End Notes

1 A "significant regulatory action" includes any regulatory action that may "[r]aise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in [Executive Order 12866]." § 3(f)(4). The Access Board and OIRA have considered accessibility guidelines issued under the Americans with Disabilities Act a "significant regulatory action."

2 The agency must prepare a more detailed regulatory impact analysis for an "economically significant regulatory action" that may "[h]ave an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal government communities." §§ 3(f)(1) and 6(a)(3)(C). The final accessibility guidelines for recreation facilities are not an "economically significant regulatory action."

3 The analysis must also describe any reporting or recordkeeping requirements imposed by the rule. The final accessibility guidelines for recreation facilities do not impose any reporting or recordkeeping requirements.

4 The Access Board is an independent Federal agency established by section 502 of the Rehabilitation Act to promote accessibility for people 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, Veteran Affairs, and Commerce; General Services Administration; and United States Postal Service.

5 The scoping requirements address which and how many features must be accessible. The technical requirements address how to make the features accessible.

6 Section 301(7) of the ADA lists 12 categories of public accommodations covered by the law. These recreation facilities are specifically described among the categories of public accommodations. See ADA, § (7)(I) and (L).

7 See H. Rept. 101-485, pt. 2, at 139; and S. Rept. 101-116, at 87.

8 Department of Justice, The Americans with Disabilities Act Title III Technical Assistance Manual (November 1993) at 46.

9 The Department of Justice has designated the Department of the Interior to have responsibility for administrative enforcement of the ADA with respect to recreation programs and services owned or operated by public entities. 28 C.F.R. § 35.190(b)(5).

10 The following 27 organizations were official members of the Recreation Access Advisory Committee: National Recreation and Park Association, American Society of Landscape Architects, International Association of Amusement Parks and Attractions, States Organization for Boating Access, Golf Course Superintendents Association of America, Professional Golfer’s Association, National Park Service, U.S. Forest Service, U.S. Army Corps of Engineers, New Jersey Department of Community Affairs, San Francisco Department of Public Works, U. S. Olympic Committee, Y.M.C.A., Paralyzed Veterans of America, Disabled American Veterans, National Council on Independent Living, Self Help for Hard of Hearing People, Hawaii Commission on Persons with Disabilities, American Ski Federation, American Society for Testing and Materials Public Playground Subcommittee, Universal Studios, Walt Disney Imagineering, Outdoor Amusement Business Association, Beneficial Designs, Environmental Access, McGuiness & Associates, and Lehman, Smith and Weisman Associates. Additional organizations were invited to participate on subcommittees that reported to the committee.

11 Recreation Access Advisory Committee, Recommendations for Accessibility Guidelines: Recreational Facilities and Outdoor Developed Areas (July 1994).

12 59 FR 48542 ( September 21, 1994).

13 The comments revealed a lack of consensus regarding the Recreation Access Advisory Committee’s recommendations for play areas and outdoor developed areas. The Access Board established separate regulatory negotiation committees to develop accessibility guidelines for those facilities. Final accessibility guidelines for play areas were issued in 2000. 65 FR 62498 (October 18, 2000). The Outdoor Developed Areas Regulatory Negotiation Committee issued its report in 1999, and the Access Board plans to issue a notice of proposed rulemaking (NPRM) in the future requesting public comment on the accessibility guidelines recommended by that committee.

14 64 FR 37326 (July 9, 1999).

15 65 FR 45331 (July 21, 2000).

16 Regulations that implement constitutional rights of individuals or statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap or disability are exempt from the Unfunded Mandates Reform Act, which requires agencies to assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector. 2 U.S.C. § 1503(1) and (2).

17 For the definition of small entities, see Chapter 2.4. The percentage of each type of recreation facilities owned or operated by small entities is estimated in Chapters 4 through 10.

18 The Regulatory Flexibility Act includes exempting small entities from coverage of the rule among the significant alternatives to be considered. The Access Board does not have discretionary authority under the ADA to exempt small entities from the statutory requirement that newly constructed and altered portions of facilities must be accessible.

19 The alternatives considered in the proposed rule and adopted in the final guidelines for each type of recreation facility are described in Chapters 4 through 10.

20 For exercise equipment, bowling lanes, and shooting facilities, there were no significant alternatives considered. The final guidelines will not have any significant economic impacts on these newly constructed or altered facilities.

21 State and local governments that receive federal financial assistance have a similar obligation under section 504 of the Rehabilitation Act of 1973.

22 28 C.F.R. § 35.150.

23 42 U.S.C. § 5305(a)(5).

24 28 C.F.R. § 36.304.

25 Internal Revenue Code, § 44.

26 Internal Revenue Code, § 190.

27 Office of Management and Budget, Guidelines to Standardize Measures of Costs and Benefits and the Format of Accounting Statements, March 2000.

