PPE Duty amendment (Britain)

The HSE has today (19th July) launched a consultation here, on proposed changes to the Personal Protective Equipment at Work Regulations 1992 (PPER). Consultation closes on 15th August.

Currently, employers have a duty to their ‘employees’ in respect to PPE – changes to the PPER will ensure this duty also extends to ‘limb (b) workers’, and will apply in England, Scotland and Wales.

In the PPER, PPE is defined as “all equipment (including clothing affording protection against the weather) which is intended to be worn or held by a person at work and which protects the person against one or more risks to that person’s health or safety, and any addition or accessory designed to meet that objective.”

This Blog does not extend to employment law, but note in Britain there are two main employment statuses for employment rights: ‘employee’ and ‘worker’. Employees are defined as limb (a) and workers are defined as limb (b) in the Employment Rights Act 1996 s.230: [we do not supply the ERA or advise on it]

..an individual who has entered into or works under– (a) a contract of employment; or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer or any profession or business undertaking carried on by the individual. [my bold]

According to the HSE consultation document – Generally, limb (b) workers:

• carry out casual or irregular work for one or a number of organisation(s),

• receive holiday pay, but not other employment rights such as the minimum period of statutory notice, after one month of continuous service

• only carry out work if they choose to

• have a contract or other arrangement to do work or services personally for a reward (the contract doesn’t have to be written) and they only have a limited right to send someone else to do the work, for example, swapping shifts with someone on a pre-approved list (subcontract)

• are not in business for themselves (they do not advertise services directly to customers who can then also book their services directly)

Specific PPE required and provided for in the below health and safety regulations is not part of this HSE consultation – PPE required in relation to:

• lead exposure – Control of lead at work

• ionising radiation – Work with ionising radiation    

• asbestos – Managing and working with asbestos   

• substances hazardous to health in the workplace (for example: chemicals, fumes, dusts, non-water vapours, non-water mists, nanotechnology, and/or gases) – Control of substances hazardous to health

• noise – Controlling noise at work

End of EU Pi-marked TPE in GB (Britain)

The UK government has today commenced consultation on the ending of recognition of EU Pi-marked TPE (transportable pressure equipment) in Britain.

The proposal is to amend the 2009 Carriage of Dangerous Goods and Transportable Pressure Equipment Regulations to require that, in future, TPE being placed on the GB market is conformity-assessed by:

• a GB-appointed body and affixed with a Rho marking

or

• a notified body established in Northern Ireland, affixed with a Pi marking plus the indication ‘UK(NI)’.

This would effectively end recognition of EU Pi-marked TPE in GB, although TPE already on the GB market before this amendment comes into force may remain in circulation.

The proposal is that this change will come into effect between 1 January 2022 and 1 January 2023.

The consultation invites comments on the impact of ending recognition of EU Pi-marked TPE in GB. The findings from this consultation will be used to inform a decision on when the amendment should come into effect.

The consultation is here. It is a short consultation that will run until 30 June.

Equal Pay Proposal (EU)

On 4th March, the European Commission presented a proposal on pay transparency – here.

The legislative proposal focuses on two core elements of equal pay:

(1) measures to ensure pay transparency for workers and employers, and

(2) better access to justice for victims of pay discrimination.

Further information is here.

NB: this Blog does not focus on Employment Law issues.

5th List of Occupational Exposure Limits (EU)

Directive 2019/1831 (amending Directive 2000/39/EC) establishes a fifth list of indicative occupational exposure limits (IOELVs) for chemical agents.

For any chemical agent for which an IOELV has been set at European Union level, Member States are required to establish a national occupational exposure limit value. They also are required to take into account the Union limit value determining the nature of the national limit value in accordance with national legislation and practice.

Member States must bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 20th May 2021 at the latest.

The Directive establishes limit values for the following chemical agents:

Aniline

Chloromethane

Trimethylamine

2-Phenylpropane (Cumene)

sec-Butyl acetate

4-aminotoluene

Isobutyl acetateIsobutyl acetate

Isoamyl alcohol

n-Butyl acetate

Cardinal Environment EHS Legislation Registers & Checklists will be updated shortly.

Workplace testing (UK-Covid)

Some employers and third-party healthcare providers may want to introduce their own internal testing programmes outside of NHS Test and Trace.

