[Federal Register Volume 84, Number 101 (Friday, May 24, 2019)]
[Rules and Regulations]
[Pages 24021-24027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10845]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1450
[Docket No. CPSC-2019-0012]
Virginia Graeme Baker Pool and Spa Safety Act; Incorporation by
Reference of Successor Standard
AGENCY: Consumer Product Safety Commission.
ACTION: Direct final rule.
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SUMMARY: The Virginia Graeme Baker Pool and Spa Act (VGBA, or Act)
requires that drain covers must comply with entrapment protection
requirements specified by the joint American Society of Mechanical
Engineers (ASME) and American National Standards Institute (ANSI) ASME/
ANSI A112.19.8 performance standard, or any successor standard. The
Consumer Product Safety Commission incorporates sections of APSP-16
2017 as the successor drain cover standard.
DATES: The rule is effective November 24, 2020, unless we receive
significant adverse comment by June 24, 2019. If we receive timely
significant adverse comments, we will publish notification in the
Federal Register, withdrawing this direct final rule before its
effective date. The incorporation by reference of the publication
listed in this rule is
[[Page 24022]]
approved by the Director of the Federal Register as of November 24,
2020.
ADDRESSES: You may submit comments, identified by Docket No. CPSC-2019-
0012, 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, please submit all electronic (email) comments through
www.regulations.gov rather than to CPSC. CPSC encourages you to submit
electronic comments by using the Federal eRulemaking Portal, as
described above.
Written Submissions: Submit written comments in the following way:
Mail/Hand delivery/Courier (for paper, disk or CD-ROM submissions),
preferably in five copies, to: Division of the Secretariat, 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 notice. All comments received may be posted
without change to http://www.regulations.gov, including any personal
identifiers, contact information, or other personal information
provided. Do not submit confidential business information, trade secret
information, or other sensitive or protected information that you do
not want to be available to the public. If furnished at all, such
information should be submitted by mail/hand delivery/courier.
Docket: For access to the docket to read background documents or
comments received, go to: http://www.regulations.gov, insert docket
number CPSC-2019-0012 into the ``Search'' box, and follow the prompts.
FOR FURTHER INFORMATION CONTACT: Troy Whitfield, Lead Compliance
Officer, Directorate for Compliance Regulatory Enforcement, Consumer
Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814;
telephone: 301-504-7548; email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background and Statutory Authority
The VGBA, 15 U.S.C. 8001 et seq., took effect on December 19, 2008.
The VGBA's purpose is to prevent drain entrapment and child drowning in
swimming pools and spas. In part, the Act requires that drain covers
must comply with entrapment protection requirements specified by the
joint ASME/ANSI A112.19.8 performance standard, or any successor
standard. The VGBA also states that public pools \1\ must be equipped
with drain covers that meet the requirements of the ASME/ANSI or any
successor standard. The VGBA provides that if a successor standard to
ASME/ANSI/A112.19.8 is proposed and the Commission determines the
successor standard is in the public interest, the Commission must
incorporate the revision into the mandatory drain cover standard.
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\1\ The Act defines the term ``pool'' to mean any outdoor or
indoor structure intended for swimming or recreational bathing,
including in-ground and above ground structures, and includes hot
tubs, spas, portable spas, and non-portable wading pools.
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On August 5, 2011, the Commission recognized the Association of
Pool and Spa Professionals (APSP) \2\ standard APSP-16 2011, Suction
Fittings for Use in Swimming Pools, Wading Pools, Spas, and Hot Tubs,
as the successor standard to ASME/ANSI A112.19.8. The Commission
incorporated by reference APSP-16 2011 into 16 CFR part 1450. 76 FR
47436 (Aug. 5, 2011). ASME/ANSI A112.19.8 and its successor standard,
APSP-16 2011, contain requirements that address hair entrapment,\3\
body entrapment,\4\ and, in a limited way, limb entrapment.\5\
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\2\ On April 1, 2019, the Association of Pool and Spa
Professionals changed its name to the Pool & Hot Tub Alliance
(PHTA).
