[Federal Register Volume 65, Number 202 (Wednesday, October 18, 2000)]
[Rules and Regulations]
[Pages 62498-62529]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26466]



[[Page 62497]]

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Part IV





Architectural and Transportation Barriers Compliance Board





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36 CFR Part 1191



Americans With Disabilities Act (ADA) Accessibility Guidelines for 
Buildings and Facilities; Play Areas; Final Rule

Federal Register / Vol. 65 , No. 202 / Wednesday, October 18, 2000 / 
Rules and Regulations

[[Page 62498]]


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ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD

36 CFR Part 1191

[Docket No. 98-2]
RIN 3014-AA21


Americans With Disabilities Act (ADA) Accessibility Guidelines 
for Buildings and Facilities; Play Areas

AGENCY: Architectural and Transportation Barriers Compliance Board.

ACTION: Final rule.

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SUMMARY: The Architectural and Transportation Barriers Compliance Board 
(Access Board) is issuing final accessibility guidelines to serve as 
the basis for standards to be adopted by the Department of Justice for 
new construction and alterations of play areas covered by the Americans 
with Disabilities Act (ADA). The guidelines 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. The guidelines will ensure that newly 
constructed and altered play areas meet the requirements of the ADA and 
are readily accessible to and usable by individuals with disabilities. 
The Department of Justice must adopt the guidelines as standards for 
them to be enforceable under the ADA.

DATES: The guidelines are effective November 17, 2000. The 
incorporation by reference of certain publications listed in the 
guidelines is approved by the Director of the Federal Register as of 
November 17, 2000.

FOR FURTHER INFORMATION CONTACT: Peggy Greenwell, Office of Technical 
and Information Services, Architectural and Transportation Barriers 
Compliance Board, 1331 F Street, NW., suite 1000, Washington, DC 20004-
1111. Telephone number (202) 272-5434 extension 134 (Voice); (202) 272-
5449 (TTY). E-mail address: <a href="/cdn-cgi/l/email-protection#6c0b1e0909021b0900002c0d0f0f091f1f41500d4c041e090a51" http: board.gov">board.gov</a>">greenwell@access-board.gov</a>.

SUPPLEMENTARY INFORMATION:

Availability of Copies and Electronic Access

    Single copies of this publication may be obtained at no cost by 
calling the Access Board's automated publications order line (202) 272-
5434, by pressing 2 on the telephone keypad, then 1, and requesting 
publication S-39 (Play Areas Final Rule). Persons using a TTY should 
call (202) 272-5449. Please record a name, address, telephone number 
and request publication S-39. This document is available in alternate 
formats upon request. Persons who want a copy in an alternate format 
should specify the type of format (cassette tape, Braille, large print, 
or ASCII disk). This document is also available on the Board's Internet 
site (http://www.access-board.gov/play/finalrule.htm).

Background

    The Americans with Disabilities Act is a comprehensive civil rights 
law which prohibits discrimination on the basis of disability.\1\ 
Titles II and III of the ADA require, among other things, that newly 
constructed and altered State and local government facilities, places 
of public accommodation, and commercial facilities be readily 
accessible to and usable by individuals with disabilities. Recreation 
facilities, including play areas, are among the types of facilities 
covered by titles II and III of the ADA.
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    \1\ See 42 U.S.C. 12101 et seq. (http://www.usdoj.gov/crt/ada/pubs/ada.txt).
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    The Architectural and Transportation Barriers Compliance Board 
(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 ADA are readily accessible to and usable by 
individuals with disabilities.\2\ The Access Board initially issued the 
Americans with Disabilities Act Accessibility Guidelines (ADAAG) in 
1991.\3\ ADAAG contains general scoping and technical provisions (ADAAG 
1 to 4) that apply to all types of facilities, and special application 
sections (ADAAG 5 to 12) that include additional scoping and technical 
provisions for certain types of facilities.\4\ The technical provisions 
are generally based on adult dimensions and anthropometrics. In 1998, 
ADAAG was amended to include technical provisions based on children 
dimensions and anthropometrics for building elements designed 
specifically for children ages 12 and younger.\5\
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    \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 (http://www.access-board.gov/adaag/html/adaag.htm).
    \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) (http://access-board.gov/adaag/kids/child/htm).
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    The Department of Justice is responsible for issuing regulations to 
implement titles II and III of the ADA. The regulations issued by the 
Department of Justice must include accessibility standards for newly 
constructed and altered facilities covered by titles II and III of the 
ADA. The standards must be consistent with the accessibility guidelines 
issued by the Access Board. The Department of Justice has adopted ADAAG 
as the Standard for Accessible Design for title III of the ADA.\6\
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    \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 (June 20, 
1994).
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    This final rule amends ADAAG by adding a new special application 
section for play areas (ADAAG 15.6) that includes scoping and technical 
provisions for ground level and elevated play components, accessible 
routes, ramps and transfer systems, ground surfaces, and soft contained 
play structures.\7\ The Access Board published a notice of proposed 
rulemaking (NPRM) on the play area guidelines in the Federal Register 
in April 1998.\8\ The NPRM describes the full history of the 
rulemaking. The play area guidelines were developed through regulatory 
negotiation, a supplement to the traditional rulemaking process that 
allows face-to-face negotiations among representatives of affected 
interests in order to achieve consensus on the text of a proposed rule. 
The regulatory

[[Page 62499]]

negotiation committee represented a variety of interests, including 
play equipment manufacturers, landscape architects, parks and 
recreation facilities, city and county governments, schools, child care 
facilities, and people with disabilities.\9\ The regulatory negotiation 
committee conducted meetings in various cities across the country and 
sought public participation throughout the process. The regulatory 
negotiation committee reached consensus on proposed guidelines for play 
areas and public comment was sought on the proposed guidelines through 
the NPRM. The Access Board held a public hearing in Denver, Colorado 
during the comment period. Approximately 100 comments were received on 
the NPRM.
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    \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) (http://www.access-board.gov/recreation/recnprm.htm).
    \8\ See 63 FR 24080 (April 30, 1998) (http://www.access-board.gov/play/nprm.htm).
    \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.
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    The Department of Justice must adopt the play area guidelines as 
standards for them to be enforceable under the ADA.

General Issues

    General issues pertaining to the application of the play area 
guidelines are discussed below. The specific provisions of the 
guidelines are discussed under the Section-by-Section Analysis.

