The REACH Enforcement Regulations 2008

Made: 1st November 2008

Laid before Parliament: 10th November 2008

Coming into force: 1st December 2008

The Secretary of State, being a Minister designated[^f00001] for the purposes of section 2(2) of the European Communities Act 1972[^f00002] in relation to measures relating to persistent organic pollutants, dangerous substances, preparations and chemicals, makes the following Regulations in exercise of the powers conferred by that section:

PART 1 — Introduction

Citation and commencement

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These Regulations may be cited as the REACH Enforcement Regulations 2008 and come into force on 1st December 2008.

Interpretation

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• (1) In these Regulations—

• “a listed REACH provision” means a provision of REACH listed in a REACH table;

• “REACH” means Regulation (EC) No 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals as amended from time to time;

• “a REACH table” means— the table in Schedule 1 to these Regulations,the table in Schedule 1A to these Regulations, orthe table in Schedule 1B to these Regulations;

• “the relevant REACH table” means—in relation to a listed REACH provision, the REACH table in which that REACH provision is listed;in relation to an enforcement duty, the REACH table under which that enforcement duty arises.

• (2) In these Regulations—

• “asbestos-containing article” means an article in its entirety containing any of the asbestos fibres listed at point 6 of Annex XVII to REACH;

• “asbestos exemption certificate” has the meaning given in paragraph 2 of Schedule 5A;

• “authorised person” means a person authorised by an enforcing authority under regulation 10;

• ...

• “devolved administration or the Assembly” means the Scottish Ministers, the Welsh Ministers or the Northern Ireland Assembly;

• “district council” has the meaning given by section 44 of the Interpretation Act (Northern Ireland) 1954;

• “enforcement duty” means a duty placed on an enforcing authority under regulation 3;

• “enforcing authority” means—the Department of the Environment;the Environment Agency;the Health and Safety Executive;the Health and Safety Executive for Northern Ireland;a local (consumer safety) authority;a local (health and safety) authority; the Office of Rail Regulation the Office of Rail and Road; the Office for Nuclear Regulation; the Scottish Environment Protection Agency;the Secretary of State; the Natural Resources Body for Wales;

• “the Executive” means—in Great Britain, the Health and Safety Executive;in Northern Ireland, the Health and Safety Executive for Northern Ireland;

• “a local (consumer safety) authority” means—in Greater London, a London borough council, the Common Council of the City of London, the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple;in England outside Greater London, a county council or, in relation to an area for which there is a district council but no county council, the district council, and the Council of the Isles of Scilly;in Northern Ireland, a district council established under section 1 of the Local Government Act (Northern Ireland) 1972[^f00005];in Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994[^f00006];in Wales, a county council or county borough council;

• “a local (health and safety) authority” means—in Greater London, a London borough council, the Common Council of the City of London, the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple;in England, outside Greater London, a district council or, in relation to an area for which there is a county council but no district council, the county council, and the Council of the Isles of Scilly;in Northern Ireland, a district council established under section 1 of the Local Government Act (Northern Ireland) 1972;in Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;in Wales, a county council or county borough council;

• “offshore installation” means—an offshore installation within the meaning of section 44(1) of the Petroleum Act 1998; ora carbon storage installation within the meaning of section 30(5) of the Energy Act 2008;

• “paint stripper” means material that, when applied to a coated substrate, softens the coating so that it can be removed easily, and “paint stripping” is to be construed accordingly;

• “paint stripper containing dichloromethane” means any paint stripper containing dichloromethane in a concentration equal to or greater than 0.1% by weight;

• “professional” means any person undertaking paint stripping in the course of theirprofessional activity other than within an industrial installation[^f00004] where the conditions set out in entry 59 paragraph 4 of Annex XVII to REACH are complied with.

• “relevant nuclear site” means a site which is—a GB nuclear site (within the meaning given in section 68 of the Energy Act 2013);an authorised defence site (within the meaning given in regulation 2(1) of the Health and Safety (Enforcing Authority) Regulations 1998); ora new nuclear build site (within the meaning given in regulation 2A of those Regulations).

• “railway” means—except in Northern Ireland, any system of transport the operation of which is specified in regulation 3(2) of the Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006;in relation to Northern Ireland, any railway or tramway which in either case is used for the carriage of persons or goods;

• “relevant waters”, in relation to an offshore installation, has the meaning given in section 44(4) of the Petroleum Act 1998;

• “Scotland” includes Scottish controlled waters;

• “Scottish controlled waters” means—in relation to an offshore installation which is maintained (or intended to be established) for the purposes of the exploration for, or exploitation of, petroleum (within the meaning of section 1 of the Petroleum Act 1998), any waters which are controlled waters within the meaning of section 30A(1) of the Control of Pollution Act 1974; andin relation to any other offshore installation, waters within the seaward limits of the territorial sea adjacent to Scotland.

