Summary of Factual Data and Analytical Methodologies
Feedback on the rule was solicited from industry stakeholders on ch. ATCP 76, through a series of virtual public open meetings. Topics that were complex were addressed in virtual open public meetings with individuals from the industry who had a strong interest in the topic. Stakeholder feedback was collected from various public pool and water attraction businesses, pool design, construction and technical service industries, industry professional associations, Department, and local health department agent representatives, as well as the Department of Safety and Professional Services. The proposed changes in criteria for license fees were tested by applying the proposed criteria to all state-inspected public pools. The Department continually sought feedback on ch. ATCP 76 from industry members to consider ways to minimize adverse impacts on small business. Analysis and Supporting Documents used to Determine Effect on Small Business
or in Preparation of an Economic Impact Analysis.
The rule is not anticipated to have a major economic effect on pool operators since it primarily replaces and updates current rules. Feedback on the rule was solicited from industry members during the rule revision process.
The proposed rule modifies the criteria for assigning license fees and uses a clearer and simpler licensing model. Instead of licensing by activity area, the licensing model in the revised rule is based on assigning complexity based on basic basin characteristics, and assigning add-on fees based on what is added to the basin. This greatly clarifies the licensing process, and brings the fee for the pool into alignment with the time it takes to inspect it and manage the program.
Three fee models were discussed and one was chosen with input from industry.
The model chosen with industry feedback contains a lower fee increase for a simple pool. The proposed fee increased from $150 to $200 for an annual license. Because almost half of the state-inspected pools are simple in complexity, many operators will benefit from this fee model.
The fee category for moderate complexity, including whirlpools, is now more closely aligned with the time spent by inspectors on enforcement and education, and by the program on consultation and investigation. Whirlpools have more complex chemistry due to their higher water temperatures and the evaporation of chemicals used to control sanitation. Also, whirlpools are more likely than swimming pools to be associated with a Legionella outbreak, if the water chemistry is not carefully controlled. The proposed fee for a moderate pool license is $300, an increase of $150.
The proposed fee category for a complex pool that includes large pools and water attractions is $375, an increase of $225.
The proposed fees are per pool basin and additional fess are applied if the pool basin is also equipped with features.
For example, a pool with a larger basin with features such as slides, waves and pad-walks, requires additional inspection time. A leisure river with slides, for example, is currently $425 per year to license. With the proposed fee structure, it will be complex with features and cost $507, an increase of $82.
Limited-use public pools have a proposed license fee of $150.
Pools and water attractions need a secondary containment system for storage of disinfectants or acids. An estimated cost for the container is $85 to $200.
Although, the department has proposed fee increases in the new rule, the department has also communicated with industry to find alternative methods that will reduce the overall cost to maintain a swimming pool, whirlpool or water attraction. The following are examples of cost savings to pool operators:
By eliminating the need for a variance and allowing flexibility of operation, a pool operator could experience lower operating costs and a direct reduction in cost to operate a pool telephone. A pool operator may now provide a phone with a cellular 911 service option with an approximate $400 one-time cost compared to the current land line requirement that costs as much as $1000-$1800 per year.
For pool operators who fail to maintain active managerial control of risks at their pool, there would be a proposed cost of $300-$500, to obtain pool operator certification. Failure to maintain active managerial control means that critical or numerous items are found during two inspections in a three year period, making the pool more amenable to illnesses and serious accidents.
Fiscal Estimate and Economic Impact Analysis
The Fiscal Estimate and Economic Impact Analysis is attached.
Effect on Small Business
The Department’s Regulatory Review Coordinator may be contacted by:
Telephone: (608) 224-5024
Department Contact Person
Caitlin Jeidy, Program and Policy Analyst – Advanced
Division of Food and Recreational Safety
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone: (608) 224-4696
Where and When Comments May Be Submitted
Questions and comments related to this this rule may be directed to:
Caitlin Jeidy, Program and Policy Analyst – Advanced
Division of Food and Recreational Safety
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone: (608) 224-4696
Comments will be accepted up to two weeks after the last public hearing is held on this rule. Hearing dates will be scheduled after this hearing draft rule is approved by the board of agriculture, trade and consumer protection.
RULE TEXT
SECTION 1. ATCP 76 is repealed and recreated to read:
Subchapter I
Administration
ATCP 76.01 Authority and purpose. This chapter is promulgated pursuant to ss. 97.67 (1), (4) and 227.11 (2) (a), Stats., to prescribe rules for the maintenance and operation of public swimming pools and water attractions for enforcement by the department and agent local health departments to protect public health and safety. ATCP 76.02 Scope. (1) APPLICABILITY. This chapter applies to all public pools and water attractions, except that Subchapter VII, applies only to limited-use public pools.
