[Federal Register Volume 85, Number 182 (Friday, September 18, 2020)]
[Rules and Regulations]
[Pages 58263-58266]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18496]


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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 Drain Cover 
Standard

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule; delay of effective date.

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SUMMARY: On May 24, 2019, the Consumer Product Safety Commission 
(Commission, or CPSC) issued a direct final rule incorporating sections 
of APSP-16 2017 as the successor drain cover standard under the 
Virginia Graeme Baker Pool and Spa Safety Act (VGBA, or Act). We are 
publishing this final rule to delay the effective date of the CPSC's 
mandatory standard for drain covers, due to the COVID-19 pandemic.

DATES: The effective date for the direct final rule published on May 
24, 2019, at 84 FR 24021, is delayed from November 24, 2020, until May 
24, 2021.

FOR FURTHER INFORMATION CONTACT: Mark Eilbert, Mechanical Engineer, 
Directorate for Laboratory Sciences, Consumer Product Safety 
Commission, 5 Research Place, Rockville, MD 20850; telephone: 301-987-
2232; email: [email protected].

SUPPLEMENTARY INFORMATION:

A. Background

    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 standard from the American Society of Material Engineers (ASME) 
and the American National Standards Institute (ANSI), ASME/ANSI 
A112.19.8 performance standard, or any successor standard. The VGBA 
also states that public pools must be equipped with drain covers that 
meet the requirements of the ASME/ANSI standard or any successor 
standard. Under the VGBA, if ASME or another organization proposes a 
successor standard, the Commission will incorporate the revised 
standard if the Commission determines that it is in the public 
interest.
    On February 17, 2011, the Association of Pool and Spa Professionals 
(APSP) approved the ANSI/APSP/IAPMO-16 2011 standard, Suction Fittings 
for Use in Swimming Pools, Wading Pools, Spas, and Hot Tubs, to succeed 
ASME/ANSI A112.19.8-2007. ASME then withdrew ASME/ANSI A112.19.8 2007. 
On August 5, 2011, the Commission incorporated APSP-16 2011 into 16 CFR 
part 1450 as the successor drain cover standard, with an effective date 
of September 6, 2011. 76 FR 47436 (Aug. 5, 2011).
    On August 18, 2017, APSP published APSP-16 2017. On May 24, 2019, 
the Commission published a direct final rule in the Federal Register, 
incorporating portions of APSP-16 2017 into its mandatory drain cover 
standard, 16 CFR part 1450, with an effective date of November 24, 2020 
(84 FR 24021).
    On March 24, 2020, the Pool & Hot Tub Alliance (PHTA) \1\ requested 
a minimum 6-month extension of the effective date for APSP-16 2017, due 
to the COVID-19 health crisis, which, PHTA indicated, had led to 
closures of third party testing laboratories. On May 28, 2020, PHTA 
updated its request to a 60-day extension, noting that although 
laboratories remained open, COVID-19 disruptions to testing and SOFA 
manufacturing remain.
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    \1\ PHTA was created in January, 2019, from a unification of the 
National Swimming Pool Foundation[supreg] (NSPF) and the Association 
of Pool and Spa Professionals (APSP).
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B. APSP-16 2017

    APSP-16 2017 establishes materials, testing, use, installation, and 
marking requirements for new or replacement bather-accessible suction 
outlet fitting assemblies (SOFAs), other than maintenance drains, which 
are designed to be fully submerged in any pool. CPSC

[[Page 58264]]

incorporated changes from the 2011 to the 2017 version of the standard 
into its mandatory drain cover standard, 16 CFR part 1450. The changes 
include: A change in the hair test approach time; changes that require 
assessment and hair testing at all suction outlet pipes; the addition 
of an ``unblockable drain'' definition; and labeling requirements.

1. Hair Entrapment Testing

    APSP-16 2017 reduced the test time for hair to approach the suction 
outlet cover in the hair entrapment testing. The cumulative reduction 
in test time decreases the test burden in two separate iterative hair 
test procedures, without affecting test results. In another change, 
APSP-16 2017 expands the scope of the hair tests to include locations 
at all outlet pipes within SOFAs that can be reached by the test hair. 
This change ensures that any outlet in a SOFA, within reach of the 16-
inch test hair, will be tested. Multiple outlet SOFAs are typically 
installed in larger pools. For affected SOFAs, the change will tend to 
lower water flow ratings because the lowest flow among all the outlets 
tested becomes the flow rating.

