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. The Board has assessed the benefits and costs of the rule. The assessment has been placed in the public docket and is available for inspection. The assessment is also available on the Board’s Internet site. The assessment is summarized below:


The benefits of the final rule are not quantifiable, but are significant and are consistent with the President’s New Freedom Initiative. The primary benefit is the fulfillment of civil rights realized by individuals with disabilities. There are 52.5 million Americans with disabilities. Almost one in five adults has some type of disability. Among individuals 15 years old and over, 25 million have difficulty walking or using stairs. The final guidelines will result in newly constructed and altered recreation facilities that are accessible to individuals with disabilities and will enable them to participate in a wide range of recreational opportunities. Individuals with disabilities can also realize significant health benefits by participating in the range of recreational opportunities made accessible as a result of the final guidelines.


For each type of facility addressed by the final rule, the assessment estimates the number of existing facilities and new facilities constructed annually, identifies the requirements that have cost impacts for new construction and alterations, estimates the unit costs per facility, and calculates the total annual compliance costs. The number of small entities is reported as a percentage of the facilities. To estimate cost impacts, the assessment relies on assumptions where sufficient data is not available. The assumptions are based on interviews with professionals in the affected industries and are disclosed in the assessment. The assumptions cannot be validated and may not reflect the real world. The assumptions may result in under or overestimating the impacts of the final rule. The relevant data for each facility type is presented below.

Amusement Rides

Boating Facilities

Fishing Piers and Platforms

Golf Courses

Miniature Golf Courses

Exercise Equipment, Bowling Lanes, and Shooting Facilities

Swimming Pools, Wading Pools, and Spas

Regulatory Flexibility Act

The final regulatory flexibility analysis has been performed in conjunction with the assessment of the benefits and costs of the final rule required by Executive Order 12866 and the preparation of the preamble 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 Act (ADA) to ensure that new construction and alterations of facilities covered by the law are readily accessible to and usable by individuals with disabilities. Recreation facilities are among the facilities covered by the ADA. Recreation facilities have unique features that are not adequately addressed by the Americans with Disabilities Act Accessibility Guidelines (ADAAG). The final rule will amend ADAAG to provide supplemental guidelines for making recreation facilities accessible.

Significant Issues Raised During Public Comment Period

The significant comments raised during the public comment period are summarized in the preamble to the final rule, along with the Access Board’s assessment of the comments and the reason for selecting the alternative adopted in the final rule. The alternatives considered in the proposed rule and the final rule, and changes made from the proposed rule for each type of recreation facility are presented in the assessment of the benefits and costs of the final rule required by Executive Order 12866.

Numbers of Small Entities Affected by Final Rule

The numbers of small entities affected by the final rule are reported under the summary of the assessment of the benefits and costs of the final rule required by Executive Order 12866.

Reporting and Recordkeeping Requirements

There are no reporting and recordkeeping requirements.

Steps Taken to Minimize Significant Economic Impact on Small Entities

The Access Board has taken steps to minimize the significant economic impact on small entities for each of the different types of recreation facilities addressed in the final rule. These steps are listed below.

Technical Assistance

The Access Board will provide technical assistance materials to help small entities understand the accessibility guidelines for recreation facilities. The Access Board also operates a toll-free technical assistance service to answer questions from the public about the guidelines.

Executive Order 13132: Federalism

The final rule adheres to the fundamental federalism principles and policy making criteria in Executive Order 13132. The final rule implements Federal civil rights legislation that was enacted pursuant to the Congress’ authority to enforce the fourteenth amendment and to regulate commerce. 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." 42 U.S.C. 12101(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." 42 U.S.C. 12201(b). The final rule establishes minimum guidelines. States and local governments can adopt accessibility standards that provide individuals with disabilities equal or greater access to recreation facilities.

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 the Hawaii Disability and Communication Access Board 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 rule, 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.

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, 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.

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.

For the reasons stated in the preamble, part 1191 of title 36 of the Code of Federal Regulations is amended as follows:


1. The authority citation for 36 CFR Part 1191 continues to read as follows:

Authority: 42 U.S.C. 12204.

2. Appendix A to Part 1191 is amended as follows:

a. By revising the title page and pages i, ii, 1A, 2, 3, 4, 4A, 5 through 11,58A, and 76 through 81 as set forth below.

b. By removing the blank page following the title page.

c. By adding pages 4B, 11A, 58B, and 82 through 96 as set forth below.

d. In the appendix to Appendix A by revising pages A1, A1A, A16, and A22 through A25 and adding pages A1B, A16A, and A26 through A32 as set forth below.

The additions and revisions read as follows: