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Attachment 1

Australian and New Zealand Noise Labelling and Limit Scheme – Recommendations For Portable Equipment

May 2010

Prepared by NSW Department of Environment, Climate

Change and Water for the Working Group on Noise Labelling

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Contents

Summary ................................................................................................................................................................. 4 Glossary .................................................................................................................................................................. 5 1.0 Background............................................................................................................................................... 6 1.1 Environment Protection and Heritage Council ......................................................................................... 6 1.2 Benefits of Noise Labelling ...................................................................................................................... 6 1.3 Benefits of Mandatory Maximum Noise Limits ....................................................................................... 7 1.4 Support for Noise Labelling and Limits ................................................................................................... 7 1.5 Advantage of an Australian/New Zealand Scheme .................................................................................. 7 1.6 Limitations of Relying on Collateral Benefits .......................................................................................... 8 1.7 World Trade Organisation Technical Barriers to Trade ........................................................................... 8 1.8 Overseas Regulations................................................................................................................................ 8 1.9 European Union Outdoor Noise Directive 2000/14/EX ........................................................................... 9 1.9.1 Practical limits ..................................................................................................................................... 9 1.9.2 Continuous improvement..................................................................................................................... 9 1.9.3 Role of industry.................................................................................................................................... 9 1.9.4 Harmonising with EU Noise Directive .............................................................................................. 10 1.10 Alternatives to Labelling and Limits ...................................................................................................... 10 1.10.1 No testing or labelling requirements .................................................................................................. 10 1.10.2 Voluntary testing and labelling .......................................................................................................... 10 1.10.3 Mandatory testing and noting of levels in specifications ................................................................... 10 1.10.4 Mandatory testing and noting of levels on websites .......................................................................... 10 1.10.5 Education ........................................................................................................................................... 11 1.11 Existing Regulatory Approaches to Neighbourhood Noise .................................................................... 11 1.13 Australian Labelling Standards............................................................................................................... 11 1.14 Preliminary Industry Consultation.......................................................................................................... 11 1.15 Market Background on Portable Articles................................................................................................ 12 1.16 Extent of Noise Nuisance from Portable Articles ................................................................................... 12 2.0 Technical Issues...................................................................................................................................... 13 2.1 Definitions for portable articles .............................................................................................................. 13 2.1.1 Definition for lawnmower.................................................................................................................. 14 2.1.2 Definition for leaf blower .................................................................................................................. 14 2.1.3 Definition for leaf collector................................................................................................................ 15 2.1.4 Definition for line trimmer................................................................................................................. 15 2.1.5 Definition for brush cutter.................................................................................................................. 15 2.1.6 Definition for hedge trimmer ............................................................................................................. 16 2.1.7 Definition for chainsaw - portable ..................................................................................................... 16 2.2 Labels to Specify Sound Pressure Level or Sound Power Level ............................................................ 16 2.3 Multiple use portable articles.................................................................................................................. 17 2.3 Labelling format for portable articles ..................................................................................................... 18 2.4 Current noise labelling of portable articles ............................................................................................. 18 2.5 Noise limits............................................................................................................................................. 19 2.5.1 EU Noise Directive limits .................................................................................................................. 19 2.5.2 Limit for lawn mowers....................................................................................................................... 22 2.5.3 Limit for leaf blowers ........................................................................................................................ 22 2.5.4 Limit for leaf collectors...................................................................................................................... 23 2.5.5 Limit for line trimmer ........................................................................................................................ 23 2.5.6 Limit for brush cutters........................................................................................................................ 23 2.5.7 Limit for hedge trimmers ................................................................................................................... 24 2.5.8 Limit for chainsaws............................................................................................................................ 24 2.5.9 Comparison of existing Australian and EU limits.............................................................................. 24 2.5.10 Staged approach to introducing amended EU Noise Directive limits ........................................................ 26 2.6 Noise level test procedures for portable articles ..................................................................................... 26 3.0 Regulatory Options................................................................................................................................. 27 3.1 Australia.................................................................................................................................................. 28 3.1.1 National Environment Protection Measure ........................................................................................ 28 3.1.2 Commonwealth legislation ................................................................................................................ 29 3.1.3 Mirror legislation ............................................................................................................................... 30 3.1.4 Referral of powers.............................................................................................................................. 31 3.2 New Zealand........................................................................................................................................... 32 4.0 Compliance............................................................................................................................................. 32 4.1 Noise Measurement Uncertainties .......................................................................................................... 32

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4.2 Compliance Testing Sampling and Tolerance Margin............................................................................ 33 4.3 Maintenance of conformity..................................................................................................................... 34 4.4 Enforcement............................................................................................................................................ 34 4.5 Proposed offences and penalties ............................................................................................................ 35 4.5.1 Specific offences under the noise labelling and limit scheme............................................................ 36 5.0 Regulatory Impact Statement.................................................................................................................. 37 6.0 Additional Work to be Undertaken if RIS Supports Introduction of ANZ Scheme ............................... 37 6.1 Scheme Website...................................................................................................................................... 37 6.2 Mandatory posting of noise levels of articles on a website..................................................................... 38 6.3 Scheme Education Program.................................................................................................................... 38 Appendix 1: Regulatory Approaches to Neighbourhood Noise Issues in Jurisdictions ........................................ 39 Appendix 2: List of Organisations for Preliminary Industry Consultation ........................................................... 42 Appendix 3: European Union Noise Label ........................................................................................................... 43

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Summary

This paper investigates issues around the development of an Australian and New Zealand Noise Labelling and Limit scheme for certain portable equipment. The principal recommendations for portable equipment are that:

1. The ANZ noise labelling and limit scheme adopt the EU Noise Directive definitions for “lawn mowers”, “leaf blowers”, “leaf collectors”, “brush cutters”, “hedge trimmers”, “internal combustion engine grass trimmer/grass edge trimmer”, “electric motor lawn trimmer/lawn edge trimmer” and “chainsaws” and any new definitions for these articles as they come into force through amendments to the EU Noise Directive.

2. The ANZ noise labelling and limit scheme adopt the EU Noise Directive approach by using sound power levels (LWA) when specifying any labelling and limit requirements.

3. The ANZ noise labelling and limit scheme adopt the EU Noise Directive approach to multiple use equipment subject to verification that it addresses the following requirements:

a. equipment is tested in any configuration that results in it falling into any of the definitions used in the ANZ noise labelling and limit scheme;

b. any limits relevant to any configuration are met;

c. each attachment is labelled noting the highest sound power level possible for the equipment with that attachment; and

d. all of the levels for each configuration are noted in sales material and in an owner’s manual.

4. The ANZ noise labelling and limit scheme adopt the EU Noise Directive labelling requirements for portable articles.

5. The ANZ noise labelling and limit scheme adopt the EU Noise Directive noise limits for portable articles as follows:

a. the current EU Noise Directive cutting widths and limits for lawn mowers;

b. the current EU Noise Directive limits for electric motor lawn trimmer/lawn edge trimmers and adopt any revised limit for these articles as they come into force through amendments to the EU Noise Directive and any EU Noise Directive limit for internal combustion engine grass trimmers/grass edge trimmers as they come into force through amendments to the EU Noise Directive;

c. any EU Noise Directive limits for leaf blowers, leaf collectors, brush cutters and hedge trimmers as they come into force through amendments to the EU Noise Directive;

d. any EU Noise Directive noise limits for portable chainsaws as they come into force through the amendments to the EU Noise Directive; and

e. the test procedures for portable equipment and any revised test procedures approved through amendments to the EU Noise Directive.

6. The ANZ noise labelling and limit scheme make provision for the following broad categories of offence:

a. article not labelled,

b. noise label with incorrect format,

c. tampering with noise label,

d. misleading level on noise label,

e. noise level above prescribed limit, and

f. failing to assist or obstructing investigation.

7. That an appropriately qualified and experienced consultant be engaged to prepare a Consultation RIS to assess the relative merits of the different options for labelling and limits, proposed in this paper and that the consultant be funded in accordance with the NEPC cost sharing formula for Australia and New Zealand.

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Feedback from all jurisdictions on the recommendations will be taken into account prior to preparing the RIS for broad community consultation. Glossary ANZ – Australia/New Zealand DECC- Department of Environment and Climate Change DECCW – NSW Department of Environment, Climate Change and Water EGMF - European Garden Machinery Industry Federation EM – Electric Motor EPHC – Environment Protection and Heritage Council EU – European Union ICE – Internal Combustion Engine ISO – International Standards Organisation MEPS - Minimum Energy Performance Standard MRA - Mutual Recognition Act 1992 OPEA – Outdoor Power Equipment Association SPL – Sound Pressure Level SWL – Sound Power Level TTMRA - Trans-Tasman Mutual Recognition Arrangement 1997 WELS – Water Efficiency and Labelling Standards

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1.0 Background 1.1 Environment Protection and Heritage Council In April 2008 the Environment Protection and Heritage Council (EPHC) agreed to form a Working Group to scope a consistent noise labelling scheme for noisy domestic articles. It was agreed that a staged approach would be adopted to test the merits of the scheme on a small range of articles in the first instance and, if this is successful, the scheme could be widened to cover other articles known to cause noise nuisance. In November 2008 the Council agreed to investigate the following articles for stage one of the proposed Australian and New Zealand (ANZ) noise labelling scheme: Fixed articles: domestic air conditioners and domestic heat pump water heaters Portable articles: lawn mowers (including ride-on mowers), leaf blowers, leaf collectors, line trimmers, brush cutters, lawn edgers, hedge trimmers and chainsaws. Articles were included in stage one if they are commonly used outdoors in residential areas, are relatively noisy, and labelling would be a straight forward and effective mechanism to reduce their noise nuisance. The Council also agreed to investigate the potential for setting maximum noise limits for portable articles. The establishment of an ANZ noise labelling and limit scheme for these fixed and portable articles satisfied the Council filter criteria for national environment issues on a range of fronts. As these articles are available throughout Australia and New Zealand, noise from these articles is not a single jurisdictional problem. Furthermore, government regulation is required as there is no evidence that market forces alone will promote the uptake of quieter technology. In September 2009 the Environment Protection and Heritage Standing Committee (EPHSC) agreed that the ANZ Noise Labelling and Limit Scheme should be based on the European Union (EU) Noise Directive and that lawn edgers and heat pump water heaters should not be included in stage one of the ANZ scheme as they are not covered by the noise labelling requirements in Europe. The Committee also agreed to engage an acoustical consultant to recommend test procedures that could be used to verify the accuracy of noise labels for air conditioners, which are also not covered by the EU scheme. 1.2 Benefits of Noise Labelling Neighbourhood noise is a serious environmental amenity issue that affects many in the community. The Guidelines for Community Noise published by the World Health Organisation (1999)1 and The Health Effects of Environmental Noise – Other than Hearing Loss published by enHealth Council (2004)2 identify the significant health effects of exposure to environmental noise. Noise nuisance can cause annoyance, stress and sleep disturbance and in some cases escalate into serious confrontations within neighbourhoods. The management of these issues can absorb significant private and public resources. Some of this noise comes from noisy household items such portable garden equipment including leaf blowers. Noise labelling of these articles would assist consumers to select quieter models and to identify equipment appropriate to particular applications. As well as providing consumers with information to make informed choices, the test procedures incorporated into any labelling scheme will provide more certainty that manufacturer’s claims about noise levels are reliable. Noise labelling may also encourage suppliers to manufacture, import or sell quieter articles as some companies may use this as a marketing advantage and competition could drive down noise levels over time. An enforceable labelling scheme will enable jurisdictions to more readily impose restrictions they consider appropriate for particular equipment in their particular circumstances. Providing readily accessible reliable and consistent noise level information, coupled with the use of appropriate guidance material, should facilitate selection of appropriate equipment, minimise complaints and streamline the use of resource intensive compliance activities by enforcement agencies.

1 http://www.who.int/docstore/peh/noise/guidelines2.html 2 http://enhealth.nphp.gov.au/council/pubs/pdf/noise.pdf

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1.3 Benefits of Mandatory Maximum Noise Limits

Setting mandatory maximum noise limits for portable equipment makes it clear to manufacturers that products must not exceed a certain limit and puts an absolute ceiling on noise from these articles no matter where they are used. There are no nationwide requirements in the United States or Canada. The US leaves the regulation of this equipment to individual states and counties. Due to public pressure, many counties in California have applied a total ban on the use of leaf blowers. This can be a divisive issue in communities and bans are generally strongly opposed by professional gardeners. Having a limit to prevent the sale and use of excessively noisy equipment is a compromise. A number of cities in the US have noise limits for leaf blowers. For example the City of Portland Oregon recently introduced noise limits for leaf blowers in use, and lists those models that may be used in that jurisdiction on its website. Refer to http://www.portlandonline.com/bds/index.cfm?a=118533&c=42438. (Note: 31 dB(A) needs to be added to the sound pressure levels on these webpages to convert them to approximate sound power levels for comparison purposes.)

The EU requires manufacturers to ensure that limits are met for 22 of the 57 articles covered by the EU noise labelling and limit scheme. The current NSW scheme includes mandatory maximum noise limits for certain portable garden equipment at the point of sale. The current Tasmanian scheme applies mandatory maximum noise limits for lawn mowers and chainsaws when in use. The NSW State Pollution Control Commission Annual Report 1985-86 demonstrated that the NSW limits for lawn mowers reduced the average sound pressure level of noise from domestic lawn mowers in NSW, when measured at 7.5 metres, from 83 dB(A) in the late 1970s to below 75 dB(A) by the mid 1980s. Setting limits for articles with European Union (EU) limits would assist in addressing externalities not dealt with by the market (i.e. the noise pollution from substandard excessively noisy products) and ensure that Australia and New Zealand do not become a “dumping ground” for noisy equipment that cannot be sold in Europe. Because of the relatively high noise levels emitted by portable garden equipment, those jurisdictions in Australia and New Zealand that set maximum noise levels for neighbourhoods in their planning controls exempt portable gardening equipment on the basis that it is only used for a short duration. Specifying noise limits to prevent the sale of particularly noisy portable garden equipment would assist to reduce noise impacts from the exempt equipment/activities. 1.4 Support for Noise Labelling and Limits The Health Effects of Environmental Noise – Other than Hearing Loss published by enHealth Council (2004) recommended that agencies “consider the need for a mandatory national standard for noise labelling equipment.” The Australian Consumers’ Association supports product labelling as a way of giving consumers information on which to base an informed choice. The Outdoor Power Equipment Association of Australia (OPEA) supports labelling and limits for portable equipment provided any requirements are consistent with those in the EU. 1.5 Advantage of an Australian/New Zealand Scheme The Mutual Recognition Act 1992 (MRA) and Trans-Tasman Mutual Recognition Arrangement 1997 (TTMRA) limit the effectiveness of any individual jurisdictional schemes. Briefly, these instruments mean that single jurisdictional labelling and limit provisions cannot be enforced against the sale of goods that are:

manufactured in a jurisdiction that does not have equivalent provisions, or

imported from overseas into a jurisdiction that does not have equivalent provisions and then transported into a jurisdiction with the provisions.

