Date: Mar 17, 2009
On February 24, 2009, the European trade press carried a report by a REACH Only Representative (OR) that a shipment from one of its clients had been blocked from entering Belgium while officials demanded evidence that the substances in the shipment had been pre-registered under REACH. The OR reported that it was able to prepare a letter of assurance with evidence of compliance so that the shipment could be released. Our contacts with the Belgian Inspection Authorities could not confirm this report. According to the Inspection Authorities:
· To date, no goods were held-up in Belgium because of REACH enforcement inspection activities.
· Indeed, in Belgium, today the inspection authorities are not authorized to carry out REACH enforcement actions because the existing Belgian "Products norms" law still needs to be amended.
· The Belgian inspection authorities plan actions from May 2009 onwards, but mainly to advise industry with regards to REACH compliance.
Contacts with the Dutch enforcement authorities (VROM) similarly confirm that no REACH inspections of goods at the point of import has occurred in the Netherlands.
Nonetheless, the question of enforcement of REACH for imported goods is now actively being discussed by the Member States. Pursuant to Article 76(1)(f) of REACH, the European Chemicals Agency (ECHA) has established a Forum for Exchange of Information on Enforcement to coordinate the enforcement activities of Member State authorities. Compliance for imported goods is a significant issue as European producers are particularly concerned about ensuring a level playing field. There thus is no question that the authorities will establish procedures to ensure compliance for imports. At this stage, inspections are likely to focus on confirming valid pre-registration of substances in shipments as well as the provision of a REACH-compliant Safety Data Sheet (SDS).
REACH provides Member States with the authority to inspect importers and their records. Under Article 36 of REACH,
• "Each manufacturer, importer, downstream user and distributor shall assemble and keep available all the information he requires to carry out his duties under this Regulation for a period of at least 10 years after he last manufactured, imported, supplied or used the substance or preparation."
• "That manufacturer, importer, downstream user or distributor shall submit this information or make it available without delay upon request to any competent authority of the Member State in which he is established or to the Agency."
However, there are many practical questions associated with documenting compliance at the point of entry of goods into the Customs territory of the European Union (EU), particularly with respect to valid pre-registrations. There are questions relating to whether the goods are articles or not, whether the substances are exempt or not from registration, and whether the pre-registration obligation was taken over by the importer, the only representative of the exporter, or the only representative of the exporter's supplier. It is difficult to foresee a simple system that would allow customs officials to rapidly check goods at the point of entry. It is important that shipments not be delayed while the importer, or the only representative, assembles the necessary records and these are reviewed by a REACH-knowledgeable official.
The U.S. has in place a simple and effective system for ensuring compliance of imported goods. Under Section 13 of the Toxic Substances Control Act (TSCA), the importer must certify at the point of entry that the goods either are not subject to TSCA, or subject to TSCA and in compliance. The certification mechanism serves to ensure that importers carefully review the legal status of the goods they order from overseas suppliers. A similar certification mechanism should be implemented in the EU. Requiring importers to certify will ensure that importers take their responsibilities seriously even if the registration obligation is being carried by the only representative of the foreign supplier. Importer responsibility is fully consistent with Article 5 of REACH and makes a great deal of sense.