S.I. No. 492/2010 - European Communities (Seed Potatoes) Regulations 2010.

1. Species

2. Variety

3. Category

4. Country of production and inspection authority

5. Country of dispatch

6. Importer

7. Quantity of seed potatoes

GIVEN under my Official Seal,

5 October 2010.

BRENDAN SMITH,

Minister for Agriculture, Fisheries and Food.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Regulations consolidate, with amendments, the European Communities (Seed Potatoes) Regulations 1980 (

S.I. No. 343 of 1980

), as amended.

They regulate the production, certification and marketing of seed potatoes and give effect to Commission Directive 93/17/EEC, Council Directive 2002/56/EC, Commission Decision 2004/3/EC and Commission Decision 2004/842/EC.

The Regulations make provision for—

(

a

) classification and grading of seed potatoes including production requirements relating to plant health and varietal purity,

(

b

) labelling, sealing and marketing of seed potatoes,

(

c

) sampling of lots, provision of information, service of notices and exemptions, and

(

d

)certification of pre-basic seed potatoes (that is generations earlier than basic seed potatoes) and certification of seed potatoes for test or trial purposes.

1 OJ L 106, 30.3.1993, p7

2 OJ L 193, 20.7.2002, p60

3 OJ L 25, 30.1.2003, p42

4 OJ L 165, 3.7.2003, p23

5 OJ L 329, 16.12.2005, p37

6 OJ L 345, 23.12.2008, p90

7 OJ L 2, 6.1.2004, p47

8 OJ L 362, 9.12.2004, p. 21

9 OJ L 193, 20.7.2002, p1

10 OJ L 106, 17.4.2001, p1

11 OJ L 268, 18.10.2003, p1

12 OJ L 268, 18.10.2003, p24

13 OJ L 81, 20.3.2008, p45

8. (1) A person shall not sell or supply a container of seed potatoes unless—

(

a

) there is attached to the outside an official label meeting the requirements of Schedule 3, issued in relation to those potatoes, and

(

b

) a wear and tear resistant or adhesive label is attached to it or the label particulars are indelibly printed on the container, or the container contains the official document required by Article 13(1)(

b

) of the Directive.

(2) An application for an official label or an official document shall be made to the Minister with such information in such form and in such manner as he or she may require.

(3) A person shall not, in connection with the issue of an official label or official document, supply any information that is false in a material respect.

(4) A person shall not sell or supply seed potatoes that have been treated with a chemical product unless the type and function or the proprietary name of that product is stated on a label attached to the container and on a document contained in the container.

(5) A person shall not sell or supply a genetically modified variety of seed potatoes unless all labels, whether official or otherwise, attached to each lot of that variety and a document contained in the container, clearly indicate that the variety has been genetically modified.

(6) A person shall not sell or supply seed potatoes contained in a container that has been re-sealed in accordance with Regulation 9(2) unless the official label states—

(

a

) that the container has been re-sealed,

(

b

) the date of re-sealing, and

(

c

) the authority responsible for re-sealing.

(7) A person shall not wilfully remove, deface, conceal or misuse an official label or another label attached to, or document contained in, a container of seed potatoes.

(8) This Regulation and Regulation 9 do not apply to a sale by retail of a quantity of 10 kg or less of pre-basic or basic seed potatoes—

(

a

) if at the time of sale there is displayed conspicuously on or in close proximity to the seed potatoes a statement of the particulars specified in Regulation 12(1), or

(

b

) in a container upon which is printed, or otherwise legibly and indelibly marked, or attached to or inserted therein a label marked with the particulars specified in Schedule 3.

Sealing of containers

9. (1) A person shall not sell or supply a container of pre-basic, basic or test and trial seed potatoes unless it is sealed with an unbroken sealing device, applied by, or under the supervision of, an authorised officer, or the application of which has been inspected by an authorised officer and found to be satisfactory.

(2) If a sealing device on a container is broken, a person shall not re-seal the container unless under the supervision of an authorised officer.

(3) For the purposes of this Regulation a “sealing device” means a device applied in a manner that the container cannot be opened without damaging the system of closing or leaving evidence of tampering either on the container or on the official label.

Examination by an authorised officer prior to sale or supply

10. A person shall not sell or supply seed potatoes unless—

(

a

) the seed potatoes have been subject to an examination by an authorised officer, or

(

b

) that person has been notified in writing by an authorised officer that an examination by an authorised officer is not required because the seed potatoes have previously been subjected to such examination.

Withholding or withdrawal of official label

11. The Minister may withhold an official label or may withdraw an official label in respect of a lot or a part of a lot if he or she is satisfied that—

(

a

) the lot does not comply with Schedule 2 in relation to a lot of seed potatoes of the class stated on the label,

(

b

) the seed potatoes in the lot exceed a tolerance for disease, pest, damage or defect specified in the table applicable to those potatoes set out in Schedule 4,

(

c

) an official label contains a particular which is false in a material respect, or

(

d

) there has been any failure to comply with these Regulations in respect of the seed potatoes.

