Submissions to the 2012 Review of the National Industrial Chemicals Notification and Assessment Scheme - Council of Textile and Fashion Industries of Australia Limited

The Discussion Paper: Review of the National Industrial Chemicals Notification and Assessment Scheme (NICNAS)–June 2012 was released on 1 June 2012. Submissions were received betweeen 1 June and 27 July 2012. The comments received from this consultation process will be used to inform the government of stakeholder views

Page last updated: 19 September 2012

PDF printable version of Council of Textile and Fashion Industries of Australia Limited submission (PDF 154 KB)

Andreas Schimkus
Industry Advisor
Ph. 03 8680 9400
Fax. 03 8680 9499
Mobile. 0423945446

16, 23-25 Gipps Street
Collingwood
VIC 3066

Summary

The regulation of industrial chemicals in Australia is an international, national, state and local public interest issue that affects every aspect of civil society and the environment. As such the Council of Textile and Fashion Industries of Australia (TFIA) welcomes this review and appreciates this opportunity to make a submission.

In the last decade, global trade has dramatically changed the environment in which regulators do their work. The number and types of industrial chemicals used has increased considerably, as have the types of consumer products they are added to.

As the Review Document notes, there has been no review of NICNAS since its establishment in 1990. We do not fully support the Productivity Commission’s claim that "the current institutional and regulatory arrangements are broadly effective in managing the risks to health and safety" (Chemicals and plastics regulation, Productivity Commission Research Report, July 2008).

We consider the National Industrial Chemicals Notification and Assessment Scheme (NICNAS) is out of step with the requirements of a modern regulator of industrial chemicals in the 21st century and is inappropriately constrained by its legislation, inadequate budget, as well as a failure to fully embrace community engagement.

In essence, it is the opinion of the TFIA Product Safety committee that the Australian community and environment continues to bear the brunt of chemical pollution. NICNAS’s current regulatory framework lacks strength having few compliance powers, appropriate penalties or powers for requesting data. It is also slow to respond to emerging science and international regulatory reforms.

Industrial chemical regulation is complex and cuts across many different areas of regulation. The fact that there is not a one-stop shop for industrial chemical regulation makes it very difficult for civil society to engage with the Government on industrial chemical management in Australia.
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The existing complex regulatory framework that Australia has for industrial chemicals has resulted in major gaps in a number of areas including:
  • A lack of critical exposure data such as volume and use information of industrial chemicals in commerce
  • Compromised chemical assessments due to lack of basic data
  • Poor uptake of critical regulatory assessment recommendations
  • Regulatory gaps for public and worker health protection
  • Regulatory gaps for environmental protection
  • Lack of cross agency coordination
  • Lack of information about importers, manufacturers and downstream users of industrial chemicals in Australia
  • Lack of regulatory harmonisation with comparable overseas jurisdictions
  • Uncoordinated audit, compliance and legal powers to protect human health and the environment
  • Little oversight of chemicals in products.
  • No audit and compliance enforcements for imported products.
    This review of NICNAS must address these major gaps in their regulatory function otherwise it will fail in its objective of improving and enhancing the environmental and public health outcomes.

    Part 4 – The regulatory framework for industrial chemicals (options A1 – A3)

  • Do you think that an industrial chemicals risk assessment and risk management manual would assist? If not, why not?
  • If so, what are the specific matters that could usefully be addressed in the manual?
  • What are the strengths and weaknesses of the options?

    Please refer to the attached document.

    Part 5 – New industrial chemicals (options B1-B6)

  • What are the strengths and weaknesses of the options for addressing the problems and objectives identified?
  • If weaknesses are identified in relation to any of the options, are there other options that also meet the objectives?
  • If these options were to be adopted, what are some of the implementation issues that would require consideration?
  • What would be the likely impact on your organisation, if this approach were adopted?
  • If NICNAS were able to refuse both an assessment certificate (Option B4) or listing on AICS (Option B5), under what circumstances would this be appropriate?
    Please refer to the attached document.

    Part 6 – Existing industrial chemicals (options C1-C6)


    Do these options address the problems identified in relation to existing chemicals? If not, why not?
    What are the implementation implications?
    If these options were (or were not) to be adopted, how would this impact on your organisation?
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    Please refer to the attached document.

