PROPOSED RULEMAKING
DEPARTMENT OF HEALTH
[28 PA. CODE CH. 18]
Recreational Swimming Establishment Lifeguard Requirements
[32 Pa.B. 4581] The Department of Health (Department) proposes to amend Chapter 18 (relating to public swimming and bathing places) to read as set forth in Annex A.
Purpose of the Proposed Amendments
The act of June 18, 1998 (P. L. 531, No. 75) (Act 75), amending the Public Bathing Law (act) (35 P. S. §§ 672--680d), directed the Department to select and identify authorities to certify lifeguards and to promulgate regulations to determine the number of lifeguards required at a recreational swimming establishment when the recreational swimming establishment is open to the public. The Department is proposing these amendments in consultation with established certifying authorities and recreational swimming establishments.
Act 75 granted authority to the Department to promulgate regulations to require an adequate number of certified lifeguards at certain types of swimming facilities. Application of these lifeguard requirements is limited to ''recreational swimming establishments'' as defined in Act 75. Two major factors governing the applicability of the regulations are that the recreational swimming establishment must be open to the public and charge a fee for admission.
The lifeguard requirements of Act 75 and the regulations are intended to enhance public safety by requiring adequate lifeguard coverage at recreational swimming establishments and by setting forth requirements for the certification of lifeguards. The provisions of current § 18.42 (relating to lifeguards) requiring lifeguard coverage for public bathing places, were invalidated by the Pennsylvania Supreme Court in 1990 as exceeding the promulgating agency's regulatory authority. Spooner v. Secretary of Commonwealth, 574 A.2d 600 (Pa. 1990), aff'g per curiam, 539 A.2d 1 (Pa. Cmwlth. 1988). The Conservation and Natural Resources Act (71 P. S. §§ 134.101--134.103), which dismantled the former Department of Environmental Resources and transferred certain powers and duties to other agencies, also required the Department to administer the act. The Department is proposing to delete the inoperative language from § 18.42 and add language that corresponds to the requirements of Act 75.
Requirements of the Proposed Amendments
§ 18.1. Definitions
The Department has proposed to amend this section to add definitions for pertinent terms.
A ''certified lifeguard'' is defined in section 2(5) of the act (35 P. S. § 673(5)) as:
''[A] . . . an individual who has a current certification in lifeguarding from a certifying authority recognized by the Department in a notice published in the Pennsylvania Bulletin.''The Department is proposing to add the statutory definition to this section.
A ''recreational swimming establishment'' is defined in section 2(6) of the act (35 P. S. § 673(6)) as:
''[A] facility that is designed, constructed and/or designated for use by individuals for the primary purpose of swimming, where a fee is charged for admission.''This definition includes, swimming pools, water rides, wave pools and swimming beaches and other outdoor swimming facilities. The term excludes those facilities owned by condominiums, other property owner associations, rental arrangements which include three or more families or social units, hotels or motels, campgrounds, private clubs and private organizations which do not provide access to the general public, swimming facilities used exclusively for hydrotherapy and residential swimming facilities used solely by the owner of a residence, his family and personal guests.
The Department is proposing to add the statutory definition to § 18.1.
The Department is proposing definitions for ''bather,'' ''bather load,'' ''maximum bather load,'' and ''rope and float line'' that are derived from established definitions adopted by the National Spa and Pool Institute. See National Spa and Pool Institute, American National Standard for Public Swimming Pools, ANSI/NSPI--1 (1991).
§ 18.42. Certified lifeguards.
The Department is proposing to change the title of this section to ''certified lifeguards'' to reflect Act 75. Subsections (a) and (b) would be deleted and replaced by new subsections (a)--(d).
Subsection (a)
The Department has identified the American Red Cross, the YMCA and Ellis and Associates as approved lifeguard certifying authorities and has listed them in proposed subsection (a). This is consistent with the practice in various other states, as these organizations are Nationally recognized and accepted lifeguard certifying authorities.
Another authority that provides certification for lifeguards could apply to be approved by the Department as a qualified, certifying authority. Every authority applying for approval must submit materials to the Department on an annual basis to establish that its lifeguard training would satisfy the requirements of proposed subsection (b). The Department would publish a list of approved certifying authorities, on an annual basis, in the Pennsylvania Bulletin.