Child Care Facilities

    Comment. The National Child Care Association (NCCA) questioned the 
estimated cost impact of the play area guidelines on child care 
facilities. NCCA claimed that the cost would be prohibitive for child 
care facilities. Child care providers who testified at the public 
hearing in Denver reiterated NCCA's concerns and noted that the 
guidelines would have the greatest impact on family child care 
providers. NCCA requested that carrying and lifting children on play 
areas be permitted as ``alternative accessibility'' or ``equivalent 
facilitation,'' or that play areas in child care facilities for 
children ages 5 and under be exempted from the guidelines.
    Response. NCCA was a member of the regulatory negotiation committee 
that reached consensus on the play area guidelines. The regulatory 
negotiation committee discussed various issues associated with play 
areas within child care facilities at great length. The regulatory 
negotiation committee limited application of the guidelines to play 
areas designed and constructed for children ages two and over. The 
regulatory negotiation committee also included provisions in the 
guidelines to address concerns related to smaller facilities, including 
child care facilities. For example, transfer systems are permitted 
instead of ramps to provide access to composite play structures with 
less than 20 elevated play components. Accessible routes at ground 
level are permitted to be 44 inches minimum wide, instead of 60 inches 
minimum wide, in play areas with less than 1,000 square feet. These 
provisions lessen the cost impact of the guidelines on smaller 
facilities.
    For the NPRM, it was estimated that there would be no cost impact 
on child care facilities. This estimate was based on several 
assumptions. First, it was assumed that all child care facilities would 
have small play areas. The economic assessment for the NPRM used a 
model of a small play area to represent play areas typically found in 
child care facilities. The model included two separate play areas 
totaling 920 square feet: one for infants and toddlers under age two, 
which is not covered by the guidelines; and one for pre-school children 
ages two through five, which is covered by the guidelines.\10\ The play 
area for the pre-school children included a composite play structure 
with 4 elevated play components on a single deck, 4 ground level play 
components, and a moveable play activity. The economic assessment 
assumed that, in the absence of the guidelines, if such a play area was 
designed and constructed in the future, it would have a transfer 
platform and steps that would make the composite play structure 
accessible.\11\ Thus, the guidelines would not have any cost impact on 
the composite play structure. The economic assessment also assumed 
that, in the absence of the guidelines, the play area would have a 
ground surface of engineered wood fiber, or a combination of rubber and 
loose fill materials that would provide an adequate accessible route to 
the composite play structure and to a sufficient number of ground level 
play components. Thus, the guidelines would not have any cost impact on 
the ground surface.
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    \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.
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    NCCA claimed that play areas in child care facilities are much 
larger than the model used in the economic assessment because most 
States require child care facilities to provide more than 1,000 square 
feet of play space. The Access Board has reviewed each State's 
licensing requirements for child care facilities. About two-thirds of 
the States require that a minimum of 50 square feet to 75 square feet 
of play space be provided for each child.\12\ However, the State 
requirements are expressed generally in terms of ``play space,'' not 
``playgrounds.'' The Access Board contacted over 125 child care 
facilities around the country and found that most of their playgrounds 
have 4 to 7 play components (the average number of play components was 
4.7 components). Furthermore, all the children enrolled in a child care 
facility do not use the playground at the same time, but rather the 
children use the playground in smaller groups. Play area equipment 
catalogues show designs similar to the model used in the economic 
assessment for pre-school children. This additional information 
supports the assumption made in the economic assessment regarding the 
size of play areas and number of play components in child care 
facilities.\13\
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    \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.
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    Based on comments from child care facilities, the assumption made 
in the economic assessment for the NPRM regarding the type of ground 
surface materials used for play areas in child care facilities has been 
changed. For the final rule, the economic assessment assumes that, in 
the absence of the guidelines, the ground surface material will be a 
loose fill such as sand or wood chips. The cost difference between 
using loose fill and engineered wood fiber is $300 to $950, and the 
cost difference between using loose fill and a combination of rubber 
and loose fill is $946 to $2,215. When maintenance costs for the 
various ground surface materials are factored in, the cost difference 
over a fifteen year life cycle

[[Page 62500]]

range from a cost savings of $190 to a cost increase of $460 for 
engineered wood fiber, and from a cost savings of $260 to a cost 
increase of $1,000 for a combination of rubber and loose fill. These 
cost savings or cost increases are not prohibitive. Additionally, small 
businesses that have revenues of $1 million or less, or 30 or fewer 
full-time workers are entitled to a 50 percent tax credit for expenses 
to remove architectural barriers in their facilities, up to a maximum 
expenditure of $10,250; and a tax deduction of $15,000 a year is also 
available for architectural barrier removal, regardless of business 
size.\14\ Child care facilities that remove architectural barriers in 
their existing play areas by replacing loose fill with accessible 
ground surfaces and by providing ramps and transfer systems to 
composite play structures may use the tax credit and tax deduction in 
combination. In addition, federal funds are available through the 
Community Development Block Grant Program to remove architectural 
barriers in existing facilities.\15\ 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.
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    \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.
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    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, and thus NCCA's 
request in this regard cannot be accepted.\16\ Challenge and skill 
development are both a part of the play experience, and children with 
disabilities are capable of enjoying this experience.
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    \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.
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    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. These family child care facilities are located in 
private homes. State licensing requirements generally set a maximum 
capacity of 12 children for these home based child care facilities and 
they usually care for a smaller number of children. There are important 
differences, besides size, between home based child care facilities and 
center based child care facilities. Center based child care facilities 
typically purchase public playground equipment costing an average of 
$7,000, for which accessible products are available. Family child care 
facilities on the other hand typically purchase home playground 
equipment costing from $100 for a simple swing set to $1,000 for more 
elaborate systems, for which accessible products may not be readily 
available. Family child care facilities place the playground equipment 
in the front or back yards of their homes, which typically consist of 
grass or dirt and may not provide the types of ground surfaces used at 
public playgrounds. The cost of providing ground surfaces complying 
with the play area guidelines could far exceed the cost of purchasing 
home playground equipment and result in the home owner deciding not to 
provide any playground equipment or to purchase moveable playground 
equipment, which would not be covered by the guidelines.
    Family child care facilities must still comply with all the other 
requirements of the ADA, including the general obligation to provide 
equal opportunity to individuals with disabilities to enjoy the 
services of their facilities and 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).\17\
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    \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%26a.html).
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Amusement Attractions

