RULES AND REGULATIONS
Title 28—HEALTH AND SAFETY
DEPARTMENT OF HEALTH
[28 PA. CODE CH. 18]
Certified Lifeguards
[53 Pa.B. 5757]
[Saturday, September 16, 2023]The Department of Health (Department) amends § 18.42 (relating to certified lifeguards) to read as set forth in Annex A.
Background and Need for Amendments
Lifeguard certifying authorities provide certification courses designed to ensure that individuals seeking to become lifeguards are properly trained and prepared in the event of a water emergency. The regulation establishes requirements that lifeguard training courses must satisfy. The Department approves lifeguard certifying authorities based on these requirements. In 2022, the Department recognized the following lifeguard certifying authorities: 1) The American Red Cross; 2) Jeff Ellis and Associates; 3) Lifeguard-Pro; 4) YMCA; 5) The Boy Scouts of America; 6) StarGuard ELITE; 7) National Aquatic Safety Company; 8) American Aquatics & Safety Training; 9) United States Lifesaving Association (beach and open water); and 10) World Academy of Safety & Health.
The existing regulation specifically names as recognized lifeguard certifying authorities American Red Cross, YMCA and Jeff Ellis and Associates, Inc. The Department has regularly received requests from lifeguard certifying authorities not listed in the regulation, such as Lifeguard-Pro, to have their names included in the regulation. The lifeguard certifying authorities not included argue that the American Red Cross, YMCA and Jeff Ellis and Associates, Inc. are their competition and that their names in the regulation give them more credibility and a competitive advantage. Additionally, it is argued that the regulation listing the names of some lifeguard certifying authorities can appear to be the Department recommending their services over others.
Prior to drafting the proposed rulemaking, the Department mailed a letter to the lifeguard certifying authorities, including American Red Cross, YMCA and Jeff Ellis and Associates, Inc. asking for feedback, including support, opposition or alternatives, to amending the regulation to remove the names of specific lifeguard certifying authorities. The Department received support for removing the names from StarGuard ELITE and the Chair of the National Certification Committee of the United States Lifesaving Association. The Department did not receive any opposition or alternatives from the lifeguard certifying authorities. Prior to drafting this final-form rulemaking, the Department again mailed a letter to the lifeguard certifying authorities, again asking for feedback regarding the amendments to the regulation. The Department did not receive a response to this letter.
Description of Amendments
§ 18.42. Certified lifeguards
As explained in the proposed rulemaking, the Department deletes the sentence ''the Department recognizes the American Red Cross, the YMCA and Jeff Ellis and Associates, Inc. as lifeguard certifying authorities'' from subsection (a) and replaces the words ''other organizations'' with the word ''organizations'' in paragraph (1). Removing all named lifeguard certifying authorities from the regulation will alleviate the concerns of those lifeguard certifying authorities that are not specifically named in the existing regulation. There will also be no need for the Department to annually amend the regulation based on the current approved lifeguard certifying authorities and possible changes in names. The Department will continue to follow the process currently outlined in § 18.42 to approve and recognize lifeguard certifying authorities, with publication of the list of approved certifying authorities annually in the Pennsylvania Bulletin. The American Red Cross, the YMCA and Jeff Ellis and Associates, Inc. already follow this process, and will not be negatively impacted by the removal of their names from the regulation.
Summary and Response to Comments
Notice of the proposed rulemaking was published at 52 Pa.B. 3587 (June 25, 2022). Publication was followed by a 30-day public comment period, during which the Department received no comments. Additionally, the Independent Regulatory Review Commission (IRRC) indicated that it did not have any objections, comments or recommendations to offer on the regulation. IRRC advised that if the final-form rulemaking is delivered without revisions, and the committees do not take any action, it will be deemed approved. The House Health Committee and the Senate Health and Human Services Committee did not submit comments. The Department has made no changes from the proposed rulemaking to this final-form rulemaking.
Fiscal Impact
Department
The Department approves all lifeguard certifying authorities, including the American Red Cross, the YMCA and Jeff Ellis and Associates, Inc., and after conducting a review of materials submitted under the existing regulation, this amendment will not alter this requirement. The Department will not be fiscally impacted by this amendment.
Regulated community
There will be no fiscal impact on the lifeguard certifying authorities as a result of this amendment. Lifeguard certifying authorities are required to comply with the existing regulation and this amendment will not alter that requirement. In 2022, there were a total of ten approved lifeguard certifying authorities, including the American Red Cross, YMCA and Jeff Ellis and Associates, Inc. The removal of the American Red Cross, YMCA and Jeff Ellis and Associates, Inc. as specifically named entities in the regulation should have no impact on them because they already submit materials annually for approval like other lifeguard certifying authorities.
Local governments
The amendment will not fiscally impact local governments.
General public
The amendment will not fiscally impact the general public.
Paperwork Requirements
The amendment will not impose any new or additional paperwork requirements on any of the previously listed entities. The existing application form and application procedures will continue to be used.