Particulars of sale

12. (1) A person who sells or supplies seed potatoes shall issue to the purchaser not later than 14 days after delivery thereof, a sale note, delivery note, invoice or similar document specifying in relation to the seed potatoes sold or supplied the following particulars

(

a

) name and address of the seller,

(

b

) declared Net weight (except for pre-basic TC seed potatoes),

(

c

) variety,

(

d

) category,

(

e

) genetically modified (if appropriate),

(

f

) class (for pre-basic and basic seed potatoes),

(

g

) class generation — if shown on official label (for pre-basic and basic seed potatoes),

(

h

) Community Grade (if applicable),

(

i

) size (except for pre-basic TC seed potatoes),

(

j

) crop identification number, and

(

k

) particulars of any chemical treatment.

(2) This Regulation does not apply to a sale by retail of a quantity of 50kg or less of pre-basic or basic seed potatoes.

Records and information

13. (1) A person who produces seed potatoes shall maintain for a period of 2 years records of purchase of seed potatoes for planting and particulars of the crops grown and of the sale or supply of the produce of those crops.

(2) A person who sells or supplies seed potatoes produced by another person shall maintain for a period of 2 years records of the sale or supply of such seed potatoes.

(3) A person who produces or sells or supplies seed potatoes or otherwise has or had seed potatoes in his or her possession or in his or her charge shall, if so required in writing by an authorised officer, give within 7 days any information he or she may possess as to the person in whose possession or under whose charge they are or have been and shall produce for examination by an authorised officer any declarations, certificates, reports, labels, records, invoices or other documents relating to the planting, examination, inspection or sale or supply of seed potatoes.

Forgery

14. (1) A person shall not forge or utter, knowing it to be forged, an official label or other document issued for the purposes of these Regulations, a record purporting to be kept and maintained under these Regulations or a document purporting to be an extract from such a document (hereafter in this Regulation referred to as “a forged document”).

(2) A person shall not alter with intent to defraud or deceive, or utter knowing it to be so altered an official label or other document issued for the purposes of these Regulations, a record kept and maintained under these Regulations or an extract from such a document (hereafter in this Regulation referred to as “an altered document”).

(3) A person shall not have, without lawful authority, in his or her possession or under his or her control a forged document or an altered document.

Fees

15. (1) The Minister may set fees for examination, inspection, certification and carrying out tests and different fees may be set for different examinations, inspections, certificates or tests.

(2) A fee payable under this Regulation may be recovered by the Minister as a simple contract debt in a court of competent jurisdiction or by deducting the costs from any sum due by the Minister to a person to whom the fee is payable.

(3) A fee payable under this Regulation shall not exceed an amount equal to the cost, estimated by the Minister, of performing the function to which the fee relates.

(4) A fee under this Regulation shall be disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.

Authorised officer

16. The European Communities (Agriculture, Fisheries and Food) (Compliance) Regulations 2009 (

S.I. No. 424 of 2009

) as amended by the European Communities (Marketing Standards) (Crops and Oils) Regulations 2010 (

S.I. No. 153 of 2010

) are applied to these Regulations.

Compliance notice

17. (1) If an authorised officer has reasonable grounds to suspect that—

(

a

) seed potatoes do not conform to these Regulations,

(

b

) an offence is or has been committed under these Regulations,

(

c

) an act of the institutions of the European Union is not being or has not been complied with or there are reasons to believe that an act of the institutions of the European Union will not be complied with,

(

d

) it is necessary for the protection of human health or the environment including the prevention, control or eradication of a disease or contamination of feed, or

(

e

) it is necessary, ancillary or supplementary for an act of the institutions of the European Union to have full effect,

he or she may serve or cause to be served on the owner or person who appears to be in charge, possession or control of potatoes or a premises a notice, (“compliance notice”) stating that opinion and directing that—

(i) seed potatoes, or any potatoes derived from such seed potatoes, be dealt with in a manner specified in the notice,

(ii) such alterations be made to a premises or operations at a premises as the officer specifies in the notice,

(iii) seed potatoes, or any potatoes derived from such seed potatoes, be disposed of in such manner as the officer specifies in the notice,

(iv) a specified operation or activity cease on a premises,

(v) a specified operation or activity takes place only in a manner specified in the notice,

(vi) a specified type or level of sampling and analysis be undertaken for a period specified in the notice, or

(vii) a specified operation or activity may only be carried out under and in accordance with such terms and conditions as are specified in the compliance notice.

(2) A person shall comply with a compliance notice or a requirement of a compliance notice unless and until the notice is annulled under Regulation 18.

