RULES AND REGULATIONS
Title 7--AGRICULTURE
DEPARTMENT OF AGRICULTURE
[ 7 PA. CODE CH. 139 ]
Amusement Rides and Attractions Erected Permanently or Temporarily at Carnivals, Fairs and Amusement Parks
[38 Pa.B. 6843]
[Saturday, December 13, 2008]The Department of Agriculture (Department) hereby amends Chapter 139 (relating to amusement rides and attractions erected permanently or temporarily at carnivals, fairs and amusement parks) to read as set forth in Annex A.
Statutory Authority
The Amusement Ride Inspection Act (act) (4 P. S. §§ 401--419) provides the legal authority for the final-form rulemaking.
Section 4 of the act (4 P. S. § 404) prescribes the powers and duties of the Department with respect to amusement rides and authorizes the Department to adopt regulations necessary to its administration of the act.
Purpose of the Final-Form Regulations
The final-form regulations update the Department's amusement ride and amusement attraction regulations to reflect developments in the amusement ride and amusement attractions industry in the 21 years since current regulations were last updated, moves these regulations into greater conformity with well-regarded National industry standards for the safe erection and operation of amusement rides and amusement attractions (the American Society for Testing Materials International F-24 Committee Standards) and provides a clearer set of standards for the regulated community.
The amusement ride and amusement attraction industry is a vital, evolving industry. Amusement rides that are common today, such as inflatable bounce rides, climbing walls and water rides, were not in widespread use when the current regulations were last amended. In addition, as the Department has carried-out its responsibilities in administering and enforcing the current regulations over the years, it has identified provisions that are unclear, that are inconsistent with the act or that are not as comprehensive or detailed as their counterpart provisions in the American Society for Testing Materials International F-24 Committee Standards.
Comments and Responses
A notice of proposed rulemaking was published at 37 Pa.B. 2823 (June 23, 2007), affording the public, the Legislature and the Independent Regulatory Review Commission (IRRC) the opportunity to offer comments. Comments were received from IRRC, Hersheypark, Kennywood Entertainment, Inc. (Kennywood) and the Pennsylvania State Association of Township Supervisors.
The Department afforded interested persons a second opportunity to offer comments. Advance notice of the final-form rulemaking was published at 38 Pa.B. 1830 (April 19, 2008). The notice afforded interested persons an opportunity to review the Department's draft of the final-form rulemaking, and to offer comments through May 6, 2008. Five persons offered comments as a result of this advance notice of final rulemaking. The commentators were the Inflatable Industry Purchasing Group, Inc., two qualified inspectors, Doylestown Rock Gym Adventure Center, Inc., and the President/CEO of Magic Carousels, LLC.
A summary of comments received during the comment periods described in the preceding paragraphs follows. If the comment was received in response to the advance notice of the final-form rulemaking, that fact is noted in the summary of the comment.
Comment 1: While offering a number of specific comments addressed as follows, Kennywood also offered general support for the Department's effort to provide needed regulatory guidance to park operators. The Pennsylvania Association of Township Supervisors also offered its agreement with the need for an updating of the amusement ride regulations.
Response: The Department acknowledges these comments, and agrees the final-form rulemaking will provide helpful guidance to the regulated community.
Comment 2: In response to the advance notice of this final-form regulations provided by the Department, Doylestown Rock Gym Adventure Center, Inc., sought clarification as to the extent that ''climbing walls'' are subject to the final-form rulemaking. The commentator wanted to know whether there is a difference between permanently-constructed climbing walls, portable climbing walls and climbing walls that are onsite at amusement parks, fairs or carnivals.
Response: The Department takes the position that a climbing wall located within a rock climbing gym is not located within an ''amusement park,'' ''fair'' or ''carnival,'' as those terms are defined in the act, and for this reason is not subject to the regular inspection requirements set forth in section 7(a) of the act (4 P. S. § 407(a)).
Comment 3: In response to the advance notice of the final-form rulemaking provided by the Department, a qualified inspector offered a comment expressing in strong terms that he felt the Department did not conduct sufficient outreach to qualified inspectors in drafting the proposed rulemaking and the final-form regulations. The commentator also suggested the Department might have made some deliberate effort to exclude certain sections of the regulated community from participating in the development of the final-form regulations.
Response: The Department rejected this comment. The project to revise the Department's amusement ride regulations has been underway for at least 5 years. In that time, at least six drafts of proposed regulatory revisions have been provided to the Amusement Ride Safety Advisory Board (Board) for review and input. The Department has solicited and considered opinions and advice from all segments of the amusement ride industry; and has striven to make the final-form rulemaking the well-reasoned product of a collaborative effort. The Department took the additional step of publishing advance notice of the final-form rulemaking and providing interested persons a second opportunity to comment--beyond the comment opportunities required under the Regulatory Review Act (71 P. S. §§ 745.1--754.15).
Comment 4: With respect to proposed § 139.1 (relating to scope), IRRC asked ''. . . who is responsible for ensuring the safety of users of rented inflatable devices or similar devices?'' To focus its question, IRRC offered the example of a neighborhood association that rents an amusement ride for an event, and raised questions as to who would be responsible for the proper operation of the ride, whether the ride would be considered a ''commercially used'' ride if the riders were not charged a fee to use the ride, and the extent to which the entity that rented the ride to the neighborhood association remains responsible for its operation.
Response: An owner of an amusement ride that is to be operated within this Commonwealth is required to register the ride with the Department, inspect it regularly in accordance with the act, obtain required minimum insurance coverage in accordance with the act, and see that the ride is erected and operated in accordance with the manufacturer's instructions. Entities that rent amusement rides to third parties take various approaches to meeting these requirements. Some transport the ride to the site, erect it and provide trained operators for the ride. Some deliver the ride, provide written instructions as to erection and operation, and retrieve the ride at the end of the rental. Some provide instruction but leave pick-up, delivery, erection, operation and return entirely to the person who rents the ride. Whatever the approach of the entity that rents an amusement ride, basic responsibility for compliance with the act and its attendant regulations rests with the ride owner.
