The Seed Potatoes (England) Regulations 2006

Title, commencement, extent and application

1.—(1) These Regulations may be cited as the Seed Potatoes (England) Regulations 2006 and come into force on 16th May 2006.

(2) These Regulations extend to England and Wales but apply only to England.

Interpretation

2.—(1) In these Regulations—

“the Act” means the Plant Varieties and Seeds Act 1964;

“authorised officer” means an officer of the Secretary of State or a person authorised by the Secretary of State for any purpose in connection with these Regulations;

“basic seed potatoes” means seed potatoes which—

“category” means the category of pre-basic seed potatoes, basic seed potatoes, or certified seed potatoes (or, in relation to seed potatoes produced in Switzerland, the categories having equivalent effect under the legislation of the Swiss Confederation in accordance with the Swiss trade agreement);

“certification” means—

and “certified” shall be construed accordingly;

“Certification Authority” means the authority concerned with the certification of seed potatoes in the country or territory where the seed potatoes were produced;

“certified seed potatoes” means seed potatoes which—

“class” means—

“Common Catalogue” means the common catalogue of varieties of species of agricultural plants published in the Official Journal of the European Communities;

“Community Grade” means one of the grades of basic seed potatoes (EC grade 1, EC grade 2 or EC grade 3) determined by Commission Directive 93/17/EEC of 30 March 1993 determining Community grades of basic seed potatoes, together with the conditions and designations applicable to such grades(2);

“Deliberate Release Directive” means Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms(3), as amended by amendments up to and including those effected by Regulation (EC) No 1830/2003 of the European Parliament and of the Council of 22 September 2003 concerning the traceability and labelling of genetically modified organisms and traceability of food and feed products produced from genetically modified organisms(4);

“the Directive” means Council Directive 2002/56/EC of 13 June 2002 on the marketing of seed potatoes(5), as amended by Commission Decision 2003/66/EC of 28 January 2003(6) and Council Directive 2003/61/EC of 18 June 2003(7);

“Food and Feed Regulation” means Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed(8);

“genetically modified” has the same meaning as in the Deliberate Release Directive;

“grade” includes Community Grade;

“growing crop certificate” means—

“lot” for the purposes of regulations 6(2) and (3) and 10 means a consignment or an identifiable part of a consignment which is recorded and listed as a separate item in an invoice, delivery note or other document provided in accordance with regulation 16;

“marketing” means—

whether or not for consideration and for these purposes “commercial exploitation” shall not be taken to include the supply of seed potatoes to official testing and inspection bodies, or the supply of seed potatoes to any person for the purpose of processing or packaging them provided he does not acquire title to the seed potatoes supplied; and “market” and “marketed” shall be construed accordingly;

“National List” means a list of varieties of potato species prepared and published—

“official document” means—

“official examination” means an examination or inspection conducted by an authorised officer, including one conducted by way of sample;

“official label” means—

“package or container” means—

“potato” means any tuber or part thereof or any plant or part thereof of Solanum tuberosum L. or other tuber-forming species or hybrids of Solanum;

“pre-basic seed potatoes” means seed potatoes which—

“premises” includes any land or building, other than a private dwellinghouse, and any fixed or moveable structure, vehicle, vessel, aircraft, hovercraft or freight container;

“protected region” means the county of Cumbria, excluding the districts of Barrow-in-Furness and South Lakeland, and the county of Northumberland, excluding the districts of Blyth Valley and Wansbeck;

“seed potatoes” means—

“seed potatoes produced outside England” means—

“Swiss trade agreement” means the Agreement between the European Community and the Swiss Confederation on trade in agricultural products(12), as amended by amendments up to and including Commission Decision 2004/660/EC(13);

“test and trial seed potatoes” means seed potatoes which—

(2) In relation to seed potatoes produced in Switzerland, any reference in these Regulations to the Directive or Commission Decision 2004/842/EC or any provision thereof shall be construed as a reference to the legislation of the Swiss Confederation having equivalent effect in accordance with the Swiss trade agreement.

