The Seed (Registration, Licensing and Enforcement) (Scotland) Regulations 2006

PART I GENERAL

Citation , commencement and extent

1.—(1) These Regulations may be cited as the Seed (Registration, Licensing and Enforcement) (Scotland) Regulations 2006 and shall come into force on 1st July 2006.

(2) These Regulations extend to Scotland only.

Interpretation

2.—(1) In these Regulations–

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

• “Analyst in Charge”means a seed analyst who has–

  (a)

  passed an examination relating to laboratory management organised by, or on behalf of, the Scottish Ministers, the Secretary of State, the National Assembly for Wales or the Department of Agriculture and Rural Development; and

  (b)

  been appointed as the Analyst in Charge of a licensed seed testing station;

• “applicant for certification”means a person who has applied for an official certificate under the Seed Marketing Regulations;

• “authorised officer”means an officer authorised for the purposes of these Regulations by the Scottish Ministers, the Secretary of State, the National Assembly for Wales or the Department of Agriculture and Rural Development;

• “the Department of Agriculture and Rural Development”means the Department of Agriculture and Rural Development in Northern Ireland;

• “early movement”means the marketing of seed under the Seed Marketing Regulations prior to completion of the official germination test;

• “licensed crop inspector”means a person who has been granted a licence under regulation 11(1) and “crop inspector’s licence”shall be construed accordingly;

• “licensed seed sampler”means a person who has been granted a licence under regulation 18(1) and “seed sampler’s licence”shall be construed accordingly;

• “licensed seed testing station”means a laboratory in respect of which a licence has been granted under regulation 25(1) and “seed testing station licence”shall be construed accordingly;

• “official sample”means a sample obtained–

  (a)

  by an authorised officer or a licensed seed sampler in connection with the purposes of the Seed Marketing Regulations; or

  (b)

  by an authorised officer under section 25(5) of the Act;

• “Official Seed Testing Station” means the Official Seed Testing Station for Scotland maintained under section 24(1) of the Act;

• “Person in Charge”means a person designated as the point of contact within a licensed seed testing station for all communications relating to compliance with seeds regulations and nominated under regulation 24(2)(a);

• “prescribed minimum weight”means the minimum acceptable weight of a sample of seed submitted to the Official Seed Testing Station as prescribed in the Seed Marketing Regulations;

• “registered person”means a person registered under regulation 5 and “registration”shall be construed accordingly;

• “responsible person”means, in relation to a body corporate or partnership which is a registered person, a person designated as the point o f contact for all communications relating to compliance with seeds regulations and nominated under regulation 4(2)(b);

• “the Secretary of State”means the Secretary of State for Environment, Food and Rural Affairs;

• “seed”means seed of any species to which the Seed Marketing Regulations apply;

• “seed analyst”means a person who has completed a training course and passed an examination relating to seed testing in respect of seed of the species being tested, or to be tested, by that person organised by or on be half of the Scottish Ministers, the Secretary of State, the National Assembly for Wales or the Department of Agriculture and Rural Development;

• “the Seed Marketing Directives”means–

  (a)

  Council Directive 2002/54/EC as amended on the marketing of beet seed(1);

  (b)

  Council Directive 66/402/EEC as amended on the marketing of cereal seed(2);

  (c)

  Council Directive 66/401/EEC as amended on the marketing of fodder plant seed(3);

  (d)

  Council Directive 2002/57/EC as amended on the marketing of oil and fibre plant seed(4); and

  (e)

  Council Directive 2002/55/EC as amended on the marketing of vegetable seed(5);

• “the Seed Marketing Regulations”means–

  (a)

  in relation to beet seed, the Beet Seeds Regulations 1993(6);

  (b)

  in relation to cereal seed, the Cereal Seed (Scotland) Regulations 2005(7);

  (c)

  in relation to fodder plant seed, the Fodder Plant Seed (Scotland) Regulations 2005(8);

  (d)

  in relation to oil and fibre plant seed, the Oil and Fibre Plant Seed (Scotland) Regulations 2004(9); and

  (e)

  in relation to vegetable seed, the Vegetable Seeds Regulations 1993(10);

• “seed merchant” means a person who carries on a business which includes marketing seed except where that marketing is only of one or more of the following types–

  (a)

  marketing of small packages of seed, small EC A packages of seed or small EC B packages of seed;

  (b)

  marketing of unpacketed seed;

  (c)

  marketing by a producer of small quantities of seed for scientific purposes or selection work in compliance with an authorisation permitting such marketing granted under the Seed Marketing Regulations;

  (d)

  marketing by a producer of seed for test and trial purposes in compliance with an authorisation permitting such marketing granted under the Seed Marketing Regulations; or

  (e)

  marketing of seed harvested from a crop that has been shown to meet the relevant crop standards in the Seed Marketing Regulations which is for processing, provided the identity of the seed is ensured;

• “seed packer”means a person who carries on a business which includes re-packing, re -sealing or re-labelling seed;

• “seed processor”means a person who carries on a business which includes–

  (a)

  packing, sealing or labelling seed (including the labelling or marking of Standard Seed of vegetables), small packages of seed, small EC A packages of seed or small EC B packages of seed;

  (b)

  preparing mixtures of seeds permitted by the Seed Marketing Regulations; or

  (c)

  cleaning, treating or otherwise processing seed intended for marketing;

• “seeds regulations”means regulations made under section 16 of the Act;

• “statutory seed testing”means seed testing carried out for the purposes of seeds regulations; and

• “the Tribunal”means the Plant Varieties and Seeds Tribunal continued under section 42 of the Plant Varieties Act 1997(11).

