[Federal Register Volume 69, Number 227 (Friday, November 26, 2004)]
[Proposed Rules]
[Pages 69246-69250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26093]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 37

[Docket No. OST-2004-19700]
RIN 2105-AB87


Nondiscrimination on the Basis of Disability: Passenger Vessels

AGENCY: Office of the Secretary of Transportation (OST), DOT.

[[Page 69247]]


ACTION: Advance Notice of Proposed Rulemaking (ANPRM).

-----------------------------------------------------------------------

SUMMARY: The Department of Transportation is seeking comments on a 
number of issues concerning the accessibility of passenger vessels to 
individuals with disabilities. The Department is considering proposing 
rules on this subject under the Americans with Disabilities Act. This 
action is related to the issuance of a notice of availability and ANPRM 
being issued by the Access Board concerning accessibility guidelines 
for passenger vessels.

DATES: Comments must be received on or before March 28, 2005. Late-
filed comments will be considered to the extent practicable.

ADDRESSES: Comments on this advance notice of proposed rulemaking 
should be filed with: the Docket Management System, U.S. Department of 
Transportation. Room PL-401, 400 Seventh Street, SW., Washington, DC 
20590-0001. Please identify the docket number OST-2004-19700 at the 
beginning of your comments. You may also submit comments through the 
internet to http://dms.dot.gov. You may review the public docket 
containing comments to these proposed regulations in person in the 
Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays. The Dockets Office is on the plaza level of the 
NASSIF Building at the Department of Transportation at the above 
address. Also, you may review comments to the docket on the Internet at 
http://dms.dot.gov. Search by using the last set of digits in the 
docket number (omitting the ``OST-2004'').

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant 
General Counsel for Regulation and Enforcement, Department of 
Transportation, 400 7th St., SW., Room 10424, Washington, DC 20590-
0001. Telephone (202) 366-9310 (voice); (202) 755-7687 (TDD). E-mail 
[email protected]

SUPPLEMENTARY INFORMATION:

Background

    The Department of Transportation has long recognized that passenger 
vessels and the services they provide are a form of transportation that 
must be accessible to persons with disabilities if the purpose of the 
Americans with Disabilities Act (ADA) is to be fulfilled. In the notice 
of proposed rulemaking (NPRM) for the Department's initial ADA rule in 
1991, the Department noted that vessels were subject to the ADA but 
said that it would not proceed to rulemaking at that time because it 
lacked sufficient information (56 FR 13866-87; April 4, 1991). The 
Department understood that the marine industry's unique missions and 
operating environment made implementing ADA nondiscrimination 
requirements particularly challenging. The Department confirmed this 
position in its final rule, noting that it would work with the Access 
Board and Department of Justice (DOJ) toward future rulemaking (56 FR 
45599-45600; September 6, 1991).
    In this preamble discussion, the Department also stated its view 
that the ADA applies to private and public passenger vessels, including 
ferries, excursion and sightseeing vessels, floating restaurants, 
cruise ships, and others. With respect to cruise ships, which the 
Department viewed as both a type of ``specified public transportation'' 
and a place of public accommodation, the Department stated its position 
that the ADA applies to foreign-flag cruise ships that call at U.S. 
ports (id.). Privately-operated vessels would be covered under Title 
III of the ADA, while publicly-operated vessels would be subject to 
Title II. Publicly-operated vessels that receive Federal financial 
assistance (e.g., public ferry systems that receive funds from the 
Federal Transit Administration) would also be subject to section 504 of 
the Rehabilitation Act of 1973.
    In the intervening years, the Department and the Access Board have 
worked to lay a foundation for rulemaking. In 1995-96, the Department, 
working through the Volpe National Transportation Systems Center (Volpe 
Center), conducted a preliminary regulatory assessment and provided a 
report assessing the feasibility of implementing the ADA in the 
passenger vessel industry. This study resulted in an assessment of 
technical feasibility and a set of cost data based on assumed access 
solutions. The Department has posted a copy of this study in the docket 
for this ANPRM. The Department realizes that this data is now several 
years old, and the Department and the Access Board are planning a new 
regulatory assessment. However, the Volpe Center study is the only 
existing study regarding the costs of vessel accessibility, and we 
believe that it may be useful to interested persons as they work on 
formulating comments on the ANPRM.
    The Access Board, after an extensive period of study and public 
consultation, developed draft accessibility guidelines for large 
passenger vessels (i.e., those with a capacity of more than 150 
passengers or more than 49 overnight passengers) and has just issued a 
Notice of Availability concerning this draft. The Access Board also 
issued an ANPRM regarding the accessibility of smaller passenger 
vessels. They can be found elsewhere in this issue of the Federal 
Register.
    We should say a word about the relationship between the Access 
Board and DOT rulemakings. Under the Americans with Disabilities Act, 
the Access Board adopts, through a rulemaking process, guidelines for 
the accessibility of facilities and vehicles. The Department of 
Transportation and the Department of Justice must then adopt, in their 
regulations, minimum standards that are consistent with the Access 
Board's guidelines. For example, the Access Board has adopted the 
Americans with Disabilities Act Accessibility Guidelines (ADAAGs), 
codified at 36 CFR Part 1191. In turn, the Department of Transportation 
adopted these guidelines in its ADA regulations, as Appendix A to 49 
CFR Part 37, the Department's ADA rules. The Department's rules require 
accessibility in certain situations; the Access Board guidelines that 
the Department has adopted define accessibility in considerable detail.
    With respect to passenger vessels, the draft Access Board 
guidelines will lead, after the conclusion of the Access Board's 
rulemaking process, to final guidelines for accessible passenger 
vessels. The Department's ANPRM will lead, following the conclusion of 
the Department's rulemaking process, to a regulation requiring 
nondiscrimination and accessibility in passenger vessel service. The 
Department's final rule will adopt minimum standards consistent with 
the final Access Board passenger vessel guidelines. Because the two 
agencies' rulemakings are so closely intertwined, and because they must 
result in regulations that are consistent with one another, the two 
agencies intend to work together closely together throughout this 
project.
    The Department will also coordinate its proposed regulation with 
the Department of Justice (DOJ), which has responsibility for enforcing 
the Department of Transportation's ADA rules with respect to private 
entities (and most passenger vessel operators potentially covered by 
the Department of Transportation's rules are likely to be private 
entities). We will also coordinate closely with the Coast Guard, which 
is now part of the Department of Homeland Security. The Coast Guard has 
extensive expertise in passenger vessel matters that will be invaluable 
in this rulemaking, and the Department must also ensure that its rules 
are