\3\ Hair entrapment typically occurs when water flowing into the
suction outlet carries a person's hair through and behind the
openings in the drain cover, where it becomes so entangled that it
prevents escape.
\4\ Body entrapment typically occurs on drains that are not
unblockable and are served by direct-suction pumps when a person's
body forms a seal around the perimeter of a drain, and they are thus
held against the drain by the pump suction.
\5\ Limb entrapment typically occurs on drain covers when a
cover is broken and a person gets a limb stuck in the broken portion
of the cover; or when the cover is completely missing and a person
gets a limb stuck in the suction outlet, or other geometry that is
within the sump.
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On March 27, 2018, APSP notified the Commission of the publication
of a successor pool drain cover standard to APSP-16 2011, in
conjunction with ANSI and the International Code Council (ICC), ANSI/
APSP/ICC-16 2017 (APSP-16 2017).
II. APSP-16 2017
APSP-16 2017 establishes materials, testing, use, installation, and
marketing requirements for new or replacement bather-accessible suction
outlet fitting assemblies, other than maintenance drains, that are
designed to be fully submerged for use in any pool. APSP-16 2017
contains a new effective date for the standard, changes to physical
testing requirements, new definitions, and new labeling requirements
for the drain cover. These changes are discussed in section III of this
preamble. APSP-16 2017 also contains new requirements that apply to the
installation of the drain cover, to pools, to the operation of pools,
and to pool owners. These changes are discussed in section IV of this
preamble. As explained in section IV.A, the Commission does not have
the authority to impose these requirements under section 1404(b) of the
VGBA.
III. Changes to APSP-16 2017 That Are Within the Commission's Authority
A. Effective Date
The VGBA does not specify an effective date for implementing
successor standards. The Commission expects drain covers that meet
APSP-16 2011 to be able to meet APSP-16 2017 with minimal changes to
the drain covers. The changes necessary for the product to comply with
the revised standard are limited to minor changes in on-product
markings and new requirements for what must be included in the
documentation accompanying the product. Product instructions and on-
product markings are already required; thus, costs are limited to
altering the content of these items. The APSP-16 2017 standard states
that it will take effect 18 months after its adoption by CPSC.
The Administrative Procedure Act (APA) generally requires that the
effective date of a rule be at least 30 days after publication of the
final rule (5 U.S.C. 553(d)). Because of the low rate of injuries under
APSP-16 2011,\6\ and because the APA does not prohibit an 18-month
effective date, accelerated adoption of the new standard is not
warranted. Therefore, unless the Commission receives timely significant
adverse comments, CPSC's revised standard will take effect 18 months
after publication of this Federal Register notice incorporating APSP-16
2017 as the successor standard.
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\6\ There were two fatalities and nine injuries between 2013 and
2017. https://www.cpsc.gov/s3fs-public/2018-Circulation-Entrapment.pdf?36TkV6OzJPzZPvRvC5IBnB5YhD1qkOPT.
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B. Changes to Physical Testing Requirements
The APSP-16 technical committee considered many possible changes to
physical testing requirements when it was developing the 2017 version
of the APSP-16 standard. Ultimately, CPSC staff found only two changes
to physical testing requirements that maintain or increase the level of
safety afforded by APSP-16 2011. These are the changes to the hair test
approach time (section 5.9.5.5 of APSP-16 2017), and changes
[[Page 24023]]
to hair testing at specific ports in suction outlet fitting assemblies
(section 1.3.7.1 of APSP-16 2017).
