Virginia Graeme Baker Pool and Spa Safety Act; Public Accommodation, 65261-65263 [2010-26520]
Download as PDF
<![CDATA[
Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Proposed Rules
characteristics may pose a present or
potential threat to Sanctuary resources
or qualities, including but not limited
to: Fishing nets, fishing line, hooks,
fuel, oil, and those contaminants
(regardless of quantity) listed at 40 CFR
302.4 pursuant to 42 U.S.C. 9601(14) of
the Comprehensive Environmental
Response, Compensation, and Liability
Act, as amended.
*
*
*
*
*
3. Amend § 922.122 as follows:
a. Add new paragraph (a)(2)(iii).
b. Revise paragraphs (a)(3)(i)
introductory text, (a)(3)(i)(A),
(a)(3)(i)(B), and (a)(3)(i)(C).
c. Redesignate paragraphs (a)(7)
through (10) as paragraphs (a)(8)
through (11), respectively.
d. Add new paragraph (a)(7).
e. Revise paragraph (c).
f. Amend paragraphs (d), (e), (f), and
(g) by removing the phrase ‘‘paragraphs
(a)(2) through (10)’’ wherever it appears
and adding in its place ‘‘paragraphs
(a)(2) through (11)’’.
The additions and revisions read as
follows:
emcdonald on DSK2BSOYB1PROD with PROPOSALS
(a) * * *
(2) * * *
(iii) Mooring a vessel in the Sanctuary
without clearly displaying the blue and
white International Code flag ‘‘A’’
(‘‘alpha’’ dive flag) whenever a SCUBA
diver from that vessel is in the water or
removing the ‘‘alpha’’ dive flag before all
SCUBA divers exit the water and return
back on board the vessel.
*
*
*
*
*
(3)(i) Discharging or depositing, from
within or into the Sanctuary, any
material or other matter except:
(A) Fish, fish parts, chumming
materials or bait used in or resulting
from fishing with conventional hook
and line gear in the Sanctuary, provided
that such discharge or deposit occurs
during the conduct of such fishing
within the Sanctuary;
(B) Clean effluent generated
incidental to vessel use by an operable
Type I or Type II marine sanitation
device (U.S. Coast Guard classification)
approved in accordance with section
312 of the Federal Water Pollution
Control Act, as amended (FWPCA), 33
U.S.C. 1322. Vessel operators must lock
marine sanitation devices in a manner
that prevents discharge or deposit of
untreated sewage;
(C) Clean vessel deck wash down,
clean vessel engine cooling water, clean
vessel generator cooling water, clean
bilge water, or anchor wash;
*
*
*
*
*
17:49 Oct 21, 2010
Jkt 223001
§ 922.123
[Amended]
4. Amend § 922.123 (a) and (c) by
removing the phrase ‘‘paragraphs (a)(2)
through (10)’’ and adding in its place
‘‘paragraphs (a)(2) through (11).’’
[FR Doc. 2010–26762 Filed 10–21–10; 8:45 am]
BILLING CODE 3510–NK–P
Instructions: All submissions received
must include the agency name and
docket number for this rulemaking. All
comments received may be posted
without change, including any personal
identifiers, contact information, or other
personal information provided, to
https://www.regulations.gov. Do not
submit confidential business
information, trade secret information, or
other sensitive or protected information
electronically. Such information should
be submitted in writing.
Docket: For access to the docket to
read background comments or
comments received, go to https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Barbara E. Little, Regulatory Affairs
Attorney, Office of General Counsel,
Consumer Product Safety Commission,
4330 East West Highway, Bethesda,
Maryland 20814–4408; blittle@cpsc.gov.
CONSUMER PRODUCT SAFETY
COMMISSION
SUPPLEMENTARY INFORMATION:
16 CFR Part 1450
A. Background
Virginia Graeme Baker Pool and Spa
Safety Act; Public Accommodation
§ 922.122 Prohibited or otherwise
regulated activities
VerDate Mar<15>2010
(7) Killing, injuring, attracting,
touching, or disturbing a ray or whale
shark in the Sanctuary.