• (3) Other expressions used in these Regulations which are used in REACH have the meaning they bear in REACH.

PART 2 — Enforcement

Enforcement

3

• (1) An enforcing authority must enforce a listed REACH provision where it is named against that provision in the relevant REACH table.

• (2) The duty in paragraph (1) is subject to the following provisions of this regulation and regulations 3A and 6.

• (3) The enforcement duty commences—

• (a) except for Article 67 of REACH, on 1st December 2008;

• (b) for Article 67, on 1st June 2009.

• (4) Except in relation to—

• (a) an offshore installation; or

• (b) a local (consumer safety) authority or a local (health and safety) authority,

the enforcement duty applies to an enforcing authority in the relevant part or parts of the United Kingdom shown at the head of the column in which the enforcing authority is named in the relevant REACH table.

• (5) In relation to an offshore installation, the enforcement duty applies—

• (a) for an installation in relevant waters (except such waters within the seaward limits of the territorial sea adjacent to Northern Ireland)—

• (i) to the Health and Safety Executive; and

• (ii) except in Scottish controlled waters, to the Secretary of State,

where they are named under the column heading “Offshore Installations” in the relevant REACH table;

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) for an installation in Scottish controlled waters, to the Scottish Environment Protection Agency, where that Agency is named under the column heading “Scotland” in the relevant REACH table.

• (6) For a local (consumer safety) authority or a local (health and safety) authority, the enforcement duty applies to the area of that authority.

• (7) The enforcement duty applies to an enforcing authority where enforcement of the listed REACH provision is a function of that authority.

• (8) The functions of an enforcing authority for the purposes of these Regulations are set out in Schedule 2 (functions of enforcing authorities).

Co-operation and information sharing

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• (1) An enforcing authority must co-operate with—

• (za) the Agency;

• (zb) the appropriate authorities; and

• (a) other enforcing authorities;

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

where this will facilitate compliance with, or the effective enforcement of, REACH ....

• (2) An enforcing authority must disclose to a person referred to in paragraph (1) information it holds in relation to compliance with, or the enforcement of, REACH where it believes—

• (a) it is reasonable for it to make that disclosure; and

• (b) the disclosure will facilitate compliance with, or the effective enforcement of, REACH ....

• (3) The Commissioners for Revenue and Customs may disclose to an enforcing authority information obtained or held by the Commissioners in exercise of their functions in relation to imports—

• (a) where the Commissioners believe it is appropriate to do so to facilitate the exercise of the duty of an enforcing authority under these Regulations; and

• (b) whether or not the information has been requested by the enforcing authority.

Enforcement agreements

5

• (1) This regulation applies to agreements between an enforcing authority (“A”) and another enforcing authority (“B”) intended to facilitate the carrying out of an enforcement duty, or part of it.

• (2) A may agree arrangements with B for B to carry out on A’s behalf any matters in relation to an enforcement duty that applies to A.

• (3) Where an enforcement duty applies to both A and B, they may agree arrangements for performance of that duty to be divided between them in such a way as they consider to be administratively convenient.

• (4) An agreement in respect of the matters in paragraph (2) or (3)—

• (a) may deal with more than one listed REACH provision;

• (b) must be in writing;

• (c) must give sufficient particulars of the matters to which it relates; and

• (d) may be made subject to limitations and conditions.

• (5) Such an agreement—

• (a) may be varied in writing by the parties, acting jointly;

• (b) may be revoked by any party on sixty days notice in writing to the other party or parties to the agreement.

Health and safety enforcement

6

• (1) This regulation applies where the Executive is jointly under an enforcement duty with any of the following enforcing authorities, whether or not any other enforcing authority is also under an enforcement duty in respect of the same listed REACH provision—

• (a) a local (health and safety) authority;

• (b) the Office of Rail Regulation the Office of Rail and Road .

• (2) Schedule 3 (health and safety enforcement) has effect.

• (3) In circumstances not provided for under Schedule 3, the Executive must perform the joint duty on behalf of a local (health and safety) authority.

• (4) The arrangements under Schedule 3 and the arrangement under paragraph (3) may be varied by an assignment made in accordance with regulation 3A or an enforcement agreement made in accordance with regulation 5.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 3 — Exemptions

Defence

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• (1) A person is exempt from compliance with a listed REACH provision if that person—

• (a) has the benefit of a defence exemption certificate made by the Secretary of State in respect of that provision; . . .

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) Schedule 4 (defence exemption certificates) has effect.

