2011-15981. Substantial Product Hazard List: Hand-Supported Hair Dryers

AGENCY:

U.S. Consumer Product Safety Commission.

ACTION:

Final rule.

SUMMARY:

The Consumer Product Safety Improvement Act of 2008 (“CPSIA”) authorizes the U.S. Consumer Product Safety Commission (“Commission,” “CPSC,” or “we”) 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. We are issuing a final rule to determine that any hand-supported hair dryer without integral immersion protection presents a substantial product hazard.

DATES:

The rule takes effect July 28, 2011. The incorporation by reference of the publications listed in this rule is approved by the Director of the Federal Register as of July 28, 2011.

FOR FURTHER INFORMATION CONTACT:

Sheela Kadambi, Office of Compliance and Field Operations, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone [phone], [e-mail].

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 that the Commission 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 authority to the Commission to specify by rule, for a consumer product or class of consumer products, characteristics whose presence or absence the Commission considers a substantial product hazard. To issue such a rule, the Commission must determine that those characteristics are readily observable and have been addressed by an applicable voluntary standard. The Commission must also find that the standard has been effective in reducing the risk of injury and that there has been substantial compliance with it. 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-supported hair dryers. The current immersion protection provisions have been in effect since 1991. UL's Standard for Safety for Commercial Electric Personal Grooming Appliances, UL 1727, specifies immersion protection requirements for grooming appliances, including hand-supported hair dryers, which are “intended for use by qualified personnel in commercial establishments such as beauty parlors, barber shops, or cosmetic studios.” Since 1994, UL 1727 has required the same integral immersion protection as UL 859. Such “commercial,” hand-supported hair dryers may be consumer products if they are available for sale to, or use by, consumers.

Hand-supported 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 that (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)(2).

On November 25, 2002, the CPSC's Director of the Office of Compliance sent a letter to manufacturers and importers of hand-supported 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 ensure that their hand-supported hair dryers provide immersion protection. The letter noted: “[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, CPSC 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.”

On May 17, 2010, we published a proposed rule (75 FR 27504) that would deem any hand-supported hair dryer without integral immersion protection, as specified in UL 859 or UL 1727, to be a substantial product hazard. (The proposal referred to “hand-held” hair dryers; however, as explained in section G.2 of this preamble, the final rule uses the term “hand-supported,” which is more consistent with the UL standards.)

We received six comments in response to the proposed rule. We describe and respond to the comments in section G of this preamble.

B. The Product

A hand-supported hair dryer is a portable electrical appliance with a cord-and-plug connection. Typically, such hair dryers have a big, barrel-like body with a pistol grip handle. Frequently, they 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 labeled “cool/low/high.” Hand-supported 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. If the uninsulated 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 power cords of hand-supported hair dryers with integral immersion protection on the market today have a large, block-shaped plug that incorporates a type of circuit interrupter— a Ground Fault Circuit Interrupter (“GFCI”), an Appliance Leakage Circuit Interrupter (“ALCI”), or an Immersion Detection Circuit Interrupter (“IDCI”). Usually, the plug also has buttons labeled “Test” and “Reset.” If the hair dryer should become wet or immersed in water, enough to cause electrical current to flow beyond the 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-supported hair dryers are sold annually. CPSC staff does not know exactly how many companies supply hand-supported hair dryers. The preamble to the proposed rule stated the number of companies listed as complying with the UL standards as follows. Sixteen suppliers of hand-supported 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 percent of domestic sales of hand-supported hair dryers.

C. The Risk of Injury

The proposed rule summarized relevant incident data reported during the period from 1980 to 2007, involving hand-supported hair dryers. We repeat and update that information here.

1. Incident Data in the Proposed Rule

The preamble to the proposed rule reviewed the incident data available at that time. As noted in that preamble, a total of 43 electric shock injuries due to hair dryer immersion/water contact, were reported to CPSC staff from 1984 through 2004. Of these electric shock injuries, the most incidents (33) occurred before 1990, compared to 7 from 1991 through 1997, and 3 from 1998 through 2004. Although these are small numbers of reports, they indicate that the number of reported injuries due to electric shock from hair dryer immersion/water contact decreased after 1990.

