Transportation for Individuals With Disabilities: Passenger Vessels, 2833-2851 [E7-362]
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Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules
(Catalog of Federal Domestic Assistance No.
83.100, ‘‘Flood Insurance.’’)
Dated: January 12, 2007.
David I. Maurstad,
Director, Mitigation Division, Federal
Emergency Management Agency, Department
of Homeland Security.
[FR Doc. E7–887 Filed 1–22–07; 8:45 am]
BILLING CODE 9110–12–P
DEPARTMENT OF TRANSPORTATION
49 CFR Part 39
[Docket OST 2007 26829]
RIN 2105–AB87
Transportation for Individuals With
Disabilities: Passenger Vessels
Department of Transportation,
Office of the Secretary.
ACTION: Notice of proposed rulemaking.
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AGENCY:
SUMMARY: The Department is proposing
to issue a new Americans with
Disabilities Act (ADA) rule to ensure
nondiscrimination on the basis of
disability by passenger vessels. This
notice of proposed rulemaking (NPRM)
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 Access Board.
Comment Closing Date: Comments
should be submitted by April 23, 2007.
Late-filed comments will be considered
to the extent practicable.
ADDRESSES: You may submit comments
identified by the docket number [OST
2007–26829] by any of the following
methods:
• Web site: https://dms.dot.gov.
Follow the instructions for submitting
comments on the DOT electronic docket
site.
• Federal e-Rulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: (202) 493–2251.
• Mail: Docket Management System;
U.S. Department of Transportation, 400
Seventh Street, SW., Nassif Building,
Room PL–401, Washington, DC 20590–
0001.
• Hand Delivery: To the Docket
Management System; Room PL–401 on
the plaza level of the Nassif Building,
400 Seventh Street, SW., Washington,
DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
Instructions: You must include the
agency name and docket number [OST–
2007–26829] or the Regulatory
Identification Number (RIN) for this
rulemaking at the beginning of your
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comment. Note that all comments
received will be posted without change
to https://dms.dot.gov, including any
personal information provided.
Docket: You may view the public
docket through the Internet at https://
dms.dot.gov or in person at the Docket
Management System office at the above
address.
FOR FURTHER INFORMATION CONTACT:
Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and
Enforcement, Department of
Transportation, 400 7th Street, SW.,
Room 10424, Washington, DC 20590–
0001. (202) 366–9306 (voice); (202) 755–
7687 (TDD); bob.ashby@dot.gov (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 on which the Department
has yet to propose rules is
transportation by passenger vessels.
With this NPRM, the Department is
beginning the process of filling this
remaining gap in our coverage of
transportation for individuals with
disabilities.
Background
When the Department issued its first
Americans with Disabilities Act (ADA)
rules in 1991, we explicitly asserted
coverage over passenger vessels. The
Department reserved action on
passenger vessels in the regulatory text
of this final rule, and we 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 § 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. We note that the DOJ has determined
that passenger vessels encompassing places
of public accommodation (e.g., cruise ships,
floating restaurants) are subject to the general
nondiscrimination and policies and practices
portions of its Title III rule (Subparts B and
C of 28 CFR Part 36). 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,
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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 selfcontained 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. As
noted above, DOJ covers cruise ships as
public accommodations under its Title III
rules.
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 (§ 304(a)). ‘‘Specified public
transportation’’ is defined by § 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 recently
affirmed the Department’s long-held
view that the ADA covers passenger
vessels, specifically including foreignflag 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
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the ship operators’ policies and
conditions relating to transportation of
passengers with disabilities (e.g., higher
fares or surcharges for disabled
passengers, 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
NPRM.
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 it 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 we envision it, the
final rule resulting from such a future
NPRM would ultimately be joined with
a final rule resulting from the current
proposed 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 that concerned the
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 rules exempt
transfers of persons from larger vessels
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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 will discuss these
comments in context of the individual
sections of the proposed rule.
Section-by-Section Analysis
§ 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.
§ 39.3 What do the terms in this rule
mean?
This section proposes definitions of
terms in this rule. Many of the
definitions are based on parallel
definitions in the Department’s ADA
and Air Carrier Access Act (ACAA)
regulations or Department of Justice
rules, adapted to the passenger vessel
context. This preamble discussion
focuses on terms that are specific to the
passenger vessel context. Other terms
would have the same meanings as they
do in other DOT disability rules.
Because this NPRM 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
definition of ‘‘direct threat,’’ drawn from
Department of Justice regulations,
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 by definition
cannot be a direct threat.
In addition to vessels, ‘‘facilities’’
include landside facilities that a vessel
operator owns, leases, or controls in the
U.S. (including its territories,
possessions, and commonwealths). 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. Facilities
in these three categories would be
covered directly by Part 39. The
Department seeks comment on how
responsibilities should be allocated
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when there are multiple PVOs who
operate at a given landside facility or
who only use the facility infrequently.
The Department realizes that entities
other than PVOs, such as municipalities
or other private businesses, may own,
lease, or control 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. We envision
the relationship between the facility
owner/controller and the PVO to be
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). We seek comment
on whether landside facility-specific
language should be added to the
Department’s other ADA or section 504
rules.
The NPRM does not propose making
this requirement applicable to facilities
located outside the U.S. However, we
seek comment on whether the final rule
should apply to facilities outside the
U.S. if a PVO (as distinct from another
foreign entity) owns, leases, or controls
the facility.
The definition of ‘‘historic vessel’’ is
also one that is likely to become more
significant when future rulemakings add
physical accessibility standards to Part
39. Following practice in other portions
of the ADA, it is likely that historic
vessels (e.g., the USS Constellation in
Baltimore harbor) would be exempted
from some accessibility requirements.
‘‘New,’’ ‘‘existing,’’ and ‘‘used’’
passenger vessel are also terms that will
be of greater importance once physical
accessibility standards are in place.
They are based on new and used vehicle
definitions in the Department’s ADA
rules for surface transportation modes.
With respect to the definition of ‘‘new
passenger vessel,’’ which will be used in
connection with vessel standards in
Subpart E when they are added to the
regulation, we seek comment on
transition rules. That is, at what point
in the procurement, design,
construction, and delivery of a vessel
should requirements for new vessels
attach?
‘‘Operates’’ means the provision of
transportation or other service by any
public or private entity on a passenger
vessel. Importantly, it also includes the
provision of transportation or other
service by another party having a
contractual or other arrangement or
relationship with the entity involved.
As in other parts of the Department’s
accessibility rules, a party can contract
out its functions, but cannot contract
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away its responsibilities. By ‘‘other
services,’’ we mean activities that take
place on a vessel other than simply
going from Point A to Point B (e.g., food
service, recreation, entertainment,
gambling). This section would also
cover situations in which a vessel makes
a round trip from Point A to Point A,
like some dinner, excursion, and
gambling vessels do.
‘‘Passenger vessel’’ is meant to be a
broadly encompassing term for any boat,
ship, or other craft that takes on
members of the public for hire or other
activities conducted as a part of the
vessel operators normal operations
(which could include promotional
activities involving use of a vessel by
members of the public for which a fare
is not charged, free shuttle or ferry
service). The only exception is for boats
or other craft that are rented or leased
to consumers and which the consumers
themselves (as distinct from the
passenger vessel operator and its
personnel) operate. The Department
seeks comment on whether there are
any additional situations that the rule
should cover (e.g., the PVO or an
organization to which the PVO makes
the vessel available provides a
charitable or promotional excursion for
which no fee is charged). The
Department also seeks comment on
whether there should be exceptions or
different provisions for vessels that are
not primarily designed or used as
passenger vessels, but may carry
passengers for hire on certain occasions
(e.g., supply vessels, crew boats, school
training or sailing vessels, research
vessels carrying students).
In some cases, such as certain on-thewater gambling casinos, museums, or
restaurants, an activity takes place on a
structure that floats but is permanently
anchored or tethered to a dock or other
shore facility. On one hand, because it
floats on the water, such a structure
could be regarded as a vessel covered by
this rule. On the other hand, because it
never actually goes anywhere, it could
be regarded as a facility, like an onshore building, that is more
appropriately covered by Department of
Justice rules. We seek comment on this
matter.
The ‘‘passenger vessel operator’’
(PVO) 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 different parties involved, and yet
another party responsible for the day-today operation of the vessel. In such
situations, all the parties involved
would be jointly and severally
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responsible for compliance with these
rules.
For the most part, ‘‘passenger with a
disability’’ and ‘‘qualified individual
with a disability’’ have the same
meaning for purposes of the proposed
rule. There could be situations in which
a qualified individual with a disability
may not actually be a passenger, or in
which someone is seeking to perform
functions on behalf of a person with a
disability. The ‘‘passenger with a
disability’’ term includes both situations
in which someone buys a ticket to travel
on a vessel and situations (e.g., a
gambling boat) in which members of the
public go on board, without a ticket, to
use the services provided on the vessel,
regardless of whether the vessel leaves
its dock or mooring.
‘‘Terminal’’ would be defined
broadly, meaning any 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.,
POV[A1] selects site for construction of
new facility; or PVO has choice of
docking at existing accessible or
inaccessible facility).
As noted in the discussion of
‘‘facility,’’ the Department seeks
comment on whether Part 39 should
apply to a terminal located outside the
U.S. if the PVO is involved in one of
these ways. If the PVO does none of
these things, the terminal would not in
any circumstance be covered under Part
39, though other parts of the ADA and
section 504 of the Rehabilitation Act of
1973, as amended, may well apply to
terminals located in the U.S. We also
note that activities that a PVO itself
conducts, regardless of the facility in
which they are conducted, would be
expected to be available to persons with
disabilities.
In other transportation contexts, there
has been considerable discussion of
whether the long-standing definition of
‘‘wheelchair’’ remains adequate, in light
of the development and use of mobility
devices that may not fit within the
definition. We seek comment on this
question in the context of passenger
vessels. Should there be a definition
that specifically acknowledges mobility
devices that may not literally be
‘‘wheelchairs,’’ or should a more
inclusive term be developed?
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§ 39.5 To whom do the provisions of
this part apply?
The Department proposes that the
provisions of this part apply to all
passenger vessels, regardless of size.
There are two 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. The Department
seeks comment on a situation that may
occur, in which tickets are sold to U.S.
passengers for a combined trip that
includes transportation to a non-U.S.
port where they board a ship. For
example, suppose Grand Fenwick
Cruise Lines sells a package to U.S.
passengers including air fare from New
York to the Bahamas, where passengers
board the S.S. Grand Duchess Gloriana
for a Caribbean cruise; should the ship
transportation be covered for purposes
of Part 39 nondiscrimination rules?
The second exception concerns the
future vessel accessibility standards.
The NPRM reserves paragraph (c),
which would state the scope of the
applicability of these standards. The
Department notes that the July 2006
draft Access Board vessel [A2] would
limit their application vessels permitted
to carry over 150 passengers or over 49
overnight passenger capacity categories,
as well as tenders with a capacity of 59
or more and all ferries. The Department
currently anticipates following the
Access Board’s final guidelines, when
they are issued, with respect to
coverage. The Department also seeks
comment on whether there should be
any vessel size or capacity limits on any
of the specific nondiscrimination
provisions that are proposed in this
NPRM with respect to subjects other
than vessel accessibility standards.
§ 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.
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§ 39.9 What may a PVO of a foreignflag vessel do if it believes that a
provision of a foreign nation’s law
prohibits compliance with a provision of
this part?
§ 39.11 How may a PVO obtain
approval to use an equivalent
facilitation?
These sections provide means by
which PVOs may obtain DOT
authorization to do something different
from what these regulations would
require. Section 39.9, which parallels
language in the Department’s proposed
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 were required
to comply with contradictory legal
requirements, the NPRM proposes that
PVOs seeking a waiver would have 90
days from the publication of the final
rule to file a waiver request. If the PVO
filed a complete waiver request 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.
Section 39.11, on the other hand,
concerns a potentially wider range of
situations in which a PVO applies to the
Department for authorization to provide
a different means of compliance with a
requirement of the DOT rules than the
rules themselves specify. Equivalent
facilitations can apply to the details of
physical accessibility standards, when
they become part of the rule, but could
also apply to policy and administrative
matters covered by the rule. It is
important to note that to be considered
an equivalent facilitation, the different
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means of compliance must provide
equal or greater accessibility than that
required by the regulatory text.
§ 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 phasein period to comply with requirements
pertaining to denials of transportation
on the basis of disability, extra or
special charges, personal or safety
assistants, advance notice, waivers of
liability, etc. The Department would
hope and expect that most PVOs are
already acting in ways that are in
compliance with these
nondiscrimination policy and
administrative practice requirements. If
not, then this NPRM should put PVOs
on notice that changes in their policies
may be necessary in the near future.
There are some provisions of the
proposed rule concerning which it
would be reasonable for PVOs to have
a longer phase-in period, however.
Specific sections on such matters as
modifications to terminals and other
landside facilities and training for
personnel have proposed compliance
dates intended to give PVOs a
reasonable time to meet requirements.
The Department seeks comment on
these proposed compliance dates, as
well as on whether there are other
provisions on which PVOs would need
additional time to comply.
§ 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 would call attention
particularly to paragraph (b), which
would require 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 be unduly
burdensome or require a fundamental
alteration in the nature of the PVO’s
services, programs, or activities.
§ 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
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ensure, through provisions in the
contracts or other agreements with such
third parties, that the third parties
comply with applicable requirements.
We seek comment on whether, if at all,
contractors outside the United States
should be covered by this requirement.
All new contracts and other agreements
must have this assurance language. The
Department seeks comment on whether
the rule should require the addition of
assurance language to existing contracts
and agreements, and, if so, what the
compliance period for such additions
should be. Since PVOs cannot contract
away their responsibilities, PVOs
remain responsible for the third parties’
actions. This would be true, in the
Department’s view, even with respect to
actions of third parties where the PVO’s
agreements with the third parties did
not yet include assurance language.
§ 39.25 May PVOs limit the numbers of
passengers with a disability on a
passenger vessel?
The Department views any policy
limiting the number on passengers with
a disability on a vessel as discriminatory
on its face. With respect to the concern
expressed by ICCL about large groups of
passengers with a disability traveling
together, we believe that the provision
of § 39.35 permitting PVOs to ask for
advance notice in this situation (e.g., so
as to be able to make the needed
reconfigurations of the flexible space in
overnight accommodations that ICCL’s
comment mentions) should be helpful.
§ 39.27 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 direct threat
criteria outlined in paragraph (c), 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
explanation to the person within 10
days of the denial (paragraph (d)).
The Department recognizes that,
particularly prior to the adoption of
physical accessibility standards, some
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vessels will not have accommodations
that will permit persons with some
disabilities to travel on or to obtain
some services on 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 which can
be accessed only by using steps. The
Department would not, in such a
situation, regard a PVO’s statement to a
passenger about the lack of adequate
physical accommodations as equivalent
to a policy denying access on the basis
of disability.
§ 39.29 May PVOs limit access to
transportation on or use of a vessel on
the basis that a passenger has a
communicable disease or other medical
condition?
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§ 39.31 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 a variety of medical
conditions (e.g., heart disease) may have
at least temporary disabilities. If there is
reasonable doubt that a passenger with
a medical condition can complete a
given trip or use a vessel without
requiring extraordinary medical
assistance, then this rule would permit
the PVO to require a medical certificate
from the individual. In applying this
requirement, the Department believes it
is reasonable for the PVO to take into
account the length of the passenger’s
stay aboard 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 makes a direct threat
determination. In the communicable
disease area, the Department believes
that PVOs should consider two factors.
One is the severity of the consequences
of a disease; the other is whether the
disease can readily be communicated by
casual contact. Only if a disease has
severe consequences to the health of
other persons and is readily
communicable by casual contact could
a PVO legitimately determine that there
is a direct threat. For example, HIV/
AIDS has severe consequences, but is
not readily communicable by casual
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contact. The common cold is readily
communicable by casual contact but
typically does not have severe health
consequences. Consequently, having a
cold or having 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, in the future, a readily
human-to-human transmissible avian
flu pandemic might well qualify. PVOs
could legitimately take into account
determinations by public health
authorities about the travel of persons
with a certain disease (e.g., if the
Centers for Disease Control or World
Health Organization issued a finding
that persons with a certain disease or
symptoms should not travel).
In any case in which a medical
certificate may be required or a
limitation on a passenger’s travel be
imposed, the limitation should be the
minimum needed to deal with the
medical issue or direct threat to the
health of others. For example, the PVO
would not be authorized to deny
transportation to an individual if a less
drastic alternative, such as the use of a
personal assistant or the passenger’s use
of medical measures that would mitigate
the transmission of an illness is
available.
If a PVO refuses transportation to a
passenger with a disability on grounds
related to a medical condition, the
NPRM proposes that the PVO would
have to permit the passenger to travel or
use the vessel at any time within a year
at the same price as the original trip or,
at the passenger’s discretion, provide a
refund. The Department seeks comment
on whether and how to apply this
concept to situations in which an
equivalent trip is not available within a
year (e.g., Grand Fenwick Cruise Lines
makes only one trip to Tierra del Fuego
every three years, or the S.S. Grand
Duchess Gloriana’s trips are all fully
booked for the next year). The
Department also seeks comment on
how, if at all, the availability of trip
insurance to the individual passenger
should be related to this proposed
provision.
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§ 39.33 May PVOs require a passenger
with a disability to provide advance
notice that he or she is traveling on or
using a passenger vessel?
§ 39.35 May PVOs require a passenger
with a disability to provide advance
notice in order to obtain certain services
in connection with transportation on or
use of a passenger vessel?
In these related sections, the
Department is saying, first, that it is
never appropriate for a PVO to require
a person to provide advance notice that
he or she is coming, just because he or
she has a disability. The PVO’s
nondiscriminatory policies and
practices should be in place, ready to
deal with whoever shows up. On the
other hand, there may be specific
accommodations for which provision of
advance notice is needed. One that
seems reasonable is when a large
number of people with a disability plan
to travel as a group. The NPRM uses the
ACAA standard of a group of 10 or more
disabled passengers traveling as a group.
We seek comment on whether this
concept should be refined to recognize
the possibility that some groups of
disabled passengers traveling together
may not need any special
accommodations. In such a case, is the
advance notice provision advisable?
A second instance where advance
notice could be helpful concerns a
request for an accessible overnight
cabin. The Department’s proposal on
this subject is intended to grapple with
the reported problem of nondisabled
travelers reserving an accessible cabin
because it is roomier, thus denying its
availability to a disabled passenger who
may subsequently seek the
accommodation. Under the proposal,
everyone reserving an accessible cabin
would be informed that, if a passenger
with a disability made a reservation at
least 72 hours before the vessel’s
scheduled departure and requested an
accessible cabin, any nondisabled
person who had previously reserved the
cabin would be moved to another cabin,
if one were available. The NPRM would
not require any passenger to be bumped
from a voyage as a result, only
reassigned to a different cabin.
Obviously, the operation of this
provision would depend on selfidentification by the passenger with a
disability of his or her need for the
accessible cabin.
The Department seeks comment on
whether the rule should specify in more
detail the kinds of disabilities that
would trigger this provision (e.g.,
should the provision be limited to
persons with mobility impairments?) or
whether the PVO should be permitted,
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or required, to seek documentation of a
disability from a passenger seeking to
reserve such an accommodation. We
also seek suggestions for any alternative
means of addressing this issue. We
recognize that, especially on some
cruise ships, it is commonplace for
travelers to reserve cabins months in
advance. It is also commonplace for
whole voyages to be sold out months in
advance. We seek comment, thus, on
whether a passenger with a disability
who requested an accessible cabin 72
hours before departure could
appropriately bump a nondisabled
passenger from a cabin reserved months
ahead of time. Similarly, we seek
comment on whether a deadline for
requesting an accessible cabin should be
72 hours or another fixed time before
departure or, alternatively, based on
when passengers in general reserve their
cabins. (If the latter, for example, an
accessible cabin might have to be
requested before half of all cabins are
reserved.) Additionally, we seek
comment on whether, as we do in the
ADA rule for over-the-road buses, we
should provide that any cut-off date for
reservations in general should also be
applied to requests for an accessible
cabin.
The Department recognizes that,
pending the development of passenger
vessel physical accessibility standards,
even new vessels are not required to
have a particular number of accessible
cabins. This provision would apply to
the accessible cabins that now exist, as
well as any others that may become
available in the future. We also
recognize that there could be situations
in which an accessible room would not
be available to a passenger with a
disability because another passenger
with a disability had already reserved
the room. Other than treating such
situations as a ‘‘first-come first-served’’
manner, do commenters have any
suggestions for resolving such a
situation?
The Department also seeks comment
on whether 72 hours would be a
reasonable amount of advance notice in
these situations and on whether there
are other services for which an advance
notice requirement would be
reasonable.
There could be situations in which a
similar principle could arguably apply
to other shipboard activities. For
example, some cruise ships may assign
seats for dinner. If a passenger with a
disability was unable, because of
barriers in the dining area, to get readily
to his or her assigned seat, could it be
viewed as a reasonable modification of
the PVO’s seating policy to shift dining
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table assignments of other passengers to
provide accessibility to a dining table?
If so, taking into account any disruption
of the operator’s seating plans or of the
other passengers’ seating arrangements,
would a request for an accessible table
have to be made a specified number of
hours before departure? The Department
seeks comment on this or similar issues
involving on-board activities.
§ 39.37 May PVOs require a passenger
with a disability to travel with a
personal or safety assistant?
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. On the other
hand, there can be situations in which
traveling with another person as a safety
assistant is essential for safety purposes.
Paragraph (b) spells out three situations
in which it would be justifiable to
impose a requirement for a safety
assistant. These situations are drawn
from the similar provision of the
Department’s ACAA rule, and the
Department seeks comment on any
other situations in vessel contexts where
such a requirement could be justified.
As ICCL’s comment noted, because
some passenger voyages are much
longer than airplane flights, there may
be situations in which a personal
assistant is necessary (the ACAA rule
never permits a requirement for
personal assistants, as distinct from
persons needed to assist with an
emergency evacuation, in air travel).
Consequently, the Department proposes
that if a passenger with a disability
needs a personal assistant to help
perform key personal tasks, such as
eating, toileting, and dressing, and the
passenger’s use of the vessel will be
lengthy enough so that the passenger
will need to perform these tasks, the
PVO may require the passenger with a
disability to have a personal assistant.
For shorter voyages akin in length to
airplane flights, the PVO could not
impose such a requirement. However,
for a longer voyage (e.g., a multi-day
cruise), the PVO could do so.
The Department recognizes that there
can be situations in which a passenger
and a PVO disagree about whether a
safety or personal assistant is necessary.
In these situations, the proposed rule
contemplates that the PVO would have
the last word, and could require the
attendant over the passenger’s
objections. However, in such a situation,
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the rule would require the PVO to put
its money where its mouth is, and not
charge for the transportation or use of
the vessel by the assistant who the
passenger was involuntarily required to
bring along. As under the ACAA rule
(where a similar provision has been in
effect since 1990 without causing
significant disruptions), the PVO could
designate a member of its own staff or
a passenger volunteer as the assistant, in
order to deter any potential abuse by a
passenger who would, for example,
unreasonably object to the use of an
assistant in order to secure free
transportation for a friend or family
member.
§ 39.39 May PVOs impose special
charges on passengers with a disability
for providing services and
accommodations 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. For example,
suppose a passenger with a disability
tries to make a reservation for an inside
cabin. However, the only accessible
cabins on the vessel are in the more
expensive outside cabins with windows.
The PVO would have to provide the
accessible cabin to the passenger with a
disability at the price of the less
expensive accommodation he or she had
requested. This is consistent with ADA
practice in other contexts, such as
booking of hotel rooms or sleeping
compartments on Amtrak trains.
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§ 39.41 May PVOs impose restrictions
on passengers with a disability that they
do not impose on other passengers?
§ 39.43 May PVOs require passengers
with a disability to sign waivers or
releases?
The NPRM 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.
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§ 39.51 What information must PVOs
provide to passengers with a disability?
The Department recognizes that
vessels and facilities will not be equally
accessible; that some vessels, ports,
services, and facilities may not be
usable by persons with some
disabilities. This section would require
PVOs to inform people with disabilities,
accurately and in detail, about what
they can expect. What features of a
vessel are accessible and what are not?
What limitations, if any, are there
concerning the ability of a vessel to
accommodate persons with a particular
disability? At what ports could
passengers with a disability expect to be
able to get on and off the ship, and by
what means? If third parties are making
tours and excursions available to
passengers, to what extent are these
tours accessible to persons with a
particular disability? 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.
§ 39.53 Must information and
reservation services of PVOs be
accessible to individuals with hearing or
vision impairments?
This section would apply 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. The first
proposed requirement is for TTY service
for persons with hearing impairments.
