[Federal Register Volume 75, Number 128 (Tuesday, July 6, 2010)]
[Rules and Regulations]
[Pages 38878-38902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15101]



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Part II





Department of Transportation





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49 CFR Part 39



Transportation for Individuals With Disabilities: Passenger Vessels; 
Final Rule

  Federal Register / Vol. 75 , No. 128 / Tuesday, July 6, 2010 / Rules 
and Regulations  

[[Page 38878]]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 39

[Docket OST-2007-26829]
RIN 2105-AB87


Transportation for Individuals With Disabilities: Passenger 
Vessels

AGENCY: Office of the Secretary, Department of Transportation.

ACTION: Final rule; request for comments.

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SUMMARY: The Department is issuing a new Americans with Disabilities 
Act (ADA) rule to ensure nondiscrimination on the basis of disability 
by passenger vessel operators (PVOs). This rulemaking concerns service 
and policy issues. Issues concerning physical accessibility standards 
will be addressed at a later time, in conjunction with proposed 
passenger vessel accessibility guidelines drafted by the United States 
Access Board. The Department is also seeking further comment on three 
issues, concerning emotional support animals, mobility aids, and the 
relationship of DOT and DOJ rules.

DATES: This rule is effective November 3, 2010. Comments should be 
received by October 4, 2010.

ADDRESSES: You may submit comments (identified by the agency name and 
DOT Docket ID Number OST-2007-26829) by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility: U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., West Building Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    Instructions: You must include the agency name (Office of the 
Secretary, DOT) and Docket number (OST-2009- ) for this notice at the 
beginning of your comments. You should submit two copies of your 
comments if you submit them by mail or courier. Note that all comments 
received will be posted without change to http://www.regulations.gov 
including any personal information provided and will be available to 
Internet users. You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (65 FR 19477) or you 
may visit http://DocketsInfo.dot.gov.
    Docket: For Internet access to the docket to read background 
documents and comments received, go to http://www.regulations.gov. 
Background documents and comments received may also be viewed at the 
U.S. Department of Transportation, 1200 New Jersey Ave., SE., Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, Washington, 
DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant 
General Counsel for Regulation and Enforcement, Department of 
Transportation, 1200 New Jersey Avenue, SE., Room W94-302, Washington, 
DC 20590. (202) 366-9310 (voice); (202) 366-7687 (TDD); 
[email protected] (e-mail).

SUPPLEMENTARY INFORMATION: The Department of Transportation has issued 
rules concerning nondiscrimination on the basis of disability for 
almost every mode of passenger transportation, including public 
transportation (bus, subway, commuter rail), over-the-road buses, 
intercity rail, and air transportation. The only mode for which the 
Department has yet to issue rules is transportation by passenger 
vessels. With this final rule, the Department can begin to close this 
gap in coverage of transportation for individuals with disabilities.

Background

    When the Department issued its first Americans with Disabilities 
Act (ADA) rules in 1991, we discussed the coverage of passenger 
vessels. The Department reserved action on passenger vessels in the 
regulatory text in the final rule, and made the following statements on 
the subject in the preamble (56 FR 45599-45560; September 6, 1991):

    Ferries and passenger vessels operated by public entities are 
covered by the ADA, and subject at this time to DOJ Title II 
requirements as well as Sec.  37.5 of this Part. * * * We anticipate 
further rulemaking to create appropriate requirements for passenger 
vessels * * *. The reason for this action is that, at the present 
time, the Department lacks sufficient information to determine what 
are reasonable accessibility requirements for various kinds of 
passenger vessels. * * * The Department of Transportation 
anticipates working with the Access Board and DOJ on further 
rulemaking to define requirements for passenger vessels. * * * The 
Department does want to make clear its view that the ADA does cover 
passenger vessels, including ferries, excursion vessels, sightseeing 
vessels, floating restaurants, cruise ships, and others. Cruise 
ships are a particularly interesting example of vessels subject to 
ADA coverage.
    Cruise ships are a unique mode of transportation. Cruise ships 
are self-contained floating communities. In addition to transporting 
passengers, cruise ships house, feed, and entertain passengers and 
thus take on aspects of public accommodations. Therefore cruise 
ships appear to be a hybrid of a transportation service and a public 
accommodation * * *
    In addition to being public accommodations, cruise ships clearly 
are within the scope of a ``specified public transportation 
service.'' The ADA prohibits discrimination in the full and equal 
enjoyment of specified public transportation services provided by a 
private entity that is primarily engaged in the business of 
transporting people and whose operations affect commerce (Sec.  
304(a)). ``Specified public transportation'' is defined by Sec.  
301(10) as ``transportation by bus, rail, or any other conveyance 
(other than by aircraft) that provides the general public with 
general or special service (including charter service) on a regular 
and continuing basis.''
    Cruise ships easily meet the definition of ``specified public 
transportation.'' Cruise ships are used almost exclusively for 
transporting passengers and no one doubts that their operations 
affect commerce. Cruise ships operate according to set schedules or 
for charter and their services are offered to the general public. 
Finally, despite some seasonal variations, their services are 
offered on a regular and continuing basis.
    Virtually all cruise ships serving U.S. ports are foreign-flag 
vessels. International law clearly allows the U.S. to exercise 
jurisdiction over foreign-flag vessels while they are in U.S. ports, 
subject to treaty obligations. A State has complete sovereignty over 
its internal waters, including ports. Therefore, once a commercial 
ship voluntarily enters a port, it becomes subject to the 
jurisdiction of the coastal State. In addition, a State may 
condition the entry of a foreign ship into its internal waters or 
ports on compliance with its laws and regulations. The United States 
thus appears to have jurisdiction to apply ADA requirements to 
foreign-flag cruise ships that call in U.S. ports.

The U.S. Supreme Court affirmed the Department's long-held view that 
the ADA covers passenger vessels, specifically including foreign-flag 
cruise ships. In Spector et al. v. Norwegian Cruise Lines, 545 U.S. 119 
(2005), the Court held that cruise ships are ``public accommodations'' 
that provide ``specified public transportation'' within the meaning of 
the ADA. The Court said that, while there may be some limitations on 
the coverage of the ADA to matters purely concerning the internal 
affairs of a foreign-flag vessel, matters concerning the ship 
operators' policies and conditions relating to transportation of 
passengers with disabilities (e.g., higher fares or surcharges for 
disabled passengers,

[[Page 38879]]

waivers of medical liability, requirements for attendants) had nothing 
to do with a ship's internal affairs. Such matters, then, are clearly 
subject to ADA jurisdiction. It is issues of this kind that are the 
focus of this final rule.
    The Access Board has been working for some time on drafting 
accessibility guidelines for passenger vessels. On November 26, 2004, 
the Access Board published for comment a notice of availability of 
draft guidelines for larger passenger vessels with a capacity of over 
150 passengers or overnight accommodations for over 49 passengers. 
Since that time, the Access Board has been reviewing comments received 
and planning work on a Regulatory Assessment for vessel guidelines. On 
July 7, 2006, the Access Board issued a second notice of availability 
asking for comments on a revised draft of vessel guidelines. Following 
the review of comments on that notice, the Access Board, in cooperation 
with the Department of Transportation, would issue an NPRM and 
Regulatory Assessment concerning physical accessibility requirements 
for larger passenger vessels. As envisioned, the final rule resulting 
from such a future NPRM would ultimately be joined with a final rule 
resulting from this final rule in a single, comprehensive passenger 
vessel ADA rule.
    On November 29, 2004, the Department published an advance notice of 
proposed rulemaking (ANPRM) asking questions about the shape of future 
ADA requirements for passenger vessels (69 FR 69247). The Department 
received 43 comments to the ANPRM. Most of these comments concerned the 
Access Board's draft guidelines and physical accessibility issues 
relating to existing and new vessels, and some of them concerned 
physical accessibility issues specific to very small vessels. The 
Department is retaining these comments and will consider them in 
context of the continuing work on the Access Board's draft vessel 
guidelines and the future NPRM that would propose to incorporate those 
guidelines in DOT rules.
    The only comment on the ANPRM that concerned issues included in 
this NPRM was from the International Council of Cruise Lines (ICCL), a 
trade association for entities in the cruise industry. ICCL recommended 
that the rules exempt transfers of persons from larger vessels to 
tenders; recognize the flexibility of cabin configurations; exclude 
from coverage shore excursions provided by third-party-vendors, 
particularly in foreign countries; have eligibility criteria and direct 
threat provisions that allow operators to establish policies that will 
avoid safety risks; permit requirements for personal attendants; and 
permit limitations on the transportation of service animals. The 
Department addressed these comments in context of the individual 
sections of the proposed rule.
    The notice of proposed rulemaking (NPRM) for this rule was issued 
on January 23, 2007 (72 FR 2833). In response to the NPRM, hundreds of 
comments were received from disability advocacy groups, the regulated 
industry, other governmental agencies, and the general public. At the 
request of industry, the Department held a public meeting on April 8-9, 
2008, where members of these groups attended to inform the Department 
of their views on the practical effect of the NPRM's provisions. This 
final rule addresses the comments received in the docket and at the 
public meeting.

Section-by-Section Analysis

Section 39.1 What is the purpose of this Part?

    This section briefly states the nondiscrimination-related purposes 
of the rule and specifies that nondiscrimination requirements apply to 
operators of foreign-flag as well as U.S. vessels.

Section 39.3 What do the terms in this rule mean?

    This section defines the terms used in this rule. Many of the 
definitions are based on parallel definitions in other disability 
nondiscrimination regulations, adapted to the passenger vessel context. 
This preamble discussion focuses on terms that are specific to the 
passenger vessel context. Other terms have the same meanings as they do 
in other DOT disability rules.
    Because this rule does not propose physical accessibility 
requirements for vessels, the definition of ``accessible'' will be 
fleshed out with proposed standards based on Access Board guidelines in 
a future rulemaking. The definitions of ``auxiliary aids and services'' 
and ``direct threat'' are drawn from Department of Justice regulations. 
``Direct threat'' concerns only threats to the health and safety of 
others. Something that may threaten only the health or safety of a 
passenger with a disability, himself or herself, by definition cannot 
be a direct threat. The definition of ``direct threat'' is consistent 
with the understanding of that term in DOT and DOJ regulations. In the 
preamble to its over-the-road bus ADA rulemaking, the Department 
provided a thorough discussion of this concept (63 FR 51671-51674), 
which remains a good guide to the Department's thinking on this issue.
    The definition of ``disability'' is taken from the existing ADA 
rule, 49 CFR Part 37. The Department is well aware that the ADA 
Amendments Act of 2008 altered the definition of disability. However, 
in its pending ADA Title II and Title III regulations, DOJ has not 
modified its existing definitions of this term, though it expects to do 
so In the future. The Department believes that it would be best to work 
on the regulatory expression of the amended definition in concert with 
DOJ, resulting in a single government-wide regulatory definition. 
Typically, in DOT transportation nondiscrimination practice (in 
contrast, for example, to employment nondiscrimination matters), the 
definition of ``disability'' has not been a major issue. In 
implementing this rule, the Department will be informed by the 2008 
legislation if any issues arise in which the changed language of the 
statute are relevant to the obligations of PVOs.
    The term ``disability'' means, with respect to an individual, a 
physical or mental impairment that substantially limits one or more of 
the major life activities of such individual; a record of such an 
impairment; or being regarded as having such an impairment. A commenter 
expressed concern that passengers may have many different kinds of 
disabilities and said that the proposed rule does not clearly define 
``disability.'' Another commenter stated that the definition of 
``disability'' is unnecessarily confusing since it allows people who 
are ``misclassified as disabled'' to be considered disabled for the 
purposes of this rule.
    The definition of the term ``disability'' in this rulemaking is 
based on the ADA statutory definition of ``disability,'' and 
longstanding DOT and DOJ regulatory definitions. People who are 
``regarded as'' having a disability, even if in fact they don't, have 
always been a protected class under the ADA. It is certainly true that 
there are many kinds of disabilities, and the definition, as fitting in 
a civil rights mandate, is intentionally broad.
    The definition of ``facilities'' is also consistent with the 
definition of this term in other DOJ and DOT rules. Examples of 
facilities in the passenger vessel context include such things landside 
facilities and floating docks that a vessel operator owns, leases, or 
controls in the U.S. (including its territories, possessions, and 
commonwealths). Comments received in relation to the definition of 
facilities and terminals from the cruise line

[[Page 38880]]

industry objected to applying this rulemaking to facilities outside the 
U.S. due to possible conflict with the laws of the host nation. As in 
the case of the Air Carrier Access Act, where the Department does not 
assert jurisdiction over airports in foreign countries, the Department 
does not in this rule attempt to cover port facilities abroad. A 
passenger vessel operator (PVO) would be viewed as controlling a 
facility, even if it did not own or lease it, if the facility owner, 
through a contract or other arrangement, delegated authority over use 
of the facility to the passenger vessel operator during those times in 
which the vessel was at the facility.
    The Department realizes that entities other than PVOs, such as 
municipalities or other private businesses, may own, lease, or control 
U.S. landside facilities that passenger vessels use. The obligations of 
these entities would be controlled by Titles II and III of the ADA and, 
in some cases, by section 504 of the Rehabilitation Act of 1973. The 
relationship envisioned between the facility owner/controller and the 
PVO is analogous to other situations in which entities subject to 
different disability access rules share responsibility (e.g., public 
entity landlord subject to Title II leases property to a private entity 
subject to Title III).
    The definition of ``historic vessel'' is also one that is likely to 
become more significant when future rulemakings include physical 
accessibility standards to Part 39. ``New,'' ``existing,'' and ``used'' 
passenger vessel are also terms that will be of greater importance once 
physical accessibility standards are in place. Because they are not 
necessary in this regulation, the Department has deleted these 
definitions. We anticipate proposing definitions of these and other 
terms relevant to the application of physical accessibility standards 
in a subsequent rulemaking related to Access Board proposals for 
passenger vessel guidelines.
    ``Operates'' means the provision of transportation by any public or 
private entity on a passenger vessel. Moreover, the definition also 
includes the provision of transportation by another party having a 
contractual or other arrangement or relationship with the PVO involved. 
As in other parts of the Department's accessibility rules, a party can 
contract out its functions, but cannot contract away its 
responsibilities.
    ``Passenger vessel'' is meant to be a broadly encompassing term for 
any boat, ship, or other craft that is hired by members of the public 
or for other activities conducted as a part of the vessel operator's 
normal operations (which could include promotional activities such as 
the use of a vessel by members of the public for which a fare is not 
charged or free ferry service). Boats or other craft that are rented or 
leased to consumers to be operated by the consumer (versus by the 
passenger vessel operator and its personnel) are not covered.
    One commenter recommended excluding vessels that support offshore 
oil and gas activities from this definition. Such vessels are chartered 
by a customer principally for transport of cargo. Other commenters 
recommended excluding from the rulemaking supply vessels, crew boats, 
all vessels below a certain size (e.g., 100 gross tons, space for 150 
or 6 passengers) school training or sailing vessels, party fishing 
vessels, and research vessels carrying students if the ``mission'' of 
the vessel would be compromised.
    It appears that many of these comments were based on the premise 
that this rule will require significant physical changes to existing 
vessels. It will not. This rule addresses policies and practices of 
PVOs, not the design or construction of their vessels. With respect to 
PVO policies that would, for example, exclude an individual because he 
is blind, or charge extra fees because a passenger uses a wheelchair or 
other assistive device, the nondiscrimination principles of the ADA do 
not apply any differently because of the size or function of a vessel. 
As it develops its vessel accessibility guidelines, the Access Board is 
taking vessel size matters into account, and in future rulemaking the 
Department anticipates harmonizing its standards with the Access Board 
guidelines, including size limitations the Access Board rule may adopt.
    The Passenger Vessel Association commented that, where a vessel 
owner or operator is not paid for carrying the passengers, there should 
be no additional requirements placed on the owner by the rule. The 
Department disagrees. The rights of individuals with disabilities are 
protected under the ADA whether or not the individual is a paying 
customer. There is no basis under the statute for treating individuals 
differently based on their status as paying or non-paying passengers.
    ``Passenger vessel operator'' is a term that includes both owners 
and operators of a passenger vessel. A PVO may be either a public or a 
private entity. Sometimes, ownership of vessels can be complex, with 
two or more parties involved, with yet another party responsible for 
the day-to-day operation of the vessel. In such situations, all the 
parties involved would be jointly and severally responsible for 
compliance with these rules.
    In a change from the NPRM, the term PVO includes only private 
entities primarily engaged in the business of transporting people. The 
Department of Justice (DOJ) has authority over public accommodations 
that operate vessels and are not primarily engaged in the business of 
transporting people. DOJ's regulations applicable to public 
accommodations apply to ensure nondiscrimination by such vessel 
operators. Persons with complaints or concerns about discrimination on 
the basis of disability by vessel operators who are private entities 
not primarily engaged in the business of transporting people, or 
questions about how DOJ's regulations apply to such operators and 
vessels, should contact DOJ. For these reasons, it has been determined 
that it is not necessary to include provisions in this final rule 
concerning vessels operated by private entities not primarily engaged 
in the business of transporting people.
    The basic distinction is that a vessel operator whose vessel takes 
passengers from Point A to Point B (e.g., a cruise ship that sails from 
Miami to one or more Caribbean islands, a private ferry boat between 
two points on either side of a river, a water taxi between two points 
in an urban area) is most likely a private entity primarily in the 
business of transporting people. A vessel operator who departs from 
Point A, takes passengers on a recreational trip, and returns 
passengers to Point A without ever providing for disembarkation at a 
Point B (e.g., a dinner or harbor cruise, a fishing charter) is most 
likely a private entity not primarily engaged in the business of 
transporting people. In cases where it is not clear whether a vessel 
operator is or is not primarily engaged in the business of transporting 
people, the Department of Transportation, in consultation with DOJ, 
will determine into which category the operator falls. There may be 
certain situations in which a passenger vessel's operations can 
simultaneously be subject to both DOT and DOJ rules.
    The terms, ``individual with a disability'' and ``qualified 
individual with a disability,'' have similar meanings for purposes of 
the rule. There could be situations in which a qualified individual 
with a disability may not actually be a passenger, such as in the case 
of an individual choosing to assist a person with a disability in ways 
that do not involve actually accompanying the person on a voyage (e.g., 
assistance with buying tickets, assistance in moving through a 
terminal, advocating

[[Page 38881]]

for the person with the PVO concerning policies affecting the person's 
travel).
    ``Specified public transportation'' should not be read under this 
Part to include promotional rides on vessels for the purpose of 
informing a vessel purchase. Nor does it include operations of vessels 
by private entities not primarily engaged in the business of 
transporting people.
    ``Terminal'' refers to property or facilities adjacent to the means 
of boarding a vessel that passengers use to get to the vessel. A 
terminal, in this sense, can be a large complex, a building, or a very 
simple facility. Importantly, terminals are covered under Part 39 only 
to the extent that the PVO owns or leases the terminal or exercises 
control over its selection, design, construction, or alteration (e.g., 
PVO selects site for construction of new facility; PVO has choice of 
docking at existing accessible or inaccessible facility).
    The definition of ``wheelchair'' is taken from the Department's ADA 
rule for surface transportation modes, 49 CFR part 37. The only 
difference is that the part 39 definition does not include a sentence 
referring to the ``common wheelchair'' term. This term was taken from 
Access Board guidelines relating to the design and construction of 
surface transportation vehicles, and it is not clear that the term has 
a relevant application in the passenger vessel context. Moreover, the 
inclusion of the term in part 37 has been problematic, in that it has 
led to unanticipated operational applications of what was intended to 
be a design standard.

