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[Federal Register: March 15, 2010 (Volume 75, Number 49)]
[Proposed Rules]               
[Page 12167-12168]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15mr10-18]                         

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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 issuing this proposed rule to interpret the term ``public 
accommodation'' 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 April 14, 2010.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2010-
0018, 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'' to include 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 term ``public accommodations 
facility'' is not defined in the Act.
    The Commission has received numerous inquiries regarding what 
constitutes a public accommodations facility under the VGB Act. This 
proposed interpretive rule would define ``public accommodation'' as the 
term in used in the Virginia Graeme Baker Pool and Spa Safety Act.\1\
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    \1\ The Commissioners voted 4-1 (Commissioner Robert Adler 
dissenting) to issue this proposed interpretive rule. Commissioner 
Robert Adler filed a statement, a copy of which is available from 
the Office of the Secretary or on the Commission's Web site at 
http://www.cpsc.gov.
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B. Legal Analysis

    In adopting a reasonable interpretation of ``public accommodations 
facility,'' the Commission examined how other federal statutes define 
this same term. The Americans with Disabilities Act (ADA) defines 
``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'' (emphasis added). 42 U.S.C. Sec.  
12181(7). Under this definition, pools or spas found at bed and 
breakfasts with five or fewer rooms for rent or hire and that are 
actually occupied by the proprietor would not be considered ``public 
pools or spas'' under the VGB Act, nor would pools or spas that are 
located on single family home rental properties.
    The Civil Rights Act (CRA) employs the same definition of ``public 
accommodation'' in relevant part as does the ADA, i.e., ``any inn, 
hotel, motel, or other establishment which provides lodging to 
transient guests, other than an establishment located within a building 
which contains not more than five rooms for rent or hire and which is 
actually occupied by the proprietor of such establishment as his 
residence'' (emphasis added). 42 U.S.C. 2000(b). This definition, then, 
is used in two prominent federal statutes addressing civil rights. 
Operators of inns, hotels, and lodging establishments likely are aware 
of these statutes addressing civil rights and the definitions they 
employ.
    The phrase ``public accommodation'' also appears in a Federal 
statute administered by the CPSC. Section 104(c) of the Consumer 
Product Safety Improvement Act of 2008 (CPSIA) provides that it is a 
violation of the Consumer Product Safety Act for ``any person to which 
this subsection applies to manufacture * * * or otherwise place in the 
stream of commerce a crib that is not in compliance with a

[[Page 12168]]

standard promulgated under subsection (b) [of section 104].'' Section 
104(c)(2)(D) of the CPSIA provides, in relevant part, that section 
104(c) of the CPSIA applies to any person who ``owns or operates a 
public accommodation affecting commerce (as defined in section 4 of the 
Federal Fire Prevention and Control Act of 1974 (FFPCA) (15 U.S.C. 
2203)'' (emphasis added). Section 4 of the FFPCA defines a place of 
public accommodation as ``any inn, hotel, or other establishment not 
owned by the Federal Government that provides lodging to transient 
guests, except that such term does not include an establishment treated 
as an apartment building for purposes of any State or local law or 
regulation or an establishment located within a building that contains 
not more than 5 rooms for rent or hire and that is actually occupied as 
a residence by the proprietor of such establishment'' (emphases added). 
15 U.S.C. 2203(7). The FFPCA contains the same exclusion from public 
accommodation as do the ADA and CRA; in other words, all three statutes 
exclude an establishment located within a building that contains not 
more than five rooms for rent or hire and that is actually occupied as 
a residence by the proprietor of such establishment. The FFPCA, like 
the VGB Act, is a statute intended to promote public safety. Further, 
the FFPCA's definition is used in the CPSIA, a statute which is 
administered by the CPSC. Parties familiar with the CPSC may already be 
familiar with the definition of ``public accommodation'' as used in the 
CPSIA. Thus, the Commission believes it is appropriate to enforce the 
same interpretation of the phrase ``public accommodation'' in the VGB 
Act as used in the CPSIA, especially given the similar public safety 
goals of the statutes.

List of Subjects in 16 CFR Part 1450

    Consumer protection, Infants and children, Law enforcement.

C. Conclusion

    For the reasons stated above, the Commission proposes to amend 
chapter II of title 16 of the Code of Federal Regulations by adding a 
new part 1450 to read as follows:

PART 1450--VIRGINIA GRAEME BAKER POOL AND SPA SAFETY ACT 
REGULATIONS

Sec.
1450.1 Scope.
1450.2 Definitions.

    Authority:  15 U.S.C. 2051-2089, 86 Stat. 1207; 15 U.S.C. 8001-
8008, 121 Stat. 1794


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.


Sec.  1450.2  Definitions.

    (a) Public accommodations facility means 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.
    (b) [Reserved.]

    Dated: March 4, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2010-5130 Filed 3-12-10; 8:45 am]
BILLING CODE 6355-01-P
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