    Comment. The International Association of Amusement Parks and 
Attractions (IAAPA) requested that amusement attractions and amusement 
rides be exempt from the play area guidelines.
    Response. 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 the provisions for soft 
contained play structures. The exception is limited and applies to 
amusement attractions such as fun houses and barrels. If an amusement 
park or theme park has an eating place or picnic area that provides 
commonly used playground equipment, the playground equipment is not 
considered an amusement attraction and must comply with the play area 
guidelines.
    Amusement attractions are not exempt from the other provisions of 
ADAAG. For example, assembly areas with fixed seats where entertainment 
is provided must provide wheelchair seating spaces complying with ADAAG 
4.33 (Assembly Areas). Amusement attractions which have unique designs 
and features that are not adequately addressed by ADAAG must comply 
with ADAAG to the extent possible. Where ADAAG cannot be fully applied 
to amusement attractions, operators of amusement parks and theme parks 
are still subject to all the other requirements of the ADA, including 
the general obligation to provide individuals with disabilities an 
equal opportunity to enjoy the goods and services provided by their 
facilities.
    The play area guidelines do not apply to amusement rides. The NPRM 
on recreation facilities proposed to add scoping and technical 
provisions to ADAAG for amusement rides.\18\
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    \18\ See note 7, supra.
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    Comment. IAAPA also claimed that the play area guidelines conflict 
with a Department of Justice regulation for title III of the ADA, which 
provides that public accommodations are not required to alter their 
inventory to include accessible or special goods that are designed for 
individuals with disabilities, such as books in alternate formats 
(e.g., Braille or audio tape), closed-captioned videotapes, specially 
sized or designed clothing, and special foods to meet particular 
dietary needs.\19\
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    \19\ See 28 CFR 36.307 (http://www.usdoj.gov/crt/ada/reg3a/html).
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    Response. The Department of Justice regulation referenced by IAAPA 
applies to retail merchandise sold by public accommodations, and not to 
the design, construction, or alteration of facilities. Amusement rides 
are not retail merchandise. The regulation does not limit the other 
requirements of the ADA, including the requirement that new 
construction and alterations of facilities be readily accessible to and 
usable by individuals with disabilities.

Water Play Components

    Comment. Commenters requested that the play area guidelines address 
water play components. Water play components incorporate water into the 
play experience. Water play components may be stand alone or part of a 
composite structure, and may be located in shallow water or pools.
    Response. With regard to water play components located in shallow 
water or pools, the NPRM on recreation facilities requested additional 
information on

[[Page 62501]]

those water play components.\20\ Water play components located in 
shallow water or pools will be addressed in the final rule on 
recreation facilities.
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    \20\ See note 7, supra.
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    With regard to water play components not located in shallow water 
or pools, the play area guidelines apply to these water play 
components. Where these water play components are located at the ground 
level, the provisions for ground level play components apply, including 
locating one of each type on an accessible route. Where these water 
play components are elevated, the provisions for elevated play 
components apply.

Unique Play Areas

    Comment. Commenters requested clarification regarding application 
of the guidelines to play areas with unique designs and features. They 
provided examples of children's gardens, challenge courses, rock 
climbing walls, and tree houses. A manufacturer of interactive play 
systems claimed that the scoping and technical provisions were not 
appropriate for its play areas.
    Response. A play area is a portion of a site containing play 
components designed and constructed for children. Play components are 
defined broadly to include elements intended to generate specific 
opportunities for play, socialization, or learning. Play components may 
be manufactured or natural. The scoping and technical provisions of the 
play area guidelines were developed to address commonly used playground 
equipment and structures. There will be play areas that have unique 
designs and features which are not adequately addressed by the 
guidelines. In those situations, the play area guidelines and the rest 
of ADAAG are to be applied to the extent possible. An accessible route 
must be provided to the play area. Where there are multiple play 
components, the scoping provisions for ground level and elevated play 
components are to be used to determine how many play components must be 
located on an accessible route. Where a play area has unique features 
for which there are no applicable scoping provisions, then a reasonable 
number, but at least one, of the features must be located on an 
accessible route. Where there are appropriate technical provisions, 
they must be applied to the elements that are covered by the scoping 
provisions. Where a play area has unique designs for which the 
technical provisions are not appropriate, the operators of those play 
areas are still subject to all the other requirements of the ADA, 
including the general obligation to provide individuals with 
disabilities an equal opportunity to enjoy the goods and services 
provided by their facilities.\21\
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    \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)
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    Interactive play systems include a wide variety of structures. Some 
are similar to commonly used playground equipment and soft contained 
play structures, and can comply with applicable provisions of the play 
area guidelines. Others include water play components located in 
shallow water or pools. As discussed above, water play components 
located in shallow water or pools will be addressed in the final rule 
on recreation facilities. Still others are multi-level indoor 
structures that are supervised. Platform lifts may provide an 
appropriate design solution to provide access to those structures.

Alterations and Additions

    Comment. Commenters requested clarification regarding how the play 
area guidelines apply to alterations, especially where play components 
are replaced in existing play areas and the existing ground surface is 
not accessible.
    Response. ADAAG 4.1.6 (Accessible Buildings: Alterations) contains 
general scoping provisions relating to alterations. ADAAG 4.1.6(1)(b) 
provides that when an existing element or space is altered, the altered 
element or space must comply with the applicable provisions for new 
construction. If it is technically infeasible for the altered element 
or space to fully comply with the applicable new construction 
provisions, ADAAG 4.1.6(j) requires that the alterations provide for 
accessibility to the maximum extent feasible.
    ADAAG 4.1.6(1)(b) also provides that when the applicable provisions 
for new construction require that an element or space be located on an 
accessible route, the altered element or space is not required to be 
located on an accessible route, unless required by ADAAG 4.1.6(2) 
(Alterations to an Area Containing a Primary Function). ADAAG 4.1.6(2) 
provides that, when an area containing a primary function is altered, 
an accessible path of travel must be provided to the altered area 
unless the cost and scope of alterations to provide an accessible path 
of travel is disproportionate to the overall alterations as determined 
under criteria established by the Department of Justice. The Department 
of Justice regulations for title III of the ADA deem alterations to 
provide an accessible path of travel disproportionate when the cost 
exceeds 20 percent of the cost of the overall alterations.\22\
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    \22\ See 28 CFR 36.403(f)(1) (http://www.usdoj.gov/crt/ada/reg3a.html).
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    When play areas are altered, the provisions of ADAAG 4.1.6 apply. 
For example, the swings are replaced in an existing play area that has 
a sand ground surface. The sand does not have to be replaced with an 
accessible surface to provide an accessible path of travel to the 
swings if the cost of altering the ground surface exceeds 20 percent of 
the cost of replacing the swings. An exception has been added to the 
final rule to clarify the application of ADAAG 4.1.6 to this situation. 
The exception is limited to alterations where the play components are 
altered, but the ground surface is not altered. An accessible ground 
surface does not have to be provided, unless required by ADAAG 4.1.6(2) 
(i.e., the ground surface does not have to be altered if the cost 
exceeds 20 percent of the cost of replacing the play components). The 
exception exempts operators from having to provide an accessible ground 
surface not only for accessible routes, but also for clear floor or 
ground spaces and maneuvering spaces adjacent to the altered play 
components since it would not be practical to provide discrete spaces 
of accessible ground surfacing without connecting the spaces with an 
accessible route.\23\
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    \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.
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    Normal maintenance activities performed on play areas such as 
replacing worn ropes or topping off ground surfaces are not considered 
alterations. However, if the entire ground surface is replaced, the 
ground surface must comply with the play areas guidelines and provide 
an accessible route to the required number and types of ground level 
play components and

