Summary of submissions on the Legal Metrology Bill [B34 – 2013]

1.Introduction

The Legal Metrology Bill [B34 – 2013] was tabled in parliament on 2 October 2013. The legal metrology involves regulating measurements from those related to trading, i.e. mass, volume, length and area, to include the regulation of measurements used in the health (e.g. blood pressure), safety (e.g. speed) and environmental (e.g. CO2 equivalents) domains.This is important as it protects consumers against short measure when purchasing goods, establishes a level playing field for industry as measures should be equivalent across the country and to support local industries competitiveness when engaging in global trade. Furthermore, it will provide credibility to government’s regulatory systems including traffic regulation, health systems and accurately monitor air and water quality.

The Bill sets out to:

  • Broaden the trade metrology regulatory framework to incorporate aspects in the health, safety and environmental domains.
  • Address risks of misuse and tampering of measurement instruments, as well as accidental influences on measuring instruments.
  • Ensure the traceability of measurements.
  • Implement a regulatory and compliance system for legal metrology through the National Regulator for Compulsory Specifications (NRCS).
  • Provide for the administration and maintenance of legal metrology technical regulations.
  • Provide for market surveillance by the NRCS to ensure compliance.
  • Replace the Metrology Advisory Committee with an Advisory Forum to the NRCS.
  • Increase the penalties set in the Trade Metrology Act (No. 77 of 1973).

1.1List of stakeholders

The following submissions were received:

  • Agri-Weigh (AW) (LMB 2013/6)
  • Alec Stoltz (AS) (LMB 2013/4)
  • Health Product Industry Trade Group (ITG) (LMB 2013/11)
  • JVPS (LMB 2013/9)
  • Klerkscale (LMB 2013/14)
  • National Weighing Association (NWA) (LMB 2013/12)
  • OVK Grain (LMB 2013/5)
  • SA Automation Systems (SAAS) (LMB 2013/10)
  • South African Geomatics Institute (SAGI) (LMB 2013/7)
  • SASCO Metrology Services (SASCO) (LMB 2013/13)
  • South African National Consumer Union (SANCU) (LMB 2013/2)
  • South Africa Council of the Scale Industry(SACS) (LMB 2013/8)
  • Woolworths (LMB 2013/3)
  • Tiger Brands (LMB 2013/15)

1.2Key issues arising

The following key issues were raised by stakeholders:

  • Clarity on how the separation of repair and verification functions will work in practice.
  • The impact on small industry players and the end user of the separation between repair and verification functions.
  • The involvement of the NRCS within the verification industry.
  • Clarity required around the registration of products or importers, manufacturers and persons who offer for sale any prescribed product.
  • The appointment of market surveillance inspectors that may be involved within the industry and the confidentiality of information that must be submitted to the NRCS.
  • The severity of the proposed penalties.
  • Coordination and harmonisation between this Bill and other legislation/regulations of affected sectors or exemption of sectors that are already legislated in terms of accuracies and tolerances, specifically from the criminal aspects of this Bill.

2.General issues

Topic / Stakeholder comments / the dti response
Preamble / ITG: Clarify to what extent the Bill impacts on the health industry. / Where a legal metrology technical regulation refers to health measurements of products such as blood pressure monitors, thermometers etc. Currently the Act applies to preplaced medicines such as cough mixtures, bandages and dressing they already have to comply with labelling and accuracy requirements
Introduction of unit pricing / SANCU: The global trend is to scrap regulations demanding that products be sold only in specified quantities. However, this deregulation is exacerbating the practice of "downsizing[1]" to the detriment of consumers. They suggest introducing unit pricing regulations in this Bill or other appropriate legislation to allow consumers to more easily compare products and detect “downsizing”. This could be achieved by rewording the proposed section 36(1)(d). This should include stating this in advertising material. / The concern of SANCU of is valid. Although there is a global trend in other economies to scrap these regulations, our current regulations make provision for prescribed quantities addressing basic food groups to protect consumers and we do not foresee that changing in the near future. The unit pricing issue does not fit into the mandate of this Bill. However the NRCS and the NCC have and MoU through which this issue could be investigated further.
Implementation of the legislation / Klerkscale: The NRCS is understaffed and resourced to enforce the existing legislation. It also does not have the necessary inspections facilities to ensure legal compliance. / We acknowledge the concern from industry regarding the staffing and funding of the NRCS. The Regulator was established in 2008, however there’s room expansion. This bill provides for new financing model that will put the Regulator in a better position to fulfil its mandate.
Consultation / Klerkscale: Lack of feedback or correspondence after the initial consultation process is a concern.
SAGI: They indicate that they had not been consulted on the Bill, which affects them as well as the Chief Surveyor General and National Geospatial Information and PLATO[2], in terms of suitable standards of measure. These stakeholders should be given an opportunity to comment and may need further time to apply their minds to this Bill. / Kerkscale and SAGI: the dti consulted on the policy proposal named “The Move from Trade to Legal Metrology” with workshop being held at Cape Town, Durban and Johannesburg. Nedlac worked through the policy proposals and finalized these in June 2011. The SLA drafted the Bill, the Bill was public for public comment where these comments were incorporated into the Bill. Nedlac worked through the Bill after which it was introduced to Cabinet.
Going forward once the Parliamentary process has been completed, the dti and NRCS will embark on an awareness campaign to sensitize all roleplayers.