(2) Expressions in these Regulations which are not defined in paragraph (1) and which appear in the Seed Marketing Regulations have the same meaning in these Regulations as they have in the Seed Marketing Regulations.

(3) In these Regulations–

(a) any reference to a numbered regulation, to a numbered Part or to a numbered Schedule is a reference to the regulation, Part or Schedule in these Regulations so numbered;

(b) any reference to a numbered paragraph is a reference to the paragraph so numbered in the regulation or Schedule in which that reference occurs; and

(c) any reference to a Community instrument is a reference to that instrument and any amendment of such an instrument in force on the day these Regulations are made.

PART II REGISTRATION OF SEED MERCHANTS, SEED PACKERS AND SEED PROCESSORS

Obligation to be registered

3.  No person shall carr y on the business of seed merchant, seed packer or seed processor unless registered by the Scottish Ministers as a person who may carry on such a business.

Applications for registration

4.—(1) A person may apply to the Scottish Ministers to be registered as a person who may carry on the business of seed merchant, seed packer or seed processor.

(2) An application made under paragraph (1) shall–

(a) be made in such form and manner and be accompanied by such information as the Scottish Ministers may require;

(b) where the applicant is a body corporate or partnership, nominate a responsible person and shall include the name and address of that person;

(c) nominate a person responsible for the preparation of seed mixtures to which the Fodder Plant Seed (Scotland) Regulations 2005 apply where the business is to include such preparation; and

(d) be accompanied by such information relating to the applicant’s proposed business and such other information as the Scottish Ministers may require for the purpose of d etermining under regulation 5(1) whether the applicant is a suitable person to be registered as a seed merchant, seed packer or seed processor.

Registrations

5.—(1) Where an application is made under regulation 4(1) the Scottish Mi nisters shall, after carrying out such investigations as they consider appropriate, register the applicant as a person who may carry on the business of seed merchant, seed packer or seed processor if they are satisfied that the applicant is a suitable per son to carry on such a business having considered the matters to be taken into account specified in Part I of Schedule 1.

(2) A registration granted under paragraph (1) may specify that the registered person is entitled to carry on any one or more of the businesses of seed merchant, seed packer or seed processor.

(3) The Scottish Ministers may vary a registration to add a business referred to in paragraph (1) to the registration but only if they are satisfied that the registered person is a suitable person to carry on such a business having considered the matters to be taken into account specified in Part I of Schedule 1.

Conditions to be attached to registrations

6.—(1) A registration granted under regulation 5(1) shall be made subject to the conditions specified in Part II of Schedule 1 and such other conditions as the Scottish Ministers may consider necessary or desirable.

(2) The Scottish Ministers may, whether or not on the application of the registered person, vary the conditions attached to a registration.

Termination of registrations

7.—(1) The Scottish Ministers shall terminate a registration at the registered person’s request.

(2) A registration granted under regulation 5(1) in respect of more than one business pursuant to regulation 5(2) may be terminated as regards one or more of the businesses specified therein.

Revocation of registrations

8.  The Scottish Ministers may revoke a registration in respect of any or all of the businesses of seed merchant, seed packer or seed processor specified therein if–

(a) they are satisfied that the registered person has not complied with a condition to which the registration is subject;

(b) the registered person has been found guilty of committing an offence under section 16(7) of the Act; or

(c) they are no longer satisfied that the registered person is a suitable person to carry on the business of seed merchant, seed packer or seed processor having regard to the matters specified in Part I of Schedule 1.

Register

9.  The Scottish Ministers–

(a) shall keep a register containing the names and addresses of registered persons and shall specify in that register–

(i) the names of any persons nominated under regulation 4(2)(b) or (c); and

(ii) whether the registration is in respect of the business of seed merchant, seed packer or seed processor or any combination of those businesses;

(b) shall make the register available for inspection by any person at any reasonable time; and

(c) may from time to time publish the register in such manner as they consider appropriate.

PART III LICENSED CROP INSPECTORS

Applications for licences

10.—(1) A person may apply to the Scottish Ministers to be licensed to carry out functions specified in Part I of Schedule 2.

(2) An application made under paragraph (1) shall be made in such form and manner and be accompanied by such information as the Scottish Ministers may require.

Licences

11.—(1) Subject to paragraph (2), the Scottish Ministers shall grant an application made under regulation 10(1) if the applicant has, in the 6 month period immediately preceding the date of the application–

(a) completed such training courses related to crop inspection as the Scottish Ministers may require;

(b) passed such examinations of competence in crop inspection appropriate to the species and categories of seed to be covered by the licence as the Scottish Ministers may require; and

(c) signed a statement of commitment to carry out the functions of a licensed crop inspector in accordanc e with such instructions as may from time to time be issued by or on behalf of the Scottish Ministers,

and otherwise shall refuse the application.

(2) The Scottish Ministers may refuse to grant an application made under regulation 10(1) if they are of the opinion that the applicant is not a suitable person to be the holder of a licence having regard to–

(a) any previous suspension or revocation of a licence held by the applicant–

(i) under the Seeds (Registration, Licensing and Enforcement Regulations) 1985(12);

(ii) under these Regulations; or

(iii) granted by the Secretary of State, the National Assembly for Wales or the Department of Agriculture and Rural Development,

and the circumstances leading to the suspension or revocation; or

(b) any circumstances which led to the applicant being convicted of an offence under section 16(7) of the Act.

