Texas Register
(25 TexReg 1966) and will not be
republished.
The amended sections are necessary to implement legislation enacted by
the 76th Legislature in House Bill 1059. House Bill 1059 amended and added
certain sections to Chapter 2151, Title 13, Occupations Code and to the Penal
Code which set forth requirements for amusement rides in this state. Among
other things, the legislation specifies new reporting requirements for persons
who operate amusement rides and further requires the commissioner to adopt
rules requiring operators of mobile amusement rides to perform inspections
of mobile amusement rides, including rules requiring daily inspections of
safety restraints, and rules requiring that a sign be posted to inform the
public how to report an amusement ride that appears to be unsafe or to report
an amusement ride operator who appears to be violating the law. The department
interviewed representatives from the amusement ride industry, observed the
operation of various outdoor amusement parks, and researched the literature
regarding amusement rides in implementing the new legislation. The department
also obtained examples of the industry's offerings of other similar safety
signs in developing the requirements for the sign required by the new legislation.
Currently, there are 134 fixed amusement ride parks in Texas and approximately
128 traveling shows that contain mobile amusement rides located and operating
in Texas which are on file with the department. The purpose of the amendments
is to administer the law regarding the regulation of amusement rides and to
set forth the rules for the inspections, reporting, and sign requirements
as set forth in the statute.
Amended §5.9001 updates the references to re-codified sections of
the Insurance Code and clarifies the reference to "inspector" in accord with
the Act. Amended §5.9002 conforms the definitions to the newly enacted
legislation. Amended §5.9003 increases the fee to $40 per year for each
amusement ride as set forth in the new legislation and updates the revised
TDI form AR-100 (Amusement Ride Certificate of Inspection/Re-Inspection).
Amended §5.9004 contains updated references to statutes and adds the
new requirements of House Bill 1059 regarding inspections, inspection certificates,
and mobile amusement ride inspections, including daily inspection requirements.
It further implements the enforcement section of the Act regarding the requirements
that must be met before an amusement ride may resume operation after its operation
has been prohibited. It also adopts by reference a new form, TDI Form AR-300
(Daily Inspection Record), specifying the daily inspection requirements for
mobile amusement rides including safety restraints on each mobile amusement
ride. It further adopts by reference a new form, TDI Form AR-101 (Texas Amusement
Ride Compliance Sticker), which replaces the current AR-101 form. This weatherproof
form is returned with each inspection certificate as confirmation of the required
insurance and inspection certificate pursuant to the Act and is affixed to
the appropriate amusement ride or device in a place easily visible to all
ride participants. The form has been re-formatted and re-designed in accord
with the updated requirements of legislation. The amended section has also
revised the requirements regarding the schedule of operating locations for
mobile operations, which is currently included on the inspection certificate,
by adopting by reference new TDI Form AR-102, Amusement Ride Schedule of Operations
in Texas. This new form requires a schedule of operating locations and dates
for each six-month period for mobile operations instead of the current one-year
period in order to achieve more complete reporting. It also provides for an
amended TDI Form AR-102 to be filed in the event of any changes in the schedule.
