Climbing Wall Facilities

(1) General Administrative Provisions. (a) Scope. 520 CMR 5.15(1) establishes general administrative provisions including license and permit issuance, fees, and inspections for business entities operating Climbing Wall Facilities. 520 CMR 5.15 shall apply to Climbing Wall Facilities that utilize belay systems for fall protection in their normal operation. 520 CMR 5.15 shall not apply to structures or devices otherwise covered in 520 CMR 5.00. (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 Artificial climbing structure that is not in compliance with 520 CMR 5.15. 2. Prior to any 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. An inspection report by a certified inspector; d. Certificate of insurance demonstrating compliance with M.G.L. c. 140, § 205A, and 520 CMR 5.15(1)(d); e. The name(s) of the Climbing Wall Facility Manager or Managers; f. A list of the Climbing Wall Facility Staff, trained in compliance with the specifications of the original equipment manufacturer; g. A completed Criminal Offender Record Information (CORI) Request Form for the owner; h. A criminal history inquiry procedure in accordance with 520 CMR 5.15(2)(i)2.; i. The name and qualifications of the Qualified Manufacturer Representative (where applicable for acceptance inspections); j. Floor Plan(s) numbered sequentially beginning with element number 01; and k. Annual attestation of personnel training. 3. The owner shall apply for an annual license for each climbing wall facility at least ten days prior to commencing operations each year on a form supplied by the Department. An annual license shall be valid for a period of one year provided that insurance coverage is continuous, or until the expiration of the insurance certificate if insurance coverage is not continuous. 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. Upon approval, the Department shall issue a license to the owner to operate a Climbing Wall Facility in the Commonwealth and permits for all Artificial Climbing Structures identified in the site plan submitted with the application. The Department shall assign each climbing wall facility a designated number. 6. No Climbing Wall Facility shall be operated without a valid annual license. 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 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 Climbing Wall Facilities; g. If the Commissioner finds that the applicant does not possess the integrity and general fitness to operate Climbing Wall Facilities in a responsible manner and in the public 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 mail and 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) Fees. A fee shall be paid by the applicant for the Climbing Wall Facility or Facilities listed in the application in accordance with the fee schedule as set forth in 801 CMR 4.02. (d) Insurance Requirements. 1. The owner of a Climbing Wall Facility shall furnish proof that all individual artificial climbing structures that comprise the Climbing Wall Facility 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 Climbing Wall Facility. 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. 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 Climbing Wall Facility. 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. (e) State Identification Numbers. Each Climbing Wall Facility shall be identified using a number issued by the Department and posted in each facility. 2. When a Climbing Wall Facility is approved, the Department shall assign a USID number to each Climbing Wall Facility to identify to the public that the facility conforms to the requirements for licensing. 3. New Climbing Wall Facilities 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 Climbing Wall Facility's USID number shall be visibly displayed at the facility. (f) 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 and facilities covered by 520 CMR 5.15 in the performance of their duties. (g) Inspections. All climbing wall facilities shall be inspected annually by a certified inspector. The inspection shall include all components and procedures specified by the manufacturer of the artificial climbing structure and shall conform to manufacturer specifications. 2. Inspection by the Certified Inspector. a. All fixed ACS shall be inspected by a certified inspector prior to being allowed to operate in the Commonwealth. b. All automatic belay devices shall be inspected by a certified inspector annually. The inspection shall include all components and procedures specified by the manufacturer or per manufacturer's specifications and verified as inspected by the Qualified Manufacturer's Representative. c. The certified inspector shall review all pertinent manufacturer bulletins and/or technical notices and will note in the inspection report if required manufacturer specified repairs, modifications, or maintenance requirements have not been met. d. The certified inspector shall review the record of all periodic inspections, maintenance, and repairs for the previous year including the Maintenance Repair Log and Daily Equipment Inspection Log to ensure that all routine inspections, maintenance, and repairs have been performed. e. The certified inspector shall review the operations manual to ensure that minimally acceptable operational standards, policies, and procedures, are in place. Standards of operation, policies, and procedures shall be in accordance with 520 CMR 5.15 or equivalent standards, as approved by the Commissioner. f. The certified inspector will document, both in report form and photographs, any unusual issue that may be discovered and shall notify the owner of the issue immediately. g. Upon completion of the inspection, the certified inspector shall document any and all findings that require attention as per the manufacturer, as well as any areas that are of concern or in need