Title, commencement and application

1.-(1) The title of this Order is the Plant Health (Forestry) (Amendment) (Wales) Order 2019, and comes into force on 28 March 2019.

(2) This Order applies in relation to Wales.

Amendment of the Plant Health (Forestry) Order 2005

2.  The Plant Health (Forestry) Order 2005(4)is amended as follows.

Article 2 (general interpretation)

3.  In article 2(5)-

(a)in paragraph (1)-

(i)in the definition of "associated controlled dunnage", for "12A or 13" substitute "12, 12A, 13 or 13C";

(ii)after the definition of "debarked" insert-

""Decision 2002/757/EC" means Commission Decision 2002/757/EC on provisional emergency phytosanitary measures to prevent the introduction into and the spread within the Community of "Phytophthora ramorum"; Werres, De Cock & Man in ‘t Veld sp. nov., as amended from time to time(6);";

(iii)after the definition of "Decision 2012/138/EU" insert-

""Decision 2012/535/EU" means Commission Implementing Decision 2012/535/EU on emergency measures to prevent the spread within the Union of "Bursaphelenchus xylophilus (Steiner et Buhrer) Nickle et al. (the pine wood nematode), as amended from time to time(7);

"Decision (EU) 2015/789" means Commission Implementing Decision (EU) 2015/789 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells et al.), as amended from time to time(8);

"Decision (EU) 2015/893" means Commission Implementing Decision (EU) 2015/893 as regards measures to prevent the introduction into and the spread within the Union of Anoplophora glabripennis (Motschulsky), as amended from time to time(9);";

(iv)for the definitions of "ISPM No. 4" and "ISPM No. 15" substitute-

""ISPM No. 4" means International Standard for Phytosanitary Measures No. 4 of November 1995 on the requirements for the establishment of pest-free areas, prepared by the Secretariat of the IPPC established by the Food and Agriculture Organisation of the United Nations(10);

"ISPM No. 10" means International Standard for Phytosanitary Measures No. 10 of October 1999 on requirements for the establishment of pest free places of production and pest free production sites, prepared by the Secretariat of the IPPC established by the Food and Agriculture Organisation of the United Nations(11)

"ISPM No. 15" means International Standard for Phytosanitary Measures No. 15 of March 2002 on the regulation of wood packaging material in international trade, prepared by the Secretariat of the IPPC established by the Food and Agriculture Organisation of the United Nations(12);";

(v)after the definition of "official statement" insert-

""the OPM protected zone" means the area in Great Britain which is within the protected zone recognised for the United Kingdom in relation to Thaumetopoea processionea L. and described in point 16 under heading (a) of Annex 1 to Regulation (EC) No 690/2008(13);";

(vi)for the full-stop at the end of the definition of "wood packaging material" substitute-

";

"working day", in relation to notice requirements in articles 6(3)(b)(ii), 16(3) and 18(4) and the period for which material may be detained under article 14(1), means a period of twenty-four hours which is not a Saturday, Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971 in England and Wales or in Scotland;";

(vii)after the definition of "working day" insert-

""working hour" means a period of one hour during a working day.";

(b)in paragraph (3A), after "18(1)," insert "18(3),"; and

(c)after paragraph (4) insert-

"(5) The requirements specified in any entry in column 3 of Part A, Part B or Part C of Schedule 4 are without prejudice to any other requirements specified in another entry in column 3 of that Part."

Article 3 (interpretation of Part 2)

4.  In article 3(14)-

(a)for the semi-colon at the end of the definition of "industry certificate" substitute a full-stop;

(b)in the definition of "Customs Code", for the words from "Council" to the end substitute "Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code(15)";

(c)in the definition of "customs document", for "Article 4(16)(a) and (d) to (g)" substitute "Article 5(16)(a) and (b)"; and

(d)omit the definitions of "working day" and "working hour".

