Regulatory Process Matters

Executive Order 12866: Regulatory Planning and Review

This final rule is a significant regulatory action under Executive Order 12866 and has been reviewed by the Office of Management and Budget. An economic assessment of the potential costs and benefits of the final rule has been prepared and has been placed in the docket for public inspection. The economic assessment is also available on the Access Board's Internet site.The economic assessment is summarized below.

Number and Size of Play Areas Affected

Ten major business and government categories are identified that are likely to own or operate play areas. They include eating places; hotels and motels; sporting and recreational camps; recreational vehicle parks and campsites; miscellaneous amusement and recreation facilities; public elementary and middle schools; private (nonsectarian) elementary and middle schools; child care facilities; civic, social and fraternal associations; and municipal and state parks. For each category, lower and upper bound estimates are made of the number of establishments that are likely to have commonly used playground equipment, and the annual number of playgrounds that are expected to be constructed or replaced. The estimates are further broken down by play area size (small, medium, and large). Table 1 shows the results of these estimates. The estimates do not include soft contained play structures because the guidelines are not expected to have a cost impact on those play areas.

Table 1. Number and Size of Play Areas
Affected Annually by Guidelines

Play Area Size Lower Bound Estimates Upper Bound Estimates
Small 7,800 10,400
Medium 6,400 8,300
Large 3,200 5,200
Total Play Areas 17,400 23,900

Baseline

To estimate the incremental costs of the guidelines, a baseline was established against which the cost of play areas designed and constructed in accordance with the guidelines can be compared. The baseline is a reasonable forecast of how play areas would be designed and constructed in the future in the absence of the guidelines. The following factors were considered in establishing the baseline: evolution of industry standards and practices; other civil rights laws and regulations guaranteeing the rights of individuals with disabilities (i.e., Section 504 of the Rehabilitation Act, and Individuals with Disabilities Education Act); and the degree of compliance with those civil rights laws and regulations.

Beginning in 1990, the American Society of Testing and Materials (ASTM) established several subcommittees to develop voluntary standards for play areas. These standards include: ASTM F 1487-99 Standard Consumer Safety Performance Specification for Playground Equipment for Public Use (initially issued in 1993); ASTM PS 83-97 Provisional Standard Specification for Determination of Accessibility of Surface Systems Under and Around Playground Equipment (issued in 1997); ASTM F 1951-99 Standard Specification for Determination of Accessibility of Surface Systems Under and Around Playground Equipment (issued in 1999); and ASTM F 1918-98 Standard Safety Performance Specification for Soft Contained Play Equipment (issued in 1998). Although these ASTM standards are primarily concerned with safety, they also include technical provisions for accessible features such as accessible routes, transfer systems, ramps, and ground surfaces. The ASTM standards are voluntary, but most manufacturers follow them. It is common today for playground equipment manufacturers to incorporate as a standard feature on composite play structures a transfer system to at least one deck and to provide at least one activity panel and slide on that deck. Playground equipment manufacturers and ground surface material suppliers advertise and promote the accessibility of their products through their catalogues and web sites.

Public schools and parks have had an obligation since the 1970's under Section 504 of the Rehabilitation Act and the Individuals with Disabilities Education Act to provide for accessibility in new construction and alterations. Public schools and parks must have Section 504 coordinators who are responsible for ensuring among other things that these accessibility requirements are met. These other civil rights laws and regulations have been enforced to require public schools and parks to provide an accessible route through play areas to a range of play components.

With the increased availability of accessible playground equipment and accessible ground surfaces in the marketplace as a result of the ASTM standards and a long history of coverage by other civil rights laws and regulations, a high degree of compliance with respect to providing for accessibility is expected by public schools and parks when designing and constructing playground equipment. Private entities covered by title III of the ADA do not have as long a history of coverage by civil rights laws and regulations guaranteeing the rights of individuals with disabilities. However, larger private entities that operate play areas are more likely to know about developments in the marketplace and the availability of accessible playground equipment and accessible surface materials, and are more likely to purchase playground equipment and surface materials that provide for accessibility. Smaller private entities that operate play areas may not be as knowledgeable about these matters and have a lesser degree of compliance.