1. Changes to Hair Test Approach Time
For three of the most significant tests specified in the 2011
version of APSP-16, the test results are given as a flow rating of
gallons per minute of water through the drain cover. These three tests
are the pony tail hair test, the full head of hair test, and the body-
blocking test. The highest flow rate at which the drain cover meets the
performance criteria of all three tests is the maximum allowable flow
rate of water for which the drain cover may be certified. Drain cover
manufacturers seek the highest possible flow rating. A higher flow
rating increases the number of applications for which the drain cover
is suitable.
The hair and body-blocking tests are conducted in a simulated pool
installation. The test technician selects an initial water flow rate
for testing through the drain cover, and then increases the test flow
rate until the test requirements are no longer met for the hair or body
tests. The test technician records the maximum flow rate for each of
the tests where the drain cover meets the standard. The lower of the
flow rates from the pony tail or full head of hair tests is considered
to be the hair test result. The flow rating of the cover is the highest
flow rating at which the drain cover meets the requirements for the
hair and body-blocking tests.
The pony tail and full head of hair tests begin with the free ends
of hair two inches away from the drain cover. APSP-16 2011 specified
that the head and ponytail fixtures are moved in a side-to-side motion
as they are lowered over a period of 60 seconds toward the drain cover
during their respective tests. The hair ends move in response to, or
generally opposite to, these motions, until the flow of water draws the
hair into the drain cover. Due to the iterative nature of the tests,
coupled with the dual requirement for the drain cover to meet two types
of hair test requirements, it can take numerous tests to determine a
hair flow rating.
To reduce the time required to perform the hair tests, and
therefore, to lower the cost of testing, APSP-16 2017 decreases the
hair test approach time from 60 seconds to 30 seconds. CPSC staff
studied the change in hair approach time extensively. Staff explained
the results of its testing in a detailed letter to APSP.\7\ Staff's
test experiences indicate that most of the time spent moving hair the
full 60 seconds is unnecessary, because the hair is effectively drawn
to the target area within a few seconds. Moreover, too much movement
can lead to the hair being self-entangled above the drain and not
within the drain, thus producing inaccurate results. The Commission
concludes that the change to 30 seconds in section 5.9.5.5 of APSP-16
2017 is in the public interest because it is at least as protective as
the 60 seconds specified in APSP-16 2011; it may minimize the risk of
the hair being self-entangled above the drain; and it reduces the cost
of performing the testing that is required to meet the standard because
it reduces the time necessary to perform the tests.
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\7\ https://www.cpsc.gov/s3fs-public/pdfs/blk_media_CPSCCommentstoRevisionAPSP162011.pdf.
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2. Changes to Hair Testing To Include all Suction Outlet Fittings
To ease product installation, many SOFA manufacturers include more
than one suction outlet on their products. Suction outlets may be
located on one or more sides of the SOFA, on the bottom, or on a
combination of these locations. For SOFAs with multiple suction
outlets, APSP-16 2011, and before it, ASME/ANSI A112.19.8, only
required that the hair and body-blocking element tests be performed on
the drain cover while water was flowing through one of the suction
outlets. The standards did not require testing the drain cover using
the additional suction outlets, when present.
The introduction of channel drains, whose length is much longer
than their width, provided a new scenario for entrapment. Figure 1
shows an example of a channel drain.
[GRAPHIC] [TIFF OMITTED] TR24MY19.004
Like traditional SOFAs, channel drains are often equipped with
multiple suction outlets, not all of which must necessarily be
connected during installation. However, because channel drains have
very narrow widths compared to their lengths, their design potentially
concentrates the low-pressure area underneath the portion of the drain
cover that is closest to the suction outlet. Because there was no
previous requirement to test SOFAs using every suction outlet as the
water source for the pump, it was possible that a channel drain could
be tested using only the suction outlet that yielded the highest flow
rating, i.e., the suction outlet least likely to produce entrapment for
a given flow rate. However, channel SOFAs could be installed using a
different suction outlet than the one that was used during testing;
thus, this could potentially expose bathers to conditions that exceed
what is allowed by the standard. To ensure that channel-type SOFAs did
not receive an improper flow rating, the committee initially proposed
that channel drains must meet the hair and body-block tests when each
suction outlet was tested. Due to the wide variety of styles and
suction outlet configurations available on traditional, non-channel-
type SOFAs, and because all types of SOFAs could be subject to
differing flow through the drain cover that are dependent on the
suction outlet location, the committee decided that the new requirement
to test at all suction outlets on channel drains should also apply to
all types of SOFAs.