The Department acknowledges that the ride rental industry--particularly the segment of that industry that rents inflatable bounce rides--is a comparatively new segment of the amusement ride industry and is not squarely addressed in the act. Section 9 of the act (4 P. S. § 409) describes the circumstances under which the Department is authorized to issue a variance from any rule, regulation or standard relating to amusement rides. The Department has issued a variance with respect to certain entities that rent inflatable bounce rides, modifying certain preoperation inspection and itinerary requirements and acknowledging that it will monitor and--if necessary--revise the variance. The Department intends to seek to have the act more specifically address this segment of the amusement ride industry on the next occasion it is amended.
Under the example provided by IRRC in this comment, the rented ride would be a ''commercially used'' amusement ride even if the riders were not charged a fee. The proposed definition of the term ''commercially used'' is set forth in § 139.2 (relating to definitions). Under that definition, the rented ride in the hypothetical would be ''. . . offered for use by persons in consideration of payment of a . . . rental fee . . . as a condition of use of the ride or attraction.'' The entity that owns the ride and rents it to a third person makes the payment of a rental fee a condition of that third person's use of the ride, so the use of that ride is a ''commercial use.''
With respect to IRRC's question as to the extent to which the entity that rents a ride to a third party remains responsible for its operation, the entity that rents the ride to a third party is required to have the minimum insurance coverage required under the act, and is ultimately responsible for the safe operation of its ride.
Comment 5: With respect to inflatable amusement rides and other rented amusement rides, IRRC sought clarification as to how and when inspections occur for inflatable devices and other amusement rides or attractions that are rented out to private groups or families. IRRC asked whether these inspections occur when the rides or attractions are rented and erected, and recommended this be explained in the final-form regulations.
Response: All amusement rides--including rented amusement rides--must be inspected in accordance with section 7 of the act (4 P. S. § 407), unless they are exempted from these requirements in accordance with a variance issued by the Department under authority section 9 of the act. A variance issued by the Department on July 17, 1998, defines an ''inflatable bounce ride rental entity,'' and exempts certain inflatable rides from the inspection and itinerary requirements imposed by the act, but requires the inflatable bounce ride rental entity to file an inspection affidavit with the Department, reflecting that the ride has been inspected no more than 1 month in advance of the rental.
Comment 6: Kennywood noted the increase in Halloween and Fall Harvest seasonal attractions in recent years, and recommended that the final-form regulations make clear that these attractions fall within the scope of the act. The referenced attractions include ''haunted houses,'' corn mazes and other attractions. Kennywood believes that a number of these attractions do not comply with the act and its attendant regulations. Kennywood also offered that enforcement should be without regard to whether the attractions are temporary or part of established amusement parks, or whether operated by for-profit or nonprofit entities.
Response: For the reasons that follow, the Department declines to attempt to modify or expand upon the statutory definition of an amusement ride or an amusement attraction, but acknowledges that these definitions present enforcement challenges for the Department.
The Department agrees that there has been a proliferation of the type of rides and attractions described in this comment. As is the case with amusement ride rental entities (See previous Comment and Response Nos. 4 and 5), this new and growing segment of the amusement industry is not squarely addressed in the act; and the Department intends to seek to have the act more specifically address this segment of the amusement ride industry on the next occasion it is amended.
The act defines what constitutes an ''amusement ride'' and what constitutes an ''amusement attraction,'' and the Department's authority is limited by those definitions. Although a ''haunted house'' in a building or structure clearly falls within the definition of an ''amusement attraction,'' there are such things as ''haunted trails,'' ''haunted forests,'' ''haunted corn mazes'' and similar attractions that are held entirely outdoors. If no building or structure is involved in the attraction, it would not fit within the act's definition of an ''amusement attraction.'' This is illustrative of some of the enforcement issues the Department faces in this general area. Against this backdrop, the Department pursues registration of every ''haunted house'' and other entity that constitutes an ''amusement ride'' or ''amusement attraction,'' of which it is aware, and will work with the commentator to identify any ride or attraction that is not operated in compliance with the act.
The Department agrees with the commentator that enforcement of the act should be without regard to whether the subject amusement ride or amusement attraction is temporary or part of an established amusement park, or whether operated by a for-profit or nonprofit entity.
Comment 7: Kennywood recommended the final-form regulations define what constitutes an ''accident'' for purposes of reporting accidents involving serious injury, serious illness, or death. The commentator offered that: ''Overstating the number of real accidents could mislead the media and the legislature as to the safety of the rides.'' The commentator also offered the following definition:
''Accident''--A mechanical, electrical or structural defect or malfunction that results in the failure of the ride or attraction to operate as designed or intended: failure by the ride operator to follow standard operating procedures resulting in an injury to a rider.Response: The Department declines to add the recommended definition.
Section 13 of the act (4 P. S. § 413) requires the reporting of: ''. . . any accident which involves serious injury or illness or death to an individual or individuals as a result of the operation of an amusement ride or attraction.'' Although ''serious illness or injury'' is defined in the act, ''accident'' and ''operation'' are not.
Proposed § 139.2 adds a definition of ''operation'' which includes the loading, unloading and movement of amusement rides and attractions, but would exclude that portion of a passenger line that extends beyond the gate or rail that is required to surround the ride under ASTM International F-24 Committee standards. This provides greater clarity, and would not require the reporting of accidents that occur in waiting lines that extend outside the immediate enclosure of the ride or attraction.
The Department is aware that the ASTM International F-24 Committee is currently considering whether to establish a definition of an ''accident,'' but is not aware of whether this definition will actually be established. The Department will leave this word undefined in the regulations. If the ASTM International F-24 Committee subsequently defines the term and there is no contrary definition in the act or its attendant regulations, the ASTM International F-24 Committee definition shall control.
Comment 8: Hersheypark recommended that a definition of ''attraction'' be added to the final-form regulations.