NHS Test and Trace is for those who display symptoms of COVID-19 or who have been advised to take a test by a medical practitioner or public service. Employer and third-party healthcare providers wishing to provide a test to staff must not advise individuals without symptoms to get a test from the limited supply offered by the NHS Test and Trace service, but may offer alternative private provision.

The government first published guidance on 10 Sept 2020.

The guidance was updated several times since, and on 26 Feb 2021 was updated –

Updated to reflect the ongoing evolution of private-sector testing. In particular, updated advice in relation to lateral flow device (LFD) testing, routes to access testing, and a more comprehensive supplementary annex for employers and third-party providers wishing to offer workplace testing for asymptomatic employees.

The guidance is here.

Note CE marking is replaced by UKCA marking. Information on UKCA marking is here.

Existing CE marked goods may continue to circulate on the GB market in 2021 under transitional arrangements.

CE marked goods may circulate in Northern Ireland under the Protocol, UKCA goods must be marked UKNI in the Northern Ireland market (see the UKCA marking link).

Drivers’ Hours (UK)

EU drivers’ hours and tachograph rules still apply to journeys between the EU and UK, or wholly within the EU or UK.

AETR (the European Agreement Concerning the Work of Crews of Vehicles Engaged in International Road Transport) apply to journeys outside of the EU, including journeys involving Norway and Switzerland.

3 sets of rules could apply to a road journey:

* EU rules – here

A person must not drive more than:

• 9 hours in a day – this can be extended to 10 hours twice a week

• 56 hours in a week

• 90 hours in any 2 consecutive weeks

All driving carried out under EU rules must be recorded on a tachograph. And there are EU rules on breaks and rest.

* AETR rules – here

AETR rules are the same as the EU rules.

* GB domestic rules – here

GB domestic rules are not completely the same as EU rules (that was the case also before the UK exited the EU) and apply to most goods vehicles that don’t need to follow EU rules. GB rules apply in Britain. Separate domestic rules apply in Northern Ireland – here.

The rules that apply depend on:

• the type of vehicle being driven

• which country the vehicle is being driving in

If driving under the EU or GB domestic drivers’ hours rules, a person also needs to follow the working time rules – here.

The employer of drivers or mobile workers must also follow additional rules – here.

The collection of guidance links on Drivers’ Hours is here. Note the temporary relaxations for Covid.

EU-UK Trade and cooperation agreement (2) (UK & EU)

I updated my post this morning with the link to the UK published legal text (1,246 pages – it’s the same text in the individual sections and chapters). Look back on the blog itself.

I also updated my post this morning (online) with the link to the EU document now loaded on a dedicated website, this also includes an EU Q&A – here.

A couple of points (identified in the Q&A) –

(1) Trading under ‘FTA’ (free trade agreement) terms from 1st Jan will differ substantively to trading in EU’s Customs Union and Single Market.

In particular:

• rules of origin will apply to goods in order to qualify for preferential trade terms under the agreement;

• all imports will be subject to customs formalities and will need to comply with the rules of the importing party;

• all imports into the EU must meet all EU standards and will be subject to regulatory checks and controls for safety, health and other public policy purposes.

(2) Traders will account not only for the origin of materials used, but also if their processing took place in the territory of one of the Parties. This is called ‘full cumulation’. Exporters will be able to self-certify the origin of the goods, and will have additional flexibility in collecting documentary evidence to prove origin during the first year.

(3) The Parties will recognise each other’s ‘Authorised Economic Operators’ programmes, enabling trusted traders with this status to use certain simplifications and/or facilitations relating to security and safety in their customs operations with the customs authorities of the other Party. But there is no waiver on security and safety declarations, as this requires alignment between the Parties on security standards.

(4) From 1st Jan, the EU and the UK will be two separate regulatory and legal spaces. This means that all products exported from the EU to the UK will need to comply with UK technical regulations and will be subject to any applicable regulatory compliance checks and controls. Similarly, all products imported from the UK to the EU will need to comply with EU technical regulations and will be subject to all applicable regulatory compliance obligations, checks and controls for safety, health and other public policy purposes.

(5) Both Parties agreed on a definition of international standards that identifies the relevant international standard-setting bodies. This is intended to ensure that both sides’ domestic product standards and technical regulations are based on the same international references and are therefore compatible to the extent possible.

(6) In the field of conformity assessment, the Parties agreed to maintain simplified access to each other’s markets through, in particular, the continued use of self-certification of conformity by the manufacturer where this is currently applied in both the EU and the UK. This covers a very large share of bilateral trade.