(3) Any reference in these Regulations to a tolerance in relation to seed potatoes comprised in a sample shall be construed—

(a)in relation to a tolerance for any disease, pest or damage specified in Schedule 3, as a reference to the proportion of the weight of seed potatoes in the sample affected by the disease, pest or damage, or any combination of such disease, pest or damage, in relation to the total weight of the sample, expressed as a percentage;

(b)in relation to a tolerance for dirt or other extraneous matter specified in Schedule 3, as a reference to the proportion of the weight of such matter in relation to the total weight of the sample, expressed as a percentage; and

(c)in relation to a tolerance for a deviation or disease specified in the tables in Schedule 4, as a reference to the number of plants of seed potatoes affected by the deviation or disease in relation to the total number of plants in the sample, expressed as a percentage.

(4) For the purposes of Schedule 1, “agricultural unit” shall have the meaning assigned to that expression in section 109(2) of the Agriculture Act 1947(14).

(5) Expressions in these Regulations which are not defined in this regulation or elsewhere in these Regulations and which appear in the Directive or Commission Decision 2004/842/EC have the same meaning in these Regulations as they have in the Directive or that Decision.

Seed potatoes to which these Regulations do not apply

3.  These Regulations do not apply to seed potatoes intended for export to any country outside the European Community.

Marketing of seed potatoes

4.—(1) No person shall market any seed potatoes other than—

(a)pre-basic seed potatoes;

(b)basic seed potatoes;

(c)certified seed potatoes;

(d)scientific and selection seed potatoes; or

(e)test and trial seed potatoes.

(2) No person shall market any seed potatoes treated with a product which is produced primarily as an application for inhibiting germination.

(3) In this regulation, “scientific and selection seed potatoes” means seed potatoes which—

(a)in relation to seed potatoes produced in England, are seed potatoes which have been authorised by the Secretary of State for marketing in accordance with regulation 7; and

(b)in relation to seed potatoes produced outside England, are seed potatoes which have been authorised by the Certification Authority in the country or territory where the potatoes were produced for marketing in accordance with Article 6(1)(a) of the Directive.

Marketing in the protected region

5.  No person shall market any seed potatoes within the protected region other than—

(a)pre-basic seed potatoes; or

(b)basic seed potatoes which have been graded at a Community Grade and which meet the requirements of Commission Decision 2004/3/EC of 19 December 2003 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 Council Directive 2002/56/EC(15).

Size of seed potatoes

6.—(1) No person shall market any seed potatoes other than seed potatoes of pre-basic TC class unless they have a minimum size such that they do not pass through a square mesh of 25 millimetres x 25 millimetres.

(2) No person shall market any seed potatoes in a lot in which the maximum variation in size between tubers is such that the difference between the lower size limit and the upper size limit exceeds 25 millimetres.

(3) The requirements of paragraph (2) shall be treated as being met provided that no more than three per cent of the total weight of tubers in the lot shall consist of—

(a)tubers which are smaller than the lower size limit; or

(b)tubers which are larger than the upper size limit.

(4) For the purposes of this regulation—

(a)“the lower size limit” means the dimensions of the largest square mesh through which the smallest tuber does not pass; and

(b)“the upper size limit” means the dimensions of the largest square mesh through which the largest tuber does not pass.

(5) Where the size of seed potatoes is required to be stated in accordance with these Regulations, there shall be stated—

(a)the dimensions of the square mesh through which the tubers do not pass, where the lower size limit and the upper size limit are the same; or

(b)the lower size limit and the upper size limit, where these are not the same.

(6) For the purposes of paragraph (5), dimensions of more than 35 millimetres shall be stated to the nearest five millimetres.

Marketing of seed potatoes for scientific purposes or selection work

7.—(1) The Secretary of State may authorise marketing of small quantities of seed potatoes for scientific purposes or selection work in accordance with this regulation.