*
*
*
*
*
(c) The prohibitions in paragraphs
(a)(2)(i), (a)(4), and (a)(11) of this section
do not apply to necessary activities
conducted in areas of the Sanctuary
outside the no-activity zones and
incidental to exploration for,
development of, or production of oil or
gas in those areas.
*
*
*
*
*
65261
The Virginia Graeme Baker Pool and
Spa Safety Act, 15 U.S.C. 8001, (‘‘VGB
Act’’ or ‘‘Act’’) requires that drains in
public pools and spas be equipped with
ASME/ANSI A112.19.8 compliant drain
covers, and that each public pool and
spa with a single main drain other than
an unblockable drain be equipped with
certain secondary anti-entrapment
systems. Section 1404(c) of the Act. The
Act defines ‘‘public pool and spa’’ in
relevant part as a ‘‘swimming pool or
spa that is open exclusively to patrons
of a hotel or other public
accommodations facility.’’ Section
1404(c)(2)(B)(iii) of the Act. The Act
does not define the term ‘‘public
accommodations facility.’’
In response to numerous inquiries
regarding what constitutes a public
accommodations facility under the VGB
Act, the Commission published a
proposed interpretive rule on the
definition of ‘‘public accommodations
facility’’ on March 15, 2010 (75 FR
12167). The proposed interpretive rule
would interpret ‘‘public
accommodations facility’’ to mean: ‘‘An
inn, hotel, motel, or other place of
lodging, except for an establishment
located within a building that contains
not more than five rooms for rent or hire
and that is actually occupied by the
proprietor of such establishment as the
residence of such proprietor.’’
CPSC received six comments on the
proposed interpretive rule, including
two comments from State health
departments, one from the Tennessee
Hospitality Association, one from an
Consumer Product Safety
Commission.
ACTION: Proposed interpretive rule.
AGENCY:
The Consumer Product Safety
Commission (‘‘Commission’’ or ‘‘CPSC’’)
is proposing this interpretive rule to
interpret the term ‘‘public
accommodations facility’’ as used in the
Virginia Graeme Baker Pool and Spa
Safety Act.
DATES: Written comments in response to
this document must be received no later
than December 21, 2010.
ADDRESSES: You may submit comments,
identified by Docket No. CPSC–2010–
0102, by any of the following methods:
SUMMARY:
Electronic Submissions
Submit electronic comments in the
following way: Federal eRulemaking
Portal: https://www.regulations.gov.
Follow the instructions for submitting
comments. To ensure timely processing
of comments, the Commission is no
longer accepting comments submitted
by electronic mail (e-mail) except
through https://www.regulations.gov.
Written Submissions
Submit written submissions in the
following way: Mail/Hand delivery/
Courier (for paper (preferably in five
copies), disk, or CD–ROM submissions),
to: Office of the Secretary, Consumer
Product Safety Commission, Room 502,
4330 East West Highway, Bethesda, MD
20814; telephone (301) 504–7923.
PO 00000
Frm 00013
Fmt 4702
Sfmt 4702
E:\FR\FM\22OCP1.SGM
22OCP1
65262
Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Proposed Rules
emcdonald on DSK2BSOYB1PROD with PROPOSALS
individual, one from a manufacturer,
and one from members of Congress.
CPSC staff prepared a draft final
interpretative rule for the Commission’s
approval, but, on August 4, 2010, the
Commission voted to withdraw the
proposed interpretive rule and to direct
CPSC staff to draft a new proposed
interpretive rule with a 60 day comment
period and interpreting ‘‘public
accommodations facility’’ as ‘‘an inn,
hotel, motel, or other place of lodging,
including, but not limited to, rental
units rented on a bi-weekly or weekly
basis.’’ This proposed interpretive rule is
in response to the Commission’s vote;
elsewhere in this issue of the Federal
Register, we have published a document
announcing the withdrawal of the
proposed interpretive rule that was
published in the Federal Register March
15, 2010.