[[Page 62502]]

composite play structures. Replacing the entire ground surface would 
not require an additional number or types of ground level play 
components to be added, if there was not a sufficient number or types 
provided to comply with the guidelines prior to the alterations, nor 
would it require alterations to composite play structures that were not 
otherwise planned.
    Comment. Commenters also requested clarification regarding how the 
guidelines apply to play areas designed and constructed in phases over 
several years.
    Response. A provision has been added to the final rule to clarify 
that where play areas are designed and constructed in phases, the 
guidelines are to be applied so that when each successive addition is 
completed, the entire play area complies with all applicable provisions 
of the guidelines. For example, a play area is built in two phases. In 
the first phase, there are 10 elevated play components; and 10 elevated 
play components are added in the second phase for a total of 20 
elevated play components. When the first phase is completed, at least 5 
elevated play components must be located on an accessible route, and at 
least 3 ground level play components, including at least 3 different 
types, must be provided on an accessible route. When the second phase 
is completed, at least 10 elevated play components must be located on 
an accessible route, and at least 7 ground level play components, 
including 4 different types, must be provided on an accessible route. 
Ramps must be used to connect at least 5 of the elevated play 
components and transfer systems are permitted to be used to connect the 
rest of the elevated play components required to be located on an 
accessible route.
    Where ground level play components are added in phases, the 
additional ground level play components do not have to be located on an 
accessible route if at least one of each type requirement is met and a 
sufficient number and types of ground level play components are 
provided on an accessible route based on the number of elevated play 
components. For example, a newly constructed play area has two spring 
rockers and one of the spring rockers is located on an accessible 
route. Two more spring rockers are later added to the play area. An 
accessible route is not required to connect to the additional spring 
rockers, provided that a sufficient number and types of ground level 
play components are provided on an accessible route based on the number 
of elevated play components.

Section-by-Section Analysis

    The specific provisions of the play area guidelines and the 
comments received on each provision are discussed below.

3.5  Definitions

    Definitions are added to ADAAG 3.5 (Definitions) for the following 
terms used in the play area guidelines: amusement attraction, elevated 
play component, ground level play component, play area, play component, 
soft contained play structure, and use zone. Several of the definitions 
are revised in the final rule for clarity.
    Comment. Commenters questioned the reference to the ASTM F 1487-95 
standard in the definition of ``play area'' in the NPRM. The ASTM 
standard is a voluntary safety standard for public playground 
equipment. Commenters questioned whether the play area guidelines would 
apply if a play area was not designed and constructed in accordance 
with the ASTM standard.
    Response. The reference to the ASTM F 1487-95 standard has been 
removed from the definition of ``play area'' in the final rule.
    Comment. Designers and operators requested clarification of the 
definition of ``play component'' and how to distinguish between ground 
level and elevated play components.
    Response. The definition of ``elevated play component'' has been 
modified in the final rule to include the definition of a composite 
play structure. Appendix notes (A15.6.2 and A15.6.3) have been added to 
provide guidance on how to distinguish between ground level and 
elevated play components.

15.6  Play Areas

    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.\24\ The guidelines have been edited and reorganized for clarity. 
Appendix notes have been added to provide guidance on the guidelines. 
The appendix notes are advisory only.
---------------------------------------------------------------------------

    \24\ See note 7, supra.
---------------------------------------------------------------------------

15.6.1  General

    The play area guidelines apply to play areas designed and 
constructed for children ages two and over. Where separate play areas 
are provided within a site for specified age groups (e.g., preschool 
(ages 2 to 5) and school age ( ages 5 to 12)), each play area must 
comply with the guidelines. Where play areas are designed or 
constructed in phases, the guidelines are to be applied so that when 
each successive addition is completed, the entire play area complies 
with all the applicable provisions of the guidelines.
    Comment. Commenters requested clarification regarding how to apply 
the guidelines where separate play areas are provided within a site for 
different age groups.
    Response. As noted above, the section has been revised in the final 
rule to clarify that each play area within a site provided for 
specified age groups must comply with the guidelines.
    Comment. Commenters representing children with disabilities were 
concerned that the guidelines do not apply to play areas for children 
under age two.
    Response. There is not sufficient information to develop guidelines 
for play areas for children under age two. Although there are no 
guidelines for play areas for children under age two, operators of 
those play areas are subject to all the other requirements of the ADA, 
including the obligation to provide individuals with disabilities an 
equal opportunity to enjoy the goods and services provided by their 
facilities.

15.6.1  Exception 1

    Exception 1 is further discussed under General Issues. The 
exception exempts play areas located in family child care facilities 
where the proprietor actually resides from the play area guidelines. 
Family child care facilities must still comply with all the other 
requirements of the ADA, including the general obligation to provide 
equal opportunity to individuals with disabilities to enjoy the 
services of their facilities and 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).\25\
---------------------------------------------------------------------------

    \25\ See note 21, supra.
---------------------------------------------------------------------------

15.6.1  Exception 2

    Exception 2 permits operators to relocate play components in 
existing play areas for the purpose of creating safe use zones. Where 
the ground surface is not changed or extended for more than one use 
zone, the guidelines do not apply.
    Comment. A commenter questioned whether this exception applies when 
more than one play component is moved. To create safe use zones, 
usually more than one play component must be moved.