(3) A requirement contained in a compliance notice shall specify a time limit within which the notice is to be complied with.

(4) A requirement specified in a compliance notice (in this paragraph referred to as “the earlier compliance notice”) may be amended or withdrawn by a further notice in writing and the earlier compliance notice has effect subject to such amendment or withdrawal.

(5) A compliance notice, whether amended under paragraph (4) or not, may require the owner or person in charge of potatoes to choose between one or more of the requirements specified in the compliance notice and that person shall comply with the alternative requirement that he or she chooses.

Appeal against compliance notice

18. (1) A person affected by a compliance notice may, within 7 days of service of the compliance notice, apply to the Judge of the District Court having jurisdiction in the District Court District where the potatoes are located or to the Judge of the District Court having jurisdiction in the District Court District where the person ordinarily resides on the grounds that the compliance notice or any term of the compliance notice are not reasonable, having regard to the objectives of the Directive, or these Regulations (in this Regulation referred to as “an appeal”).

(2) An appeal may be heard at any sitting of the District Court within the appropriate District Court Area.

(3) A person making an appeal shall serve notice of the appeal, which shall contain a statement of the grounds upon which it is alleged that the compliance notice or any term of the compliance notice is unreasonable having regard to the objectives of the Directive, or these Regulations, on the Minister at least 48 hours prior to the hearing of the appeal and a copy of the notice of appeal shall be lodged with the appropriate District Court Clerk.

(4) On the hearing of an appeal, a Judge of the District Court may confirm, with or without modification, or annul a compliance notice.

(5) A person, including a person on whom a compliance notice is served, shall not—

(

a

) pending the determination of an appeal, deal with potatoes to which a compliance notice relates other than under and in accordance with the notice, or

(

b

) after the appeal, deal with potatoes to which a compliance notice relates other than under and in accordance with the compliance notice or compliance notice as modified.

Emergency measures

19. (1) If—

(

a

) a person, by act or omission, fails to comply, whether within the time specified therein or otherwise, with a compliance notice (including a compliance notice modified in accordance with Regulation 18(4)), or

(

b

) an authorised officer has reasonable cause to suspect that—

(i) a compliance notice (including a compliance notice modified in accordance with Regulation 18(4)) is not or will not be complied with, or

(ii) pending the determination of an appeal, a premises or potatoes to which the compliance notice relates is not or will not be dealt with in accordance with Regulation 18(5),

an authorised officer may seize and detain potatoes in a manner that he or she thinks fit and sell or dispose of the potatoes in a manner that the authorised officer considers appropriate.

(2) Subject to paragraph (4), the proceeds of the sale or disposal of potatoes under paragraph (1) shall be paid to the owner of the potatoes as soon as may be after such sale or disposal and after a person has satisfied the Minister that he or she is the owner or otherwise entitled to the proceeds of the sale or disposal of the potatoes.

(3) The costs of seizure, sale or disposal of potatoes under this Regulation is recoverable by the Minister—

(

a

) as a simple contract debt in a court of competent jurisdiction, or

(

b

) by deducting the costs from any sum due by the Minister to a person on whom a notice has been served.

(4) The costs of any action required by a compliance notice shall be borne by the owner of a premises or potatoes to which the notice relates.

Service

20. (1) A compliance notice or a direction or requirement of an authorised officer (if in written form) shall, subject to paragraph (2), be addressed to the person concerned by name and may be served on a person—

(

a

) by giving it to the person,

(

b

) by leaving it at the address at which the person ordinarily resides or, if 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, where an address for service has been furnished, at that address,

(

d

) by electronic communication,

(

e

) if the address at which the person ordinarily resides cannot be ascertained by reasonable enquiry and the notice relates to a premises, by delivering a copy to the premises or by affixing a copy in a conspicuous position on or near the premises, or

(

f

) if the Minister or an authorised officer considers that the immediate giving of the notice, direction or requirement of an authorised officer (if in written form) is required, by sending a copy, by means of a facsimile machine, to a device or facility for the reception of facsimiles located at the address at which the person ordinarily resides or carries on business or, if an address for the service of notices has been furnished by the person, that address, provided that the senders facsimile machine generates a message confirming successful transmission of the total number of pages of the notice.

(2) If a compliance notice is to be served on or given to a person who is the owner or occupier of a premises and the name of the person cannot be ascertained by reasonable enquiry, it may be addressed to the person by using the words “the owner” or “the occupier”.

(3) A person shall not, at any time within 6 months after a compliance notice is affixed under paragraph (1)(

e

), remove, damage or deface the notice without lawful authority.

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

Offences

21. (1) A person who contravenes Regulation 4, 7(1), 7(5), 7(6), 8, 9(1), 9(2), 10, 12, 13, 14, 17, 18(5) or 20(3) commits an offence and is liable on summary conviction, to a fine not exceeding €5,000.