Section 39.5 To whom do the provisions of this Part apply?

    The Department is applying the provisions of this Part to all 
passenger vessels, regardless of size. There are three major exceptions 
to this general coverage. First, while all U.S.-flagged vessels would 
be covered, coverage of foreign-flag vessels would be limited to those 
that pick up or discharge passengers in the U.S. For example, suppose a 
foreign-flag cruise PVO operates two ships. One of them sails only 
among ports in Europe. Another picks up passengers in Miami and cruises 
to several Caribbean ports. The latter would be covered and the former 
would not. Several commenters recommended for the rule to apply to all 
domestic and foreign cruise ships, including river cruise ships, 
regardless of whether the ships picks up passengers in the U.S. The 
Cruise Lines International Association, Inc. disagreed, and commented 
that the rules should not cover foreign flag cruise ships that do not 
embark, disembark, or stop at any U.S. ports because Congress has not 
made a ``clear statement'' of intent that the ADA apply 
extraterritorially. This rule covers only those vessels that pick up or 
discharge passengers in the U.S.
    The second exception will address vessel accessibility standards. 
To this end, this rule reserves paragraph (c) to state the scope of the 
applicability of these standards in the future. As noted above, some 
comments urged exempting small vessels from the rules due to the 
difficulty in making physical modifications to such vessels. The 
Department notes that draft Access Board vessel guidelines would limit 
their application to vessels permitted to carry over 150 passengers or 
over 49 overnight passenger capacity categories, as well as tenders 
with a capacity of 60 or more and all ferries. The Department would 
follow the Access Board's final guidelines, when they are issued, with 
respect to coverage.
    While exemptions or scoping provisions based on vessel size might 
be appropriate for accessibility standards, the Department believes 
that there is no basis by which to justify an exemption from the 
nondiscrimination provisions not related to such standards. The 
provisions of this rule are do not require physical changes to a 
vessel, but rather concern an operator's policies to ensure treatment 
for disabled passengers that is consistent with the intent of the ADA.
    The third exception, as noted above, is that the rule will apply 
only to private entities primarily engaged in the business of 
transporting people, and not to private entities not primarily engaged 
in the business of transporting people. This change eliminates from 
coverage the vast majority of small private entities to which the NPRM 
would have applied.

Section 39.7 What other authorities concerning nondiscrimination on the 
basis of disability apply to owners and operators of passenger vessels?

    This section simply points out that recipients of Federal financial 
assistance (e.g., some public ferry operators) are, in addition to part 
39, subject to section 504 of the Rehabilitation Act and DOT 
implementing rules. Department of Justice (DOJ) ADA regulations, as 
applicable, also cover PVOs.

Section 39.9 What may a PVO of a foreign-flag vessel do if it believes 
that a provision of a foreign nation's law prohibits compliance with a 
provision of this Part?

    Section 39.9, which parallels language in the Department's Air 
Carrier Access Act (ACAA) rules for foreign carriers, provides a waiver 
mechanism for situations in which a PVO for a foreign-flag vessel 
believes that a binding legal requirement of a foreign nation (or of an 
international agreement) precludes compliance with a requirement of 
Part 39. This provision concerns binding legal requirements, not 
guidance or codes of suggested practices. It concerns situations in 
which such a binding legal requirement actually precludes compliance 
with a Part 39 provision (e.g., Part 39 says ``You must do X,'' while a 
binding foreign legal requirement says ``You must not do X''), as 
opposed to a situation where foreign law authorizes a practice that 
differs from a Part 39 requirement (e.g., Part 39 says ``You must do 
Y,'' while a foreign law says ``You may do Z''). In a situation where 
the Department grants a waiver, the Department would look to the PVO 
for a reasonable alternative means of achieving the purpose of the 
waived provision.
    To avoid placing PVOs in a situation in which they potentially 
would be required to comply with contradictory legal requirements, this 
rule provides PVOs 90 days from the publication of the final rule to 
file a waiver request. If the PVO files a waiver request meeting the 
requirements of this section within that period, it could continue to 
implement policies that it believes are consistent with the foreign law 
in question pending the Department's decision on the waiver request.
    A commenter suggested that an international governing body could be 
set up to mediate issues of conflict between foreign law and U.S. law. 
The same commenter recommended that such a governing body could also 
evaluate a PVO's alternative means of compliance under the standard of 
``best interest of the person with a disability.'' At this time, the 
Department does not believe that the establishment of procedures other 
than those proposed in the NPRM is appropriate or necessary. These 
decisions are properly made by the Department as part of its ADA 
responsibilities. The parallel provisions under the Air Carrier Access 
Act have worked well with respect to international air carriers.
    Proposed section 39.11, concerning equivalent facilitation, has 
been reserved since it relates mainly to future standards based on the 
Access Board's vessel design and construction guidelines, which have 
not yet been formally proposed or adopted by the Access Board. The 
Department anticipates proposing such a provision in a subsequent NPRM 
to adopt Access Board guidelines.

[[Page 38882]]

Section 39.13 When must PVOs comply with the provisions of this Part?

    As a general matter, PVOs would have to begin to comply with the 
provisions of this rule as soon as the rule becomes effective. There is 
no evident reason why PVOs should need a lengthy phase-in period to 
comply with requirements pertaining to denials of transportation on the 
basis of disability, extra or special charges, attendants, advance 
notice, waivers of liability, etc. Indeed, a significant number of PVO 
commenters said that their practices and policies are already 
consistent with the requirements the Department is making part of this 
rule.
    Comments were received urging a range of options from requiring 
immediate compliance with the rule to delaying the rule until it can be 
issued with the Access Board's final standards and so that training can 
be conducted for implementing the rule. As the final rule does not 
include training requirements and no vessel modifications are required 
as a result of this rule, the Department believes that simply defining 
nondiscrimination policies under the ADA does not require any lead time 
for implementation.

Section 39.21 What is the general nondiscrimination requirement of this 
Part?

    The provisions of this section are parallel to the general 
nondiscrimination requirements in the Department's other disability-
related rules. We call attention particularly to paragraph (b), which 
would require reasonable modification of PVOs' otherwise acceptable 
general policies where doing so is necessary to accommodate the needs 
of a particular individual or category of individuals with a 
disability. Such modification is required unless it would require a 
fundamental alteration in the nature of the PVO's services, facilities, 
etc. The final rule modifies the NPRM's language to reflect 
distinctions between the reasonable modification obligations of public 
and private entities, consistent with DOJ rules on the subject.
    A few commenters stated that the language relating to ``reasonable 
modifications'' was not congruent with other Departmental ADA 
rulemakings and that the requirement to make reasonable modifications 
exceeds the Department's authority under the ADA. ``Reasonable 
modifications'' is a central idea of disability law, occurring in many 
applications of section 504 of the Rehabilitation Act. A similar 
provision was adopted in a rulemaking concerning the Air Carrier Access 
Act, and it has caused no problems of which we are aware. Department of 
Justice (DOJ) ADA rules have long included the concept. While the 
Department's surface transportation ADA rule (49 CFR part 37) does not 
presently include this language, the Department, in a pending 
rulemaking concerning part 37, has proposed to add it. The Department 
believes it is appropriate for a PVO to modify policies so that 
accessible service is actually made available to passengers, absent a 
alteration. Commenters were unable to provide any examples of how doing 
so would be inimical to passenger vessel operations or safety.

Section 39.23 What are the requirements concerning contractors to 
owners and operators of passenger vessels?

    As noted above, contractors and other persons whom the PVO uses to 
provide services to passengers ``stand in the shoes'' of the PVO with 
respect to the requirements of this rule. The PVO must ensure, through 
provisions in the contracts or other agreements with such third 
parties, that the third parties comply with applicable requirements.
    Commenters were concerned with the speed at which contracts must be 
updated to reflect contractors' duties on behalf of a PVO with respect 
to the ADA. All contracts must be updated within one year from the 
effective date of this rule or the contract anniversary date, whichever 
one comes sooner. The Department believes this amount of time is 
sufficient for compliance.
    Another commenter suggested excluding contractors outside of the 
U.S. from the requirements of the rule. This final rule does not apply 
to contractors who work with PVOs outside of the U.S. However, PVOs are 
encouraged to voluntarily contract for compliance with the ADA to the 
maximum degree that foreign/international laws will allow.
    In reference to paragraph (b), the same commenter suggested that 
the requirement to include ``assurance of compliance'' language in 
contracts should not be applied to contracts between cruise lines and 
their U.S.-based contractors. The commenter expressed that modifying 
contracts to add this required language would cause an ``undue burden'' 
on cruise lines and would be unnecessary due to existing ADA 
requirements applicable to U.S.-based contractors. There is no showing 
in any of the comments that the task of making such a modification to 
the contract would be a significant barrier at all, let alone an 
``undue burden.'' If, as the commenter suggests, the contractors are 
already in compliance with ADA obligations, the burden on them would be 
negligible.
    Another commenter questioned whether paragraph (b) implicitly 
requires the creation of a written contract where the PVO and 
contractor have been operating without such a contract. There is no 
mandate for a written contract, though good business practices often 
involve written contracts. However, the absence of a written contract 
does not excuse noncompliance by a PVO resulting from the action of a 
third party acting on its behalf. The Department does not need to 
receive copies of written agreements between a PVO and a contractor.

Section 39.25 May PVOs refuse to provide transportation or use of a 
passenger vessel on the basis of disability?

    The Department views any policy or action prohibiting a person with 
a disability from being transported on or otherwise using a passenger 
vessel as discriminatory on its face. If a PVO says to a person, 
literally or in effect, ``you are a person with a disability, therefore 
stay off my vessel,'' the PVO would violate this rule.
    The Department recognizes that some disabilities may make other 
passengers uncomfortable. That is not a justifiable reason to deny 
access to the vessel to persons with these disabilities (see paragraph 
(b)). Only if there is a genuine safety issue, meeting the stringent 
criteria outlined in section 39.27, would the PVO be justified in 
excluding a person because the person has a disability. Even in that 
case, the PVO would have to provide a written or e-mail explanation to 
the person within 10 days of the denial (paragraph (c)).
    Two commenters indicated that historic vessels may not be able to 
meet the requirements of this section. Another commenter inquired as to 
whether the section allows the PVO to deny a ``wheelchair-bound'' 
passenger access to a second deck where the deck is only accessible by 
stairs, or from going to a first deck dining space when there is no 
remaining accessible space in the dining room. The Department 
recognizes that, particularly for vessels built before the adoption of 
physical accessibility standards, some vessels will not enable some 
persons with certain disabilities to travel on or to obtain some 
services aboard the vessels. For example, an older vessel might not 
have any overnight cabins of a size that could accommodate a person 
using a power wheelchair, or might have a dining area that is on a deck 
that can be accessed only by using steps. The

[[Page 38883]]

Department would not, in such a situation, regard a PVO's statement to 
a passenger about existing physical barriers as equivalent to a policy 
denying transportation on or use of the vessel on the basis of 
disability.
    Another commenter suggested using a ``strict scrutiny'' standard 
for determining whether a vessel's explanation for denying access is 
reasonable. The ``strict scrutiny'' legal standard is used for 
assessing constitutional law issues, and it is not suitable for this 
situation.
    Many of the comments regarding this section ultimately addressed 
vessel construction and the difficulty involved in handling numerous 
passengers with mobility aids. This rulemaking imposes no duty on PVOs 
to make alterations to their vessels to accommodate disabled 
passengers, beyond existing ADA requirements for Title II (program 
accessibility) or Title III (readily achievable barrier removal) 
entities.
    As was pointed out by commenters in the public meeting, passenger 
vessels operate a customer service oriented business that necessitates 
accommodating passenger requests whenever possible. However, this rule 
does not call on PVOs to do the physically impossible. For instance, 
suppose a vessel has entries/corridors that are 30 inches wide and a 
passenger uses a mobility aid that is 36 inches wide. The passenger is 
not able to be physically accommodated through those corridors using 
this device and the PVO would not be in violation of this rule. (Of 
course, if the passenger chose to use an alternative mobility device 
that could fit the space, the passenger would have to be provided 
access using the alternative device.)

Section 39.27 Can a PVO take action to deny transportation or restrict 
services to a passenger with a disability based on safety concerns?

    This section states that a PVO can deny transportation or restrict 
services to a person with a disability when necessitated by legitimate 
safety requirements. Legitimate safety requirements cannot be based on 
mere speculation, stereotypes, or generalizations about individuals 
with disabilities. They can be based only on actual, demonstrable 
safety risks. The rule would also permit a PVO to deny or restrict 
transportation of a passenger with a disability in the event that the 
passenger posed a direct threat to others. While there is no 
recordkeeping requirement in the rule, a PVO that claims legitimate 
safety requirements as the basis for any restriction on a passenger 
with a disability should be prepared to justify the actual safety basis 
for its restriction. This would be an important issue in the review of 
a complaint by the cognizant Federal agency.

Section 39.29 May PVOs limit the numbers of passengers with a 
disability on a passenger vessel?

    The Department views any policy limiting the number of passengers 
with a disability on a vessel as discriminatory on its face. However, 
the cruise industry and several PVOs commented that limiting the number 
of passengers with mobility aids might be necessary based on what a 
vessel can accommodate either physically or with current staff levels. 
The Department understands these comments but believes it is necessary 
to differentiate between disabled individuals with mobility impairments 
as opposed to persons with other disabilities such as hearing or vision 
impairments. PVOs do not have any need to limit the number of disabled 
individuals without a mobility impairment.
    However, the Department does recognize that vessel weight and 
stability requirements may necessarily limit the number of disabled 
passengers requiring wheelchairs or other powered mobility devices that 
can safely be physically accommodated on board at any one time. For 
example, if there are already two individuals on board the vessel using 
power wheel chairs, and accommodating a third such individual would 
create weight or stability issues that would threaten the safety of the 
vessel and persons aboard it, the Captain could deny transportation to 
the third individual on the basis of a legitimate safety requirement. 
The Department anticipates that this issue would arise only on 
relatively small vessels (e.g., a small water taxi), not on larger 
vessels (e.g., a cruise ship, the Staten Island ferry).
    The Department also recognizes that, on some smaller vessels, the 
physical limitations of the vessel may impose limits on the number of 
wheelchairs or other mobility devices that can physically fit. This 
provision is not intended to require, for example, that 10 wheelchairs 
must be accommodated on a vessel where there is physical space for only 
four.

Section 39.31 May PVOs limit access to transportation on or use of a 
vessel on the basis that a passenger has a communicable disease?

Section 39.33 May PVOs require a passenger with a disability to provide 
a medical certificate?

    These related provisions are intended to limit PVOs' discretion to 
impose requirements or restrictions on passengers on medical grounds. 
Most disabilities are not medical conditions: A person is not ill 
because he or she cannot see, hear, or walk, and applying a medical 
model to many disabilities is inappropriate. On the other hand, people 
with some communicable diseases may have a disability as the result of 
their disease and can pose health threats to others on board the 
vessel.
    With respect to communicable diseases, the PVO cannot deny or 
restrict transportation on or use of a passenger vessel on the basis 
that the passenger has a communicable disease, unless the PVO acts (1) 
on the basis of a determination by a public health authority or (2) the 
PVO is able to make a two-pronged determination. One prong is the 
severity of the health consequences of a disease; the other is whether 
the disease can readily be communicated by casual contact. Only if a 
disease has both severe consequences to the health of other persons and 
is readily communicable by casual contact could a PVO legitimately deny 
or restrict transportation.
    For example, HIV/AIDS has severe health consequences, but is not 
readily communicable by casual contact. The common cold is readily 
communicable by casual contact but does not have severe health 
consequences. Consequently, having a cold or AIDS would not be a basis 
on which a PVO could limit a person's transportation on or use of a 
vessel. Probably the best recent example of a disease that meets both 
criteria is Severe Acute Respiratory Syndrome (SARS), and a readily 
human-to-human transmissible flu pandemic with severe effects on 
persons contracting the disease or an outbreak of norovirus would also 
qualify.
    It should be noted that there could be some circumstances in which 
the two criteria mentioned in this section could interact. For example, 
a public health authority could issue an alert or recommendation 
concerning the travel by people with a particular disease, but not make 
a determination that such persons could not travel at all. In these 
circumstances, a PVO could still restrict travel by persons with the 
disease if it met both the casual contact

[[Page 38884]]

transmission and severe health consequences prongs of the regulatory 
test in this section.
    It is important that, in addressing communicable disease issues, 
PVOs act in a nondiscriminatory way. Policies for excluding passengers 
on the basis of communicable disease or illness must not be exercised 
to exclude disabled passengers disproportionately. For example, if only 
deaf individuals with norovirus are denied boarding, while hearing 
passengers with the same condition are allowed to board, there would be 
a violation of this rule.
    In any case in which a medical certificate may be required or a 
limitation on a passenger's travel be imposed because of a communicable 
disease, the limitation would have to be the minimum needed to deal 
with the medical issue involved. For example, the PVO would not be 
authorized to deny transportation to an individual if a less drastic 
alternative, such as the passenger's use of medical measures that would 
reduce the likelihood of the transmission of an illness, is available.
    If a PVO refuses transportation to a passenger with a disability on 
grounds related to a communicable disease or other medical condition, 
the PVO must permit the passenger to travel or use the vessel (or a 
comparable vessel for a comparable trip) at a later available date 
within one year at the same price as the original trip or, at the 
passenger's discretion, provide a refund. If there is not an available 
date for the passenger to be rebooked within one year, a refund would 
have to be provided.
    Section 39.31 would prohibit a PVO from requiring a medical 
certificate in any situation other than the communicable disease 
situation discussed in section 39.31. This represents a change from the 
NPRM, in which the Department proposed to permit medical certificates 
in circumstances such as the use of personal oxygen supplies or a 
determination by vessel personnel that an individual could not travel 
successfully without requiring extraordinary medical assistance. The 
Department believes that, in the passenger vessel context (as distinct 
from airline service, on which these proposals were modeled), the risks 
that these proposals were intended to address are much less probable, 
and that imposing medical certificate requirements on passengers are 
consequently not justified.
    Two commenters objected to allowing the PVO to require medical 
certification from a disabled individual under any circumstance. Other 
commenters were in favor of requiring medical documentation under all 
circumstances. Another commenter suggested allowing PVOs to restrict 
the number of passengers with disabilities that are at a very high risk 
of requiring emergency and/or extensive medical care during the course 
of the voyage. As noted above, the Department believes that provisions 
of this kind are unnecessary and could lead to unfair exclusions or 
restrictions for passengers. We therefore did not include such 
provisions in the final rule.

