Chapter 1: Background

1.1 Introduction

Executive Order 12866 requires Federal agencies to submit a significant regulatory action to the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) for review before publishing the regulatory action in the Federal Register.1 The agency must provide OIRA the text of the regulatory action, together with an assessment of the potential benefits and costs of the regulatory action.2 The assessment must describe the need for the regulatory action and how the regulatory action will meet that need. The assessment must also explain how the regulatory action is consistent with statutory mandates, promotes the President’s priorities, and avoids undue interference with State, local, and tribal governments in the exercise of their governmental functions.

The Regulatory Flexibility Act requires Federal agencies to prepare a final regulatory flexibility analysis for a final rule. The analysis may be performed as part of the assessment required by Executive Order 12866. The analysis must state the need for and objectives of the rule, and identify the small entities to which the rule will apply and estimate their number if possible. The analysis must also summarize and assess significant comments raised during the public comment period, and identify any changes made in the proposed rule as a result of the comments. Finally, the analysis must describe significant alternatives considered by the agency for achieving the objectives of the legislation and minimizing the significant economic impact on small entities, including the reasons for selecting the alternatives adopted in the final rule and why other significant alternatives were rejected.3

The Access Board prepared this assessment of the final accessibility guidelines for recreation facilities to meet the above requirements.

1.2 Statutory Authority

The Americans with Disabilities Act (ADA), a landmark law that extends civil rights to individuals with disabilities, was enacted on July 26, 1990. The purpose of the law is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities . . . and clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” ADA, § 2(b)(1) and (2).

The ADA requires, among other things, that newly designed and constructed State and local government facilities and places of public accommodation be readily accessible to and usable by individuals with disabilities. Portions of existing facilities that are altered are also required to be accessible. The ADA requires that the Access Board issue minimum guidelines to ensure that newly constructed and altered portions of facilities covered by the law are accessible in terms of architecture and design, and communication.4

The Department of Justice is responsible for issuing regulations to implement the ADA with respect to State and local government programs, and public accommodations. The ADA requires that the Department of Justice regulations include accessibility standards for newly constructed and altered portions of facilities that are consistent with the guidelines issued by the Access Board.

1.3 ADA Accessibility Guidelines

The ADA established a nine month statutory deadline for the Access Board to issue accessibility guidelines for newly constructed and altered portions of facilities covered by the law. The Access Board issued the ADA Accessibility Guidelines, or ADAAG, on July 26, 1991. ADAAG was based on an earlier accessibility standard, the Uniform Federal Accessibility Standards, that was developed for federally financed facilities covered by the Architectural Barriers Act of 1968. ADAAG contains scoping and technical requirements that are to be applied to the design of all types of facilities covered by the ADA.5 The scoping and technical requirements address specific features such as parking spaces, toilet rooms, public telephones, and fire alarm systems, as well as general features such as accessible routes, ground and floor surfaces, clear floor or ground space for wheelchairs, wheelchair turning space, protruding objects, and reach ranges for controls and operating mechanisms.

1.4 Need for Supplemental Guidelines

Parks, zoos, amusement parks, gymnasiums, health spas, bowling alleys, golf courses, and other places of exercise or recreation are expressly covered by the ADA.6 Congress directed the Access Board to develop supplemental accessibility guidelines for these recreation facilities.7 Due to the short statutory deadline established for initially issuing ADAAG and the need for additional information to develop supplemental accessibility guidelines for the various types of recreation facilities, additional scoping and technical requirements for recreation facilities were not included in ADAAG when it was issued in 1991.

The Department of Justice, which is responsible for enforcing the ADA, has provided the following guidance to designers, owners, and operators of recreation facilities:

“What if ADAAG has no standards for a particular type of facility — such as bowling alleys, golf courses, exercise equipment, pool lifts, amusement park rides . . .?

“In such cases, the ADAAG standards should be applied to the extent possible. Where appropriate technical standards exist, they should be applied. If there are no applicable scoping requirements (i.e., how many features must be accessible), then a reasonable number, but at least one, must be accessible.”8

Recreation facilities have some unique features for which additional guidance is needed in order to apply ADAAG. For example,

• How do you apply ADAAG to provide access on and off an amusement ride?

