REACH No 2 (UK Brexit)

Exit day is 12th April

I posted yesterday (DEFRA post) that a second REACH SI (Brexit Law) would be enacted. It is now laid, and comments may be made on it for the next few days only.

The document is here.

The instrument amends the REACH etc. (Amendment etc.) (EU Exit) Regulations 2019 (the “REACH SI”). It adds to one of the transitional provisions relating to imported substances.

The REACH SI is here.

[the Brexit Law List in subscribers’ Cardinal Environment EHS Legislation Registers and Checklists is being updated again today. So check later today.]

Information per the Explanatory Note here

What did any relevant EU law do before exit day?

Controls on the use of chemicals are set out in Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals and establishing a European Chemicals Agency (“the EU REACH Regulation”). The REACH SI makes amendments to the EU REACH Regulation to make it operable in the domestic context and create a domestic regime for chemicals. The REACH SI contains a number of transitional provisions to allow for uninterrupted production and supply of chemicals, including one to allow the continued import of substances from the European Economic Area (“the EEA”) (“the transitional import provision”). That provision allows the importer of the substance two years from exit before they have to register the substance with the UK Agency. In the meantime the importer must provide the UK Agency with a notification within 180 days of exit.

Why is it being changed?

After the REACH SI was laid, the Department received representations from industry about the transitional import provision. Industry was concerned that, as drafted, it would still lead to disruption in the supply chain in the case of substances imported from outside the EEA. Industry was also concerned that the provision did not allow an only representative to send the required notification to the UK Agency. Only representatives are UK-based entities appointed by non-UK manufacturers, formulators or producers to fulfil the obligations of importers under the REACH Regulation. The EU REACH Regulation contains an equivalent provision regarding EEA-based only representatives. While industry has not provided detailed evidence of the impact, the Government has decided to reduce the risk through this instrument.

What will it now do?

This instrument adds to the transitional import provision. The revised version will also apply to imports to the UK from outside of the EEA where an EEA-based only representative had registered the substance under the EU REACH Regulation prior to exit. It also inserts a new provision that allows UK-based only representatives to provide the notification to the UK Agency.

BACKGROUND

Under the EU REACH Regulation, downstream users of chemical substances within the EEA do not have to register the substances they use. This includes UK companies who are currently sourcing substances from suppliers in the rest of the EEA. However, these UK companies will become importers into the UK market after EU Exit, which means they will have the duty to register the substances.

The REACH SI provides transitional support to these companies through an interim notification system for imports instead of requiring them to undertake a full registration immediately after EU Exit. The effect of this transitional import provision is that qualifying UK companies will be able to continue buying substances from the EEA without any interruption after EU Exit.

Under the notification system, those importing chemicals from the EEA will need to submit basic data on the company, substances and information on safe use within 180 days. The interim notification will need to be replaced with a full registration after two years.

The current instrument addresses two issues which were identified by industry after the REACH SI was laid before Parliament. The transitional import provision in the REACH SI covers imports from manufacturers or other producers in the EEA. It also covers the situation where a chemical is imported into the EEA under a registration held by an EEA-based only representative and then sold on into the UK. However, the provision in the REACH SI does not include the situation where a chemical was registered by an EEA-based only representative but is imported directly into the UK from outside the EEA. As a consequence, these importers would not benefit from the transitional provisions and would need to register under UK REACH before continuing to import the chemical.

The revised provision in the current instrument brings these importers within the scope of the transitional import provision. This fulfils the intention that all chemicals registered under EU REACH should be able to access the UK market after exit through the transitional provisions, either by being transferred directly into the UK REACH system in the case of UK-held registrations, or through the notification arrangements.

An EEA manufacturer, formulator or producer of articles can appoint a UK-based only representative to register a chemical on their behalf. Where they do so the UK importer is exempt from the duty to register that would otherwise lie with them. However, the REACH SI does not allow for a UK-based only representative to carry out the transitional notification for the same chemical.

The instrument reverses this so a UK-based only representative can complete the notification, in which case the importer will be exempt from this duty. This will reduce burdens on importers and avoid unnecessary duplication by importers and only representatives. An only representative will also have easier access to better information about the chemicals, especially in the case of chemical mixtures or chemicals in articles. This means that the regulator will receive better information, which will contribute to the intention of increasing the effective management of chemicals in the UK.

GUIDANCE

Guidance is available on line and will be updated in the light of these amendments. The guidance on regulating chemicals (REACH) if there is no Brexit deal is in a Technical Notice on the website GOV.UK published on the 24 September 2018. UK REACH Additional Guidance if there is no Brexit deal and a Table on steps to take is on the website hse.gov.uk published on the 4 December 2018. The Technical Notice and Additional Guidance have been combined and expanded upon to create the “UK REACH guidance if there is no Brexit deal” document, published on the HSE on the HSE website on 25 March 2019. Specific guidance on notifications in relation to Article 127E, as well as guidance on all the other transitional arrangements, was published by HSE on 21 March 2019.

CONTACTS

Keith Bailey, at the Department for Environment, Food and Rural Affairs (DEFRA), Telephone: 020 8026 3477 or email: Keith.Bailey@defra.gov.uk can be contacted with any queries regarding the instrument.

[the Exit day may change, please continue to follow this Blog]

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