[Federal Register Volume 76, Number 196 (Tuesday, October 11, 2011)]
[Rules and Regulations]
[Pages 62605-62607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25601]


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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 rule; revocation.

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SUMMARY: The Consumer Product Safety Commission (``Commission,'' 
``CPSC'' or ``we'') is revoking its interpretation of the term 
``unblockable drain'' as used in the Virginia Graeme Baker Pool and Spa 
Safety Act (``VGB Act'').\1\
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    \1\ The Commission voted 3-2 to publish this revocation, with 
changes, in the Federal Register. Chairman Inez M. Tenenbaum, 
Commissioners Robert Adler and Thomas Moore voted to publish the 
revocation. Commissioners Nancy Nord and Anne Northup voted against 
publication of this revocation. Chairman Tenenbaum, Commissioner 
Adler, Commissioner Moore and Commissioner Nord filed statements 
regarding the vote. The statements may be viewed at http://www.cpsc.gov/pr/statements.html.

DATES: Effective date: This rule is effective October 11, 2011.
    Compliance date: This revocation does not alter the current 
requirement that public pools and spas be in compliance with the VGB 
Act, which became effective December 19, 2008. Any public pools or spas 
that require modifications as a result of this revocation shall comply 
by May 28, 2012.
    Comment dates: Written comments and submissions in response to this

[[Page 62606]]

action must be received by December 12, 2011. The Commission invites 
written comments regarding the ability of those who have installed VGBA 
compliant unblockable drain covers as described at 16 CFR 1450.2(b) to 
come into compliance with our revocation by May 28, 2012.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2011-
0071, 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 (preferably in five copies), 
disk, or CD-ROM submissions), 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 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 and 
noted as such.
    Docket: For access to the docket to read background comments or 
comments received, go to: http://www.regulations.gov.

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

SUPPLEMENTARY INFORMATION:

A. Background

    The Virginia Graeme Baker Pool and Spa Safety Act, Pub. L. 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 suction entrapment by swimming pool and spa drains 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. (In the Federal Register of August 5, 2011 (76 FR 
47436), we published a final rule to incorporate into our regulations 
ANSI/APSP-16 2011 as the successor standard to ANSI/ASME A112.19.8. The 
effective date of this incorporation is September 6, 2011, so that 
drain covers manufactured, distributed, or entered into commerce in the 
United States must conform to ANSI/APSP-16 2011 as of that date. See 16 
CFR 1450.3) 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, each public pool or spa with a single main drain, other than 
an unblockable drain, 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.''
    On April 27, 2010, the Commission issued a final interpretive rule 
in the Federal Register (75 FR 21985) interpreting ``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.

This language is codified in 16 CFR 1450.2(b). Under this 
interpretation, when a drain cover meeting certain specifications was 
attached to a drain, the covered drain constituted an ``unblockable 
drain.'' As an unblockable drain, this drain did not require a 
secondary anti-entrapment system. For the reasons set forth in Part B, 
the Commission is revoking this interpretation. As a result, a 
blockable drain cannot be made ``unblockable'' by use of a cover alone.

B. Revised Interpretation

    Since the issuance of this interpretive rule, we received 156 
letters asking us to reexamine our interpretation of the definition of 
``unblockable drain.'' In general, these letters assert that drain 
covers, regardless of their size, can come off or break over the course 
of the life of a pool or spa, even when the owners and operators have 
the best intentions. They claim that for this reason, backup systems 
are necessary, and a swimming pool or spa with a single main drain 
cannot be made ``unblockable'' by the simple installation of a drain 
cover meeting certain requirements. They also claim that our 
interpretation of the definition of ``unblockable drain'' undermines 
the law's intent of incorporating several layers of protection into 
pools and spas. These letters have been made part of the docket.
    In light of these letters, we have reconsidered our interpretation 
of an ``unblockable drain,'' at 16 CFR 1450.2(b) and believe it was in 
error. Regardless of the size of a drain and its cover, the drain cover 
can come off, presenting a risk of entrapment. We believe that not 
requiring an additional layer of protection in the form of a secondary 
anti-entrapment system thwarts the layers of protection intended by the 
VGB Act. Accordingly, the Commission is revoking the interpretation of 
unblockable drain at 16 CFR 1450.2(b).

C. Effect of Revocation of 16 CFR 1450.2(b)

    The revocation of this rule means that a drain cover can no longer 
be used to convert a blockable drain into an unblockable drain. 
Pursuant to the VGB Act, drains that are blockable require a secondary 
anti-entrapment system. Section 1404(c)(1)(A)(ii) of the VGB Act. 
Accordingly, if you have used an unblockable drain cover to create an 
unblockable drain, the revocation of the interpretative rule means that 
you must equip your public pool or public spa with a secondary anti-
entrapment system as required by the VGB Act. A

[[Page 62607]]

drain is ``unblockable'' if the suction outlet, including the sump, has 
a perforated (open) area that cannot be shadowed by the area of the 
18'' x 23'' Body Blocking Element of ANSI/APSP-16 2011 and the rated 
flow through any portion of 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. The Staff Technical 
Guidance of June 2008 will be updated to clarify that placing a 
removable, unblockable drain cover over a blockable drain does not 
constitute an unblockable drain. This revocation corrects the previous 
interpretation, which the Commission now believes was in error and 
thwarts the intent of the law to require layers of protection in cases 
where a drain cover, regardless of its size, can be removed, broken, or 
otherwise expose a blockable drain and present an entrapment hazard. 
The Commission has set a compliance date of May 28, 2012, to allow time 
for firms that require modifications as a result of this revocation to 
bring their pools into compliance with the statute as written. In 
addition, the Commission invites written comments regarding the ability 
of those who have installed VGBA compliant unblockable drain covers as 
described at 16 CFR 1450.2(b) to come into compliance with our 
revocation by May 28, 2012.

List of Subjects in 16 CFR Part 1450

    Consumer protection, Infants and children, Law enforcement.

    For the reasons stated above, the Commission amends part 1450 of 
title 16 of the Code of Federal Regulations as set forth below:

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

0
1. The authority citation for part 1450 continues to read as follows:

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


Sec.  1450.2  [Removed and Reserved]

0
2. Remove and reserve Sec.  1450.2.

    Dated: September 29, 2011.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2011-25601 Filed 10-7-11; 8:45 am]
BILLING CODE 6355-01-P