Response: The Department declines to implement this recommendation. The term ''amusement attraction'' is defined in section 2 of the act (4 P. S. § 402), and is the term that is relevant throughout Chapter 139. Every reference to the term ''attraction'' in the final-form regulations refers to an amusement attraction--and that phrase is defined by statute and repeated in § 139.2.
Comment 9: Hersheypark recommended that a definition of ''amusement ride and devices'' be added to the final-form regulations.
Response: The Department declines to implement this recommendation because the phrase is not used in the final-form regulations. The phrase is used and defined in the ASTM International F-24 Committee Standards, but is not used in the act or the final-form regulations and is not needed.
Comment 10: IRRC noted that the definition of ''Class I amusement ride or attraction'' in proposed § 139.2 included live animal rides within that definition. IRRC also noted that the definition of an ''amusement ride'' in section 2 of the act uses the words ''any device that carries, suspends or conveys passengers'' and does not include the word ''animal.'' Against this backdrop, IRRC asked whether a live animal would need to be registered and inspected as an amusement ride under the act, and requested an explanation of the Department's authority to address live animal rides.
Response: The Department does not require the registration or inspection of a live animal ride unless the ride entails attaching an animal to a device--in which case the device is an ''amusement ride'' that is registered and inspected. The typical live animal ride that is registered and regulated under the act resembles a live-animal merry-go-round: a fixed central vertical axle with individual animals tethered or otherwise attached to spoke-like appendages extending from the central axis, restricting the animals to a specific course and direction. When the live animal ride employs a device as described previously, it must be registered and inspected. Live animal rides that entail simply letting the rider steer the animal or having an attendant lead the animal through the ride are not registered or inspected under the act. The Department believes its interpretation of the types of live animal rides that must be regulated as ''amusement rides'' is consistent with the act.
Comment 11: IRRC also noted a typographical error in the definition of ''Class I amusement ride or attraction'' in proposed § 139.2, and suggested the parenthetical phrase at the end of subparagraph (iii) be revised to read ''(4 P. S. § 414(a)(1))'' instead of ''(4 P. S. § 414(a)(2)).''
Response: The Department accepts this suggestion, and has implemented the recommended change in the final-form regulation.
Comment 12: Hersheypark asked that the final-form regulations contain definitions of the terms ''general inspector'' and ''independent inspector.''
Response: Proposed § 139.2 defines the terms ''affiliated qualified inspector'' and ''general qualified inspector;'' and those terms are used throughout the final-form regulation. While an affiliated qualified inspector may only inspect rides and attractions owned or leased by designated entities, a general qualified inspector may inspect rides and attractions without regard to who owns or leases them. Although the Department declines to implement the commentator's recommendation, it believes the substance of that recommendation is embodied in the definition and use of the terms ''affiliated qualified inspector'' and ''general qualified inspector.''
Comment 13: Kennywood noted that proposed § 139.2 contains a definition of ''operation'' that would (in the context of amusement rides and amusement attractions) include the loading and unloading of guests while the ride is in a stationary position. The commentator added:
. . . Reporting bumps, bruises, twisted ankles or other events while loading or unloading a ride will only serve to inflate the number of accidents. Such events are more a reflection on the physical condition of the guests and their ability to pay attention than on ride safety. We do not think the number of guests encountering problems boarding rides is any more or less than for passengers boarding buses, planes or other transportation vehicles. The legislature does not compile data in those cases. We request that events while loading and unloading rides be eliminated from the definition of ''operation.''Response: The Department notes that the ability to load and unload riders in a safe, efficient and rapid manner is a consideration in the design of any amusement ride or amusement attraction, and is frequently addressed in the ASTM International F-24 Committee Standards. For this reason, the Department believes it reasonable to adopt a definition of ''operation'' that includes some aspects of the loading and unloading process. The referenced definition seeks to limit the scope of what constitutes the ''operation'' by excluding activities that take place outside the fence or protective barrier that is required to surround an amusement ride under ASTM International F-24 Committee Standards.
Comment 14: Hersheypark offered a comment that is related to the preceding comment by Kennywood. The commentator suggested language be added to the definition of ''operation'' in proposed § 139.2 to address situations where the ASTM International F-24 Committee Standards do not require a fence or barrier, and offered language.
Response: The Department accepts this comment, and has added language to the definition of ''operation'' to implement the commentator's suggestion.
Comment 15: Hersheypark recommended that the definition of ''permanent structure'' in proposed § 139.2 be better defined, and offered language that would clearly include ride stations and similar structures in the definition.
Response: Although the Department agrees the commentator's idea would add some clarification, the definition of the term ''permanent structure'' is prescribed by section 2 of the act, and the Department cannot stray from that language in the final-form regulation.
Comment 16: IRRC and Kennywood offered similar comments on the definition of the term ''professional engineer'' in proposed § 139.2. IRRC offered that the proposed definition is unclear as to whether it would include out-of-State engineers who are allowed to practice temporarily in this Commonwealth under section 5(b) of the Engineer, Land Surveyor and Geologist Registration Law (63 P. S. § 152(b)). IRRC noted that an amusement park might have affiliated parks in other states, and asked whether an out-of-State engineer who complies with the referenced statutory provision and is familiar with the act and its attendant regulations could provide verification for their rides under proposed § 139.4(d)(7)(ii) (relating to registration). IRRC recommended the final-form regulations clarify whether an out-of-State engineer may perform the required tasks for the owner or lessee.
Kennywood requested that consideration be given to allowing the referenced engineer's verification to be provided by any professional engineer licensed in any state and who is a member of the National Society of Professional Engineers.
Response: The Department has revised the referenced definition to clearly state that the term ''professional engineer'' does not include engineers who are exempt from registration and licensure under section 5(b) of the Engineer, Land Surveyor and Geologist Registration Law. The exemption allows out-of-State engineers to engage in the practice of engineering within the Commonwealth for up to 30 days each calendar year without having to be licensed and registered, as long as the standards of their home jurisdiction are ''at least equal to the standards of the Commonwealth.'' There are many jurisdictions that do not have professional qualification standards that equal or exceed those of the Commonwealth. The Department believes that the best and simplest way to verify that another jurisdiction's professional qualification standards for engineers are at least equal to those of this Commonwealth is for the out-of-State engineer to have a license (a temporary license would suffice) issued through the State Registration Board for Professional Engineers, Land Surveyors and Geologists.