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The Department is aware that some deaf
and hard-of-hearing persons now may
use other technologies in preference to
TTYs (e.g., videophones, instant
messaging), and we seek comment on
how, if at all, this development should
be reflected in a final rule.
On-line booking services, as well as
web sites providing information about
passenger vessel availability, schedules,
and services, are very important in
today’s marketplace. Consequently, the
Department views it as very important
for on-line resources to be available to
persons with disabilities. We would
view a web site meeting section 508 or
World Wide Web Consortium standards
as being accessible for this purpose. The
regulatory text does not make a specific
proposal on this subject, but we seek
comment on whether the final rule
based on this NPRM, or a future rule
incorporating vessel accessibility
standards, should include such a
requirement. We also seek comment on
the costs of requiring Web site
accessibility in the passenger vessel
industry, the appropriate standards for
accessible sites, and the timing and
phase-in period appropriate for such a
requirement.
§ 39.55 Must PVOs make copies of this
rule available to passengers?
The NPRM would propose that PVOs
maintain a copy of the rule on each
vessel and at each U.S. terminal. The
purpose of doing so would be to make
the rule readily available for reference
in case a question occurred about
whether a PVO was acting consistently
with its requirements.
§ 39.57 What is the general
requirement for PVOs’ communications
with passengers?
This section states the general
effective communication requirement
for PVOs.
§ 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. 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 case a public entity or another
private entity would own or control the
facility, in which the other entity would
have its own ADA and/or 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. As noted
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2839
in the discussion of the definition of
‘‘facility,’’ the Department seeks
comment on whether a PVO covered by
this rule should have accessibility
obligations for a foreign facility that the
PVO itself, as distinct from a separate
foreign entity, owns, controls or leases.
The rule would make a familiar threepart breakdown of accessibility
responsibilities for covered facilities.
New facilities must meet accessibility
standards from the beginning. In the
case of an alteration, the altered portion
of the existing facility would have to be
brought up to the same accessibility
standards applicable to new facilities.
For existing facilities not otherwise
being altered, the PVO would have 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.
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 has responsibilities in
its own right under Title II or III or the
ADA or 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.
We also recognize that there can be
instances in which a vessel berths at a
floating dock, rather than literally at a
landside facility. We would propose to
treat such a floating dock in the same
way as a landside facility for
accessibility purposes, but we seek
comment on whether any different
treatment would be appropriate.
The Department seeks comment on
whether it would be advisable to add
specific provisions similar to §§ 37.41,
37.43, and 37.45 in the Department’s
existing ADA rule for the new
construction and alteration of passenger
vessel facilities, including provisions for
alterations affecting areas containing a
primary function that are subject to
additional requirements for path of
travel.
§ 39.63 What accommodations are
required at terminals and other landside
facilities for individuals with hearing or
vision impairments?
This section specifies the effective
communications that would have to be
provided at terminals and other
landside facilities to ensure that persons
with sensory impairments would be
able to receive the information
otherwise available to the public,
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adoption of the Access Board’s final
passenger vessel guidelines, to propose
adding requirements concerning
telephones and televisions as a DOT
modification to the guidelines.
Subpart E—Accessibility of Vessels
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concerning such subjects as ticketing,
fares, and schedules. There would be a
one-year phase-in period for this
requirement, which would apply to
existing as well as new facilities.
§ 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. PVOs would be
responsible for making sure that these
services were accessible to people with
disabilities. The Department seeks
comment on the extent, if any, to which
such a requirement should apply to
services provided outside the U.S. (e.g.,
Grand Fenwick Cruise Lines itself
provides, or contracts with a local bus
company to provide, land transportation
between the dock and points of interest
in Barbados).
This subpart would be reserved. It is
a place-holder for the subsequent
inclusion of passenger physical
accessibility standards based on future
Access Board guidelines. We note that,
in connection with any rule
incorporating the guidelines as DOT
standards, DOT would designate an
agency as the ‘‘administrative authority’’
to make certain determinations. We
anticipate that the Department would
designate the U.S. Coast Guard, with
that agency’s consent, as the
administrative authority for many of
these provisions, for foreign-flag as well
as U.S. vessels. It is not necessary for
this NPRM to propose this designation,
since it logically would be part of a
future NPRM proposing to adopt Access
Board guidelines as DOT regulatory
standards.
There are, however, some facility
accessibility issues that may not be
covered by future Access Board
guidelines. For example, we seek
comment on whether a provision should
be added for accessibility of televisions
and telephones on vessels, similar to
what DOT has proposed for air carriers
pursuant to the Air Carrier Access Act
(see 71 FR 9285 (February 23, 2006)).
The Access Board’s guidelines will not
address televisions and telephones in
passenger rooms since they are not fixed
elements.
It is our understanding that cruise
ships typically provide televisions in
passenger rooms and lounges. The
Television Decoder Circuitry Act
requires televisions with screens 13
inches or greater to contain built-in
circuitry that receives and decodes
closed captions. Cruise ships also
typically provide telephones in
passenger rooms. The Hearing Aid
Compatibility Act and FCC rules require
certain telephones to have volume
controls and to be compatible with
hearing aid technology. We seek
information on whether cruise ships are
currently providing televisions that are
capable of receiving and decoding
closed captions, and hearing aid
compatible telephones with volume
controls.
The Department does not intend to
impose requirements in this area in the
final rule resulting from this NPRM.
Rather, we are seeking comment on this
subject in order to determine whether,
in a future NPRM that would propose
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§ 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. We note that a number of
comments to the ANPRM 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 will use any means
necessary to ensure that all passengers
can safely evacuate.
On some occasions, it may be the
custom on cruise ships or other vessels
with overnight accommodations to
temporarily store luggage in
passageways in preparation for
disembarkation at the end of a voyage.
This may have the effect of preventing
passengers with disabilities from using
otherwise accessible routes. The
Department seeks comment on the
extent of this problem and what
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requirements in a final rule, if any,
should be devised to address it.
The Department also seeks comment
on whether a provision should be added
that would require the use of accessible
boarding systems, as described in
§ V412 of the Access Board’s draft
guidelines, for vessels with a certain
passenger capacity at terminals that
have a certain threshold level of annual
embarkations, similar to the provision
in DOT’s Air Carrier Access rule. See 14
CFR 382.40(a). If so, what vessel
passenger capacity and threshold level
of annual embarkations should be used
for requiring accessible boarding
systems? Also, if a provision is added
requiring accessible boarding systems at
certain terminals, would it be advisable
to require the PVO negotiate an
agreement with the terminal operator to
ensure the provision of accessible
boarding systems, similar to the
provision in DOT’s Air Carrier Access
Act and section 504 rules concerning
boarding devices for commuter aircraft?
See 14 CFR 382.40(b) and (c). Such an
approach might also require amendment
of the DOT 504 rule, 49 CFR Part 27.
§ 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?
These sections concern services that
PVOs would, or need not, provide to
passengers with a disability. The
services in question 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
would 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) would not be required.
Effective communication of on-board
information would be required.
§ 39.89 What requirements apply to
on-board safety briefings, information,
and drills?
This section specifies that safetyrelated information must be
communicated effectively to passengers
with disabilities. This can include the
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use of alternative formats and other
auxiliary aids, 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.
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. The Department seeks
comment on whether any special
accommodations would be needed to
assist persons with cognitive
disabilities.
§ 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.
ICCL raised a number of service
animal-related comments in its ANPRM
response. We agree that 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 a cruise ship.
Limitations on the ability of a service
animal to leave the ship at a foreign port
would be among the information that a
cruise ship would provide to potential
customers inquiring about an upcoming
cruise. We also agree that PVOs would
not be required to supply food for the
animal. We seek comment on whether it
is necessary to require PVOs to permit
passengers with a disability to bring
their own supplies of food for the
service animal on board, without charge
by the PVO. We also seek comment on
whether PVOs should make
refrigeration services available for
service animal food.
ICCL commented that service animals
typically share the cabin of the
passengers who use them. The
Department does not see an objection to
this practice, though we seek comment
on whether service animal users have
had any problems in this regard.
We would 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 the proposed rule
would prohibit). It is not self-evident
that having a number of service animals
on board a ship at a given time would
be disruptive to ship operations, and
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vague concerns about adverse effects on
the quality of the cruise experience for
other passengers do not trump the
nondiscrimination imperative of the
ADA.
The Department is not proposing, at
this time, to adopt ACAA service animal
guidance for other transportation
contexts, though the general principles
behind this guidance apply across the
board to all transportation and public
accommodations applications of the
ADA. The Department anticipates that,
following the publication of a final rule
on passenger vessels, it would work
with stakeholders to develop more
detailed guidance on this subject for
passenger vessels. One issue the
Department would likely address in
such guidance is the extent to which
PVOs could inquire as to the status of
an animal as a service animal (e.g., to
prevent potential abuse from persons
wanting to bring pets on board the
vessel in ways inconsistent with the
PVO’s policy on pets).
One issue that arises, especially in the
context of longer voyages, concerns
service animal relief areas. The
Department seeks comment what
requirements, if any, should be included
in a final rule concerning the provision
of such areas. Should a final rule specify
the number and location of such areas?
We are glad to see from the ICCL
comment that cruise operators typically
provide relief areas.
ICCL, of course, represents the cruise
industry, which frequently operates
larger ships than other PVOs. The
Department seeks comment on whether,
with respect to any of the issues
discussed in this section, there should
be differing requirements for smaller
vessels.
§ 39.93 What mobility aids 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 mobility
aids and other assistive devices?
These sections say simply that
passengers should be permitted to bring
and use their own mobility aids and
other assistive devices on board a
vessel. Once the devices are there, if the
PVO is responsible for loss or damage,
the PVO must compensate the owner, at
the level of the original purchase price
of the device. This measure of the level
of compensation is derived from the
Department’s ACAA rule. We also seek
comment on alternative methods of
measuring the appropriate level of
compensation, such as the depreciated
present value of the device or the
current replacement cost for the device.
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§ 39.101 What are the requirements for
providing Complaints Resolution
Officials?
§ 39.103 What actions do CROs take
on complaints?
The role of the Complaints Resolution
Official (CRO) was first developed in the
Department’s 1990 ACAA regulations,
and it has proved very helpful in the
airline service context. As applied in the
passenger vessel context, the CRO
would be the PVO’s expert in disability
matters, knowledgeable about both the
Department’s regulations and the PVO’s
procedures, and able to assist
passengers with disabilities and other
PVO personnel in resolving issues. We
believe that the CRO model can
potentially be adapted very well to
passenger vessels, with the intent of
solving problems at the PVO level
before they become matters for
complaints to the Department or for
litigation. These proposed provisions
are modeled closely on the ACAA CRO
provisions, and the Department seeks
comment on what changes, if any,
should be made in adapting this model
to passenger vessels.
As in the airline context, the
Department does not intend to mandate
that CRO duties necessarily be full-time
for a given employee. PVOs could, for
example, train a number of different
vessel and landside personnel to act as
CROs, who might perform these
functions as a collateral duty.
PVOs are likely to find it necessary to
ensure that not only CROs, but also
other personnel who interact with
passengers, are trained sufficiently to be
knowledgeable about the requirements
of these rules and proficient in
performing tasks related to passengers
with disabilities. If they are not, it is
likely that mistakes will be made that
would potentially lead to
noncompliance. The Department seeks
comment on what, if any, training
requirements should be included in a
final rule.
One model that the Department could
consider would resemble the training
requirements in the ACAA rule. This
model would involve training to
proficiency concerning the requirements
of this rule; the PVO’s procedures with
respect to the provision of
transportation or use of a passenger
vessel to passengers with a disability,
including the proper and safe operation
of any equipment used to accommodate
passengers with a disability; the use of
the equipment used by the PVO and
appropriate assistance procedures that
safeguard the safety and dignity of
passengers. Training on the ACAA
model would also address such matters
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as awareness and appropriate responses
to passengers with a disability,
including persons with physical,
sensory, mental, and emotional
disabilities, including how to
distinguish among the differing abilities
of individuals with a disability.
Training on this model would cover
contractor personnel as well as direct
employees of PVOs. The Department
seeks comment on whether such a
requirement is advisable. We also seek
comment on alternative training models
that might be appropriate.
The Department also seeks comment
on what the costs of training are likely
to be. With respect to training, the
Department does not currently have
data concerning the number of PVO
personnel who would have to be trained
or the costs per person of such training.
We seek data from the industry or other
sources on this matter. We point out
that, in the regulatory evaluation for the
Department’s 2004 NPRM to expand
ACAA coverage to foreign air carriers,
the Department projected annual
training costs of around $9.5 million, for
an industry that probably has an
affected work force of that may be of
roughly comparable size.
