(DRAFT) MINUTES OF THE MEETING
of the
TRANSPORT WORKING GROUP
held at
Hotel Manos
Brussels, Belgium
on
Tuesday, 10th March 2015
List of Participants
1. Jon Jones, Austin, UK
2. Ivana Jakubkova, Austin Detonators, CZ
3. Maurice Delaloye, SSE, Switzerland
4. Martin Klein, DynaEnergetics, Germany
5. Lucie Holubova, Explosia, CZ
6. Marin Dorobantu, Weatherford, Romania
7. Thierry Rousse, EPC, France
8. Rafael Lopez, Maxam, Spain
Apology
1. Marlies Becker, Orica Europe, Germany, Chairlady
2. Janusz Dryzga , Nitroerg, Poland
In attendance: Hans H. Meyer, FEEM, Belgium
1. Opening of the Meeting
Normally the meetings are opened by the Chairperson. Unfortunately, our chairlady Marlies Becker has left Orica and consequently also our organization. Therefore, this Working Group is in need to elect a new head to this group. This was dealt under AOB.
2. Competition Compliance
As an Association, FEEM operates in strict compliance with European competition laws. Respect for these laws is a core value applying to all FEEM activities. All members of this Working Group have been informed by the Secretary General about prohibited discussion topics which apply not only during meetings but also to social gatherings before and after meetings. By signing the participation form, the delegates declare their adherence to the Competition Compliance Programme and agree to comply with Competition Law. An up-dated CEFIC checklist of competition compliance regulations has previously been handed out to the working group delegates. In particular the delegates were reminded that they are not allowed to discuss or exchange information which is not in conformity with competition legislation, including e.g. on:
Prices
Production details
Transportation rates
Market procedures
3. Agenda for 10th March 2015 and Approval
1. Opening of the Meeting by the Secretary General
2. Compliance with the European and National Competition Laws and Regulations
3. Agenda and Approval of the Agenda
4. Minutes of the last meeting on Tuesday, 30th September 2014 in Lisbon and approval
5. Secretary General’s Report, with in particular:
a) Latest developments with European Explosives Legislation
I. Export of explosives to restricted countries
II. T&T postponement for “non-registered” products manufactured between 2013 and 2015
III. Single code for the manufacturing site to be used for all imports into the EU
IV. Results and résumés of XML-file ring test
6. Any other business:
1. Colour Coding
2. Recording the location of each explosive
3. Transport related incidents
4. Election of a new chairperson
7. Subjects for the next meeting
8. Date & Place of the next meeting
The Agenda was approved.
4. Minutes of the last Meeting of the Transport Group Meeting in Lisbon on 30 September 2015 and Approval
The Minutes were approved.
5. Secretary General’s Report
The Secretary General up-dated the delegates and gave his presentation on the following topics:
a) Latest Developments with European Explosives Legislation
1. EXPORT OF EXPLOSIVES TO RESTRICTED COUNTRIES
There are several European Council Regulations which prohibit the export of some types of civil explosives and ALL INITIATION SYSTEMS to certain “sensitive countries” under the concept of “products which can be used for internal repression”.
But the industry has to be careful! The ban refers not only to products and countries but also to individual persons, organisations and companies, e.g. in Russia and other sensitive countries. So you responsible export staff must investigate if their customers are not mentioned in some lists.
Restrictive measures (sanctions) in force are based on Article 215 TFEU and Decisions adopted in the framework of the Common Foreign and Security Policy
Article 215 of the Treaty on the Functioning of the European Union (TFEU) provides a legal basis for the interruption or reduction, in part or completely, of the Union’s economic and financial relations with one or more third countries, where such restrictive measures are necessary to achieve the objectives of the Common Foreign
and Security Policy (CFSP).
Some of these countries comprise:
BELARUS, IRAN, LIBYA, MYANMAR, SYRIA, ZIMBABWE, AFGHANISTAN, CENTRAL AFRICAN REPUBLIC, DEMOCRACTIC REPUBLIC OF CONGO, COTE D’IVOIRE, ERITREA, REPUBLIC OF GUINEA (CONAKRY), GUINEA-BISSAU, LIBERIA, MOLDOVA, RUSSIA
However, there are several International and Multinational Companies working in these countries in the fields of: Exploration projects for fuel and gas, Cement, Iron, Fertilizers, Aluminium, Precious Metals (Gold, Silver and Platinum) and other Minerals and Raw Materials. These companies are potential export customers and the European explosives industry is prohibited to supply them. This is a competitive disadvantage since non-EU suppliers (including US, South-Africa, India, Australia) do not face such restrictions.