(3) A licence granted under paragraph (1) may be granted for any duration up to a maximum of three years and–

(a) shall specify which of the functions listed in Part I of Schedule 2 are covered by the licence and such other functions; and

(b) shall be subject to the conditions listed in Part II of Schedule 2 and such other conditions,

as the Scottish Ministers consider necessary or desirable having regard to the species and categories of crops that the licenc e holder is to be licensed to inspect.

(4) Where a licensed crop inspector applies for a licence under regulation 10(1) to take effect on expiry of the existing licence, the existing licence shall continue to have effect, regardless of its expiry date, pending final determination of the application or, where applicable, final determination of an appeal against refusal of the application.

Variation of licences

12.—(1) A licensed crop inspector may apply to the Scottish Ministers for a variation of licence–

(a) to authorise the inspection of crops being grown to produce seed of a species to which the Seed Marketing Regulations apply, except pre-basic and basic seed, in addition to, or instead of, the species and categories specified in the licence; or

(b) in respect of the functions specified in, or the conditions attached to, the licence.

(2) An application made under paragraph (1) shall be made in such form and manner and be accompanied by such information as the Scottish Ministers may require.

(3) Where an application is made under paragraph (1)(a) the Scottish Ministers shall vary the licence to authorise the inspection of crops of the species and category to which the application relates if they are satisfied that the applicant has satisfied the requirements of regulation 11(1)(a) and (b) in respect of that species and category and otherwise shall refuse to vary the licence in that regard.

(4) In varying a licence under paragraph (3) the Scottish Ministers may vary the functions specified in, and the conditions attached to, the licence.

(5) The Scottish Ministers may vary a crop inspector’s licence, whether or not they have received an application under this regulation, by–

(a) removing authorisation to inspect a species and category of crop if they are satisfied that the licensed crop inspector is no longer competent to inspect crops of that species and category; or

(b) otherwise varying the functions specified in, or the conditions attached to, the licence.

Termination of licences

13.  The Scottish Ministers sha ll terminate a crop inspector’s licence at the licence holder’s request.

Suspension and revocation of licences

14.—(1) The Scottish Ministers may suspend or revoke a crop inspector’s licence if they are satisfied that the licence holder–

(a) is no longer competent to perform a function specified in the licence;

(b) has failed to comply with a condition attached to the licence; or

(c) has been convicted of an offence under section 16(7) of the Act.

(2) A licence suspended under paragraph (1) may be suspended for any period up to its unexpired duration and shall cease to have effect and be deemed withdrawn during the period of suspension.

(3) The Scottish Ministers may suspend a crop inspector’s licence with immediate effect if they are satisfied that the carrying out of the functions specified in the licence is causing, or is likely to cause, prejudice to the administration or enforcement of seeds regulations.

(4) The Scottish Ministers may recall a suspension of licence if they consider it appropriate to do so.

Register

15.  The Scottish Ministers–

(a) shall keep a register of the names and addresses of licensed crop inspectors and the species and categories of crops which each licensed crop inspector is entitled to inspect;

(b) shall make the register availab le for inspection by any person at any reasonable time; and

(c) may from time to time publish the register in such manner as they consider appropriate.

Fees

16.—(1) A licensed crop inspector shall charge the fees prescribed in seeds regulations for carrying out the functions specified in the crop inspector’s licence and, where no fees are so prescribed, may charge reasonable fees for carrying out such functions.

(2) A licensed crop inspector shall not derive private gain in connection with carrying out the functions specified in the crop inspector’s licence.

PART IV LICENSED SEED SAMPLERS

Applications for licences

17.—(1) A person may apply to the Scottish Ministers to be licensed to carry out the functions specified in Part 1 of Schedule 3.

(2) An application made under paragraph (1) shall be made in such form and manner and be accompanied by such information as the Scottish Ministers may require.

Licences

18.—(1) Subject to paragraph (2), the Scottish Ministers shall grant an application made under regulation 17(1) if the applicant has in the 6 month period immediately preceding the date of the application–

(a) completed such training courses and passed such examinations of competence as the Scottish Ministers may require in relation to such functions from Part I of Schedule 3 as are to be specified in the licence; and

(b) signed a statement of commitment to carry out the functions of a licensed seed sampler in accordance with such i nstructions as may from time to time be issued by or on behalf of the Scottish Ministers,

and otherwise shall refuse the application.

(2) The Scottish Ministers may refuse to grant an application made under regulation 17(1) if they are of the opinion that the applicant is not a suitable person to be the holder of a licence having regard to–

(a) any previous suspension or revocation of a licence held by the applicant–

(i) under the Seeds (Registration, Licensing and Enforcement Regulations) 1985(13);

(ii) under these Regulations; or

(iii) granted by the Secretary of State, the National Assembly for Wales or the Department of Agriculture and Rural Development,

and the circumstances leading to the suspension or revocation; or

(b) any circumstances which led to the applicant being convicted of an offence under section 16(7) of the Act.

(3) A licence granted under paragraph (1) may be granted for any duration up to a maximum of three years and–

(a) shall specify which of the functions listed in Part I of Schedule 3 are covered by the licence and such other functions; and

(b) shall be subject to the conditions listed in Part II of Schedule 3 and such other conditions,

as the Scottish Ministers consider necessary or desirable.

