[Federal Register Volume 75, Number 80 (Tuesday, April 27, 2010)]
[Rules and Regulations]
[Pages 21985-21987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-8160]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1450


Virginia Graeme Baker Pool and Spa Safety Act; Interpretation of 
Unblockable Drain

AGENCY: Consumer Product Safety Commission.

ACTION: Final interpretive rule.

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SUMMARY: The Consumer Product Safety Commission (``Commission,'' 
``CPSC'' or ``we'') is issuing its interpretation of the term 
``unblockable drain'' as used in the Virginia Graeme Baker Pool and Spa 
Safety Act (``VGB Act'').

DATES: This rule is effective April 27, 2010. The incorporation by 
reference of the publication listed in this rule is approved by the 
Director of the Federal Register as of April 27, 2010.

FOR FURTHER INFORMATION CONTACT: Troy Whitfield, Lead Compliance 
Officer, Office of Compliance, Consumer Product Safety Commission, 4330 
East West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-
7548 or e-mail [email protected].

SUPPLEMENTARY INFORMATION: 

A. Background

    The Virginia Graeme Baker Pool and Spa Safety Act, Public Law 110-
140, Title XIV (``the VGB Act'') was signed into law on December 19, 
2007 and became effective on December 19, 2008. The VGB Act's purpose 
is to prevent drain entrapment and child drowning in swimming pools and 
spas.
    Section 1404(c)(1)(A)(i) of the VGB Act requires that each public 
pool and spa in the United States be equipped with drain covers that 
comply with the ASME/ANSI A112.19.8 performance standard or any 
successor standard. (The ASME/ANSI A112.19.8-2007 standard includes 
addenda which ASME codes and standards identify as A112.19.8a [for 
corrections to the UV light testing procedure] and 8b [for outlet 
covers used on self-contained spas]. The addenda are part of the 2007 
version of the standard and only include pages with changed or revised 
items. For simplicity, any reference to ASME/ANSI A112.19.8-2007 in 
this preamble is intended to incorporate the associated addenda.) 
Section 1404(c)(1)(A)(ii) of the VGB Act requires that each public pool 
and spa in the United States with a single main drain other than an 
unblockable drain be equipped, at a minimum, with one or more of the 
following:
     Safety vacuum release system;
     Suction-limiting vent system;
     Gravity drainage system;
     Automatic pump shut-off system;
     Drain disablement; and/or
     Any other system determined by the Commission to be 
equally effective as, or better than, the enumerated systems at 
preventing or eliminating the risk of injury or death associated with 
pool drainage systems.

    For purposes of this preamble, we will refer to these systems 
collectively as ``secondary anti-entrapment systems.'' Thus, under the 
VGB Act, public pools or spas with single main drains other than 
unblockable drains must be equipped with a secondary anti-entrapment 
system. Section 1403(7) of the VGB Act defines an ``unblockable drain'' 
as ``a drain of any size and shape that a human body cannot 
sufficiently block to create a suction entrapment hazard.''
    In July 2009, CPSC staff issued draft technical guidance concerning 
an unblockable drain on the CPSC Web site (at http://www.poolsafety.gov/unblockable.pdf) and invited comment on this 
guidance. The draft technical guidance included specifications for a 
drain cover such that, when the drain cover is attached to a drain, the 
now-covered drain constitutes an ``unblockable drain.'' As an 
unblockable drain, this drain would not require a secondary anti-
entrapment system.
    On October 21, 2009, the Commission issued a notice in the Federal 
Register (74 FR 54301) announcing that it would be conducting a public 
hearing to receive views from all interested parties about the draft 
guidance regarding unblockable drains. The Commission invited public 
participation at this

[[Page 21986]]

hearing. On November 4, 2009, the Commission conducted a public hearing 
on the staff's draft technical guidance and heard presentations from 
nine individuals.
    Following the hearing, CPSC staff revised its interpretation of an 
unblockable drain and presented it to the Commission for consideration. 
On March 1, 2010, the Commission voted to instruct the staff to prepare 
a proposed interpretive rule regarding unblockable drains, consistent 
with the staff's interpretation.\1\
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    \1\ Commissioner Robert Adler, Commissioner Nancy Nord, and 
Commissioner Anne Northup voted to direct the staff to draft a 
proposed interpretive rule on unblockable drain covers, consistent 
with the definition in the staff memorandum dated February 3, 2010. 
Chairman Inez Tenenbaum and Commissioner Thomas Moore voted against 
directing the staff to draft a proposed interpretive rule on 
unblockable drain covers. Chairman Inez Tenenbaum, Commissioner 
Robert Adler, Commissioner Thomas Moore, and Commissioner Anne 
Northup each issued a statement, a copy of which is available from 
the Commission's Office of the Secretary or from the Commission's 
Web site, http://www.cpsc.gov. On March 22, 2010, Commissioner 
Robert Adler, Commissioner Nancy Nord, and Commissioner Anne Northup 
voted to direct the staff to issue a final interpretive rule on 
unblockable drains. A new ballot vote was prepared for voting on a 
final interpretive rule on unblockable drains. Commissioner Adler, 
Commissioner Nord, and Commissioner Northup voted to approve the 
final interpretive rule. Chariman Tenenbaum and Commissioner Moore 
voted not to approve the final interpretive rule. Commissioner Adler 
issued a statement with his vote, a copy of which is available from 
the Commission's Office of the Secretary or from the Commission's 
Web site, http://www.cpsc.gov.
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B. Response to Comments and Interpretation

