Tim,
It's unlikely that a Producer will be prosecuted if they relied on
information after having applied due diligence. If you check out the
RoHS Enforcement guide on the NWML website:-
http://www.rohs.gov.uk/Docs/Links/RoHS%20Enforcement%20Guidance%20Docume
nt%20-%20v.1%20May%202006.pdf
Figure 1, shows the enforcement methodology for compliance assessment
using documentation.
Allen
-----Original Message-----
From: Timothy McGrady [mailto:[log in to unmask]]
Sent: 03 November 2006 13:43
To: (Leadfree Electronics Assembly Forum); Ferry, Allen
Subject: Re: [LF] EU Not Busting for RoHS Violations Yet
Allen:
Yes, all of what you say is true. In fact, I have already spoken with
companies importing into the EU via the UK that they have asked for
documentation of compliance (showing due diligence). If there are few
standard tests and few reference materials with which to validate tests,
then the documentation including some test results showing compliance
likely
does not hold water. If the UK authority accepts the paperwork anyway,
fine. In cases where there are obvious violations, such as leaded
solder,
they have the means to detect the high lead and if the paperwork shows
"lead-free" then they can hold up the shipment.
But in cases where the paperwork says "no restricted flame retardants",
they
cannot dispute that claim right now. The fact is, though, that you may
have
received a report from a lab stating that brominated flame retardants
were
not detected when in reality decaBDE was present at a concentration
greater
than the MCV. Then the enforcement authority might check with a hand
held
XRF and detect bromine - but what if they then go forward and have the
plastic analyzed for PBDEs using the flawed draft IEC method? They
might
find restricted PBDEs even if there was only exempt decaPBDE present.
Greenpeace used that method and found nonaBDE two times higher than
decaBDE - not at all likely, but that's what the test showed. An EU
Member
State might be eco-zealous enough to pin an infraction on you. A good
lawyer will be able to attack the methodology, but who wants to take
that
chance?
Tim
----- Original Message -----
From: "Ferry, Allen" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Friday, November 03, 2006 6:44 AM
Subject: Re: [LF] EU Not Busting for RoHS Violations Yet
Tim,
I am sure the enforcement authority will have done their homework but
the legislation implementing the RoHS directive into UK Law:-
http://www.rohs.gov.uk/Docs/uksi_20061463_en1.pdf
details the following offences:-
Failure to comply with:-
Regulation 7 Prohibition of Hazardous substances
Regulation 8 Requirements for technical documentation
Regulation 9 Retention of technical documentation
Under Regulation 8 the producer shall submit within 28 days of request,
technical documentation or other information showing that the EEE
complies with regulation 7.
Although, chemical analysis may be the reason a particular product has
been identified as being non-compliant under Regulation 8 it the
Producer who has to show the EEE put on the market complied with
Regulation 7.
Regards
Allen
-----Original Message-----
From: Leadfree [mailto:[log in to unmask]] On Behalf Of Timothy McGrady
Sent: 02 November 2006 17:16
To: [log in to unmask]
Subject: Re: [LF] EU Not Busting for RoHS Violations Yet
Thanks for that link, Mike.
When an enforcement authority finally does make the decision to go ahead
with a prosecution, they better make sure they've done their homework.
There are very few standard methods for analysis of RoHS substances and
there are few reference materials with which to validate those methods.
That is not to say they cannot come up with a solid case - I'm saying
that
they should chose that case wisely and make sure they can support their
findings with solid, validated methodology. It will have to be a "no
brainer" - an obvious violation. But of course, the EU would prefer to
catch a high-profile company in non-compliance. And it is likely they
want
to catch a company originating in a developed nation such as Japan or
the
US - picking on a developing nation might not sit right with public
opinion.
That might not be so easy, given the amount of attention paid to RoHS by
the
big boys. None of them wants to be the next Sony, and they certainly do
not
want their company name or product name in the media.
That being said, there has been a lot of testing done using methods that
are
inappropriate and can result in false negatives. So there's a chance
that a
relatively big company placed faith in a lab or used inappropriate
methods
themselves to overcheck results from independent labs. Even so, there's
also a good chance that EU enforcement authorities will also use
inappropriate methods to determine non-compliance (or conversely,
compliance). The lack of properly developed standards hurts all
involved:
enforcement authorities and producers alike. That is why standards must
be
in place before technical legislation such as RoHS go into effect.
The example I use to illustrate this problem concerns a government
developing a regulation stating that all children age 14 and under must
wear
a helmet while riding a bicycle. Let's say that no standards for
helmets
were developed prior to the regulation going into force. A kid is
observed
riding a bicycle wearing a baseball cap. Is that kid in violation of
the
law? Not without a standard defining a helmet and laying out the
technical
requirements necessary to protect the head in case of an accident. Now
let's say the givernment developed extensive requirements for the helmet
and
a standards development body developed a standard for such helmets. The
resulting helmet would protect the head in every case, but it would cost
$2000. Would it be fair to expect a poor child riding a cheap bike to
wear
a $2000 helmet? Again, the answer is no. But if the law went into
effect,
there would likely be plenty of violations to go around. Fakes of
standard
helmets would quickly become available. In that case, the government
should
have taken their requirements to the standard developers and experts and
get
their feedback before putting the law on the books. If the law was too
costly to implement, the regulation would have to be altered. In either
case, it is necessary to have standards developed prior to the
regulation
going into force.
That is why the World Trade Organization Technical Barriers to Trade
Agreement (TBT) is so important. Here is a quote from the TBT:
"
With respect to their central government bodies:
2.1 Members shall ensure that in respect of technical regulations,
products
imported from the territory of any Member shall be accorded treatment no
less favourable than that accorded to like products of national origin
and
to like products originating in any other country.