During 1980 through 1986, 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 standard UL 859 to require immersion protection for hand-supported hair dryers if the dryer switch was in the “off” position. During the period 1987 through 1990, 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 the “on” position took effect. From 1991 through 1997, immediately following the time when the enhanced standard took effect, a total of 12 electrocutions (1.71 annual average) were reported. From 1998 through 2007, a period when most hair dryers made before 1991 were likely to be out of use, three electrocutions (0.3 annual average) were reported.

2. Incident Data Update

In preparation for the final rule, we reviewed data for the timeframe between 2006 and 2010. No new electrocutions associated with a hair dryer immersed in, or contacting water, have been reported since we published the proposed rule. There were reports of deaths associated with hair dryers, but these were not related to immersion in, or contact with, water. (Two reported deaths in 2008 were attributed to a fire started by a hairdryer igniting a couch; two reported deaths in 2010 were attributed to a fire started by a hairdryer igniting a mattress; and one reported death in 2010 was attributed to thermal injuries resulting from a running hairdryer). Data collection is ongoing for the years 2008 through 2010.

D. Voluntary Standards

Hand-supported 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 the 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, 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 on 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 preamble, the reported incidents of death from immersion-related electrocutions involving hand-supported hair dryers decreased significantly with implementation of immersion protection requirements in UL 859. The average number of reported hand-supported 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. The revised requirements in UL 1727 became effective on March 31, 1994.

E. Recalls

As noted in section A of this preamble, in November 2002, the Director of the Office of Compliance sent a letter to importers and manufacturers of hand-supported hair dryers indicating CPSC staff's expectation that such hair dryers should have immersion protection and that staff would consider hand-supported hair dryers to present a substantial product hazard if they did not include such protection. The preamble to the proposed rule noted that, between January 1, 1991, and the time when we developed the proposed rule, there had been 30 recalls of hand-supported hair dryers due to lack of an immersion protection device (75 FR at 27506).

Since April 1, 2010, there have not been any recalls of hand-supported hair dryers without immersion protection. Shipments of hand-supported hair dryers without immersion protection have been seized at ports of entry and destroyed.

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 constitutes substantial compliance. Rather than any bright line, the Commission has indicated in the rulemaking context that the determination needs to be made on a case-by-case basis.

As noted in section B of this preamble, CPSC staff estimates that sales of hand-supported hair dryers are about 23 million units annually. As of the date of the publication of the proposed rule, there are 16 suppliers of hand-supported hair dryers listed in the UL Online Certifications Directory, and an additional 42 suppliers are listed in the Intertek ETL Listed Mark Product Directory as supplying hand-supported hair dryers that are 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 percent of the domestic sales of hand-supported hair dryers. Additional retailers are also listed as supplying hand-supported 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 percent of the domestic sales of hand-supported hair dryers, and additional companies are also listed as producing complying hand-supported hair dryers, we estimate that more than 95 percent of hand-supported hair dryers for sale in this country comply with the UL standards. Therefore, the Commission determines that there is substantial compliance with UL 859 and UL 1727.

G. Comments on the Proposed Rule and CPSC's Responses

In the Federal Register of May 17, 2010 (75 FR 27504), we published a proposed rule that would specify that any hand-supported hair dryer without integral immersion protection presents a substantial product hazard. We received six comments that raised three particular issues. In general, all six commenters supported the proposed rule, although some commenters asked a question or sought clarification. We summarize and respond to the issues raised by those comments here.

1. Level of Compliance

Comment: One commenter noted that, in the preamble to the proposed rule, we estimated that more than 95 percent of the hand-supported hair dryers sold in the United States comply with the applicable UL standards and that this constitutes substantial compliance. The commenter suggested that we consider 100 percent compliance to the standards to be substantial compliance.

Response: Our goal is for all hand-supported hair dryers to have integral immersion protection. The statutory provision requires us to determine that there is substantial compliance with an applicable voluntary standard as one criterion for placing a product on the substantial product hazard list pursuant to section 15(j) of the CPSA. The Random House Dictionary of the English Language defines “substantial” as “of ample or considerable amount, quantity, size, etc.” Thus “substantial” refers to an amount less than “all” or “total.” We believe that, in this context, substantial compliance can be something less than 100 percent compliance.

