In response to chemical industry concerns about the tight timeframes for supplying data during the transition to UK REACH, DEFRA has announced that it intends to extend the notification and registration deadlines (subject to parliamentary and devolved administration scrutiny).
UK held registrations: ‘grandfathering’
As set out in our article back in February, under the REACH Amendment Regulations, existing EU REACH registrations held by UK-based companies will automatically ‘transfer’ and become UK registrations (known as ‘grandfathering’). The concept is that qualifying registrants should not have to re-register their substances in the UK and no new fees would be payable. Unfortunately, in practice it's not quite that simple. The UK regulator (HSE) will not have access to the substance data currently held by ECHA (unless a deal can be done - see below) and, as a result, the HSE will need to build its own substance database. Therefore, although qualifying EU REACH registrations will automatically ‘transfer’, all transferring UK registrants will need to provide the relevant data to the HSE. The new deadlines are as follows:
- Basic data about the market and the substance will need to be submitted to the HSE by 30 April 2021 (the “120-day deadline”).
- Full information appropriate to the registrant’s tonnage band will need to be submitted within two, four or six years of 28 October 2021, depending on tonnage band. Under the previous deadlines, all registrants (irrespective of tonnage band) were required to submit full information within two years. This change provides significantly more time for those in the lower tonnages bands.
EU held registrations: UK downstream users
UK businesses that purchase chemicals from EEA companies may become importers under UK REACH, and assume a much more significant regulatory role. This may well take many UK businesses by surprise. For years, these businesses will have been ‘downstream users’ under EU REACH, with limited regulatory roles, and so registration will be a new concept.
DEFRA has confirmed that businesses currently relying on a registration held by an EEA-based company can continue importing substances as they do now on 1 January 2021 (i.e. after the end of the transition period). They will however need to take subsequent actions to ensure that the chemical is registered for UK REACH purposes. The new deadlines for completing that process are as follows:
- Those importing chemicals from the EEA must notify the HSE using a Downstream User Import Notification (DUIN) of their intention to continue importing substances from the EEA by 27 October 2021 (the “300-day deadline”).
- A new registration must then be submitted to the HSE within two, four or six years of 28 October 2021. Alternatively, UK downstream users can encourage their EEA supplier to appoint a UK-based Only Representative, or change their source to a UK registered supplier.
Other notable points from DEFRA latest announcement
Firstly, the chances that the UK/EU trade negotiations will deliver a more pragmatic alternative to a parallel UK REACH system appear to be diminishing ever further. Even putting aside the apparent lack of progress in negotiations across the full spectrum of trade issues, the messaging from DEFRA could not be clearer: “the UK will establish its own independent chemicals regulatory framework, UK REACH, from 1 January 2021.”
Secondly, DEFRA has confirmed that it will continue to pursue a negotiated deal on data sharing with the EU which “would mitigate the need for industry to provide full data packages for existing registrations and offer benefits to both UK and EU businesses”. While it is still possible that the negotiators may pull that particular rabbit out of the hat, it should be noted that this would not negate the need to comply with the information provision requirements under the 120-day and 300-day deadlines. It may of course resolve the more significant (and costly) issue for those operating in the market through the 'letter of access' mechanism: the acquisition of access to any data required for full registration. For that reason alone, it remains paramount that the chemical industry continues to beat the drum about the potential cost to UK plc to ensure that this issue does not get lost in the noise of the wider negotiations.
Simon Tilling, Partner, and Tom Gillett, solicitor.