2.2 Members shall ensure that technical regulations are not prepared,
adopted or applied with a view to or with the effect of creating
unnecessary
obstacles to international trade. For this purpose, technical
regulations
shall not be more trade-restrictive than necessary to fulfil a
legitimate
objective, taking account of the risks non-fulfilment would create. Such
legitimate objectives are, inter alia: national security requirements;
the
prevention of deceptive practices; protection of human health or safety,
animal or plant life or health, or the environment. In assessing such
risks,
relevant elements of consideration are, inter alia: available scientific
and
technical information, related processing technology or intended
end-uses of
products.
2.3 Technical regulations shall not be maintained if the circumstances
or
objectives giving rise to their adoption no longer exist or if the
changed
circumstances or objectives can be addressed in a less trade-restrictive
manner.
2.4 Where technical regulations are required and relevant international
standards exist or their completion is imminent, Members shall use them,
or
the relevant parts of them, as a basis for their technical regulations
except when such international standards or relevant parts would be an
ineffective or inappropriate means for the fulfilment of the legitimate
objectives pursued, for instance because of fundamental climatic or
geographical factors or fundamental technological problems.
2.5 A Member preparing, adopting or applying a technical regulation
which
may have a significant effect on trade of other Members shall, upon the
request of another Member, explain the justification for that technical
regulation in terms of the provisions of paragraphs 2 to 4. Whenever a
technical regulation is prepared, adopted or applied for one of the
legitimate objectives explicitly mentioned in paragraph 2, and is in
accordance with relevant international standards, it shall be rebuttably
presumed not to create an unnecessary obstacle to international trade.
2.6 With a view to harmonizing technical regulations on as wide a basis
as
possible, Members shall play a full part, within the limits of their
resources, in the preparation by appropriate international standardizing
bodies of international standards for products for which they either
have
adopted, or expect to adopt, technical regulations.
2.7 Members shall give positive consideration to accepting as equivalent
technical regulations of other Members, even if these regulations differ
from their own, provided they are satisfied that these regulations
adequately fulfil the objectives of their own regulations.
2.8 Wherever appropriate, Members shall specify technical regulations
based
on product requirements in terms of performance rather than design or
descriptive characteristics.
2.9 Whenever a relevant international standard does not exist or the
technical content of a proposed technical regulation is not in
accordance
with the technical content of relevant international standards, and if
the
technical regulation may have a significant effect on trade of other
Members, Members shall:
2.9.1 publish a notice in a publication at an early appropriate stage,
in
such a manner as to enable interested parties in other Members to become
acquainted with it, that they propose to introduce a particular
technical
regulation;
2.9.2 notify other Members through the Secretariat of the products to
be
covered by the proposed technical regulation, together with a brief
indication of its objective and rationale. Such notifications shall take
place at an early appropriate stage, when amendments can still be
introduced
and comments taken into account;
2.9.3 upon request, provide to other Members particulars or copies of
the
proposed technical regulation and, whenever possible, identify the parts
which in substance deviate from relevant international standards;
2.9.4 without discrimination, allow reasonable time for other Members
to
make comments in writing, discuss these comments upon request, and take
these written comments and the results of these discussions into
account.
2.10 Subject to the provisions in the lead-in to paragraph 9, where
urgent
problems of safety, health, environmental protection or national
security
arise or threaten to arise for a Member, that Member may omit such of
the
steps enumerated in paragraph 9 as it finds necessary, provided that the
Member, upon adoption of a technical regulation, shall:
2.10.1 notify immediately other Members through the Secretariat of the
particular technical regulation and the products covered, with a brief
indication of the objective and the rationale of the technical
regulation,
including the nature of the urgent problems;
2.10.2 upon request, provide other Members with copies of the
technical
regulation;
2.10.3 without discrimination, allow other Members to present their
comments in writing, discuss these comments upon request, and take these
written comments and the results of these discussions into account.
2.11 Members shall ensure that all technical regulations which have been
adopted are published promptly or otherwise made available in such a
manner
as to enable interested parties in other Members to become acquainted
with
them.
2.12 Except in those urgent circumstances referred to in paragraph 10,
Members shall allow a reasonable interval between the publication of
technical regulations and their entry into force in order to allow time
for
producers in exporting Members, and particularly in developing country
Members, to adapt their products or methods of production to the
requirements of the importing Member."
The EU has always argued that because their regulations such as RoHS are
for
protection of human health and the environment and because they impact
their
companies in the same way as they impact importing companies, there
cannot
be a trade barrier (see paragraphs 2 and 5 above). But paragraph 2 can
be
argued in the case of RoHS. I contend (as I think many of you do) that
RoHS
is much more trade restrictive than necessary, taking into account the
actual impact the directive will have on human health and the
environment.
Had the proper standards been in place, billions of dollars would have
been
saved. If RoHS had not been implemented or had been delayed, I doubt
many
lives would be negatively impacted, if any at all. In fact, the
argument
can be made that RoHS can negatively impact human health, because there
is
high probability that a safety related part or system will fail due to
the
wholesale redesign of products and materials.
Tim McGrady
----- Original Message -----
From: "Mike Kirschner" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Thursday, November 02, 2006 12:05 AM
Subject: [LF] EU Not Busting for RoHS Violations Yet
> Rob Spiegel spoke, at our behest, to Steve Andrews to get a clear
response
> on why we haven't seen any visible cases of non-compliance in the EU
yet.
> He
> has more credibility on this topic than just about anyone, even DCA
;o)
>
> You can read his story, entitled "EU Not Busting for RoHS Violations
Yet",
> at
>
> http://www.designnews.com/article/CA6387098.html
>
> So the bottom line is that they're trying to find that first case to
go
> public with.
>
> Mike Kirschner
> Design Chain Associates, LLC
>
>
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