Well, that’s exactly what the Commission is about to do as it votes again on the question of what constitutes an unblockable pool drain. This vote will really be a pre-determined decision to flip-flop CPSC policy based on nothing more than a single Commissioner’s change of mind.
The Virginia Graeme Baker Pool & Spa Safety Act requires that pools either have unblockable drains or have back-up systems that will shut down the suction in the pool when those systems sense that a drain is blocked. Approximately 18 months ago, after public input, we interpreted the law to mean that a drain with a properly installed unblockable drain cover constituted an unblockable drain, so that a back-up system was not required. This interpretation was based on advice from our lawyers and technical staff. It also had the effect of preventing drowning from happening rather than addressing the problem after a person ran into trouble. The vote was 3 to 2, with Commissioner Adler joining Commissioner Northup and me in approving the interpretive rule. Since then, he has changed his mind.
Though Commissioner Adler has the right to apply his own opinion to our statutes as he votes (even changing his mind 18 months after a vote), prudence says practical realities should always inform our policy decisions. Among other things, we should consider how many people relied on what we told them 18 months ago and the impact of that reliance. I myself am open to opting for a new course if the record and arguments before us make the case. A majority of the Commissioners apparently believe we don’t need to consider any record, arguments, or practical realities, just vote.
Commissioner Adler says he is “a big fan of information,” but we will have none. He has said he is “dead set against” including that information in the conversation. He tells us it isn’t necessary, and the Chairman agrees. Sadly, they’re right since the outcome of this vote is predetermined and now we are only going through the motions. Having actual data and information would be necessary for a genuine exchange of ideas followed by a vote that relied on that exchange.
Three Commissioners are again stonewalling, saying I will have to agree or disagree with Commissioner Adler’s change of mind in a vacuum. Would a Request for Public Comment be such a bad approach here when the agency is reversing a policy developed after public input and relied upon by the public? Our staff is instructed not to ask the public now to comment on this issue. In fact, at a recent meeting, I was told it was “out of turn” for me even to ask why we wouldn’t have any of that vital information.
We’re told that’s because we already “know what we’re going to know,” and the majority has ensured that statement is true by making sure we don’t accidentally learn anything else. All we will have is Commissioner Adler’s changed mind. Sounds like regulating in willful ignorance. Shame on the Commission.