Transportation for Individuals With Disabilities: Passenger Vessels, 38878-38902 [2010-15101]

Agencies

• Office of the Secretary
• DEPARTMENT OF TRANSPORTATION

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



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Part II





Department of Transportation





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49 CFR Part 39



Transportation for Individuals With Disabilities: Passenger Vessels; 
Final Rule

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

[[Page 38878]]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 39

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


Transportation for Individuals With Disabilities: Passenger 
Vessels

AGENCY: Office of the Secretary, Department of Transportation.

ACTION: Final rule; request for comments.

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

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

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

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant 
General Counsel for Regulation and Enforcement, Department of 
Transportation, 1200 New Jersey Avenue, SE., Room W94-302, Washington, 
DC 20590. (202) 366-9310 (voice); (202) 366-7687 (TDD); 
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 for which the 
Department has yet to issue rules is transportation by passenger 
vessels. With this final rule, the Department can begin to close this 
gap in coverage of transportation for individuals with disabilities.

Background

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

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

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

[[Page 38879]]

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

Section-by-Section Analysis

Section 39.1 What is the purpose of this Part?

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

Section 39.3 What do the terms in this rule mean?

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

[[Page 38880]]

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

[[Page 38881]]

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

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

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

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

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

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

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

[[Page 38882]]

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

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

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

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

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

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

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

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

[[Page 38883]]

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

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

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

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

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

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

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

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

[[Page 38884]]

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

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

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

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

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

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

[[Page 38885]]

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

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

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

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

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

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

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

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

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

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

[[Page 38886]]

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

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

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

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

    The Department recognizes that some existing vessels may not be 
able to be made accessib