(2) The Secretary of State shall not authorise marketing of seed potatoes which contain any genetically modified material unless an authorisation is in force under the Food and Feed Regulation or Part C of the Deliberate Release Directive.

(3) Application for authorisation to market seed potatoes in accordance with paragraph (1) shall be made in writing to the Secretary of State and shall be accompanied by such information as she may require.

Marketing of seed potatoes for test and trial purposes

8.—(1) The Secretary of State may authorise marketing of seed potatoes for tests or trials carried out at agricultural enterprises to gather information on the cultivation or use of a variety of potato species in accordance with this regulation and Schedule 5.

(2) Application for authorisation or renewal of authorisation to market seed potatoes in accordance with paragraph (1) shall be made in writing to the Secretary of State and shall be accompanied by such information as she may require.

(3) The Secretary of State shall not authorise marketing—

(a)of an amount of seed potatoes in excess of that permitted by Article 7 of Commission Decision 2004/842/EC;

(b)of seed potatoes which contain any genetically modified material unless that material is authorised under the Food and Feed Regulation or Part C of the Deliberate Release Directive.

(4) Authorisation given in accordance with paragraph (1), or the renewal of such authorisation, shall be for a period of one year or such shorter period as the Secretary of State may specify.

(5) In authorising marketing in accordance with paragraph (1), the Secretary of State may impose such conditions as she thinks necessary or desirable having regard to the nature of the tests or trials and the nature of the seed potatoes to which the application relates, including a condition relating to the keeping of records in respect of the marketing of the seed potatoes.

(6) Authorisation given in accordance with paragraph (1) shall cease to have effect where—

(a)the application referred to in paragraph (3)(a) of Schedule 5 is withdrawn or rejected in accordance with the Seeds (National Lists of Varieties) Regulations 2001; or

(b)the variety of potato species to which the seed potatoes to which the authorisation relates belong is entered in a National List or the Common Catalogue.

(7) The Secretary of State may withdraw authorisation given in accordance with paragraph (1) where there is a breach of any condition referred to in paragraph (5).

(8) The Secretary of State may require the person to whom authorisation has been given in accordance with paragraph (1) to provide her with information about—

(a)the results of the tests or trials to which the authorisation relates; or

(b)the quantities of seed potatoes marketed during the authorised period and the name of the member State in which the seed potatoes are intended to be marketed.

Certification of seed potatoes

9.—(1) Certification of seed potatoes produced in England shall be in accordance with this regulation.

(2) An authorised officer shall certify seed potatoes produced in England as being—

(a)pre-basic seed potatoes,

(b)basic seed potatoes, or

(c)certified seed potatoes,

if the requirements of paragraph (3) are satisfied.

(3) The requirements mentioned in paragraph (2) are that—

(a)a growing crop certificate has been issued in relation to the seed potatoes; and

(b)on official examination the seed potatoes have been found not to exceed any of the tolerances for diseases or pests, damage or defects specified in the appropriate provisions of Schedule 3.

(4) Application for certification of seed potatoes produced in England shall be made in writing to the Secretary of State and shall be accompanied by such information as she may require.

(5) For the purposes of paragraph (2), an official label issued in accordance with these Regulations in relation to pre-basic seed potatoes, basic seed potatoes or certified seed potatoes shall be sufficient evidence that an authorised officer has certified the seed potatoes to which the official label relates as being pre-basic seed potatoes, basic seed potatoes or certified seed potatoes, as the case may be.

Composition of lots of seed potatoes

10.—(1) No person shall market pre-basic seed potatoes, basic seed potatoes or certified seed potatoes otherwise than in a lot consisting wholly of seed potatoes of—

(a)one category;

(b)one variety; and

(c)one class.

(2) No person shall market test and trial seed potatoes otherwise than in a lot consisting wholly of seed potatoes of one variety.

