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
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
“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.