Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules 2833 

(Catalog of Federal Domestic Assistance No. 

83.100, ‘‘Flood Insurance.’’) 

Dated: January 12, 2007. 

David I. Maurstad, 

Director, Mitigation Division, Federal 

Emergency Management Agency, Department 

of Homeland Security. 

[FR Doc. E7–887 Filed 1–22–07; 8:45 am] 

BILLING CODE 9110–12–P 

DEPARTMENT OF TRANSPORTATION 

49 CFR Part 39 

[Docket OST 2007 26829] 

RIN 2105–AB87 

Transportation for Individuals With 

Disabilities: Passenger Vessels 

AGENCY: Department of Transportation, 

Office of the Secretary. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department is proposing 

to issue a new Americans with 

Disabilities Act (ADA) rule to ensure 

nondiscrimination on the basis of 

disability by passenger vessels. This 

notice of proposed rulemaking (NPRM) 

concerns service and policy issues. 

Issues concerning physical accessibility 

standards will be addressed at a later 

time, in conjunction with proposed 

passenger vessel accessibility guidelines 

drafted by the Access Board. 

Comment Closing Date: Comments 

should be submitted by April 23, 2007. 

Late-filed comments will be considered 

to the extent practicable. 

ADDRESSES: You may submit comments 

identified by the docket number [OST 

2007–26829] by any of the following 

methods: 

• Web site: http://dms.dot.gov. 

Follow the instructions for submitting 

comments on the DOT electronic docket 

site. 

• Federal e-Rulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: (202) 493–2251. 

• Mail: Docket Management System; 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590–

0001. 

• Hand Delivery: To the Docket 

Management System; Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

Instructions: You must include the 

agency name and docket number [OST–

2007–26829] or the Regulatory 

Identification Number (RIN) for this 

rulemaking at the beginning of your 

comment. Note that all comments 

received will be posted without change 

to http://dms.dot.gov, including any 

personal information provided. 

Docket: You may view the public 

docket through the Internet at http:// 

dms.dot.gov or in person at the Docket 

Management System office at the above 

address. 

FOR FURTHER INFORMATION CONTACT: 

Robert C. Ashby, Deputy Assistant 

General Counsel for Regulation and 

Enforcement, Department of 

Transportation, 400 7th Street, SW., 

Room 10424, Washington, DC 20590–

0001. (202) 366–9306 (voice); (202) 755–

7687 (TDD); bob.ashby@dot.gov (e-mail). 

SUPPLEMENTARY INFORMATION: The 

Department of Transportation has 

issued rules concerning 

nondiscrimination on the basis of 

disability for almost every mode of 

passenger transportation, including 

public transportation (bus, subway, 

commuter rail), over-the-road buses, 

intercity rail, and air transportation. The 

only mode on which the Department 

has yet to propose rules is 

transportation by passenger vessels. 

With this NPRM, the Department is 

beginning the process of filling this 

remaining gap in our coverage of 

transportation for individuals with 

disabilities. 

Background 

When the Department issued its first 

Americans with Disabilities Act (ADA) 

rules in 1991, we explicitly asserted 

coverage over passenger vessels. The 

Department reserved action on 

passenger vessels in the regulatory text 

of this final rule, and we made the 

following statements on the subject in 

the preamble (56 FR 45599–45560; 

September 6, 1991): 

Ferries and passenger vessels operated by 

public entities are covered by the ADA, and 

subject at this time to DOJ Title II 

requirements as well as § 37.5 of this Part 

* * *. We anticipate further rulemaking to 

create appropriate requirements for passenger 

vessels * * *. The reason for this action is 

that, at the present time, the Department 

lacks sufficient information to determine 

what are reasonable accessibility 

requirements for various kinds of passenger 

vessels. We note that the DOJ has determined 

that passenger vessels encompassing places 

of public accommodation (e.g., cruise ships, 

floating restaurants) are subject to the general 

nondiscrimination and policies and practices 

portions of its Title III rule (Subparts B and 

C of 28 CFR Part 36). The Department of 

Transportation anticipates working with the 

Access Board and DOJ on further rulemaking 

to define requirements for passenger vessels 

* * *. The Department does want to make 

clear its view that the ADA does cover 

passenger vessels, including ferries, 

excursion vessels, sightseeing vessels, 

floating restaurants, cruise ships, and others. 

Cruise ships are a particularly interesting 

example of vessels subject to ADA coverage. 

Cruise ships are a unique mode of 

transportation. Cruise ships are selfcontained floating communities. In addition 

to transporting passengers, cruise ships 

house, feed, and entertain passengers and 

thus take on aspects of public 

accommodations. Therefore cruise ships 

appear to be a hybrid of a transportation 

service and a public accommodation. As 

noted above, DOJ covers cruise ships as 

public accommodations under its Title III 

rules. 

In addition to being public 

accommodations, cruise ships clearly are 

within the scope of a ‘‘specified public 

transportation service.’’ The ADA prohibits 

discrimination in the full and equal 

enjoyment of specified public transportation 

services provided by a private entity that is 

primarily engaged in the business of 

transporting people and whose operations 

affect commerce (§ 304(a)). ‘‘Specified public 

transportation’’ is defined by § 301(10) as 

‘‘transportation by bus, rail, or any other 

conveyance (other than by aircraft) that 

provides the general public with general or 

special service (including charter service) on 

a regular and continuing basis.’’

Cruise ships easily meet the definition of 

‘‘specified public transportation.’’ Cruise 

ships are used almost exclusively for 

transporting passengers and no one doubts 

that their operations affect commerce. Cruise 

ships operate according to set schedules or 

for charter and their services are offered to 

the general public. Finally, despite some 

seasonal variations, their services are offered 

on a regular and continuing basis. 

Virtually all cruise ships serving U.S. ports 

are foreign-flag vessels. International law 

clearly allows the U.S. to exercise 

jurisdiction over foreign-flag vessels while 

they are in U.S. ports, subject to treaty 

obligations. A state has complete sovereignty 

over its internal waters, including ports. 

Therefore, once a commercial ship 

voluntarily enters a port, it becomes subject 

to the jurisdiction of the coastal state. In 

addition, a state may condition the entry of 

a foreign ship into its internal waters or ports 

on compliance with its laws and regulations. 

The United States thus appears to have 

jurisdiction to apply ADA requirements to 

foreign-flag cruise ships that call in U.S. 

ports. 

The U.S. Supreme Court recently 

affirmed the Department’s long-held 

view that the ADA covers passenger 

vessels, specifically including foreignflag cruise ships. In Spector et al. v. 

Norwegian Cruise Lines, 545 U.S. 119 

(2005), the Court held that cruise ships 

are ‘‘public accommodations’’ that 

provide ‘‘specified public 

transportation’’ within the meaning of 

the ADA. The Court said that, while 

there may be some limitations on the 

coverage of the ADA to matters purely 

concerning the internal affairs of a 

foreign-flag vessel, matters concerning 


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the ship operators’ policies and 

conditions relating to transportation of 

passengers with disabilities (e.g., higher 

fares or surcharges for disabled 

passengers, waivers of medical liability, 

requirements for attendants) had 

nothing to do with a ship’s internal 

affairs. Such matters, then, are clearly 

subject to ADA jurisdiction. It is issues 

of this kind that are the focus of this 

NPRM. 

The Access Board has been working 

for some time on drafting accessibility 

guidelines for passenger vessels. On 

November 26, 2004, the Access Board 

published for comment a notice of 

availability of draft guidelines for larger 

passenger vessels with a capacity of 

over 150 passengers or overnight 

accommodations for over 49 passengers. 

Since that time, the Access Board has 

been reviewing comments it received 

and planning work on a Regulatory 

Assessment for vessel guidelines. On 

July 7, 2006, the Access Board issued a 

second notice of availability asking for 

comments on a revised draft of vessel 

guidelines. Following the review of 

comments on that notice, the Access 

Board, in cooperation with the 

Department of Transportation, would 

issue an NPRM and Regulatory 

Assessment concerning physical 

accessibility requirements for larger 

passenger vessels. As we envision it, the 

final rule resulting from such a future 

NPRM would ultimately be joined with 

a final rule resulting from the current 

proposed rule in a single, 

comprehensive passenger vessel ADA 

rule. 