Subsection (b)
In addition to the American Red Cross, the YMCA and Ellis and Associates, another lifeguard certifying authority may apply to be approved by the Department. Proposed subsection (b) specifies the criteria that would be required for a certifying authority's lifeguard training course to be recognized by the Department. The criteria are based on Nationally recognized lifeguard certifying authority standards and include first aid training, cardiopulmonary resuscitation certification, swimming ability, testing and certification and renewal criteria.
Subsection (c)
This proposed subsection would provide the Department's criteria for determining that a minimum number of certified lifeguards are on duty at a recreational swimming establishment to protect the safety of the public when that establishment is in operation. Traditionally, the number of lifeguards required at public bathing places, absent any National standards, has been based on the surface area of the facility, the user load (number of swimmers in the pool) or a combination of both.
In this proposed rulemaking, the required number of certified lifeguards would be based on a determination of water surface area. Computations based upon water surface area would provide a consistent method for determining the number of lifeguards needed, even though there could be considerable differences in the design, size and type of facility and a variable user load.
Various states employ different standards for determining the appropriate number of lifeguards for a public bathing facility. There is no single industry standard or consensus regarding an appropriate lifeguard ratio. Nationally recognized lifeguard training organizations, such as the American Red Cross and Ellis and Associates, recommend that each lifeguard be able to survey the lifeguard's assigned area every 10 seconds and be able to respond to a distressed swimmer within 20 seconds. This standard, called the ''10/20 rule,'' is the basis upon which the majority of lifeguards are trained.
The Department has held several stakeholder meetings over the past years to gather input from interested parties on recommended lifeguard staffing ratios. Many pool owner/operators base their lifeguard staff ratios on experience. Some owner/operations will staff at higher levels during the peak periods of the day and week (early to mid-afternoon and weekends) and provide lower staff levels during off-peak hours (early morning hours, late evening hours). The majority of the stakeholders have consistently indicated that a staffing ratio based on the number of swimmers (for example, 1 lifeguard for every 70 swimmers) would be impractical and impossible to enforce or monitor, as the pool personnel and lifeguards would constantly be counting swimmers to determine if there is compliance with the regulatory requirements.
The Department has identified recommended lifeguard ratios. These ratios range from one lifeguard for every 2,000 square feet of water surface area, which is supported by the Great Lakes Upper Mississippi River Basin Commission and the National Environmental Health Association, to one lifeguard for every 6,700 square feet of water surface area, under ideal conditions, which is supported by a joint study conducted by the New York State Department of Health and aquatics expert, Pia Consulting. Given that ''ideal conditions'' rarely exist in practice, New York State Department of Health and Pia Consulting further recommend that one lifeguard for 3,400 square feet of water surface area would be sufficient coverage under normal operating conditions. Based on discussions with stakeholders and the available data, the Department is proposing a ratio of one lifeguard for every 4,000 square feet of water surface area during periods when the recreational swimming establishment is open for general purpose swimming. This ratio would provide health and safety protection for swimmers as well as provide a uniform standard that would be easily implemented. The proposed rulemaking includes a provision that provides the pool owner/operator with the option to close portions of the water surface area with a rope and float line during periods when the bather load is low in comparison to the size of the pool.
Proposed subsection (c) would state that a lifeguard, while on duty at the waterside at a facility, may not be assigned to other tasks that would divert the lifeguard's attention from the persons using the facility. Additionally, the Department proposes that, during special events such as swim meets, learn-to-swim programs and lap swimming, at least one lifeguard shall be present whose sole duty is to safeguard the safety of the swimmers in the water. This is based on recommendations from the American Red Cross and Pia Consulting that, even if a swimming instructor or coach is a certified lifeguard, they cannot act simultaneously as an instructor and a lifeguard.
Other provisions for bather safety in proposed subsection (c) relate to wading pools, diving boards and water slides. Proposed subsection (c) would require that, unless there is an unobstructed view of the wading pool from an existing lifeguard station, an additional certified lifeguard be stationed by the wading pool when the recreational swimming establishment is open. Further, if the recreational swimming establishment has a diving board or water slide, a certified lifeguard must be on duty within 50 feet from the diving well or catch area.