Three models representing a small, medium, and large play area were developed based on the above factors. For each model, equipment and ground surface costs are estimated for a baseline design and a design complying with the guidelines. The primary difference between baseline designs and the guidelines designs involves the number of ground level and elevated play components that are located on an accessible route, which in turn affects how much accessible ground surface is provided and the extent to which transfer systems and ramps are provided. Generally, the baseline design assumes that a smaller number of ground level play components are located on accessible routes than required by the guidelines and that a transfer system is provided only to one deck on a composite play structure, making fewer elevated play components accessible than required by the guidelines.

Different ground surface materials were used for each model. For the small play area, the baseline design used a loose fill surface such as sand or wood chips for the entire play area; and the guidelines design used two options: an engineered wood fiber surface for the entire play area (option 1), and a combination of rubber surface along accessible routes, clear floor or ground spaces, and maneuvering spaces and a loose fill surface for the rest of the play area (option2). (30) This is a change from the assumption made in the economic assessment for the NPRM. A loose fill surface was used for the baseline design for the small play area in the economic assessment for the final rule based on comments from child care facilities, which have a large number of small play areas, stating that they would not use an engineered wood fiber surface, or a combination of rubber surface and loose fill surface in the absence of the guidelines. For the medium and large play areas, both the baseline designs and the guidelines designs used two options: an engineered wood fiber surface for the entire play area (option 1) and a combination of rubber surface along accessible routes, clear floor or ground spaces, and maneuvering spaces and a loose fill surface for the rest of the play area (option 2) because public schools and parks represent a large number of medium and large play areas and it is assumed that these facilities would use surfaces complying with the ASTM F 1951-99 standard in the absence of the guidelines based on the factors discussed above. This is the same assumption made in the economic assessment for the NPRM. The comments did not question this assumption. Some owners and operators, especially in urban areas, have chosen to use a rubber surface for the entire play area in the absence of the guidelines. The economic assessment overestimates the incremental surface costs for those play areas.

Incremental Equipment and Ground Surface Costs

Equipment and ground surface costs for the baseline designs and the guidelines designs are presented in Table 2. For equipment, installation is estimated at 20 percent to 40 percent of equipment cost. Ground surface costs reflect regional variations in labor and materials.

Table 2. Equipment and Ground Surface Costs

Play Area Size Baseline Guidelines Percent Change
Low High Low High
Surface Option 1: Engineered Wood Fiber
Small $11,828 $15,345 $12,128 $16,295 2.5% - 6.2%
Medium $18,740 $27,362 $20,636 $30,032 9.8% - 10.1%
Large $42,634 $57,932 $51,863 $68,284 17.9% - 21.6%
Surface Option 2: Rubber & Loose Fill
Small $11,828 $15,345 $12,775 $17,560 8.0% - 14.4%
Medium $18,537 $25,992 $22,669 $33,845 22.3% - 30.2%
Large $43,511 $57,688 $54,969 $74,109 26.3% - 28.5%

The sources of the cost increases are discussed below.

Small Play Area

For the baseline design, the small play area has a loose fill surface; a composite play structure with 4 elevated play components on a single deck; a transfer platform and transfer steps to the deck; and 4 ground level play components. The guidelines do not result in any equipment changes. For the guidelines design the loose fill surface is replaced entirely with an engineered wood fiber surface (option 1) or a rubber surface (option 2) is installed along accessible routes, clear floor or ground spaces, and maneuvering spaces at certain ground level play components. The cost increase for the engineered wood fiber surface (option 1) is $300 to $950, and for the rubber surface (option 2) is $946 to $2,215.

Medium Play Area

For the baseline design, the medium play area has an engineered wood fiber surface (option 1) or a combination of rubber surface and loose fill surface (option 2); a composite play structure with 10 elevated play components on multiple decks at varying heights; a transfer platform and transfer steps that connect to a 36 inch high deck on which there are 3 elevated play components; and 3 ground level play components. For the guidelines design, the following are added: a 48 inch high deck (2 elevated play components are relocated from the 60 inch high deck to the 48 inch high deck); a transfer step to connect the 36 high and 48 inch high decks, and 1 ground level play component. The cost of these equipment changes is $1,680 to $1,960. The use zones are enlarged by 122 square feet as a result of the equipment changes. The cost for additional engineered wood fiber surface (option 1) for the expanded use zones is $216 to $710. The cost for additional rubber surface (option 2) for accessible routes, clear floor or ground spaces, and maneuvering spaces, and for loose fill for the expanded use zones is $2,452 to $5,893.