of further observation. This information shall be presented in a report to the owner. h. Issues directly affecting the safety and integrity of the artificial climbing structure shall be corrected promptly. The certified inspector shall not allow any fixed artificial climbing structure, or component of the artificial climbing structure, to pass inspection until the issues are abated or resolved. i. The owner shall submit the Certified Inspector's report to the Department along with a completed Climbing Wall Inspection Summary form provided by the Department. This form shall: i. Identify items found to be out of compliance that could not be appropriately abated or resolved on site; ii. Document a review of the following records: (i) Daily Equipment Inspection Logs; (ii) Staff Training Plan; and (iii) the Climbing Wall Operating Manual. iii. Identify any further corrective actions that may be required; iv. Include the date of inspection, name of inspector, and Massachusetts Certificate of Competency License Number of the certified inspector printed legibly. (h) Acceptance Inspection. 1. An acceptance inspection shall be performed on all newly constructed fixed ACS which are built in the Commonwealth for the first time. The acceptance inspection shall be performed by a certified inspector, or a qualified manufacturer’s representative. The inspection shall be performed in accordance with the requirements of 520 CMR 5.15(1)(g)2. before the fixed artificial climbing structure may operate. (i) Inspections by the State Inspector. 1. All fixed artificial climbing structures, and associated equipment, 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. 2. The general safety inspection for all fixed artificial climbing structures shall include: a. A review of any maintenance records; b. A review of Daily Equipment Inspection Logs; c. A review of the Staff Training Plan; d. A review of the Climbing Wall Operating Manual; e. A visual inspection of the fixed artificial climbing structure; f. A visual inspection of anchor points and belay systems; g. A visual inspection of climbing equipment; and h. A visual inspection for obvious signs of damage, or excessive wear. 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 fixed artificial climbing structure 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 an artificial climbing structure, component of an artificial climbing structure or associated equipment is not certified at the time of inspection, the state inspector performing the inspection shall state on the inspection report whether a re-inspection is required after the violation has been resolved. The Department may charge a fee for re-inspection in accordance with the fee schedule set forth in 801 CMR 4.02. 5. Preparation for State Inspection. a. The owner shall ensure that the fixed artificial climbing structure is available for the state inspection at the scheduled time. If the fixed artificial climbing structure is not available at the scheduled time, it shall be deemed to have failed the inspection. b. The owner or the owner’s designee shall be available to the State Inspector during the inspection. 6. Variance. a. If the owner or manufacturer believes that full compliance with 520 CMR 5.15 is overly burdensome, the owner or manufacturer may apply to the Commissioner for a variance from 520 CMR 5.15. 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 5.15. 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 or her designee may: i. Grant the application with whatever conditions are deemed appropriate; or 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 an adjudicatory hearing may appeal to the Superior Court in accordance with M.G.L. c. 30A, § 14. (2) Owner Responsibility. (a) Scope. 520 CMR 5.15(2) establishes the responsibilities of owners of Climbing Wall Facilities regarding the appropriate operation and maintenance of such facilities. (b) Structure and Equipment. 1. The owner shall not install, operate, or allow to be operated, any fixed artificial climbing structure that does not have a valid license and permit issued pursuant to 520 CMR 5.15(1)(b). 2. The fixed artificial climbing structure shall be maintained in accordance with 520 CMR 5.15. 3. The fixed artificial climbing structure shall be maintained and operated in accordance with the manufacturer’s operating manual. 4. All personal protective equipment owned by the facility, including but not limited to: ropes, harnesses, carabiners, belay devices, and slings, shall be inspected, maintained, and used in accordance with the manufacturer’s instructions. (c) Training. 1. The owner shall maintain a Staff Training Plan that identifies and addresses the minimum operational requirements of the Climbing Wall Facility. 2. The owner shall annually attest employees have received an annual skill assessment that shall be documented in the Staff Training Plan. 3. The owner shall ensure that all employees are qualified to operate the fixed artificial climbing structure according to the ACS manufacturer’s instructions as described in the manufacturer’s operating manual, climbing equipment manufacturers’ instructions, commonly accepted climbing practices, and Climbing Wall Association standards. 4. The owner shall maintain documentation of training provided under the employee training program, including the date of the training, name of instructor, topics covered, and employee attendees. (d) Records. 1. Records shall be maintained by the owner for the life of the fixed artificial climbing structure, unless the artificial climbing structure is transferred to a new owner in accordance with 520 CMR 5.15(2)(l). 2. Copies of all manufacturer bulletins, technical notices, or manufacturer's recommendations, received by the owner, shall be forwarded to the Department within 30 days of receipt. 