The amended section also clarifies that combined single limit policies are
not acceptable unless the policy specifically provides at least the minimum
limits for injury to persons as required by the Act. Amended §5.9005
deletes certain references to training and experience of inspectors to reflect
the requirements of the statute, as amended by House Bill 1059, concerning
the duties of an insurer or a person with whom the insurer has contracted
in regard to the inspection of amusement rides. The department amended §5.9006
by stating the new legislative requirements of a sign to be posted to inform
the public how to report an amusement ride that appears to be unsafe or to
report an amusement ride operator who appears to be violating the law. The
amendment specifies the content and size requirements of the sign and requires
that the sign be posted at the principal entrance(s) to the site at which
an amusement ride is located or at any location on that site at which tickets
for an amusement ride are available. It must be printed in both English and
Spanish. The amended section further deletes the requirements regarding the
designation of safety inspector for amusement rides and devices and deletes
the form referenced therein (titled "Qualification Review for Inspectors of
Carnival--Amusement Rides and Devices," TDI AR-200). Amended §5.9007
adds the requirements for the recording and reporting of any governmental
action taken in any state relating to an amusement ride, including an inspection
resulting in the repair or replacement of equipment used in the operation
of the amusement ride. The section defines governmental action and adopts
by reference a governmental action quarterly reporting form. The amended section
also requires, for inspection by law enforcement officials, the maintaining
of photocopies of the quarterly reports required by the section for a period
of not less than two years at any location where the ride is operated. The
amended section further clarifies that the quarterly injury reports must record
each injury caused by the amusement ride in any state in which injury results
in death or requires medical treatment and also revises the quarterly injury
report form. It also specifies that an injury is caused by the ride if the
injury occurs on the ride or is in any way associated with the ride. Amended §§5.9008
- 5.9010 are updated to conform to the increased fee requirement of House
Bill 1059, to reference re-codified statutes and revised forms, and to delete
unnecessary language. The department amends §5.9011 regarding the operator/operational
requirements, and the individual standards referenced therein, by setting
forth the standardized compliance and standards for an amusement ride covered
by the Act that is sold, maintained, or operated in this state. The standards
of the American Society for Testing and Materials are minimum standards in
this regard, and to the extent that those standards conflict with the requirements
of the Act, the more stringent requirement or standard applies. Amended §5.9012
incorporates the new enforcement provisions of House Bill 1059 regarding entry
and inspection of any amusement ride at any time by a municipal, county, or
state law enforcement official and also references the duties of an owner/operator
of an amusement ride regarding providing documents and cooperating in the
prohibiting of operation of an amusement ride. Amended §5.9013 and §5.9014
are updated to conform to the new classification of offense (Class B misdemeanor)
for violation of certain sections of the Act or any rule adopted by the commissioner
under §§2151.101 - 2151.103 of the Act. Section 5.9014 is also amended
to reflect the statutory requirement that a prosecuting attorney report to
the department a conviction of an offense under §2151.153 of the Act.
The effective date of the revised and new forms is May, 2000.
Comment: Several commenters stated that the proposal calls for a 10-day
notice of route changes, and since the commenters stated that amusement ride
bookings can change quickly, they asked that the rules require a 48-hour notice
of change in schedule of operations.
Agency Response: The department believes that the amendments address the
commenters' concerns. Amended §5.9004(5) sets forth the requirements
for the schedule of operations to be filed by the owner/operator for each
six-month period for mobile operations. While the amended section calls for
the six-month schedule to be filed a minimum of 10 days in advance of each
six-month period, any changes in that schedule must be submitted within 10
days of such change. Advance notice of the change is not required. Once the
owner/operator knows of the route change, he has 10 days to notify the department
by filing an amended TDI Form AR-102, and he can still proceed with his route
change. The change in time frames is in recognition of the fact that amusement
ride bookings can change quickly.
Comment: Commenters also stated that reportable governmental actions required
to be disclosed on the department's quarterly report are unclear, and they
request additional instructions and examples.
Agency Response: The department disagrees that this is necessary. The Quarterly
Governmental Action Report (TDI Form AR-801) requires the report of "any governmental
action taken in any state relating to that particular amusement ride, including
an inspection resulting in the repair or replacement of equipment used in
the operation of the amusement ride." The form further states that the report
must be made in accordance with the Amusement Ride Act and the rules governing
same. The rules setting forth the requirements of the governmental action
report contain the definition of "governmental action" in §5.9007(b)(2),
and the commenters are referred to that definition in order to fill out the
Quarterly Governmental Action Report form.
Comment: Commenters further proposed that a form be developed for completion
by a peace officer who closes an amusement ride, as well as a form that is
prepared by the operator indicating that corrective action has been taken,
and that these forms be maintained at the carnival office.
Agency Response: The department disagrees. It is not within the authority
of the department to require law enforcement officials to complete any type
of documentation when closing an amusement ride. The statute allows law enforcement
officials to determine compliance with the law in accord with their own procedures.
Regarding the suggestion of promulgating another form for an operator indicating
that corrective action has been taken, the department believes that the statute
sets forth the various options for the operator to take in order to demonstrate
compliance once an amusement ride's operation has been prohibited, and therefore,
another form is not necessary. Further, the reporting of the prohibition of
the ride and description of corrective action taken must be reported on the
Quarterly Governmental Action Report (TDI Form AR-801), and this form should
be used for that purpose.
