[Federal Register Volume 77, Number 101 (Thursday, May 24, 2012)]
[Rules and Regulations]
[Pages 30886-30887]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12335]


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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 rule; revocation; extension of compliance date.

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SUMMARY: On October 11, 2011, the Consumer Product Safety Commission 
(``Commission'' or ``CPSC'') announced that it was revoking its 
interpretation of the term ``unblockable drain,'' as used in the 
Virginia Graeme Baker Pool and Spa Safety Act, 15 U.S.C. 8001 et seq. 
(``VGBA''). The Commission set a compliance date of May 28, 2012, for 
those who installed VGBA-compliant drain covers on or before October 
11, 2011, in reliance on the Commission's initial interpretation. The 
Commission sought written comments regarding the ability of those who 
had installed VGBA-compliant unblockable drain covers on or before 
October 11, 2011, in reliance on the Commission's initial 
interpretation, to come into compliance with the revocation by May 28, 
2012. The Commission is extending the compliance date to May 23, 2013, 
for those who have installed VGBA-compliant unblockable drain covers on 
or before October 11, 2011, in reliance on the Commission's original 
interpretive rule.\1\
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    \1\ Commissioners Adler, Nord, and Northup voted to extend the 
compliance date to May 23, 2013. Chairman Tenenbaum voted against 
extending the compliance date to May 23, 2013.

DATES: This document does not alter the current requirement that public 
pools and spas be in compliance with the VGBA, which became effective 
on December 19, 2008. The compliance date for those who installed VGBA-
compliant unblockable drain covers on or before October 11, 2011, in 
reliance on the Commission's April 27, 2010 interpretation of 
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unblockable drains is extended to May 23, 2013.

FOR FURTHER INFORMATION CONTACT: Perry Sharpless, Directorate for 
Laboratory Sciences, Consumer Product Safety Commission, 5 Research 
Place, Rockville, MD 20850; telephone (301) 987-2288, or email: 
psharpless@cpsc.gov.

SUPPLEMENTARY INFORMATION:

A. Background

    In September 2011, the U.S. Consumer Product Safety Commission 
voted to publish in the Federal Register a final rule regarding the 
revocation of the prior definition of ``unblockable drain.'' (76 FR 
62605). The Federal Register notice invited comments regarding the 
ability of those who had installed VGBA-compliant unblockable drain 
covers, as described at 16 CFR 1450.2(b), to come into compliance with 
the revocation by May 28, 2012.

 B. Comments

    The majority of comments the Commission received were unrelated to 
the ability of the respondents to comply with the May 28, 2012 
effective date. The comments that did address the May 28, 2012 
compliance date fell into four basic categories. These comments were 
addressed in the staff's briefing memorandum, ``Summary of public

[[Page 30887]]

