Products Liability Law Daily CPSC delays effective date of pool/spa drain cover standard due to COVID-19 pandemic
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Friday, September 18, 2020

CPSC delays effective date of pool/spa drain cover standard due to COVID-19 pandemic

By Susan Engstrom

The new effective date is May 24, 2021.

To help provide relief to manufacturers experiencing disruptions caused by the current health crisis, the Consumer Product Safety Commission (CPSC) has delayed for six months the effective date of a direct final rule incorporating sections of the Association of Pool and Spa Professionals (APSP) standard APSP–16 2017, Suction Fittings for Use in Swimming Pools, Wading Pools, Spas, and Hot Tubs, into the Virginia Graeme Baker Pool and Spa Act (VGBA, or Act). The direct final rule, originally slated to become effective on November 24, 2020 [see Products Liability Law Daily’s May 29, 2019 analysis], will take effect instead on May 24, 2021 (CPSC Final Rule; Delay of Effective Date85 FR 58263, September 18, 2020).

The VGBA (15 U.S.C. 8001 et seq.), which took effect on December 19, 2008, purports to prevent drain entrapment and child drowning in swimming pools and spas. In part, the Act requires that drain covers 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 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 CPSC determines that the successor standard is in the public interest, the agency must incorporate the revision into the mandatory drain cover standard.

On August 5, 2011, CPSC recognized the APSP standard, APSP–16 2011, as the successor standard to ASME/ANSI A112.19.8. CPSC incorporated by reference APSP–16 2011 into 16 CFR part 1450 (76 FR 47436). ASME/ANSI A112.19.8 and its successor standard, APSP–16 2011, contain requirements that address hair entrapment, body entrapment, and, in a limited way, limb entrapment. On March 27, 2018, APSP notified CPSC 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).

Successor standard. APSP–16 2017 establishes materials, testing, use, installation, and marketing requirements for new or replacement bather-accessible suction outlet fitting assemblies (SOFA), other than maintenance drains, that are designed to be fully submerged for use in any pool. The successor standard also contains changes to physical testing requirements; new definitions; new labeling requirements for the drain cover; and new requirements that apply to the installation of the drain cover, to pools, to the operation of pools, and to pool owners. On May 24, 2019, CPSC published a direct final rule incorporating portions of APSP-16- 2017 into its mandatory drain cover standard, with an effective date of November 24, 2020.

Delay of effective date. The Pool & Hot Tub Alliance (PHTA) requested a minimum six-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. PHTA later updated its request to a 60-day extension, noting that although laboratories remained open, COVID-19 disruptions to testing and SOFA manufacturing remained.

CPSC 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. On this basis, nearly all of the manufacturers and importers of suction outlet fitting assemblies are believed to be small businesses. Some manufacturers reportedly have had greater disruptions due to COVID-19 restrictions than others. CPSC does not know the portion of SOFA manufacturers that have been more severely impacted.

To provide relief to SOFA manufacturers that may face difficulties in their ability to comply with the new requirements of the mandatory drain cover standard by November 24, 2020, CPSC is delaying the effective date of the standard until May 24, 2021. According to CPSC, this extension will not have an adverse impact on public health and 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; (2) a 2019 CPSC report cited only six injuries and no deaths due to hair entrapment over a five-year period; and (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.

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