The Seed Potatoes (Scotland) Regulations 2015

Explanatory Note

(This note is not part of the Regulations)

These Regulations revoke and replace the Seed Potatoes (Scotland) Regulations 2000. The Regulations transpose and give effect to the requirements of CouncilDirective 2002/56/EC on the marketing of seed potatoes (“the Directive”) as last amended by Commission Implementing Decision 2014/367/EU.

The Regulations also transpose and give effect to Commission Implementing Directive 2013/63/EU amending Annexes I and II to CouncilDirective 2002/56/EC as regards minimum conditions to be satisfied by seed potatoes and lots of seed potatoes and to other Commission Implementing Directives and Decisions.

Part I of the Regulations deals with preliminary matters, including the interpretation of the Regulations (regulation 2).

Part II of the Regulations sets out the general prohibitions and controls on the marketing of seed potatoes in Scotland. Regulation 3 restricts the marketing of seed potatoes in Scotland to those seed potatoes meeting the requirements of the defined terms “pre-basic seed potatoes”, “basic seed potatoes”, “test and trial seed potatoes” and “scientific and selection seed potatoes” as defined in regulation 2. In relation to the first 3 of these defined terms, these requirements include the requirement that the seed potatoes have satisfied the applicable conditions for the issue of an official label or an official document specified in regulation 10(3) (see below in relation to Part III). The Directive permits the marketing of a further category of “certified seed potatoes” within the European Union but the Scottish Government is authorised to prohibit the marketing of this category by virtue of CommissionDecision 2004/3/EC authorising, in respect of the marketing of seed potatoes in all or part of the territory of certain Member States, more stringent measures against certain diseases than are provided for in Annexes I and II to CouncilDirective 2002/56/EC (OJ L 49, 19.2.2004, p.36, as amended by Commission Implementing Decision 2014/105/EU (OJ L 56, 26.2.2014). Regulation 4 sets out further general provisions on the marketing of seed potatoes, including requirements relating to packaging and to uniform composition of lots, to which Schedule 3 also applies. In relation to field generations where no field generation is indicated, regulation 4(6) transposes the requirements of Commission Implementing Directive 2013/63/EU.

Regulations 5 and 6 respectively set out the specific requirements for the marketing in Scotland of test and trial seed potatoes and scientific and selection seed potatoes, in transposition of the requirements pertaining to Articles 6(1)(b) (test and trial) and 6(1)(a) (scientific and selection) of the Directive. Regulation 7 sets out the requirements relating to the marketing of conservation varieties, giving effect to the conditions which apply to such varieties by virtue of Article 27(1)(b) and (2) of the Directive.

Part III relates to the certification and grading of seed potatoes produced in Scotland. Regulation 8 relates to the requirements of certification and grading in relation to a growing crop of seed potatoes. Regulation 9 relates to an official examination of lots of seed potatoes (i.e. examination of the harvested tubers from the growing crop). Certification, grading and inspection of the resultant lots of the Scottish seed potatoes are, in substance, the applicable conditions for the issue of an official label or an official document which are specified in regulation 10(3) and which are made an essential pre-requisite of the lawful marketing of Scottish seed potatoes by virtue of the defined terms used in regulation 3. In relation to the requirement for certification, this transposes the requirements of Article 3(1) of the Directive. Following an application, an authorised officer may, under regulation 8(1) issue a crop inspection report to certify seed potatoes as being “pre-basic seed potatoes”, “basic seed potatoes” or “test and trial seed potatoes”. When issuing a crop inspection report to certify seed potatoes as either pre-basic seed potatoes or basic seed potatoes, the authorised officer must also determine the applicable Union grade (regulation 8(2)). A crop inspection report may only be issued following an official examination of the growing crop (regulation 8(4) and Schedule 1, paragraph 1(c)) and where all other requirements of Schedule 1 have been met. Schedule 2 contains the hierarchy of applicable Union grades and their applicable requirements, which include percentage thresholds (or ‘tolerances’) for the presence of certain defects or diseases in the growing crop.

Schedules 1 and 2 together transpose and give effect to the EU requirements relating to growing crops of pre-basic and basic seed potatoes which are to be marketed in the Union. They also implement additional and more stringent national requirements for the production of Scottish pre-basic and basic seed potatoes, intended to be marketed in the Union. These additional and more stringent requirements are applied in exercise of the derogation provided for at Article 5 of the Directive and relate to domestic production only.

