption or use and does not include any plants for planting, or

(b) any small schedule 1 consignment addressed to a natural person which is not intended to be placed on the market and does not include any plants for planting.

(3) Where a schedule 1 consignment contains any plant, plant product or other object which is not controlled material, and Article 47(1) of the Official Controls Regulation applies in relation to that plant, plant product or other object, this Part applies only for the purposes of the performance of official controls on the controlled material in the consignment.

Notification and presentation of schedule 1 consignments

7.— (1) A “plant health entry document” is an entry document, in the form required by the Scottish Ministers, to be used—

(a) for the prior notification of the arrival of the schedule 1 consignment at a border control post in Scotland, and

(b) for the purposes of recording the outcome of official controls on the consignment and any decisions taken by a plant health inspector in relation to the consignment under this Part.

(2) The operator who is responsible for a schedule 1 consignment must complete the relevant part of the plant health entry document and submit the completed part of the plant health entry document to the Scottish Ministers—

(a) in the case of a consignment which is to be brought in by air, at least four working hours before its expected arrival in Scotland,

(b) in the case of a consignment which consists in whole or in part of unprocessed logs or sawn or chipped wood and is to be brought into a point of entry which only has a temporary border control post, at least three working days before its expected arrival in Scotland,

(c) in the case of any other consignment, at least one working day before its expected arrival in Scotland.

(3) In the case of a schedule 1 consignment which is intended to be transhipped, the Scottish Ministers may by notice in writing require the operator who is responsible for the consignment to provide it, by the time or date specified in the notice, with the information set out in the notice in relation to the proposed transhipment.

(4) The operator who is responsible for a schedule 1 consignment must arrange for the consignment, together with the phytosanitary certificate or transit declaration accompanying the consignment, to be presented to the Scottish Ministers at the border control post of first arrival.

(5) In sub-paragraph (2)(b), “temporary border control post” means a border control post 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(3).

Consignments not correctly presented for official controls

8.   Where a plant health inspector suspects or is aware that a consignment which has arrived at a border control post in Scotland is a schedule 1 consignment and the operator who is responsible for the consignment has not presented the consignment to the Scottish Ministers in accordance with paragraph 7(4), the plant health inspector must serve a notice on the operator recalling the consignment and placing the consignment under official detention.

Official controls to be performed on schedule 1 consignments

9.— (1) The Scottish Ministers must perform official controls on a schedule 1 consignment at the border control post of arrival.

(2) Any documentary check, identity check or physical check in relation to a schedule 1 consignment must be performed in accordance with this Part by a plant health inspector.

(3) In the case of a schedule 1 consignment which is in transit, a plant health inspector may require the following official controls to be carried out before authorising any onward transit of the consignment—

(a) a documentary check of the transit declaration and an examination of any other official documents accompanying the consignment,

(b) a physical check of the consignment’s packaging and means of transport to verify that there is no risk of any Union quarantine pests, protected zone quarantine pests or pests subject to the measures adopted pursuant to Article 30(1) of the EU Plant Health Regulation being spread whilst in transit through the Union territory.

(4) In the case of a schedule 1 consignment which is being transhipped and remains, or is to remain, at the border control post of arrival for longer than the transhipment period, a plant health inspector may require the following official controls to be carried out—

(a) a documentary check of the transit declaration and an examination of any other official documents accompanying the consignment,

(b) an identity check or plant health check in relation to the consignment.

(5) In the case of any other schedule 1 consignment, a plant health inspector must carry out a documentary check, identity check and a physical check.

(6) Any documentary check, identity check or physical check which is carried out in relation to a schedule 1 consignment must, so far as possible, be carried out by a plant health inspector in the same manner as the inspector would carry out the check if the consignment were a consignment of plants, plant products or other objects referred to in Article 47(1)(c) of the Official Controls Regulation.

(7) Where a plant health inspector suspects that a schedule 1 consignment is likely to be, or has been, brought into Scotland from a third country in contravention of a domestic import rule or that any controlled material in the consignment may not otherwise comply with any of the domestic import rule relating to the controlled material in the consignment, the plant health inspector must serve a notice on the operator who is responsible for the consignment—

(a) placing the consignment under official detention, and

(b) prohibiting the entry of the consignment into Scotland,

pending the outcome of any additional official controls on the consignment which the inspector considers are necessary to confirm or to eliminate that suspicion.

(8) In this paragraph, “transhipment period” means—

(a) in relation to an airport, three days or more,

(b) in relation to any other port, 30 days or more.

Completion of official controls

10.   Following the completion of official controls on a schedule 1 consignment, a plant health inspector must—

(a) decide whether the controlled material in the consignment complies with the domestic import rules relating to that material and, where relevant, indicate the applicable customs procedure for the consignment,

(b) finalise the plant health entry document for that consignment, and

(c) where the finalised plant health entry document authorises the placing and handling of the consignment under a relevant customs procedure and the consignment was accompanied by a phytosanitary certificate, provide the operator who is responsible for the consignment with an authenticated copy of the phytosanitary certificate or, if the consignment is to be split, with authenticated copies of the phytosanitary certificate for each part of the split consignment.

