69246 Federal Register / Vol. 69, No. 227 / Friday, November 26, 2004 / Proposed Rules 

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

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.

Federal Register / Vol. 69, No. 227 / Friday, November 26, 2004 / Proposed Rules 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 

bob.ashby@ost.dot.gov

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. Publiclyoperated 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 

69248 Federal Register / Vol. 69, No. 227 / Friday, November 26, 2004 / Proposed Rules 

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 

§§ 382.40 and 382.40a) and section 504 

rules (49 CFR §§ 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 levelentry 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 

Federal Register / Vol. 69, No. 227 / Friday, November 26, 2004 / Proposed Rules 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 carryon 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 

69250 Federal Register / Vol. 69, No. 227 / Friday, November 26, 2004 / Proposed Rules 

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