Section 5.14 - Challenge Courses(1)General Administrative Procedures. (a)Scope. 520 CMR 5.14 establishes the general administrative provisions including license and permit issuance, fees, and inspections for Challenge Courses. 520 CMR 5.14 applies to Challenge Courses not located in amusement parks or carnivals. 520 CMR 5.14 does not apply to Challenge Courses having only low elements.(b)Issuance of Annual License and Permits Denials; Appeals. 1. No person shall manufacture or sell for use in the Commonwealth, operate, arrange for, or cause to be used, any Challenge Course that is not in compliance with 520 CMR 5.14.2. Prior to any Challenge Course owner being licensed to operate in the Commonwealth, the owner shall provide the following documents to the Department: a. Completed application as provided by the Department;b. Required fees in accordance with the fee schedule set forth in 801 CMR 4.02: Fees of Licenses, Permits, and Services to Be Charged by State Agencies;c. Certified Inspector's report(s);d. Certificate of insurance demonstrating compliance with M.G.L. 140, § 205A, and 520 CMR 5.14(1)(d);e. The name of the designated Challenge Course Manager;f. A list of the Challenge Course Staff trained in compliance with the specifications of the Qualified Challenge Course Professional;g. The Staff Training Plan;h. A completed Criminal Offender Record Information (CORI) Request Form;i. A pre-employment criminal history inquiry procedure in accordance with 520 CMR 5.14(2)(h);j. Name and qualifications of the Qualified Challenge Course Professional;k. Attestation of annual personnel training; andl. Site plan(s) numbered sequentially beginning with element number 01.3. The owner shall apply for the annual license(s) to operate each Challenge Course(s) at least ten days prior to commencing operations or expiration of the annual license(s) on a form supplied by the Department.4. Licensure shall be conditioned upon the completion of a CORI inquiry by the Department pursuant to authorization granted by the DCJIS in accordance with M.G.L. c. 6, § 172(b) and (c) and in accordance with the Department's guidelines for evaluating CORI reports.5. Upon approval, the Department shall issue a license to the owner to operate in the Commonwealth. The Department shall assign a state identification number for each Challenge Course.6. No Challenge Course Element shall be operated without a valid annual license issued to the individual Challenge Course.7.Denial; Appeals. The Commissioner may refuse to issue a license to an applicant based on the following grounds: (a) Submittal of an incomplete application or submittal of an application on a form not authorized by the Department.(b) Failure to submit a Pre-employment criminal history inquiry procedure.(c) Failure to submit required fees.(d) Knowingly submitting false, invalid, incorrect or fraudulent information.(e) Failure to submit a CORI Request Form.(f) If at the time of application, the applicant is under investigation by the Department or other law enforcement agency in connection with the operation of Challenge Course elements.(g) If the Commissioner finds that the applicant does not possess the integrity and general fitness to operate Challenge Course elements in a safe manner and in the interest consistent with 520 CMR 5.00 or M.G.L. c.140, § 205A.8. If the Commissioner refuses to issue a license, he shall notify the applicant in writing, setting forth the reasons for the denial. Within 21 days of receipt of the denial, the applicant may make written demand upon the Commissioner for a hearing before the Commissioner or his designee to determine the reasonableness of the Commissioner's action. The hearing shall be held promptly and in accordance with M.G.L. c. 30A and 801 CMR 1.02.9. If, after a hearing, the Commissioner denies the issuance of the license, he shall notify the applicant in writing. Such notice shall be sent by certified first class mail and shall contain the reasons supporting the denial. Within 30 days after receipt of the notice, the applicant may appeal such denial to Superior Court in accordance with M.G.L. c. 30A, § 14.(c)Insurance Requirements. 1. The owner of a Challenge Course shall furnish proof that all individual elements that comprise the Challenge Course are insured and shall further furnish proof of financial responsibility to satisfy claims for damages on account of any physical injury or property damage suffered by any person during the authorized use of the Challenge Course. Proof of financial responsibility shall be furnished by way of commercial general liability insurance, or, in the case of self-insured entities, the pecuniary equivalent as approved by the Commissioner. Owners shall indicate coverage, in the minimum amount of $1,000,000 per occurrence limit with a $2,000,000 general aggregate limit, or the statutory limit, written on an occurrence form, a bond, or other substantially equivalent proof approved by the Commissioner.2. Certified Inspectors shall also furnish proof of general liability insurance in the minimum amount of $1,000,000 per occurrence limit written on an occurrence form or other substantially equivalent proof approved by the Commissioner, not later than ten days prior to the operation of the Challenge Course. a. Certified inspectors shall notify the Department within 14 days of changes in general liability insurance coverage, including but not limited to cancellation of the policy for which proof was previously provided to the Department.b. Certified inspectors shall provide proof of insurance to the Department upon obtaining general liability coverage that varies in any way from the proof originally provided to the Department for initial certification. Reasons for providing proof of new insurance may include but shall not be limited to relocation and new employment.