Legal Basis

The REACH Enforcement Regulations 2008 (2008 No. 2852) implement the REACH regulation on a national basis. Part three of the Regulations deals with exemptions and consitute the legal basis for granting exemptions in the interest of defence. For the document please see link below:

The REACH Enforcement Regulations 2008

Description of National Procedure

The following information is only an abstract. For comprehensive information, please consult the The REACH Legislation - Guidance and Processes for Implementation in the Ministry of Defence.

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.

SofS’s Policy Statement on Safety, Health and Environmental Protection stipulates that where the MoD has been granted specific exemptions, disapplications or derogations from legislation, international treaties or protocols, the MoD will undertake to introduce internal standards and management arrangements that are, so far as reasonably practicable, at least as good as those required by the legislation.

In accordance with this policy, the MoD will use a management system to mirror the principal functions of the REACH regime. This system will be administered on behalf of the MoD by DE&S. Guidance on the a mirror process for  Chemical_Assessment_and_Reporting_in_the_MoD_V1_01.pdf  has been published and is directed at MOD Exemption Holders. The Applications for an exemption will be scrutinised by a senior board within DE&S that will make recommendations to the SofS for the granting of a certificate on a case-by-case basis. Compliance with the MOD Exemption and Chemical Assessment Processes will be assusured by either DE&S or through an agreed third party.  Annual reports will be provided to HSE and Defra.

Certificates will be time-limited, depending on the substance and/or use, and reviewed regularly. An annual report will be provided to the SofS and the UK REACH CA (the Health and Safety Executive, HSE). 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. 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 determine the appropriate tonnage threshold for the MoD for registration and help to ensure no substance meeting the 1 tonne per year threshold, across the MoD as a whole, will be missed, see Section 3.
PTs should use the following prompts when deciding if they need to report information pertaining to REACH or exemptions from REACH for defence:

a) If you MANUFACTURE any substance(s) in quantities greater than or equal to 5 kg per year, please report to DE&S;
b) If you IMPORT any substance(s) in quantities greater than or equal to 5 kg per year, please report to DE&S;
c) If you IMPORT an article from outside the EU, please report any chemical substances contained in this article, that are imported in quantities greater than or equal to 5 kg per year, and that meet the requirements for registering substances within articles detailed in Section 8 of this document.

This reporting of manufacture and importing activities must be conducted on an annual basis, using the standard format spreadsheet to be circulated to PTs prior to the deadline. The deadline for all PTs to submit their reports is 31st October of every year. Please contact DESSESEP-REACH@mod.uk for further information.
Where any of the above situations apply, this document details the internal processes required to achieve the REACH requirements.

It is essential that PTs seek assurance from their suppliers to ensure continued supply of products after REACH pre-registration and full registration.

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 HSE about exemptions, such as the numbers of certificates issued.

The MoD will be able to share the model of the defence exemption 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 HSE to provide copies of exemption certificates and lists of generic substances. The CA 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.

Timing

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.

Exemption Criteria

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 an expiry date of 2 years, and will be reviewed at the end of each validity period. The completed chemical assessment for the MoD internal equivalent of REACH registration must be submitted to the management board by the REACH phase-in deadline equivalent to the MoD tonnage band.

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 would be included in that list.

A substance will be considered eligible for an exemption certificate if the substance and/or its use are classified as “restricted” or above, as described in JSP440 Chapter 1, Part 5. However, a substance that is contained in a “restricted” process or system may not be enough to warrant exemption, so a short business case detailing the reason for the need 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, an application for exemption should be completed by Defence Industry Partners and submitted to PTs. PTs will screen all applications prepared by industry prior to submission to the REACH team in DE&S.

In addition, PTs must submit their own exemption applications for substances that they manufacture or import. PTs must also include accurate information on the tonnage of each substance manufactured or imported so a cumulative quantity for the MoD can be determined.

Applications for exemption certificates for existing chemicals should have been made by PTs (where the PT manufactures or imports), or Defence Industry Partners, in conjunction with PTs, prior to the end of the REACH pre-registration phase. 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.

The exemption application form and guidance notes are available from the MoD internet site, internally via the REACH (DE&S) intranet site or by contacting DESSESEP-REACH@mod.uk.

Should the exemption application for the chemical substance be unsuccessful, it will then be necessary to move forward with registration of the substance under REACH. If the chemical is a “new substance” under REACH, the chemical may not be manufactured or imported until full registration is complete. If the chemical is a “phase-in” substance, the MoD may opt to submit a late pre-registration and enter the phase-in period. This is only possible if the chemical substance has not been manufactured or imported by the MoD in a quantity greater than or equal to 1 tonne per year on or after June 2007. This late pre-registration allows manufacture or import of the substance to continue. If the chemical has been manufactured or imported by the MoD on or after June 2007, the MoD must cease all manufacture or import activities until a full registration has been completed.

All exemption application forms should be completed and submitted by PTs via the MoD REACH helpdesk (DESSESEP-REACH@mod.uk).

The Exemption Certificate

The certificates will show:
a. The identity of the individual(s) or organisation(s) benefiting from the exemption;
b. The substance, preparation or article to which the exemption applied;
c. Those Articles of REACH from which (a) was exempt in respect of (b).

The exemption certificate will be backed up with technical data in an annex, 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.

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/HSE, but will make some statistical information publicly available on an annual basis (e.g. number of certificates issued).

The HSE 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 HSE’s powers to enforce the Regulation and/or action for non compliance with the Regulation. All recipients of exemption certificates must provide a sanitised copy to the CA upon request, to ensure that security classification is not compromised. PTs should be careful to ensure only appropriate information is disclosed to the HSE during any active enforcement action on your PT.

For assistance with external enforcement action, please contact DESSESEP-REACH@mod.uk.

Defence Industry Partners should refer the HSE, 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.

If exemption is not granted, the process required for registration under REACH will apply.

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_V1_01.pdf 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

All UK MoD Exemption Application Forms should be completed and submitted by PTs via the MoD REACH helpdesk (DESSESEP-REACH@mod.uk).

Conditions/Procedures for Acknowledgment/Recognition of Foreign Defence Exemptions

The REACH Enforcement Regulations 2008 foresees in its Article 7 (1) b an automatic recognition of foreign defence exemption decisions.

Number of Exemptions Granted

So far, 9 exemption certificates covering 172 substances have been issued.

Contact Info

Link to national web site(s) (if any)

UK MOD REACH website
Page Last Updated: 2/10/2014
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