With respect to Kennywood's request that membership in the National Society of Professional Engineers determine whether an engineer is a ''professional engineer,'' the Department declines to implement this request, since this membership in this organization is not proof that a member meets the Commonwealth's standards for engineers.
Comment 17: IRRC noted that the final-form regulations would add and define two new terms--''affiliated qualified inspector'' and ''general qualified inspector.'' IRRC suggested that the definition of ''qualified inspector'' in § 139.2 be revised to make it clear that the term includes ''affiliated qualified inspectors'' and ''general qualified inspectors.''
Response: Although the definition of ''qualified inspector'' is prescribed by the act, the Department agrees that IRRC's suggested change would add clarity, and has included the recommended language in the final-form regulation.
Comment 18: Kennywood offered several comments with respect to the definition of ''serious injury or illness'' in proposed § 139.2. The term is used in proposed § 139.11 (relating to accident reporting), which would require owners or lessees of amusement rides to report accidents involving serious injury or illness. The commentator expressed concern that a ride owner or lessee might not know that a particular rider who is injured in connection with the operation of an amusement ride sustained serious injury or illness. The commentator requested that language be added to clarify that there is no reporting requirement unless the park operator has knowledge of the event prior to the time the patron leaves the park, or until the operator receives medical records verifying that offsite medical treatment was administered. The commentator adds:
. . . This modification will clarify reporting for telephone calls or letters reporting alleged injuries or illness received days or weeks after an event where the operator lacks any prior knowledge. We request clarification that any offsite medical treatment must be administered or recommended by a licensed physician. This will eliminate the uncertainty of who must recommend treatment in order for it to be a ''serious injury or illness.'' Many parks hire first aid professionals to provide onsite assistance. In almost every case the first aid provider will suggest to a guest that they follow up with their own physician if any problems arise. This recommendation should not by itself elevate a minor injury to a ''serious injury.''Response: The term ''serious injury or illness'' is prescribed by section 2 of the act. The Department shares the commentator's concern that--from the perspective of the ride owner or lessee that is required to report ''serious injury or illness''--the statutory definition of that term appears to make the owner or lessee responsible to report serious injuries or illnesses of which it might not be aware. In practice, though, the Department does not hold an owner or lessee accountable to report (or report within the required 48-hour window) serious injuries or illnesses of which it is not aware. The Department expects an owner or lessee to pass along the required report of ''serious injury or illness'' once it acquires knowledge that the injury or illness falls within the statutory definition. In the longer term, the Department intends to consider revisions to this definition on the next occasion the act is amended.
Comment 19: IRRC offered several comments with respect to proposed § 139.4. Proposed § 139.4(d)(7)(ii)(B) would require confirmation from a professional engineer that the materials and construction of a ride or attraction conform to ''normal engineering practices, procedures, standards and specifications.'' In addition, proposed subsection (d)(7)(ii)(C) uses the term ''accepted engineering practices.'' IRRC offered that both of these standards are vague, and that: ''It would be difficult for professional engineers to know exactly what it is that they are confirming and it would be difficult for the Department to enforce these provisions.'' IRRC recommended these standards either be better-defined or deleted. IRRC based the option to delete on subsection (d)(7)(ii)(D), which would require a ride or attraction to meet ASTM International F-24 Committee Standards.
Response: The Department declines to delete or revise the referenced language. The Department consulted with the mechanical engineer member of the Board on this subject. Terms such as ''accepted engineering practices'' and ''normal engineering practices'' are commonly used and widely understood throughout the various technical engineering disciplines (such as, mechanical, electrical, civil, structural, and the like). The Department does not seek to constrict or limit the professional engineer.
Comment 20: Hersheypark reviewed proposed § 139.4(e) and suggested that language should be added to address or require Board review of proposed amusement ride or amusement attraction registrations. The commentator asks: ''What is the mission of Board relating to ride review?''
Response: For the reasons that follow, the Department declines to implement the commentator's recommendation.
The duties of the Board do not include a formal role in the Department's review and approval of amusement rides and amusement attractions under the act. In summary, the statutory duties of the Board (under section 6 of the act (4 P. S. § 406)) are to:
. . . advise, consult, make recommendations and propose reasonable rules, regulations and standards to the department for the prevention of conditions detrimental to the public in the use of amusement rides and attractions as the board finds necessary for the protection and safety of the public . . .The Board comprises a knowledgeable cross-section of interests and experience relating to amusement rides and attractions. The Board's statutory role is to consult and advise. The Department views the Board as an invaluable resource, and seeks-out this body with respect to each application for approval of an amusement ride or amusement attraction. Although the Board is not an adjudicatory or decision-making body, the Department presents every proposed amusement ride or amusement attraction registration to the Board, and seeks its advice and recommendation. The final decision with respect to a registration application lies with the Department, though. The Department cannot, by regulation, expand upon the scope of the duties imposed on the Board under the act.
Comment 21: Hersheypark noted that proposed § 139.4(h) would require that the Department-issued registration plate be affixed to each amusement ride or attraction in a location where the plate is visible to the riding public, and suggested that language be added to allow the plate to be affixed or posted other than on the ride or attraction if necessary to make the plate visible to the riding public.
Response: The Department accepts this suggestion, and has implemented it in the final-form regulation.
Comment 22: Kennywood noted that proposed § 139.5 (relating to insurance) would delete current regulatory language that allows for required insurance coverage to be provided through businesses eligible to do business under the Surplus Lines Insurance Law. The commentator stated that some of its current insurance coverage is provided through ''non-admitted surplus lines carriers,'' and that the regulation would serve to exclude these providers from being able to provide coverage. The commentator suggested that the regulation should ''. . . allow surplus line carriers who have an insurance rating by A. M. Best of B+ or higher.''
