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

Made: at 11.15 a.m. on 11th December 2019

Laid before the Scottish Parliament: at 3.30 p.m. on 11th December 2019

Coming into force: 14th December 2019

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 2(2) and paragraph 1A of schedule 2 of the European Communities Act 1972 and all other powers enabling them to do so.

These Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972 and it appears to the Scottish Ministers that it is expedient for the references to 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 and to the European Union instruments mentioned in regulation 3(1) to be references to those instruments as amended from time to time.

PART 1 — Introduction

Citation, commencement and extent

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• (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.

Interpretation: general

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• (1) In these Regulations—

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

• “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—which may not be brought into Great Britain without a phytosanitary certificate pursuant to—Article 72 or 74 of the ... Plant Health Regulation, or ...any other ... plant health rule, other than Article 73 of the ... Plant Health Regulation,which was exported from Great Britain to a third country and is returning to Great Britain following the refusal by that third country to allow its entry into the country,

• “controlled plant pest” means—a plant pest of a description specified in Annexes 2, 2A, 3 or 4 to the Phytosanitary Conditions Regulation, or ...a plant pest subject to any other ... plant health rule , including a potential quarantine plant pest within the meaning given in regulation 21(3),

• ...

• “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 as it has effect in EU law,

• ...

• “forestry material” means—wood which retains part or all of its natural round surface, with or without bark,wood in the form of chips, particles, shavings, sawdust, wood waste or scrap,conifer trees over 3m in height,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,

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

• “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

• “Northern Ireland plant health label” has the meaning given in regulation 2 of the Windsor Framework (Plant Health) Regulations 2023;

• “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 ... plant health rules ,

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

• “Plant Health Regulation” means Regulation (EU) 2016/2031 of the European Parliament and 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,

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

• “plant passport” means a passport which is a UK plant passport or other permitted plant passport,

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

• “the Phytosanitary Conditions Regulation” 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 Regulations (EU) 2018/2019,

• “regulated item” means—any plant, plant product or other object to which a plant health rule applies, other than any plant, plant product or other object which is part of a controlled consignment, ora controlled plant pest,

• ...

• “working day” means any day, other than—a Saturday or a Sunday,Easter Monday,26 December if it is not a Saturday or a Sunday,27 December in a year in which 25 or 26 December is a Sunday, ora bank holiday in Scotland under the Banking and Financial Dealings Act 1971 ,

• “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 ... Plant Health Regulation or the Official Controls Regulation have the same meaning in these Regulations as in the ... Plant Health Regulation or, as the case may be, in the Official Controls Regulation.

Interpretation: EU instruments

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• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) References to the Phytosanitary Conditions Regulation are to be construed as references to that instrument as amended from time to time.

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

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• (1) For the purposes of Article 82 of the ... 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 ... 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 ... Plant Health Regulation applies, an area within the premises which is used by the registered operator to carry out any of those activities.

PART 2 — Competent authorities

Designation of competent authority

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• (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 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 ... Plant Health Regulation—the introduction of forestry material into Scotland,the storage, aggregation or movement of forestry material within Scotland, the movement of forestry material into Scotland from another part of Great Britain or a CD territory or the movement of forestry material from Scotland to another part of Great Britain or a CD territory,the export of forestry material from Scotland to a third country or Northern Ireland,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,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,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,

• ...

• ...

• ...

• “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.

Disclosure of information

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• (1) The Scottish Ministers may disclose information to any other competent authority in another part of the United Kingdom or to a CD authority for the purposes of the ... Plant Health Regulation , the Windsor Framework (Plant Health) Regulations 2023 or the Official Controls Regulation.

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

PART 3 — 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

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• (A1) The operator who is responsible for a controlled consignment of forestry material which is to be brought into Scotland by air or a controlled consignment which is to be brought into a RoRo, port in Scotland must have notified the Scottish Ministers of the consignment’s expected arrival at least four working hours before its expected arrival in Scotland.

• (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 ,

• “RoRo” means a RoRo listed location within the meaning of regulation 130 of the Customs (Import Duty) (EU Exit) Regulations 2018,

• “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 .

Suspicion of non-compliance

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• (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 a plant health rule or that any such consignment or item may not otherwise comply with a 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 Great Britain,

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.

Consignments not correctly presented for official controls

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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.

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

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• (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 a 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 a plant health rule, or