On November 29, 2004, the 

Department published an advance 

notice of proposed rulemaking 

(ANPRM) asking questions about the 

shape of future ADA requirements for 

passenger vessels (69 FR 69247). The 

Department received 43 comments to 

the ANPRM. Most of these comments 

concerned the Access Board’s draft 

guidelines and physical accessibility 

issues relating to existing and new 

vessels, and some of them concerned 

physical accessibility issues specific to 

very small vessels. The Department is 

retaining these comments and will 

consider them in context of the 

continuing work on the Access Board’s 

draft vessel guidelines and the future 

NPRM that would propose to 

incorporate those guidelines in DOT 

rules. 

The only comment that concerned the 

issues included in this NPRM was from 

the International Council of Cruise 

Lines (ICCL), a trade association for 

entities in the cruise industry. ICCL 

recommended that rules exempt 

transfers of persons from larger vessels 

to tenders; recognize the flexibility of 

cabin configurations; exclude from 

coverage shore excursions provided by 

third-party-vendors, particularly in 

foreign countries; have eligibility 

criteria and direct threat provisions that 

allow operators to establish policies that 

will avoid safety risks; permit 

requirements for personal attendants; 

and permit limitations on the 

transportation of service animals. The 

Department will discuss these 

comments in context of the individual 

sections of the proposed rule. 

Section-by-Section Analysis 

§ 39.1 What is the purpose of this part? 

This section briefly states the 

nondiscrimination-related purposes of 

the rule and specifies that 

nondiscrimination requirements apply 

to operators of foreign-flag as well as 

U.S. vessels. 

§ 39.3 What do the terms in this rule 

mean? 

This section proposes definitions of 

terms in this rule. Many of the 

definitions are based on parallel 

definitions in the Department’s ADA 

and Air Carrier Access Act (ACAA) 

regulations or Department of Justice 

rules, adapted to the passenger vessel 

context. This preamble discussion 

focuses on terms that are specific to the 

passenger vessel context. Other terms 

would have the same meanings as they 

do in other DOT disability rules. 

Because this NPRM does not propose 

physical accessibility requirements for 

vessels, the definition of ‘‘accessible’’

will be fleshed out with proposed 

standards based on Access Board 

guidelines in a future rulemaking. The 

definition of ‘‘direct threat,’’ drawn from 

Department of Justice regulations, 

concerns only threats to the health and 

safety of others. Something that may 

threaten only the health or safety of a 

passenger with a disability by definition 

cannot be a direct threat. 

In addition to vessels, ‘‘facilities’’

include landside facilities that a vessel 

operator owns, leases, or controls in the 

U.S. (including its territories, 

possessions, and commonwealths). A 

passenger vessel operator (PVO) would 

be viewed as controlling a facility, even 

if it did not own or lease it, if the facility 

owner, through a contract or other 

arrangement, delegated authority over 

use of the facility to the passenger vessel 

operator during those times in which 

the vessel was at the facility. Facilities 

in these three categories would be 

covered directly by Part 39. The 

Department seeks comment on how 

responsibilities should be allocated 

when there are multiple PVOs who 

operate at a given landside facility or 

who only use the facility infrequently. 

The Department realizes that entities 

other than PVOs, such as municipalities 

or other private businesses, may own, 

lease, or control landside facilities that 

passenger vessels use. The obligations of 

these entities would be controlled by 

Titles II and III of the ADA and, in some 

cases, by section 504 of the 

Rehabilitation Act of 1973. We envision 

the relationship between the facility 

owner/controller and the PVO to be 

analogous to other situations in which 

entities subject to different disability 

access rules share responsibility (e.g., 

public entity landlord subject to Title II 

leases property to a private entity 

subject to Title III). We seek comment 

on whether landside facility-specific 

language should be added to the 

Department’s other ADA or section 504 

rules. 

The NPRM does not propose making 

this requirement applicable to facilities 

located outside the U.S. However, we 

seek comment on whether the final rule 

should apply to facilities outside the 

U.S. if a PVO (as distinct from another 

foreign entity) owns, leases, or controls 

the facility. 

The definition of ‘‘historic vessel’’ is 

also one that is likely to become more 

significant when future rulemakings add 

physical accessibility standards to Part 

39. Following practice in other portions 

of the ADA, it is likely that historic 

vessels (e.g., the USS Constellation in 

Baltimore harbor) would be exempted 

from some accessibility requirements. 

‘‘New,’’ ‘‘existing,’’ and ‘‘used’’

passenger vessel are also terms that will 

be of greater importance once physical 

accessibility standards are in place. 

They are based on new and used vehicle 

definitions in the Department’s ADA 

rules for surface transportation modes. 

With respect to the definition of ‘‘new 

passenger vessel,’’ which will be used in 

connection with vessel standards in 

Subpart E when they are added to the 

regulation, we seek comment on 

transition rules. That is, at what point 

in the procurement, design, 

construction, and delivery of a vessel 

should requirements for new vessels 

attach? 

‘‘Operates’’ means the provision of 

transportation or other service by any 

public or private entity on a passenger 

vessel. Importantly, it also includes the 

provision of transportation or other 

service by another party having a 

contractual or other arrangement or 

relationship with the entity involved. 

As in other parts of the Department’s 

accessibility rules, a party can contract 

out its functions, but cannot contract 


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away its responsibilities. By ‘‘other 

services,’’ we mean activities that take 

place on a vessel other than simply 

going from Point A to Point B (e.g., food 

service, recreation, entertainment, 

gambling). This section would also 

cover situations in which a vessel makes 

a round trip from Point A to Point A, 

like some dinner, excursion, and 

gambling vessels do. 

‘‘Passenger vessel’’ is meant to be a 

broadly encompassing term for any boat, 

ship, or other craft that takes on 

members of the public for hire or other 

activities conducted as a part of the 

vessel operators normal operations 

(which could include promotional 

activities involving use of a vessel by 

members of the public for which a fare 

is not charged, free shuttle or ferry 

service). The only exception is for boats 

or other craft that are rented or leased 

to consumers and which the consumers 

themselves (as distinct from the 

passenger vessel operator and its 

personnel) operate. The Department 

seeks comment on whether there are 

any additional situations that the rule 

should cover (e.g., the PVO or an 

organization to which the PVO makes 

the vessel available provides a 

charitable or promotional excursion for 

which no fee is charged). The 

Department also seeks comment on 

whether there should be exceptions or 

different provisions for vessels that are 

not primarily designed or used as 

passenger vessels, but may carry 

passengers for hire on certain occasions 

(e.g., supply vessels, crew boats, school 

training or sailing vessels, research 

vessels carrying students). 

In some cases, such as certain on-thewater gambling casinos, museums, or 

restaurants, an activity takes place on a 

structure that floats but is permanently 

anchored or tethered to a dock or other 

shore facility. On one hand, because it 

floats on the water, such a structure 

could be regarded as a vessel covered by 

this rule. On the other hand, because it 

never actually goes anywhere, it could 

be regarded as a facility, like an onshore building, that is more 

appropriately covered by Department of 

Justice rules. We seek comment on this 

matter. 

The ‘‘passenger vessel operator’’

(PVO) is a term that includes both 

owners and operators of a passenger 

vessel. A PVO may be either a public or 

a private entity. Sometimes, ownership 

of vessels can be complex, with two or 

more different parties involved, and yet 

another party responsible for the day-today operation of the vessel. In such 

situations, all the parties involved 

would be jointly and severally 

responsible for compliance with these 

rules. 

For the most part, ‘‘passenger with a 

disability’’ and ‘‘qualified individual 

with a disability’’ have the same 

meaning for purposes of the proposed 

rule. There could be situations in which 

a qualified individual with a disability 

may not actually be a passenger, or in 

which someone is seeking to perform 

functions on behalf of a person with a 

disability. The ‘‘passenger with a 

disability’’ term includes both situations 

in which someone buys a ticket to travel 

on a vessel and situations (e.g., a 

gambling boat) in which members of the 

public go on board, without a ticket, to 

use the services provided on the vessel, 

regardless of whether the vessel leaves 

its dock or mooring. 

‘‘Terminal’’ would be defined 

broadly, meaning any property or 

facilities adjacent to the means of 

boarding a vessel that passengers use to 

get to the vessel. A terminal, in this 

sense, can be a large complex, a 

building, or a very simple facility. 

