1. STATUTORY AUTHORITY:

Subdivision 1(d) of section 553 of the Executive Law, powers and duties of the Consumer Protection Board (The Board) and the executive director, grants general rulemaking authority to The Board to implement other powers and duties by regulation and otherwise as prescribed by any provision of law. Section 399-dd of the General Business Law mandates that The Board in consultation with the Office of Parks, Recreation and Historic Preservation promulgate rules and regulations for the design, installation, inspection and maintenance of playground equipment. The proposed rule simply incorporates by reference the U.S. Consumer Product Safety Commission Handbook for Public Playground Safety (CPSC Handbook).

2. LEGISLATIVE OBJECTIVES:

The legislative memorandum in support of General Business Law section 399-dd directs promulgation of this proposal. This memorandum indicates that the legislative objective of General Business Law section 399-dd is to address the hope of parents and guardians that playgrounds where their children meet friends, play and exercise are among the safest places their children can spend time. Further, that memorandum underscored that the U.S. Consumer Products Safety Commission (CPSC) and the American Society for Testing Materials (ASTM) has developed playground equipment guidelines and standards. While establishing rules and regulations for the construction of new playgrounds or playground equipment is no guarantee that accidents will not occur, they may greatly reduce the severity of such accidents.

Recognizing that the replacement of playground equipment or change in design by a date certain would be cost prohibitive, this legislation instead only requires that new playgrounds, or new installation, construction, or replacement of major types of playground equipment conform to any requirements promulgated pursuant to the enactment of this legislation. This approach allows playground owners to efficiently comply with the CPSC Handbook and establishes consistency and uniformity of standards.

3. NEEDS AND BENEFITS:

The purpose of the proposed rules is to achieve the statutory objectives of General Business Law section 399-dd, which requires The Board, in consultation with the Office of Parks, Recreation and Historic Preservation to promulgate rules that will ensure playgrounds and playground equipment will substantially comply with the guidelines published in the CPSC Handbook thereby decreasing the number of serious injuries and deaths related to unsafe playground conditions. The Board and the Office of Parks, Recreation and Historic Preservation did collaborate as required by the statute and discussed alternative approaches to this proposal, including, developing new categories for major types of equipment and consulting with the Office of Children and Families. Rather than adopt a portion of the CPSC Handbook guidelines or the standard of “substantially comply” with the guidelines, The Board incorporated by reference the entire CPSC Handbook to better serve consumers, businesses and government. This action creates a consistent uniform standard for playground safety with which many consumers, businesses and governments are already familiar. The New York State Education Department Playground Installation Reference Guide #C.4 & #C.5 requires that school playgrounds conform to the CPSC Handbook.¹

Research conducted by the CPSC and reported by the National Program for Public Playground Safety indicates that approximately 45% of playground injuries occur on school playgrounds and 31% occur in public parks.² Further, the National Safety Council and the New York Public Interest Research Group (NYPIRG) reported that more than approximately 200,000 children per year visit hospital rooms as a result of playground injuries.³ NYPIRG noted that more playground injuries could be prevented if playgrounds were designed with a greater emphasis on safety.⁴

Accordingly, incorporating by reference the entire CPSC Handbook is the best way to comply with the intent of General Business Law section 399-dd and enable playground owners to become familiar with nationally recognized playground safety standards which will encourage necessary and effective compliance.

4. COSTS:

(a) Costs to State Government: The Board will develop and distribute informational material to aid with education and compliance with these new rules. This information will also be available on The Board's website. The cost to The Board is estimated at approximately five thousand ($5,000) dollars. However, the cost of the development and distribution of this material is outweighed by the benefit of supporting compliance. In the event of alleged non-compliance, the Office of the New York State Attorney General may incur costs related to investigation and enforcement.

(b) Costs to private regulated parties: These rules may impose some costs on businesses that install or construct new playground equipment or replace major types of playground equipment on existing playgrounds in order to comply with General Business Law section 399-dd and provide safer playgrounds for children. However, because costs incurred will vary depending upon plans related to specific construction or modification of individual playgrounds, The Board is unable to project potential cost impacts. The Board will carefully consider all oral and written comments received as a result of these proposed regulations.

(c) Costs to local governments: These rules may impose costs on local governments that install or construct new playground equipment or replace major types of playground equipment on existing playgrounds. The Association of Towns, New York State Conference of Mayors and the New York State Association of Counties were all consulted with respect to this proposal. The Conference of Mayors confirmed that most of the playgrounds under their jurisdiction were currently in compliance with the CPSC Handbook for insurance purposes. The Association of Towns and the New York State Association of Counties offered no comment on compliance costs.