2. Hand-Supported Instead of Hand-Held

Comment: Two commenters suggested changing the term “hand-held” to “hand-supported” to be more consistent with the wording of UL 859 and UL 1727. The commenters noted that the UL standards have a definition for “hand-held” that is used in a different context than that intended by the Commission.

Response: We agree with the commenters. UL 859 and UL 1727 use the terms “hand-held” and “hand-supported.” Underwriters' Laboratories uses the phrase “hand-held” to refer to appliances that are not fully supported by the hand, even though they are in contact with the hand. An upright vacuum cleaner is an example of this meaning of “hand-held.” The user's hand is in contact with the appliance and guides the appliance during use; but the weight of the vacuum cleaner is supported by the floor. UL defines a “hand-supported” device as “an appliance that is physically supported by the hand of the user during the performance of its intended functions.” Thus, the term “hand-supported” describes more accurately the situation with hair dryers. Using the term “hand-supported” in the same context as the UL standards will promote consistency and avoid confusion. We have modified the definition in § 1120.2(b), as well as in related text and preamble discussion, to refer to “hand-supported hair dryers.”

3. Not a Consumer Product Safety Rule

Comment: One commenter suggested that we clarify the rule to state explicitly that it does not establish a consumer product safety rule and that no general conformity certificates are required under section 14(a) of the CPSA.

Response: The commenter is correct that this rule does not establish a consumer product safety rule, so manufacturers of hand-supported hair dryers do not have to test and certify their products for compliance with this rule. This point is clarified in section J of this preamble.

H. Description of the Final Rule

The final rule creates a new part 1120 titled, “Substantial Product Hazard List,” and names as the first product group on the list any hand-supported hair dryer without integral immersion protection.

1. Authority (§ 1120.1)

Section 1120.1 restates the statutory criteria required for the Commission to determine that a consumer product, or class of consumer products, have characteristics whose existence or absence present a substantial product hazard under section 15(a)(2) of the CPSA.

2. Definitions (§ 1120.2)

Section 1120.2 defines the terms “substantial product hazard” and “hand-supported hair dryer.” The definition of “substantial product hazard” comes from section 15(a)(2) of the CPSA and 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.” This definition is unchanged from the proposed rule.

As explained in section G.2 of this preamble, the final rule refers to “hand-supported hair dryer” instead of “hand-held hair dryer.” The definition remains the same as in the proposed rule and states that a “hand-supported dryer” is “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.”

3. Products Deemed To Be Substantial Product Hazards (§ 1120.3)

Section 1120.3 establishes a list of products, or class of products, that the Commission deems to be substantial product hazards under section 15(a)(2) of the CPSA. It states that hand-supported hair dryers lacking integral immersion protection in compliance with the requirements of section 5 of the UL Standard for Safety for Household Electric Personal Grooming Appliances, UL 859 (10th Edition, approved August 30, 2002, and revised through June 3, 2010) or section 6 of the UL Standard for Safety for Commercial Electric Personal Grooming Appliances, UL 1727 (4th Edition, approved March 25, 1999, and revised through June 25, 2010) are deemed substantial product hazards. The final rule incorporates by reference those sections of UL 859 and UL 1727 and states where one may obtain a copy of the UL standards.

I. Commission Determination That Hand-Supported Hair Dryers Without Integral Immersion Protection Present a Substantial Product Hazard

To place a product (or class of products) on the list of substantial product hazards pursuant to section 15(j) of the CPSA, we must determine that: (1) The characteristics whose existence or absence present a substantial product hazard are readily observable; (2) those characteristics have been addressed by voluntary standards; (3) the relevant voluntary standards have been effective in reducing the risk of injury from the consumer product; and (4) there is substantial compliance with the voluntary standards. We find that hand-supported hair dryers without integral immersion protection meet these criteria.