Article 20 (requirements for plant passports)

5.  In article 20(16)-

(a)in paragraph (2)-

(i)after "within" insert "a protected zone in";

(ii)omit "relevant territory as a";

(b)in paragraph (4)-

(i)after "within" insert "a protected zone in";

(ii)for "the relevant territory in which the movement takes place as a" substitute "that";

(c)omit paragraph (8)(17); and

(d)after the omitted paragraph (8), insert-

"(9) In the case of any relevant material of a description specified in paragraph 1A of Part A of Schedules 6 and 7, the plant passport shall have been issued by a treatment facility authorised in accordance with Article 13 of Decision 2012/535/EU.

(10) In paragraphs (2) and (4), "protected zone in a relevant territory" means any part of a protected zone which is in a relevant territory."

Article 21 (exceptions from certain prohibitions and requirements)

6.  In article 21(18)-

(a)in paragraph (1), for "and (g)" substitute ", (g) and (3)"; and

(b)after paragraph (2) insert-

"(2A) In the case of trees of host plants within the meaning of Article 1(b) of Decision (EU) 2015/789, the requirements in article 20(1) and (5) which would apply by virtue of paragraph 9 of Part A of Schedules 6 and 7 do not apply where the trees are being moved by a person acting for purposes outside the person's trade, business or profession and the person is acquiring them for personal use."

Article 40 (notification of the presence or suspected presence of certain tree pests)

7.  In article 40(19)-

(a)in paragraph (1), for "any tree pest to which this article applies" substitute "any notifiable tree pest";

(b)after paragraph (1A), in the text applying to Wales, insert-

"(1B) If the appropriate authority becomes aware of the presence or suspected presence of Xylella fastidiosa (Wells et al.) in any place or area in the relevant territory, the appropriate authority shall ensure that any person having under their control trees which may be infected by Xylella fastidiosa (Wells et al.) is immediately informed of-

(a)its presence or suspected presence;

(b)the possible consequences arising from its presence or suspected presence; and

(c)the measures to be taken as a result.",

and substitute the text of new paragraph (1B), above, for paragraph (1B) of the text applying to England and Scotland; and

(c)in paragraph (2), for "This article applies to" substitute "In paragraph (1), "notifiable tree pest" means".

Article 42A (power to share information for the purposes of the Order)

8.  After article 42 insert-

"Power to share information for the purpose of the Order

42A.-(1) The Commissioners for Her Majesty's Revenue and Customs may disclose any information in their possession to the appropriate authority for the purposes of this Order.

(2) Paragraph (1) is without prejudice to any other power of the Commissioners for Her Majesty's Revenue and Customs to disclose information.

(3) No person, including a servant of the Crown, may disclose any information received from the Commissioners for Her Majesty's Revenue and Customs under paragraph (1) if-

(a)the information relates to a person whose identity is specified in the disclosure or can be deduced from the disclosure;

(b)the disclosure is for a purpose other than specified in paragraph (1); and

(c)the Commissioners for Her Majesty's Revenue and Customs have not given their prior consent to the disclosure."

Article 43 (offences)

9.  In article 43(1)(a)(20)-

(a)at the end of paragraph (xiii), omit "and";

(b)at the end of paragraph (xiv), insert "and"; and

(c)after paragraph (xiv) insert-

"(xv)article 42A(3)."

Article 44 (penalties)

10.  For article 44 substitute-

"44.-(1) A person guilty of an offence under this Order (other than an offence under article 43(1)(a)(xv)) is liable-

(a)on summary conviction in England or Wales, to a fine;

(b)on summary conviction in Scotland, to a fine not exceeding level 5 on the standard scale.