• Do gangways that connect to a floating pier have to comply with the technical requirements in ADAAG 4.8 for ramps, including a1:12 maximum slope and 30 inch maximum rise for any run, where gangways are part of an accessible route?

• How many boat slips must be accessible and what technical requirements apply to accessible boat slips?

• How do you provide an accessible route on a golf course where the route of play for a golfer depends on where the ball lands?

• How do you make miniature golf courses accessible without fundamentally altering the game?

• What means are available for providing access into swimming pools and spas?

• Do raised diving boards and water slides have to be served by an accessible route?

• Do baseball fields, ice skating rinks, and other areas where the play or practice of a sport occurs have to comply with the technical requirements in ADAAG 4.5 for ground and floor surfaces, including providing stable, firm and slip-resistant surfaces?

The objective of the final guidelines is to answer questions like these, and to provide additional guidance to designers, owners, and operators of recreation facilities on meeting their statutory obligations under the ADA to make newly constructed and altered portions of facilities accessible.

In the absence of the final guidelines, there will be a lack of clarity, certainty, and consistency regarding how to design, construct, and alter recreation facilities to comply with the ADA. It will be left up to enforcement actions by the Department of Justice and the Department of Interior, and private litigation to determine what is required.9 This would be an inefficient use of resources, and expose public and private entities to the risk of additional costs to redesign and reconstruct recreation facilities. It would also result in unequal levels of access across the country for individuals with disabilities.

1.5 Rulemaking History

The Access Board convened a Recreation Access Advisory Committee in 1993 to make recommendations for supplemental accessibility guidelines for recreation facilities.10 More than 250 people participated on subcommittees that reported to the committee. The Recreation Access Advisory Committee issued a report in1994 recommending additional guidelines for sports facilities, places of amusement, play areas, golf courses, boating and fishing facilities, and outdoor developed areas.11The Access Board issued an advance notice of proposed rulemaking (ANPRM) in 1994 requesting public comment on the Recreation Access Advisory Committee’s report.12 More than 600 comments were received on the ANPRM. The comments were generally supportive of the Recreation Access Advisory Committee’s recommendations.13 The Access Board also sponsored research on access to swimming pools in 1995; and conducted information meetings and site visits on access to miniature golf courses in 1996.

The Access Board issued a notice of proposed rulemaking (NPRM) in 1999 that proposed to supplement ADAAG by adding new sections for amusement rides, boating facilities, fishing piers and platforms, golf courses, miniature golf courses, exercise equipment, bowling lanes, shooting facilities, and swimming pools, wading pools, and spas.14 The NPRM also proposed some miscellaneous amendments to ADAAG to address certain recreation facilities. Public hearings were held on the NPRM in Dallas and Boston. Approximately 300 comments were received on the NPRM.

After the comment period ended on the NPRM, additional information meetings and site visits were conducted with the amusement park and miniature golf industries. The Access Board also issued a summary of the draft final guidelines for public review in 2000, and held additional information meetings in Washington, DC and San Francisco.15 Approximately another 70 comments were received on the draft final guidelines. This extensive public involvement has resulted in a consensus on the major issues presented by the rulemaking, and helped the Access Board produce fair and reasonable final guidelines that will improve access to recreation facilities for individuals with disabilities, and will minimize significant economic impacts on small entities.

1.6 President’s Priorities

On February 1, 2001, President George W. Bush announced his New Freedom Initiative for Americans with Disabilities. The objectives of this presidential initiative are to increase access to assistive and universally designed technology, expand educational opportunities for individuals with disabilities, integrate individuals with disabilities into the workforce, and promote full access to community life. In announcing the initiative, the President acknowledged the importance of the ADA in removing barriers to full and independent lives for Americans with disabilities, and committed his Administration to full implementation of the ADA. The final guidelines promote the President’s New Freedom Initiative and will ensure that individuals with disabilities enjoy greater access to the full range of recreational opportunities afforded by the public and private sectors.

1.7 Federalism

The final guidelines implement Federal civil rights legislation that was enacted pursuant to the Congress’ authority to enforce the fourteenth amendment and to regulate commerce.16 Ensuring the civil rights of groups who have experienced irrational discrimination has long been recognized as a national issue and a proper function of the Federal government. The ADA was enacted “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities . . . and to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities.” ADA, § 2(b)(1) and (3). The ADA recognizes the authority of State and local governments to enact and enforce laws that “provide greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter.” ADA, § 501(b). States and local governments can adopt accessibility standards that provide individuals with disabilities equal or greater access to recreation facilities.