[[Page 69248]]

compatible with Coast Guard safety rules for vessels.

Areas for Comment

    In this ANPRM, DOT is interested in gathering up-to-date 
information on how it could best implement regulations ensuring that 
passenger vessels are accessible as required by the ADA. We would 
appreciate additional information on the following subjects to help us 
frame our forthcoming NPRM. Please note that there are important 
differences between large and small vessels and that, in some cases, it 
may be appropriate to respond to questions and requests for comment 
differently depending on the size of the vessel.

1. Vessel Sizes

    As noted above, the Access Board materials distinguish between 
large and small vessels on the basis of passenger capacity. However, 
there are other ways in which this distinction might be made. For 
example, there could be a vessel size distinction based on applicable 
U.S. Coast Guard regulations (large vessels are subject to 46 CFR 
subchapters H or K and small vessels are subject to 46 CFR subchapter C 
or T). DOT invites comment on this and other potential approaches, and 
the basis for such approaches, to identify and categorize vessels 
subject to the regulations. These may include vessel length, 
displacement or other pertinent vessel design and operation 
characteristics. See V201.1 Scope.

2. Access Board Draft Guidelines

    DOT plans to incorporate the Access Board's guidelines into a 
future rulemaking, and the Department will carefully review comments to 
the Access Board docket, so it is not necessary for commenters to send 
comments specifically referencing the Access Board draft to DOT as 
well. DOT also requests ideas for other means of achieving 
accessibility and any information that may be available to update the 
costs of industry implementation.
    DOT also requests comments on the general applicability of the 
Access Board's guidelines. What should be considered a new vessel, 
triggering the requirement that the vessel be built to fully comply 
with the Access Board's guidelines? What date, design or construction 
should be used for determining the vessel's status with respect to new 
or old vessel? What lead time is necessary to ensure that new vessels 
are designed with the Access Board's guidelines in mind?
    The DOT believes that access onboard passenger vessels involves 
issues similar to those in other modes but that this mode also has 
unique issues due to the fact that vessels operate in a dynamic, 
waterborne environment. For example, accessibility in other modes does 
not need to contend with transitions from dock or gangway to vessel, 
transitions between decks, or the variable motion of passenger vessels. 
Many of these issues are likely to become increasingly difficult with 
smaller vessels. Moreover, the unique environment in which passenger 
vessels operate imposes several constraints on access solutions. For 
example, the safety of crew and passengers depends upon a stable and 
watertight platform and a structure capable of responding to dynamic 
loads and sustaining damage from collisions and groundings. Perhaps the 
classic example is that of coamings in doorways that increase the 
watertight integrity of vessels but present barriers to wheelchair 
users.
    Coast Guard safety regulations affect all aspects of vessel 
construction and operation. Consequently, both the Access Board and DOT 
regulations must be consistent with Coast Guard requirements. The 
Department seeks comment on the interaction of the draft Access Board 
provisions and existing Coast Guard rules with future DOT ADA rules.