Importantly, terminals are covered 

under Part 39 only to the extent that the 

PVO owns or leases the terminal or 

exercises control over its selection, 

design, construction, or alteration (e.g., 

POV[A1] selects site for construction of 

new facility; or PVO has choice of 

docking at existing accessible or 

inaccessible facility). 

As noted in the discussion of 

‘‘facility,’’ the Department seeks 

comment on whether Part 39 should 

apply to a terminal located outside the 

U.S. if the PVO is involved in one of 

these ways. If the PVO does none of 

these things, the terminal would not in 

any circumstance be covered under Part 

39, though other parts of the ADA and 

section 504 of the Rehabilitation Act of 

1973, as amended, may well apply to 

terminals located in the U.S. We also 

note that activities that a PVO itself 

conducts, regardless of the facility in 

which they are conducted, would be 

expected to be available to persons with 

disabilities. 

In other transportation contexts, there 

has been considerable discussion of 

whether the long-standing definition of 

‘‘wheelchair’’ remains adequate, in light 

of the development and use of mobility 

devices that may not fit within the 

definition. We seek comment on this 

question in the context of passenger 

vessels. Should there be a definition 

that specifically acknowledges mobility 

devices that may not literally be 

‘‘wheelchairs,’’ or should a more 

inclusive term be developed? 

§ 39.5 To whom do the provisions of 

this part apply? 

The Department proposes that the 

provisions of this part apply to all 

passenger vessels, regardless of size. 

There are two major exceptions to this 

general coverage. First, while all U.S.- 

flagged vessels would be covered, 

coverage of foreign-flag vessels would 

be limited to those that pick up or 

discharge passengers in the U.S. 

For example, suppose a foreign-flag 

cruise PVO operates two ships. One of 

them sails only among ports in Europe. 

Another picks up passengers in Miami 

and cruises to several Caribbean ports. 

The latter would be covered and the 

former would not. The Department 

seeks comment on a situation that may 

occur, in which tickets are sold to U.S. 

passengers for a combined trip that 

includes transportation to a non-U.S. 

port where they board a ship. For 

example, suppose Grand Fenwick 

Cruise Lines sells a package to U.S. 

passengers including air fare from New 

York to the Bahamas, where passengers 

board the S.S. Grand Duchess Gloriana 

for a Caribbean cruise; should the ship 

transportation be covered for purposes 

of Part 39 nondiscrimination rules? 

The second exception concerns the 

future vessel accessibility standards. 

The NPRM reserves paragraph (c), 

which would state the scope of the 

applicability of these standards. The 

Department notes that the July 2006 

draft Access Board vessel [A2] would 

limit their application vessels permitted 

to carry over 150 passengers or over 49 

overnight passenger capacity categories, 

as well as tenders with a capacity of 59 

or more and all ferries. The Department 

currently anticipates following the 

Access Board’s final guidelines, when 

they are issued, with respect to 

coverage. The Department also seeks 

comment on whether there should be 

any vessel size or capacity limits on any 

of the specific nondiscrimination 

provisions that are proposed in this 

NPRM with respect to subjects other 

than vessel accessibility standards. 

§ 39.7 What other authorities 

concerning nondiscrimination on the 

basis of disability apply to owners and 

operators of passenger vessels? 

This section simply points out that 

recipients of Federal financial assistance 

(e.g., some public ferry operators) are, in 

addition to Part 39, subject to section 

504 of the Rehabilitation Act and DOT 

implementing rules. Department of 

Justice (DOJ) ADA regulations, as 

applicable, also cover PVOs. 


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§ 39.9 What may a PVO of a foreignflag vessel do if it believes that a 

provision of a foreign nation’s law 

prohibits compliance with a provision of 

this part? 

§ 39.11 How may a PVO obtain 

approval to use an equivalent 

facilitation? 

These sections provide means by 

which PVOs may obtain DOT 

authorization to do something different 

from what these regulations would 

require. Section 39.9, which parallels 

language in the Department’s proposed 

Air Carrier Access Act (ACAA) rules for 

foreign carriers, provides a waiver 

mechanism for situations in which a 

PVO for a foreign-flag vessel believes 

that a binding legal requirement of a 

foreign nation (or of an international 

agreement) precludes compliance with a 

requirement of Part 39. This provision 

concerns binding legal requirements, 

not guidance or codes of suggested 

practices. It concerns situations in 

which such a binding legal requirement 

actually precludes compliance with a 

Part 39 provision (e.g., Part 39 says 

‘‘You must do X,’’ while a binding 

foreign legal requirement says ‘‘You 

must not do X’’), as opposed to a 

situation where foreign law authorizes a 

practice that differs from a Part 39 

requirement (e.g., Part 39 says ‘‘You 

must do Y,’’ while a foreign law says 

‘‘You may do Z’’). In a situation where 

the Department grants a waiver, the 

Department would look to the PVO for 

a reasonable alternative means of 

achieving the purpose of the waived 

provision. 

To avoid placing PVOs in a situation 

in which they potentially were required 

to comply with contradictory legal 

requirements, the NPRM proposes that 

PVOs seeking a waiver would have 90 

days from the publication of the final 

rule to file a waiver request. If the PVO 

filed a complete waiver request within 

that period, it could continue to 

implement policies that it believes are 

consistent with the foreign law in 

question pending the Department’s 

decision on the waiver request. 

Section 39.11, on the other hand, 

concerns a potentially wider range of 

situations in which a PVO applies to the 

Department for authorization to provide 

a different means of compliance with a 

requirement of the DOT rules than the 

rules themselves specify. Equivalent 

facilitations can apply to the details of 

physical accessibility standards, when 

they become part of the rule, but could 

also apply to policy and administrative 

matters covered by the rule. It is 

important to note that to be considered 

an equivalent facilitation, the different 

means of compliance must provide 

equal or greater accessibility than that 

required by the regulatory text. 

§ 39.13 When must PVOs comply with 

the provisions of this part? 

As a general matter, PVOs would have 

to begin to comply with the provisions 

of this rule as soon as the rule becomes 

effective. There is no evident reason 

why PVOs should need a lengthy phasein period to comply with requirements 

pertaining to denials of transportation 

on the basis of disability, extra or 

special charges, personal or safety 

assistants, advance notice, waivers of 

liability, etc. The Department would 

hope and expect that most PVOs are 

already acting in ways that are in 

compliance with these 

nondiscrimination policy and 

administrative practice requirements. If 

not, then this NPRM should put PVOs 

on notice that changes in their policies 

may be necessary in the near future. 

There are some provisions of the 

proposed rule concerning which it 

would be reasonable for PVOs to have 

a longer phase-in period, however. 

Specific sections on such matters as 

modifications to terminals and other 

landside facilities and training for 

personnel have proposed compliance 

dates intended to give PVOs a 

reasonable time to meet requirements. 

The Department seeks comment on 

these proposed compliance dates, as 

well as on whether there are other 

provisions on which PVOs would need 

additional time to comply. 

§ 39.21 What is the general 

nondiscrimination requirement of this 

part? 

The provisions of this section are 

parallel to the general 

nondiscrimination requirements in the 

Department’s other disability-related 

rules. We would call attention 

particularly to paragraph (b), which 

would require modification of PVOs’

otherwise acceptable general policies 

where doing so is necessary to 

accommodate the needs of a particular 

individual or category of individuals 

with a disability. Such modification is 

required unless it would be unduly 

burdensome or require a fundamental 

alteration in the nature of the PVO’s 

services, programs, or activities. 

§ 39.23 What are the requirements 

concerning contractors to owners and 

operators of passenger vessels? 

As noted above, contractors and other 

persons whom the PVO uses to provide 

services to passengers ‘‘stand in the 

shoes’’ of the PVO with respect to the 

requirements of this rule. The PVO must 

ensure, through provisions in the 

contracts or other agreements with such 

third parties, that the third parties 

comply with applicable requirements. 

We seek comment on whether, if at all, 

contractors outside the United States 

should be covered by this requirement. 

