Citation and commencement

1. This Order may be cited as the Plant Health (Scotland) Amendment Order 2012 and comes into force on 15th November 2012.

Amendments to the Plant Health (Scotland) Order 2005

2. The Plant Health (Scotland) Order 2005(9) is amended in accordance with articles 3 to 13.

Amendment of Part 1

3. In article 2(1) (general interpretation)-

(a)after the definition of "Decision 2007/410/EC" insert-

""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)(10), as amended from time to time;

"Directive 92/90/EEC" means Commission Directive 92/90/EEC establishing obligations to which producers and importers of plants, plant products or other objects are subject and establishing details for their registration(11);" and

(b)for the definition of "Directive 2000/29/EC" substitute-

""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(12), as last amended by Commission Directive 2010/1/EU amending Annexes II, III and IV to 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(13);".

Amendment of Part 7

4. In article 39 (miscellaneous provisions for certain solanaceous species), after paragraph (10), insert-

"(11) An inspector may perform an official survey on sampling units used for the production of potatoes, other than those intended for the production of seed potatoes, for the purposes of Article 6 of Directive 2007/33/EC.

(12) An inspector may perform an official survey for the purposes of Article 4 of 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 similaris (Gentner), Epitrix subcrinita (Lec.) and Epitrix tuberis (Gentner)(14).".

Amendment of Part 8

5. For article 40 (licences to carry out activities prohibited by this Order) substitute-

"Licences to carry out activities prohibited by this Order

40. Notwithstanding any of the provisions of this Order, any plant pest or relevant material may be landed kept, stored, sold, planted, moved or otherwise disposed of in Scotland and any other thing prohibited by this Order may be done under the authority of a licence, whether general or specific, granted by the Scottish Ministers-

(a)in exercise of any derogation permitted by Directive 2000/29/EC; or

(b)in relation to a pest which although not specified in Schedule 1 or in column 3 of Schedule 2 is not normally present in Great Britain and which is likely to be injurious to plants in Great Britain, for the purposes of scientific research.".

Amendment of Parts 9 and 10

6.-(1) After article 44 (information to be given) insert-

"Disclosure of information from Her Majesty's Revenue and Customs

44A.-(1) The Commissioners for Her Majesty's Revenue and Customs ("the Commissioners") may disclose any information in their possession to the Scottish Ministers for the purposes of this Order.

(2) Paragraph (1) is without prejudice to any other power of the Commissioners to disclose information.

(3) No person, including a servant of the Crown, may disclose any information received from the Commissioners under paragraph (1) if-

(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 not for the purposes of this Order; or

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

(2) In article 45 (offences), in paragraph (1)(a)-

(a)at the end of head (xv) omit "and"; and

(b)after head (xvi) insert-

"or

(xvii)article 44A(3);".

(3) For article 46 substitute-

"Penalties

46.-(1) Subject to paragraph (2), a person who commits an offence under this Order is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(2) A person who commits an offence in breach of article 44A(3) is liable-

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

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

Amendment of Schedule 1

7. In Schedule 1 (plant pests which shall not be landed in or spread within Scotland), in Part B (plant pests known to occur in the European Union), after paragraph 1a insert-

"1b. Epitrix cucumeris (Harris)

1c. Epitrix similaris (Gentner)

1d. Epitrix subcrinita (Lec.)

1e. Epitrix tuberis (Gentner)".

Amendment of Schedule 3

8. In Schedule 3 (relevant material which may not be landed in Scotland if that material originates in certain third countries)-

(a)in item 8, in column 3 after "Morocco," insert "Serbia,"; and

(b)omit item 16.

