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RoHS enforcement rules still unclear
(Purchasing Via Thomson Dialog NewsEdge) While the electronics
industry has spent billions of dollars to comply with the European Union's Restriction of Hazardous Substances (RoHS) directive, it is unclear how the law will be enforced.
The European Commission (EC), which oversees the RoHS legislation, was supposed to release enforcement guidance for RoHS last year, but did not do so until late May. RoHS bans the use of lead, mercury, cadmium, chromium, polybrominated biphenyls and polybrominated diphenyl ethers from electronics sold in EU member states beginning July 1. Companies that violate RoHS can be fined and its executives could face criminal penalties, including jail time if their companies flagrantly violated the law. Despite the stiff penalties, the EC waited until almost a month before the RoHS deadline went into effect before issuing a guidance.
"It was a frustrating thing. Everyone was waiting for this enforcement guidance to come out," says Holly Evans, president of Strategic Counsel, an Alexandria, Va., a firm that advises companies on environmental regulations. "It should have been issued about a year ago so that companies can prepare." "It was negligent of the commission to not release an enforcement guidance," until May she says.
The guidance that was issued is not legally binding, and no EU member state is required to follow the enforcement recommendations, so exactly how RoHS will be enforced is still unclear. However, the guidance is useful because it promotes a due diligence approach to enforcement, says Evans.
The guidance says companies should have a Compliance Assurance System (CAS) which covers compliance within the company and with the company's suppliers. Companies should collect documentation that shows that their products and their supplier's products comply with the EU directive. Such documentation could be materials declarations that show products meet RoHS requirements and analysis reports from company tests on products.
If a company's product is called into question, the company would be asked to show documentation, according to the guidance. If the EU enforcement agency is not satisfied with the documentation, the product could be tested. The guidance suggests use of energy-dispersing x-ray fluorescence analysis for suspect products.
It the product is found not to be RoHS compliant, the manufacturer would be informed and the enforcement agency would decide whether to take legal action which would lead to fines. The enforcement agency could also work with the manufacturer to bring the product into conformance.
Evans says the law will be enforced and she expects there will be some "high profile cases so the commission can show it is serious about the law." In addition, there will be some environmental groups pushing the commission to enforce it.
She says there are some likely scenarios for enforcement. "For instance, if a product enters the Netherlands, Dutch custom officials would review it to determine if testing was necessary." They could do spot checks, randomly checking a computer, a television or other piece of electronics equipment to see if it complies, she says.
One thing that is known about enforcement is that no government agency will certify that a product is compliant. Rather, the product will have a presumption of compliance if a company ships products to an EU member state after the July 1 deadline. However, if there is reason to suspect noncompliance through a spot check or if an environmental group calls a product into question, the company will be asked to show documentation that proves it is compliant, says Evans. If officials are not satisfied with the documentation, the product would be tested for the hazardous materials covered by RoHS.
Timing is everythingWhile there has been confusion about enforcement there has also been confusion about the timing of products shipped into the EU and whether they will be covered by RoHS.
"Products that are put on the market prior to July 1, 2006 are outside the scope of RoHS even if they contain some of the restricted hazardous substances," says Evans. But there are questions about whether products that are placed in inventory in an EU member state are actually considered to be on the market and therefore not under the scope of RoHS.
EC officials are concerned about the shipment of large amounts of noncompliant products into the EU just prior to deadline. There are indications that the stockpiling of large amounts of noncompliant equipment prior to the deadline won't be allowed.
"The other issue is some member states have said the 'put-on-the-market' determination occurs when the products enter their own territory, but that goes against what the commission said," Evans asserts. "The commission said when the product enters the EU, it is considered to be on the market," she says. So if a shipment of computers enters France before the July 1 deadline, but then is shipped to Italy and sold after the deadline, it would not be within the scope of RoHS, according to the EC. The fact that the shipment was transported to another member state after the July 1 deadline shouldn't matter, but some EU countries are saying otherwise.
"It is a difference of opinion that needs to be worked out," says Evans.
Due diligence doneWhile the EC waited to release enforcement guidance, many procurement organizations have established a supply chain material declaration process and a database for the information that they have received from their suppliers concerning materials and compliance. Most companies have received material declarations and certificates of compliance from their suppliers.
Many companies have also formed a corporate-wide compliance team and developed a corporate RoHS statement and a RoHS compliance roadmap.
Evans says the more a company can document that it is using RoHS compliant parts and that its supplier "assessment and analysis appear to be reasonable," the better the company can argue that it has done everything possible to ensure RoHS compliance.
Most major OEMs and EMS providers are not worried about being compliant and being able to prove it even though the EC's guidelines are unclear.
In fact, some EMS providers have been working on lead-free manufacturing for years. Case in Point: Flextronics in San Jose, Calif. "We started our lead-free journey back in 1995," says Seb Nardecchia, director, environmental compliance for the EMS provider. "We invested a lot in research and development to understand what the lead-free alternatives are and what impact they have on manufacturing processes, energy use and reliability of the end product. It has been a costly and a worthy effort."
The problem Flextronics and other EMS providers face is that they have to maintain both RoHS-compliant and noncompliant lines as well as separate stockpiles of RoHS and noncompliant parts. That's because many EMS providers have networking equipment, medical equipment and defense contractors as customers. Those industries are exempt or excluded from RoHS and have no immediate plans to design RoHS-compliant products.
What buyers need to know about RoHSJames CarboneThe Restriction of Hazardous Substances directive by the European Union is about to go into effect. While it is European legislation, it affects all companies that ship electronics equipment into Europe. RoHS is also serving as a model for other countries which are developing legislation to regulate hazardous substances in electronics equipment. Here are details of the initiative and what it covers.
Effective date:
July 1, 2006
The goal:
To prevent hazardous materials from being used in electronics equipment that may end up polluting the environment after they are disposed.
Substances banned:
Lead, cadmium, mercury, hexavalent chromium, polybrominated biphenyls, and polychlorinated diphenyl ethers.
Materials affected:
Plating on electronic components and solder.
Equipment affected:
All equipment dependent on electrical currents or electromagnetic fields. Includes computers and telecommunications equipment, consumer electronics equipment, electrical and electronic tools, toys, monitoring equipment and automatic dispensers.
Industries and products exempted:
The auto industry, lead in cathode ray tubes, high-end servers, storage and array systems, networking infrastructure equipment, mercury in fluorescent lights. (See complete list of exemptions at www.purchasing.com
)
Source: Official Journal of the European Union
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