Amusement park industry issues analysis faulting CPSC injury report.

When CPSC issued its annual report on amusement park ride injuries in July, Congressmen Ed Markey of Massachusetts immediately cited the study to support his legislation to extend CPSC jurisdiction to fixed site amusement parks. Markey claimed the data showed that there was a 50% upsurge in injuries from 1996 to 1999. Even CPSC's statistician, Craig Morris, who wrote the report, called the results "marginally significant."

Industry officials were skeptical about the new numbers. For one thing, staff at the International Association of Amusement Parks and Attractions (IAAPA) in Alexandria, VA has followed CPSC's injury estimates over the years and they knew that a jump of 50% was just not demonstrable. Because of this, they contracted with an independent research firm, Heiden Associates, to study the CPSC data.

Ed Heiden, who heads the research firm, is a former CPSC chief policy planning economist. His report, available from IAAPA, found numerous holes in the CPSC data.

Chief among Heiden's findings was that the CPSC data include the use of a hospital that was unrepresentative. He said that a "high degree of imprecision in the CPSC data" was caused because this hospital showed an "exceptionally high contribution of injuries ... of the almost 100 that were on the CPSC's NEISS (National Electronic Injury Surveillance System) data system for 1999."

The one hospital appeared to account for as much as 44% of CPSC's projected national total for fixed site amusement ride injuries in at least one of the recent years, 1993 through 1999, and a significant amount as well (at least 10%) in other years.

Without this hospital in the data system, CPSC admits that the data would not have shown even a "marginally significant" increase in fixed-site amusement rides between 1993 and 1999.

Without any supporting data to prove that this hospital is "representative" of other such large hospitals, presumably located near amusement parks, Heiden says that it is more likely that it is just an "extreme outlier" and that it is not representative of any larger category of hospitals with an extraordinary number of amusement attraction injuries.

According to Heiden, "the correct procedure for displaying trends where a large outlier is contained in the sample data being analyzed is to display the data with and without the outlier included."

"This allows the reader to form an independent judgment as to the validity (or lack thereof) of the decision to retain the hospital in the sample, and make a decision about the interpretation of trend data accordingly."

Heiden also observed that between 1996 and 1997, CPSC altered its sample base by deleting over 20 hospitals and adding over 30 replacement hospitals.

"Statistical concerns would be introduced if the hospitals added to the system were in closer proximity to large-size amusement parks than those deleted or if they disproportionately serve customers who are more likely to use amusement parks than their predecessors. This appears to be exactly what happened," Heiden stated.

Finally, Heiden found that the CPSC Report is considerably different in its data and conclusions from prior-year reports, and no explanatory document is provided.

He also notes that the report lacks documentation that it was professionally peer-reviewed by the CPSC senior epidemiology and hazard analysis staff, as in past years.

Overall, Heiden concludes that there are significant doubts about the CPSC's analysis. The statistical test used to analyze the data is "a very weak, and probably inappropriate, statistic for use in detecting trends in time-series-data," he said.

One important observation made by Heiden is that the "post 1996 sampling frame appears to be new and different from the old pre-1996 sample because its hospital members are on average much nearer to amusement parks than the old hospitals were, and serve potential patients who have different, higher propensity than potential ER patients in the pre-1997 NEISS sample, to use the parks that are the source of any potential injury reported to the agency."

"As far as fixed site amusement ride injury tracking is concerned, the year 1997 should thus probably be regarded analytically as the starting point for a new trend analysis arising from CPSC's newly redesigned sample, rather than the continuation of an existing trend line."

Although Congressman Markey attempted to attach his CPSC amusement park jurisdiction legislation to another, non-controversial bill in a House Commerce subcommittee mark-up last month, it was ruled out because it was non-germane. Markey could, of course, bring his bill up again with the full committee or on the House Floor. In the rush to adjourn before the elections, anything could happen.

One thing is certain. It will be difficult for Markey to continue to use the July 2000 CPSC data to support the need for federal jurisdiction. Heiden's analysis makes it clear that CPSC's data is seriously flawed and not firm grounding for new legislation.

Escalator Jurisdiction Question Unsettled

As reported previously in CPSC Monitor, CPSC's General Counsel has claimed that the agency has jurisdiction over escalators. Many have questioned that opinion, on the grounds that escalators in shopping malls, airports, train stations and subways are not within the congressional definition of a "consumer product."

Nonetheless, the agency received a petition for the development of a mandatory standard for escalators--with regard to the gap between the moving stair and the sidewall.

Petitioners Scott and Diana Anderson allege that entrapment injuries from moving stairs constitute an unreasonable risk of injury. The Anderson's son suffered severe injuries to his foot in an entrapment incident.