Amendment of Schedule 4

9.-(1) In Schedule 4 (restrictions on the landing in and movement within Scotland of relevant material), in Part A (relevant material, from third countries, which may only be landed in Scotland if special requirements are satisfied)-

(a)after item 32, insert-

(b)for item 81, substitute-

(2) In Schedule 4 (restrictions on the landing in and movement within Scotland of relevant material), in Part B (relevant material, from another part of the European Union, which may only be landed in or moved within Scotland if special requirements are satisfied)-

(a)after item 19, insert-

(b)for item 37, substitute-

(c)after item 37, insert-

Amendment of Schedule 6

10. In Schedule 6 (prohibitions on the landing in and movement within Scotland of relevant material without a plant passport), in Part A (relevant material, from Scotland or elsewhere in the European Union, which may only be landed in or moved within Scotland if accompanied by a plant passport)-

(a)after paragraph 3a, insert-

"3b. Tubers of Solanum tuberosum L, other than those intended for planting, originating in an area demarcated under a legislative or administrative procedure in an EU member State for the purpose of eradicating and monitoring an infestation of Epitrix cucumeris (Harris), Epitrix similaris (Gentner), Epitrix subcrinita (Lec.) or Epitrix tuberis (Gentner)."; and

(b)for paragraph 8, substitute-

"8. Without prejudice to paragraphs 1 and 7, plants intended for planting, other than seeds, that have a stem or root collar diameter of 1 centimetre or more at their thickest point, of Acer spp., Aesculus hippocastanum, Alnus spp., Betula spp., Carpinus spp., Citrus spp., Cornus spp., Corylus spp., Cotoneaster spp., Crataegus spp., Fagus spp., Lagerstroemia spp., Malus spp., Platanus spp., Populus spp., Prunus laurocerasus., Pyrus spp., Rosa spp., Salix spp. and Ulmus spp., originating-

(a)in any third country where Anoplophora chinensis (Forster) is known to occur;

(b)in an area demarcated under a legislative or administrative procedure in an EU member State for the purpose of eradicating and monitoring an infestation of Anoplophora chinensis (Forster); or

(c)in an area other than a demarcated area mentioned in sub-paragraph (b) but introduced into a place of production in such a demarcated area.".

Amendment of Schedule 7

11. In Schedule 7 (prohibitions on the consignment of relevant material to another part of the European Union without a plant passport), in Part A (relevant material which may only be consigned to another part of the European Union if accompanied by a plant passport)-

(a)after paragraph 3a, insert-

"3b. Tubers of Solanum tuberosum L, other than those intended for planting, originating in an area demarcated under a legislative or administrative procedure in an EU member State for the purpose of eradicating and monitoring an infestation of Epitrix cucumeris (Harris), Epitrix similaris (Gentner), Epitrix subcrinita (Lec.) or Epitrix tuberis (Gentner)."; and

(b)for paragraph 8, substitute-

"8. Without prejudice to paragraphs 1 and 7, plants intended for planting, other than seeds, that have a stem or root collar diameter of 1 centimetre or more at their thickest point, of Acer spp., Aesculus hippocastanum, Alnus spp., Betula spp., Carpinus spp., Citrus spp., Cornus spp., Corylus spp., Cotoneaster spp., Crataegus spp., Fagus spp., Lagerstroemia spp., Malus spp., Platanus spp., Populus spp., Prunus laurocerasus., Pyrus spp., Rosa spp., Salix spp. and Ulmus spp., originating-

(a)in any third country where Anoplophora chinensis (Forster) is known to occur;

(b)in an area demarcated under a legislative or administrative procedure in an EU member State for the purpose of eradicating and monitoring an infestation of Anoplophora chinensis (Forster); or

(c)in an area other than a demarcated area mentioned in sub-paragraph (b) but introduced into a place of production in such a demarcated area.".

Amendment of Schedule 8

12.-(1) In Schedule 8 (Swiss plant passports), in Part A (relevant material originating in Switzerland which may be landed in or moved within Scotland if accompanied by a Swiss plant passport)-

(a)for paragraph 1 substitute-

"1. Plants, other than seeds, of Beta vulgaris L., Camellia sp., Humulus lupulus L., Prunus L., other than Prunus laurocerasus L. or Prunus lusitanica L., Rhododendron spp., other than Rhododendron simsii Planch., or Viburnum spp., intended for planting."; and

(b)in paragraph 5-

(i)in sub-paragraph (a), after "Dianthus L.", insert "and hybrids thereof";

(ii)at the end of sub-paragraph (e) omit "or";

