Testimony Regarding ADA Rules for Passenger Vessels
ANPRM docket # 2004-2
By
Captain Louis F. Linden, Esq.
on behalf of
The American Sail Training Association
P.O. Box 1459
Newport RI 02840
Introduction
The mission of the American Sail Training Association is to encourage character building through sail training, promote sail training to the American public, and support education under sail. Many ASTA member vessels, in addition to their sail training activities, carry passengers, primarily in the short term excursion trade. For most vessels these commercial activities provide an important revenue stream that underwrites their sail training activities. ASTA was a member of the Passenger Vessel Access Advisory Committee and its Small Passenger Vessel Subcommittee. ASTA’s representative was the Chairman of that Subcommittee.
In 1999 ASTA surveyed its membership regarding the provision of access to all. Of the 197 vessels in the ASTA fleet, 81 replied (41.1%, a very high rate of return). The vessels range from open boats to attraction vessels such as Star of India above 1,000 tons. Their operations fall under one or more of three headings: Passenger Carriage (mostly excursions under 3 hours), Sail Training and Dockside Attraction. The sample carried about ten times as many passengers (336,000) as sail trainees (36,345) in 1998. (The disparity is reduced somewhat when duration of stay is considered.) Approximately four times more dock-side attraction visitors boarded ASTA ships than passengers although only about ten respondents are either USCG certified as attraction vessels or operate in that mode.
Of the whole sample, the average vessel tonnage is 102 GRT (median 66 GRT) and average LOD is 76 Ft. (median 68.5 feet). 49.4% of respondents are certified as subchapter T passenger vessels and 26% are uninspected (subchapter C) vessels. Just under 18% of the sample are foreign flag vessels. The balance are attraction vessels and subchapter R (Sailing School Vessels Act) vessels. Subchapter R vessels carry six or more sail trainees or instructors, are sail powered and must be operated by a non-profit organization for the purpose of sail training. They are not classified as passenger vessels. Several ASTA vessels have dual certification under subchapter T and subchapter R.
This testimony will address only sailing vessels for two reasons. The first is that obviously, the operation of sailing vessels is ASTA’s area of expertise. Secondly, sailing vessels present perhaps the most difficult scenarios for handicapped access. Almost anything that can be accomplished on a sailing vessel can be done more easily on a comparably sized motor vessel.
Options Proposed in the Advance Notice of Proposed Rulemaking
ASTA Prefers Option Two
Our “Holy Grail” is a clear, simple set of rules with as universal and practical application as possible, that can be prospectively relied upon by designers, builders, operators and passengers. Several thousand years of human history informs us that it is exceedingly unlikely we will attain this, the ideal object of our desires. However, the PVAAC attempted to create a rule that could be applied across this physically and operationally very diverse class of vessels. Of the four Options set out in the ANPRM, ASTA’s clear preference is for the adoption of Option 2. It provides feasibility and predictability without sacrificing necessary flexibility.
The following will address some of ASTA’s concerns and perceptions about each of the options.
Option 1.
Option 1’s major premise, that the vast majority of the large vessel rules can be practically applied to small vessels, is incorrect and is its major failing. As written the exceptions will inevitably swallow the rule. The laws of physics and the impact of physical scale are largely responsible for this. Additionally, operational requirements adversely affect the applicability of other rules.
Design distortion occurs when modifications to a vessel design impair the vessel’s performance of its intended function. This definition applies to the vessel’s trade or operational configuration as well as its navigational attributes. Most of the rules for large vessels would cause catastrophic design distortion when applied to small sailing vessels.
