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New Exemptions Under EU RoHS Law Published by European Commission

On 5 November 2019, the Official Journal of the EU published two new Directives, both amending framework Directive 2011/65/EU on the restriction of hazardous substances in electrical and electronic equipment (commonly referred to as RoHS 2). Hong Kong sellers of such products will already know that RoHS 2 restricts several hazardous substances in electrical and electronic equipment.

Directive 2011/65/EU requires Member States to ensure that electrical and electronic equipment placed on the market does not contain the hazardous substances listed in Annex II to that Directive. This requirement, however, does not apply to the applications listed in Annex III to Directive 2011/65/EU. To this effect, both of the Commission Delegated Directives amend Annex III, inserting new exemptions into the Annex.

Firstly, Commission Delegated Directive 2019/1845 creates an exemption for bis(2-ethylhexyl) phthalate (DEHP) in certain rubber components used in engine systems. DEHP is a restricted substance listed in Annex II to Directive 2011/65/EU. On 29 June 2017, the Commission received an application for an exemption for the use of DEHP in rubber parts such as O-rings, seals, vibration dampers, gaskets, hoses, grommets and cap-plugs that are used in engine systems, including exhausts and turbochargers, that are designed for use in equipment that is not designed solely for consumer use.

In relation to the application, the Commission found that, currently, there are no DEHP-free alternatives available on the market which would provide a sufficient level of reliability for applications in engines where long life and special properties, such as resistance to any contact material (e.g. fuel, lubricant oil, coolants, gases, or dirt), temperature and vibration, are required.

Therefore, the lack of reliable alternatives renders the substitution or elimination of DEHP scientifically and technically impracticable for certain rubber parts used in engine systems. The Commission thus concluded that an exemption was justified for the use of DEHP in rubber components in engine systems that are designed for use in equipment that is not intended solely for consumer use, provided that no plasticised material comes into contact with human mucous membranes or into prolonged contact with human skin (where prolonged contact means continuous contact of more than 10 minutes duration or intermittent contact over a period of 30 minutes per day).

Additionally, the concentration of DEHP used must not exceed (a) 30% by weight of the rubber for (i) gasket coatings, (ii) solid-rubber gaskets, and (iii) rubber components included in assemblies of at least three components using electrical, mechanical or hydraulic energy to do work, and attached to the engine; or (b) 10% by weight of the rubber for rubber-containing components not referred to in point (a).

Secondly, Commission Delegated Directive 2019/1846 creates an exemption for lead in solders used in certain combustion engines. Lead is one of the restricted substances listed in Annex II to Directive 2011/65/EU. On 29 June 2017, the Commission received an application for an exemption for the use of lead in solders of sensors, actuators and engine control units that are used to monitor and control engine systems, including turbochargers and exhaust emission controls of internal combustion engines, used in equipment that is not intended to be used solely by consumers.

The Commission found that, currently, for the applications of lead covered by the requested exemption, additional time is needed for testing to ensure the reliability of available lead-free substitutes. Again, the lack of reliable alternatives renders the substitution or elimination of lead scientifically and technically impracticable in certain combustion engines. To this effect, the Commission concluded that an exemption was justified for the use of lead in solder of sensors, actuators, and engine control units of combustion engines, within the scope of Regulation 2016/1628, installed in equipment used at fixed positions while in operation which is designed for professionals, but also used by non-professional users. Regarding the scope of Regulation 2016/1628, it should be noted that the Regulation applies to all engines falling within certain categories (set out in Article 4.1 (1)-(10) of the Regulation) which are installed in or are intended to be installed in non-road mobile machinery and, insofar as the emission limits for gaseous and particulate pollutants from those engines are concerned, to such non-road mobile machinery.

The two Directives will enter into force on the twentieth day following their publication (i.e., on 25 November 2019) and they will have to be implemented by the Member States by 30 April 2020. Both exemptions shall then apply until their expiration on 21 July 2024. Hong Kong sellers of electronics should consult the text of the Directives in order to familiarise themselves with the technical details of the new exemptions.

Content provided by Picture: HKTDC Research
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