If there is such a training requirement,
the Department seeks comment on what
time frames or deadlines we should
establish for completing the training.
We also seek comment on what, if any,
reporting or record retention
requirements there should be
concerning training. The Department
does not, at this time, contemplate
drafting a training curriculum or
certifying the training of PVO personnel.
§ 39.105 How must PVOs respond to
written complaints?
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§ 39.107 Where may passengers file
complaints?
These provisions are also based on
current ACAA procedures, and we again
seek comment on how they may best be
adapted to the passenger vessel context.
We also seek comment on whether this
rule should include a reporting
requirement, analogous to that of the
ACAA rule (see 14 CFR 382.70). The
purpose of such a requirement would be
to help the Department identify types of
issues that may need additional
attention or particular PVOs that may be
having problems in a particular area in
which the Department could focus
compliance efforts. Should such a
requirement be limited to PVOs
operating vessels over a certain size
(e.g., 50 passenger capacity)? Is a
requirement similar to that of the ACAA
a good idea in the vessel context, or is
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there a different or simpler approach we
could take toward complaint reporting?
The final rule would include detailed
information on addresses, phone
numbers, etc. where complaints could
be filed at DOT or DOJ. Obviously, a
passenger dissatisfied with the PVO’s
resolution of a complaint could file a
complaint with DOT or DOJ.
§ 39.109 What enforcement action 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.
DOJ can, of course, conduct
enforcement proceedings on its own
initiative.
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
504 rules, and FTA could take
enforcement action as provided in those
rules.
Regulatory Analyses and Notices
The Department believes that this
NPRM proposes a significant rule for
Executive Order 12866 and DOT
Regulatory Policies and Procedures
purposes. While the NPRM does not
impose significant costs, it addresses
issues that are of considerable policy
interest and would create requirements
for entities that have not previously
been subject to regulation. In a future
rulemaking, the Department anticipates
proposing, in conjunction with the
Access Board, physical accessibility
standards for vessels. This future
rulemaking is expected to involve a
more detailed regulatory evaluation
with respect to the costs and benefits of
its proposals, and it is also likely to be
a significant rulemaking.
This NPRM focuses on prohibiting
unnecessary practices that have
discriminatory effects, such as extra
charges and denials of transportation.
Observing such prohibitions will not
have significant cost impacts on PVOs.
According to ANPRM comments, many
PVOs already provide boarding
assistance and other services to
passengers with disabilities, so it is
reasonable to assume that the passenger
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assistance provisions of the NPRM
would not have large incremental costs.
We seek comment and data on these
matters, however. As a general matter,
we seek comment on whether any fuller
regulatory evaluation or analysis
concerning the cost of the proposed
provisions or other matters should be
developed in connection with the final
rule.
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 proposed rule
are the largely non-quantifiable benefits
of increased access and mobility for
passengers with disabilities. These
proposals would eliminate most policies
of PVOs that would prevent or inhibit
travel by persons with disabilities. The
benefits that would 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 would 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 did
not immediately choose to use a
passenger vessel would know that
barriers to such travel had 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 the proposed
rule would 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
would 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 proposed
rule. The Department seeks data that
would assist in quantifying these
potential benefits.
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For the reasons stated above, the
Department believes that compliance
with the provisions proposed in this
NPRM would have very low costs. That
is, avoiding discriminatory policies and
providing improved information to
passengers with disabilities would not
impose substantial costs on regulated
parties generally. Therefore, the
Department certifies that this NPRM, if
adopted, would not have substantial
economic effects on a significant
number of small entities.
Nevertheless, the Department seeks
comment on small entity-related issues,
including whether there should be
provisions that mitigate any burdens on
small entities resulting from the
proposed requirements. This
information would include data on
numbers of companies and vessels
(domestic and foreign-flag) that would
be affected. In addition, the Department
seeks comment on what standard
should be used for analyzing small
entity impacts with respect to passenger
vessel transportation. Small Business
Administration (SBA) size standards in
13 CFR Part 121 establish a 500employee standard (i.e., any entity with
fewer employees would be regarded as
a small business for SBA purposes). Is
there any reason for using a different
standard for purposes of this rulemaking
(e.g., a PVO which does not operate any
boats above a certain size)?
While there are some state and local
entities (i.e. operators of state or
municipal ferry systems) that would be
covered by this proposed rule, most
regulated parties would be private
sector entities. As noted above, we do
not expect significant economic impacts
on any regulated parties from the
proposed rule. Consequently, we have
concluded that there are not sufficient
Federalism impacts to warrant the
preparation of a Federalism assessment.
As a civil rights rule, this proposal is
not subject to review with respect to
unfunded mandates.
Issued this 5th day of January 2007, at
Washington, DC.
Mary E. Peters,
Secretary of Transportation.
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List of Subjects for 49 CFR Part 39
Individuals with disabilities, Mass
transportation, Passenger vessels.
For the reasons set forth in the
preamble, the Department of
Transportation proposes to add a new
49 CFR Part 39, to read as follows:
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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 How may a PVO obtain approval to
use an equivalent facilitation?
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 limit the number of
passengers with a disability on a
passenger vessel?
39.27 May PVOs refuse to provide
transportation or use of a vessel on the
basis of disability?
39.29 May PVOs limit access to
transportation or use of a vessel on the
basis that a passenger has a
communicable disease or other medical
condition?
39.31 May PVOs require a passenger with a
disability to provide a medical
certificate?
39.33 May PVOs require a passenger with a
disability to provide advance notice that
he or she is traveling on or using a
passenger vessel?
39.35 May PVOs require a passenger with a
disability to provide advance notice in
order to obtain certain specific services
in connection with transportation on or
use of a passenger vessel?
39.37 May PVOs require a passenger with a
disability to travel with a personal or
safety assistant?
39.39 May PVOs impose special charges on
passengers with a disability for
providing services and accommodations
required by this rule?
39.41 May PVOs impose other restrictions
on passengers with a disability that they
do not impose on other passengers?
39.43 May PVOs require passengers with a
disability to sign waivers or releases?
Subpart C—Information for Passengers
39.51 What information must PVOs
provide to passengers with a disability?
39.53 Must information and reservation
services of PVOs be accessible to
individuals with hearing or vision
impairments?
39.55 Must PVOs make copies of this rule
available to passengers?
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39.57 What is the general requirement for
PVOs’ communications with passengers?
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 accommodations 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 mobility aids 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 mobility aids 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 passengers file
complaints?
39.109 What enforcement action may be
taken under this part?
Authority: 42 U.S.C. 12101 through 12213;
49 U.S.C. 322.
Subpart A—General
§ 39.1
What is the purpose of this part?
The purpose of this part is to carry out
the Americans with Disabilities Act
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 a
disability.
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§ 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 accessibility
requirements of this part.
‘‘Alteration’’ means a change to a
passenger vessel or facility that affects
or could affect the usability of the
vessel, facility, or a portion thereof.
Alterations include, but are not limited
to, remodeling, renovation,
rehabilitation, reconstruction, historic
restoration, changes or rearrangement in
structural parts or elements, and
changes or rearrangement in the plan
configuration of walls, bulkheads, and
partitions. Normal maintenance,
reroofing, painting or wallpapering,
asbestos removal, or changes to
propulsion, mechanical or electrical
systems are not alterations unless they
affect the usability of the passenger
vessel or facility.
‘‘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 and medications.
‘‘Auxiliary aids and services’’
includes:
(1) Qualified interpreters, notetakers,
transcription services, written materials,
telephone headset amplifiers, assistive
listening devices, assistive listening
systems, telephones compatible with
hearing aids, closed caption decoders,
closed and open captioning, text
telephones (also known as telephone
devices for the deaf, or TDDs), videotext
displays, or other effective methods of
making aurally delivered materials
available to individuals with hearing
impairments;
(2) Qualified readers, taped texts,
audio recordings, Braille materials, large
print materials, or other effective
methods of making visually delivered
materials available to individuals with
visual impairments;
(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.
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‘‘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.
‘‘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.
‘‘Department’’ or ‘‘DOT’’ means the
United States Department of
Transportation, including the Office of
the Secretary of Transportation, the
Federal Transit Administration, the
Federal Highway Administration, and
the Maritime Administration.
‘‘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,
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seeing, hearing, speaking, breathing,
learning, and working;
(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.
(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;
(iii) Psychoactive substance abuse
disorders resulting from the current
illegal use of drugs.
‘‘Existing vessel’’ means a passenger
vessel in existence at the time of the
effective date of Subpart E of this part.
‘‘Facility’’ means terminals and any of
landside facilities related to the use of
passenger vessels in the United States
(including its territories, possessions,
and commonwealths) that a vessel
owner or operator owns, leases, or
controls (e.g., terminals, boarding
ramps, walks, parking lots, ticketing
areas, baggage drop-off and retrieval
sites) normally used by passengers or
other members of the public.
‘‘Historic vessel’’ means a craft, ship,
or boat of historic significance that is
made available to the public to tour.
Such vessels are usually permanently
moored to a facility, but may take the
public on excursions in some cases.
‘‘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 or other service by a
public or private entity itself or by a
person under a contractual or other
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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
for hire in connection with other
revenue-generating activities. The term
includes, but is not limited to, cruise
ships, (whether U.S.- or foreign-flag);
ferries; dinner, excursion, or sightseeing
boats; boats chartered for fishing or
other private recreational activities; and
floating facilities used for gambling
(whether tethered to a dock or mobile).
The term does not include boats or other
craft rented or leased to and operated
solely by consumers.
‘‘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. The term
includes entities that are primarily
engaged in the business of transporting
people (e.g., a cruise ship or excursion
vessel) and entities that are not
primarily engaged in transporting
people (e.g., an amusement park
operator which operates a passenger
vessel to transport visitors from a
parking area to the main part of the park
or a hotel located on an island that
operates a passenger vessel to shuttle
guests from the mainland to the island).
‘‘Private entity’’ means any entity
other than a public entity.
‘‘Public entity’’ means:
(1) Any state or local government;
(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).
‘‘Purchase or lease,’’ with respect to
passenger vessels, means the time at
which an entity is legally obligated to
obtain a vessel, such as the time of
contract execution.
‘‘Qualified individual with a
disability’’ means an individual with a
disability—
(1) Who, as a passenger (referred to as
a ‘‘passenger with a disability’’),
(i) With respect to obtaining a ticket
for transportation on passenger vessel
offers, or makes a good faith attempt to
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offer, to purchase or otherwise validly to
obtain such a ticket;
(ii) With respect to obtaining
transportation on or use of a passenger
vessel, or other services or
accommodations required by this part,
(A) 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
(B) 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
(C) 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 accommodations, 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.
‘‘Solicitation’’ means the closing date
for the submission of bids or offers in a
procurement.
‘‘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.
‘‘Terminal’’ means, with respect to
passenger vessel transportation, the
portion of a property located
appurtenant to a dock, entry ramp, or
other means of boarding a passenger
vessel, including areas of interface with
land transportation, passenger shelters,
designated waiting areas, restrooms,
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concession 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 a mobility aid
belonging to any class of wheeled
devices, usable indoors, designed or
adapted for and used by individuals
with disabilities, whether operated
manually or powered. A ‘‘common
wheelchair’’ is such a device which
does not exceed 30 inches in width and
48 inches in length measured two
inches above the ground, and does not
weigh more than 600 pounds when
occupied.
‘‘You’’ means the owner or operator of
a passenger vessel, unless the context
requires a different meaning.
§ 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;
(2) A private entity primarily engaged
in the business of transporting people
whose operations affect commerce that
provides specified public
transportation; or
(3) A private entity that owns,
operates, or leases a place of public
accommodation, and you are not
primarily engaged in the business of
transporting people.
(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.
(c) [Reserved]
§ 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 Parts 35 or 36, as applicable).
The provisions of this part shall be
interpreted in a manner that will make
them consistent with applicable
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Department of Justice regulations. In
any case of apparent inconsistency, the
provisions of this part shall prevail.
§ 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 in the 90-day period between
the publication of this rule in the
Federal Register and the effective date
of this part, you may continue to apply
the foreign legal requirement pending
the Department’s response to your
waiver request.
(e) The Department may 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.
jlentini on PROD1PC65 with PROPOSAL
§ 39.11 How may a PVO obtain approval to
use an equivalent facilitation?
(a) Nothing in this part prevents the
use of designs, products, or technologies
as alternatives to those prescribed in
this part, or alternative ways of
providing accommodations and services
to passengers with disabilities, provided
they result in substantially equivalent or
greater accessibility and usability.
