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###### Architectural and Transportation Barriers Compliance Board

          - 36 CFR Part 1195 
          - [Docket No. 2004-2] 
          - RIN 3014-AA11 

# AGENCY:

Architectural and Transportation Barriers Compliance Board. 

# ACTION:

Advance notice of proposed rulemaking; notice of hearing. 

# SUMMARY:

The Architectural and Transportation Barriers Compliance Board (Access Board) is considering the development of accessibility guidelines under the Americans with Disabilities Act of 1990 for newly constructed or altered passenger vessels which carry 150 or fewer passengers or 49 or fewer overnight passengers. This notice seeks comment on various issues related to the development of accessibility guidelines for these types of passenger vessels. 

# DATES:

Comments should be received by March 28, 2005. Comments received after this date will be considered to the extent practicable. The Access Board will hold a hearing on January 10, 2005, from 1:30 p.m. until 4:30 p.m. 

# ADDRESSES:

                            Comments should be sent to the Office of Technical and Information Services, Architectural and Transportation Barriers Compliance Board, 1331 F Street, NW., suite 1000, Washington, DC 20004-1111. E-mail comments should be sent to                             *pvag@access-board.gov.*                             Comments sent by e-mail will be considered only if they contain the full name and address of the sender in the text. Comments will be available for inspection at the above address from 9 a.m. to 5 p.m. on regular business days. The hearing on January 10, 2005 will be held at the Marriott at Metro Center Hotel, 775 12th Street, NW., Washington, DC 20005.                         

# FOR FURTHER INFORMATION CONTACT:

                            Paul Beatty, 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) 272-0012 (Voice); (202) 272-0082 (TTY). Electronic mail address:                             *pvag@access-board.gov.*

# SUPPLEMENTARY INFORMATION:

                        The Architectural and Transportation Barriers Compliance Board (Access Board) is responsible for developing accessibility guidelines under the Americans with Disabilities Act (ADA) 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. The ADA is a comprehensive civil rights law that prohibits discrimination on the basis of disability. Title II of the ADA establishes requirements for the purchase, lease, and remanufacture of vehicles operated by State and local government entities to provide designated public transportation. 42 U.S.C. 12141, 12142, 12144. For purposes of title II of the ADA, the term “designated public transportation” means “transportation * * * by bus, rail, or any other conveyance * * * that provides the general public with general or special service (including charter service) on a regular and continuing basis.” 42 U.S.C. 12141(2). Passenger vessels such as ferries operated by State and local government entities provide designated public transportation and are thus subject to the transportation vehicle requirements of title II of the ADA.                     

Title III of the ADA establishes requirements for the purchase and lease of vehicles operated by private entities, who are primarily engaged in the business of transporting people and whose operations affect commerce. 42 U.S.C. 12184. For purposes of title III of the ADA, the term “specified public transportation” means “transportation by bus, rail, or any other conveyance * * * that provides the general public with general or special service (including charter service) on a regular basis”. Cruise ships and excursion boats operated by private entities to provide specified public transportation services are thus subject to the transportation vehicle requirements of title III of the ADA. 42 U.S.C. 12181. 

Title III of the ADA also establishes requirements for the purchase and lease of vehicles by private entities who are not primarily engaged in the business of transporting people but operate a demand responsive or fixed route system. 42 U.S.C. 12182(b)(2) (B) and (C). For example, an amusement park or hotel that operates shuttle boats to transport patrons from a parking area to the main attraction or hotel itself would be subject to the transportation vehicle requirements of title III of the ADA. In addition to the transportation vehicle requirements, title III of the ADA establishes requirements for new construction and alteration of places of public accommodation operated by private entities. 42 U.S.C. 12183. There are twelve categories of places of public accommodation covered by title III of the ADA, including places of lodging, establishments serving food or drink, and places of exhibition or entertainment. 42 U.S.C. 12181(7) (A)-(L). Passenger vessels or portions of vessels that are within any of the twelve categories of places of public accommodation such as cruise ships, dinner boats, gaming boats, and sightseeing vessels are thus subject to the public accommodation requirements of title III of the ADA. 

                        In 1998, the Access Board established a 21-member advisory committee to provide recommendations to assist the Board in developing passenger vessel accessibility guidelines. The committee included disability organizations, industry trade groups, State and local government agencies, and passenger vessel operators. The Passenger Vessel Access Advisory Committee (PVAAC) met nine times between September 1998 and September 2000 and submitted a final report “Recommendations for Accessibility Guidelines for Passenger Vessels”                         *(http://www.access-board.gov/​pvaac/​commrept/​index.htm)*                         to the Board in December 2000.                     

The PVAAC report addresses two types of passenger vessels. Passenger vessels which are subject to U.S. Coast Guard regulations found at 46 CFR Subchapters H or K, and smaller passenger vessels subject to Subchapters C or T. Most of the PVAAC report focused on access in larger vessels, with only one chapter of the report specifically addressing smaller vessels (see option 2 below for a summary of the chapter). Determining which Subchapter of the Coast Guard regulations applies to a passenger vessel is based on the number of passengers a vessel is permitted to carry and the volume tonnage of a vessel. 

                        Also today, the Access Board issued in the                         **Federal Register**                         a notice announcing that the Board's draft guidelines for large passenger vessels are available for public review on the Board's Web site                         *(http://www.access-board.gov).*                         Because determining the tonnage of a passenger vessel is a complicated process and because many large foreign-flagged passenger vessels are not subject to Subchapters H or K, the Board's draft guidelines would apply to passenger vessels which are permitted to carry more than 150 passengers or more than 49 overnight passengers. These numbers were derived from Subchapter K and are used to distinguish Subchapter K passenger vessels from Subchapter T passenger vessels, which are generally smaller. It is possible for some Subchapter H                               ( print page 69246)                            passenger vessels to have fewer than these passenger numbers.                     