[[Page 62503]]

    Response. Exception 2 applies regardless of the number of play 
components moved, provided that the surface is not changed or extended 
for more than one use zone for each play component moved.

15.6.1  Exception 3

    Exception 3 is further discussed under General Issues. The 
exception provides that where play components are altered and the 
ground surface is not altered, the ground surface is not required to 
comply with the guidelines, unless required by ADAAG 4.1.6(2) 
(Alterations to an Area Containing a Primary Function).

15.6.1  Exception 4

    Exception 4 is further discussed under General Issues. The 
exception exempts amusement attractions in amusement parks and theme 
parks from the play area guidelines, except the provisions for soft 
contained play structures. The exception is limited and applies to 
amusement attractions such as fun houses and barrels. If an amusement 
park or theme park has an eating place or picnic area that provides 
commonly used playground equipment, the playground equipment is not 
considered an amusement attraction and must comply with 15.6. Amusement 
attractions are not exempt from the other provisions of ADAAG. 
Operators of amusement parks and theme parks are still subject to the 
other requirements of the ADA, including the general obligation to 
provide individuals with disabilities an equal opportunity to enjoy the 
goods and services provided by their facilities.

15.6.1  Exception 5

    Exception 5 exempts play areas from complying with the provisions 
for protruding objects in ADAAG 4.4 (Protruding Objects). ADAAG 4.4 
generally prohibits protrusions along circulation paths from projecting 
more than 4 inches, if the leading edge is above 27 inches and below 80 
inches. ADAAG 4.4 also requires a minimum head clearance of 80 inches. 
No comments were received on this exception.

15.6.1  Exception 6

    Exception 6 has been added to the final rule in response to 
comments from manufacturers who requested clarification regarding 
whether ADAAG 4.9 (Stairs) applies to composite play structures. The 
exception provides that stairs are not required to comply with ADAAG 
4.9 since ramps and transfer systems are used to provide access to 
elevated play components. The exception also eliminates any potential 
conflicts between the technical provisions for stairs and transfer 
systems.

15.6.2  Ground Level Play Components

    This section contains the scoping provisions for ground level play 
components. Ground level play components provided to comply with 
15.6.2.1 are permitted to satisfy the number required by 15.6.2.2, if 
the minimum required types of play components are provided. Where more 
than one ground level play component is required by 15.6.2.1 and 
15.6.2.2, the play components must be integrated in the play area.
    Comment. A parent of a child with a hearing impairment who has a 
cochlear implant commented that some play equipment materials such as 
plastic slides generate static electricity when children move across 
the surfaces. The static electricity can damage cochlear implants and 
result in the need to replace them surgically. The commenter 
recommended that 50 percent of play components be metal.
    Response. Consistent with the rest of ADAAG, the play area 
guidelines do not specify the materials to be used in play components. 
Designers and operators specify materials giving consideration to 
maintenance, climate, use, cost, and other factors. Manufacturers often 
add substances to plastics to reduce static electricity. The additives 
may lose their effectiveness over time in the outdoor environment or 
compromise the strength of the plastic. The type of clothing worn by a 
child and the humidity also may affect whether static electricity is 
generated by plastics. Some operators specify stainless steel slides to 
prevent or reduce vandalism. However, stainless steel slides are not 
widely used in warmer climates due to the potential for skin burns.
    Comment. Commenters requested clarification regarding how to apply 
the provision that ground level play components required by 15.6.2.1 
and 15.6.2.2 must be integrated. They provided examples where passive 
play components, such as activity panels, are separated from more 
active play components, such as swings, to ensure safety, and asked 
whether this type of separation would be considered integrated.
    Response. The intent of this provision is to ensure that ground 
level play components which can be accessed by children with 
disabilities are integrated with other ground level play components. 
Grouping all ground level play components that can be accessed by 
children with disabilities in one part of the play area would not be 
considered integrated. Where certain types of ground level play 
components are separated for safe use, the integration provision can 
still be met. For example, if one part of the play area has activity 
panels and another part has swings, as long as an accessible route 
connects to both parts of the play area and at least one activity panel 
and at least one swing is located on the accessible route, the ground 
level play components would be integrated.

15.6.2.1  General

    This section requires that at least one of each type of ground 
level play component provided must be located on an accessible route 
complying with 15.6.4 and must also comply with 15.6.6.
    Comment. Designers and operators requested clarification regarding 
distinguishing between the types of ground level play components 
provided. For example, they asked whether a straight slide would be 
considered the same type of play component as a spiral slide. 
Commenters representing children with disabilities emphasized the need 
to ensure diversity or variety of play experiences for children with 
disabilities.
    Response. An appendix note (A15.6.2) has been added to provide 
guidance on how to distinguish between the types of ground level play 
components provided. The general experience provided by the play 
component will distinguish between the types of play components 
provided. Examples of different types of experiences include rocking, 
swinging, climbing, spinning, and sliding. A spiral slide may provide a 
slightly different experience from a straight slide, but sliding is the 
general experience and therefore a spiral slide would not be considered 
a different type of play component than a straight slide.

15.6.2.2  Additional Number and Types

    This section requires that, where elevated play components are 
provided, additional ground level play components must be provided. The 
additional ground level play components must be located on an 
accessible route complying with 15.6.4 and must also comply with 
15.6.6.
    Comment. The NPRM proposed that the additional number of ground 
level play components be equal to at least 50 percent of the total 
number of elevated play components. Commenters considered this number 
excessive.
    Response. The regulatory negotiation committee proposed this 
provision in order to provide additional play opportunities for 
children with

[[Page 62504]]

disabilities at the ground level since only a minimum of 50 percent of 
elevated play components would be connected by ramps or transfer 
systems. The regulatory negotiation committee also was concerned that 
some children with disabilities would be unable to or would choose not 
to use transfer systems to access elevated play components and wanted 
to provide additional play opportunities at the ground level for those 
children. The provision has a significant cost impact on play areas due 
to the cost of providing the additional ground level play components 
and, depending on the surface material used, the cost of providing an 
accessible route to the additional ground level play components.
    The provision has been modified in the final rule. Table 15.6.2.2 
has been added to the final rule which requires that ground level play 
components complying with the guidelines be provided in a number equal 
to at least approximately one-third of the total number of elevated 
play components. The table also requires that the additional ground 
level play components include different types of play experiences. The 
table reduces the cost impact on play areas and ensures that there will 
be a diversity or variety of play opportunities for children with 
disabilities at the ground level.