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It is understood that due to enforcement issues related to the Mutual Recognition Act, the noise labelling requirements in the Queensland Environmental Protection (Noise) Policy 1997 where removed at the beginning of 2009. An Australian and New Zealand region-wide approach is required to enable any noise labelling and limit requirements to be enforced effectively. This approach would also support economic integration and provide a level playing field to industry. 1.6 Limitations of Relying on Collateral Benefits Many jurisdictions that do not have noise labelling and limit requirements receive collateral benefits from those that have these requirements. For example:

The OPEA has noted that NSW has about 30% of the Australian market share and importers often do not know what State or Territory the product will eventually be sold in. Historically, only product that meets the NSW limits has been imported for all States/Territories and this has often been labelled in accordance with the NSW scheme.

The Tasmanian Department of Environment, Parks, Heritage and the Arts has noted that the

presence of NSW labels on equipment sold in Tasmania has probably assisted with the management of noise issues in that State.

The New Zealand Ministry for the Environment has noted that “A survey of a range of household

appliances on sale found that many had labels attached to them indicating the noise levels they reached.”

Relying on labelling and limit provisions imposed in other jurisdictions without making them enforceable is not sustainable and significant advances made in the Australian and New Zealand region since the 1980s may be lost if a region-wide scheme is not adopted. Due to the complications posed by the MRA and TTMRA, enforcement of the NSW requirements is problematic and there is evidence that unlabelled and noisy product is increasingly creeping into the market. Relying on EU requirements without making them enforceable in the region is not sufficient as there is no mechanism to prevent substandard noisy product that does not meet EU requirements from being dumped onto the Australian and New Zealand market. 1.7 World Trade Organisation Technical Barriers to Trade

The World Trade Organisation (WTO) is the international organisation dealing with the global rules of trade between nations. Its main function is to ensure that trade flows as smoothly, predictably and freely as possible. The WTO Agreement on Technical Barriers to Trade (TBT), sometimes referred to as the Standards Code, aims to reduce impediments to trade resulting from differences between national regulations and standards. The TBT Agreement obliges members to ensure that technical regulations, voluntary standards and conformity assessment procedures do not create unnecessary obstacles to trade. The TBT Agreement recognizes the important contribution that international standards can make to improving efficiency of production and facilitating international trade and aims at the international harmonization of standards. The Code of Good Practice within the TBT Agreement says standardising bodies should use international standards as a basis for standards they develop.

The small engine exhaust gas standards, based on the relevant EU and United States standards, being considered for adoption by the Council are similar to the noise limit requirements within the proposed ANZ scheme and it has not been determined that these are in conflict with the TBT Agreement. The EU Noise Directive recommended as the basis for labelling and limits for portable equipment within the ANZ scheme has not been found to be in conflict with the TBT Agreement.

1.8 Overseas Regulations The overwhelming majority of portable equipment sold in Australia and New Zealand (of the kind identified for inclusion in the proposed scheme) is imported. Therefore it is highly desirable that any regulation of the noise emissions from this equipment is consistent with that in force in global markets. As relevant requirements are not in force in Asia, the key markets of importance are North America and Europe. During the industry consultation, the OPEA (the key industry association for portable garden equipment in Australia) supported adopting the EU approach. Adopting the EU standards and making them enforceable in the Australian and New Zealand region is an option worthy of consideration. Equipment certified and labelled for use in the EU market could be sold in

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Australia and New Zealand without the need for additional certification or labelling which would significantly reduce compliance costs. Given the relatively small size of the Australian and New Zealand market, introducing specific requirements for portable equipment inconsistent with those in Europe would be inefficient and result in higher costs. 1.9 European Union Outdoor Noise Directive 2000/14/EX The EU Outdoor Noise Directive 2000/14/EX (hereafter referred to as the EU Noise Directive) applies to mobile machinery for the whole EU. Fifty seven types of equipment, ranging from heavy earth moving machinery to leaf blowers are currently covered. Thirty five products subject to Article 13 require noise labelling only and 22 products subject to Article 12 require noise labelling and limits (maximum permissible sound power levels). The Directive includes noise testing procedures for each item and the noise levels for all equipment subject to the scheme are listed on the EU website3. 1.9.1 Practical limits The Article 12 limits are intended to represent the current state of the art in noise reduction and balance overall product characteristics such as cutting performance, size, weight, safety, exhaust gas emissions and costs. For example, limits have not been adopted where the main source of noise is not engine noise but the cutting process which cannot be reduced with current technology. Achieving lower noise levels by governing engine revolutions has also not been required where it would result in machines being significantly less efficient and therefore operated for longer periods to achieve the same work. 1.9.2 Continuous improvement Because noise limits may have a significant impact on small to medium sized enterprises, due to research and development expenses, the EU Noise Directive has been carefully crafted to minimise potential adverse impacts on these enterprises. The approach is to progressively reduce noise limits and two phases have been introduced to date:

one in 2003, and one in 2006.

Most products in the scheme are subject to Article 13 (labelling only) for several years while data is collected to facilitate the application of appropriate limits. Products may then be made subject to Article 12 (labelling and limits) and the aim is to then review and tighten limits as necessary. This process ensures continuous noise reduction while limiting the burden on industry and markets. The EU Noise Directive has been undergoing extensive review for the past three years, involving a technical study and impact assessment. Proposed noise limits have been assessed in relation to any safety and exhaust gas emission requirements. A position paper prepared by the EU Working Group on Outdoor Equipment was put to the European Commission in October 2009. The Commission finalised its position on maximum noise limits in February 2010. It is currently proposed that some test procedures will be updated and a number of Article 13 products not currently subject to limits will be moved to Article 12. These include leaf blowers, leaf collectors, line trimmers, brush cutters, hedge trimmers and chainsaws. The limits will be introduced in two successive stages, spaced four years apart with the limits in the second stage being one or two decibels lower than the first stage. The Commission has not finalised its approach to conformity assessment procedures as issues around the statistical safety factors to be applied to ensure sampling is representative when articles are tested are still being resolved. It is currently anticipated that the Commission will present the complete proposed amendments to the European Council and Parliament by mid 2010. 1.9.3 Role of industry The European Garden Machinery Industry Federation (EGMF) represents the interests of 14 European manufacturers and four national associations from France, Germany, Italy and the UK which represent many small to medium sized enterprises.

3 http://ec.europa.eu/enterprise/mechan_equipment/noise/index.htm

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The member companies represent around 75% of the European market for portable equipment and the EGMF plays an active role in the EU Noise Directive amendment process. Many of the companies that are represented in the EGMF are represented by the Australian Outdoor Power Equipment Association (OPEA). Both of these organisations support a globally harmonised approach to noise legislation to stimulate free movement of goods and ensure equivalent levels of technical standards worldwide. 1.9.4 Harmonising with EU Noise Directive The EGMF supports implementation and enforcement of the current EU Noise Directive in Australia and New Zealand as an initial step and then, as a second step, harmonisation with the amended version of the EU Noise Directive. The EGMF proposes that to enable manufacturers to avoid the financial burden of double testing and certification, the ANZ noise labelling and limit scheme accept the principle of self declaration for products subject to noise labelling and noise limits and recognise test certificates for noise testing from European Notified Bodies. The EGMF has noted that the advantages of adopting the EU requirements include avoiding the potential for any higher prices that could result from an ANZ noise labelling and limit scheme applying different labelling requirements or more stringent noise limits. The free movement of goods would be supported and Australia and New Zealand would also benefit from any future development of EU noise legislation. The EU noise limits have also been designed to work with the EU exhaust gas emission requirements currently being investigated for adoption by the Council. 1.10 Alternatives to Labelling and Limits The following provides a brief discussion of the alternatives to mandatory labelling and limits identified to date. 1.10.1 No testing or labelling requirements If limited or unreliable information continues to be available, the community will continue to be impacted unnecessarily by excessively noisy articles and enforcement agencies will continue to be confronted with resource intensive compliance issues. Information on labels or within specifications may not be reliable as, for example, it may be established using substandard testing methodologies. It is also unlikely information would be standardised as it may refer to either sound power levels or sound pressure levels measured at different distances. This would make it difficult for the community to have any confidence in the information provided. 1.10.2 Voluntary testing and labelling A voluntary approach would not ensure that relevant information is always available to consumers for all brands. Those reputable companies that do research quieter technologies and or label accurately would be unfairly disadvantaged as they would bear the cost of research, measurement, labelling processes etc, while competitors who manufacture noisy products would be able to maintain lower prices that would be more attractive in the market place. The OPEA does not support a voluntary approach. 1.10.3 Mandatory testing and noting of levels in specifications An alternative system could be to require levels to be measured in accordance with specified test procedures but rather than provided on labels, the information could be required to be within the equipment specifications. However, relevant information may be difficult to find and specifications may not be provided for some equipment, as it is not mandatory to provide these. 1.10.4 Mandatory testing and noting of levels on websites Another system could be to require levels to be measured and provided on a website rather than labels. However, information on the web is not generally available at the point of sale when consumers are making decisions about their purchases and not everyone conducts research on the web before making a purchase or has access to the web or is comfortable using it. As the labelling of equipment would make the relevant information accessible to all, both labelling and posting information on a website could be an optimum outcome.

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1.10.5 Education An education campaign on its own may be effective for certain sectors of the community but costs or regulatory requirements may remain the principal consideration for other sectors. However, education could be very effective when coupled with a mandatory scheme. (See Section 6.3) 1.11 Existing Regulatory Approaches to Neighbourhood Noise The various jurisdictions in Australia and New Zealand have a range of regulatory approaches to neighbourhood noise and a summary of these, as provided by the various jurisdictions, is presented in Appendix 1. An analysis of all of the approaches indicates that any region wide labelling or limit requirements would not be inconsistent with any of the existing regulatory approaches in any of the jurisdictions and would assist in protecting amenity in each jurisdiction. As noted above, because of the relatively high noise levels emitted by portable garden equipment, those jurisdictions in Australia and New Zealand that set maximum noise levels for neighbourhoods in their planning controls exempt portable gardening equipment on the basis that it is only used for a short duration. Specifying noise limits to prevent the sale of particularly noisy portable garden equipment would assist to reduce noise impacts from the exempt equipment/activities. 1.12 Staged Approach The EPHC agreed that a staged approach would be adopted to test the merits of the ANZ noise labelling and limit scheme on a small range of articles in the first instance and, if this is successful, the scheme could be widened to cover other articles known to cause noise nuisance. It is proposed that investigations regarding stage two of the ANZ noise labelling and limit scheme would commence about five years after the commencement of stage one. As any changes would probably take around two years to implement, this timeframe would dovetail well with the seven yearly reviews scheduled for the EU Noise Directive. It is proposed that the ANZ noise labelling and limit scheme for portable articles adopt the requirements of the EU Noise Directive. The EU Noise Directive is scheduled for review every seven years and the current review process has resulted in an amendment which is introducing limits for a number of portable articles that are currently only required to be labelled. It is proposed that stage one of the ANZ noise labelling and limit scheme adopt these limits as they come into force. The implications of any future amendments to the EU Noise Directive for portable articles included within stage one of the ANZ scheme can be assessed before they are adopted. Stage two of our scheme could also investigate the inclusion of additional portable articles, such as pavement breakers and mobile air compressors. 1.13 Australian Labelling Standards Australian Standard AS3781-1990 “Acoustics – Noise labelling of machinery and equipment” is “identical with and reproduced from” ISO 4871-1984 “Acoustics – Noise labelling of machinery and equipment” and applies to machinery and equipment which is essentially stationary in nature. As the portable equipment subject to the ANZ noise labelling and limit scheme is, by definition, not “machinery and equipment which is essentially stationary in nature”, the labels for these articles do not need to meet the requirements within this standard. It is proposed in Section 2.3 that labels for portable equipment should meet the requirements within the EU Noise Directive which is based on a number of ISO standards. 1.14 Preliminary Industry Consultation To focus discussion on the development of a workable scheme, NSW Department of Environment, Climate Change and Water (DECCW) conducted preliminary industry consultation on behalf of the Noise Labelling Scheme Working Group from March to May 2009. Relevant industry associations, local manufacturers and a selection of manufacturers that import into Australia/New Zealand were provided with preliminary consultation papers and invited to participate in targeted consultation. A complete list of the organisations consulted is provided at Appendix 2. Separate consultation papers were prepared for:

lawn mowers; portable hand held garden equipment (leaf blowers, leaf collectors, line trimmers, brush cutters, lawn edgers and hedge trimmers); and

chainsaws.

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Advice was received from the key Australian industry association - the Outdoor Power Equipment Association (OPEA). The OPEA was supportive of both labelling and limits for this equipment provided any requirements are harmonised with those in the EU Noise Directive. Additional specific comments are noted within the relevant sections below. No comment was received from other organisations. 1.15 Market Background on Portable Articles Portable articles investigated for inclusion within stage one of the scheme were lawn mowers, hand held garden equipment (leaf blowers, leaf collectors, line trimmers, brush cutters, lawn edgers and hedge trimmers) and chainsaws. All of this equipment is either commonly used or may be used in domestic situations and has the potential to cause a noise nuisance. A decision was taken in September 2009 to exclude lawn edgers. For Australia, the OPEA figures for 2007-08 indicate that over 1.2 million of these articles were sold in the 2007-08 financial year, made up of the following:

lawn mowers - 52,000 ride on mowers and about 420,000 rotary mowers (including about 280,000 rotary mowers imported from China)

hand held garden equipment – about 600,000 articles (including about 310,000 line trimmers and brush cutters imported from China but not including leaf blowers and leaf collectors imported from China which would likely be an additional several hundred thousand)

chainsaws – 140,000 articles (does not include electric models or articles imported from China). A large proportion of the approximately 140,000 rotary mowers sold in Australia annually that are not imported from China are manufactured in Australia by Victa (owned by Briggs and Stratton Corporation). These lawn mowers are mainly fitted with imported four stroke Briggs and Stratton, Tecumseh or Honda engines. A proportion is fitted with two stroke engines made in South Australia. Victa also manufactures small volumes of leaf blowers/collectors and line trimmers. Rover lawn mowers previously manufactured in Queensland are now manufactured in China. About 60 per cent of the articles imported into Australia come from Asia and the remainder is primarily imported from Europe and North and South America. Steelfort Manufacturing in New Zealand produce about 7,000 lawn mowers per year and a small proportion of these are exported to Australia. Masport and Morrison lawn mowers previously manufactured in New Zealand are now manufactured in China. About 10,000 lawn mowers manufactured by Victa in Australia are exported to New Zealand each year. 1.16 Extent of Noise Nuisance from Portable Articles The extent of portable powered equipment noise nuisance is illustrated by the following: For Australia, the OPEA figures for 2007-08 indicate that over 1.2 million articles subject to the

proposed scheme were sold in the 2007-08 financial year. The 2004 “Neighbourhood Noise Survey Results”, prepared for NSW DECC indicates that about

14.72% of those surveyed were “a little annoyed” or worse by noise from portable garden equipment. This equates to more than one million people being annoyed by this equipment in NSW.

The 2004 NSW Neighbourhood Noise Survey Results indicate that 14.7% of those surveyed were annoyed by noise from powered garden tools.

Of the 227 submissions received by DECC during the 2007 review of the NSW Noise Control Regulation:

o about 17% sought increased noise controls on leaf blowers; and o nearly 20% sought increased noise controls on power tools generally.

The submission from the Lord Mayor of Sydney noted that “Noise issues can take up a significant proportion of councils' time” and that “Council rangers and police also have broader priorities” and requested that DECC “Introduce a system of labelling requirements for the sale of leaf blowers and introduce restrictions on models that exceed specified noise levels”.

A number of articles and letters have appeared in the press in recent years about the noise impacts of leaf blowers – for example:

o a Sydney Morning Herald article “Leaf blowers beat new law’” dated 25 October 2007 o a Sydney Daily Telegraph article “Tough laws target noise and pesky leaf blowers’ days are

numbered” dated 1 March 2008; and o a Sydney Morning Herald letter “Curse of the leaf blower” dated 10 October 2008.

In 2010 DECCW received a letter from the Australian Institute of Local Government Rangers noting a growing number of complaints about leaf blowers.

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Noise limits on lawn mowers were introduced in NSW in 1982 in response to community pressure for quieter models to protect amenity on weekends.

In response to community pressure to protect amenity, Tasmania applies maximum permitted noise levels to chainsaws when in use.

The 2006 “Community Noise Survey” prepared on behalf of the WA Department of Environment and Conservation (DEC) notes that 12.7% of those surveyed considered portable gardening equipment noise to be annoying and the survey found it to be a significantly more annoying noise than rubbish trucks and street sweepers, air conditioners, trains, industrial activity, commercial activity and boats. The survey discussion paper notes that “local government complaint records are underestimating the number of people affected by noise”.

Based on the WA DEC “Local Government Noise Complaints Survey Report” 2006 and “Community Noise Survey” 2006, it is estimated that approximately 2300 people are annoyed by portable household equipment noise for every person that complains.

Because of the relatively high noise levels emitted by portable garden equipment, those jurisdictions that set maximum noise levels for neighbourhoods in their legislation have to exempt this equipment on the basis that it is only used for a short duration.

In the USA, a number of counties apply maximum permitted noise levels to leaf blowers when in use and a number ban the use of leaf blowers altogether.

The EU Noise Directive requires labelling for portable equipment, includes noise limits for lawn mowers and electric hand held gardening equipment and the proposed amendment include limits for leaf blowers, leaf collectors, line trimmers, brush cutters, hedge trimmers and chainsaws.

The European Commission’s “Impact Assessment Study on possible policy options for reviewing the Outdoor Equipment Noise Directive – Final Report” January 2009 notes that for gardening equipment:

o “Households bear most of the costs but also receive the benefits in terms of reduced annoyance, especially during leisure time.”

o “Noise related annoyance is increasingly recognised as an important public health problem. Noise is a psycho-social stress factor for anyone. With children, noise induced annoyance seems to affect the respiratory system, caused by emotional stress. For the elderly, annoyance has been identified as increasing the risk for stroke”.

o “Noise mitigation for gardening equipment can positively influence neighbourhood relations given that related noise or private gardening equipment is notorious especially in residential areas and allotment gardens.”

2.0 Technical Issues 2.1 Definitions for portable articles For the purposes of the NSW labelling scheme, the NSW Protection of the Environment Operations (Noise Control) Regulation 2008 defines a grass cutting machine as a machine that: is:

“designed principally for the purpose of cutting grass or other soft undergrowth and is powered by a motor, but does not include electrically powered shears with a cutting width of less than 120 millimetres”.

The Regulation refers to grass cutting machines as mowers, ride-on mowers, edge-cutters, string trimmers, brush cutters and other grass cutting machines. The current EU Noise Directive definitions were assessed by the Noise Labelling Working Group. In order to standardise these definitions, the Working Group considered replacing the word “engine” in the EU definitions for line trimmers and brush cutters with the word “powered”, as the majority of the EU definitions simply use the word “powered”. This would result in both internal combustion engine (ICE) and electric motor (EM) models being dealt with equitably. The amended EU Noise Directive proposes to introduce limits for a number of additional articles with ICE and EM models having different limits. This is because for ICE models, noise sources include the combustion engine itself as well as the air intake and exhaust system, while for EM models these sources are not present. It is understood that the amended EU Noise Directive will introduce a number of new definitions, including covering leaf blowers and leaf collectors with a single definition, and including line trimmers (EU Noise Directive: “grass trimmers”) and brush cutters within a single definition. The definitions that will result from the amended EU Noise Directive have not been fully resolved. They were agreed to by the EU Working Group in February 2010 and will be presented to the EU Parliament in June 2010.

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In order to align the requirements for portable articles within the ANZ noise labelling scheme with the EU Noise Directive, and facilitate industry acceptance, adoption and compliance, it is recommended that the current EU Noise Directive definitions be adopted by the ANZ scheme in the first instance. Once the amended EU Noise Directive definitions have been finalised, these should be adopted unless a significant issue with these definitions is noted. Industry has indicated that deviating from the EU approach would result in significant additional costs to them and consumers for no worthwhile gain. 2.1.1 Definition for lawnmower The EU definition is fairly extensive and includes ride on mowers and both ICE and EM models but excludes agricultural, forestry and multipurpose devices with a power source greater than 20 kW. The definition refers to:

“a powered walk-behind or ride-on grass cutting machine or a powered machine with grass-cutting attachment(s) where the cutting device operates in a plane approximately parallel to the ground and which uses the ground to determine the height of cut by means of wheels, air cushion or skids, etc. The cutting devices are: either rigid cutting elements or non-metallic filament line(s) or freely pivoting non-metallic cutter(s) with a kinetic energy of more than 10 J each; the kinetic energy is determined using EN 786:1997, Annex B.

Lawnmowers also means a powered walk-behind or ride-on grass cutting machine or a powered machine with grass-cutting attachment(s) where the cutting device is rotating about a horizontal axis to provide a shearing action with a stationary cutter bar or knife (cylinder mower).” Self-propelled machines or vehicles with an operator which are primarily designed for cutting grass and auxiliary garden work are not considered as multi-purpose devices even if they can be fitted with attachments. The following machines are excluded:

agricultural and forestry equipment on which attachments may be installed; agricultural and forestry equipment designed for cutting grass; (called mowers if they are

non-powered attachments, motor mowers if they are powered equipment). multi-purpose devices which are used with different type of attachments having its main motorised component with an installed power of more than 20 kW.”

Adoption of the EU definition will ensure the ANZ scheme is aligned with the EU Noise Directive. 2.1.2 Definition for leaf blower The NSW Noise Control Regulation refers to these articles as:

“a powered garden tool (that is a tool powered by a petrol engine or electric motor) including a blower or sweeper”.

The EU Noise Directive definition refers to leaf blowers as:

“a powered machine appropriate to clear lawns, paths, ways, streets, etc. of leaves and other material by means of a high velocity air flow. It may be portable (hand-held) or not portable but mobile.”

No mention is made of the power source in this definition, and it therefore covers articles powered by either ICE or EM. However, the amended EU Noise Directive currently proposes to combine leaf blowers and leaf collectors within the same definition. The amended EU Noise Directive also proposes a different limit for ICE and EM models and therefore the amendment may have different definitions for ICE and EM models. Adoption of the EU definitions will ensure the ANZ scheme is aligned with the EU Noise Directive.

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2.1.3 Definition for leaf collector These articles are sometimes known as leaf vacs and consideration was given to adopting this term. The EU Noise Directive refers to leaf collectors as:

“a powered machine suitable for collecting leaves and other debris using a suction device consisting of a power source which produces a vacuum inside the machine and a suction nozzle and a container for the collected material. It may be portable (hand-held) or not portable but mobile.”

No mention is made of the power source in this definition, and it therefore covers articles powered by either ICE or EM. However, the amended EU Noise Directive currently proposes to combine leaf collectors and leaf blowers within the same definition. The amended EU Noise Directive also proposes a different limit for ICE and EM models and therefore the amendment may have different definitions for ICE and EM models. Adoption of the EU definitions will ensure the ANZ scheme is aligned with the EU Noise Directive. 2.1.4 Definition for line trimmer The NSW Noise Control Regulation refers to these articles as “string-trimmers”. In Australia they are commonly known as “line trimmers” or colloquially as “whipper snippers”. The relevant EU Noise Directive definition is for:

“grass trimmer/grass edge trimmer” and this essentially refers to a “combustion-engine driven portable hand-held unit fitted with flexible line(s), string(s), or similar non-metallic flexible cutting elements, such as pivoting cutters, intended to cut weeds, grass or similar soft vegetation. The cutting device operates in a plane approximately parallel (grass trimmer) or perpendicular (grass edge trimmer) to the ground.”

This definition does not include EM line trimmers which are covered in a separate category for electrically powered articles termed “Lawn trimmer/lawn edge trimmer”. This definition refers to:

“an electrically powered walk-behind or hand-held grass cutting machine with cutting element(s) of non-metallic filament line(s) or freely pivoting non-metallic cutters with a kinetic energy of not more than 10 J each, intended to cut grass or similar soft vegetation. The cutting element(s) operate(s) in a plane approximately parallel (lawn trimmer) or perpendicular (lawn edge trimmer) to the ground. The kinetic energy is determined using EN 786:199.”

Industry has noted that large line trimmers (EU: grass trimmers/grass edge trimmer) are used for forestry and highway service purposes with limited annoyance to the public and that the noise level is dominated by the tool (especially for plastic tools), so the noise level cannot be reduced. Industry has also noted that smaller line trimmers commonly used in residential areas are increasingly EM models plugged into mains power and the availability of more effective lithium batteries is resulting in these articles being increasingly battery powered. Industry wants the ANZ scheme to be consistent with the EU Noise Directive which for historical reasons deals with EM articles separately. The amended EU Noise Directive currently proposes that grass trimmer/grass edge trimmers and brush cutters be covered by a single definition. 2.1.5 Definition for brush cutter The NSW Noise Control Regulation refers to these articles as “brush cutters”. The relevant EU Noise Directive definition refers to:

“a combustion-engine driven portable hand-held unit fitted with a rotating blade made of metal or plastic intended to cut weeds, brush, small trees and similar vegetation. The cutting device operates in a plane approximately parallel to the ground.”

Industry has noted that there is no practical application or demand for EM models and therefore these are not covered within the definition. As with line trimmers, industry has noted that large brush cutters are used for forestry and highway service purposes with limited annoyance to the public and that the noise level is dominated by the tool (especially for plastic tools). Industry wants the ANZ scheme to be consistent with the EU Noise Directive and adopt the EU approach.

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The amended EU Noise Directive currently proposes that brush cutters and grass trimmer/grass edge trimmers be covered by a single definition. 2.1.6 Definition for hedge trimmer The NSW Noise Control Regulation does not refer specifically to these articles. The EU Noise Directive definition refers to:

“hand-held, integrally driven powered equipment which is designed for use by one operator for trimming hedges and bushes utilising one or more linear reciprocating cutter blades.”

No mention is made of the power source in this definition, and it therefore covers articles powered by either ICE or EM. However, the amended EU Noise Directive proposes limits for these articles which will be different for ICE and EM models and therefore the amendment may have different definitions for ICE and EM models. Adoption of the EU definitions will ensure the ANZ scheme is aligned with the EU Noise Directive. 2.1.7 Definition for chainsaw - portable The EU Noise Directive definition, which comes from ISO 531, refers to:

“Chain saw, portable” as “a power driven tool designed to cut wood with a saw chain and consisting of an integrated compact unit of handles, power source and cutting attachment, designed to be supported with two hands. Hydraulic or pneumatic devices with no integrated power source are excluded.”

No mention is made of the power source in this definition, and it therefore covers articles powered by either ICE or EM. The amended EU Noise Directive proposes limits for these articles which will be different for ICE and EM models and therefore the amendment may have different definitions for ICE and EM models. Adoption of the EU definitions will ensure the ANZ scheme is aligned with the EU Noise Directive. Recommendation:

1. That the ANZ noise labelling and limit scheme adopt the EU Noise Directive definitions for “lawn mowers”, “leaf blowers”, “leaf collectors”, “brush cutters”, “hedge trimmers”, “internal combustion engine grass trimmer/grass edge trimmer”, electric motor lawn trimmer/lawn edge trimmer” and “chainsaws” and any new definitions for these articles as they come into force through amendments to the EU Noise Directive. 2.2 Labels to Specify Sound Pressure Level or Sound Power Level A sound source radiates a certain amount of power into the surrounding air, which gives rise to sound pressure waves in the air. The logarithmic magnitude of these waves, referred to as the sound pressure level (SPL), may be measured at different distances from the source. For the SPL level noted on a label to be meaningful to the community, the label needs to indicate at what distance from the source the level occurs. For existing labelling schemes that use SPLs, these distances vary for different purposes and between different jurisdictions. For example, for portable equipment, the NSW environmental noise scheme uses SPLs at 7.5 metres, USA environmental noise systems use 50 feet and the proposed Australian occupational health and safety system uses two metres. For some air conditioners the SPL at one metre is used. For large mobile equipment, the NSW environmental noise scheme uses SPLs at 15 metres. The use of SPLs at varying distances from the source has the potential to confuse purchasers. The power a sound source radiates into the surrounding air is called the sound power level (LW). Because LWs cannot be measured directly, SPLs are generally measured at specific distances from the source and standard calculations are then used to determine the SWL at the source. The NSW and WA labelling schemes use LWs for air conditioners and the AIRAH on-line noise calculator, designed to prevent noise issues from inappropriate installation arising, is set up to work from LWs. The EU Noise Directive uses LWs for all portable and stationary equipment within that scheme. The LW is an absolute universally recognised parameter that is not dependant upon distances and can be used for ratings and to compare sound levels etc. If the SPL at a particular distance needs to be understood, this can easily be calculated from the LW.

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The international standard ISO 31-2:1992 “Quantities and units - Part 2: Periodic and related phenomena” and Australian standard AS2900.7-2002 “Quantities and Units Part 7: Acoustics” are consistent and require that the symbol for sound power level be “LW”. The Australian standard AS3781-1990 “Acoustics – Noise labelling of machinery and equipment”, which is relevant to fixed articles, requires that labels display the sound power level and that measurements be A-weighted and therefore sound power levels for labelling purposes be noted as “LWA”. Using the EU Noise Directive measurement system for portable articles within the proposed ANZ noise labelling and limit scheme would result in the scheme using “LWA” and this being noted on any labels. Using LWA would result in clear standard information that is understood by industry and more likely to be understood by the community. Industry responses to the preliminary consultation papers unanimously supported using LWAs. Recommendation:

2. That the ANZ noise labelling and limit scheme adopt the EU Noise Directive approach by using sound power levels (LWA) when specifying any labelling and limit requirements

2.3 Multiple use portable articles Some articles have multiple uses. Traditionally this has been the case for internal combustion engine line trimmers and brush cutters (which have interchangeable cutting devices) and some leaf blowers and leaf collectors which can be used in either configuration. More recently equipment has become available that can be fitted with a significant number of attachments. For example, one brand has three different engine components, with different power ratings, and nine different interchangeable attachments including a blower, edger, brush, sweeper, cropper, pruner, cultivator, cutter and trimmer. Multiple use articles need to be tested in any configuration that results in them falling under any of the product definitions under the ANZ scheme and the equipment required to meet any relevant limits otherwise a ‘loophole’ would exist through which articles that are particularly noisy in alternative configurations may become available in the market place The EGMF and OPEA have indicated that the EU Noise Directive is currently interpreted so that it requires the highest sound power level that may come from a particular attachment when fitted to any engine component to be noted on the attachment. Sections 1.7.4.2 and 1.7.4.3 of the amending EU Directive 2006/42/EC require all of the levels for each attachment when fitted to different engine components to be noted in instruction manuals and sales literature. The OPEA has also indicated that ISO 22868 “Forestry machinery - Noise test code for portable hand-held machines with internal combustion engine - Engineering method (Grade 2 accuracy)” is to be amended to reflect these requirements. In order to address the issues related to multiple use articles and align the ANZ noise labelling and limit scheme requirements with the intention of the EU Noise Directive, it will be necessary to ensure the following requirements are enforceable in Australia and New Zealand:

articles are tested in any configuration that results in the article falling into any of the definitions used in the ANZ noise labelling and limit scheme;

articles meet any limits relevant to any configuration; articles have each attachment labelled noting the highest sound power level possible for any

equipment with that attachment; and articles have all of the levels for each configuration noted in instruction manuals and sales

literature.

Once the EU Noise Directive amendment is finalised, it will be necessary to check that each of the points noted above is addressed.

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Recommendation: 3. The ANZ noise labelling and limit scheme adopt the EU Noise Directive approach to multiple use equipment subject to verification that it addresses the following requirements:

o equipment is tested in any configuration that results in it falling into any of the definitions used in the ANZ noise labelling and limit scheme;

o any limits relevant to any configuration are met; o each attachment is labelled noting the highest sound power level possible for the

equipment with that attachment; and o all of the levels for each configuration are noted in sales material and in an owner’s

manual.

2.3 Labelling format for portable articles The EU Noise Directive label for portable items etc is provided at Appendix 3. The size of the label needs to be minimal so it will fit on the equipment. For example, the EU Directive labelling system requires the proportion of labels to be 100 vertical by 90 horizontal and for the vertical to be not less than 40 mm. However, for equipment weighing less than 20 kg, the vertical dimension may be reduced to 20 mm. Labels need to be easily comprehended by members of the public, of a size that enables them to be fitted to the machinery and durable so that, as far as practicable, successive owners are aware of the noise level of the machine. Industry has noted that label durability requirements are well documented in current equipment standards. Recommendation: 4. The ANZ noise labelling and limit scheme adopt the EU Noise Directive labelling requirements for portable articles. 2.4 Current noise labelling of portable articles The following table provides a summary of the current Australian, New Zealand and EU Noise Directive labelling requirements for the portable equipment proposed for inclusion within the ANZ scheme. Table 1: Noise Labelling of Portable Articles

Portable Articles – Noise Labelling

Article

Australia New Zealand European Union

1. Lawn Mower NSW – Yes Other States - No

No Yes

2. Leaf Blower All States – No

No Yes

3. Leaf Collector All States – No

No Yes

4. Line Trimmer

NSW - Yes Other States - No

No Yes (covered under EU “grass trimmers” )

5. Brush Cutter NSW - Yes Other States – No

No Yes

6. Hedge Trimmer

All States - No No Yes

7. Chainsaw NSW – Yes Other States No

No Yes

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Preliminary research conducted at three retail outlets in the Sydney region in 2008 is summarised below: Lawn mowers: twelve brands noted - six had NSW labels and six were not labelled. Leaf blowers: twelve brands noted – five had EU labels and seven were not labelled Line trimmers: ten brands noted – three had NSW labels, four had EU labels and three were not

labelled Brush cutters: seven brands noted - two had NSW labels, four had EU labels and one had both Hedge trimmers: seven brands noted - one had EU label and six were not labelled Chainsaws: six brands noted - one had a NSW label, four had EU labels and one was not

labelled. Due to NSW and EU labelling requirements, labelling may also appear on some of these articles in other jurisdictions. Where noise level information is provided, there is no certainty as to how the levels were calculated, or whether the level stated reliably provides the level of the equipment. As either sound pressure levels or sound power levels may be noted on labels, this may also cause confusion in the market place. The OPEA has advised that one manufacturer noted that it costs between 10-15 cents per unit to fix a label at the point of production overseas. The OPEA has also indicated that these costs could be substantially higher for local manufacturers. For items imported without labels, each box must be opened and the label fixed in a warehouse and this substantially increases the costs to about $1.00 per unit. If NSW labels were no longer required and EU Noise Directive labels were adopted by the ANZ scheme, there could be a slight reduction in costs for those items imported with EU labels already fixed as each product box would no longer have to be opened and a NSW noise label fixed to each unit. 2.5 Noise limits NSW and Tasmania have noise limits for a number of portable articles and several USA cities and counties have included limits for leaf blowers and other equipment within their Ordinances. The EU Noise Directive currently has limits on 22 of the 57 articles within that scheme and it is proposed that the amended EU Noise Directive will include limits for additional equipment. Other jurisdictions may also have limits for certain equipment. 2.5.1 EU Noise Directive limits The EGMF and OPEA have noted that halving the noise energy emitted from a machine will reduce the sound power of the machine by only around three dB(A). Therefore in some cases a reduction of even one dB(A) may be a serious challenge for machine design. New exhaust gas emission technologies being employed to meet the exhaust emission standards currently applied in the EU (and currently proposed for adoption in Australia) result in higher noise emissions. For example, additional channels and ports in carburettors and higher efficiency of combustion, requiring additional cooling resulting in more open shrouds, leads to more airborne sound emissions. Also, as recent work around compliance of production has concluded that the variation between the sound power levels of individual machines within the same model is greater than previously understood, a “statistical safety factor” of around two to three dB(A) needs to be applied by manufacturers to account for the uncertainties around ensuring all of the machines of a particular model will meet the limit. Therefore the limits currently proposed for adoption in the EU Noise Directive amendment are not as tight as those originally proposed by the EU. However, application of the statistical safety factor means that for a particular model that is guaranteed to just meet the limit, the average machine will have a sound power level about two to three dB(A) less than the limit and some individual machines may range down to around four to six dB(A) less than the limit. Likewise, the sound power level of the average machine for a model that is guaranteed to be less than the limit will be even lower. The proposed new limits for leaf blowers, leaf collectors, line trimmers, brush cutters, hedge trimmers and chain saws will be introduced in Europe in two stages spaced four years apart with the second stage being one to two decibels lower than the first stage. Limits will also be introduced for electric products where a limit can be justified.

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The following Table provides a summary of the NSW, Tasmanian and EU Noise Directive limit requirements related to the portable equipment recommended for inclusion within stage one of the ANZ noise labelling and limit scheme.

Table 2: Summary of Limits for Portable Articles in Stage 1

Limits - dB(A)

Australia EU Noise Directive (SWL) Article Range of SWLs - dB(A)

(Levels have been obtained from the EU Noise Database)

SPL (at 7.5 m) Approx SWL Existing Currently Proposed Amendment

Lawn Mower (ICE and EM)

Cutting width: < 50 cm: approx 90 to 96 50 - 70 cm: approx 95 to 100 70 - 120 cm: approx 93 to 100 > 120 cm: approx 93 to 105

NSW – Cutting width: < 62 cm: 75 62 – 95 cm: 80 Ride-on: 80 Tasmania - Power level: < 5 kW: 74 > 5 kW: 77

100 105 105 99 102

Cutting width: < 50 cm: 96 50 – 70 cm: 98 70 - 120 cm: 100 >120 cm: 105

No change

Leaf Blower ICE EM

88 to 120 (ICE &EM)

All States - No

NA

No No

≤ 1.5 kW: stage 1: 108, stage 2: 106 > 1.5 kW: stage 1: 111, stage 2 109 107

Leaf Collector ICE EM

78 – 112 (ICE & EM)

All States - No

NA

No No

≤ 1.5 kW: stage 1: 108, stage 2: 106 > 1.5 kW: stage 1: 111, stage 2 109 107

Line trimmer EU - Grass trimmer (ICE) EU - Lawn trimmer (EM)

94 to 118 Cutting length: < 50 cm: approx 85 to 106 50 -70 cm: approx 100 to 105 70 - 120 cm: approx 98 to 105 > 120 cm: approx 84 to 113

NSW (ICE & EM) - 80 Other States - No

105

No Cutting length: < 50 cm: 94 50 – 70 cm: 98 70 - 120 cm: 98 > 120 cm: 103

≤ 1.5 kW: stage 1: 107 + 6.3 x kW, stage 2: 105 + 6.3 x kW > 1.5 kW: no limit Cutting length: < 30 cm: 95 and ≥ 30 cm: 96

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Brush cutter (ICE)

100 to 118 (ICE) NSW (ICE &EM) – 85 Other States - No

110 No ≤ 1.5 kW: stage 1: 107 + 6.3 x kW, stage 2: 105 + 6.3 x kW > 1.5 kW: no limit

Hedge Trimmer ICE EM

85 to 109 (ICE &EM)

All States – No

NA

No No

Stage 1: 110, stage 2: 108 Stage1: 100, stage 2: 99

Chainsaw ICE EM

99 to 118 (ICE & EM)

Tas - 95 Other States - No Tas – 77 Other states - No

120 102

No No

≤ 2.5 kW: stage 1: 112 + 2 x kW, stage 2: 111 + 2 x kW > 2.5 kW: stage 1: 114 + 2 x kW, stage 2: 113 + 2 x kW Stage 1: 102 + 4 x kW, stage 2: 100 + 4 x kW

Abbreviations: - SPL = sound pressure level - SWL = sound power level - ICE – internal combustion engine - EM – electric motor - kW = kilowatt Range of SWLs: - Figures have been sourced from the EU database: http://ec.europa.eu/enterprise/mechan_equipment/noise/citizen/index.htm - The ranges are for all equipment regardless of engine capacity. - For lawn mowers the figures provided are for what seem to be internal combustion engine models. It appears that electric models may have SWLs as low as 75 dB(A). -These ranges are not accurate and the amended EU Noise Directive will implement a penalty system to ensure data placed on the database by manufacturers is accurate in the future. - The levels currently noted on the database do not necessarily provide a good basis for determining limits. Conversion of NSW SPL limits to SWLs for comparison purposes: - Conversion formula is: SWL = SPL + 20logr + 11.0 – 10logD - Radius (r) = 7.5 m - Directivity (D) = 2 for a hemisphere - Therefore each SPL has had: 20log7.5 + 11.0 – 3 = 25.5 (i.e. approx 25) added to provide the approx SWL. Comparisons: - The test methods used in NSW and Tasmania are different from those used by the EU Noise Directive. - It is not possible to make a direct comparison between the NSW/Tasmanian and EU Noise Directive sound power levels noted in the table.

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2.5.2 Limit for lawn mowers NSW negotiated maximum point of sale noise limits with lawn mower companies primarily supplying the Australian market in the 1980s. These included Rover Scott Bonner manufactured in Queensland, Honda manufactured in Japan, Victa previously manufactured in NSW and Masport previously manufactured in New Zealand. The NSW Noise Control Regulation implemented a two staged approach that introduced a maximum sound pressure level requirement of 78 dB(A) at 7.5 metres in 1982 and a level that still applies of 75 dB(A) in 1984. At the time it was proposed that the requirement be further reduced to 71 dB(A) in 1987 but, because this would have significantly affected the price of these articles, this was not introduced. Tasmania also has noise limits for lawn mowers in use and the EU Noise Directive requires manufacturers to certify that limits are met for lawn mowers. The EU Noise Directive specifies a range of sound power level (SWL) limits depending upon the cutting width of the machine. The NSW scheme also specifies a range of limits depending upon a different range of cutting widths or on the type of machine. The Tasmanian scheme specifies two limits based on the power level of the machine. Therefore a direct comparison of the levels required by each scheme is not readily achieved. The EU Noise Directive limits for lawn mowers commenced on 3 January 2002 and are divided into four cutting width categories:

less than 50 cm: 96 dB(A), 50 to 70 cm: 98 dB(A), 70 to 120 cm: 100 dB(A) and greater than 120 cm: 105 dB(A).

It is understood that all lawn mowers currently manufactured in Australia and New Zealand meet the current EU requirements. Under the amended EU Noise Directive, both ICE and EM lawn mowers would continue to be covered by the single definition and therefore will both continue to be subject to the existing EU Noise Directive limits. The EU has taken this approach because for these machines tool noise from the blade and noise from the deck is dominant and the engines are relatively quiet because they can be encapsulated so there is little difference in the noise levels from EM and ICE models. The amended EU Noise Directive will not change the existing limits, however, future amendments to the Directive may further tighten the limits. 2.5.3 Limit for leaf blowers The EU data base indicates SWLs range from 88 (which may be an electric model) to 120 dB(A). The NSW scheme does not include a limit for leaf blowers. A submission to the NSW Minister for Climate Change and the Environment from a former Vice President of ECHO Incorporated, a US company that manufacturers relatively quiet models, suggests a possible limit of 96 or 101 dB(A).4 The current EU Noise Directive definition for leaf blowers covers both ICE and EM models and does not include a limit. However, for ICE models, the amended EU Noise Directive proposes a stage one limit of 108 dB(A) and stage two limit of 106 dB(A) for articles with a power rating up to 1.5 kW. It proposes a stage one limit of 111 dB(A) and stage two limit of 109 dB(A) for articles with a power rating above 1.5 kW. Industry has indicated that handheld models tend to have power ratings up to 1.5 kW and back pack models tend to be above 1.5 kW. The dominant noise can be from the fan and nozzle, and therefore the amended Directive currently proposes a limit of 107 dB(A) for EM models. The EU Noise Directive provides for the progressive tightening of limits over time. As noted earlier, an enforceable labelling scheme will enable jurisdictions to impose restrictions they consider appropriate in their particular circumstances (e.g. a requirement that leaf blowers with a SWL greater than 96 dB(A) not be operated within 100 metres of any residential property at any time) and an upper limit will ensure that no matter where or when they are used, no leaf blower will be in the upper noise range for which this equipment is capable. 4 The US test procedure is “American National Standard Institute B175.2 and measurements are made at 50 feet. Therefore 31 dB(A) has been added to the US sound pressure level (SPL) figure in the submission to convert it to SWL.

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A number of leaf blowers can be reversed to collect rather than blow and vice versa and it is proposed that, as with the EU Noise Directive, these machines should be tested in both configurations and required to meet any limit for blowers and any limit for collectors. This issue may be fully addressed once the amended EU Noise Directive commences as it is proposed that ICE leaf blowers and collectors will be covered by a single definition. 2.5.4 Limit for leaf collectors The EU data base indicates SWLs range from 78 to 120 dB(A). The NSW scheme does not include a limit for leaf collectors. The current EU Noise Directive definition for leaf collectors covers both ICE and EM models and does not include a limit. However, the amended Directive proposes the same limits as for ICE and EM leaf blowers. For ICE models with a power rating up to 1.5 kW, a stage one limit of 108 dB(A) and stage two limit is proposed. For models with a power rating above 1.5 kW, a stage one limit of 111 dB(A) and stage two limit of 109 dB(A) is proposed. Industry has indicated that handheld models tend to have power ratings up to 1.5 kW and back pack models tend to be above 1.5 kW. The amended EU Noise Directive currently proposes a limit of 107 dB(A) for EM models. The EU Noise Directive provides for the progressive tightening of limits over time. A number of leaf collectors can be reversed to blow rather than collect and vice versa and it is proposed that, as with the EU Noise Directive, these machines should be tested in both configurations and required to meet any limit for blowers and any limit for collectors. This issue may be fully addressed once the amended EU Noise Directive commences as it is currently proposed that ICE leaf blowers and collectors will be covered by a single definition. 2.5.5 Limit for line trimmer The NSW scheme includes a limit of 105 dB(A) for either ICE or EM models. EU grass trimmer/grass edge trimmer (ICE) The EU data base indicates SWLs range from 94 to 118 for ICE models. Although the current EU Noise Directive does not apply a limit to these devices the amended EU Noise Directive proposes a stage one limit of 107 + 6.3 x power (kW) and stage two limit of 105 + 6.3 x power (kW) for articles with a power rating up to 1.5 kW. For example, with stage one, a 0.75 kW model would have a limit of 111.7 dB(A) and a 1.5 kW model would have a limit of 116.5 dB(A). Industry has indicated that about 80 per cent of articles have a power rating of 1.5 kW or less and that larger equipment is used in industrial applications such as clearing road verges etc and does not generally create a noise nuisance. No limit is proposed for articles with a power rating above 1.5 kW The amended EU Noise Directive currently proposes that grass trimmer/grass edge trimmers and brush cutters be covered by a single definition. EU lawn trimmer/lawn edge trimmer (EM) The EU Noise Directive data base indicates SWLs range from 84 to 113 for EM models. The current EU Noise Directive includes the same limit requirements for these devices as for lawn mowers. The amended EU Noise Directive proposes to simplify this to 95 dB(A) for cutting lengths less than 30 cm and 96 for cutting lengths of 30 cm or greater. 2.5.6 Limit for brush cutters The EU data base indicates SWLs range from 100 to 118. The NSW scheme includes a limit of 110 dB(A). Although the current EU Noise Directive does not apply a limit to these devices the amended EU Noise Directive proposes a stage one limit of 107 + 6.3 x power (kW) and stage two limit of 105 + 6.3 x power (kW) for articles with a power rating up to 1.5 kW. For example, with stage one, a 0.75 kW model would have a limit of 111.7 dB(A) and a 1.5 kW model would have a limit of 116.5 dB(A).

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Industry has indicated that about 80 per cent of articles have a power rating of 1.5 kW or less and that larger equipment is used in industrial applications such as clearing road verges etc and does not generally create a noise nuisance. No limit is proposed for articles with a power rating above 1.5 kW The amended EU Noise Directive currently proposes that brush cutters and grass trimmer/grass edge trimmers be covered by a single definition. 2.5.7 Limit for hedge trimmers The EU data base indicates SWLs range from 85 to 109. The NSW scheme does not include a limit for hedge trimmers. The current EU Noise Directive definition for hedge trimmers covers both ICE and EM models and does not include a limit. However the amended EU Noise Directive proposes to introduce a stage one limit of 110 dB(A) and a stage two limit of 108 for ICE models and a stage one limit of 100 and a stage two limit of 99 for EM models. Industry has noted that the EU experience is that hedge trimmers are only used about five times per year and for about one hour each time. 2.5.8 Limit for chainsaws The Tasmanian scheme includes sound pressure level limits, measured at 7.5 metres for all ICE an EM chainsaws when in use in Tasmania, which equate to a sound power level of about 120 dB(A) for ICE and 102 dB(A) for EM models. The NSW scheme does not include limits for chainsaws. It was proposed in the Preliminary Industry Consultation paper that no limit be required within the ANZ scheme for large equipment likely to only be used in remote forestry operations or in industrial settings, however, the amended EU Noise Directive currently proposes limits for this equipment. The EU Noise Directive does not currently include a limit for chainsaws however for ICE models with a power rating of 2.5 kW or less the amended EU Noise Directive proposes to introduce a stage one limit of 112 + 2 x power (kW) and a stage two limit of 111 + 2 x power (kW). For models with a power rating greater than 2.5 kW the amended EU Noise Directive proposes to introduce a stage one limit of 114 + 2 x power (kW) and a stage two limit of 113 + 2 x power (kW). For example, a chainsaw with an output power of 2.0 kW would have a stage one limit of 116 dB(A). For EM models the amended EU Noise Directive proposes a stage one limit of 102 + 4 x power (kW) and a stage two limit of 100 + 4 x power (kW). 2.5.9 Comparison of existing Australian and EU limits The following provides an analysis of the current Australian and current or proposed EU Noise Directive limits. However, as the test methods currently used in NSW and Tasmania are different from those used by the EU Noise Directive, any comparisons between the NSW/Tasmanian limits and EU Noise Directive limits need to be viewed with caution. For ICE and EM lawn mowers, the range of cutting widths to which different limits are applied in the current NSW scheme is different to the range for which limits are applied in the EU Noise Directive. These different ranges make it difficult to compare the EU Noise Directive limits with the current NSW limits. However, in order to make some comparisons, it has been assumed that a typical sample of lawn mowers may have cutting widths of 46cm, 65 cm, 85 cm, 105 cm and 125 cm. (A significant proportion of the lawn mowers in use in residential areas are rotary mowers which have a standard width of 46 cm.)

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Table 3: Comparison of NSW and EU Noise Limits for lawn mowers

Cutting Width (cm)

NSW Limit (dB(A)) EU Noise Directive Limit (dB(A))

46

100 96

65

105 98

85

105 100

105

105 (for ride-on machines only) 100 (for any machine)

125

105 (for ride-on machines only) 105 (for any machine)

Therefore it appears that for lawn mowers, the EU Noise Directive limits are more stringent than the current NSW limits by several dB(A) in every case other than for the largest machines where the limits are equivalent. It is understood that lawn mowers manufactured by Australian and New Zealand companies meet the current EU Noise Directive limits and the amended Directive does not propose to change these limits. For line trimmers the current NSW limit is the equivalent of a sound power level of about 105 dB(A) for both ICE and EM models. The EU Noise Directive does not currently include a limit for ICE models but the amended Directive proposes a stage one limit for ICE models with a power rating of 1.5 kW or less of 107 + 6.3 x power (kW) and a stage two limit for these models of 105 +6.3 x power (kW). This sliding scale of limits based on engine power makes it difficult to make a comparison with the existing NSW limit. However, the typical range of power levels for this equipment is 0.75 kW to 1.5 kW and therefore a 0.75 kW model would have a stage one limit of 111.7 dB(A) and a 1.5 kW model would have a stage one limit of 116.5 dB(A). These limits are notably less stringent than the current NSW limit of 105 dB(A) and will only be reduced by a further 2 dB(A) with the introduction of stage two. However, it is anticipated that the EU Noise Directive limits will be further tightened over time in consultation with industry. The amended EU Noise Directive proposes to further tighten the current limits for EM models to 95 dB(A) for models with a cutting length less than 30 cm and 96 dB(A) for models with a cutting length greater than 30 cm. These limits are significantly tighter than the current NSW limit of 105 dB(A). For brush cutters the current NSW limit is the equivalent of a sound power level of about 110 dB(A) for both ICE and EM models. The EU Noise Directive does not currently include a limit but, as with line trimmers, the amended Directive proposes a stage one limit for ICE models with a power rating of 1.5 kW or less of 107 + 6.3 x power (kW) and a stage two limit for these models of 105 +6.3 x power (kW). This sliding scale of limits based on engine power makes it difficult to make a comparison with the existing NSW limit. However, the typical range of power levels for this equipment is 0.75 kW to 1.5 kW and therefore a 0.75 kW model would have a stage one limit of 111.7 dB(A) and a 1.5 kW model would have a stage one limit of 116.5 dB(A). Depending upon the power of the equipment, these limits are either marginally or notably less stringent than the current NSW limit of 110 dB(A). However, it is anticipated that the EU Noise Directive limits will be further tightened over time in consultation with industry. Industry has noted that EM models are not manufactured and therefore the EU Noise Directive does not include a limit for EM models. For chainsaws the current Tasmanian limit applies to all equipment when in use and is the equivalent of a sound power level of about 120 dB(A) for ICE models and 102 dB(A) for EM models. The EU Noise Directive does not currently include a limit for either but the amended Directive proposes a stage one limit of 112 + 2 x power (kW) and stage two limit of 111 + 2 x power (kW) be introduced for ICE models with a power rating of 2.5 kW or less. Under stage one, a 1.5 kW model would have a limit of 115 dB(A), a 2.0 kW model would have a limit of 116 dB(A) and a 2.5 kW model would have a limit of 117 dB(A).

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The amended Directive also proposes a stage one limit of 114 + 2 x power (kW) and stage two limit of 113 + 2 x power (kW) be introduced for ICE models with a power rating greater than 2.5 kW. Under stage one, a 3.0 kW model would have a limit of 120 dB(A), a 3.5 kW model would have a limit of 121 dB(A) and a 4.0 kW model would have a limit of 122 dB(A). The current Tasmanian limit of 120 dB(A) applies to all equipment and the amended EU Noise Directive limits for the less powerful models assessed above, which are likely to be used in residential and semi-rural areas, are tighter than this limit. The amended EU Noise Directive limits for the more powerful models assessed above, which are likely to be used in remote areas and industrial settings are marginally above this limit and will be reduced by a further one dB(A) when stage two commences. The amended EU Noise Directive proposes a stage one limit of 102 + 4 x power (kW) and stage two limit of 100 + 4 x power (kW) for EM models. Under stage one a 1.0 kW EM machine would have a limit of 106 dB(A) which is higher than the current Tasmanian limit of 102 dB(A), however EM chainsaws are not generally a source of complaints. There are no existing limits in any Australian or New Zealand jurisdiction for leaf blowers, leaf collectors or hedge trimmers and therefore no comparisons can be made with the current or amended EU Noise Directive limits. In summary, although the amended EU Noise Directive has less stringent limits for ICE line trimmers, brush cutters and chainsaws commonly used in remote areas and industrial settings and EM chainsaws, the amended Directive has tighter limits for ICE and EM lawn mowers, EM line trimmers and ICE chainsaws commonly used in residential areas. Enforcement of the existing NSW limits for line trimmers and brush cutters is problematic and the adoption of the EU Noise Directive limits in an ANZ scheme would address those issues. The introduction of limits for ICE and EM hedge trimmers and particularly ICE and EM leaf blowers and leaf collectors, which are the main source of noise nuisance, also offsets the less stringent EU Noise Directive limits where they do occur. 2.5.10 Staged approach to introducing amended EU Noise Directive limits As noted above, the current EU Noise Directive has limits for ICE and EM lawn mowers and EM line trimmers and the EU Noise Directive amendment will introduce limits for ICE and EM leaf blowers, leaf collectors, line trimmers, hedge trimmers and chainsaws and ICE brush cutters and tighten the limits for EM line trimmers. It is proposed that stage one of the ANZ noise labelling and limit scheme adopt the current EU Noise Directive limits and then the amended EU Noise Directive stage one and two limits as they come into force. The implications of any future amendments to the EU Noise Directive for portable articles included within the ANZ scheme which may occur in a further seven to ten year period can be assessed before they are adopted. 2.6 Noise level test procedures for portable articles The noise level test procedures required by the NSW scheme for lawn mowers, line trimmers, lawn edgers, brush cutters and chainsaws are set out in Schedule 2 of the NSW Noise Control Regulation. These tests were introduced in the 1980s and have not been updated. No test procedures are provided in this Regulation for leaf blowers, leaf collectors or hedge trimmers. The EU Noise Directive sets out comprehensive test procedures for all of the portable articles proposed for stage 1. It is understood that a number of articles available in the Australian and New Zealand market place are already tested in accordance with EU Noise Directive requirements. The EU Noise Directive noise level test procedures are based on the following ISO Standards:

ISO 3744:1995 “Acoustics - Determination of sound power levels of noise sources using sound pressure - Engineering method in an essentially free field over a reflecting plane” – applied to all of the portable equipment

ISO 11094:1991 “Acoustics - Test code for the measurement of airborne noise emitted by power lawn mowers, lawn tractors, lawn and garden tractors, professional mowers, and lawn and garden tractors with mowing attachments”– applied to leaf blowers, leaf collectors and hedge trimmers in addition to ISO 3744:1995

ISO 10884:1995 (replaced by ISO 22868:2005 “Forestry machinery - Noise test code for portable hand-held machines with internal combustion engine - Engineering method (Grade 2 accuracy)”) – applied to brush cutters and line trimmers in addition to ISO 3744:1995

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ISO 9207:1995 (replaced by ISO 22868:2005 “Forestry machinery - Noise test code for portable hand-held machines with internal combustion engine - Engineering method (Grade 2 accuracy)”) – applied to chainsaws in addition to ISO 3744:1995.

