On January 15, 2009, the US Consumer Product Safety Commission (CPSC) posted in the Federal Register a Notice of Proposed Rulemaking titled “Children’s Products Containing Lead; Exemptions for Certain Electronic Devices,” and invited written comments. Today, February 6, the CPSC voted to withdraw the Proposed Rule and replace it with an Interim Final Rule, effective February 10, 2009. 

The staff proposed the change because the stay of certain testing and certification requirements recently announced by CPSC did not provide any meaningful relief to manufacturers or importers of children’s electronic devices containing certain accessible components that exceed the new 600 parts per million (ppm) lead content limit because of current technological infeasibility of building compliant replacement components.  

The Interim Final Rule almost mimics the Proposed Rule, with one significant exception. Instead of adopting the exemptions from a lead limit for certain electronic components listed in the Annex to the EU RoHS Directive,1 the Interim Final Rule now specifies the individual components that the CPSC staff proposes to exempt. The proposed exemptions are as follows:   

A.  General Exemption for Inaccessible Components

• A component is inaccessible and therefore exempt if it is fully enclosed in a barrier material (not simply a coating) within a product, or is found to be inaccessible by testing with an accessibility probe both before and after use and abuse testing

• Removable or replaceable parts, such as battery packs and light bulbs, are considered exempt if they are inaccessible once properly installed

B.  Exemption for specific lead-containing materials. These include:

• Lead-containing glass in electronic components

• Lead used as an alloying element in steel (at <0.35%), aluminum (at <0.4%), and copper (at <4%).

• Lead-bronze bearing shells and bushings

• Lead in compliant pin connectors

• Lead in optical and filter glass

• Lead in plasma display panels (PDPs) and surface conduction electron emitter displays (SEDs) used in structural elements

• Lead in the glass envelopes of Black Light Blue(BLB) lamps

Several important component types are no longer proposed for exemption, including high-melting solder and ceramic-based electronic parts (e.g., piezoelectric components). It is worth noting, however, that while the preamble to the Interim Final Rule presents the exempted components as strictly limited to the nine types on the list, the Interim Final Rule itself prefaces the list with the statement “Exemptions for lead as used in certain components [sic] parts in children’s electronic devices include…,” implying that the list may be somewhat open-ended.

Under the RoHS Directive, electronic components not specifically exempted may not contain more than 1000 ppm lead. This limit is observed in Europe and much of the rest of the world. In addition, the term “lead-free solder” is generally recognized internationally as solder containing less than 1000 ppm lead. The new CPSIA limits for lead in accessible electronic components not specifically exempted (600 ppm as of February 10, 2009, dropping to 300 ppm on August 14, 2009 and to 100 ppm on August 14, 2012) are thus much lower than those in RoHS-compliant electronic products sold around the world. If components in products made to be sold in the US are not specifically exempted from the new lead limits, and replacements are not technologically feasible, the only alternative for manufacturers will be to make them inaccessible to children.

The public will be invited, once again, to submit comments on the Interim Final Rule, probably within 30 days of publication in the Federal Register. This will provide an opportunity to try and restore to the exemption list any component types that have just been excluded from it. CPSC promises to consider both new comments on the Interim Final Rule and earlier comments on the Proposed Rule before issuing final regulations.

Referenced documents.

• Children’s Products Containing Lead; Exemptions for Certain Electronic Devices; Withdrawal of Proposed Rule. 
  Children’s Products Containing Lead; Exemptions for Certain Electronic Devices; Interim Final Rule. 
  

• Children’s Products Containing Lead; Exemptions for Certain Electronic Devices; Notice of Proposed Rulemaking.  Federal Register, January 15, 2009

Please contact any of the individuals below if you have any questions regarding CPSC’s request for comments or would like to discuss the possibility of submitting comments.

1 EU Directive 2002/95/EC on the restriction on the use of certain hazardous substances in electrical and electronic equipment (RoHS Directive).

Georgia Ravitz
ravitz.georgia@arentfox.com
202.857.8939

James R. Ravitz
ravitz.james@arentfox.com
202.857.8903

Scott A. Cohn
cohn.scott@arentfox.com
212.484.3984

Robert G. Edwards
edwards.robert@arentfox.com
202.857.6346

Amy S. Colvin
colvin.amy@arentfox.com
202.857.6338