STATUTORY INSTRUMENTS

S.I. No. 618 of 2002

EUROPEAN COMMUNITIES (MARKETING OF FOREST REPRODUCTIVE MATERIAL) REGULATIONS 2002

Published by the Stationery Office, Dublin

To be purchased from the

GOVERNMENT PUBLICATIONS SALES OFFICE

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or through any bookseller

I, Dermot Ahern, Minister for Communications, Marine and Natural Resources, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 ( No. 27 of 1972 ) for the purpose of giving effect to Council Directive No. 1999/105/EC of 22 December 1999¹ , hereby make the following regulations:

Citation

1.         (1)      These Regulations may be cited as the European Communities (Marketing of Forest Reproductive Material) Regulations 2002.

(2)      These Regulations come into operation on 1 January 2003.

Interpretation

2.         (1)      In these Regulations -

“Annex” means an Annex to the Council Directive;

“approved” in relation to basic material, means approved by the official body in the State or other Member State in accordance with Article 4 of the Directive, and “approval” shall be construed accordingly;

“authorised officer” means a person appointed as an authorised officer under Regulation 14;

“basic material” means any of the following:

(a)      seed source, meaning trees within an area from which seed is collected,

(b)      stand, meaning a delineated population of trees possessing sufficient uniformity in composition,

(c)      seed orchard, meaning a plantation of selected clones or families which is isolated or managed, so as to avoid or reduce pollination from outside sources, and managed to produce frequent, abundant and easily harvested crops of seed,

(d)      parents of family, meaning trees used to obtain progeny by controlled or open pollination of one identified parent used as a female, with the pollen of one parent (full-sibling) or a number of identified or unidentified parents (half sibling),

(e)      clone, meaning group of individuals (ramets) derived originally from a single individual (ortet) by vegetative propagation, for example by cutting, micropropagation, grafts, layers or divisions,

(f)      clonal mixture, meaning a mixture of identified clones in defined proportions;

“Council Directive” means Council Directive No. 1999/105/EC of 22 December 1999¹ ;

“forest reproductive material” means reproductive material of those tree species and artificial hybrids thereof which are important for forestry purposes in all or part of the Community and in particular those which are listed in Annex I;

“marketing” means display with a view to sale, offering for sale, sale or delivery to another person including delivery under a service contract;

“Minister” means Minister for Communications, Marine and National Resources;

“official body” shall be construed in accordance with Regulation 4;

“premises” includes any place, vehicle, railway wagon, container or aircraft;

“production” includes all stages in the generation of the seed unit, the conversion from seed unit to seed and the raising of planting stock from seed and parts of plants;

“Regulations of 1973” means European Communities (Forest Reproduction Material) Regulations 1973 ( S.I. No. 165 of 1973 );

“reproductive material” means any of the following:

(a)      seed unit, meaning cones, infructescenses, fruits and seeds intended for production of planting stock,

(b)      parts of plants, meaning stem cuttings, leaf cuttings and root cuttings, explants or embryos for micropropagation, buds, layers, roots, scions, sets and any parts of a plant intended for the production of planting stock,

(c)      planting stock, meaning plants raised from seed units, from parts of plants, or from plants from natural regeneration;

“supplier” means any natural or legal person engaged professionally in marketing or importing of forest reproductive material;

“third country” means a country or territory other than a Member State of the European Communities.

(2)      A word or expression which is used in these Regulations and which is also used in the Council Directive has, unless the context otherwise requires, the same meaning in these Regulations as it has in the Council Directive.

(3)      In these Regulations -

(a)      a reference to a Regulation is to a Regulation of these Regulations, unless it is indicated that reference to some other Regulations is intended, and

(b)      a reference to a paragraph or subparagraph is a reference to a paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

Scope and material not for forestry purposes

3.         (1)     These Regulations apply to the production with a view to marketing and to the marketing of forest reproductive material within the Community.

(2)      These Regulations do not apply to forest reproductive material in the form of planting stock or parts of plants, which is shown to be intended for purposes other than forestry.

(3)      Material referred to in paragraph (2) shall be accompanied by a label or other document bearing the following statement “Not for forestry purposes”.

(4)      A person who fails to comply with paragraph (3) is guilty of an offence.

(5)      These Regulations do not apply to forest reproductive material which is shown to be intended for export or re-export to third countries.

⁽⁶⁾       These Regulations do not apply to the marketing of forest reproductive material accumulated before 1 January 2003. A person may market, until exhaustion, stocks of forest reproductive material accumulated before 1 January 2003.

Official body

4.         (1)      The Minister shall be the official body in the State for the purposes of the Council Directive.

