The Seed (Licensing and Enforcement etc.) (Scotland) Regulations 2016

These Regulations may be cited as the Seed (Licensing and Enforcement etc.) (Scotland) Regulations 2016 and come into force on 1st July 2016.

These Regulations extend to Scotland only.

In these Regulations—

• “the 2006 Regulations” means the Seed (Registration, Licensing and Enforcement) (Scotland) Regulations 20062;

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

• “Analyst in Charge” means a seed analyst who the Scottish Ministers are satisfied has—

  1. a

     passed an appropriate examination relating to laboratory management; and

  2. b

     been appointed as the Analyst in Charge of a licensed seed testing station and who is responsible for carrying out the functions specified in regulation 9;

• “authorised officer” means an officer authorised by the Scottish Ministers for the purposes of Part II of the Act and these Regulations;

• “conservation variety” has the meaning given to it by regulation 2(1) of the Seeds (National Lists of Varieties) Regulations 20013;

• “licence holder” means a licensed crop inspector, a licensed professional seed operator, a licensed seed sampler or a licensed seed testing station;

• “licensed crop inspector” means, except in relation to regulation 23(7), a person who has been granted a licence under regulation 4(1)(a) to carry out crop inspections and “crop inspector’s licence” is to be construed accordingly;

• “licensed professional seed operator” means a person who has been granted a licence under regulation 4(1)(a) to carry out the functions of a seed merchant, a seed processor or, as the case may be, a seed packer or any combination of those functions and “professional seed operator’s licence” is to be construed accordingly;

• “licensed seed sampler” means, except in relation to regulation 23(7), a person who has been granted a licence under regulation 4(1)(a) to carry out functions in relation to seed sampling and “seed sampler’s licence” is to be construed accordingly;

• “licensed seed testing station” means, except in relation to regulation 23(7), a laboratory in respect of which a licence has been granted under regulation 4(1)(a) to carry out statutory seed testing and “seed testing station licence” is to be construed accordingly;

• “official sample” means a sample obtained—

  1. a

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

  2. 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;

• “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;

• “preservation mixture” has the same meaning as it has for the purposes of the Fodder Plant Seed (Scotland) Regulations 20054;

• “professional seed operator” means a seed merchant, a seed packer or a seed processor;

• “responsible person” means a person nominated under regulation 3(3) by an applicant for a professional seed operator’s licence or a seed testing station licence as the point of contact for all communications relating to the licence;

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

• “seed analyst” means a person who the Scottish Ministers are satisfied has completed an appropriate training course and passed an appropriate examination relating to seed testing in respect of seed of the species being tested, or to be tested, by that person;

• F1“the Seed Marketing Directives” means—

  1. a

     Council Directive 66/401/EEC on the marketing of fodder plant seedF2;

  2. b

     Council Directive 66/402/EEC on the marketing of cereal seedF3;

  3. c

     Council Directive 2002/54/EC on the marketing of beet seedF4;

  4. d

     Council Directive 2002/55/EC on the marketing of vegetable seedF5; and

  5. e

     Council Directive 2002/57/EC on the marketing of seed of oil and fibre plantsF6;

• F7“the Seed Marketing Regulations” means—

  1. a

     in relation to vegetable seed, the Vegetable Seeds Regulations 1993F8;

  2. b

     in relation to oil and fibre plant seed, the Oil and Fibre Plant Seed (Scotland) Regulations 2004F9;

  3. c

     in relation to cereal seed, the Cereal Seed (Scotland) Regulations 2005F10;

  4. d

     in relation to fodder plant seed, the Fodder Plant Seed (Scotland) Regulations 2005F11; and

  5. e

     in relation to beet seed, the Beet Seed (Scotland) (No. 2) Regulations 2010F12;

• “seed merchant” means a person who carries on a business which includes marketing seed (including seed of a conservation variety or a preservation mixture) except where that marketing is only of one or more of the following types—

  1. a

     marketing of small packages of seed, small F17... A packages of seed or small F17... B packages of seed;

  2. b

     marketing of unpacketed seed;

  3. 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;

  4. 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

  5. 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, including seed of a conservation variety or a preservation mixture;

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

  1. a

     packing, sealing or labelling seed (including the labelling or marking of Standard Seed of vegetables and seed of a conservation variety), small packages of seed, small F18... A packages of seed or small F18... B packages of seed;

  2. b

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

  3. 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 199715.

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.

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

In the case of an application for a professional seed operator’s licence or a seed testing station licence, the applicant must nominate a responsible person and include the name and contact address of that person.

In the case of an application for a seed testing station licence, the applicant must nominate an Analyst in Charge and include the name and contact address of that person.

A licence may be granted under paragraph (1)(a) for a maximum period of five years.

Subject to regulation 23, where a person applies for a licence under regulation 3(1) to take effect on expiry of an existing licence granted under regulation 4(1)(a), the existing licence continues 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.

