Legal Metrology Bill Portfolio Committee on Trade and Industry Dr Tshenge Demana – Chief Director: Technical Infrastructure, Industrial Policy Development Division 18 September 2013

Background

Technical Infrastructure Globalisation is increasing the demands on countries to demonstrate that they have the technical infrastructure to guarantee that products originating in their territories are safe and ‘fit for purpose’. Used in Industrial Policy Action Plan (IPAP) to “lock-out” non- compliant products and to “lock-in” South African products to export markets Technical Infrastructure comprises of standards, quality assurance, metrology (scientific and legal) and accreditation. Technical infrastructure is required to meet the standards and measurement challenges required by trade, health, safety, and environmental considerations (including climate change), as well as considerations of interoperability (necessary for globally dispersed manufacturing platforms). Institutions need to be maintained and improved in order to remain relevant as the platform for global economic efficiency and market access of products.

Technical Infrastructure: REGULATORY SUPPORT JUDICIAL

What is Legal Metrology? Legal Metrology regulates measurements that directly affect consumers and ensures the quality and credibility of such measurements that are used directly in regulation and in areas of trade. It deals with risks of misuse of the instruments, of tampering and of accidental influences on the measuring instrument as well as with the traceability of such measurements, thus providing an appropriate level of credibility of measurement results in the regulatory domain.

What is Legal Metrology? continues Legal Metrology entails Ensuring the appropriate quality and credibility of regulatory measurement results in the health, safety, environmental and trade domains through –traceability of measurement –development of technical regulations The monitoring/enforcing of measurements made in the indicated domains. Managing the risks of misuse, tampering with and other influences on measuring instruments Consumer protection and level playing fields for industry

International Legal Metrology The International Organisation of Legal Metrology (OIML) was established in 1955 with the signing of the OIML Convention by 24 countries. Currently there are 59 member states and some 54 corresponding members The OIML was established to –disseminate information on legal metrology principles –the development and promotion of international best practice, –elimination of barriers to trade caused by legal metrology and –to develop and promote Mutual Recognition Acceptance Agreements in legal metrology

History of Trade Metrology in South Africa Dates back to 1902 Since 1973 under the auspices of the Department of Trade and Industry Function transferred in 1991 to the South African Bureau of Standards (SABS) In 2008 it became the responsibility of the National Regulator for Compulsory Specifications (NRCS) and has a dedicated Division within the NRCS responsible for Trade/ Legal Metrology

Current landscape for Trade Metrology South Africa acceded to OIML in 1998 Trade Metrology Act (Act 77 of 1973) does not provide for regulation of legal metrology measurements Use of South African National Standards as basis for regulations Limited funding resulting in under inspection of industry and non compliance to regulations Penalty in Act is outdated Lack of training institutions for inspectors

New landscape for Legal Metrology Legal Metrology Act will replace Trade Metrology Act, remain the responsibility of the NRCS Extended scope into Legal Metrology through regulations coupled by impact assessments Improved enforcement through increased market surveillance – coupled to a new fee structure Metrology Advisory Committee will be replaced by a Advisory Forum, appointed by the Minister to provide advise to NRCS Increased penalties Continuation of use of South African National Standards as basis for regulations Provision is made for regulating verification and repair activities to counter conflict of interest Exploring synergies with rest of NRCS, i.e training and sharing inspectors

DRIVER FOR CHANGE IN METROLOGY DOMAIN Expanding scope of legal metrology –Changes in agriculture, industry, transportation and technology –Movement of direct sales of products to multiplicity of transactions through production, wholesaling, processing and retail trade

DRIVER FOR CHANGE IN METROLOGY DOMAIN Expanding scope of legal metrology –Quality measurements were introduced e.g. grain –Establishment of water, gas, electricity telephone utilities expanded the scope of trade measurements from the normal services where measurement was the basis for the fees charged –Regulatory measurements Environment, health and safety (water pollution, blood pressure)

Regulatory Challenge The biggest difficulty facing economies is the fact that regulatory measurements have never been properly incorporated into measurement systems –Reason: trade metrology systems are not adapted to regulatory metrology –In trade metrology the government acts as referee –In regulatory metrology the government is one of the parties –This situation is normally not covered by Weights and Measures legislation –However national systems have relied on W&M legislation to define the legal basis for measurements

Regulatory Challenge continues Another challenge is the very basic and ancient requirement that measurements shall be derived from national standards i.e. traceability –But to what extent do we have a traceability definition in our legislative system that meet requirements of modern society? –In many cases weights and measurement systems do have traceability requirements but it does not cover regulatory measurements –In fact we do not have a legislative basis which is appropriate for this expanded scope of legal metrology

