The REACH Enforcement Regulations 2008 (2008 No. 2852) implement the REACH regulation on a national basis. Part 3 of the Regulations deals with exemptions and constitute the legal basis for granting exemptions in the interest of defence. For these documents please see links below:
Description of National Procedure
The following information is an abstract from the UK MOD guidance. Please consult the REACH Legislation – Guidance and Processes for Implementation in the Ministry of Defence for detailed information.
The UK MOD is committed to complying with the REACH Regulation, but where it is necessary in the interests of defence, the Secretary of State (SofS) may exempt the MOD or anyone involved in defence-related business from the requirements of specific articles of the REACH regulations.
These exemptions will be conferred by written certificates, the content of which will conform to UK legislative requirements.
The UK MOD SofS’s Policy Statement on Safety, Health and Environmental Protection stipulates that where there are exemptions, disapplications or derogations from legislation, the MOD will introduce Departmental arrangements that produce outcomes which are, so far as is reasonably practicable, at least as good as those required by legislation.
In accordance with this policy, the MOD will develop and implement a management system to mirror the principals and obligations of REACH. This system is administered on behalf of the MOD by a DE&S policy team. Guidance on the a mirror process for Chemical Assessment and Reporting in the MOD has been published and is directed at applicants for UK MOD Exemptions. The Applications for exemption will be scrutinised by a senior board within DE&S that will make recommendations to the SofS for the granting of an exemption certificate on a case-by-case basis. Compliance with the MOD Exemption and Chemical Assessment Processes will be assured by either DE&S or through an agreed third party.
Certificates will be time-limited, depending on the substance and/or use, and reviewed regularly. The UK MOD REACH management annual report will be provided to the UK REACH Competent Authority. The exemption certificates will be linked to the appropriate safety and environmental information containing the same level of detail that would be covered under the normal REACH arrangements.
Where an exemption has been granted by the SofS, the use of any substance, preparation or article will remain subject to normal legislative controls (Classification, Labelling and Packaging, Dangerous Goods etc) . DE&S will manage registration of all substances, preparations and articles with defence-sensitive uses within the MOD (including Defence Industry Partners) and all those imported by the MOD from outside of the EU. DE&S will also act as the main focal point for all MOD-related REACH issues.
Identifying REACH Registration or Exemption Obligations
As the MOD is considered one legal entity under REACH, all quantities of manufactured or imported chemical substances must be cumulatively reported and used when the MOD is identifying its REACH obligations. Therefore the MOD must obtain information from all PTs in order to keep accurate records of internal manufacturing and importing activities. This will help to ensure that any substance meeting the 1 tonne per year threshold across the MOD as a whole is not be missed.
UK MOD Project Teams are required to report information pertaining to REACH or exemptions from REACH for defence where:
- They MANUFACTURE any substance(s) in quantities greater than or equal to 5 kg per year;
- They IMPORT any substance(s) in quantities greater than or equal to 5 kg per year;
- They IMPORT an article from outside the EU, where chemical substance(s) are contained in the article, and imported in quantities greater than or equal to 5 kg per year, and meet the requirements for registering substances within articles.The reporting of manufacture and importing activities are carried out on an annual basis. Where any of the above situations apply, the MOD guidance detail the internal processes required to achieve the REACH requirements.
It is essential that Project Teams seek assurance of REACH compliance from their suppliers to ensure continued supply of products.
Scope of Exemption Authority
The MOD managed exemption will be extended to:
- Defence Industry Partners that supply the MOD with items that come under the remit of REACH and are obtained in the interests of defence;
- UK based Defence Industry Partners that supply the EU defence community with items that come under the remit of REACH and are supplied in the interests of defence;
- Visiting forces in the UK;
- Permanent British bases overseas.
Note. MOD Exemptions are based on the applicability of substances to REACH, eg if the substance requires Registration, Notification, Authorisation or has a Restriction AND it is in the interest of Defence (or National Security) not to do so, only then may an exemption be authorised by the Secretary of State for Defence. Where a Restriction (Annex XVII) applies, MOD intent is to comply with the Restriction.
The MOD, with assistance from Department for Environment, Food and Rural Affairs (DEFRA) and the HSE, will ensure that the attention of the relevant authorities is drawn to REACH obligations and compliance requirements. In principle United States (US) military bases in the UK would be covered by the same exemptions and MOD administrative arrangements as UK facilities.
Co-operation with HSE and DEFRA (freedom of limited information)
The exemption process will be subject to scrutiny from the HSE as the REACH CA in the UK. The process will only apply in specific cases for certain substances where it is necessary in the interests of defence. In all other circumstances the requirements of the REACH Regulation will apply. The scheme cannot be used to ‘hide’ substances that should be covered under other legislative controls, e.g. the Chemical Weapons Convention. The exemption will not cover defence exports that include substances that the UK military would not use, items that are also commercially available in the UK, and the exemption may not be used by defence industry companies to avoid their own compliance obligations.
The MOD will share sanitised information with the Competent Authority about exemptions, such as the numbers of certificates issued.
The MOD will be able to share the UK model of the defence exemption process with all interested parties, including mandatory reports to the Commission on the enforcement arrangements and later on implementation and operation of REACH in the UK.
The MOD will establish appropriate links with Competent Authorities to provide copies of exemption certificates and lists of generic substances. The Competent Authorities will in turn act as a focal point for the other UK enforcement bodies, as well as ECHA and the European Commission, in respect of the defence exemption. The MOD will utilise the established links with the Competent Authorities to ensure awareness of the impact on MOD and defence industries on changes to REACH eg Annexes XIV (Authorisation) and XVII (Restrictions).