All new contracts and other agreements 

must have this assurance language. The 

Department seeks comment on whether 

the rule should require the addition of 

assurance language to existing contracts 

and agreements, and, if so, what the 

compliance period for such additions 

should be. Since PVOs cannot contract 

away their responsibilities, PVOs 

remain responsible for the third parties’

actions. This would be true, in the 

Department’s view, even with respect to 

actions of third parties where the PVO’s 

agreements with the third parties did 

not yet include assurance language. 

§ 39.25 May PVOs limit the numbers of 

passengers with a disability on a 

passenger vessel? 

The Department views any policy 

limiting the number on passengers with 

a disability on a vessel as discriminatory 

on its face. With respect to the concern 

expressed by ICCL about large groups of 

passengers with a disability traveling 

together, we believe that the provision 

of § 39.35 permitting PVOs to ask for 

advance notice in this situation (e.g., so 

as to be able to make the needed 

reconfigurations of the flexible space in 

overnight accommodations that ICCL’s 

comment mentions) should be helpful. 

§ 39.27 May PVOs refuse to provide 

transportation or use of a passenger 

vessel on the basis of disability? 

The Department views any policy or 

action prohibiting a person with a 

disability from being transported on or 

otherwise using a passenger vessel as 

discriminatory on its face. If a PVO says 

to a person, literally or in effect, ‘‘you 

are a person with a disability, therefore 

stay off my vessel,’’ the PVO would 

violate this rule. The Department 

recognizes that some disabilities may 

make other passengers uncomfortable. 

That is not a justifiable reason to deny 

access to the vessel to persons with 

these disabilities (see paragraph (b)). 

Only if there is a genuine safety issue, 

meeting the stringent direct threat 

criteria outlined in paragraph (c), would 

the PVO be justified in excluding a 

person because the person has a 

disability. Even in that case, the PVO 

would have to provide a written 

explanation to the person within 10 

days of the denial (paragraph (d)). 

The Department recognizes that, 

particularly prior to the adoption of 

physical accessibility standards, some 


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vessels will not have accommodations 

that will permit persons with some 

disabilities to travel on or to obtain 

some services on the vessels. 

For example, an older vessel might 

not have any overnight cabins of a size 

that could accommodate a person using 

a power wheelchair, or might have a 

dining area that is on a deck which can 

be accessed only by using steps. The 

Department would not, in such a 

situation, regard a PVO’s statement to a 

passenger about the lack of adequate 

physical accommodations as equivalent 

to a policy denying access on the basis 

of disability. 

§ 39.29 May PVOs limit access to 

transportation on or use of a vessel on 

the basis that a passenger has a 

communicable disease or other medical 

condition? 

§ 39.31 May PVOs require a passenger 

with a disability to provide a medical 

certificate? 

These related provisions are intended 

to limit PVOs’ discretion to impose 

requirements or restrictions on 

passengers on medical grounds. Most 

disabilities are not medical conditions: 

A person is not ill because he or she 

cannot see, hear, or walk, and applying 

a medical model to many disabilities is 

inappropriate. On the other hand, 

people with a variety of medical 

conditions (e.g., heart disease) may have 

at least temporary disabilities. If there is 

reasonable doubt that a passenger with 

a medical condition can complete a 

given trip or use a vessel without 

requiring extraordinary medical 

assistance, then this rule would permit 

the PVO to require a medical certificate 

from the individual. In applying this 

requirement, the Department believes it 

is reasonable for the PVO to take into 

account the length of the passenger’s 

stay aboard the vessel. 

With respect to communicable 

diseases, the PVO cannot deny or 

restrict transportation on or use of a 

passenger vessel on the basis that the 

passenger has a communicable disease, 

unless the PVO makes a direct threat 

determination. In the communicable 

disease area, the Department believes 

that PVOs should consider two factors. 

One is the severity of the consequences 

of a disease; the other is whether the 

disease can readily be communicated by 

casual contact. Only if a disease has 

severe consequences to the health of 

other persons and is readily 

communicable by casual contact could 

a PVO legitimately determine that there 

is a direct threat. For example, HIV/ 

AIDS has severe consequences, but is 

not readily communicable by casual 

contact. The common cold is readily 

communicable by casual contact but 

typically does not have severe health 

consequences. Consequently, having a 

cold or having AIDS would not be a 

basis on which a PVO could limit a 

person’s transportation on or use of a 

vessel. Probably the best recent example 

of a disease that meets both criteria is 

Severe Acute Respiratory Syndrome 

(SARS), and, in the future, a readily 

human-to-human transmissible avian 

flu pandemic might well qualify. PVOs 

could legitimately take into account 

determinations by public health 

authorities about the travel of persons 

with a certain disease (e.g., if the 

Centers for Disease Control or World 

Health Organization issued a finding 

that persons with a certain disease or 

symptoms should not travel). 

In any case in which a medical 

certificate may be required or a 

limitation on a passenger’s travel be 

imposed, the limitation should be the 

minimum needed to deal with the 

medical issue or direct threat to the 

health of others. For example, the PVO 

would not be authorized to deny 

transportation to an individual if a less 

drastic alternative, such as the use of a 

personal assistant or the passenger’s use 

of medical measures that would mitigate 

the transmission of an illness is 

available. 

If a PVO refuses transportation to a 

passenger with a disability on grounds 

related to a medical condition, the 

NPRM proposes that the PVO would 

have to permit the passenger to travel or 

use the vessel at any time within a year 

at the same price as the original trip or, 

at the passenger’s discretion, provide a 

refund. The Department seeks comment 

on whether and how to apply this 

concept to situations in which an 

equivalent trip is not available within a 

year (e.g., Grand Fenwick Cruise Lines 

makes only one trip to Tierra del Fuego 

every three years, or the S.S. Grand 

Duchess Gloriana’s trips are all fully 

booked for the next year). The 

Department also seeks comment on 

how, if at all, the availability of trip 

insurance to the individual passenger 

should be related to this proposed 

provision. 

§ 39.33 May PVOs require a passenger 

with a disability to provide advance 

notice that he or she is traveling on or 

using a passenger vessel? 

§ 39.35 May PVOs require a passenger 

with a disability to provide advance 

notice in order to obtain certain services 

in connection with transportation on or 

use of a passenger vessel? 

In these related sections, the 

Department is saying, first, that it is 

never appropriate for a PVO to require 

a person to provide advance notice that 

he or she is coming, just because he or 

she has a disability. The PVO’s 

nondiscriminatory policies and 

practices should be in place, ready to 

deal with whoever shows up. On the 

other hand, there may be specific 

accommodations for which provision of 

advance notice is needed. One that 

seems reasonable is when a large 

number of people with a disability plan 

to travel as a group. The NPRM uses the 

ACAA standard of a group of 10 or more 

disabled passengers traveling as a group. 

We seek comment on whether this 

concept should be refined to recognize 

the possibility that some groups of 

disabled passengers traveling together 

may not need any special 

accommodations. In such a case, is the 

advance notice provision advisable? 

A second instance where advance 

notice could be helpful concerns a 

request for an accessible overnight 

cabin. The Department’s proposal on 

this subject is intended to grapple with 

the reported problem of nondisabled 

travelers reserving an accessible cabin 

because it is roomier, thus denying its 

availability to a disabled passenger who 

may subsequently seek the 

accommodation. Under the proposal, 

everyone reserving an accessible cabin 

would be informed that, if a passenger 

with a disability made a reservation at 

least 72 hours before the vessel’s 

scheduled departure and requested an 

accessible cabin, any nondisabled 

person who had previously reserved the 

cabin would be moved to another cabin, 

if one were available. The NPRM would 

not require any passenger to be bumped 

from a voyage as a result, only 

reassigned to a different cabin. 

Obviously, the operation of this 

provision would depend on selfidentification by the passenger with a 

disability of his or her need for the 

accessible cabin. 

The Department seeks comment on 

whether the rule should specify in more 

detail the kinds of disabilities that 

would trigger this provision (e.g., 

should the provision be limited to 

persons with mobility impairments?) or 

whether the PVO should be permitted, 


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or required, to seek documentation of a 

disability from a passenger seeking to 

reserve such an accommodation. We 

also seek suggestions for any alternative 

means of addressing this issue. We 

recognize that, especially on some 

cruise ships, it is commonplace for 

travelers to reserve cabins months in 

advance. It is also commonplace for 

whole voyages to be sold out months in 

advance. We seek comment, thus, on 

whether a passenger with a disability 

who requested an accessible cabin 72 

hours before departure could 

appropriately bump a nondisabled 

passenger from a cabin reserved months 

ahead of time. Similarly, we seek 

comment on whether a deadline for 

requesting an accessible cabin should be 

72 hours or another fixed time before 

departure or, alternatively, based on 

when passengers in general reserve their 

cabins. (If the latter, for example, an 

accessible cabin might have to be 

requested before half of all cabins are 

reserved.) Additionally, we seek 

comment on whether, as we do in the 

ADA rule for over-the-road buses, we 

should provide that any cut-off date for 

reservations in general should also be 

applied to requests for an accessible 

cabin. 