3. Barrier Removal and Program Accessibility

    Typically in ADA regulations, physical accessibility standards 
apply only to new facilities or vehicles or to alterations to those 
vehicles and facilities. Title III entities must make readily 
achievable changes to existing facilities to accommodate persons with 
disabilities, and Title II entities must ensure program accessibility 
by making modifications to existing facilities that are not unduly 
burdensome. DOT and DOJ rules in the context of other transportation 
modes make use of these concepts. Should these concepts apply unaltered 
to passenger vessels? Does the fact that passenger vessels may remain 
in service longer than many other types of facilities and vehicles 
suggest that a greater degree of retrofitting may be appropriate for 
vessels?

4. Shore to Vessel Transition

    Getting on and off vessels can be difficult for passengers with 
disabilities, particularly those with mobility impairments, and 
challenging for vessel and dock/gangway operators. There must be a 
means by which a person with a disability can embark and disembark a 
vessel at all ports of call. Ramp slopes can vary with tidal 
fluctuations, and space constraints in some dock or gangway areas may 
make accessible loading difficult.
    One of the most important questions with respect to boarding 
concerns the allocation of responsibility between vessel operators and 
operators of docks, terminals, and other shore-based facilities. Some 
vessels may be based exclusively at one facility, which they own. Other 
vessels may call at a variety of ports, none of which they own. Vessels 
and shore based facilities can be privately or publicly owned, and thus 
subject to Title III or Title II of the ADA. The Department seeks 
comment on how accessibility responsibilities should be allocated, and 
on whether there should be the same or different requirements for 
public or private entities.
    In this regard, we call to commenters' attention to at least 
somewhat analogous situation in the air travel industry. Under the 
Department's Air Carrier Access Act regulations (ACAA; 14 CFR 
Sec. Sec.  382.40 and 382.40a) and section 504 rules (49 CFR Sec. Sec.  
27.70 and 27.71), airlines and airports have joint responsibility for 
providing boarding lifts for situations in which aircraft load from the 
tarmac rather than via level-entry loading bridges. The Department 
seeks comment on whether this concept can be adapted to at least some 
situations concerning boarding of passenger vessels. Also, see the 
Access Board's Large Passenger Vessels--Notice of Availability Summary 
Material at V208, which includes a requirement for a boarding system on 
the vessel and a similar requirement on the landside.
    As noted above, boarding issues can become more difficult as 
vessels become smaller. Particularly for smaller passenger vessels, 
should vessel operators have greater discretion to use crew assistance 
as a means of access? What other special provisions, if any, should 
there be for smaller vessels, and in what size categories should they 
apply?
    Is it feasible for vessels making multiple ports of call to provide 
a gangway that will allow people with disabilities to embark and 
disembark at each port of call? Do shore facilities need to standardize 
their facilities to ensure that a vessel's gangway will provide 
sufficient access? What additional barriers do smaller vessels face in 
providing accessible boarding at all ports of call?
    In addition, the Department recognizes its lack of authority to 
regulate shore based facilities in foreign ports of call. However, many 
passenger vessels owned or operated in the United States make foreign 
ports of call. Is it feasible to require that these vessels provide an 
accessible means of

[[Page 69249]]

embarking and disembarking passengers with disabilities at all foreign 
ports of call despite the allocation of responsibility for providing 
such services in the U.S.? What additional considerations should be 
made in addressing foreign ports of call?

5. Accessible Paths

    On vehicle ferries, passengers with disabilities may need access 
from their vehicles to an elevator to reach a passenger deck and the 
related amenities. How can access to the elevator be accomplished? Does 
it require a separate lane to allow the car of a passenger with a 
disability to be placed in position as necessary to ensure elevator 
access? Does it require a passenger with a disability to arrive earlier 
than other passengers to ensure that the space is reserved? The Access 
Board has considered some of these issues in its draft guidelines (see 
V201.4; V404.2.9; V404.2.5; V403.5; V404.2.3; V206.2.1; V206.2.2) as 
well as in its summary (V208) and we refer readers to that material for 
more detailed information.