Comment: Commenters stated that the rules require that a ride be re-inspected
after an injury or death, and that the statute calls for re-inspection after
death; therefore, the commenters would like additional clarification on the
intent of the department on this matter.
Agency Response: The department has not changed the rules regarding re-inspection
after any injury or death involving equipment failure, structural failure,
or operator error on an amusement ride/device (28 TAC §5.9004(2)(G)(iv)).
The statutory requirements referred to by the commenters speak to a death
occurring on a mobile amusement ride and the procedures to follow before the
mobile amusement ride may resume operating. The department has incorporated
these statutory requirements regarding mobile amusement rides into the amendments
in addition to the existing rules regarding re-inspection after any injury
or death involving equipment failure, structural failure, or operator error
on an amusement ride/device. The department believes that these rules are
in the best interest and safety of amusement ride patrons. Further, it is
in the best interest and safety of amusement ride patrons for the ride and
ride operator to be performing in compliance with manufacturers' recommendations,
American Society of Testing and Materials standards, or insurers' standards,
whichever are the most stringent. A re-inspection of the ride will ensure
that these standards are being met.
Comment: One commenter supported the proposal and thanked staff for its
efforts in communicating the requirements of the legislation. This commenter
described the learning process inherent in the new law and his experience
with local law enforcement in the setting up of his carnival operation in
one particular location. The commenter expressed concern about the rules and
what will actually be considered "governmental action" by local law enforcement
or other states' agencies, for example, where a law enforcement official or
state inspector makes a verbal statement that a ride should be shut down.
Agency Response: The department appreciates the comments. Regarding the
concern of the commenter about "governmental action," the department believes
that law enforcement officials and state inspectors are well-trained and know
how to be assertive and communicate what they want in terms of compliance
with the law.
Comment: One commenter supported the proposal, said that he was glad that
American Society of Testing and Materials standards are in the law and regulations,
and stated his belief that the most effective ride inspection safety programs
are at the state level. This commenter stated that, according to federal government
statistics, the likelihood of being fatally injured on an amusement ride is
1 in 450 million, and that with the state and the amusement ride industry
working together, problems can be avoided. The commenter commended the staff
for what the commenter called outstanding rules, but also expressed concerns
about "overzealous" local law enforcement officials. The commenter also stated
that he did not think that the public information sign was readable from 25
feet and suggested that the requirement be 15 feet.
Agency Response: The department appreciates the comments and reiterates
its previous response regarding the training of law enforcement personnel.
Regarding the distance of readability of the sign, the department conducted
several experiments involving the variables of point size of type, size of
sign, color of sign, and distance in developing the 25 foot requirement and
the other specifications for the sign. The department will, however, continue
to evaluate the distance requirement and the other requirements as the rules
are implemented.
For: Thomas Carnival, Outdoor Amusement Business Association, Inc., and
eight amusement ride operators.
The amended sections are adopted pursuant to Title 13, Occupations
Code, Chapter 2151, and the Insurance Code §36.001. The 76th Legislature
enacted House Bill 1059, which amended and added certain sections to Chapter
2151, Title 13, Occupations Code and to the Penal Code which sets forth requirements
for amusement rides in this state. Among other things, the legislation specifies
new reporting requirements for persons who operate amusement rides and further
requires the commissioner to adopt rules requiring operators of mobile amusement
rides to perform inspections of mobile amusement rides and rules requiring
that a sign be posted to inform the public how to report an amusement ride
that appears to be unsafe or to report an amusement ride operator who appears
to be violating the law. Insurance Code §36.001 authorizes the Commissioner
of Insurance to adopt rules for the conduct and execution of the duties and
functions of the Texas Department of Insurance only as authorized by statute.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 14, 2000.
TRD-200002649
Lynda Nesenholtz
General Counsel and Chief Clerk
Texas Department of Insurance
Effective date: May 4, 2000
Proposal publication date: March 10, 2000
For further information, please call: (512) 463-6327