Statement of Scope
Department of Agriculture, Trade and Consumer Protection
Rule No.: | Chapter ATCP 76, Wis. Adm. Code (Existing) |
Relating to: | Safety, Maintenance, and Operation of Public Pools and Water Attractions |
1. Finding/nature of emergency (Emergency Rule only):
N/A
2. Detailed description of the objective of the proposed rule:
The objectives of the proposed rule revision are to:
a. Consider expanding, clarifying, or eliminating definitions. Revising the definitions section could provide clarity to the terms that are vague or undefined. Expanding the definitions to include more examples could further clarify terms used throughout the rule.
b. Consider harmonizing state rule requirements with federal requirements and recommendations, thereby addressing public health problems not foreseen at the time of the last rule revision (2007). Making these changes could increase consistency, better ensure public safety, and aid pool operators in achieving compliance. Examples of topics for consideration include:
- Virginia Graeme Baker Pool and Spa Safety Act (VGBA): Federal requirements intended to prevent swimmer suction entrapment in pool drains.
- Americans with Disabilities Act (ADA): Federal requirements for accessibility.
- Updated best practices for pool fecal incident response from the Centers for Disease - Control and Prevention (CDC).
c. Consider codifying frequently-approved variance conditions that achieve comparable compliance with public health standards. Examples include variances for the location of first aid kits, drinking fountains, and emergency phones. These changes could allow more flexibility for pool operators in meeting rule requirements.
d. Consider requirements for flow sensors and electrical interconnection on both disinfectant and acid feeder systems intended to prevent unintended chemical releases.
e. Consider setting requirements for proper use of carbon monoxide detection devices to protect against pool emergencies caused by fuel-burning pool heaters.
f. Consider making the rule easier to use by replacing text with tables.
g. Consider adopting relevant national best practices found in the Model Aquatic Health Code (MAHC). The MAHC is a comprehensive code that provides standards for pool design, and pool construction, safety, maintenance and operation. The MAHC is a voluntary national pool code that has been created by members of the Council for the Model Aquatic Health Code. The Council is comprised of pool service and sales professionals, pool safety researchers, health and safety regulators, pool designers, engineers, contractors, and medical professionals. The MAHC is sponsored by the CDC and is periodically revised to better protect health and safety.
h. Consider updating the proposed rule to address additional causes of illness, drownings, near-drownings, and chemical release events. Updating requirements could improve the health and safety of pool staff and swimmers. Since 2007, the food and recreational safety program has collected incident forms and conducted investigations surrounding severe injuries, illnesses, deaths, near-drowning, and drowning incidents. These data support eliminating current rules for lifeguard or attendant staff i.e. there is a lack of reported incidents. Examples of rule changes that might decrease adverse events include, but are not limited to, requiring lifeguard or attendant staff for specific types of pools, water features, or activities, and clarifying requirements for the minimum number of pool staff, their locations, roles, and responsibilities. Consideration could be given to the required type and location of certain rescue equipment items. Specific requirements pertaining to chemical distribution devices and equipment associated with the recirculation system could also be considered.
i. Consider clarifying the term “imminent hazard.” The presence of an imminent hazard has long been regarded as justification for a pool closure to prevent serious injury, illness, and death. By extensively listing examples of imminent hazards, the revised rule could more clearly specify what events or observations lead to a pool closing. Improved clarity could reduce confusion for pool operators as well as staff of the Department and local health departments serving as agents of the Department.
j. Consider creating a variance process, or revising the “approved comparable compliance” process currently found in ATCP 76.03, to provide the pool industry increased flexibility to incorporate newer products, equipment, and technology shown to adequately protect public health, increase cost effectiveness, and decrease labor costs.
k. Consider requiring all pools larger than a to-be-determined size to have a Certified Pool Operator (CPO) on staff. Currently only a pool categorized as a water attraction must be supervised by a CPO. The Department has collected pool inspection violation data for over five years and, in each year, the most common violations across “regular” pools and water attractions (accounting for 15% of total violations) are related to basic water quality maintenance. The CPO training is the primary venue for learning how to properly maintain pool water quality. If an increased proportion of licensed pools and water attractions are supervised by a CPO, there is a decreased likelihood of water quality problems, and chemical-associated hazards to patrons. Having a CPO on staff may also reduce facility insurance liability.
L. Consider updating the licensing structure and fees to better reflect the risk and complexity of pool design, operation, and the amount of time required for the Department to complete inspections. The range of pool designs has drastically increased over the last decade. Many designers now create pools with multiple sections and various activity types that remain connected via a single water supply and circulation system. There are also new features and designs that are not currently addressed in rule but are considered high-risk, such as zip lines, climbing walls, and mobile pools. The current rule does not clearly address licensing in these situations.
m. Consider assigning a level of risk to each type of violation. This could help clarify to stakeholders how a component of a swimming pool or water attraction could present risk to the general public.
3. Description of the existing policies relevant to the rule, new policies proposed to be included in the rule, and an analysis of policy alternatives:
The Department strives to provide a regulatory climate that protects public health without unnecessarily hindering innovation. With the passage of time the current rule has become less amenable to industry innovation. Nonetheless, the Department has tried to remain flexible in its interpretation of rules so that new features at water attractions may be utilized, but in a manner that protects public safety, as generally required by the rule. This overarching Department policy is not expected to be changed by updating the rule. However, Department interpretations should be, to the extent possible, included in the rule, so that there is an opportunity for thorough vetting in the rule revision process, and the balance between allowing industry innovation and maintaining safety is transparent to all stakeholders.
The alternative to updating the rule would be to continue as is, attempting to continue to apply the existing rule to new methods, innovations and trends not currently addressed or permitted. Industry groups and stakeholder associations generally find this alternative unacceptable and are eager for the rule be updated to reflect current industry practices and trends that can be utilized safely by the public.
4. Detailed explanation of statutory authority for the rule (including the statutory citation and language):
97.67 Recreational licenses and fees.
97.67(1)(1) Except as provided in sub. (1g) and s. 93.135, the department or a local health department granted agent status under s. 97.615 (2) shall issue licenses to and regulate campgrounds and camping resorts, recreational and educational camps and public swimming pools. No person or state or local government who has not been issued a license under this section may conduct, maintain, manage or operate a campground and camping resort, recreational camp and educational camp or public swimming pool, as defined by departmental rule.
