CPSC Flushes Safety Down The Pool Drain

In a remarkable reversal, a 3-2 majority of the Consumer Product Safety Commission voted today to reinterpret the phrase “unblockable drain” under the Virginia Graeme Baker Pool and Spa Safety Act (VGB Act) to no longer permit the use of unblockable drain covers to protect against entrapment in public pools using single drain systems. As a result, cash strapped schools, municipalities, community pool organizations and others will be required to install an expensive and less protective back-up system.

The Commission’s original interpretation was based on the recommendation by its career technical experts that a $40 unblockable drain cover provides better protection against entrapment and drowning than does a $1000 – the least expensive and therefore most popular – back-up device, a safety vacuum release system (SVRS). According to Commission staff, unblockable drain covers prevent an entrapment before it happens, whereas an SVRS kicks in 4 seconds after a drain is blocked. As a result, a child playing in a pool without an unblockable drain cover can be eviscerated, or inextricably trapped by hair or a limb and drown before the SVRS turns off the pump. Even the SVRS manufacturer acknowledges this limitation in its product.

Commission staff has not changed its position that unblockable drain covers are safer than an SVRS, and did not recommend any change to the Commission’s interpretation. Since the Commission’s original interpretation, there have been no entrapment incidents that raise any concerns about the effectiveness of unblockable drain covers. In addition, despite receiving extensive public comment on the question before issuing its original interpretation, the Commission majority refused to hold any public hearing or solicit any public input on its reinterpretation.

The sole reason for the Commission’s decision is that a single Commissioner – Bob Adler – has changed his “legal interpretation” of the VGB Act. He claims to have done so based on two meetings with Debbie Wasserman Schultz, who sponsored the legislation. But the legislation was co-written by Vac-Alert Industries President Paul Pennington, whose company manufacturers an SVRS and will profit richly from the new mandate to use a back-up system.

Vac-Alert hits the jackpot, but what of the losses suffered by the public? For those pools that can afford it, thousands of dollars in unnecessary equipment will be purchased at taxpayer expense. But for those localities that don’t have the resources, pools will be opened late or closed permanently, potentially adding to nationwide drowning statistics by reducing the availability of swimming lessons. Finally, families will again be exposed to the risk of drain entrapment drowning and evisceration, which in the cruelest of ironies, was the cause of death of Virginia Graeme Baker, after whom the VGB Act was named.

Drain on the Economy

On September 28th, the CPSC is scheduled to revoke its previous interpretation of “unblockable drain” under the Virginia Graeme Baker Pool and Spa Safety Act (VGB), resulting in costly new requirements for community pools and spas throughout the country. Earlier this week I shared with you just a few of the letters I have received from businesses and stakeholders who will negatively be affected by this change---all with no safety benefit to consumers. To date, we continue to receive more letters and more information regarding the revocation. I remain hopeful that the Majority will listen to these comments and allow facts and reason to guide their decision.

Recently, Pool & Spa News published an article entitled "New Drain Ruling May be Imposed" which provides the industry’s perspective on the issue. Dick Nichols, president of Genie Pool and Spa Service in San Jose, Calif, said in an interview that he doesn't "know what it is they're trying to accomplish, but this whole thing has been the most ludicrous waste of people's money I think i've ever seen in my 35 years in the business." Well Mr. Nichols, I couldn't agree more.

Spreading The Word

Here are two unsolicited letters we received opposing the recovation of our previous interpretive rule on pool and spa drains. These letters make it clear that the CPSC would have received relevant information on this issue if we simply had placed the revocation up for public comment.

In particular, the unblockable drain cover manufacturer and the CPS both talk about new products that ensure the drain cannot be removed through the use of more and stronger fasteners and sturdier materials. To illustrate this point further, the removability of the covers was a principal argument put forth by consumer groups and repeated by one Commissioner in opposition to the original interpretation.

Had we put the issue up for public comment, we would have learned some of the valuable information provided by Ms. Snow, as well as NSPF’s important points, in time to take them into account.

NSPF Recommendation to CPSC - Revocation of Unblockable Pool Drains

Bonnie Snow Letter to CPSC

Troy,

You know that we designed the BeeSafe System to be the best, safest solution for all of the entrapment hazards in swimming pools. We even attempt to eliminate the problem of covers coming off by using lock tite on the stainless steel screws to eliminate vibration loosening the screws of the lid. The CPSC panel only saw our product and while not unanimous their vote favored allowing our product as a stand alone solution. If the issue now is the possibility of the cover coming off then I have a better solution than adding a back-up. This would be to use the Mr. Sticky Industrial Adhesive (the adhesive that makes our product a permanent installation for the body of the product) on the lid as well in the final step of our installation. I can send specifications for the product to justify this making our product free from the hazard of broken or missing covers in that it is designed for repair of submarines, used as a permanent strong bond on pvc, and that it has a long lifetime. We can get the adhesive to every customer who has purchased our product and have them secure the lid permanently before the time required in your new interpretation of unblockable. What we want and what is appropriate is to classify our BeeSafe Systems as equal to or better than the alternative solutions. What would it take and to whom do I need to contact to have our product considered as equal to or better than dual drains? The separation across our product is equal or better than the separation of dual drains. Dual drains could be blocked by two children attempting to race to see who can cover each of the drains, but BeeSafe cannot be blocked even if several children sit on it together. The tubes have the unique feature of emptying when covered and suction is broken faster than the detection of a back-up device. With this feature, our products are equal to or better than the back-up systems as well.