Large Play Area

For the baseline design, the large play area has an engineered wood fiber surface (option1) or a combination rubber surface and loose fill surface (option 2); 20 elevated play components on multiple decks at varying heights; a transfer platform and transfer steps that connect to a 36 inch high deck on which there are 4 elevated play components (one of the elevated play components is a swinging bridge which connects to another 36 inch high deck with 2 more elevated play components); and 6 ground level play components. For the guidelines design, the following are added: an earthen berm and ramp to connect to another 36 inch high deck which is extended to connect to the ramp (this deck has 5 elevated play components); and 2 ground level play components. The cost of these equipment changes is $9,039 to $9,821. The use zones are enlarged by 94 square feet as a result of the equipment changes. The cost for additional engineered wood fiber surface (option 1) for the expanded use zones is $190 to $621. The cost for additional rubber surface (option 2) for accessible routes, clear floor or ground spaces, and maneuvering spaces, and for loose fill for the expanded use zones is $2,419 to $6,690.

Incremental Maintenance Costs (Savings)

Maintenance costs are estimated for the different ground surfaces in the baseline designs and guidelines designs for the model play areas. Maintenance activities include inspecting surfaces; raking and leveling surfaces; and topping off surfaces. Typical maintenance frequencies are presented in Table3.

Table 3. Typical Maintenance Frequencies

Maintenance Activity Loose Fill Engineered Wood Fiber Rubber
Inspection Daily to Weekly Daily to Weekly Weekly
Rake & Level Daily to Weekly Weekly to as Required Not Required
Top Off 1 to 3 years 3 years Not Required

Source: Henderson, Walter. Catching Kids When They Fall: Guidelines to Choosing a Playground Surface, Parks & Recreation, April 1997, pp. 84-92.

To aggregate routine maintenance costs with the one-time capital costs for equipment and ground surfaces, the maintenance costs are expressed as the present value of the annual maintenance costs for 15 years, discounted at a 7 percent rate of return. The incremental maintenance costs for the guidelines designs compared to the baseline designs for the model play areas are presented in Table 4.

Table 4. Incremental Maintenance Costs (Savings)

Play Area Size Surface Option 1: Engineered Wood Fiber Surface Option 2:
Rubber & Loose Fill
Small $ (490) $ (1,200)
Medium $ 1,170 $ (2,980)
Large $ 900 $ (4,810)

For small play areas, using an engineered wood fiber surface (option 1) or a combination of rubber surface and loose fill surface (option 2) will result in a reduction in maintenance costs compared to an all loose fill surface over the life cycle of the play area. For medium and large play areas, using a combination of rubber surface and loose fill surface (option 2) will result in a reduction in maintenance costs over the life cycle of the play area.

Aggregate Incremental Costs for Equipment, Ground Surface, and Maintenance

Table 5 combines the incremental changes in equipment and ground surface costs from Table 2 and the incremental changes in maintenance costs from Table 4 to yield the aggregate incremental costs of the guidelines. The mid-point of the cost ranges in Table 2 are used to simplify the aggregation of the costs.

Table 5. Aggregate Incremental Costs (Savings)

Play Area Size Low High
Surface Option 1: Engineered Wood Fiber
Small $ (190) $460
Medium $3,100 $3,800
Large $10,100 $11,300
Surface Option 2: Rubber & Loose Fill
Small $ (260) $1,000
Medium $1,200 $4,900
Large $6,600 $11,600

Total Annual Costs of Guidelines

The total annual costs of the guidelines are the sum of the social costs and the direct costs. The lower and upper bound estimates of the total annual costs are presented in Table 6. Generally, as the cost of a product goes up, society consumes less of the product. Since the guidelines will increase the cost of designing and constructing play areas, it is assumed that the guidelines will result in fewer or smaller play areas built in the future. The loss of play opportunities resulting from fewer or smaller play areas built is the social costs of the guidelines. The social costs are estimated by making assumptions about society's elasticity of demand for play areas and using traditional economic analysis. The direct costs are the aggregate increase in the annual cost of play areas that are designed and constructed after the guidelines are adopted as standards by the Department of Justice.