The final guidelines adhere to the fundamental federalism principles and policy making criteria in Executive Order 13132. The Access Board has consulted with State and local governments throughout the rulemaking process. The National Recreation and Park Association, States Organization for Boating Access, New Jersey Department of Community Affairs, San Francisco Department of Public Works, and Hawaii Commission on Persons with Disabilities represented the interests of State and local governments on the Recreation Access Advisory Committee. State and local governments participated in the public hearings and information meetings held on the NPRM and the draft final guidelines, and submitted more than 70 comments. Most of the comments were centered on boating facilities. The California Department of Boating and Waterways, Oregon State Marine Board, and Michigan Department of Natural Resources were actively involved in providing information and alternative proposals for consideration during the rulemaking. Approximately 30 other State and local governments joined in supporting the various proposals submitted by those States.

1.8 Alternatives for Achieving ADA Objectives and Minimizing Impacts on Small Entities

Many of the recreation facilities covered by the final guidelines are owned or operated by small entities.17 The Regulatory Flexibility Act requires agencies to consider significant alternatives during rulemaking for achieving the objectives of the legislation and minimizing the significant economic impact on small entities.18 The Access Board has considered significant alternatives throughout the rulemaking, including recommendations submitted by the Recreation Access Advisory Committee, proposals submitted during the public comment periods and informational meetings, and discussions with owners and operators during site visits. For almost every type of recreation facility, the Access Board adopted alternatives in the final guidelines that differ from those considered in the proposed guidelines and that achieve the objectives of the ADA and minimize the economic impacts on small entities.19 The significant alternatives are summarized below.20

Amusement Rides

Proposed Guidelines - New rides must provide at least one wheelchair space and one transfer seat for each 100 seats on the ride. Two transfer seats are permitted for each 100 seats where it is not structurally or operationally feasible to provide wheelchair spaces on a ride.

Final Guidelines - Designers and operators have choice of providing at least one wheelchair space, or one ride seat designed for transfer, or one transfer device on new rides. Greater flexibility is provided for designing wheelchair spaces, transfer seats, and transfer devices. Exceptions included for mobile or portable rides, kiddie rides, rides without seats, and rides controlled or operated by the rider. Application to existing rides that are altered is limited.

Boating Facilities

Proposed Guidelines - New gangways are permitted to exceed a 1:12 maximum slope in accordance with a table based on the distance between design high point and water level, and the square footage of fixed and floating piers. At least 3 percent of new boat slips must be accessible.

Final Guidelines - New gangways are permitted to exceed a 1:12 maximum slope where the total length of gangways serving as part of an accessible route is at least 80 feet. Small facilities with fewer than 25 boat slips are permitted to exceed a 1:12 maximum slope where the total length of gangways serving as part of an accessible route is at least 30 feet. Existing gangways that are altered or replaced are not required to be lengthened unless triggered by alterations to primary function areas. Number of new boat slips that must be accessible ranges from at least 1 accessible slip for facilities with 25 or fewer slips, to 12 accessible slips for facilities with 901 to 1000 slips (plus 1 additional accessible slip for each 100 slips over 1000). Alternative technical requirements are provided for altered boat slips.

Fishing Piers and Platforms

Proposed Guidelines - New gangways are permitted to exceed a 1:12 maximum slope in accordance with a table based on the distance between design high point and water level, and the square footage of fixed and floating piers. Where railings are provided, at least 25 percent of the railings must be 32 inches maximum above the deck.

Final Guidelines - New gangways are permitted to exceed a 1:12 maximum slope where the total length of gangways serving as part of an accessible route is at least 30 feet. Existing gangways that are altered or replaced are not required to be lengthened unless triggered by alterations to primary function areas. Where railings are provided, at least 25 percent of the railings must be 34 inches maximum above the deck. Higher guards complying with the International Building Code height and opening requirements are permitted.