Removal of schedule 1 consignments from border control posts of arrival

11.— (1) No person may remove a schedule 1 consignment from its border control post of arrival or split the consignment unless—

(a) the finalised plant health entry document for that consignment authorises the placing and handling of the consignment under a relevant customs procedure and, following the presentation of the finalised plant health entry document to HMRC, HMRC has authorised the placing of the consignment under a customs procedure, or

(b) a plant health inspector has served a notice on the person pursuant to paragraph 12 or 13 authorising its removal from that border control post.

(2) Where a customs declaration is made for a schedule 1 consignment and the finalised plant health entry document for that consignment is not presented to HMRC, HMRC are to notify the Scottish Ministers.

(3) Where a schedule 1 consignment is permitted to leave its border control post pursuant to sub-paragraph (1), a plant health inspector may by notice in writing specify which documents (if any) must accompany the consignment to its place of destination.

(4) In this paragraph, “HMRC” means Her Majesty’s Revenue and Customs.

Measures to be taken on non-compliant schedule 1 consignments

12.— (1) Where a plant health inspector is of the opinion that a schedule 1 consignment has been brought into Scotland in contravention of a domestic import rule or that it does not otherwise comply a domestic import rule relating to the controlled material in the consignment, the plant health inspector must—

(a) place the consignment under official detention and refuse its entry into Scotland,

(b) where it is not necessary to take action immediately to respond to the risk to plant health posed by the consignment, consult the operator who is responsible for the consignment in relation to the measures to be taken to deal with the non-compliance, and

(c) without delay, serve a notice on the operator who is responsible for the consignment ordering the operator to—

(i) destroy the consignment or, where appropriate, particular lots in the consignment,

(ii) re-dispatch the consignment to a third country,

(iii) treat the controlled material in the consignment in a manner that ensures that the risk to plant health arising from the controlled material is eliminated and that it otherwise complies with the domestic import rules relating to the controlled material, or

(iv) take any other measures which are necessary to ensure that the domestic import rules relating to the controlled material in the consignment are met, and

(d) invalidate the phytosanitary certificate or transit declaration accompanying the consignment (as the case may be).

(2) A plant health inspector may only serve a notice pursuant to sub-paragraph (1)(c) ordering the operator who is responsible for the consignment to re-dispatch the consignment to a third country if the proposed destination has been agreed with the operator.

(3) The operator who is responsible for a schedule 1 consignment which is detained pursuant to this paragraph must store the consignment and take the measures specified in the notice served pursuant to sub-paragraph (1)(c) at the operator’s own expense.

Measures to be taken on schedule 1 consignments

13.— (1) This paragraph applies where—

(a) the official controls carried out by a plant health inspector pursuant to this Part indicate that the controlled material in a schedule 1 consignment complies with the domestic import rules relating to that material,

(b) although the controlled material in the consignment complies, or appears to comply, with those domestic import rules, the inspector is of the opinion that the consignment poses a risk to plant health in Scotland or to any other part of the Union territory, and

(c) Article 67 of the Official Controls Regulation does not apply to the consignment.

(2) The plant health inspector must—

(a) place the consignment under official detention and ensure that the consignment is isolated or quarantined,

(b) without delay, serve a notice on the operator who is responsible for the consignment ordering the operator to—

(i) destroy the consignment, or

(ii) treat the controlled material in the consignment in a manner that ensures that the risk to plant health arising from the controlled material is eliminated and that it otherwise complies with the domestic import rules or EU plant health rules relating to the controlled material, and

(b) invalidate the phytosanitary certificate or transit declaration accompanying the consignment (as the case may be).

Notification of decisions to refuse the entry of a schedule 1 consignment into Scotland

14.   The Scottish Ministers must ensure that any decision by a plant health inspector to refuse a schedule 1 consignment entry into Scotland is immediately notified in writing to—

(a) the Commission,

(b) the competent authorities of other member States,

(c) the national plant protection organisation of the third country of origin, and

(d) the operator who is responsible for the consignment.

Notices under this Part

15.   A notice in relation to a schedule 1 consignment under this Part may include any of the following—

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

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

(c) any other measures which the plant health inspector considers are appropriate in the 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.”.

(1)

Adopted in 1951 (Treaty Series No. 16 (1954), Cmd 9077) and last revised in 1997 (Miscellaneous Series No. 15 (2003), Cmd 5945).

(2)

Available from the IPPC Secretariat, AGPP-FAO, Viale Delle Terme di Caracalla, 00153, Rome, Italy and at https://www.ippc.int/int.

(3)

OJ No. L 165, 21.6.2019, p.4.