28 Executive Order 12886 recognizes that the elimination of discrimination is a benefit, and that some costs and benefits are difficult to quantify. §§ (1)(b)(6) and (6)(a)(3)(C)(i). OMB has also recognized that the benefits of many regulations cannot be quantified, and that equity and fairness must be considered as well as economic efficiency. Remarks by John D. Graham, Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget, An Overview of the U.S. Regulatory System, Prepared for the Conference on Regulatory Reform Sponsored by the European Policy Centre, Brussels, Belgium (January 15, 2002).

29 Where other reliable data was available on the number of existing and newly constructed facilities, we used the other data. Where no data was available and the new construction and alterations impacts are minimal, we did not expend resources on developing models to estimate the number of exisiting and newly constructed facilities.

30 67 FR 3041 (January 23, 2002).

31 5 U.S.C. § 601(5).

32 ADAAG 4.1.6(1)(b).

33 ADAAG 4.1.6(1)(j).

34 The requirement for an accessible route to be provided to a primary function area that is altered is statutory. ADA, § 303(a). The ADA also requires that toilet rooms, public telephones, and drinking fountains serving the primary function area be made accessible. The Department of Justice is responsible for issuing regulations to implement the requirement. The requirement applies to private entities, but rulemaking is pending to extend the requirement to public entities. 64 F.R. 62248 (November 19, 1999).

35 28 C.F.R. § 38.403(b).

36 28 C.F.R. § 38.403(f).

37 28 C.F.R. § 38.403(h).

38 U.S. Census Bureau, Americans with Disabilities (1997).

39 U.S. Department of Health and Human Services, Physical Activity and Health: A Report of the Surgeon General (1996).

40 Rimmer, J.H., and D. Braddock, Physical Activity, Disability and Cardiovascular Health, National Institutes of Health: Physical Activity and Cardiovascular Health, A National Consensus (1997).

41 The 1997 Economic Census counted 450 amusement parks and 157 water parks. The 1992 Economic Census counted 825 amusement parks and water parks. It is not possible to break out data for amusement parks only in the 1992 Economic Census. There was a 26.4 percent decrease in facilities during the 5 year period.

42 The internet search was conducted in the summer of 2001. We compiled a list of amusement parks in each State using "The Amusement Park Guide" (Fourth Edition, 2001) and searching web sites that listed amusement parks by State. If a facility had a web site, we visited the web site to find information about the number and type of amusement rides operated, new amusement rides added in 2001, and accessibility policies. The percentage of facilities with web sites is: large (100%), medium (79%), small (57%), and very small (42%). If a facility did not have a website, we called the facility for information about the number and type of amusement rides operated.

43 Some of the facilities in the large category do not have more than 30 amusement rides, but operate a large number of other attractions. Many of the very small facilities are family entertainment centers that operate amusement rides in addition to other attractions. We did not include facilities which only operate amusement rides like go-karts that are controlled by the rider. These rides must only provide an accessible route to and wheelchair turning space at the load and unload area. Go-kart tracks are constructed at ground level and the requirement will have minimal impact on the facilities. We also did not include theme parks that do not have any amusement rides.

44 We did not include 71very small facilities that operate only kiddie rides. We assumed that if these facilities add new amusement rides, they would be kiddie rides. Kiddie rides must only provide an accessible route to and a wheelchair turning space at the load and unload area. We assumed the requirement would have minimal impact on kiddie rides. We also did not include 27 very small facilities that operate only a carousel and/or train. We assumed that these facilities would not likely add new amusement rides.

45 The International Association of Amusement Parks and Attractions (IAAPA) commented that the estimate is high. The table may overestimate how many new amusement rides have cost impacts due to the final guidelines. The table includes kiddie rides added to large, medium, and small amusement parks. The table also includes amusement rides controlled by the rider (e.g., go-karts) and amusement rides without seats. These amusement rides are not required to provide wheelchair spaces, a ride seat designed for transfer, or a transfer device. Amusement parks may add used amusement rides, instead of new amusement rides. Used amusement rides that are added to an amusement park must comply with the final guidelines only if the ride’s structural or operational characteristics are changed to the extent that the ride’s performance differs from that specified by the manufacturer or the original design criteria, or if the load and unload area is newly designed and constructed.

46 IAAPA commented that the estimate is high. For the same reasons discussed in the note above, the table may overestimate how many new amusement rides have cost impacts due to the final guidelines.

47 Most new amusement rides are manufactured rides and the impacts discussed in this section primarily relate to manufactured rides. A small number of large amusement parks custom design amusement rides. These custom amusement rides are usually highly themed and enclosed in buildings, and cost several million dollars to construct. The amusement parks have spent considerable resources to provide wheelchair spaces, amusement ride seats designed for transfer, and transfer devices for use with these custom amusement rides; and the impacts will be greater for these custom amusement rides. As a small example, adding a sign at the entrance of the queue or waiting line for a new amusement ride indicating the type of access provided (e.g., wheelchair access, transfer access) typically costs $100, but may cost more than $1,000 for a custom design ride because the sign is specially designed.