It is currently proposed that the amended EU Noise Directive will apply ISO 22868:2005 “Forestry machinery - Noise test code for portable hand-held machines with internal combustion engine - Engineering method (Grade 2 accuracy) to ICE chainsaws in the following way - racing 33% and full load 67% and also to ICE hedge trimmers. ISO 22868 will also be applied to EM chainsaws. With regard to establishing the power rating of articles where limits are related to power, industry has noted that the relevant test procedure for ICE chainsaws is ISO 7293:1997 “Forestry machinery - Portable chain saws - Engine performance and fuel consumption.” The appropriate test procedures for line trimmers and brush cutters need to be identified. It is understood that some of these test procedures may change in the amended Directive. Recommendations:

5. The ANZ noise labelling and limit scheme adopt the EU Noise Directive noise limits for portable articles as follows:

a. the current EU Noise Directive cutting widths and limits for lawn mowers;

b. the current EU Noise Directive limits for electric motor lawn trimmer/lawn edge trimmers and adopt any revised limit for these articles as they come into force through amendments to the EU Noise Directive and any EU Noise Directive limit for internal combustion engine grass trimmers/grass edge trimmers as they come into force through amendments to the EU Noise Directive;

c. any EU Noise Directive noise limits for leaf blowers, leaf collectors, brush cutters and hedge trimmers as they come into force through amendments to the EU Noise Directive;

d. any EU Noise Directive noise limits for portable chainsaws as they come into force through the amendments to the EU Noise Directive; and

e. the test procedures for portable equipment and any revised test procedures approved through amendments to the EU Noise Directive.

3.0 Regulatory Options The specific objective of any Australian and New Zealand regulatory approach is to establish a consistent framework that will enable governments to require labelling, enforce limits and implement auditing/enforcement procedures. To cover the necessary areas, the requirements within the ANZ noise labelling and limit scheme may be regulated at:

the point of import into the region and the point of local manufacture; and/or the point of sale in each jurisdiction.

As preliminary information provided by industry to date indicates that at least 90 per cent of portable articles likely to be subject to the scheme are imported into the region, regulating at the point of import would certainly assist to minimise the amount of non-compliant articles available on the market. Regulation of the remaining portion at the point of local manufacture may be straightforward as it appears that only two companies manufacture within the region. Regulation at the point of sale could operate as an alternative to regulation at the point of import and local manufacture or be used to complement this approach and capture any leakage.

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3.1 Australia There are various ways of implementing a national regulatory approach to the management of noise emissions from portable garden equipment and air conditioners. Four options have been identified for preliminary assessment:

(1) National Environment Protection Measure (NEPM) (2) Commonwealth legislation (3) Mirror legislation which interlocks Commonwealth, State and Territory laws to provide

complete uniformity and coverage (4) Referral of powers from the Commonwealth to the States and Territories.

The following is a preliminary assessment of these options including a review of their advantages and disadvantages. 3.1.1 National Environment Protection Measure A National Environment Protection Measure (NEPM) could be established for noise labelling and limits through the National Environment Protection Council (NEPC) framework. The NEPC may make a NEPM if it relates to one or more of the subject matters specified in section 14(1) of the National Environmental Protection Act (1994). Section 14(1) (c) is “the protection of amenity in relation to noise (but only if differences in environmental requirements relating to noise would have an adverse effect on national markets for goods and services)”. A NEPM must comprise one or more of the following: a goal, a standard, a guideline or a protocol. With regard to point of sale, noise labelling and limits could be established as a ‘National environment protection standard’, agreed test methods for measuring noise levels could be covered by a ‘National environment protection protocol’, while auditing provisions could be established as a ‘National environment protection guideline’. The Council can develop and make a NEPM but implementation is outside the Council’s jurisdiction under the Act and is achieved by each State and Territory adopting the provisions of the NEPM in their legislation. The NEPC Service Corporation has indicated that the jurisdictions covered by a NEPM may include the federal Government, meaning requirements could also be legislated regarding the point of import. Jurisdictions would be required to allocate sufficient resources to enforce the NEPM. The NEPM could include provisions requiring each participating jurisdiction to report on its implementation of the Measure. National consistency in regulations could be achieved by a NEPM provided that key provisions are made mandatory requirements under the Measure (i.e. they are included as part of a NEPM goal, standard or protocol). The establishment of a NEPM could deliver the desired national regulatory coverage currently lacking in Australia for point of sale and may also be used to regulate imports. Although not achieved via a NEPM, a comparable example of this approach is the Minimum Energy Performance Standards (MEPS) program which was agreed to by the Ministerial Council for Energy. The MEPS program is currently made mandatory in Australia by State Government legislation and regulations which give force to the relevant Australian Standards. However, it is understood that due to some of the disadvantages noted below, the MEPS program is scheduled to shift to the Commonwealth legislation option in 2010.

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The following box identifies the advantages and disadvantages of the NEPM option: Advantages Disadvantages • With regard to point of sale, potential to

resolve regulatory inconsistencies between States and Territories providing key provisions (limits, tests, etc) are mandated under the NEPM.

• NEPM provides established process for development, review and cost sharing arrangements.

• Enables jurisdictions to exercise control over the policy framework (NEPM provisions).

• Leaves implementing legislation, and amendments, within the control of each jurisdiction’s Parliament.

• With regard to point of sale, risk that the effective level of enforcement will vary between States and Territories because of differences in administrative processes and resources.

• Making a NEPM requires agreement of nine jurisdictions (or at least two thirds of NEPC) at a whole-of-government level, which may not be obtained easily. Necessary compromises can lead to a less effective approach.

• NEPM development, and subsequent implementation through new or amended regulation, can be a costly and time consuming process.

3.1.2 Commonwealth legislation This alternative provides a national legislative framework that would apply to all States and Territories. The Commonwealth could establish new legislation that would set national noise labelling and limit requirements and either call up relevant test methods or specify the methods in its regulations. Auditing provisions could also be included to facilitate enforcement activities. The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 and Fuel Quality Standards Act 2000 are examples of Commonwealth legislation enforcing the quality of a product to achieve environmental objectives. The most relevant heads of power under the Constitution that might support this approach are:

the trade and commerce power (s 51 (i)) under which the Commonwealth Parliament may enact laws with respect to ‘trade and commerce with other countries, and among the states’. However this power is unable to regulate activities involving intrastate trade and commerce except in limited circumstances. On the other hand, it is not restricted to constitutional corporations.

the corporations power (s 51 (xx)) under which the Commonwealth Parliament may enact laws with respect to ‘constitutional corporations’ that regulate and control the trading activities of such corporations. These laws could confer rights or impose obligations. Entities that are not established as bodies corporate are not within the reach of the corporations power.

The Commonwealth could use the trade and commerce power and regulate to prohibit the import into Australia of relevant articles for use in Australia by any entity, unless the articles comply with the specified labelling and limit requirements. The Australian Customs Service could enforce these requirements and the Commonwealth could either absorb the costs or implement cost recovery measures on all imported articles subject to the scheme. The Commonwealth could also use this power and regulate to prohibit trade between States and Territories of articles unless they comply with the specified labelling and limit requirements. To cover articles that are not imported, the Commonwealth could use the corporations power and regulate to prohibit the manufacture of articles in Australia (intended for sale in Australia or New Zealand) that do not comply with the specified labelling and limit requirements. Although this would not apply to manufacturers that are non-incorporated businesses, it is likely that articles manufactured in Australia would be manufactured by corporations - or by entities involved in interstate trade (which could be covered by the trade and commerce power). To complement requirements covering the import and local manufacture of articles, the Commonwealth could also use the corporations power to require entities selling these articles to ensure that they comply with the labelling and limit requirements. The focus would be on wholesale and retail suppliers. Non-incorporated business would not be covered, however, most wholesale suppliers are either corporations and or engage in interstate trade.

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Some retailers may be non-incorporated and not engage in interstate trade, however, this may not be a significant issue if the import and manufacture of articles in Australia is also regulated. With regard to enforcing the requirements at the point of sale, the Commonwealth could either establish a centralised program or delegate powers to the States and Territories (as it has with the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989). Commonwealth legislation could provide the necessary national regulatory coverage which is currently lacking in Australia. If enforcement powers were delegated to the States and Territories with regard to goods for sale, even if the application of these powers varied between jurisdictions, the Mutual Recognition Act would not negate the effectiveness of the requirements because the legislation would apply in every jurisdiction. The following box identifies the advantages and disadvantages of the Commonwealth legislation option: Advantages Disadvantages • Simplest and therefore least costly regulatory

development process as it involves a single jurisdiction enacting one piece of legislation.

• Provides broad coverage of the industry, including imports, manufacture, wholesale and retail.

• Provides seamless and consistent national regulation.

• Provides the most certainty in ensuring regulatory consistency as it involves a single legislative instrument.

• Potentially more efficient than multiple State and Territory regulations because it avoids the duplication of effort inherent in multiple legislation options associated with education campaigns, providing information, collecting business information, monitoring, auditing and enforcement.

• Industry stakeholders are likely to prefer this approach.

• Single legislation may make the scheme easier to change and therefore potentially more responsive to changing industry circumstances.

• Reduced monitoring and enforcement for State/Territory authorities.

• With regard to point of sale, some business entities may not be captured, namely unincorporated businesses engaged only in intrastate trade.

• If the Commonwealth delegated enforcement of point of sale requirements to the States and Territories, the effective level of enforcement may vary between States and Territories because of differences in administrative processes and available resources.

• Possibility that the Commonwealth Government may act unilaterally in regulatory design and implementation.

• Potential shift of costs to the Commonwealth from the States and Territories.

• Subject to Commonwealth Government policy approval and legislative priorities.

3.1.3 Mirror legislation If the risk posed by gaps in the coverage of Commonwealth legislative powers is considered unacceptable, all States and Territories and the Commonwealth could enact identical legislation to provide complete national coverage. The Commonwealth, State and Territory laws would have an interlocking design, with federal law applying to corporations and entities engaged in overseas or interstate trade, and State and Territory laws dealing with all other entities and persons. Provided all jurisdictions enact the necessary legislation, a mirror legislation scheme is the only mechanism that can be relied upon to deliver complete uniformity. This option may require the development of a separate intergovernmental agreement to obtain commitment from all jurisdictions to enact identical legislation.

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An example of this approach is the Water Efficiency and Labelling Standards (WELS) program. The Australian Government’s Water Efficiency and Labelling Standards Act 2005, provides the legal framework for the WELS scheme and the States and Territories have also enacted or agreed to enact complementary legislation so there is national coverage for WELS. The following box identifies the advantages and disadvantages of the mirror legislation option: Advantages Disadvantages • Can cover the entire industry. • Achieves high level of uniformity

between State and Territory laws. • Allows coverage of the entire field of

conduct in an industry. • Shared responsibilities between

Commonwealth, States and Territories.

• The development of mirror legislation and an intergovernmental agreement, based on past experience, could be a lengthy and costly process.

• The combination of both national and State level regulation is probably more regulation than necessary to deliver policy outcomes in this instance.

• Can pose a risk of regulatory inconsistency, unless the key provisions and commencement timeframes are mandated by an intergovernmental agreement.

• The need to gain unanimous acceptance from participating governments for these interlocking laws might lead to a lowest common denominator approach to legislation.

• There is a risk that one or more jurisdiction(s) may decline to enact the necessary legislation or delay enacting it because of other priorities.

• Involves new legislation by all nine jurisdictions and thus can be expected to be a more costly option.

3.1.4 Referral of powers Section 51(xxxvii) of the Constitution enables the Commonwealth Parliament to make laws with respect to:

“matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law.”

In this option the States refer their powers to regulate noisy equipment to the Commonwealth, enabling the Commonwealth to create a single national noise labelling and limit scheme. The referral of powers option requires each State to pass a referral Act through their Parliament. As a general rule, governments do not refer powers to the Commonwealth unless there is no other alternative. As there are effective alternatives, the referral of powers is not considered to be a realistic option in this instance. The following box identifies the advantages and disadvantages of this option. Advantages Disadvantages • Achieves a high level of uniformity • Can cover entire industry. • More efficient than multiple State and Territory

laws. • Reduced monitoring and enforcement for

State and Territory authorities. • Single legislation may make the scheme

easier to change and therefore potentially more responsive to changing industry circumstances.

• Requires new legislation in all nine jurisdictions to refer power to the Commonwealth and therefore a costly option.

• There is a risk that one or more jurisdiction(s) may decline to refer powers or refer different powers to other jurisdictions leading to inconsistency.

• Individual States may not be able to influence or vary the Commonwealth law once powers are referred.

• The Commonwealth law would override any existing or future inconsistent State law.