Section 39.35 May PVOs require a passenger with a disability to provide 
advance notice that he or she is traveling on or using a passenger 
vessel when no special services are sought?

Section 39.37 May PVOs require a passenger with a disability to provide 
advance notice in order to obtain particular auxiliary aids and 
services or to arrange group travel?

    These related sections make clear that it is never appropriate for 
a PVO to require a person to provide advance notice simply that he or 
she is planning to travel, just because he or she has a disability. The 
PVO's nondiscriminatory policies and practices should be in place, 
regardless. On the other hand, there may be specific circumstances in 
which provision of advance notice is needed. These include to groups of 
10 or more passengers with disabilities traveling together and the 
provision of a particular auxiliary aid or service (e.g., a sign 
language interpreter). Numerous comments were received on these 
provisions. The main thrust of these comments was that PVOs need to 
know what sort of disabilities their passengers have in order to 
adequately plan to accommodate them from both a safety perspective and 
to provide them the best experience possible. The Department is 
sympathetic to this position and seeks to balance the right of privacy 
of the passengers with the need of PVOs to plan to accommodate and 
provide services to passengers. Passengers with a disability are not 
required to identify themselves as disabled when they are seeking no 
special privileges or services or auxiliary aids or services. PVOs can 
legitimately suggest that passengers with disabilities voluntarily 
self-disclose needs for special privileges or services, and it may be 
prudent for passengers to do so in order to avoid confusion.
    However, with respect to groups of passengers with disabilities 
traveling together, a passenger may be required to identify that need 
to the PVO at the time of reservation. Likewise, a passenger seeking a 
particular auxiliary aid or service may be required to provide advance 
notice. PVOs' reservation and information systems must ensure that when 
passengers provide this notice, the information is transmitted clearly 
and on time to persons who need to provide the services involved. PVOs 
should consider soliciting information regarding the need for special 
assistance from all persons making a reservation.

Section 39.39 How do PVOs ensure that passengers with disabilities are 
able to use accessible cabins?

    The Department anticipates that the forthcoming Access Board 
guidelines will address the scoping and dimensions of accessible cabins 
on new or altered vessels. While this rule consequently does not 
require vessels with overnight accommodations to have accessible 
cabins, we recognize that cabins identified by PVOs as accessible do 
exist on some vessels. This section concerns how PVOs would make sure 
that passengers with disabilities actually are able to get those 
accessible cabins. The Department recognizes that non-disabled 
passengers, understanding that accessible cabins are somewhat more 
roomy than other cabins in the same class of service, may sometimes 
seek to reserve those cabins, making them unavailable to passengers 
with disabilities.
    The NPRM proposed a system in which a passenger requesting an 
accessible cabin would be required, at the PVO's request, to present 
documentation of the physical condition that necessitates use of an 
accessible cabin, at which point their reservations would trump even 
earlier reservations for an accessible cabin made by non-disabled 
passengers, though no passengers would ever be ``bumped'' from the 
voyage as a result. Some commenters objected to having to provide 
medical documentation. Others said that passengers with disabilities 
should be able to book an accessible cabin up to the day of sailing, 
while other commenters stated that reservations for accessible cabins 
should be made within a set time frame (i.e., 72 hours) before 
departure.
    In response to comments, the Department is deleting the proposed 
requirement that passengers provide documentation of their disability 
and revising the reservation requirements. Instead, the final rule 
includes what we believe is a simpler system, in which accessible 
cabins must be withheld from reservation until all cabins in that class 
of service have been reserved. If a passenger with a disability 
requests a remaining accessible cabin, then the

[[Page 38885]]

passenger with a disability gets that cabin. However, once all the 
other, non-accessible cabins have been booked, the PVO may, if it 
chooses, book the cabins for non-disabled passengers.
    While the final rule does not require or permit medical 
documentation for persons reserving accessible cabins because they have 
a disability, PVOs have to ask persons seeking to reserve such a cabin 
whether they have a disability that requires use of the accessibility 
facilities provided in the cabin. In addition, PVOs may require a 
written attestation from the passenger that her or she needs the 
accessible features provided in the cabin. These provisions are modeled 
on an approach that is sometimes used concerning reserving accessible 
seating sports stadiums. PVOs must also investigate the potential 
misuse of accessible cabins and can take action against abusers (e.g., 
a PVO may deny transportation to a non-disabled individual who books an 
accessible cabin on the basis of a misrepresentation that the 
individual has a disability).
    The Department recognizes that some existing vessels may not have 
accessible cabins in all classes of service. PVOs, however, cannot 
properly impose costs on disabled passengers because vessels lack 
accessible cabins in some classes of service. If a passenger with a 
disability wants to travel in a less costly class of service, rather 
than a more expensive class, but the PVO has chosen to make adequate 
numbers of accessible cabins available only in more other expensive 
classes of service, the PVO must make accessible cabins available to 
passengers with disabilities at no more than the cost of the class of 
service the passenger requests. Under a nondiscrimination rule, 
disabled passengers, like all other passengers, should be able to 
purchase accommodations they can use at a price they are willing to 
pay.

Section 39.41 May a passenger with a disability be required to travel 
with another person?

    The Department regards requiring a passenger with a disability to 
travel with another person, just because that person has a disability, 
as discriminatory on its face. Such a requirement is not only an 
affront to the independence and dignity of the passenger, but may 
sometimes make travel cost-prohibitive. In the NPRM, the Department 
proposed allowing PVOs to require a personal or safety assistant in 
some circumstances. This proposal was based on a parallel section of 
the ACAA rule. However, in the specific situation of passenger vessel 
transportation (which differs from air travel in a number of important 
respects), the Department believes that allowing PVOs to require an 
assistant could lead to abuse, and is not likely to be necessary in any 
event. The rule clearly states that crew members are not required to 
assist passengers with personal functions like eating, dressing, or 
toileting. Passengers who need assistance with these functions will 
therefore be aware that they cannot expect crew members to perform 
these functions and, consequently, will choose to travel with a 
companion if they need to. Vessel personnel are likewise trained to 
perform safety functions for all passengers.
    One commenter asked if the PVO is allowed to require a personal 
caretaker for each disabled person where a group of passengers with a 
disability intend to bring only one caretaker for the group. Given that 
the rule does not permit requirements to travel with an attendant at 
all, the PVO could not impose such a requirement. Another commenter 
stated that this provision of the rule places all responsibility for 
care on the PVO regardless of the credibility of the passenger's claim 
of independence. Again, vessel personnel do not have personal care 
obligations with respect to passengers with disabilities. We do not 
believe that a passenger with a disability who cannot eat without 
assistance is likely to embark on a lengthy voyage without someone to 
help with eating.

Section 39.43 May PVOs impose special charges on passengers with a 
disability for providing services required by this rule?

    Price discrimination is forbidden. PVOs may not charge higher fares 
to passengers with disabilities than to other passengers. PVOs cannot 
impose surcharges on passengers with disabilities, or any sort of extra 
or special charges for facilities, equipment, accommodations, or 
services that must be provided to passengers because they have a 
disability. This prohibition would apply not only to formal charges 
made by the PVO itself, but to informal charges that PVO personnel 
might seek to impose or pressure passengers with a disability to pay. 
For example, if a vessel cannot be boarded by a wheelchair user without 
assistance (e.g., because the boarding ramp slope is too steep), it 
would not be appropriate for vessel personnel who provide boarding 
assistance to ask, pressure, or imply that the wheelchair users should 
provide a tip for the assistance.
    One of the important implications of the prohibition on price 
discrimination concerns situations in which an accommodation for a 
person with a disability is available only in a more expensive type or 
class of service than the passenger requests. The most important 
application of this principle concerns reservations for accessible 
cabins, which are governed by section 39.39. However, the same 
principle would apply to other services or accommodations on board some 
ships as well. The only comment regarding this section stated that 
passengers requiring an accessible cabin should be provided the same 
pricing options available to passengers who do not require an 
accessible cabin. This section as written ensures this to be the case.

Section 39.45 May PVOs impose restrictions on passengers with a 
disability that they do not impose on other passengers?

Section 39.47 May PVOs require passengers with a disability to sign 
waivers or releases?

    These related sections (i.e., sections 39.45 and 39.47) would 
forbid restrictions on passengers with a disability that are not 
imposed on other passengers, including requirements to sign waivers or 
releases either for themselves or their assistive devices. The kinds of 
restrictions these sections address are restrictions created by PVO 
policy. The Department is aware that, particularly pending the adoption 
of passenger vessel physical accessibility standards, portions of 
existing vessels may well be inaccessible to some passengers with a 
disability. Inaccessibility of this kind would not violate these 
sections, but an administrative rule declaring certain portions of a 
vessel off limits to a passenger with a disability would, if that rule 
did not apply equally to all passengers. Likewise, waivers of liability 
or releases not required of all passengers cannot be required of 
passengers with a disability (including, but not limited to, waivers or 
releases concerning mobility devices).

Section 39.51 What is the general requirement for PVOs' provision of 
auxiliary aids and services to passengers?

    This section requires PVOs to effectively communicate with 
passengers with disabilities, through the use of auxiliary aids or 
services where needed. This obligation includes effectively conveying 
information so that both the passenger and the PVO can be understood 
and understand what is being communicated. The language of the final 
rule distinguishes between the somewhat different obligations of public 
and private entities with regard to the

[[Page 38886]]

provision of auxiliary aids and services, and states the fundamental 
alteration and undue burden exception to these requirements. PVOs, not 
individuals with disabilities, have the responsibility to provide 
needed auxiliary aids and services.
    ``Undue burden'' is one of the fundamental concepts in disability 
law, applying in a variety of contexts. The basic definition of what 
constitutes an undue burden is stated in the Department of Justice 
Title III rule, 28 CFR 36.104, as being something that involves 
significant difficulty or expense. In determining whether an action 
would result in an undue burden, the factors that the DOJ definition 
lists, adapted to the passenger vessel context, include

    (1) The nature and cost of the action needed to comply with Part 
39 requirements;
    (2) The overall financial resources of the PVO involved, the 
number of persons employed by the PVO; the effect on expenses and 
resources; legitimate safety requirements that are necessary for 
safe operation of the vessel; or the impact otherwise of the action 
upon the operation of vessel;
    (3) The geographic separateness, and the administrative or 
fiscal relationship of PVO in question to any parent corporation or 
entity;
    (4) If applicable, the overall financial resources of any parent 
corporation or entity; the overall size of the parent corporation or 
entity with respect to the number of its employees; the number, 
type, and location of its facilities; and
    (5) If applicable, the type of operation or operations of any 
parent corporation or entity, including the composition, structure, 
and functions of the workforce of the parent corporation or entity.

DOJ provides further information about its application of the concept 
in the preamble to its Title III regulation (discussion of 28 CFR 
36.303(f), see http://www.ada.gov/reg3a.html).
    It must be emphasized that because something creates some degree of 
cost and difficulty, it is not necessarily an undue burden. There are 
``due burdens,'' costs and difficulties that must be borne in order to 
afford nondiscriminatory service to individuals with disabilities. As 
the factors in the DOJ definition indicate, what may be an undue burden 
for a small entity (e.g., because it would ``break the bank'' for that 
entity, making profitable operation impossible) may be a ``due burden'' 
that would be ``small change'' to a larger entity. Requiring an 
extensive and very expensive service to meet a minor, transitory need 
might be undue because it is disproportionate. ``Undue burden'' 
determinations inevitably involve the exercise of informed judgment 
about the facts of a given situation, but the bar is intended to be 
high: The concept is not intended to provide a free pass to entities to 
avoid nondiscrimination obligations. It should be emphasized, in the 
context of auxiliary aids and services, that even if one particular 
auxiliary aid or service creates an undue burden, the PVO retains an 
obligation to provide effective communication through use of another 
auxiliary aid or service that is not unduly burdensome.
    One commenter said that, in order for a PVO to effectively 
communicate with individuals with hearing and visual impairments, the 
PVO should install advanced technology for videophones and instant 
messaging on its vessel. The Department believes it would be premature, 
as well as outside the scope of the notice for this rulemaking, to 
require a particular technology or vessel communication system at this 
time, but this is an issue that could be addressed as part of the 
future accessibility standard rulemaking.

Section 39.53 What information must PVOs provide to passengers with a 
disability?

    The Department recognizes that some existing vessels may not be 
able to be made accessible to people with mobility impairments and that 
some ports (e.g., some foreign ports at which a cruise ship calls) may 
not be usable by persons with some disabilities. This section requires 
PVOs to inform people with disabilities, accurately and in detail, 
about what they can expect.
    Such information includes: (1) Any limitations of the usability of 
the vessel or portions of the vessel by people with mobility 
impairments; (2) any limitations on the accessibility of boarding and 
disembarking at ports at which the vessel will call (e.g., because of 
the use of inaccessible lighters or tenders as the means of coming to 
or from the vessel); (3) any limitations on the accessibility of 
services or tours ancillary to the transportation provided by the 
vessel concerning which the PVO makes arrangements available to 
passengers; (4) limitations on the ability of passengers to take a 
service animal off the vessel at a foreign port (e.g., because of 
quarantine regulations); and (5) the particular auxiliary aids or 
services available to passengers with hearing or vision impairments for 
each of the various on-board activities and services that require 
advance notice in order to be made available. With this information, 
potential passengers with a disability can make an informed choice 
about whether seeking transportation on a particular vessel is worth 
their while.
    One commenter suggested that providing information about boarding 
and disembarking only to those passengers that self-identify as having 
a disability may cause confusion and bad feelings among those 
passengers with disabilities that did not self-identify. Moreover, the 
commenter recommended making such information available in all 
promotional materials including pre-boarding information, Web site, 
advertisements, the Daily Program, and in all brochures. The Department 
believes that there is merit in providing such information generally to 
all passengers. However, if a PVO provides this information to people 
who ask for it in order to accommodate a disability, that is sufficient 
to meet the PVO's obligation under the rule.

Section 39.55 Must information and reservation services of PVOs be 
accessible to individuals with hearing or vision impairments?

    This section applies to information and reservation services made 
available to consumers in the United States, regardless of the 
nationality of a PVO or where the personnel or equipment providing the 
services are themselves based. If a PVO provides telephone reservation 
or information service to the public, the PVO must make this service 
available to individuals who are deaf or hard-of-hearing through use of 
a text telephone (TTY) or a TTY relay service (TRS). In response to 
comments received on this section, the Department will not require each 
PVO to have access to a text telephone, so long as they can receive 
calls through a text telephone relay service.
    One commenter stated that this provision should include a Web 
accessibility requirement following the World Wide Web Consortium 
standards. The Department is aware that Web accessibility is an 
important issue for people with disabilities, and we will address this 
subject further during the next phase of passenger vessel rulemaking.
    Another commenter recommended that individuals such as travel 
agents and boat crew who interact with consumers should receive 
training on what disability access is available. In reference to travel 
agents, the Department believes this is outside the scope of this 
rulemaking. As for employees, comments from PVOs asserted that crews 
are already trained to accommodate passengers with disabilities. The 
Department may further consider training requirements for crews during 
the development of the next phase of the passenger vessel rulemaking.

[[Page 38887]]

Section 39.57 Must PVOs make copies of this rule available to 
passengers?

    PVOs must maintain a current copy of the text of this rule on each 
vessel and in every terminal which they serve. The copy may be a paper 
copy or a digital copy so long as it can be easily referenced by PVO 
employees and by passengers upon their request. Commenters supported 
this section as written. Private sector PVOs who do not receive Federal 
financial assistance are not required to make a copy of the rule 
available in languages other than English. However, any PVOs that do 
receive Federal financial assistance should be aware of their 
obligations concerning persons with lower English proficiency under 
Title VI of the Civil Rights Act of 1964, as amended, and applicable 
Executive Orders and regulations. As part of a PVO's obligation to 
communicate effectively, a PVO must make copies available in accessible 
formats on request, subject to the fundamental alteration provisions of 
section 39.51(c). If provision of the information is not feasible in 
one accessible format, because it would involve a fundamental 
alteration, then another accessible format would have to be made 
available.

Section 39.61 What requirements must PVOs meet concerning the 
accessibility of terminals and other landside facilities?