3. The manufacturer’s operating manual for all fixed artificial climbing structures shall be kept by the owner or facility manager at a designated location and shall be available to the Department upon request. 4. A record of all maintenance, inspections, and tests for all fixed artificial climbing structures shall be documented and shall be available to the Department for the period of one year. 5. A Staff Training Plan and documentation of training performed in accordance with the Staff Training Plan shall be maintained at the business address of the Climbing Wall Facility by the owner and shall include documentation of training including certificates verifying competency in technical skills for each Climbing Wall Facility staff. Certificates shall be added to the records as new Climbing Wall Facility Staff are employed, trained and deemed competent in technical skills. 6. The owner shall provide a Climbing Wall Facility 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 Climbing Wall Facility Staff and an attestation signed by the owner that at the time of licensure the listed individuals have received the training documented in the Staff Training Plan. Additional attestations shall be filed promptlybythe owner following the employment and training of anynew Climbing Wall Facility Manager(s) in accordance with the Staff Training Plan. (e) Climbing Wall Operating Manual. The owner shall maintain a climbing wall operating manual that addresses standards as adopted by this regulation for the operation of the Climbing Wall Facility. (f) Maintenance Repair Log. The Climbing Wall Facility Manager or Climbing Wall Facility Staff shall complete a Maintenance Repair Log each time maintenance, or a repair, is performed on the artificial climbing structure. Maintenance does not include route setting. The Maintenance Repair Log shall be signed. The Maintenance Repair Log shall include: 1. the date; 2. the artificial climbing structure or component of the artificial climbing structure on which maintenance or repair was performed; 3. detailed description of any maintenance or repair performed; and 4. the legible name of the person who performed the maintenance and a copy of any licenses or certificates held by such persons. (g) Daily Equipment Inspection Log. 1. A daily inspection of the Climbing Wall Facility shall be performed by Climbing Wall Facility Staff each day before allowing patrons into the facility for the day. The daily inspection log shall include: a. the date of the inspection; b. the facility being inspected; c. a list of all structural components being checked, including but not limited to, a visual inspection of all belay anchors and anchor points; d. a list of all climbing equipment checked, including but not limited to, a visual inspection of climbing ropes, carabiners, belay devices, and harnesses; and e. the legible name and signature of the person completing the log. (h) Itinerary. 1. At least ten days prior to the first date of intended operation of a Climbing Wall Facility, the owner shall submit a complete itinerary to the Department on the form provided by the Department for this purpose. The itinerary shall: a. be in writing; b. identify the intended Climbing Wall Facility by the USID number; c. include requested time and date of inspection; d. state the date the facility is scheduled to begin operation; and e. state the specific location 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 its climbing facilities. (i) 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 shall conduct a criminal history inquiry on all individuals 18 years of age or older who are currently employed or seeking employment as a Climbing Wall Facility Manager or Climbing Wall Facility 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. 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 provides consent 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. Owners shall comply with all terms outlined in the procedures submitted to the Department pursuant to 520 CMR 5.15(2)(i). (j) Climbing Wall Facility Manager, Staff, and Staff Assistants. The owner shall designate at least one person to be a Climbing Wall Facility Manager, to supervise the climbing facility. 2. Climbing Wall Facility Manager qualifications: a. The person shall be 21 years of age or older; b. The person shall not supervise any facility while under the influence of drugs or alcohol; c. The person shall have a thorough knowledge of the operating policies, procedures, and rules of the Climbing Wall Facility; d. The person shall understand the manufacturer’s instructions for the operation of the fixed ACS and, if applicable, any additional instructions or requirements of the owner; e. The person shall understand the equipment manufacturer’s instructions for the use, care, maintenance, and inspection of any associated equipment such as ropes, harnesses, carabiners, belay devices, or automatic belay systems; f. The person shall understand the limitations of the fixed ACS, including age, height, weight, loading, or other requirements regarding whom or how many persons may use the artificial climbing structure at a given time; and g. The person shall understand the owner’s emergency procedures. 3. The owner may designate a person or persons as Climbing Wall Facility Staff to assist the Climbing Wall Facility Manager in the operation of the climbing wall facility. 