Golf Courses

Proposed Guidelines - On new courses, a golf car passage is permitted in lieu of an accessible route. Where one teeing ground is provided for a hole, a golf car must be able to enter and exit the teeing ground. Where two or more teeing grounds are provided for a hole, a golf car must be able to enter and exit at least two of the teeing grounds.

Final Guidelines - On new courses, a golf car passage is permitted in lieu of an accessible route. Where two or fewer teeing grounds are provided for a hole, a golf car must be able to enter and exit at least one of the teeing grounds. Where three or more teeing grounds are provided for a hole, a golf car must be able to enter and exit at least two of the teeing grounds. A golf car must be able to enter and exit the forward teeing ground. Existing teeing grounds that are altered are exempt where compliance is not feasible due to terrain.

Miniature Golf Courses

Proposed Guidelines - On new courses, each hole must be accessible. Where holes are elevated, at least 50 percent of the elevated holes must be accessible.

Final Guidelines - On new courses, at least 50 percent of holes must be accessible. Accessible holes must be consecutive. One break in the sequence of consecutive accessible holes is permitted, provided the last hole on the course is the last hole in the sequence. Greater flexibility provided for designing accessible holes.

Swimming Pools, Wading Pools, and Spas

Proposed Guidelines - New pools with less than 300 linear feet of pool wall must provide a pool lift or slopped entry. New pools with 300 or more linear feet of pool wall must provide two accessible means of entry. The primary means must be a pool lift or slopped entry. The secondary means must be different than the primary means.

Final Guidelines - New pools with less than 300 linear feet of pool wall must provide a pool lift or slopped entry. New pools with 300 or more linear feet of pool wall must provide two accessible means of entry. The primary means must be a pool lift or slopped entry. Wave action pools, leisure rivers, sand bottom pools, and other pools where user access is limited to one area are permitted to provide at least one accessible means of entry. Diving boards, water slides, and catch pools are exempt. Water play components are permitted to use transfer systems to connect elevated play components.

1.9 Program Accessibility and Barrier Removal in Existing Facilities

The final guidelines apply to new construction and alterations. The ADA gives authority to the Department of Justice, and not the Access Board, to issue regulations regarding program accessibility and barrier removal in existing facilities. ADA, §§ 204(b) and 306(b). Since the authority for issuing regulations for program accessibility and barrier removal in existing facilities rests with the Department of Justice, this assessment examines only the impacts of the final guidelines on new construction and alterations. The Access Board has not taken into account the costs of the Department of Justice regulations regarding program accessibility and barrier removal in existing facilities. The ADA requirements and Department of Justice regulations regarding program accessibility and barrier removal in existing facilities are explained below.

The ADA requires State and local governments to provide program accessibility.21 ADA, § 204(b). The Department of Justice regulations regarding program accessibility require State and local governments to operate each program in existing facilities so that the program, when viewed in its entirety, is accessible.22 The Department of Justice regulations provide for a number of methods to achieve compliance. The methods include providing services at alternative accessible sites, removing barriers in existing facilities, and constructing new facilities. State and local governments are not required to take any action that would result in a fundamental alteration of the nature of a program or in undue financial and administrative burdens. Federal funds are available under the Community Development Block Grant Program to assist State and local governments remove barriers in existing facilities.23

The ADA requires public accommodations to remove barriers in existing facilities where the action is readily achievable. ADA, § 302(b)(2)(A)(iv). The ADA defines “readily achievable” as “easily accomplishable and able to be carried out without much difficulty or expense” and sets out factors to be considered in determining whether an action is readily achievable. ADA, § 301(9). The Department of Justice regulations provide examples of barrier removal, and establish priorities for and limitations on barrier removal.24 Small businesses that have revenues of $1 million or less, or 30 or fewer full-time employees, can claim a 50 percent tax credit for expenses to remove barriers in existing facilities, up to a maximum expenditure of $10,250 a year.25 Businesses can also claim a tax deduction of up to $15,000 a year for barrier removal expenses, regardless of their size.26

The Department of Justice is expected to amend its ADA regulations to make the accessibility standards for new construction and alterations consistent with the final guidelines. At that time, the Department of Justice will assess the costs and benefits of program accessibility and barrier removal in existing facilities and, if necessary, conduct a Regulatory Flexibility Act analysis in relationship to the final guidelines.