The Architectural and Transportation Barriers Compliance (Access) Board is proposing “accessibility guidelines for the construction and alteration of passenger vessels covered by the Americans with Disabilities Act (ADA).” 1 The proposed rule seeks to require certain design specifications and technical provisions for renovations and construction of passenger ships so that physically disabled passengers can make use of a greater range of amenities.2 The proposed provision will provide more handicap-accessible routes, means of escape, service and sales counters, drinking fountains, seating areas, toilet rooms, guest rooms, storage areas, etc. on ferries, cruise ships, and other passenger ships. The rule also requires certain alert systems to be in place for visually and hearing-impaired passengers.
Although well-meaning, the proposed rule fails to clearly define “benefits.” The proposed rule does cite Executive Order 13563’s 3 recognition that “agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.” However, the proposed rule fails to (1) define what equity or fairness means in this context, (2) provide a rigorous defense of the definition based on some respectable ethical theory, and (3) provide evidence that the requirements actually will improve equity under this definition. Without a definition or theory of fairness, dignity, or equity or a measure of benefits, there is no standard by which to determine whether these rules are too obtrusive or too lax. One way to address this lacuna is to follow the methodology used by the US Department of Justice (DOJ) in 2008 when evaluating the Nondiscrimination on the Basis of Disability in State and Local Government Services Rule4 and Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities Rule.5 In Appendix 4 of both Regulatory Impact Analyses (RIAs), the DOJ attempts to measure use value by estimating the monetized value of the time and quality of life gained through improved access.6 Following this line of analysis would vastly improve the RIA.
The rule also fails to account for changes in behavior that are likely occur when cruise ship and ferry operators face higher reconstruction and replacement expenses. Given the higher costs, the proposed rule needs to assess whether operators will delay renovations, delay vessel replacement, or potentially reduce or discontinue service. Without analyzing these potential changes in behavior, the rule may be overstating the net benefits by overestimating the benefits to the handicapped passengers and underestimating the costs faced by all potential travelers who may be forced to use other, more expensive transportation options.