(3) For the purposes of this regulation a lot of seed potatoes shall be treated as if it consists wholly of one variety provided that—

(a)in relation to seed potatoes produced in England, the number of seed potatoes in the lot which is not true to variety in relation to the total number of seed potatoes in the lot—

(i)in the case of pre-basic seed potatoes is no more than 0.01 per cent;

(ii)in the case of basic seed potatoes is no more than 0.1 per cent; and

(iii)in the case of certified seed potatoes or test and trial seed potatoes is no more than 0.2 per cent; and

(b)in relation to seed potatoes produced outside England, the lot is sufficiently homogeneous in accordance with the standards imposed by the Certification Authority pursuant to the Directive in respect of the marketing of those potatoes.

Packages and containers for seed potatoes

11.  Subject to regulation 17, no person shall market any seed potatoes otherwise than in a package or container.

Labelling of packages and containers of seed potatoes

12.—(1) Subject to regulation 17, no person shall market—

(a)pre-basic seed potatoes,

(b)basic seed potatoes,

(c)certified seed potatoes, or

(d)test and trial seed potatoes,

other than in a properly labelled package or container in accordance with this regulation.

(2) For the purposes of this regulation, a properly labelled package or container means a package or container that—

(a)has affixed to the outside an official label; and

(b)subject to paragraph (3), contains an official document.

(3) Paragraph (2)(b) shall not apply where—

(a)the particulars specified in paragraph 14 of Schedule 2 are indelibly printed on the package or container; or

(b)the official label is of an adhesive or wear and tear resistant material.

(4) Applications to the Secretary of State for official labels and official documents shall be made in writing and shall be accompanied by such information as she may require.

(5) The Secretary of State shall only issue an official label or an official document where she is satisfied that—

(a)the seed potatoes are pre-basic seed potatoes, basic seed potatoes, certified seed potatoes or test and trial seed potatoes;

(b)the seed potatoes comply with the minimum size requirements specified in regulation 6(1) and that the maximum variation in size between tubers does not exceed that specified in regulation 6(2);

(c)the seed potatoes are contained in a package or container;

(d)the seed potatoes have not been treated with a product which is produced primarily as an application for inhibiting germination;

(e)the seed potatoes have been harvested, stored, transported and handled so as to minimise the risk of contamination by any of the diseases or pests specified in Schedule 3;

(f)on a sample taken in accordance with regulation 18, the seed potatoes do not exceed any of the tolerances for diseases, pests, damage or defects specified in the appropriate part of Schedule 3; and

(g)there has been no other failure to comply with these Regulations in respect of any of the seed potatoes.

(6) If a package or container has been re-sealed by an authorised officer in accordance with regulation 13(4) the official label shall state—

(a)that the package or container has been so re-sealed;

(b)the date of re-sealing; and

(c)the name of the authorised officer responsible for re-sealing.

(7) Where any pre-basic seed potatoes, basic seed potatoes, certified seed potatoes or test and trial seed potatoes have been treated with any chemical product, the type and function or the proprietary name of that product shall be—

(a)stated on a label affixed to the package or container; and

(b)either—

(i)stated on a document contained in the package or container; or

(ii)indelibly printed on the package or container.

(8) For the purposes of section 16(7)(a) of the Act, information relating to a variety of seed potatoes contained in a statutory statement shall not be held to be false in a material particular by reason only that it is false—

(a)in the case of pre-basic seed potatoes, in respect of no more than 0.01 per cent of the seed potatoes;

(b)in the case of basic seed potatoes, in respect of no more than 0.1 per cent of the seed potatoes; and

(c)in the case of certified seed potatoes and test and trial seed potatoes, in respect of no more than 0.2 per cent of the seed potatoes.

(9) Except in accordance with the requirements of the Act, these Regulations or Orders made under the Plant Health Act 1967(16), no person shall, in connection with the marketing or the preparation for the marketing of any seed potatoes, wilfully reproduce, remove, alter, deface, conceal or misuse in any way any official label or official document, or any label affixed or document supplied in accordance with paragraph (2).