Table 6. Total Annual Costs of Guidelines ($ in millions)

All Play Areas Surface Option 1:
Engineered Wood Fiber
Surface Option 2:
Rubber & Loose Fill
Social Costs
Low $ 8 $ 3
High $ 12 $15
Direct Costs
Low $29 $18
High $ 61 $69
Total Annual Costs
Low $37 $21
High $ 73 $84

Benefits of Guidelines

The guidelines will make play areas accessible to 5.1 million children with disabilities, between the ages of 3 and 14. (31) Parents and other adults with disabilities who supervise children will be able to accompany the children when they visit play areas. Parents of children with disabilities will benefit from lower travel costs to take their children to accessible play areas. Businesses that provide play areas as part of their facilities may benefit from increased profits as families with individuals with disabilities are more likely to patronize their establishments. Children with disabilities will benefit from increased opportunities to play and to have social interaction with other children. Children without disabilities may also benefit from this diversity. It is not feasible to quantify these benefits and compare them to the costs of the guidelines.

Not all government policies are based on maximizing economic efficiency. Even when the market is operating efficiently, there may be groups or individuals who are subject to discriminatory practices and remain "under-served." The Americans with Disabilities Act is a civil rights law that was enacted by overwhelming bipartisan majorities in Congress and reflects the societal decision to eliminate the various forms of discrimination continually encountered by individuals with disabilities, including the discriminatory effects of architectural barriers. Traditional cost-benefit analysis is deficient when it comes to measuring civil rights benefits and making judgements about fairness or equity.

In the opinion of the Access Board, the civil rights benefits of the guidelines in ensuring that children with disabilities, and parents and other adults with disabilities who supervise children on play areas, have an equal opportunity to use and enjoy play areas justify the costs of the guidelines.

Regulatory Flexibility Act

The final regulatory flexibility analysis required by the Regulatory Flexibility Act has been performed in conjunction with the preparation of the preamble and economic assessment for the final rule. The analysis is summarized below.

Need for, and Objectives of, Guidelines

The Access Board is required to issue accessibility guidelines under the Americans with Disabilities (ADA) to ensure that new construction and alterations of facilities covered by titles II and III of the law are readily accessible to and usable by individuals with disabilities. Play areas are among the facilities covered by titles II and III of the ADA. Play areas have unique features that are not adequately addressed by the Americans with Disabilities Act Accessibility Guidelines (ADAAG). The play area guidelines will amend ADAAG to include scoping and technical provisions for ground level and elevated play components, accessible routes, ramps and transfer systems, ground surfaces, and soft contained play structures.

Significant Issues Raised by Public Comments

The following significant issues were raised by the comments.

Questioning of Statutory Requirement

Commenters questioned why each newly constructed play area must be accessible. As an alternative, they suggested that: one accessible play area per region be provided; play areas be modified for accessibility as needed; and subsidies be provided for making play areas accessible. The ADA is a civil rights law that ensures individuals with disabilities the basic right to use and enjoy goods and services made available to the public. The ADA specifically requires all newly constructed facilities to be accessible. It is more cost effective to incorporate accessible design into the construction of new facilities than to modify facilities afterwards to provide for accessibility. As discussed in the preamble to the final rule, tax credits and tax deductions are available to private entities to remove architectural barriers in existing facilities.(32) In addition, federal funds are available through the Community Development Block Grant Program for removing architectural barriers in existing facilities.(33)

Requests for Exemptions from Guidelines

Child care facilities claimed that the cost of the guidelines would be prohibitive, and requested that carrying or lifting be permitted as an alternative to accessibility or that play areas in child care facilities for children ages 5 and under be exempt from the guidelines. It has been a long standing interpretation of civil rights laws for individuals with disabilities that carrying and lifting are ineffective and unacceptable methods for providing accessibility.(34) The economic assessment shows that the incremental capital and maintenance costs of the guidelines over a 15 year life cycle for a small play area that may be typically found in a child care facility ranges from a cost savings of $190 to a cost increase of $460 for a play area with an engineered wood fiber surface, and from a cost savings of $260 to a cost increase of $1,000 for a play area with a combination rubber and loose fill surface. Tax credits and tax deductions are available to small businesses for architectural barrier removal.(35) Federal funds also are available through the Community Development Block Grant Program to remove architectural barriers in existing facilities. State and local governments may use these funds to remove architectural barriers in existing play areas in publicly operated and privately operated child care facilities.(36) An exception has been added to the final rule that exempts family child care facilities where the proprietor actually resides from the play area guidelines.

