Virginia Graeme Baker Pool and Spa Safety Act Drain Cover Standard
| Published date | 18 September 2020 |
| Citation | 85 FR 58263 |
| Record Number | 2020-18496 |
| Section | Rules and Regulations |
| Court | Consumer Product Safety Commission |
Federal Register, Volume 85 Issue 182 (Friday, September 18, 2020)
[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
