Safety and Advocacy Education Opportunities Abound at IAAPA Attractions Expo 2011

IAAPA Attractions Expo 2011 is just around the corner (it starts two weeks from today)! Here are some can’t-miss Safety and Advocacy-related education sessions:

The recent adoption of recreation rules to the Americans with Disabilities Act has left facility operators with lots of questions. The good news is IAAPA is here to help. The Americans with Disabilities Act and the Attractions Industry session (Tuesday, Nov. 15, 3:30 p.m.) will cover miniature golf courses, amusement rides, water attractions, play structures, and other elements commonly found in attractions facilities. There will be an ample Q&A period, so bring your most challenging questions for our experts.

Want to learn more about legislative and regulatory challenges facing the J1 Summer Work Travel program and the H2B Temporary Foreign Labor program? Consider attending our Immigration and Employment session (Thursday, Nov. 17, 3:30 p.m.). A panel of industry members and government officials will discuss the cultural benefits international Summer Work Travel students can provide your facility. Also learn about recent restrictive regulatory changes to the H2B temporary foreign worker program, and the current legal challenge to fight them.

You know the impact increased regulation can have on your business. The Safety and Regulations session (Thursday, Nov. 17, 3:30 p.m.) will provide you with information on what’s coming next from OSHA and other regulators so you can be ahead of the curve.

At the Legal Roundtable (Thursday, Nov. 17, noon) we will discuss recent case law and its effect on the attractions industry, including Nalwa v. Cedar Fair, LP, which has the potential to impact not just the attractions industry in California, but across the country. You won’t want to miss this discussion.

A crisis can happen at any time, in any place. The U.S. Department of Homeland Security will present free toolkits, training, and information that will help you get your facility prepared for natural disasters, active shooters, or acts of terrorism during Hot Topics in Government Relations (Thursday, Nov. 17 5 p.m.). During this session we will also discuss the recent repeal of the interpretative definition of "unblockable drain" under the VGB and what that means for the industry.

H-2B Update

On Jan. 19, 2011, the U.S. Department of Labor published a Final Rule that revised the methodology by which the Department calculates prevailing wages under the H-2B program. As the result of a court case, on Aug. 1, 2011, the Department amended that rule to make wage rates established under this new methodology effective for wages paid to H-2B workers and U.S. workers recruited in connection with an H-2B labor certification for all work performed on or after Sept. 30, 2011.

However, on Sept. 28, 2011, the Department announced in the Federal Register a 60-day postponement of the effective date of the Wage Final Rule to Nov. 30, 2011. This delay will permit the various courts involved in litigation relating to the Wage Final Rule to determine the appropriate venue to resolve all claims and to allow the Department to avoid the possibility of administering the H-2B program under potentially conflicting court orders.

To learn more about the new prevailing wage rule, and the various legal challenges, be sure to attend the Immigration and Employment session at IAAPA Attractions Expo 2011. The session will be held Thursday, Nov. 17, at 3:30 p.m. at the Orange County Convention Center in Orlando.

CPSC Repeals Definition of Unblockable Drain

On Wednesday, Sept. 30, the U.S. Consumer Product Safety Commission (CPSC) voted to revoke its previous interpretative definition of an unblockable drain under the Virginia Graeme Baker Pool & Spa Safety Act (VGB). This action means that a blockable drain cannot be made unblockable by use of a cover alone.

Background
The CPSC approved the following interpretation of an "unblockable drain" on April 27, 2010:
A suction outlet defined as all components, including the sump and/or body, cover/grate, and hardware such that its perforated (open) area cannot be shadowed by the area of the 18" x 23" Body Blocking Element of ASME/ANSI A112.19.8-2007 and that the rated flow through the remaining open area (beyond the shadowed portion) cannot create a suction force in excess of the removal force values in Table 1 of that Standard. All suction outlet covers, manufactured or field-fabricated, shall be certified as meeting the applicable requirements of the ASME/ANSI A112.19.8 standard.

Under this interpretation, when a drain cover meeting certain specifications was attached to a drain, the covered drain constituted an "unblockable drain." As an unblockable drain, this drain did not require a secondary anti-entrapment system.

As a result of the vote, a drain cover can no longer be used to convert a blockable drain into an unblockable drain. Drains that are blockable require a secondary anti-entrapment system.