    Part 7 – Post market monitoring and enforcement (Options D1-D3)

  • What are the strengths and weaknesses of the options?
  • Does an adverse effects reporting system address the problems and objectives identified?
  • What would be the impact of an adverse effects reporting system on introducers?
  • Are there other ways in which NICNAS’ post-market monitoring and enforcement capacity could be improved?

    Please refer to the attached document.Top of page
    Further to the attached document it should be clearly stated that as there is no legislative framework for toxic chemicals in TCF products, the Australian TCF Industry is not exposed to any enforcement or post-market monitoring systems.

    Part 8 – Other reforms – release of information and confidential commercial information (Options E1-E2)

  • How would the release of information to other relevant government agencies impact introducers?
  • What are some of the implementation issues that would require consideration?
  • What would be the impact of these options?
  • Are there any other ways in which the identified problems can be addressed?

    Please refer to the attached document.

    Part 8 – Other reforms – use of foreign schemes / international assessments (Options F1-F2)

  • Do these options strike an appropriate balance between the use of international assessments/harmonisation and the need to ensure that Australia retains the capacity to undertake Australian relevant risk assessment and management where necessary?
  • If these options were to be adopted, what are the implications?
  • If these options were (or were not) adopted, how would this impact on your organisation?

    Please refer to the attached document.Top of page
    _______________________________________________________________________________________________________________________________________________________________________________________

    Review of the National Industrial Chemicals Notification and Assessment Scheme

    Department of Health and Aging

    Department of Finance and Deregulation

    July 2012

    Submission from

    Council of Textile and Fashion Industries of Australia Ltd (TFIA)

    Submitted 27th July 2012

    Type: National Industry Association
    Address: Suite 16, 23-25 Gipps Street
    Collingwood, VIC, 3066

    Contact: Andreas Schimkus
    TFIA Industry Advisor
    Ph. (03) 8680 9400

    Declaration of Interest: As the peak representative body for the textile, clothing and fashion industries of Australia the TFIA represents the collective business interests of its members, which consist of companies engaged in design, manufacturing, distribution and retail activities in this sector of industry.

    Introduction

    The TFIA welcomes the opportunity make a submission to the Review of the National Industrial Chemicals Notification and Assessment Scheme (NICNAS).

    The purpose of the submission is to express the serious concerns that the Council of Textile & Fashion Industries of Australia (TFIA) has regarding the legislative and regulative frameworks affecting chemical use by the Australian Textile Clothing and Footwear (TCF) industry. TCF sector is unique in its reach into other sectors e.g. automotive, construction, mining, agriculture,

    The TFIA also has concerns about the unfair advantage given to offshore companies who in many cases are able to use inferior chemical treatments which are not monitored and yet constantly win the ‘value for money’ arguments in highly competitive local markets (including Government procurement).

    About the TFIA

    The TFIA is a national not for profit organisation representing businesses and individuals in TCF industry. Relevant to this submission is the TFIA membership of the International Apparel Federation and the International Textile Manufacturers Federation which keeps it informed of global best practise and legislative frameworks. The TFIA (and its affiliates) has approximately 1,800 members.

    The TFIA consults widely with industry, retailers, researchers, educators and Government agencies ensuring that member companies have input into the policy and legislation that affects their businesses.
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    Many of the TFIA's members have expressed concerns about regulation and compliance / monitoring of the TCF industry or rather the lack of it especially when it comes to false claims made on imported product e.g. compliance with standards, chemical regulation.

    Some members have stated that they believe that an unfair advantage is given to offshore companies because of the lack of monitoring. Others have had their procurement tender applications thwarted because they are not able to compete on the price or availability of value added chemical treatments.

    For the last 3 years TFIA has received increasingly negative feedback about the TCF Product Safety regime in Australia and the impact that it is having on their businesses, investments and goodwill built up over many years. As a result in 2010 TFIA organised industry consultations and submitted to the TCF Innovation Council and the Department of Innovation Industry Science and Research an event report and discussion paper on ‘Building Consumer Confidence in Textile and Fashion Sustainability’.