15.6.2.2  Exception

    This exception has been modified in the final rule. The exception 
exempts play areas from having to provide the additional number and 
types of ground level play components required by 15.6.2.2 if at least 
50 percent of the elevated play components are connected by a ramp and 
at least 3 of the elevated play components connected by the ramp are 
different types of play components.
    Comment. The NPRM proposed to exempt play areas from having to 
provide additional ground level play components if all the elevated 
play components are connected by a ramp. Designers and operators 
commented that the proposed exception was too stringent.
    Response. The exception has been modified in the final rule as 
discussed above. The exception is intended to encourage designers and 
operators to connect the number of elevated play components required by 
15.6.3 with ramps instead of transfer systems because ramps are the 
preferred means of access for many children with disabilities.

15.6.3  Elevated Play Components

    This section requires that at least 50 percent of elevated play 
components must be located on an accessible route complying with 
15.6.4. Elevated play components connected by a ramp must comply with 
15.6.6.
    Comment. Commenters representing children with disabilities 
expressed concern that the guidelines do not require elevated play 
components located on an accessible route to be dispersed or located on 
different parts of a composite play structure.
    Response. Dispersion is not specifically required because requiring 
at least 50 percent of elevated play components to be located on an 
accessible route should provide for an adequate level of dispersion.

15.6.4  Accessible Routes

    This section requires that at least one accessible route complying 
with ADAAG 4.3 (Accessible Route), as modified by 15.6.4, be provided.
    Comment. Designers expressed concern that the technical provisions 
for accessible routes would restrict creativity and innovation in the 
design of challenging play areas.
    Response. The technical provisions for accessible routes provide 
minimum criteria for designers to make play areas accessible to 
children with disabilities. Consideration should be given to the 
general layout of the play area, and specifically to integrating 
elements and spaces that can be accessed by children with disabilities 
within the area. Designers are not prohibited from providing other 
circulation paths and spaces that do not conform to the guidelines, if 
an accessible route is provided. ADAAG 2.2 (Equivalent Facilitation) 
also allows for departure from specific technical provisions where 
designs may provide substantially equivalent or greater access.

15.6.4  Exception 1

    Exception 1 permits a transfer system to connect elevated play 
components, except where 20 or more elevated play components are 
provided, no more than 25 percent of the elevated play components are 
permitted to be connected by a transfer system. The rest of the 
elevated play components required to be located on an accessible route 
must be connected by a ramp.
    Comment. Some operators and manufacturers requested that the use of 
transfer systems not be limited based on the number of elevated play 
components provided. Some commenters representing children with 
disabilities requested that transfer systems not be permitted at all.
    Response. The exception has not been modified in the final rule. 
The regulatory negotiation committee extensively discussed the issue of 
when ramps should be required to connect elevated play components. The 
regulatory negotiation committee considered the cost of ramps in 
relation to the size of composite play structures, and the potential 
that ramps might have a negative impact on play value or on the number 
of play components provided. Although ramps are preferred over transfer 
systems, transfer systems are usable by some children with 
disabilities.
    Comment. Commenters requested clarification regarding how the 
number of elevated play components would be counted. They asked whether 
a double or triple slide that is part of a composite play structure 
would be counted as one elevated play component or more than one 
elevated play component.
    Response. An appendix note (A15.6.3) has been added to clarify that 
a double or triple slide is considered one elevated play component.

15.6.4  Exception 2

    Exception 2 permits an elevated play component to connect to 
another elevated play component in lieu of an accessible route where a 
transfer system is provided. No comments were received on this 
exception.

15.6.4  Exception 3

    Exception 3 permits platform lifts complying with ADAAG 4.11 
(Platform Lifts--Wheelchair Lifts) and applicable State or local codes 
to be used as part of an accessible route.
    Comment. Operators considered platform lifts hazardous and 
difficult to maintain since they must be independently usable.
    Response. The exception has been retained in the final rule. The 
exception allows operators the discretion to decide whether a platform 
lift is appropriate for a specific play area after giving due 
consideration to the location, level of supervision provided, and other 
relevant factors.

15.6.4.1  Location

    This section provides that accessible routes must be located within 
the boundary of the play area and must connect ground level play 
components required by 15.6.2.1 and 15.6.2.2, and elevated play 
components required by 15.6.3, including their entry and exit points.
    Comment. Commenters questioned why accessible routes must connect

[[Page 62505]]

stairs and exit points at stand alone slides. They maintained that 
accessible routes at these locations have limited utility because 
children with disabilities cannot often climb stairs or transfer 
independently from exit points of slides.
    Response. This provision is intended to provide children with 
disabilities a circulation path to a variety of play components without 
affecting the challenge incorporated in play areas. Some children with 
disabilities, especially those who use mobility devices that assist in 
walking or standing, will benefit from an accessible route connecting 
play components, including stand alone slides. Others may not be able 
to use certain play components independently, but may enjoy the 
experience with assistance. An accessible route at exit points allows 
children with disabilities to negotiate through an accessible surface 
and to return to mobility devices with dignity.

15.6.4.2  Protrusions

    This section prohibits objects from protruding into accessible 
routes at or below 80 inches above the surface. The provision has been 
revised in the final rule to apply only to ground level accessible 
routes in order to permit roofs on elevated play structures lower than 
80 inches above the deck or platform.

15.6.4.3  Clear Width

    This section specifies the dimensions for the clear width for 
accessible routes within play areas.
    Comment. Commenters questioned why a 60 inch minimum clear width is 
required for ground level accessible routes when the final rule on 
children's elements did not modify the width of the accessible route 
for other types of facilities serving children.\26\
---------------------------------------------------------------------------

    \26\ See not 5, supra.
---------------------------------------------------------------------------

    Response. The ground level accessible route in a play area is 
unique since the route may be the only area where accessible surfacing 
is provided. When the accessible route is the only accessible surface, 
it is likely that children with disabilities will be restricted to that 
small portion of the play area while other children are not so 
restricted. Furthermore, 60 inches is the minimum clear width necessary 
for turning.
    Comment. Commenters noted that children who use wheelchairs leave 
their mobility devices when they use transfer systems and therefore the 
clear width of transfer systems does not need to be the same as the 
clear width of ramps on elevated accessible routes.
    Response. An exception has been added to the final rule permitting 
the clear width of transfer systems connecting elevated play components 
to be 24 inches minimum.

