27 April 2010
[Federal Register: April 27, 2010 (Volume 75, Number 80)]
[Rules and Regulations]
[Page 21985-21987]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27ap10-5]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1450
Virginia Graeme Baker Pool and Spa Safety Act; Interpretation of
Unblockable Drain
AGENCY: Consumer Product Safety Commission.
ACTION: Final interpretive rule.
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SUMMARY: The Consumer Product Safety Commission (``Commission,''
``CPSC'' or ``we'') is issuing its interpretation of the term
``unblockable drain'' as used in the Virginia Graeme Baker Pool and Spa
Safety Act (``VGB Act'').
DATES: This rule is effective April 27, 2010. The incorporation by
reference of the publication listed in this rule is approved by the
Director of the Federal Register as of April 27, 2010.
FOR FURTHER INFORMATION CONTACT: Troy Whitfield, Lead Compliance
Officer, Office of Compliance, Consumer Product Safety Commission, 4330
East West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-
7548 or e-mail twhitfield@cpsc.gov.
SUPPLEMENTARY INFORMATION:
A. Background
The Virginia Graeme Baker Pool and Spa Safety Act, Public Law 110-
140, Title XIV (``the VGB Act'') was signed into law on December 19,
2007 and became effective on December 19, 2008. The VGB Act's purpose
is to prevent drain entrapment and child drowning in swimming pools and
spas.
Section 1404(c)(1)(A)(i) of the VGB Act requires that each public
pool and spa in the United States be equipped with drain covers that
comply with the ASME/ANSI A112.19.8 performance standard or any
successor standard. (The ASME/ANSI A112.19.8-2007 standard includes
addenda which ASME codes and standards identify as A112.19.8a [for
corrections to the UV light testing procedure] and 8b [for outlet
covers used on self-contained spas]. The addenda are part of the 2007
version of the standard and only include pages with changed or revised
items. For simplicity, any reference to ASME/ANSI A112.19.8-2007 in
this preamble is intended to incorporate the associated addenda.)
Section 1404(c)(1)(A)(ii) of the VGB Act requires that each public pool
and spa in the United States with a single main drain other than an
unblockable drain be equipped, at a minimum, with one or more of the
following:
Safety vacuum release system;
Suction-limiting vent system;
Gravity drainage system;
Automatic pump shut-off system;
Drain disablement; and/or
Any other system determined by the Commission to be
equally effective as, or better than, the enumerated systems at
preventing or eliminating the risk of injury or death associated with
pool drainage systems.
For purposes of this preamble, we will refer to these systems
collectively as ``secondary anti-entrapment systems.'' Thus, under the
VGB Act, public pools or spas with single main drains other than
unblockable drains must be equipped with a secondary anti-entrapment
system. Section 1403(7) of the VGB Act defines an ``unblockable drain''
as ``a drain of any size and shape that a human body cannot
sufficiently block to create a suction entrapment hazard.''
In July 2009, CPSC staff issued draft technical guidance concerning
an unblockable drain on the CPSC Web site (at http://
www.poolsafety.gov/unblockable.pdf) and invited comment on this
guidance. The draft technical guidance included specifications for a
drain cover such that, when the drain cover is attached to a drain, the
now-covered drain constitutes an ``unblockable drain.'' As an
unblockable drain, this drain would not require a secondary anti-
entrapment system.
On October 21, 2009, the Commission issued a notice in the Federal
Register (74 FR 54301) announcing that it would be conducting a public
hearing to receive views from all interested parties about the draft
guidance regarding unblockable drains. The Commission invited public
participation at this
[[Page 21986]]
hearing. On November 4, 2009, the Commission conducted a public hearing
on the staff's draft technical guidance and heard presentations from
nine individuals.
Following the hearing, CPSC staff revised its interpretation of an
unblockable drain and presented it to the Commission for consideration.
On March 1, 2010, the Commission voted to instruct the staff to prepare
a proposed interpretive rule regarding unblockable drains, consistent
with the staff's interpretation.\1\
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\1\ Commissioner Robert Adler, Commissioner Nancy Nord, and
Commissioner Anne Northup voted to direct the staff to draft a
proposed interpretive rule on unblockable drain covers, consistent
with the definition in the staff memorandum dated February 3, 2010.