(7) Re Automotive Products – the Parties agreed that regulatory convergence will be based on the use of the international technical standards set at UNECE (United Nations Economic Commission for Europe) level. Both Parties will accept, in their respective markets, products that are covered by a valid UN type-approval certificate.

(8) Re Medicinal Products – the Parties agreed to recognise the results of inspections carried out by the authorities of the other Party in manufacturing facilities located in the territory of the issuing authority. This will avoid unnecessary duplication of inspections of manufacturers of medicinal products to assess their compliance with Good Manufacturing Practice requirements.

(9) Re Chemicals – the Parties agreed to cooperate, while respecting each Party’s right to regulate, both bilaterally and in relevant international fora, on the assessment of hazards and risks of chemicals and the formats for documenting the results of such assessment. The Parties already implement the UN GHS and this will continue. The Parties agreed to use transparent procedures for the classification of substances and possibly to exchange non-confidential information.

(10) Re Organic Products – the Parties agreed reciprocal recognition of equivalence of the current EU and UK organic legislation and control system, for all categories of organic products. Organic products complying with EU law and certified by control bodies recognised by the EU will be accepted on the UK market and vice-versa. In view of new EU rules for organic products applying as of 1.1.2022, equivalence will be reassessed by end-2023.

(11) Re SPS – there will be no changes to EU food safety standards. UK agri-food exporters will need to meet all EU SPS import requirements and be subject to official controls carried out by Member States’ authorities at Border Control Posts. Where required, these controls will include the verification of health certificates in line with international standards. Similarly, EU agri-food exporters will need to meet all UK SPS import requirements.

The Agreement allows for either party to unilaterally decide to reduce the frequency of certain types of border import controls, taking into account the extent to which their SPS rules converge.

It also ensures a simplified process for the approval of imports, where relevant by drawing up lists of establishments that are eligible to export to the other party, based on guarantees provided by the authorities of the exporting Party.

(12) Re Northern Ireland – the EU acquis, including the Union Customs Code, legislation on goods, sanitary rules for veterinary controls (“SPS rules”), rules on agricultural production/marketing, or VAT and excise in respect of goods, will apply to all goods entering Nortern Ireland.

As a result, from 1 January, goods entering Northern Ireland from Great Britain will constitute “imports”.  This means that such goods will need to comply with EU product rules and be subject to checks and controls for safety, health and other public policy purposes, including all necessary SPS controls applicable between the EU and the UK.

An agreement in principle (under the separate Withdrawal Agreement) has been found in the following areas, amongst others: export declarations, the supply of medicines, the supply of certain chilled meats and other food products to supermarkets, and a clarification on the application of State aid under the terms of the Protocol. There are some facilitations –

For example, certain chilled meat, for which imports in the Union market are normally prohibited, will be accepted for delivery to supermarkets in Northern Ireland during a limited period of 6 months:

• Minced meat of poultry, frozen or chilled. Chilled minced meat from animals other than poultry (e.g. minced beef.

• Chilled meat preparations (e.g. sausages, meatballs, pork pies)..

• Any fresh meat, including minced meat and meat preparations, produced from triangular trade (e.g. EU meat exported to Great Britain, cut or minced in Great Britain and re-exported to Northern Ireland).

Another example is that, during a limited period of 3 months, the goods coming from Great Britain and destined for supermarkets located in Northern Ireland will be accompanied with a simplified, collective certificate covering all the goods transported in the same truck, instead of individual certificates.

During this period of time, the UK shall maintain its current EU SPS legislation for the products concerned.

The scope is limited to a restricted number of food suppliers for supermarkets which are approved by the UK authorities after demonstrating that they meet a range of trust criteria. This list of members will be established by the United Kingdom in cooperation with the European Commission before 31 December 2020 and cannot be extended after that date.

(13) Re Business Persons Mobility – the temporary movement of natural persons for business purposes (often refered to as ‘mode 4‘), the EU and the UK have agreed on a broad range of reciprocal commitments facilitating the ability of companies located in a Party to transfer certain employees, as intra-corporate transferees, to work in an associated company located in the other Party. As intra-corporate transferees constitute temporary migration, the maximum duration of such transfers is capped at three years. With respect to UK nationals transferred to the EU, this duration includes periods of mobility between Member States. This is in line with current EU practice with other third countries.

The EU-UK Agreement also facilitates the movement of “contractual service suppliers” or “independent professionals” to supply services under certain conditions. Business visitors not providing services will also be allowed short-term entry in order to carry out certain activities.

