By Janis Reyes, Assistant Chief Counsel
“A boat is not a building,” said Captain Alan Bernstein, the owner of BB Riverboats, as he gave staff members of Advocacy a tour of various sizes of riverboats at his Kentucky small business, which provides sightseeing and dinner cruises on the Ohio River.
Bernstein, a member of the Passenger Vessel Association, expressed frustration at how difficult it is for his small business to make it with the numerous local, state and federal regulatory mandates that passenger vessel operators face.
Advocacy learned how difficult it is to apply federal regulations, such as those requiring Americans with Disabilities Act accessibility for buildings, to boats. For example, Bernstein was on an Advisory Committee for the Access Board, a federal agency that is making recommendations and guidelines on what types of accessibility requirements under the Americans with Disability Act (ADA) should apply to passenger vessels. We boarded a historic older boat named the Mark Twain, and realized how limited this operator was in installing features such as elevators and disabled-accessible bathrooms in this existing smaller vessel. We boarded a larger riverboat that had these accessibility features, but noticed that there are stability challenges due to the nature of how a boat floats. Bernstein has to inform passengers on wheelchairs regarding the changing slope of the floors, and sometimes has to shut the power off the elevator during stormy weather. Bernstein told us that the river levels move up and down as much as 30 feet and water sometimes covers his whole parking lot, which complicates the process of boarding the vessel for people with disabilities.
Bernstein stated that it is likely that the Access Board will require that the ADA accessibility standards apply to newly constructed vessels and major alteration projects, and not mandate that an existing vessel must be retrofitted to meet the standards. Bernstein noted that there are existing ADA service requirements, and his company always tries to make reasonable accommodations for people with disabilities.
Bernstein stated that instead of being considered a restaurant for regulatory purposes, the Food and Drug Administration (FDA) has mis-classified his business as a manufacturer and therefore must comply with burdensome rules under the Food Safety Modernization Act (FSMA). Although BB Riverboats offers a dinner cruise, this operation serves food made in their headquarters kitchen. His company has been placed under the federal jurisdiction of “interstate commerce” even though his fleet operates within Kentucky waters and only sails up to West Virginia a few times a year. Most other passenger vessel operators and restaurants only have to comply with local sanitary and oversight rules.
Captain Bernstein and his daughter Terri Bernstein discussed these issues and other regulatory concerns that passenger vessel owners face at Advocacy’s Cincinnati Roundtable earlier that morning. However, boarding and exploring three of BB Riverboat’s vessels provided Advocacy staff with a deeper understanding of the difficulty of applying a variety of federal regulations that are meant for buildings to boats.
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