The UK's Department of Trade and Industry has posted at  <http://www.dti.gov.uk/sustainability/weee/index.htm> http://www.dti.gov.uk/sustainability/weee/index.htm links to draft regulations implementing the EU RoHS directive, and also to guidance explaining the directive and the UK's implementation of it. (The regulations document is 14 pages and the guidance is 21 pages. Neither has a document number. They are .pdf files dated July 30, 2004 and so do not reflect recent decisions by the Technical Adaptation Committee.) Maybe everyone else has already seen these documents, but I discovered them and prepared this posting just before the link was posted today. For those who don't have the time to dig into these documents for themselves, I offer these observations, which I prepared to help my understanding.

The web site (which was updated this month) states "The Government is planning implementation of the WEEE and RoHS Directives. They were required to be transposed into UK law by 13 August 2004. However the Government now expects to transpose in 2005. It intends to make an announcement about the timing of the legislation early in 2005." So the organization responsible for enforcing compliance is itself noncompliant. But then governments are, as the saying goes, "a law unto themselves." For all I know, the UK is out ahead of the pack. I have not heard of corresponding documents from any of the other EU member states. I guess that the Brussels bureaucrats don't have a mechanism (or the clout) to call the parliaments of the member nations into court to defend their lack of compliance with EU directives. 

If this draft regulations document is the first EU member nation's implementing legislation, then even before it becomes law it is of particular interest, as it may serve as a template for the enabling legislation in the remaining ones.

The regulations specify maximum concentration values of the "hazardous substances" present in electrical and electronic equipment to which the regulations apply. These maximum concentration values are stated as 0.1% by weight in "homogenous" (should be "homogeneous") materials for all substances except cadmium (for which the limit is 0.01%.) Remarkably, in spite of all the discussion that has gone on regarding the meaning of homogeneous, this term is not defined in the document (perhaps deliberately - it is fully discussed in the guidance document). (There is no "intentionally added" clause, which would be unenforceable as it would require the enforcement authority to discern intent.)

The regulations require a producer to "ensure that new electrical and electronic equipment placed on the market on or after 1 July 2006 shall [should be "does"] not contain hazardous substances." If the Government suspects a nonconformance, their officers are authorized to buy and test suspect hardware and to require that the producer "submit within 28 days of the date of the request, technical documents or other information showing that electrical and electronic equipment placed on the market complies..." The Government is authorized to impose on "summary conviction ... a fine not exceeding level 5 on the standard scale [whatever that is]." I didn't see any provision for imprisonment. (See also the excerpt from the guidance document below for more on enforcement.) Incidentally, the RoHS directive states (Article 8) "Member States shall determine penalties applicable to breaches of the national provisions adopted pursuant to this Directive. The penalties thus provided for shall be effective, proportionate and dissuasive."

Interestingly, the enforcement authority is prohibited from commencing proceedings for an offense in Scotland. Although the document includes an explanatory note at the end, no explanation is offered for why Scotland is treated differently than the rest of the UK. There's nothing in the guidance document about this, either. Politics, no doubt.

There is no requirement for a producer to submit documentation except upon being served a "compliance notice" by the Government. I did not find any authorization for the Government to impound hardware, not only while the alleged nonconformance is being litigated, but even after an adverse decision has been handed down. There is explicit provision allowing the producer to "show that he took all reasonable steps and exercised all due diligence to avoid commiting [unless the UK allows this spelling, this should be committing] the offence."

Turning now to the draft guidance document, it explains the RoHS directive and the UK implementation of it. It is much better written than the directive itself. It points out that it is "informative but has no legal authority". It has extensive suggestions on demonstrating compliance. It has an Annex C which offers valuable insight to the material exemptions list of the RoHS Annex. (This list appears as Schedule 3 in the regulations and is erroneously referred to as "Schedule 2" in the guidance.) Here are some excerpts from the guidance document that I found particularly useful. 

For many products, the decision on whether they are included within the scope of these Regulations should be reasonably straightforward. However there are a number of products (particularly in specialised or industrial sectors), where there may be significant areas of doubt and uncertainty. [We all knew this, but it's nice to see this acknowledged by the entity responsible for enforcement.]

Given that the scope of the RoHS Directive is drawn from that of the WEEE Directive it is the Department's view that certain provisions in the WEEE Directive may apply to EEE within the RoHS Directive so as to limit its scope. There is, however, no express provision to this effect. 