Sailing vessels must be designed as an interrelated system of components. They rely on hydrodynamic resistance and aerodynamic lift and the balance between them for their motive force. Neither the size nor placement of any particular component in a design can be determined without reference to the size and placement of the others. Ultimately these size and placement decisions will determine the vessel’s performance in the dynamic marine environment. Any change of size or placement of elements causes a corresponding change in the performance of the vessel, e.g., too much sail and not enough displacement will cause the vessel to capsize or turn turtle. Too much displacement and too little sail and the vessel will not be able to maneuver. Smaller vessels generally are more subject to design distortion by imposing requirements unrelated to the vessel’s physical design and operational functioning than are large vessels. This is caused simply by the scale involved, the ratio of the size of the change to the overall size of the vessel. For example, adding a feature that increases the beam of a 50 ft.-wide vessel by 12 inches increases the beam by 2%. The same feature added to a vessel with a 10 ft. beam results in an increase of 10%. To maintain constant performance the increase in beam on the smaller vessel requires a corresponding increase in length. This is not necessarily so with the 50 ft. beam vessel.
The small vessels within these classes are astoundingly diverse in their size, configurations and operations. This diversity makes it impractical (and probably undesirable) to make specific rules for each type and size of vessel and operation. By the same token, no single set of physical standards will be relevant to all the vessels in this class.
One of Option 1’s major failings is process related and is shared by the other options to a greater or lesser degree. Both the threshold requirement of “not operationally or structurally feasible” and the compliance standard, “to the maximum extent practicable” are in and of themselves imprecise. Like truth, beauty and contact lenses, they are in the eye of the beholder. This unguided exercise is an invitation to litigation as well as design distortion. The controversies will not be about whether to put an elevator in a Boston Whaler and other such obvious questions. The controversies will abound in minute questions of dimension and design. What’s worse, designers and builders will have no way of determining whether they are in compliance prior to a complaint being adjudicated. The economic impact of such litigation or even the threat of litigation can be disastrous for small businesses and especially for small non-profits, the owner/operators of most of ASTA’s member vessels.
Most of the provisions of the Draft Passenger Vessels Accessibility Guidelines (PVAG) are totally irrelevant to small passenger vessels. Large passenger vessels operate either as cruise ships, ferries or gaming vessels. In most ways the accommodations are more akin to resort hotels or huge busses than small sailing vessels. Indeed, much of PVAG adapts and applies rules for terrestrial structures and accommodations into a different context, the marine environment. In terms of physical dimension and functioning, cruise ship accommodations are much closer to resort hotels than they are to sailing vessels. Small sailing vessels have no areas of refuge, elevators or, indeed, stairways. C & T sailing vessels have no night clubs, stores, saunas or public address systems. A cursory examination of the scoping requirements of PVAG provides a laundry list of things never available to passengers on small sailing vessels: water slides, boxing rings, diving boards, stairs and escalators, performance areas, bowling lanes, exercise machines, miniature golf, elevators, platform lifts, drinking fountains, kitchenettes, urinals, washing machines & clothes dryers, emergency alarm systems, signs, exterior doors, check-out aisles, telephones, two-way communication systems, ATMs, dressing, fitting and locker rooms, medical care facilities, vending machines, mail boxes, detention facilities, swimming or wading pools, shooting facilities.
The lack or relevance is clearly a result of the programmatic differences of the two classes of vessels as well as size and scale problems. Cruise ships ARE resort hotels. Ferries ARE giant busses. Gaming boats ARE casinos. Dinner boats ARE floating restaurants. They are indeed subject to the physical constraints of the sea but their very size makes the resolution of those problems very different from smaller vessels in kind and magnitude. The vast majority of small sailing vessels carrying passengers for hire are in the short day excursion trade.
Option 2.
The Small Passenger Vessel Subcommittee of PVAAC created a regime of accessibility standards tailored to the unique aspects of small sailing vessels and small motor vessels. (Recognition of the irrelevancies mentioned in Option 1 led to the form and substance of Chapter 12 and Option 2.) This product was thrashed out in spirited debates over a two year period by both disability and industry representatives. It provides a much more structured and refined approach than the other three options. As a result it yields more predictable results than the other options. It provides a substantial amount of flexibility within the regime which will encourage technical innovation. It is important to note that this option takes into account to some extent the size differences within the continuum of small sailing vessels. The size range within existing subchapters C & T vessels is a factor of at least 10 (the smallest is 1/10th the size of the largest). Any successful rule must be able to account for a difference of that magnitude or be totally irrelevant.