We have had several sales to customers who were very dissatisfied with a breaker system. One that took theirs out and replaced with the BeeSafe System told me that the breaker had to be turned off daily for maintenance, false triggered many times during the night which resulted in no chemical mixing, and then in the fall when the drain was completely clogged with leaves, the system failed to turn off the flow. It seems prudent to consider that entrapment isn't the only issue that CPSC should consider. If dependence on a breaker can and often does false trigger and leave a pool without adequate chemical mixing then other water borne disease will increase. It might be worthwhile to do some monitoring in some of the health districts to collect data on the number of bad samples taken with specific information on the type of VGB compliant product used. When I was working for the Utah County Health Department this was the reasoning for not wanting back up systems on the pools. Once they became popular we saw a dramatic increase in pool samples that had too high a bacterial count and detection of e-coli.

Our main reason for getting into this was to save lives. Our company is barely surviving but we had hopes of possibly breaking even or making a small profit with our second model that is now in testing. It is being molded by Custom Molded Products. They are also willing to help us with sales to the distributors. CMP is now concerned that there is no market for a product that costs more than a few dollars to produce. The customers who have been seeking an unblockable drain are those who have pools that cannot easily be remodeled with dual drains and that recognize the downfall of the secondary back-up systems. BeeSafe is more expensive, but a safer alternative and we lose our niche in the market if a back up is required.

Most of our sales have been to community pools, especially in Illinois, where they have no sump, or have aluminum lined pools, and also large pools that need the high flow rate that none of the smaller products have been able to reach. Many chose our system because they could not afford the expensive remodel that would be required for drain line as well as the additional modification of the drain for a dual system. The community pools are where most children learn to swim and with the problems of increased water borne diseases with the secondary devices we may lose many of these facilities. Some of the districts have based their decision on what unblockable product to use simply on the cost. Requiring them now to add a less than adequate back-up system will result in many of these facilities shutting down their pools. Please help us to get our information out to the right people and let us know the procedure for getting our product classified as "Equal to or Better Than" so we can continue to produce the best solution available in the pool industry. If necessary we would come with our products to demonstrate that our products should be classified this way as they are much more than just unblockable.

Bonnie
Bonnie Snow, Owner/CEOBeeSafe Systems

Red Tape Regulations

Every day I see newspapers and television programs focusing on the horrible impact that regulations are having on our economy and our ability to produce well paying jobs in this country. At the CPSC, I continue to hear from businesses and individuals that are simply too frustrated or too small to comply with many of the burdens that our government is continuing to place on them. As a government and as an agency we are continuing to create red tape regulation that is simply killing our ability to compete with the rest of the world. Furthermore, we are failing to abide by the very rules and laws that we set forth when determining how to regulate.

A recent example of this is the Commission’s decision to change its interpretation of the Virginia Graeme Baker Pool and Spa Safety Act requirement that public pools have either an “unblockable drain” or a costly back-up system, to no longer permit unblockable drain covers to satisfy the requirement. As many of you know, this change, coming just 17 months after the announcement of the original interpretation, will require cash strapped states, municipalities, and community pools associations that, in reliance on the rule, incurred the expense of installing unblockable drain covers, to now start over with the installation of costly back-up systems. But perhaps more troubling than the result, is the fact that the Commission is apparently going forward with the change without seeking any input from the regulated community concerning the wisdom or cost of the reinterpretation. Indeed, the majority expressly rejected a Commissioner’s request that compliance officers in the fifty states at least be informed about the decision ahead of time to obtain their input.

This is particularly disturbing given the fact that all of the evidence currently before the Commission, including that there has not been a single drain entrapment death in three years, supports the conclusion that the existing rule effectively ensures public safety. Imposing additional costly burdens notwithstanding this fact would appear to be a definitional case of “unnecessarily” burdensome regulation. Notably, the original approach was adopted following the solicitation and consideration of public comment.

The new approach, according to the Federal Register Notice announcing the vote, was inspired by a large number of virtually identical form letters received from consumer advocates. In short, the Commission is reversing itself based on what amounts to the ex parte views of one interest group without even seeking the input of parties with potentially countervailing interests or views. So much for the President’s directive that independent agencies seek public comment and regulate based on real world evidence and data.

Last week, I wrote a letter to Administrator Cass Sunstein urging him to look into the actions of our agency and provide some much needed guidance on our current rulemaking agenda. I fear that if we do not stop to think about what our rules are doing to businesses, we will soon have far fewer businesses to regulate.