Chairman Inez Tenenbaum and Commissioner Thomas Moore voted against
directing the staff to draft a proposed interpretive rule on
unblockable drain covers. Chairman Inez Tenenbaum, Commissioner
Robert Adler, Commissioner Thomas Moore, and Commissioner Anne
Northup each issued a statement, a copy of which is available from
the Commission's Office of the Secretary or from the Commission's
Web site, http://www.cpsc.gov. On March 22, 2010, Commissioner
Robert Adler, Commissioner Nancy Nord, and Commissioner Anne Northup
voted to direct the staff to issue a final interpretive rule on
unblockable drains. A new ballot vote was prepared for voting on a
final interpretive rule on unblockable drains. Commissioner Adler,
Commissioner Nord, and Commissioner Northup voted to approve the
final interpretive rule. Chariman Tenenbaum and Commissioner Moore
voted not to approve the final interpretive rule. Commissioner Adler
issued a statement with his vote, a copy of which is available from
the Commission's Office of the Secretary or from the Commission's
Web site, http://www.cpsc.gov.
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B. Response to Comments and Interpretation
CPSC staff based the ``July 2009 Staff Draft Technical Guidance on
Unblockable Drains'' on the requirements for drain covers found in
ASME/ANSI A112.19.8: ``Based on the dimensions of the blocking element
found in the standard, an outlet cover with measurements in excess of
18'' x 23'' (or a diagonal measurement greater than 29'') would provide
a means to render the outlet `unblockable' and subsequently, the sumps
below (drains) would be inaccessible and unblockable providing the
outlet cover remains in place. The implication is that if the outlet
cover cannot be `shadowed' by the solid blocking element the remaining
open area of the cover will allow sufficient water flow to prevent the
creation of entrapping forces. In reaching the definition for an
unblockable drain, the characterization of a suction fitting is taken
from the standard to include the sump and cover as a unit, along with
all of the following: (1) The blocking element dimension and the
diagonal measure to define a minimum size requirement; (2) The need for
the remaining open flow area of the cover, once shadowed, to provide
sufficient flow to prevent entrapment; and (3) The general requirements
(of the standard) for fasteners and fastening integrity (i.e., the
cover must stay in place).''
We received several comments as a result of the November 4, 2009
hearing and our interpretation of unblockable drains. We describe and
respond to the comments in part B of this document.
1. Diagonal Measurement: Several comments stated that the
interpretation of an unblockable drain should not include a 29-inch
diagonal requirement as it was an over-simplification of the standard
and not found in the ASME/ANSI A112.19.8 standard.
Response: The Commission agrees with these comments and has removed
the 29-inch diagonal reference.
2. 18'' x 23'' Dimension: Several commenters questioned the use of
the 18'' x 23'' measurement. Some believed it was too small, while
others claimed it was unnecessarily restrictive. Some commenters also
indicated that the definition should make clear that the 18'' x 23''
measurement is intended to represent a blocked portion of the cover for
consideration of the remaining open flow area, not simply the
dimensions of the cover.
Response: The 18'' x 23'' dimension represents the dimensions of a
99th percentile male and mirrors the measurement used in the ASME/ANSI
A112.19.8 standard referenced in the VGB Act. The Commission continues
to believe this dimension is appropriate. The Commission agrees that
the 18'' x 23'' dimension is intended to reference the remaining open
flow area, once shadowed, and has revised its definition to make this
clear.
3. Blocking Element. One commenter stated that the blocking element
was not representative of ``human skin'' and therefore did not fully
represent a body's ability to adhere to or seal around an outlet cover.
Response: The Commission agrees that the blocking element does not
replicate the properties of human skin. However, the Commission is
relying on the industry standard that is referenced in the VGB Act to
further its interpretation of unblockable drain, and is thus using the
same blocking element dimensions that are referenced in ASME/ANSI
A112.19.8. Whether a flexible membrane or a more rigid material is
used, it is the remaining open area of the cover when shadowed by the
blocking element that is the important factor for consideration.
4. Layers of Protection: There were several comments regarding the
VGB Act's intent to use a ``layers of protection'' approach to address
entrapment.
Response: The ``layers of protection'' are applicable to incidents
involving children having unfettered access to swimming pools in
residential locations. In these cases, barriers and warnings, such as,
doors, door alarms, motion detectors, pool covers, fencing with self-
closing, self-latching gates, etc., can all be used to delay and/or
prevent access to the hazard. However, for entrapment incidents, the
approach to prevention is different. There are five different types of
entrapment: Body, limb, evisceration, hair, and mechanical-related. The
mechanisms of entrapment can be slightly different with each. The
common element in all five entrapment scenarios is the necessity of an
outlet cover as a layer of protection. All five entrapment issues are
addressed by the appropriate flow rating and size of the cover when the
cover remains in place. Currently, the ``back-up'' systems mentioned as
secondary requirements in the VGB Act address some, but not all,
potential hazard patterns. The ``back-up'' systems primarily address
suction body entrapment and may address some limb entrapments. However,
these back-up systems do not address the hair and mechanical
entrapments, or the evisceration injuries associated with entrapments.
Moreover, the back-up devices require the incident to occur before they
respond and, depending on the type of entrapment and the circulation
system present, the response may not prevent the entrapment or the
injury.