Amusement parks and theme parks requested that amusement attractions and amusement rides be exempt from the play area guidelines. An exception has been added to the final rule that exempts amusement attractions located in amusement parks and theme parks from the play area guidelines, except for soft contained play structures. The exception is limited and applies to amusement attractions such as fun houses and barrels. Amusement rides are the subject of a separate rulemaking.(37)

Several commenters expressed concerns regarding application of the guidelines to play areas with unique designs and features, and some suggested that exceptions be made for such play areas. The concerns are addressed in the preamble to the final rule under General Issues, Unique Play Areas.

Requests for Reduced Scoping

Commenters requested that the scoping provision, which requires additional numbers of ground level play components located on an accessible route based on the number of elevated play components provided, be reduced. The scoping was reduced in the final rule from 50 percent to approximately one-third. A minimum number of types of ground level play components was specified to ensure a diversity or variety of play opportunities for children with disabilities at the ground level.

Requests for Clarification of Application of the Guidelines to Alterations and Additions

Commenters requested clarification regarding how the play area guidelines apply to alterations and additions. Specific provisions have been added to the final rule in 15.6.1 and 15.6.1 Exception 3 in response to the comments that provide the requested clarification. The provisions are further discussed in the preamble under General Issues, Alterations and Additions.

Number of Small Entities Affected by Guidelines

A description of and estimate of the number of small entities that will be affected by the guidelines is addressed in chapter 3 of the economic assessment. Table 7 presents a summary of the information.

Table 7. Number of Small Entities Affected by Guidelines

SIC Category Estimated Establishments in 1999 Estimated Establishments with Play Areas
Low High
5812 Eating Places 420,000 8,400 21,000
7011 Hotels & Motels 47,000 940 2,300
7032 Sporting & Recreational Camps 3,600 360 900
7033 Recreational Vehicle Parks & Campsites 7,000 2,800 4,200
7999 Miscellaneous Amusement & Recreation 32,000 3,200 8,000
n/a Public Elementary & Middle Schools 65,000 52,000 65,000
n/a Private Elementary and & Middle Schools 5,500 4,400 5,500
8351 Child Day Care Services 102,000 92,000 102,000
8641 Civic, Social, & Fraternal Associations 3,700 740 1,900
n/a Municipal & State Parks 110,000 33,000 67,000

The number of public elementary and middle schools, and municipal and State parks also includes large entities.

Reporting and Recordkeeping Requirements

There are no reporting and recordkeeping requirements.

Steps Taken to Minimize Significant Economic Impact on Small Entities

In additional to the exceptions discussed above for family child care facilities and amusement attractions, and the reduced scoping for additional ground level play components, there are other provisions in the play area guidelines that minimize the significant economic impact on small entities. For small and medium size play areas with less than 20 elevated play components, transfer systems are permitted instead of ramps to provide an accessible route to at least 50 percent of the elevated play components. For small play areas with less than 1,000 square feet, a reduced clear width is permitted on accessible routes. The scoping and technical provisions in the play area guidelines are based on the consensus recommendations of a regulatory negotiation committee that represented the interests of all the parties affected by the guidelines. The guidelines will provide a minimum level of accessibility to play areas for individuals with disabilities and ensure that newly constructed and altered play areas meet the accessibility requirements of the ADA.

The only other significant alternative that would minimize the significant economic impact of the guidelines on small entities and was not accepted involved eliminating or further limiting the use of ramps to provide access to larger composite play structures with 20 or more elevated play components. Some children with disabilities will not be able to or will choose not to use transfer systems to access elevated play components. Ramps are preferred over transfer systems for providing access to play areas. Eliminating or further limiting the use of ramps to provide access to larger composite play structures would provide a lower level of access to children with disabilities and further limit their opportunities to interact and socialize with other children.

Technical Assistance

The Access Board will provide technical assistance materials to help small entities understand the scoping and technical provisions of the play area guidelines. The Access Board also has accessibility specialists who can answer questions about the guidelines. Information on how to contact the Access Board is provided at the beginning of this document.