(4) Where a licensed seed sampler applies for a licence under regulation 17(1) to t ake effect on expiry of the existing licence, the existing licence shall continue to have effect, regardless of its expiry date, pending final determination of the application or, where applicable, final determination of an appeal against refusal of the a pplication.

(5) A licensed seed sampler who is employed by a registered person shall only sample seed lots produced by or on behalf of that employer unless otherwise agreed between the licensed seed sampler, that employer, the applicant for certification and t he Scottish Ministers.

Variation of licences

19.—(1) A licensed seed sampler may apply to the Scottish Ministers for a variation of the functions specified in, or the conditions attached to, the licence.

(2) An application made under paragraph (1) shall be made in such form and manner and be accompanied by such information as the Scottish Ministers may require.

(3) The Scottish Ministers may vary a seed sampler’s licence, whether or not they have received an application under this regulati on, by varying the functions specified in, or the conditions attached to, the licence.

Termination of licences

20.  The Scottish Ministers shall terminate a seed sampler’s licence at the licence holder’s request.

Suspension and revocation of li cences

21.—(1) The Scottish Ministers may suspend or revoke a seed sampler’s licence if they are satisfied that the licence holder–

(a) is no longer competent to perform a function specified in the licence;

(b) has failed to comply with a cond ition attached to the licence; or

(c) has been convicted of an offence under section 16(7) of the Act.

(2) A licence suspended under paragraph (1) may be suspended for any period up to its unexpired duration and shall cease to have effect and be deemed withdrawn during the period of suspension.

(3) The Scottish Ministers may suspend a seed sampler’s licence with immediate effect if they are satisfied that the carrying out of the functions specified in the licence is causing, or is likely to cause, prejudice to the administration or enforcement of seeds regulations.

(4) The Scottish Ministers may recall a suspension of licence if they consider it appropriate to do so.

Register

22.  The Scottish Ministers–

(a) shall keep a register of the names and addresses of licensed seed samplers;

(b) shall make the register available for inspection by any person at any reasonable time; and

(c) may from time to time publish the register in such manner as they consider appropriate.

Fees

23.—(1) A licensed seed sampler shall charge the fees prescribed in seeds regulations for carrying out the functions specified in the seed sampler’s licence and, where no fees are so prescribed, may charge reasonable fees for carrying out such functions.

(2) A licensed seed sampler shall not derive private gain in connection with carrying out the functions specified in the seed sampler’s licence.

PART V LICENSED SEED TESTING STATIONS

Applications for licences

24.—(1) A person may apply to the Scottish Ministers for a laboratory to be licensed for use in the carrying out of statutory seed testing.

(2) An application made under paragraph (1) may relate to any species of seed to which the Seed Marketing Regulations apply and shall–

(a) nominate an Analyst in Charge and a Person in Charge and include the names and addresses of those persons;

(b) be accompanied by details of the laboratory and species of seed in respect of which a licence is sought; and

(c) contain such other information as the Scottish Ministers may reasonably require for the purpose of considering the matters to be taken into account in Part I of Schedule 4.

Licences

25.—(1) Subject to paragraph (2), the Scottish Ministers shall grant an application made under regulation 24(1) autho rising the use of the laboratory as a licensed seed testing station for the carrying out of statutory seed testing of the species specified in that application if they are satisfied that the laboratory is suitable for that purpose having regard to the mat ters to be taken into account in Part I of Schedule 4.

(2) The Scottish Ministers may refuse to grant an application made under regulation 25(1) if they are of the opinion that the applicant is not a suitable person to be the holder of a licence having regard to–

(a) any previous suspension or revocation of a licence held by the applicant–

(i) under the Seeds (Registration, Licensing and Enforcement Regulations) 1985(14);

(ii) under these Regulations; or

(iii) granted by the Secretary of State, the National Assembly for Wales or the Department of Agriculture and Rural Development,

and the circumstances leading to the suspension or revocation; or

(b) any circumstances which led to the applicant being convicted of an offence under section 16(7) of the Act.

(3) A licence granted under paragraph (1) may be granted for any duration up to a maximum of three years and shall be subject to the conditions set out in Part II of Schedule 4 and such other conditions as the Scottish Ministers consider necessary or desirable having regard to the species o f seed to be tested, the nature of the tests to be carried out and the procedures to be followed in connection with such tests.

(4) Where the holder of a seed testing station licence applies for a licence under regulation 25(1) to take effect on expiry of the existing licence, the existing licence shall continue to have effect, regardless of its expiry date, pending final determination of the application or, where applicable, final determination of an appeal against refusal of the application.

(5) A licensed seed testing station belonging to a registered person shall only be used to carry out statutory seed testing on seed lots produced by or on behalf of that person unless otherwise agreed between the registered person, the applicant for certification and the Sco ttish Ministers.

Variation of licences

26.—(1) The holder of a seed testing station licence may apply to the Scottish Ministers for a variation of licence–

(a) to authorise statutory seed testing on another species of seed in addition to, or instead of, the species specified in the licence; or

(b) in respect of the functions specified in, or the conditions attached to, the licence.

(2) Where an application is made under paragraph (1)(a) the Scottish Ministers shall vary the licence to authorise statutory seed testing on the species of seed to which that application relates if they are satisfied that the licensed seed testing station is suitable for that purpose having regard to the matters to be taken into account in Part I of Schedule 4.

(3) In varying a licence under paragraph (2) the Scottish Ministers may vary the functions specified in, or conditions attached to, the licence.

