Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO: KRS Chapter 247
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
247.238 requires the Department of
Agriculture to establish requirements and standards for the operation and
regulation of aerial recreational devices and facilities. This administrative
regulation establishes requirements and standards for the operation and
inspection of aerial recreational devices and facilities.
Section 1. Definitions.
(1) "Aerial recreational device" is defined
by KRS
247.238(1)(b).
(2) "Aerial recreational facility" is defined
by KRS
247.238(1)(c).
(3) "Certificate of Inspection" means the
Certificate of Inspection Form incorporated by reference in Section 15 of this
administrative regulation that is signed by a qualified inspector certifying
that an aerial recreation device is correctly installed.
(4) "Department" means the Kentucky
Department of Agriculture.
(5)
"Engineer" means a person meeting the requirements for licensure as a
Professional Engineer in
KRS
322.040, regardless of whether the person is
licensed by the Kentucky Board of Engineers and Land Surveyors.
(6) "Equipment malfunction" means a
malfunction that affects the future use of the aerial recreational
device.
(7) "First aid" means the
treatment of injuries that do not ordinarily require medical treatment by a
physician or other medical professional, including without limitation
scratches, cuts not requiring stitches, superficial burns, splinters, and
bruises.
(8) "Major modification"
means a change in the structural or operational characteristics of an aerial
recreational device that will alter its weight-bearing capacity or alter its
performance.
(9) "Operator" means a
person who owns, operates, or is deemed by the department to be responsible for
an aerial recreational device or facility.
(10) "Qualified inspector" means a person
meeting the requirements in Section 10 of this administrative
regulation.
(11) "Serious injury"
means an injury requiring medical treatment other than first aid from a
physician or other medical professional, regardless of whether or not the
injury requires hospitalization.
(12) "Zip line" means a type of aerial
recreational device consisting of a cable stretched between two (2) or more
points, a pulley, and a harness for securing a patron who moves by
gravity.
Section 2.
Licensure and Insurance Coverage Required for any Person Operating an Aerial
Recreational Device or Facility for Any Commercial or Educational Purpose.
(1) A person shall not operate an aerial
recreational device or facility for any commercial or educational purpose in
the Commonwealth without holding a license issued by the department.
(2) A person shall not operate an aerial
recreational device or facility in the Commonwealth without having an insurance
policy in place that:
(a) Was written by an
insurance company or surplus lines insurer authorized to do business in
Kentucky;
(b) Includes general
liability coverage in an amount of not less than $1,000,000 per occurrence and
$2,000,000 general aggregate;
(c)
Insures the operator against liability for injury to persons arising out of the
use of the aerial recreational device or facility; and
(d) Includes an express provision stating
that the insurer shall not cancel the policy without providing thirty (30) days
advance written notice to the department.
(3) Any aerial recreation device that meets
the following criteria is not subject to this administrative regulation:
(a) The device is not operated for a
commercial purpose; and
(b) The
device is not operated for an educational purpose.
Section 3. Application for
Licensure as an Operator.
(1) Application
Contents. An Aerial Recreational Device or Facility License Application Form
shall be submitted annually and shall include the following:
(a) The applicant's name, residential
address, telephone number, and email address;
(b) The name of the designer, and the serial
number, for each aerial recreational device within the applicant's
facility;
(c) A list of the
anticipated locations and dates of operation of the aerial recreational device
or facility within Kentucky for the upcoming permit year;
(d) The name of the liability insurance
carrier and the insurance policy number, with reference to the specific policy
page number where the thirty (30) day notice provision required by Section
2(2)(d) of this administrative regulation appears;
(e) A Certificate of Inspection, signed by a
qualified inspector, certifying that each device was inspected and found to be
installed in a correct manner and safe for use on a date not more than 365 days
prior to the date of the application's submission;
(f) A certificate of liability insurance
meeting the requirements set forth in Section 2(2) of this administrative
regulation;
(g) A copy of the
engineer-approved design plans for each device; except that the plans shall not
be required for a device for which the operator submits to the department a
signed affidavit attesting that:
1. The device
was installed prior to July 15, 2016;
2. The device has not been subject to any
major modifications since July 15, 2016; and
3. The device has been in use since July 15,
2016;
(h) A copy of the
Risk Management Program required in Section 4(1)(e) of this administrative
regulation; and
(i) Written
authorization for the applicant's qualified inspector to communicate with and
respond to any inquiry from a representative of the department, including an
inquiry that calls for the production of documents pertaining to the
applicant's devices.