    This section applies to landside facilities that the PVO owns, 
leases, or controls in the U.S. It requires compliance with the same 
ADA obligations as apply to other types of transportation facilities 
under 49 CFR part 37.
    If the PVO does not own, lease, or control a facility, then the 
requirements of this section do not apply to it (there may well be 
situations in which a public entity or another private entity would own 
or control the facility, in which case the other entity would have its 
own ADA and/or section 504 obligations). In the case of a foreign 
facility, where ADA or section 504 rules would not apply in their own 
right, facility accessibility would then become a matter of the law of 
the country in which the facility is located. Commenters recommended 
that this section should be applied to facilities both inside and 
outside of the US. However, as noted in the discussion of the 
definition of ``facility,'' the Department can apply this regulation 
only to facilities located in the U.S, since the ADA does not apply to 
landside facilities in foreign territory.
    The rule makes a familiar three-part breakdown of accessibility 
responsibilities for covered facilities, similar to that found in DOT's 
existing ADA regulations (see 49 CFR part 37, subpart C). New 
facilities must meet accessibility standards from the beginning. In the 
case of an alteration, the altered portion of the existing facility has 
to be brought up to the same accessibility standards applicable to new 
facilities. For existing facilities not otherwise being altered, the 
PVO has to ensure that the facility is able to be used by a passenger 
with a disability to access the PVO's vessel. This could be achieved 
through a variety of means. As under other applications of the ADA, 
requirements for public sector entities under Title II and private 
sector entities under Title III differ somewhat with respect to 
existing facilities (i.e., program accessibility vs. readily achievable 
barrier removal). These differences are stated in paragraph (c) of this 
section.
    We note that there may be many situations in which a PVO shares 
accessibility responsibilities with another party. For example, a PVO 
may lease a portion of a port facility that is owned by a private or 
public entity. The PVO has responsibilities under this Part; the other 
entity may have responsibilities in its own right under Title II or III 
or the ADA and under section 504. In these cases, it would be up to the 
parties involved to allocate the responsibilities among themselves, so 
that they jointly ensure that accessibility requirements are met for 
the facility. Where the PVO does not own, lease, or control a facility, 
the PVO has no responsibility for making accessibility changes under 
this rule.
    One commenter recommended that facilities used by small vessels 
should be exempt from this section. The Department again finds no basis 
for limiting the applicability of this provision based on vessel size. 
A landside facility operated by a small vessel PVO has no different 
status from one operated by a large PVO for ADA or section 504 
purposes.

Section 39.63 What modifications and auxiliary aids and services are 
required at terminals and other landside facilities for individuals 
with hearing or vision impairments?

    This section specifies that effective communication that has to be 
provided at terminals and other landside facilities to ensure that 
persons with sensory impairments will be able to request and receive 
the information otherwise available to the public, concerning such 
subjects as ticketing, fares, and schedules. A few commenters said that 
PVOs should not have to make changes to facilities that the PVO does 
not own or operate. Again, where the PVO does not own, lease, or 
control a facility, the PVO has no responsibility for making 
accessibility changes to the facility under this rule. Moreover, 
effective communication can be achieved through means, like auxiliary 
aids and services, that would not require modifications to facilities 
where a PVO is not able to make changes to the facility.
    The Department proposed a one-year phase-in for both existing and 
new facilities in order to allow PVOs to explore and implement the best 
communications options for their customers and business operations. One 
commenter expressed that there should not be a phase-in period for this 
provision and that it should become effective immediately due to 
current technology and existing ADA requirements. The Department 
agrees, and in this final rule, makes this provision effective when the 
rule goes into effect.

Subpart E--Accessibility of Vessels

    This subpart is reserved. It is a place-holder for the subsequent 
inclusion of passenger vessel physical accessibility standards based on 
future Access Board guidelines. We emphasize that this rule does not 
create standards for the design and construction of vessels and does 
not impose requirements to alter existing vessels for the purpose of 
accessibility. PVOs remain obligated, of course, to meet existing ADA 
requirements for readily achievable barrier removal (Title III) or 
program accessibility (Title II).

Section 39.81 What assistance must PVOs provide to passengers with a 
disability in getting to and from a passenger vessel?

    This section does not deal with boarding a vessel, as such. Rather, 
it deals with how people get to the point of boarding a vessel, in 
terms of land transfers (e.g., a bus between the airport and the 
terminal) and in actually moving through the terminal and boarding 
process up to the point of getting onto the vessel, where the PVO or a 
contractor to the PVO provides their services. PVOs are responsible for 
making sure that these services are accessible to people with 
disabilities. Representatives of the cruise line industry commented 
that requiring cruise lines to ensure the accessibility of services 
provided by third-party independent contractors, such as transportation 
to or from the cruise ship, would be unreasonable and a denial of

[[Page 38888]]

due process. This rule does not impose such an obligation if the PVO 
and the service provider, such as a taxi company, have no contractual 
relationship. This provision will not have extraterritorial application 
and will apply only with respect to terminals located in the U.S.

Section 39.83 What are PVOs' obligations for assisting passengers with 
a disability in getting on and off a passenger vessel?

    The optimal solution for boarding a vessel involves a passenger 
with a disability being able to board independently (e.g., via a level-
entry ramp). The Department realizes that there will be many situations 
where this optimal solution does not exist. In these situations, the 
PVO is responsible for providing assistance that enables a passenger 
with a disability to get on or off the vessel. As noted above, this 
rule does not require vessel personnel to do the physically impossible 
with respect to providing boarding assistance. One commenter asked how 
a PVO is to decide between a passenger who is ``not able to get on or 
off a passenger vessel without assistance'' and one who can ``readily 
get on or off a passenger vessel without assistance.'' In such a 
situation the PVO should ask the passenger whether he/she wants or 
needs assistance.
    We note that a number of comments represented that these services 
are already being provided in many instances, so we believe it is fair 
to suggest that this requirement would not create significant added 
burdens for PVOs. We also note that this provision pertains to normal 
boarding and disembarkation from a vessel. Obviously, in the case of an 
``abandon ship'' or other emergency situation, crew should use any 
means necessary to ensure that all passengers can safely evacuate.
    The Department appreciates the comments received regarding 
accessible boarding systems and will use them to inform a future 
rulemaking in this area when the Access Board has provided appropriate 
standards on which a regulation can be based.

Section 39.85 What services must PVOs provide to passengers with a 
disability on board a passenger vessel?

Section 39.87 What services are PVOs not required to provide to 
passengers with a disability on board a passenger vessel?

    These sections concern services that PVOs must provide or, 
alternatively, do not need to provide to passengers with a disability. 
The services a PVO must provide include movement about the vessel, but 
only with respect to portions of the vessel that are not accessible to 
passengers with a disability acting independently. To the extent that a 
PVO makes accessibility improvements to a vessel, the PVO can probably 
reduce its obligation to provide this service. When food is provided to 
passengers, PVO personnel must help passengers with a disability to a 
limited degree, including opening packages and identifying food, or 
explaining choices. Assistance in actual eating or other personal 
functions (e.g., toileting or provision of medical equipment or 
supplies or assistive devices, beyond what is provided to all 
passengers) is not required. Effective communication of all on-board 
information is required.
    Several commenters expressed that PVOs should be required to 
provide closed captioning on televisions, interpreters aboard the 
vessel (in theatres or other ``public'' rooms aboard the vessel), and 
wheelchairs for use by passengers. In this rulemaking, the Department 
is not mandating the use of any specific means of communication, though 
televisions, if provided for passengers, must have closed captioning. 
Otherwise, PVOs' obligation is to provide effective communication, 
through the use of auxiliary aids and services as appropriate for Title 
II or III entities, as the case may be. As for wheelchairs or other 
assistive devices, the Department believes this is the responsibility 
of the passenger and not the PVO, except to the extent that the PVO 
would need a wheeled mobility assistive device to provide boarding 
assistance to an individual who does not normally use such a device but 
could not board the vessel without one (e.g., a semi-ambulatory person 
who can walk on a level surface but would have difficulty with a steep 
boarding ramp).
    One commenter also expressed that sign language interpreters should 
be provided on vessels traveling inside and outside of the U.S. Use of 
sign language interpreters is one type of auxiliary aids and services, 
which may be provided subject to the fundamental alteration provisions 
of section 39.51(c).

Section 39.89 What requirements apply to on-board safety briefings, 
information, and drills?

    This section specifies that safety-related information must be 
communicated effectively to passengers with disabilities. This would 
include the use of auxiliary aids and services, where needed. Safety 
videos would have to be captioned or have an interpreter inset, in 
order to make the information available to persons with impaired 
hearing. Providing safety information in this way is a key component of 
effective communication of this material to individuals who are deaf or 
who have hearing impairments. Passengers with disabilities must be 
enabled to participate in evacuation and other safety drills, and 
information about evacuation and safety procedures would have to be 
kept in locations that passengers with disabilities can access and use. 
Several commenters supported requiring PVOs to utilize flashing lights 
to warn passengers with hearing disabilities of emergencies. This issue 
will be addressed by the Access Board.

Section 39.91 Must PVOs permit passengers with a disability to travel 
with service animals?

    Many persons with disabilities rely on service animals to travel 
and conduct daily functions. This section specifies that PVOs would be 
required to permit service animals to accompany a passenger with a 
disability on board a vessel.
    Foreign countries may limit entry of service animals. This should 
not affect the carriage of service animals on the vessel, however, 
since there is no requirement that the animal leave the ship. 
Limitations on the ability of such an animal to leave the ship at a 
foreign port would be included in the information that a cruise ship 
would provide to potential customers inquiring about an upcoming 
cruise. Consistent with foreign port requirements, the PVO could insist 
that the animal not disembark at a port where doing so is not 
permitted. The user could leave the vessel even if the animal had to 
remain on board, however. PVOs and owners would have to work together 
to ensure that the animal was properly cared for in the owner's absence 
(e.g., in the case of a lengthy excursion away from the vessel).
    Several commenters said that PVOs should permit passengers with 
disabilities to bring their own food and supplies for service animals 
without any charge and provide refrigerators for proper storage of such 
food. PVO commenters said that PVOs should not be required to provide 
food for the animal, stating that there should be no charges for 
passengers using their own animal food and that most cruise lines 
currently follow this practice. Under the final rule, PVOs will not be 
required to provide food for service animals, but passengers may bring 
a reasonable quantity of their own food aboard the vessel at no 
additional charge. PVOs must provide refrigeration space for the animal 
food. This requirement applies

[[Page 38889]]

only to cruise ships or other vessels providing overnight 
accommodations. There is no need for refrigeration on short-voyage 
ferries or water taxis.
    We view a limitation on the number of service animals that can be 
brought on a given voyage as tantamount to a number limit on passengers 
with a disability (i.e., as a number limit), which this rule prohibits. 
It is not evident that having a number of such animals on board a ship 
at a given time would be disruptive to ship operations, and vague 
concerns about adverse effects on the quality of the cruise experience 
for other passengers do not trump the nondiscrimination imperative of 
the ADA.
    While this rule does not require it, the Department believes that 
it is a good idea to permit not only service animals, per se, but also 
emotional support animals (ESA) to accompany passengers with 
disabilities who use them. This can be beneficial to individuals who 
genuinely need the assistance of such an animal to enjoy fully travel 
and services aboard a vessel. We refer PVOs and passengers with 
disabilities to applicable provisions of the Department's Air Carrier 
Access Act regulations and appendices (14 CFR part 382) for suggestions 
on how and in what circumstances it is appropriate to accommodate 
people using ESAs.
    Commenters raised questions about animal relief areas aboard the 
vessel. Since this goes the design or construction of physical features 
of the a vessel, it is better addressed in the next rulemaking phase 
concerning accessibility standards.

Section 39.93 What wheelchairs and other assistive devices may 
passengers with a disability bring onto a passenger vessel?

Section 39.95 May PVOs limit their liability for the loss of or damage 
to wheelchairs and other assistive devices?

    These sections say simply that passengers should be permitted to 
bring and use their own wheelchairs and other assistive devices on 
board a vessel. The cruise line industry stated that it does not 
support the use of mobility devices that are two-wheeled and allow an 
individual to ``ride'' the device. Another commenter expressed that the 
references to mobility aids and other assistive devices do not conform 
to the current standard found in 49 CFR part 37. The Department is 
currently reviewing and may revise its part 37 treatment of mobility 
aids.
    With respect to mobility aids, the final rule is modeled on an 
approach supported by the Department of Justice. That is, manual and 
power wheelchairs and other manual mobility aids must be accommodated 
in any area open to pedestrian use. This requirement is intended to be 
implemented consistent with other provisions of the rule (e.g., 
concerning existing facility accessibility, weight and balance 
concerns), which may in occasional situations limit the ability 
especially of larger power wheelchairs to be accommodated.
    With respect to other powered mobility devices (e.g., two-wheeled 
devices, such as Segways, designed or adapted for use by a person with 
a disability to accommodate that disability), PVOs would be required to 
make reasonable modifications in policies, practices, or procedures to 
allow such devices to be used by individuals with mobility 
disabilities, unless doing so would be inconsistent with legitimate 
safety requirements. The Department expects that, in most cases, such 
devices would be permitted to be used.
    The Department strongly emphasizes that any such safety 
requirements cannot be pretextural and must be based on actual, 
demonstrable, risks and not on not mere speculation, stereotypes, or 
generalizations either about people with disabilities or their mobility 
devices. While the rule does not include a recordkeeping requirement 
concerning such safety requirements, a PVO subject to a complaint about 
arbitrarily excluding a mobility device would doubtless be asked to 
document the factual justification for any policy limiting passengers' 
devices.
    These requirements apply to PVOs covered by both Title II and Title 
III of the ADA. In addition, Title II (i.e., public sector) entities 
would have to minimize any restrictions placed on use of other powered 
mobility devices and provide a written explanation to the user, on 
request, of any exclusion or restriction of his or her device. This 
latter provision is found in the Title II enforcement provision of this 
regulation (section 36.109).
    Once a device is on board, if the PVO is responsible for its loss 
or damage, the PVO must compensate the owner, at the level of the 
original purchase price of the device. One commenter stated that the 
appropriate cost for the loss of damaged assistive devices should be 
the current replacement cost for the device rather than the original 
purchase price. The Department is utilizing the original purchase 
price. This is the measure of the level of compensation found within 
the Department's ACAA rule, and we believe it will most appropriately 
compensate the owner for the loss of or damage to the device.

Section 39.101 What are the requirements for providing Complaints 
Resolution Officials?

Section 39.103 What actions do CROs take on complaints?

    The Complaints Resolution Official (CRO) is the PVO's expert in 
disability matters, knowledgeable about both the Department's 
regulations and the PVO's procedures, and is able to assist passengers 
with disabilities and other PVO personnel in resolving issues. The CRO 
model should adapt very well to passenger vessels, to solve problems at 
the PVO level before they become matters for complaints to the DOT or 
DOJ.
    A commenter expressed that it may be impractical and financially 
burdensome to have a CRO onboard each vessel. The Department does not 
mandate that CRO duties necessarily be full-time for a given employee, 
and CRO functions can be performed as collateral duties of existing 
personnel. PVOs could, for example, use a number of different vessel 
and landside personnel as CROs, who might perform these functions in 
addition to their other duties. We expect that PVOs will have varying 
degrees of formality in their CRO programs; however, no matter whether 
in a facility or on a vessel, all employees should be able to direct a 
passenger to the CRO.
    PVOs are likely to find it necessary to ensure that not only CROs, 
but also other personnel who interact with passengers, are sufficiently 
knowledgeable regarding the requirements of these rules and proficient 
in performing tasks related to passengers with disabilities. (PVO 
commenters asserted that their personnel are already trained to deal 
properly with customers, including passengers with disabilities.) If 
they are not, it is likely that mistakes will be made that would 
potentially lead to noncompliance. Some commenters recommended the 
adoption of training standards or requirements in this rule. However, 
the Department is not instituting any formal training requirement at 
this time and will leave it to PVOs to decide how best to prepare their 
CROs, along with the remainder of their entire staff, to meet the 
responsibilities that PVOs have under this Part. If, over time, the 
Department becomes aware of implementation or compliance difficulties 
that appear to stem from a lack of training, the Department can revisit 
this issue.
    One commenter expressed that certifying the training or drafting a

[[Page 38890]]

training curriculum would be difficult and unnecessary. This rule does 
not institute a certification requirement. Another commenter expressed 
that information about CROs should be posted on the PVO's Web site so 
that passengers have access to the information. We agree that sources 
of various information, including Web sites, should include information 
on the function of CROs and how to contact them, but we are not 
requiring this as part of this rule.

Section 39.105 How must PVOs respond to written complaints?

Section 39.107 Where may passengers obtain assistance with matters 
covered by this regulation?

    The required responses to complaints under this section by the PVO 
may be in either written or e-mail form. At this time, the Department 
is not instituting a reporting requirement for complaints received by 
PVOs regarding violations of this rule. Upon analysis of operations 
under this rule, the Department may propose a reporting requirement at 
a later date. It should be noted that these sections concern the 
interaction between PVOs and passengers; these are not procedures for 
Federal agency responses to complaints made to DOT or DOJ. For example, 
DOJ does not follow these procedures when it receives a complaint 
concerning a Title III PVO.
    One commenter suggested that deadlines be put into place to ensure 
that complaints do not languish and that a timely resolution is 
received. The commenter also suggested that there should be an outside 
organization for aggrieved passengers to take complaints to if they are 
not satisfied with the CRO resolution. In so far as deadlines are 
concerned, these sections, as written, provide deadlines for filing and 
responding to complaints. In reference to appeals of a PVO's decision, 
the complainant has the ability to pursue DOT or DOJ enforcement 
action, for Title II or Title III entities, respectively. The PVO must 
notify the complainant of this right.

Section 39.109 What enforcement actions may be taken under this Part?