The Department recognizes that, 

pending the development of passenger 

vessel physical accessibility standards, 

even new vessels are not required to 

have a particular number of accessible 

cabins. This provision would apply to 

the accessible cabins that now exist, as 

well as any others that may become 

available in the future. We also 

recognize that there could be situations 

in which an accessible room would not 

be available to a passenger with a 

disability because another passenger 

with a disability had already reserved 

the room. Other than treating such 

situations as a ‘‘first-come first-served’’

manner, do commenters have any 

suggestions for resolving such a 

situation? 

The Department also seeks comment 

on whether 72 hours would be a 

reasonable amount of advance notice in 

these situations and on whether there 

are other services for which an advance 

notice requirement would be 

reasonable. 

There could be situations in which a 

similar principle could arguably apply 

to other shipboard activities. For 

example, some cruise ships may assign 

seats for dinner. If a passenger with a 

disability was unable, because of 

barriers in the dining area, to get readily 

to his or her assigned seat, could it be 

viewed as a reasonable modification of 

the PVO’s seating policy to shift dining 

table assignments of other passengers to 

provide accessibility to a dining table? 

If so, taking into account any disruption 

of the operator’s seating plans or of the 

other passengers’ seating arrangements, 

would a request for an accessible table 

have to be made a specified number of 

hours before departure? The Department 

seeks comment on this or similar issues 

involving on-board activities. 

§ 39.37 May PVOs require a passenger 

with a disability to travel with a 

personal or safety assistant? 

The Department regards requiring a 

passenger with a disability to travel 

with another person, just because that 

person has a disability, as 

discriminatory on its face. Such a 

requirement is not only an affront to the 

independence and dignity of the 

passenger, but may sometimes make 

travel cost-prohibitive. On the other 

hand, there can be situations in which 

traveling with another person as a safety 

assistant is essential for safety purposes. 

Paragraph (b) spells out three situations 

in which it would be justifiable to 

impose a requirement for a safety 

assistant. These situations are drawn 

from the similar provision of the 

Department’s ACAA rule, and the 

Department seeks comment on any 

other situations in vessel contexts where 

such a requirement could be justified. 

As ICCL’s comment noted, because 

some passenger voyages are much 

longer than airplane flights, there may 

be situations in which a personal 

assistant is necessary (the ACAA rule 

never permits a requirement for 

personal assistants, as distinct from 

persons needed to assist with an 

emergency evacuation, in air travel). 

Consequently, the Department proposes 

that if a passenger with a disability 

needs a personal assistant to help 

perform key personal tasks, such as 

eating, toileting, and dressing, and the 

passenger’s use of the vessel will be 

lengthy enough so that the passenger 

will need to perform these tasks, the 

PVO may require the passenger with a 

disability to have a personal assistant. 

For shorter voyages akin in length to 

airplane flights, the PVO could not 

impose such a requirement. However, 

for a longer voyage (e.g., a multi-day 

cruise), the PVO could do so. 

The Department recognizes that there 

can be situations in which a passenger 

and a PVO disagree about whether a 

safety or personal assistant is necessary. 

In these situations, the proposed rule 

contemplates that the PVO would have 

the last word, and could require the 

attendant over the passenger’s 

objections. However, in such a situation, 

the rule would require the PVO to put 

its money where its mouth is, and not 

charge for the transportation or use of 

the vessel by the assistant who the 

passenger was involuntarily required to 

bring along. As under the ACAA rule 

(where a similar provision has been in 

effect since 1990 without causing 

significant disruptions), the PVO could 

designate a member of its own staff or 

a passenger volunteer as the assistant, in 

order to deter any potential abuse by a 

passenger who would, for example, 

unreasonably object to the use of an 

assistant in order to secure free 

transportation for a friend or family 

member. 

§ 39.39 May PVOs impose special 

charges on passengers with a disability 

for providing services and 

accommodations required by this rule? 

Price discrimination is forbidden. 

PVOs may not charge higher fares to 

passengers with disabilities than to 

other passengers. PVOs cannot impose 

surcharges on passengers with 

disabilities, or any sort of extra or 

special charges for facilities, equipment, 

accommodations, or services that must 

be provided to passengers because they 

have a disability. This prohibition 

would apply not only to formal charges 

made by the PVO itself, but to informal 

charges that PVO personnel might seek 

to impose or pressure passengers with a 

disability to pay. For example, if a 

vessel cannot be boarded by a 

wheelchair user without assistance (e.g., 

because the boarding ramp slope is too 

steep), it would not be appropriate for 

vessel personnel who provide boarding 

assistance to ask, pressure, or imply that 

the wheelchair users should provide a 

tip for the assistance. 

One of the important implications of 

the prohibition on price discrimination 

concerns situations in which an 

accommodation for a person with a 

disability is available only in a more 

expensive type or class of service than 

the passenger requests. For example, 

suppose a passenger with a disability 

tries to make a reservation for an inside 

cabin. However, the only accessible 

cabins on the vessel are in the more 

expensive outside cabins with windows. 

The PVO would have to provide the 

accessible cabin to the passenger with a 

disability at the price of the less 

expensive accommodation he or she had 

requested. This is consistent with ADA 

practice in other contexts, such as 

booking of hotel rooms or sleeping 

compartments on Amtrak trains. 


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§ 39.41 May PVOs impose restrictions 

on passengers with a disability that they 

do not impose on other passengers? 

§ 39.43 May PVOs require passengers 

with a disability to sign waivers or 

releases? 

The NPRM would forbid restrictions 

on passengers with a disability that are 

not imposed on other passengers, 

including requirements to sign waivers 

or releases either for themselves or their 

assistive devices. The kinds of 

restrictions these sections address are 

restrictions created by PVO policy. The 

Department is aware that, particularly 

pending the adoption of passenger 

vessel physical accessibility standards, 

portions of existing vessels may well be 

inaccessible to some passengers with a 

disability. Inaccessibility of this kind 

would not violate these sections, but an 

administrative rule declaring certain 

portions of a vessel off limits to a 

passenger with a disability would, if 

that rule did not apply equally to all 

passengers. 

§ 39.51 What information must PVOs 

provide to passengers with a disability? 

The Department recognizes that 

vessels and facilities will not be equally 

accessible; that some vessels, ports, 

services, and facilities may not be 

usable by persons with some 

disabilities. This section would require 

PVOs to inform people with disabilities, 

accurately and in detail, about what 

they can expect. What features of a 

vessel are accessible and what are not? 

What limitations, if any, are there 

concerning the ability of a vessel to 

accommodate persons with a particular 

disability? At what ports could 

passengers with a disability expect to be 

able to get on and off the ship, and by 

what means? If third parties are making 

tours and excursions available to 

passengers, to what extent are these 

tours accessible to persons with a 

particular disability? With this 

information, potential passengers with a 

disability can make an informed choice 

about whether seeking transportation on 

a particular vessel is worth their while. 

§ 39.53 Must information and 

reservation services of PVOs be 

accessible to individuals with hearing or 

vision impairments? 

This section would apply to 

information and reservation services 

made available to consumers in the 

United States, regardless of the 

nationality of a PVO or where the 

personnel or equipment providing the 

services are themselves based. The first 

proposed requirement is for TTY service 

for persons with hearing impairments. 

The Department is aware that some deaf 

and hard-of-hearing persons now may 

use other technologies in preference to 

TTYs (e.g., videophones, instant 

messaging), and we seek comment on 

how, if at all, this development should 

be reflected in a final rule. 