Response: The Department agrees that the subject of surplus lines insurance needs to be referenced in the final-form regulations. Although section 14(b) of the act (4 P. S. § 414(b)) authorizes required insurance coverage to be obtained through any insurer or surety that is eligible to do business under the Surplus Lines Insurance Law, the Surplus Lines Insurance Law was repealed by the act of December 18, 1992 (P. L. 1519, No. 178). The subject matter of the repealed Surplus Lines Insurance Law is currently found in Article XVI of The Insurance Company Law of 1921 (40 P. S. §§ 991.1601--991.1625). The Department has inserted this appropriate legal reference in the final-form regulations.
Comment 23: Hersheypark and Kennywood both offered essentially the same comment with respect to proposed § 139.5(c)(3). The concern is with whether that paragraph means that all of a particular owner or lessee's rides have to be listed individually on the required certificate of insurance. Hersheypark noted that this would be difficult to administer by both the owner and the Department, and Kennywood noted that the Department would have this information on the registration forms it requires with respect to these rides.
Response: The Department agrees with the commentators, and has added language to this paragraph to allow a certificate of insurance to either list all insured rides or clearly state that all rides owned, operated or leased by the insured are subject to the insurance policy.
Comment 24: In response to the advance notice of this final-form rulemaking provided by the Department, the Inflatable Industry Purchasing Group, Inc. recommended that the final-form rulemaking establish a requirement that there be mandatory insurance coverage and documentation requirements for amusement ride and amusement attraction manufacturers and distributors. This would be in addition to the owner and operator insurance requirements set forth in proposed § 139.5.
Response: Although the Department believes it would be sound business practice for an amusement ride or amusement attraction manufacturer or dealer to carry adequate insurance coverage to address the risks and liabilities it is likely to encounter, the Department declines to establish a mandatory insurance requirement for these entities in the final-form rulemaking. The General Assembly has made clear the limits of the type of insurance coverage the Department can require; and the expansion of these requirements recommended by the commentator would exceed the Department's legislative authority in this area. Section 7 of the act imposes specific insurance requirements with respect to owners and operators of amusement rides and amusement attractions; but does not go so far as to extend insurance requirements to manufacturers and dealers.
Comment 25: Hersheypark noted that proposed § 139.7(b) (relating to inspection) might be read as requiring rides to be inspected year-round, rather than only during seasons when the rides are in operation for the riding public. Hersheypark also noted that the current § 139.7(b)(1)--which is proposed for deletion--uses the phrase ''during a season for operation for use by the general public'' to limit the period within which regular inspections are required, and suggested this phrase be worked into the final-form regulation to add clarity.
Response: The Department accepts this suggestion, and has implemented it in the final-form regulations.
Comment 26: Hersheypark reviewed proposed § 139.9(a) (relating to qualified inspectors), and observed that it requires amusement ride inspections to be completed by qualified inspectors. The commentator expressed concern that this might be read as requiring that only ''qualified inspectors'' conduct the numerous daily inspections performed at amusement parks.
Response: The Department believes that a full reading of the referenced provision would avoid confusion on the part of the regulated community. The referenced subsection requires that a qualified inspector perform any inspections of amusement rides or amusement attractions ''. . . required under the act.'' The numerous daily inspections performed at amusement parks are not the regular inspections required under the act--so they need not be performed by persons who are ''qualified inspectors'' for purposes of the act.
Comment 27: IRRC noted that proposed § 139.9(g) would require the Department to ''promptly'' report the results of a Qualified Inspector Test to the applicant. The commentator recommended that the final-form regulation include a more definitive time frame for reporting results to an applicant.
Response: The Department accepts the comment, and has implemented IRRC's recommendation in the final-form regulation by requiring the test to be scored, and the test results reported to the applicant, within 30 days of the test.
Comment 28: Hersheypark noted that proposed § 139.9(k)(1)(i) would require a qualified inspector who is seeking renewal of certification to provide the Department a variety of information and material to prove compliance with continuing education requirements. The commentator suggested that since proposed § 139.9(l) would require continuing education courses to be approved by the Department, a course completion certificate--reflecting completion of one of these Department--approved continuing education courses--should be all the documentation the Department requires to verify that continuing education requirements have been met.
Response: The Department accepts this comment, and has implemented it in the final-form regulation.
Comment 29: IRRC noted that proposed subsection 139.9(l) includes provisions that would allow the Department to reduce the hours of continuing education required for certain types of rides or attractions by means of a publication of notice in the Pennsylvania Bulletin without a rulemaking or amendment to the regulation. IRRC offered the following:
. . . The subsection states that this action would be considered for rides or attractions ''of a comparatively simple design or operation.'' This is very similar to the definition for ''Class I'' rides or attractions. Hence, it is unclear what would justify a reduction in the requirement. This subsection needs to be refined to provide more information about the bases or criteria that would be used to reduce the continuing education requirement for certain rides or amusements.Response: The distinction between ''Class I'' amusement rides and ''Class II'' amusement rides exists only for the purpose of determining the appropriate minimum liability insurance coverage for these rides. The classification of amusement rides as ''Class I'' or ''Class II'' is made in section 14 of the act--the provision of the act addressing required insurance coverage--and nowhere else.
The Department seeks to separate insurance issues from continuing education requirements. There is not a perfect correlation between the two. Also, given the constant innovation in the amusement ride industry, the Department seeks to preserve some reasonable leeway with respect to the minimum hours of continuing education required with respect to a particular type of ride.
In response to IRRC's suggestion, though, the Department has revised this subsection to provide that continuing education would never be less than 16 hours.
Comment 30: Hersheypark reviewed proposed § 139.9(l), emphasized the importance of continuing education, and reminded the Department that its own inspectors should comply with the minimum continuing education requirements. The commentator also recommended that the minimum training for a general qualified inspector be reduced from the proposed 48-hour minimum to 40 hours. The commentator noted that ''. . . larger seminars generally last 3 to 5 days with 8 hours of instruction per day,'' and suggested that 48 hours would require attendance at more than one of those seminars.