6. Access to On-Board Facilities

    The features of many passenger vessels--especially larger ones--are 
similar to those of land-based facilities. There are restaurants, snack 
bars, bathrooms, retail stores, entertainment venues, recreational 
facilities, places of public assembly, hotel-like rooms etc. Like 
places of public accommodation elsewhere, these facilities need to be 
accessible. Are there reasons to treat accessibility requirements for 
on-board amenities any differently on vessels than elsewhere? In 
particular, how can accessibility be accomplished on smaller vessels on 
which space is a premium? We would refer the reader to V201.4 of the 
Draft Access Board guidelines for more detailed information on these 
issues.
A. Securement
    Although the Access Board's guidelines would not require deck 
fittings on larger vessels and would require only some securement on 
smaller vessels, (see Option 2 in the Access Board's ANPRM), DOT 
requests comments on several general issues related to securing 
wheelchairs in a moving environment. Is it necessary to provide deck 
fittings to secure wheelchairs? Will such fittings be necessary in 
passenger rooms, dining areas, and other common areas? If so, will they 
be necessary whenever the person in a wheelchair stops? How should the 
deck fitting locations be determined? How will a person in a wheelchair 
secure the wheelchair to the deck or will this require crew assistance? 
If crew assistance will be necessary, how will a passenger summon such 
assistance?
B. Accessible Cabins
    Can cabins for passengers with wheelchairs be made available in all 
classes of service? What modifications must be made to passenger 
cabins? How many accessible cabins should there be on vessels of 
various size that have overnight accommodations? Generally, the 
Department believes it would be reasonable to follow the lead of the 
Department of Justice concerning requirements for accessible lodging 
and its availability and pricing to people with disabilities. We seek 
comment on whether the Department of Justice's approach is appropriate 
in the context of passenger vessels and whether, if at all, it should 
be modified. We refer the reader to V224.2 and V224.5 of the draft 
Access Board guidelines for more detailed information on these matters.
C. Vision and Hearing Impairments
    What accommodations should be made for passengers with vision and 
hearing impairments to ensure that they are alerted to emergencies, 
informed of passenger announcements and events, and capable of enjoying 
passenger entertainment and functions? Could passengers with hearing 
impairments be issued a paging device for their stay on board to alert 
them to emergencies and inform them of passenger announcements? What 
type of accommodation should be provided to ensure that passengers with 
hearing impairments can enjoy passenger entertainment? What 
accommodations are necessary for ports of call, including cruise ship 
arranged tours or activities? What other accommodations are appropriate 
(e.g., relay or interpretive services, methods of communicating public 
announcements)?

7. Service Policies

    Not only physical accommodations but vessel operator policies may 
create barriers to persons with disabilities. If vessel operators 
impose restrictions on the use of vessels by passengers with 
disabilities, then the passengers' ability to have nondiscriminatory 
access is impaired. The Department's Air Carrier Access Act regulations 
have a variety of requirements to ensure that air carrier policies do 
not discriminate on the basis of disability. For example, the rules 
prohibit denials of service (except where a direct threat is shown), 
requirements for attendants (except if the passenger is unable to 
assist in his or her own evacuation), limits on the number of 
passengers, and extra charges for accommodations. The rules also 
require such things as on-board stowage for mobility aids, assistance 
with carry-on luggage and transfers among gates, boarding assistance, 
and seating accommodations for passengers with disabilities. The 
Department seeks comment on whether similar provisions should apply to 
passenger vessels and the extent, if any, to which they should be 
modified, especially in the case of smaller vessels.
    Should DOT rules prohibit limits on the size or number of mobility 
aids a passenger may bring on board, including power wheelchairs or 
scooters permitted on board? Is it possible to charge batteries for 
power wheelchairs or scooters while on board? Under what circumstances, 
if any, should a vessel operator be permitted to require an attendant?
    The Department uses the concept of ``direct threat'' as a standard 
for evaluating claims that safety-based restrictions on the activities 
of persons with disabilities should be permitted. The Department seeks 
comment on whether there is any direct threat-based rationale for any 
restrictions on passengers with disabilities in the vessel context.
    DOT has recently provided detailed policy guidance concerning 
service animals in air transportation, which can be found at 68 FR 
24874 (2003) and at http://airconsumer.ost.dot.gov/rules/20030509.pdf. 
DOT requests comments on what changes, if any, need to be made in this 
guidance to make it applicable to passenger vessels. What 
accommodations are necessary on board passenger vessels for service 
animal relief?

