REPRESENTATION PERMANENTE Ru RUE FROISSART 88-«.
DE L'IRLANDE Kar 1040 BRUXELLES
E57
AUPRES DE 2 TEL.0O2 230 85 80
a:

L'’UNION EUROPFENNE FAX 02 230 3203

11.01. 2007

9" January 2007 SG-R-2

 

Ms Catherine Day

Secretary General

Commission ofthe European Union
200 Rue de la Loi

B-1049 Brussels

European Court Judgement Case C-282/02

Dear Secretary General,

My authorities have asked me to forward the attached Statutory Instrument No. 592 of
2006, European Communities (Aerial Fertilisation) (Forestry) Regulations 2006.

The Regulations entered into force on the 24" of November 2006 and provide for the
introduction of a statutory licence system for the aerial application of fertilisers to
forests.

The Regulations were introduced in response to a judgement given by the European
Court of Justice (Case C-282/02) regarding Ireland’s failure to establish an
authorisation system for acrial fertilisation of forests in accordance with Article 7(2)
of the Dangerous Substances Directive (76/464/EEC) of 4 May 1976.

My authorities have recently provided details on these Regulations to the Secretariat
General ofthe Commission through the Electronic Notification System.

Yours sincerely,
F
FE £

Agriculture Counsellor

u Al ga;

Statutory Instruments

S.I. No. 592 of 2006

European Communities (Aerial Fertilisation) (Forestry) Regulations 2006

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S.I. No. 592 of 2006

European Communities (Aerial Fertilisation) (Forestry) Regulations 2006

I, Mary Coughlan, Minister for Agriculture and Food, in exercise of the powers
conferred on me by section 3 of the European Communities Act 1972 (No. 27 of
1972) and for the purpose of giving further effect to Council Directive No.
76/464/EEC of 4 May 1976! in so far as that Directive relates to the aerial fertilisation
of forests, hereby make the following Regulations-

Citation

1» These Regulations may be cited as the European Communities (Aerial
Fertilisation) (Forestry) Regulations 2006.

Interpretation
2, In these Regulations -

“aquatic zone” means a permanent or seasonal river, stream or lake shown on
an Ordnance Survey 6 inch map;

“authorised officer” means a person appointed under Regulation 9 or a
member ofthe Garda Siochana;

“net hectare” means the total arca of forestry that does not include exclusion
zones and untreated areas.

"European site" means

(a) a site (until the adoption, in respect of the site, of a decision by the European
Commission under Article 21 of Council Directive No. 92/43/EEC of 21 May
1992? for the purposes of the third paragraph of Article 4(2) of that Directive)

(i) notified for the purposes of Regulation 4 of the European
Communities (Natural Habitats) Regulations 1997 (S.I. No. 94 of
1997), subject to any amendments made to it by virfue of
Regulation 5 of those Regulations,

(ii) details of which have been transmitted to the Commission in
accordance with Regulation 5(4) of the European Communities
(Natural Habitats) Regulations 1997, or

!OJNo.L 129, 18.5.1976, p.23
?OJ No. L 206, 22.7.1992, p.7

(iii) added by virtuc of Regulation 6 of the European Communities
(Natural Habitats) Regulations 1997 to the list transmitted to the
Commission in accordance with Regulation 5(4) of the said
Regulations,

(b) a site adopted by the European Commission as a site of Community
importance for the purposes of Article 4(2) of Council Directive No.
92/43/EEC in accordance with the procedure laid down in Article 21 of
that Directive,

(c) a special area of conservation within the meaning of the European
Communities (Natural Habitats) Regulations 1997, or

(d) an area classified pursuant to Article 4 (1) or (2) of Council Directive No.
79/409/EEC of 2 April 1979° on the conservation of wild birds;

“Minister” means the Minister for Agriculture and Food.

Licence Procedures

3 (1) A person shall not engage in the aerial fertilisation of forests other than
under and in accordance with a licence (“aerial fertilisation licence”).

(2) An application for an aerial fertilisation licence shall be in a form, contain
the particulars and be accompanied by any material that the Minister may
determine.