(14) Re Legal Services – the EU and its Member States, and the UK will allow lawyers from the other Party to provide legal services relating specifically to the practice of international law and the law of the country where they are authorised under their “home” title.

However, it should be noted that EU law is not considered to be international law, but instead the law of the Member State in which EU lawyers are established or hold their “home title”.

(15) Re Energy – the UK will leave the EU’s internal energy market on 1st Jan, Northern Ireland will maintain the Single Electricity Market with Ireland (Republic of Ireland) (under the separate Withdrawal Agreement). The EU and the UK have agreed to establish a new framework for their future cooperation in the energy field. The UK Energy (Electricity) Guidance was updated on Dec 24th (see the Brexit Guidance List on Cardinal Environment Registers & Checklists).

The UK also leaves the EU ETS (see the Brexit Guidance List) and Euratom.

The UK will define its own climate change targets and policies and the UK committed to implementing a system of carbon pricing as of 1 January 2021. The Parties agreed a framework for cooperation in the fight against climate change, and their ambition to achieve economy-wide climate neutrality by 2050. The Parties will give serious consideration to linking their respective carbon pricing systems in a way that preserves the integrity of these systems and provides for the possibility to increase their effectiveness, for instance by adding further sectors, such as buildings. This would be subject to an agreement to be negotiated separately in the future.

There are also agreed provisions for cooperation in the development of offshore energy, with a focus on the North Sea.

(16) Re Euratom – the Agreement contains a separate agreement between Euratom and the UK on the safe and peaceful uses of nuclear energy.

This Agreement enables:

• the supply and transfer of nuclear material, non-nuclear material, technology and equipment;

• trade and commercial cooperation relating to the nuclear fuel cycle;

• cooperation in the safe management of spent fuel and radioactive waste;

• nuclear safety and radiation protection;

• use of radioisotopes and radiation in agriculture, industry and medicine;

• geological and geophysical exploration;

• development, production, further processing and use of uranium resources.

(17) Re Rebalancing (Level Playing Field, includes OHS and ENV Standards) – the Agreement provides the possibility to apply unilateral rebalancing measures in the case of significant divergences in the areas of labour and social, environment or climate protection, or of subsidy control, where such divergences materially impact trade or investment between the Parties.

This might be relevant, for example in a situation where one Party would significantly increase its levels of protection related to labour or social standards, the environment or climate above the levels of the other Party. This may entail an increase in the costs of production and hence a competitive disadvantage.

Another example would be a situation where one Party would have a system of subsidy control that would systemically fail to prevent the adoption of trade distorting subsidies, which would provide a competitive advantage for that Party.

In such cases, a Party would be able to adopt measures to rebalance the competitive advantage of the other Party.

Each Party could also, at regular intervals and if rebalancing measures have been taken frequently or for more than 12 months, seek a review of the trade and other economic parts of the Agreeent to ensure an appropriate balance between the commitments in the Agreement on a durable basis. In this case, the Parties could negotiate and amend relevant parts of the Agreement. Any trade or economic part of the Agreement, including aviation, that would remain in place or be renegotiated would retain appropriate level playing field commitments.

(18) Re OHS and ENV – the EU and the UK agreed to uphold levels of protection in the areas reated to labour and social standards, and environment and climate.

Labour and social levels of protection cover the following areas:

• fundamental rights at work;

• occupational health and safety standards;

• fair working conditions and employment standards;

• information and consultation rights at company level; or

• restructuring of undertakings.

Environmental levels of protection include the following areas:

• industrial emissions;

• air emissions and air quality;

• nature and biodiversity conservation;

• waste management;

• the protection and preservation of the aquatic environment;

• the protection and preservation of the marine environment;

• the prevention, reduction and elimination of risks to human health or the environment arising from the production, use, release or disposal of chemical substances; or

• the management of impacts on the environment from agricultural or food production, notably through the use of antibiotics and decontaminants.

The climate level of protection applies to:

• emissions and removals of greenhouse gases covering EU’s and the UK’s respective 2030 economy-wide targets including their systems of carbon pricing; and

• the phasing-out of ozone depleting substances.

