Chapter 1: Background

1.1 Overview

This economic assessment was prepared to meet the requirements of Executive Order 12886 and other requirements, and to better inform the public about the implications of the final accessibility guidelines for play areas issued by the Access Board. The guidelines include scoping and technical provisions, which specify when and how access is to be provided to ground level and elevated play components. The guidelines also address soft contained play structures.

Chapter 1 discusses the statutory authority for the guidelines, the history of the rulemaking, and the need for the guidelines in terms of market failure and civil rights.

Chapter 2 summarizes the final guidelines and the changes made from the proposed rule in response to the public comments.

Chapter 3 estimates the number of new and replacement play areas constructed annually based on the types of establishments affected by the guidelines and size categories of play areas (small, medium, and large).

Chapter 4 estimates the incremental costs of the guidelines for a small, medium, and large model play area. Based on the incremental costs of the models and the effect of the incremental costs on the number of new and replacement play areas constructed, Chapter 4 also estimates the social and the direct costs of the guidelines, which yield the total annual cost of the guidelines.

Chapter 5 discusses the benefits of the guidelines.

1.2 Statutory Authority

The Americans with Disabilities Act is a comprehensive civil rights law which prohibits discrimination on the basis of disability. Title II and III of the Americans with Disabilities Act require, among other things, that newly designed and newly constructed State and local government buildings, places of public accommodation, and commercial facilities be readily accessible to and usable by individuals with disabilities. Existing facilities that are altered are also subject to accessibility requirements.

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. (1) The Access Board is responsible for developing accessibility guidelines to ensure that new construction and alterations of facilities covered by titles II and III of the Americans with Disabilities Act are readily accessible to and usable by individuals with disabilities. The Access Board initially issued the Americans with Disabilities Act Accessibility Guidelines (ADAAG) in 1991. ADAAG consists of general sections (ADAAG 1 to 4) that apply to all types of buildings and facilities, and special application sections (ADAAG 5 to 12) that contain additional requirements for certain types of buildings. The play area accessibility guidelines developed by the Access Board will be part of a special application section for recreation facilities (ADAAG 15). (2)

The Department of Justice is responsible for issuing regulations to implement titles II and III of the Americans with Disabilities Act. The regulations issued by the Department of Justice must include accessibility standards for newly designed and newly constructed, and altered facilities covered by the law. The standards must be consistent with ADAAG.

1.3 Regulatory History

Recreation Access Advisory Committee

Titles II and III of the Americans with Disabilities Act cover a variety of recreation facilities such as amusement rides, boating and fishing facilities, golf courses, play areas, sports facilities, and trails. While the existing sections of ADAAG cover these facilities, some recreation facilities have unique features for which special application sections are needed. In July 1993, the Access Board convened a Recreation Access Advisory Committee as the first step in developing special application sections for recreational facilities. The advisory committee issued a report in July 1994, which addressed the various types of recreation facilities and identified the features of each facility type that are not adequately addressed by ADAAG. The advisory committee report included recommendations for developing accessibility guidelines for those features.

Advance Notice of Proposed Rulemaking

In September 1994, the Access Board published an Advance Notice of Proposed Rulemaking (ANPRM) requesting public comment on the advisory committee's recommendations. 59 FR 48542 (September 21, 1994). The public comments expressed support for many of the advisory committee's recommendations. However, the public comments showed a lack of consensus on some major issues regarding play areas among interests that potentially would be affected by guidelines for those facilities.

Play Areas Regulatory Negotiation Committee

Since there was a lack of consensus on the advisory committee's recommendations for play areas, the Access Board decided to develop a special application section for play areas through regulatory negotiation. Regulatory negotiation is a supplement to the traditional rulemaking process that allows for face-to-face negotiations among representatives of affected interests, including the agency, with a goal of arriving at a consensus decision on the text of a proposed rule. The proposed rule is then published in the Federal Register and the public has an opportunity to comment. Based on public comments received, the final rule may differ from the proposed rule.