(2) A person guilty of an offence under article 43(1)(a)(xv) is liable-

(a)on summary conviction in England or Wales, to imprisonment for a term not exceeding three months, to a fine or to both;

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

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

Schedule 1 (tree pests which shall not be landed in or spread within Great Britain)

11.  In Schedule 1(21)-

(a)under the heading "Insects, mites and nematodes"-

(i)after item 7 insert-

(ii)after item 10 insert-

(b)under the heading "Fungi", after item 10 insert-

(c)under the heading "Viruses and virus-like organisms", for "Elm phlöem necrosis mycoplasma" substitute "Candidatus Phytoplasma ulmi".

Schedule 1A (tree pests which shall not be landed in or spread within a protected zone which is limited in relation to England and Scotland to part of that area)

12.  For Schedule 1A(22)substitute-

Articles 5(1A), 18(1A), 19(1), 20(8), 31(5), 32(2), 40(2), 41(2) and 42(2)

"SCHEDULE 1ATree pests which shall not be landed in or spread within a protected zone which is limited in relation to Great Britain to part of that area

Schedule 2 Part B (relevant material which may not be landed in or moved within Great Britain (as a protected zone) if that material is carrying or infected with tree pests)

13.  In Part B of Schedule 2, after item 4, for the text applying in relation to Wales, insert-

Schedule 3 (relevant material which may not be landed in Great Britain if that material originates in certain third countries)

14.  In Schedule 3(23)-

(a)in the entry in the third column of item 5, after "North America" insert ", other than the USA";

(b)after item 8 insert-

Schedule 4 Part A (relevant material, from third countries, which may only be landed in Great Britain if special requirements are satisfied)

15.  In Part A of Schedule 4(24)-

(a)in item 8-

(i)in the entry in the second column of the table, for "12A or 13" substitute "12, 12A, 13 or 13C";

(ii)in the entry in the third column of the table, in paragraph (a), after "be" insert "made of debarked wood and";

(b)in the entry in the third column of item 10A, for "as referred to in Article 1 of Decision (EU) 2015/2416" substitute "for the purposes of point 2.3 of Annex 4, Part A, Section 1 of the Directive";

(c)for item 10A substitute-

(d)in the entry in the second column of item 11, after "other than" insert "wood which complies with the requirements in paragraph (b) in the third column of item 13A or wood";

(e)for the entry in the second column of item 12 substitute-

"Wood of Platanus L., other than in the form of:

• chips, particles, sawdust, shavings, wood waste or scrap, or

• wood packaging material, except associated controlled dunnage,";

(f)but including wood which has not kept its natural round surface, originating in Armenia, Switzerland or the USA;after item 13 insert-

(g)after item 13B insert-

(h)after item 15 insert-

(i)after item 16A insert-

(j)in the entry in the third column of item 19b, for "No 4" substitute "No. 4";

(k)after item 19b insert-

(l)omit item 24B;

(m)in the entry in the third column of item 28, for "Elm phlöem necrosis mycoplasm" substitute "Candidatus Phytoplasma ulmi";

(n)after item 28 insert-

(o)after item 34 insert-

Schedule 4 Part B (relevant material, from another part of the European Union, which may only be landed in or moved within Great Britain if special requirements are satisfied)

16.  In Part B of Schedule 4(25)-

(a)after item 1 insert-

(b)omit item 5B;

(c)in the entry in the third column of item 9, for "No 4" substitute "No. 4"; and

(d)after item 9 insert-

Schedule 4 Part C (relevant material, from a third country or another part of the European Union, which may only be landed in or moved within Great Britain (as a protected zone) if special requirements are satisfied)

17.  In Part C of Schedule 4-

(a)after the heading insert-

"Interpretation of Part C

In this Part, in item 7E, "excluded zone" means the area in Great Britain which is not within the OPM protected zone."; and

(b)in Part C of Schedule 4, after item 7C insert-

Schedule 5 Part A (relevant material which may only be landed in Great Britain if accompanied by a phytosanitary certificate)

18.  In Part A of Schedule 5(26)-

(a)after paragraph 1 insert-

"1A.  Trees of susceptible plants within the meaning of Article 1(2) of Decision 2002/757/EC, other than trees of Camellia spp. L., Rhododendron spp. L. or Viburnum spp. L., originating in the USA.";

