Last week, the U.S. Coast Guard took the unusual step of withdrawing a final rule on life jackets that it had published in March, citing as the sole reason for its reversal a critical letter from a Florida woman who was not lobbying on behalf of anybody.
The decision leaves the life jacket industry in limbo as it waits for the Coast Guard to restart its rule-making process, and it shows how a single voice can sometimes move federal mountains, even if the voice belongs to a part-time jazz singer from Wesley Chapel, Fla.
Susan Balistreri is no amateur in the life jacket business — she has been an independent consultant to life jacket manufacturers for 30 years, helping them design products and negotiate the byzantine processes of regulatory agencies and international standards that determine which life preservers get approved.
But she is also a staunch advocate for child safety. Balistreri was moved to action over her concern that the Coast Guard was moving toward allowing teenagers to use inflatable life preservers that are designed for adults but that she believes younger boaters don't have the capacity to use properly.
Wielding that argument, Balistreri single-handedly took the air out of a Coast Guard rule.
Cindy Squires, director of regulatory affairs for the National Marine Manufacturers Association, said the Coast Guard's March rule-making was intended to open the door for an international standards organization to write new standards for inflatable life preservers.
"We want to get life jacket use up," Squires said, "particularly among that group that is least likely to wear a life jacket — the tweens or teens." The industry believes the way to do that is to provide life jackets that are less bulky than the old orange summer camp vests that have been the standard for decades.
The Coast Guard has approved for "use by adults only" inflatable life jackets that are much less cumbersome out of water and either inflate automatically upon being submerged or can be triggered to inflate by the wearer.
The agency issued a new rule in March stating that "although the Coast Guard is not yet ready to revisit the issue of inflatable (personal flotation devices) for children, the industry has begun ... to explore the appropriateness of these devices for children and create an appropriate standard."
But in making the new rule, the Coast Guard removed the words "approved for use by adults only" from its own regulations, arguing that the change "has no substantive effect" because the life vests still have to meet existing industry standards, which limit the use of inflatable vests to people 16 and older. Without Coast Guard action to drop those limitations, international standard-setting organizations — such as Underwriters Laboratories Inc. — could not begin drafting new standards for youth use of inflatables, Squires said. Her organization submitted a comment on the rules, saying, "This action moves us one critical step closer to making inflatable lifejackets available for youth under 16 years of age."
The Coast Guard issued the new rule without providing opportunity for public comment because, as the agency admitted last week, it "considered this rule to be noncontroversial and did not expect any adverse comment."
But Balistreri objected. In a May 1 letter written on the self-made letterhead of Balistreri Consulting, she wrote that deleting the "adults only" language "could enable currently approved inflatable product to be marketed to teens 12-15 years of age."
Balistreri's eight-page letter summarizes an array of studies on the safety of inflatable vests for youth and the propensity of young people to engage in risky behaviors and concluded that there is a need for more scientific study before an inflatable device can be approved for use by younger people.
Therefore, Balistreri declared, "I challenge the underlying premise and approach for this language removal; I consider it totally inappropriate and unacceptable at this time."
Last week, the Coast Guard acknowledged receiving "one adverse comment" — Balistreri's — which required the agency to withdraw the rule and start over with a full rule-making process with public comment. It is not clear when that process will begin.
Jeff Hoedt, chief of the Boating Safety Division at Coast Guard Headquarters, said Balistreri's complaint "moved us back a step, without a doubt." Hoedt said he has known Balistreri for years and that she "continues to work on life jacket design." She has been a member of a national advisory council on boating safety and "she has some background on how the Coast Guard functions," Hoedt said.
In general, Hoedt said, for Coast Guard rules, "the number of comments that come in is typically not very large — some good in-depth comments come in, so it is not surprising to me to have a comment come in." But Hoedt acknowledged that it is unusual for the agency to withdraw a final rule.
Virgil Chambers, executive director of the National Safe Boating Council, said that while Balistreri is concerned that inflatable vests are unsafe for children, "there are a lot of people who disagree with that."
Squires said Balistreri has significant expertise in life jacket design and regulation but added that "she is somewhat of an outlier" in her opposition to inflatable jackets for youth.
Balistreri also is an unusual participant in the rule-making process because, as she told Roll Call, "I have no client in this. I am not doing this to further anybody's economic advantage." She said she comes to the debate armed with data about the relatively weak capacity of youth to make quick lifesaving decisions and that "everybody realizes this gal is not playing. They take me seriously."
Balistreri said that any life jacket for youth must be specially designed and comprehensively tested for their use before it is approved and sold. Her fear is that some industry advocates are pushing for an easier path to market: "Let's just give 'em an adult product and see what happens."
The inflatable vest issue is part of a broader discussion the Coast Guard is having with boat-safety advocates and the boating community about whether to mandate that passengers on recreational boats wear life vests at all times, a kind of on-the-water parallel to seat-belt laws. An advisory council has already suggested the Coast Guard explore new rules along these lines, which are likely to be quite controversial, Chambers said.
"Most people don't know it's going on, and these regulations just suddenly appear," Chambers said. "Very few people comment on it, and very few people read the [Federal] Register."
But, he said, Balistreri's victory proves the power of "the Jeffersonian form of democracy — one man or one woman can change the course of any action."