Process thus far 2001 Nedlac Standards, Quality Assurance, Accreditation and Metrology (SQAM) review made recommendations with regards to the amendment/drafting of 5 Acts. Legal Metrology is the last one to be amended. A policy proposal on the move from Trade to Legal Metrology was developed by the dti. the dti consulted widely during the last quarter of 2010 on the draft policy proposal on Legal Metrology. Workshops were held in Pretoria, Durban and Cape Town. Consultations with the Nedlac Standards, Quality Assurance, Accreditation and Metrology (SQAM) Task team, after which it was signed – off by the Nedlac Management Committee on 10 June 2011.

Process thus far continues This draft Bill was prepared by the State Law Advisers in Cape Town with input from the dti, Technical Infrastructure as well as from the Legal Metrology Division at the National Regulator for Compulsory Specifications (NRCS) using the OIML model law as well as the policy paper as basis. Bill was published for general comment in Government Gazette on 7 December Comment period was extended till 1 February 2013 on request of stakeholders. Comments review committee considered comments on 8 February The Bill was also discussed by the Nedlac Legal Metrology Bill Task Team and signed-off by Nedlac on 25 July 2013.

Legal Metrology Bill

Current legislation 40 years old. New Bill is seen as framework legislation to ensure longevity. Details will be contained in regulations, which will be preceded by Regulatory Impact Assessments.

Objectives of the Bill To expand the scope of trade metrology to legal metrology To strengthen the enforcement of legal metrology To develop the appropriate legislative framework To protect consumers against short measure To establish a level playing field for industry To support local industry competitiveness The Bill also addresses governance issues by changing the corporate structure from an entity with a Board to that of a trading entity

Application and Administration The Act will be administered by the National Regulator for Compulsory Specifications and Authority lies with the CEO reporting to Minister. The NRCS also administers the National Regulator for Compulsory Specification Act, Act 5 of 2008 and the National Building Regulations and Building Standards Act, Act 103 of The schedule to the Legal Metrology Bill addresses changes in governance structure of NRCS in terms of NRCS Act.

Application and Administration continues Applies to measurable products and services, measurements in trade, health, safety and the environment and measuring instruments used for a prescribed purpose Following can now be included if prescribed by regulation: -Medical measurements e.g. temperature, blood pressure, syringes - Safety measurements e.g. speed, alcohol - Environmental measurements e.g. smoke emissions, water pollution

22 Registration Registration of importers, manufacturers or sellers may be prescribed by regulation Know market size and coverage Control purposes Collection of fees Minister must appoint an advisory forum to advise on legal metrology

23 Legal Metrology Technical Regulations Much the same requirements as in the NRCS Act for compulsory specifications Basically Minister must declare a SANS a technical regulation in respect of any measuring instrument or any product or service which may affect fair trade, public health and safety or the environment. Only if a SANS is not available may he make a regulation in Government Gazette. Formal procedure for introducing new technical regulation should be followed. New regulations will be preceded by a regulatory risk and impact assessment.

Repair and verification The Bill makes provision for the Minister to prescribe requirements, through a regulation, to restrict verification officers from repairing prescribed measuring instruments. This will be informed by the risk associated by area of regulation.

25 Non-conforming Products, Services & Instruments May be confiscated, destroyed or dealt with as deemed fit Costs may be recovered from person responsible for the instrument or products NRCS to inform Minister within 21 days of actions taken

26 Compliance Schemes And Use Of Distinctive Marks Formal provision now made for schemes and marks The CEO must authorise and maintain a register of verification marks, repair marks and protective seals

27 Penalties Fine may be imposed but no monetary value stated or imprisonment for a period not exceeding 10 years or both.

Financial Implications The budget allocation is part of the allocation the dti has made for the NRCS in terms of the mandate of the current Trade Metrology Act(Act 77 of 1973). The Bill also provides for fees similar to the NRCS Act. These will be paid by industry and will be determined through an annual consultation process. Fees will be determined per legal metrology regulation based on the cost that the regulator will need to incur to effectively and efficiently regulate.

Delegation’s details Mr Asogan Moodley – CEO: NRCS Mr Stuart Carstens – General Manager: Legal Metrology, NRCS Ms Anna-Marie Lötter - Director: Technical Infrastructure Mr Amos Mbele – Deputy Director: Technical Infrastructure Ms Jacqueline Raphala – Assistant Director: Technical Infrastructure