4. Climbing Wall Facility Staff qualifications: a. The person shall be at least 18 years of age; b. The person shall understand the manufacturer’s instructions for the operation of the site specific fixed artificial climbing structure and, if applicable, any additional instructions or requirements of the owner; c. The person shall understand the equipment manufacturer’s instructions for the use, care, maintenance, and inspection of any associated equipment such as ropes, harnesses, carabiners, belay devices, or automatic belay systems; d. The person shall understand the limitations of the fixed artificial climbing structure, including age, height, weight, loading, or other requirements regarding whom or how many persons may use the artificial climbing structure at a given time; and e. The person shall understand the owner/operator’s emergency procedures. The owner may designate a person or persons as Climbing Wall Facility Staff Assistants to assist the Climbing Wall Facility Manager or Climbing Wall Facility Staff. Climbing Wall Facility Staff Assistants shall participate in the operation of an Artificial Climbing Wall only while under the direct supervision of the Climbing Wall Facility Manager or the Climbing Wall Facility Staff. 7. The owner or Climbing Wall Facility Manager shall ensure that at least one Climbing Wall Facility Staff member is monitoring the facility and the activities on the climbing structure when patrons are present. Such Climbing Wall Facility Staff shall enforce the facility's policies, procedures, and rules for climbing activities. 8. All Climbing Wall Facility personnel shall ensure that the number of patrons on the structure does not exceed the manufacturer’s recommendations. The owner, Climbing Wall Manager, or Climbing Wall Staff shall reserve the exclusive right to limit the number of patrons on the structure. 9. The personnel shall reserve the right to order patrons off of the ACS for any reason. (k) Serious Injury /Investigation. 1. Notification. Any serious injury or mechanical malfunction at a facility must be reported to the following telephone number 508-820-1444 within one hour from the time that the serious injury or mechanical malfunction occurred or was discovered. The artificial climbing structure, component of the artificial climbing structure, or associated equipment shall not be moved from the site of the serious injury until approval is granted by a state inspector. The only exception to this requirement is for preservation of life and property, the removal of injured persons or bodies, or to permit the flow of emergency vehicles. The artificial climbing structure and area surrounding the artificial climbing structure 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. a. In the event that a serious injury or mechanical malfunction occurs as a result of a malfunction of an artificial climbing structure or a serious injury incident results in major damage to the artificial climbing structure or any of its component systems, the artificial climbing structure 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 or the artificial climbing structure, except to remove the victim(s), until the state inspector has determined that the structure is safe. If a serious injury incident occurs on an artificial climbing structure as the result of the malfunction of the structure or a serious injury results in major damage to the artificial climbing 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. b. In the event of a serious injury incident/mechanical malfunction, the owner and operator of the artificial climbing structure shall be responsible for securing the artificial climbing structure and shall be accessible to the Department and its state inspector. (l) Transfer of Ownership. Upon the transfer of ownership of any artificial climbing structure, the owner of the artificial climbing structure being transferred shall notify the Department in writing of the transfer, and shall transfer all records pertaining to that artificial climbing structure to the new owner. The new owner shall obtain a new license and permit prior to operating the artificial climbing structure. (3) Manufacturer Responsibility. (a) Scope. 520 CMR 5.15(3) establishes the responsibilities of the manufacturer of artificial climbing structures for operation in the Commonwealth. (b) All fixed artificial climbing structures shall comply with the specifications set forth in: CWA Standards, General Specification for the Design and Engineering of Artificial Climbing Structures, First Edition or equivalent standards as approved by the Commissioner. (c) Notification, Bulletins, and Other Information as Required by the Department. 1. When the Artificial Climbing Structure manufacturer is notified by an owner of an incident, whether in the Commonwealth or elsewhere, involving a serious injury due to a failure of a critical structural or mechanical component of a fixed artificial climbing structure, the manufacturer shall promptly evaluate the information in that notification and, if necessary, provide, in the form of a manufacturer’s bulletin, or technical notice, 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 fixed artificial climbing structure in the Commonwealth. 2. The manufacturer of a fixed artificial climbing structure shall also provide to the Department and to all known owners of the fixed artificial climbing structure in the Commonwealth: a. The manufacturer’s safety-related bulletins and technical notices regarding fixed artificial climbing structures; b. Information as necessary for those fixed artificial climbing structures that have individual approval or supplemental modification certification based on the manufacturer’s documentation supplied by the owner or responsible person; and c. Other documents requested by the Department as a result of an investigation involving a fixed artificial climbing structure. (d) Departmental Remedies for Non-compliant Manufacturers. The Department shall have the authority to prohibit the use of any fixed artificial climbing structure in Commonwealth until such time that the manufacturer has: Submitted to the Department all safety-related bulletins issued on the artificial climbing structure; and 2. Complied with any orders imposed by the Department in order to bring the fixed artificial climbing structure into compliance with 520 CMR 5.15.