B. Legal Analysis
1. Public Pool or Spa. A public pool
or spa open exclusively to patrons of a
hotel or other public accommodations
facility is only one category of public
pools and spas under the VGB Act. The
Act also defines a public pool and spa
to include a swimming pool or spa that
is:
• Open to the public generally,
whether for a fee or free of charge
(Section 1404(c)(2)(A) of the Act);
• Open exclusively to members of an
organization and their guests (Section
1404(c)(2)(B)(i) of the Act);
• Open exclusively to residents of a
multi-unit apartment building,
apartment complex, residential real
estate development, or other multifamily residential area (other than a
municipality, township, or other local
government jurisdiction) (Section
1404(c)(2)(B)(ii) of the Act); and
• Operated by the Federal
Government (or by a concessionaire on
behalf of the Federal Government) for
the benefit of members of the Armed
Forces and their dependents or
employees of any department or agency
and their dependents (Section
1404(c)(2)(C) of the Act).
This proposed interpretive rule is
limited to the interpretation of ‘‘public
accommodations facility.’’
2. Comparable Federal Statutes. The
term ‘‘public accommodation’’ is defined
in several other Federal statutes in
relevant part as ‘‘an inn, hotel, motel, or
other place of lodging.’’ (See, e.g., the
Americans with Disabilities Act (ADA),
42 U.S.C. 12181(7), defining ‘‘public
accommodation’’ in relevant part as ‘‘an
inn, hotel, motel, or other place of
lodging, except for an establishment
located within a building that contains
not more than five rooms for rent or hire
VerDate Mar<15>2010
17:19 Oct 21, 2010
Jkt 223001
and that is actually occupied by the
proprietor of such establishment as the
residence of such proprietor.’’ See also,
the Federal Fire Prevention and Control
Act of 1974 (FFPCA), 15 U.S.C. 2201 et
seq., at section 2203(7); the Civil Rights
Act (CRA), 42 U.S.C. 1981 et seq., at
section 2000(b).) The Commission
intends to incorporate this language into
its proposed definition for ‘‘public
accommodations facility.’’
The ADA, FFPCA, and CRA exclude
from the definition of public
accommodation an establishment
located within a building that contains
not more than five rooms for rent or hire
that is actually occupied as a residence
by the proprietor of such establishment.
While there may be a rationale for this
exclusion in the context of these other
Federal statutes, the Commission sees
no basis for this exclusion in the context
of pool and spa safety. The number of
units in an establishment bears no
relationship to whether a pool or spa on
the premises may contain a safety
hazard to the patrons of such an
establishment. Thus, the proposed
definition would not contain an
exclusion for an establishment with five
or fewer units for rent or hire.
3. ‘‘Other Place of Lodging.’’ The
Commission’s proposed interpretation
of ‘‘public accommodations facility’’
would include the phrase ‘‘other place
of lodging.’’ The Commission intends to
follow the legal precedent of the ADA
in interpreting this term. The legislative
history to the ADA provides that the
phrase ‘‘other places of lodging’’ does
not include residential facilities. H.R.
Resp. No. 101–485(11), 101st Cong., 2d
Sess. 383 (1990), reprinted in U.S. Code
Cong. & Admin. News 1990, at p. 267.
The Appendix to the ADA regulations
explains that the rationale for excluding
solely residential facilities from the
category places of lodging is ‘‘because
the nature of a place of lodging
contemplates the use of the facility for
short term stays.’’ 28 CFR App. B,
§ 36.104, p. 614–615 (1997). Thus, a
residential facility is excluded from the
definition of public accommodation.
However, under relevant ADA
precedent, if the facility were to offer a
significant number of short term stays,
it would lose its characterization as a
residential facility and become a ‘‘place
of lodging,’’ thereby a public
accommodation. Letters from the
Department of Justice and case law
illustrate this point. See, e.g., Letter
from Joan A. Magagna, Deputy Chief,
Public Access Section, U.S. Department
of Justice (June 15, 1993) (condominium
complex does not constitute a place of
public accommodation, assuming it
does not offer such short term stays that
PO 00000
Frm 00014
Fmt 4702
Sfmt 4702
it could be considered a place of
lodging); see also Access 4 All, Inc. v.