(b)re-number paragraphs 1a, 1b and 1c as paragraphs 1B, 1C and 1D respectively;

(c)in paragraph 4(a)-

(i)at the end of paragraph (vi), omit "or";

(ii)at the end of paragraph (vii), omit "and" and insert "or";

(iii)after paragraph (vii) insert-

"(viii)Amelanchier Medik., Aronia Medik., Cotoneaster Medik., Crataegus L., Cydonia Mill., Malus Mill., Prunus L., Pyracantha M. Roem., Pyrus L. or Sorbus L., including wood which has not kept its natural round surface, other than sawdust or shavings, originating in Canada or the USA; and"; and

(d)after paragraph 4 insert-

"4A.  Specified wood within the meaning of Article 1(3) of Decision 2002/757/EC, other than wood of Quercus L., originating in the USA.

4B.  Specified wood within the meaning of Article 1(b) of Decision (EU) 2015/893 originating in any third country in which Anoplophora glabripennis (Motschulsky) is known to be present."

Schedule 6 Part A (relevant material, from another part of the European Union, which may only be landed or moved in Great Britain if accompanied by a plant passport)

19.  In Part A of Schedule 6(27)-

(a)after paragraph 1 insert-

"1A.  Susceptible wood or susceptible bark within the meaning of Article 1 of Decision 2012/535/EU, other than susceptible wood in the form of wood packaging material or susceptible wood in the form of beehives or bird nesting boxes which has been marked in accordance with Annex II to ISPM No. 15 by a person who has been authorised, in accordance with Article 14 of that Decision, to apply the mark to the material.

1B.  Specified wood within the meaning of Article 1(b) of Decision (EU) 2015/893 which originates in an area established in accordance with Article 7 of that Decision, or specified wood within the meaning of that Article which retains all or part of its round surface and which does not originate in, but has been introduced into, such an area.";

(b)in paragraph 2-

(i)after "Abies Mill.," insert "Castanea Mill.,"; and

(ii)for "or Tsuga Carr." substitute "Quercus L., Tsuga Carr. or Ulmus L.";

(c)omit paragraph 3; and

(d)after paragraph 6 insert-

"7.  Trees of susceptible plants within the meaning of Article 1(2) of Decision 2002/757/EC, other than trees of Camellia spp. L., Rhododendron spp. L. or Viburnum spp. L., originating in the USA.

8.  Trees of susceptible plants within the meaning of Article 1(a) of Decision 2012/535/EU which originate in an area established in accordance with Article 5 of that Decision.

9.  Trees of specified plants within the meaning of Article 1(c) of Decision (EU) 2015/789 which have been grown for at least part of their life in an area established in accordance with Article 4 of that Decision or trees of host plants within the meaning of Article 1(b) of that Decision which have never been grown in such an area.

10.  Trees of specified plants within the meaning of Article 1(a) of Decision (EU) 2015/893, which originate in a third country in which Anoplophora glabripennis (Motschulsky) is known to be present or which originate, or have been introduced into a place of production, in an area established in accordance with Article 7 of that Decision."

Schedule 6 Part B (relevant material, from another part of the European Union, which may only be landed or moved in Great Britain if accompanied by a plant passport which is valid for Great Britain (as a protected zone))

20.  In Part B of Schedule 6-

(a)in paragraph 2B, for "or Populus L." substitute ", Populus L., Quercus L., other than Quercus suber, or Ulmus L.";

(b)for paragraph 3(a)(ii) substitute-

"(ii)Castanea Mill., excluding wood which is bark-free; or".