Executive Order 13132: Federalism

The final rule is issued under the authority of the Americans with Disabilities Act. Ensuring the civil rights of groups who have experienced discrimination has long been recognized as a responsibility of the Federal government. The Americans with Disabilities Act was enacted "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." (38) The final rule adheres to fundamental federalism principles and policy making criteria set forth in Executive Order 13132. The Access Board has consulted with State and local governments throughout the rulemaking process, including convening an advisory committee, establishing a regulatory negotiation committee, and holding public hearings. The interests of State and local governments were represented in the rulemaking process by National Association of Counties, National Association of Elementary School Principals, National League of Cities, and National Recreation and Park Association, all of whom were members of the regulatory negotiation committee that developed the proposed rule. The Access Board has made changes to the proposed rule based on public comments which are discussed in the preamble to the final rule.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act does not apply to proposed or final rules that enforce constitutional rights of individuals or enforce any statutory rights that prohibit discrimination on the basis of race, color, sex, national origin, age, handicap, or disability. Since the final rule is issued under the authority of the Americans with Disabilities Act, which establishes civil rights protections for individuals with disabilities, an assessment of the rule's effects on State, local, and tribal governments, and the private sector is not required by the Unfunded Mandates Reform Act.


 

1. See 42 U.S.C. 12101 et seq. (http://www.usdoj.gov/crt/ada/pubs/ada.htm).

2. The Access Board is an independent Federal agency established by section 502 of the Rehabilitation Act whose primary mission is to promote accessibility for individuals with disabilities. The Access Board consists of 25 members. Thirteen are appointed by the President from among the public, a majority of who are required to be individuals with disabilities. The other twelve are heads of the following Federal agencies or their designees whose positions are Executive Level IV or above: The departments of Health and Human Services, Education, Transportation, Housing and Urban Development, Labor, Interior, Defense, Justice, Veterans Affairs, and Commerce; General Services Administration; and United States Postal Service.

3. See 36 CFR part 1191, Appendix A

4. The special application sections cover the following facilities: restaurants and cafeterias (ADAAG 5); medical care facilities (ADAAG 6); business, mercantile and civic (ADAAG 7); libraries (ADAAG 8); transient lodging (ADAAG 9); transportation facilities (ADAAG 10); judicial, legislative, and regulatory facilities (ADAAG 11); and detention and correctional facilities (ADAAG 12). ADAAG 13 is reserved for housing and ADAAG 14 is reserved for public rights-of-way.

5. See 63 FR 2060 (January 13, 1998).

6. See 28 CFR part 36, Appendix A (http://www.usdoj.gov/crt/ada/reg3a.html). The Department of Justice standards currently include ADAAG 1 to 10. State and local governments currently have the option of using ADAAG or an earlier standard, the Uniform Federal Accessibility Standards (UFAS), when constructing or altering facilities under the Department of Justice regulations for title II of the ADA. See 28 CFR 35.151(c) (http://www.usdoj.gov/crt/ada/reg2.html). The Department of Justice has issued a notice of proposed rulemaking to eliminate this option. 59 FR 31808 (June20, 1994).

7. In the NPRM, the play area guidelines were proposed to be a separate special application section numbered ADAAG 16. In the final rule, the play area guidelines are included in the special application section reserved for recreation facilities and are numbered ADAAG 15.6. ADAAG 15 eventually will include scoping and technical provisions for other recreation facilities, including amusement rides, boating and fishing facilities, golf, miniature golf, sports facilities, and swimming pools. The Access Board published a notice of proposed rulemaking (NPRM) on these recreation facility guidelines in the Federal Register in July 1999. See 64 FR 37326 (July 9, 1999) .

8. See 63 FR 24080 (April 30,1998) .

9. The following organizations were represented on the regulatory negotiation committee: American Society of Landscape Architects, ASTM Public Playground Subcommittee F15.29, ASTM Soft Contained Play Subcommittee F15.36, ASTM Playground Surfacing Systems Subcommittee F08.63, International Play Equipment Manufacturers Association, National Association of Counties, National Association of Elementary School Principals, National Child Care Association, National Council on Independent Living, National Easter Seal Society, National League of Cities, National Parent-Teacher Association, National Recreation and Park Association, Spinal Bifida Association of America, TASH, United Cerebral Palsy Associations, and U.S. Access Board.

10. The U. S. Consumer Product Safety Commission recommends that for younger children, playgrounds have separate areas with appropriately sized equipment and materials to serve their developmental levels. See Handbook for Public Playground Safety p. 8 (http://cpsc.gov/cpscpub/pubs/325.pdf).