Response: The Department declines to implement this recommendation. The proposed 48-hour minimum will likely require that a general qualified inspector attend more than one seminar during the 3-year certification period preceding recertification; and this is by design. The Department believes continuing education is important, and that requiring a general qualified inspector to attend more than one training course during a period of certification is reasonable.
Comment 31: In response to the advance notice of the final-form rulemaking provided by the Department, the President/CEO of Magic Carousels, LLC, noted his familiarity with the assembly, operation and upkeep of the amusement rides in his charge. He also described how he had a direct interest in making sure these rides are mechanically safe, and are manned by well-trained operators. His concern was that the ''current PA training and continuing education is excellent and should be sufficient for re-certification,'' but that the training requirements in the final-form regulation would create a hardship by keeping a certified inspector away from his workplace for ''more than a week'' pursuing the required continuing education described in proposed § 139.9(l).
Response: The Department declines to revise the training requirements described in § 139.9(l) of the final-form rulemaking. The commentator would fall within the ''affiliated qualified inspector'' category of qualified inspector; and the final-form regulations would simply require 24 hours of appropriate continuing education training over the 3-year interval during which certification remains in effect. This equates to one 8-hour training course each year. The Department believes this is not an unduly burdensome continuing education requirement.
Even if the commentator is a ''general qualified inspector,'' the continuing education requirement would be a total of 48 hours--averaging only 16 hours of continuing education each year. The Department does not believe this requirement is overly burdensome.
Comment 32: In response to the advance notice of this final-form rulemaking provided by the Department, a qualified inspector offered several related comments with respect to § 139.9(l). The commentator suggested that the minimum number of hours of required continuing education for an affiliated qualified inspector should be 48 hours--the same as for a general qualified inspector. The commentator expressed skepticism over whether there are actual differences between the responsibilities of these inspectors so as to justify different minimum continuing education requirements. The commentator offered that amusement rides: ''. . . are becoming more complex and the older rides are aging and both have an increased need for inspector expertise.'' The commentator was also critical of the language that would allow the Department to reduce the minimum continuing education requirements to as few as 16 hours with respect to certain rides and attractions it determines to be of a ''comparatively simple design.''
Response: The Department declines to revise the minimum continuing education requirements in response to this comment. A general qualified inspector may inspect a wider array of amusement rides than an affiliated inspector. The Department is satisfied that the difference between the minimum continuing education requirements for affiliated qualified inspectors and general qualified inspectors (24 hours v. 48 hours) is justified by the wider range of amusement rides and amusement attractions that may be inspected by a general qualified inspector. As far as the 24-hour minimum continuing education requirement for affiliated qualified inspectors is concerned, the Department is satisfied that this is an adequate requirement. As far as the language affording the Department the option to reduce the continuing education requirement to as few as 16 hours under certain circumstances, the Department believes that this language provides it a tool by which to accommodate the owners and operators of simpler rides. In considering whether to exercise this option, though, the Department will err on the side of requiring more than the minimal training necessary to the safe erection and operation of a given amusement ride or amusement attraction.
Comment 33: Several comments were received with respect to proposed § 139.10 (relating to advisory board), which the Department proposed to delete. Kennywood sought confirmation that the composition and duties of the Board would remain as prescribed by the sections 5 and 6 of the act (4 P. S. §§ 405 and 406). Hersheypark offered that: ''. . . The mission and responsibility of the Advisory Board needs to be included and annotated in the rulemaking,'' and asked why the section is proposed for deletion. Hersheypark also offered that:
The integration between the Department of Agriculture and the experience of the board member is paramount to the successes of the amusement industry. Deleting any reference to the Advisory Board suggests that safety of the industry is not important.Hersheypark also recommended that the regulation continue to specify that seats on the Board be reserved for the President and Chairperson of the Pennsylvania Amusement Park Association.
Response: As proposed, the Department would simply delete § 139.10 and allow the language of sections 5 and 6 of the act to speak for itself. The Department believes that the referenced statutory language is self-executing, that the current regulatory provision is somewhat out-of-step with the act, and that it would serve no regulatory purpose to simply repeat the exact language of the act.
In light of the comments offered with respect to proposed § 139.10, though, the Department has revised that section in the final-form regulation to restate the exact composition of the Board, as prescribed by the act. The Department concedes that the inclusion of a reference to the Board's composition and function can do no harm; but the Department cannot by regulation limit or expand the composition or duties of the Board.
Comment 34: IRRC reviewed proposed § 139.11 (relating to accident reporting), and noted that the definition of the term ''serious injury or illness'' in section 2 of the act includes situations where ''offsite medical treatment . . . may be required at a future date.'' IRRC observed that, in practice, an owner or operator might have no idea that a person sought or received ''offsite medical treatment'' after sustaining an injury or illness related to the operation of an amusement ride or amusement attraction. IRRC questioned whether the Department expected or required a report under these circumstances. IRRC recommended that the final-form regulation clarify the circumstances under which a report is required, and raised the question:
If the injured or ill party is not transported offsite for medical treatment within a few minutes or on the same day of the accident, then why is an owner, operator or lessee required to report the injury or illness?Response: The Department agrees that the requested clarification would be helpful, and has implemented this recommendation in § 139.11(a) of the final-form regulation by adding language specifying that the Department would not hold an owner or lessee responsible to report a death or serious injury or illness of which it is unaware.
Comment 35: IRRC noted the absence of the word ''illness'' in proposed § 139.11(b)(5)--(7), and recommended this term be worked into the language of these provisions.
Response: The Department accepts IRRC's recommendation, and has revised the final-form regulation accordingly.
Comment 36: Section 13 of the act requires that an accident report include a description of the amusement ride involved and the nature of the injuries or the cause of death. Kennywood took note of this, and asked whether the Department would exceed its statutory authority by requiring an accident report to provide more detail than is described in the preceding sentence. The commentator also questioned whether the Health Insurance Accountability and Portability Act of 1996 (HIPAA) would prohibit the disclosure of names of ill or injured persons and the nature of their injuries. The commentator also offered the following:
We believe that such information should remain confidential. We suggest that the regulations indicate that the operator retain all additional information related to the accident and that the inspector shall be permitted to review such records during any follow up inspections.Response: The Department declines to revise the referenced section in response to this comment. The Department believes the act does not limit the types of information the Department might reasonably require in an accident report. Where section 13(a) of the act states that an accident report ''shall include'' certain information, the Department interprets this phrase as meaning ''shall include, but is not limited to.'' The Department is also satisfied that it is not an entity to which HIPAA is applicable, in that it is not a health care provider as designated in that statute.