(b) If, as a PVO or the manufacturer
of a product or accessibility feature to be
used in a passenger vessel, you wish to
provide an equivalent facilitation in lieu
of complying with a provision of this
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part, you may request approval to do so
from the Department.
(c) You must use the following
process to request approval of an
equivalent facilitation:
(1) You must provide the following
information with your request:
(i) Entity name, address, contact
person, and telephone;
(ii) Specific provision(s) of this part or
49 CFR Part 38 concerning which the
entity is seeking a determination of
equivalent facilitation.
(iii) Alternative method of
compliance, with demonstration of how
the alternative meets or exceeds the
level of accessibility or usability of the
vessel provided this part.
(2) Before you submit your request for
equivalent facilitation, you must
provide opportunities for public
participation:
(i) You must consult in person, in
writing, or by other appropriate means,
with individuals with disabilities and
groups representing them, as well as
conduct outreach to passengers,
particularly those with disabilities. This
consultation must take place at all
stages of the development of the request
for equivalent facilitation. All
documents and other information
concerning the request shall be
available, upon request, to the
Department and members of the public.
(ii) You must make your proposed
request available for public review and
comment before the request is made
final or transmitted to DOT. In making
the request available for public review,
you must ensure that it is available,
upon request, in accessible formats.
(3) A determination whether to
approve or disapprove your request, in
whole or in part, will be made by the
Department on a case-by-case basis.
Determinations are made by the General
Counsel, with the concurrence of the
Assistant Secretary for Transportation
Policy.
(i) An approval may be conditioned
on specified actions that you agree to
take.
(ii) The Department normally
considers approving an equivalent
facilitation only with respect to the
specific situation concerning which the
request is made. However, the
Department may approve a request for
equivalent facilitation with respect to a
product or accessibility feature that the
Department determines can provide an
equivalent facilitation in a class of
situations.
(4)(i) You must not cite an approval
of a request for equivalent facilitation as
indicating that a product or method
constitutes equivalent facilitation in
situations, or classes of situations, other
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than those to which the determination
specifically pertains.
(ii) You must not claim that a
determination of equivalent facilitation
indicates approval or endorsement of
any product or method by the Federal
government or the Department of
Transportation.
§ 39.13 When must PVOs comply with the
provisions of this part?
You are required to comply with the
requirements of this part beginning
[insert effective date of the final rule],
except as otherwise provided in
individual sections of this part.
Subpart B—Nondiscrimination and
Access to Services
§ 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
the 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. This
is true even if there are separate or
different services available for
individuals with a disability, 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) You must make reasonable
modifications in policies, practices, or
procedures when the modifications are
necessary to avoid discrimination on the
basis of disability or to provide program
accessibility to your services, unless you
can demonstrate that doing so would
fundamentally alter the nature of the
service, program, or activity, or would
result in undue administrative or
financial burdens.
§ 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
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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 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.
(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
§ 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.
You are not required to include such an
assurance in contracts with foreign
travel agents.
(d) You remain responsible for your
contractors’ 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.
§ 39.25 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
on your vessel.
jlentini on PROD1PC65 with PROPOSAL
§ 39.27 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) You may refuse to provide
transportation or use of a vessel to any
passenger on the basis of safety only as
provided in this paragraph:
(1) You can determine that there is a
disability-related safety basis for
refusing to provide transportation or use
of a vessel to a passenger with a
disability if you are able to demonstrate
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that the passenger poses a direct threat
(see definition in § 39.3). In determining
whether an individual poses a direct
threat, you must make an individualized
assessment, based on reasonable
judgment that relies on current medical
knowledge or on the best available
objective evidence, to ascertain:
(i) the nature, duration, and severity
of the risk;
(ii) the probability that the potential
harm to the health and safety of others
will actually occur; and
(iii) whether reasonable modifications
of policies, practices, or procedures will
mitigate the risk.
(2) If you determine that the passenger
does pose a direct threat, you must
select the least restrictive response from
the point of view of the passenger,
consistent with protecting the health
and safety of others. For example, you
must not refuse transportation or use of
the vessel to the passenger if you can
protect the health and safety of others
by means short of a refusal (e.g., by
implementing measures recommended
by a physician in connection with a
medical certificate under § 39.31 to
prevent the transmission of a disease).
(d) 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 paragraph (c) of
this section or is 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.
§ 39.29 May PVOs limit access to
transportation or use of a vessel on the
basis that a passenger has a communicable
disease or other medical condition?
(a) You must not do any of the
following things on the basis that a
passenger has a communicable disease
or infection, unless you determine that
the passenger’s condition poses a direct
threat:
(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) In assessing whether the
passenger’s condition poses a direct
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threat, you must consider the following
factors:
(1) Whether 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;
(2) Whether 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;
(3) Whether applying the provisions
of § 39.27 (c)(1) through (2) would
otherwise lead to the conclusion that
the person poses a direct threat to the
health or safety of others.
(c) 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 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.
(d) 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.
§ 39.31 May PVOs require a passenger
with a disability to provide a medical
certificate?
(a) Except as provided in this section,
you must not require a passenger with
a disability to have a medical certificate
as a condition for being provided
transportation.
(b)(1) You may require a medical
certificate for a passenger with a
disability—
(i) Who needs medical oxygen during
his or her transportation or use of the
vessel; or
(ii) Whose medical condition is such
that there is reasonable doubt that the
individual can complete the
transportation or use of the vessel
safely, without requiring extraordinary
medical assistance.
(2) For purposes of this paragraph, a
medical certificate is a written statement
from the passenger’s physician saying
that the passenger is capable of
completing the transportation or use of
the vessel safely, without requiring
extraordinary medical assistance.
(c)(1) You may also require a medical
certificate for a passenger if he or she
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has a communicable disease or
condition that poses a direct threat to
the health or safety of others.
(2) For purposes of this paragraph, a
medical certificate is a written statement
from the passenger’s physician saying
that the disease or infection would not,
under the present conditions in the
particular passenger’s case, be
communicable to other persons during
the normal course of the passenger’s
transportation or use of the vessel. The
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 dated within 10
days of the date of the trip or use of the
vessel for which it is presented.
§ 39.33 May PVOs require a passenger
with a disability to provide advance notice
that he or she is traveling on or using a
passenger vessel?
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.
jlentini on PROD1PC65 with PROPOSAL
§ 39.35 May PVOs require a passenger
with a disability to provide advance notice
in order to obtain certain specific services
in connection with transportation on or use
of a passenger vessel?
(a) Except as provided in paragraph
(b) of this section, as a PVO you must
not require a passenger with a disability
to provide advance notice in order to
obtain services or accommodations
required by this part.
(b) (1) 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.
(2) If a passenger needs an accessible
overnight cabin, you may require 72
hours advance notice for the
accommodation. In order to ensure that
such accommodations remain available
for passengers with a disability, you
must inform other passengers who
reserve accessible cabins that, if a
person with a disability requests the
accommodation by 72 hours before the
vessel’s scheduled departure, you will
move the other person to a different
cabin.
(c) If the passenger with a disability
provides the advance notice you
require, consistent with this section, for
a service, then you must provide the
requested service or accommodation.
(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
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accommodations, the notice is
communicated, clearly and on time, to
the people responsible for providing the
requested service or accommodation.
(e) If a passenger does not meet
advance notice or check-in requirements
you establish consistent with this
section, you must still provide the
service or accommodation if you can do
so by making reasonable efforts, without
delaying the trip.
§ 39.37 May PVOs require a passenger
with a disability to travel with a personal or
safety assistant?
(a) Except as provided in paragraph
(b) of this section, 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) You may require a passenger with
a disability in one of the following
categories to travel with a safety
assistant as a condition of being
provided transportation or use of a
passenger vessel, if you determine that
a safety assistant is essential for safety:
(1) A passenger who, because of a
mental disability, is unable to
comprehend or respond appropriately to
safety instructions from vessel
personnel.
(2) A passenger with a mobility
impairment so severe that the person is
unable to assist in his or her own
evacuation from the vessel in an
emergency;
(3) A passenger who has both severe
hearing and severe vision impairments,
if the person cannot establish some
means of communication with vessel
personnel for purposes of safety
information and instructions.
(c) You may require a passenger with
a disability to have a personal assistant
if the passenger is unable to perform
personal tasks (e.g., eating, dressing,
toileting) without such an assistant, and
the duration of the transportation or use
of the vessel is long enough that the
passenger must perform one or more of
these tasks while on the vessel.
(d) If you determine that a person
meeting the criteria of paragraph (b) or
(c) of this section must travel with a
safety or personal assistant, contrary to
the individual’s self-assessment that he
or she is capable of traveling
independently, you must not charge for
the transportation of the safety assistant.
You may also designate a member of
your staff or a passenger volunteer to
perform the personal or safety assistant
role in such a case, rather than carrying
at no charge a person designated by the
passenger. In a case in which a
passenger voluntarily chooses to travel
with a personal assistant or a safety
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assistant that you do not require, you
may charge for the transportation of that
person.
§ 39.39 May PVOs impose special charges
on passengers with a disability for
providing services and accommodations
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 in a type or class of service
or part of a vessel that are more
expensive than the type or class of
service or past of[A3] 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, accommodations, or
services that this rule requires to be
provided to passengers with a disability.
§ 39.41 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, services, or
accommodations;
(3) Requiring passengers to wear
badges or other special identification; or
(4) Requiring ambulatory passengers,
including but not limited to blind or
visually impaired passengers, to use a
wheelchair in order to receive assistance
required by this part or otherwise
offered to the passenger.
§ 39.43 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 in order to
receive transportation or use of a vessel
or to receive services or
accommodations for 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 assistive devices.
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Subpart C—Information for
Passengers
make it available to passengers on
request.
§ 39.51 What information must PVOs
provide to passengers with a disability?
§ 39.57 What is the general requirement
for PVOs’ communications with
passengers?
As a PVO, you must provide the
following information to passengers
who self-identify as having a disability
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, lavatories, staterooms, decks,
dining, and recreational facilities;
(b) Any limitations on the ability of
the vessel to accommodate passengers
with a disability;
(c) 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.
jlentini on PROD1PC65 with PROPOSAL
§ 39.53 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 through use
of a text telephone (TTY).
(1) You must make TTY service
available during the same hours as
telephone service for the general public.
(2) Your response time to TTY 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 the final rule].
(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
languages(s) in which it is available to
the general public.
§ 39.55 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
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PVOs must ensure the effective
communication to passengers with
disabilities of all information provided
to passengers, through the use of
auxiliary aids where needed.
Subpart D—Accessibility of Landside
Facilities
§ 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
wheelchairs. You are deemed to comply
with this obligation if the facilities meet
requirements of 49 CFR Part 37, § 37.9,
and the standards referenced in that
section.
(2) You must ensure that there is an
accessible path between the terminal or
other passenger waiting area and the
boarding ramp or device used for the
vessel. An accessible route is one
meeting the requirements of the
standards referenced in 49 CFR Part 37,
§ 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,
you must ensure that passengers with a
disability can use the facility to gain
access to your vessel. You may meet this
obligation through any combination of
facility accessibility, equipment, the
assistance of personnel, or other
appropriate means consistent with the
safety and dignity of passengers with a
disability. With respect to making
structural modifications in existing
facilities, you have the same obligations
as any other public or private entity
under the applicable provisions of DOT
ADA regulations.
(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.
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§ 39.63 What accommodations are
required at terminals and other landside
facilities for individuals with hearing or
vision impairments?
(a) As a PVO, the information you
provide to the general public at
terminals and other landside facilities
must be effectively communicated to
individuals with impaired vision and
deaf and hard-of-hearing individuals. To
the extent that this information is not
available to these individuals through
signage and/or verbal public address
announcements, your personnel must
promptly provide the information to
such individuals on their request, in
languages 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.
(c) You must meet the requirements of
this section by [date one year from
effective date of the final rule].
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?
(a) As a PVO, if you provide, contract
for, or otherwise arrange for
transportation to and from a passenger
vessel (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) 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 restroom or
nearby takeout food vendor.
§ 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
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assistance from you in getting on or off
the vessel.
(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 tour personnel). However, you must
never use hand-carrying (i.e., directly
picking up the passenger’s body in the
arms of one or more personnel) to effect
a level change the passenger needs to
get on or off the vessel, even if the
passenger consents.