Based on consideration of these comments, the Commission is
creating a new Sec. 1450.2(b) to interpret ``unblockable drain'' as
follows:
A suction outlet defined as all components, including the sump
and/or body, cover/grate, and hardware such that its perforated
(open) area cannot be shadowed by the area of the 18'' x 23'' Body
Blocking Element of ASME/ANSI A112.19.8-2007 and that the rated flow
through the remaining open area (beyond the shadowed portion) cannot
create a suction force in excess of the removal force values in
Table 1 of that Standard. All suction outlet covers, manufactured or
field-fabricated, shall be certified as meeting the applicable
requirements of the ASME/ANSI A112.19.8 standard.
C. Codification
The Commission is currently engaged in a separate interpretation of
another term, ``public accommodations facility,'' in the VGB Act. If
finalized, this
[[Page 21987]]
interpretation would be codified as a part of CFR part 1450, where
Sec. 1450.1 would describe the scope of part 1450 and Sec. 1450.2(a)
would contain the definition of ``public accommodations facility.''
Thus, this rule adds the new CFR part 1450, defines ``unblockable
drain'' at 1450.2(b) and indicates that 1450.1 and 1450.2(a) are
reserved.
D. Effective Date
Section 1405 of the VGB Act directs the Commission to establish a
grant program to provide assistance to eligible States for specific
uses related to pool and spa safety. The Commission has entered into an
interagency agreement with the Centers for Disease Control and
Prevention (CDC)/National Center for Injury Control and Prevention
(NCIPC) to administer the grant program. CDC will be publishing the
Funding Opportunity Announcement related to the grant program in early
April. Because potential State applicants need a definitive
understanding of the law in order to qualify for grant monies, and
because CDC intends to publish the Funding Opportunity Announcement in
April, this final rule resulting is effective upon publication. The
rule does not impose obligations on regulated parties beyond those
imposed by the VGB Act. In addition, as mentioned in the DATES section
of this preamble, the Commission has already received and considered
comments and/or presentations with regard to this issue on two separate
occasions: (1) In response to the ``July 2009 Staff Draft Technical
Guidance on Unblockable Drains'' and (2) during the November 4, 2009
Commission public hearing. Therefore, there is no need to provide a
delayed effective date in order to allow for regulated parties to
prepare for the rule.
List of Subjects in 16 CFR Part 1450
Consumer protection, Incorporation by reference, Infants and
children, Law enforcement.
0
For the reasons stated above, the Commission adds part 1450 to
subchapter B of title 16 of the Code of Federal Regulations to read as
follows:
PART 1450--VIRGINIA GRAEME BAKER POOL AND SPA SAFETY ACT
REGULATIONS
Sec.
1450.1 [Reserved]
1450.2 Definitions.
Authority: 15 U.S.C. 2051-2089, 86 Stat. 1207; 15 U.S.C. 8001-
8008, 121 Stat. 1794.
Sec. 1450.1 [Reserved]
Sec. 1450.2 Definitions.
(a) [Reserved]
(b) Unblockable drain includes a suction outlet defined as all
components, including the sump and/or body, cover/grate, and hardware
such that its perforated (open) area cannot be shadowed by the area of
the 18'' x 23'' Body Blocking Element of ASME/ANSI A112.19.8-2007 and
that the rated flow through the remaining open area (beyond the
shadowed portion) cannot create a suction force in excess of the
removal force values in Table 1 of that Standard. All suction outlet
covers, manufactured or field-fabricated, shall be certified as meeting
the applicable requirements of the ASME/ANSI A112.19.8 standard. You
must proceed in accordance with ASME/ANSI A112.19.8-2007 (issued March
30, 2007), including Addenda A112.19.8a-2008 (August 11, 2008) and
A112.19.8b-2009 (approved October 22, 2009), Suction Fittings for Use
in Swimming Pools, Wading Pools, Spas, and Hot Tubs. ASME/ANSI
A112.19.8-2007, including Addenda A112.19.8a-2008 and A112.19.8b-2009
are incorporated by reference. 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 American Society
of Mechanical Engineers (ASME), ATTN: Secretary, A112 Standards
Committee, Three Park Avenue, New York, New York 10016-5990;
www.asme.org, telephone 800-843-2763. You may inspect a copy at the
Office of the Secretary, U.S. Consumer Product Safety Commission, Room
502, 4330 East West Highway, Bethesda, MD 20814, telephone 301-504-
7923, or the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, call 202-741-
6030 or go to: http://www.archives.gov/federal_register/code_of_
federal_regulations/ibr_locations.html.
Dated: April 6, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2010-8160 Filed 4-26-10; 8:45 am]
BILLING CODE 6355-01-P
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