[[Page 24024]]
The additional requirement to perform hair tests at all suction
outlets for all types of SOFAs will increase the testing burden because
it increases the number of tests that are required to be performed.
However, the possible increase in testing burden will be offset by
other changes to the testing requirements. Under the revised standard,
if the hair cannot reach the suction outlet, there is no need to test
that outlet. Thus, APSP-17 2017 provides that the requirement to test
at each suction outlet, which is included in section 5.7.2, only
applies to suction outlets that have a ``flow path length'' (i.e., the
distance between the drain cover the suction outlet) of less than 16
inches, which is the maximum length of hair used in the hair tests.
Furthermore, as discussed above, the 2017 standard reduced the hair
approach time from 60 seconds to 30 seconds. The additional testing
required to evaluate all of the suction outlets on a SOFA is offset by
the reduction in hair test approach time discussed in Section II.A.2.a.
The requirement in APSP-16 2017 to test at every suction outlet
reachable by the hair test specimen will increase the safety of bathers
because it precludes the chance of a SOFA being installed in a manner
that is different from the way it was tested, serves to clarify prior
practice, and is supported by laboratory testing. Accordingly, the
Commission determines that testing of SOFAS at every suction outlet is
in the public interest.
C. Definition of ``Unblockable Drain''
The 2011 version of the APSP standard did not define ``unblockable
drain'' or ``unblockable SOFA.'' The definitions section of APSP-16
2017 includes the following definition of ``Unblockable SOFA'':
A suction outlet fitting assembly that, when installed according
to the manufacturer's instructions, cannot be shadowed by an 18'' x
23'' Body Blocking Element, and has a rated flow through the
remaining open area beyond the shadowed portion that cannot create a
suction force in excess of the force calculated in equation 2.
Pool drain professionals have essentially been using this definition to
determine whether a SOFA is unblockable since a similar version was
first published as an interpretive rule by CPSC on April 27, 2010.\8\
At least 149 state and local building codes now reference the 18'' x
23'' dimension and the pull-off force requirements originally found in
Table 1 of A112.19.8, which are consistent with the definition of
``unblockable'' in APSP-16 2017. Other state and local codes reference
slight variations of this definition of ``unblockable.'' Because this
is an accepted definition among pool professionals, the Commission
believes including this definition in its mandatory standard is in the
public interest.
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\8\ https://www.federalregister.gov/documents/2010/04/27/2010-8160/virginia-graeme-baker-pool-and-spa-safety-act-interpretation-of-unblockable-drain.
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D. Labeling Requirements
Section 8.4 of APSP-16 2017 contains requirements for the labelling
of a SOFA, requiring identifying information, such as the manufacturer
name and cover/grate part number, and date of the installation of the
cover/grate. Section 8.5.1 of APSP-16 2017 contains labeling
requirements for Registered Design Professional (RDP) SOFAs. Section
9.3 of APSP-16 2017 adds provisions regarding a General Certificate of
Conformity (GCC) that are consistent with the Consumer Product Safety
Act and VGBA. These requirements identify the product, the
manufacturer, and the test lab that performed the analysis, as well as
state the standard to which the product was tested, and when and where
it was tested. Because the presence of this information makes it easy
to identify relevant safety information about the product, the
Commission finds these requirements are in the public interest.
IV. Changes to APSP-16 2017 That Exceed the Commission's Authority
A. The Commission's Authority Under the VGBA
Section 1404(b) of the VGBA specifies a standard for drain covers.
