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[Federal Register: May 17, 2010 (Volume 75, Number 94)]
[Proposed Rules]
[Page 27504-27507]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17my10-32]

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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1120

[CPSC Docket No. CPSC-2010-0042]

Substantial Product Hazard List: Hand-Held Hair Dryers

AGENCY: Consumer Product Safety Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Consumer Product Safety Improvement Act of 2008
(``CPSIA''), authorizes the United States Consumer Product Safety
Commission (``Commission'') to specify, by rule, for any consumer
product or class of consumer products, characteristics whose existence
or absence shall be deemed a substantial product hazard under certain
circumstances. In this document, the Commission is proposing a rule to
determine that any hand-held hair dryer without integral immersion
protection presents a substantial product hazard.

DATE: Written comments in response to this notice must be received by
August 2, 2010.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2010-
0042, by any of the following methods:

Electronic Submissions

    Submit electronic comments in the following way:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
    To ensure timely processing of comments, the Commission is no
longer accepting comments submitted by electronic mail (e-mail) except
through http://www.regulations.gov.

Written Submissions

    Submit written submissions in the following way:
    Mail/Hand delivery/Courier (for paper, disk, or CD-ROM
submissions), preferably in five copies, to: Office of the Secretary,
Consumer Product Safety Commission, Room 820, 4330 East West Highway,
Bethesda, MD 20814; telephone (301) 504-7923.
    Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received may be
posted

[[Page 27505]]

without change, including any personal identifiers, contact
information, or other personal information provided, to http://www.regulations.gov. Do not submit confidential business information,
trade secret information, or other sensitive or protected information
electronically. Such information should be submitted in writing.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Randy Butturini, Office of Hazard
Identification and Reduction, Consumer Product Safety Commission, 4330
East-West Highway, Bethesda, MD 20814; telephone (301) 504-7562,
rbutturini@cpsc.gov.

SUPPLEMENTARY INFORMATION:

A. Background and Statutory Authority

    The Consumer Product Safety Improvement Act of 2008 (``CPSIA'') was
enacted on August 14, 2008. Public Law 110-314, 122 Stat. 3016 (August
14, 2008). The CPSIA amends statutes which the U.S. Consumer Product
Safety Commission (``Commission'' or ``CPSC'') administers, and adds
certain new requirements.
    Section 223 of the CPSIA expands section 15 of the Consumer Product
Safety Act (``CPSA'') to add a new subsection (j). That subsection
delegates to the Commission authority to specify by rule for a consumer
product or class of consumer products, characteristics whose presence
or absence the Commission considers present a substantial product
hazard. Those characteristics must be readily observable, have been
addressed by an applicable voluntary standard that has been effective
in reducing the risk of injury, and there must be substantial
compliance with the voluntary standard. 15 U.S.C. 2064(j).
    Underwriters Laboratories (``UL'') Standard for Safety for
Household Electric Personal Grooming Appliances, UL 859, is a voluntary
standard that specifies immersion protection requirements for certain
household appliances, including hand-held hair dryers. The current
immersion protection provisions have been in effect since 1991. UL
Standard for Safety for Commercial Electric Personal Grooming
Appliances, UL 1727, specifies immersion protection requirements for
grooming appliances, including hand-held hair dryers, which are
``intended for use by qualified personnel in commercial establishments
such as beauty parlors, barber shops, or cosmetic studios.'' UL 1727
requires the same integral immersion protection as UL 859. Such
``commercial'' hand-held hair dryers may be consumer products if they
are available for sale to, or use of, consumers.
    The Commission is proposing a rule to deem any hand-held hair dryer
without integral immersion protection, as specified in UL 859 or UL
1727, a substantial product hazard. Hand-held hair dryers, most often
used in bathrooms and near water, are subject to accidental immersion
during their use. Section 15(a) of the CPSA defines ``substantial
product hazard'' to include, a product defect which (because of the
pattern of defect, the number of defective products distributed in
commerce, the severity of the risk, or otherwise) creates a substantial
risk of injury to the public. 15 U.S.C. 1064(a)
    On November 25, 2002, CPSC's Director of the Office of Compliance
sent a letter to manufacturers and importers of hand-held hair dryers
stating that CPSC staff considers hair dryers available for sale to, or
use by, consumers to present a substantial product hazard if they do
not have immersion protection as required by UL 859. The letter urged
manufacturers and importers to assure that their hand-held hair dryers
provide immersion protection. The letter noted that ``[s]ome firms
market hand held hair dryers that they contend are intended for
professional use only, that is, for use by professionals in hair
salons. However, the staff also considers `professional' hair dryers
that are available for sale to consumers and that fail to provide
immersion protection to be defective and to present a substantial
product hazard.''