§ 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 spaces that
are 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-ofhearing, so that these passengers have
timely access to information the PVO
provides to other passengers (e.g.,
weather, on-board services, delays).
jlentini on PROD1PC65 with PROPOSAL
§ 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 restroom or
assistance elsewhere on the vessel with
elimination functions; and
(c) Provision of medical equipment or
services, or assistive devices, except to
the extent provided to all passengers.
§ 39.89 What requirements apply to onboard safety briefings, information, and
drills?
As a PVO, you must comply with the
following requirements with respect to
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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. 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 safetyvideo presentation is accessible to
passengers with impaired hearing (e.g.,
through use of open captioning or
placement of a sign language interpreter
in the video).
(1) You may use an equivalent nonvideo alternative to this requirement
only if neither open captioning nor a
sign language interpreter inset can be
placed in the video presentation
without so interfering with it as to
render it ineffective or it would not be
large enough to be readable.
(2) You may implement the
requirements of this section by
substituting captioned or interpreted
video materials for uncaptioned/
uninterpreted video materials as the
uncaptioned/uninterpreted materials are
replaced in the normal course of the
carrier’s operations.
(d) You must provide whatever
assistance is necessary to enable
passengers with disabilities to
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.
§ 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.
(c) 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
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verbal assurances of a passenger with a
disability using the animal.
(d) If you decide not to accept an
animal as a service animal, you must
explain the reason for your decision to
the passenger and document it in
writing. A copy of the explanation must
be provided to the passenger within 10
calendar days of the incident.
§ 39.93 What mobility aids and other
assistive devices may passengers with a
disability bring onto a passenger vessel?
(a) As a PVO, you must permit
passengers with a disability to bring the
following kinds of items onto a
passenger vessel, consistent with Coast
Guard requirements concerning
security, safety, and hazardous
materials:
(1) Wheelchairs and other mobility
devices, including, but not limited to,
manual wheelchairs and batterypowered wheelchairs;
(2) Other mobility aids, such as canes
(including those used by persons with
impaired vision), crutches, and walkers;
(3) Other assistive devices (e.g.,
vision-enhancing devices, personal
ventilators, portable oxygen
concentrators, and respirators that use
non-spillable batteries);
(4) Personal oxygen supplies.
(b) You must permit passengers with
a disability to use their mobility aids
and assistive devices on board the
vessel in all locations passengers access.
(c) You are not required to permit
passengers with a disability to bring
these items into lifeboats or other
survival craft, in the context of an
emergency evacuation of the vessel.
§ 39.95 May PVOs limit their liability for
loss of or damage to mobility aids 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
wheelchairs or other assistive devices.
The criterion for calculating the
compensation for a lost, damaged, or
destroyed wheelchair or other assistive
device shall be the original purchase
price of the device.
Subpart G—Complaints and
Enforcement Procedures
§ 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 on
each vessel and each terminal you serve.
You must make CRO service available in
the language(s) in which you make your
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other services available to the general
public.
(c) You may make the CRO available
in person or via telephone, at no cost to
the passenger. If a telephone link to the
CRO is used, TTY service must be
available so that persons with hearing
impairments may readily communicate
with the CRO.
(d) 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, accommodations, 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 (d)(1) of this section to
passengers with a disability using those
services.
(e) Each CRO must be thoroughly
familiar with the requirements of this
part and the carrier’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.
(f) You must ensure that each of your
CROs has the authority to make
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 is not required to
be given authority to countermand a
decision of the master of a vessel with
respect to safety matters.
jlentini on PROD1PC65 with PROPOSAL
§ 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
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16:24 Jan 22, 2007
Jkt 211001
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
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.
§ 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 postmarked or
transmitted more than 45 days after the
date of the incident, except for
complaints referred to you by the
Department of Transportation.
(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.
(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.
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2851
(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 and/or DOJ enforcement
action under this part.
§ 39.107 Where may passengers file
complaints?
(a) Any person believing that a PVO
has violated any provision of this part
may contact the following office for
assistance: U.S. Department of
Transportation, Departmental Office of
Civil Rights, 400 Seventh Street, SW,
Washington, DC 20590.
(b) Any person believing that a PVO
has violated any provision of this part
may also file a complaint with the
Disability Rights Section, Civil Rights
Division, Department of Justice.
(c) Any person believing that a PVO
that receives Federal financial
assistance has violated any provision of
this part may also file a complaint with
the civil rights office of the concerned
DOT operating administration.
(d) Requests for assistance and
complaints must be filed no later than
180 days after the incident, or after the
end of a continuing violation, to ensure
that they can be investigated.
§ 39.109 What enforcement action may be
taken under this part?
(a) The Department of Transportation
may investigate complaints and conduct
reviews or other inquiries into the
compliance of PVOs with this part.
(b) The Department may issue and
make public findings and
recommendations concerning any
matter relating to the compliance of
PVOs with this part.
(c) The Department may refer any
matter concerning the compliance of
PVOs with this part to the Department
of Justice for enforcement action.
(d) The Department of Justice may
conduct investigations and take
enforcement action concerning
compliance with the provisions of this
part on its own initiative at any time.
(e) With respect to a PVO that receives
DOT financial assistance, the
Department may take enforcement
action as provided in 49 CFR Parts 27
and 37.
[FR Doc. E7–362 Filed 1–22–07; 8:45 am]
BILLING CODE 4910–22–P
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Agencies
[Federal Register Volume 72, Number 14 (Tuesday, January 23, 2007)]
[Proposed Rules]
[Pages 2833-2851]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-362]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
49 CFR Part 39
[Docket OST 2007 26829]
RIN 2105-AB87
Transportation for Individuals With Disabilities: Passenger
Vessels
AGENCY: Department of Transportation, Office of the Secretary.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department is proposing to issue a new Americans with
Disabilities Act (ADA) rule to ensure nondiscrimination on the basis of
disability by passenger vessels. This notice of proposed rulemaking
(NPRM) 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 Access Board.
Comment Closing Date: Comments should be submitted by April 23,
2007. Late-filed comments will be considered to the extent practicable.
ADDRESSES: You may submit comments identified by the docket number [OST
2007-26829] by any of the following methods:
Web site: https://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
Federal e-Rulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: (202) 493-2251.
Mail: Docket Management System; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-0001.
Hand Delivery: To the Docket Management System; Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
Instructions: You must include the agency name and docket number
[OST-2007-26829] or the Regulatory Identification Number (RIN) for this
rulemaking at the beginning of your comment. Note that all comments
received will be posted without change to https://dms.dot.gov, including
any personal information provided.
Docket: You may view the public docket through the Internet at
https://dms.dot.gov or in person at the Docket Management System office
at the above address.
FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, Department of
Transportation, 400 7th Street, SW., Room 10424, Washington, DC 20590-
0001. (202) 366-9306 (voice); (202) 755-7687 (TDD); bob.ashby@dot.gov
(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 on which the
Department has yet to propose rules is transportation by passenger
vessels. With this NPRM, the Department is beginning the process of
filling this remaining gap in our coverage of transportation for
individuals with disabilities.
Background
When the Department issued its first Americans with Disabilities
Act (ADA) rules in 1991, we explicitly asserted coverage over passenger
vessels. The Department reserved action on passenger vessels in the
regulatory text of this final rule, and we 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. We note that the DOJ has determined that
passenger vessels encompassing places of public accommodation (e.g.,
cruise ships, floating restaurants) are subject to the general
nondiscrimination and policies and practices portions of its Title
III rule (Subparts B and C of 28 CFR Part 36). 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. As noted above, DOJ covers cruise ships as public
accommodations under its Title III rules.
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 recently 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
[[Page 2834]]
the ship operators' policies and conditions relating to transportation
of passengers with disabilities (e.g., higher fares or surcharges for
disabled passengers, 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 NPRM.
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 it
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 we envision
it, the final rule resulting from such a future NPRM would ultimately
be joined with a final rule resulting from the current proposed 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 that concerned the 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
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
will discuss these comments in context of the individual sections of
the proposed rule.
Section-by-Section Analysis
Sec. 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.
Sec. 39.3 What do the terms in this rule mean?
This section proposes definitions of terms in this rule. Many of
the definitions are based on parallel definitions in the Department's
ADA and Air Carrier Access Act (ACAA) regulations or Department of
Justice rules, adapted to the passenger vessel context. This preamble
discussion focuses on terms that are specific to the passenger vessel
context. Other terms would have the same meanings as they do in other
DOT disability rules.
Because this NPRM 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 definition of ``direct threat,'' drawn from
Department of Justice regulations, 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 by definition cannot be a
direct threat.
In addition to vessels, ``facilities'' include landside facilities
that a vessel operator owns, leases, or controls in the U.S. (including
its territories, possessions, and commonwealths). 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. Facilities in these three categories would be covered
directly by Part 39. The Department seeks comment on how
responsibilities should be allocated when there are multiple PVOs who
operate at a given landside facility or who only use the facility
infrequently.
The Department realizes that entities other than PVOs, such as
municipalities or other private businesses, may own, lease, or control
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. We
envision the relationship between the facility owner/controller and the
PVO to be 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). We seek comment on whether landside facility-
specific language should be added to the Department's other ADA or
section 504 rules.
The NPRM does not propose making this requirement applicable to
facilities located outside the U.S. However, we seek comment on whether
the final rule should apply to facilities outside the U.S. if a PVO (as
distinct from another foreign entity) owns, leases, or controls the
facility.
The definition of ``historic vessel'' is also one that is likely to
become more significant when future rulemakings add physical
accessibility standards to Part 39. Following practice in other
portions of the ADA, it is likely that historic vessels (e.g., the USS
Constellation in Baltimore harbor) would be exempted from some
accessibility requirements. ``New,'' ``existing,'' and ``used''
passenger vessel are also terms that will be of greater importance once
physical accessibility standards are in place. They are based on new
and used vehicle definitions in the Department's ADA rules for surface
transportation modes.
With respect to the definition of ``new passenger vessel,'' which
will be used in connection with vessel standards in Subpart E when they
are added to the regulation, we seek comment on transition rules. That
is, at what point in the procurement, design, construction, and
delivery of a vessel should requirements for new vessels attach?
``Operates'' means the provision of transportation or other service
by any public or private entity on a passenger vessel. Importantly, it
also includes the provision of transportation or other service by
another party having a contractual or other arrangement or relationship
with the entity involved. As in other parts of the Department's
accessibility rules, a party can contract out its functions, but cannot
contract
[[Page 2835]]
away its responsibilities. By ``other services,'' we mean activities
that take place on a vessel other than simply going from Point A to
Point B (e.g., food service, recreation, entertainment, gambling). This
section would also cover situations in which a vessel makes a round
trip from Point A to Point A, like some dinner, excursion, and gambling
vessels do.
``Passenger vessel'' is meant to be a broadly encompassing term for
any boat, ship, or other craft that takes on members of the public for
hire or other activities conducted as a part of the vessel operators
normal operations (which could include promotional activities involving
use of a vessel by members of the public for which a fare is not
charged, free shuttle or ferry service). The only exception is for
boats or other craft that are rented or leased to consumers and which
the consumers themselves (as distinct from the passenger vessel
operator and its personnel) operate. The Department seeks comment on
whether there are any additional situations that the rule should cover
(e.g., the PVO or an organization to which the PVO makes the vessel
available provides a charitable or promotional excursion for which no
fee is charged). The Department also seeks comment on whether there
should be exceptions or different provisions for vessels that are not
primarily designed or used as passenger vessels, but may carry
passengers for hire on certain occasions (e.g., supply vessels, crew
boats, school training or sailing vessels, research vessels carrying
students).
In some cases, such as certain on-the-water gambling casinos,
museums, or restaurants, an activity takes place on a structure that
floats but is permanently anchored or tethered to a dock or other shore
facility. On one hand, because it floats on the water, such a structure
could be regarded as a vessel covered by this rule. On the other hand,
because it never actually goes anywhere, it could be regarded as a
facility, like an on-shore building, that is more appropriately covered
by Department of Justice rules. We seek comment on this matter.
The ``passenger vessel operator'' (PVO) 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 different parties involved, and 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.
For the most part, ``passenger with a disability'' and ``qualified
individual with a disability'' have the same meaning for purposes of
the proposed rule. There could be situations in which a qualified
individual with a disability may not actually be a passenger, or in
which someone is seeking to perform functions on behalf of a person
with a disability. The ``passenger with a disability'' term includes
both situations in which someone buys a ticket to travel on a vessel
and situations (e.g., a gambling boat) in which members of the public
go on board, without a ticket, to use the services provided on the
vessel, regardless of whether the vessel leaves its dock or mooring.
``Terminal'' would be defined broadly, meaning any 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., POV[A1] selects site for
construction of new facility; or PVO has choice of docking at existing
accessible or inaccessible facility).
