Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Proposed Rules 65261 

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: 

§ 922.122 Prohibited or otherwise 

regulated activities 

(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; 

* * * * * 

(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. 

* * * * * 

§ 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 

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: 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 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
65262 Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Proposed Rules 

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 

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 

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. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Proposed Rules 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: 

§ 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: 

§ 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 

CONSUMER PRODUCT SAFETY 

COMMISSION 

16 CFR Part 1450 

Virginia Graeme Baker Pool and Spa 

Safety Act; Public Accommodation; 

Withdrawal of Proposed Rule 

AGENCY: Consumer Product Safety 

Commission. 

ACTION: Withdrawal of proposed rule. 

SUMMARY: 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 

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’’ 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Proposed rule. 

SUMMARY: 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 


emcdonald on DSK2BSOYB1PROD with PROPOSALS