According to EUROSTAT, the EU imports gas, fuel and mining products from practically all the aforementioned countries under the internal repression ban; a number of multinational companies produce and export to EU from those countries cement, iron, fertilizers, aluminium, ornamental stones, gold, silver, platinum, fuel, gas, and other minerals and raw materials; it is important to say that nearly all the aforesaid activities require unavoidably the use of civil explosives and initiation systems.
Based on these facts FEEM has made an Application for a REVISION OF THE EUROPEAN LIST OF PRODUCTS which can be used for internal repression (In practical terms this means, that FEEM has provided the text of the law, which has been taken over 1:1). FEEM argued that civil explosives and initiation systems - listed under the point 4 of the “internal repression list” - are specially conceived, designed and shaped for blasting activities in the fields of public infrastructure works and mining and fuel extraction and prospecting activities; its explosives properties, characteristics and the conditions and methods of use, are totally different to the military initiations systems and explosives and therefore it is possible to say that they can hardly be used for internal repression.
Generally, military explosives need to be stabile, thus implying resistance to shock, moisture and other considerations that come about through the nature of their use. They usually need to be capable of being stored for long periods of time (about 10 years) without significant deterioration. They differ against blasting explosives by their chemistry (e.g. density about 1.8 g/cm³) and their physical properties like detonation velocity (e.g. Octogen: > 9,000 m/s). Civil industrial explosives like Dynamites, Emulsion Explosives or ANFO (Ammonium Nitrate Fuel Oil) are only of limited shelf-lives which range between 6 months and 18 months. Their densities are between 0.9 g/cm³ (ANFO) and 1.4 g/cm³ (Dynamite). Detonation velocities are between 2,000 m/s and 5,500 m/s. Military explosives are readily available to repressive countries from various sources so there would be no call or need to use civil explosives anyway.
As mentioned before no other countries in the world have such type of ban; the prohibition has been established only at European level and consequently Non-European companies can sell / export all types of civil explosives and initiation systems without any restriction or export controls to the countries under the internal repression ban; in this sense it is important to highlight that civil explosives and initiation systems are not included neither in the international LISTS OF DUAL USE GOODS nor in the MUNITIONS LIST (Wassenaar arrangement).Therefore, the negative effect for the European Industry of civil explosives is very significant because our competitors are supplying the goods, mainly from USA, Canada, South Africa and Australia.
A first success of FEEM’s Activities has already been achieved, because the “EU FOREIGN MINISTRY” relaxed in a 1st action the COTE D’IVOIRE sanctions to allow certain prohibited goods.
On 10 February 2015, the European Union published Council Regulation (EU) 2015/192 (which amends Council Regulation (EC) No 174/2005) and Council Decision (CFSP) 2015/202 (which amends Council Decision 2010/656/CFSP).
An additional derogation from the prohibition on the sale, supply, transfer and export of equipment which might be used for internal repression has been introduced in order to enable the authorization of certain equipment, where appropriate, for the purposes of civilian use in mining or infrastructure projects, following the adoption of Council Decision (CFSP) 2015/202. By way of derogation from Article 3, the competent authority, as listed in Annex II, of the Member State where the exporter is established or, in the case that the exporter is not established within the Union, the Member State from which the equipment may be sold, supplied, transferred or exported, may authorize, under such conditions as it deems appropriate, the sale, supply, transfer or export of equipment as listed in point 4 of Annex I, where the equipment is solely for civilian use in mining or infrastructure projects.
These derogations are subject to authorization on a case by case basis by the exporting Member State. Where the equipment is purportedly for civilian use the exporting state must inform other Member States and the Commission of its intention to authorize at least one week in advance of doing so, and no more than two weeks after authorization where the equipment is for maintenance of public order.
