The REACH Enforcement Regulations 2008

PART 1 U.K. Introduction

Citation and commencement U.K.

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

Interpretation U.K.

2.—(1) In these Regulations—

“a listed REACH provision” means a provision of REACH listed in the 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(1);

“the REACH table” means the table in Schedule 1 to these Regulations.

(2) In these Regulations—

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

“competent authority” has the same meaning it has in REACH and in respect of the United Kingdom the authorities are—

(a)

in England, the Secretary of State;

(b)

in Scotland, the Scottish Ministers;

(c)

in Wales, the Welsh Ministers;

(d)

in Northern Ireland, the Department of Enterprise, Trade and Investment and the Department of the Environment acting alone or jointly; and

(e)

in relation to matters outside the competence of a devolved administration or the Assembly, the Secretary of State(2);

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

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

“enforcing authority” means—

(a)

the Department of the Environment;

(b)

the Environment Agency;

(c)

the Health and Safety Executive;

(d)

the Health and Safety Executive for Northern Ireland;

(e)

a local (consumer safety) authority;

(f)

a local (health and safety) authority;

(g)

the Scottish Environment Protection Agency;

(h)

the Secretary of State;

“a local (consumer safety) authority” means—

(a)

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;

(b)

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;

(c)

in Northern Ireland, a district council established under section 1 of the Local Government Act (Northern Ireland) 1972(3);

(d)

in Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994(4);

(e)

in Wales, a county council or county borough council;

“a local (health and safety) authority” means—

(a)

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;

(b)

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;

(c)

in Northern Ireland, a district council established under section 1 of the Local Government Act (Northern Ireland) 1972;

(d)

in Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;

(e)

in Wales, a county council or county borough council;

“offshore installation” has the meaning given in section 44(1) of the Petroleum Act 1998(5) and “relevant waters” in relation to such an installation has the meaning given in section 44(4) of that Act;

“Scottish controlled waters” means any waters which are controlled waters within the meaning of section 30A(1) of the Control of Pollution Act 1974(6), and in these Regulations, “Scotland” includes such waters.

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

PART 2 U.K. Enforcement

Enforcement U.K.

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

(2) The duty in paragraph (1) is subject to the following provisions of this regulation and regulation 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 REACH table.

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

(a) for an installation in relevant waters (except such waters 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 REACH table;

(b) for an installation in relevant waters adjacent to Northern Ireland—

(i) to the Health and Safety Executive for Northern Ireland; and

(ii) to the Secretary of State,

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

(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 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 U.K.

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

(a) other enforcing authorities;

(b) a competent authority;

(c) the equivalent of an enforcing authority in another member State; and

(d) the European Chemicals Agency,

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

(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 in the European Union.

(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 U.K.

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 U.K.

6.—(1) This regulation applies where a local (health and safety) authority and the Executive are jointly under an enforcement duty, whether or not any other enforcing authority is also under an enforcement duty in respect of the same listed REACH provision.

(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 enforcement agreement made in accordance with regulation 5.

(5) In this regulation “the Executive” means—

(a) in Great Britain, the Health and Safety Executive;

(b) in Northern Ireland, the Health and Safety Executive for Northern Ireland.

PART 3 U.K. Exemptions

Defence U.K.

7.—(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; or

(b) can demonstrate that the appropriate authorities of another member State have exempted that person from compliance in the interests of defence.

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

Marketing and use of leaded paint U.K.

8.  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 U.K. Enforcement powers and civil proceedings

Enforcement powers U.K.

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(7)(power of customs officer to detain articles and substances).

Authorised persons U.K.

10.—(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 U.K. Offences and penalties

CHAPTER 1 U.K. Offences and penalties in relation to a listed REACH provision and Schedules 4 and 5

Offences U.K.

11.—(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.

Penalties U.K.

12.  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 U.K. Other offences and penalties

Offences U.K.

13.—(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).

(7) It is a defence for a person charged with an offence under paragraph (5) to prove that they believed that—

(a) the disclosure was lawful; or

(b) the information had already and lawfully been made available.

(8) In this regulation, “powers or duties” includes powers or duties exercisable by virtue of a warrant.

Penalties U.K.

14.—(1) A person guilty of an offence under regulation 13 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 3 U.K. Bodies corporate, Scottish partnerships and remediation

Bodies corporate and Scottish partnerships U.K.