As noted in the discussion of ``facility,'' the Department seeks
comment on whether Part 39 should apply to a terminal located outside
the U.S. if the PVO is involved in one of these ways. If the PVO does
none of these things, the terminal would not in any circumstance be
covered under Part 39, though other parts of the ADA and section 504 of
the Rehabilitation Act of 1973, as amended, may well apply to terminals
located in the U.S. We also note that activities that a PVO itself
conducts, regardless of the facility in which they are conducted, would
be expected to be available to persons with disabilities.
In other transportation contexts, there has been considerable
discussion of whether the long-standing definition of ``wheelchair''
remains adequate, in light of the development and use of mobility
devices that may not fit within the definition. We seek comment on this
question in the context of passenger vessels. Should there be a
definition that specifically acknowledges mobility devices that may not
literally be ``wheelchairs,'' or should a more inclusive term be
developed?
Sec. 39.5 To whom do the provisions of this part apply?
The Department proposes that the provisions of this part apply to
all passenger vessels, regardless of size. There are two 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. The Department seeks comment
on a situation that may occur, in which tickets are sold to U.S.
passengers for a combined trip that includes transportation to a non-
U.S. port where they board a ship. For example, suppose Grand Fenwick
Cruise Lines sells a package to U.S. passengers including air fare from
New York to the Bahamas, where passengers board the S.S. Grand Duchess
Gloriana for a Caribbean cruise; should the ship transportation be
covered for purposes of Part 39 nondiscrimination rules?
The second exception concerns the future vessel accessibility
standards. The NPRM reserves paragraph (c), which would state the scope
of the applicability of these standards. The Department notes that the
July 2006 draft Access Board vessel [A2] would limit their
application vessels permitted to carry over 150 passengers or over 49
overnight passenger capacity categories, as well as tenders with a
capacity of 59 or more and all ferries. The Department currently
anticipates following the Access Board's final guidelines, when they
are issued, with respect to coverage. The Department also seeks comment
on whether there should be any vessel size or capacity limits on any of
the specific nondiscrimination provisions that are proposed in this
NPRM with respect to subjects other than vessel accessibility
standards.
Sec. 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.
[[Page 2836]]
Sec. 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?
Sec. 39.11 How may a PVO obtain approval to use an equivalent
facilitation?
These sections provide means by which PVOs may obtain DOT
authorization to do something different from what these regulations
would require. Section 39.9, which parallels language in the
Department's proposed 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 were
required to comply with contradictory legal requirements, the NPRM
proposes that PVOs seeking a waiver would have 90 days from the
publication of the final rule to file a waiver request. If the PVO
filed a complete waiver request 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.
Section 39.11, on the other hand, concerns a potentially wider
range of situations in which a PVO applies to the Department for
authorization to provide a different means of compliance with a
requirement of the DOT rules than the rules themselves specify.
Equivalent facilitations can apply to the details of physical
accessibility standards, when they become part of the rule, but could
also apply to policy and administrative matters covered by the rule. It
is important to note that to be considered an equivalent facilitation,
the different means of compliance must provide equal or greater
accessibility than that required by the regulatory text.
Sec. 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, personal or safety
assistants, advance notice, waivers of liability, etc. The Department
would hope and expect that most PVOs are already acting in ways that
are in compliance with these nondiscrimination policy and
administrative practice requirements. If not, then this NPRM should put
PVOs on notice that changes in their policies may be necessary in the
near future.
There are some provisions of the proposed rule concerning which it
would be reasonable for PVOs to have a longer phase-in period, however.
Specific sections on such matters as modifications to terminals and
other landside facilities and training for personnel have proposed
compliance dates intended to give PVOs a reasonable time to meet
requirements. The Department seeks comment on these proposed compliance
dates, as well as on whether there are other provisions on which PVOs
would need additional time to comply.
Sec. 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 would call attention particularly to paragraph (b),
which would require 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 be unduly burdensome or
require a fundamental alteration in the nature of the PVO's services,
programs, or activities.
Sec. 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. We
seek comment on whether, if at all, contractors outside the United
States should be covered by this requirement. All new contracts and
other agreements must have this assurance language. The Department
seeks comment on whether the rule should require the addition of
assurance language to existing contracts and agreements, and, if so,
what the compliance period for such additions should be. Since PVOs
cannot contract away their responsibilities, PVOs remain responsible
for the third parties' actions. This would be true, in the Department's
view, even with respect to actions of third parties where the PVO's
agreements with the third parties did not yet include assurance
language.
Sec. 39.25 May PVOs limit the numbers of passengers with a disability
on a passenger vessel?
The Department views any policy limiting the number on passengers
with a disability on a vessel as discriminatory on its face. With
respect to the concern expressed by ICCL about large groups of
passengers with a disability traveling together, we believe that the
provision of Sec. 39.35 permitting PVOs to ask for advance notice in
this situation (e.g., so as to be able to make the needed
reconfigurations of the flexible space in overnight accommodations that
ICCL's comment mentions) should be helpful.
Sec. 39.27 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 direct threat
criteria outlined in paragraph (c), 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 explanation to the person
within 10 days of the denial (paragraph (d)).
The Department recognizes that, particularly prior to the adoption
of physical accessibility standards, some
[[Page 2837]]
vessels will not have accommodations that will permit persons with some
disabilities to travel on or to obtain some services on 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 which can be accessed only
by using steps. The Department would not, in such a situation, regard a
PVO's statement to a passenger about the lack of adequate physical
accommodations as equivalent to a policy denying access on the basis of
disability.
Sec. 39.29 May PVOs limit access to transportation on or use of a
vessel on the basis that a passenger has a communicable disease or
other medical condition?
Sec. 39.31 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 a variety of medical conditions (e.g., heart disease) may have at
least temporary disabilities. If there is reasonable doubt that a
passenger with a medical condition can complete a given trip or use a
vessel without requiring extraordinary medical assistance, then this
rule would permit the PVO to require a medical certificate from the
individual. In applying this requirement, the Department believes it is
reasonable for the PVO to take into account the length of the
passenger's stay aboard 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 makes a
direct threat determination. In the communicable disease area, the
Department believes that PVOs should consider two factors. One is the
severity of the consequences of a disease; the other is whether the
disease can readily be communicated by casual contact. Only if a
disease has severe consequences to the health of other persons and is
readily communicable by casual contact could a PVO legitimately
determine that there is a direct threat. For example, HIV/AIDS has
severe consequences, but is not readily communicable by casual contact.
The common cold is readily communicable by casual contact but typically
does not have severe health consequences. Consequently, having a cold
or having 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, in the future, a readily human-to-
human transmissible avian flu pandemic might well qualify. PVOs could
legitimately take into account determinations by public health
authorities about the travel of persons with a certain disease (e.g.,
if the Centers for Disease Control or World Health Organization issued
a finding that persons with a certain disease or symptoms should not
travel).
In any case in which a medical certificate may be required or a
limitation on a passenger's travel be imposed, the limitation should be
the minimum needed to deal with the medical issue or direct threat to
the health of others. For example, the PVO would not be authorized to
deny transportation to an individual if a less drastic alternative,
such as the use of a personal assistant or the passenger's use of
medical measures that would mitigate the transmission of an illness is
available.
If a PVO refuses transportation to a passenger with a disability on
grounds related to a medical condition, the NPRM proposes that the PVO
would have to permit the passenger to travel or use the vessel at any
time within a year at the same price as the original trip or, at the
passenger's discretion, provide a refund. The Department seeks comment
on whether and how to apply this concept to situations in which an
equivalent trip is not available within a year (e.g., Grand Fenwick
Cruise Lines makes only one trip to Tierra del Fuego every three years,
or the S.S. Grand Duchess Gloriana's trips are all fully booked for the
next year). The Department also seeks comment on how, if at all, the
availability of trip insurance to the individual passenger should be
related to this proposed provision.
Sec. 39.33 May PVOs require a passenger with a disability to provide
advance notice that he or she is traveling on or using a passenger
vessel?
Sec. 39.35 May PVOs require a passenger with a disability to provide
advance notice in order to obtain certain services in connection with
transportation on or use of a passenger vessel?
In these related sections, the Department is saying, first, that it
is never appropriate for a PVO to require a person to provide advance
notice that he or she is coming, just because he or she has a
disability. The PVO's nondiscriminatory policies and practices should
be in place, ready to deal with whoever shows up. On the other hand,
there may be specific accommodations for which provision of advance
notice is needed. One that seems reasonable is when a large number of
people with a disability plan to travel as a group. The NPRM uses the
ACAA standard of a group of 10 or more disabled passengers traveling as
a group. We seek comment on whether this concept should be refined to
recognize the possibility that some groups of disabled passengers
traveling together may not need any special accommodations. In such a
case, is the advance notice provision advisable?
A second instance where advance notice could be helpful concerns a
request for an accessible overnight cabin. The Department's proposal on
this subject is intended to grapple with the reported problem of
nondisabled travelers reserving an accessible cabin because it is
roomier, thus denying its availability to a disabled passenger who may
subsequently seek the accommodation. Under the proposal, everyone
reserving an accessible cabin would be informed that, if a passenger
with a disability made a reservation at least 72 hours before the
vessel's scheduled departure and requested an accessible cabin, any
nondisabled person who had previously reserved the cabin would be moved
to another cabin, if one were available. The NPRM would not require any
passenger to be bumped from a voyage as a result, only reassigned to a
different cabin. Obviously, the operation of this provision would
depend on self-identification by the passenger with a disability of his
or her need for the accessible cabin.
The Department seeks comment on whether the rule should specify in
more detail the kinds of disabilities that would trigger this provision
(e.g., should the provision be limited to persons with mobility
impairments?) or whether the PVO should be permitted,
[[Page 2838]]
or required, to seek documentation of a disability from a passenger
seeking to reserve such an accommodation. We also seek suggestions for
any alternative means of addressing this issue. We recognize that,
especially on some cruise ships, it is commonplace for travelers to
reserve cabins months in advance. It is also commonplace for whole
voyages to be sold out months in advance. We seek comment, thus, on
whether a passenger with a disability who requested an accessible cabin
72 hours before departure could appropriately bump a nondisabled
passenger from a cabin reserved months ahead of time. Similarly, we
seek comment on whether a deadline for requesting an accessible cabin
should be 72 hours or another fixed time before departure or,
alternatively, based on when passengers in general reserve their
cabins. (If the latter, for example, an accessible cabin might have to
be requested before half of all cabins are reserved.) Additionally, we
seek comment on whether, as we do in the ADA rule for over-the-road
buses, we should provide that any cut-off date for reservations in
general should also be applied to requests for an accessible cabin.
The Department recognizes that, pending the development of
passenger vessel physical accessibility standards, even new vessels are
not required to have a particular number of accessible cabins. This
provision would apply to the accessible cabins that now exist, as well
as any others that may become available in the future. We also
recognize that there could be situations in which an accessible room
would not be available to a passenger with a disability because another
passenger with a disability had already reserved the room. Other than
treating such situations as a ``first-come first-served'' manner, do
commenters have any suggestions for resolving such a situation?
The Department also seeks comment on whether 72 hours would be a
reasonable amount of advance notice in these situations and on whether
there are other services for which an advance notice requirement would
be reasonable.
There could be situations in which a similar principle could
arguably apply to other shipboard activities. For example, some cruise
ships may assign seats for dinner. If a passenger with a disability was
unable, because of barriers in the dining area, to get readily to his
or her assigned seat, could it be viewed as a reasonable modification
of the PVO's seating policy to shift dining table assignments of other
passengers to provide accessibility to a dining table? If so, taking
into account any disruption of the operator's seating plans or of the
other passengers' seating arrangements, would a request for an
accessible table have to be made a specified number of hours before
departure? The Department seeks comment on this or similar issues
involving on-board activities.
Sec. 39.37 May PVOs require a passenger with a disability to travel
with a personal or safety assistant?
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. On the other hand, there can be
situations in which traveling with another person as a safety assistant
is essential for safety purposes. Paragraph (b) spells out three
situations in which it would be justifiable to impose a requirement for
a safety assistant. These situations are drawn from the similar
provision of the Department's ACAA rule, and the Department seeks
comment on any other situations in vessel contexts where such a
requirement could be justified.