Sealing of packages and containers

13.—(1) Subject to regulation 17, no person shall market—

(a)pre-basic seed potatoes,

(b)basic seed potatoes,

(c)certified seed potatoes, or

(d)test and trial seed potatoes,

other than in a properly sealed package or container.

(2) For the purposes of this regulation, a properly sealed package or container means—

(a)for seed potatoes produced in England, a closed package or container that has been sealed with an unbroken sealing device by or under the supervision of an authorised officer; and

(b)for seed potatoes produced outside England, a closed package or container that has been sealed in accordance with Article 11(1) of the Directive.

(3) For the purposes of this regulation a “sealing device” means a device applied in such a manner to a package or container that when the package or container is opened the device will be broken.

(4) Where a sealing device on a package or container is broken, the package or container shall not be re-sealed with a sealing device otherwise than by or under the supervision of an authorised officer.

Identification of genetically modified seed potatoes

14.  No person shall market genetically modified seed potatoes unless—

(a)it is clearly indicated in any marketing information, including any sales catalogue or other marketing representations provided by the person marketing the seed potatoes, that the seed potatoes have been genetically modified; and

(b)any official label or official document, or other label or document, affixed to, accompanying or relating to the seed potatoes clearly indicates that they have been genetically modified.

Seed potatoes from outside the European Community: information

15.  Any person marketing more than two kilograms of seed potatoes that have been imported into England from a country outside the European Community shall supply the Secretary of State, in writing and within one month of the first marketing of the seed potatoes, with the particulars specified in Schedule 6.

Separate particulars

16.  Subject to regulation 17, a person who sells pre-basic seed potatoes, basic seed potatoes, certified seed potatoes or test and trial seed potatoes shall issue to the buyer not later than 14 days after the sale, or, if the seed potatoes are not delivered at the time of sale, not later than 14 days after delivery thereof, a sale note, delivery note, invoice or similar document specifying in relation to the seed potatoes the particulars specified in Schedule 7.

Retail sales of seed potatoes

17.  Regulations 11, 12, 13 and 16 shall not apply to a sale by retail of less than 50 kilograms of seed potatoes—

(a)in circumstances where at the time of sale there is displayed conspicuously on a label affixed to a package containing the seed potatoes or on a document or notice placed in close proximity to the seed potatoes a statement of the particulars specified in Schedule 7; or

(b)in containers that have not been previously used for any purpose upon each of which has been printed or otherwise legibly and indelibly marked the particulars specified in Schedule 7 or attached to or inserted in each of which is a label marked with those particulars.

Sampling of seed potatoes

18.—(1) A sample of seed potatoes taken for any purpose in connection with these Regulations shall be taken in accordance with this regulation.

(2) A sample required—

(a)for any purpose in connection with certification of seed potatoes produced in England, or

(b)for any other purpose,

shall be taken by an authorised officer and, subject to paragraph (3), shall be of such quantity or number and from such part or parts of the growing or harvested crop as he shall consider appropriate.

(3) Where a sample is required under paragraph (2)(b) and the bulk of seed potatoes in respect of which a growing crop certificate has been issued consists of seed potatoes—

(a)comprising more than one consignment, or

(b)associated with more than one growing crop certificate,

it shall be divided so that each consignment or, as the case may be, the quantity of potatoes associated with each growing crop certificate constitutes a separate lot and each lot shall, if necessary, be separately sampled.

Keeping of records

19.—(1) A person who produces seed potatoes which are intended for marketing shall maintain for a period of not less than two years records of purchase of the seed potatoes from which those seed potatoes were produced and particulars of the crops grown.

(2) A person who markets seed potatoes shall maintain for a period of not less than two years a record of his marketing of such seed potatoes.

Enforcement – powers of examination and production

20.—(1) An authorised officer may conduct an examination and take samples of seed potatoes and inspect and take copies of a relevant document for the purpose of ensuring compliance with any provision of these Regulations.