(3) The Minister may grant an aecrıial fertilisation licence, attach conditions to
the licence, vary a condition, insert a new condition, revoke an aerial
fertilisation licence or refuse an application.

(4) An aernal fertilisation Iicence is valid for a period that the Minister
determines and the period shall be specified on the licence.

Information to be provided with an application for a licence

4. (1) Without prejudice to the generality of Regulation 3(2), an application for
an aerial fertilisation licence shall —

(a) contain the name, address and telephone number of the applicant and,
if different, any address to which correspondence relating to the
application should be sent and, ifthe applicant is a body corporate, the

address of its registered principal office,
I

’OJNo.L 103, 25.4.1979, p.1

(b) contain the location townland, Electoral Division and the Ordnance
Survey 6 inch Map number reference of the land to which the
application relates,

(c) include a map which shall include the following details -

(i) the total area to be treated,
(ii) all exclusion zones,

(iii) all fertiliser storage areas,
(iv) all aquatic zones, and,

(v) abstraction points of known sources of water for human
consumption,

(d) provide site details, including -

(i) soiltype,

(ii) site elevation,
(iii) site aspect,
(iv) site exposure,

(v) site vegetation type, and

(e) include the results of a foliar analysis and the recommendations from a
competent person outlining, the type of fertiliser to be used, the
concentration of fertiliser and the proposed rates of fertiliser
application per net hectare.

(2) If the Minister considers that an application for a licence does not
comply with paragraph (1), he or she may, having regard to the extent
of the failure to comply with the said requirements, by notice in
writing—

(a)

(b)

inform the applicant of such failure and that the application
cannot be considered by the Minister, or

require the applicant, within a period specified by the Minister,
to take the steps, or to furnish the further particulars, plans,
drawings or maps, necessary and, if the applicant fails to
comply with a requirement under this subparagraph, the
Minister may, as he or she considers appropriate having regard
to the extent of the failure, inform the applicant, by notice in
writing, of such failure and that the application cannot be
considered by the Minister.

Further Information

5 (1) If the Minister receives an application for an aerial fertilisation licence
he or she may, by notice in writing, require the applicant—

(a) to submit any further information, particulars, plans, drawings
or maps relative to the application which the Minister considers
necessary,

(b) to produce any evidence which the Minister may reasonably
require to verify any particulars or information given by the
applicant in or in relation to the application.

(2) If there is a failure to comply with a requirement under paragraph (1)
within 28 days of the date of notice of the requirement, the Minister
may, if he or she thinks fit-

(a) proceed with the consideration of the application and issue a
notification in the absence of the particulars, plans, drawings,
maps, information or evidence specified in the requirement, or

(b) inform the applicant, by notice in writing, that the application
cannot be considered.

Refusal of an application

6. (1) Without prejudice to the generality of Regulation 3(3), the Minister
may refuse an application or revoke an aerial fertilisation licence if he
or she is satisfied that —

(a) the applicant or licence holder has committed an offence,
whether he or she has been convicted or not, relating to animal,
plant or public health or to the environment,

(b) the applicant or licence holder has failed to comply with a
condition of an aerıal fertilisation licence,

(c) the applicant or licence holder has failed to comply with
published guidelines and good forest practice,

(d) aerial fertilisation is not appropriate for the management of the
forest in question,

(e) in relation to an application, information required has not been
furnished or information that ıs false or misleading in a material
respect has been fumished,

&

the applicant or licence holder, in the opinion of the Minister, is
not a fit and proper person to be granted an aerial fertilisation
licence.

(2) Without prejudice to the generality of Regulation 3(3), the Minister
shall refuse an application or revoke an aerial fertilisation licence if he
or she is satisfied that —

(@)

(b)

(ec)

it is necessary in order to secure compliance with the quality
standards prescribed in the Local Government (Water
Pollution) Act 1977 (Water Quality Standards for Phosphorous)
Regulations 1998 (S.I. No. 258 of 1998),

it is necessary for the protection of human health, plant health,
animal health or welfare or the environment, or

it is necessary, ancillary or supplementary for an act of the
institutions of the European Community (including an act cited
in the preamble to these Regulations) to have full effect.