The Atlantic Hotel Condominium Ass’n,
2005 U.S. Dist. LEXIS 41601 (November
22, 2005) (condominium buildings may
be covered as places of public
accommodation if they operate as places
of lodging; determining whether a
particular condominium facility is a
place of public accommodation would
depend on the extent to which it shares
characteristics normally associated with
a hotel, motel, or inn); Thompson v.
Sand Cliffs Owners Ass’n, Inc., 1998
U.S. Dist. LEXIS 23632 (1998)
(according to the commentary related to
the ADA regulations, the difference
between a residential facility and a nonresidential ‘‘place of lodging’’ is the
length of the occupant’s stay; the nature
of a place of lodging contemplates the
use of a facility for short-term stays).
The Commission intends to use the
same criteria as that found in the ADA
regulations, legislative history, case law,
and DOJ guidance regarding whether a
particular facility is residential in nature
or, alternatively, an ‘‘other place of
lodging’’ subject to the provisions for
public accommodations facilities under
the VGB Act. To make this clear, the
proposed interpretive rule would
include the phrase, ‘‘including, but not
limited to, rental units rented on a biweekly or weekly basis.’’ (Note that
while a residential apartment complex
would be excluded from the definition
of ‘‘public accommodations facility’’
under the ADA, a pool or spa located in
a residential apartment complex would
not be excluded from the definition of
a public pool or spa under the VGB Act
because section 1404(c)(2)(B)(ii) of the
Act includes pools or spas open
exclusive to ‘‘residents of a multi-unit
apartment building, apartment complex,
residential real estate development, or
other multi-family residential area’’
within the definition of ‘‘public pool or
spa.’’)
Thus, for example, for spas within
individual condominium units or
mountain lodge homes, the inquiry
would involve determining whether the
condominium unit or mountain lodge
itself shares characteristics with inns,
hotels, or motels, or whether the unit is
rented for a sufficient number of shortterm stays such that it becomes a ‘‘place
of lodging’’ and thus a public
accommodations facility. These
determinations are fact-specific, and the
Commission will rely on the same
criteria as that used by courts and the
Department of Justice in making such
determinations.
E:\FR\FM\22OCP1.SGM
22OCP1
Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Proposed Rules
C. Description of the Proposed
Interpretive Rule
CONSUMER PRODUCT SAFETY
COMMISSION
The proposed interpretive rule would
amend part 1450. Section 1450.1, Scope,
would explain that part 1450 pertains to
the Virginia Graeme Baker Pool and Spa
Safety Act and that the statute is
designed to prevent child drowning,
drain entrapments, and eviscerations in
pools and spas.
Section 1450.2, Definitions, would
define ‘‘public accommodations facility’’
at paragraph (a) as ‘‘an inn, hotel, motel,
or other place of lodging, including, but
not limited to, rental units rented on a
bi-weekly or weekly basis.’’
16 CFR Part 1450
List of Subjects in 16 CFR Part 1450
Consumer protection, Infants and
children, Law enforcement.
E. Conclusion
For the reasons stated above, the
Commission proposes to amend part
1450 of title 16 of the Code of Federal
Regulations as follows:
PART 1450—VIRGINIA GRAEME
BAKER POOL AND SPA SAFETY ACT
REGULATIONS
1. The authority citation for part 1450
continues to read as follows:
Authority: 15 U.S.C. 2051–2089, 86 Stat.
1207; 15 U.S.C. 8001–8008, 121 Stat. 1794.
2. Section 1450.1 is added to read as
follows:
§ 1450.1
Scope.
This part pertains to the Virginia
Graeme Baker Pool and Spa Safety Act,
(‘‘Act’’), 15 U.S.C. 8001 et seq., which is
designed to prevent child drowning,
drain entrapments and eviscerations in
pools and spas.
3. Add paragraph (a) to § 1450.2 to
read as follows:
emcdonald on DSK2BSOYB1PROD with PROPOSALS
§ 1450.2
Definitions.
(a) Public accommodations facility
means an inn, hotel, motel, or other
place of lodging, including, but not
limited to, rental units rented on a biweekly or weekly basis.
*
*
*
*
*
Dated: October 15, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety
Commission.