11. The factors on which this assumption is based are discussed later in this preamble under Regulatory Process Matters, Executive Order 12866: Regulatory Planning and Review, Baseline.

12. According to NCCA, the average licensed capacity for child care facilities is 70 children. At 50 square feet to 75 square feet minimum per child, the average child care facility would have a minimum of 3,500 square feet to 5,250 square feet of play space.

13. For the final rule, the economic assessment estimates that there are 102,458 licensed child care facilities, and that 80 percent to 100 percent of these facilities have play areas. The economic assessment assumes the following size distribution of play areas among child care facilities: 60 percent small, 30 percent medium, and 10 percent large.

14. See Tax Incentives Packet on the ADA (http://www.usdoj.gov/crt/ada/taxpack.htm).

15. See 42 U.S.C. 5305 (a)(5). The U.S. Department of Housing and Urban Development reports that local governments spent over $40 million of Community Development Block Grant funds on architectural barrier removal projects in fiscal year 1999.

16. See Appendix A to 28 CFR 35.150(b)(1) (http://www.usdoj.gov/crt/ada/reg2.html). See also Rameriez v. District of Columbia, No. 99-803 (TFH) (D.D.C. March 27, 2000) where the court decided that assigning an aide to carry a child with cerebral palsy into an inaccessible restroom in a public school violates the ADA.

17. See 28 CFR 36.201, 36.207 and 36.304 (http://www.usdoj.gov/crt/ada/reg3a.html). For additional guidance, see Commonly Asked Questions About Child Care Centers and the Americans with Disabilities Act (http://www.usdoj.gov/crt/ada/childq&a.html).

18. See note 7, supra.

19. See 28 CFR 36.307 (http://www.usdoj.gov/crt/ada/reg3a.html).

20. See note 7, supra.

21. For additional guidance, see II-6.2100 of the Department of Justice ADA Title II Technical Assistance Manual Supplement (http://www.usdoj.gov/crt/ada/taman2up.html) and III-5.3000 of the Department of Justice ADA Title III Technical Assistance Manual (http://www.usdoj.gov/crt/ada/taman3.html)

22. See 28 CFR 36.403 (f)(1) (http://www.usdoj.gov/crt/ada/reg3a.html).

23. State and local governments who operate play areas have a separate obligation under title II of the ADA to provide program accessibility which may require the removal of architectural barriers in existing facilities. See 28 CFR 35.150 (http://www.usdoj.gov/crt/ada/reg2.html).

Private entities who operate play areas have a separate obligation under title III of the ADA to remove architectural barriers in existing facilities where it is readily achievable (i.e., easily accomplishable and able to be carried out without much difficulty or expense). See 28 CFR 36.304 (http://www.usdoj.gov/crt/ada/reg3a.html).

Tax credits and deductions are available to private entities for architectural barrier removal in existing facilities. See note 14, supra. Federal funds also are available through the Community Development Block Grant Program to remove architectural barriers in existing facilities. See note 15, supra. State and local governments may use Community Development Block Grant funds to remove architectural barriers in publicly and privately operated facilities.

24. See note 7, supra.

25. See note 21, supra.

26. See note 5, supra.

27. See note 5, supra.

28. See 61 FR 37964 (July 22, 1996).

29. See 28 CFR 35.133 (http://www.usdoj.gov/crt/ada/reg2.html) and 28 CFR 36.211 (http://www.usdoj.gov/crt/ada/reg3a.html).

30. Rubber surface was used along accessible routes, clear floor or ground spaces, and maneuvering spaces. The rubber surface was designed to be as uninterrupted as possible to avoid potential tripping hazards.

31. Bureau of the Census, Americans with Disabilities: 1994-95 - Table 2 (http://www.census.gov/hhes/www/disability/sipp/disab9495/ds94t2.html). The data provided does not allow for an exact measure of the 2 to 12 years age group.

32. See note 14, supra.

33. See note 15, supra.

34. See note 16, supra.

35. See note 14, supra.

36. See note 15, supra.

37. See note 7, supra.

38. 42 U.S.C. 12101 (b)(2).

List of Subjects in 36 CFR Part 1191

Buildings and facilities, Civil rights, Incorporation by reference, Individuals with disabilities, Transportation.


Thurman M. Davis, Sr.

Chair, Architectural and Transportation Barriers Compliance Board.