15.—(1) Where an offence under this Part is committed by a body corporate and—

(a) it is committed with the consent or connivance of an officer; or

(b) it is attributable to any neglect on the officer’s part,

the officer as well as the body corporate is guilty of the offence and is liable to be proceeded against and punished accordingly.

(2) “Officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.

(3) If the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts or defaults of a member in connection with that member’s functions of management as if the member were a director of the body corporate.

(4) Where an offence under this Part is committed by a Scottish partnership and—

(a) it is committed with the consent or connivance of a partner; or

(b) it is attributable to any neglect on the partner’s part,

the partner as well as the partnership is guilty of the offence and is liable to be proceeded against and punished accordingly.

(5) In paragraph (4) “partner” includes a person purporting to act as a partner.

Power of court to order cause of offence to be remedied U.K.

16.—(1) Paragraph (2) applies where a person is convicted of an offence under this Part in respect of any matters which appear to the court to be matters which it is in that person’s power to remedy.

(2) Where paragraph (1) applies, the court may order the person convicted—

(a) in addition to or instead of imposing any punishment; and

(b) within such time as may be fixed by the order,

to take such steps as may be specified in the order for remedying the matters in respect of which the person was convicted.

(3) The time fixed by an order under paragraph (2) may be extended or further extended by order of the court on an application made before the end of the time as originally fixed or extended under this paragraph, as the case may be.

(4) Where a person is ordered under paragraph (2) to remedy any matters, that person is not liable under regulation 11 or 13 in respect of those matters in so far as they continue during the time fixed by the order or any further time allowed under paragraph (3).

CHAPTER 4 U.K. Matters in relation to criminal proceedings

Appearance of authorised persons before a court of summary jurisdiction U.K.

17.—(1) Where an authorised person is authorised in that behalf by—

(a) the Health and Safety Executive; or

(b) the Health and Safety Executive for Northern Ireland;

that person may, although not of counsel or a solicitor, prosecute before a court of summary jurisdiction proceedings for an offence committed under regulation 11 or 13.

(2) Paragraph (1) does not apply in Scotland.

Criminal proceedings under regulation 11 or 13 U.K.

18.—(1) No criminal proceedings for an offence under regulation 11 or 13 may, in England and Wales, be instituted except—

(a) by an enforcing authority; or

(b) by or with the consent of the Director of Public Prosecutions.

(2) No criminal proceedings for an offence under regulation 11 or 13 may be instituted in Northern Ireland except by or with the consent of the Director of Public Prosecutions for Northern Ireland.

Criminal proceedings against the Crown U.K.

19.—(1) No contravention by the Crown of these Regulations makes the Crown criminally liable but the High Court or, in Scotland, the Court of Session, may on the application of an enforcing authority declare unlawful any act or omission of the Crown which constitutes a contravention of these Regulations.

(2) Notwithstanding paragraph (1), these Regulations apply to persons in the public service of the Crown as they apply to other persons.

CHAPTER 5 U.K. Civil Proceedings

Proceedings before a civil court U.K.

20.  If an enforcing authority is of the opinion that proceedings against a person for an offence under this Part would afford an ineffectual remedy against that person, the enforcing authority may take civil proceedings against that person for the purpose of seeking such remedy as the enforcing authority believes is appropriate in the circumstances.

PART 6 U.K. Appeals against notices and service of documents

Appeals against notices U.K.

21.—(1) Where a person is served with a notice described in paragraph (2), that person may appeal that notice.

(2) The following Parts of Schedule 8 (appeals) provide for the appeals procedure applicable to the notices described—

(a) Part 1, for a notice served under section 4 of Part 1 of Schedule 6 (powers of enforcement) by the Environment Agency, the Scottish Environment Protection Agency or the Department of the Environment except a notice described in paragraph 27 of that section;

(b) Part 2, for a notice served under section 2 of Part 2 of Schedule 6 by the Health and Safety Executive, the Health and Safety Executive for Northern Ireland or a local (health and safety) authority;

(c) Part 3, for a notice served under section 2 of Part 3 of Schedule 6 by a local (consumer safety) authority;

(d) Part 4, for a notice served under section 2 of Part 4 of Schedule 6 by the Secretary of State.

Service of documents U.K.

22.  Schedule 9 (service of documents) has effect.

PART 7 U.K. Revocations and amendments

Revocations and amendments U.K.

23.  Schedule 10 (revocations and amendments) has effect.

Huw Irranca-Davies

Parliamentary Under Secretary of State

Department for Environment, Food and Rural Affairs

1st November 2008