The other restricted countries on the sanctions’ list will hopefully follow in due course with identical derogations! The next priorities are Zimbabwe and Myanmar.
b) T&T POSTPONEMENT FOR “NON-REGISTERED” EXPLOSIVES
FEEM IT and T&T experts asked the Secretariat on the occasions of their meetings in Brussels and Prague in July and November 2014 to propose to the Commission a transition period for labeled but not traced products from April 2015 to 2016.
The legal department of the Commission has been contacted by the SG in July and November 2014 and again in February 2015 and they are working on it. Chances are considered as very low because of long EU and National legislation processes!
FEEM has proposed to the Commission to investigate if there is a possibility for a transition period of one or more years after April 2015 for the integration of these “interim products” into the traceability managing systems. Concerning the transition period, the explosives industry suggested proposing two differing times because of the relevant shelf-lives of the products:
A) ONE YEAR TRANSITION PERIOD (i.e. until 5 April 2016) for:
1. Cartridged explosives and explosives in sacks
2. Two-component explosives
B) TWO YEAR TRANSITIONAL PERIOD (i.e. until 5 April 2017) for:
1. Plain detonators
2. Electric, non-electric and electronic detonators
3. Primers and boosters
4. Detonating cords and safety fuses
Although the explosives industry is now fully ready for the implementation of phase 2 by 5 April 2015, due to different interpretations of the Directive many explosives manufacturers have been unable to forward details of uniquely numbered items to downstream users (dealers, distributors, end-users in mining, quarrying and construction) in sufficient time for the whole supply chain to record all movements of explosives items from 5th April 2015. Many downstream users will be ready to receive the electronic documentation only as of 5th April 2015, which leaves them in a situation of non compliance of quantities of explosives stocks throughout Europe. Some of the national Authorities recognise the issue faced but from a regulatory perspective they would need further guidance from the European Commission to enable a common pragmatic approach to be taken.
The explosives industry has also emphasised the safety implications concerning this "remaining" stock if approval is not granted. The industry including their downstream users would be required to unpack/scan/repack all this product in each of its locations where it may not be feasible or licensed to do so, complications will be around the ability to move this products, having competent and trained personnel available throughout the supply chain and the impact of magazine capacity due to stock not being able to physically move.
Since all FEEM members have made enormous efforts to avoid stocks of “non-traceable” items in their magazines this proposal is mainly to support our customers and other business partners, like distributors and end users. In case the proposal will be approved, we are aware that there are products in the market which are traceable and products which are not traceable. There it could be a natural tendency to prefer non traceable ones, since it would be easier. This would be detrimental not only to Security, but also to those manufacturers who have managed to have their Track&Trace system fully ready according to EU Directives 43/2008 and 4/2012.
Therefore, FEEM has also informed the Commission on the following points to be considered in the case that a postponement was approved.
1. The obligation by all undertakings of the supply chain is to prioritize those products which are 100% traceable.
2. In case this is not feasible, the Commissionmust clearly establish regulations, limits, controls and conditions concerning the use of products which are not 100% traceable.
3. Additionally it is absolutely necessary to make clear to the Commission that, in case an incident would take place involving products which are not 100% traceable, there is not any responsibility on the side of the manufacturers.
It must be mentioned that this initiative is not unambiguous; neither in our industry nor in the end-user associations.
There were complaints from some members that they have done their “home-work” and that they are ready as of next month.
Also UEPG signalled that their members and end-users do not understand the necessity for a postponement. Here I have the feeling that they didn’t understand the background although the explanations were structured and clear. E.g. they have been confusing marked und un-marked products.
FEEM has only been considering products which are unable to be broken down within the hierarchy (Pallet – Case – Item) because of the missing XML information.
(At the beginning of April 2015 the Commission has officially not announced any decision, yet. However, FEEM received the informal information from Commission’s resources that the likelihood for an extension is tending towards zero. This is because of the tight time-frame. Even under the comitology process and with expedited proceedings they have investigated that such a process would require a minimum of 6 months. Another reason is that the Commission does not want to grant derogation because they claim that all participants in the supply-chain have had sufficient time for the adoption of the Directive. According to Federico Musso, chief of the EU explosives division, the official response has been written and is waiting to be signed by the Head of the Commission, probably 2nd week in April.)