In March 1996, the Access Board established a regulatory negotiation committee to develop a set of proposed accessibility guidelines for play areas. The membership of the regulatory negotiation committee included:

  • American Society of Landscape Architects
  • ASTM Public Playground Subcommittee (F 15.29)
  • ASTM Soft Contained Play Subcommittee (F 15.36)
  • ASTM Playground Surfacing Systems Subcommittee (F 08.63)
  • 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
  • U.S. Access Board

The regulatory negotiation committee identified basic principles to guide its negotiations and agreed that the accessibility guidelines for play areas should:

  • Use children's anthropometric dimensions and other resource information;
  • Accommodate children with disabilities using a variety of assistive devices;
  • Provide opportunity for use by children who have a variety of abilities;
  • Support social interaction and encourage integration;
  • Create challenge, not barriers;
  • Maintain safety consistent with ASTM standards;
  • Be reasonable in terms of cost relative to benefit;
  • Allow independent use, as much as possible;
  • Address access for parents and care givers;
  • Provide access to elevated structures (additional ground level accessible play components may be required, depending on the type of vertical access provided to elevated structures); and
  • Provide advisory information in an understandable format to assist designers, operators, and owners, to effectively incorporate access into their designs.

Alternatives Considered

The regulatory negotiation committee considered a number of alternatives for providing accessibility within play areas. The alternatives which were considered and rejected by the regulatory negotiation committee included the following:

  • Requiring the entire surface of a play area to be accessible and ramp access to all play components on an elevated structure;
  • Requiring the use of transfer systems to reach all of the play components on an elevated structure; and
  • Requiring ramp access to a certain height on elevated structures.

Requiring the entire surface of a play area to be accessible and ramp access to all play components on an elevated structure would be too costly. The other alternatives would limit opportunities for children with disabilities to interact and socialize with other children.

Notice of Proposed Rulemaking

The regulatory negotiation committee reached consensus on a proposed set of accessibility guidelines for play areas, which would require a percentage of elevated play components to be accessible and also would provide access to a variety of ground level play components. In March 1998, the Access Board published a Notice of Proposed Rulemaking (NPRM) containing the committee's proposed accessibility guidelines. 63 FR 24080 (April 30 ,1998). About 100 public comments were submitted in response to the proposed rule. The comments are summarized and responded to in the preamble to the final guidelines. Based on the public comments, the Access Board has revised some provisions in the final guidelines.

1.4 Statement of Need

Many play areas are designed in such a way that they are not accessible to children with disabilities. Children with disabilities are prevented from getting to, through, and off ground level and elevated play components because there is no accessible ground surface and no means (i.e., ramp or transfer system) to access composite play structures. The lack of accessible routes and other accessible features limits opportunities for children with disabilities to benefit from the entertainment, education, and socialization opportunities provided by play areas. It also prevents parents and other adults with disabilities who supervise children from using play areas.

Market Failure

Play areas provide both private and public benefits. Among the private benefits are the entertainment and educational value to individual children, the value to parents of having a place to provide these benefits to their children, and the ability of certain businesses such as child care centers and pay-to-play type establishments to sell these amenities. The public benefits associated with play areas largely revolve around the opportunities they provide for children to socialize and develop socialization skills. Of particular importance to these guidelines is the opportunity accessible play areas provide for interaction between children regardless of disability status.

Presumably, the market provides the appropriate number and type of play areas to satisfy the demand for private benefits from play areas. On the other hand, the market does not send clear signals on the public benefits play areas provide. Individuals with disabilities may not have the combined market power to ensure that play areas are designed to be accessible. Since society may not consider these public benefits when making decisions about the design of play areas, society as a whole may face a shortage of the socialization benefits gained through play opportunities. It is this potential shortage that the play area guidelines address.

Civil Rights

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." In these instances, it may be socially desirable to redistribute benefits to those populations that receive less than their "fair" share of goods and services at the market equilibrium. Policies based on furthering the rights of certain classes of individuals provide more equitable distributions of benefits, regardless of the effect on economic efficiency.

The Americans with Disabilities Act is a civil rights law that was enacted by overwhelming bipartisan majorities of 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. Society relies on political processes to make decisions about redistribution of benefits based on equity considerations - i.e., what is a "fair" share of goods and services. While cost-benefit analysis is not dispositive in making equity-based decisions, it can inform the policy makers as they make redistribution decisions.