Posted: November 5, 2013
Second Reading Debate on the Legal Metrology Bill, by the Minister of Trade and Industry, Dr Rob Davies, in the National Assembly, Cape Town
|Speaker, Honourable Members, it gives me great pleasure to introduce the “Legal Metrology Bill, 2013”.
“Legal Metrology is the application of legal requirements to measurements and measuring instruments” — International Organisation of Legal Metrology.
Legal Metrology concerns measurements that directly affect consumers and ensures the quality and credibility of measurements that are used directly in regulation and in areas of trade. It deals with risks of misuse of the measuring 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. In a broader sense, legal metrology covers the protection of society in areas of health, safety and the environment, thus concerns the interaction between regulations and measurements.
The Legal Metrology Bill replaces the Trade Metrology Act, 1973, which after 40 years, is outdated and does not provide for the regulation of legal metrology measurements but is limited to Weights and Measures and ensures that all measurements made by industry when trading using scales, meters and other measuring equipment, are accurate. Legal metrology will afford the same kind of assurance to additional measurements such as those with respect to water consumption, speeding on the roads or blood pressure determinations. The National Regulator for Compulsory Specifications (NRCS) administers this on behalf of the dti.
In order, therefore, to position the national technical infrastructure appropriately to ensure that it continues to meet the changing needs of industry, the underlying policy is to modernise the trade metrology legislation by expanding its scope to legal metrology.
The Legal Metrology Bill will expand the scope of trade metrology to legal metrology and strengthen the enforcement thereof. The strengthening of the enforcement of legal metrology within an appropriate legislative framework supports industrial development by “locking out” inferior goods. It will furthermore protect consumers against short measure and inaccurate measurement, level the playing field for industry as measures should be equivalent across the country. By harmonising South African legal metrology regulations with international requirements it will support the competitiveness of South African exporters.
The Bill also addresses corporate governance issues as contained in Clause 42 as well as Schedule 2 to the Bill. The National Regulator for Compulsory Specifications (NRCS) administers this Bill and is currently overseen by a Board. This will change to a governance structure where the Chief Executive Officer will report directly to the Minister of Trade and Industry. This is done to implement a policy decision to bring regulators closer to the Department.
Speaker, Legal Metrology impacts on our everyday lives in that it refers to measurements in trade such as the weight of consumer goods, be it meat purchased from butchery or a pre-packed staple such as mealie-meal or the volume of fuel that we purchase on a daily basis. We assume that the litre of fuel that we buy is in fact a litre. If these transactions are not accurately measured, you and I as consumer may pay too much for a product due to inaccurate measurements, whilst as government we may also lose out on tax revenue.
It will in future also include measurements related to health, safety and the environment such as measurements related to blood pressure instruments and baby scales, where incorrect diagnosis could lead to death as well as evidential breath analysers and exhaust gas analysers.
This legislation relates to the technical infrastructure – the Standards, Quality Assurance, Accreditation and Metrology system that provides an objective basis for competitiveness in the economy. The legislation improves the responsiveness of this system to needs of the South African economy.
The technical infrastructure is a system that allows our economy to set standards, mainly for industrial production, and test against those standards.
I wish to use this opportunity to acknowledge and thank the Portfolio Committee on Trade and Industry for facilitating the public hearings and for the Committee’s substantive inputs into the Bill as well as industry that made submissions during this process.
Some of the inputs that were dealt with include:
The current practice is that the repair and verification functions are not segregated. The conflict of interest in this case is managed through the accreditation process. This Bill does not require the function of repair and verification to be separated. However, the Bill enables the Minister to prescribe requirements to restrict verification officers from repairing prescribed measuring instruments where the risk warrants the segregation of these functions. This will be taken into consideration where new fields of measurements are added to the scope, for example, blood pressure or evidential breath analyser measurements. As this will be considered on a case by case basis, the process of consultations and regulatory impact assessments as stipulated in clause 15 and 16 of the Bill will be followed. The transitional arrangements make provision for the current status quo to remain.
Chairperson, we identified the expansion of the scope to legal metrology in a transparent manner as a key challenge and therefore have gone to great lengths during the drafting process to allay the fears of industry that we would impose restrictions on their livelihood without proper consultation. To reiterate, this Bill is very prescriptive in that it stipulates that whenever a new scope is added through regulation, it will be preceded by a risk and impact assessment as well as consultation with all parties concerned.