According to the Department of Education's Playground Installation Reference Guide #C.4 and #C.5, schools engaging in playground installations are already required to include with their plans a certification that the design meets or exceeds the requirements of the CPSC Handbook. Costs to other local government entities are dependent upon the specific plan related to construction or modification of particular playgrounds. Therefore, The Board has no methodology upon which to project costs. The Board will carefully consider all oral and written comments received as a result of these proposed regulations.

5. LOCAL GOVERNMENT MANDATES:

The local government mandate to substantially comply with the CPSC Handbook is a result of General Business Law section 399-dd and not these rules.

6. PAPERWORK:

No new paperwork requirements are anticipated for compliance with this proposal. However, parties in alleged non-compliance would have the opportunity to submit within five days a written response to the notice of a proceeding by the Attorney General. There are no reporting requirements to The Board in the proposed regulations. However, The Board may respond in writing to any inquires regarding these rules.

7. DUPLICATION:

The proposed regulation will not duplicate, overlap or conflict with any known State or federal regulatory requirements. The proposal will incorporate by reference the CPSC Handbook and create consistency with respect to playground safety standards throughout New York State.

8. ALTERNATIVES:

The Board is mandated by General Business Law section 399-dd to promulgate regulations that substantially comply with the guidelines set forth in the CPSC Handbook. During rule development, The Board considered developing standards similar to, but not identical with, the CPSC Handbook guidelines. For example, The Board considered developing new categories for major types of equipment; requiring resilient surfacing under equipment at ground level; requiring a state inspection and approval prior to the use of any newly constructed or installed playground equipment subject to these requirements; setting a specific time frame for compliance; and designing a system for playground owners to annually report the condition of their facilities and affirm compliance. The Board will carefully consider all comments received as a result of these proposed regulations.

9. FEDERAL STANDARDS:

The proposed amendments do not conflict with any federal standards. The CPSC guidelines are based on ASTM standards. The CPSC is an independent federal regulatory agency charged with addressing unreasonable risks of death and injury associated with over 15,000 types of consumer products. One way that the CPSC staff does this is to work with industry and other interested parties to develop voluntary product safety standards. The ASTM is the largest voluntary standards development organization in the world. The CPSC has adopted the ASTM standards for playgrounds in its promulgation of the CPSC Handbook.

10. COMPLIANCE SCHEDULE:

The provisions of the General Business Law are effective July 1, 2007. This proposal is required by the General Business Law and does not impose additional requirements on regulated parties. Therefore, no compliance schedule is feasible and the proposed amendments will become effective upon the adoption and publication in the State Register.

¹ www.emsc.nysed.gov/facplan/articles/C04_playground_installations_referen.html

² http://www.playgroundsafety.org/research/index.htm

³ http://www.nsc.org/library/facts/plgrdgen.htm

⁴ http://www.nypirg.org/Consumer/playground06/

1. EFFECT OF RULE:

The proposed regulations will require local governments to comply with GBL § 399-dd. The regulations will have an effect on small businesses which are defined as employing 100 or less individuals (SAPA § 102(8)), that install or construct playground equipment in an area set aside for play of six or more children which is not intended for use as an athletic playing field or athletic court, or that installs or constructs any play equipment, surfacing, fencing, signs, internal pathways, internal land form, vegetation and related structures.

2. COMPLIANCE REQUIREMENTS:

Section 399-dd of the General Business Law, requires The Board, in consultation with the Office of Parks, Recreation and Historic Preservation, to promulgate rules that will ensure playgrounds and playground equipment will substantially comply with guidelines published in the U.S. Consumer Product Safety Commission Handbook for Public Playground Safety (CPSC Handbook) thereby decreasing the number of serious injuries and deaths related to unsafe playground conditions. Compliance with the proposed rule by small businesses and local governments that own playgrounds is required.

3. PROFESSIONAL SERVICES:

The Board believes that affected small businesses may choose to retain professional architects, engineers, general contractors or professional installers to help them comply with the CPSC Handbook guidelines. In the event of alleged non-compliance with the proposed regulations, small businesses or local governments may incur legal expenses in connection with investigation and enforcement actions.

4. COMPLIANCE COSTS:

These rules may impose costs on small businesses and local governments that install or construct new playground equipment or replace major types of playground equipment on an existing playground. The amount of costs will depend upon a variety of factors including, the degree of disrepair of the playground equipment; the size and type of the project; the number of playgrounds being repaired or installed; and equipment specific to a particular playground. Therefore, The Board is unable to provide a projected cost. The cost of non-compliance would be a fine of up to One Thousand and 00/100 ($1,000.00) Dollars for each violation and not to exceed a penalty of Ten Thousand and 00/100 ($10,000.00) Dollars if the violation is knowing and willful.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

With the exception of potential costs for small businesses and local governments, The Board has not identified any economic or technological barriers to compliance with provisions of this proposal.

