WILDLIFE Citation, commencement and extent 1 1 These Regulations may be cited as the Conservation (Natural Habitats, &c.) Amendment (No. 2) (Scotland) Regulations 2008 and come into force on 26th January 2009. 2 These Regulations extend to Scotland only. Amendment of the Conservation (Natural Habitats, &c.) Regulations 1994 2 The Conservation (Natural Habitats, &c.) Regulations 1994 are amended in accordance with regulations 3 to 6. Regulation 37A 3 In regulation 37A (surveillance of conservation status of habitats and species) – a in paragraph (1) after “arrangements” insert “in accordance with paragraphs (5) to (7)”; and b after paragraph (4) insert– 5 The arrangements made by the Scottish Ministers under paragraph (1) shall ensure that Scottish Natural Heritage implements a strategy for the surveillance of the conservation status of relevant habitats and species in Scotland. 6 In implementing that strategy Scottish Natural Heritage shall– a assess how and to what extent surveillance of the conservation status of relevant habitats and species needs to be carried out, having regard to– i whether a habitat or species is a priority natural habitat type or a priority species; and ii the conservation status of the habitat or species; and b ensure that surveillance is carried out on an ongoing basis. 7 Surveillance for the purposes of this regulation may be carried out by– a Scottish Natural Heritage; or b any other body or person pursuant to an agreement with Scottish Natural Heritage, provided that Scottish Natural Heritage is satisfied as to the standards and methods of surveillance used by that body or person. 8 In paragraphs (5) and (6) a relevant habitat or species means a habitat or species of a type referred to in paragraph (1). . Regulation 39 4 In regulation 39 (protection of certain wild animals) – a omit “or” following paragraph (1)(b)(v); and b at the end of paragraph (1)(b) insert– or vii to disturb such an animal while it is migrating or hibernating; . Regulation 40 5 In regulation 40 (exceptions to regulation 39) at the end insert– 4 The exceptions to regulation 39 in paragraphs (1) and (2) shall not apply where it is shown that– a there was a satisfactory alternative to what was done; or b what was done was detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range. . Regulation 41A 6 For regulation 41A substitute– Monitoring incidental capture or killing 41A 1 Scottish Natural Heritage must make arrangements in accordance with paragraphs (2) to (5) for monitoring the incidental capture or killing (a “monitoring system”) of animals of the species listed in Annex IV (a) to the Habitats Directive . 2 Scottish Natural Heritage must, from time to time, review the monitoring system and, if they think it appropriate, revise it. 3 In light of the information gathered from the monitoring system, Scottish Natural Heritage must– a make arrangements for the carrying out of such research, or b where appropriate, advise the Scottish Ministers on such conservation measures as appears or appear to Scottish Natural Heritage to be necessary to ensure that such incidental capture or killing does not have a significant negative impact on the species in question. 4 In implementing that monitoring system Scottish Natural Heritage must, in relation to the species of animal listed in Annex IV(a) to the Habitats Directive which are found in Scotland– a identify the risks of incidental capture or killing to which those species are subject, and the activities which give rise to such risks; b maintain a record of instances of incidental capture or killing of animals of those species of which Scottish Natural Heritage is aware as a result of the surveillance carried out under regulation 37A, the monitoring carried out under this regulation, or otherwise; c assess to what extent monitoring of incidental capture or killing is needed, having regard to– i the risks identified under sub-paragraph (a); ii the instances of incidental capture or killing recorded under sub-paragraph (b); iii whether the species is a priority species; and iv the conservation status of the species; and d ensure that monitoring of incidental capture or killing is carried out. 5 Monitoring for the purposes of this regulation may be carried out by– a Scottish Natural Heritage; or b any other body or person– i pursuant to an agreement with Scottish Natural Heritage, provided that Scottish Natural Heritage is satisfied as to the standards and methods of monitoring used by that body or person; or ii as a condition of a licence or other authorisation granted by a competent authority. 6 The Scottish Ministers may, from time to time, give directions to Scottish Natural Heritage as to the exercise of its functions under paragraphs (1) to (5). . MICHAEL W. RUSSELL Authorised to sign by the Scottish Ministers St Andrew’s House, Edinburgh 18th December 2008