Los Angeles Port Tour

Last week, I had the privilege of visiting our country's largest port in Los Angeles to see first-hand some of the new and exciting technologies that our ports are using to ensure our safety. It is nice to know that the CPSC is benefiting from the port's use of cutting edge technology to protect American consumers from unsafe products.

During my visit to Los Angeles, I was able to take some photos that show much of the work that is being conducting at our ports on a daily basis. I hope you enjoy them.

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.

Feeling Relief Yet?

Late last week, the President signed H.R. 2715, a law that is intended to help clarify and enhance the Consumer Product Safety Improvement Act of 2008. I sincerely appreciate the hard work of the House and Senate leadership in prioritizing some necessary reforms, including exemptions from the law’s non-risk-based lead content and/or third-party lead testing requirements for ATVs, bikes, books and most used children’s products. In addition, avoiding the waste of retroactively applying the CPSIA’s .01% lead limit was a priority for all children’s product manufacturers—and I am thankful that HR 2715 strips the CPSIA of this unnecessary requirement.

By exempting children’s ATV’s from all lead limits, allowing bicycles to remain at 300ppm, and exempting from third-party testing the metal components of bicycles and most children’s books, Congress signaled its awareness that these products do not present a health risk to children. I continue to urge my colleagues to regulate based on risk and to exercise flexibility wherever possible and appropriate. As I have argued in my statement on 100ppm the Commission’s approach to lead is clearly one of those cases.

Notwithstanding these improvements, Congress missed a rare opportunity to ensure that all safe, children’s products (not only ATVs, bikes and books) may be legally sold —and that non-risk-based, costly testing and certification requirements be eliminated in favor of more efficient, more meaningful ways to enforce safety measures up the supply chain for domestic and foreign manufacturers.

While some proponents of the law will argue that it reduces the burden of third party testing on small manufacturers, the fact remains that this mechanism applies to only a small niche of the overall regulated business community. By excluding from the third party testing requirement very low production products (7,500 units), provided they are manufactured by a business meeting a very narrow definition of “small” ($1,000,000 annual revenue), the law allows few businesses to obtain relief under this provision, perhaps including only those who fashion by hand unique or very small batches of products.

In addition to the perceived relief, it is important to note that no businesses will be excluded under the provision until the Commission has issued guidelines under which businesses may register their status with the CPSC. I hope that the political leadership of the Commission recognizes the importance of prioritizing the drafting of these guidelines, so that small businesses can register before the crushing costs of third-party testing drive them out of business, when the stays are lifted on January 1, 2011. In this respect, to paraphrase our Chairman, relief delayed is relief denied.

Some continue to suggest that H.R. 2715 will meaningfully improve the public database. Sadly, this is not the case. The law’s grant of up to 5 additional days to investigate material inaccuracy claims before posting reports will do little to reduce the number of inaccurate reports published. Similarly, little is achieved by requiring the Commission to “seek the model, serial number, or a photograph,” when not included within a report. By not requiring the commission to actually obtain the information prior to posting the claim, this provision is little more than a smoke and mirrors technique aimed at silencing criticism of the database. In the end, reports will continue to be posted without this information, manufacturers will still often be left with insufficient information to understand and respond to reports, and consumers will be left guessing about the subject of many of these claims.

While I clearly do not agree with the view that this new law addresses all of the problems in the CPSIA, I do remain hopeful that this will give the agency the opportunity to take a fresh look at the costs and benefits of the rules we issue, especially as they relate to small business. I believe that this new law requires us to re-propose our pending rule addressing periodic third party testing since the underlying rule has changed, as well as provides us with the opportunity to regulate based on fact rather than on opinion.

Finally, it is a mistake to conclude that Congress intended to endorse those provisions of the law that it failed to change. Just as a Congressional majority could not be found for more significant changes to the CPSIA, it is clear from the tenor of debate that there would also not be majority support to pass the original CPSIA today.

Be Quiet!! Be Quiet!!

Chairman Tenebaum’s frustrations are clear in her guest commentary post of 7/28/2011, but it should reassure most Americans that the system is working exactly as intended. Congress established a Commission that includes two members not of the President’s party to ensure that a robust, open and honest policy debate will prevent a majority from engaging in one sided rulemaking. I regret that the Chairman is unable to respect opinions with which she differs. But my positions have always been grounded in fact and based on my sincere and deeply held views.

With respect to specific issues, my individual public statements speak for themselves: Database Statement 1, 2; Effective Date for New Crib Standard; Technological Feasibility of 100ppm Lead; Children's Textiles; Definition of a Child’s Product; and, Third Party Testing for Children’s Carpets and Rugs.

Consumer product safety is always my first priority. But I also believe it is essential to adopt regulations that achieve the Commission’s safety mission in a way that does not unnecessarily burden the economy, disrupt markets, destroy jobs, increase consumer prices, reduce consumer choice, or undermine the quality and durability of consumer products. I am proud to have worked to bring that balance to Commission debate, and will unapologetically continue to do so.

I often receive letters, emails and calls from everyday Americans who are suffering because of this Commission’s costly regulations. They speak of closed businesses, lost jobs, and products that are available everywhere in the world except here in America. I recently compiled a list of businesses and individuals harmed by our actions. But perhaps the most eye opening account I have ever received is one sent to me recently by a CPSC field agent:

I just had an opportunity to read your July 20, statement concerning lead ppm.

"I just wanted to say thank you for saying what some many of us in the field are feeling everyday while having to carry out compliance efforts in face to face scenarios with business owners. We don’t have the sanctuary of a phone, a computer or geography to shield us form [sic] the reality of their world.

Since passage and implementation of CPSIA many of us, [geographic location removed], are facing more and more resistive and hostile receptions as we carry out our day to day activities with businesses. This seems to be specifically for the reasons noted in your statement and not just within the limited scope of lead. For the most part these are people with children of their own trying to make a living for their families that have no desire to put out an unsafe product. We are becoming the face of the reason they believe that opportunity is becoming more difficult and/or failing for them. It is so disheartening to go out on an assignment and spend an hour listening to a business owner berate us about how ridiculous some of our regulations and/or procedures are and not have one argument to present in return because they are right.

It is reassuring to know there is still some hope at the Commission level that some day we can return to a state of reasonable regulation and focus on safety, not philosophy and bureaucracy."

The Chairman has difficulty hearing the truth from me. I hope she can be reached by the words of a career Commission employee.