(4) The Scottish Ministers may vary a seed testing station licence whether or not they have received an application under this regulation by–

(a) removing the authorisation relating to the statutory seed testing of a species of seed if they are satisfied that the licensed seed testing station is no longer suitable for the carrying out of statutory seed tests in respect of that speci es having regard to the matters to be taken into account in Part I of Schedule 4; or

(b) varying the functions specified in, or the conditions attached to, the licence.

Training and examinations

27.  The Scottish Ministers may require a seed analyst carry ing out statutory seed testing at a licensed seed testing station, or the Analyst in Charge of a licensed seed testing station, to attend such training courses and undergo such examinations as the Scottish Ministers consider necessary to maintain the know ledge and qualifications required in respect of the functions of the seed analyst or Analyst in Charge carried out at that licensed seed testing station.

Duties of the Analyst in Charge of a licensed seed testing station

28.  The Analyst in Ch arge of a licensed seed testing station shall–

(a) have direct responsibility for the technical operations of the licensed seed testing station;

(b) supervise the work of all seed analysts assisting in statutory seed testing carried out at the licensed seed testing station; and

(c) be in effective control of all statutory seed testing carried out at the licensed seed testing station and have direct responsibility for the issuing of results of statutory seed tests.

Suspension and revocation of licences

29.—(1) The Scottish Ministers may suspend or revoke a seed testing station licence if it appears to them that–

(a) there has been a breach of a condition of the licence;

(b) the Analyst in Charge of the licensed seed testing station–

(i) is no longer qualified to act as such;

(ii) has failed to comply with a requirement under regulation 27 or with the duties imposed by regulation 28; or

(iii) is otherwise unfit to perform the duties of Analyst in Charge;

(c) there is no longer a person acting as Analyst in Charge of the licensed seed testing station;

(d) a seed analyst carrying out statutory seed testing at the licensed seed testing station is no longer qualified to do so or has failed to comply with a requirement under regulation 27; or

(e) the licence holder or any person whilst employed at the seed testing station has been convicted of an offence under section 16(7) of the Act.

(2) A licence suspended under paragraph (1) may be suspended for any period up to its unexpired duration and shall cease to have effect and be deemed withdrawn during the period of suspension.

(3) The Scottish Ministers may suspend a seed testing station licence with immediate effect if they are satisfied that the carrying on of statutory seed testing at the licensed seed testing station is causing, or is likely t o cause, prejudice to the administration or enforcement of seeds regulations.

(4) The Scottish Ministers may recall a suspension of licence if they consider it appropriate to do so.

Register

30.  The Scottish Ministers–

(a) shall keep a register of licensed see d testing stations and shall specify in the case of each licensed seed testing station the name and address of the licence holder, the names of the Analyst in Charge and the Person in Charge and the species of seed which may be tested under the licence;

(b) shall make the register available for inspection by any person at any reasonable time; and

(c) may from time to time publish the register in such manner as they consider appropriate.

Fees

31.—(1) The holder of a seed testing station licence may charge reasonable fees for carrying out the functions specified in that licence.

(2) No person shall derive private gain in connection with carrying out the functions specified in a seed testing station licence.

PART VI SUPERVISION AND ENFORCEMENT

Supervision of licensed crop inspectors , licensed seed samplers and licensed seed testing stations

32.—(1) The Scottish Ministers shall require authorised officers to undertake the checks described in paragraphs (2) to (4) in the supervision of licensed crop inspectors, licensed seed samplers and licensed seed testing stations.

(2) At least 5% of all crop inspection results submitted to the Scottish Ministers by licensed crop inspectors each calendar year sh all be checked by authorised officers who shall undertake such crop inspections and other investigations as are necessary to verify the accuracy of the results.

(3) At least 5% of all seed samples submitted to the Scottish Ministers by licensed seed samplers between 1st July and 30th June in the succeeding year shall be checked by authorised officers who shall draw such samples and undertake such other investigations as are necessary to verify that the sampling has been undertaken in accordance with the require ments of seeds regulations.

(4) At least 5% of all seed test results submitted to the Scottish Ministers from licensed seed testing stations between 1st July and 30th June in the succeeding year shall be checked by authorised officers who shall carry out such seed testing and other investigations as are necessary to verify the accuracy of the results.

Sampling for enforcement purposes

33.—(1) A sample of seed to be taken under section 25(5) of the Act for the enforcement of the Seed Marketing Regulations shall be taken and–

(a) where the sample is to be subject to moisture testing two moisture samples shall be drawn from the sample for that purpose; and

(b) the sample shall be divided to provide three parts of which–

(i) one part shall be delivered or sent to the owner of the seed or the owner’s representative together with, where applicable, one moisture sample drawn under paragraph (1)(a);

(ii) two parts shall be delivered or sent to the Official Seed Testing Station together with, where applicable, one moisture sample drawn under paragraph (1)(a); and

(iii) one of the parts delivered or sent under paragraph (1)(b)(ii) together with, where applicable, one moisture sample drawn under paragraph (1)(a) shall be officially examined for the purposes of the Seed M arketing Regulations and the other part shall be retained for production to a court in accordance with section 26(7) of the Act.

(2) The procedures described in paragraph (1) shall be carried out by an authorised officer in accordance with the requirements of the Seed Marketing Regulations and where it appears to that officer that the sample that has been taken was purchased for use and not for resale, the first part of the sample shall be delivered or sent to the last seller of the seed or the last seller ’s representative instead of to the owner of the seed or the owner’s representative.