B. The Product

    A hand-held hair dryer is a portable electrical appliance with a
cord-and-plug connection. Typically, they have a big barrel-like body
with a pistol grip handle. Frequently, such hair dryers have two
control switches or knobs: one turns the unit on and off and may allow
the user to adjust the blower speed; the second adjusts the heat
setting, often ``cool/low/high.'' Hand-held hair dryers routinely
contain open-coil heating elements that are, in essence, uninsulated,
electrically energized wires across which a fan blows air. These dryers
are typically used in bathrooms near water sources, such as sinks,
bathtubs, and lavatories. Being uninsulated, if the heating element
were to contact water, an alternative current flow path could easily be
created, posing the risk of shock or electrocution to the user holding
the dryer (or retrieving it after dropping it into a sink, bathtub, or
lavatory).
    The proposed rule would define ``hand-held hair dryer'' as ``an
electrical appliance, intended to be held with one hand during use,
which creates a flow of air over or through a self-contained heating
element for the purpose of drying hair.''
    The characteristics of a hand-held hair dryer with integral
immersion protection are readily observable. The power cord of a hand-
held hair dryer with integral immersion protection has a large block-
shaped plug that incorporates a type of circuit interrupter which is
either a Ground Fault Circuit Interrupter (``GFCI''), an Appliance
Leakage Circuit Interrupter (``ALCI''), or an Immersion Detection
Circuit Interrupter (``IDCI''). The plug usually also has buttons
labeled ``Test'' and ``Reset.'' If the hair dryer should become wetted
or immersed in water enough to cause electrical current to flow beyond
normal circuitry, the circuit interrupter will sense the flow and, in a
fraction of a second, disconnect the hair dryer from its power source,
preventing serious injury or death to a consumer.
    An estimated 23 million units of hand-held hair dryers are sold
annually. The staff does not know exactly how many companies supply
hand-held hair dryers. Sixteen suppliers of hand-held hair dryers are
listed in the UL Online Certifications Directory as being in compliance
with UL 859. An additional 42 companies are listed in the Intertek ETL
Listed Mark Product Directory as complying with the UL 859 standard.
Ten firms are listed to the UL 1727 standard on UL's Online
Certifications directory and another four firms are listed in the
Intertek ETL Listed Mark Product Directory as being in compliance with
UL 1727. In 2007, the three largest suppliers listed accounted for
approximately 92% of domestic hand-held hair dryer sales.

C. The Risk of Injury

    The Commission has reports of 104 deaths and 43 electric shock
injuries due to hair dryer immersion/water contact from 1984 to 2004.
Of the 104 electrocutions resulting in death, the most incidents (91)
occurred during 1984-90 (before the current immersion protection
provisions of UL 859 took effect) compared to 12 during 1991-97, and
one during 1998-04.
    During 1980-86, before the introduction of the initial UL
requirements for hair dryers, a total of 110 electrocutions (15.7
annual average) were reported due to hair dryer immersion/water
contact. In 1987, UL implemented a change to voluntary

[[Page 27506]]

standard UL 859 to require immersion protection for hand-held hair
dryers if the dryer switch was in the ``off'' position. During 1987-90,
a total of 39 such electrocutions (9.75 annual average) were reported.
In 1991, a revision to the UL standard requiring immersion protection
in the ``off'' as well as ``on'' position took effect. During 1991-97,
after the enhanced standard took effect, a total of 12 electrocutions
(1.71 annual average) were reported and three electrocutions (0.3
annual average) were reported during 1998-2007, a period when most hair
dryers made before 1991 were likely to be out of use. Reporting is
ongoing for the years 2006 and 2007.