The PVAAC rule limits itself to the features and requirements that are appropriate for the trades and environments (primarily day excursions in protected waters) plied by small sailing vessels.
Option 3.
For years ASTA members have been providing services to persons with disabilities without the guidance of standards. In the survey mentioned above 51 ASTA member vessels reported carrying 2,913 disabled passengers in the years 1998 and 1999 with apparent 100% satisfaction and no injuries. The vessel operators have accomplished this without any modification to their vessels or hardware. Almost everyone who desired passage on an ASTA vessel was accommodated.
Virtually all of the vessels accommodating disabled persons are in the short duration excursion trade. (One notable exception is Heritage of Miami II which reported taking a group of blind students for several days in the Florida Keys.) The survey returns included a number of statements to the effect that, “This vessel turns no one away.” Two factors underlie this success. One is that vessel operators (and sailors in general) take pride in resourcefulness and adaptability. The other is the willingness of both the operator and the passenger to negotiate the terms of the experience. This exchange includes the operator’s willingness to accommodate the passenger and the passenger’s willingness to accept the physical limitations imposed by the vessel configuration and the environment. This includes seating, head access (or lack thereof) method of boarding, etc. Most responders report no access below decks for mobility impaired passengers or non-handicapped passengers. It reinforces the short duration, protected waters, excursion nature of the voyages.
A major issue in any attempt to establish performance standards is the level of detail and specificity. The most general performance standard is to get disabled passengers on and off the boat safely and give them as near as possible (hopefully to their satisfaction) the same experience as non-disabled passengers. At this level ASTA’s member vessels are already in functional compliance. What issues (and at what level of complexity) would be addressed by a more specific process that weren’t already considered by the C & T Subcommittee? At that level of detail it is doubtful that the result would be substantially different. It makes little sense to go through an expensive and extensive process of developing general performance requirements. In terms of actual in-the-field performance the need is being satisfied extraordinarily well. That same experience informed the PVAAC process, expressing that experience in terms of hardware for new construction which was the PVAAC’s mandate. S1.1-S1.4 provide exceptions that essentially rely on the competence and best practices of the vessel operators in situations where hardware solutions are infeasible due to scale, structure or operation.
Option 3 only makes sense if the Board wants to adopt broad performance standards that essentially embody the successful status quo in the small sailing vessel world. In doing so it should specifically state that, so as to avoid creating confusion that it is requiring a different standard. Clarity in stating the Board’s intent is very important to assure predictability and thereby to ease and enhance compliance and customer satisfaction. From a regulatory standpoint this approach has substantial validity based on the old aphorism, “If it ain’t broke, don’t fix it.” Otherwise Option 2 is more efficient and economical.
Option 4.
There is no magic number of passengers except in that it might reflect the over-all size of a vessel. The draft regime for large vessels begins to break down as the accommodations look less and less like motel rooms and banquet halls. This phenomenon is largely market driven. The passenger market for small sailing vessels is infinitesimal compared to the passenger market for any one type of large vessel much less all of them. (It is even a tiny fraction of the market for small powered vessels.) The Coast Guard’s classification scheme reflects the physical and market realities. While all lines drawn are to some extent arbitrary, the present lines are probably as good as any and better than most.
Sailing vessels are more vulnerable to design distortion than other vessels. Hull shape has much less impact on the design of powered vessels than sailing vessels. Increasing engine horsepower has fewer design ramifications than increasing the size of the sail plan which then requires a larger rig and more displacement and draft to support it. Design elements such as the ratio between windage and displacement have a much greater effect on sailing vessel design as well. Powered vessels carry their power source with them. The operator defines the amount of power it will apply to the vessel. It varies not at all in size, shape or location. Sailing vessels acquire their power externally and it varies incessantly in magnitude and direction. Raising the booms to create overhead clearance passengers who can’t duck or sight impaired passengers who can’t see a gibing boom about to decapitate them requires raising the entire rig or diminishing the sail plan. That in turn changes the center of effort and therefore the stability and sailing characteristics of the vessel.
