Commonwealth Numbered Regulations - Explanatory Statements

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INDUSTRIAL CHEMICALS (NOTIFICATION AND ASSESSMENT) AMENDMENT REGULATIONS 2004 (NO. 2) 2004 NO. 239

Section 111 of the Industrial Chemicals (Notification and Assessment) Act 1989 (the Act) provides in part that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The object of the Act is to provide for a national system of notification and assessment of industrial chemicals for the purposes of aiding in the protection of the Australian people and the environment; providing information and making recommendations about industrial chemicals to Commonwealth, State and Territory bodies; giving effect to Australia's obligations under international agreements; and collecting statistics in relation to these chemicals.

The purpose of the Regulations is to ensure that the Industrial Chemicals (Notification and Assessment) Regulations 1990 (the Principal Regulations) are amended to reflect changes that were made to the Act by the Industrial Chemicals (Notification and Assessment) Amendment (Low Regulatory Concern Chemicals) Amendment Act 2004 (the Amendment Act). The Amendment Act received the Royal Assent on 13 July 2004.

The Amendment Act made a number of changes to the Act in relation to low regulatory concern chemicals and other miscellaneous matters. The Amendment Act introduces industry reforms for fast tracking of assessment processes that are counter balanced with enhanced public access to information, increased record keeping requirements and enhanced compliance activity. The amendments do not change the objects of the Act, but introduce flexibility into the current assessment process for industrial chemicals to enable the fast tracking of low regulatory concern chemicals while maintaining existing levels of worker safety, public health and environmental standards.

Of the changes made to the Act by the Amendment Act, the following have bearing on the Regulations:

(a)       repeal of the definition of a "synthetic polymer of low concern" in section 5 of the Act and replacement of this with the term "polymer of low concern;"

(b)       splitting paragraph 21(4)(b) of the Act into subparagraphs 21(4)(b)(i) (which applies to chemicals introduced in a cosmetic) and 21(4)(b)(ii) (which applies to chemicals that are not introduced in a cosmetic);

(c)       the definition of a 'non-hazardous chemical' has been removed from section 30A of the Act and re-made in section 5 of the Act;

(d)       the notification statement requirements that are set out in subsections 23(4) to (9) of the Act have been amended; and

(e)       repeal of paragraph 110(1)(v) of the Act which has been re-made in new paragraph 110(1)(cc).

Minor consequential amendments to the Principal Regulations are therefore required in relation to the matters at (a) to (e) above to ensure that the Principal Regulations are consistent with the Act.

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

Details of the Regulations are set out in the Attachment.

The Regulations commence on commencement of Schedule 1 to the Amendment Act. A proclamation fixing the commencement date of Schedule 1 to the Amendment Act will be the subject of a separate Executive Council Minute.

ATTACHMENT

DETAILS OF THE INDUSTRIAL CHEMICALS (NOTIFICATION AND ASSESSMENT) AMENDMENT REGULATIONS 2004 (NO. 2)

Regulation 1 names the Regulations as the Industrial Chemicals (Notification and Assessment) Amendment Regulations 2004 (No. 2).

Regulation 2 provides for the Regulations to commence on the commencement of Schedule 1 to the Industrial Chemicals (Notification and Assessment) Amendment (Low Regulatory Concern Chemicals) Act 2004 (the Amendment Act).

Regulation 3 provides that Schedule 1 amends the Industrial Chemicals (Notification and Assessment) Regulations 1990 (the Principal Regulations).

Schedule 1 - Amendments

Item 1

This item amends Regulation 4AA to substitute a definition of the term "hazardous chemical" in place of the existing term "hazardous substance." This reflects similar amendments made to the Industrial Chemicals (Notification and Assessment) Act 1989 (the Act) by the Amendment Act.

Items 2 to 16

The Amendment Act changes all references to "synthetic polymer of low concern" to "polymer of low concern". Items 2 to 16 amend the Principal Regulations by substituting the term "polymer of low concern" for "synthetic polymer of low concern" in regulations 4A to 4I, thereby ensuring consistency between the Act and the Principal Regulations.

The Amendment Act also adds new elements to the definition of a "polymer of low concern". Items 2 to 16 also amend regulations 4A to 4I to reflect the new elements in the definition of a "polymer of low concern".