    In 2011 TFIA established a Product Safety Advisory Committee for the TCF industry. Committee members include RMIT University (RMIT), National Toxics Network (NTN), Commonwealth Scientific and Industrial Research Organisation (CSIRO), Australian Sporting Goods Association (ASGA), Choice, Australian Wool Testing Authority (AWTA) and Guwen Business Resources.Top of page

    This document is based on the professional views and recommendations of the TFIA’s Product Safety Advisory Committee.

    About the Australian TCF Sector

    The TCF sector has withstood 30 years of structural reform. Those that remain, as well as the new and emerging businesses, have adapted to survive in a highly competitive market. What sets them apart is their ability to undergo transformation, develop innovative products and services, manage lean operations, implement aggressive marketing strategies, travel extensively and maintain a passion for the sector. Australian brands are to be valued and showcased.

    In general terms the combined TCF supply chain (manufacture, wholesale and retail) is approx. $27.5 billion sector employing over 200,000 people. TCF products and services play an important role in the everyday lives of Australians. TCF businesses that supply them have invested heavily in capital and logistics management. A balance of product development, manufacturing and distribution activity is required to create wealth for the sector.

    Rapid change and international competitive pressures are no doubt impacting on all parts of the TCF supply chain. Compounded by business as well as consumer uncertainty, the sector is also processing ‘game changing’ innovation and technological breakthroughs. These include value added materials that protect and provide greater comfort and ease of care underpinned by chemical treatments.

    In a world now conscious of the impact of over consumption, consumer sentiment is also changing. New markets are opening for sustainable products including the ethical, organic, environmentally friendly, low carbon impact, safe chemical treatment and animal free.
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    There is also a place for the reused, remade, recycled and reclaimed. The industry is also ‘learning to churn’ waste product into substrates that can be extruded, bonded and moulded. Once again this activity requires the use of chemicals that create greater functionality and performance.

    Legislative frameworks based on sound reasons that are flexible and protect Australians from exploitation and harm are key to the TCF sectors future prosperity.

    For further details about the Council of Textile and Footwear Industries of Australia please visit our website.

    Overview

    The regulation of industrial chemicals in Australia is an international, national, state and local public interest issue that affects every aspect of civil society and the environment. As such the Council of Textile and Fashion Industries of Australia (TFIA) welcomes this review and appreciates this opportunity to make a submission.

    In the last decade, global trade has dramatically changed the environment in which regulators do their work. The number and types of industrial chemicals used has increased considerably, as have the types of consumer products they are added to.

    As the Review Document notes, there has been no review of NICNAS since its establishment in 1990. We do not fully support the Productivity Commission’s claim that "the current institutional and regulatory arrangements are broadly effective in managing the risks to health and safety" (Chemicals and plastics regulation, Productivity Commission Research Report, July 2008).

    We consider the National Industrial Chemicals Notification and Assessment Scheme (NICNAS) is out of step with the requirements of a modern regulator of industrial chemicals in the 21st century and is inappropriately constrained by its legislation, inadequate budget, as well as a failure to fully embrace community engagement.

    In essence, it is the opinion of the TFIA Product Safety committee that the Australian community and environment continues to bear the brunt of chemical pollution. NICNAS’s current regulatory framework lacks strength having few compliance powers, appropriate penalties or powers for requesting data. It is also slow to respond to emerging science and international regulatory reforms.

    Industrial chemical regulation is complex and cuts across many different areas of regulation. The fact that there is not a one-stop shop for industrial chemical regulation makes it very difficult for civil society to engage with the Government on industrial chemical management in Australia.
    Top of page
    The existing complex regulatory framework that Australia has for industrial chemicals has resulted in major gaps in a number of areas including:
  • A lack of critical exposure data such as volume and use information of industrial chemicals in commerce
  • Compromised chemical assessments due to lack of basic data
  • Poor uptake of critical regulatory assessment recommendations
  • Regulatory gaps for public and worker health protection
  • Regulatory gaps for environmental protection
  • Lack of cross agency coordination
  • Lack of information about importers, manufacturers and downstream users of industrial chemicals in Australia
  • Lack of regulatory harmonisation with comparable overseas jurisdictions
  • Uncoordinated audit, compliance and legal powers to protect human health and the environment
  • Little oversight of chemicals in products.
  • No audit and compliance enforcements for imported products.
    This review of NICNAS must address these major gaps in their regulatory function otherwise it will fail in its objective of improving and enhancing the environmental and public health outcomes.

