[Federal Register: July 6, 2010 (Volume 75, Number 128)]
[Rules and Regulations]
[Page 38877-38902]
[DOCID:fr06jy10-17]

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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

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 39

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

Transportation for Individuals With Disabilities: Passenger
Vessels

AGENCY: Office of the Secretary, Department of Transportation.

ACTION: Final rule; request for comments.

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

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

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

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, Department of
Transportation, 1200 New Jersey Avenue, SE., Room W94-302, Washington,
DC 20590.<PHONE_NUMBER> (voice);<PHONE_NUMBER> (TDD);
<EMAIL_ADDRESS>(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,

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Subpart E--Accessibility of Vessels

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 39.103 What actions do CROs take on complaints?

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

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

Section 39.105 How must PVOs respond to written complaints?

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

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

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

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

device, however it is designed, can be accommodated on board a vessel,
consistent with legitimate safety requirements, it would have to be
accepted by the PVO, regardless of whether it was a ``wheelchair,'' per
se. The Department seeks comment on this approach and on whether, if
adopted, it should include any categorical exceptions (e.g., gasoline
engine-powered devices). For information, the Department refers
interested persons to the Department's September 2005 interpretation of
its existing ADA regulation (49 CFR part 37) concerning acceptance of
mobility aids [http://www.fta.dot.gov/civilrights/ada/civil_rights_
3893.html].
    Similar to the emotional support animal issue earlier, the mobility
aid provisions as currently written in this rule are consistent with
DOJ's proposed rules amending Title II and Title III. Should DOT rules
be identical to DOJ rules in this with respect to mobility aids (i.e.,
such that the use of mobility aids is treated the same way on passenger
vessels as it is in other public accommodations covered by DOJ rules,
like as parks, restaurants, dorms, lodging, hospitals, etc.)?
Alternatively, should DOT have discretion to have different provisions
specific to vessels?
    The third issue the Department seeks comment on concerns the
overall relationship between DOJ and DOT ADA rules. DOJ currently has
draft final rules revising its Title II and Title III DOT rules under
review by the Office of Management and Budget (OMB). It is possible
that, as part of the interagency review process led by OMB, provisions
in the DOJ rules (e.g., concerning the definition of auxiliary aids and
services and the application of that definition) might change in a way
that create a difference between the language of part 39 and the
language of the forthcoming DOJ rules. In such a situation, should DOT
amend part 39 to be consistent with the new DOJ language? The purpose
of doing so would be to avoid confusion or any burden placed on people
with disabilities or PVOs that might arise if different definitions or
substantive provisions of different rules applied in the specific
context of passenger vessel operations, as distinct from other aspects
of public accommodations or public sector facilities and activities
covered by, DOJ rules.

Regulatory Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

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

Regulatory Flexibility Act

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

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

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

Federalism

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

List of Subjects in 49 CFR Part 39

    Individuals with disabilities, Mass transportation, Passenger
vessels.

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

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

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

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

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

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

Subpart A--General

Sec.  39.1  What is the purpose of this Part?

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

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

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