(2)
Application Review. Upon receipt of an application and the fees required by
subsection (4) of this section, the department shall review the application.
Upon determining that the requirements in subsection (1) of this section have
been met, the department shall approve the application, register the aerial
recreational device or facility, and issue an operator license.
(3) Operator licenses issued by the
department shall:
(a) Expire annually on
December 31, regardless of date of application;
(b) Be specifically assigned to individual
devices and facilities; and
(c) Not
be transferred or assigned.
(4) Fees.
(a) Except as provided by paragraph (b) of
this subsection:
1. The annual operator
license fee shall be $100; and
2.
The annual device license fee shall be $100 per aerial recreation
device.
(b) Application
fees charged in connection with the licensure of any facility shall not exceed
$2,000 annually in the aggregate.
(c) The fees established in this subsection
shall be nonrefundable.
(5) Incomplete Applications. Upon receipt of
an incomplete application or an application without the correct fee, the
department shall notify the applicant of the need for additional information or
payment. The department shall consider the application abandoned if the
department does not receive the required information or payment within thirty
(30) days after notification of the deficiency. The thirty (30) day period
shall begin on the date the notification is issued by the department.
(6) The department shall deny any application
for licensure submitted by a person or entity that has refused to comply with
an order from the department within five (5) years of the date of
application.
(7) The department may
permit an operator to supplement the list of locations and dates the operator
submitted in response to subsection (1)(c) of this section if the operator
provides supplemental locations and dates to the department not later than
three (3) business days in advance of the planned use.
Section 4. Written Programs Required for
Operations, Maintenance, Inspection, Training, and Risk Management.
(1) Prior to applying for licensure, an
operator shall implement the following written programs:
(a) An operations program that includes, at a
minimum, the components set forth in Section 5.5 of ASTM F2959-16 ("Standard
Practice for Aerial Adventure Courses");
(b) A maintenance program that includes, at a
minimum, the components set forth in Section 5.6 of ASTM F2959-16 ("Standard
Practice for Aerial Adventure Courses");
(c) An inspection program that includes, at a
minimum, the components set forth in Section 5.7 of ASTM F2959-16 ("Standard
Practice for Aerial Adventure Courses");
(d) A training program that includes, at a
minimum, the components set forth in Section 5.8 of ASTM F2959-16 ("Standard
Practice for Aerial Adventure Courses"); and
(e) A risk management program that shall
include, at a minimum, the following components:
1. Medical emergency plan;
2. Technical rescue plan;
3. Fatality response plan;
4. Plan for contacting 911/Emergency Services
when cellular signals are not available;
5. Evacuation plan; and
6. Severe weather preparedness
plan.
(2) An
operator shall make the written programs required by subsection (1) of this
section available for inspection and review by any employee, representative of
the department, or representative of a law enforcement agency who requests to
inspect it.
Section 5.
Annual Inspection, Certificate of Inspection, and Additional Inspection Ordered
by the Department.
(1) Annual Inspections. An
annual inspection shall be conducted on each aerial recreational device by a
qualified inspector.
(a) The inspection shall
include, at a minimum, the following components:
1. Verification that the device is in a full
operational status;
2. Review of
the written Operations Program, Maintenance Program, Inspection Program,
Training Program, and Risk Management Programs required by Section 4(1) of this
administrative regulation; and
3.
Review of records from the operator's daily pre-opening inspections required by
Section 6(1) of this administrative regulation.
(b) Following completion of the inspection of
each aerial recreational device, the qualified inspector shall determine
whether the device is installed correctly according to the engineer-approved
design plans if required in Section 3(1)(g) of this administrative regulation.
A mobile device does not require a separate inspection at each location of
operation.
(2) A
qualified inspector shall sign a Certificate of Inspection to certify his or
her determination that the requirements in subsection (1) of this section are
met.