The proposed rulemaking provides a very specific and precise formula to calculate the number of certified lifeguards required by a recreational swimming establishment. The formula is capable of a uniform and consistent application by the owners of recreational swimming establishments. Additional assessment by the Department would be triggered only when an unusual configuration of the swimming area compromises the ability of lifeguards to monitor bather safety notwithstanding the regulatory formula for determining the number of lifeguards needed.
The proposed rulemaking identifies three Nationally recognized lifeguard certifying authorities as recognized by the Department. Additionally, the proposed rulemaking lists the specific criteria needed for other lifeguard certifying authorities to be approved by the Department as a recognized lifeguard certifying authority. A list of approved authorities would be published, on an annual basis, in the Pennsylvania Bulletin.
Subsection (d)
Section 8(a) of the act (35 P. S. § 679(a)) requires the Department to enter upon any bathing or swimming place and determine whether the provisions of that act and the rules and regulations of the Department are being satisfied or violated.
If it is determined that a bathing or swimming place is being maintained contrary to those provisions, the facility will be closed to all persons and the bathing or swimming pool is to be drained and kept dry until provision is made to comply with section 8(b) of the act and the Department has given permission to reopen.
If a recreational swimming establishment is found to be in violation of any of the provisions relating to the required number of certified lifeguards, proposed subsection (d) would provide for closing the pool, consistent with Act 75. Unless there are other violations that create a serious risk to the health or safety of the bathers, the Department would not require the pool to be drained. The Department has determined that draining a pool can result in damage to the pool. Also, in a drought or weather conditions limiting the use of water, draining a pool could result in the pool remaining dry and unable to be used for a substantial period of time even after the violations have been corrected.
The Department believes the most practical and efficient provision, consistent with enforcing the requirement that owner/operators of recreational swimming establishments have an adequate number of certified lifeguards on duty at poolside, is to provide for closure of the pool if there is a determination that the facility has an inadequate number of appropriately certified lifeguards. The pool would remain closed until the Department had conducted a reinspection and provided written authorization to reopen to the owner of the recreational swimming establishment.
The Department intends to conduct the reinspection as soon as possible after the facility owner provides notice that the pool is in compliance with regulatory requirements.
Persons and Entities Affected
The proposed rulemaking would affect swimming and bathing facilities, meeting the definition of ''recreational swimming establishment,'' when open for use by the general public and a fee is charged for admission. These establishments would include swimming pools, water rides, wave pools and swimming beaches that are not otherwise excluded by the statutory definition of a ''recreational swimming establishment.'' The proposed rulemaking would enhance the safety of the public when they use recreational swimming establishments.
Cost and Paperwork Estimates
The proposed rulemaking would have little fiscal impact on the Commonwealth, local government, the private sector and the general public. Based on current hiring practices, the Department of Conservation and Natural Resources has estimated it may incur $90,000 in expenses for additional lifeguard salaries.
Most recreational swimming establishments, as defined by Act 75, currently employ lifeguards to protect the safety of their patrons. Many recreational swimming establishments have lifeguard coverage ratios that exceed the standard in the proposed rulemaking; other recreational swimming establishments use a lifeguard coverage ratio that is below the standard in the proposed rulemaking. The exact cost incurred as a result of the proposed rulemaking would depend on the current practices of the individual recreational swimming establishment and the number of additional lifeguards, if any, that would be required to meet the standard in the proposed rulemaking. The costs incurred would primarily be in the form of lifeguard salaries. The proposed rulemaking would not significantly increase paperwork.
Effective Date/Sunset Date
The proposed rulemaking would be effective 60 days after publication of final-form rulemaking. No sunset date has been established. The Department would monitor the effectiveness of the regulations on a continuing basis and as part of the annual sanitary inspections conducted by the Department.
Statutory Authority
The proposed rulemaking is promulgated under the act. Section 3 of the act (35 P. S. § 675.1) requires the Department to determine appropriate authorities to certify lifeguards and to issue regulations to determine the number of lifeguards required at a recreational swimming establishment.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 11, 2002, the Department submitted a copy of this proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House Health and Human Services Committee and the Senate Health and Human Services Committee and the Senate Public Health and Welfare Committee. In addition to submitting the proposed rulemaking, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed rulemaking, it will notify the Department within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria that have not been met by the portion of the proposed rulemaking to which an objection is made. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of objections raised.