It states ``each swimming pool or spa drain cover manufactured,
distributed, or entered into commerce in the United States shall
conform to the entrapment protection standards of [the drain cover
performance standard].'' Section 1404(a) of the VGBA states that the
requirements of section 1404(b) shall be treated as a consumer product
safety rule under the CPSA. Thus, the drain cover must be in compliance
with the drain cover standard at the time of manufacture of the cover,
distribution of the cover, or when the cover is entered into commerce.
This indicates that the drain cover standard is a standard for the
drain cover, as a discrete product.
Section 1404(b) requires the Commission to assess any successor
drain cover standard to determine whether the changes in the standard
are in the public interest, before incorporating the successor
standard. CPSC's Office of Compliance enforces section 1404(b) by
determining whether the drain cover, as a discrete product, at the time
of manufacture, distribution, or entrance into commerce, complies with
the drain cover standard.
Separately, section 1404(c) of the VGBA requires that public pools
and spas in the United States:
Have drain covers that comply with the standard specified
in section 1404(b) or a successor standard; and
if the public pool or spa does not have an unblockable
drain, it must be equipped with one or more of the secondary systems
specified in section 1404(c)(1)(A)(ii).
Thus, section 1404(c) gives the CPSC authority to determine and enforce
these requirements for public pools and spas, and it gives the CPSC the
authority to inspect these public facilities for the presence of drain
covers and secondary systems and to enforce those requirements. In
summary, section 1404(b) of the VGBA is the drain cover standard, which
is to be treated as a consumer product safety rule. The VGBA authorizes
a product safety standard for that product--drain covers (or SOFAs).
The authority for the Commission to incorporate by reference the APSP
drain cover standard is in section 1404(b) of the VGBA. Separately,
section 1404(c) of the VGBA requires public pools and spas to have
certain specified equipment, and it gives the Commission authority to
check that the equipment is installed in public pools and spas.
B. Specific Sections of APSP-16 2017 That Exceed Commission Authority
APSP-16 2017 contains many changes that extend beyond the
requirements for the drain cover or SOFA itself, and thus, exceed
CPSC's authority under section 1404(b) of the VGBA. The voluntary
standard can have such provisions. However, the Commission does not
have authority to enforce them as mandatory standard provisions. The
changes include requirements that can be separated into the following
categories:
Installation of the SOFA;
Requirements applicable to pools;
Activities of pool owners;
Changes to statutory definitions in the VGBA.
The changes specific to each category are detailed in Tables 1
through 4.
[[Page 24025]]
Table 1--Sections of APSP-16 2017 That Are Beyond the Authority of CPSC
Because They Establish Requirements for the Installation of the SOFA
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Section No. Summary of topic(s) covered
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1.3.3.2.................. Drain covers can only be installed on SOFAs
deemed suitable by the drain cover
manufacturer.
3.5.1.................... Drain covers shall only be installed on sumps
in configurations authorized by the drain
cover manufacturer's installation
instructions, and at a specific flow rating.
3.6.1.................... A SOFA must be installed per the
manufacturer's instructions.
3.6.3.2.................. Compliance with the standard requires
selecting and installing a SOFA or
combination of SOFAs such that the flow
rating of the SOFAs is greater than the
maximum system flow of the pool.
3.6.4.2.................. The flow rating for existing pools with
blockable SOFAs is the flow rating of the
SOFA, when also installed in conjunction
with an additional device or system designed
to prevent suction entrapment (``secondary
anti-entrapment system''). A single,
blockable SOFA installed in existing pools
with no secondary anti-entrapment system
results in a flow rating of zero.
3.7.2.................... Blockable SOFAs installed in existing pools
must also be installed with a secondary anti-
entrapment system.
3.7.3.................... Covers or grates marked unblockable may be
installed in pools with multiple SOFA
systems. Covers or grates marked unblockable
may also be installed in pools with single
SOFA systems when this use is authorized by
the cover/grate manufacturer.