2. New ``Unblockable SOFA'' Definition in APSP-16 2017

    The definition section of APSP-16 2017 includes a definition of 
``Unblockable SOFA'':

    A suction outlet fitting assembly that, when installed according 
to the manufacturer's instructions, cannot be shadowed by an 18 in. 
x 23 in. (457 mm x 584 mm) 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.

    The Commission incorporated this definition into its mandatory 
drain cover standard.

3. New Labelling Requirements in APSP-16 2017

    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 contains labeling requirements for 
Registered Design Professional (RDP) SOFAs. Section 9.3 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 found these requirements to be in the 
public interest, and thus, incorporated them into its mandatory drain 
cover standard.

C. Impacts of Delaying the Effective Date of the Rule

    PHTA requested that the Commission extend the effective date of the 
mandatory drain cover standard. This may delay the implementation of 
the changes that were made to APSP-16 2017 and incorporated into the 
mandatory drain cover standard. The multiple outlet testing has some 
direct benefit to public safety due to modestly lowered water flow 
ratings for those multiple outlet SOFA types. The other changes--hair 
entrapment test times, the new definitions and labelling--are in the 
public interest and may indirectly benefit public safety. However, the 
Commission does not believe extending the effective date would have a 
significant negative impact on safety. The Commission believes that up 
to a 6-month extension of the effective date is not expected to 
adversely affect public safety because:
    (1) Multiple outlet SOFAs are typically installed in large public 
pools, predominately located outdoors and open in the warmest months, 
and are less likely to be installed in public spas open during other 
seasons. Outdoor pools are likely to continue to transition towards 
full capacity for summer 2020, at a pace dependent upon developments 
with the COVID-19 crisis. Less exposure overall to outdoor pools will 
lessen the public's exposure to affected SOFA installations, which are 
those in new construction or replacements. Accordingly, the Commission 
does not expect a delay in the availability of SOFAs complying with 
APSP-16 2017 to adversely impact public safety;
    (2) According to the 2019 CPSC entrapment report,\2\ there have 
been six injuries (and no deaths) due to hair entrapment in the years 
2014 to 2018. The report includes incidents with all types of SOFAs in 
both public and residential pools. CPSC staff estimates that each year, 
all new SOFAs installed as replacements,\3\ or in new installations,\4\ 
together represent no more than 15 percent of all SOFAs in public 
pools. Multiple outlet SOFAs that are affected by the new multiple 
outlet testing requirements represent a fraction of this total; 
although CPSC staff does not have an estimate of the size of the 
affected multiple outlet market. Because few injuries and no deaths are 
reported over 5 years of data, a delay due to an extension is not 
expected to adversely impact any benefit that improved multiple outlet 
testing may have on public safety;
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    \2\ 2014-2018 Reported Circulation/Suction Entrapment Incidents 
Associated with Pools, Spas, and Whirlpool Bathtubs, 2019 Report.
    \3\ The typical service life for all SOFAs is 7 years, 
representing a 14 percent turnover of SOFAs each year.
    \4\ In 2014-2015, there were 243,499 existing and 2,432 new 
commercial pools (1% new). Source: APSP, P.K. Data, Inc.: U.S. 
Swimming Pool and Hot Tub Market 2015.
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    (3) An extension of the effective date prior to Memorial Day 2021 
will require firms to comply before the seasonal opening of most 
outdoor public pools in the United States.

