Proposed NMMA Position Overnight Position by MikeJenny


Proposed NMMA Position Overnight Position

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									                                                                                                                        January 24, 2005

                    Proposed Americans with Disabilities Act Vessel Standards
                                    Industry Input Needed
The Architectural and Transportation Barriers Compliance Board (Access Board) is developing Passenger Vessel
Accessibility Guidelines (PVAG) to establish the standards for vessels under Title III of the Americans with
Disabilities Act (ADA).1 The Department of Transportation will adopt these guidelines as its minimum standards in
regulations requiring nondiscrimination and accessibility in passenger vessel service. These proposed standards would
apply to all kinds of passenger vessels including charter boats and potentially boat rentals or bareboat charters. NMMA
is very concerned about how these standards will impact our members, especially those whose boats are rented or used
for charter. NMMA is seeking information from its members so it can be a strong advocate for the industry on these
new requirements.

The guidelines are being developed in three tracks:
    I.       “Large Vessel” Guidelines – These extensive guidelines released by the Access Board for comment would
             apply to vessels that carry more than 150 passengers or more than 49 overnight passengers;
    II.      “Small Vessel” Guidelines - The Access Board is requesting information on how best to develop small
             vessel guidelines. These would apply to vessels that carry 150 or fewer passengers or 49 or fewer overnight
    III.     Potential Costs and Implementation Problems - Most importantly, the Department of Transportation is
             seeking up to date information on the potential costs and how to best implement vessel accessibility
             regulations for both large and small vessels.

Proposed NMMA Position:
NMMA would like member input on its draft position and the following arguments:

    1.       The Access Board is basing the small vessel guidelines on the U.S. Coast Guard regulations for uninspected
             and small passenger vessels. These regulations only apply to passengers for hire. Therefore, the Access
             Board and DOT guidelines should clearly limit these provisions to those that carry passengers for hire.
    2.       Bareboat charters or boat rental situations should be completely excluded from these guidelines. Just as
             every car or recreational vehicle that can be rented by an individual for their private use is not required to be
             ADA compliant, so should vessels. Such language excluding these situations from the guidelines and DOT
             rules would provide necessary clarity and certainty to a large number of small businesses.

 The Access Board is responsible for developing accessibility guidelines under the Americans with Disabilities Act of 1990 (42 U.S.C. 12101
et seq.) to ensure that facilities and vehicles covered by the law are readily accessible to and usable by individuals with disabilities.

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   3.      The Access Board and DOT should adopt different guidelines based on the number of passengers that a
           vessel is allowed by the U.S. Coast Guard to carry. Vessel length, although an important consideration, can
           be an unreliable indicator of the ability to make modifications. There is a significant difference in design
           from a water taxi to a yacht, which is one of the reasons why the U.S. Coast Guard regulates recreational
           boats differently than commercial passenger vessels. Thus, similar length vessels may have radically
           different hull and deck arrangements and room for modification.
   4.      Vessels allowed to carry 12 passengers or less should be excluded entirely from these guidelines and rules.
           This follows current USCG regulatory breakdowns and still will be less than the 16-passenger exclusion
           afforded to vehicles under a demand responsive system in the ADA. 42 U.S.C. § 12182(b)(C)(ii).
   5.      NMMA encourages the Access Board and DOT to work closely with the U.S. Coast Guard to determine
           what safety-related changes are necessary to adapt to the carriage of disabled persons. For example, the
           USGC should consider whether the number of passengers should be reduced when a heavy motorized wheel
           chair accompanies a passenger on a smaller vessel. This is particularly important in light of the recent
           National Transportation Safety Board safety recommendation (M-04-04) to the U.S. Coast Guard to revise
           its guidance for determining the maximum occupant capacity of small passenger pontoon vessels to reflect
           new weight data and to restrict overweighting. Additional educational requirements may also be prudent for
           captain licensing. These recommendations must be available prior to the completion of any economic
           analysis as these necessary changes could have a significant impact on operator cost.
   6.      Recreational vessels should receive special consideration by the Access Board. NMMA members produce
           vessels for recreational use only. Importantly, these vessels are built to different U.S. Coast Guard
           standards than a commercial passenger vessel. However, it is possible for a small charter vessel operator to
           purchase a recreational vessel and convert it to limited “6-pack” charter service. Since these vessels are
           produced for the recreational market, these converted vessels should at a minimum be considered “existing”
           rather than “new” vessels under the ADA rules. As discussed above, vessels allowed to carry 12 passengers
           or less, such as these 6-pack converted vessels, should be entirely excluded from these guidelines and rules.
   7.      The Access Board is considering general performance requirements and requiring small vessels to comply
           with the large vessel guidelines “except where it is not operationally or structurally feasible.” Such vague
           standards would require manufacturers or operators to justify and potentially test every design for ADA
           compatibility. Such testing would be costly and still leave operators subject to liability. NMMA does not
           support this approach.