comments received regarding revocation of the definition of unblockable 
drain covers,'' dated March 30, 2012. Commission staff's summary and 
response to these comments follow:
    1. Cost of compliance (142 comments) and dire financial 
circumstances (131 comments).
    Comment: Members of the American Hotel & Lodging Association, the 
Illinois Department of Health, and others assert that the cost of 
retrofitting pools again would put an undue burden on them and cite to 
the impact of the poor economy on their operating revenues and the loss 
of revenue that will be incurred while the pools are closed for the 
modifications that will be required to bring them into compliance. 
Commenters in this category also mention the respondents' ``dire 
financial circumstances'' as a reason against the revocation of the 
Commission's April 27, 2010 definition of ``unblockable drain.''
    Response: Commission staff agrees that there may be financial 
hardship, but only to those who relied upon the Commission's 
interpretive rule and installed an unblockable drain cover in lieu of 
installing a secondary system. Thus, Commission staff believes it seems 
reasonable to provide firms that relied on the Commission's prior 
interpretation the time to budget and plan for the expenditure needed 
to install a secondary system.
    2. Apply prospectively (4 comments).
    Comment: Commenters in this category cited the lack of injuries as 
a reason to apply the revocation only to facilities that are newly 
constructed or renovated in the future.
    Response: Commission staff does not agree with prospective 
application to new construction or renovation. The law has required 
pools to be compliant with the VGBA for almost four years. Only firms 
that relied on the unblockable drain interpretive rule of April 27, 
2010, and installed VGBA-compliant unblockable drain covers on or 
before October 11, 2011, are affected by the revocation decision. Thus, 
prospective application is overly broad, and applying it to firms that 
did not install VGBA-compliant unblockable drain covers on or before 
October 11, 2011, would not follow the statutorily mandated effective 
date, would create confusion, and would unduly complicate enforcement.
    3. Comments Requesting Delay of Enforcement (2 comments).
    Comment: Two commenters requested that the Commission delay the 
implementation of enforcement. One requested that the CPSC delay 
implementation of the enforcement of the change for one year because 
they had relied upon the original interpretation and installed 
unblockable drain covers and now would have to go back and ``re-do'' 
their work, which they said would penalize them unfairly for their 
compliance with the prior interpretation. The commenter also noted that 
the unblockable drain covers were far more expensive than typical 
smaller fittings, and asserted that they represented a major investment 
on the basis that, once the covers were installed, additional equipment 
would not be required. The other commenter requested that the 
Commission delay the implementation date to January 1, 2013, or prior 
to 2013 operation dates for seasonal pools and spas. The commenter also 
stated that regulated pools and spas that had already invested to 
comply with the requirements of the VGBA would be required to add 
secondary anti-entrapment systems or make other modifications at 
considerable expense, in addition to expenditures necessary to comply 
with state law and U.S. Department of Justice pool and spa 
accessibility requirements.
    Response: Commission staff agrees that those who relied upon the 
Commission's interpretive rule and installed an unblockable drain cover 
in lieu of installing a secondary system will now face additional 
expenditures to bring their pools into compliance with the VGBA. Thus, 
Commission staff believes that it seems reasonable to provide those who 
installed VGBA-compliant unblockable drain covers on or before October 
11, 2011, time to budget and plan for the expenditure needed to install 
a secondary system.
    4. Compliance Date Is Acceptable (1 comment).
    Comment: One comment was received in support of the May 28, 2012, 
compliance date. The commenter, the National Multi Housing Council/
National Apartment Association (NMHC/NAA), expressed the belief that if 
the Commission offered additional guidance to the regulated community 
to assist with compliance, the majority of their members could comply 
by the deadline; but NMHC/NAA urged the CPSC to reevaluate the progress 
being made by pool owners and adjust the deadline, if necessary.
    Response: CPSC staff has a concern about the number of requests 
that may be received for assistance with compliance and whether the 
pool operator is seeking a plan review and not just limited advice 
about how to handle the revocation decision. The only circumstance in 
which staff believes there could be any need for compliance assistance 
due to the revocation of the unblockable drain interpretive rule is 
with respect to pool operators who relied on the Commission's April 27, 
2010 decision and installed VGBA-compliant unblockable drain covers on 
or before October 11, 2011. The guidance to those firms is that your 
unblockable drain cover is VGBA-compliant and does not need to be 
removed; but pool operators need to install a secondary anti-entrapment 
system to come into compliance, unless the pool uses a gravity drain 
system or the underlying drain is unblockable. Accordingly, if a pool 
operator installed an unblockable drain cover over a drain that is 
blockable, staff believes it is reasonable to allow them time to budget 
and plan for the expenditure required to install a secondary anti-
entrapment system.

C. Commission Determination

    Upon being presented with the staff briefing package, the 
Commission voted to extend the compliance date to May 23, 2013. Only 
firms that relied on the unblockable drain interpretive rule of April 
27, 2010, and installed VGBA-compliant unblockable drain covers on or 
before October 11, 2011, will have until May 23, 2013, to install a 
secondary system, as necessary. Firms that did not rely on the 
unblockable drain interpretive rule of April 27, 2010, and did not 
install VGBA-compliant unblockable drain covers on or before October 
11, 2011, should be compliant with the VGBA, and will not have 
additional time to come into compliance if they are not.

    Dated: May 17, 2012.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2012-12335 Filed 5-23-12; 8:45 a.m.]
BILLING CODE 6355-01-P