In relation to pre-basic seed potatoes, Schedules 1 and 2 implement the EU minimum conditions which apply to growing crops by virtue of Commission Implementing Directive 2014/21/EU determining minimum conditions and Union grades for pre-basic seed potatoes, and also the minimum requirements relating to the application of the Union grade PBTC or PB, which are contained in that Implementing Directive.

In relation to basic seed potatoes, Schedules 1 and 2 implement the EU minimum conditions which are contained in Annex 1 of the Directive and the minimum requirements relating to the application of the Union grades S, SE and E which are contained in Commission Implementing Directive 2014/20/EU determining Union grades of basic and certified seed potatoes, and the conditions and designations applicable to such grades.

In relation to test and trial seed potatoes, Article 5(4) of CommissionDecision 2004/842/EC applies the same minimum conditions for the growing crop of test and trial seed potatoes as those for the certified seed potato category in Annex 1 of the Directive. In these Regulations, Schedule 1, Part IV places the same requirements on test and trial seed potatoes that are placed on basic seed potatoes. This reflects the effective prohibition on the marketing of the certified category within Scotland, which is permitted by CommissionDecision 2004/3/EC, as amended.

Regulation 9 requires an authorised officer to perform an inspection of lots of seed potatoes which have been derived from a crop certified under regulation 8(1). Regulation 9 introduces Schedule 6 which contains Tables of the permissible tolerances in respect of diseases, pests, damage and defects in respect of lots of seed potatoes at each applicable Union grade (and also in relation to seed potatoes intended to be marketed outside the EU). The Tables of tolerances contained in Schedule 6 transpose the minimum requirements relating to tuber inspections in Commission Implementing Directive 2014/21/EU (pre-basic seed potatoes), Annex II of the Directive and Commission Implementing Directive 2014/20/EU (basic seed potatoes). In relation to test and trial seed potatoes, Table III(c) imposes the requirements relating to basic seed potatoes of the Union grade E, in reliance of CommissionDecision 2004/3/EC.

Part IV of the Regulations contains provisions relevant to the labelling (regulation 10) and sealing (regulation 11) of seed potatoes. Regulation 10(1) prohibits the marketing of seed potatoes unless an official label is attached to the package of container which meets the requirements of the relevant paragraphs of Schedule 5. Regulation 10(3) sets out the conditions under which the Scottish Ministers may issue an official label or an official document (regulation 10(3)). Regulation 11(2) contains a prohibition against the re-sealing of packages of seed potatoes otherwise than by or under supervision of an authorised officer.

Part V relates to enforcement of the Regulations. Regulation 14(1) provides an authorised officer with the power, among other things, to perform official examinations for the purposes of the Regulations and to take samples of seed potatoes. This power to take samples is subject to the provision made by regulation 17 in Part VI and to Schedule 8 of the Regulations. Regulation 15 sets out the circumstances under which the Scottish Ministers may withdraw a crop inspection report (regulation 15(1)), determine a lower grade (regulation 15(2)) or withhold or withdraw an official label (regulation 15(3)) in order to ensure compliance with the Regulations. Regulation 16 provides an authorised officer with the power to serve notices where, during an official examination, the officer is of the opinion that seed potatoes are affected by a disease or pest specified in column 1 of the applicable Table in Schedule 6. The notice can be used to restrict the movement of the seed potatoes (to allow for example, for the presence of the disease or pest to be confirmed). A notice may also be served where the authorised officer is satisfied that one of the tolerances prescribed in the Tables in Schedule 6 has been exceeded or that there has been a failure to comply with another requirement of the Regulations (regulation 16(3)).

Part VI contains miscellaneous provisions, including consequential amendments (regulation 22) and the revocation of the Seed Potatoes (Scotland) Regulations 2000 and the provisions which amended it (regulation 24 and Schedule 9).

These Regulations have been notified in draft to the European Commission in accordance withDirective 98/34/EC of the European Parliament and of the Council laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society Services (OJ L 204, 21.7.1998, p.37), as past amended by Regulation (EU) No 1025/2012 (OJ L 316, 14..11.2012, p.12) and as repealed, subject to savings, by Directive (EU) 2015/1535 (OJ L 241, 17.9.2015, p.1).

No business and regulatory impact assessment has been prepared for these Regulations.