[FR Doc. 2010–26520 Filed 10–19–10; 8:45 am]
BILLING CODE 6355–01–P
VerDate Mar<15>2010
17:19 Oct 21, 2010
Jkt 223001
Virginia Graeme Baker Pool and Spa
Safety Act; Public Accommodation;
Withdrawal of Proposed Rule
Consumer Product Safety
Commission.
ACTION: Withdrawal of proposed rule.
AGENCY:
In the Federal Register of
March 15, 2010, the Consumer Product
Safety Commission (‘‘CPSC’’ or
‘‘Commission’’) issued a proposed
interpretive rule that would interpret
the term ‘‘public accommodations
facility’’ as used in the Virginia Graeme
Baker Pool and Spa Safety Act (‘‘VGB
Act’’ or ‘‘Act’’) as ‘‘an inn, hotel, motel,
or other place of lodging, except for an
establishment located within a building
that contains not more than five rooms
for rent or hire and that is actually
occupied by the proprietor of such
establishment as the residence of such
proprietor’’ (75 FR 12167). The
Commission is withdrawing the March
15, 2010 proposed interpretive rule and,
elsewhere in this issue of the Federal
Register, is issuing a new proposed
interpretive rule with a 60-day comment
period which would interpret ‘‘public
accommodations facility’’ as ‘‘an inn,
hotel, motel, or other place of lodging,
including but not limited to, rental units
rented on a bi-weekly or weekly basis.’’
DATES: The proposed interpretive rule is
withdrawn as of October 22, 2010.
FOR FURTHER INFORMATION CONTACT:
Barbara E. Little, Office of the General
Counsel, Consumer Product Safety
Commission, 4330 East West Highway,
Bethesda, Maryland 20814; e-mail
blittle@cpsc.gov.
SUPPLEMENTARY INFORMATION: The
Commission published a proposed
interpretive rule on the definition of
‘‘public accommodations facility in the
Federal Register of March 15, 2010 (75
FR 12167). The proposed interpretive
rule would interpret ‘‘public
accommodations facility’’ to mean: ‘‘An
inn, hotel, motel, or other place of
lodging, except for an establishment
located within a building that contains
not more than five rooms for rent or hire
and that is actually occupied by the
proprietor of such establishment as the
residence of such proprietor.’’
CPSC staff prepared a draft final
interpretative rule for the Commission’s
approval, but, on August 4, 2010, the
Commission voted to withdraw the
proposed interpretive rule and to direct
CPSC staff to draft a new proposed
interpretive rule with a 60-day comment
SUMMARY:
PO 00000
Frm 00015
Fmt 4702
Sfmt 4702
65263
period and interpreting ‘‘public
accommodations facility’’ as ‘‘an inn,
hotel, motel, or other place of lodging,
including, but not limited to, rental
units rented on a bi-weekly or weekly
basis.’’ The Commission preliminarily
determined that the exception for an
owner-occupied establishment located
within a building that contains not more
than five rooms for rent or hire is
inappropriate in the context of pool and
spa safety because the number of units
for rent or hire has no bearing on the
safety of the pool. In addition, the
Commission wanted to make clear that
a residential facility may become a
‘‘place of lodging’’ if the facility were to
offer a significant number of short term
stays.
Thus, the Commission, through this
notice, is withdrawing the March 15,
2010 proposed interpretive rule.
Elsewhere in this issue of the Federal
Register, the Commission is issuing a
new proposed interpretive rule to
interpret ‘‘public accommodations
facility’’ in the VGB Act as ‘‘an inn,
hotel, motel, or other place of lodging,
including, but not limited to, rental
units rented on a bi-weekly or weekly
basis.’’
Dated: October 15, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety
Commission.
[FR Doc. 2010–26521 Filed 10–21–10; 8:45 am]
BILLING CODE 6355–01–P
DEPARTMENT OF LABOR
Employee Benefits Security
Administration
29 CFR Part 2510
RIN 1210–AB32
Definition of the Term ‘‘Fiduciary’’
Employee Benefits Security
Administration, Labor.
ACTION: Proposed rule.