    One important difference between the ACAA and the ADA is that, 
under the former, the Department has its own civil penalty enforcement 
authority and procedures. The Department does not have its own civil 
penalty authority under Titles II and III of the ADA, though the 
Department can conduct investigations and compliance reviews, collect 
data, find facts, come to conclusions, and refer matters to the 
Department of Justice for further action under section 504 and Title 
II. The Departmental Office of Civil Rights (DOCR) will be the central 
point for receiving such complaints. DOJ has the jurisdiction to 
conduct investigations and take enforcement action under Title III, 
which can lead to the imposition of damages and civil penalties.
    Some PVOs receive Federal financial assistance, such as ferry 
operators who receive Federal Transit Administration (FTA) funding. 
Complaints concerning violations of this Part by FTA-assisted ferry 
operators could be made to the FTA under the Department's ADA and 
section 504 rules, and FTA could take enforcement action as provided in 
those rules. No comments were received on this section and it is 
adopted as written.
    Request for Comments: This rule is a final rule with a request for 
comments limited to three issues. All provisions will go into effect on 
November 3, 2010. With respect to the three issues on which the 
Department is seeking further comment, the Department intends, before 
the effective date of the rule, to publish either an amended final rule 
or a notice explaining why no further changes are being made.
    The first issue concerns use by passengers with disabilities of 
emotional support animals. Unlike service animals, emotional support 
animals are not trained to perform specific physical tasks, but by 
their presence assist individuals with mental health-related 
disabilities in coping with the effects of their disabilities. For 
example, an emotional support animal may assist an individual with a 
severe anxiety disorder in dealing with the stresses of travel. In the 
absence of this assistance from the animal, the individual could find 
travel very difficult or impossible.
    As noted in the preamble discussion of section 39.91, this rule 
does not require PVOs to provide access to emotional support animals. 
In another disability discrimination context, under the Air Carrier 
Access Act, the Department requires air carriers to permit emotional 
support animals to travel with their users. The Department seeks 
comment on whether PVOs should be required to allow access for 
individuals with disabilities and their emotional support animals. If 
PVOs are required to do so, what, if any, safeguards against abuse 
(e.g., passengers attempting to pass off their pets as emotional 
support animals) should be included?
    The service animal provisions as currently written in this rule are 
consistent with DOJ's proposed rules amending Title II and Title III. 
Should DOT rules be identical to DOJ rules in this with respect to 
emotional support animals (i.e., such that the use of emotional support 
animals is treated the same way on passenger vessels as it is in other 
public accommodations covered by DOJ rules, such as parks, restaurants, 
dorms, lodging, hospitals, etc.)? Alternatively, should DOT have 
discretion to have different provisions specific to vessels?
    The second issue concerns the treatment of mobility aids. Section 
39.93 divides mobility devices into two categories: Wheelchairs and 
other power-driven mobility devices. Wheelchairs have a specific 
definition in section 39.3, including ``three or four-wheeled devices, 
usable indoors, designed for and used by individuals with mobility 
impairments, whether operated manually or powered.'' Under section 
39.93, PVOs must permit wheelchairs to be used in any area open to 
pedestrian use, though, as noted in the preamble discussion of section 
39.25, there could be circumstances in which a particular wheelchair 
does not fit a particular space.
    PVOs can limit the use of other power-driven mobility aids by 
applying a series of factors set forth in paragraph 39.93(b). The 
application of these factors could give PVOs greater discretion to 
permit or refuse use of devices that did not meet the definition of 
``wheelchair,'' (e.g., devices that otherwise look like traditional 
wheelchairs but have six wheels, two-wheeled devices like Segways) than 
they have with respect to wheelchairs. The Department seeks comment two 
sets of questions related to the handling of mobility aids.
    First, should a PVO have to demonstrate (i.e., bear a burden of 
proof) that it has a sound basis for excluding or restricting a 
passenger's other power-driven mobility aid? Should there be any basis 
other than safety (i.e., inconsistency with a legitimate safety 
requirement) for a decision to exclude or limit a device? Should it be 
made clear that a device, even if not originally designed for use by 
individuals with disabilities, should be accepted on board a vessel if 
it is adapted for use by a passenger with a disability, again subject 
to legitimate safety requirements?
    Second, should the entire approach to mobility aids be rethought? 
For example, it may not be necessary to distinguish between categories 
of mobility aids at all. One commenter to the NPRM suggested adopting 
the term ``wheeled mobility assistive device'' be used in place of 
other terms. In this concept, if a wheeled mobility assistive

[[Page 38891]]

device, however it is designed, can be accommodated on board a vessel, 
consistent with legitimate safety requirements, it would have to be 
accepted by the PVO, regardless of whether it was a ``wheelchair,'' per 
se. The Department seeks comment on this approach and on whether, if 
adopted, it should include any categorical exceptions (e.g., gasoline 
engine-powered devices). For information, the Department refers 
interested persons to the Department's September 2005 interpretation of 
its existing ADA regulation (49 CFR part 37) concerning acceptance of 
mobility aids [http://www.fta.dot.gov/civilrights/ada/civil_rights_3893.html].
    Similar to the emotional support animal issue earlier, the mobility 
aid provisions as currently written in this rule are consistent with 
DOJ's proposed rules amending Title II and Title III. Should DOT rules 
be identical to DOJ rules in this with respect to mobility aids (i.e., 
such that the use of mobility aids is treated the same way on passenger 
vessels as it is in other public accommodations covered by DOJ rules, 
like as parks, restaurants, dorms, lodging, hospitals, etc.)? 
Alternatively, should DOT have discretion to have different provisions 
specific to vessels?
    The third issue the Department seeks comment on concerns the 
overall relationship between DOJ and DOT ADA rules. DOJ currently has 
draft final rules revising its Title II and Title III DOT rules under 
review by the Office of Management and Budget (OMB). It is possible 
that, as part of the interagency review process led by OMB, provisions 
in the DOJ rules (e.g., concerning the definition of auxiliary aids and 
services and the application of that definition) might change in a way 
that create a difference between the language of part 39 and the 
language of the forthcoming DOJ rules. In such a situation, should DOT 
amend part 39 to be consistent with the new DOJ language? The purpose 
of doing so would be to avoid confusion or any burden placed on people 
with disabilities or PVOs that might arise if different definitions or 
substantive provisions of different rules applied in the specific 
context of passenger vessel operations, as distinct from other aspects 
of public accommodations or public sector facilities and activities 
covered by, DOJ rules.

Regulatory Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This is a significant rule under Executive Order 12866 and DOT 
Regulatory Policies and Procedures purposes. This is because the rule 
address issues of considerable policy interest and creates requirements 
for entities that have not previously been subject to regulation. 
However, the rule does not impose significant costs. The main thrust of 
the rule is to prohibit PVOs from taking actions--such as requiring 
attendants, denying transportation, limiting access for service 
animals, or imposing special charges--that create barriers to travel by 
persons with disabilities. There is little, if any, cost to a PVO from 
avoiding taking discriminatory actions. According to comments received 
at both the ANPRM and NPRM stages, many PVOs already provide boarding 
assistance and other services to passengers with disabilities, so it is 
reasonable to assume that the passenger assistance provisions of this 
rule will not have significant incremental costs. This rule does not 
impose a training requirement or reporting requirements.
    In the section of the preamble responding to the Regulatory 
Flexibility Act, the Department will discuss the cost impacts, or lack 
of same, from some specific sections of the rule.
    Some commenters did express concern about potential costs of the 
NPRM. These comments largely were the result of commenters mistakenly 
believing that the NPRM proposed requiring PVOs to physically alter 
vessels, especially small vessels. In fact, the NPRM did not propose, 
and the final rule does not require, alterations to vessels for the 
purpose of achieving accessibility. The rule takes vessels as they are 
and focuses on the policies and practices of PVOs with respect to the 
use of the vessels by passengers with disabilities.
    In a future rulemaking, the Department anticipates proposing, in 
conjunction with the Access Board, design and construction standards 
for vessels. These standards will affect new vessels and alterations to 
existing vessels. This future rulemaking is expected to involve a more 
detailed regulatory evaluation with respect to the costs and benefits 
of its proposals.
    In the passenger vessel context, as in other areas, the purpose of 
the ADA is to ensure nondiscrimination on the basis of disability and 
accessibility of travel on vessels for people with disabilities. 
Consequently, the most important benefits of this rule are the largely 
non-quantifiable benefits of increased access and mobility for 
passengers with disabilities. Policies required by this rule will 
eliminate most practices of PVOs that prevent or inhibit travel by 
persons with disabilities. The benefits that will accrue from removal 
of these barriers cannot be quantified, but could well include 
increased employment, business, recreational, and educational 
opportunities for travelers with disabilities, and quality of life 
enhancements associated with travel opportunities both within the U.S. 
and to foreign points.
    Many persons with mobility impairments will be able to use 
passenger vessel services for the first time, and take advantage of an 
expanded range of travel opportunities. Even persons with disabilities 
who do not immediately choose to use a passenger vessel will know that 
barriers to such travel have been removed, and there is a psychological 
benefit to knowing one can travel if one wishes (what economists 
sometimes refer to as the ``option value'' of a regulatory provision).
    Other beneficiaries of this rule include the travel companions, 
family, and friends of passengers with disabilities, since persons with 
disabilities would have greater and more varied travel opportunities. 
In addition, to the extent that changes in PVO practice make use of 
vessels easier for everyone, there will be indirect benefits for the 
general traveling public.
    Because making passenger vessel transportation and services more 
readily available to passengers with disabilities and others traveling 
with them is likely to increase overall usage of vessels to some 
degree, it is likely that there will be some economic benefits to PVOs 
from compliance with the rule, though the Department does not have 
information allowing us to quantify these potential benefits.

Regulatory Flexibility Act

    In considering this rule from the point of view of the Regulatory 
Flexibility Act, we emphasize two main points. First, for the reasons 
discussed above, we believe strongly that the overall costs of the rule 
to any entities--large or small--will be very low. The rule will not 
create significant economic impacts on anyone. In particular, the 
Department here repeats what it has said throughout the rulemaking: The 
rule does not impose design and construction standards that will 
require vessel operators, large or small, to alter their vessels.
    Second, compared to the NPRM, the number of small entities subject 
to the rule is greatly reduced. The final rule covers only private 
entities primarily engaged in the business of transporting people, 
eliminating from coverage private entities not primarily engaged in the 
business of transporting people. The

[[Page 38892]]

vast majority of small entities that the NPRM would have covered (e.g., 
fishing charter boats, sightseeing and dinner cruise boats, dive boats) 
are not subject to the final rule. Of the private entities primarily 
engaged in the business of transporting people that the rule does 
cover, most--such as cruise ships and public ferry systems--are not 
small entities. Some, such as smaller ferry or water taxi operations, 
may be small entities. While the number of small entities covered by 
the final rule is not ascertainable from the record of this rulemaking, 
the Department believes that it is highly unlikely to be substantial.
    The Small Business Administration (SBA) Office of Advocacy 
commented on the NPRM. One of the primary SBA comments concerned SBA's 
estimate that a very large number of small businesses would be covered 
by the rule. Given the change in the final rule to cover only private 
entities primarily engaged in the business of transporting people, 
SBA's estimate--based almost entirely on private entities not primarily 
engaged in the business of transporting people--is no longer 
applicable. We recognize that there could also be some small public 
entities that are covered by the rule (e.g., a small municipality that 
operates a ferry or water taxi service), though the record of the 
rulemaking does not provide a basis for knowing whether this is the 
case or estimating how many there may be. Because the costs of the rule 
to any entities is minimal, there would not be a significant cost to 
these Title II entities.
    SBA also pointed to certain sections of the rule that it thought 
could involve costs. With respect to section 39.3, SBA asked that the 
Department should make clear that there is no liability for 
discrimination based on the accessibility of existing vessels. As 
stated elsewhere, this rule does not impose any incremental obligation 
to alter existing vessels for the purpose of accessibility. PVOs, like 
other entities, remain subject to the existing ADA requirements to 
provide program accessibility (Title II) or to ensure readily 
achievable barrier removal (Title III). SBA also suggested making 
compliance materials available regarding the rule's definitions, 
particularly if there are conflicting definitions between DOJ rules and 
the Air Carrier Access Act. Under this or any rule, no one is required 
to comply with a definition. Compliance is required only with 
substantive provisions of a rule. The final rule has harmonized DOT 
passenger vessel rule provisions with DOJ ADA rule provisions.
    With respect to section 39.13, SBA said the small business 
community was confused about the difference between this rule and 
forthcoming Access Board guidelines, and that the effective date of the 
rule should be extended six months. The distinction is actually a very 
clear and simple one: This rule concerns the policies that PVOs apply 
to passengers with disabilities on their vessels and does not create 
design or construction standards for new or altered vessels. The 
forthcoming Access Board guidelines will create design and construction 
standards for new and altered larger vessels (e.g., those with a 
passenger capacity of over 150 passengers or over 49 spaces for 
overnight accommodations), but will not address the kinds of policy 
issues that the current DOT rule addresses. The Department is making 
this rule effective 120 days from the date of publication, and we do 
not believe a longer lead time is needed to assist the relatively few 
remaining small PVOs covered by the rule in understanding this 
straightforward point. Through long experience, the Department has 
found it most helpful to issue guidance (e.g., questions and answers) 
after a regulation has gone into effect, when both we and the regulated 
parties have had time to determine what implementation and 
interpretation questions of general interest are valuable to address.
    With respect to sections 39.29 (39.27 in the NPRM) and 39.93, SBA 
asserted that there was a paperwork burden, a recordkeeping 
requirement, and a training burden. Section 39.29 of the final rule in 
fact requires neither paperwork, nor recordkeeping, nor training. It 
simply directs vessel operators not to impose number limits, except 
where legitimate safety requirements (i.e., with regard to weight and 
balance) dictate otherwise. In most instances, given that the final 
rule focuses on larger vessels, this exception is unlikely to come into 
play. Section 39.93 has been revised for greater consistency with the 
Department of Justice's approach to mobility aid issues, and likewise 
does not include recordkeeping or training requirements. In one 
category of cases--denial of access to an ``other powered mobility 
device'' by a public entity, the entity would have to provide a written 
explanation on the passenger's request. Given that public entities 
covered by the rule--mostly large public ferry systems--are not small 
entities, and that it is likely there would be few instances in which 
mobility devices would be denied passage, and fewer still in which the 
passenger asked for a written explanation, the Department believes that 
the cost and burden of this requirement would be very minor.
    With respect to the advance notice provisions of the rule (39.33 
and 39.35 in the NPRM, 39.35 and 39.37 of the final rule), SBA 
requested that the Department respond to the comment that operators of 
small vessels should be able to require advance notice for fewer than 
the proposed group of 10 or more disabled passengers traveling 
together. As noted above, most of the vessels to which this comment 
pertained are not covered by the final rule. Moreover, comments did not 
suggest a persuasive reason why, for example, a group of four or six 
wheelchair users should be burdened with an advance notice requirement 
simply because the size of the vessel or size of the business operating 
the vessel is smaller. The Department believes the 10-person group 
provision is sensible, and it remains in the final rule.
    With respect to section 39.83, concerning assistance by vessel 
personnel in getting persons with disabilities on and off the vessel, 
SBA asked the Department to provide estimates of the costs of providing 
such assistance, as a ``new requirement.'' As SBA acknowledged, 
commenters to the NPRM said that their personnel commonly performed 
this function already. In analyzing the costs of a rule, the Department 
focuses on incremental costs, not assuming a baseline in which no one 
is performing something required by the rule. The information in the 
record suggests that the incremental costs of this provision of the 
rule would be low, and the record does not provide information on how 
many vessel operators (particularly the relatively few small PVOs that 
the final rule covers) currently decline to provide boarding assistance 
to passengers with disabilities. While the record therefore does not 
support a quantified estimate of the incremental costs of this 
requirement to small entities, the Department is justified, based on 
the evidence of the record, for estimating that it would be very low.
    Concerning service animals, SBA suggested that there should be an 
exception to the rule that would allow very small vessels to deny 
passage for safety reasons. As noted above, the number of very small 
vessels covered by the rule is likely to be very small. Denial of 
access to a service animal is tantamount to denying transportation to 
its user. Consequently, the provisions of section 39.27, concerning 
exclusion of a passenger with disabilities in connection with 
legitimate safety

[[Page 38893]]

requirements, would apply in a case where a PVO believed it should 
exclude a service animal for safety reasons. SBA also notes that 
smaller ferries and other small vessels might not have refrigerators on 
board to store food for service animals. There is no need to 
refrigerate animal food on the short trips typically run by small 
ferries or water taxis, so the issue would likely never arise. The need 
to store and refrigerate animal food would most likely arise on vessels 
that provide overnight accommodations, which typically are larger 
vessels.
    With respect to complaints resolution officers (CROs; sections 
39.101-39.105) SBA requests an estimate of the costs of this 
requirement. As SBA concedes, there are no training requirements for 
CROs in the final rule, and many of the same personnel already receive 
customer relations and safety training. Consequently, the incremental 
cost of getting small entities' CROs to the point of proficiency is 
limited to the time to read and understand the rule. The rule is not 
excessively lengthy, with the regulatory text likely to amount to 
around 7-8 Federal Register pages. It is not necessary for CROs to 
memorize the rule, only to become familiar enough with it to know what 
provisions to reference when a question or issue arises. It is fair to 
assume that this task would take an hour. Suppose there are 500 small 
PVOs covered by the rule (likely an overgenerous number). Then the 
total burden would be 500 work hours. To make a cost estimate, one 
would multiply this number of hours by the average hourly wage of PVO 
personnel who would read the rule. If this average is $20/hour, then 
the total cost of the requirement for small PVOs would be $10,000.
    To estimate the cost and burden of having CROs working for small 
entities to provide responses to written complaints, it would be 
necessary to estimate how many such complaints there will be. The 
record of the rulemaking provides no basis for making such an estimate. 
The main purpose of the CRO requirement is to resolve problems before 
they turn into written complaints. Likewise, the purpose of the entire 
rule is to set forth explicit expectations for PVO policies, so that 
PVOs do not conduct themselves in ways that give rise to complaints. 
Many vessel industry commenters said that they emphasize providing good 
customer service to passengers with disabilities. If true, this would 
minimize the occurrence of complaints. For these reasons, the 
Department believes that the number of written complaints involving 
small entities would be small. If we assume that the task of gathering 
information for and writing a letter to a complainant would take four 
hours, and that 20 percent of the hypothetical 500 PVOs--100 entities--
had one complaint filed against them per year, the task would occupy 
400 work hours. Again, if we multiply this figure by the average hourly 
wage of the CRO--assuming, as before, that this is $20/hour--then the 
annual total is $8,000. It is possible to plug in a variety of 
assumptions about the number of CROs, the number of complaints, and the 
wage rates involved, but the bottom line remains a very modest economic 
impact in any plausible scenario.
    Parties aggrieved by PVO misconduct already have the authority to 
bring litigation under the ADA or to complain to DOJ about disability 
discrimination. The Spector case, cited earlier in this preamble, is 
the most prominent example of such litigation, having been decided by 
the Supreme Court.
    Because the costs of the rule are minimal to any covered parties, 
and because the number of small entities affected is likely to be very 
small, I certify that this rule will not have a significant economic 
effect on a substantial number of small entities.