(2) For the purposes of this regulation a person shall permit, at any reasonable time, an authorised officer to—

(a)examine and take samples of seed potatoes in his possession or control; and

(b)inspect and take copies of any relevant document in his possession or control.

(3) For the purposes of this regulation an authorised officer may by written notice served on a person require him to—

(a)produce or make available for examination any seed potatoes or relevant document; or

(b)provide information within his knowledge or belief relating to the production, certification or marketing of the seed potatoes.

(4) A person on whom a notice is served in accordance with paragraph (3) shall comply with the requirements of that notice within seven days of such service or such longer time as may be specified in the notice.

(5) For the purposes of this regulation “relevant document” means any growing crop certificate, official label, official document, other document or label, record or invoice relating to the planting, production, certification or marketing of seed potatoes.

Enforcement – power to withdraw official labels, official documents and growing crop certificates

21.—(1) The Secretary of State may withdraw an official label or official document—

(a)where she is satisfied that the seed potatoes to which the official label or official document relates—

(i)have not been harvested, stored, transported or handled so as to minimise the risk of contamination by any of the diseases or pests specified in Schedule 3;

(ii)on a sample taken in accordance with regulation 18, exceed any of the tolerances for diseases, pests, damage or defects specified in the appropriate part of Schedule 3; or

(iii)otherwise fail to comply with these Regulations; or

(b)where she is satisfied that the official label or official document contains any particular which is false in a material respect.

(2) The Secretary of State may withdraw a growing crop certificate where she is satisfied that—

(a)the requirements of Schedule 1 are not, or are no longer, complied with; or

(b)the growing crop certificate contains any particular which is false in a material respect.

(3) Where an official label or official document is withdrawn in accordance with paragraph (1)(a)(ii), the seed potatoes from which the sample was taken may be the subject of an official examination in order to determine whether any of them do not exceed the tolerances specified in Schedule 3.

(4) Where an official examination is conducted in accordance with paragraph (3), the Secretary of State may issue an official label or official document in relation to such seed potatoes as are found not to exceed the tolerances in Schedule 3.

(5) Where an official label, official document or growing crop certificate is withdrawn in accordance with this regulation, an authorised officer may—

(a)remove and retain the official label, official document or growing crop certificate; or

(b)require any person in possession or charge of the official label, official document or growing crop certificate to deliver it to the authorised officer within such time as he may specify.

(6) A person in possession or charge of an official label, official document or growing crop certificate that has been withdrawn in accordance with this regulation shall—

(a)permit an authorised officer to remove the official label, official document or growing crop certificate in accordance with paragraph (5)(a); and

(b)comply with any requirement made in accordance with paragraph (5)(b).

Service of notices

22.—(1) For the purposes of regulation 20(3), a notice shall be deemed to have been served on any person if it is delivered to him personally or left for him at his last known place of abode or business or sent through the post in a letter addressed to him there.

(2) 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 including a Scottish partnership (other than a limited liability partnership), be served on a partner or person having the control or management of the partnership business at the address of the principal office of the partnership; or

(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 that partnership,

and for the purposes of this paragraph the principal office of a company registered outside the United Kingdom or of a partnership carrying on business outside the United Kingdom shall be its principal office within the United Kingdom.

Modification of provisions of the Act

23.—(1) In connection with the provisions of these Regulations the operation of the following provisions of the Act is modified or excluded in accordance with the provisions of this regulation.

(2) Section 25(17) is modified as if for the purposes of the section any reference to “premises” were a reference to premises as defined in these Regulations and any reference to a subsection containing a reference to premises were a reference to that subsection as so modified.

(3) Section 25(1) is modified as if the reference to subsection (4) of that section were a reference to that subsection as modified by the provision of paragraph (4).

(4) In section 25(4) the words from “potatoes” (where it first occurs) to the end are omitted.

(5) In section 26, subsections (2), (4), (5), (6), (7), (8) and (9) are omitted.

Revocations

24.  The regulations in Schedule 8 are revoked.