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3.2 New Zealand The New Zealand Ministry for the Environment has indicated that New Zealand has the choice of either promulgating similar legislation or rejecting the need for such legislation and careful consideration would need to be given to which legislative vehicle could be used to bring the controls into effect. Option 1 – New Zealand adopts scheme and enforces it within New Zealand. New Zealand would receive the full benefits of the scheme, however, there would be associated regulatory and enforcement costs. Option 2 – New Zealand adopts scheme – but has minimum enforcement New Zealand adoption of the scheme would make the scheme more enforceable in Australia. Even if New Zealand then minimised enforcement costs and did not rigorously enforce the scheme in New Zealand, New Zealand would still receive greater benefits from the scheme, as it would be more robust and New Zealand would receive the benefits of a rigorous scheme enforced in Australia. Option 3 - New Zealand does not adopt scheme This has the potential to compromise any scheme in Australia as equipment either manufactured in New Zealand or imported into Australia via New Zealand would not be subject to the requirements. Although this ‘leakage’ may be limited, any leakage has the potential to complicate and undermine enforcement activities. Support from reputable manufacturers may also decrease if relatively low cost substandard noisy equipment continues to be available in Australia, either because it has been imported via New Zealand or due to a lack of credible enforcement in Australia. 4.0 Compliance The EU experience is that enforcement needs to be properly considered during development of any noise labelling and limit scheme if a high level of compliance is to be achieved. The European Garden Manufacturing Federation (EGMF) has noted that if there is no efficient market surveillance and penalties that can be imposed, manufacturers of substandard noisy product will have a competitive advantage because they will not suffer the image loss potentially associated with non-compliance and therefore will manufacture and sell non-compliant product. As it is proposed that the ANZ noise labelling and limit scheme be harmonised with the EU Noise Directive requirements for portable articles, compliance by industry with the requirements for these articles should be facilitated. However, the EU is still working on market surveillance and conformity assessment procedures. A credible enforcement regime will facilitate compliance. An effective enforcement and penalty system will assist in preventing unfair competition as it will encourage retailers and importers to be diligent when purchasing from companies that do not have established reputations. The scheme’s education program should target suppliers as well as the community. Issues that need to be considered are outlined below. 4.1 Noise Measurement Uncertainties The EU Noise Directive incorporates mandatory statistical “safety factors” to address uncertainties associated with measurement procedures and production variation. “The Noise Emission in the Environment by Equipment for Use Outdoors Directive 2000/14/EC – A Guide for Manufacturers to the Evaluation of Uncertainties – First Edition – July 2000” notes the following:

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The EU Noise Directive requires that a machine is labelled with a guaranteed sound power level, which must take account of measurement and production uncertainties – and both these quantities of uncertainty can be estimated.

A standard deviation is a measure of the spread of a set of sound power level determinations,

describing how values typically differ from the average of the set. It is possible using a set of tables associated with a statistical distribution known as Student’s t, to estimate the possibility of a single sound power level determination being greater than the average sound power level by a given amount. It is usual to express this as a percentage of sound power level determinations that are expected to be less than a given sound power level. This percentage is called a confidence level and is an indication of how confident you are of the sound power level determination of a particular machine not exceeding a given sound power level. For the purposes of the Directive it is suggested that a confidence level of 95% be adopted.

When estimating the standard deviation of measurement uncertainty and production

uncertainty, the more measurements and the more machines that are used the better the estimate will be. However, carrying out a number of sound power level determinations and carrying these out on a number of machines takes considerable effort and yields diminishing returns as the number of measurements and machines is increased. For practical purposes a minimum of five repeat measurements should be used and sound power level determinations should be made on a minimum of five machines.

It can be assumed that 95% of sound power level determinations made on a particular type of

machine will be less than the labelled value. The EGMF has noted that recent work around compliance of production has concluded that the variation between the sound power levels of individual machines within the same model is greater than previously understood. Therefore a larger statistical safety factor than previously applied may need to be applied by manufacturers to account for the uncertainties around the testing of the machines. The EU Commission is still finalising what approach should be taken in the amended EU Noise Directive, but it is likely that five repeat measurements on a minimum of five machines will continue to be the basis for determining the sound power level. The statistical safety factors to be applied to account for the uncertainties around ensuring the majority of the machines of a particular model meet the prescribed noise limit are yet to be finalised. 4.2 Compliance Testing Sampling and Tolerance Margin The requirements of the scheme need to be fair and reasonable. Courts can be expected to require the provisions of the scheme to be reasonable and although they may convict if there is a breach, the court may not impose a penalty or award costs to the enforcement agency if prosecution action is not seen to be reasonable. If a single unit is found to have a level above that stated on the label, it may be argued that this is a result of the uncertainties around sampling and it may be considered unreasonable to prosecute for a breach in relation to that article when all of the others in the production run may comply, particularly when statistical methods with uncertainties are commonly used by industry (and recommended by the EU Noise Directive). To limit the likelihood of this argument arising and being found in court to have not used a representative sample, it may be appropriate to adopt the compliance testing sampling procedures used by enforcement agencies in the EU. This may mean the following approach should be used. If the first machine tested is well under the limit, there is no need for further testing. If the first machine is close to or above the limit, a second machine needs to be tested. If this is close to or above the limit, then a third machine is tested. To avoid highly technical arguments in court, it may still be appropriate to apply a compliance tolerance margin of, for example, 2 or 3 dB(A). It would probably be necessary to incorporate a mechanism into the scheme to obtain the necessary number of articles for testing if a retailer under investigation cannot supply them. In this case it would be necessary to obtain articles for testing from the wholesaler or importer, or the manufacturer for articles manufactured in Australia or New Zealand.

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4.3 Maintenance of conformity Maintenance of conformity means ensuring equipment is not designed simply to have a low level or pass any limit test when new and then rapidly deteriorate. This may be difficult to address. While articles are under warranty they would be expected to continue to operate at the level on label. However, manufacturers may have different warranty periods and consumers can often elect to purchase extended warranties. Manufacturers and suppliers cannot guarantee that articles are not tampered with after purchase or used inappropriately resulting in increased noise levels. For these reasons it is recommended that enforcement action resulting in penalties should only occur for articles at the point of sale. This does not prevent assessment of items in use being used to trigger the noise testing of equivalent articles that are for sale. If an article is purchased based on its noise label, any determination that it is louder than expected is more likely to occur sooner rather than later and therefore equivalent articles would still be for sale in most cases. 4.4 Enforcement Any portable equipment subject to the ANZ noise labelling and limit scheme available in Australia or New Zealand that is also available in the EU would need to conform to the EU Noise Directive. Therefore it will be tested in accordance with the EU Noise Directive tests and the sound power levels of the equipment would be available on the EU website. If the ANZ scheme adopts the EU Noise Directive test procedures, limits and labelling requirements for portable articles, the EU regulatory framework would assist in ensuring articles on the Australian and New Zealand market meet these requirements. The EGMF proposes that, to enable manufacturers to avoid the financial burden of double testing and certification, the ANZ scheme accept the principle of self declaration for products subject to noise labelling and, for those products subject to noise limits, to recognise test certificates for noise testing from Europe. Jurisdictions may seek to impose requirements regarding the use of articles with noise levels higher than a particular limit within certain distances of residential premises. Regulation along these lines is outside the scope of this scheme and would need to be considered separately by jurisdictions. However, to facilitate this, the scheme needs to consider anti-tampering requirements aimed at preventing labels from being removed or swapped, with the intention of deliberately misleading enforcement agencies once articles have been purchased. The presence of labels would be a simple way of enforcing any requirements. Depending upon whether Commonwealth legislation, a NEPM, or mirror legislation approach is taken, the main enforcement agency will be either the Commonwealth or the individual States/Territories. If Commonwealth legislation is used, as well as enforcing the requirements with respect to the sale of articles by suppliers, the requirements could be enforced with respect to the importation of articles. Enforcement at the time of import may facilitate action against “one off quick sale” operators who may import non-compliant product. In New Zealand, the central government is likely to be the main enforcement agency and it may delegate certain responsibilities to regional and local councils. There are a number of acoustic laboratories in both Australia and New Zealand that would be available for testing for compliance purposes if the EU Noise Directive test procedure for a particular article requires testing to be conducted in a laboratory. The Noise Labelling Working Group considers that enforcement of the requirements of the noise labelling and limit scheme should be phased in over time with industry being given a reasonable period to become educated about the scope and intent of the scheme, before regulatory measures are enforced. Regulatory authorities should have discretion as to whether to take regulatory action, with warning letters or directions being considered initially rather than on the spot fines being automatically imposed.

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The level of penalties suggested below is indicative only and it is considered that there should be tiered penalties for second and subsequent offences. Depending on the legislative instrument by which the scheme is introduced, it would be desirable for regulatory authorities to be able to issue orders to repeat or serious offenders rather than taking prosecutions to court. The orders could, for example, seek replacement of articles over the noise limits or recompense for customers who purchase articles with false of misleading labels. The legislation might also make provision for naming and shaming of serious offenders. 4.5 Proposed offences and penalties For a first or minor offence against the legislation, consideration could be given to providing a tiered system of on-the-spot fines with penalties of the following magnitude for individuals and double these amounts for corporations:

1 – 4 articles - $500 5 – 8 articles - $1,000 9 – 12 articles $1,500

On-the-spot fines can be an efficient enforcement tool and more likely to be applied than resource intensive prosecutions for minor breaches. Enforcement agencies would still need to be mindful that adequate evidence would need to be collected in case an on-the-spot fine is court elected. For a repeat or significant offence (i.e. more than 12 articles supplied without labels), provision could be made for higher penalties, significant court fines (e.g. maximum penalty of $100,000), orders for restitution, and recovery of compliance costs. Unlabelled portable articles could also be tested to determine if they are above any noise limits if the agency wanted to take action for exceeding the limit as well. For the offences of “false or misleading labelling” or “exceeding the prescribed limit”, provision could be made for significant court fines (e.g. maximum penalty of $200,000) and compliance cost recovery to cover the cost of conducting a screening test, or transporting articles to an acoustical laboratory and conducting a laboratory test. “Observation reports” that an offence is being committed could be made to the relevant jurisdiction depending on the legislative model adopted by, for example, local government officers when investigating noise complaints about articles subject to the scheme. Regulatory agencies could check that articles are labelled properly at the point of sale by:

acting on “observation reports” from local government, and/or conducting audit inspections.

To ensure articles can be obtained for testing, it may be necessary to make it an offence to “fail to assist or obstruct” an investigating officer when requesting articles for testing. This offence would need a significant maximum court fine (e.g. maximum penalty of $500,000) as an offender may determine that it is more cost effective for them to pay this fine than all the penalties they may face if a full investigation occurs. Community members subject to excessive noise levels resulting from false labelling may consider that, in addition to being fined for misleading labelling, penalties should permit product recall notices and replacement of noisy models with models with the correct level. This would give an incentive to retailers to ensure they have contracts with suppliers/manufacturers so that any penalties may be passed back up the supply chain. Retailers and importers should have contractual arrangements that enable them to pass these costs back to manufacturers where appropriate. Industry has indicated that manufacturers with well established brand names are extremely unlikely to label equipment incorrectly and not comply with limits as they are very sensitive to adverse publicity.

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In Australia, the Australian Consumer and Competition Commission (ACCC) may take action against companies that make false claims on products. The Commission’s booklet “Green Marketing and the Trade Practice Act” published in 2008, explains the implications of The Trade Practices Act 1974 on making environmental claims and contains details about environmental labelling in relation to the MEPS and WELS schemes. 4.5.1 Specific offences under the noise labelling and limit scheme 4.5.1.1 Offence - article not noise labelled It should be an offence to supply articles for sale in Australia and New Zealand that are required to be noise labelled but are not labelled. A supplier could be an importer, wholesaler, retailer or manufacturer producing articles intended for sale in Australia or New Zealand.

The legislation should permit the investigation of articles (e.g. opening boxes etc) when officers have a reasonable belief that articles are not labelled (e.g. observation reports of unlabelled articles that were purchased at that retail outlet or unlabelled articles on display for sale). The legislation should enable a representative sample of non-labelled articles to be taken from the supplier for laboratory testing to determine if they meet the noise limit.

4.5.1.2 Offence - Noise label with incorrect format The legislation should make it an offence to supply articles for sale in Australia and New Zealand that are not labelled in the prescribed format. The legislation should enable a representative sample (based on ISO standard) of articles labelled with the incorrect format to be removed from supplier for laboratory testing to determine if the noise level on the label is misleading or the article is above the prescribed noise limit. 4.5.1.3 Offence – Tampering with Noise Label

The legislation should make it an offence for a person to tamper with i.e. remove or swap noise labels. 4.5.1.4 Offence - Misleading Noise Level on Label The legislation should make it an offence to supply articles for sale in Australia and New Zealand that have a noise level on the label that is less than the noise level emitted by the article. An offence would occur if the noise level on the label is less than the level resulting from the approved procedure for deriving the “minimum permissible label level”. Screening tests could be performed by regulatory agencies with the article in-situ. The legislation should permit entry by officers onto premises to conduct such a test. The screening test should specify a trigger level for further investigation by a laboratory test. The legislation should enable articles to be taken from a supplier for laboratory testing when an agency has a reasonable belief that articles have misleading levels on their noise labels (e.g. equivalent model has failed screening test, labels have incorrect format or any other relevant evidence such as a letter from an acoustic consultant etc.) 4.5.1.5 Offence - Article has Noise Level Above Prescribed Limit

The legislation should make it an offence to supply an article for sale in Australia or New Zealand that has a noise level above the prescribed limit for that article. Screening tests could be performed by regulatory agencies with the article in-situ. The legislation should permit entry by officers onto premises to conduct such a test. The screening test should specify a trigger level for further investigation i.e. laboratory test.

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The legislation should enable article to be taken from a supplier when an agency has a reasonable belief that the article has a noise level above the prescribed limit for that article (e.g. equivalent model has failed a screening test, or unlabelled articles or incorrectly labelled articles offered for sale, or any other relevant evidence such as a letter from an acoustic consultant etc). 4.5.1.6 Offence – Failing to Assist or Obstructing Investigation The legislation should make it an offence to fail to assist or to obstruct an enforcement agency when conducting an investigation relating to noise labelling. The agency’s actions would need to be reasonable and examples could be provided of what the entity under investigation needs to comply with such as:

o Allowing entry onto premises o Identifying all articles subject to investigation o Identifying the source of the articles subject to investigation o Supplying articles for testing upon request o Assisting with any set up of articles when testing o Supplying records about how levels on labels were established (where available) o Assisting investigating agency with any reasonable requests

The legislation should provide for significant court fines (e.g. maximum penalty of $500,000). Recommendation:

6. The ANZ noise labelling and limit scheme make provision for the following broad categories of offence:

a. article not labelled,

b. noise label with incorrect format,

c. tampering with noise label,

d. misleading level on noise label,

e. noise level above prescribed limit, and

f. failing to assist or obstructing investigation. 5.0 Regulatory Impact Statement A Consultation Regulatory Impact Statement (RIS) needs to be prepared to progress the scheme. The RIS will provide a cost benefit analysis of the relative merits of the different options for labelling and limits outlined in this paper. Industry, together with the wider community, should be provided with an opportunity to comment in detail on the proposed scheme when this is released for public consultation. Preparation of the cost benefit analysis will be dependant on access to information that illustrates the cost to industry and consumers under the current situation and the likely cost to industry and consumers if a scheme is implemented. The OPEA has indicated that this information can be made readily available. Recommendations:

7. That an appropriately qualified and experienced consultant be engaged to prepare a Consultation RIS to assess the relative merits of the different options for labelling and limits, proposed in this paper and that the consultant be funded in accordance with the NEPC cost sharing formula for Australia and New Zealand.