Currently the Trade Metrology Act provides for the verification to be performed by accredited verification bodies as well as employees of the NRCS. The NRCS fulfils the verification function where the private sector is not willing or able to service the verification needs of industry. This is mostly the case in rural areas where it is more costly for an accredited verification body to service a client or in instances where there are no designated verification bodies for a specific scope. As the regulator, the primary responsibility remains with the NRCS and the accredited verification bodies are acting on behalf of the NRCS. As with the requirement for accredited bodies, the necessary firewalls have to be maintained by the NRCS to minimise the conflict of interest between its inspection and verification functions. Ideally, the private verification bodies should service the entire South African market, but until this happens, the NRCS will continue to fill the gap. It is not intended that the NRCS should compete with accredited verification bodies and this will be reflected in the annual revision of fees, which are also consulted with industry.
It was agreed that the NRCS could not implement this Bill without the support of industry. This is also reflected in the continued provision for the use of accredited verification bodies and the provision for cooperation with other organs of state to avoid duplication in terms of market surveillance inspections. NRCS is currently building internal capacity through the training of candidate legal metrology officers.
This Bill provides for a new financing model for legal metrology, similar to the structure that the NRCS uses for funding of compulsory specifications. Fees will be determined per legal metrology technical regulation based on the cost that the regulator incurs to effectively and efficiently regulate. Regulatory costs that need to be covered include: type approvals, verification, inspections, consultations, awareness campaigns, impact assessments and risk assessments. The funds of the NRCS will consist of money that is appropriated by Parliament and fees. During the impact assessment phase the capacity needs will be identified and the cost to regulate a new scope or product will be calculated, thus allowing the NRCS to gear up prior to regulation. These fees are consulted with industry on an annual basis and have to be approved by both the Ministers of Trade and Industry and Finance. These fees are published in the Government Gazette.
Clause 10 compels all repairers to register to ensure that the NRCS has control over rogue and fly by night repairers who repair measuring instruments without following the rules, such as the obliteration of the verification mark.
The requirement in Clause 11 of the Bill does not require products to be registered but the aim of the section is to identify all relevant role-players in this field to the NRCS so that regulating can be effectively done. This will address the current lack of a database of companies that operate in terms of the Bill.
The Bill provides for a fine to be imposed but no monetary value is stated, or imprisonment for a period not exceeding 10 years, or both.
The penalty is a maximum 10 year jail term and the fines will be determined by the court taking into account the Adjustment of Fines Act.
Industry was of the view that the proposed penalties are too stringent compared to other criminal offences.
The Committee in turn was of the opinion that especially with the expansion of the scope to cover measurements impacting on health and safety, the penalties should be strengthened. Clause 39 was thus revised to include the disqualification of a person from performing a function or duty after being convicted of an offence.
The above provisions address the key challenge of strengthening of the mechanisms that will be utilised in enforcement.
Chairperson, concerns were raised during the Public Hearing process that this Bill might be encroaching on the mandate of others. The aim of this Bill is to provide the umbrella for legal measurements and the regulatory scope is limited to measurements and will not perform the regulatory function related to professionals that are governed by other Acts of Parliament. Once again, before a prescribed measurement is added through regulation, the consultation process in Clause 15 and 16 will be followed and the profession involved will determine the appropriate standards of measure that will be prescribed through regulation.
In order to address the inconsistent interpretation of the regulations prescribed in this Bill, an awareness campaign will be undertaken in partnership with industry to address this challenge.
In addition, the Bill mandates the NRCS to participate in the International Organisation of Legal Metrology (OIML). The OIML is a treaty organisation that was established in 1955.Currently there are 59 member states and some 67 corresponding members. South Africa acceded to the OIML in 1998.
The OIML was established to disseminate information on legal metrology laws and regulations, the development and promotion of international best practice, elimination of barriers to trade caused by legal metrology and to develop and promote Mutual Acceptance Agreements in legal metrology. Where OIML regulations are available, the NRCS will use that as a basis for its regulations.
It is important to note that this Bill forms part of our ongoing effort to provide a strong basis for industrial development.
To conclude, I wish to confirm that this Bill is crucial for the strengthening of an enabling legislative environment for a modern South African technical infrastructure.
Thank you, Speaker.