(d)State Identification Numbers. 1. Each Challenge Course shall be identified using a number issued by the Department and posted on each course.2. When a Challenge Course is approved, the Department shall assign a USID number to each course to identify to the public that the challenge course conforms to the requirements for licensing.3. New Challenge Courses that do not have a Department-issued number shall receive such number upon application for the annual license along with other documentation required by 520 CMR 5.00.4. The Challenge Course USID number shall be visibly displayed at the site of the course.(e)Inspector and Police Admission to Grounds. As a condition of the license, owners shall grant unlimited access to any law enforcement officers, fire officials or inspector(s) of the Department to the grounds, elements and structures covered by 520 CMR 5.14 in the performance of their duties.(f)Inspection by the Certified Inspector. 1.Inspection by the Certified Inspector. a. All Challenge Course elements and equipment shall be inspected by a Certified Inspector in accordance with the ACCT Standards or equivalent standards as approved by the Commissioner prior to being allowed to operate in the Commonwealth.b. The Certified Inspector shall examine maintenance records for the elements from the previous year and ensure that all required corrective actions and manufacturer specified repairs, modifications, and upkeep requirements have been implemented.c. The Certified Inspector shall examine the Local Operating Procedures to verify that they are based upon the Qualified Challenge Course Professional's Standard Operating Procedures and are in compliance with ACCT Standards 8th Edition or equivalent standards as approved by the Commissioner.d. Upon completion of the inspection, the Certified Inspector shall document any and all findings that require attention, as well as any areas that are of concern for further observation. This information shall be presented in a report to the owner in accordance with the ACCT Challenge Course Inspection Standards or equivalent standards as approved by the Commissioner.e. Issues directly affecting the safety and integrity of the element or equipment shall be appropriately corrected before the element or equipment is certified by the Certified Inspector.f. The owner shall submit the Certified Inspector's report to the Department along with a completed Challenge Course Inspection Summary form provided by the Department. This form shall: i. Identify items found to be out of compliance;ii. Document a review of the following records: a. Specialty inspection reports;b. Maintenance Repair Logs;c. Staff Training Plan; andd. Daily Equipment Inspection Logs;iii. Identify corrective action requirements, if any; andiv. State the name and the Massachusetts Certificate of Competency License Number of the certified inspector, printed legibly.(g)Acceptance Inspection by the Certified Inspector. An acceptance inspection shall be performed by a Certified Inspector on all newly installed Challenge Course elements in the Commonwealth. The acceptance inspection shall be done in accordance with the requirements of 520 CMR 5.14(1)(h)1. before the element may be operated.(h)Inspection by the State Inspector. 1. All Challenge Course elements or the equipment associated with such devices may be inspected by a State Inspector. The Department may charge a fee for inspections in accordance with the fee schedule set forth in 801 CMR 4.02: Fees of Licenses, Permits, and Services to Be Charged by State Agencies.2. A general inspection by the State Inspector of all Challenge Course elements, Artificial Climbing Structures, and equipment may include the following: a. A review of the maintenance records for the past 30 days, including Maintenance Repair Logs;b. A review of the Daily Equipment Inspection Logs;c. A review of the operator Challenge Course Staff training records and Staff identifications;d. A visual inspection of the device or structure; ande. A review of the Certified Inspector's report.3. The state inspector shall document any issues of concern and immediately notify the owner, or his or her representative, of such concerns. Issues directly affecting the safety and integrity of the device shall be immediately addressed. Upon completion of the inspection, the state inspector shall provide the owner, or his or her representative, with a written inspection report. If any Challenge Course element or associated equipment is not certified at the time of inspection, the state inspector performing the inspection shall state on the Amusement Device Checklist whether a re-inspection is required after the violation has been resolved.4.Re-inspection. Where an element or any associated equipment is not certified for operation at the time of inspection and requires a re-inspection, an owner shall apply to the Department for a re-inspection5. The Department may charge a fee for re-inspection of a device in accordance with the fee schedule set forth in 801 CMR 4.02.