Federalism

    While there are some State and local entities (i.e. operators of 
State or municipal ferry systems) that would be covered by this rule, 
most regulated parties are private entities. The rule will not create 
any significant changes in the Federal/State/local relationship with 
respect to these entities, and has no pre-emptive effect. Consequently, 
we have concluded that there are not sufficient Federalism impacts to 
warrant the preparation of a Federalism assessment.

List of Subjects in 49 CFR Part 39

    Individuals with disabilities, Mass transportation, Passenger 
vessels.

    Issued this 16th day of June 2010 at Washington, DC.
Ray LaHood,
Secretary of Transportation.

0
For the reasons set forth in the preamble, the Department of 
Transportation is amending 49 CFR subtitle A by adding a new 49 CFR 
part 39, to read as follows:

PART 39--TRANSPORTATION FOR INDIVIDUALS WITH DISABILITIES: 
PASSENGER VESSELS

Subpart A--General
Sec.
39.1 What is the purpose of this Part?
39.3 What do the terms in this rule mean?
39.5 To whom do the provisions of this Part apply?
39.7 What other authorities concerning nondiscrimination on the 
basis of disability apply to owners and operators of passenger 
vessels?
39.9 What may the owner or operator of a foreign-flag vessel do if 
it believes a provision of a foreign nation's law prohibits 
compliance with a provision of this Part?
39.11 [Reserved]
39.13 When must PVOs comply with the provisions of this Part?
Subpart B--Nondiscrimination and Access to Services
39.21 What is the general nondiscrimination requirement of this 
Part?
39.23 What are the requirements concerning contractors to owners and 
operators of passenger vessels?
39.25 May PVOs refuse to provide transportation or use of a vessel 
on the basis of disability?
39.27 Can a PVO take action to deny transportation or restrict 
services to a passenger with a disability based on safety concerns?
39.29 May PVOs limit the number of passengers with a disability on a 
passenger vessel?
39.31 May PVOs limit access to transportation or use of a vessel on 
the basis that a passenger has a communicable disease?
39.33 May PVOs require a passenger with a disability to provide a 
medical certificate?
39.35 May PVOs require a passenger with a disability to provide 
advance notice that he or she is traveling on or using a passenger 
vessel when no special services are sought?
39.37 May PVOs require a passenger with a disability to provide 
advance notice in order to obtain particular auxiliary aids and 
services or to arrange group travel?
39.39 How do PVOs ensure that passengers with disabilities are able 
to use accessible cabins?
39.41 May a passenger with a disability be required to travel with 
another person?
39.43 May PVOs impose special charges on passengers with a 
disability for providing services required by this rule?
39.45 May PVOs impose other restrictions on passengers with a 
disability that they do not impose on other passengers?
39.47 May PVOs require passengers with a disability to sign waivers 
or releases?
Subpart C--Information for Passengers
39.51 What is the general requirement for PVOs' provision of 
auxiliary aids and services to passengers?
39.53 What information must PVOs provide to passengers with a 
disability?
39.55 Must information and reservation services of PVOs be 
accessible to individuals with hearing or vision impairments?
39.57 Must PVOs make copies of this rule available to passengers?

[[Page 38894]]

Subpart D--Accessibility of Landside Facilities
39.61 What requirements must PVOs meet concerning the accessibility 
of terminals and other landside facilities?
39.63 What modifications and auxiliary aids and services are 
required at terminals and other landside facilities for individuals 
with hearing or vision impairments?
Subpart E--Accessibility of Vessels [Reserved]
Subpart F--Assistance and Services to Passengers with Disabilities
39.81 What assistance must PVOs provide to passengers with a 
disability in getting to and from a passenger vessel?
39.83 What are PVOs' obligations for assisting passengers with a 
disability in getting on and off a passenger vessel?
39.85 What services must PVOs provide to passengers with a 
disability on board a passenger vessel?
39.87 What services are PVOs not required to provide to passengers 
with a disability on board a passenger vessel?
39.89 What requirements apply to on-board safety briefings, 
information, and drills?
39.91 Must PVOs permit passengers with a disability to travel with 
service animals?
39.93 What wheelchairs and other assistive devices may passengers 
with a disability bring onto a passenger vessel?
39.95 May PVOs limit their liability for the loss of or damage to 
wheelchairs and other assistive devices?
Subpart G--Complaints and Enforcement Procedures
39.101 What are the requirements for providing Complaints Resolution 
Officials?
39.103 What actions do CROs take on complaints?
39.105 How must PVOs respond to written complaints?
39.107 Where may persons obtain assistance with matters covered by 
this regulation?
39.109 What enforcement actions may be taken under this Part?

    Authority: 42 U.S.C. 12101 through 12213; 49 U.S.C. 322; 29 
U.S.C. 794.

Subpart A--General


Sec.  39.1  What is the purpose of this Part?

    The purpose of this Part is to carry out the Americans with 
Disabilities Act and Section 504 of the Rehabilitation Act of 1973 with 
respect to passenger vessels. This rule prohibits owners and operators 
of passenger vessels, including U.S. and foreign-flag vessels, from 
discriminating against passengers on the basis of disability; requires 
vessels and related facilities to be accessible; and requires owners 
and operators of vessels to take steps to accommodate passengers with 
disabilities.


Sec.  39.3  What do the terms in this rule mean?

    In this regulation, the terms listed in this section have the 
following meanings:
    ``Accessible'' means, with respect to vessels and facilities, 
complying with the applicable requirements of this Part.
    ``The Act'' or ``ADA'' means the Americans with Disabilities Act of 
1990 (Pub. L. 101-336, 104 Stat. 327, 42 U.S.C. 12101-12213 and 47 
U.S.C. 225 and 611), as it may be amended from time to time.
    ``Assistive device'' means any piece of equipment that assists a 
passenger with a disability to cope with the effects of his or her 
disability. Such devices are intended to assist a passenger with a 
disability to hear, see, communicate, maneuver, or perform other 
functions of daily life, and may include medical devices.
    ``Auxiliary aids and services'' includes:
    (1) Qualified interpreters on-site or through video remote 
interpreting (VRI) services; notetakers; real-time computer-aided 
transcription services; written materials; exchange of written notes; 
telephone handset amplifiers; assistive listening devices; assistive 
listening systems; telephones compatible with hearing aids; closed 
caption decoders; open and closed captioning, including real-time 
captioning; voice, text, and video-based telecommunications products 
and systems, including text telephones (TTYs), videophones, and 
captioned telephones, or equally effective telecommunications devices; 
videotext displays; accessible electronic and information technology; 
or other effective methods of making aurally delivered information 
available to individuals who are deaf or hard of hearing;
    (2) Qualified readers, taped texts, audio recordings, brailed 
materials and displays, screen reader software, magnification software, 
optical readers, secondary auditory programs (SAP), large print 
materials, accessible electronic and information technology, or other 
effective methods of making visually delivered materials available to 
individuals who are blind or have low vision;
    (3) Acquisition or modification of equipment or devices; or
    (4) Other similar services or actions.
    ``Coast Guard'' means the United States Coast Guard, an agency of 
the Department of Homeland Security.
    ``Commerce'' means travel, trade, transportation, or communication 
among the several States, between any foreign country or any territory 
and possession and any State, or between points in the same State but 
through another State or foreign country.
    ``Department'' or ``DOT'' means the United States Department of 
Transportation, including any of its agencies.
    ``Designated public transportation'' means transportation provided 
by a public entity by passenger vessel that provides the general public 
with general or special service, including charter service, on a 
regular and continuing basis.
    ``Direct threat'' means a significant risk to the health or safety 
of others that cannot be eliminated by a modification of policies, 
practices, or procedures, or by the provision of auxiliary aids or 
services.
    ``Disability'' means, with respect to an individual, a physical or 
mental impairment that substantially limits one or more of the major 
life activities of such individual; a record of such an impairment; or 
being regarded as having such an impairment.
    (1) The phrase physical or mental impairment means--
    (i) Any physiological disorder or condition, cosmetic 
disfigurement, or anatomical loss affecting one or more of the 
following body systems: Neurological, musculoskeletal, special sense 
organs, respiratory including speech organs, cardiovascular, 
reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and 
endocrine;
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities;
    (iii) The term physical or mental impairment includes, but is not 
limited to, such contagious or noncontagious diseases and conditions as 
orthopedic, visual, speech, and hearing impairments; cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart 
disease, diabetes, mental retardation, emotional illness, specific 
learning disabilities, HIV disease, tuberculosis, drug addiction and 
alcoholism;
    (iv) The phrase physical or mental impairment does not include 
homosexuality or bisexuality.
    (2) The phrase major life activities means functions such as caring 
for one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and work.
    (3) The phrase has a record of such an impairment means has a 
history of, or has been misclassified as having, a mental or physical 
impairment that substantially limits one or more major life activities.

[[Page 38895]]

    (4) The phrase is regarded as having such an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities, but which is treated by a public or 
private entity as constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
a major life activity only as a result of the attitudes of others 
toward such an impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by a public or private entity as having such 
an impairment.
    (5) The term disability does not include--
    (i) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (ii) Compulsive gambling, kleptomania, or pyromania; or
    (iii) Psychoactive substance abuse disorders resulting from the 
current illegal use of drugs.
    ``Facility'' means all or any portion of buildings, structures, 
sites, complexes, equipment, roads, walks, passageways, parking lots, 
or other real or personal property, including the site where the 
building, property, structure, or equipment is located.
    ``Individual with a disability'' means a person who has a 
disability, but does not include an individual who is currently 
engaging in the illegal use of drugs, when a public or private entity 
acts on the basis of such use.
    ``Operates'' includes, with respect to passenger vessel service, 
the provision of transportation by a public or private entity itself or 
by a person under a contractual or other arrangement or relationship 
with the entity.
    ``Passenger for hire'' means a passenger for whom consideration is 
contributed as a condition of carriage on the vessel, whether directly 
or indirectly flowing to the owner, charterer, operator, agent, or any 
other person having an interest in the vessel.
    ``Passenger vessel'' means any ship, boat, or other craft used as a 
conveyance on water, regardless of its means of propulsion, which 
accepts passengers, whether or not for hire. The term does not include 
boats or other craft rented or leased to and operated solely by 
consumers or fixed floating structures permanently moored or attached 
to a landside facility.
    ``Passenger vessel owner or operator (PVO)'' means any public or 
private entity that owns or operates a passenger vessel. When the party 
that owns a passenger vessel is a different party from the party that 
operates the vessel, both are responsible for complying with the 
requirements of this Part. To be a PVO for purposes of this Part, a 
private entity must be a private entity primarily engaged in the 
business of transporting people, as determined by the Department of 
Transportation in consultation with the Department of Justice.
    ``Private entity'' means any entity other than a public entity that 
is primarily engaged in the business of transporting people.
    ``Public entity'' means:
    (1) Any State or local government; or
    (2) Any department, agency, special purpose district, or other 
instrumentality of one or more State or local governments (including an 
entity established to provide public ferry service).
    ``Qualified individual with a disability'' means an individual with 
a disability--
    (1) Who, as a passenger (referred to as a ``passenger with a 
disability''), with respect to obtaining transportation on or use of a 
passenger vessel, or other services or accommodations required by this 
Part,
    (i) Buys or otherwise validly obtains, or makes a good faith effort 
to obtain, a ticket for transportation on a passenger vessel and 
presents himself or herself at the vessel for the purpose of traveling 
on the voyage to which the ticket pertains; or
    (ii) With respect to use of a passenger vessel for which members of 
the public are not required to obtain tickets, presents himself or 
herself at the vessel for the purpose of using the vessel for the 
purpose for which it is made available to the public; and
    (iii) Meets reasonable, nondiscriminatory requirements applicable 
to all passengers; or
    (2) Who, with respect to accompanying or meeting a traveler, using 
ground transportation, using facilities, or obtaining information about 
schedules, fares, reservations, or policies, takes those actions 
necessary to use facilities or services offered by the PVO to the 
general public, with reasonable modifications, as needed, provided by 
the PVO.
    ``Secretary'' means the Secretary of Transportation or his/her 
designee.
    ``Section 504'' means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394, 29 U.S.C. 794), as amended.
    ``Service animal'' means any guide dog, signal dog, or other animal 
individually trained to work or perform tasks for an individual with a 
disability, including, but not limited to, guiding individuals with 
impaired vision, alerting individuals with impaired hearing to 
intruders or sounds, alerting persons with seizure disorders to the 
onset of a seizure, providing minimal protection or rescue work, 
pulling a wheelchair, or fetching dropped items.
    ``Specified public transportation'' means transportation by 
passenger vessel provided by a private entity to the general public, 
with general or special service (including charter service) on a 
regular and continuing basis, where the private entity is primarily 
engaged in the business of transporting people.
    ``Terminal'' means, with respect to passenger vessel 
transportation, the portion of a property located adjacent to a dock, 
entry ramp, or other means of boarding a passenger vessel, including 
areas through which passengers gain access to land transportation, 
passenger shelters, designated waiting areas, ticketing areas, and 
baggage drop-off and retrieval sites, to the extent that the PVO owns 
or leases the facility or exercises control over the selection, design, 
construction, or alteration of the property.
    ``United States'' or ``U.S.'' means the United States of America, 
including its territories, commonwealths, and possessions.
    ``Wheelchair'' means any mobility aid belonging to any class of 
three or four-wheeled devices, usable indoors, designed for and used by 
individuals with mobility impairments, whether operated manually or 
powered.
    ``You'' means the owner or operator of a passenger vessel, unless 
the context requires a different meaning.


Sec.  39.5  To whom do the provisions of this Part apply?

    (a) Except as provided in paragraph (b) or (c) of this section, 
this Part applies to you if you are the owner or operator of any 
passenger vessel, and you are:
    (1) A public entity that provides designated public transportation; 
or
    (2) A private entity primarily engaged in the business of 
transporting people whose operations affect commerce and that provides 
specified public transportation;
    (b) If you are the PVO of a foreign-flag passenger vessel, this 
Part applies to you only if your vessel picks up passengers at a port 
in the United States, its territories, possessions, or commonwealths.

[[Page 38896]]

Sec.  39.7  What other authorities concerning nondiscrimination on the 
basis of disability apply to owners and operators of passenger vessels?

    (a) If you receive Federal financial assistance from the Department 
of Transportation, compliance with applicable requirements of this part 
is a condition of compliance with section 504 of the Rehabilitation Act 
of 1973 and of receiving financial assistance.
    (b) You are also subject to ADA regulations of the Department of 
Justice (28 CFR part 35 or 36, as applicable).


Sec.  39.9  What may the owner or operator of a foreign-flag vessel do 
if it believes a provision of a foreign nation's law prohibits 
compliance with a provision of this Part?

    (a) If you are the PVO of a foreign-flag vessel, and you believe 
that a binding legal requirement of a foreign nation precludes you from 
complying with a provision of this Part, you may request a waiver of 
the provision of this Part.
    (b) You must send such a waiver request to the Department.
    (c) Your waiver request must include the following elements:
    (1) A copy, in the English language, of the foreign law involved;
    (2) A description of how the binding legal requirement of a foreign 
nation applies and how it precludes compliance with a provision of this 
Part;
    (3) A description of the alternative means you will use, if the 
waiver is granted, to effectively achieve the objective of the 
provision of this Part subject to the waiver or, if applicable, a 
justification of why it would be impossible to achieve this objective 
in any way.
    (d) If you submit such a waiver request before November 3, 2010 you 
may continue to apply the foreign legal requirement pending the 
Department's response to your waiver request.
    (e) The Department shall grant the waiver request if it determines 
that the binding legal requirement of a foreign nation applies, that it 
does preclude compliance with a provision of this Part, and that the 
PVO has provided an effective alternative means of achieving the 
objective of the provision of this Part subject to the waiver or clear 
and convincing evidence that it would be impossible to achieve this 
objective in any way.


Sec.  39.11  [Reserved]


Sec.  39.13  When must PVOs comply with the provisions of this part?

    You are required to comply with the requirements of this part 
beginning November 3, 2010, except as otherwise provided in individual 
sections of this part.

Subpart B--Nondiscrimination and Access to Services


Sec.  39.21  What is the general nondiscrimination requirement of this 
part?

    (a) As a PVO, you must not do any of the following things, either 
directly or through a contractual, licensing, or other arrangement:
    (1) You must not discriminate against any qualified individual with 
a disability, by reason of such disability, with respect to the 
individual's use of a vessel;
    (2) You must not require a qualified individual with a disability 
to accept special services that the individual does not request;
    (3) You must not exclude a qualified individual with a disability 
from or deny the person the benefit of any vessel transportation or 
related services that are available to other persons, except when 
specifically permitted by another section of this Part; and
    (4) You must not take any action against an individual (e.g., 
refusing to provide transportation) because the individual asserts, on 
his or her own behalf or through or on behalf of others, rights 
protected by this part or the ADA.
    (b)(1) As a PVO that is a private entity, you must make reasonable 
modifications in policies, practices, or procedures when such 
modifications are necessary to afford such goods, services, facilities, 
privileges, advantages, or accommodations to individuals with 
disabilities, unless you can demonstrate that making such modifications 
would fundamentally alter the nature of such goods, services, 
facilities, privileges, advantages, or accommodations.
    (2) As a PVO that is a public entity, you must make reasonable 
modifications in policies, practices, or procedures when necessary to 
avoid discrimination on the basis of disability, unless you can 
demonstrate that making the modifications would fundamentally alter the 
nature of the services, programs, or activities you offer.