D. The APA and Good Cause Finding

    The Commission is issuing this final rule without an additional 
opportunity for public comment. Under section 553(b)(3)(B) of the 
Administrative Procedure Act (APA), general notice and the opportunity 
for public comment are not required for a rulemaking when an ``agency 
for good cause finds (and incorporates the finding and a brief 
statement of reasons therefor in the rules issued) that notice and 
public procedure thereon are impracticable, unnecessary, or contrary to 
the public interest.'' \5\
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    \5\ 5 U.S.C. 553(b)(3)(B).
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    The COVID-19 pandemic has disrupted economic activity in the United 
States. Executive Order 13294 urges federal agencies to take actions to 
reduce regulatory burdens that arise as a result of the pandemic 
``consistent with applicable law and with protection of the public 
health and safety.'' Due to the COVID-19 pandemic, manufacturers may 
face difficulties in their ability to comply with the new requirements 
of the mandatory drain cover standard by the November 24, 2020, 
effective date set in the DFR. Therefore, the Commission is delaying 
the effective date of the drain cover standard until May 24, 2021. 
Delaying the effective date will not have an adverse impact on public 
health and safety; and as encouraged by E.O. 13924, the delayed 
effective date will help provide relief from disruptions exacerbated by 
the pandemic. Because of the relatively short time frame until the 
original November 24, 2020 effective date is scheduled to go into 
effect, and for the reasons discussed above, the Commission finds that 
there is good cause consistent with the public interest to issue the 
rule without advance notice and comment.\6\ As a result of this rule, 
the DFR published by the Commission

[[Page 58265]]

on May 24, 2019, which incorporated sections of APSP-16 2017 into the 
Commission's mandatory drain cover standard, will not be reflected in 
the Code of Federal Regulations until May 24, 2021.
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    \6\ 5 U.S.C. 553(b)(3)(B); 553(d)(3).
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    The APA generally requires a 30-day delayed effective date for 
final rules, except for: (1) Substantive rules which grant or recognize 
an exemption or relieve a restriction; (2) interpretative rules and 
statements of policy; or (3) as otherwise provided by the agency for 
good cause.\7\ The Commission believes that the public interest is best 
served by having this final rule become effective immediately upon 
publication in the Federal Register, instead of the usual 30-day 
delayed effective date normally required by the APA. Therefore, the 
Commission finds that there is good cause to delay the effective date 
of the previously approved change to 16 CFR part 1450 of the 
Commission's standard, for the reasons noted above.
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    \7\ 5 U.S.C. 553(d).
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E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires that 
agencies review proposed and final rules for their potential economic 
impact on small entities, including small businesses, and prepare 
regulatory flexibility analyses. 5 U.S.C. 603 and 604. The RFA applies 
to any rule that is subject to notice and comment procedures under 
section 553 of the APA. Id. As discussed, consistent with section 
553(b)(B) of the APA, the Commission has determined for good cause that 
general notice and opportunity for public comment is unnecessary. Thus, 
the RFA's requirements relating to initial and final regulatory 
flexibility analysis do not apply. However, the Commission has assessed 
how the COVID-19 pandemic may impact manufacturers of SOFA covers.

1. Disruptions in Business Operations

    The COVID-19 pandemic has severely impacted the business operations 
of many sectors of the U.S. economy. Businesses have curtailed 
operations in efforts to safeguard the health of their employees and 
customers; these actions include restrictions imposed by state and 
local governments. PHTA reported that SOFA manufacturers have also been 
impacted by disruptions caused by the pandemic, ranging from limited to 
substantial disruptions. While test labs remained open, some 
manufacturers reportedly experienced longer delays in completing 
testing since March. Furthermore, according to PHTA, product changes, 
such as molding, tooling, and labeling, are often necessary after the 
results of testing are reported. These tasks could be affected by 
restrictions, which vary by location.

2. Executive Order 13924

    On May 19, 2020, President Trump issued Executive Order (E.O.) 
13924, ``Regulatory Relief to Support Economic Recovery.'' 85 FR 31385. 
E.O. 13924 encourages Federal agencies to address the economic 
consequences of COVID-19 by: Rescinding, modifying, waiving, or 
providing exemptions from regulations and other requirements that may 
inhibit economic recovery, consistent with applicable law and with 
protection of the public health and safety, with national and homeland 
security, and with budgetary priorities and operational feasibility. 
They should also give businesses, especially small businesses, the 
confidence they need to reopen by providing guidance on what the law 
requires; by recognizing the efforts of businesses to comply with 
often-complex regulations in complicated and swiftly changing 
circumstances; and by committing to fairness in administrative 
enforcement and adjudication.