AGENCY:
This document contains a
proposed rule under the Employee
Retirement Income Security Act (ERISA)
that, upon adoption, would protect
beneficiaries of pension plans and
individual retirement accounts by more
broadly defining the circumstances
under which a person is considered to
be a ‘‘fiduciary’’ by reason of giving
investment advice to an employee
benefit plan or a plan’s participants. The
proposal amends a thirty-five year old
rule that may inappropriately limit the
types of investment advice relationships
that give rise to fiduciary duties on the
SUMMARY:
E:\FR\FM\22OCP1.SGM
22OCP1
]]>Agencies
[Federal Register Volume 75, Number 204 (Friday, October 22, 2010)]
[Proposed Rules]
[Pages 65261-65263]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-26520]
=======================================================================
-----------------------------------------------------------------------
CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1450
Virginia Graeme Baker Pool and Spa Safety Act; Public
Accommodation
AGENCY: Consumer Product Safety Commission.
ACTION: Proposed interpretive rule.
-----------------------------------------------------------------------
SUMMARY: The Consumer Product Safety Commission (``Commission'' or
``CPSC'') is proposing this interpretive rule to interpret the term
``public accommodations facility'' as used in the Virginia Graeme Baker
Pool and Spa Safety Act.
DATES: Written comments in response to this document must be received
no later than December 21, 2010.
ADDRESSES: You may submit comments, identified by Docket No. CPSC-2010-
0102, by any of the following methods:
Electronic Submissions
Submit electronic comments in the following way: Federal
eRulemaking Portal: https://www.regulations.gov. Follow the instructions
for submitting comments. To ensure timely processing of comments, the
Commission is no longer accepting comments submitted by electronic mail
(e-mail) except through https://www.regulations.gov.
Written Submissions
Submit written submissions in the following way: Mail/Hand
delivery/Courier (for paper (preferably in five copies), disk, or CD-
ROM submissions), to: Office of the Secretary, Consumer Product Safety
Commission, Room 502, 4330 East West Highway, Bethesda, MD 20814;
telephone (301) 504-7923.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received may be
posted without change, including any personal identifiers, contact
information, or other personal information provided, to https://www.regulations.gov. Do not submit confidential business information,
trade secret information, or other sensitive or protected information
electronically. Such information should be submitted in writing.
Docket: For access to the docket to read background comments or
comments received, go to https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Barbara E. Little, Regulatory Affairs
Attorney, Office of General Counsel, Consumer Product Safety
Commission, 4330 East West Highway, Bethesda, Maryland 20814-4408;
blittle@cpsc.gov.
SUPPLEMENTARY INFORMATION:
A. Background
The Virginia Graeme Baker Pool and Spa Safety Act, 15 U.S.C. 8001,
(``VGB Act'' or ``Act'') requires that drains in public pools and spas
be equipped with ASME/ANSI A112.19.8 compliant drain covers, and that
each public pool and spa with a single main drain other than an
unblockable drain be equipped with certain secondary anti-entrapment
systems. Section 1404(c) of the Act. The Act defines ``public pool and
spa'' in relevant part as a ``swimming pool or spa that is open
exclusively to patrons of a hotel or other public accommodations
facility.'' Section 1404(c)(2)(B)(iii) of the Act. The Act does not
define the term ``public accommodations facility.''
In response to numerous inquiries regarding what constitutes a
public accommodations facility under the VGB Act, the Commission
published a proposed interpretive rule on the definition of ``public
accommodations facility'' on March 15, 2010 (75 FR 12167). The proposed
interpretive rule would interpret ``public accommodations facility'' to
mean: ``An inn, hotel, motel, or other place of lodging, except for an
establishment located within a building that contains not more than
five rooms for rent or hire and that is actually occupied by the
proprietor of such establishment as the residence of such proprietor.''
CPSC received six comments on the proposed interpretive rule,
including two comments from State health departments, one from the
Tennessee Hospitality Association, one from an
[[Page 65262]]
individual, one from a manufacturer, and one from members of Congress.
