The U.S. Consumer Product Safety Commission has voted to remove allowances given to certain unblockable drains in the federal pool and spa safety law.

On Sept. 28, CPSC’s voting commissioners decided to change the definition of an unblockable drain to require that the sump, in addition to the drain cover, measure more than 18-by-23-inches and meet certain other testing criteria. The measure passed 3 to 2, in what some say was a predetermined outcome.

The decision is retroactive, so pools brought into VGB-Act compliance with the installation of an unblockable–sized cover over a single, blockable-sized drain will have be treated like a single drain. Every commercial pool with a single, blockable drain is required to have a backup system, such as an SVRS.

While the agency set a compliance date of May 28, 2012, it declared a 60-day public comment period for affected parties to remark on the feasibility of that deadline.

This latest vote has a history beginning in 2010, when the Commission decided a drain can be considered unblockable — regardless of sump size — if its cover complies with the VGB Act. That measure sparked protest among safety advocates and others, who claimed that such a drain would become hazardous if its cover came off to expose a smaller sump.

The  recent vote occurred when one of the commissioners who approved last year’s interpretation, Robert Adler, initiated a new ballot. Adler had received input from parties on both sides of the question.

The CPSC is composed of five commissioners — two Republicans, two Democrats and a chairman appointed by the U.S. president. This ruling was split along partisan lines, with Adler, a Democrat, joining his party when he changed his vote.  

Both Republican commissioners publicly protested the new ballot. While it was originally scheduled to take place Sept. 21, one of the Republican members (Nancy Nord) moved the hearing back a week.

High-ranking Republican legislators chimed in. Two days before the vote, the CPSC received a letter from Reps. Mary Bono Mack (R-CA) and Cliff Stearns (R-FL), chairmen of the Subcommittee on Commerce, Manufacturing and Trade, and the Subcommittee on Oversight and Investigations, respectively. Both subcommittees have some oversight authority over CPSC.

In the letter, the Congress members urged CPSC to delay its vote until after taking public comments. This was about more than pools and spas, Bono Mack and Stearns went on to say: Such a move could serve as a bad precedent and reduce public confidence in CPSC. “If the regulated community perceives that the Commission may spontaneously reverse any rule or guidance — even without supporting evidence, analysis or due process — regulatory chaos is inevitable,” they said. (Shortly after, a letter of support for the revote came from Democratic legislators — some from the same subcommittees.)

The agency held the vote as scheduled. At the meeting, Adler said he changed his position after consulting with VGB Act author Debbie Wasserman Schultz. He also received input from parents of entrapment victims, safety advocates and legislators who supported the bill.

“Every one of the citizens who wrote expressed serious objection to an interpretation of the VGB Act that allowed for no backup system for a single main drain that could be obstructed,” he said in his statement.

While Adler originally believed an unblockable drain cover protected swimmers from entrapment better than a smaller drain plus a backup system, he was persuaded otherwise. “Because all drain covers come off, it is no longer my conclusion that in all circumstances this is the case,” he said.

In the nearly two-hour proceedings, Nord and Northup continued their resistance, citing the lack of public comment and saying the decision would compromise safety. This contention largely sprang from their concerns regarding safety vacuum release systems, the most popular backup option named in the VGB Act. Because SVRS’s don’t protect against all five forms of entrapment, and a properly installed unblockable drain cover does, Nord and Northup believed CPSC was voting to swap out the safest option with one that is less so. They also said they received input from industry professionals saying the devices often would be shut down to avoid false tripping.

“We are putting out there this false safety protection and giving people a false sense of security, and that just sends cold shivers up my spine,” Nord said.

Adler said he also has concerns about SVRS technology, but that it isn’t the only backup option. “We’re not mandating the SVRS,” he said. “We’re mandating that it would be a secondary system. It would be my hope that they would not necessarily go for the SVRS.”

Northup proposed an amendment postponing the vote until public input was taken, but it was voted down. Nord proposed an amendment that would grandfather in facilities that had already complied with the VGB Act by placing an unblockable drain over a smaller sump. It, too, failed.