Comment 37: Kennywood reviewed proposed § 139.11 and requested that language requiring an owner or lessee to report certain ''serious illness'' to the Department be deleted. The commentator stated that:
. . . Based upon all the information presented, any individual who exits a ride and begins to experience motion sickness, illness or vomiting, which is not uncommon at an amusement facility, would require an accident report to be filed, this would dramatically increase the number of ''false'' accident reports.Response: The Department declines to make the requested revision. An illness does not become reportable as a ''serious illness'' unless the illness requires offsite first aid, offsite medical treatment, observation by a licensed physician or admission to a hospital. In the examples presented by the commentator, the illnesses would rarely be reportable.
Comment 38: Section 7(d) of the act requires that when a death results from the operation of an amusement ride, it not be reopened ''. . . until declared safe by the insurance company of the operator.'' Proposed § 139.11(c) repeats this requirement. Kennywood took note of this provision, and offered that Kennywood's insurance carriers would not declare a ride safe to reopen after a fatal accident. The commentator suggested that the final-form regulations simply require that an operator provide the Department a current certificate of insurance prior to reopening a ride after a fatal accident.
Response: The Department cannot implement the commentator's suggestion, since the referenced requirement that the insurance carrier declare a ride safe after a fatal accident is prescribed by the act.
Comment 39: IRRC noted that proposed § 139.12 (relating to variances) would be deleted in its entirety, and recommended the regulation retain a reference to section 9 of the act--the provision that describes variances--for owners or lessees who may need to apply for a variance. Kennywood noted this proposed deletion, and sought assurance that the referenced statutory language relating to variances would continue to apply.
Response: The Department accepts IRRC's comment, and has replaced § 139.12 with the relevant verbatim text from the act. This revision also addresses Kennywood's comment.
Comment 40: IRRC and Kennywood offered related comments with respect to proposed § 139.42(a) (relating to structures). Both commentators noted that the Pennsylvania Construction Code Act applies to buildings and similar structures, and that it does not include standards or requirements for amusement rides or attractions (which are addressed in the ASTM International F-24 Committee Standards). IRRC recommended that the final-form regulations be revised to clearly indicate that § 139.42 applies only to buildings, facilities or structures not manufactured as part of an amusement ride or attraction and that the references to ''rides'' and ride or attraction in the first sentence be stricken.
Response: The Department agrees with the commentators. Language has been added to the final-form regulations to reflect that the Pennsylvania Construction Code Act (35 P. S. §§ 7210.101--7210.1103) is only applicable to shelters and buildings that are not part of the amusement ride or attraction.
Comment 41: IRRC recommended that proposed § 139.43(8) (relating to passenger-carrying rides) be revised to include a reference to the ASTM International F-24 Committee Standards, since the term ''clearance envelope'' is a term-of-art from those standards. Hersheypark raised a comment with respect to this same paragraph, seeking clarification as to how existing rides might be exempted (grandfathered) from the referenced ''clearance envelope'' requirement.
Response: The Department accepts IRRC's suggestion, and has included the requested reference in the final-form regulations.
With respect to Hersheypark's concerns, the Department offers that the clearance requirements prescribed in this paragraph are reasonable and would be immediately applicable to an amusement ride or amusement attraction. If a ride or attraction was constructed at a time when the ASTM International F-24 Committee Standard for a ''clearance envelope'' was something other than as currently prescribed by those standards, the earlier standard would apply, in accordance with proposed § 139.41(c) (relating to general).
Comment 42: IRRC and Hersheypark offered essentially the same comment with respect to proposed § 139.72(2) (relating to erection/disassembly of amusement rides and attractions). Each sought clarification of what constitutes a ''high voltage line.''
Response: The Department accepts the comment, and has made the recommended clarification in the final-form regulations. Language has been added to link this provision to the definition of ''high voltage line'' as defined in the National Electric Code.
Comment 43: With respect to proposed § 139.72(3), Kennywood sought clarification as to whether preexisting amusement rides would be ''grandfathered'' from having to meet the requirement that means of egress be at least 36 inches in width.
Response: The Department believes this 36-inch standard is reasonable, and is consistent with current ASTM International F-24 Committee Standards for amusement ride egress. If a particular ride was designed or constructed with a narrower means of egress at a time when ASTM International F-24 Committee Standards did not require this width, the owner or operator may apply to the Department for a variance in accordance with § 139.12.
Comment 44: In response to the advance notice of final-form rulemaking provided by the Department, a qualified inspector offered that proposed § 139.74(c) (relating to temporary wiring) contained a misspelling of the word ''receptacles.''
Response: The commentator is correct. The error appears in the current regulation; and the final-form regulations corrects that error.
Comment 45: IRRC recommended that proposed § 139.75(a) (relating to fire protection and prevention) be revised to clarify the phrase ''and otherwise where necessary to secure reasonable and adequate protection from fire hazards.'' IRRC added:
. . . What is the intent or objective? It is unclear how this phrase would be enforced as a binding standard on regulated parties. It should be clarified in the final-form regulations.Response: The Department accepts IRRC's recommendation, and has added language to the final-form regulation to clarify that the objectives of fire extinguisher placement are to have extinguishers accessible and in use within 20 seconds of a person spotting a fire, and sufficiently removed or protected from potential exploding or highly-flammable material to prevent their damage or destruction in the initial explosion or flames.