Statutory Authority
The Department's overarching authority to promulgate these regulations is found in the Public Bathing Law (act) (35 P.S. §§ 672—680d). In 1995, under section 501 of the Conservation and Natural Resources Act (71 P.S. § 1340.501), the Department of Environmental Resources (DER) was renamed the Department of Environmental Protection and DER's duties and powers were reorganized. The Department transferred the following powers and duties from DER (emphasis added):
(1) The control of nuisances arising from the sanitary condition of tenements, lodging and boarding houses and management of the sanitary affairs of this Commonwealth related to tenements, lodging and boarding houses, organized camps and public bathing places.(2) The act of November 10, 1959 (P.L. 1400, No. 497), entitled ''An act providing for the annual registration of organized camps for children, youth and adults; defining the duties of the Department of Health of the Commonwealth of Pennsylvania; and prescribing penalties.''(3) The act of June 23, 1931 (P.L. 899, No. 299), known as the Public Bathing Law. As to the Public Bathing Law, the Department of Health shall have the authority to promulgate rules and regulations to protect the public health and safety at all public bathing places.71 P.S. § 1340.505. Certified lifeguards are specifically addressed in section 4.1(b) of the act (35 P.S. § 675.1(b)), which states that ''[t]he department shall promulgate regulations to determine the number of lifeguards required at a recreational swimming establishment using objective criteria that take into consideration industry standards.'' Moreover, under section 4.1(b) of the act, the Department is to develop regulations related to lifeguards while consulting approved certifying authorities and recreational swimming establishments. Section 2(5) of the act (35 P.S. § 673(5)) defines the term ''certified lifeguard'' as ''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 typically publishes this notice annually in the Pennsylvania Bulletin and on its web site.
Effectiveness/Sunset Date
The regulation will become effective upon publication in the Pennsylvania Bulletin as a final regulation. A sunset date will not be imposed. The Department will monitor the regulations and update them as necessary.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on June 9, 2022, the Department submitted notice of this proposed rulemaking, published at 52 Pa.B. 3587, to IRRC and the Chairpersons of the Senate Health and Human Services Committee and the House Health Committee for review and comment.
The Department did not receive any public, legislative or IRRC comments on the proposed regulation. In preparing the final-form rulemaking, the Department has made no revisions based on the lack of comments.
Under section 5.1(e) of the Regulatory Review Act (71 P.S. § 745.5a(e)), on July 12, 2023, the final-form rulemaking was deemed approved by the Senate Health and Human Services Committee and the House Heath Committee. Under section 5.1(e) of the Regulatory Review Act, IRRC met on July 13, 2023, and approved the final-form rulemaking.
Contact Person
Additional information regarding this final-form rulemaking may be obtained by contacting Richard A. Pugh, Environmental Health Program Manager, Bureau of Community Health Systems, 30 Kline Plaza, Harrisburg, PA 17104, (717) 736-7393, or by e-mailing RA-DHPUBLICBATHINGPL@pa.gov. Persons with a disability who wish to submit comments, suggestions, or objections regarding the final regulation may do so by using the previously listed number or address. Speech and/or hearing-impaired persons may use the Pennsylvania Hamilton Relay Service at (800) 654-5984 (TDD users) or (800) 654-5988 (voice users).
Findings
The Department finds that:
(1) Public notice of intention to adopt the regulations adopted by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P.L. 769, No. 240) (45 P.S. §§ 1201 and 1202), referred to as the Commonwealth Documents Law and the regulations promulgated under those sections at 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) A public comment period was provided as required by law and no comments were submitted.
(3) No amendments were made to this final-form rulemaking and therefore this final-form rulemaking does not enlarge the original purpose of the proposed rulemaking.
(4) The adoption of the regulations is necessary and appropriate for the administration of the Public Bathing Law.
Order
(1) The regulations of the Department, 28 Pa. Code Chapter 18, are amended by amending § 18.42 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(2) The Department shall submit this final-form rulemaking to the Office of Attorney General and the Office of General Counsel for approval as required by law.
(3) The Department shall submit this final-form rulemaking to IRRC, the State Health and Human Services Committee and the House Health Committee as required by law.
(4) The Department shall certify this final-form rulemaking, as approved for legality and form, and shall deposit it with the Legislative Reference Bureau as required by law.
(5) This final-form rulemaking shall take effect on publication in the Pennsylvania Bulletin.
DR. DEBRA L. BOGEN,
Acting Secretary(Editor's Note: See 53 Pa.B. 4068 (July 29, 2023) for IRRC's approval order.)
Fiscal Note: Fiscal Note 10-236 remains valid for the final adoption of the subject regulation.
Annex A
TITLE 28. HEALTH AND SAFETY
PART II. LOCAL HEALTH
CHAPTER 18. PUBLIC SWIMMING AND
BATHING PLACES
GENERAL SAFETY § 18.42. Certified lifeguards.
(a) Recognized lifeguard certifying authorities.
(1) 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).
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[Pa.B. Doc. No. 23-1243. Filed for public inspection September 15, 2023, 9:00 a.m.]
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