(3) Ifthe Minister proposes to refuse an application for or revoke an aerial
fertilisation licence, he or she shall-

(a)

(b)

(e)

Consultation

notify the applicant or aerial fertilisation licence holder of the
proposal and the reasons for the proposal, and that he or she
may make representations in relation to the proposal to the
Minister within 14 days ofnotification,

consider a representation duly made before deciding whether to
proceed with, modify or annul the proposal, and

notify the applicant or aerial fertilisation licence holder of the
decision and the reasons for the decision.

U (1) If the Minister receives an application for an aerial fertilisation licence
(other than an application in respect of which a notice in accordance
with Regulations 4(2) and 5(2)(b) has been sent) a notice shall be sent
in accordance with paragraph (2) as soon as may be after receipt of the
application —

(a)

if it appears to the Minister that the proposed application might
have significant effects in relation to water quality - to the
appropriate local authority, the appropriate Fisheries Board and
the appropriate River Basin District Board,

(b)

if it appears to the Minister that the proposed application might
have significant effects in relation to nature conservation, to the
Minister for the Environment, Heritage and Local Government.

(2) Notice given by the Minister pursuant to paragraph (1) shall include a
copy of the application together with a map of the site on which the
aerıal fertilisation is proposed and shall state —

(a)
(b)

(e)

(d)

(e)
N)

the reference number of the application,

the name and address of the applicant or the licensee, as the
case may be,

the location or postal address (including, where appropriate, the
name of the relevant townland or townlands) to which the
application relates,

include the results of a foliar analysis and the recommendations
from a competent person outlining, the type of fertiliser to be
used, the concentration of fertiliser and the rates of fertiliser
application per net hectare,

the date ofreceipt of the application, and

that any submission or observation made to the Minister in
relation to the application within 28 days of the date of the
notice will be taken into account by the Minister in making his
or her decision on the application.

Protection of European Sites

8. (1) If the Minister receives an application for an aerial fertilisation licence
(other than an application in respect of which a notice in accordance with
Regulations 4(2) and 5(2)(b) has been sent) and it appears to him or her
that the proposed operation is likely to have a significant effect on a
European Site, either alone or in combination with other operations or
activities, he or she shall cause an assessment to be made of the
implications for the site in view of that site’s conservation objectives.

(2) Having regard to the conclusions of the assessment under paragraph (1)
the Minister may grant an aerial fertilisation licence, attach conditions to
the licence, vary a condition and insert a new condition, only after having
ascertained that it will not adversely affect the integrity of the site.

Appointment of Authorised Officers
9. (1) The Minister may, by instrument in writing, appoint such and so many
persons as he or she thinks fit to be authorised officers for the purposes of

some or all of these Regulations as may be specified in the instrument.

(2) The Minister may terminate the appointment of an authorised officer
appointed by him or her, whether or not the appointment was for a fixed
period.

(3) An appointment as an authorised officer ceases —
(a) if it is terminated pursuant to paragraph (2),
(b) ifit is for a fixed period, on the expiry of that period, or

(c) if the person appointed is an officer of the Minister, upon the
person ceasing to be such an officer.

(4) Nothing in paragraph (3) is to be construed so as to prevent the Minister
from reappointing as an authorised officer a person to whom that
paragraph relates.

(5) An authorised officer shall be furnished with a warrant of his or her
appointment as an authorised officer and, when exercising a power
conferred on him or her, the officer, an officer of Customs and Excise or a
member of the Garda Siochäna shall, if requested by a person affected,

produce the warrant or evidence that he or she is such an officer or
member to the person.

Functions of Authorised Officers
10. (1) If an authorised officer has reasonable cause to suspect that —

(a) fertiliser, a document or thing relating to the aerial fertilisation of
forests is present, was present or may be present on a premises, or

(b) an offence is being or has been committed under these Regulations,
the authorised officer may enter the premises and he or she may —
(i) search the premises,
(ii) stop a person, vehicle, vessel or container

(iii) board and search a vehicle, vessel or container,