CPSC staff prepared a draft final interpretative rule for the
Commission's approval, but, on August 4, 2010, the Commission voted to
withdraw the proposed interpretive rule and to direct CPSC staff to
draft a new proposed interpretive rule with a 60 day comment period and
interpreting ``public accommodations facility'' as ``an inn, hotel,
motel, or other place of lodging, including, but not limited to, rental
units rented on a bi-weekly or weekly basis.'' This proposed
interpretive rule is in response to the Commission's vote; elsewhere in
this issue of the Federal Register, we have published a document
announcing the withdrawal of the proposed interpretive rule that was
published in the Federal Register March 15, 2010.
B. Legal Analysis
1. Public Pool or Spa. A public pool or spa open exclusively to
patrons of a hotel or other public accommodations facility is only one
category of public pools and spas under the VGB Act. The Act also
defines a public pool and spa to include a swimming pool or spa that
is:
Open to the public generally, whether for a fee or free of
charge (Section 1404(c)(2)(A) of the Act);
Open exclusively to members of an organization and their
guests (Section 1404(c)(2)(B)(i) of the Act);
Open exclusively to residents of a multi-unit apartment
building, apartment complex, residential real estate development, or
other multi-family residential area (other than a municipality,
township, or other local government jurisdiction) (Section
1404(c)(2)(B)(ii) of the Act); and
Operated by the Federal Government (or by a concessionaire
on behalf of the Federal Government) for the benefit of members of the
Armed Forces and their dependents or employees of any department or
agency and their dependents (Section 1404(c)(2)(C) of the Act).
This proposed interpretive rule is limited to the interpretation of
``public accommodations facility.''
2. Comparable Federal Statutes. The term ``public accommodation''
is defined in several other Federal statutes in relevant part as ``an
inn, hotel, motel, or other place of lodging.'' (See, e.g., the
Americans with Disabilities Act (ADA), 42 U.S.C. 12181(7), defining
``public accommodation'' in relevant part as ``an inn, hotel, motel, or
other place of lodging, except for an establishment located within a
building that contains not more than five rooms for rent or hire and
that is actually occupied by the proprietor of such establishment as
the residence of such proprietor.'' See also, the Federal Fire
Prevention and Control Act of 1974 (FFPCA), 15 U.S.C. 2201 et seq., at
section 2203(7); the Civil Rights Act (CRA), 42 U.S.C. 1981 et seq., at
section 2000(b).) The Commission intends to incorporate this language
into its proposed definition for ``public accommodations facility.''
The ADA, FFPCA, and CRA exclude from the definition of public
accommodation an establishment located within a building that contains
not more than five rooms for rent or hire that is actually occupied as
a residence by the proprietor of such establishment. While there may be
a rationale for this exclusion in the context of these other Federal
statutes, the Commission sees no basis for this exclusion in the
context of pool and spa safety. The number of units in an establishment
bears no relationship to whether a pool or spa on the premises may
contain a safety hazard to the patrons of such an establishment. Thus,
the proposed definition would not contain an exclusion for an
establishment with five or fewer units for rent or hire.
3. ``Other Place of Lodging.'' The Commission's proposed
interpretation of ``public accommodations facility'' would include the
phrase ``other place of lodging.'' The Commission intends to follow the
legal precedent of the ADA in interpreting this term. The legislative
history to the ADA provides that the phrase ``other places of lodging''
does not include residential facilities. H.R. Resp. No. 101-485(11),
101st Cong., 2d Sess. 383 (1990), reprinted in U.S. Code Cong. & Admin.
News 1990, at p. 267. The Appendix to the ADA regulations explains that
the rationale for excluding solely residential facilities from the
category places of lodging is ``because the nature of a place of
lodging contemplates the use of the facility for short term stays.'' 28
CFR App. B, Sec. 36.104, p. 614-615 (1997). Thus, a residential
facility is excluded from the definition of public accommodation.
