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[Federal Register: October 22, 2010 (Volume 75, Number 204)]
[Proposed Rules]               
[Page 65261-65263]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22oc10-25]                         

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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.

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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: http://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 http://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  http://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 http://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
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