(3) The Certificate of
Inspection shall include, at a minimum, the following information:
(a) The qualified inspector's name and
contact information;
(b) A
declaration of relevant professional credentials or certifications held by the
qualified inspector;
(c) The
operator's name;
(d) The name of
each device's manufacturer, if known;
(e) The name of the engineer who approved the
device's design plan;
(f) The
product name and serial number for each device;
(g) The date of inspection; and
(h) A statement that the device was installed
correctly according to the engineer-approved design plans required by Section
3(1)(g) of this administrative regulation.
(4) If a device does not have an existing
serial number, as required by Section 3(1)(b) of this administrative
regulation, then the qualified inspector shall assign one for identification
purposes.
(5) Additional
inspections ordered by the department:
(a) The
department may order the operator to obtain a new Certificate of Inspection
from a qualified inspector for any device with or without advance
notice.
(b) Upon receipt of the
order, the operator shall immediately halt patron use of the device until the
operator receives permission from the department to resume patron
use.
(c) The operator shall pay the
costs incurred in obtaining an additional inspection.
(d) An additional inspection shall not extend
the operator's period of licensure.
Section 6. Requirement for Daily Pre-opening
Inspections and Operation in Accordance with Most Recent Manufacturer
Recommendations.
(1) Daily Pre-opening
Inspections. The operator shall perform and record a daily inspection of each
aerial recreational device prior to opening the device for use by a patron.
(a) The daily pre-opening inspection shall
include, at a minimum, the components set forth in Section 5.7.2 of ASTM
F2959-16 ("Standard Practice for Aerial Adventure Courses").
(b) A daily pre-opening inspection is not
required for days when a device will have no patrons using it.
(2) The operator shall operate
each device or facility in accordance with the most recent manufacturer
recommendations.
Section
7. Additional Employee Training Requirements for Zip Lines. An
operator of a zip line shall ensure that each employee operating a zip line
receives appropriate training to:
(1) Be
proficient in the setup, operation, and ongoing monitoring requirements of the
braking system in effect when operating the zip line;
(2) Ensure that the departure of a patron
from the dispatch zone is performed in a controlled manner and only if the zip
line is clear of other persons;
(3)
Ensure that the deceleration and arrest of a patron arriving at the landing
zone is performed in a controlled manner; and
(4) Ensure that padding used as a protective
element in the landing zone is not used in lieu of a brake component.
Section 8. Records.
(1) Every operator shall maintain written
records relating to the construction, repair, and maintenance of each aerial
recreation device. Records shall include at a minimum inspection, maintenance,
and operator training activities.
(2) Records shall be provided to the
department within one (1) hour of request.
(3) Records shall be maintained for at least
three (3) years.
Section
9. Deaths, Serious Injuries, and Equipment Malfunctions.
(1) Any death, serious injury, or equipment
malfunction that arises from the use of an aerial recreation device or facility
shall be reported to the department promptly and within twelve (12) hours
following notice of the death, serious injury, or malfunction.
(2) Following a death, serious injury, or
equipment malfunction, the device or facility shall be subject to a stop order
issued by the department. The operator shall immediately close and secure the
device or facility until a qualified inspector has completed a new Certificate
of Inspection of the device or facility. Any stop order shall remain in effect
until lifted by the department.
(3)
Following a death, serious injury, or equipment malfunction, the operator shall
submit a written report to the department within forty-eight (48) hours. The
written report shall contain the following information:
(a) The date and time of the
incident;
(b) The location of the
incident;
(c) A description of the
incident;
(d) The name, address,
and phone number of the operator;
(e) The name and address of each employee
involved in the incident or accident;
(f) The name, serial number, and manufacturer
of the aerial recreational device;
(g) The name, address, phone number, gender,
and age of the injured person;
(h)
The nature and extent of the injury;
(i) The name and location of the treating
facility, physician, or other qualified medical professional;
(j) The address, telephone number, and
printed and signed name of the person completing the report;
(k) The date and time the report was
completed; and
(l) The cause of the
incident, if known.
(4) A
person shall not alter the incident scene or any element or structure without
written permission from the department, except as necessary to prevent injury,
remove injured persons, or permit the movement of emergency vehicles.