(3) Where a part of a sample taken under this regulation has been officially examined for the purposes of the Seed Marketing Regulations, any residue from the sample may be used fo r such other tests as the Scottish Ministers may direct including for the purpose of the Community comparative tests referred to in the Seed Marketing Directives.

(4) Subject to paragraph (5)(a), the minimum weight of a sample of seed taken under paragraph (1) shall be such as to ensure that each of the parts into which it is divided is of not less than the prescribed minimum weight for such a sample.

(5) Where a sample of seed to be taken under section 25(5) of the Act is for the enforcement of the Vegetable Seeds Regulations 1993 and is contained in small packages, then –

(a) instead of being of a prescribed minimum weight the sample shall consist of as many such packages as the person taking the sample may require; and

(b) the sample shall be delivered or sent to the Offi cial Seed Testing Station where it shall be officially examined for the purposes of the Seed Marketing Regulations and the procedures set out in paragraphs (1) and (2) shall not apply.

Certificates of taking and testing a sample

34.—(1) A certificate in the form set out in Schedule 5 relating to the taking of a sample of seed for the enforcement of Seed Marketing Regulations is prescribed for the purposes of section 26(3) of the Act.

(2) Certificates in the forms set out in Schedule 6 relating to the results of a test of a sample of seed carried out for the enforcement of the Seed Marketing Regulations are prescribed for the purposes of section 24(5) of the Act, according to their correspondence with the species of seed tested.

PART VII MISCELLANEOUS AND SUPPLEMENTAL

Right to make representations

35.—(1) The Scottish Ministers shall not–

(a) refuse to register a person as a seed merchant, seed packer or seed processor;

(b) vary, refuse to var y, or revoke the registration of a person as a seed merchant, seed packer or seed processor, except where a variation is at the request of the registered person;

(c) refuse to grant or refuse to vary a crop inspector’s licence;

(d) vary a crop inspector’s licence under regulation 12(5);

(e) suspend or revoke a crop inspector’s licence;

(f) refuse to grant or refuse to vary a seed sampler’s licence;

(g) vary a seed sampler’s licence under regulation 19(3);

(h) suspend or revoke a seed sampler’s licence;

(i) refuse to grant or refuse to vary a seed testing station licence;

(j) vary a seed testing station licence under regulation 26(4); or

(k) suspend or revoke a seed testing station licence,

unless they have complied with the provisions of this regulation.

(2) Subject to paragraph (3), before taking any decision mentioned in paragraph (1) the Scottish Ministers shall–

(a) give the person concerned notice stating what they are proposing to do and the reasons for it; and

(b) inform the person concerned of the right to make representations to them and of the manner in which and the time, being not less than 21 days from the giving of the notice, within which such representations may be made.

(3) Paragraphs (2), (7)(a) and (8) shall not apply to a decision of the Scottish Ministers to suspend a licence with immediate effect under regulation 14(3), 21(3) or 29(3).

(4) Where the Scottish Ministers decide to suspend a licence with immediate effect under regulation 14(3), 21(3) or 29(3), they shall–

(a) as soon as reasonably practicable and not later than 7 days after making the decision give the person concerned notice of their decision and the reasons for it;

(b) inform the person concerned of the right to make representations to them and the manner in which and the time, being not less than 7 days from the giving of the notice unde r sub-paragraph (a), within which such representations may be made;

(c) decide within 21 days of the date of the decision whether the suspension is to remain in force or be withdrawn; and

(d) give the person concerned notice of their decision under sub-paragraph ( c) together with the reasons for it and, where appropriate, notice of the date from which that decision shall have effect.

(5) A person who makes representations to the Scottish Ministers shall, within the time allowed for the making of such representations, provide the Scottish Ministers with a copy of any document upon which that person seeks to rely.

(6) For the purposes of paragraphs (2) and (4), any notice to be given in connection with a registration held by a body corporate or a partnership or with a seed te sting station licence shall be–

(a) in the case of a registration, given to the responsible person; and

(b) in the case of a seed testing station licence, given to the Person in Charge.

(7) The Scottish Ministers shall not –

(a) take any decision mentioned in paragraph (1) until any period allowed under paragraph (2)(b) for making representations has passed; or

(b) take a decision under paragraph (4)(c) until any period allowed under paragraph (4)(b) for making representations has passed.

(8) The Scottish Ministers shall consider a ny representations made to them in accordance with this regulation before reaching a decision and shall give the person concerned notice of their decision together with the reasons for it and, where appropriate, notice of the date from which the decision shall have effect.

(9) In giving a notice under paragraphs (4)(d) or (8) the Scottish Ministers shall, where a right of appeal exists under regulation 36(1), inform the person concerned of–

(a) the right to appeal to the Tribunal against the decision; and

(b) the time within which such an appeal may be brought.

(10) The Scottish Ministers may charge any person making representations under this regulation reasonable fees in that connection and such fees shall be payable at the time that the representations are made.

Appeals

36.—(1) Subject to paragraph (2), a person notified of a decision under regulation 35(4)(d) or (8) may appeal to the Tribunal.

(2) There shall be no right of appeal to the Tribunal where the Scottish Ministers have–

(a) refused to grant or r efused to vary a crop inspector’s licence or a seed sampler’s licence; or

(b) varied, suspended or revoked a crop inspector’s licence or a seed sampler’s licence,

for the sole reason that the applicant or licence holder has failed to undertake and pass an exa mination that required to be undertaken and passed in relation to an application for the grant or variation of the licence or required to be undertaken and passed as a condition of the licence.