    CPSC staff based the ``July 2009 Staff Draft Technical Guidance on 
Unblockable Drains'' on the requirements for drain covers found in 
ASME/ANSI A112.19.8: ``Based on the dimensions of the blocking element 
found in the standard, an outlet cover with measurements in excess of 
18'' x 23'' (or a diagonal measurement greater than 29'') would provide 
a means to render the outlet `unblockable' and subsequently, the sumps 
below (drains) would be inaccessible and unblockable providing the 
outlet cover remains in place. The implication is that if the outlet 
cover cannot be `shadowed' by the solid blocking element the remaining 
open area of the cover will allow sufficient water flow to prevent the 
creation of entrapping forces. In reaching the definition for an 
unblockable drain, the characterization of a suction fitting is taken 
from the standard to include the sump and cover as a unit, along with 
all of the following: (1) The blocking element dimension and the 
diagonal measure to define a minimum size requirement; (2) The need for 
the remaining open flow area of the cover, once shadowed, to provide 
sufficient flow to prevent entrapment; and (3) The general requirements 
(of the standard) for fasteners and fastening integrity (i.e., the 
cover must stay in place).''
    We received several comments as a result of the November 4, 2009 
hearing and our interpretation of unblockable drains. We describe and 
respond to the comments in part B of this document.
    1. Diagonal Measurement: Several comments stated that the 
interpretation of an unblockable drain should not include a 29-inch 
diagonal requirement as it was an over-simplification of the standard 
and not found in the ASME/ANSI A112.19.8 standard.
    Response: The Commission agrees with these comments and has removed 
the 29-inch diagonal reference.
    2. 18'' x 23'' Dimension: Several commenters questioned the use of 
the 18'' x 23'' measurement. Some believed it was too small, while 
others claimed it was unnecessarily restrictive. Some commenters also 
indicated that the definition should make clear that the 18'' x 23'' 
measurement is intended to represent a blocked portion of the cover for 
consideration of the remaining open flow area, not simply the 
dimensions of the cover.
    Response: The 18'' x 23'' dimension represents the dimensions of a 
99th percentile male and mirrors the measurement used in the ASME/ANSI 
A112.19.8 standard referenced in the VGB Act. The Commission continues 
to believe this dimension is appropriate. The Commission agrees that 
the 18'' x 23'' dimension is intended to reference the remaining open 
flow area, once shadowed, and has revised its definition to make this 
clear.
    3. Blocking Element. One commenter stated that the blocking element 
was not representative of ``human skin'' and therefore did not fully 
represent a body's ability to adhere to or seal around an outlet cover.
    Response: The Commission agrees that the blocking element does not 
replicate the properties of human skin. However, the Commission is 
relying on the industry standard that is referenced in the VGB Act to 
further its interpretation of unblockable drain, and is thus using the 
same blocking element dimensions that are referenced in ASME/ANSI 
A112.19.8. Whether a flexible membrane or a more rigid material is 
used, it is the remaining open area of the cover when shadowed by the 
blocking element that is the important factor for consideration.
    4. Layers of Protection: There were several comments regarding the 
VGB Act's intent to use a ``layers of protection'' approach to address 
entrapment.
    Response: The ``layers of protection'' are applicable to incidents 
involving children having unfettered access to swimming pools in 
residential locations. In these cases, barriers and warnings, such as, 
doors, door alarms, motion detectors, pool covers, fencing with self-
closing, self-latching gates, etc., can all be used to delay and/or 
prevent access to the hazard. However, for entrapment incidents, the 
approach to prevention is different. There are five different types of 
entrapment: Body, limb, evisceration, hair, and mechanical-related. The 
mechanisms of entrapment can be slightly different with each. The 
common element in all five entrapment scenarios is the necessity of an 
outlet cover as a layer of protection. All five entrapment issues are 
addressed by the appropriate flow rating and size of the cover when the 
cover remains in place. Currently, the ``back-up'' systems mentioned as 
secondary requirements in the VGB Act address some, but not all, 
potential hazard patterns. The ``back-up'' systems primarily address 
suction body entrapment and may address some limb entrapments. However, 
these back-up systems do not address the hair and mechanical 
entrapments, or the evisceration injuries associated with entrapments. 
Moreover, the back-up devices require the incident to occur before they 
respond and, depending on the type of entrapment and the circulation 
system present, the response may not prevent the entrapment or the 
injury.
    Based on consideration of these comments, the Commission is 
creating a new Sec.  1450.2(b) to interpret ``unblockable drain'' as 
follows:

    A suction outlet defined as all components, including the sump 
and/or body, cover/grate, and hardware such that its perforated 
(open) area cannot be shadowed by the area of the 18'' x 23'' Body 
Blocking Element of ASME/ANSI A112.19.8-2007 and that the rated flow 
through the remaining open area (beyond the shadowed portion) cannot 
create a suction force in excess of the removal force values in 
Table 1 of that Standard. All suction outlet covers, manufactured or 
field-fabricated, shall be certified as meeting the applicable 
requirements of the ASME/ANSI A112.19.8 standard.

C. Codification

    The Commission is currently engaged in a separate interpretation of 
another term, ``public accommodations facility,'' in the VGB Act. If 
finalized, this

[[Page 21987]]

interpretation would be codified as a part of CFR part 1450, where 
Sec.  1450.1 would describe the scope of part 1450 and Sec.  1450.2(a) 
would contain the definition of ``public accommodations facility.'' 
Thus, this rule adds the new CFR part 1450, defines ``unblockable 
drain'' at 1450.2(b) and indicates that 1450.1 and 1450.2(a) are 
reserved.

D. Effective Date

    Section 1405 of the VGB Act directs the Commission to establish a 
grant program to provide assistance to eligible States for specific 
uses related to pool and spa safety. The Commission has entered into an 
interagency agreement with the Centers for Disease Control and 
Prevention (CDC)/National Center for Injury Control and Prevention 
(NCIPC) to administer the grant program. CDC will be publishing the 
Funding Opportunity Announcement related to the grant program in early 
April. Because potential State applicants need a definitive 
understanding of the law in order to qualify for grant monies, and 
because CDC intends to publish the Funding Opportunity Announcement in 
April, this final rule resulting is effective upon publication. The 
rule does not impose obligations on regulated parties beyond those 
imposed by the VGB Act. In addition, as mentioned in the DATES section 
of this preamble, the Commission has already received and considered 
comments and/or presentations with regard to this issue on two separate 
occasions: (1) In response to the ``July 2009 Staff Draft Technical 
Guidance on Unblockable Drains'' and (2) during the November 4, 2009 
Commission public hearing. Therefore, there is no need to provide a 
delayed effective date in order to allow for regulated parties to 
prepare for the rule.

List of Subjects in 16 CFR Part 1450

    Consumer protection, Incorporation by reference, Infants and 
children, Law enforcement.

0
For the reasons stated above, the Commission adds part 1450 to 
subchapter B of title 16 of the Code of Federal Regulations to read as 
follows:

PART 1450--VIRGINIA GRAEME BAKER POOL AND SPA SAFETY ACT 
REGULATIONS

Sec.
1450.1 [Reserved]
1450.2 Definitions.

    Authority:  15 U.S.C. 2051-2089, 86 Stat. 1207; 15 U.S.C. 8001-
8008, 121 Stat. 1794.


Sec.  1450.1  [Reserved]


Sec.  1450.2  Definitions.

    (a) [Reserved]
    (b) Unblockable drain includes a suction outlet defined as all 
components, including the sump and/or body, cover/grate, and hardware 
such that its perforated (open) area cannot be shadowed by the area of 
the 18'' x 23'' Body Blocking Element of ASME/ANSI A112.19.8-2007 and 
that the rated flow through the remaining open area (beyond the 
shadowed portion) cannot create a suction force in excess of the 
removal force values in Table 1 of that Standard. All suction outlet 
covers, manufactured or field-fabricated, shall be certified as meeting 
the applicable requirements of the ASME/ANSI A112.19.8 standard. You 
must proceed in accordance with ASME/ANSI A112.19.8-2007 (issued March 
30, 2007), including Addenda A112.19.8a-2008 (August 11, 2008) and 
A112.19.8b-2009 (approved October 22, 2009), Suction Fittings for Use 
in Swimming Pools, Wading Pools, Spas, and Hot Tubs. ASME/ANSI 
A112.19.8-2007, including Addenda A112.19.8a-2008 and A112.19.8b-2009 
are incorporated by reference. The Director of the Federal Register 
approves this incorporation by reference in accordance with 5 U.S.C. 
552(a) and 1 CFR part 51. You may obtain a copy from American Society 
of Mechanical Engineers (ASME), ATTN: Secretary, A112 Standards 
Committee, Three Park Avenue, New York, New York 10016-5990; 
www.asme.org, telephone 800-843-2763. 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 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.

    Dated: April 6, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2010-8160 Filed 4-26-10; 8:45 am]
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