6.Preparation for State Inspection. a. The owner shall ensure that the Challenge Course element and associated equipment is ready for the state inspection at the scheduled time.b. If the Challenge Course element and associated equipment is not available at the time of the scheduled state inspection, it shall be deemed to have failed the inspection.c. The owner, or his or her designee shall be available to the State Inspector during the inspection.7.Variance. a. If the owner believes that full compliance with 520 CMR 5.14 is overly burdensome, they may apply to the Commissioner for a variance from 520 CMR 5.14. The burden is on the applicant to demonstrate in writing to the Department that the granting of the variance would not compromise public safety or otherwise undermine the purpose of 520 CMR 5.14. Application for a variance shall be made on a form provided by the Department for this purpose shall contain such information as is required by the Department, and shall be signed by the applicant.b. Upon receipt of an application for a variance, the Commissioner, or his designee may: i. Grant the application with whatever conditions are deemed appropriate.ii. Deny the application without a hearing.c. Any person aggrieved by this decision may file a request for an adjudicatory hearing with the Department within 30 days of receipt of the decision. All adjudicatory hearings shall be held in accordance with the provisions of M.G.L. c. 30A and 801 CMR 1.02. Any person aggrieved by a decision made after a hearing may appeal to the Superior Court in accordance with M.G.L. c. 30A, § 14.(2)Owner Responsibility. (a)Scope. 520 CMR 5.14(2) establishes the responsibilities of owners of Challenge Courses regarding the safe operation and maintenance of such courses.(b)Local Operating Procedures Manual. The owner shall be responsible for ensuring that each Challenge Course site has a Local Operating Procedure (LOP) Manual which is based on a Standard Operating Procedure that has been verified by the Qualified Challenge Course Professional and includes a list of items that shall be checked by the Challenge Course Staff before each day's use of the element. This manual shall be kept at the site of the Challenge Course and shall be made available to the Certified Inspector and State Inspectors during inspection visits.(c)Challenge Courses. 1. The owner shall not install, operate, or allow to be operated, any Challenge Course that does not have a valid license, or any element that does not have a valid element number issued pursuant to 520 CMR 5.14(1)(c).2. Existing equipment shall be maintained in accordance with 520 CMR 5.14.3. Climbing equipment used in life support applications associated with the Challenge Course shall be secured from unauthorized use.(d)Records. 1. The owner shall submit the Certified Inspector's report to the Department along with a completed Challenge Course Inspection Summary form as provided by the Department.2. Copies of all manufacturer's corrective actions or recommendations received by the owner shall be forwarded to the Department within 14 days of receipt.3. Local Operating Procedures for all Challenge Course elements shall be kept by the owner at the Challenge Course business address and shall be available to the Department and Certified Inspector upon request.4. A record of all maintenance, inspections and tests for all elements shall be documented immediately upon completion of the test, inspections and maintenance performed, and shall be available to the Department for one year. After one year, such records shall be maintained by the owner. Challenge Course records may be stored off site for the life of the device5. A Staff Training Plan documentation of training performed in accordance with the Staff Training Plan shall be maintained at the business address of the Challenge Course by the owner and shall include documentation of training provided by the Qualified Challenge Course Professional including certificates verifying competency in technical skills for each Challenge Course Staff. Certificates shall be added to the records as new Challenge Course Staff are employed, trained and deemed competent in technical skills.6. The owner shall provide a Challenge Course site plan to the Department at the time of application, a copy of which shall also be kept on site. All site plans shall include element numbers beginning with 01 and continuing sequentially until all elements are numbered.7. The owner shall provide a list of Challenge Course Staff and an attestation signed by the owner that at the time of owner licensure the listed individuals have received the training documented in the Staff Training Plan. Additional attestations shall be filed promptly by the owner following the employment and training of any new Challenge Course Manager(s) in accordance with the Staff Training Plan.(e)Maintenance Repair Log. The Challenge Course Manager or Challenge Course Staff shall document all maintenance and repairs in the maintenance repair log each time maintenance or a repair is performed on the challenge course. Maintenance does not include route setting. The maintenance repair log shall be signed by the Challenge Course Manager. The maintenance repair log shall include: 2. the element on which the maintenance was performed;3. The legible name of the person who performed the maintenance and a copy of any licenses or certificates held by such persons;4. Details of any repairs performed.