15.6.4.4  Ramp Slope and Rise

    This section specifies the slope and rise of ramps connecting 
ground level play components and ramps connecting elevated play 
components.
    Comment. Commenters wanted more information about the technical 
provisions for ramps, including landings, handrails, and edge 
protection.
    Response. The technical provisions for ramps are in ADAAG 4.8 
(Ramps), including provisions for landings, handrails, and edge 
protection. Some of these provisions are modified by 15.6.4.4.
    Comment. Designers requested clarification regarding the transition 
between accessible routes within a play area and accessible routes on a 
site. They asked if the transition is required to have a 1:16 maximum 
slope or a 1:12 maximum slope.
    Response. Transitions at the boundary of play area accessible 
routes and site accessible routes must comply with ADAAG 4.5.2 (Changes 
in Level), which provides that changes in level greater than \1/2\ inch 
must comply with ADAAG 4.8 (i.e., 1:12 maximum slope). Where a rubber 
surface is installed on top of asphalt to provide impact attenuation, 
the edges of the rubber surface may create a change in level between 
the adjoining ground surface. Where the change in level is greater than 
\1/2\ inch, a sloped surface with a maximum slope of 1:12 must be 
provided. Products are commercially available that provide a 1:12 slope 
at transitions. An appendix note (A15.6.7) has been added to provide 
guidance on transitions.
    Comment. A manufacturer preferred limiting the length of ramp runs 
to 12 feet, instead of limiting the rise of ramps to 12 inches.
    Response. The regulatory negotiation committee wanted to limit the 
distance between the ramp and decks or platforms where children gather 
and interact, and also encourage designers to provide ramps with a 
lesser slope than the 1:12 maximum. Limiting the rise of ramps to 12 
inches allows designers to use different combinations of ramp runs and 
ramp slopes to reach the same elevation. For example, to reach a 12 
inch high deck or platform, a designer could use a 12 foot ramp with 
the maximum 1:12 slope, or a 14 foot ramp with a less steeper 1:14 
slope. If the ramp run is limited to 12 feet, the designer could only 
use the maximum 1:12 slope.

15.6.4.5  Handrails

    This section specifies dimensions for handrails on ramps provided 
within play areas. An exception has been revised in the final rule to 
clarify that handrails are not required at ramps located within ground 
level use zones and another exception has been added that does not 
require handrail extensions at the top and bottom of ramps to avoid any 
potential protrusion into circulation paths, especially on elevated 
decks or platforms.

15.6.5  Transfer Systems

    This section contains technical provisions for transfer systems. 
The section clarifies that transfer platforms must be located where 
transfer is intended to be from a wheelchair or other mobility device, 
and that transfer steps must be located where movement is intended from 
a transfer platform to a level with elevated play components required 
to be located on an accessible route. The section also clarifies the 
orientation of the transfer space. The NPRM requested information 
regarding the effective placement of transfer supports. Commenters 
provided some examples of transfer supports designs. An appendix note 
(A15.6.5) has been added to provide guidance on transfer supports.

15.6.6  Play Components

    This section contains technical provisions for ground level play 
components located on accessible routes and elevated play components 
connected by ramps. The provisions specify the dimensions for 
maneuvering space, clear floor or ground space, heights and clearances 
at play tables, the height of seats and entry points, and transfer 
supports.
    Comment. Commenters requested clarification regarding the location 
of the clear floor or ground spaces and maneuvering spaces, and whether 
clear floor or ground spaces, maneuvering spaces, and accessible routes 
may overlap.
    Response. A specific location has not been designated for the clear 
floor or ground spaces and maneuvering spaces, except for swings, 
because each play component may require that the space be placed in a 
unique location. The maneuvering space for swings must be located 
immediately adjacent to the swing (see figure 66). Clear floor or 
ground spaces, maneuvering spaces, and accessible routes may overlap 
within play areas.

[[Page 62506]]

    Comment. The NPRM proposed reach ranges for manipulative or 
interactive features of play components. Commenters noted that the 
reach ranges are not consistent with the ADAAG provisions for 
children's elements and the ASTM F 1487-98 standard. The International 
Playground Equipment Manufacturers Association recommended a reach 
range between 9 inches and 48 inches for a side reach, and 20 inches to 
36 inches for a forward reach. Commenters questioned how the proposed 
reach ranges might apply to overhead play components and what 
provisions would apply to reaches over obstructions. They also 
questioned applying reach ranges designed to accommodate children who 
use wheelchairs to play components reached by transfer systems.
    Response. The reach ranges have been moved to an appendix note 
(A15.6.6.6) and are advisory only. This is consistent with the action 
taken in the final rule on children's elements.\27\ The regulatory 
negotiation committee proposed the reach ranges based on the NPRM on 
children's elements.\28\ Comments on that rulemaking and this 
rulemaking have raised important issues that deserve further research.
---------------------------------------------------------------------------

    \27\ See note 5, supra.
    \28\ See 61 FR 37964 (July 22, 1996).
---------------------------------------------------------------------------

    Comment. Commenters noted that the proposed reach ranges were not 
adequate for play tables such as sand and water tables. These play 
components necessitate a reach over an obstruction and the NPRM did not 
include a provision for knee and toe clearance to facilitate this type 
of reach.
    Response. A provision has been added to the final rule to address 
the concerns. Although the reach ranges are advisory only, knee and toe 
clearance for play tables have been included in the final rule. These 
clearances are consistent with the provisions in ADAAG for children's 
elements such as lavatories. An exception provides that play tables 
designed for children ages 5 and under are not required to provide knee 
and toe clearance if a parallel approach to the table is provided.

