RoHS Update

In case you were wondering whether to expect a decision on the huge number of RoHS exemption renewal application received by the Commission a year ago by January 21 of this year, as required by Article 5, paragraph 5 of the RoHS Directive (2011/65/EU), one word: don’t.

Article 5, paragraph 5 says

The Commission shall decide on an application for renewal of an exemption no later than 6 months before the expiry date of the existing exemption unless specific circumstances justify other deadlines.

Since the “expiry date” is July 21, 2016, we should normally expect a decision on any renewal application by January 21, 2016. But note that they gave themselves an “out”: unless specific circumstances justify other deadlines. Between receiving over 80 exemption application renewals, a newly appointed RoHS Officer, and everything else going on with the RoHS Directive they wisely decided to invoke this clause. DG Environment’s website says 

Considering the very large amount of renewal applications received, the expected timeframe for the Commission to take a decision on a RoHS exemption application is currently 18-24 months from the application date. Existing exemptions for which a renewal request has been submitted remain valid until a decision on the renewal application is taken by the Commission. Priority will be given to older applications.

Practically, this means that none of the exemptions for which a renewal application was received will expire in July 2016. Note that, while a renewal application was received for exemption 7(b), it was later withdrawn. Therefore exemption 7(b) will expire on July 21, 2016.

The six exemption renewal requests received first will, according to this statement, be addressed first. For instance, since the renewal request for Exemption 9b was submitted (and presumably received) on October 7, 2014, we should expect it to be addressed sometime between April and October 2016.

Note, as well, that the Commission released a consolidated version of the RoHS Directive that includes all exemption updates as well as the new substance restrictions. It’s available from their RoHS Legislation web page.

REACH Update

ECHA has stated that they will revise the Article Guidance document to reflect the ruling by the European Court of Justice in two stages:

 

A quick update in the coming months restricted to correcting the parts with references to the 0.1% limit that are no longer consistent with the conclusions of the Court judgement. This will be carried out using a fast-track procedure – only the competent authorities for REACH and CLP (the CARACAL) will be consulted on the update.

A more comprehensive exercise to allow for a general update and re-structuring of the document. It is foreseen to include a review of the current examples against the experience gained and questions received by ECHA since the guidance was published, as well as development of new examples that are fully aligned with the Court judgement. This update will be subject to the normal three-step guidance consultation process, including consultation of accredited stakeholders.

 

The draft of version 3 of the Guidance on requirements for substances in articles was submitted to CARACAL (the group of Competent Authorities for REACH and CLP) in mid-October. This appears to be a working version, as the differences are not as extensive as are required. For instance, several examples have been removed and not yet replaced. In any case, textual changes of significance include

  • A new paragraph in section 4.2 that says “The notification obligation rests on importers and producers of articles. Therefore, the (EU) producer of a complex article does not need to notify the component articles that he uses, because they have been notified upstream by the persons who imported or manufactured them.”
  • Section 4.4 removes the sentence that says “For obligations according to Article 7(2) and 33 to apply, the concentration of this SVHC has to exceed 0.1% (w/w) in the entire article as identified according to chapter 2”, but then it contains the same outline of the methodology to calculate SVHC weight as a percent of the entire article! I would have expected this to be removed and possibly replaced in order to describe compliance with the ruling.

ECHA may want to consider more extensive updates of the Guidance document, as it, for instance, references the repealed 2002/95/EC and 2002/96/EC RoHS and WEEE Directives, respectively, in Appendix 6.

Meanwhile, the Forum for Exchange of Information on Enforcement (“the Forum”), which consists of representatives from each of the EU Member State REACH Enforcement Authorities, has announced that it will schedule a pilot projectto focus on enforcing the provisions for substances in articles in REACH in 2017. The announcement says “The Forum is committed to coordinating enforcement of these provisions following the recent judgement of the Court of Justice (10 September 2015 in case C-106/14) clarifying the obligations under Articles 7(2) and 33 of REACH.” Industry, therefore, has a year to comply with requirements that are yet to be clarified.

As each EU Member State is responsible for enforcement, each came up with sometimes wildly different penalty regimens. The intent of the Forum, if you will recall, is to coordinate and develop best practices for, if not exactly harmonize, enforcement of REACH among the Member States.

One key mechanism used for communication among the enforcement authorities is the RAPEX system, “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…” So if a product gets stopped at one customs facility it’s no use trying to resend it through another.

Contact

Visit DCA at www.DesignChainAssociates.com or email me with any questions or comments on this post.

Mike Kirschner


Mike Kirschner

Mike Kirschner is a product environmental compliance and performance expert who provides advice and expertise to manufacturers in a variety of industries. His primary areas of focus include EU RoHS, the impact of EU's REACH regulation on article manufacturers, California’s Safer Consumer Products regulation, and performance standards like IEEE-1680.x for electronics. Mike helps manufacturers define, implement and troubleshoot internal management systems that result in compliant products, and assesses and monitors environmental regulations around the world on their behalf.

He contributed two chapters to the Governance, Risk, and Compliance Handbook, published by Wiley in 2008, and is featured in the critically acclaimed book, Exposed: The Toxic Chemistry of Everyday Products and What's at Stake for American Power. In 2009 he was appointed to the California EPA Department of Toxic Substance Control's Green Ribbon Science Panel. Prior to joining ENVIRON, Mike founded product lifecycle and environmental consultancy Design Chain Associates, LLC (DCA), where he served as president and managing partner. Before founding DCA in 2001, Mike spent 20 years in engineering and engineering management roles within the electronics industry with manufacturers including Intel and Compaq. He holds a BS in electrical engineering from Worcester Polytechnic Institute.

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