(2)      The Minister may delegate tasks under these Regulations and the Council Directive to be accomplished, under the authority and supervision of the Minister, to any person, provided that such person has no personal interest in the outcome of the measures it takes.

Basic material

5.         (1)      A person may only use approved basic material for the production of forest reproductive material which is to be marketed.

(2)      Basic material may only be approved by an official body in accordance with Article 4(2) of the Council Directive and if it consists of a genetically modified organism in accordance with Article 5 of the Council Directive.

(3)      Approval of a basic material shall be withdrawn by the official body if the requirements of the Council Directive are no longer met.

(4)      An official body may restrict the approval of basic material for the production of forest reproductive material of the category “source identified”.

(5)      A person who produces forest reproductive material for marketing other than in accordance with paragraph (1) is guilty of an offence.

Marketing of forest reproductive material to be in conformity with Regulations and Council Directive

6.         (1)      A person shall not market forest reproductive material derived from approved basic material, unless the material being -

(a)      material of the species listed in Annex I, is of the categories “source-identified”, “selected”, “qualified” or “tested” and meets the requirements of Annexes II, III, IV and V, respectively,

(b)      material of the artificial hybrids listed in Annex I, is of the “selected”, “qualified” or “tested” categories and meets the requirements of Annexes III, IV and V, respectively,

(c)      material of the species and artificial hybrids listed in Annex I which are vegetatively reproduced, is of the “selected”, “qualified” or “tested” categories and meets the requirements of Annexes III, IV and V, respectively. In the case of reproductive material of the “selected” category, it may only be marketed if it has been mass propagated from seeds,

(d)      material of the species and artificial hybrids listed in Annex I, which consists wholly or partly of genetically modified organisms, is of the “tested” category and meets the requirements of Annex V.

(2)      The categories under which reproductive material from the different types of basic material may be marketed are as set out in the table in Annex VI.

(3)      A person shall not market -

(a)      forest reproductive material of the species and artificial hybrids listed in Annex I unless it meets the relevant requirements in Annex VII, or

(b)      parts of plants and planting stock unless they meet the requirements of prevailing international standards, once those standards are approved in accordance with the procedure referred to in Article 26(3) of the Council Directive.

(4)      A person shall ensure that forest reproductive material for individual units of approval or lots remains clearly identifiable through the entire process from collection to delivery to the end user.

(5)      Notwithstanding paragraph (1), the official body may authorise suppliers to place on the market appropriate quantities of -

(a)      forest reproductive material for tests, scientific purposes, selection work or genetic conservation purposes; and

(b)      seed units which are clearly shown not to be intended for forestry purposes.

(6)      The conditions under which the official body may grant the authorisations referred to in paragraph (5) may be determined in accordance with the procedure referred to in Article 26(3) of the Council Directive.

(7)      A person who markets forest reproductive material other than in accordance with this Regulation is guilty of an offence.

Suppliers Register

7.         (1)      The official body shall establish and maintain a register (“suppliers register”) of suppliers of forest reproductive material in accordance with Article 6(4) of the Council Directive.

(2)      The suppliers register may be maintained in a form that is not legible if it is capable of being converted into a legible form.

(3)      A supplier of forest reproductive material shall be registered on the suppliers register.

(4)      An application for registration on the suppliers register shall be in such form as the official body decides.

(5)      An applicant for registration on the suppliers register shall supply the official body with such information in respect of marketing forest reproductive material as it requests.

National Register of Forest Basic Material

8.         (1)      The National Catalogue of Forest Basic Material, established and maintained under Regulation 3 of the Regulations of 1973 of approved forest basic material in the State shall continue and shall be known as the National Register of Forest Basic Material (“national register”).

(2)      The official body shall maintain the national register in accordance with Article 4(2) and 10 of the Council Directive.

(3)      The national register may be maintained in a form which is not legible if it is capable of being converted into a legible form.

(4)      After harvesting, a master certificate showing the unique reference in the national register shall be issued by the official body for all forest reproduction material derived from approved basic material, giving the relevant information set out in Annex VIII.

(5)      Where mixing takes place in accordance with subparagraph (a), (b), (c) or (e) of Article 13(3) of the Council Directive, the official body shall ensure that the national register references of the components are identifiable and a new master certificate or other document identifying the mixture is issued.

Identification of reproductive material

9.         (1)      Reproductive material shall, during all stages of production, be kept separated by the producer of the material by reference to individual units of approval. Each lot of reproductive material shall be identified by the following:

(a)      master certificate code and number;

(b)      botanical name;

(c)      category;

(d)      purpose;

(e)      type of basic material;

(f)       register reference or identity code for region of provenance;

(g)      region of provenance - for reproductive material of the “source identified” and “selected” categories or other reproductive material if appropriate;

(h)      if appropriate, whether the origin of the material is autochthonous or indigenous, non-autochthonous or non-indigenous, or unknown;

(i)       in the case of seed units, the year of ripening;

(j)      age and type of planting stock of seedlings or cuttings, whether undercuts, transplants or containerised;

(k)      whether it is genetically modified.

