In this feature article, Desmond Waight describes how ADR multilateral special agreements (MSAs) are created, where they may be applicable, and their value for domestic as well as, occasionally, for international journeys.

Introduction

In Article 4 paragraph 3 of the ADR agreement (rather than the technical annexes which most people use), it is provided that the Competent Authorities (CAs) of Contracting Parties (CPs) may agree directly among themselves for the authorisation of certain transport operations in their territories which are in temporary derogation from the requirements of ADR. This, of course, is only allowed if safety is not compromised.

ADR Chapter 1.5 then sets out some limitations on such temporary derogations, with more details on the procedures set out on the UNECE Dangerous Goods website.

The process

Over the last 30 years, the process has changed. It used to be that only bilateral agreements were negotiated. This meant, for example, that in order to get a derogation covering a journey, say from the Netherlands (NL) to Hungary, bilateral agreements would need to be negotiated between the Dutch and the Germans, the Germans and the Austrians, and the Austrians and the Hungarians.

While such bilateral agreements are still possible (and one still exists covering the use of Dutch language only for shipments between the Netherlands and Belgium), it is more common these days for a country to initiate an MSA which is open for signature by as many countries as wish to participate in that agreement.

When a CP considers that an MSA might be appropriate, it then follows the procedure that has been agreed by the ADR CPs over the years.

  • Firstly, the CP notifies the secretariat of its intention to initiate a multilateral agreement, advising a title.

  • The secretariat records the title, and advises the initiating CP of the serial number assigned.

  • The initiating CP adds the serial number to the draft agreement (eg "Multilateral agreement M999") and then proposes it directly to other CP(s) that it wishes to conclude such an agreement with.

  • As soon as the initiating CP has reached an agreement with these other CPs on the wording of the MSA, it transmits its signed copy to the secretariat in hard copy and electronically, and transmits unsigned copies to all other ADR CPs.

  • Those CPs agreeing to the MSA, then return a signed copy to the initiating CP and to the secretariat.

  • Once the secretariat receives the copy signed by a second CP, the agreement becomes valid and is entered in a publicly accessible database.

  • Any CP that then wishes to revoke its agreement has to notify the secretariat.

All MSAs must include the date of signature by the initiating CP and the following, final, standard clause: "This agreement shall be valid until (...) for the carriage on the territories of those ADR Contracting Parties signatory to this agreement. If it is revoked before then by one of the signatories, it shall remain valid until the above mentioned date only for carriage on the territories of those ADR Contracting Parties signatory to this agreement which have not revoked it. (date ...) The Competent Authority for ADR of ... (Signature)".

See below for the validity period.

If a signatory CP signs a multilateral agreement with reservations regarding its application, these reservations shall be expressly mentioned in the copy which it transmits to the secretariat.

Validity

All bilateral and MSAs are time limited, with a latest date for expiry not later than five years from the date of signature by the initiating CP. However, a fresh MSA may be generated for a subsequent five-year period, although it is hoped that during this period, you will have reached an agreement on changes to ADR covering the issue.

Carriage under MSAs

Carriage under the terms of an MSA is only permitted where international carriage takes place solely in the territories of the CPs that have signed the MSA. This means that in the earlier example of a shipment from the Netherlands via Germany and Austria to Hungary, if Austria should not sign the MSA, the shipment from the Netherlands via Austria is not permitted, and a route avoiding Austria but travelling over countries that have signed the MSA, will need to be found, if indeed such a route is possible.

Historically, even when an MSA has been initiated to allow the early introduction of an agreed future change to ADR (that all agreed is necessary), no MSA has ever been signed by over 50% of ADR CPs (some 48, currently). One of the most signed current MSAs is M260, which was initiated by the United Kingdom and signed on 12 April 2013. This derogates from the provisions of subsections 5.5.3.6 and 5.5.3.7 concerning carriage in packages and containers of substances which in carriage present a risk of asphyxiation. This has been signed so far by just 22 CPs (see Table 1) , even though it reflects agreed changes that are expected to come into force from 1 January 2015 under ADR 2015.

Table 1 — M260 Signatories

Country

Date signed

United Kingdom

12 April 2013

Sweden

24 May 2013

France

29 May 2013

Belgium

31 May 2013

Germany

3 June 2013

Switzerland

14 June 2013

Portugal

17 June 2013

Netherlands

18 June 2013

Austria

20 June 2013

Norway

20 June 2013

Slovenia

21 June 2013

Denmark

26 June 2013

Spain

26 June 2013

Bulgaria

28 June 2013

Latvia

9 July 2013

Hungary

10 July 2013

Italy

18 July 2013

Luxembourg

24 July 2013

Ireland

30 July 2013

Czech Republic

6 August 2013

Slovakia

9 September 2013

Finland

17 September 2013

Note:

For international shipments emanating from the UK, apart from shipments between Northern Ireland and the Irish Republic, international road carriage under the terms of an ADR MSA will only be possible if there is also compliance with either the IMDG Code or the Eurotunnel requirements as applicable.

Where only national carriage within GB is envisaged, then an alternative to an MSA is an authorisation to deviate from the requirements of ADR that the UK may be able to issue under regulation 12 of the Carriage of Dangerous Goods and Transportable Pressure Equipment Regulations 2009 (SI 2009 No. 1345) (CDG2009). Those of general validity are published on the Department for Transport (DfT) website.

However, once an MSA comes into force (when another CP other than the initiating CP signs the agreement), the MSA can be used for national carriage in the initiating, and other CP(s) territories.

Carriage under an MSA will sometimes require an additional statement in the transport document, such as “Carriage agreed under terms of section 1.5.1 of ADR (M123)”. In the past, it used to be quite common for the MSA to require the carriage of a copy of the MSA, but this is not so frequent now that the MSAs can be readily accessed via the Internet.

Recent examples of MSAs

Recent examples of MSAs initiated include the following.

  • MSA M272 initiated by Germany on 10 January 2014, to provide for the carriage of lithium ion and lithium metal cells and batteries and equipment containing such cells and batteries carried for disposal or recycling under special provision 636. So far, it has only been co-signed by Switzerland (so international carriage under this MSA is only currently possible between German and Switzerland).

  • MSA M273 initiated by Germany on 12 February 2014, to provide relief from the new requirements for the minimum size of the UN number marking on gas cylinders (until the next inspection date, but no later than 30 June 2018). So far, it has only been co-signed by Spain (so any international carriage under this MSA is not yet possible).

Originating an MSA

As can be seen from above, only the CAs of CPs can initiate a bilateral or multilateral ADR special agreement.

Accordingly, if a company wishes to promote the generation of an MSA and needs to consider the most appropriate CP CA to initially approach, it is usually a good idea to have prepared a rough draft of any such special agreement, together with appropriate justification arguments.

Presuming that the CA of this CP agrees to start the initiation of a new MSA, it may then be necessary to approach the CAs of other CPs in order to try and get them to countersign the MSA, or to do so in a timely manner.

Note:

Based on past history, there is little point in seeking an authorisation expecting this to be signed by a substantial number of the 48 CPs.

Conclusion

While the existence of ADR MSA may be useful, especially in the case of domestic transport in a country that is a signatory to the MSA, because of the constraints concerning in which countries carriage can take place under the terms of the MSA, carriage under an MSA will always need special company controls regarding to whom the product will be provided, and the routings necessary to get there.

Last reviewed 9 May 2014