    The role and functions of NICNAS as set out in the Industrial Chemicals (Notification and Assessment) Act 1989 and the extent to which they adequately reflect stakeholder expectations and international best practice, having regard to the broader context of chemicals regulation in Australia;

    Industrial chemicals are used extensively in society from industrial manufacturing through to consumer articles. The full life-cycle assessment of industrial chemicals dictates that a chemicals fate ultimately resides in the environment.
    Therefore, the principles of sustainability and toxics elimination must underpin any regulatory framework and must be implemented across all agencies that have a role in the regulation of industrial chemicals. These include the Australian Pesticides and Veterinary Medicines Authority, Therapeutic Goods Administration, Australian Competition and Consumer Commission, Food Standards Australia New Zealand, Safe Work Australia.

    Restricting the role of NICNAS to the notification and assessment (as defined under the Act) is insufficient to provide adequate regulatory oversight that reflects the important principles that have been defined under international conventions and treaty’s relating to best practice chemicals regulation to which Australia is signatory.

    NICNAS liaises with industry, scientists and other international regulatory bodies on the integrity of chemical assessment science, emerging issues of concern, new technologies, regulatory models and stakeholder engagement.
    Therefore, NICNAS is best placed to provide risk management regulatory advice and ensure its implementation and compliance. A closed loop regulatory model which accounts for the scientific assessment and risk management advice is best held within the same agency so that an evaluation of the effectiveness of any regulatory advice can take place and any adjustment made to improve that advice.

    For example, NICNAS provides regulatory advice under the Priority Existing Chemicals (PEC) review process. In the case of the PEC review of Formaldehyde critical recommendations were made yet little if any uptake of these critical public health recommendations has occurred within other agencies. Meanwhile the USA, EU and even some Asian countries now have tighter restrictions on the use of formaldehyde. Formaldehyde has now been listed in the 2011 Report on Carcinogens released by the US Dept. of Health and Human Services, Public Health Service National Toxicology Program. This is clearly unacceptable, yet unfortunately a common outcome of NICNAS PEC recommendations.

    Recommendations

    1. NICNAS must have powers to provide risk management and regulatory advice and ensure that it is implemented and complied with.
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    Community expectations about the regulation of industrial chemicals were clearly identified as a result of the Existing Chemicals Review National Public Engagement Strategy1. Of particular note was the expectation that NICNAS should have the powers to ban and restrict chemicals especially those that have been banned or restricted overseas, yet still used in Australia.

    Many in the community believed that the Australian government would not allow the use of chemicals that had been banned overseas or that were shown to be harmful to human health or the environment. Indeed there is considerable dismay and disbelief that our regulator did not even have these basic powers.

    Other jurisdictions have identified ‘chemicals of concern’ and have in some cases taken action to ban or restrict priority chemicals. Yet, a number of these chemicals are still in use in Australia. The use of Bisphenol A (BPA) in baby and children products in Australia is a case in point or Dimethylfumerate (DMF) in silica gel sachets.Top of page

    While NICNAS conducts Priority Existing Chemical (PEC) assessments and provides recommendations for restriction, it has no legal mechanism to enforce compliance to ensure the recommendations are followed.

    2. NICNAS must have the powers to ban and restrict chemicals.

    When the Australian Inventory of Chemical Substances (AICS) was established, industry was invited to nominate chemicals to the scheme without volume and use data. Similar and comparable overseas schemes required both these provisions. Therefore the Australian Chemical industry had a direct advantage compared to their overseas counterparts by having chemicals available for use without having the cost burden of providing critical exposure data.

    Some 40, 000 chemicals are now on the AICS and are available for use in Australia, providing industry with an historical and ongoing competitive advantage. Some of these chemicals are used in Australia in high volumes. For example petrochemicals such as those used in coal seam gas drilling and fracking and related petrochemical and fossil fuel industries.

    The long-term environmental and public health impacts of un-assessed existing chemicals in use in Australia are largely unknown2.

