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Substance Regulations, more law!
(Think you escaped RoHS unscathed? Think again!)

Semiconductor equipment manufacturers generally escaped the efforts required to comply with Europe’s RoHS directive (2002/95/EC). Unfortunately the reprieve did not last long. Michael Kirschner, President, Design Chain Associates discuss two upcoming regulations on different sides of the world that will impact manufacturers of semiconductor equipment, their distributors and resellers, semiconductor material manufacturers, and even manufacturers of some production “consumables”.

In late February 2006, China promulgated in to law the “Administration on the Control of Pollution Caused by Electronic Information Products”1. While this title is taken directly from the Chinese government’s English language submission to the World Trade Organization back in September 2005 and their response to WTO comments in February 2005, there are several translations of the title in use. For clarity most people, and this article, will refer to it as China RoHS. This is actually a bit of a misnomer - the law, on the surface, looks like the EU’s RoHS directive, but its similarities nearly end there. The same six classes of target substances (lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls, and polybrominated diphenyl ethers) are the same, but the scope, the timeline, and the details of the requirements differ dramatically.

China RoHS Scope
Soon after promulgation, the Ministry of Information Industry released a very detailed list that describes what comprises “Electronic Information Products” (EIP). The AeA (formerly the American Electronics Association) translation of the list is 35 pages long, single-spaced. Compared to the sparsely populated ten categories described in Annex 1B of the European Union’s WEEE directive (of which eight are within scope of RoHS), this is quite refreshing. However, upon detailed review one quickly realizes that while there is significant overlap, there are many important categories of products that are included in the definition of EIP that are not listed in or covered by any of the ten WEEE categories.

China RoHS Requirements
China’s RoHS law takes a two-phase approach. The first phase goes in to effect on March 1, 2007 and requires that products sold to end users be appropriately marked and any component that contains one or more of the hazardous substances be disclosed in writing (in Chinese) in a document shipped with the product. Note that no substances are restricted yet; that will occur in phase two. The marking standard depends on the maximum concentration value standard, both of which have been available as Final Drafts since May, and are expected to be released by the Ministry of Information Industry in September (in Chinese only).

Despite the lack of a finalized standard, companies that produce EIPs have one of two responsibilities: first, if the product is not sold to an end-user, ensure that your customer knows whether and which of the six hazardous substances are in your product, and in what concentration. If the product is sold to an end-user, it must be marked with the appropriate label as shown in Figure 3, and the locations of the hazardous substances must be disclosed in a table, as shown in Table 1, in documentation included with the product.

What the Chinese government means by “Environment-Friendly Use Period” and why it would be considered a property of a product, rather than a property of the substances used, is quite unclear. An EIP Environment and Pollution Guidance Committee is said to be trying to establish a guideline, due later this year.

The “Catalogue”
Article 18 of the China RoHS law will require producers of certain EIPs to meet the maximum concentration values of the toxic substances defined in the MCV standard, effectively restricting the use of these substances, like Europe’s RoHS directive did. Which EIPs will be selected for the “catalogue” remains to be seen; MII says there is no timetable for it. General opinion is that we will see it by the end of 2006 or in early 2007.

Where China’s restriction of substances differs from the EU’s is that testing will be required to prove the product meets the requirements. Testing can be done at the component level, so that entire products do not have to be destroyed. But the testing can only be done by Chinese labs. When asked why foreign labs’ results would not be accepted Huang Jian Zhong, the MII director responsible for China RoHS, replied “other countries do not accept our labs’ results; we are under no obligation to accept theirs”4. Mr. Huang did say that eventually they intend to allow foreign labs’ results.

REACH
RoHS only phased out six classes of substances, which equates to around 100 different substances. There are thousands of substances used in electronic products, many of which are potentially toxic to people and/or the environment.

REACH, or Registration, Evaluation, and Authorization of Chemicals, proposes to replace Europe’s current system used for assessing the risks of existing substances (placed on the market before September 1981) and new substances with a single regulatory framework.

Today, existing substances can be used without toxicity/ecotoxicity testing and are virtually unregulated. This class of substances, numbering on the order of 70,000 to 100,000, represents upwards of 99.9% of market volume in the EU. Risk assessment for these is done on only priority substances at EU level, each by a lead Member State, having insufficient resources to do the work. Robert Donkers, a US-stationed Environment Counselor of the European Commission, says that of 2600 HPV5 substances, only 3% have been fully tested.

He points out that of the 3500 “new” (post-September 1981) substances, 100% have been fully tested, 70% have dangerous properties of one sort or another.

REACH differs from RoHS in two significant ways:

•It targets chemical substances, not specific products. Products can and should be thought of as comprised of chemicals (a given electronic product may be comprised of hundreds or even thousands of unique chemical substances).