(3) Subject to paragraph (4), a decision which may be appealed to the Tribunal under paragraph (1) shall not have effect during the time allowed for making an appeal and, in the event that an appeal is timeously made, shall not have effect pending final determination of the appeal.

(4) Paragraph (3) shall not apply to a decision under regulation 35(4)(c) that a suspension of licence is to remain in force.

(5) The Scottish Ministers shall take such steps as are necessary on their part to give effect to any decision of the Tribunal which constitutes the final determination of an ap peal under paragraph (1).

Exemptions

37.  The Scottish Ministers may exempt any person or class of persons, or persons generally, from compliance with any provision of these Regulations and any such exemption may be granted subject to conditions.

Extension of time

38.  Where any document is to be delivered or given or any act is to be done in a time prescribed by these Regulations the Scottish Ministers may, if they consider it reasonable, extend the time for such period and upon such conditions as they consider appropriate.

Form of records

39.  Any record required to be kept under these Regulations, or as a condition of a registration or licence granted under these Regulations, may be in written or electronic form and shall be kept for at least six years, except where otherwise provided for in seeds regulations.

Form of registers

40.  Any register required to be kept by the Scottish Ministers under these Regulations may be kept in written or electronic form.

Service of notices

41.—(1) Any notice required to be given to any person by the Scottish Ministers by virtue of these Regulations may be given by them–

(a) by delivering it to or leaving it at that person’s proper address or by sending it by post to that person at that address;

(b) if the person is a body corporate or a partnership by giving it in accordance with paragraph (a) to the responsible person at the address of the registered or principal office of that body corporate or partnership; or

(c) if the notice is in connection with a licensed seed testing station by giving it in accordance with paragraph (a) to the Person in Charge.

(2) For the purposes of this regulation and section 7 of the Interpretation Act 1978(15)(service of documents by post) in its application to this regulation, the proper address of any person to whom a notice is to be given shall be that person’s last known address, which in the case of a body corporate or a partnership shall be the last known address of the registered or principal office of the body corporate or partnership;

(3) Paragraph (4) applies if a person to be given a notice under these Regulations by the Scottish Ministers has specified to them an address within the United Kingdom other than that person’s proper address (as determined under paragraph (2)) as the one at which notices of that description will be accepted.

(4) An address specified in accordance with paragraph (3) shall be treated as the person’s proper address for the purposes of this regulation and section 7 of the Interpretation Act 1978 in its application to this regulation, instead of that determined under paragraph (2).

Written and electronic communication

42.—(1) All applications, statements of commitment, representations, notices and requests to which these Regulations apply shall be made in writing.

(2) “Writing” in paragraph (1) shall include an electronic communication within the meaning of the Electronic Communications Act 2000(16)which has been recorded and is consequently capable of being reproduced provided that–

(a) any document of the type referred to in paragraph (1) shall only be sent to the Scottish Ministers by an electronic communication if the Scottish Ministers have represented that electronic communication is a means by which persons can send such a document to them; and

(b) notifications required to be made by the Scottish Ministers to any person shall only be made by an electronic communication if the intended recipient has used the same form of electronic communication in communicating with the Scot tish Ministers for the purposes of these Regulations or has otherwise represented that the form of electronic communication to be used by the Scottish Ministers is a means by which the Scottish Ministers can communicate with them.

Amendments to the O il and Fibre Plant Seed (Scotland ) Regulations 2004 , the Cereal Seed (Scotland ) Regulations 2005 and the Fodder Plant Seed (Scotland ) Regulations 2005

43.—(1) The Oil and Fibre Plant Seed (Scotland) Regulations 2004(17), the Cereal Seed (Scotland) Regulations 2005(18)and the Fodder Plant Seed (Scotland) Regulations 2005(19)are each amended in accordance with this regulation.

(2) In regulation 2 (interpretation) –

(a) in the definition of “licensed crop inspector”, for “regulation 10(1) (licensing of seed samplers and crop inspectors) of the Seeds (Registration, Licensing and Enforcement) Regulations 1985” substitute “regulation 11(1) (licences) of the Seed (Registration, Licensing and Enforcement) (Scotland) Regulations 2006”;

(b) in the definition of “licensed seed sampler”–

(i) in the Oil and Fibre Plant Seed (Scotland) Regulations 2004, for “regulation 10(1) (licensing of seed samplers and crop inspectors and licensed seed samplers) of the Seeds (Registration, Licensing and Enforcement) Regulations 1985” substitute “regulation 18(1) (licences) of the Seed (Registration, Licensing and Enforcement) (Scotland) Regulations 2006”; and

(ii) in the Cereal Seed (Scotland) Regulations 2005 and the Fodder Plant Seed (Scotland) Regulations 2005, for “regulation 10(1) (licensing of seed samplers and crop inspectors) of the Seeds (Registration, Licensing and Enforcement) Regulations 1985”substitute “regulation 18(1) (licences) of the Seed (Registration, Licensing and Enforcement) (Scotland) Regulations 2006”;

(c) in the definition of “licensed seed testing station”, for “regulation 9(1) (licensing of seed testing stations) of the Seeds (Registration, Licensing and Enforcement) Regulations 1985” substitute “regulation 25(1) (licences) of the Seed (Registration, Licensing and Enforcement) (Scotland) Regulations 2006”; and

(d) in the case of the Cereal Seed (Scotland) Regulations 2005 and the Fodder Plant Seed (Scotland) Regulations 2005 only, in the definition of “registered number ”for “regulation 4 of the Seeds (Registration, Licensing and Enforcement) Regulations 1985”substitute “regulation 5(1) (registrations) of the Seed (Registration, Licensing and Enforcement) (Scotland) Regulations 2006”.