On-line booking services, as well as 

web sites providing information about 

passenger vessel availability, schedules, 

and services, are very important in 

today’s marketplace. Consequently, the 

Department views it as very important 

for on-line resources to be available to 

persons with disabilities. We would 

view a web site meeting section 508 or 

World Wide Web Consortium standards 

as being accessible for this purpose. The 

regulatory text does not make a specific 

proposal on this subject, but we seek 

comment on whether the final rule 

based on this NPRM, or a future rule 

incorporating vessel accessibility 

standards, should include such a 

requirement. We also seek comment on 

the costs of requiring Web site 

accessibility in the passenger vessel 

industry, the appropriate standards for 

accessible sites, and the timing and 

phase-in period appropriate for such a 

requirement. 

§ 39.55 Must PVOs make copies of this 

rule available to passengers? 

The NPRM would propose that PVOs 

maintain a copy of the rule on each 

vessel and at each U.S. terminal. The 

purpose of doing so would be to make 

the rule readily available for reference 

in case a question occurred about 

whether a PVO was acting consistently 

with its requirements. 

§ 39.57 What is the general 

requirement for PVOs’ communications 

with passengers? 

This section states the general 

effective communication requirement 

for PVOs. 

§ 39.61 What requirements must PVOs 

meet concerning the accessibility of 

terminals and other landside facilities? 

This section applies to landside 

facilities that the PVO owns, leases, or 

controls in the U.S. If the PVO does not 

own, lease, or control a facility, then the 

requirements of this section do not 

apply to it (there may well be situations 

in which case a public entity or another 

private entity would own or control the 

facility, in which the other entity would 

have its own ADA and/or 504 

obligations). In the case of a foreign 

facility, where ADA or section 504 rules 

would not apply in their own right, 

facility accessibility would then become 

a matter of the law of the country in 

which the facility is located. As noted 

in the discussion of the definition of 

‘‘facility,’’ the Department seeks 

comment on whether a PVO covered by 

this rule should have accessibility 

obligations for a foreign facility that the 

PVO itself, as distinct from a separate 

foreign entity, owns, controls or leases. 

The rule would make a familiar threepart breakdown of accessibility 

responsibilities for covered facilities. 

New facilities must meet accessibility 

standards from the beginning. In the 

case of an alteration, the altered portion 

of the existing facility would have to be 

brought up to the same accessibility 

standards applicable to new facilities. 

For existing facilities not otherwise 

being altered, the PVO would have to 

ensure that the facility is able to be used 

by a passenger with a disability to 

access the PVO’s vessel. This could be 

achieved through a variety of means. 

We note that there may be many 

situations in which a PVO shares 

accessibility responsibilities with 

another party. For example, a PVO may 

lease a portion of a port facility that is 

owned by a private or public entity. The 

PVO has responsibilities under this part; 

the other entity has responsibilities in 

its own right under Title II or III or the 

ADA or under section 504. In these 

cases, it would be up to the parties 

involved to allocate the responsibilities 

among themselves, so that they jointly 

ensure that accessibility requirements 

are met for the facility. 

We also recognize that there can be 

instances in which a vessel berths at a 

floating dock, rather than literally at a 

landside facility. We would propose to 

treat such a floating dock in the same 

way as a landside facility for 

accessibility purposes, but we seek 

comment on whether any different 

treatment would be appropriate. 

The Department seeks comment on 

whether it would be advisable to add 

specific provisions similar to §§ 37.41, 

37.43, and 37.45 in the Department’s 

existing ADA rule for the new 

construction and alteration of passenger 

vessel facilities, including provisions for 

alterations affecting areas containing a 

primary function that are subject to 

additional requirements for path of 

travel. 

§ 39.63 What accommodations are 

required at terminals and other landside 

facilities for individuals with hearing or 

vision impairments? 

This section specifies the effective 

communications that would have to be 

provided at terminals and other 

landside facilities to ensure that persons 

with sensory impairments would be 

able to receive the information 

otherwise available to the public, 


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concerning such subjects as ticketing, 

fares, and schedules. There would be a 

one-year phase-in period for this 

requirement, which would apply to 

existing as well as new facilities. 

Subpart E—Accessibility of Vessels 

This subpart would be reserved. It is 

a place-holder for the subsequent 

inclusion of passenger physical 

accessibility standards based on future 

Access Board guidelines. We note that, 

in connection with any rule 

incorporating the guidelines as DOT 

standards, DOT would designate an 

agency as the ‘‘administrative authority’’

to make certain determinations. We 

anticipate that the Department would 

designate the U.S. Coast Guard, with 

that agency’s consent, as the 

administrative authority for many of 

these provisions, for foreign-flag as well 

as U.S. vessels. It is not necessary for 

this NPRM to propose this designation, 

since it logically would be part of a 

future NPRM proposing to adopt Access 

Board guidelines as DOT regulatory 

standards. 

There are, however, some facility 

accessibility issues that may not be 

covered by future Access Board 

guidelines. For example, we seek 

comment on whether a provision should 

be added for accessibility of televisions 

and telephones on vessels, similar to 

what DOT has proposed for air carriers 

pursuant to the Air Carrier Access Act 

(see 71 FR 9285 (February 23, 2006)). 

The Access Board’s guidelines will not 

address televisions and telephones in 

passenger rooms since they are not fixed 

elements. 

It is our understanding that cruise 

ships typically provide televisions in 

passenger rooms and lounges. The 

Television Decoder Circuitry Act 

requires televisions with screens 13 

inches or greater to contain built-in 

circuitry that receives and decodes 

closed captions. Cruise ships also 

typically provide telephones in 

passenger rooms. The Hearing Aid 

Compatibility Act and FCC rules require 

certain telephones to have volume 

controls and to be compatible with 

hearing aid technology. We seek 

information on whether cruise ships are 

currently providing televisions that are 

capable of receiving and decoding 

closed captions, and hearing aid 

compatible telephones with volume 

controls. 

The Department does not intend to 

impose requirements in this area in the 

final rule resulting from this NPRM. 

Rather, we are seeking comment on this 

subject in order to determine whether, 

in a future NPRM that would propose 

adoption of the Access Board’s final 

passenger vessel guidelines, to propose 

adding requirements concerning 

telephones and televisions as a DOT 

modification to the guidelines. 

§ 39.81 What assistance must PVOs 

provide to passengers with a disability 

in getting to and from a passenger 

vessel? 

This section does not deal with 

boarding a vessel, as such. Rather, it 

deals with how people get to the point 

of boarding a vessel, in terms of land 

transfers (e.g., a bus between the airport 

and the terminal) and in actually 

moving through the terminal and 

boarding process up to the point of 

getting onto the vessel. PVOs would be 

responsible for making sure that these 

services were accessible to people with 

disabilities. The Department seeks 

comment on the extent, if any, to which 

such a requirement should apply to 

services provided outside the U.S. (e.g., 

Grand Fenwick Cruise Lines itself 

provides, or contracts with a local bus 

company to provide, land transportation 

between the dock and points of interest 

in Barbados). 

§ 39.83 What are PVOs’ obligations for 

assisting passengers with a disability in 

getting on and off a passenger vessel? 

The optimal solution for boarding a 

vessel involves a passenger with a 

disability being able to board 

independently (e.g., via a level-entry 

ramp). The Department realizes that 

there will be many situations where this 

optimal solution does not exist. In these 

situations, the PVO is responsible for 

providing assistance that enables a 

passenger with a disability to get on or 

off the vessel. We note that a number of 

comments to the ANPRM represented 

that these services are already being 

provided in many instances, so we 

believe it is fair to suggest that this 

requirement would not create 

significant added burdens for PVOs. We 

also note that this provision pertains to 

normal boarding and disembarkation 

from a vessel: obviously, in the case of 

an ‘‘abandon ship’’ or other emergency 

situation, crew will use any means 

necessary to ensure that all passengers 

can safely evacuate. 

On some occasions, it may be the 

custom on cruise ships or other vessels 

with overnight accommodations to 

temporarily store luggage in 

passageways in preparation for 

disembarkation at the end of a voyage. 

This may have the effect of preventing 

passengers with disabilities from using 

otherwise accessible routes. The 

Department seeks comment on the 

extent of this problem and what 

requirements in a final rule, if any, 

should be devised to address it. 

