China: China "RoHS 2" and Implications for the Electrical and Electronic Products Industry

Richard Jay "Tad" Ferris is partner based in our Washington D.C. office.
Hongjun Zhang Ph.D. is a partner at Holland & Knight's Beijing office.

China's Ministry of Industry and Information Technology (MIIT) recently released a draft amendment to the Management Methods on the Control of Pollution from Electronic Information Products. These Management Methods are often referred to as "China RoHS" because they are similar in some respects to the European Directive 2002/95/EC on the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment also known as the "RoHS Directive."

The recently proposed amendments to China RoHS will, if promulgated, greatly expand the scope of China RoHS and potentially create other compliance and market access burdens for those in or supplying to the electrical and electronic products industry. Clearly, these proposed amendments represent one of the most significant developments for the electrical and electronics industry in China.

China RoHS Background

China RoHS was promulgated on February 28, 2006, and entered into effect on March 1, 2007. China RoHS was jointly issued by:

  • the Ministry of Information Industry (MII, now MIIT)
  • the State Environmental Protection Administration (SEPA, now Ministry of Environmental Protection)
  • the National Development and Reform Commission
  • the Ministry of Commerce
  • the General Administration of Customs
  • the State Administration of Industry and Commerce
  • the Administration of Quality Supervision, Inspection and Quarantine

MIIT serves as the lead agency for most issues related to China RoHS implementation and interpretation.

China RoHS constitutes a "framework regulation." A framework regulation is a national law under which a number of "implementing measures" are eventually issued to give effect (i.e., make compliance possible for) to the regulation's measures. "Electronic information products" (EIP) are within scope of China RoHS if they are specifically indicated on a separate list and not otherwise excluded.

China RoHS essentially includes two distinct regulatory programs:

Program 1: Labeling and information disclosure
In-scope EIP that conform to limits for six substances (mercury, lead, cadmium, hexavalent chromium, polybrominated biphenyls and polybrominated diphenyl ethers) set out in a separate standard must apply a specified pollution control logo to the EIP or in the EIP literature if no special labeling exceptions apply. In-scope EIP that do not conform (i.e., exceed) limits for the six substances listed above must apply a specified pollution control logo to the EIP if no special labeling exceptions apply. A table disclosing restricted-substance content in EIP exceeding the prescribed substance limits must also be provided in the EIP literature, where no special exceptions apply. Additionally, in-scope EIP packaging must comply with packaging recycling marking requirements set forth in a separate standard. Program 1, sometimes referred to as "phase 1" of China RoHS, is currently in effect.

Program 2: Substance restriction and associated compulsory conformity certification
In-scope EIP may be selected, pursuant to separate "procedures," to be listed in separate batches of a "Catalogue." The Catalogue batches are issued in succession, expanding over time the scope of this aspect (i.e., program 2) of China RoHS. EIP included in the Catalogue are subject to restrictions on the six substances (listed above in program 1) and compulsory certification of conformity to these restrictions. Program 2, sometimes referred to as "phase 2," is not yet in effect.

China RoHS 2 is a proposed amendment of the China RoHS framework regulation. China RoHS 2 was posted on the MIIT website on July 19, 2010 (though the draft amendment itself is dated July 16) for public comment. Comments are due by August 19, 2010.

Why an Amendment to China RoHS?

Some will wonder why, if phase 2 (involving substance restrictions and associated conformity certification) is not yet in effect, MIIT is proposing an amendment to the China RoHS regulation at this time. There are a number of factors behind this proposal. The following represent some of the key factors.

  • MIIT had been planning to get China's State Council (the highest level executive body in the Chinese government) to accept MIIT's draft amendment to China RoHS for inclusion in the State Council's legislative plan and eventual promulgation as a State Council Law. The State Council, at least for the 2010 State Council Legislative Plan, did not include the draft China RoHS amendment.
  • MIIT had wanted to amend China RoHS because Chinese government reorganizations in 2008 resulted in additional grants of regulatory authority, adding "industry management" among other responsibilities to the now former MII. With these added responsibilities, limits on regulatory authority that may have seemed appropriate for the former MII were no longer deemed appropriate for a ministry with broader responsibility. Under the former MII, for instance, it was not unusual that many "white goods" (e.g., washing machines, refrigerators) were not included in the scope of EIP regulated under China RoHS.
  • MIIT was and continues to be sensitive to European RoHS developments. While it remains a politically sensitive issue to indicate specifically that China is "following" a foreign law or policy, there is no doubt that European RoHS developments influence the lawmakers behind China RoHS and the China RoHS 2 efforts. Indeed, the European RoHS amendment efforts (i.e., the RoHS "recast" efforts), wherein there appear to be moves toward an "open" regulatory scope, are apparent influences on the China RoHS 2 changes, as discussed below.

Key Issues of Concern in China RoHS 2

Key among the proposed changes in China RoHS 2 is the scope of applicability. Whereas the current China RoHS programs apply to EIP specifically included in a separate list, China RoHS 2 proposes to do away with the notion of EIP and apply China RoHS to "electronic and electrical products" defined as "devices and accessory devices with working electrical voltages of less than 1500 volts direct current and 1000 volts alternating current" (China RoHS 2, proposed Article 3(1)).

While MIIT has not yet finally decided whether it will develop a list of electronic and electrical equipment to accompany this definition, the implications are clear that China RoHS will expand beyond the current confines reflected in the EIP List – a far greater number of electronic and electrical products will be affected.

How will electronic and electrical products be affected? If RoHS 2 is adopted as proposed, on the effective date, the in-scope electronic and electrical products will be subject to China RoHS labeling and information disclosure requirements.

At a later point, these products may be candidates for listing in a batch of the Catalogue and then be subject to the materials restrictions and associated certification requirements.

There are other changes in proposed RoHS 2, including more general language concerning conformity certification. This more general language may reflect efforts to provide for a more flexible conformity certification program for phase2 of China RoHS, or it may simply serve as the enabling measure for to-be-promulgated compulsory certification requirements.

Also of concern will be how MIIT manages the roll-out of phase 2 of the current China RoHS program. While recent indications are that this will be delayed in the near term, it will be important to monitor whether this delay continues until RoHS 2 is finalized.

Further, the status of other China RoHS implementing measures, including the concentration limit standards and other measures, may come into question at some point. If RoHS2 is finalized as proposed, changes in scope and terminology will no doubt, at some point, warrant revisions of these key implementing measures, as well.

Timing

MIIT has indicated that RoHS 2 will be notified to the World Trade Organization (WTO) Technical Barriers to Trade (TBT) Committee following the current public comment period. The present MIIT goal is to try to finalize RoHS 2 by the end of 2010. It is possible, per recent MIIT feedback, that MIIT will endeavor to have RoHS 2 enter into effect within one year of promulgation. This means, if RoHS 2 were to be somehow finalized by the end of 2010, we might see RoHS 2 in effect – with labeling and information disclosure requirements applicable to the new scope of products – by the end of 2011 or early 2012.

www.hklaw.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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