9.4.1.................... Blockable covers may only be installed in
multiple-SOFA systems, or in pools that are
also equipped with one or more secondary
anti-entrapment systems.
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The provisions mentioned in Table 1 set forth requirements for how
to install the SOFA. The 2011 version of the APSP standard addressed
installation by requiring that certain information about installation
be provided in labels and instructions. In contrast, the provisions
referenced in Table 1 require that the installer or pool owner/operator
take certain actions. These are not provisions for the drain cover. A
drain cover manufacturer has the ability to provide labels and
instructions with the product. A drain cover manufacturer does not
control how the product is installed.
Table 2--Sections of APSP-16 2017 That Are Beyond the Authority of CPSC
Because They Establish Requirements for Pools
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Section No. Summary of topic(s) covered
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1.3.3.1.................. A pool's system suction flow must not exceed
the rating of the installed SOFA(s). A pool
with SOFA(s) that were not installed per the
manufacturer's instructions is not in
compliance with the standard.
3.6.3.1.................. A pool's system flow ratings cannot exceed
the SOFA flow rating while the pool is open
to bathers.
3.6.4.1.................. For multiple blockable SOFA systems, the
maximum system flow rating for the pool is
determined by subtracting the flow rating of
the largest SOFA.
3.6.4.3.................. The system flow rating for pools with
unblockable SOFA(s) shall be determined by
combining the flow rating of all SOFA(s).
3.7.1.................... In new pool construction, the use of a single
blockable SOFA is not permitted.
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The provisions mentioned in Table 2 set forth requirements for
pools, not for drain covers. Several of the provisions set requirements
for the pool's flow rating. The 2011 version of the APSP standard
required markings and instructions regarding operation at an
appropriate flow rating. However, the revised standard states
requirements for the pool; these are requirements the drain cover
manufacturer lacks the ability to fulfill.
Table 3--Sections of APSP-16 2017 That Are Beyond the Authority of CPSC
Because They Require Actions of Pool Owners
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Section No. Summary of topic(s) covered
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1.1.3.................... Drain covers must be replaced at the end of
their stated service life.
3.6.2.................... No modifications to SOFAs or the SOFA flow
paths are permitted unless they are
subsequently re-tested.
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The provisions mentioned in Table 3 require pool owners to take
certain actions. The 2011 version of the APSP standard required that
components of drain covers be marked to state the component's life
span. In contrast, the revised standard requires that drain cover
components be replaced at the end of their service life. This change
makes the requirement apply to the pool owner, not the drain cover
manufacturer. Similarly, a requirement prohibiting modifications to
installed SOFAs applies to the pool owner, not the drain cover.
Table 4--Sections of APSP-16 2017 That Set Instatallation Requirements
Regarding Secondary Systems
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Section No. Summary of topic(s) covered
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9.4.1.................... Requires that blockable SOFAs have
installation instructions stating that SOFAs
shall be installed only in multiple SOFA
systems or instructions shall state that the
installer shall include one or more of the
following devices or systems
9.4.1.1.................. Provides a definition of safety vacuum relief
system (SVRS).
9.4.1.2.................. Provides a definition of suction-limiting
vent system (SVLS).
[[Page 24026]]
9.4.1.3.................. Provides a definition of gravity drainage
system.
9.4.1.4.................. Provides a definition of automatic pump shut-
off system.
9.4.1.5.................. Provides a definition of drain disablement.
9.4.1.6.................. Provides a definition of other secondary anti-
entrapment systems.
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The provisions listed in Table 4 set forth what seem to be
requirements for instructions. As is stated above, CPSC standards can
include requirements for instructions. However, the instructions
specified in section 9.4 actually establish requirements for pools and
for secondary devices and systems designed to prevent suction
entrapment. All of section 9.4 exceeds the Commission's authority under
Section 1404(a) of the VGBA because the instructions require secondary
systems on all pools. The VGBA only requires secondary systems for
public pools. In addition, this section provides definitions of the
secondary systems that differ from the statutory definitions in the
VGBA.