The Department also seeks comment 

on whether a provision should be added 

that would require the use of accessible 

boarding systems, as described in 

§ V412 of the Access Board’s draft 

guidelines, for vessels with a certain 

passenger capacity at terminals that 

have a certain threshold level of annual 

embarkations, similar to the provision 

in DOT’s Air Carrier Access rule. See 14 

CFR 382.40(a). If so, what vessel 

passenger capacity and threshold level 

of annual embarkations should be used 

for requiring accessible boarding 

systems? Also, if a provision is added 

requiring accessible boarding systems at 

certain terminals, would it be advisable 

to require the PVO negotiate an 

agreement with the terminal operator to 

ensure the provision of accessible 

boarding systems, similar to the 

provision in DOT’s Air Carrier Access 

Act and section 504 rules concerning 

boarding devices for commuter aircraft? 

See 14 CFR 382.40(b) and (c). Such an 

approach might also require amendment 

of the DOT 504 rule, 49 CFR Part 27. 

§ 39.85 What services must PVOs 

provide to passengers with a disability 

on board a passenger vessel? 

§ 39.87 What services are PVOs not 

required to provide to passengers with a 

disability on board a passenger vessel? 

These sections concern services that 

PVOs would, or need not, provide to 

passengers with a disability. The 

services in question include movement 

about the vessel, but only with respect 

to portions of the vessel that are not 

accessible to passengers with a 

disability acting independently. To the 

extent that a PVO makes accessibility 

improvements to a vessel, the PVO can 

probably reduce its obligation to 

provide this service. When food is 

provided to passengers, PVO personnel 

would help passengers with a disability 

to a limited degree, including opening 

packages and identifying food, or 

explaining choices. Assistance in actual 

eating or other personal functions (e.g., 

toileting or provision of medical 

equipment or supplies or assistive 

devices, beyond what is provided to all 

passengers) would not be required. 

Effective communication of on-board 

information would be required. 

§ 39.89 What requirements apply to 

on-board safety briefings, information, 

and drills? 

This section specifies that safetyrelated information must be 

communicated effectively to passengers 

with disabilities. This can include the 


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use of alternative formats and other 

auxiliary aids, where needed. Safety 

videos would have to be captioned or 

have an interpreter inset, in order to 

make the information available to 

persons with impaired hearing. 

Passengers with disabilities must be 

enabled to participate in evacuation and 

other safety drills, and information 

about evacuation and safety procedures 

would have to be kept in locations that 

passengers with disabilities can access 

and use. The Department seeks 

comment on whether any special 

accommodations would be needed to 

assist persons with cognitive 

disabilities. 

§ 39.91 Must PVOs permit passengers 

with a disability to travel with service 

animals? 

Many persons with disabilities rely on 

service animals to travel and conduct 

daily functions. This section specifies 

that PVOs would be required to permit 

service animals to accompany a 

passenger with a disability on board a 

vessel. 

ICCL raised a number of service 

animal-related comments in its ANPRM 

response. We agree that foreign 

countries may limit entry of service 

animals; this should not affect the 

carriage of service animals on the vessel, 

however, since there is no requirement 

that the animal leave a cruise ship. 

Limitations on the ability of a service 

animal to leave the ship at a foreign port 

would be among the information that a 

cruise ship would provide to potential 

customers inquiring about an upcoming 

cruise. We also agree that PVOs would 

not be required to supply food for the 

animal. We seek comment on whether it 

is necessary to require PVOs to permit 

passengers with a disability to bring 

their own supplies of food for the 

service animal on board, without charge 

by the PVO. We also seek comment on 

whether PVOs should make 

refrigeration services available for 

service animal food. 

ICCL commented that service animals 

typically share the cabin of the 

passengers who use them. The 

Department does not see an objection to 

this practice, though we seek comment 

on whether service animal users have 

had any problems in this regard. 

We would view a limitation on the 

number of service animals that can be 

brought on a given voyage as 

tantamount to a number limit on 

passengers with a disability (i.e., as a 

number limit, which the proposed rule 

would prohibit). It is not self-evident 

that having a number of service animals 

on board a ship at a given time would 

be disruptive to ship operations, and 

vague concerns about adverse effects on 

the quality of the cruise experience for 

other passengers do not trump the 

nondiscrimination imperative of the 

ADA. 

The Department is not proposing, at 

this time, to adopt ACAA service animal 

guidance for other transportation 

contexts, though the general principles 

behind this guidance apply across the 

board to all transportation and public 

accommodations applications of the 

ADA. The Department anticipates that, 

following the publication of a final rule 

on passenger vessels, it would work 

with stakeholders to develop more 

detailed guidance on this subject for 

passenger vessels. One issue the 

Department would likely address in 

such guidance is the extent to which 

PVOs could inquire as to the status of 

an animal as a service animal (e.g., to 

prevent potential abuse from persons 

wanting to bring pets on board the 

vessel in ways inconsistent with the 

PVO’s policy on pets). 

One issue that arises, especially in the 

context of longer voyages, concerns 

service animal relief areas. The 

Department seeks comment what 

requirements, if any, should be included 

in a final rule concerning the provision 

of such areas. Should a final rule specify 

the number and location of such areas? 

We are glad to see from the ICCL 

comment that cruise operators typically 

provide relief areas. 

ICCL, of course, represents the cruise 

industry, which frequently operates 

larger ships than other PVOs. The 

Department seeks comment on whether, 

with respect to any of the issues 

discussed in this section, there should 

be differing requirements for smaller 

vessels. 

§ 39.93 What mobility aids and other 

assistive devices may passengers with a 

disability bring onto a passenger vessel? 

§ 39.95 May PVOs limit their liability 

for the loss of or damage to mobility 

aids and other assistive devices? 

These sections say simply that 

passengers should be permitted to bring 

and use their own mobility aids and 

other assistive devices on board a 

vessel. Once the devices are there, if the 

PVO is responsible for loss or damage, 

the PVO must compensate the owner, at 

the level of the original purchase price 

of the device. This measure of the level 

of compensation is derived from the 

Department’s ACAA rule. We also seek 

comment on alternative methods of 

measuring the appropriate level of 

compensation, such as the depreciated 

present value of the device or the 

current replacement cost for the device. 

§ 39.101 What are the requirements for 

providing Complaints Resolution 

Officials? 

§ 39.103 What actions do CROs take 

on complaints? 

The role of the Complaints Resolution 

Official (CRO) was first developed in the 

Department’s 1990 ACAA regulations, 

and it has proved very helpful in the 

airline service context. As applied in the 

passenger vessel context, the CRO 

would be the PVO’s expert in disability 

matters, knowledgeable about both the 

Department’s regulations and the PVO’s 

procedures, and able to assist 

passengers with disabilities and other 

PVO personnel in resolving issues. We 

believe that the CRO model can 

potentially be adapted very well to 

passenger vessels, with the intent of 

solving problems at the PVO level 

before they become matters for 

complaints to the Department or for 

litigation. These proposed provisions 

are modeled closely on the ACAA CRO 

provisions, and the Department seeks 

comment on what changes, if any, 

should be made in adapting this model 

to passenger vessels. 

As in the airline context, the 

Department does not intend to mandate 

that CRO duties necessarily be full-time 

for a given employee. PVOs could, for 

example, train a number of different 

vessel and landside personnel to act as 

CROs, who might perform these 

functions as a collateral duty. 

PVOs are likely to find it necessary to 

ensure that not only CROs, but also 

other personnel who interact with 

passengers, are trained sufficiently to be 

knowledgeable about the requirements 

of these rules and proficient in 

performing tasks related to passengers 

with disabilities. If they are not, it is 

likely that mistakes will be made that 

would potentially lead to 

noncompliance. The Department seeks 

comment on what, if any, training 

requirements should be included in a 

final rule. 

One model that the Department could 

consider would resemble the training 

requirements in the ACAA rule. This 

model would involve training to 

proficiency concerning the requirements 

of this rule; the PVO’s procedures with 

respect to the provision of 

transportation or use of a passenger 

vessel to passengers with a disability, 

including the proper and safe operation 

of any equipment used to accommodate 

passengers with a disability; the use of 

the equipment used by the PVO and 

appropriate assistance procedures that 

safeguard the safety and dignity of 

passengers. Training on the ACAA 

model would also address such matters 


jlentini on PROD1PC65 with PROPOSAL
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as awareness and appropriate responses 

to passengers with a disability, 

including persons with physical, 

sensory, mental, and emotional 

disabilities, including how to 

distinguish among the differing abilities 

of individuals with a disability. 