(iii)after sub-paragraph (e) insert-

"(ea)plants of Palmae, intended for planting and having a diameter of the stem at the base of over 5 centimetres and belonging to the following genera or species: Areca catechu L., Arenga pinnata (Wurmb) Merr., Borassus flabellifer L., Brahea Mart., Butia Becc., Calamus merrillii Becc., Caryota maxima Blume ex Mart., Caryota cumingii Lodd. ex Mart., Chamaerops L., Cocos nucifera L., Corypha elata Roxb., Corypha gebang Mart., Elaeis guineensis Jacq., Jubaea Kunth., Livistona R. Br., Metroxylon sagu Rottb., Oreodoxo regia Kunth., Phoenix L., Sabal Adans., Syagrus Mart., Trachycarpus H. Wendl., Trithrinax Mart., Washingtonia Raf; or".

(2) In Schedule 8, in Part B (relevant material imported into Switzerland from another third country which, if it would normally be permitted to be landed in Scotland if accompanied by a phytosanitary certificate, may be accompanied by a Swiss plant passport)-

(a)for paragraph 1, substitute-

"1. Plants, other than seeds, intended for planting, other than Clausena Burm. f. and Murraya Koenig ex. L.." ; and

(b)in paragraph 5(c), for "Quercus L or Solidago L." substitute "Quercus L., Rhododendron spp., other than Rhododendron simsii Planch., Solidago L., or Viburnum spp.".

Amendment of Schedule 15

13. In Schedule 15 (special measures for the control of Potato Cyst Nematode), in paragraph 7, after "article 39(8)," insert "or an official survey referred to in article 39(11),".

Revocations

14. The following articles are revoked-

(a)article 2(22) of the Plant Health (Scotland) Amendment Order 2006(16);

(b)articles 6(2)(c) and 7 of the Plant Health (Scotland) Amendment (No. 2) Order 2008(17);

(c)articles 4 and 5 of the Plant Health (Scotland) Amendment (No. 2) Order 2010(18).

EXPLANATORY NOTE

(This note is not part of the Order)

This Order amends the Plant Health (Scotland) Order 2005 ("the principal Order") to implement certain EU obligations relating to plant health. It also makes some other changes to the principal Order.

Commission Implementing Decision 2012/138/EU

Articles 8(b), 9(1)(b), 9(2)(b) and (c), 10(b) and 11(b) implement 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) (OJ L 64, 3.3.2012, p.38). The Order amends Part A of Schedule 4 to the principal Order (relevant material, from third countries, which may only be landed in Scotland if special requirements are satisfied) to place requirements on the landing in and movement within Scotland of certain host plants which originate in countries where the pest (known commonly as the citrus longhorn beetle) is known to occur. Additional controls are placed on plants imported from China, including plants of Acer spp. (article 9(1)(b)). The ban on import into the Union of plants of Acer spp. originating in China expired on 30th April 2012 and article 8(b) of the Order, which amends Schedule 3 to the principal Order (relevant material which may not be landed in Scotland if that material originates in certain third countries) reflects this.

Article 9(2)(b) amends Part B of Schedule 4 to the principal Order (relevant material from another part of the European Union, which may only be landed in or moved within Scotland if special requirements are satisfied) to place requirements on the import into and movement within Scotland of the relevant host plants from demarcated areas within other member States. Article 9(2)(c) does the same in relation to host plants which do not originate in demarcated areas but which were introduced into a place of production in such an area (article 9(2)(c)).

Articles 10(b) and 11(b) of the Order amend Part A of Schedule 6 (relevant material, from Scotland or elsewhere in the European Community, which may only be landed in or moved within Scotland if accompanied by a plant passport) and Part A of Schedule 7 (relevant material which may only be consigned to another part of the European Union if accompanied by a plant passport) respectively to require that the relevant host plants of Anoplophora chinensis (Forster) are accompanied by a plant passport when landed in or moved within Scotland or when on consignment to another part of the Union.