Schedule 7 Part A (relevant material which may only be consigned to another part of the European Union if accompanied by a plant passport)

21.  In Part A of Schedule 7(28)-

(a)after paragraph 1 insert-

"1A.  Susceptible wood or susceptible bark within the meaning of Article 1 of Decision 2012/535/EU, other than susceptible wood in the form of wood packaging material or susceptible wood in the form of beehives or bird nesting boxes which has been marked in accordance with Annex II to ISPM No. 15 by a person who has been authorised, in accordance with Article 14 of that Decision, to apply the mark to the material.

1B.  Specified wood within the meaning of Article 1(b) of Decision (EU) 2015/893 which originates in an area established in accordance with Article 7 of that Decision, or specified wood within the meaning of that Article which retains all or part of its round surface and which does not originate in, but has been introduced into, such an area.";

(b)in paragraph 2-

(i)after "Abies Mill.," insert "Castanea Mill"; and

(ii)for "or Tsuga Carr." substitute "Quercus L., Tsuga Carr. or Ulmus L.";

(c)omit paragraph 3;

(d)after paragraph 6 insert-

"7.  Trees of susceptible plants within the meaning of Article 1(2) of Decision 2002/757/EC, other than trees of Camellia spp. L., Rhododendron spp. L. or Viburnum spp. L., originating in the USA.

8.  Trees of susceptible plants within the meaning of Article 1(a) of Decision 2012/535/EU which originate in an area established in accordance with Article 5 of that Decision.

9.  Trees of specified plants within the meaning of Article 1(c) of Decision (EU) 2015/789 which have been grown for at least part of their life in an area established in accordance with Article 4 of that Decision or trees of host plants within the meaning of Article 1(b) of that Decision which have never been grown in such an area.

10.  Trees of specified plants within the meaning of Article 1(a) of Decision (EU) 2015/893, which originate in a third country in which Anoplophora glabripennis (Motschulsky) is known to be present or which originate, or have been introduced into a place of production, in an area established in accordance with Article 7 of that Decision."

Schedule 7 Part B (relevant material which may only be consigned to a protected zone in another part of the European Union if accompanied by a plant passport which is valid for that protected zone)

22.  In Part B of Schedule 7, in paragraph 2B, for "or Populus L." substitute ", Populus L., Quercus L., other than Quercus suber, or Ulmus L.".

Schedule 8 Part A (relevant material originating in Switzerland which may be landed in or moved within Great Britain if accompanied by a Swiss plant passport)

23.  In Part A of Schedule 8, omit paragraph 1.

Schedule 8 Part B (relevant material imported into Switzerland from another third country which, if it would normally be permitted to be landed in Great Britain if accompanied by a phytosanitary certificate, may be accompanied by a Swiss plant passport or may be landed without phytosanitary documentation)

24.  In Part B of Schedule 8-

(a)in paragraph 2, after "Canada," insert "Castanea Mill.,";

(b)after paragraph 2 insert-

"2A.  Cut branches of-

(a)Betula L., with or without foliage;

(b)Fraxinus L., Juglans ailantifolia Carr., Juglans mandshurica Maxim., Ulmus davidiana Planch. or Pterocarya rhoifolia Siebold & Zucc., with or without foliage, originating in Canada, China, Democratic People's Republic of Korea, Japan, Mongolia, Republic of Korea, Russia, Taiwan or the USA.";

(c)for paragraph 3 substitute-

"3.  Wood referred to in paragraph (a) or (b) of the definition of "wood" in article 2(1), where it-

(a)has been obtained in whole or in part from one of the following order, genera or species, except wood packaging material of a description specified in the second column of item 8 in Part A of Schedule 4-

(i)Quercus L., including wood which has not kept its natural round surface, originating in the USA, except wood in the form of casks, barrels, vats, tubs or other coopers' products or parts thereof, including staves and where there is documented evidence that the wood has been processed or manufactured using a heat treatment to achieve a minimum temperature of 176˚C for 20 minutes;

(ii)Platanus L., including wood which has not kept its natural round surface, originating in the USA or Armenia;

(iii)Populus L., including wood which has not kept its natural round surface, originating in any country of the American continent;