Contact Person
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed rulemaking to Dennis C. Wilson, Environmental Health Administrator, Department of Health, Bureau of Community Health Systems, Room 628 Health and Welfare Building, P. O. Box 90, Harrisburg, PA, 17108-0090, (717) 787-4366 within 30 days after publication of this notice in the Pennsylvania Bulletin. Persons with a disability who wish to submit comments, suggestions or objections regarding the proposed rulemaking may do so by using V/TT (717) 783-6514 for speech and/or hearing impaired persons or the Pennsylvania AT&T Relay Service at (800) 654-5984 (TT). Persons who require an alternative format of this document may contact Dennis Wilson so that necessary arrangements may be made.
ROBERT S. ZIMMERMAN, Jr.,
SecretaryFiscal Note: 10-155 Resubmission. (1) General Fund; (2) Implementing Year 2002-03 is $50,000; (3) 1st Succeeding Year 2003-04 is $90,000; 2nd Succeeding Year 2004-05 is $90,000; 3rd Succeeding Year 2005-06 is $90,000; 4th Succeeding Year 2006-07 is $90,000; 5th Succeeding Year 2007-08 is $90,000; (4) 2001-02 Program--$62,483,000; 2000-01 Program--$59,696,000; 1999-00--$58,420,000; (7) State Parks Operations; (8) recommends adoption. No additional costs to the Department of Health. The Department of Conservation and Natural Resources will incur costs, as outlined above, for additional lifeguards to meet requirements.
Annex A
TITLE 28. HEALTH AND SAFETY
PART II. LOCAL HEALTH
CHAPTER 18. PUBLIC SWIMMING AND BATHING PLACES
GENERAL PROVISIONS § 18.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Bather--A person using a recreational swimming establishment in the water or adjoining deck area for the purpose of swimming, water sports or other recreational activity.
Bather load--The total number of bathers in a recreational swimming establishment.
Certified lifeguard--An individual who has a current certificate in lifeguarding, issued by a lifeguard certifying authority, as recognized by the Department in a notice published yearly in the Pennsylvania Bulletin.
* * * * * Department--The Department of Health of the Commonwealth.
* * * * * Maximum bather load--The maximum number of bathers that the recreational swimming establishment is designed to accommodate, as defined in the plans and specifications submitted as part of the permit application using the guidelines set forth in the Department's publication, Public Bathing Place Manual.
* * * * * Recreational swimming establishment--A facility that is designed, constructed or designated for use by individuals for the primary purpose of swimming, if a fee is charged for admission.
(i) The term includes swimming pools, water rides, wave pools and swimming beaches and other outdoor swimming facilities.
(ii) The term excludes those facilities owned by condominiums, other property owner associations, rental arrangements that include three or more families or social units, hotels or motels, campgrounds, private clubs and private organizations which do not provide access to the general public, swimming facilities used exclusively for hydrotherapy, and residential swimming facilities used solely by the owner of a residence, the owner's family and personal guests.
* * * * * Rope and float line--A continuous line, at least 1/4 inch in diameter, that is supported by buoys and attached to opposite sides of a swimming pool.
* * * * *
GENERAL SAFETY § 18.42. [Lifeguards] Certified lifeguards.
(a) [Number. One or more competent lifeguards in adequate number shall be on duty at the waterside at all times the public bathing place is open to use by bathers, and may not be assigned other tasks which will divert attention from the safety of the bather.
(b) Qualifications. Lifeguards shall be capable swimmers, skilled in lifesaving methods and in methods of artificial resuscitation as evidenced by the possession of a currently valid certificate or other proof of proficiency from a recognized agency offering instructions in these fields.]
Recognized lifeguard certifying authorities. The Department recognizes the American Red Cross, the YMCA and Ellis Associates as lifeguard certifying authorities.
(1) Other organizations that intend to qualify as certifying authorities shall submit materials, on an annual basis, to the Department to establish that their lifeguard training courses satisfy the criteria in subsection (b).
(2) The materials shall be submitted to the Department on or before June 30 of each year and shall include a completed form entitled ''Application for Recognition as a Lifeguard Certifying Authority'' in the submission.
(3) This form is available from the Department.
(4) The Department will publish a list of approved certifying authorities annually, on or before December 1 of each year, in the Pennsylvania Bulletin.