    NICNAS has been assessing a number of phthalates (some of which have been banned elsewhere) since 1999. Many of these are in children’s toys, articles and personal care products. This has taken over 12 years, clearly an unacceptable timeframe to assess a group of chemicals that have been banned and restricted in other countries some years ago. There is growing dissatisfaction with the level of protection afforded to Australian citizens, especially children.

    Companies have an obligation to ensure their products are safe for human use without being exposed because of prolonged delays or being accused of constructing artificial trade barriers in the form of regulation around use of chemicals, an argument often put forward by defenders of the current Australian frameworks.

    The United Nations Stockholm Convention on Persistent Organic Pollutants 2001 has identified based on internationally recognised criteria, a list of 22 chemicals, which ratifying countries should eliminate. However, Australia’s internal ratification process for industrial chemicals included on the Stockholm Convention is excessively slow and complicated and has left the Australian public and environment at risk.
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    The ability of Australia to rapidly ban or restrict the use of these industrial chemicals appears restricted by the fragmented and complex regulatory framework, as well as a lack of political will. Alarmingly, Australians including children have comparatively high levels of some of these chemicals (e.g. PFOS, Penta and Octa BDE) in their blood.

    There is also a risk that Australia could become a dumping ground for these dangerous chemicals and products containing them (e.g. BPA baby bottles) that other countries do not permit or want.

    3. In order to reduce regulatory burden NICNAS must accept overseas regulatory systems and its compliance and assessments schemes.

    The European Union and the US have over the last two decades established regulatory and compliance systems to control, assess and monitor their national chemical and product safety environment. Extensive research with an underlying compliance system like RAPEX should be the basis of a regulatory framework such as NICNAS. RAPEX is the EU rapid alert system that facilitates the rapid exchange of information between Member States and the Commission on measures taken to prevent or restrict the marketing or use of products posing a serious risk to the health and safety of consumers with the exception of food, pharmaceutical and medical devices, which are covered by other mechanisms.

    Since 1 January 2010, in regards to goods subject to EU harmonisation regulation, the system also facilitates the rapid exchange of information on products posing a serious risk to the health and safety of professional users and on those posing a serious risk to other public interests protected via the relevant EU legislation (e.g. environment and security). Both measures ordered by national authorities and measures taken voluntarily by producers and distributors are reported by RAPEX.Top of page

    To remain competitive in export markets Australian companies must comply with these regulations. The risk of an incident which tarnishes their brand is increased should they fail to do so. However the large volume of unmonitored imported product, record 1.2bn units of apparel3 last year, and the absence of an adequate testing and reporting regime, leaves the Australian businesses and consumers exposed to product safety issues.

    With the growth in international brands entering the Australian market and escalation of online purchases by Australian consumers of offshore product, the reputation of Australian brands could be lost or damaged without a fair and supportive framework i.e. it is safer to buy from EU brands. Consumers are becoming more aware of sustainability issues and chose brands that they know are safe to purchase from.

    4. NICNAS must have powers to obtain volume and use information about all chemicals in use, including existing chemicals, in Australia.

    Principals of sustainability and community right to know, are enshrined in a number of international chemicals management treaties Australia is signatory to. In line with these principles, the community expects that the role of regulating chemicals should include the ability to provide information on the volumes and use of all chemicals in Australia. Sound decision-making about chemical and waste management is not possible without this data.

    The NICNAS mission statement “...For the safe and sustainable use of industrial chemicals" has a hollow ring without the ability to provide such information. Innovation is stifled and capacity building a sustainable chemistry industry is compromised without such support from the regulator.
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    5. NICNAS needs a funding model that provides for stakeholder engagement and capacity building provisions for industry, community and government for the safe and sustainable regulation of industrial chemicals in Australia.

    The efficiency and effectiveness of NICNAS’s operating arrangements and business processes, with particular regard to the protection of human and environmental health, the management of risk, and compliance costs for business;

    The ability of NICNAS to provide excellence in chemical assessment is constrained by the lack of power NICNAS has in accessing critical exposure information. As previously stated, this is required not only for existing chemicals, but also for all new chemicals. Without downstream use information NICNAS cannot reliably assess a chemical’s use pattern and therefore cannot fully estimate exposure scenarios essential for any chemical assessment. This is also an important capacity building issue for NICNAS in being able to engage with downstream users not only for chemical assessment information, but also for a range of related regulatory issues, including notification and registration requirements, and waste management procedures.