To assist the Board in developing accessibility guidelines for the design, construction, and alteration of smaller passenger vessels, the Board seeks comment on four options. Comment is sought in the following areas for each option:
    - The feasibility of each option and the rationale for selecting one option over others;
    - How a selected option should be modified to correct any identified weaknesses;
    - Data relating to the costs and benefits of each of the options; and
    - Recommendations on other ways to address the accessible design, construction, and alteration of smaller passenger vessels.

*Option 1.*                         Require vessels which are permitted to carry fewer than 150 passengers or fewer than 49 overnight passengers to comply with the same design, construction, and alteration requirements applicable to larger vessels addressed in the Board's draft guidelines except where it is not operationally or structurally feasible. Where a provision is not operationally or structurally feasible, compliance would be to the maximum extent practicable. The Board seeks comment on which particular provisions might be considered operationally or structurally infeasible.                    

*Option 2.*                         Require these smaller vessels to comply with the PVAAC report. In Chapter 12 of its report (                        *http://www.access-board.gov/​pvaac/​commrept/​chapter12.htm,*) PVAAC provided access recommendations for smaller vessels but applied the recommendations differently to sailing vessels and power vessels. Any Subchapter C or T sailing vessel could use the small vessel access provisions (summarized below). However, only Subchapter C or T power vessels that are within at least two of the following three measurements could use the small vessel provisions. The three measurements are:                    
    - The length on deck of the vessel is 65 feet or less;
    - The maximum beam (width) of the vessel is 16 feet or less; and
    - On the vessels main deck, each of the following three areas (weather deck, major program area, and boarding deck) is 750 square feet or less in size.

Therefore, for example, a new water taxi with a length on deck of 65 feet and a beam of 16 feet could use the small vessel provisions. Other Subchapter C or T power vessels that do not meet at least two of the above three measurements would need to comply with the access provisions applicable to larger passenger vessels.

The small vessel provisions generally address access only in a few areas including vessel embarkation and debarkation points, clear decks spaces and transfer seats, toilet rooms, accessible routes and transfer systems, and means of escape. The accessible route technical provisions also addressed brow and gangway requirements but did not include recommendations regarding gangway slopes. These small vessel provisions were based on language similar to what is found in the Board's draft guidelines which address larger vessels, but were extensively modified to be compatible with smaller passenger vessels.

*Option 3.*                         Develop general performance requirements which must be met when designing, constructing or altering smaller vessels. General performance requirements list objectives, rather than detailed design requirements, which must be accomplished to determine if a vessel is accessible. For example, general performance requirements for newly constructed smaller passenger vessels could include the following:                    
    - Passengers with disabilities must be able to get on and off a passenger vessel by a roll-on access method or by use of a transfer device;
    - Within the vessel, except for spaces and areas only connected by ladders, passengers with disabilities must be able to approach, enter, maneuver within, and exit each program area;
    - Within the vessel, except for spaces and areas only connected by ladders, passengers with disabilities must be able to approach, enter, maneuver within, and exit each passenger toilet facility;
    - Within the vessel, provide a circulation path usable by passengers with disabilities which connects accessible spaces and areas to an accessible entry and departure point.

*Option 4.*                         The Board's draft guidelines apply to larger passenger vessels (including sailing vessels) which carry more than 150 passengers or more than 49 overnight passengers. It may be feasible to apply the draft guidelines to some sailing and power vessels which carry fewer than 150 passengers or 49 overnight passengers. The Board is interested in receiving comment to determine at what passenger count the application of the draft guidelines to smaller passenger vessels becomes infeasible or at what size vessel the application of the draft guidelines becomes infeasible.                    

                        In addition to welcoming written comments, the Board will hold a hearing on January 10, 2005 to give the public an additional opportunity to provide input on the Board's draft guidelines. Interested members of the public are encouraged to contact the Access Board at (202) 272-0012 (voice) or (202) 272-0082 (TTY) to pre-register to attend the hearing. A second hearing may be held later in 2005. The location, date, and time of the second hearing will be announced in a subsequent                         **Federal Register**                         notice and on the Board's Web site. The hearings will be accessible to persons with disabilities. Sign language interpreters and an assistive listening system will be available. Persons attending the hearings are requested to refrain from using perfume, cologne, and other fragrances for the comfort of other participants.                    

## Availability of Copies and Electronic Access

                        Single copies of the passenger vessels rulemaking (ANPRM on Access to and in Smaller Passenger Vessels, Availability of Draft Guidelines, Draft Guidelines and Supplementary Information, and Draft Plan for Regulatory Assessment) may be obtained at no cost by calling the Access Board's automated publications order line (202) 272-0080, by pressing 2 on the telephone keypad, then 1 and requesting publication S-45. Please record your name, address, telephone number and publication code S-45. Persons using a TTY should call (202) 272-0082. Documents are available in alternate formats upon request. Persons who want a publication in an alternate format should specify the type of format (cassette tape, Braille, large print, or ASCII disk). Documents are also available on the Board's Web site                         *(http://www.access-board.gov).*

Emil H. Frankel,

Chair, Architectural and Transportation Barriers Compliance Board.

[FR Doc. 04-25999 Filed 11-24-04; 8:45 am]

BILLING CODE 8150-01-P