15.6.7  Ground Surfaces

    This section provides that ground surfaces along accessible routes, 
clear floor or ground spaces, and maneuvering spaces within play areas 
must comply with ADAAG 4.5.1 (Ground or Floor Surfaces--General) and 
the ASTM F 1951-99 Standard Specification for Determination of 
Accessibility of Surface Systems Under and Around Playground Equipment. 
The ground surfaces must be inspected and maintained regularly and 
frequently to ensure continued compliance with the ASTM F 1951-99 
standard. If located within use zones, the ground surfaces also must 
comply with the ASTM F 1292-99 Standard Specification for Impact 
Attenuation of Surface Systems Under and Around Playground Equipment. 
The NPRM referenced the ASTM PS 83 Provisional Standard Specification 
for Determination of Accessibility of Surface Systems Under and Around 
Playground Equipment. The ASTM PS 83 standard has been finalized as the 
ASTM F 1951-99 standard. Minor editorial changes were made between the 
provisional standard and the final standard.
    Comment. Commenters requested more information about the ASTM PS 83 
standard.
    Response. The ASTM standards are copyrighted private consensus 
standards and are available from the American Society for Testing and 
Materials (ASTM), 100 Barr Harbor Drive, West Conshohocken, PA 19428-
2959, telephone (610) 832-9585. The cost of the ASTM F 1951-99 standard 
is $30. The ASTM standards may be ordered online from ASTM (http://www.astm.org). An appendix note (A15.6.7) has been added to provide 
guidance on the ASTM F 1951-99 standard.
    Comment. Some commenters were concerned that engineered wood fiber 
products would not provide an adequate accessible surface. Other 
commenters reported positive experiences with engineered wood fiber 
products in play areas used by children with disabilities. Commenters 
also requested that the Access Board publish a list of accessible 
ground surfaces.
    Response. Some engineered wood fiber products have been tested and 
meet the ASTM F 1951-99 standard, and others have not. The fact that a 
specific product has been tested and meets that ASTM F 1951-99 standard 
does not necessarily mean that all other similar products will meet the 
standard. Engineered wood fiber surfaces will require frequent 
maintenance to comply with the ASTM F 1951-99 standard because of 
surface displacement due to user activity or looseness due to moisture. 
The settling of engineered wood fiber may also affect the distance 
between the ground surface and transfer platforms. The final rule 
requires ground surfaces to be inspected and maintained regularly and 
frequently to ensure continued compliance with the ASTM F 1951-99 
standard. The Department of Justice regulations for titles II and III 
of the ADA also require public and private entities to maintain 
accessible features.\29\
---------------------------------------------------------------------------

    \29\ See 28 CFR 35.133 (http://www.usdoj.gov/crt/ada/reg2.html) 
and 28 CFR 26.211 (http://www.usdoj.gov/crt/ada/reg3a.html).
---------------------------------------------------------------------------

    Designers and operators are likely to choose materials that best 
serve the specific needs of each play area. The type of material 
selected will affect the frequency and cost of maintenance. The 
existence of the ASTM F 1951-99 standard should hasten the development 
of new materials and improvements in existing products. The Access 
Board plans to develop technical assistance materials on accessible 
ground surfaces. Based on concerns expressed by commenters and the fact 
that the ASTM F 1951-99 standard is new, the Access Board will closely 
monitor how well the standard provides for accessible surfaces.

15.6.8  Soft Contained Play Structures

    This section requires an accessible route to serve entry points of 
soft contained play structures. Where three or fewer entry points are 
provided, at least one must be located on an accessible route. Where 
four or more entry points are provided, at least two must be located on 
an accessible route. Accessible routes must comply with ADAAG 4.3 
(Accessible Route). An exception provides that transfer systems 
complying with 15.6.5 and platform lifts complying with ADAAG 4.11 
(Platform Lifts--Wheelchair Lifts) and applicable State or local codes 
are permitted to be used as part of an accessible route. There were 
very few comments on this section and no changes have been made in the 
final rule.

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 (http://www.access-board.gov/play/assess.htm). 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

[[Page 62507]]

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
------------------------------------------------------------------------
                                                      Lower      Upper
                  Play area size                      bound      bound
                                                    estimates  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 (option 2).\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

[[Page 62508]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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
----------------------------------------------------------------------------------------------------------------
                                                         Baseline                 Guidelines
                 Play area size                 ----------------------------------------------------   Percent
                                                     Low          High         Low          High        change
----------------------------------------------------------------------------------------------------------------
                                     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 (option 1) 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 Table 3.

                                    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.

[[Page 62509]]

 
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)
------------------------------------------------------------------------
                                                  Surface      Surface
                                                 option 1:    option 2:
                Play area size                   Engineered    Rubber &
                                                 wood fiber   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]
------------------------------------------------------------------------
                                                  Surface      Surface
                                                 option 1:    option 2:
                All play areas                   Engineered    Rubber &
                                                 wood fiber   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.
---------------------------------------------------------------------------

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

    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.

[[Page 62510]]

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\
---------------------------------------------------------------------------

    \32\ See note 14, supra.
    \33\ See note 15, supra.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \34\ See note 16, supra.
    \35\ See note 14, supra.
    \36\ See note 15, supra.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \37\ See note 7, supra.
---------------------------------------------------------------------------

    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
------------------------------------------------------------------------
                                                Estimated establishments
                                   Estimated         with play areas
     SIC           Category     establishments -------------------------
                                    in 1999         Low          High
------------------------------------------------------------------------
5812.........  Eating Places..        420,000         8,400       21,000
7011.........  Hotels & Motels         47,000           940        2,300
7032.........  Sporting &               3,600           360          900
                Recreational
                Camps.

[[Page 62511]]

 
7033.........  Recreational             7,000         2,800        4,200
                Vehicle Parks
                & Campsites.
7999.........  Miscellaneous           32,000         3,200        8,000
                Amusement &
                Recreation.
n/a..........  Public                  65,000        52,000       65,000
                Elementary &
                Middle Schools.
n/a..........  Private                  5,500         4,400        5,500
                Elementary &
                Middle Schools.
8351.........  Child Day Care         102,000        92,000      102,000
                Services.
8641.........  Civic, Social,           3,700           740        1,900
                & Fraternal
                Associations.
n/a..........  Municipal &            110,000        33,000       67,000
                State Parks.
------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

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

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.

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 set forth in the preamble, part 1191 of Title 36 of 
the Code of Federal Regulations is amended as follows:

PART 1191--AMERICANS WITH DISABILITIES ACT (ADA) ACCESSIBILITY 
GUIDELINES FOR BUILDINGS AND FACILITIES

    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 pages i, ii, 2, 3, 4, and 76 and by adding pages 1A, 
4A, and 77 through 81 as set forth below.
    b. In the appendix to Appendix A by adding pages A22 through A25 as 
set forth below.
    The revisions and additions read as follows:

[[Page 62512]]

Appendix A to Part 1191--Americans with Disabilities Act (ADA) 
Accessibility Guidelines for Buildings and Facilities

* * * * *

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[FR Doc. 00-26466 Filed 10-17-00; 8:45 am]
BILLING CODE 8150-01-C


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