D. Voluntary Standards

    Hand-held hair dryers are included in UL 859, Standard for Safety
for Household Electric Personal Grooming Appliances. In 1985, UL
revised this standard to require protection against electrocution when
a hair dryer is plugged into an electrical outlet, with its switch in
the ``off'' position, and is immersed in water. The requirement took
effect in October 1987. Between 1987 and 1990, the average number of
reported deaths from hair dryer immersion/water contact dropped to
approximately 10 deaths per year.
    In 1990, the National Electrical Code (NEC) (Article 422-24, 1990
edition) instituted requirements for protection against electrocutions
from immersion of hair dryers when the switch is in either the ``on''
or the ``off'' position.
    In 1987, UL, in keeping with NEC, revised its immersion protection
standard to require that ``A hand-supported hair-drying appliance (such
as a hair dryer, blower-styler, heated air comb, heated air hair
curler, curling iron-hair dryer combination, a wall-hung hair dryer or
hand unit of a wall-mounted hair dryer, or similar appliance) shall be
constructed to reduce the risk of electric shock when the appliance is
energized, with its power switch in either the ``on'' or ``off''
position, and immersed in water having an electrically conductive path
to ground.'' This revision, which took effect January 1, 1991, expanded
immersion protection to cover the appliance whether the switch was in
the ``on'' or ``off'' position.
    As discussed in section C of this document, the reported incidents
of death from immersion-related electrocutions involving hand-held hair
dryers significantly declined with implementation of immersion
protection requirements in UL 859. The average number of reported hand-
held hair dryer electrocutions resulting in death is now less than one
per year.
    UL 1727, Standard for Safety for Commercial Electric Personal
Grooming Appliances, originally issued in 1986, was revised to include
the same integral immersion protection as UL 859 after the full
immersion protection requirements in UL 859 proved to be effective.
These requirements in UL 1727 became effective March 31, 1994.

E. Recalls

    As noted in section A of this document, in November 2002, the
director of the Office of Compliance sent a letter to importers and
manufacturers of hand-held hair dryers indicating the staff's
expectation that such hair dryers should have immersion protection and
that the staff would consider them to present a substantial product
hazard if they did not. There have been numerous recalls of hand-held
hair dryers due to lack of immersion protection. Since January 1, 1991,
there have been 30 recalls of hand-held hair dryers due to lack of an
immersion protection device. Of these, three occurred during the year
2009.

