(Apr. 24, 2009) On February 25, 2009, the State Council (Cabinet, hereafter SC) of the People's Republic of China (PRC) promulgated the Regulations for the Administration of the Recovery and Disposal [i.e., recycling] of Waste Electric and Electronic Products (Order No. 551). The Regulations will not be in force until January 1, 2011 (art. 35). (Feiqi dianqi dianzi chanpin huishou chuli guanli tiaoli [bi-lingual Chinese-English text, Squire, Sanders & Dempsey L.L.P., trans.], CHINA ENVIRONMENTAL LAW, http://www.chinaenvironmentallaw.com/wp-content/uploads/2009/03/regulati
ons-on-waste-electric-and-electronic-products-chn-eng.pdf (last visited Apr. 17, 2009); see also Ministry of Environmental Protection (MEP) website, Mar. 5, 2009, available at http://www.sepa.gov.cn/law/fg/xzhg/200903/t20090305_134909.htm.) In 2006, there were reportedly about 4.6 million television sets, 2.1 million refrigerators, 2.5 million washing machines, 1.4 million air conditioners, and 2 million computers discarded in the PRC. (Officials of the SC Legal Affairs Office and the MEP Answer Reporters' Questions on theRegulations for the Administration of the Recovery and Treatment of Waste Electric and Electronic Products [Questions],MEP website, Mar. 10, 2009, available at http://www.mep.gov.cn/law/hjxzxk/200903/t20090310_135136.htm.)
Under article 2 of the Regulations, disposal of waste electric and electronic products (WEEP) is defined as comprising the following activities:
disassembling waste electric and electronic products, extracting therefrom substances to be used as raw materials or fuel, reducing the quantity of existing waste electric and electronic products through changing their physical and chemical properties, reducing or eliminating their hazardous elements, and disposing of them in landfills that are in compliance with environmental protection requirements, excluding activities of product maintenance or reconditioning and use of such products after reconditioning. (Id.)
While the Ministry of Environmental Protection (MEP), along with the National Development Reform Commission (NDRC) and the Ministry of Industry and Information Technology (MIIT), are to administer the disposal of WEEP, the Ministry of Commerce is responsible for administering WEEP recovery (art. 4). The basic framework for WEEP recycling established by the Regulations is “multichannel recovery and centralized treatment” (art. 5). (The China WEEE Post, CHINA ENVIRONMENTAL LAW, Apr. 8, 2009, available at http://www.chinaenvironmentallaw.com/2009/04/08/the-china-weee-post/#mor
The Regulations mandate the formulation of a WEEP Recovery and Disposal Catalog by the NDRC, in cooperation with the MEP and the MIIT, and its submission to the SC for approval before implementation (arts. 3 & 4). The NDRC and other SC departments are studying the first batch of products to be listed in the Catalog; by supplementing and making adjustments to the Catalog, moreover, the applicable scope of the Regulations will gradually be expanded, according to Chinese officials. (Answers, supra; for a “sneak preview” of the Catalog in English translation, see The China WEEE Post, supra.)
The Regulations also prescribe the establishment of a special fund to subsidize the costs of recycling the waste products. Electric and electronic product manufacturers and consignees of electric and electronic product imports or their agents will be obligated to contribute to the fund (art. 7, para. 1). The system for setting up the fund will be based on relevant laws and regulations, conditions in China, as well as the foreign practice of a “manufacturer responsibility system.” (Questions, supra.) Formulation of the fund's collection standards and subsidy standards are to take into account the opinions of the product manufacturers, the disposal enterprises, and relevant industry associations and experts (art. 7, para. 3). The Regulations do not stipulate a fee schedule or the specific collection and subsidy standards, however. (Michael Standaert, Chinese Rules for Electronic Waste Disposal Likely to Affect Most Manufacturers, Sellers, DAILY REPORT FOR EXECUTIVES, Mar. 10, 2009, ID No. 44 DER A-7, http://news.bna.com/drln/ (by subscription).)
The state will enforce a licensing system for disposal of WEEP. The environmental protection departments of local governments at the districted municipality (? Should “districted municipality” be clarified or simplified?)level will examine and approve the qualifications of disposal enterprises as set forth in written applications and supporting materials (arts. 6 & 24). Waste recovery operators who intend to engage in the disposal of the waste products must have the stipulated qualifications; those without such qualifications must deliver the products to qualified disposal enterprises for handling (art. 12, para. 2). Potential licensees must have the suitable WEEP treatment facilities; have appropriate plans for the use or disposal of the products that cannot be completely treated; have sorting, packing, and other equipment suited for the treated products; and have relevant safety, quality, and environmental protection professional technical personnel (art. 23).
Any recycled products sold after repair or restoration must conform to mandatory requirements of national technical norms guaranteeing human health and safety of the person and of property. In addition, the label “second-hand good” must be affixed in a prominent position (art. 12, para. 3, in part).
Asset write-offs are available to work units of government agencies, social organizations, enterprises, and institutions that deliver the waste products to qualified disposal enterprises for handling. The formalities are to be carried out according to the relevant provisions (art. 13). Disposal enterprises, the Regulations stipulate, will enjoy preferential tax treatment (art. 18).
Disposal enterprises are to have a daily environmental monitoring system for the waste product treatment; establish a database on the waste products and report the data and relevant information to the local environmental agency; and retain the basic data for at least three years (art. 17). Provincial-level environmental protection departments, in consultation with the NDRC, MEP, and MIIT departments at the same level, are responsible for drawing up WEEP disposal regional development plans and reporting them to the MEP for the record. The Regulations also state that the local governments should include in their city and county planning infrastructure construction for WEEP recycling (art. 21). With the approval of the provincial-level government, moreover, centralized WEEP disposal centers may be established (art. 34).
The liability provisions (arts. 27-33) of the Regulations cover, among other punishments, penalties for: the failure to supply – on the domestic or imported electric and electronic products or in their product manuals – information on toxic or hazardous substance content or recycling directions; engaging in WEEP disposal without having obtained the requisite qualifications; applying state-declared obsolete WEEP disposal technology and processes; and causing environmental pollution through WEEP disposal (arts. 27-30).
On October 9, 2008, the MIIT had issued the Procedures for Formulating Key Management Catalogs with Respect to Electronic Information Product Pollution Control (for a bilingual Chine
se-English text, see CHINA ENVIRONMENTAL LAW, http://www.chinaenvironmentallaw.com/wp-content/uploads/2008/12/catalogu
e-formation-procedures-for-china-rohs.doc (last visited Apr. 17, 2009; see also MIIT website, http://www.miit.gov.cn/art/2008/10/10/art_4832_49972.html (last visited Apr. 17, 2009).) The Procedures implement the Measures for Administration of Electronic Information Product Pollution Control (in force on Mar. 1, 2007). (Dianzi xinxi chanpin wuran kongzhi guanli banfa, China Legal Publicity website, http://www.legalinfo.gov.cn/misc/2007-02/27/content_545706.htm (last visited Apr. 20, 2009); for an English translation, see Chinalawinfo online subscription database, http://www.lawinfochina.com/law/display.asp?ID=5014&DB=1 (last visited Apr. 20, 2009).) The new Regulations are said to overlap “to some extent” with these Measures. (The China WEEE Post, supra.)