(5) Following a death, serious injury, or
equipment malfunction, the department may conduct an investigation. If
investigated, the report of the investigation shall be placed on file in the
department and document in detail the facts and information available. The
owner may submit results of any other investigations for inclusion in the
file.
Section 10. Who can
be a Qualified Inspector.
(1) A person seeking
to register shall complete and submit a qualified inspector Registration Form
with an annual registration fee of $100.
(2) A person shall not be a qualified
inspector unless he or she can demonstrate a current certification or licensure
as a Third-Party Inspector or Professional Inspector by one of the following
entities:
(a) Association for Challenge Course
Technology (ACCT);
(b) Professional
Ropes Course Association (PRCA);
(c) National Association of Amusement Ride
Safety Officials (NAARSO); or
(d)
The Kentucky Board of Engineers & Land Surveyors.
(3) A person shall not be a qualified
inspector unless he or she has in effect a valid insurance policy written for
his or her inspection and certification activities that was issued by an
insurance company or surplus lines insurer authorized to do business in
Kentucky; for:
(a) General liability coverage
in an amount of not less than $1,000,000 per occurrence and $2,000,000 general
aggregate; and
(b) Professional
liability coverage, including errors and omissions, in an amount of not less
than $1,000,000.
(4) The
qualified inspector's policies required by subsection (3) of this section shall
be distinct from the operator's policy required by in Section 2(2) of this
administrative regulation.
(5) The
department shall maintain and publish on its website a current list of
individuals who are registered as qualified inspectors.
Section 11. Violations and Civil Penalties.
(1) The department may issue a stop order for
any device or facility if any provision of
KRS
247.238 or this administrative regulation is
violated, or as necessary to protect patrons or members of the
public.
(2) Pursuant to
KRS
247.238(5), the department
may assess civil penalties consistent with the following schedule:
(a) Violation of Section 2 of this
administrative regulation shall result in a civil penalty of up to $10,000 per
occurrence;
(b) Violation of
Section 6 of this administrative regulation shall result in a civil penalty of
up to $5,000 per occurrence;
(c)
Violation of Section 8 of this administrative regulation shall result in a
civil penalty of up to $5,000 per occurrence;
(d) Violation of Section 9 of this
administrative regulation shall result in a civil penalty of up to $10,000 per
occurrence; and
(e) Failure to
comply with an order from the department shall result in a civil penalty of up
to $10,000.
(3) The
civil penalties permitted in this administrative regulation shall not be
construed to preclude the imposition of criminal liability or to preclude any
person's assertion of a civil cause of action.
Section 12. Appeals from Notices of
Violations and Civil Penalties.
(1) The
operator shall have ten (10) days upon the receipt of the notification of
violation to request a hearing within the department.
(2) Appeals hearings shall be conducted in
accordance with KRS Chapter 13B.
Section 13. Types of Devices Excluded from
the Definition of Aerial Recreational Device. Pursuant to
KRS
247.238(1)(b)(3), the
following devices are excluded from the definition of aerial recreational
device:
(1) A device meeting the criteria for
a "walk through" as defined in
302 KAR 16:020, Section
1(10);
(2) A device that does not
require a patron's feet to be more than twelve (12) feet off the ground at any
time; and
(3) A device meeting the
criteria in Section 2(3) of this administrative regulation.
Section 14. Compliance Date.
Beginning July 1, 2018, aerial recreational devices and facilities shall be
operated and inspected as required by this administrative regulation.
Section 15. Incorporation by Reference.
(1) The following material is incorporated by
reference:
(a) "Aerial Recreational Device or
Facility License Application Form", 2017;
(b) "ASTM F2959-16, Standard Practice for
Aerial Adventure Courses", 2016;
(c) "Certificate of Inspection Form", 2017;
and
(d) "Qualified Inspector
Registration Form", 2017.
(2) This material may be inspected, copied,
or obtained, subject to applicable copyright law, at the Kentucky Department of
Agriculture, Division of Regulation and Inspection, 107 Corporate Drive,
Frankfort, Kentucky 40601, Monday through Friday, 8:00 a.m. to 4:30 p.m. These
materials may also be obtained at
www.kyagr.com.
STATUTORY AUTHORITY:
KRS
247.238