3.Issues arising from specific clauses

Clause / Description / Stakeholder comments
1 / Definition of Chief Executive Officer
1 / Definition of correct
1 / Definition of distinctive mark
1 / Definition of importer
1 / Definition of initial verification
1 / Definition of item
1 / Definition of legal metrology technical regulation
1 / Definition of manufacture
Definition of market surveillance inspector
1 / Definition of measuring instrument / NWA and SASCO: The definition should include software –
“‘‘measuring instrument’’—
(a)means any appliance, equipment, instrument, software or apparatus or any combination thereof by means of which a measurement of physical quantity, expressed in any measurement unit or a mathematical function of measurement unit, may be made; and
(b)includes any appliance, equipment, instrument, software or apparatus or any combination thereof by means of which a grading or counting in connection with the measurement of any physical quantity or a counting by means of gravitation may be effected;” / Agreed. Amendment incorporated in the A Iist.
1 / Definition of measuring unit
1 / Definition of Minister
1 / Definition of National Regulator: NRCS
1 / Definition of National Regulator for Compulsory Specifications Act
1 / Definition of person responsible for repairs / AS: The definition should be amended to ““persons responsible for repairs” means any person who repairs a measuring instrument in accordance with the provisions of sections 9, 10 and 27.”
JVPS: Does a person refer to an individual or an organisation? / AS: We do not agree that clause 9 should be referenced.
Amendment incorporated in A list as follows: “means any person registered in terms of section 10 to repair a measuring instrument in terms of section 27”
JVPS: It refers to individuals as the organisation are designated as a repair body
1 / Definition of physical quantity
1 / Definition of premises
1 / Definition of prescribe
1 / Definition of prescribed purpose
1 / Definition of regulation
1 / Definition of repair
1 / Definition of Repair Body
1 / Definition of SABS: South African Bureau of Standards
1 / Definition of SANS: South African National Standards
1 / Definition of sell
1 / Definition of subsequent verification
Definition of this Act
1 / Definition of trade
1 / Definition of type approval
1 / Definition of unauthorised measuring unit
Definition of unverified
1 / Definition of verification body
1 / Definition of verification mark
1 / Definition of verification officer
1 / Definition of verify
2 / Application and objects of Act
3 / Administration of Act
4 / Functions of National Regulator / SACS: The NRCS, as a regulator, should not be involved in verifying measuring instruments, as this can result in a conflict of interest. Rather it should focus on supervising laboratories and end users in the industry to ensure improved levels of service to the public. They suggest removing “and verify” from section 4(1)(f) and “or verify measuring instruments” from section 4(2)(d). / SACS: 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 provide sector are not willing or able to service the verification needs 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 requirement for accredited bodies, the necessary firewalls have to be maintained by the NRCS to minimize 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 by no means intended that the NRCS should compete with accredited verification bodies and the NRCS will also take this into account with the annual revision fees and the related consultations with industry.
5 / Delegation of functions / SAAS: Most industry players are small companies involved in both the repair and verification of instruments. Many of these would not be sustainable if they only performed one of these functions and would have extensive increases in overhead costs if they had to split these functions. The separation of these two functions is prejudicial to small businesses and therefore anti-competitive relative to larger industry players and will not level the playing field as stated objective in the Bill (see clause 2(2)(e)). Furthermore, the introduction of the manufacturer notifying the Regulator of a sale should allow it to enforce the regulations and provision of the Bill without unnaturally separating the verification and repair functions.Therefore, allreference to the separation of Verification and Repair should be deleted. / The current practice is that 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 split. 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 particularly taken into consideration where new fields of measurements are added to the scope, for example, blood pressure or evidential breath analyzer 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.
6 / Appointment of market surveillance inspectors / SAAS: See comment under section 5.
SACS: Market Surveillance Inspectors and Inspections: This new function can be very dangerous as the person appointed by the CEO of the NRCS may be related or even have an interest to the party or function it must inspect. The complete function and purpose of the section must be re-negotiated to avoid a conflict of interest or the disclosure of sensitive information or records to competitors. / To clarify, this is not a new function as it talks to the appointment of NRCS staff as market surveillance inspectors.
Provision is also made to appoint another organ of state in order to not duplicate market surveillance where it already exist e.g electricity meters are regulated by NERSA.
7 / Designation of verification bodies / Klerkscale: The relationship between the repairer and the verification officer must be clearly defined to determine how scale companies will operate in future. The separation will involve substantial direct costs, as well as an administrative burden, for scale companies and the end user without leading to any improved effectiveness or efficiencies of the service provided. This is expected to mainly affect small companies.
SAAS: See comment under section 5.