The SofS’s power to grant an exemption is not time limited. However, the certificates of exemption granted by the SofS will take effect immediately upon signing. The certificates will be valid for a pre-determined period of time; a review will be undertaken when the certificate expires. The SofS may vary or revoke the certificates of exemption at any time by a certificate in writing.
The defence exemption will be served through an administrative system of certification, issued by the SofS, for generic categories of substance (rather than listing specific substance names, for confidentiality). The enforcement Statutory Instrument provides the means for legal exemption, linking it to the SofS’s certificate.
An exemption certificate is the internal MOD equivalent of a REACH Registration number. This certificate will have a minimum expiry date of 2 years, and will be reviewed annually and at the end of each validity period.
The MOD has identified the Articles within the REACH Regulation that the defence exemption will cover. Substances that would be subject to Authorisation or Restriction are included in that list. However the MOD requires compliance with legislation where possible and only where there is a conflict with an interest of national security, will the exemption be considered.
A substance will be considered eligible for an exemption certificate if the substance and/or its use are classified as “Official Sensitive” or above, as described in JSP440 Chapter 1, Part 5. However, a substance that is contained in an “Official Sensitive” process or system may not be enough to warrant exemption, so a short business case detailing the justification for exemption must also be included. Substances subject to Authorisation under Title VII of REACH and substances whose uses are restricted under REACH, such as asbestos, under Title VIII of REACH, may also be eligible for exemption.
Applying for an exemption
For substances supplied by Defence Industry Partners based in the UK, an application for exemption should be completed by the Defence Industry Partners and submitted through the relevant Project Team. Project Teams are expected to screen all applications prepared by industry, prior to submission to the REACH management team.Project Teams must submit their own exemption applications for substances that they manufacture or import. Any new applications for a defence exemption or for amendments to existing exemptions should be made using the process described below.
Information to be included in the exemption application:
• The identity of the applicant(s) (PTs and Defence Industry Partners where applicable);
• The identity of the substance (a pseudonym is acceptable where it is necessary to protect the security classification, provided it can be linked to the original identity through an accompanying reference document of higher security classification);
• The UK Protective Marking Classification (JSP440);
• The annual tonnage of manufacture or import of the substance;
• A business case for exemption, including the articles of the REACH Regulations from which exemption is sought.
Should the exemption application for the chemical substance be unsuccessful, it will then be necessary to move forward with compliance under REACH. If the chemical is a “new substance” under REACH, the chemical may not be manufactured or imported until compliance is completed.
All exemption application forms should be completed and submitted to the MOD REACH helpdesk (DESTECH-QSEP-REACH@MOD.uk).
The Exemption Certificate
The certificates will show:
- The identity of the individual(s) or organisation(s) benefiting from the exemption;
- The substance, preparation or article to which the exemption applied;
- Those Articles of REACH from which (a) was exempt in respect of (b).
The exemption certificate will be supported by technical data explaining in more detail the uses for and descriptions of the substance, preparation or article. The exemption certificate number will be used as a tracker device to ensure the validity of an exemption throughout the supply chain (limited to the area responsibility of the UK Competent Authority).
Chemicals that are subject to authorisation and restrictions will also require a certificate if an exemption is applied for and granted.
MOD will keep certificates internal to MOD, but will make some statistical information publicly available (eg number of certificates issued).
The Competent Authority will, in the normal course of duty, monitor implementation of the REACH Regulation, and will expect to find demonstrable evidence of compliance with all appropriate legislation, including the conditions detailed in the SofS’s certificates of exemption. SofS’s exemption does not impede the Competent Authorities powers to enforce the Regulation and/or action for non compliance with the Regulation. All recipients of exemption certificates must provide a copy for inspection by the Competent Authority on request, and ensure that security classification is not compromised by ensuring only appropriate information is disclosed during any active enforcement action.
For assistance with external enforcement action, please contact DESTECH-QSEP-REACH@MOD.uk.
Defence Industry Partners should refer the Competent Authority, or relevant body, to the MOD/PT if they are subject to enforcement action and manufacture or import exempt substances. Exemption certificates are “restricted” and will not generally be available to Defence Industry Partners.
Where applicable, the MOD will act to initiate “mini-SIEFs” (Substance Information Exchange Forums) within the defence industry and are committed to upholding the principles of REACH by obtaining substance data with minimal animal testing. The sharing of animal test data with external stakeholders (as required by REACH) will be considered on a case-by-case basis, and complied with where national security is not an issue.
Description of National Safeguard Measures
The MOD will introduce internal standards at least as good as those in the regulations where reasonably practicable. The Chemical Assessment and Reporting in the MOD contains a tailored process for MOD Exemptions.
- Applications for exemption will be handled by Defence Equipment and Support (DE&S).
- Exemptions will be reviewed after a pre-determined period of time.
- An annual report of exemptions in place will be submitted to the UK Competent Authority (CA) for REACH and SofS.
National Bodies Involved
The Ministry of Defence (MOD)
The Health and Safety Executive (HSE)
The Department for Environment, Food and Rural Affairs (DEFRA)
Where to File an Application
Conditions/Procedures for Acknowledgment/Recognition of Foreign Defence Exemptions
The REACH Enforcement Regulations 2008 foresees its Article 7 (1) obligation by an automatic recognition of foreign defence exemption decisions.
Number of Exemptions Granted
(0044) 030 679 82521