Marketing and use of leaded paint

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A person who markets or uses leaded paint does not breach the restriction on the marketing and use of leaded paint provided for by Article 67 of REACH where that person complies with the provisions of Schedule 5 (marketing and use of leaded paint).

PART 4 — Enforcement powers and civil proceedings

Enforcement powers

9

• (1) Schedule 6 (powers of enforcement) has effect.

• (2) To facilitate the exercise of a duty of an enforcing authority under these Regulations, an officer of Revenue and Customs may detain, for not more than two working days, an article or substance which has been imported.

• (3) Anything detained must be dealt with in such manner as the Commissioners for Revenue and Customs may direct.

• (4) In paragraph (2), the reference to two working days has the meaning given in section 25A of the Health and Safety at Work etc Act 1974^f00009.

Authorised persons

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• (1) An enforcing authority may authorise in writing such persons who appear suitable to act on its behalf (“authorised persons”), subject to any limitations or conditions as the enforcing authority sees fit.

• (2) Where—

• (a) a person has been authorised by an enforcing authority under a provision relevant to that authority listed in Schedule 7 (authorisations); and

• (b) unless the enforcing authority provides to the contrary,

that person is an authorised person for the purposes of paragraph (1) in respect of that authority.

PART 5 — Offences and penalties

CHAPTER 1 — Offences and penalties in relation to a listed REACH provision and Schedules 4 and 5

Offences

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• (1) Except in relation to Article 67 of REACH, it is an offence for a person to contravene a listed REACH provision or cause or permit another person to do so.

• (2) On and after 1st June 2009, it is an offence for a person to contravene Article 67 of REACH or cause or permit another person to do so.

• (3) It is an offence for a person when subject to paragraph 6 of Schedule 4 (defence exemption certificates)—

• (a) to provide a false certificate or copy; or

• (b) to fail to provide when requested, as appropriate—

• (i) the defence exemption certificate;

• (ii) a copy of the certificate made by the Secretary of State; or

• (iii) a copy of an extract of the certificate made by the Secretary of State,

or cause or permit another person to do so.

• (4) On and after 1st June 2009, it is an offence for a person to contravene paragraph 5(b) or 6 of Part 1 of Schedule 5 (marketing and use of leaded paint) or cause or permit another person to do so.

• (5) Where a person (“P”) is charged with an offence for a contravention of Article 67 of REACH under regulation 11(2) of these Regulations for placing on the market paint stripper containing dichloromethane for supply to—

• (a) a person who is not a professional; or

• (b) a person for use by a person who is not a professional,

it is a defence that P took all reasonable steps and exercised all due diligence to avoid the commission of the offence.

Penalties

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Any person guilty of an offence under regulation 11 is liable—

• (a) on summary conviction, to a fine not exceeding the statutory maximum or to imprisonment not exceeding three months, or both;

• (b) on conviction on indictment, to a fine or to imprisonment not exceeding two years, or both.

CHAPTER 2 — Other offences and penalties

Offences

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• (1) It is an offence for a person—

• (a) intentionally to obstruct an authorised person in the exercise or performance of the powers or duties of the authorised person; or

• (b) to make a statement—

• (i) which that person knows to be false or misleading in a material particular; or

• (ii) recklessly and which is false or misleading in a material particular,

where the statement is made in purported compliance with a listed REACH provision or with a requirement to furnish any information imposed by or under these Regulations.

• (2) Where an authorised person exercises the powers in Schedule 6 (powers of enforcement), it is an offence for a person—

• (a) to fail to comply with—

• (i) any requirement imposed by or made under those powers;

• (ii) a notice described in that Schedule;

• (b) to fail or refuse—

• (i) to provide facilities or assistance; or

• (ii) to permit any inspection,

when reasonably required by an authorised person;

or

• (c) to prevent any other person from appearing before an authorised person, or answering any question to which an authorised person may require an answer.

• (3) It is a defence for a person charged with an offence under paragraph (2) to prove that they had a reasonable excuse for the matters with which they are charged.

• (4) It is an offence for a person to pretend to be an authorised person.

• (5) It is an offence for a person to disclose the information described in paragraph (6) where—

• (a) that person received that information from the Commissioners for Revenue and Customs; and

• (b) the disclosure has not been made—

• (i) with the prior consent of the Commissioners; or

• (ii) pursuant to a legal obligation.

• (6) The information referred to in paragraph (5) is information which relates to a person whose identity—

• (a) is specified in the disclosure; or

• (b) may be deduced from the disclosure,

but excludes information about internal administrative arrangements of Her Majesty’s Revenue and Customs (whether relating to Commissioners, officers or others).