(2)      Mixing of forest reproductive material shall be in accordance with subparagraph (a), (b), (c) or (e) of Article 13(3), as the case may be.

(3)      A producer of forest reproductive material who fails to comply with this Regulation is guilty of an offence.

Suppliers label or document

10.       (1)      Reproductive material may be marketed by a supplier only in lots which comply with Regulation 9 and are accompanied by a label or other document from the supplier (“supplier's label or document”) giving, in addition to the information required under Regulation 9, the following information:

(a)      master certificate number issued under Regulation 8(4) or reference to the other document available according to Regulation 8(5);

(b)      name of supplier;

(c)      quantity supplied;

(d)      in the case of reproductive material of the “tested” category whose basic material is approved under Article 4(5) of the Council Directive, the words “provisionally approved”;

(e)      whether the material has been vegetatively propagated.

(2)      In the case of seeds, the supplier's label or document referred to in paragraph (1) shall also include the following additional information, assessed, as far as possible, by internationally accepted techniques:

(a)      purity: the percentage by weight of pure seed, other seed and inert matter of the product marketed as a seed lot;

(b)      the germination percentage of the pure seed, or, where germination percentage is impossible or impractical to assess, the viability percentage assessed by reference to a specified method;

(c)      the weight of 1,000 pure seeds;

(d)      the number of germinable seeds per kilogram of product marketed as seed, or, where the number of germinable seeds is impossible or impractical to assess, the number of viable seeds per kilogram.

(3)      In the case of Populus spp., parts of plants shall only be marketed if the EC classification number according to -

(a)      in the case of stem cuttings, point 1(b), and

(b)      in the case of sets, point 2(b),

of Annex VII, Part C is given on the supplier's label or document.

(4)      If a coloured label or document is used in respect of any category of forest reproductive material, the colour of the supplier's label or document shall be -

(a)      yellow, in the case of “source-identified” reproductive material,

(b)      green, in the case of “selected” reproductive material,

(c)      pink, in the case of “qualified” reproductive material, and

(d)      blue, in the case of “tested” reproductive material.

(5)      In the case of forest reproductive material derived from basic material which consists of a genetically modified organism, any label or document, official or otherwise, for the lot shall clearly indicate that fact.

(6)      A supplier who fails to comply with this Regulation is guilty of an offence.

Seed Units

11.       (1)      Seed units shall be marketed by a supplier only in sealed packages. The sealing device shall be such as will become unserviceable when the package is opened.

(2)      A supplier who fails to comply with this Regulation is guilty of an offence.

Imports from third countries

12.       (1)      A supplier importing forest reproductive material shall -

(a)      ensure that the material to be imported affords equivalent guarantees in all respects to forest reproductive material produced in accordance with these Regulations and the Council Directive,

(b)      such imported material is accompanied by a master certificate or an official certificate issued by the country of origin and records containing details of all consignments to be exported, provided by the supplier in the third country,

(c)      within one month of receiving such material notify the official body and furnish it with the accompanying certificates and records.

(2)      A supplier who fails to comply with this Regulation is guilty of an offence.

Keeping records

13.       (1)      A person who carries on the business of producing or marketing forest reproductive material shall keep records of his or her transactions in the course of the business.

(2)      A supplier of forest reproductive material shall upon the request of the official body supply it with records of such material, which shall contain details of all consignments detained and marketed.

Powers of authorised officer and search warrant

14.       (1)      The Minister may appoint such and so many persons as he or she thinks fit to be authorised officers for the purpose of these Regulations and the Council Directive.

(2)      (a)     An authorised officer shall be furnished with a warrant of his or her appointment.

(b)      When exercising a power conferred on him or her under this Regulation an authorised officer shall, if requested by any person thereby affected, produce the warrant to that person for inspection.