(19) Re Further OHS and ENV Provisions – the Agreement contains several guarantees in terms of environmental protection, over and above the non-regression provisions applying to environment, climate and labour and social protection. These include:

• A recognition of the shared biosphere;

• Coverage of future targets that are now in the laws of the parties – the 2030 waste recycling targets, the 2027 water targets and the 2030 air pollution ceilings;

• Full inclusion of the key environment principles, including precautionary principle, polluter pays, and integration principle;

• Full inclusion of the principles of the Aarhus Convention with modernised text, including access to justice, access to information and public participation;

• Effective co-operation mechanism foreseen between the supervisory body or bodies in the UK in terms of protection of the environment, and the Commission;

• The recognition of the relevance of procedures for evaluating the likely impact of a proposed activity on the environment, such as an environmental impact assessment or a strategic environmental assessment.

(20) Re Health/Sanitary Quality in Agri/Foods – the broad scope of the commitment on the environment refers to agricultural and food production. In addition, it specifies two important areas for the level playing field with regards to agriculture and food production, namely the use of antibiotics and decontaminants.

(21) Re Aviation – UK carriers will be able to fly across the territory of the EU without landing; make technical stops in the territory of the EU for non-traffic purposes; and carry passengers and/or cargo on any routes between a given point in the UK and a point in the EU. Also, the Agreement will permit Member States and the UK to bilaterally exchange onward travel (termed 5th freedom) rights for extra-EU all-cargo operations only (e.g. Paris-London-New York).

The Agreement defines new arrangements for the recognition of future design and environmental certificates, as well as for production organisation oversight. Existing design certificates issued under EU rules before 1 Jan will remain valid.

(22) Re Road Transport – the Agreement provides for quota-free point-to-point access for operators transporting goods by road between the EU and the UK. This means UK lorries would be able to reach the EU and return from the EU, including when not loaded. The same rights are conferred to EU hauliers travelling from any point in the EU to the UK, and back from the UK to anywhere in the UK.

UK and EU trucks will also be able to perform up to two additional operations in the other party’s territory, once they have crossed the border.

This will allow EU hauliers that carry a load to the UK to perform two cabotage operations in the UK, thus limiting the risk of having to travel back to the EU without a load. 

For UK hauliers, these additional operations can be composed of two cross-trade operations (i.e. transport operations between two Member States) or one cross-trade and one “cabotage” operation (i.e. a transport operation within two points of a single Member State). Special provisions are made in the case of Ireland, as Northern Irish hauliers will be able to perform two cabotage operations in Ireland.

ECMT holders will be able to do 3 cabotage operations.

Post-Transition Borders Preparedness (UK)

On 10th Dec, the Chair of the EU Goods Sub-Committee wrote to the UK CDL Michael Gove with questions. The EU Goods Sub-Committee is a Lords Sub-Committee of the European Union Select Committee.

This letter is found here. The questions are identified in bold.

In November 2020 the Committee held five evidence sessions on preparedness for the end of transition, and the arrangements for the import and export of goods after the transition period.

The letter presents to the Government the key findings of the inquiries, asks urgent questions and makes recommendations.

Key Findings

• Crucial IT systems to deal with customs declarations and accessing Kent are still in testing and may not be ready for the end of transition.

• Small businesses will struggle to access these IT systems, or the services of the customs intermediary sector which appears to be under-resourced.

• The traffic management plan is vulnerable to closures, and the plan splits traffic well before drivers would normally make the decision on which route to take.

• Facilities for drivers are inadequate and will have serious welfare, safety and legal implications for those stuck in what may be delayed queues. Comfort breaks and sustenance have not been adequately considered or provided for.

• Animal welfare issues may arise for vehicles carrying livestock if they are stuck in queues for a long time.

• There is widespread uncertainty and the guidance provided by the Government has been complicated and unclear.

Separately (also in the week to 10th Dec), nine organisations involved in the supply of goods to the UK wrote to the UK transport minister Grant Schapps to warn that the current levels of congestion at the country’s leading container ports could continue for some time to come.

This report is here.

In response to pressures on local and national supply chains, the UK Department for Transport, pursuant to Article 14(2) of Regulation (EC) No 561/2006, introduced a temporary and limited urgent relaxation of the enforcement of EU drivers’ hours rules in England, Scotland and Wales.

These temporary relaxations apply from 12:01am on 10 December 2020 until 11:59pm on 30 December 2020, subject to review.

This notice is here.

EU REACH and UK REACH (UK from 1st Jan)

Like CLP (see my blog post on CLP), the key principles of the European Union (EU) REACH Regulation are retained. This document is included (separated into four line entries) in our Brexit Consolidated Law project (the coloured list in Cardinal Environment EHS Legislation Registers & Checklists).