Sec.  39.23  What are the requirements concerning contractors to owners 
and operators of passenger vessels?

    (a) If, as a PVO, you enter into a contractual or other arrangement 
or relationship with any other party to provide services to or 
affecting passengers, you must ensure that the other party meets the 
requirements of this Part that would apply to you if you provided the 
service yourself.
    (b) As a PVO, you must include an assurance of compliance with this 
Part in your contracts or agreements with any contractors who provide 
to the public services that are subject to the requirements of this 
Part. Noncompliance with this assurance is a material breach of the 
contract on the contractor's part. With respect to contracts or 
agreements existing on November 3, 2010, you must ensure the inclusion 
of this assurance by November 3, 2011 or on the next occasion on which 
the contract or agreement is renewed or amended, whichever comes first.
    (1) This assurance must commit the contractor to compliance with 
all applicable provisions of this Part in activities performed on 
behalf of the PVO.
    (2) The assurance must also commit the contractor to implementing 
directives issued by your Complaints Resolution Officials (CROs) under 
Sec.  39.103.
    (c) As a PVO, you must also include such an assurance of compliance 
in your contracts or agreements of appointment with U.S. travel agents. 
With respect to contracts or agreements with U.S. travel agents 
existing on November 3, 2010, you must ensure the inclusion of this 
assurance by November 3, 2011 or on the next occasion on which the 
contract or agreement is renewed or amended, whichever comes first. You 
are not required to include such an assurance in contracts with foreign 
travel agents.
    (d) You remain responsible for your contractors' and U.S. travel 
agents' compliance with this Part and with the assurances in your 
contracts with them.
    (e) It is not a defense to an enforcement action under this Part 
that your noncompliance resulted from action or inaction by a 
contractor or U.S. travel agent.


Sec.  39.25  May PVOs refuse to provide transportation or use of a 
vessel on the basis of disability?

    (a) As a PVO, you must not refuse to provide transportation or use 
of a vessel to a passenger with a disability on the basis of his or her 
disability, except as specifically permitted by this Part.
    (b) You must not refuse to provide transportation or use of a 
vessel to a passenger with a disability because the person's disability 
results in appearance or involuntary behavior that may offend, annoy, 
or inconvenience crewmembers or other passengers.
    (c) If you refuse to provide transportation or use of a vessel to a 
passenger on a basis relating to the individual's disability, you must 
provide to the person a written statement of the reason for the 
refusal. This statement must include the specific basis for your 
opinion that the refusal meets the standards of Sec.  39.27 or is

[[Page 38897]]

otherwise specifically permitted by this part. You must provide this 
written statement to the person within 10 calendar days of the refusal 
of transportation or use of the vessel.


Sec.  39.27  Can a PVO take action to deny transportation or restrict 
services to a passenger with a disability based on safety concerns?

    (a) As a PVO, you may take action to deny transportation or 
restrict services to a passenger with a disability if necessitated by 
legitimate safety requirements. Safety requirements must be based on 
actual risks and not on mere speculation, stereotypes, or 
generalizations about individuals with disabilities.

    Example 1 to paragraph 39.27(a): You may take such action in 
order to comply with Coast Guard safety regulations.
    Example 2 to paragraph 39.27(a): You may take such action if 
accommodating a large or heavy wheelchair would, together with its 
occupant, create weight and balance problem that could affect 
adversely the seaworthiness of the vessel or impede emergency egress 
from the vessel.
    Example 3 to paragraph 39.27(a): You could restrict access to a 
lifeboat for a mobility device that would limit access to the 
lifeboat for other passengers.

    (b) In taking action pursuant to legitimate safety requirements, 
you must take the action that imposes the minimum feasible burdens or 
limitations from the point of view of the passenger. For example, if 
you can meet legitimate safety requirements by a means short of 
refusing transportation to a passenger, you must do so.
    (c) You may take action to deny transportation or restrict services 
to a passenger if the passenger poses a direct threat to others. In 
determining whether an individual poses a direct threat to the health 
or safety of others, the PVO must make an individualized assessment, 
based on reasonable judgment that relies on current medical knowledge 
or on the best available objective evidence, to ascertain: The nature, 
duration, and severity of the risk; the probability that the potential 
injury will actually occur; and whether reasonable modifications of 
policies, practices, or procedures will mitigate the risk.


Sec.  39.29  May PVOs limit the number of passengers with a disability 
on a passenger vessel?

    As a PVO, you must not limit the number of passengers with a 
disability other than individuals with a mobility disability on your 
vessel. However, if in the Captain's judgment, weight or stability 
issues are presented by the presence of mobility devices and would 
conflict with legitimate safety requirements pertaining to the vessel 
and its passengers, then the number of passengers with mobility aids 
may be limited, but only to the extent reasonable to prevent a avoid 
such a conflict.


Sec.  39.31  May PVOs limit access to transportation or use of a vessel 
on the basis that a passenger has a communicable disease?

    (a) You must not take any of the following actions on the basis 
that a passenger has a communicable disease or infection, unless one of 
the conditions of paragraph (b) of this section exists:
    (1) Refuse to provide transportation or use of a vessel to the 
passenger;
    (2) Delay the passenger's transportation or use of the vessel 
(e.g., require the passenger to take a later trip);
    (3) Impose on the passenger any condition, restriction, or 
requirement not imposed on other passengers; or
    (4) Require the passenger to provide a medical certificate.
    (b) You may take actions listed in paragraph (a) of this section 
only if either or both of the conditions listed in paragraphs (b)(1) 
and (2) of this section are met. The action you take must be the least 
restrictive from the point of view of the passenger, consistent with 
protecting the health of other passengers.
    (1) U.S. or international public health authorities (e.g., the 
Centers for Disease Control, Public Health Service, World Health 
Organization) have determined that persons with a particular condition 
should not be permitted to travel or should travel only under 
conditions specified by the public health authorities;
    (2) An individual has a condition that is both readily 
transmissible by casual contact in the context of traveling on or using 
a passenger vessel and has serious health consequences.

    Example 1 to paragraph 39.31(b)(2). A passenger has a common 
cold. This condition is readily transmissible by casual contact but 
does not have serious health consequences. You may not take any of 
the actions listed in paragraph (a) of this section.
    Example 2 to paragraph 39.31(b)(2): A passenger has HIV/AIDS. 
This condition is not readily transmissible by casual contact but 
does have serious health consequences. You may not take any of the 
actions listed in paragraph (a) of this section.
    Example 3 to paragraph 39.31(b)(2): A passenger has SARS or a 
norovirus. These conditions are readily transmissible by casual 
contact and have serious health consequences. You may take an action 
listed in paragraph (a) of this section.
    Example 4 to paragraph 39.31(b)(2). A passenger has a condition 
that is not readily transmissible by casual contact to or does not 
have serious health consequences for the general passenger 
population. However, it is possible that it could be readily 
transmitted by casual contact with and have serious health 
consequences for an individual with a severe allergy or severely 
compromised immune system. You may not take any of the actions 
listed in paragraph (a) of this section.

    (c) Any action of those listed in paragraph (a) of this section 
that you take under paragraph (b) of this section must be the least 
drastic action you can take to protect the health of other passengers. 
For example, if you can protect the health of other passenger by 
imposing a condition on the transportation of a passenger with a 
communicable disease (e.g., limiting the passenger's access to certain 
facilities on the vessel for a period of time), you cannot totally deny 
transportation on the vessel.
    (d) For purposes of paragraph (a)(4) of this section, a medical 
certificate is a written statement from the passenger's physician 
saying that the passenger's disease or infection would not, under the 
present conditions in the particular passenger's case, be readily 
communicable to other persons by casual contact during the normal 
course of the passenger's transportation or use of the vessel. Such a 
medical certificate must state any conditions or precautions that would 
have to be observed to prevent the transmission of the disease or 
infection to other persons in the normal course of the passenger's 
transportation on or use of the vessel. It must be sufficiently recent 
to pertain directly to the communicable disease presented by the 
passenger at the time the passenger seeks to board the vessel.
    (e) If your action under this section results in the postponement 
of a passenger's transportation or use of the vessel, you must permit 
the passenger to travel or use the vessel at a later available time (up 
to one year from the date of the postponed trip or use of the vessel) 
at the cost that would have applied to the passenger's originally 
scheduled trip or use of the vessel without penalty or, at the 
passenger's discretion, provide a refund for any unused transportation 
or use of the vessel. If there is no available reservation within one 
year, you must provide a refund.
    (f) If you take any action under this section that restricts a 
passenger's transportation or use of the vessel, you must, on the 
passenger's request, provide a written explanation within 10 days of 
the request.

[[Page 38898]]

Sec.  39.33  May PVOs require a passenger with a disability to provide 
a medical certificate?

    Except as provided in Sec.  39.31, you must not require a passenger 
with a disability to have a medical certificate as a condition for 
being provided transportation on your vessel.


Sec.  39.35  May PVOs require a passenger with a disability to provide 
advance notice that he or she is traveling on or using a passenger 
vessel when no particular services are sought?

    As a PVO, you must not require a passenger with a disability to 
provide advance notice of the fact that he or she is traveling on or 
using a passenger vessel when the passenger is not seeking particular 
auxiliary aids or services, or special privileges or services, that in 
order to be provided need to be arranged before the passenger arrives 
to board the vessel. The PVO always has an obligation to provide 
effective communication between the PVO and individuals who are deaf or 
hard of hearing or blind or visually impaired through the use of 
appropriate auxiliary aids and services.


Sec.  39.37  May PVOs require a passenger with a disability to provide 
advance notice in order to obtain particular auxiliary aids and 
services or to arrange group travel?

    (a) Except as provided in this section, as a PVO you must not 
require a passenger with a disability to provide advance notice in 
order to obtain services or privileges required by this Part.
    (b) If 10 or more passengers with a disability seek to travel as a 
group, you may require 72 hours advance notice for the group's travel.
    (c) With respect to providing particular auxiliary aids and 
services, you may request reasonable advance notice to guarantee the 
availability of those aids or services.
    (d) Your reservation and other administrative systems must ensure 
that when passengers provide the advance notice that you require, 
consistent with this section, for services and privileges, the notice 
is communicated, clearly and on time, to the people responsible for 
providing the requested service or accommodation.


Sec.  39.39  How do PVOs ensure that passengers with disabilities are 
able to use accessible cabins?

    (a) As a PVO operating a vessel that has accessible cabins, you 
must follow the requirements of this Part to ensure that passengers 
with disabilities who need accessible cabins have nondiscriminatory 
access to them.
    (b) You must, with respect to reservations made by any means (e.g., 
telephone, Internet, in person, or through a third party):
    (1) Modify your policies, practices, or procedures to ensure that 
individuals with disabilities can make reservations for accessible 
cabins during the same hours and in the same manner as individuals who 
do not need accessible cabins;
    (2) Identify and describe accessible features in the cabins offered 
through your reservations service in enough detail to permit 
individuals with disabilities to assess independently whether a given 
cabin meets his or her accessibility needs.
    (3) Ensure that accessible cabins are held for use by individuals 
with disabilities until all other cabins in that class of service have 
been rented;
    (4) Reserve accessible cabins upon request by a passenger with 
disabilities and ensure that the specific accessible cabin reserved by 
that passenger is held for him or her, even you do not normally hold 
specific cabins for passengers who make reservations.
    (c) You may release unsold accessible cabins to persons without 
disabilities for their own use when all other cabins in the same class 
of service and price for a voyage have been reserved.
    (d) If a passenger with a disability seeks to reserve an accessible 
cabin in a given class of service, and there is not an available 
accessible cabin in that class of service, but there is an available 
accessible cabin in a different class of service, you must allow the 
passenger to reserve that accessible cabin at the price of the 
requested class of service of the class of service in which the 
accessible cabin exists, whichever is lower.
    (e) As a PVO, you are never required to deny transportation to any 
passenger who has already reserved passage in order to accommodate a 
passenger with a disability in an accessible cabin.
    (f) You must not require proof of disability, including, for 
example, a doctor's note, before reserving an accessible cabin.
    (g) To prevent fraud in the assignment of accessible cabins (e.g., 
attempts by individuals who do not have disabilities to reserve 
accessible cabins because they have greater space, you--
    (1) Must inquire of persons seeking to reserve such cabins whether 
the individual (or an individual for whom the cabin is being reserved) 
has a mobility disability or a disability that requires the use of the 
accessible features that are provided in the cabin.
    (2) May require a written attestation from the individual that 
accessible cabin is for a person who has a mobility disability or a 
disability that requires the use of the accessible features that are 
provided in the cabin.
    (h) You must investigate the potential misuse of accessible cabins 
where there is good cause to believe that such cabins have been 
purchased fraudulently, and you may take appropriate action against 
someone who has reserved or purchased such a cabin fraudulently. For 
example, if an individual who does not have a disability reserves an 
accessible cabin, after having attested that he or she has a mobility 
disability, you may deny transportation to the individual.


Sec.  39.41  May a passenger with a disability be required to travel 
with another person?

    (a) You must not require that a passenger with a disability travel 
with another person as a condition of being provided transportation on 
or use of a passenger vessel.
    (b) Your personnel are not required to perform personal tasks 
(e.g., assisting with eating, dressing, toileting) for a passenger.


Sec.  39.43  May PVOs impose special charges on passengers with a 
disability for providing services required by this rule?

    (a) As a PVO, you must not charge higher fares, surcharges, or 
other fees to passengers with a disability that are not imposed on 
other passengers for transportation or use of the vessel.
    (b) If the accommodations on a vessel that are accessible to 
passengers with a disability are available only in a type or class of 
service or part of a vessel that are more expensive than the type or 
class of service or part of a vessel that the passenger requests, you 
must provide the accessible accommodation at the price of the type or 
class of service or facility that the passenger requests.
    (c) You must not impose special or extra charges for providing 
facilities, equipment, or services that this rule requires to be 
provided to passengers with a disability.


Sec.  39.45  May PVOs impose other restrictions on passengers with a 
disability that they do not impose on other passengers?

    (a) As a PVO, you must not subject passengers with a disability to 
restrictions that do not apply to other passengers, except as otherwise 
explicitly permitted in this Part.
    (b) Restrictions you must not impose on passengers with a 
disability include, but are not limited to, the following:
    (1) Restricting passengers' movement within the vessel or a 
terminal;
    (2) Requiring passengers to remain in a holding area or other 
location in order to receive transportation or services;

[[Page 38899]]

    (4) Requiring passengers to wear badges or other special 
identification; or
    (5) Requiring ambulatory passengers, including but not limited to 
blind or visually impaired passengers, to use a wheelchair or other 
mobility device in order to receive assistance required by this Part or 
otherwise offered to the passenger.
    (c) Special muster stations for disabled individuals are 
permissible for emergency evacuations in order to centrally locate 
available resources.


Sec.  39.47  May PVOs require passengers with a disability to sign 
waivers or releases?

    (a) As a PVO, you must not require passengers with a disability to 
sign any release or waiver of liability not required of all passengers 
in order to receive transportation or use of a vessel or to receive 
services relating to a disability.
    (b) You must not require passengers with a disability to sign 
waivers of liability for damage to or loss of wheelchairs or other 
mobility or assistive devices.

Subpart C--Information for Passengers


Sec.  39.51  What is the general requirement for PVOs' provision of 
auxiliary aids and services to passengers?

    (a) If you are a PVO that is a public entity, you must furnish 
appropriate auxiliary aids and services where necessary to afford an 
individual with a disability an equal opportunity to participate in, 
and enjoy the benefits of, a service, program or activity. In 
determining what type of auxiliary aid or service is necessary, you 
must give primary consideration to the requests of individuals with 
disabilities.
    (b) If you are a PVO that is a private entity, you must furnish 
appropriate auxiliary aids or services where necessary to ensure 
effective communication with individuals with disabilities.
    (c) If a provision of a particular auxiliary aid or service would 
result in a fundamental alteration in the nature of the goods, 
services, facilities, privileges, advantages, or accommodations being 
offered or in an undue burden, you shall provide an alternative 
auxiliary aid or service, if one exists, that would not result in a 
fundamental alteration or undue burden but would nevertheless ensure 
that, to the maximum extent possible, individuals with disabilities 
receive the goods, services, facilities, privileges, advantages, or 
accommodations you offer.
    (d) As a PVO, it is your responsibility, not that of a passenger 
with a disability, to provide needed auxiliary aids and services.


Sec.  39.53  What information must PVOs provide to passengers with a 
disability?

    As a PVO, you must provide the following information to individuals 
who self-identify as having a disability (including those who are deaf 
or hard of hearing or who are blind or visually impaired) or who 
request disability-related information, or persons making inquiries on 
the behalf of such persons. The information you provide must, to the 
maximum extent feasible, be specific to the vessel a person is seeking 
to travel on or use.
    (a) The availability of accessible facilities on the vessel 
including, but not limited to, means of boarding the vessel, toilet 
rooms, staterooms, decks, dining, and recreational facilities.
    (b) Any limitations of the usability of the vessel or portions of 
the vessel by people with mobility impairments;
    (c) Any limitations on the accessibility of boarding and 
disembarking at ports at which the vessel will call (e.g., because of 
the use of inaccessible lighters or tenders as the means of coming to 
or from the vessel);
    (d) Any limitations on the accessibility of services or tours 
ancillary to the transportation provided by the vessel concerning which 
the PVO makes arrangements available to passengers;
    (e) Any limitations on the ability of a passenger to take a service 
animal off the vessel at foreign ports at which the vessel will call 
(e.g., because of quarantine regulations) and provisions for the care 
of an animal acceptable to the PVO that the passenger must meet when 
the passenger disembarks at a port at which the animal must remain 
aboard the vessel.
    (f) The services, including auxiliary aids and services, available 
to individuals who are deaf or hard of hearing or blind or visually 
impaired.
    (g) Any limitations on the ability of the vessel to accommodate 
passengers with a disability.
    (h) Any limitations on the accessibility of boarding and 
disembarking at ports at which the vessel will call and services or 
tours ancillary to the transportation provided by the vessel concerning 
which the PVO makes arrangements available to passengers.