Item 9 omits regulation 4D "Synthetic polymer of low concern - low residual monomer content" from the Principal Regulations, because low residual monomer content was removed from the definition of a "polymer of low concern" by the Amendment Act from section 5 of the Act. Similarly, item 11 omits regulation 4F "Synthetic polymer of low concern - low water solubility" and regulation 4G "Synthetic polymer of low concern - particle size" from the Principal Regulations, because the Amendment Act also removed low water solubility and particle size from the definition of a "polymer of low concern" contained in section 5 of the Act.

Item 17

This item inserts new regulations 4J and 4K. These replace existing regulations 7B and 7C, which are removed by item 25, and are only slightly different to them.

New regulation 4J prescribes the criteria relating to the environmental effect of a non-hazardous chemical for the purposes of paragraph 5(2)(c) of the Act. It also specifies the characteristics that a non-hazardous chemical, to which subsection 23(5) or (7) applies, must have; and the criterion that a non-hazardous chemical, to which subsection 23(4) or (6) or section 24A of the Act applies, must meet.

New regulation 4K prescribes the matters that the Director of the National Industrial Chemicals Notification and Assessment Scheme (NICNAS) must take into account in relation to the introduction of a hazardous chemical for the purposes of paragraph 5(3)(g) of the Act.

Item 18

This item amends subregulation 6AB(1) as a result of changes made to paragraph 21(4)(b) of the Act. The Amendment Act splits paragraph 21(4)(b) of the Act into subparagraphs 21(4)(b)(i) (chemicals introduced in a cosmetic) and 21(4)(b)(ii) (chemicals that are not introduced in a cosmetic).

This item amends subregulation 6AB(1) to make it clear that the requirements for chemicals introduced in cosmetics are prescribed by subregulations (2) to (5); and that subregulations 6AB(4) and (7A) to (9) inclusive prescribe the requirements for chemicals that are not introduced in a cosmetic. This item also prescribes the requirements in subregulations (2) to (4) and (7A) to (9) to apply to non-hazardous cosmetic chemicals that are introduced in concentrations of 1% or less under subparagraph 21(6)(c)(iv) of the Act.

Item 19

This item inserts a new subregulation 6AB(5A) to require persons who introduce cosmetics in quantities of between 10kg and 100kg in a 12 month period to provide the material safety data sheet and label to the Director of NICNAS.

Subregulation 6AB(7) is amended so that the requirements for an introducer of a cosmetic chemical in a concentration of 1% or more (in 10-100kg amounts in a 12 month period) are set out under 6AB(7)(a) and the requirements that must be met for cosmetic chemicals in a concentration of 1% or less (in 10-100kg amounts in a 12 month period) are set out under 6AB(7)(b).

The 5-year record-keeping requirement for introducers are moved from paragraph 6AB(6)(b) to new subregulation 6AB(7A).

Items 20 and 21

These items amends subregulations 6AB(8) and (9) to insert a reference to the new subregulation (7A), which replaces paragraph (6)(b).

Item 22

The Amendment Act provides for an "approved form" instead of a "prescribed form" for the purposes of section 24A of the Act (variation of requirement for notification statement in case of polymers of low concern). This item therefore removes the reference to the prescribed form in regulation 7AA.

Item 23

This item removes paragraph 7A(2)(b), as it refers to an obsolete provision of the Act.

Item 24

The Amendment Act inserts a new subsection 39(1A) in the Act, to include a reference to self-assessed assessment certificates. This item inserts a reference to subsection 39(1A) in paragraph 7A(2)(d).

Item 25

The Amendment Act amends section 30A of the Act to remove the definition of a 'non-hazardous chemical' and to re-make this definition in section 5 of the Act. This item removes regulations 7B and 7C, which relate to the previous version of the Act. These regulations are remade as new regulations 4J and 4K by item 17 above.

Item 26

The Amendment Act inserts a new subsection 39(1A) in the Act, to include a reference to self-assessed assessment certificates. This item amends regulation 8B by inserting a reference to the new subsection 39(1A) of the Act.

Item 27

The Amendment Act provides for an "approved form" instead of a "prescribed form" for the purposes of section 24A of the Act (variation of requirement for notification statement in case of polymers of low concern). The previously prescribed form, Schedule 1, Form 1A would therefore be omitted by this item.

Items 28 and 29

The Amendment Act repealed paragraph 110(1)(v) of the Act and re-made this provision in new paragraph 110(1)(cc). These items therefore reflect this change by amending Schedule 2 to omit Item 18 and insert new Item 5A, with the revised reference.