From 1 January 2021, UK REACH and EU REACH will operate independently from each other. Companies that are supplying and purchasing substances, mixtures or articles to and from the EU/EEA/Northern Ireland and Britain (England, Scotland and Wales) will need to ensure that the relevant duties are met under both systems.

EU REACH will apply to Northern Ireland from 1st Jan, while UK REACH will regulate the access of substances to the GB market.

GB- based Businesses holding EU REACH Registrations (in ECHA)

The EU REACH registration will be (and must be) legally recognised (grandfathered) in the UK REACH system after 31st Dec, but information will be supplied to the HSE (the UK REACH regulator) via an account (the holder sets up) on the new UK REACH IT system.

* initial information on the existing EU REACH registration within 120 days of 31st Dec.

* technical information (required under UK REACH) within 300 days plus either 2, 4 or 6 years of 31st Dec. The deadline depends on the tonnage and/or hazard profile of substances.

Grandfathering will be available (and will be required) for all registrations (including intermediates) held by GB-based entities, including importers and Only Representatives (ORs) based in Britain, and to sole, lead or joint registrants.

All GB-based registrations that exist on 31st Dec, and all registrations held by GB entities at any point since 29 March 2017 will be grandfathered. This means that if a GB registration was transferred to an EU/EEA/NI-based entity in the run-up to 31st Dec, it will still be grandfathered into UK REACH.

Grandfathering will not apply to registrations held by entities established outside of Britain, regardless of whether they are part of a group of companies which also has a presence in Britain. Those registrations will not be grandfathered, unless they have been transferred to a GB entity before 31st Dec.

Before transferring any registrations, the HSE asks you to consider how this would affect your operations in the EU/EEA and Northern Ireland, and your ability to access the EU/EEA and NI markets in future.

The HSE says any ECHA decisions relevant to a registration(s) will remain valid.

Access to the technical information used for EU REACH registration may require renegotiating commercial contracts/letters of access which were originally put in place for EU REACH under a Substance Information Exchange Forum (SIEF).

UK REACH will not require GB companies to form a Substance Information Exchange Forum (SIEF) to submit registration data, including under the grandfathering provisions. UK REACH will include a similar Article 26 substance inquiry system to EU REACH to facilitate the principle of ‘one substance, one registration’ which will be retained under UK REACH.

This link gives access to HSE details of the information that must be submitted (scroll down)

Separate Rules apply for GB- based businesses that are downstream users and distributors if they continue to be supplied from the EU/EEA – read here.

GB- based businesses importing non EU/EEA substances Businesses that act only as importers of substances will not be able to appoint an Only Representative (OR) under EU REACH (only a manufacturer, formulator or producer of articles can do so). This means that, as a GB-based importer, you will not have the option to transfer your EU REACH registrations to an EU-based entity OR to continue selling into the EU/EEA or Northern Ireland.

To sell chemicals to EU/EEA or NI customers you should:

* help your EU/EEA and NI-based customers to register with ECHA as importers

or

* work with the non-EU/EEA or NI-based manufacturer who supplies you to encourage them to appoint an OR based in Northern Ireland or an EU/EEA country, who can register the substance with ECHA. The HSE advises you will need to consider in each case whether this registration will be sufficient to allow you to export the substance into the EU/EEA or Northern Ireland.

For mixtures to be placed on the EU/EEA or NI markets you should ensure that each substance at one-tonne or over is registered with ECHA in accordance with EU REACH directly by someone EU-based in your supply chain (again see above re OR).

GB- based Businesses holding EU REACH Authorisations (in ECHA)

Again, these will be grandfathered. The deadline here is 60 days from 31st Dec for information supply to HSE –

* the information included in the application for the authorisation

* any other information provided to ECHA by the applicant for the authorisation which was material to the formation of ECHA’s opinion

* any information required to be submitted or recorded before 31st Dec under any condition under which the authorisation is granted.

Separate Rules apply for GB- based businesses that are downstream users and distributors if they continue to be supplied by anyone with an EU REACH authorisation – read here.

Link to HSE information for GB- based Businesses bringing to GB NI- registered goods under EU REACH (qualifying Northern Ireland goods – QNIGs) – here.

Link to HSE information for NI- based businesses trading QNIGs – here.

Note : see above re GB holders of EU REACH registrations.

