Defra launches public consultation on extending UK REACH transitional registration deadlines | Bergeson and Campbell, PC

The Department for Environment, Food and Rural Affairs (Defra) has launched a public consultation on the extension of the UK Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) submission deadlines for transitional registrations – registrations under UK REACH of substances that have been registered in the European Union (EU) in accordance with EU REACH no later than December 31, 2020, the end of the Brexit transition period. Defra invites comments on two options to extend the current registration deadlines, as well as a do nothing option. Defra is also asking for comments on extending the dates by which the Health and Safety Executive (HSE) must carry out compliance checks on at least 20% of registration dossiers. Answers are due September 1, 2022.

UK REACH requires substances manufactured in or imported into Great Britain (GB) to be registered with the HSE, the agency for UK REACH. Records include information on hazards, uses and exposures to the substance. HSE uses registration information for regulatory purposes, and registrants use this information to identify appropriate risk management measures for themselves and other users down the supply chain.

The UK REACH Regulation contains transitional provisions designed to reduce disruption for UK businesses as they transition to the new EU REACH regime. According to Defra, these provisions allowed companies to submit initial “notification” data to continue their activities and then provide full registration data afterwards. The transitional provisions apply to UK entities that were registrants, downstream users or distributors under EU REACH before UK REACH came into force. The current timelines for completing the transitional registration process, depending on the tonnage and hazard profile of the substance, are:

• October 2023 for substances included in the EU REACH candidate list before REACH came into force in the UK; substances that are carcinogenic, mutagenic or toxic for reproduction (CMR) and manufactured or imported in quantities of one metric ton (MT) or more per year; substances very toxic to aquatic life and manufactured or imported in quantities of 100 MT or more per year; and all substances manufactured or imported in quantities of 1,000 MT or more per year.
• October 2025 for substances added to the UK REACH Candidate List before the above submission deadline; and all substances manufactured or imported in quantities of 100 MT or more per year.
• October 2027 for all substances manufactured or imported in quantities of one MT or more per year.

Defra says that in response to concerns raised by stakeholders about the cost of acquiring data to complete their registrations, the government is working with stakeholders to explore an alternate transitional registration model. According to Defra, the objective of the model is to reduce the costs for companies of the transition from EU REACH to UK REACH while maintaining or improving existing protections for human health and the environment, in accordance with international commitments. Defra notes that developing a new model is highly technical and complex, and once a suitable model is found, operational and legislative changes would need to be made to implement it.

The public consultation also covers the proposal to extend legislative deadlines for the HSE to carry out compliance checks on at least 20% of registration dossiers required under Article 41 of UK REACH, which has been carried over from EU REACH . According to Defra, the deadlines should be changed “to ensure that they apply after the relevant submission dates have passed, otherwise no data will have been submitted to the Agency to carry out compliance checks”.

According to consultation filethe strategic options considered and included in the consultation are as follows:

• Baseline — Do nothing: Leave the current submission deadlines unchanged (October 27, 2023; October 27, 2025; and October 27, 2027). The consultation document indicates that with a “do nothing” option, the first deadline for October 27, 2023, will fall before the government has had time to develop and legislate for the alternative model. This will lead to considerable uncertainty about the obligations of companies and the steps they must take to meet them. There is also a risk that the industry will start making insignificant investments in data acquisition that may not be necessary under the criteria set out in the alternative transitional registration model being developed.
• Option 1: Extend all current submission deadlines for each quantity tier by three years in order to October 2026, October 2028and October 2030. The public consultation document says this should give the government time to put the alternative model in place and those subject to the first deadline time to prepare to comply. It would also give those subject to later deadlines the same amount of time they currently have to consider what is being done by those subject to earlier deadlines. As stated in the Article 1 Consistency Statement, the Government considers that this option would comply with Article 1 of the UK REACH Regulation. In particular, with the aim of ensuring a high level of protection of human health and the environment and the free movement of substances.
• Option 2 (preferred option): Extend the first submission deadline by three years for October 2026the second of two years to October 2027and the third one-year-old October 2028. According to the public consultation document, moving back the first submission deadline by three years should give the government time to introduce the alternative transitional registration model and those subject to this deadline time to comply. The public consultation document indicates that option 2 has the advantage that transitional registration data is received by the HSE sooner than under option 1. Under this option, persons subject to the two second submission deadlines would have less time to consider what people submitted at earlier submission deadlines. Defra” do[es] does not consider that there would be significant impacts on the industry due to the narrowing of the gaps between submission deadlines, and believes[s] any disadvantages are outweighed by the advantages of the HSE receiving the transient recording data sooner.

Comment

This Defra public consultation highlights the challenges the UK government and UK businesses are facing as the UK’s transition from EU REACH to UK REACH continues. The fundamental principles of Article 1(3) of REACH are common to both EU and UK legislative paradigms. These REACH principles place the responsibility of manufacturers, importers and downstream users to “ensure that they manufacture, place on the market or use these substances that do not harm human health or the environment” and that they are “supported by the precautionary principle”. The alternative model proposed by Defra is somewhat problematic in terms of how the information requirements of Article 10 will be fulfilled, in particular the requirement that “the declarant must be in lawful possession or have the permission to refer to the full study report summarized under (vi) and (vii) for record purposes. Even if Defra modifies this provision of Article 10, it could face legal challenges from data owners.

Unless the UK modifies Article 41(5) of UK REACH, the HSE will not comply with its provisions in December 31, 2023, when the first deadline for the review of “not less than 20%” of REACH registration dossiers in the tonnage band of 100 MT or more must be checked for compliance. Defra’s preferred policy option delays compliance with the current provisions of Article 41(5) of REACH in the UK by at least three years, but reduces the timeframe for the completion of compliance checks for units tonnage of less than 100 MT per annum with respect to UK and EU REACH, which currently require the HSE to meet its compliance monitoring target for lower tonnage bands in December 31, 2027.

Whatever the outcome of this public consultation, Defra faces the daunting challenge of meeting the UK’s commitment to a UK REACH regulation that is no less protective of human health and the environment than EU REACH. without imposing additional financial burdens on UK businesses.

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