(3)      Subject to paragraph (4), an authorised officer may for the purpose of ensuring that these Regulations and the Council Directive are being complied with -

(a)      at all reasonable times, enter any premises of a producer of forest reproductive material, a supplier or where he or she has reason to believe forest reproductive material is being produced or marketed and inspect the premises,

(b)      require any person in charge of the premises or connected with any equipment or other device at that premises or place to produce to him or her any books, documents or records (and in the case of such information in a non-legible form to reproduce it in permanent legible form) relating to the material and to give to him or her such information as he or she may reasonably require in relation to the material,

(c)      inspect and take copies of, or take extracts from, any such books, documents or records (including in the case of information in a non-legible form a copy of or extract from such information in permanent legible form),

(d)      there or at any other place carry out or have carried out such examinations, inspections or tests of the material, equipment or other device found on the premises or at the place as the officer considers appropriate and, if the officer so thinks fit, remove or have removed from there any material, equipment or other device and retain it for a reasonable period to facilitate such examination, testing or inspection,

(e)      examine any procedure connected with the manufacture of the material,

(f)       take, without payment, such samples of the material or of any other substance as the officer may reasonably require and carry out or have carried out on such samples there or elsewhere such checks analysis and inspections as he or she considers necessary,

(g)      seize and detain the material,

(h)      where the material does not comply with these Regulations or the Council Directive, destroy it or require the producer of, the supplier of or other person marketing, the material, as the case may be, to destroy it at their expense,

(i)       in the case of forest reproductive material which has been imported from a third country and which fails to comply with Regulations 12(1)(a) or (b), refuse it entry and order it to be returned, at the expense of the supplier concerned to the third country of origin,

(j)      secure for later inspection the premises or part of it,

(k)      if accompanied by a member of the Garda Síochána in uniform, stop any vehicle which the authorised officer reasonably suspects to contain any forest reproductive material.

(4)      An authorised officer shall not, other than with the consent of the occupier, enter a private dwelling unless he or she has obtained a warrant from the District Court under paragraph (7) authorising such entry.

(5)      An authorised officer, where he or she considers it necessary, may be accompanied by a member of the Garda Síochána when performing any powers conferred on an authorised officer by this Regulation.

(6)      A member of the Garda Síochána not in uniform, when exercising any such power, shall, if so requested by any person affected, produce evidence in writing that he or she is such a member or officer.

(7)      If a judge of the District Court is satisfied, on the sworn information of an authorised officer that there are reasonable grounds for suspecting that forest reproductive material or any document relating there to is kept on any premises the judge may issue a warrant authorising an authorised officer, accompanied, if appropriate, by other authorised officers or by a member or members of the Garda Síochána at any time or times within one month from the date of issue of the warrant, on production of the warrant requested, to enter those premises or part of it or that place, if need be by reasonable force, and exercise all or any of the powers conferred on an authorised officer under this Regulation.

(8)      A person who without reasonable excuse fails to comply with any request or requirement made by an authorised officer under this Regulation is guilty of an offence.

(9)      A person who obstructs or interferes with an authorised officer in the exercise of his or her powers under this Regulation or gives an authorised officer information which is false or misleading is guilty of an offence.

(10)    An authorised officer authorised under the Regulations of 1973 and holding office immediately before the commencement of these Regulations continues in office after such commencement as if appointed under this Regulation.

Experts from Commission

15.       (1)      Experts from the Commission of the European Communities may, if accompanied by an authorised officer, make on-the-spot checks under Article 16(6) of the Council Directive at any premises where forest reproductive material is produced or marketed so as far as is necessary to ensure uniform application of this Directive.

(2)      A person who obstructs or interferes with an expert referred to in paragraph (1) is guilty of an offence.

Compliance directions

16.       (1)      Where the official body or an authorised person is of opinion that a supplier is not complying with these Regulations or the Council Directive, he or she may direct the person to so comply.

(2)      A direction under paragraph (1) shall be in writing and shall state the reasons for the direction and, where appropriate, the steps to be taken to comply with these Regulations or the Council Directive.

(3)      A person who, without reasonable excuse, fails to comply with a direction under paragraph (1) is guilty of an offence.

Service of Directions

17.       (1)      A direction under Regulation 16 shall be addressed to the person concerned by name and may be served on or given or sent to the person in one of the following ways:

(a)      by delivering it to the person,

(b)      by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address,

(c)      by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.

(2)      Where a direction under Regulation 16 is to be served on or given to a person who is the owner or occupier of land and the name of the person cannot be ascertained by reasonable inquiry, it may be addressed to the person by using the words the owner or, as the case may require, the occupier.

(3)      For the purposes of this Regulation, a company (within the meaning of the Companies Acts 1963 to 2001) is deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.

Offences

18.       (1)      A person guilty of an offence under these Regulations is liable on summary conviction to a fine not exceeding €3,000.

(2)      An offence under these Regulations may be prosecuted by the Minister.

Revocations

19.       The following are revoked -

(a)      the European Communities (Forest Reproductive Material) Regulations 1973 ( S.I. No. 165 of 1973 ), and

(b)      the European Communities (Forest Reproductive Material) Regulations 1982 ( S.I. No. 359 of 1982 ).

¹ OJ No. L11, 15.01.00, p. 17

¹ OJ No. L11, 15.01.00, p. 17