48 Cost is based on estimates from two contractors in the Washington, DC area. Construction costs in the Washington, DC area are above the national average. The ramp is a switch back design with two 18 feet sections and a 5 feet by 6 feet landing between the sections, and is constructed with treated lumber. We assume that the ramp is installed on a paved surface. Installing the ramp on an unpaved surface costs an additional $900 for footings. We also obtained an estimate for a modular ramp system made of treated lumber and aluminum. The modular ramp costs $4,200 and installation is estimated at 25 percent of the ramp cost, for a total cost of $5,200. The manufacturer offers a 10 percent discount, which covers shipping.

49 Cost is based on estimates from three lift companies and includes installation.

50 Cost is based on estimate for a modular raised platform with rails made of treated lumber and aluminum. The platform is 6 feet by 6 feet and the height can be adjusted. The platform costs $940 and installation is estimated at 25 percent of the platform cost. The manufacturer offers a 10 percent discount, which covers shipping.

51 National Marine Manufacturers Association, Boating 2001, Facts & Figures at a Glance. The figures include marinas, boatyards, yacht clubs, dockominiums, parks, and other facilities. Some marinas may have boat launch ramps; and some boat launch ramps may be constructed without a marina and boat slips. The new construction and alterations impacts on boat launch ramps are minimal, and we did not expend resources on developing models to estimate the number of existing and newly constructed boat launch ramps.

52 The 1997 Economic Census counted 4,217 marinas operated by private entities.

53 ADAAG 4.8.2.

54 We asked three professionals from different parts of the country to make assumptions about how many new marinas would be in each model. For model A, the assumptions were 10%, 10%, and 20%. For model B, the assumptions were 30%, 45%, and 50%. For model C, the assumptions were 30%, 45%, and 50%. We assumed 20% for model A, and 40% each for models B and C.

55 The estimate is based on an aluminum gangway that is 4 feet wide and has handrails, guardrails, and intermediate rails. The floating structure that supports the gangway is concrete filled with expanded foam, and is designed to support a live load of 100 pounds per square foot. The floating structure costs $45 per square foot. The 50 foot gangway itself costs $15,000, and the cost for a 200 square foot floating structure to support the 50 foot gangway is $9,000, plus $4,000 for a steel pile (12 inches by 60 feet) to anchor the floating structure. The total cost for the 50 foot gangway is $28,000 and includes installation. The cost for the 80 foot gangway itself is $35,000, and the cost for a 400 square foot floating structure to support the additional load is $18,000, plus $8,000 for two steel piles (12 inches by 60 feet) to anchor the floating structure. The total cost for the 80 foot gangway is $61,000 and includes installation. The cost of connecting the gangways to the land departure point is constant and is not included in the estimates.

56 For an explanation of the alterations requirements for primary function areas, see Chapter 2, § 2.8.

57 The NMMA prepared a marina inventory in September 2000 and estimated 20 percent of existing marinas have 25 or less boat slips. Another 25 percent of marinas did not report the number of boat slips at the facilities. We assumed 20 percent of these marinas have 25 or less boat slips.

58 For an explanation of the exception for technical infeasibility in alterations to existing facilities, see Chapter 2, § 2.8.

59 National Golf Foundation, Golf Facilities in the U.S. - 2001 Edition. A facility may have more than one golf course. The data includes regulation, executive, and par-3 length courses.

60 The NGA estimated 1,049 golf courses were in planning at the end of 2000.

61 Providing a golf car passage as an alternative to an accessible route on a golf course was originally recommended by the Golf Subcommittee of the Recreation Access Advisory Committee. The Professional Golfers’ Association of America, Golf Course Superintendent’s Association of America, American Society of Golf Course Architects, National Golf Course Owners Association, Club Corporation International, National Center on Accessibility, and Association of Disabled American Golfers were members of the Golf Subcommittee.

62 Golf course operators raised several operational issues during the rulemaking, including whether single rider adapted golf cars must be made available for rental and whether restrictions can be placed on using golf cars on fairways and greens for certain weather or agronomic conditions. The Access Board expects the Department of Justice will answer these questions when it amends its regulations to incorporate the final guidelines for recreation facilities as standards.

63 The 1992 and 1997 Economic Census do not have comparable data on miniature golf courses, so it is not possible to estimate the average annual rate of growth for these facilities.

64 In addition to the MGAUS, we interviewed the following companies that make miniature golf courses: Harris Miniature Golf Courses, Adventure Golf Services, Cost of Wisconsin, Castle Golf, Pirates Cove, Adventure Golf Design, MGI Mini-Golf, Peter Olesen and Associates, and Davis and Davis.