The Scottish Ministers may at any time vary a licence granted under regulation 4(1)(a) including any functions specified in, and conditions attached to, the licence, whether or not at the request of the licence holder.

An application for a variation of a licence is to be made in such form and manner and be accompanied by such information as the Scottish Ministers may require.

A licence suspended under paragraph (1) or (2) may be suspended for any period up to its unexpired duration and ceases to have effect and is deemed to be withdrawn during the period of suspension to the extent specified by the Scottish Ministers.

The Scottish Ministers may suspend a licence under paragraph (1) or (2) in whole or in part 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.

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

A licensed crop inspector, a licensed seed sampler or a licensed seed testing station must charge the fees prescribed in seeds regulations for carrying out the functions specified in the licence.

Where no fees are prescribed in seeds regulations, a licensed crop inspector, a licensed seed sampler or a licensed seed testing station may charge reasonable fees for carrying out the functions specified in the licence, but may not derive any private gain in connection with the carrying out of those functions.

The Scottish Ministers must require an authorised officer 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.

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

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 must be checked by an authorised officer who must draw such samples and undertake such other investigations as are necessary to verify that the sampling has been undertaken in accordance with the requirements of seeds regulations.

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 must be checked by an authorised officer who must carry out such seed testing and such other investigations as are necessary to verify the accuracy of the results.

The Scottish Ministers may require an authorised officer to undertake such other checks in relation to licence holders as the Scottish Ministers consider appropriate, for the purposes of ensuring compliance with these Regulations and the Seed Marketing Regulations.

Paragraph (2) applies where a sample of seed is to be taken under section 25(5) of the Act for the enforcement of the Seed Marketing Regulations.

The procedures described in paragraph (2) are to 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 is to 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.

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 for such other tests as the Scottish Ministers may direct F19....

Subject to paragraph (6)(a), the minimum weight of a sample of seed taken as mentioned in paragraph (1) must 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.

A certificate in the form set out in Schedule 1 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.

Paragraph (2) does not apply to a decision of the Scottish Ministers to suspend a licence in whole or in part with immediate effect under regulation 7(4).

If the Scottish Ministers have received written representations within the period referred to in paragraph (2)(b) or, as the case may be, paragraph (4)(b), they must as soon as reasonably practicable consider any such representations before taking any decision mentioned in paragraph (1) or, as the case may be, deciding that the suspension of the licence is to remain in force or is to be recalled.

Subject to paragraph (2), a person given notice of a decision in accordance with regulation 15(6) and (7) may appeal to the Tribunal.

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

Paragraph (3) does not apply to a decision under regulation 15(5) that a suspension of the licence is to remain in force.

The Scottish Ministers must give effect to any decision of the Tribunal which constitutes the final determination of an appeal under paragraph (1).

For the purposes of paragraph (1), in the case of a licensed professional seed operator or a licensed seed testing station, “person” includes a responsible person.

In this regulation—

• “partnership” includes a Scottish partnership; and

• “relevant individual” means—

  1. a

     a director, manager, secretary or other similar officer of the body corporate; or

  2. b

     where the affairs of the body corporate are managed by its members, a member.

Subject to the following provisions of this regulation, the 2006 Regulations are revoked.

Any application made to the Scottish Ministers in accordance with regulation 4(1) (applications for registration) of the 2006 Regulations but not determined before 1st July 2016 is to be treated as an application to be licensed as a professional seed operator under regulation 3(1)(a) of these Regulations and is to be determined in accordance with these Regulations.

Subject to paragraph (6), any registration granted under regulation 5(1) of the 2006 Regulations and having effect immediately before 1st July 2016 is to continue to have effect until 31st December 2016 and the 2006 Regulations continue to apply to any such registration.

A registered person (as defined in regulation 2(1) of the 2006 Regulations) may, in accordance with regulation 3(1)(a) of these Regulations, apply to be licensed as a professional seed operator.

Where, following the receipt of an application as mentioned in paragraph (5), the Scottish Ministers grant a licence under regulation 4(1)(a) of these Regulations, any registration granted under regulation 5(1) of the 2006 Regulations ceases to have effect as from the date of the grant of the licence.

The Scottish Ministers may, in accordance with regulation 5(1) of these Regulations, vary any licence mentioned in paragraph (7) apart from its expiry date.

The right to make representations in accordance with regulation 15 of these Regulations and the right to appeal to the Tribunal in accordance with regulation 16 of these Regulations is not to apply in respect of any licence which was granted under the 2006 Regulations and which is, in accordance with regulation 5(1) of these Regulations, varied no later than 31st December 2016.

Any fee arising whether wholly or in part under the 2006 Regulations but not paid before 1st July 2016 is to be treated as a fee arising under these Regulations and is recoverable accordingly.