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

(3) If an offence under these Regulations is committed by a body corporate and is proven to have been so committed with the consent, connivance or approval of, or to have been attributable to the wilful neglect on the part of any person, being a director, manager, secretary or other officer of the body corporate or a person who was purported to act in any such capacity, that person, as well as the body corporate, commits an offence and is liable to be proceeded against and punished as if he or she was guilty of the offence.

(4) If the affairs of a body corporate are managed by its members, paragraph (3) applies in relation to the acts and defaults of a member in connection with the functions of management as if the member were a director or manager of the body corporate.

Evidence on certificate etc.

22. (1) In proceedings for an offence under these Regulations, a certificate purported to be signed by a person employed at a laboratory, if a sample taken under these Regulations is analysed, stating the capacity in which the person is employed and stating—

(

a

) that the person received a sample,

(

b

) that, for the period specified in the certificate, the person had the sample in his or her possession,

(

c

) that the person gave the sample to another person named in the certificate, or

(

d

) the person carried out a procedure for the purpose of detecting in the sample, a substance or contamination or that the sample contained a substance as is, or was contaminated in a manner specified in the certificate,

is (without proof of the signature of the person or that he or she is employed at the laboratory), unless the contrary is proved, evidence of the matters stated in the certificate.

(2) A certificate purporting to be signed by an officer of the Minister and to certify that on a specific day or days or during the whole of a specified period—

(

a

) a person was or was not the holder of an approval granted under Regulation 7, or

(

b

) that a particular approval, referred to in this paragraph, was subject to a particular condition or conditions,

is, without proof of the signature of the person purporting to sign the certificate or that he or she is an officer of the Minister, evidence, unless the contrary is shown, of the matters stated in the certificate.

(3) In proceedings for an offence under these Regulations the court may, if it considers that the interests of justice so require, direct that oral evidence of any matter stated in a certificate under paragraphs (1) or (2) be given, and the court may for the purpose of receiving oral evidence adjourn the matter.

(4) In proceedings, evidence of an act of the institutions of the European Union may be given by production of a copy of the act certified by an officer of the Minister to be a copy of the act, and it is not necessary to prove the signature of the officer or that he or she is an officer of the Minister.

(5) Paragraph (4) is in addition to and not in substitution for the European Communities (Judicial Notice and Documentary Evidence) Regulations 1972 (

S.I. No. 341 of 1972

).

Fixed penalty notice

23. (1) If an officer of the Minister, authorised by the Minister in that behalf, has reasonable grounds for suspecting that a person is committing or has committed an offence under these Regulations, he or she may serve a notice in writing on that person stating that—

(

a

) the person is alleged to have committed the offence,

(

b

) the person may during the period of 28 days from the date of the notice make to the Minister a payment of €250 accompanied by the notice, and

(

c

) a prosecution in respect of the alleged offence will not be instituted during the period specified in the notice and, if the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence will be instituted.

(2) If notice is given under paragraph (1)—

(

a

) a person to whom the notice applies may make the payment as specified in the notice,

(

b

) the Minister may receive the payment, issue a receipt for it and retain the money so paid, and any payment so received shall not be recoverable in any circumstances by the person who made it, and

(

c

) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice, and if the payment so specified is made during that period, no prosecution in respect of the alleged offence shall be instituted.

(3) In a prosecution for an offence under these Regulations, the onus of proving that a payment pursuant to a notice under this Regulation has been made lies on the defendant.

Revocations

24. The following are revoked-

(a) the European Communities (Seed Potatoes) Regulations 1980

(

S.I. No. 343 of 1980

),

(b) the European Communities (Seed Potatoes) (Amendment) Regulations 1999

(

S.I. No. 381 of 1999

),

(c) the European Communities (Seed Potatoes) (Amendment) Regulations 2003

(

S.I. No. 366 of 2003

),

(d) the European Communities (Seed Potatoes) (Amendment) Regulations 2005

(

S.I. No. 236 of 2005

),

(e) the European Communities (Seed Potatoes) (Amendment) (No. 2) Regulations 2005

(

S.I. No. 710 of 2005

),

(f) the European Communities (Seed Potatoes) (Amendment) Regulations 2006

(

S.I. No. 124 of 2006

),

(g) the European Communities (Seed Potatoes) (Amendment) Regulations 2007

(

S.I. No. 694 of 2007

), and

(h) the European Communities (Seed Potatoes) (Amendment) Regulations 2010

(

S.I. No. 34 of 2010

).

Regulations 2(1) and 5(3)

SCHEDULE 1 GROWING CROP REQUIREMENTS AND SOURCE MATERIAL FOR PLANTING