(a) Pool or water attraction. A pool or water attraction is a public pool or water attraction if it serves or is installed for use by the state, a political subdivision of the state, a motel, a hotel, a resort, a camp, a campground, a club, an association, a housing development, an apartment complex with 3 or more dwelling units, condominium complex, or housing complex having homeowners’ association, a school, a religious, charitable or youth organization, an educational or rehabilitative facility.
(b) Limited-use public pool. A pool is considered a limited-use public pool if the pool is advertised for use to the general public and is associated with one or two family dwelling that is not part of a condominium association.
((c) Reference to the term “pool”. Unless the context clearly indicates otherwise, references to “pool” in these rules means a public pool, water attraction or a limited-use public pool.
(2) VARIANCES. When it appears to the department that strict adherence to a provision of this chapter is impractical for a particular pool, the department may approve a variance from that provision requested by that pool operator if the operator provides the department with satisfactory proof that the approval of the variance will not jeopardize the public’s health, safety, or welfare.
(3) PROCEDURE FOR VARIANCE REQUEST. (a) Application. Request for modification or waiver of a requirement of this chapter shall be submitted in writing to the department or its agent having jurisdiction, along with documentation specified in par. (d).
(b) Local review. A local inspector shall review the request and forward it to the department with recommendations for approval or disapproval.
(c) Department action on a variance. On receipt of a complete variance request as specified in this section, the department shall review the request and grant or deny the request in writing within 30 working days. A variance approved by the department shall be made conditional for a defined period of time, or shall expire 5 years from the date of issuance. The department or its agent shall maintain a copy of the variance in the license holder’s inspection history file.
(d) Application contents. Documentation justifying a proposed variance from the requirements of this chapter shall include the following information:
1. A statement of the proposed variance from this chapter requirement citing relevant chapter location numbers;
2. The rationale for how the potential public health hazards and nuisances addressed by the relevant chapter section will be alternatively addressed by the proposed variance.
(4) CONFORMANCE WITH AN APPROVED VARIANCE. If the department grants a variance as specified in sub. (2), the license holder shall: (a) Conditions. Comply with the department’s conditions for the variance approval P and
(b) Retention. Maintain a copy of the approved variance at the pool.
(5) TRANFERABILITY. An approved variance is not transferable to any other pool, entity, or licensee.
(6) REISSUANCE. A license holder who wishes to continue a variance after its expiration shall:
(a) Request for reissuance. File a request with the department for reissuance of the variance at least 30 days prior to its expiration, unless permission for a later date has been granted by the department.
(b) Continued validity. When a license holder has made timely and sufficient application for the reissuance of a variance in reference to any activity of a continuing nature, the existing waiver does not expire until the application has been finally acted upon by the department.
Note: To obtain a form for requesting a variance, e-mail datcpdfrsrec@wisconsin.gov or contact the Bureau of Food and Recreational Businesses at (608) 224−4702 or PO Box 8911, Madison, Wisconsin 53708−8911. ATCP 76.03 Definitions. In this chapter:
(1) “Active Managerial Control” means that the risks at the pool are being managed so that the pool is in compliance pursuant to ch. ATCP 76, or conditions are monitored so that corrections necessary for compliance are in progress. (2) “Activity pool” means a water attraction with a depth greater than 24 inches or 61 centimeters designed primarily for play activity that uses constructed features and devices including pad walks, flotation devices, and similar attractions.
(3)“Administrative follow-up” means a type of inspection in lieu of a reinspection. The administrative follow-up does not require an in-person visit to the facility because the corrective action can be validated through electronic or other effective means.
(4)“Adult” means a person 18 years of age or older.
(5) “AED” means automated external defibrillator.
(6)“Agent” means the city, county or village designated by the department pursuant to s. 97.615 (2), Stats., and ch. ATCP 74, to issue licenses to and make investigations or inspections of public pools and water attractions. (7)“Analyte” means a substance that a test is used to detect.
(8)“Approved” means acceptable to the department, based on its determination of conformance with this chapter and good public health practices.
(9)“Attendant” means a person trained to control patrons in a safe and orderly manner.
(10) “Barrier” means a fence, wall or similar structure meeting the requirements pursuant to s. SPS 390.18 (4). (11) “Basin” means any vessel constructed of manmade materials designed to hold water to be used as a public swimming pool or water attraction, the splash zone of an interactive play attraction, or a stand-alone run-out slide.
(12)“Breakpoint chlorination” means establishing a hygienic environment in the pool by raising the free available chlorine level to 10 times the combined chlorine level to achieve the destruction of chloramines.
(13) “Certified operator” means an operator who is certified by successful completion of at least one of the following training courses:
(a) The Pool and Hot Tub Alliance certified pool operator course.
(b)The National Recreation and Park Association aquatic facility operator course.