As ICCL's comment noted, because some passenger voyages are much
longer than airplane flights, there may be situations in which a
personal assistant is necessary (the ACAA rule never permits a
requirement for personal assistants, as distinct from persons needed to
assist with an emergency evacuation, in air travel). Consequently, the
Department proposes that if a passenger with a disability needs a
personal assistant to help perform key personal tasks, such as eating,
toileting, and dressing, and the passenger's use of the vessel will be
lengthy enough so that the passenger will need to perform these tasks,
the PVO may require the passenger with a disability to have a personal
assistant. For shorter voyages akin in length to airplane flights, the
PVO could not impose such a requirement. However, for a longer voyage
(e.g., a multi-day cruise), the PVO could do so.
The Department recognizes that there can be situations in which a
passenger and a PVO disagree about whether a safety or personal
assistant is necessary. In these situations, the proposed rule
contemplates that the PVO would have the last word, and could require
the attendant over the passenger's objections. However, in such a
situation, the rule would require the PVO to put its money where its
mouth is, and not charge for the transportation or use of the vessel by
the assistant who the passenger was involuntarily required to bring
along. As under the ACAA rule (where a similar provision has been in
effect since 1990 without causing significant disruptions), the PVO
could designate a member of its own staff or a passenger volunteer as
the assistant, in order to deter any potential abuse by a passenger who
would, for example, unreasonably object to the use of an assistant in
order to secure free transportation for a friend or family member.
Sec. 39.39 May PVOs impose special charges on passengers with a
disability for providing services and accommodations 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. For example, suppose a
passenger with a disability tries to make a reservation for an inside
cabin. However, the only accessible cabins on the vessel are in the
more expensive outside cabins with windows. The PVO would have to
provide the accessible cabin to the passenger with a disability at the
price of the less expensive accommodation he or she had requested. This
is consistent with ADA practice in other contexts, such as booking of
hotel rooms or sleeping compartments on Amtrak trains.
[[Page 2839]]
Sec. 39.41 May PVOs impose restrictions on passengers with a
disability that they do not impose on other passengers?
Sec. 39.43 May PVOs require passengers with a disability to sign
waivers or releases?
The NPRM 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.
Sec. 39.51 What information must PVOs provide to passengers with a
disability?
The Department recognizes that vessels and facilities will not be
equally accessible; that some vessels, ports, services, and facilities
may not be usable by persons with some disabilities. This section would
require PVOs to inform people with disabilities, accurately and in
detail, about what they can expect. What features of a vessel are
accessible and what are not? What limitations, if any, are there
concerning the ability of a vessel to accommodate persons with a
particular disability? At what ports could passengers with a disability
expect to be able to get on and off the ship, and by what means? If
third parties are making tours and excursions available to passengers,
to what extent are these tours accessible to persons with a particular
disability? 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.
Sec. 39.53 Must information and reservation services of PVOs be
accessible to individuals with hearing or vision impairments?
This section would apply 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. The first proposed requirement is for
TTY service for persons with hearing impairments. The Department is
aware that some deaf and hard-of-hearing persons now may use other
technologies in preference to TTYs (e.g., videophones, instant
messaging), and we seek comment on how, if at all, this development
should be reflected in a final rule.
On-line booking services, as well as web sites providing
information about passenger vessel availability, schedules, and
services, are very important in today's marketplace. Consequently, the
Department views it as very important for on-line resources to be
available to persons with disabilities. We would view a web site
meeting section 508 or World Wide Web Consortium standards as being
accessible for this purpose. The regulatory text does not make a
specific proposal on this subject, but we seek comment on whether the
final rule based on this NPRM, or a future rule incorporating vessel
accessibility standards, should include such a requirement. We also
seek comment on the costs of requiring Web site accessibility in the
passenger vessel industry, the appropriate standards for accessible
sites, and the timing and phase-in period appropriate for such a
requirement.
Sec. 39.55 Must PVOs make copies of this rule available to passengers?
The NPRM would propose that PVOs maintain a copy of the rule on
each vessel and at each U.S. terminal. The purpose of doing so would be
to make the rule readily available for reference in case a question
occurred about whether a PVO was acting consistently with its
requirements.
Sec. 39.57 What is the general requirement for PVOs' communications
with passengers?
This section states the general effective communication requirement
for PVOs.
Sec. 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. 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 case a public entity or
another private entity would own or control the facility, in which the
other entity would have its own ADA and/or 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. As
noted in the discussion of the definition of ``facility,'' the
Department seeks comment on whether a PVO covered by this rule should
have accessibility obligations for a foreign facility that the PVO
itself, as distinct from a separate foreign entity, owns, controls or
leases.
The rule would make a familiar three-part breakdown of
accessibility responsibilities for covered facilities. New facilities
must meet accessibility standards from the beginning. In the case of an
alteration, the altered portion of the existing facility would have to
be brought up to the same accessibility standards applicable to new
facilities. For existing facilities not otherwise being altered, the
PVO would have 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.
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 has responsibilities in its own right under Title II or III or
the ADA or 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.
We also recognize that there can be instances in which a vessel
berths at a floating dock, rather than literally at a landside
facility. We would propose to treat such a floating dock in the same
way as a landside facility for accessibility purposes, but we seek
comment on whether any different treatment would be appropriate.
The Department seeks comment on whether it would be advisable to
add specific provisions similar to Sec. Sec. 37.41, 37.43, and 37.45
in the Department's existing ADA rule for the new construction and
alteration of passenger vessel facilities, including provisions for
alterations affecting areas containing a primary function that are
subject to additional requirements for path of travel.
Sec. 39.63 What accommodations are required at terminals and other
landside facilities for individuals with hearing or vision impairments?
This section specifies the effective communications that would have
to be provided at terminals and other landside facilities to ensure
that persons with sensory impairments would be able to receive the
information otherwise available to the public,
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concerning such subjects as ticketing, fares, and schedules. There
would be a one-year phase-in period for this requirement, which would
apply to existing as well as new facilities.
Subpart E--Accessibility of Vessels
This subpart would be reserved. It is a place-holder for the
subsequent inclusion of passenger physical accessibility standards
based on future Access Board guidelines. We note that, in connection
with any rule incorporating the guidelines as DOT standards, DOT would
designate an agency as the ``administrative authority'' to make certain
determinations. We anticipate that the Department would designate the
U.S. Coast Guard, with that agency's consent, as the administrative
authority for many of these provisions, for foreign-flag as well as
U.S. vessels. It is not necessary for this NPRM to propose this
designation, since it logically would be part of a future NPRM
proposing to adopt Access Board guidelines as DOT regulatory standards.
There are, however, some facility accessibility issues that may not
be covered by future Access Board guidelines. For example, we seek
comment on whether a provision should be added for accessibility of
televisions and telephones on vessels, similar to what DOT has proposed
for air carriers pursuant to the Air Carrier Access Act (see 71 FR 9285
(February 23, 2006)). The Access Board's guidelines will not address
televisions and telephones in passenger rooms since they are not fixed
elements.
It is our understanding that cruise ships typically provide
televisions in passenger rooms and lounges. The Television Decoder
Circuitry Act requires televisions with screens 13 inches or greater to
contain built-in circuitry that receives and decodes closed captions.
Cruise ships also typically provide telephones in passenger rooms. The
Hearing Aid Compatibility Act and FCC rules require certain telephones
to have volume controls and to be compatible with hearing aid
technology. We seek information on whether cruise ships are currently
providing televisions that are capable of receiving and decoding closed
captions, and hearing aid compatible telephones with volume controls.
The Department does not intend to impose requirements in this area
in the final rule resulting from this NPRM. Rather, we are seeking
comment on this subject in order to determine whether, in a future NPRM
that would propose adoption of the Access Board's final passenger
vessel guidelines, to propose adding requirements concerning telephones
and televisions as a DOT modification to the guidelines.
Sec. 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. PVOs would be
responsible for making sure that these services were accessible to
people with disabilities. The Department seeks comment on the extent,
if any, to which such a requirement should apply to services provided
outside the U.S. (e.g., Grand Fenwick Cruise Lines itself provides, or
contracts with a local bus company to provide, land transportation
between the dock and points of interest in Barbados).
Sec. 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. We note that a number of
comments to the ANPRM 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 will use any means necessary
to ensure that all passengers can safely evacuate.
On some occasions, it may be the custom on cruise ships or other
vessels with overnight accommodations to temporarily store luggage in
passageways in preparation for disembarkation at the end of a voyage.
This may have the effect of preventing passengers with disabilities
from using otherwise accessible routes. The Department seeks comment on
the extent of this problem and what requirements in a final rule, if
any, should be devised to address it.
The Department also seeks comment on whether a provision should be
added that would require the use of accessible boarding systems, as
described in Sec. V412 of the Access Board's draft guidelines, for
vessels with a certain passenger capacity at terminals that have a
certain threshold level of annual embarkations, similar to the
provision in DOT's Air Carrier Access rule. See 14 CFR 382.40(a). If
so, what vessel passenger capacity and threshold level of annual
embarkations should be used for requiring accessible boarding systems?
Also, if a provision is added requiring accessible boarding systems at
certain terminals, would it be advisable to require the PVO negotiate
an agreement with the terminal operator to ensure the provision of
accessible boarding systems, similar to the provision in DOT's Air
Carrier Access Act and section 504 rules concerning boarding devices
for commuter aircraft? See 14 CFR 382.40(b) and (c). Such an approach
might also require amendment of the DOT 504 rule, 49 CFR Part 27.
Sec. 39.85 What services must PVOs provide to passengers with a
disability on board a passenger vessel?
Sec. 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 would, or need not,
provide to passengers with a disability. The services in question
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 would 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) would not be
required. Effective communication of on-board information would be
required.
Sec. 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 can
include the
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use of alternative formats and other auxiliary aids, 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. 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. The Department seeks
comment on whether any special accommodations would be needed to assist
persons with cognitive disabilities.
Sec. 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.
ICCL raised a number of service animal-related comments in its
ANPRM response. We agree that 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 a cruise ship. Limitations on the ability of a service animal to
leave the ship at a foreign port would be among the information that a
cruise ship would provide to potential customers inquiring about an
upcoming cruise. We also agree that PVOs would not be required to
supply food for the animal. We seek comment on whether it is necessary
to require PVOs to permit passengers with a disability to bring their
own supplies of food for the service animal on board, without charge by
the PVO. We also seek comment on whether PVOs should make refrigeration
services available for service animal food.
ICCL commented that service animals typically share the cabin of
the passengers who use them. The Department does not see an objection
to this practice, though we seek comment on whether service animal
users have had any problems in this regard.
We would 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 the
proposed rule would prohibit). It is not self-evident that having a
number of service 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.
The Department is not proposing, at this time, to adopt ACAA
service animal guidance for other transportation contexts, though the
general principles behind this guidance apply across the board to all
transportation and public accommodations applications of the ADA. The
Department anticipates that, following the publication of a final rule
on passenger vessels, it would work with stakeholders to develop more
detailed guidance on this subject for passenger vessels. One issue the
Department would likely address in such guidance is the extent to which
PVOs could inquire as to the status of an animal as a service animal
(e.g., to prevent potential abuse from persons wanting to bring pets on
board the vessel in ways inconsistent with the PVO's policy on pets).
One issue that arises, especially in the context of longer voyages,
concerns service animal relief areas. The Department seeks comment what
requirements, if any, should be included in a final rule concerning the
provision of such areas. Should a final rule specify the number and
location of such areas? We are glad to see from the ICCL comment that
cruise operators typically provide relief areas.
ICCL, of course, represents the cruise industry, which frequently
operates larger ships than other PVOs. The Department seeks comment on
whether, with respect to any of the issues discussed in this section,
there should be differing requirements for smaller vessels.
Sec. 39.93 What mobility aids and other assistive devices may
passengers with a disability bring onto a passenger vessel?
Sec. 39.95 May PVOs limit their liability for the loss of or damage to
mobility aids and other assistive devices?
These sections say simply that passengers should be permitted to
bring and use their own mobility aids and other assistive devices on
board a vessel. Once the devices are there, if the PVO is responsible
for loss or damage, the PVO must compensate the owner, at the level of
the original purchase price of the device. This measure of the level of
compensation is derived from the Department's ACAA rule. We also seek
comment on alternative methods of measuring the appropriate level of
compensation, such as the depreciated present value of the device or
the current replacement cost for the device.
Sec. 39.101 What are the requirements for providing Complaints
Resolution Officials?
Sec. 39.103 What actions do CROs take on complaints?
The role of the Complaints Resolution Official (CRO) was first
developed in the Department's 1990 ACAA regulations, and it has proved
very helpful in the airline service context. As applied in the
passenger vessel context, the CRO would be the PVO's expert in
disability matters, knowledgeable about both the Department's
regulations and the PVO's p