2010-5130. 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 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 [phone].

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; [e-mail].

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]

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. § 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 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

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

§ 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.

§ 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.

Footnotes

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.