• The characteristics of a hand-supported hair dryer with integral immersion protection are readily observable. A hair dryer that has such protection will have a large block-shaped plug that contains some type of circuit interrupter.
• Integral immersion protection has been addressed by UL 589 and UL 1727. Both of those standards require that hand-supported hair dryers have integral immersion protection.
• These standards have been very effective in reducing deaths and electric shock injuries due to hair dryer immersion or contact with water. From 1980 to 1986 (before the initial UL requirements took effect), a total of 110 electrocutions (15.7 annual average) were reportedly due to hair dryer immersion/water contact. Only three electrocutions were reported between 1998 and 2007, and we have no reports of electrocutions associated with a hair dryer immersed in, or contacting water, for the period from 2006 through 2010.
• There is substantial compliance with the voluntary standards' requirements. We estimate that more than 95 percent of hand-supported hair dryers for sale in the United States comply with the immersion protection provisions of the UL standards.

J. Effect of Section 15(j) Rule

Section 15(j) of the CPSA authorizes us 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. This rule, which falls under section 15 of the CPSA, is not a consumer product safety rule and does not create a consumer product safety standard. Thus, the rule does not trigger any testing or certification requirements under section 14(a) of the CPSA.

Although the final rule does not establish a consumer product safety standard, placing a consumer product on this substantial product hazard list has certain consequences. 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 is subject to criminal penalties under section 21 of the CPSA. 15 U.S.C. 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. 15 U.S.C. 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, must be refused admission into the United States under section 17(a) of the CPSA. 15 U.S.C. 2066(a).

K. Regulatory Flexibility Certification

The Regulatory Flexibility Act (“RFA”) generally requires that agencies review proposed and final rules for their potential economic impact on small entities, including small businesses. 5 U.S.C. 601-612. In the preamble to the proposed rule (75 FR at 27506 through 27507), we noted that the majority of hair dryers sold in the United States are already UL-listed, and because the majority of businesses (both large and small) are already in compliance with the voluntary standard, the rule is not expected to pose a significant burden to small business. Therefore, we certified that, in accordance with section 605 of the RFA, the rule, if promulgated, would not have a significant economic impact on a substantial number of small entities. We received no comments concerning the rule's impact on small business, and we are not aware of any information that would change our certification.

L. Environmental Considerations

In the preamble to the proposed rule (75 FR at 27507), we stated that a rule that determines that hand-supported 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 (“NEPA”), according to the CPSC regulations that cover its “environmental review” procedures (16 CFR 1021.5(c)(1)). We did not receive any comments on the environmental impact of the rule. We affirm that this rule falls within a categorical exclusion for purposes of NEPA.

M. Paperwork Reduction Act

The final rule does not impose any information collection requirements. Accordingly, the final rule is not subject to the Paperwork Reduction Act, 44 U.S.C. 3501-3520.

N. Effective Date

The preamble to the proposed rule indicated that a final rule establishing that any hand-supported hair dryer without immersion protection, as specified in UL 859 or UL 1727, is a substantial product hazard, would take effect 30 days from its date of publication in the Federal Register. We received no comments regarding the effective date. Accordingly, the final rule will apply to hand-supported hair dryers imported or introduced into commerce on July 28, 2011.

O. Preemption

The final rule places hand-supported hair dryers without integral immersion protection on a list of products that present a substantial product hazard. The 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 does not apply to this rule.

List of Subjects in 16 CFR 1120

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

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

PART 1120—SUBSTANTIAL PRODUCT HAZARD LIST

1120.1

Authority.

1120.2

Definitions.

1120.3

Products deemed to be substantial product hazards.

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

§ 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 § 1120.3 of this part have characteristics whose existence or absence present 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.

§ 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-supported 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.

§ 1120.3

Products deemed to be substantial product hazards.

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-supported 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, 10th Edition, approved August 30, 2002, and revised through June 3, 2010, or section 6 of UL Standard for Safety for Commercial Electric Personal Grooming Appliances, UL 1727, 4th Edition, approved March 25, 1999, and revised through June 25, 2010. 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; telephone [phone]; http:// www.comm-2000.com . You may inspect a copy at the Office of the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814, telephone [phone], 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: June 22, 2011.

Todd A. Stevenson,

Secretary, U.S. Consumer Product Safety Commission.