C. Section That Should Not Be Included Because of an Error
Section 3.2.4 requires SOFAs to be designated in their installation
manual as ``blockable'' or ``unblockable.'' This requirement does fall
within the enforcement authority of CPSC. However, the definition in
APSP-16 2017 contains an error. As discussed, APSP-16 2017 provides a
definition of ``unblockable.'' That definition has two parts:
Unblockable SOFAs must meet a minimum size requirement, and they must
meet the body-blocking element maximum pull-off force requirement. Due
to a printing error, section 3.2.4 omitted the pull-off force
requirement. Thus, the Commission will not adopt section 3.2.4 of APSP-
16 2017.
V. Incorporation by Reference
The Office of the Federal Register (OFR) has regulations concerning
incorporation by reference. 1 CFR part 51. Under these regulations,
agencies must discuss, in the preamble to the final rule, ways that the
materials the agency incorporates by reference are reasonably available
to interested person and how interested parties can obtain the
materials. In addition, the preamble to the final rule must summarize
the material. 1 CFR 51.5(b).
In accordance with the OFR's requirements, section II of this
preamble summarizes the major provisions of the APSP-16 2017 standard
that the Commission incorporates by reference into 16 CFR 1450.3. The
standard is reasonably available to interested parties, and interested
parties may purchase a copy of the standard from The Association of
Pool & Spa Professionals. A copy of the standard can also be inspected
at CPSC's Office of the Secretary.
VI. Direct Final Rule Process
The APA generally requires that agencies use notice and comment
rulemaking when issuing a rule. 5 U.S.C. 553. The Commission is
adopting as a mandatory standard a voluntary standard that was
developed through the consensus process. The voluntary standard is
noncontroversial and receives widespread support. In Recommendation 95-
4, the Administrative Conference of the United States (ACUS) endorsed
direct final rulemaking as an appropriate procedure to expedite
promulgation of rules that are noncontroversial and that are not
expected to generate significant adverse comment. See 60 FR 43108
(August 18, 1995). The Commission believes it is very unlikely that
there will be adverse comments to this rule. Consistent with the ACUS
recommendation, the Commission is satisfying the notice and comment
procedure by publishing this rule as a direct final rule and providing
that, unless adverse comment is received within 30 days, the rule will
become effective as a final rule.
VII. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) requires that when agencies
are required to issue a notice of proposed rulemaking they must review
the rulemaking's potential economic impact on small entities, including
small businesses. Section 603 of the RFA requires the Commission to
prepare and make available for public comment an Initial Regulatory
Flexibility Analysis (IRFA) describing the impact of the proposed rule
on small entities and identifying impact-reducing alternatives.
However, under Section 605 of the RFA, if an agency certifies that the
proposed rule, if promulgated, will not have a significant economic
impact on a substantial number of small entities, an IRFA is not
required, provided that the agency publishes the certification in the
Federal Register, along with a statement providing the factual basis
for the certification.
As discussed in section III.B of this preamble, the revised
standard includes two changes to the testing procedures in ANSI/APSP/
ICC-16: Hair test approach time and hair testing at specific ports in
channel SOFAs. In addition to these two changes in hair tests from the
current standard, ANSI/APSP/ICC-16 2017 specifies additional editorial
changes, which are intended to clarify existing wording. Clarifying
language pertaining to installation and maintenance instructions to be
provided with the covers/grates for SOFAs was also added to the
standard. Also, manufacturers are required to make minor changes to the
information that is provided in permanent markings of compliant covers
and grates.
