National Regulation of the Transport of Dangerous

The following advice and attachments relate to an update from the National Transport Commission in regard to the national regulation of dangerous goods by Road and Rail, which may be of interest to some of our members.

We are proposing to submit amendments to the Model Primary Law, and the Model Subordinate Law, on the Transport of Dangerous Goods by Road & Rail, and to ADG7, to the meeting of Transport Ministers that will occur in mid-November 2013.

As part of that process we will formally seek public comment on the amendments later this month. Most of the substantive changes that we have made to the amendments are set out in the 2 documents above, so although the public comment period will be 4 weeks, this notice gives you a head start on that process. What is missing from this notice are the UN16 and UN17 changes. We circulated those in late 2011, and we have only made minor changes to what was circulated then. This notice also does not include the revised explanatory documents.

Although the amendments are set out in 3 separate documents at present, it is our intention to combine them into a single document, with the 3 documents each becoming a separate schedule in the combined document.

When we put out the revised version of ADG7 after November 2013, we intend to call it "ADG7 as revised to xx November 2013" (assuming the Ministers approve the changes). We think this will be the best way to make it crystal clear that the changes we are making are not going to turn ADG7 into a new edition - they will simply be changes to the existing edition.

I should also mention that a Maintenance Group meeting was held in May 2013 at which it was decided that the amendments should take effect from 1 July 2014, but with the usual 12 month period in which compliance with the changes will not be mandatory. The 1 July 2014 start will hopefully enable the ADG7-supporting amendments needed to the equivalent of the Model Subordinate Law in each State and Territory to be made.

At present we intend to create a package of amendments to ADG7 and the model dangerous goods transport laws every 2 years. However, as we still need to do some catching up from the past, next year it is our intention to put up to Ministers in November 2014 amendments to ADG7 that will capture the UN18 changes.

The main reason that we have not released the final version of the UN16/UN17 changes is that we have not yet made a final decision on the final form of the Limited Quantities provisions of ADG7 (Chapter 3.4). The situation has become a bit more complicated in that we will need a unanimous vote of the Ministers in November to get any change through. Although we are intending to put all of the amendments up to Ministers as 1 package, we still need to be wary of single issues potentially stopping the package.

I note that both attached documents are in track changes to show what changes have been made to them since the 1st drafts. (If you find that too distracting, I note that clicking on the "Review" tab and then changing "Final: Show Markup" to "Final" will hide the changes).

With respect to the 2nd draft of the MSL changes, you will see that relatively few changes have been made. The most significant changes involve the omission of 2 items: the proposed change to the Model Primary Law in relation to the meaning of consignor (previously clause 4), and the proposed change to the Model Subordinate Law concerning the aggregate quantity definition (previously clause 9). In both cases we have decided to defer further consideration of these items pending further consultation, as in both cases it was pretty clear from your feedback that the items were highly problematic in their existing form. In this case, unless something fairly dramatic happens, these items will only be considered for inclusion in the 2014 package.

The most significant change in the 2nd draft is the inclusion of provisions that deal with the referral of a Competent Authority determination to the Competent Authorities Panel. The changes are primarily designed to bring the provisions concerning determinations in line with the provisions concerning approvals and exemptions. The MSL arguably already permitted that to happen implicitly, but it will now be quite explicit. The changes also clarify that a Competent Authority can now refer a matter to CAP either before, or after, it has made a decision on the matter. This was an area on which there had previously been some doubt.

I also note that we have not made any changes to provisions dealing with administrative determinations, ullage requirements, towing of vehicles and activation of emergency plans, even though we received some negative feedback on the changes we were proposing. In some of these cases it is clear that we need to explain the effect of the changes better, and in some cases we have just had to bite the bullet in the belief that the overall effect of the change will be beneficial.

In the case of this document you will see that there are lots of changes, particularly by way of additional changes. I note that most of the additional material relates to bringing ADG7 into line with CAP exemptions that have been granted and that CAP feels should apply across the board. These include:

With respect to the last of these, clause 43, the clause gives effect to 2 separate CAP exemptions. It is worth highlighting 1 of these, as it was only agreed at the last CAP meeting in May 2013. Proposed new ADG clause 13.1.3.2.2.4 to be inserted by clause 43(2) will mean that the 8 metre minimum separation parking/standing distance that must be kept between road vehicles transporting dangerous goods and vehicles transporting placard loads will not apply in areas to which the public does not have access (such as controlled sites).

There is 1 significant omission from this document. The proposed change concerning the transport of nominally empty IBCs (previously clause 21) has been omitted as, again, it is clear from the feedback that we received that it is highly problematic. Again the omission is actually a deferral pending further consultation, but that consultation is only likely to occur in the context of the 2014 package of amendments.

A couple of the changes in the 2nd draft are intended to make ADG7 a bit more GHS compatible - the GHS definition of "article" has been adopted, and an attempt has been made to ensure that the GHS references will work technically given the variety of forms GHS can take. There was also a technical problem with the way the labelling provisions of ADG7 were structured, and this has now been changed, and a specific exception concerning GHS has been added to them. All of these changes give effect to recommendations made by the Maintenance Group.

I note that we are still seeking further advice from the Maintenance Group in relation to the proposed changes concerning ventilation. We received several submissions on these changes suggesting that they might cause practical problems, so it is possible that they may also have to be deferred.

With respect to clause 42 (fire extinguishers), I note that although we appear to be making a significant change from what was in the 1st draft, it is a change of form rather than of substance. The new table should replicate the position that was to have existed as a result of the 1st draft, but hopefully in a clearer way.

With respect to fire extinguishers, in the 1st draft we sought feedback on the issue of whether fire extinguishers should all be allowed to be kept in or near the cabin of vehicles to assist with attempts to reduce thefts. Although we did not receive extensive feedback in response to this request, I think it is fair to say that there was not much support for the proposal, and a fair bit of opposition to it, particularly from regulators.

I have already mentioned that we have not been able to give effect to all of the comments that we received. However, we are extremely grateful to have received the comments, and they have led to a number of improvements in the drafts. We thank everyone who provided comments to us.

In common with the previous documents that we have attached to previous editions of this Newsletter, I note that not everything in these drafts represents settled policy as again you are looking at the drafts at the same time as the regulators are looking at them.

As I mentioned, we are proposing to put the substance of these documents out for formal public consultation later this month. If you would like to suggest changes to either of the drafts that we can take into account in determining exactly what we put out for public consultation, it will be necessary to make those suggestions to us within the next fortnight (that is, by Tuesday, 23 July 2013).

Otherwise we will consider any comments that you might like to make after that in the same way that we will consider any comments that we receive as part of the formal public consultation.

As we may still make changes to the drafts in the light of the feedback we receive in the next 2 weeks, we will send out another Newsletter by the end month in which we highlight any changes that are made to the attached documents.

Executive Assistant
Australian Federation of International Forwarders Ltd (AFIF)
Suite 403, Level 3
152 Bunnerong Road
Eastgardens NSW 2036
Tel: +61 2 9314 3055
Fax: +61 2 9314 3116