Last reviewed 16 January 2020
This feature article outlines and discusses some of the general record-keeping requirements found in the REACH, CLP and transport of dangerous goods legislation.
Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH).
Article 8 of REACH states that an Only Representative (OR) “without prejudice to Article 36, shall keep available and up-to-date information on quantities imported and customers sold to, as well as information on the supply of the latest update of the safety data sheet referred to in Article 31.”
Under Article 14 (7), “Any registrant required to conduct a chemical safety assessment shall keep his chemical safety report available and up to date”. Similarly, under Article 37 (7), “Downstream users shall, if and when applicable, keep any chemical safety report they have prepared up to date and available”.
Under Article 36 (1), “Each manufacturer, importer, downstream user (DU) 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 ten years after he last manufactured, imported, supplied or used the substance or mixture.”
However, it should be noted here that in paragraph 2, it says: “In the event of a registrant, downstream user or distributor ceasing activity, or transferring part or all of his operations to a third party, the party responsible for liquidating the registrant, downstream user or distributor's undertaking or assuming responsibility for the placing on the market of the substance or mixture concerned shall be bound by the obligation in paragraph 1 in place of the registrant, downstream user or distributor.”
Where the manufacturer, importer, DU or distributor has subcontracted some of these duties, eg in respect of classification and Safety Data Sheets (SDSs) compilation, then they need to consider ensuring that similar notice has been taken by that contractor, or that the contract ensures that the data obtained and used is supplied to them at the end of the job, and duly archived.
For small businesses, the obligation for data retention, even in the case of the proprietor’s sudden death, are quite significant.
The Chemicals (Hazard Information and Packaging for Supply) Regulations 2009 (SI 2009 No. 716) (CHIP4) have been revoked. Although for the purposes of data retention regulation 12 applied to record keeping and it required the following.
“12.—(1) The person who is responsible for first supplying a dangerous preparation shall maintain a record of the information—
used for the purposes of classifying that dangerous preparation in accordance with regulation 4
used for the purposes of labelling that dangerous preparation in accordance with regulation 7, and
relating to any child resistant fastening or any tactile warning which forms part of the packaging in which the dangerous preparation in question is contained in accordance with regulation 11,
for at least three years after the date on which that dangerous preparation was supplied by that person for the last time.”
Under paragraph (2), “When requested by the enforcing authority to do so, a person referred to in paragraph (1) shall make the record, or a copy of the record, maintained by the person in accordance with that paragraph, available to the enforcing authority within 28 days of the date of the request.”
In relation to CRCs, paragraph (3) requires: “When requested to do so by the enforcing authority, a person who supplies a dangerous preparation shall provide to the enforcing authority a copy of any certificate issued by a qualified test house”.
This data may of course have been prepared or obtained many years ago and by former employees.
Given that from 1 June 2017, all mixtures placed on the market have to be labelled in accordance with the Classification, Labelling and Packaging (CLP) Regulation, records under CHIP must be kept until June 2020.
Regulation (EC) No. 1272/2008 on classification, labelling and packaging of substances and mixtures (CLP) has a significantly longer period for which data has to be kept, after the final supply of the chemical by that supplier. There is also a requirement for it to be kept together with the required REACH data. This found is in CLP, Article 49, as follows;
“Obligation to maintain information and requests for information
The supplier shall assemble and keep available all the information used by that supplier for the purposes of classification and labelling under this Regulation for a period of at least 10 years after the substance or the mixture was last supplied by that supplier.
The supplier shall keep this information together with the information required in Article 36 of Regulation (EC) No. 1907/2006.”
As in the case of REACH, Article 49(2) then goes on to require that: “In the event of a supplier ceasing activity, or transferring part or all of his operations to a third party, the party responsible for liquidating the supplier's undertaking or assuming responsibility for the placing on the market of the substance or mixture concerned shall be bound by the obligation in paragraph 1 in place of the supplier”.
However, it is interesting to note that there is an ongoing record-keeping requirement placed on ECHA as the Article goes on to note that “where that information is available to the Agency as part of a registration pursuant to Regulation (EC) No. 1907/2006 or a notification pursuant to Article 40 of this Regulation, the Agency shall use that information and the authority shall address itself to the Agency”.
In ADR, excluding special issues related to radioactive materials, it is perhaps surprising to find that there is no requirement to retain the data on which the classification is made.
There is a requirement for records of the training received (including where applicable security training) to be kept, including record of verification of prior training for employees new to the company, or transferring to duties involving the transport of dangerous goods. ADR states in 1.3.3 that the records “shall be kept by the employer for a period of time established by the competent authority”. In the UK, the Competent Authority (CA) has not formally laid down this period in any Statutory Instrument or guidance, etc. Informally, they have indicated that records are expected to be kept for as long as that employee is employed and involved with the carriage of dangerous goods.
For Excepted Quantity packages (EQ), there is an open-ended requirement to retain documentary evidence of the capability of the package used to meet the prescribed tests, although this may be discarded when the package design is no longer used. Surprisingly, there is no requirement in ADR to retain any copies of any transport documentation that accompanied the EQ goods on their journey.
For Limited Quantity packages (LQ), there is an apparently open-ended requirement in relation to retention of the information required to be provided in advance to carriers; in that 3.4.12 requires that it shall be “in a traceable form”. However, in practice it is likely that once three months have lapsed, it may be discarded; unless required by the consignors for other business purposes.
For “fully regulated” packages, ADR requires in 18.104.22.168 that “the consignor and the carrier shall retain a copy of the dangerous goods transport document and additional information and documentation as specified in ADR, for a minimum period of three months”.
this three-month period used to be a unique UK feature, so it is still also found in the Carriage of Dangerous Goods and Transportable Pressure Equipment Regulations 2009 (SI 2009 No. 1345) (CDG2009), as amended.
Just like ADR, the IMDG Code in 22.214.171.124 requires that records of training “shall be kept by the employer for a period of time established by the competent authority”. The UK Maritime and Coastguard Agency (MCA) does not specify any time in the still-applicable Merchant Shipping (Dangerous Goods and Marine Pollutants) Regulations 1997 or any Merchant Shipping Notice (MSN), Marine Guidance Note (MGN) or Marine Information Notice (MIN) that supports the regulation.
The IMDG code in general requires a transport document for everything, and may also require a container/vehicle packing certificate. Rather hidden away after the example multimodal transport document, the Code in 126.96.36.199, like ADR, requires that “the consignor and the carrier shall retain a copy of the dangerous goods transport document, and additional information and documentation as specified in this code, for a minimum period of three months”.
In IATA 188.8.131.52, the three months minimum retention period for transport documents is also made a requirement.
Due to the retraining provisions in IATA, in 184.108.40.206 it states that “training records must be retained by the employer for a minimum period of thirty-six months from the most recent training completion month”, even if the employee moves away from involvement with dangerous goods in the meantime.
It is important to refer to and abide by the record keeping requirements of each relevant piece of legislation. Take care to note the differing lengths of retention times, and the varying levels of detailed data required to be retained. Please refer to the applicable requirements in detail, and for any special issues (eg for radioactives in transit). And if in any doubt seek assistance.