Design distortion also expresses itself through measurable impacts on labor and manning requirements. Mechanical or power assists of any sort are a rare exception in Subchapter C & T sailing vessels. Most often the sails are raised and manipulated only by the strong backs of the crew, described in the old days as “Norwegian Steam.” Doubling the size of a diesel engine does not require additional engineers. Increasing the sail plan by even a fraction of that can result in doubling the size of the crew.
The argument about at what size the line between large and small vessels should be drawn is largely a red herring. In fact the actual trades in which a vessel is engaged is a better indicator of whether to apply large vessel rules. The vast majority of passengers on sailing vessels are on local excursions lasting less than three hours. The relatively small overnight and charter trade is carried on largely by historical wooden schooners along the coast of Maine and literally a handful of vessels in other locations on the east and west coasts. The Coast Guard takes into account operational and environmental factors in classifying vessels as well as the size of the vessel. They do this on a very detailed level to tailor each vessel’s certificate to local conditions and the particular vessel’s capabilities.
In practical reality, for commercial sailing vessels there is for the most part only one operational scenario. Short term voyages in protected waters generally to and/or from dock/port facilities over which the owner/operator has no control. Other details such as tides, currents and weather patterns can make for very great differences in how that operational scenario is played out but the scenario remains constant.
There is little to be gained by abandoning the present class system. The Access Board does not have the capacity or the mandate to deal with complex issues of seafaring that the Coast Guard considers in classifying and certificating vessels. While the present system may not be perfect for the purposes of making access rules, it is overwhelmingly likely that it will be more useful than classifications created absent the Coast Guard’s experiential base. Insofar as the present Coast Guard classes fail, it merely reminds us that where there is such diversity in size and type, any overall rule will fail in application to a greater or lesser degree.
The goal is to have a criterion for access in vessels whose hulls have adequate volume to encompass such activity. Vessels are much more diverse in size (several orders of magnitude) and shape than people. Sailing vessels vary in shape from surfboards to multi-thousand-ton behemoths. Some are decked over, some open. It is clear that there are many vessels that physically cannot accommodate mobility aids. Many others can. Overhead clearance rules cannot be accommodated in any but the largest of T-boats nor can horizontal slope rules be applied in any sailing vessel. Physical size will be a major parameter in any rule but not the only one.
Imposing large vessel standards on small sailing vessels at some point requires either, (a) that those smaller vessels be made larger or (b) a compromise of the vessel’s performance to accommodate those standards. Neither result is justified by any benefit generated by it. The PVAAC has already devoted several years to considering these issues and found little evidence that the present passenger count lines hinder the creation of accessibility.
Conclusion
The Access Board should either adopt the recommendations of the PVAAC or simply state that it is making no standards for small sailing vessels. This last position is quite defensible on the adequacy of the status quo and the cost of going forward in relation to the minute size of the market and therefore the small potential benefit. It is further justified by the very slow replacement rate for small sailing vessels in commercial trade. Most years no new vessels are launched into the commercial sailing trade. Older vessels are often preferred for their historical cachet. Insofar as we are discussing standards for new construction, these rules will, in all likelihood, have no measurable impact upon access to small sailing vessels in our lifetimes and perhaps beyond.
In fulfilling its obligation to perform a Regulatory Assessment the Access Board is invited to consult with ASTA to help formulate the Assessment and obtain information regarding present operators and any vessels that might be under construction. Given the substantial impact that access issues can have on this small and unique fleet, ASTA feels it is imperative that the Access Board and its staff have as complete access to current information as possible. ASTA stands ready to help.