6.0 Additional Work to be Undertaken if RIS Supports Introduction of ANZ Scheme 6.1 Scheme Website Because there is limited understanding within the community about noise levels and their measurement and impact development of a website providing details about the ANZ noise labelling

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and limit scheme is considered essential. All jurisdictions would need to contribute towards funding a consultant to assist with the development of a scheme website. The feasibility of the Commonwealth Government administering this should be investigated. 6.2 Mandatory posting of noise levels of articles on a website The possibility of including noise levels on websites should be investigated. There was support from both the air conditioner and portable equipment industry sectors during the preliminary consultation for this approach. For portable equipment, providing the quality of information on the existing EU Noise Directive database of levels is improved, reference could be made to this database in any educational material. If an ANZ scheme website is established, this could also include a database on which levels could be required to be listed. However not everyone has access to the internet or would necessarily use it when making a purchase. As the labelling of equipment would make the relevant information accessible to all, both labelling and posting information on a website is considered the optimum outcome. 6.3 Scheme Education Program A scheme education program is also considered to be essential. This could occur through the scheme website and any educational material/brochures which are prepared. A community education program could, for example, involve brochures and or web pages that:

explain what the information on the label means explain what sound power level and sound pressure level mean include a quick reference table to convert a range of common sound power levels to

approximate sound pressure levels at a number of distances (e.g. 1m, 2 m, 5m, 10 m, 20m, 50 m, etc) noting that factors such as reflective surfaces and the nature of the ground surface etc will impact on the actual levels

include a scale of sound pressure levels related to common situations e.g. ranging from a normal conversation to a jet engine aircraft taking off

include brief punchy information on the health impacts of excessive noise levels direct people to appropriate reference material:

o possibly the Commonwealth Government MEPS air conditioner energy rating website when selecting an air conditioner if noise levels are included on this database in the future;

o the AIRAH on line calculator for use when installing an air conditioner; and o possibly the EU noise level database web pages when selecting portable equipment.

A program for wholesalers and retailers could provide guidance material to retailers alerting them to issues to be aware of when ordering goods and preparing contracts, for example, requiring evidence that:

goods are labelled in accordance with the requirements; goods are noise tested and labelled accurately; goods meet any limits; any testing conducted was statistically representative of whole batch/lot; and multiple use equipment has the required information in any sales material/owners manuals.

All jurisdictions would need to contribute towards funding consultants to assist with the development of the material/brochures.

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Appendix 1: Regulatory Approaches to Neighbourhood Noise Issues in Jurisdictions

Enforcement of Neighbourhood Noise Issues in Jurisdictions (Portable and Fixed Equipment)

Jurisdiction

Summary of Provisions/Enforcement (provided by each Australian jurisdiction in 2008)

NSW

Enforcement undertaken by local councils (and very occasionally the police). Protection of the Environment Operations (Noise Control) Regulation 2008 provides restricted

times when certain articles must not be heard in living areas of neighbouring residences - e.g. - Air conditioners and hot water heat pumps from 10 pm to 7 am weekdays and 10 pm to 8 am

weekends and public holidays - lawn mowers, leaf blowers, chainsaws etc from 8pm to 7 am weekdays and 8 pm to 8 am

weekends and public holidays. Offence only occurs if activity/noise continues after a warning has been given. Offensive noise provisions in Protection of the Environment Operations Act 1997 apply during

daytime periods not covered by the restricted times in the Regulation – and to articles not covered by the Regulation.

The Regulation also contains noise labelling and maximum noise limit requirements for certain equipment:

- equipment with labelling and limits: lawn mowers – 75/80 dB(A), ride on mowers - 80 dB(A), lawn edger - 75 dB(A), line trimmer – 80 dB(A), brush cutter – 85 dB(A) (For all of these the sound pressure level (SPL) is measured at 7.5 m)

- equipment with labelling only: chainsaws (SPL at 7.5 m), mobile air compressors (SPL calculated from a set of readings taken at 1m and 7m), pavement breakers (SPL calculated from a set of readings taken at 1 m), mobile garbage compactors (SPL at 15 m) and domestic air conditioners (sound power level (SWL)).

Note: The limit provisions apply at the point of sale, but are not currently subject to any specific compliance program due to complications with enforcement arising from the Mutual Recognition Act 1992.

ACT

Enforcement undertaken by ACT Government Administered under the Environment Protection Act 1997 and Environment Protection

Regulation 2005 and Noise Environment Protection Policy 1998. The ACT is divided into seven different noise zones in which activities are not permitted to exceed certain maximum levels (LA10T (15min)) - e.g. Residential: 45dB(A) -7am–10pm (8am-10pm Sunday & Public Holidays) and 35dB(A) - 10pm–7am (10pm-8am Sunday & Public Holidays). Civic centre and other major town centres: 60 dB(A) - 7am–10pm (8am-10pm Sunday & Public Holidays) and 50dB(A) - 10pm–7am (10pm-8am Sunday & Public Holidays). Industrial: 65dB(A) - 7am–10pm (8am-10pm Sunday & Public Holidays) and 55dB(A) - 10pm–7am (10pm-8am Sunday & Public Holidays). Noise Regulations provide exemptions that permit certain noisy activities during certain periods - e.g. Garden maintenance or improvement*(use of lawnmowers and other garden equipment): 7am-8pm Monday to Saturday and 8am-8pm Sunday and Public Holidays Maintenance or repair work*(use of power tools, etc): 7 am–8 pm Monday to Saturday 8 am–8 pm Sunday and Public Holidays Noise exceeding the standard may only be emitted for up to 40 hours in any 8 week period. Building work in residential areas - Completed in less than 2 weeks - 7 am–8 pm Monday to Saturday and 8 am–8 pm Sunday and Public Holidays. Completed in more than 2 weeks - 7 am–6 pm Monday to Saturday. No noise exceeding the standard permitted on Sundays and Public Holidays Building work in industrial, city and town centre areas: 6 am–8 pm Monday to Sunday and Public Holidays

Offence only occurs if activity/noise continues after a warning has been given as a result of a valid noise measurement that exceeded the noise zone standard

*Any equipment used must be maintained and operated according to the manufacturer’s specifications.

Enforcement undertaken by local councils (and very occasionally the police). The person

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VIC

affected has the power to prosecute breaches of the residential noise provisions. Noise Regulation provides restricted times when certain articles must not be heard in

habitable rooms of neighbouring residences - e.g. - air conditioners and domestic heating equipment from 10 pm to 7 am weekdays and 10

pm to 9 am weekends and public holidays - lawn mowers, leaf blowers, chainsaws etc from 8pm to 7 am weekdays and 8 pm to 9

am weekends and public holidays Audible noise from the prescribed items during the prohibited times in the regulations proves

an offence. Offence must be prosecuted in court unless a direction (which can be issued by a police or

council officer) to abate the noise is breached. A Direction under the act expires after 12 hours and a breach of a direction is subject to an on-the-spot fine

Unreasonable noise provisions in Environment Protection Act apply during daytime periods not covered by the prohibited times in the Regulations

Victoria has no noise labelling requirements in regulation and has no maximum noise limit requirements for domestic equipment.

Technical guidelines set a recommended noise criterion of background + 5 dB(A) at the boundary of the premises for “fixed domestic plant”.

Some Local councils have local laws that duplicate or supplement State provisions. These deal with nuisance or offensive noise tests.

SA

Enforcement undertaken by local councils Day and night time limits for fixed domestic machines are specified in SA Environment

Protection (Noise) Policy 2007 Noise from portable tools is covered by the “Noise from domestic activity” clause in the SA

Environment Protection (Noise) Policy 2007. It recommends tools are only operated from 9 am. to 8 pm. on Sundays and 8 am. to 8 pm. on any other day.

There is no product noise labelling requirement. Compliance with the noise limits is checked at the nearest noise affected premises and

violation results in a notice.

TAS

Enforcement undertaken by local councils during business hours and the police after hours, mostly using the Environmental Management and Pollution Control (Miscellaneous Noise) Regulations 2004 and s53 of the Environmental Management and Pollution Control Act 1994.

Officers may make a subjective assessment of noise nuisance and audibility within a neighbouring residence.

Regulations include provisions for power lawnmowers and garden maintenance equipment, musical instruments and amplified sound equipment, motor vehicles, motor vessels and outboard motors, chainsaws and air conditioners.

Regulations do not include labelling requirements. Lawnmowers - maximum sound levels of 74 dB(A) for engine < 5kW NEP & 77dB(A) for

engine > 5kW NEP as measured at 7.5m; hours of use are 7am-8pm weekdays, 9am–8pm Saturday, 10am-8pm Sunday + statutory public holidays.

Air conditioners – From 7am-10pm (in domestic premises) noise must not exceed 45dB(A) in sleeping areas, 50 dB(A) in recreation/study areas & 52 dB(A) in work areas. From 10pm-7am noise must not exceed 40 dB(A) in sleeping areas, 45 dB(A) in recreation/study areas & 47 dB(A) in work areas.

Chainsaws - approval, consent or land ownership provisions apply to usage within 300m of domestic premises; maximum sound levels of 95 dB(A) for petrol and 77dB(A) for electric models at 7.5m.Hours of use for residential users are restricted to one day in seven (domestic maintenance only) from 7am-6pm weekdays, 9am–6pm Saturday, 10am-6pm Sunday + statutory public holidays. – unless approved or neighbours’ consent is given.

Note: The limit provisions are not enforced at the point of sale, but compliance with the limits may be assessed if noise complaints are made about the equipment when in use.

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WA

Enforcement undertaken by local councils, out-of-hours noise issues requiring quick response are generally dealt with by the police.

Noise Regulations set Assigned Levels, which are the levels allowed to be received at a premises. There are three different types of receiving premises: noise-sensitive, commercial and industrial. Assigned levels are sets of LA10, LA1 & LAmax levels assessed over a Representative Assessment Period. Industrial & commercial Assigned Levels are fixed but the noise-sensitive levels vary and are calculated using TPS zones and the presence of roads with certain traffic flows. This is essentially a nominal background noise calculation system.

The Assigned Levels apply to all noise sources except traffic on roads, trains, aircraft, emergency vehicles and safety warning devices.

Offence occurs if Assigned Levels are exceeded, a complaint is not needed, however enforcement action is essentially complaint driven.

Have exemptions that permit the operation of noisy “specified equipment” on “residential premises” for a 2 hour period between 7am (9am Sundays) and 7pm. “Specified equipment” is equipment that requires the constant presence of an operator for normal use e.g. lawnmowers, leaf blowers etc. but not airconditioners or stereos. There is no noise level limit for specified equipment.

If specified equipment operated for longer than a 2 hour period the Assigned Levels would apply. Enforcement action is essentially complaint driven.

WA Legislation exists that requires SWL noise labelling for airconditioners (< 12kW), mobile air compressors and pavement breakers. Does not include evaporative airconditioners. There are no maximum noise limit requirements.

Construction noise is exempt from 7am to 7pm Mon to Sat but must use equipment that is the quietest reasonably available.

QLD

Enforcement undertaken by local councils under the Environmental Protection Regulation 1998, Offence occurs if an abatement notice is not complied with.

Regulated Devices (power tools, lawnmowers etc)

o Sunday or public holiday, before 8a.m. or after 7p.m or on a Saturday or business day, before 7a.m. or after 7p.m. -> audible noise

Pumps o before 7a.m. or after 10p.m.->audible noise o 7a.m. to 7p.m -> Bkg+5dB(A) o 7p.m. to 10p.m. -> Bkg+3dB(A)

Air conditioners o 7a.m. to 10p.m. -> Bkg+5dB(A) o before 7a.m. or after 10p.m. -Bkg+3dB(A)

Refrigeration Equipment o before 7a.m. or after 10p.m Bkg+3dB(A) o 7a.m. to 10p.m.-> Bkg+5dB(A)

NT

NT tends to use approach taken in NSW to neighbourhood noise. Local council involvement in environmental noise issues has seen increasing support for

noise labelling. There are no specific contrary requirements to noise labelling in the NT.

NZ

Enforcement is undertaken by local authorities. The Resource Management Act (1991) states that “Every occupier of land (including any

premises and any coastal marine area), and every person carrying out an activity in, on, or under a water body or the coastal marine area, shall adopt the best practicable option to ensure that the emission of noise from that land or water does not exceed a reasonable level.”

Local authorities have Noise Control Officers who investigate and assess noise levels and ensure they are reduced if they are considered excessive under the Resource Management Act. If excessive noise is not reduced the Noise Control Officer may visit which could result in equipment seizure and/or a fine of up to $10,000 being issued for non compliance with a direction to reduce the noise to a reasonable level.

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Appendix 2: List of Organisations for Preliminary Industry Consultation

The preliminary industry consultation papers were provided to the following organisations for comment.

Heat Pump Water Heaters

AIRAH AREMA Dux Manufacturing Limited - a manufacturer not represented by AREMA Rheem Australia Pty Ltd - a manufacturer not represented by AREMA Green Plumbers Victoria

No responses were received regarding heat pump water heaters. Lawn Mowers

Mower Specialists Association of Australia (MSAA) - represents retailers of brands such as Rover Mowers, Masport, Victa, Honda, Sthil, Husqvarna, Eho, Toro etc

Outdoor Power Equipment Association (OPEA) - represents manufacturers such as Briggs and Straton, Honda, Husqvarna, Masport, Rover, Sthil, Toro etc

Steelfort Engineering Limited - NZ company that manufactures motor mowers which does not appear to be represented by the OPEA

A response was received from the OPEA. Portable Gardening Equipment

MSAA OPEA

A response was received from the OPEA.

Chainsaws

MSAA OPEA Forrest Industries Association of Tasmania Forrest Products Association of NSW

A response was received from the OPEA.

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Appendix 3: European Union Noise Label ANNEX IV MODELS OF THE CE MARKING OF CONFORMITY AND OF THE INDICATION OF THE GUARANTEED SOUND POWER LEVEL The CE conformity marking must consist of the initials ’CE’ taking the following form:

If the CE marking is reduced or enlarged according to the size of the equipment the proportions given in the above drawing must be respected. The various components of the CE marking must have substantially the same vertical dimension which may not be less than 5 mm. The indication of the guaranteed sound power level must consist of the single-number of the guaranteed sound power in dB, the sign ‘LWA’ and a pictogram taking the following form:

If the indication is reduced or enlarged according to the size of the equipment the proportions given in the above drawing must be respected. However, the vertical dimension of the indication should, if possible, not be less than 40 mm. The marking may be embossed or on a label. There is no requirement for the colour of this marking. For equipment weighing less than 20 kg, the vertical dimension of the indication may be reduced to 20 mm.