Comment 46: IRRC offered the following comment with respect to proposed § 139.76(6) (relating to ride and attraction operators and attendants):
. . . It is our understanding that the phrase ''sufficient numbers of operators and attendants'' will always be enforced as meeting or exceeding the number of operators recommended by the manufacturer. If this is the case, the phrase ''sufficient numbers of operators and attendants'' is unnecessary and should be deleted. The final-form regulation need only state that the numbers of operators and attendants shall meet or exceed the manufacturer's recommendations.Response: The Department accepts this suggestion, but has also added language to the final-form regulation to reflect that in the event a manufacturer does not provide recommended minimum numbers of operators or attendants, or these numbers are lesser than those prescribed in ASTM International F-24 Committee Standards, the existing standards calling for the highest number of operators or attendants applies.
Comment 47: In response to the advance notice of final-form rulemaking provided by the Department, a qualified inspector noted that § 139.77(c) (relating to maintenance of amusement rides and attractions) addresses wire rope used in connection with amusement rides, and recommended the ''rag test'' (a test by which the inspector runs a shop rag over a wire rope, with the expectation that the rag will snag on any broken strand) be described and required in the final-form regulation.
Response: The Department agrees that the rag test is a good method by which to detect tears in wire rope. Rather than incorporate that test into the final-form regulation, though, the Department will see that this tip for detecting tears in wire rope is referenced in relevant training courses.
Comment 48: With respect to proposed § 139.77(f)(8), IRRC recommended that the final-form regulation delete the following sentence: ''Additional retention periods for this documentation may be advisable.''
Response: The Department has made the recommended revision in the final-form regulation. In addition, the Department has expanded the period for which records must be kept and made available to the Department to 3 years.
Comment 49: Hersheypark sought clarification as to whether § 139.79(a)(2)(i) and (ii) (relating to records) were proposed for deletion in the proposed rulemaking.
Response: Since the Department does not propose to change or delete the referenced paragraphs, the text of these subparagraphs was not printed when the proposed rulemaking was published for comment. These paragraphs will remain unchanged.
Comment 50: With respect to proposed § 139.79, IRRC noted that this section requires owners or lessees to maintain certain records. The commentator offered:
. . . How long must the regulated parties retain these files in order to make them available for the Department or a qualified inspector? Records discussed in existing § 139.77(e)(8) are required to be retained for a year. The final-form regulation should include a similar directive for the records discussed in this section.Response: The Department accepts this recommendation, and has revised the final-form regulations accordingly. Since the Department has revised § 139.77(e)(8) to require a 3-year record retention period, though, the new language establishes that same interval as the record retention period required under § 139.79.
Affected Individuals and Organizations
The final-form regulations will impact upon the amusement ride and amusement attraction industry, as well as upon the riding public. There are approximately 7,400 registered amusement rides and amusement attractions that are either located within this Commonwealth or that are brought into this Commonwealth (for events such as fairs and carnivals) each year. There are approximately 675 owners or lessees of these rides and attractions. This community of ride and attraction owners and lessees will be impacted by these final-form regulations, as would the riding public.
Fiscal Impact
Commonwealth. The final-form regulations impose no costs and have no fiscal impact on the Commonwealth.
Political subdivisions. The final-form regulation impose no costs and have no fiscal impact upon political subdivisions.
Private sector. The final-form regulation might impose some new costs on amusement ride or amusement attraction owners or operators. The final-form regulations might require some owners or operators to hire additional operators or attendants for their rides and attractions to meet or exceed the minimum number recommended by the ride or attraction manufacturer. The other changes that would be established by the final-form regulations would not have appreciable fiscal impact upon the private sector. Since the final-form regulations would move the Commonwealth's standards into greater conformity with the ASTM International F-24 Committee Standards and these standards are the widely-accepted industry standards for amusement ride and amusement attraction design, construction and operation, the related industry is either already in compliance with these standards or can readily come into compliance with these standards without appreciable costs.
General public. The final-form regulation would impose no costs and have no fiscal impact on the general public. The final-form regulations would enhance public safety.
Paperwork Requirements
The final-form regulations will not impact upon the paperwork generated by the Department or the regulated communities.
Effective Date
The final-form regulations will be effective upon publication in the Pennsylvania Bulletin.
Contact Person
Individuals who need information about the final-form regulations should contact the Department of Agriculture, Bureau of Ride and Measurement Standards, Division of Ride Safety, 2301 North Cameron Street, Harrisburg, PA 17110-9408, Attention: John Dillabaugh, Director.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 13, 2007, the Department submitted a copy of the notice of proposed rulemaking, published at 37 Pa.B. 2823, to IRRC and the Chairpersons of the House and Senate Standing Committees on Agriculture and Rural Affairs (Committees) for review and comment.
Under section 5(c) of the Regulatory Review Act, the Department provided IRRC and the referenced Committees with copies of all comments received during the public comment period.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on November 5, 2008, the final-form regulations were deemed approved by the Committees. Under section 5.1(g) of the Regulatory Review Act, the final-form regulations were approved by IRRC on November 6, 2008.
Findings
The Department finds that:
(1) Public notice of intention to adopt these final-form regulations have 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) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law; and all comments that were received were considered. In addition, advance notice of the final-form regulations provided interested persons a second opportunity to comment.
(3) The modifications that were made to these regulations in response to comments received do not enlarge the purpose of the proposed amendments published at 37 Pa.B. 2823.
(4) The adoption of the final-form regulations in the manner provided in this order is necessary and appropriate for the administration of the authorizing statute.
Order
The Department, acting under the authorizing statute, orders that:
(a) The regulations of the Department, 7 Pa. Code Chapter 139, are amended by amending §§ 139.1--139.14, 139.41, 139.42, 139.71--139.77 and 139.79 to read as set forth in Annex A.
(b) The Secretary of Agriculture shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval as required by law.
(c) The Secretary of Agriculture shall certify and deposit this order and Annex A with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
DENNIS C WOLFF,
Secretary(Editor's Note: For the test of the order of the Independent Regulatory Review Commission relating to this document, see 39 Pa.B. 6429 (November 29, 2008).)
Fiscal Note: Fiscal Note 2-102 remains valid for the final adoption of the subject regulations.
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