LINK to HSE for further scenarios.

EU CLP and GB CLP (UK from 1st Jan)

I mentioned GB CLP yesterday in my blog about publication of the new rules for Northern Ireland.

From 1 January 2021, the European Union (EU) CLP Regulation will be replaced in Britain by retained EU law – the GB CLP Regulation. The GB CLP Regulation will be added to Cardinal Environment EHS Legislation Registers & Checklists, and is included in our Brexit Consolidated Law project (the coloured list).

Businesses based in Britain (England, Scotland and Wales) that place chemicals (substances and mixtures) on the GB market will comply with the GB CLP Regulation (not the EU CLP Regulation) from 1st January.

GB CLP Agency

GB-based businesses supplying the GB market with chemicals (substances and mixtures) will deal with the Health and Safety Executive (HSE) as the GB CLP Agency instead of the European Chemicals Agency (ECHA).

GB Notification

GB-based businesses will notify the GB CLP Agency (not ECHA) of the classification and labelling of the substances they place on the GB market, whether on their own or in mixtures, where they meet the criteria for notification (please check that notification is not required if the substance is subject to UK REACH registration).

GB mandatory classification and labelling (GB MCL)

GB-based businesses will classify and label their substances, where required, in accordance with GB MCL and with the entries in the GB MCL list hosted and managed by the GB CLP Agency.

Downstream users and distributors supplied from the EU/ European Economic Area (EEA)

GB-based downstream users or distributors supplied from the EU/EEA will be importers after 31st December if these supply arrangements continue. 

Exporting to the EU/EEA

Responsibility for the classification, labelling and packaging of chemicals exported to the EU/EEA from Britain will rest with the EU/EEA-based importer.

Unchanged from 1st Jan 2021 –

The main duties on GB-based businesses i.e. manufacturers, importers, downstream users and distributors (“suppliers”) to classify, label and package the chemicals (substances and mixtures) they place on the market under the GB CLP Regulation will stay the same.

Classification

From January 2021, GB-based manufacturers, importers and downstream users will still classify substances and mixtures) i.e. identify any hazardous properties, before they place them on the GB market.

Labelling

Manufacturers, importers, downstream users and distributors based in Britain will still label substances and mixtures to reflect their hazard classification before they place them on the GB market.

There are no changes to requirements for when GB CLP Regulation labelling appears alongside those for transport (dangerous good transport).

Packaging

There are no changes to packaging requirements. Substances and mixtures placed on the GB market must still be safely and securely packaged. Requirements for child resistant closures and tactile warning devices will remain in place.

Responsibility to identify health, environmental and physical hazards 

All suppliers based in Britain will continue to be responsible for identifying, examining and evaluating available scientific and information on substances and mixtures relating to possible physical, health or environmental hazardous properties of chemicals. This is to ensure all the requirements of classification, labelling and packaging are fulfilled.

Testing arrangements 

Testing arrangements for chemicals, including a ban on testing on humans or primates for the purposes of the GB CLP Regulation, will still apply.

Relationship with UN GHS

The GB CLP Regulation, as retained EU law, will continue to adopt changes to the United Nations Globally Harmonized System of classification and labelling of chemicals (UN GHS) in a similar way to the EU CLP Regulation.

Northern Ireland- based Businesses

The EU CLP Regulation will apply in Northern Ireland. This will mean that:

* chemicals (substances or mixtures) placed on the market in Northern Ireland will comply with the EU CLP Regulation (not the GB CLP Regulation)

* Northern Ireland- based businesses will notify ECHA (not the HSE) of the hazard classification and labelling of the substances they place on the NI market, for inclusion in the EU Classification and Labelling Inventory, whether on their own or in mixtures, where they meet the criteria for notification (notification is not required if the substance is subject to EU REACH registration)

* Northern Ireland-based downstream users and distributors who are currently supplied by businesses in the EU/EEA will not face any new EU CLP Regulation requirements if these supply arrangements continue (GB businesses will be importers – see above)

Responsibility for the classification, labelling and packaging of chemicals traded from Britain to Northern Ireland will rest with the Northern Ireland based business who places the chemical on the Northern Ireland market even if it is currently a downstream user or distributor.

NI- based businesses placing goods on the GB market must study the new Rules for Northern Ireland published yesterday. Please note the relevant clauses of the Internal Market Bill are dropped (and the HSE Guidance is not yet updated).

Link to HSE.