F. Substantial Compliance

    There is no statutory definition of ``substantial compliance'' in
either the CPSIA or the CPSA. Legislative history of the CPSA provision
that is related to issuance of consumer product safety standards
indicates that substantial compliance should be measured by reference
to the number of complying products, rather than the number of
manufacturers of products complying with the standard. H.R. Rep. No.
208, 97th Cong., 1st Sess. 871 (1981). Legislative history of this CPSA
rulemaking provision also indicates that there is substantial
compliance when the unreasonable risk of injury associated with a
product will be eliminated or adequately reduced ``in a timely
fashion.'' Id. The Commission has not taken the position that there is
any particular percentage that differentiates substantial compliance
from something that is not substantial compliance. Rather than any
bright line, the Commission has been of the view in the rulemaking
context that the determination needs to be made on a case-by-case
basis.
    The staff estimates sales of hand-held hair dryers are about 23
million units annually. There are 16 suppliers of hand-held hair dryers
listed in the UL Online Certifications Directory, and an additional 42
suppliers listed in the Intertek ETL Listed Mark Product Directory as
supplying hand-held hair dryers compliant with UL 859. Ten firms are
listed to the UL 1727 standard on UL's Online Certifications Directory
and another four firms are listed in the Intertek ETL Listed Mark
Product Directory as being in compliance with UL 1727.
    In 2007, the three largest suppliers listed accounted for
approximately 92% of domestic hand-held hair dryer sales. As discussed
above, additional suppliers are also listed as supplying hand-held hair
dryers that are in compliance with the UL standards. Since the three
largest suppliers (which are listed as producing hair dryers that
comply with the UL standards) account for 92% of the domestic sales of
hand-held hair dryers and additional companies are also listed as
producing complying hand-held hair dryers, the staff estimates that
over 95% of hand-held hair dryers for sale in this country comply with
the UL standards. The Commission, therefore, determines that there is
substantial compliance with UL 859 and UL 1727.

G. Effect of Section 15(j) Rule

    Section 15(j) of the CPSA allows the Commission to issue a rule
specifying that a consumer product (or class of consumer products) has
characteristics whose presence or absence creates a substantial product
hazard. Placing a consumer product on this substantial product hazard
list has certain ramifications. A product that is or has a substantial
product hazard is subject to the reporting requirements of section
15(b) of the CPSA. 15 U.S.C. 2064(b). A manufacturer who fails to
report a substantial product hazard to the Commission is subject to
civil penalties under section 20 of the CPSA and possibly to criminal
penalties under section 21 of the CPSA. Id. 2069 & 2070.
    A product that is or contains a substantial product hazard is
subject to corrective action under section 15(c) and (d) of the CPSA.
Id. 2064(c) & (d). Thus, the Commission can order the manufacturer,
distributor or retailer of the product to offer to repair or replace
the product, or to refund the purchase price to the consumer.
    Finally, a product that is offered for import into the United
States and is or contains a substantial product hazard shall be refused
admission into the United States under section 17(a) of the CPSA. Id.
2066(a).

H. Regulatory Flexibility Certification

    The Regulatory Flexibility Act (``RFA'') generally requires that
agencies review proposed rules for their potential economic impact on
small entities, including small businesses. 5 U.S.C. 601-612. As noted
in section B of this

[[Page 27507]]

document above, CPSC has identified 58 suppliers of hand-held hair
dryers to the U.S. consumer market which provide products listed to the
UL standard. Three large firms supply approximately 92% of the U.S.
market share. According to the Small Business Administration Size
Standards, these three firms are not small businesses. According to the
UL Online Certifications Directory and the Intertek ETL Listed Mark
Products Directory, these three firms plus an additional 55 firms are
UL listed to produce complying hair dryers. All but one of these 55
firms appears to be a small business. Thus, the overwhelming majority
of hair dryers sold in the United States are already UL listed. Since
the majority of businesses (both large and small) are already in
compliance with the voluntary standard, the proposed rule is not
expected to pose a significant burden to small business. Therefore, the
Commission certifies that, in accordance with section 605 of the RFA,
the rule, if promulgated, will not have a significant economic impact
on a substantial number of small entities.

I. Environmental Considerations

    A rule determining that hand-held hair dryers without immersion
protection in accordance with UL 859 or UL 1727 present a substantial
product hazard is not expected to have an adverse impact on the
environment and is considered to be a ``categorical exclusion'' for the
purposes of the National Environmental Policy Act according to the CPSC
regulations that cover its ``environmental review'' procedures (16 CFR
1021.5(c)(1)).

J. Paperwork Reduction Act

    This proposed rule would not impose any information collection
requirements. Accordingly, this rule is not subject to the Paperwork
Reduction Act, 44 U.S.C. 3501-3520.