Sec.  39.55  Must information and reservation services of PVOs be 
accessible to individuals with hearing or vision impairments?

    This section applies to information and reservation services made 
available to persons in the United States.
    (a) If, as a PVO, you provide telephone reservation or information 
service to the public, you must make this service available to 
individuals who are deaf or hard-of-hearing and who use a text 
telephone (TTY) or a TTY relay service (TRS).
    (1) You must make service to TTY/TRS users available during the 
same hours as telephone service for the general public.
    (2) Your response time to TTY/TRS calls must be equivalent to your 
response time for your telephone service to the general public.
    (3) You must meet this requirement by [date one year from the 
effective date of this Part].
    (b) If, as a PVO, you provide written (i.e., hard copy) information 
to the public, you must ensure that this information is able to be 
communicated effectively, on request, to persons with vision 
impairments. You must provide this information in the same language(s) 
in which you make it available to the general public.


Sec.  39.57  Must PVOs make copies of this rule available to 
passengers?

    As a PVO, you must keep a current copy of this Part on each vessel 
and each U.S. port or terminal you serve and make it available to 
passengers on request. If you are an entity that does not receive 
Federal financial assistance, you are not required to make this copy 
available in languages other than English. You must make it available 
in accessible formats on request, subject to the provisions of Sec.  
39.51(c).

Subpart D--Accessibility of Landside Facilities


Sec.  39.61  What requirements must PVOs meet concerning the 
accessibility of terminals and other landside facilities?

    As a PVO, you must comply with the following requirements with 
respect to all terminal and other landside facilities you own, lease, 
or control in the United States (including its territories, 
possessions, and commonwealths):
    (a) With respect to new facilities, you must do the following:
    (1) You must ensure that terminal facilities are readily accessible 
to and usable by individuals with disabilities, including individuals 
who use wheeled mobility assistive devices. You are deemed to comply 
with this obligation if the facilities meet the requirements of 49 CFR 
37.9, and the standards referenced in that section.
    (2) You must ensure that there is an accessible route between the 
terminal or other passenger waiting area and the boarding ramp or 
device used for the vessel. An accessible route is one

[[Page 38900]]

meeting the requirements of the standards referenced in 49 CFR 37.9.
    (b) When a facility is altered, the altered portion must meet the 
same standards that would apply to a new facility.
    (c) With respect to an existing facility, your obligations are the 
following:
    (1) If you are a public entity, you must ensure that your terminals 
and other landside facilities meet program accessibility requirements, 
consistent with Department of Justice requirements at 28 CFR 35.150.
    (2) If you are a private entity, you are required to remove 
architectural barriers where doing so is readily achievable, i.e., 
easily accomplishable and able to be carried out without much 
difficulty or expense, consistent with Department of Justice 
requirements at 28 CFR 36.304 or, if not readily achievable, ensure 
that your goods, services, facilities, privileges, advantages, or 
accommodations are available through alternative methods if those 
methods are readily achievable, consistent with Department of Justice 
regulations at 28 CFR 36.305.
    (d) Where you share responsibility for ensuring accessibility of a 
facility with another entity, you and the other entity are jointly and 
severally responsible for meeting applicable accessibility 
requirements.


Sec.  39.63  What modifications and auxiliary aids and services are 
required at terminals and other landside facilities for individuals 
with hearing or vision impairments?

    (a) As a PVO, you must ensure that the information you provide to 
the general public at terminals and other landside facilities is 
effectively communicated to individuals who are blind or who have 
impaired vision and deaf or hard-of-hearing individuals, through the 
use of auxiliary aids and services. To the extent that this information 
is not available to these individuals through accessible signage and/or 
verbal public address announcements or other means, your personnel must 
promptly provide the information to such individuals on their request, 
in languages (e.g., English, Norwegian, Japanese) in which the 
information is provided to the general public.
    (b) The types of information you must make available include, but 
are not limited to, information concerning ticketing, fares, schedules 
and delays, and the checking and claiming of luggage.

Subpart E--Accessibility of Vessels [Reserved]

Subpart F--Assistance and Services to Passengers With Disabilities


Sec.  39.81  What assistance must PVOs provide to passengers with a 
disability in getting to and from a passenger vessel?

    (a) As a PVO, if you provide, contract for, or otherwise arrange 
for transportation to and from a passenger vessel in the U.S. (e.g., a 
bus transfer from an airport to a vessel terminal), you must ensure 
that the transfer service is accessible to and usable by individuals 
with disabilities, as required by this Part.
    (b) You must also provide assistance requested by or on behalf of a 
passenger with a disability in moving between the terminal entrance (or 
a vehicle drop-off point adjacent to the entrance) of a terminal in the 
U.S. and the place where people get on or off the passenger vessel. 
This requirement includes assistance in accessing key functional areas 
of the terminal, such as ticket counters and baggage checking/claim. It 
also includes a brief stop upon request at an accessible toilet room.


Sec.  39.83  What are PVOs' obligations for assisting passengers with a 
disability in getting on and off a passenger vessel?

    (a) If a passenger with a disability can readily get on or off a 
passenger vessel without assistance, you are not required to provide 
such assistance to the passenger. You must not require such a passenger 
with a disability to accept assistance from you in getting on or off 
the vessel unless it is provided to all passengers as a matter of 
course.
    (b) With respect to a passenger with a disability who is not able 
to get on or off a passenger vessel without assistance, you must 
promptly provide assistance that ensures that the passenger can get on 
or off the vessel.
    (c) When you have to provide assistance to a passenger with a 
disability in getting on or off a passenger vessel, you may use any 
available means to which the passenger consents (e.g., lifts, ramps, 
boarding chairs, assistance by vessel personnel).


Sec.  39.85  What services must PVOs provide to passengers with a 
disability on board a passenger vessel?

    As a PVO, you must provide services on board the vessel as 
requested by or on behalf of passengers with a disability, or when 
offered by PVO personnel and accepted by passengers with a disability, 
as follows:
    (a) Assistance in moving about the vessel, with respect to any 
physical barriers rendering an area not readily accessible and usable 
to the passenger.
    (b) If food is provided to passengers on the vessel, assistance in 
preparation for eating, such as opening packages and identifying food;
    (c) Effective communication with passengers who have vision 
impairments or who are deaf or hard-of-hearing, so that these 
passengers have timely access to information the PVO provides to other 
passengers (e.g., weather, on-board services, delays).


Sec.  39.87  What services are PVOs not required to provide to 
passengers with a disability on board a passenger vessel?

    As a PVO, you are not required to provide extensive special 
assistance to passengers with a disability. For purposes of this 
section, extensive special assistance includes the following 
activities:
    (a) Assistance in actual eating;
    (b) Assistance within a toilet room or assistance elsewhere on the 
vessel with elimination functions; and
    (c) Provision of medical equipment or services, or personal 
devices, except to the extent provided to all passengers.


Sec.  39.89  What requirements apply to on-board safety briefings, 
information, and drills?

    As a PVO, you must comply with the following requirements with 
respect to safety briefings, information, or drills provided to 
passengers:
    (a) You must provide the briefings or other safety-related 
information through means that effectively communicate their content to 
persons with vision or hearing impairments, using auxiliary aids and 
services where necessary for effective communication. This includes 
providing written materials in alternative formats that persons with 
vision impairments can use.
    (b) You must not require any passenger with a disability to 
demonstrate that he or she has listened to, read, or understood the 
information presented, except to the extent that you impose such a 
requirement on all passengers. You must not take any action adverse to 
a qualified individual with a disability on the basis that the person 
has not ``accepted'' the briefing.
    (c) As a PVO, if you present on-board safety briefings to 
passengers on video screens, you must ensure that the safety-video 
presentation is accessible to passengers with impaired hearing (e.g., 
through use of captioning or placement of a sign language interpreter 
in the video).
    (d) You must provide whatever assistance is necessary to enable 
passengers with disabilities to

[[Page 38901]]

participate fully in safety or emergency evacuation drills provided to 
all passengers.
    (e) You must maintain evacuation programs, information, and 
equipment in locations that passengers can readily access and use.


Sec.  39.91  Must PVOs permit passengers with a disability to travel 
with service animals?

    (a) As a PVO, you must permit service animals to accompany 
passengers with a disability.
    (b) You must permit the service animal to accompany the passenger 
in all locations that passengers can use on a vessel, including in 
lifeboats.
    (c) You must permit the passenger accompanied by the service animal 
to bring aboard a reasonable quantity of food for the animal aboard the 
vessel at no additional charge. If your vessel provides overnight 
accommodations, you must also provide reasonable refrigeration space 
for the service animal food.
    (d) You must accept the following as evidence that an animal is a 
service animal: Identification cards, other written documentation, 
presence of harnesses, tags, and/or the credible verbal assurances of a 
passenger with a disability using the animal.
    (e) If the legal requirements of a foreign government (e.g., 
quarantine regulations) do not permit a service animal to disembark at 
a foreign port, as a PVO you may require the animal to remain on board 
while its user leaves the vessel. You must work with the animal's user 
to ensure that the animal is properly cared for during the user's 
absence.


Sec.  39.93  What wheelchairs and other assistive devices may 
passengers with a disability bring onto a passenger vessel?

    (a) As a PVO subject to Title III of the ADA, you must permit 
individuals with mobility disabilities to use wheelchairs and manually 
powered mobility aids, such as walkers, crutches, canes, braces, or 
other similar devices designed for use by individuals with mobility 
disabilities in any areas open to pedestrian use.
    (b)(1) As A PVO subject to Title III of the ADA, you must make 
reasonable modifications in your policies, practices, or procedures to 
permit the use of other power-driven mobility devices by individuals 
with mobility disabilities, unless you can demonstrate that a device 
cannot be operated on board the vessel consistent with legitimate 
safety requirements you have established for the vessel.
    (2) In determining whether a particular other power-driven mobility 
device can be allowed on a specific vessel as a reasonable modification 
under paragraph (b)(1) of this section, the PVO must consider:
    (i) The type, size, weight, dimensions, and speed of the device;
    (ii) The vessel's volume of pedestrian traffic (which may vary at 
different times of the day, week, month, or year);
    (iii) The vessel's design and operational characteristics (e.g., 
the size and balance requirements of the vessel, the density and 
placement of stationary devices, and the availability of storage for 
the device, if requested by the user);
    (iv) Whether legitimate safety requirements can be established to 
permit the safe operation of a device in the specific vessel; and
    (c)(1) As a PVO subject to Title III of the ADA, you must not ask 
an individual using a wheelchair or other power-driven mobility device 
questions about the nature and extent of the individual's disability.
    (2) You may ask a person using an other power-driven mobility 
device to provide a credible assurance that the mobility device is 
required because of the person's disability. In response to this 
inquiry, you must accept the presentation of a valid, State-issued 
disability parking placard or card, or State-issued proof of disability 
as a credible assurance that the use of the other power-driven mobility 
device is for the individual's mobility disability. In lieu of a valid, 
State-issued disability parking placard or card, or State-issued proof 
of disability, a PVO shall accept as a credible assurance a verbal 
representation not contradicted by observable fact, that the other 
power-driven mobility device is being used for a mobility disability.
    (d) As a PVO subject to Title II of the ADA, you must follow the 
requirements of paragraphs (a) through (c) of this section. In 
addition, any restriction you impose on the use of an other powered 
mobility device on your vessel must be limited to the minimum necessary 
to meet a legitimate safety requirement. For example, if a device can 
be accommodated in some spaces of the vessel but not others because of 
a legitimate safety requirement, you could not completely exclude the 
device from the vessel.
    (e) As a PVO, you are not required to permit passengers with a 
disability to bring wheelchairs or other powered mobility devices into 
lifeboats or other survival craft, in the context of an emergency 
evacuation of the vessel.


Sec.  39.95  May PVOs limit their liability for loss of or damage to 
wheelchairs or other assistive devices?

    Consistent with any applicable requirements of international law, 
you must not apply any liability limits with respect to loss of or 
damage to wheeled mobility assistive devices or other assistive 
devices. The criterion for calculating the compensation for a lost, 
damaged, or destroyed wheelchair or other assistive device is the 
original purchase price of the device.

Subpart G--Complaints and Enforcement Procedures


Sec.  39.101  What are the requirements for providing Complaints 
Resolution Officials?

    (a) As a PVO, you must designate one or more Complaints Resolution 
Officials (CROs).
    (b) You must make a CRO available for contact on each vessel and at 
each terminal that you serve. The CRO may be made available in person 
or via telephone, if at no cost to the passenger. If a telephone link 
to the CRO is used, TTY or TRS service must be available so that 
persons with hearing impairments may readily communicate with the CRO. 
You must make CRO service available in the language(s) in which you 
make your other services available to the general public.
    (c) You must make passengers with a disability aware of the 
availability of a CRO and how to contact the CRO in the following 
circumstances:
    (1) In any situation in which any person complains or raises a 
concern with your personnel about discrimination, policies, or services 
with respect to passengers with a disability, and your personnel do not 
immediately resolve the issue to the customer's satisfaction or provide 
a requested accommodation, your personnel must immediately inform the 
passenger of the right to contact a CRO and the location and/or phone 
number of the CRO available on the vessel or at the terminal. Your 
personnel must provide this information to the passenger in a format he 
or she can use.
    (2) Your reservation agents, contractors, and Web sites must 
provide information equivalent to that required by paragraph (c)(1) of 
this section to passengers with a disability using those services.
    (d) Each CRO must be thoroughly familiar with the requirements of 
this Part and the PVO's procedures with respect to passengers with a 
disability. The CRO is intended to be the PVO's ``expert'' in 
compliance with the requirements of this Part.
    (e) You must ensure that each of your CROs has the authority to 
make

[[Page 38902]]

dispositive resolution of complaints on behalf of the PVO. This means 
that the CRO must have the power to overrule the decision of any other 
personnel, except that the CRO may not be given authority to 
countermand a decision of the master of a vessel with respect to safety 
matters.


Sec.  39.103  What actions do CROs take on complaints?

    When a complaint is made directly to a CRO (e.g., orally, by phone, 
TTY) the CRO must promptly take dispositive action as follows:
    (a) If the complaint is made to a CRO before the action or proposed 
action of PVO personnel has resulted in a violation of a provision of 
this Part, the CRO must take, or direct other PVO personnel to take, 
whatever action is necessary to ensure compliance with this Part.
    (b) If an alleged violation of a provision of this Part has already 
occurred, and the CRO agrees that a violation has occurred, the CRO 
must provide to the complainant a written statement setting forth a 
summary of the facts and what steps, if any, the PVO proposes to take 
in response to the violation.
    (c) If the CRO determines that the PVO's action does not violate a 
provision of this Part, the CRO must provide to the complainant a 
written statement including a summary of the facts and the reasons, 
under this Part, for the determination.
    (d) The statements required to be provided under this section must 
inform the complainant of his or her right to complain to the 
Department of Transportation and/or Department of Justice. The CRO must 
provide the statement in person to the complainant in person if 
possible; otherwise, it must be transmitted to the complainant within 
10 calendar days of the complaint.


Sec.  39.105  How must PVOs respond to written complaints?

    (a) As a PVO, you must respond to written complaints received by 
any means (e.g., letter, fax, e-mail, electronic instant message) 
concerning matters covered by this Part.
    (b) A passenger making a written complaint, must state whether he 
or she had contacted a CRO in the matter, provide the name of the CRO 
and the date of the contact, if available, and enclose any written 
response received from the CRO.
    (c) As a PVO, you are not required to respond to a complaint from a 
passenger postmarked or transmitted more than 45 days after the date of 
the incident.
    (d) As a PVO, you must make a dispositive written response to a 
written disability complaint within 30 days of its receipt. The 
response must specifically admit or deny that a violation of this part 
has occurred. The response must be effectively communicated to the 
recipient.
    (1) If you admit that a violation has occurred, you must provide to 
the complainant a written statement setting forth a summary of the 
facts and the steps, if any, you will take in response to the 
violation.
    (2) If you deny that a violation has occurred, your response must 
include a summary of the facts and your reasons, under this Part, for 
the determination.
    (3) Your response must also inform the complainant of his or her 
right to pursue DOT or DOJ enforcement action under this part, as 
applicable. DOT has enforcement authority under Title II of the ADA for 
public entities and under section 504 of the Rehabilitation Act for 
entities that receive Federal financial assistance; DOJ has enforcement 
authority under Title III of the ADA for private entities.


Sec.  39.107  Where may persons obtain assistance with matters covered 
by this regulation?

    A passenger, PVO, or any other person may obtain information, 
guidance, or other assistance concerning 49 CFR part 39 from then DOT 
Departmental Office of Civil Rights and/or DOT Office of General 
Counsel, 1200 New Jersey Avenue, SE., Washington, DC 20590.


Sec.  39.109  What enforcement actions may be taken under this Part?

    (a) The Department of Transportation investigates complaints and 
conducts reviews or other inquiries into the compliance with this Part 
of PVOs that are Title II entities.
    (b) As a PVO subject to Title II of the ADA, you must be prepared 
to provide to the Department of Transportation a written explanation of 
your action in any situation in which you exclude or restrict an 
individual with a disability or any mobility or other assistive device 
used by such an individual with respect to the use of your vessel.
    (c) The Department of Transportation investigates complaints 
conducts compliance reviews or other inquiries into the compliance of 
this Part of PVOs, whether private or public entities, that receive 
Federal financial assistance from the Department, under section 504 of 
the Rehabilitation Act of 1973, as amended.
    (d) The Department may refer any matter concerning the compliance 
of PVOs with this Part to the Department of Justice for enforcement 
action.
    (e) The Department of Justice investigates complaints and conducts 
reviews or other inquiries into the compliance with this Part of PVOs 
that are Title III entities.
    (f) The Department of Justice may file suit in Federal court 
against both Title II and Title III PVOs for violations of this part.

[FR Doc. 2010-15101 Filed 7-2-10; 8:45 am]
BILLING CODE 4910-9X-P