•It is not a directive; when passed it will be a regulation at the EU level and will be immediately in effect with common scope in all EU member states. A European Chemicals Agency will be established in Helsinki, Finland to oversee its daily management as well as support the Commission on enforcement and compliance.

REACH requires registration of all chemical substances put on the market in the EU in excess of 1 metric ton per year; about 30,000 of the substances mentioned above. It moves the responsibility for assessing the safety and safe use of substances from the government6 to industry and the producer(s) of the substances. Information about substance properties and use is to be shared down, up, and in some cases even between competitors7 in the supply chain.

All “dossiers” will be checked for compliance with requirements, but evaluation is a “quality check” and is done randomly on at least 5% of all “dossiers” registered, and for all testing proposals for certain tests. Substance evaluation may also be triggered in case of a suspicion that the substance presents a risk to human health or the environment.

The authorization system addresses substances of very high concern, namely those that are classified as CMR, PBT, or vPvB8. Substances of an equivalent concern to the above, having serious and irreversible effects to human health and the environment will also be subject to authorization on a case-by-case basis.

Currently REACH is expected to pass in to law in the first half of 2007. The US chemical industry, and even the United States Government9, have fought this.

What to Do?
These, and other, regulations require the electronics industry and supply chain to know and share more information about the substances used to manufacture products. In the short term, compliance with China RoHS requires rapid determining of the presence of these six substance classes in your product.

In the long term, identification and tracking of all substances used in components may be advisable. While the electronics industry has developed a guideline, called the Joint Industry Guide (JIG-101, this requires disclosure and tracking of only a relatively small number of substances. Companies acquiring substance data based on this industry standard risk being blind-sided by regulatory actions, since regulators are not bound by it and it fails to cover all toxic and hazardous substances used in electronics products. For instance, certain solvents used in plastics and die attach adhesives (that volatize off during cure) are listed in the EU’s Dangerous Substances directive, Annex 110. REACH will be implemented as an amendment to this directive, which could eventually result in these solvents being banned or replaced in their applications in plastics and adhesives.

Finally, legislators world-wide are suddenly finding a new approach to making their constituents think they’re being vital and effective in productfocused environmental regulations, thanks to the European Union. So as regulations like RoHS roll out frantically and with inconsistent requirements throughout the world (California, South Korea, Japan, and others are implementing either marking or material restriction regulations that target the same six substance classes), it becomes vitally important for industry to realize two things: first, complaining about environmental regulations is a no-win prospect. They are happening and they will continue to happen. Second, in order to deal with this we as an industry need to do a better job of working with and guiding the regulators (and NGOs – nongovernmental organization, such as Greenpeace) with a consistent message about what is possible, what is cost-effective, and how we can optimize cost vs. environmental impact. RoHS costs have been (conservatively) estimated at $8B industry-wide11, yet whether restricting these six substances yields even $8B worth of positive environmental impact is questionable. The industry should no longer allow trading the appearance of being “Green” for actually being “Green”.

References
1 All China RoHS-related regulation-related documents mentioned in this article are available for download or sale at www.ChinaRoHS.com

2 The MCVs defined are consistent with the EU’s as defined in 2005/618/EC, except China allows products under 4mm3 in size to be considered as a single homogeneous item.

3 Again, this is translated in a number of ways. However, this is the English translation provided in official documentation by the Chinese government to the US government and DCA.

4 Private conversation; December 15, 2005

5 High Production Volume, over 1000 tons/year; these substances account for over 95% of the chemicals on the market

6 In the United States, the 1976-vintage Toxic Substance Control Act (TSCA), which also puts the onus on government to assess substance safety, is also coming under increased scrutiny due, in part, to REACH.

7 Specifically the results of animal testing is to be shared between producers of the same substance, in order to reduce the number of animals required. A cost compensation scheme is also included in REACH.

8 Respectively carcinogenic category 1 or 2, mutagenic category 1 or 2 and toxic for reproduction category 1 or 2 (CMR); Substances which are persistent, bioaccumulative and toxic (PBT); and very persistent and very bioaccumulative (vPvB). See the REACH proposal for specifics at http://ec.europa.eu/enterprise/reach/index_en.htm

9 http://usinfo.state.gov/eur/Archive/2006/Jun/09-728718.html

10 See 67/548/EEC (as amended) at http://europa.eu/scadplus/leg/en/lvb/l21276.htm . Also, a consolidated version of annex 1, listing around 3800 “dangerous substances”, not all of which are present in electronics, can be downloaded at http://ecb.jrc.it/classification-labelling/

11 Pamela Gordon, Technology Forecasters, Inc. (www.techforecasters.com), private communication, Aug 2006