What Information is NMMA Seeking?
NMMA needs your help in developing its arguments. If your boats end up being used as charter fishing or cruise boats
or are rented, NMMA needs to hear from you! Please let NMMA know the following information:
       How are your boats sold into the charter market – directly, through dealers, etc.?
       How much of a market does this represent for you?
       Do you or your dealers rent boats to the public?
       How feasible are the various proposed guidelines for your boats?
       What are the costs to the manufacturer of complying with the proposed guidelines?
       What is the feasibility and cost of a buyer retrofitting your vessels to comply with these proposed guidelines?
       What do you think about the proposed NMMA position?
       Do you have any other thoughts or observations about the proposals?
       Are you a small business (i.e. less than 500 employees)?

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More about these proposals:
I. Access Board Large Vessel Guidelines

The Access Board has developed draft guidelines for accessibility to and in large passenger vessels and is seeking
public comment prior to issuing a proposed rulemaking.2 The large vessel guidelines are 105 pages long and were
developed after a public consultation process. These guidelines will apply to vessels with a capacity for more than 150
passengers or more than 49 overnight passengers.

Although these guidelines are written for much larger vessels than NMMA members build, it is important that members
review them because they will serve as the starting point for the small vessel guidelines in the early stages of
development (see discussion below). The large vessel guidelines apply to the passenger areas of vessels and include
many features such as accessible routes, entry decks, boarding systems, toilet and bathing facilities, telephones,
assistive listening systems, passenger guest rooms, deck surfaces, protrusions, and level changes.

II. Access Board Small Vessel Guidelines

The Access Board has issued an “advance notice of proposed rulemaking” for new small vessel guidelines.3 This
notice means that the agency is seeking guidance on how best to draft their proposed rules. According to the Access
Board, these rules will apply to:
     “designated public transportation” (e.g, a ferry operated by a state or local government);
     “specified public transportation” (e.g., a charter service, cruise ship or excursion boats);
     vehicles operated by private entities not primarily engaged in the business of transporting people but who
        operate a demand, responsive or fixed route (e.g, a hotel shuttle boat); and
     a place of “public accommodation operated by private entities” (e.g., cruise ships, dinner boats, gaming
        boats, and sightseeing vessels).

     The Access Board is seeking comment on four options for regulating small vessels. In particular, the Board is
     interested in any data on costs and benefits of the options, recommendations on other ways to address accessibility,
     and the feasibility of each option.
       Option 1- requires small vessels to comply with the same requirements as larger vessels “except where it is
        not operationally or structurally feasible.” The Board is seeking comments on which provisions in the large
        vessel guidelines would be infeasible for small vessels.
       Option 2 – requires small vessels to comply with Chapter 12 of the Passenger Vessel Access Advisory
        Committee (PVAAC) December 2000 report.4 This chapter applied to new passengers vessels subject to U.S.
        Coast Guard Subchapter C (uninspected vessels) or T (small passenger vessels) regulation. These
        recommendations are quite detailed and are different for small sailing and small power vessels. For example,
        the recommendations include such items as a minimum entry point to the vessel of at least 32 inches, accessible
        routes in certain situations, and clear deck spaces. Specific regulations for accessible toilets would apply only
        to vessels 65 feet or more and if the toilet is on a deck with a “program area.” Those boats that do not meet the
        cut off would have to comply with the requirements for large vessels.
       Option 3 – requires manufacturers to meet general performance requirements when designing, constructing
        or altering smaller vessels. These would list objectives rather than detailed design requirements (such as

  69 Fed. Reg. 69,244 (Nov. 26, 2004).
  69 Fed. Reg. 69,245 (Nov. 26, 2004).
  The PVAAC included representatives from disabled groups, cruise lines, the Passenger Vessel Association, the Society of Naval Architects
and Marine Engineers but did not from the charger or recreational boating industry.