(f)Daily Equipment Inspection Log. The daily inspection shall be performed by the Challenge Course Staff for each day before allowing participants on an element for the day. The Daily Equipment Inspection log shall include: 1. The name of the element being inspected;2. The legible name and signature of person completing the log;3. The date of the inspection;4. A detailed list and description of all items being checked.(g)Itinerary. 1. At least ten business days prior to the first date of intended operation of a Challenge Course element, the owner shall submit a complete itinerary to the Department on the form provided by the Department for this purpose. The itinerary shall: b. Identify the Challenge Course by the USID number;c. Include requested time and date of inspection;d. State the date the element is scheduled to begin operation;e. State the specific locations of use including the municipality, street and street number or block and lot.2. Owners shall not set up at a location unless they have submitted a proper itinerary for that location. Owners shall not rely on or use itineraries of other companies in order to set up at a location. Each owner is responsible for submitting a proper and timely itinerary for elements located on the individual site(s) operated by the owner.(h)Criminal History Inquiries. 1. All Owners shall submit to a CORI for the Department's review as a condition of their license.2. All Owners shall submit for the Department's approval, a criminal history inquiry procedure as a condition of their license. At a minimum, the procedure must include the following provisions: a. The owner will conduct criminal history inquiries of all individuals 18 years of age or older who are currently employed or seeking employment as a Challenge Course Manager or Challenge Course Staff pursuant to M.G.L. c. 6, § 172(c).b. The owner will make all reasonable efforts to complete the inquiry prior to making an offer of employment for these positions.c. The owner may offer provisional employment to an applicant not to exceed a period of 14 days, provided that the criminal history inquiry has been initiated and that the provisional employee is at all times under the direct supervision of an employee for whom a criminal history inquiry has been completed.d. The owner will require that each applicant for employment for these positions consents to a CORI inquiry on a form provided by the DCJIS as part of his or her application for employment.e. The owner will inform the applicant that the CORI may be utilized by the owner in the determination of suitability for employment. The Department may periodically review the records of CORI inquiry requests made by owners to ensure compliance with M.G.L. c. 6, §§ 168 through 175.f. The signature of the owner or the owner's designee certifying the licensee's intent to comply with the provisions included in the criminal history inquiry procedure submitted to the Department.3. Owners may collect additional criminal offender information on employees for these positions provided that such information is lawfully obtained and that the procedure to collect such information is submitted to and approved by the Department prior to licensure of the owner.4. Owners shall comply with all terms outlined in the procedures submitted to the Department pursuant to 520 CMR 5.14(2)(h).(i)Challenge Course Personnel. 1. The owner shall provide properly trained Challenge Course personnel for all Challenge Course elements.2. Qualifications for Challenge Course personnel. a. Challenge Course Managers shall be 21 years of age or older.b. Challenge Course Staff shall be 18 years of age or older and shall have complete knowledge of the operation of the element to which they are assigned.c. Challenge Course Staff Assistants shall operate an element only under the direct supervision of Challenge Course Staff.d. Challenge Course personnel shall not instruct on any challenge course element while under the influence of drugs or alcohol.3.Training. The owner shall ensure that Challenge Course Managers, Staff and Staff Assistants are appropriately trained for their respective positions. Those individuals who operate elements shall be trained according to the Staff Training Plan and ACCT Operations Standards, 8th Edition, or equivalent as approved by the Commissioner. Trainees shall be instructed on the site's Local Operating Procedures, be made aware of the inherent risks involved in each element, including equipment, environmental and human hazards and shall have appropriate knowledge of applicable ACCT Standards and any supplemental corrective actions or other documents provided by the manufacturer.4.Technical Competencies for Challenge Course Staff. The owner shall annually attest that individuals holding the position of Challenge Course Staff have received an annual skill assessment that shall be documented in the Staff Training Plan. Training for Challenge Course Staff shall occur in each of the following technical competency areas that are applicable to the Challenge Course site: a. Performing self-belayed climbing competently;b. Setting up and taking down high element belay equipment and other removable equipment;c. Performing belay equipment retrieval from a high element belay cable;d. Performing appropriate descent from a high element, including but not limited to self-lowering, rappelling, or climbing down;e. Evaluating the proper set-up and assessing the physical condition of Challenge Course elements, including the ability to take appropriate corrective actions where necessary based on the assessment;f. Demonstrating