(iv)Acer saccharum Marsh., including wood which has not kept its natural round surface, originating in the USA or Canada;

(v)conifers (Coniferales), including wood which has not kept its natural round surface, originating in any country outside Europe, Kazakhstan, Russia or Turkey;

(vi)Fraxinus L., Juglans ailantifolia Carr., Juglans mandshurica Maxim, Ulmus davidiana Planch. or Pterocarya rhoifolia Siebold & Zucc., including wood which has not kept its natural round surface, originating in Canada, China, Democratic People's Republic of Korea, Japan, Mongolia, Republic of Korea, Russia, Taiwan or the USA;

(vii)Betula L., including wood which has not kept its natural round surface, originating in Canada or the USA; and

(b)meets one of the descriptions specified in point 6(b) of Appendix 1 to Part B of Annex 4 to the Agreement between the European Community and the Swiss Confederation on trade in agricultural products(29).";

(d)for paragraph 6 substitute-

"6.  Isolated bark of-

(a)conifers (Coniferales), originating in any country outside Europe;

(b)Acer saccharum Marsh., Populus L. or Quercus L., other than Quercus suber L.;

(c)Fraxinus L., Juglans ailantifolia Carr., Juglans mandshurica Maxim., Ulmus davidiana Planch. or Pterocarya rhoifolia Siebold & Zucc., originating in Canada, China, Democratic People's Republic of Korea, Japan, Mongolia, Republic of Korea, Russia, Taiwan or the USA;

(d)Betula L., originating in Canada or the USA."

Revocations and transitional provision

25.-(1) The following Orders are revoked-

(a)The Plant Health (Forestry) (Phytophthora ramorum) (Great Britain) Order 2004(30); and

(b)The Plant Health (Forestry) (Phytophthora ramorum) (Great Britain) (Amendment) Order 2007(31).

(2) Any notice issued or licence, authorisation or other approval granted under or for the purposes of the Plant Health (Forestry) (Phytophthora ramorum) (Great Britain) Order 2004 and which has effect at the coming into force of this Order remains in force as if it were issued or granted under or for the purposes of the Plant Health (Forestry) Order 2005.

EXPLANATORY NOTE

(This note is not part of the Order)

This Order applies in relation to Wales certain provisions which have been made amending the Plant Health (Forestry) Order 2005 (S.I. 2005/2517) ("the 2005 Order") in relation to England and Scotland. Those amendments were made by the Plant Health (Forestry) (Amendment) (England and Scotland) Order 2016 (S.I. 2016/1167) ("the 2016 Order") and the Plant Health (Forestry) (Amendment) (England and Scotland) Order 2017 (S.I. 2017/1178) ("the 2017 Order") and the Plant Health (Forestry) (Amendment) (England and Scotland) Order 2018 (S.I. 2018/1048) ("the 2018 Order").

Those Orders implemented in relation to England and Scotland certain provisions including Commission Decision 2002/757/EC and Commission Implementing Decisions 2014/690/EU, 2015/789/EU, 2015/893/EU, 2012/535/EU, 2015/2416/EU and 2017/204 and Decision No 1/2015 of the Joint Committee on Agriculture relating to the agreement between the European Community and the Swiss Confederation on trade in agricultural products (2017/169/EU).

In addition it introduces a new provision to allow the disclosure of information for the purposes of the 2005 Order from HM Revenue and Customs (HMRC) to the Welsh Ministers.

It implements the specific control measures to prevent the introduction of the pest Xylella fastidiosa in Commission Implementing Decision (EU) 2017/2352.

Moreover this Order implements measures which strengthen import and movement requirements for oak trees, to minimise the risk of further incursions of Thaumetopoea processionea (oak processionary moth (OPM)).

A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sector is foreseen.

This instrument does not relate to withdrawal from the European Union / trigger the statement requirements under the European Union (Withdrawal) Act 2018.