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       ensuring that passengers with disabilities are able to get on and off the vessel, enter and maneuver in toilet
       facilities, etc.).
      Option 4 – asks at what passenger count or vessel size to apply the large vessel guidelines to smaller
       vessels. Specifically, the Board is seeking comment to determine when applying the large vessel guidelines to
       the small vessels becomes infeasible.

III. Potential Costs and Implementation Problems -- Department of Transportation

The Department of Transportation (DOT) asked number of questions in their request for comments about the potential
costs and implementation problems associated with the Access Board guidelines. DOT is particularly interested in
learning about how small vessels differ from large vessels and therefore where the guidelines should differ as well.

1. Vessel Sizes
DOT wants to know how vessels should be distinguished - by passenger capacity or perhaps by U.S. Coast Guard
regulations (large vessels are subject to 46 C.F.R. subchapters H or K and small vessels are subject to 46 C.F.R.
subchapter C or T)? DOT is asking if there are other approaches to consider (i.e. length, displacement, etc.).

2. Access Board Draft Guidelines

DOT asks a number of questions regarding the large vessel guidelines. For example:
   If there are any other ideas for achieving accessibility or any new cost data available?
      What should be considered a new vessel and thus triggering the requirement that the vessel be built to fully
       comply with the guidelines? What date should be used for determining if a vessel is old or new and thus subject
       to differing guidelines? How long will it take for industry to begin to build new vessels that comply with the
      How do the guidelines interact with U.S. Coast Guard requirements?

3. Barrier Removal and Program Accessibility

Under ADA standards for other industries, Title III (private) regulated businesses must make readily achievable
changes to existing facilities to accommodate persons with disabilities and Title II (public) entities must ensure
program accessibility by making modifications to existing facilities that are not unduly burdensome. DOT asks if these
concepts should apply unaltered to passenger vessels. In particular, should a greater degree of retrofitting be
appropriate for vessels?

4. Shore to Vessel Transition

Since getting on and off of vessels can be difficult for passengers with disabilities and challenging for vessel and
dock/gangway operators, DOT seeks comment on how to allocate the responsibility between vessel owners and dock or
gangway operators. DOT asks if there should be different requirements for public or private entities. In addition, DOT
seeks specific comment on whether small vessel operators should have greater discretion to use crew assistance as a
means of access? What vessel size categories should different special provisions apply?

5. Access to On-Board Facilities

DOT asks how can accessibility to on-board facilities be accomplished on smaller vessels where space is at a premium?
For example:

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      Is it necessary to provide deck fittings to secure wheelchairs in passenger rooms, dining areas, and other
       common areas?
      Can cabins for passengers with wheelchairs be made available in all classes of service?
      What accommodations should be made for passengers with vision and hearing impairments to ensure they are
       alerted to emergencies, informed of passenger announcements and events, and capable of enjoying passenger
       entertainment and functions?
      Should DOT prohibit limits by vessel operators on the size or number of mobility aids a passenger may bring on
       board (i.e., powered wheelchairs or scooters)?
      When should a vessel operator be permitted to require an attendant?

   6. Economic Considerations

   DOT seeks information on the potential costs of the vessel accessibility requirements on small vessels. A copy of a
   previous economic study by the Volpe Center is included in the DOT docket for review.

Where do I get more information?
To view the notices, visit these links:
       Large Vessel Notice;
       Small Vessel Notice;
       Public Hearing Notice;
       DOT Request for Information.

Please contact Cindy Squires, NMMA’s Regulatory Counsel, at 202-737-9766 or with your
questions and detailed comments. Since comments are due to the Board and Department of Transportation by March
28, NMMA needs your input by February 28. NMMA expects another public hearing to be held and is seeking
NMMA members to testify. NMMA encourages members to testify and to provide written comments to NMMA as
well as to the DOT and the Access Board.

Most importantly, the Small Business Administration Office of the Advocacy has requested that NMMA members
provide them with copies of all comments. Contact Michael See at 202-619-0312 or with your

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