The guidance that follows uses some of the criteria for assessing "grey area" products (those whose inclusion within the scope of the RoHS Directive is in doubt) that have been discussed in the Technical Adaptation Committee (TAC) of Member States. It should be noted that this guidance represents the Department's view and, in common with all EC Directives, a definitive view may only be obtained through the courts. Producers must rely on their own legal advice on all questions of scope.

EEE intended to protect national security and/or for military purposes On the basis that there is an exemption in WEEE in relation to EEE intended specifically to protect national security and/or for military purposes, it is the view of the Department that equipment connected with the protection of the essential security interests of the United Kingdom and to arms, munitions and war material may also be considered to be exempt from the provisions of the RoHS Directive. It should be noted, however, that this exemption does not apply to any equipment that is used to protect national security and/or has a military purpose, but is not solely for these purposes. [See below for a modification of this.]

Electrical and electronic equipment that is part of another type of equipment The WEEE Directive excludes EEE that is part of another type of equipment that does not fall within the scope of the Directive. On the basis that EEE under RoHS is defined in identical terms, it is the view of the Department that such an exclusion extends to EEE under the RoHS Regulations. Equipment that is part of another type of equipment or system is considered to be outside the scope of the Directive where it does not have a direct function outside the other item of equipment.

An example of products that may be excluded from the Regulations Using the criteria set out above, it is possible to consider whether certain "grey area" products are included or not within the scope of the Regulations. An example would be lighting equipment for use on aircraft. This equipment would be excluded as it is designed to be part of a product that falls outside the scope of the Directive. 

Producers must demonstrate compliance with the Regulations by providing the enforcement authority (on request) with satisfactory evidence of such compliance in the form of relevant technical documentation or information. The UK intends to accept self-declaration as the basis of the compliance regime [emphasis added]. The enforcement authority will carry out market surveillance to detect non-compliant products and may conduct tests for this purpose.

Contravening or failing to comply with the prohibition on hazardous substances in the RoHS Regulations could result in those held responsible facing a fine not exceeding the statutory maximum (currently £5,000) on summary conviction or an unlimited fine [emphasis added] on conviction on indictment. 

Where an offence by a corporate body is shown to have been committed with the consent, connivance or through neglect of any director, manager or similar officer of the corporate body, they shall be regarded as having committed the offence as well as the corporate body. 

 

I conclude with some excerpts from the DTI's Notes on the Unofficial Technical Adaptation Committee (link available on the above web page) 10 December 2004 meeting. 

The Commission also announced that it had now received advice from its Legal Services on the issue of electrical & electronic equipment that is part of another type of equipment not covered within the scope of the WEEE and RoHS Directives. This type of equipment is specifically excluded from the WEEE Directive by Article 2.1 and the UK's view was that this exclusion should also apply to the RoHS Directive, (on the basis that EEE is defined in identical terms in both Directives). The Commission's Legal Services, however, do not agree with the UK's view and have decided that the current text of the RoHS Directive does not cover such an exclusion. [That looks like bad news for those counting on the WEEE Article 2.3 military exclusion -  to apply for RoHS as well.]

In order to help address this anomaly (which cannot be rectified through the comitology [a term unknown to Merriam-Webster Online] process), the Commission has included a new exemption proposal in its latest stakeholder consultation exercise - see exemption proposal 22 ["Applications of lead, mercury, cadmium, hexavalent chromium, PBBs and PBDEs in electrical and electronic equipment in the aeronautic and aerospace sectors that requires [sic] high safety standards", http://europa.eu.int/comm/environment/waste/rohs_consult.htm] in the new list. [Note that this is only a proposal.] Whilst welcoming the Commission's initiative, the UK raised concerns that this exemption should not be restricted to the aeronautic and aerospace sectors.

Methods of Compliance with the RoHS Directive A preliminary discussion on the ways in which producers may demonstrate compliance with the RoHS Directive was undertaken. The UK welcomed this discussion, which it felt was extremely important and long overdue. ...Both the Commission and a number of TAC members had also been approached by a major European IT and consumer electronics trade association, which was also interested in the development of practical guidance to support the agreed definition of 'homogeneous material'.

The Commission said that it welcomed the direct participation of industry in such issues [emphasis added], as the producer/manufacturer would be the key stakeholder that would need to comply with any resultant developments. The UK said that it understood that the development of standards was already being discussed in both the US and the UK, but that the European standard-setting bodies would not initiate any work programmes until the Commission formally asked them to do so.

It was agreed that this was an important issue and that discussions should be held early in 2005.

 

I hope that these comments are helpful to forum subscribers.
 
Gordon Davy 
Baltimore, MD 
[log in to unmask]
410-993-7399 
 

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