EU and U.S. RoHS Update: Expiring Exemptions and Updated Directives

Last month, the European Commission finally issued an updated consolidated version of the RoHS Directive. This version is dated March 1, 2020 and includes updates from 54 Directives and Delegated Directives (as well as two corrigenda) that have amended 2011/65/EU.

Still, it remains a year out of date: seven Commission Delegated Directives adding or updating exemptions in Annexes III and IV, issued since the middle of last year, are not reflected in this document:

• Five Commission Delegated Directives (EU) 2020/360, 2020/361, 2020/364, 2020/365 and 2020/366 of 17 December 2019
• Two Commission Delegated Directives (EU) 2019/1845 and (EU) 2019/1846 of 8 August 2019

Despite the omissions, this consolidated version of RoHS is extremely useful, if for no other reason than to help me continue to hammer home the fact that EEE must comply with the requirements of Directive 2011/65/EU in its entirety, rather than 2015/863 alone.

Furthermore, Delegated Directive 2015/863 is not “RoHS 3”. Manufacturers who ask suppliers whether their products comply with requirements of 2015/863 are asking the wrong question.

EEE must comply with RoHS as of the date it is placed on the market: every amendment in force as of that date is included in the compliance obligation, not just one of them. Various aspects of the Directive have come into effect on different days and years over time. To pick a single amendment to the RoHS Directive and focus on that makes no sense at all – unless, of course, you don’t understand RoHS and how it actually works. Assuming that “everyone knows what I mean when I say ‘RoHS 3’” is a poor way to operate.

Exemptions with Renewal Requests

Meanwhile, the deadline for submitting renewal applications for exemptions expiring in July 2021 has passed so, at this point, all relevant applications been submitted. Of the 394 exemptions currently being tracked by the European Commission, 45 have renewal requests: 26 in Annex III and 19 in Annex IV. (note that I am lumping together renewal requests that may include more than one category set; for instance if an exemption renewal request covers both Categories “1-7 and 10” and “9 industrial” I am counting it only once).

Exemptions in Annex III with Renewal Applications:

Exemptions in Annex IV with Renewal Applications:

Note that there are 19 other exemptions in Annex III and Annex IV that have had renewal requests in place since 2018 or before:

Another important note is that the relatively popular exemption 7(c)-IV in Annex III (along with exemptions 9(a)-I, 21(a) (b) and (c), 24 and 37) will not be renewed. Manufacturers whose products take this exemption, and suppliers whose components do so, should be designing out and replacing those components immediately.

If your favorite exemption isn’t on these lists, you have a sustaining engineering issue on your hands.

RoHS-Like Regulations in U.S. States

While there is no “federal RoHS” in the U.S., a number of states have RoHS-like regulations neatly tucked away as requirements in their e-waste regulations. Many of these (e.g., New Jersey and Illinois) point directly back at the EU RoHS Directive, effectively incorporating it into the legislative or regulatory language.

However, while New Jersey amended its e-waste regulation in 2016, it failed to revise the reference to EU Directive 2002/95/EC which was repealed as of 2013. So, in theory, it is no longer possible to comply with that obligation.

The state of Illinois also references 2002/95/EC in Public Act 100-0433, but the implementing regulation – the Consumer Electronics Recycling Act (415 ILCS 151/) – is where the rubber meets the proverbial road, and that act does not reference any RoHS-related requirement.

California no longer appears to require compliance with EU RoHS directives: the original legislation (SB20/SB50) required compliance with 2002/95/EU, but today’s implementing regulation requires annual reporting of “an estimated average amount in milligrams for mercury, cadmium, lead, [and] hexavalent chromium, including their alloys and compounds, and PBBs used in covered electronic devices, and all their component parts by product category.”

The RoHS Directive, like all other EU Directives, is directed at the European Union’s member states rather than producers. The member states must then transpose it into their local regulatory structure; that is when it becomes an actual regulation with authority over EEE placed on the market.

Referencing a regulation, i.e. a European Union Directive, that is not implementable in the first place is probably the wrong thing to do, on top of the question of directly incorporating a foreign regulation into U.S. law. I’m not a lawyer, so I have had great difficulty understanding how one sovereign nation – or in this case, a state – can explicitly incorporate another sovereign nation’s regulations into its own without violating that sovereignty.

Extracting the relevant aspects of such a regulation into the local regulatory language at least enables legislative control over it. This is what California has done, but it has done so in a manner that is inconsistent with other RoHS-like implementations around the world, and so requires additional analysis by manufacturers.

The fantasy of a harmonized RoHS remains, and perhaps shall always remain, a fantasy.

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

Statements of fact and opinions expressed in posts by contributors are the responsibility of the authors alone and do not imply an opinion of the officers or the representatives of TTI, Inc. or the TTI Family of Companies.