Are you in or out of RoHS scope?

So you think your products don't fall within the scope of the European Union's Restriction of Hazardous Substances (RoHS) directive? Have you performed the necessary due diligence to ensure the proper documentation? What will you present to the enforcement authorities (or your customers) in the event of your position being challenged?

It is heard time and time again that the scope of RoHS is unclear. This generally comes from the same parties who mistakenly believe that there must be a generic exemption for "mission critical" or "high reliability" equipment. However, it is true that the scope in some areas, for example Fixed Installation, is a little hazy but this will not help any company who has a difference of opinion with the enforcement authorities. If a company can prove due diligence in assessing that they are out of scope then they are far less likely to have an issue with either the authorities or with their customers.

Tricky areas are those where there are still differences of opinion with the law setters. Fixed Installation is a case in point. The category of Fixed Installation does not appear in the legislation; it's first mentioned in the original U.K. DTI Guidance document. It was given some endorsement by appearing in the EU FAQ document where reference was made to precedence on a category of Fixed Installation appearing in the EMC Directive guidance.

However, the category is contentious. Some members of the EU RoHS Technical Adaptation Committee believe that a product needs to fit the category of Large Scale Industrial Tool prior to qualifying for assessment as a Fixed Installation. The majority of the TAC disagrees, and holds by the definitions in the EU FAQ document and in the DTI RoHS Guidance.

Adding to the confusion is the difference in opinion by the National Weights and Measures Laboratory, the U.K.'s RoHS Enforcement Agency. The NWML states that a Fixed Installation is where the equipment becomes indiscernible from the building and hence the equipment becomes part of a product that is not within scope of RoHS (i.e. the building).

On closer analysis, the view on Fixed Installation being a subset of LSIT and the National Weights and Measures Laboratory view are both credible as they are based upon criteria reflected in other parts of the legislation. Unfortunately this also means that they both make the category of Fixed Installation redundant which is why it was introduced in the first place — to cover a category of equipment that was not covered in the legislation. This issue is currently with the European Commission for a ruling.

Another tricky but related area is the contention between the exemption for lead in solders for telecommunications infrastructure equipment, and the DTI/EU description of a Fixed Installation. It could be argued that all rack-mounted equipment could be categorized as Fixed Installation under the EU definition. This would make the explicit exemption for lead in solders for Network Servers and Telecommunications Infrastructure Equipment redundant.

To clarify this, the National Weights and Measures Laboratory has advised RoHS and WEEE Specialists International that a 19-inch rack equipment supplied in a rack would be considered in scope. At the end of the day, unless you want to go through the EU Court, the enforcement agency's word is the final word.

However, sometimes the responses from the NWML are not definitive. For example, one response states: "It may be that a given system as you describe is or is not a fixed installation and is the responsibility of the producer to determine this on a case-by-case basis." The purpose of asking the NWML was to determine if the product was or was not in scope.

Apart from the issues with Fixed Installation and a lack of clarity of what constitutes a Measuring and Control Instrument, a logical argument can generally be made to show if a product is in scope or out of scope. The down side is you need an intimate knowledge of specific documents and sources listed below and the ability to craft a logical argument that will withstand legal scrutiny, which is often beyond the resources and capability of many small to medium-sized enterprises, however, if a company wishes to give it a go here are some handy tips.

There are many credible sources in the industry that can provide insight into the intent of the EU environmental directives as well as the stated scope. Sources include:

• WEEE Directive
• RoHS Directive
• EU FAQ document, updated in June 2006
• DTI Guidance documents
• ERA Technology presentation to Stakeholders (April 2006) on categories 8 and 9 (Medical devices and Monitoring and Control Instruments)
• National Weights and Measures Laboratory Web site
• National Weights and Measures Laboratory hot line

Here's how to start.

• Start by looking at the actual Directives as they have the highest legal "weight".

• Review the EU FAQ document. This document holds the next highest legal weight, even though it is not legally binding.

• Then look through the DTI RoHS Guidance document. Again, this is not legally binding but it is publicly issued guidance from a competent authority

• Finish up with the National Weights and Measures laboratory web site especially its FAQ page. If you still are not sure this web site has an e-mail enquiry service, however, do not be surprised if the reply is simply cut and pasted from its existing information on their web site.

• Format your document into a logical argument, laying out why you believe your product/product range is out of scope. A sample Scope Assessment is available at www.raws.co.nz.

  A major trap is basing your defense on information found on the web that is personal opinion, conjecture or out of date. There are plenty of well intended but ill informed and out-of-date presentations available on the web. These are to be avoided at all costs. The links given above go back to the source material for each of the recommended documents and as such will be the latest releases.

  It needs to be appreciated that proving that you are out of scope of RoHS is not an exact science. There will always be an element of risk. As further guidance is given, and as cases go to court and legal precedence is set the goalposts will move. However, exercising due diligence in documenting your argument will go a long way towards mitigating your business risk.

  You can reach Roland Sommer at rsommer@raws.co.nz.

  Editor's note: For additional help on determining if your products fall within the scope of the RoHS directive, visit www.rohs.gov.uk/DecisionTree.aspx.

  Original text is here