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Uncertainty for future of UK chemicals regulation

December 12, 2018

For chemical companies, postponement of the 11 December vote on the draft Brexit agreement with the European Union means that certainty over the future of the REACH legislation in the UK has been deferred.

The vote was to decide the future of the UK’s departure from the EU, or Brexit, which is officially set to take place on the 29 March 2019. The government now enters a period of consideration towards a revised voting date, the latest date for which has been reported in the UK media as the 21 January 2019.

Uncertainty therefore continues and possible scenarios include a UK Parliament approval of the draft agreement following a renegotiation or clarification of the existing proposal, a general election, a second referendum on EU membership, a unilateral withdrawal of Article 50 by the United Kingdom, or the United Kingdom leaving the EU without a deal.

Should the draft agreement be approved, the UK will enter into a two-year transition period after the 29 March, during which time current EU chemicals regulation will remain in effect. In the event of a no-deal Brexit chemical manufacturers, importers and downstream users may need to take action to ensure continued regulatory compliance in the UK and EU after the 29 March 2019.

Compliance in the European Economic Area

The European Chemicals Agency (ECHA) has created guidance for companies for the UK’s withdrawal from the EU. This guidance states that in the absence of an effective agreement, on the 29 March 2019 the UK will become a third country and some UK companies should appoint an Only Representative in the EU27 to fulfil REACH obligations on their behalf.

It is not technically possible to implement this whilst the UK is still a member of the EU, but ECHA has stated that it will clarify the procedure in January 2019. The evidence available suggests that this will be an update to the existing legal entity transfer process.

Compliance in the UK

The UK Government has issued guidance for a no-deal scenario which provides some insight into how a new UK chemicals’ regulatory regime might function after the 29 March.

In a no-deal Brexit, the UK Government has been planning a replacement regulation for REACH in the UK. This will effectively be a ‘carbon copy’ of EU REACH, with some modification to make it applicable to the UK. For example, the Health and Safety Executive (HSE) would act as the lead UK regulatory authority, from the day the UK leaves the EU.

The guidance also states that on the 29 March 2019, companies will have a series of time-limited actions to carry out in order to achieve compliance with the new UK regulation.

Deadline

Obligation

29 March 2019

UK leaves the EU

28 May 2019

UK companies with a valid EU REACH registration must notify the UK authority that they wish to copy the registration to the UK regime

25 September 2019

UK companies must notify the UK authority that they wish to submit a new registration

29 March 2021

Companies that submitted a notification to the UK authority must provide a ‘full data package’ to the UK

The process described above has caused widespread concern with the industry, mainly due to the requirement for a ‘full data package’ which could mean further negotiation and potentially payment to data owners. Not all of the requirements have yet been clarified, but obviously will need to be in the not too distant future. Finally, non-UK companies will need to appoint a UK based Only Representative in order to fulfil UK REACH obligations on their behalf.

TSG can help

We understand that this is an uncertain time for companies and we are working with our clients to create and implement risk mitigation plans. TSG has both UK and EU27 registered legal entity offices and so can act as a UK and EU27 Only Representative on your behalf as you may require.

TSG is also closely engaged with the HSE and the UK REACH developments, such that we expect to be well placed to support those companies seeking UK registration, through either the Inquiry route or the transfer of data from EU REACH to UK REACH once the facility becomes available.

TSG is watching the development of the new UK regulation closely – we can help you to plan your risk mitigation compliance activities for a variety of scenarios to ensure that you stay compliant. Get in touch with us today to learn more.

 

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