However, under relevant ADA precedent, if the facility were to offer a
significant number of short term stays, it would lose its
characterization as a residential facility and become a ``place of
lodging,'' thereby a public accommodation. Letters from the Department
of Justice and case law illustrate this point. See, e.g., Letter from
Joan A. Magagna, Deputy Chief, Public Access Section, U.S. Department
of Justice (June 15, 1993) (condominium complex does not constitute a
place of public accommodation, assuming it does not offer such short
term stays that it could be considered a place of lodging); see also
Access 4 All, Inc. v. The Atlantic Hotel Condominium Ass'n, 2005 U.S.
Dist. LEXIS 41601 (November 22, 2005) (condominium buildings may be
covered as places of public accommodation if they operate as places of
lodging; determining whether a particular condominium facility is a
place of public accommodation would depend on the extent to which it
shares characteristics normally associated with a hotel, motel, or
inn); Thompson v. Sand Cliffs Owners Ass'n, Inc., 1998 U.S. Dist. LEXIS
23632 (1998) (according to the commentary related to the ADA
regulations, the difference between a residential facility and a non-
residential ``place of lodging'' is the length of the occupant's stay;
the nature of a place of lodging contemplates the use of a facility for
short-term stays). The Commission intends to use the same criteria as
that found in the ADA regulations, legislative history, case law, and
DOJ guidance regarding whether a particular facility is residential in
nature or, alternatively, an ``other place of lodging'' subject to the
provisions for public accommodations facilities under the VGB Act. To
make this clear, the proposed interpretive rule would include the
phrase, ``including, but not limited to, rental units rented on a bi-
weekly or weekly basis.'' (Note that while a residential apartment
complex would be excluded from the definition of ``public
accommodations facility'' under the ADA, a pool or spa located in a
residential apartment complex would not be excluded from the definition
of a public pool or spa under the VGB Act because section
1404(c)(2)(B)(ii) of the Act includes pools or spas open exclusive to
``residents of a multi-unit apartment building, apartment complex,
residential real estate development, or other multi-family residential
area'' within the definition of ``public pool or spa.'')
Thus, for example, for spas within individual condominium units or
mountain lodge homes, the inquiry would involve determining whether the
condominium unit or mountain lodge itself shares characteristics with
inns, hotels, or motels, or whether the unit is rented for a sufficient
number of short-term stays such that it becomes a ``place of lodging''
and thus a public accommodations facility. These determinations are
fact-specific, and the Commission will rely on the same criteria as
that used by courts and the Department of Justice in making such
determinations.
[[Page 65263]]
C. Description of the Proposed Interpretive Rule
The proposed interpretive rule would amend part 1450. Section
1450.1, Scope, would explain that part 1450 pertains to the Virginia
Graeme Baker Pool and Spa Safety Act and that the statute is designed
to prevent child drowning, drain entrapments, and eviscerations in
pools and spas.
Section 1450.2, Definitions, would define ``public accommodations
facility'' at paragraph (a) as ``an inn, hotel, motel, or other place
of lodging, including, but not limited to, rental units rented on a bi-
weekly or weekly basis.''
List of Subjects in 16 CFR Part 1450
Consumer protection, Infants and children, Law enforcement.
E. Conclusion
For the reasons stated above, the Commission proposes to amend part
1450 of title 16 of the Code of Federal Regulations as follows:
PART 1450--VIRGINIA GRAEME BAKER POOL AND SPA SAFETY ACT
REGULATIONS
1. The authority citation for part 1450 continues to read as
follows:
Authority: 15 U.S.C. 2051-2089, 86 Stat. 1207; 15 U.S.C. 8001-
8008, 121 Stat. 1794.
2. Section 1450.1 is added to read as follows:
Sec. 1450.1 Scope.
This part pertains to the Virginia Graeme Baker Pool and Spa Safety
Act, (``Act''), 15 U.S.C. 8001 et seq., which is designed to prevent
child drowning, drain entrapments and eviscerations in pools and spas.
3. Add paragraph (a) to Sec. 1450.2 to read as follows:
Sec. 1450.2 Definitions.
(a) Public accommodations facility means an inn, hotel, motel, or
other place of lodging, including, but not limited to, rental units
rented on a bi-weekly or weekly basis.
* * * * *
Dated: October 15, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2010-26520 Filed 10-19-10; 8:45 am]
BILLING CODE 6355-01-P