    It is critical that NICNAS be able to address the full life cycle of a chemical, from ‘cradle to cradle’ and provide regulatory advice on the use and disposal of chemicals so as to protect human health and the environment. It is notable that the two key recommendations relating to these issues from the ECR are the only recommendations left that have not been implemented. Their future remains uncertain with no timeframe or commitment made to implement them. Issues of environmental fate and disposal are critical components of any regulatory advice within the chemical assessment process and therefore improved liaising with downstream users would enhance the ability of NICNAS to gather data and increase their knowledge about the use of chemicals in Australia.

    6. NICNAS requires increased and mandatory information gathering powers to obtain exposure data, downstream use information, adverse experience and surveillance monitoring data for human health and the environment.

    Fundamental to chemical assessment is the critical issue of surveillance and monitoring for both public health and the environment. The residues of chemicals in the environment are monitored through a limited number of federal environmental programs such as the National Pollutant Inventory (NPI), yet this information is not adequately or routinely used in chemical assessments. Body burden monitoring, epidemiology, eco-toxicology and endocrine disruption studies are similarly poorly utilised in the current NICNAS chemical assessment process. Bio monitoring remains one of the best indicators of the extent of bioaccumulation and persistence of chemicals in both humans and the environment.

    7. Better coordination and compliance monitoring of chemical regulation is required between Australian States and Territories so that all Australian citizens have equal protection.

    Most importantly the lack of assessment for the combined, cumulative and synergistic impacts of chemicals remains unaddressed by Australia’s fragmented industrial chemicals regulatory framework. As demonstrated above there is no single agency responsible for ensuring that the impact of multiple chemicals that humans are exposed to on a daily basis, does not harm the long term protection of human health or the environment despite the numerous agencies involved in industrial chemicals regulation. For this reason alternative chemical assessment information, such as ecotoxicological, epidemiological and endocrine disruption studies must be considered in chemical risk and hazard assessments.
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    8. The Australian Government requires a single agency to assess the multiple, cumulative, additive and synergistic effects of all chemicals in use in products and articles available to the Australian population.

    Case Study: Lead

    In 2010 the issue of lead in children’s playground equipment was highlighted by the discovery of excessive lead chromate levels in playground equipment in the WA town of Esperance. Some levels found were 250 times the "safe standard". The WA Department of Health posted an advisory on their website advising parents that as equipment more than 10 years old potentially releases lead chromate parents should ensure their children’s hands were washed after play to minimise exposure. Many scientists believe there is no safe level of lead chromate exposure for children.

    Although NICNAS has a role in assessing Lead Chromate, it does not assess products, articles or combinations of chemicals. The ACCC assesses the safety of consumer products, including children’s playground equipment but does not assess or have regulatory oversight for public playground equipment.

    This is a major gap in regulation whereby there is no agency responsible for the regulatory oversight of products such as children’s play equipment in public places. Despite this issue being raised at a national level with NICNAS, the ACCC, and the OCSEH, to date there has been no investigation into the prevalence or impact of lead chromate exposure on children from old playground equipment in Australia.

    The WHO advises that lead is one of the leading causes of death and injury for children globally. Lead is also the subject of international action through the "Global Alliance to Eliminate Lead in Paint”.4

    Conclusion

    The regulatory loop holes that exist and fail to account for the impacts on public health and the Australian environment from products and “public articles” not regulated by the ACCC needs urgent attention so as to prevent harm to both human health and the environment, especially children.

    1 Existing Chemicals Review National Public Engagement Strategy Summary & Evaluation Report Dec 2009 Jane Bremmer and Liz Hanna NICNAS Community Engagement Forum.
    2 NICNAS Community Engagement Forum.
    3 TFIA Annual Report 2010/2011 based on ABS data
    4 WHO Global Alliance to Eliminate Lead in Paint Newsletter

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    A full list of all 2012 submissions can be viewed at June 2012 submissions to the review of NICNAS.