6. MINIMIZING ADVERSE IMPACT:

The adverse impact has been minimized in the proposed rule by incorporating by reference a national standard that is familiar to many small businesses, schools and local governments. Compliance with federal guidelines that are nationally recognized, allows for continuity and one designated resource to which business and local governments can refer. Recognizing that the replacement of playground equipment or change in design by a date certain would be cost prohibitive to small businesses and local governments the legislation and this proposal require only new playgrounds, or new installation, construction or replacement of existing playground equipment to conform to the guidelines published in the CPSC Handbook. This approach would sensibly transition all of New York State's playgrounds to equipment that meets the latest and nationally recognized safety standards.

The Board also outreached to the Association of Towns, New York State Conference of Mayors and the New York State Association of Counties with respect to this proposal. The Conference of Mayors confirmed that most of the playgrounds under their jurisdiction were currently in compliance with the CPSC Handbook for insurance purposes. The Association of Towns and the New York State Association of Counties offered no comment on the proposed rule.

Additionally, flexibility is provided for in the enabling legislation and this proposal by exempting play areas located on one, two or three-family residential property and athletic fields and courts, some of which may be owned by small businesses or local governments.

7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:

The Association of Towns, New York State Conference of Mayors and the New York State Association of Counties were all consulted with respect to this proposal. The Conference of Mayors confirmed that most of the playgrounds under their jurisdiction were currently in compliance with the CPSC Handbook for insurance purposes. The Association of Towns and the New York State Association of Counties offered no comment on compliance costs.

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

Regulated businesses covered by the proposed regulations do business in every county in the State, including rural areas as defined in Section 102(10) of the State Administrative Procedure Act.

2. REPORTING, RECORDKEEPING OR OTHER COMPLIANCE REQUIREMENTS:

The proposed regulations impose no new reporting requirements or record keeping compliance. General Business Law Section 399-dd requires compliance with the CPSC Handbook regarding the construction of new playground equipment or the replacement of major types of playground equipment on an existing playgrounds in rural areas of the state.

3. COSTS:

(a) Costs to State Government in Rural Areas: The Board will develop and distribute informational material to aid with education and compliance with these new rules. This information will also be available on The Board's website. This cost to The Board is estimated at approximately five thousand ($5,000) dollars. However, the cost of the development and distribution of this material is outweighed by the benefit of supporting compliance. In the event of alleged non-compliance, the New York State Office of the Attorney General may incur costs related to investigation and enforcement. The CPB outreached to the New York State Office of Parks and Recreation and Historic Preservation, the Department of Environmental conservation and the Office of Children and Family Services to determine cost impact and have received no response.

(b) Costs to private regulated parties in Rural Areas: These rules may impose costs on businesses that install or construct new playground equipment or replace major types of playground equipment on an existing playground in rural areas. However, because costs incurred will vary depending upon plans related to specific construction, modification of individual playgrounds and other factors, The Board is unable to provide projected costs. The Board will carefully consider all oral and written comments received as a result of these proposed regulations.

(c) Costs to Local Governments in Rural Areas: These rules may impose costs on local governments that install or construct new playground equipment or replace major types of playground equipment on an existing playground in rural areas of the state. Costs to local government entities in rural areas are dependent upon the specific plan related to construction or modification of particular playgrounds. Therefore, the Board has no methodology upon which to base projected costs. The Board will carefully consider all oral and written comments received as a result of these proposed regulations.

4. MINIMIZING ADVERSE IMPACT:

Recognizing that the replacement of playground equipment or change in design by a date certain would be cost prohibitive to entities in rural areas, the legislation and this proposal require only new playgrounds, or new installation, construction or replacement of existing playground equipment to conform to guidelines published in the U.S. Consumer Product Safety Commission's Handbook for Public Playground Safety. This approach would sensibly transition all of New York State's playgrounds in rural areas to equipment that meets the latest and nationally recognized safety standards.

5. RURAL AREA PARTICIPATION:

The Board will develop and distribute informational material to aid with education and compliance with these new rules. This information will also be available on The Board's website. The Board will carefully consider any comments filed in response to this notice, and make changes to the extent necessary to reflect any impacts on rural areas.

The proposed regulations should not have a substantial adverse impact defined as a decrease of 100 jobs (SAPA § 201-a (6)(c)). The Board estimates that as businesses and local governments go forward with new and improved playground construction they should be able to comply with the proposed rules at a minimal increase in cost. As it is evident from the nature of these amendments that they would not have an adverse impact on the number of jobs and employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required.