8. Foreign-Flag Vessels

    Cruise ships clearly fall into the categories of public 
transportation and public accommodation and, thus, are subject to the 
requirements of the ADA. It is the position of the United States that 
the ADA applies to foreign-flag vessels operating within the internal 
waters of the United States. In its 1991 final rule, the Department 
announced that it had jurisdiction over foreign-flag vessels that call 
at U.S. ports, consistent with any applicable treaty obligations. The 
Department of Justice has taken the same position in its title III 
regulation and technical assistance materials, and has successfully 
articulated this position in numerous amicus briefs at the district and 
appellate court levels. See, e.g., Stevens v. Premier Cruise Lines, 215 
F.3d 1237 (11th Cir. 2000). In a recent decision, Spector v. Norwegian

[[Page 69250]]

Cruise Line, 356 F.3d 641 (5th Cir. 2004), petition for cert. filed, 72 
U.S.L.W. 3644 (U.S. April 1, 2004) (No. 03-1388), the Fifth Circuit 
reached the opposite conclusion. The Supreme Court has agreed to 
consider the case in its 2004-2005 term. Meanwhile, the United States 
continues to believe that its position is correct as a matter of law. 
Consistent with the government's position on this issue, the Department 
intends to draft its proposed regulation to apply the ADA to foreign-
flag vessels operating within the internal waters of the United States.

9. Economic Considerations

    The Volpe Center study mentioned above determined the costs of 
implementation, including capital and operating expenses and revenue 
impacts, based on an assumed set of regulations and solutions.
    After determining the costs associated with the assumed set of 
regulations and solutions, Volpe Center determined the unit costs which 
reflect the increased cost of providing access relative to current 
practice. Volpe Center further determined the affected vessel 
population, including the numbers of new construction vessels, vessels 
requiring alteration and vessels expected to be decommissioned prior to 
being retrofit and calculated the industry implementation costs based 
upon analysis of fleet growth and replacement rates of 25 to 40 years. 
This cost analysis suggested that the total fleet cost, including new 
construction and alterations spread over 20 years and operating costs 
and lost revenue for 25 to 40 years depending on the class of vessel, 
would be $888.9 million in 1996 dollars.
    After determining the costs associated with the assumed set of 
regulations and solutions, Volpe Center also determined the unit costs 
which reflect the increased cost of providing access to shore 
facilities relative to current practice. Volpe Center based the 
industry implementation upon an assumed replacement/upgrade of existing 
dock and pier population within 40 years. Volpe Center projected that 
the industry implementation for shore facilities would be between $79.5 
million and $263.8 million in 1996 dollars.
    The Department seeks information and comment on the potential costs 
of vessel accessibility requirements, including smaller vessels. To 
assist commenters, we have placed a copy of the Volpe study in the 
docket, where interested persons can review it on line or download it. 
The Department also seeks comment on the potential benefits of 
accessibility requirements. Often, people assume that the benefits of 
civil rights regulations are limited to nonquantifiable benefits to 
members of a protected class. However, it is possible that there can be 
some level of economic benefits to transportation providers as well, as 
the result of increased business from passengers who would otherwise be 
deterred or prevented from traveling.
    In addition, the Department recognizes that the Volpe study is ten 
years old and, therefore, the Department and the Access Board will be 
conducting a new regulatory assessment. The Access Board has included a 
Draft Plan for Regulatory Assessment in its Large Passenger Vessels--
Notice of Availability. While the Department encourages comments on the 
Access Board's Draft Plan, it is not necessary for commenters to send 
comments to the Department because the Department will carefully review 
comments to the Access Board docket.

Regulatory Analyses and Notices

    This ANPRM is a significant rule under Executive order 12886, 
because it affects a wide variety of vessel operators and passengers 
and because passenger vessel accessibility requirements could impose 
considerable costs. The ANPRM has been reviewed by the Office of 
Management and Budget (OMB). The Department and the Access Board intend 
to work together on a regulatory assessment of accessibility 
requirements for passenger vessels in connection with the next stage of 
their rulemakings. The assessment would examine the costs and benefits 
of provisions the agencies propose in forthcoming NPRMs.
    Depending on the scope and provisions of an NPRM that may follow 
this ANPRM, this rulemaking could have a significant economic impact on 
a substantial number of small entities, since many vessel operators are 
small entities. At the time of the NPRM, the Department will determine 
whether it is necessary to conduct a Regulatory Flexibility Analysis. 
This ANPRM does not include information collection requirements. The 
Department does not anticipate effects on state and local governments 
sufficient to invoke requirements under the Federalism Executive Order. 
Because it is based on civil rights statutes, this rule is not subject 
to the Unfunded Mandates Act.
    The Department seeks comment on any issues related to the 
application of these or other cross-cutting regulatory process 
requirements to rulemaking on passenger vessel accessibility.

    Issued this 16th Day of November 2004, at Washington, DC.
Norman Y. Mineta,
Secretary of Transportation.
[FR Doc. 04-26093 Filed 11-24-04; 8:45 am]
BILLING CODE 4910-62-P