Commission Implementing Decision 2012/219/EU

Article 8(a) amends Schedule 3 to the principal Order (relevant material which may not be landed in Scotland if that material originates in certain third countries) to except Serbia from the general prohibition on the introduction into the Union of tubers of species Solanum L and their hybrids. This exception implements Commission Implementing Decision 2012/219/EU recognising Serbia as being free from Clavibacter michiganensis ssp. sepedonicus (Spieckerman and Kotthoff) Davis et al. (OJ L 114, 26.4.2012, p.28).

Commission Implementing Decision 2012/270/EU

Articles 4, 7, 9(1)(a), 9(2)(a), 10(a) and 11(a) implement 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 similaris (Gentner), Epitrix subcrinita (Lec.) and Epitrix tuberis (Gentner) (OJ L 132, 23.5.2012, p.18). Article 4 (in so far as it inserts paragraph (12)) amends article 39 of the principal Order (miscellaneous provisions for certain solanaceous species) to allow inspectors to perform an official survey for the presence of these pests (known commonly as potato flea beetles). Article 7 of the Order adds these pests to Schedule 1 to the principal Order. Amongst other things, this addition permits inspectors to use their general powers under article 32 of the principal Order to require certain actions to be taken by the occupier or person in charge of land on which the pest may be present.

Articles 9(1)(a) and 9(2)(a) amend Parts A and B respectively of Schedule 4, to place requirements on the import into and movement within Scotland of tubers of Solanum tuberosum L, which originate in any third country in which the pests are known to occur (article 9(1)(a)) or in a demarcated area within a Member State (article 9(2)(a)). Articles 10(a) and 11(a) amend Part A of Schedule 6 and Part A of Schedule 7 to the Principal Order respectively. They require tubers of Solanum tuberosum L. which originate in a demarcated area of another member State may only be landed in or moved within Scotland, or consigned to another part of the Union from Scotland, if they are accompanied by a plant passport.

Council Directive 2007/33/EC

Articles 4 (in so far as it inserts paragraph (11) into article 39 of the principal Order) and 13 (which amends Schedule 15 to the principal Order (special measures for the control of Potato Cyst Nematode)) together permit inspectors to perform surveys on fields used for the production of ware potatoes and to take the steps required by Directive 2007/33/EC on the control of potato cyst nematodes and repealing Directive 69/465/EEC (OJ L 156, 16.6.2007, p.12) if that pest is discovered.

Other changes

Article 3 substitutes the definition of "Directive 2000/29/EC" (OJ L 169, 10.7.2000, p.1) in order to capture amendments which have been made to the Directive since the making of the principal Order. It also adds two other definitions of instruments referred to in these amendments.

Article 5 substitutes article 40 of the principal Order (licences to carry out activities prohibited by this Order). The previous article 40 allowed for the grant of licences in exercise of a derogation under Council Directive 2000/29/EC. The substituted article also allows for licences to be granted for the purposes of scientific research on pests which, although not listed in Schedule 1 to the principal Order (Plant pests which shall not be landed in or spread within Scotland) or column 3 of Schedule 2 to the principal Order (relevant material which may not be landed in or moved within Scotland if that material is carrying or infected with plant pests), are pests which are not normally present in Great Britain but which would be injurious to plants in Great Britain.

Article 6 inserts a new article 44A into the principal Order to permit the Commissioners for Her Majesty's Revenue and Customs to disclose any information in their possession to the Scottish Ministers for the purposes of the principal Order (article 6(1)). It also creates a new offence and corresponding penalty in relation to this power of disclosure by amending articles 45 (offences) and 46 (penalties) of the principal Order.

Article 12 amends Schedule 8 to the principal Order (Swiss plant passports) to reflect Decision No 1/2010 of the Joint Committee on Agriculture set up by the agreement between the European Community and the Swiss Confederation on trade in agricultural products concerning the amendments to the Appendices to Annex 4 (2011/83/EU) (OJ L 32, 8.2.2011, p.9). The article updates the list of plants which may enter Scotland accompanied by a Swiss plant passport.

Article 14 revokes certain articles of other orders in consequence of this Order.

No business and regulatory impact assessment has been prepared for this Order as no impact on business, charities or voluntary bodies is foreseen.