In a briefing Sept. 26, the staff recommended that the Commission deny the petition, and the Commissioners all agreed. They will vote by ballot Oct. 4 on denial of the petition.

What was not settled, however, was the issue of jurisdiction. A memo to the Commissioners on the topic of jurisdiction from the Office of General Counsel was not made available to the public. However, it is known that the General Counsel argued for jurisdiction, and that Chairman Ann Brown and Commissioner Thomas Moore agreed with that position. Commissioner Mary Gall argued forcefully against jurisdiction during the briefing.

In a statement issued September 28, Gall said she believes the Commission "lacks authority to promulgate a mandatory consumer product safety standard for this product."

Gall cited the statutory description of a consumer product, and noted that escalators are not "sold to consumers," as defined in the Consumer Product Safety Act (CPSA). Additionally, she said, the question of whether it is an article "customarily produced for consumers to use personally in or around a permanent or temporary household or residence, a school or in recreation," has never been decided by a court.

"Attempted enforcement action on escalators [by CPSC] risks bogging the Commission down in complicated questions of maintenance and warranties," Gall said.

She further stated that the mission of CPSC is to protect consumers against unreasonable risks of injury and minimize conflicting state and local regulations.

"... Because of the nature of escalators and their regulation by local building codes, regulating escalators as consumer products will further neither of these policy objectives," she said.

As CPSC Monitor has reported several times, the engineering staff at the agency, working with the escalator industry, monitored the development of a new industry-wide safety standard that will resolve the entrapment injury scenario. CPSC estimates 1,200 injuries annually are the result of entrapments between the stair and the stepskirt of the escalator. These injuries, while severe, are not fatal.

The staff briefing package recommended that the Commissioners deny the petition, and rely instead on the new industry voluntary standards, ASME A-17.1 for new installations, A-17.2.3 for escalator inspector's manuals and A-17.3 for existing installations.

In order to encourage adoption of the new codes, the National Elevator Industry, Inc. (NEII) which represents the escalator trade, has a new program targeting owners of buildings, maintenance contractors, inspection authorities and consultants, which stresses the importance of using the new code requirements.

Five manufacturers who participated in the ASME standards development have pledged to meet or exceed revisions to the code. The NEII says these five manufacturers make up 99% of the market for new escalator sales in the U.S.

CPSC Chairman Brown criticized the escalator industry for what she termed a "totally inadequate information and education campaign to warn the public against the hazards of entrapment."

However, once the new safety standards are in place, experts say the risk of entrapment should virtually disappear.

Commissioners Support Regulation of Portable Bed Rails

CPSC Commissioners voted on September 21, 2000, 3-0 to issue an Advance Notice of Proposed Rulemaking (ANPR.) on portable bed rails, following disagreements with a voluntary standards group on how to address the alleged hazard.

In February 1998, CPSC staff approached ASTM (American Society for Testing Materials) with the suggestion that it develop a safety standard for portable bed rails. The ASTM-F-15 Executive Committee agreed.

Portable bed rails are devices installed on an adult bed to prevent children from falling out of bed. Manufacturers have always recommended against using them for children under the age of two.

CPSC says that since 1990, there have been twelve fatalities as a result of hanging or strangulation when a child became lodged between the bed rail and the bed. Nine of the 12 fatalities were to children under the age of two, and one was an infant only three months old. The three children older than two involved in the fatal accidents had disabilities.

In May 1999, CPSC staff drafted a proposed safety standard and submitted it to ASTM. In September 1999, the ASTM subcommittee met and formed two task groups, one to develop labeling and instruction requirements and another to work on performance requirements. In

December 1999, CPSC and the industry met and members of the subcommittee told CPSC engineers that the testing requirements were too stringent and would require that the product be totally redesigned. At a meeting in February, the subcommittee voted to withdraw the ballot containing the CPSC proposed requirements, because they felt it would not be approved. Manufacturers have also expressed the belief that the incidents cited by CPSC were due to a misuse of the product. As of June 2000, the ASTM Portable Bed Rail Subcommittee had not sent out the CPSC draft standard for balloting.

Bed rail manufacturers' primary concern seems to be that the CPSC draft standard would result in designs that do not reduce the risk of entrapment but present an even greater risk than current bed rails. The proposed standard is more complex and could result in incorrect installation by consumers or attempts to modify the products, they say.

While the ASTM Bed Rail Subcommittee is still considering the draft proposal, it has not acted in the more than two years since the issue was raised. The next meeting of the subcommittee is October 11. Perhaps now that a new ANPR is out for comment, the ASTM subcommittee will propose an alternative draft standard.