(b) Requirements for a lifeguard certifying authority. The Department will consider approval of a lifeguard certifying authority if the certifying authority's lifeguard training course satisfies the following requirements:
(1) The course is conducted pursuant to a written training plan, instructor's manual, and text book.
(2) The course provides for confirmation of course completion for certification in cardiopulmonary resuscitation.
(3) The course provides for certification in first aid.
(4) The course includes a system for evaluating swimming ability.
(5) The course provides for instruction in lifeguarding responsibilities.
(6) The course provides a method for testing and certification.
(7) The course includes a certificate which expires, in no longer than 3 years, if renewal criteria are not satisfied.
(8) The instructors of the course have successfully completed a training course that includes:
(i) Certification in lifeguard instruction.
(ii) Student evaluation.
(iii) Program planning.
(iv) Cardiopulmonary resuscitation.
(v) Conducting practice first aid and rescue sessions.
(c) Required number of lifeguards. A recreational swimming establishment shall have on duty an adequate number of certified lifeguards to protect the safety of users. To ensure an adequate number of certified lifeguards, the operator of a recreational swimming establishment shall comply with the following requirements:
(1) At least one certified lifeguard for every 4,000 square feet of water surface area, plus one certified lifeguard for any fraction thereof, equal to or greater than 1,000 square feet, shall be on duty at the waterside at all times the recreational swimming establishment is open to use by bathers for general swim purposes. There shall be at least two certified lifeguards present and available to aid bathers whenever the recreational swimming establishment is being used by bathers.
(i) The water surface area shall mean the total surface area of water accessible to the bathers, including any wading pools.
(ii) The operator may reduce the water surface area by closing portions of the swimming area with a rope and float line, provided that the operator maintains adequate notification and supervision to prevent patrons from entering the closed portions of the swimming area. For the purposes of this section, ''adequate'' means sufficient to accomplish the task, but it does not require any additional certified lifeguards above the minimum number established in this section.
(iii) Under circumstances when the ability of a certified lifeguard to survey 4,000 square feet of water surface area is impaired, such as when the size or shape, or both, of the recreational swimming establishment prevents the certified lifeguard from monitoring the assigned area from a designated location, the Department may require additional certified lifeguards to assure the safety of the bathers.
(2) The bather load of the recreational swimming establishment may not exceed the maximum bather load as defined in the permit application.
(3) During periods when swim meets, swim team practices, learn-to-swim programs, lifeguard training or other special events in which the use of the recreational swimming establishment is restricted to only those persons participating in the special events, at least one certified lifeguard, whose sole duty is to protect the bathers, shall be present at waterside during the event.
(4) When a wading pool is open to the public, the certified lifeguard shall have an unobstructed view of the entire wading pool from a certified lifeguard's assigned station. If the certified lifeguard does not have an unobstructed view, an additional certified lifeguard shall be on duty to guard only the wading pool.
(5) If the recreational swimming establishment has a diving board or water slide, a certified lifeguard shall be on duty to monitor the diving well or catch area when the diving board or water slide is open to the public.
(i) The certified lifeguard shall be stationed within 50 feet of the diving well or slide catch area.
(ii) If the swimming area includes both a diving well and slide catch area, or the recreational swimming establishment has multiple slides or diving boards, the operator may not assign a certified lifeguard to monitor both areas unless that lifeguard is stationed within 50 feet of each and can monitor both areas simultaneously.
(iii) If the diving well or slide catch area is physically separated from the main swimming area, a certified lifeguard shall be assigned to monitor the diving well or slide catch area exclusively, and the operator shall exclude the water surface area of the diving well or slide catch area from the water surface area of the recreational swimming establishment for the purpose of determining the number of additional certified lifeguards required under paragraph (1).
(6) While on duty to watch bathers, a certified lifeguard may not be assigned other tasks which may divert attention from the safety of the bathers, or which are outside the lifeguard's training and certification.
(d) Violation of certified lifeguard requirement. The Department may order to be closed to the public any recreational swimming establishment that it finds to be in violation of any of the provisions of subsection (c), until the Department has done the following:
(1) Performed a follow-up inspection
(2) Found that the facility has met the requirements of subsection (c).
(3) Provided that facility with written authorization to reopen.
[Pa.B. Doc. No. 02-1633. Filed for public inspection September 20, 2002, 9:00 a.m.]
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