the proper use of climbing equipment used on an element, including but not limited to: harnesses, helmets, belay devices, carabiners, belay hardware, rope and other cordage, and ladders;g. Evaluating and tying knots, including but not limited to belay rope attachments and anchoring, rescue systems, and utility knots to operate elements;h. Conducting a thorough safety briefing;i. Performing an effective belay, including demonstration of the proper technique, position, control, back-up, anchor system, communication;j. Assessing and instructing proper belay skills and self-belay procedures and transfers;k. Assessing and incorporating spotting when necessary during the operation of a belayed element;l. Performing or providing for appropriate technical rescue on any high elements used in a timely manner; andm. Performing or providing for appropriate technical rescue on high elements in a timely manner.5. The owner shall ensure that each member of the Challenge Course personnel has read and understands the Local Operating Procedure Manual and is knowledgeable relative to emergency procedures.6. The owner shall ensure that the Challenge Course personnel is monitoring activity on the element at any time a participant is entering, inside or exiting the structure. Such personnel shall ensure that the number of participants on the structure does not exceed the manufacturer's or Qualified Challenge Course Professional's recommendations. To ensure public safety, the personnel shall reserve the exclusive right to limit the number of participants on the element and to order participants off of the element. In the event of injury, the personnel shall immediately order all participants off of the element and shall ensure that the appropriate medical attention is given for those injured.(j)Serious Injury/Investigation. 1.Notification. Any serious injury or mechanical malfunction which occurs on an element shall be reported to the following number (508) 820-1444 within one hour of the serious injury or discovery of the serious injury. The element shall not be moved from the site of the serious injury until approval is granted by a state inspector. The only exceptions to 520 CMR 5.14(2)(j) is for preservation of life and property, the removal of injured persons or bodies, or to permit the flow of emergency vehicles. The challenge course element and area surrounding the device shall not be disturbed, cleaned, or altered in any way that will impede the investigation. The Department shall investigate the incident pursuant to M.G.L. c.140, § 205A.2.Investigation. In the event that a serious injury occurs on an element or any of its component systems, the element shall be immediately shut down and secured until a state inspector has completed an investigation. No person shall move or alter the serious injury incident scene, the element, or structure, except to remove the victim(s), until the state inspector has determined that the device is safe. If a serious injury incident occurs on an element as the result of the malfunction of the element or a serious injury results in major damage to the element or structure, or any of its component systems, a report shall be submitted to the Department within 48 hours as required under M.G.L. c. 140, § 205A.(k)Transfer of Ownership. Upon the transfer of ownership of any challenge course element the owner of the device being transferred shall notify the Department in writing of the transfer, and shall transfer all records pertaining to that challenge course element to the new owner. The new owner shall obtain a new license and permit prior to operating the challenge course element.(3)Manufacturer Responsibility. (a)Scope. 520 CMR 5.14(3) establishes the responsibilities of the manufacturer of Challenge Courses for operation in the Commonwealth.(b) All challenge courses shall comply with the standard set forth in the ACCT Challenge Course Standards, 8th Edition or equivalent standards as approved by the Commissioner.(c)Notification, Corrective Actions and Other Information as Required by the Department. 1. When the manufacturer is notified by an owner of an incident involving a serious injury or a critical structural or mechanical component of an element the manufacturer shall promptly evaluate the information in that notification and, if necessary, provide, in the form of a corrective action, the results of that evaluation, together with any recommendations to eliminate or prevent the situation that created the incident, to the Department and to all known owners of the Challenge Courses in the Commonwealth.2. The manufacturer of an element shall also provide to the Department and to all known owners of the element in the Commonwealth: a. All bulletins, corrective actions and notifications on Challenge Course elements;b. Information as necessary for those elements that have individual approval or supplemental modification certification based on the manufacturer's documentation supplied by the owner or responsible person.(d)Departmental Remedies for Non-compliant Manufacturers. The Department shall have the authority to prohibit the use of any Challenge Course element in the Commonwealth until such time that the manufacturer has: 1. Submitted to the Department all safety bulletins issued on the element or as well as all operational and maintenance manuals for the element; and2. Complied with any orders imposed by the Department in order to bring the element into compliance with 520 CMR 5.14