K. Effective Date

    The proposed effective date of Part 1120, which declares that any
held-held hair dryer without immersion protection, as specified in UL
859 or UL 1727, is a substantial product hazard, is 30 days from
issuance of any final regulation in the Federal Register. Thus, it
would apply to hand-held hair dryers imported or introduced into
commerce 30 days or more after publication of any final rule in the
Federal Register.

L. Preemption

    The proposed rule would place hand-held hair dryers without
integral immersion protection on a list of products that present a
substantial product hazard. The proposed rule does not establish a
consumer product safety standard. The preemption provisions in section
26(a) of the CPSA, 15 U.S.C. 2075(a), apply when a consumer product
safety standard is in effect. Therefore, section 26(a) of the CPSA
would not apply to this rule.

M. Request for Comments

    The Commission invites interested persons to submit their comments
to the Commission on any aspect of the proposed rule. Comments should
be submitted as provided in the instructions in the ADDRESSES section
at the beginning of this notice.

List of Subjects in 16 CFR Part 1120

    Administrative practice and procedure, Consumer protection,
Household appliances, Imports, Incorporation by reference.

    Therefore, the Commission proposes to amend Title 16 of the Code of
Federal Regulations by adding part 1120 to read as follows:

PART 1120--SUBSTANTIAL PRODUCT HAZARD LIST

Sec.
1120.1 Authority
1120.2 Definitions
1120.3 Substantial product hazard list

    Authority: 15 U.S.C. 2064(j).

Sec.  1120.1  Authority.

    Under the authority of section 15(j) of the Consumer Product Safety
Act (CPSA), the Commission determines that consumer products or classes
of consumer products listed in Sec.  1120.3 have characteristics whose
existence or absence presents a substantial product hazard under
section 15(a)(2) of the CPSA. The Commission has determined that the
listed products have characteristics that are readily observable and
have been addressed by a voluntary standard, that the voluntary
standard has been effective, and that there is substantial compliance
with the voluntary standard. The listed products are subject to the
reporting requirements of section 15(b) of the CPSA and to the recall
provisions of section 15(c) and (d) of the CPSA, and shall be refused
entry into the United States under section 17(a)(4) of the CPSA.

Sec.  1120.2  Definitions.

    The definitions in section 3 of the Consumer Product Safety Act (15
U.S.C. 2052) apply to this part 1120.
    (a) Substantial product hazard means a product defect which
(because of the pattern of defect, the number of defective products
distributed in commerce, the severity of the risk, or otherwise)
creates a substantial risk of injury to the public.
    (b) Hand-held hair dryer means an electrical appliance, intended to
be held with one hand during use, which creates a flow of air over or
through a self-contained heating element for the purpose of drying
hair.

Sec.  1120.3  Substantial product hazard list.

    The following products or class of products shall be deemed to be
substantial product hazards under section 15(a)(2) of the CPSA.
    (a) Hand-held hair dryers that do not provide integral immersion
protection in compliance with the requirements of section 5 of
Underwriters Laboratories (UL) Standard for Safety for Household
Electric Personal Grooming Appliances, UL 859-2007, 10th Edition,
approved March 21, 2007, or section 6 of UL Standard for Safety for
Commercial Electric Personal Grooming Appliances, UL 1727, 4th Edition,
approved March 25, 1999. The Director of the Federal Register approves
these incorporations by reference in accordance with 5 U.S.C. 552(a)
and 1 CFR part 51. You may obtain a copy from UL, Inc., 333 Pfingsten
Road, Northbrook, IL 60062. You may inspect a copy at the Office of the
Secretary, U.S. Consumer Product Safety Commission, Room 502, 4330 East
West Highway, Bethesda, MD 20814, telephone 301-504-7923, or at the
National Archives and Records Administration (NARA). For information on
the availability of this material at NARA, call 202-741-6030, or go to:
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (b) [Reserved]

    Dated: May 11, 2010.
Todd Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2010-11624 Filed 5-14-10; 8:45 am]
BILLING CODE 6355-01-P
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