Secondary systems permitted under the VGB include:
• Safety vacuum release system
• Suction-limiting vent system
• Gravity drainage system
• Automatic pump shut-off system
• Drain disablement; and/or
• Any other system determined by the Commission to be equally effective as, or better than, the enumerated systems at preventing or eliminating the risk of injury or death associated with pool drainage systems.

Compliance with this change is required by May 28, 2012.

Prior to the vote, IAAPA submitted a letter to the CPSC, outlining the waterpark industry's issues with repealing the interpretative definition. However, in discussions with the CPSC, we learned the vote was pre-determined, and was held to allow Commissioner Bob Adler to change his previous vote in favor of the definition.

Comment Period The CPSC will accept comments on the compliance deadline for 60 days. The comment period will close Dec. 12, 2011.

When an agency opens a comment period, it must address all comments submitted, so waterpark operators are encouraged to submit comments outlining all concerns with the revocation of the CPSC’s interpretation.

More information IAAPA staff and industry experts will lead a discussion of this most recent VGB action at the "Hot Topics in Government Relations" session at IAAPA Attractions Expo 2011 in Orlando. The session will take place Thursday, Nov. 17, at 5 p.m. in the Orange County Convention Center.

Markey re-introduces federal ride safety bill

Yesterday, Congressman Ed Markey (D-Mass.) reintroduced his legislation that would bring fixed-site amusement park rides under the jurisidiction of the United States Consumer Product Safety Commission (CPSC). The bill number is H.R. 2861.

This morning, IAAPA President and CEO Chip Cleary released a statement opposing the legislation. The attractions industry is already safe and well regulated. Congressman Markey's legislation would do nothing to improve the strong safety record of amusement park rides in the United States.

We will continue to monitor this legislation closely.

New Resources for U.S. FECs

I just posted the new ADA white paper for miniature golf courses and supplementary small business primer on our ADA web page.

Together, these materials cover the 2010 Standard and compliance strategies for both new and existing miniature golf courses, as well as barrier removal obligations and general nondiscrimination requirements.

Compliance with the 2010 Standard is required for courses built or permitted after March 15, 2012. Compliance with general nondiscrimination requirements, such as service animals is already required for recreational facilities. Barrier removal obligations are ongoing, but IAAPA recommends facility owners begin assessing their courses and formulating a barrier-removal plan as soon as possible.

There are still some outstanding questions about the new rule's application to miniature golf courses, and IAAPA is in contact with the U.S. Department of Justice on these issues. As we get answers, we will update the whitepaper and notify members. If you have questions that you would like us to ask DOJ on your behalf, please contact us at gr@IAAPA.org.

The end of employment background checks?

On July 26, the U.S. Equal Employment Opportunity Commission held a meeting to discuss the use of criminal background checks in the hiring process. This is thought to be the first step in the process of changing the current guidelines on background checks. The EEOC left the hearing record open for 15 days after the meeting so that interested parties could file comments on the issue.

The ability to ask an applicant if he or she has been convicted of a felony then run a background check if necessary can be an important HR tool for IAAPA members. IAAPA filed its own comment letter on the issue, as well as signing onto the letter from a coalition of businesses that rely on background checks to provide customers with safe products and services.

It is unclear whether the EEOC will continue with this guideline change after considering the comments it receives or what exactly the new guidelines will say. IAAPA will continue to monitor this issue and alert members as needed.

Congress passes CPSIA Reform

Yesterday, the U.S. House of Representatives and Senate passed H.R. 2715, which will offer manufacturers of children's products a bit of relief from some provisions of the CPSIA.

A quick summary of provisions that will impact IAAPA members:

Lead Limit
• Includes categorical exclusions for ATVs, dirt bikes, bicycles, and printed materials
• Removes the lead limits for “used children’s products”
• Applies prospective limits from the point of manufacture

Third-Party Testing
• Requires CPSC to seek public comment on ways to reduce burden and cost, specifically requesting information on redundancy with existing testing standards
• Includes testing exceptions for small-batch manufacturers

Phthalates Limit
• Includes an inaccessibility exclusion for phthalates

Database
• Requires CPSC to stay publication for five additional days when the commission receives notice of materially inaccurate information
• Requires CPSC to attempt to get model/serial number or a photo of a product in question

The legislation now goes to President Obama for his approval. Stay tuned for updates.

UPDATE: President Obama signed the legislation into law on August 12, 2011. It is effective immediately.