3. Manufacturers of SOFA Covers and Market Information

    The Commission has identified approximately 20 firms that currently 
manufacture products that would appear to be affected by the revised 
standard. Under size standards issued by the U.S. Small Business 
Administration, manufacturers of SOFAs with fewer than 750 employees 
(including their subsidiaries and affiliates) are considered to be 
small businesses.\8\ On this basis, nearly all of the manufacturers and 
importers of suction outlet fitting assemblies are believed to be small 
businesses. As noted, some manufacturers reportedly have had greater 
disruptions due to COVID-19 restrictions than others. We do not know 
the portion of SOFA manufacturers that have been more severely 
impacted.
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    \8\ U.S. Small Business Administration (2016). Table of Small 
Business Size Standards Matched to North American Industry 
Classification System Codes. Retrieved from: http://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.
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    VGBA-compliant drain cover sales are comprised of covers sold with 
new pools and replacement covers for previously installed pools. 
Current sales of SOFAs are unknown; however, statistics reported by 
APSP provide a rough indication of the number of units sold annually. 
APSP reports that 58,000 in-ground pools, 184,029 hot tubs, and 2,432 
commercial pools were sold or installed in 2014.\9\ These new 
installations likely introduced at least 225,000 SOFAs requiring VGBA-
compliant drain covers. The installed base of in-ground pools, hot 
tubs, and commercial pools totaled more than 11 million in 2014, 
according to statistics reported by APSP. Manufacturers of plastic 
drain covers typically recommend that they be replaced in 5 to 7 years 
(and this is stated on the covers). If such recommendations are 
followed, the market for replacement VGBA-compliant covers could exceed 
1.5 million units annually.
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    \9\ The Association of Pool and Spa Professionals (APSP)(2015). 
U.S. swimming pool and hot tub market 2014.
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4. Six-Month Delay in Effective Date

    As discussed in Section C and D of this preamble, the Commission 
believes that an extension of the effective date, up to 6 months, will 
not have a significant adverse effect on public safety. Therefore, the 
Commission is providing relief to SOFA manufacturers as a result of the 
COVID-19 crisis, by extending the effective date of the drain cover 
standard. The Commission has considered the two separate requests 
submitted by PHTA. The 60-day extension is the minimum request made by 
PHTA, based on their most current estimates of potential impact on the 
pool and spa SOFA manufacturers. The 6-month extension is the maximum 
request made by PHTA, based on their early, although erroneous, 
understanding of test laboratory closures.
    Due to the uncertainties surrounding the COVID-19 pandemic, and the 
likely minimal impact that an extension of the effective date might 
have on public safety, and the direction in E.O. 13294 to address the 
economic consequences of COVID-19, the Commission is delaying the 
effective date of the mandatory drain cover standard in 16 CFR part 
1450 by 6 months, to May 24, 2021.

F. Paperwork Reduction Act

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

G. 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 where they ``have 
little or no potential for

[[Page 58266]]

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.

H. Preemption

    Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that where a 
consumer product safety standard 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 CPSC for an exemption from this 
preemption under 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, the rule will invoke the preemptive effect of section 
26(a) of the CPSA when it becomes effective.

I. The Congressional Review Act

    The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that, 
before a rule may take effect, the agency issuing the rule must submit 
the rule, and certain related information, to each House of Congress 
and the Comptroller General. 5 U.S.C. 801(a)(1). The submission must 
indicate whether the rule is a ``major rule.'' The CRA states that the 
Office of Information and Regulatory Affairs (OIRA) determines whether 
a rule qualifies as a ``major rule.'' Pursuant to the CRA, this rule 
does not qualify as a ``major rule,'' as defined in 5 U.S.C. 804(2). To 
comply with the CRA, the Office of the General Counsel will submit the 
required information to each House of Congress and the Comptroller 
General.

Alberta E. Mills,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2020-18496 Filed 9-17-20; 8:45 am]
BILLING CODE 6355-01-P