SACS: They are of the opinion that the South African demographics and client base cannot afford the segregation of the repair and verification function. The segregation of these functions will add a substantial financial burden and may result in significant downtime, as customers wait for the repairing and verification services to be concluded, especially in outlying areas. They suggest that:
  • Verification bodies should be allowed to repair and verify.
  • Repair bodies should only repair.
  • More inspectors should be appointed to actively monitor repair and verification bodies on an ongoing basis.
/ Refer to response in clause 5
SACS: Refer to response in clause 5
8 / Appointment of verification officers / SAAS: See comment under section 5.
SACS: See comment under section 7. / Refer to response in clause 5
9 / Designation of repair bodies / AS: It is unclear why all repair bodies should be designated by the Chief Executive Officer. It is suggested that only repair bodies who wish to make use of the provision to issue a guarantee as provided for in section 27(3)(b) should be designated, as it should be of no consequence if any person repairs an instrument and has it verified immediately after such repair. The onus for ensuring the correctness of the instrument and its compliance with the relevant statutory requirements rests with the person/body carrying out the verification. It is therefore recommended that this section be amended as follows:
“9. The Chief Executive Officer may, in the prescribed manner, designate a repair body that wishes to issue a guarantee as provided for in section 27(2)(b) and meets the prescribed criteria to repair measuring instruments of any particular kind in accordance with this Act”.
SAAS: See comment under section 5. However, it would assist the regulator if the user was included in the Regulation loop. It is proposed that instead of references to the separation of the verification and repair function:
a) The purchaser must report all instruments used for prescribed purposes on an annual basis.
b) This return must include the following information:
  • The Verification Certificate Number.
  • The Verification Laboratory registration number.
  • Capacity, division size and serial number for each scale.
  • Expiry date of Verification Certificate.
  • Declaration that user has inspected and/or caused the instrument to be inspected in accordance with the approval number which is marked on the instrument. Inspection by the Verification Laboratory does not fulfil this obligation.
  • A declaration that the purchaser witnessed the verification and that the instrument was tested according to the written test procedures as provided by the Verification Laboratory.
  • A declaration that the instrument will be used in accordance with the pattern description which will be published on the Regulator’s Web Site or by mail or some other means.
  • A declaration that the instrument will be verified after repair unless he has a valid repair certificate.
  • A declaration that he will endeavour to maintain the instrument to the provisions of the regulations or as stated in the pattern approval.
c) Failure to comply with these provisions is an offence.
SACS: They agree that if you are only registered as a repairer that you may not verify an instrument. However, if you are registered as a verifier as well, you should be allowed to perform both functions on an instrument. This should not be at the Minister’s discretion but incorporated into technical regulations. / AS: It was decided that all repairers should register so that the NRCS has control over rogue and fly by night repairers who repaired measuring instruments without following the rules, such as the obliteration of the verification mark.
This may happen in the registration process.
Bear in mind that the definition of repair excludes repair that do not change the metrological integrity of the measuring instrument. This repairer needs to issue a guarantee.
Refer to response in clause5
SAAS: Not agreed. The cost implications will be prohibitive to industry as the purchasers/users will be responsible for the disclosure of all information to the NRCS,instead of the registered repair and verification bodies who are familiar with the information required by the NRCS.
SACS: Refer to response in clause 5
10 / Registration of persons responsible for repairs / AS: See comment under section 9. This is also applicable here. It is recommended that section 10 be amended as follows:
“10(1) The Chief Executive Officer may, in the prescribed manner, register any person with the prescribed competencies and who wishes to issue a guarantee as provided for in section 27(2)(b) as a person responsible for repairs of any particular kind in accordance with this Act.
(2) The Chief Executive Officer must furnish a person registered under subsection (1) with a certificate stating that such person may undertake repairs in terms of this Act.”
SAAS: See comment under section 5.
SACS: See comment under section 9. / AS: Do not agree
In this case is more important to register the person as he/she must know that he/she must leave the instrument complying with all type approval requirements and not fit unapproved components which might not be picked up during the verification process
11 / Registration of certain importers, manufacturers and persons who offer for sale any instrument, product or service / SAGI: Geomatics measuring professionals should preferably not have to be re-licensed in terms of this Bill. The Bill could introduce new, competing measuring professionals that are not licensed under PLATO and could use such certificate to mislead the public on their credentials. They suggest adding the following: “at the end of Section 11 “with the proviso that any person who performs work which falls within the scope of the geomatics profession shall not be licenced in terms of this Act unless they are registered with such governing geomatics council in an appropriate category as defined by that governing council.”