[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \6\ There were two fatalities and nine injuries between 2013 and 
2017. https://www.cpsc.gov/s3fs-public/2018-Circulation-Entrapment.pdf?36TkV6OzJPzZPvRvC5IBnB5YhD1qkOPT.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \7\ https://www.cpsc.gov/s3fs-public/pdfs/blk_media_CPSCCommentstoRevisionAPSP162011.pdf.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \8\ https://www.federalregister.gov/documents/2010/04/27/2010-8160/virginia-graeme-baker-pool-and-spa-safety-act-interpretation-of-unblockable-drain.
---------------------------------------------------------------------------

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
------------------------------------------------------------------------
       Section No.                  Summary of topic(s) covered
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

    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
------------------------------------------------------------------------
       Section No.                  Summary of topic(s) covered
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

    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
------------------------------------------------------------------------
       Section No.                  Summary of topic(s) covered
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

    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
------------------------------------------------------------------------
       Section No.                  Summary of topic(s) covered
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

    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