(3) In regulation 16(4) and (5), for “regulation 4(1) (registration of seed merchants, seed packers and seed processors) of the Seeds (Registration, Licensing and Enforcement) Regulations 1985”substitute “regulation 5(1) (registrations) of the Seed (Registration, Licensing and Enforcement) (Scotland) Regulations 2006”.

(4) In re gulation 24(2)(a) of the Oil and Fibre Plant Seed (Scotland) Regulations 2004 and regulation 25(2)(a) of the Cereal Seed (Scotland) Regulations 2005 and the Fodder Plant Seed (Scotland) Regulations 2005 respectively–

(a) for “regulation 4(1) (registration of seed merchants, seed packers and seed processors) of the Seeds (Registration, Licensing and Enforcement) Regulations 1985”substitute “regulation 5(1) (registrations) of the Seed (Registration, Licensing and Enforcement) (Scotland) Regulations 2006”; and

(b) for “regulation 13(a) (inspection and publication of lists of registered and licensed persons) of the Seeds (Registration, Licensing and Enforcement) Regulations 1985”substitute “regulation 9, 15, or 22 of the Seed (Registration, Licensing and Enforcement) (Scotland) Regulations 2006”.

Amendments to the Seeds (Fees ) Scotland Regulations 2002

44.—(1) The Seeds (Fees) Scotland Regulations 2002(20)are amended in accordance with this regulation.

(2) In regulation 2 (interpretation) –

(a) in the definition of “licensed crop inspector”, for “regulation 10 of the Seeds (Registration, Licensing and Enforcement) Regulations 1985”substitute “regulation 11(1) (licences) of the Seed (Registration, Licensing and Enforcement) (Scotland) Regulations 2006”;

(b) in the definition of “licensed seed sampler”, for “regulation 10 of the Seeds (Registration, Licensing and Enforcement) Regulations 1985 ”substitute “regulation 18(1) (licences) of the Seed (Registration, Licensing and Enforcement) (Scotland) Regulations 2006”; and

(c) in the definition of “licensed seed testing station”, for “regulation 9 of the Seeds (Registration, Licensing and Enforcement) Regulations 1985 ”substitute “regulation 25(1) (licences) of the Seed (Registration, Licensing and Enforcement) (Scotland) Regulations 2006”.

(3) In the Schedule 6 heading, for “THE SEEDS (REGISTRATION, LICENSING AND ENFORCEMENT) REGULATIONS 1985”substitute “THE SEED (REGISTRATION, LICENSING AND ENFORCEMENT) (SCOTLAND) REGULATIONS 2006”.

Revocations , transitional a nd savings provisions

45.—(1) Subject to the following provisions of this regulation, the following regulations are revoked insofar as they apply to Scotland–

(a) the Seeds (Registration, Licensing and Enforcement) Regulations 1985 (“the 1985 Regulations”)(21);

(b) the Seeds (Registration, Licensing and Enforcement) (Amendment) Regulations 1987(22);

(c) the Seeds (Registration, Licensing and Enforcement) (Amendment) Regulations 1990(23); and

(d) the Seeds (Registration, Licensing and Enforcement) (Amendment) Regulations 1993(24).

(2) Any application made to the Scottish Ministers in accordance with regulation 4(2) of the 1985 Regulations but not determined at the coming into force of these Regulations shall be treated as an application referred to in regulation 4(1) of these Regulations and shall be determined in accordance with these Regulations.

(3) Any application made to the Scottish Ministers for–

(a) a seed testing station licence under regulation 9(1); or

(b) a crop inspector’s licence or seed sampler’s licence under regulation 10(1).

of the 1985 Regulations but not determined at the coming into force of these Regulations shall be treated as an application referred to in regulation 10(1), 17(1) or 24(1), as the case may be, of these Regulations and shall be determin ed in accordance with these Regulations.

(4) Any registration made in accordance with regulation 4(3) of the 1985 Regulations and having effect at the coming into force of these Regulations shall have effect as though it were a registration made in accordance with regulation 5 of these Regulations.

(5) Any licence granted–

(a) in respect of a licensed seed testing station in accordance with regulation 9(1) of the 1985 Regulations and having effect at the coming into force of these Regulations shall have effect as though it were a licence granted in accordance with regulation 25(1) of these Regulations; and

(b) to a licensed crop inspector or licensed seed sampler in accordance with regulation 10(1) of the 1985 Regulations and having effect at the coming into force of these Regulations shall have effect as though it were a licence granted in accordance with regulation 11(1) of these Regulations in the case of a licensed crop inspector and regulation 18(1) of these Regulations in the case of a licensed seed sampler.

(6) The right to make representations in accordance with regulation 35 of these Regulations and to appeal to the Tribunal in accordance with regulation 36 of these Regulations shall not apply in respect of any licence which was granted under the 1985 Regulations and which is varied within three months of the coming into force of these Regulations.

(7) Any fee arising whether wholly or in part under the 1985 Regulations but not paid at the coming into force of these Regulations shall be treated as a fee arising under these Regulations and shall be recoverable accordingly.

ROSS FINNIE

A member of the Scottish Executive

St Andrew’s House,

Edinburgh

7th June 2006