Overall, the changes in testing requirements in the standard
revision should have minimal impacts on small businesses, either in
costs of testing, or in product modifications necessitated to comply
with the revised testing provisions. The revisions that this rule would
require in the information that must be provided in installation and
maintenance instructions, and the changes in the permanent markings
required for covers, and grates should also not impose significant
costs on small cover and grate manufacturers. Because small firms
should only experience minimal increases in compliance costs or other
burdens associated with this rule, the Commission certifies that
referencing the revised standard, ANSI/APSP/ICC-16-2017, as the
successor standard under the VGBA will not be likely to have
significant economic impact on a substantial number of small businesses
or other entities.
VIII. Paperwork Reduction Act
This rule does not impose any information collection requirements.
Accordingly, this rule is not subject to the Paperwork Reduction Act,
44 U.S.C. 3501-3520.
[[Page 24027]]
IX. Environmental Considerations
The Commission's regulations provide a categorical exclusion for
the Commission's rules from any requirement to prepare an environmental
assessment or an environmental impact statement because they ``have
little or no potential for affecting the human environment.'' 16 CFR
1021.5(c)(2). This rule falls within the categorical exclusion, so no
environmental assessment or environmental impact statement is required.
X. Preemption
Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that where a
``consumer product safety standard under [the Consumer Product Safety
Act (CPSA)]'' is in effect and applies to a product, no state or
political subdivision of a state may either establish or continue in
effect a requirement dealing with the same risk of injury, unless the
state requirement is identical to the federal standard. Section 26(c)
of the CPSA also provides that states or political subdivisions of
states may apply to the Commission for an exemption from this
preemption in certain circumstances.
Section 1404(a) of the VGBA specifies that a rule issued under
section 1404(b) of the VGBA shall be treated as a consumer product
safety standard under the CPSA, thus, implying that the preemptive
effect of section 26(a) of the CPSA would apply. Therefore, this rule
will invoke the preemptive effect of section 26(a) of the CPSA when it
becomes effective.
List of Subjects in 16 CFR Part 1450
Consumer protection, Incorporation by reference, Infants and
children, Law enforcement.
For the reasons stated above, the Commission amends part 1450 of
title 16 of the Code of the Federal Regulations as follows:
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.
0
2. Revise Sec. 1450.3 to read as follows:
Sec. 1450.3 Incorporation by reference.
(a) Except as provided in paragraph (b) of this section, each
swimming pool or spa drain cover manufactured, distributed, or entered
into commerce in the United States shall conform to the entrapment
protection standards of ANSI/APSP/ICC-16 2017, American National
Standard for Suction Outlet Fitting Assemblies (SOFA) for Use in Pools,
Spas and Hot Tubs, approved on August 18, 2017. 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 the
Pool & Hot Tub Alliance (formerly known as the Association of Pool &
Spa Professionals), 2111 Eisenhower Avenue, Alexandria, Virginia 22314;
http://www.apsp.org, telephone 703-838-0083. You may inspect a copy at
the Division of the Secretariat, U.S. Consumer Product Safety
Commission, Room 820, 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 https://www.archives.gov/federal-regster/cfr/ibr-locations.html.
(b) The CPSC standard does not require compliance with the
following provisions:
(1) Section 1.1.3 of ANSI/APSP/ICC-16 2017.
(2) Sections 1.3.3.1 through 1.3.3.2 of ANSP/APSP/ICC-16 2017.
(3) Section 3.2.4 of ANSI/APSP/ICC-16 2017.
(4) Section 3.5.1 of ANSI/APSP/ICC-16 2017.
(5) Sections 3.6.1 through 3.6.4.3 of ANSI/APSP/ICC-16 2017.
(6) Section 3.7 of ANSI/APSP/ICC-16 2017.
(7) Section 9.4 of ANSI/APSP/ICC-16 2017.
Abioye E. Mosheim,
Acting Secretary, Consumer Product Safety Commission.
[FR Doc. 2019-10845 Filed 5-23-19; 8:45 am]
BILLING CODE 6355-01-P