65 During the comment period on the draft final guidelines, the MGAUS requested that assistive devices such as electric carts be permitted as an alternative to an accessible route. Designing miniature golf course holes so electric carts can safely maneuver through the holes is likely to have greater impacts than designing an accessible route. Requiring individuals with disabilities to use electric carts on miniature golf courses is also inconsistent with other provisions of the ADA which require goods, services, and facilities to be afforded in the most integrated setting appropriate. The MGAUS and some companies that make miniature golf courses also requested that modular miniature golf courses and sites under 30,000 square feet be exempt from the final guidelines. These issues are further discussed under new construction impacts (§ 8.4).

66 For the companies interviewed, see note 54.

67 One acre is used for parking, and the other two acres are for the course.

68 The IHRSA estimate is based on a count made by American Business Information, Inc. of the number of businesses listed in Yellow Page directories under SIC Industry 7991 - Physical Fitness Facilities. The 1997 Economic Census counted 11,047 physical fitness facilities. American Business Information, Inc. counted 13,097 physical fitness facilities in 1997.

69 The BPPA estimate is based on information provided by its State associations. The number did not include bowling centers operated by membership organizations. The 1997 Economic Census counted 5,590 bowling centers. The BPPA estimated between 30 to 50 bowling centers close each year, and fewer open each year.

70 The Economic Census includes shooting facilities in NAICS Industry 713990 - All Other Amusement and Recreation Industries and does not breakout numbers for shooting facilities only.

71 For additional information on making physical fitness centers accessible, see Removing Barriers to Health Clubs and Fitness Facilities, A Guide for Accommodating All Members, Including People with Disabilities and Older Adults (2001), developed by the North Carolina Office on Disability and Health in collaboration with The Center for Universal Design.

72 The American College of Sports Medicine’s Health and Fitness Facility Standards and Guidelines (Second Edition, 1997), Guideline 10.G14.

73 A clear floor or ground space is 30 inches minimum by 48 inches minimum. An additional 6 inches maneuvering clearance is required on the short side if the clear floor or ground space is confined on all or part of three sides. ADAAG 4.2.4.

74 For an explanation of the exception for technical infeasibility in alterations to existing facilities, see Chapter 2, § 2.8.

75 P.K. Data. Inc., U.S. Commercial Swimming Pool Market Report, 2002 Edition. The report is copyrighted and we cannot disclose or reproduce the data.

76 We assumed pools operated by homeowner associations and apartments and condominiums are restricted to members only and are not covered by the ADA. Some of these pools may be covered by the Fair Housing Amendments Act of 1988, which prohibits discrimination on the basis of disability in multi-family housing. We also excluded a portion of pools in water parks because the final guidelines do not require a means of entry to catch pools for water slides. Using the methodology described in Chapter 2, we estimated there were 10,567 camps and recreational vehicle parks in 2001, and assumed 25 percent operate pools. We added this number to the estimate of the number of pools covered by the ADA.

77 We assumed the following percentages of new pools would have less than 300 feet of linear pool wall: public parks and recreation districts (40%); hotels and motels (80%); physical fitness facilities and recreational sports facilities (70%); high schools (90%): colleges and universities (30%); country clubs (40%); YMCAs (40%); and camps and recreational vehicle parks (90%).

78 We assumed the following percentage of new spas in relation to new pools: public parks and recreation districts (20%); hotels and motels (90%); physical fitness facilities and recreational sports facilities (65%); colleges and universities (50%); country clubs (100%); water parks (10%); YMCAs (20%); camps and recreational vehicle parks (10%). We also contacted The Day Spa Association to find out if its members operate spas covered by the final guidelines. Although some day spas provide hydrotherapy, the tubs used by the day spas for such therapy are very specialized and are operated by trained personnel, and would not be covered by the final guidelines.

79 Cost based on four different pool lift models ranging from $2,860 to $3,800, and includes installation and providing a water source to operate the lift. The unit cost estimate is on the higher end of the range. With the increased usage of pool lifts, the unit costs have steadily decreased since 1996 on the higher end of the range.

80 The requirement for two accessible means of entry is based on an Access Board sponsored research project on swimming pool access. National Center on Accessibility, Swimming Pool Accessibility Final Report, September 1996. The research project found that most State codes have adopted the ANSI/NSPI-1 1991 Standard for Public Swimming Pools, which require pools with 300 linear feet or more of pool wall to provide at least four means of entry. Multiple entry points are provided in larger pools for the safety and convenience of users. This is equally important for individuals with disabilities.

81 National Center on Accessibility, Swimming Pool Accessibility Final Report, September 1996.

82This trend toward constructing family recreational pools with play equipment is particularly strong among public parks and recreation districts.

83The unit cost for pool stairs is $2,500 and is based on estimates from commercial pool contractors for stairs complying with the final guidelines.