Training on this model would cover 

contractor personnel as well as direct 

employees of PVOs. The Department 

seeks comment on whether such a 

requirement is advisable. We also seek 

comment on alternative training models 

that might be appropriate. 

The Department also seeks comment 

on what the costs of training are likely 

to be. With respect to training, the 

Department does not currently have 

data concerning the number of PVO 

personnel who would have to be trained 

or the costs per person of such training. 

We seek data from the industry or other 

sources on this matter. We point out 

that, in the regulatory evaluation for the 

Department’s 2004 NPRM to expand 

ACAA coverage to foreign air carriers, 

the Department projected annual 

training costs of around $9.5 million, for 

an industry that probably has an 

affected work force of that may be of 

roughly comparable size. 

If there is such a training requirement, 

the Department seeks comment on what 

time frames or deadlines we should 

establish for completing the training. 

We also seek comment on what, if any, 

reporting or record retention 

requirements there should be 

concerning training. The Department 

does not, at this time, contemplate 

drafting a training curriculum or 

certifying the training of PVO personnel. 

§ 39.105 How must PVOs respond to 

written complaints? 

§ 39.107 Where may passengers file 

complaints? 

These provisions are also based on 

current ACAA procedures, and we again 

seek comment on how they may best be 

adapted to the passenger vessel context. 

We also seek comment on whether this 

rule should include a reporting 

requirement, analogous to that of the 

ACAA rule (see 14 CFR 382.70). The 

purpose of such a requirement would be 

to help the Department identify types of 

issues that may need additional 

attention or particular PVOs that may be 

having problems in a particular area in 

which the Department could focus 

compliance efforts. Should such a 

requirement be limited to PVOs 

operating vessels over a certain size 

(e.g., 50 passenger capacity)? Is a 

requirement similar to that of the ACAA 

a good idea in the vessel context, or is 

there a different or simpler approach we 

could take toward complaint reporting? 

The final rule would include detailed 

information on addresses, phone 

numbers, etc. where complaints could 

be filed at DOT or DOJ. Obviously, a 

passenger dissatisfied with the PVO’s 

resolution of a complaint could file a 

complaint with DOT or DOJ. 

§ 39.109 What enforcement action may 

be taken under this part? 

One important difference between the 

ACAA and the ADA is that, under the 

former, the Department has its own civil 

penalty enforcement authority and 

procedures. The Department does not 

have its own civil penalty authority 

under Titles II and III of the ADA, 

though the Department can conduct 

investigations and compliance reviews, 

collect data, find facts, come to 

conclusions, and refer matters to the 

Department of Justice for further action. 

DOJ can, of course, conduct 

enforcement proceedings on its own 

initiative. 

Some PVOs receive Federal financial 

assistance, such as ferry operators who 

receive Federal Transit Administration 

(FTA) funding. Complaints concerning 

violations of this part by FTA-assisted 

ferry operators could be made to the 

FTA under the Department’s ADA and 

504 rules, and FTA could take 

enforcement action as provided in those 

rules. 

Regulatory Analyses and Notices 

The Department believes that this 

NPRM proposes a significant rule for 

Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

purposes. While the NPRM does not 

impose significant costs, it addresses 

issues that are of considerable policy 

interest and would create requirements 

for entities that have not previously 

been subject to regulation. In a future 

rulemaking, the Department anticipates 

proposing, in conjunction with the 

Access Board, physical accessibility 

standards for vessels. This future 

rulemaking is expected to involve a 

more detailed regulatory evaluation 

with respect to the costs and benefits of 

its proposals, and it is also likely to be 

a significant rulemaking. 

This NPRM focuses on prohibiting 

unnecessary practices that have 

discriminatory effects, such as extra 

charges and denials of transportation. 

Observing such prohibitions will not 

have significant cost impacts on PVOs. 

According to ANPRM comments, many 

PVOs already provide boarding 

assistance and other services to 

passengers with disabilities, so it is 

reasonable to assume that the passenger 

assistance provisions of the NPRM 

would not have large incremental costs. 

We seek comment and data on these 

matters, however. As a general matter, 

we seek comment on whether any fuller 

regulatory evaluation or analysis 

concerning the cost of the proposed 

provisions or other matters should be 

developed in connection with the final 

rule. 

In the passenger vessel context as in 

other areas, the purpose of the ADA is 

to ensure nondiscrimination on the 

basis of disability and accessibility of 

travel on vessels for people with 

disabilities. Consequently, the most 

important benefits of this proposed rule 

are the largely non-quantifiable benefits 

of increased access and mobility for 

passengers with disabilities. These 

proposals would eliminate most policies 

of PVOs that would prevent or inhibit 

travel by persons with disabilities. The 

benefits that would accrue from removal 

of these barriers cannot be quantified, 

but could well include increased 

employment, business, recreational, and 

educational opportunities for travelers 

with disabilities, and quality of life 

enhancements associated with travel 

opportunities both within the U.S. and 

to foreign points. 

Many persons with mobility 

impairments would be able to use 

passenger vessel services for the first 

time, and take advantage of an 

expanded range of travel opportunities. 

Even persons with disabilities who did 

not immediately choose to use a 

passenger vessel would know that 

barriers to such travel had been 

removed, and there is a psychological 

benefit to knowing one can travel if one 

wishes (what economists sometimes 

refer to as the ‘‘option value’’ of a 

regulatory provision). 

Other beneficiaries of the proposed 

rule would include the travel 

companions, family, and friends of 

passengers with disabilities, since 

persons with disabilities would have 

greater and more varied travel 

opportunities. In addition, to the extent 

that changes in PVO practice make use 

of vessels easier for everyone, there 

would be indirect benefits for the 

general traveling public. 

Because making passenger vessel 

transportation and services more readily 

available to passengers with disabilities 

and others traveling with them is likely 

to increase overall usage of vessels to 

some degree, it is likely that there will 

be some economic benefits to PVOs 

from compliance with the proposed 

rule. The Department seeks data that 

would assist in quantifying these 

potential benefits. 


jlentini on PROD1PC65 with PROPOSAL
Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules 2843 

For the reasons stated above, the 

Department believes that compliance 

with the provisions proposed in this 

NPRM would have very low costs. That 

is, avoiding discriminatory policies and 

providing improved information to 

passengers with disabilities would not 

impose substantial costs on regulated 

parties generally. Therefore, the 

Department certifies that this NPRM, if 

adopted, would not have substantial 

economic effects on a significant 

number of small entities. 

Nevertheless, the Department seeks 

comment on small entity-related issues, 

including whether there should be 

provisions that mitigate any burdens on 

small entities resulting from the 

proposed requirements. This 

information would include data on 

numbers of companies and vessels 

(domestic and foreign-flag) that would 

be affected. In addition, the Department 

seeks comment on what standard 

should be used for analyzing small 

entity impacts with respect to passenger 

vessel transportation. Small Business 

Administration (SBA) size standards in 

13 CFR Part 121 establish a 500- 

employee standard (i.e., any entity with 

fewer employees would be regarded as 

a small business for SBA purposes). Is 

there any reason for using a different 

standard for purposes of this rulemaking 

(e.g., a PVO which does not operate any 

boats above a certain size)? 

While there are some state and local 

entities (i.e. operators of state or 

municipal ferry systems) that would be 

covered by this proposed rule, most 

regulated parties would be private 

sector entities. As noted above, we do 

not expect significant economic impacts 

on any regulated parties from the 

proposed rule. Consequently, we have 

concluded that there are not sufficient 

Federalism impacts to warrant the 

preparation of a Federalism assessment. 

As a civil rights rule, this proposal is 

not subject to review with respect to 

unfunded mandates. 

Issued this 5th day of January 2007, at 

Washington, DC. 

Mary E. Peters, 

Secretary of Transportation. 

List of Subjects for 49 CFR Part 39 

Individuals with disabilities, Mass 

transportation, Passenger vessels. 

For the reasons set forth in the 

preamble, the Department of 

Transportation proposes to add a new 

49 CFR Part 39, to read as follows: 

PART 39—TRANSPORTATION FOR 

INDIVIDUALS WITH DISABILITIES: 

PASSENGER VESSELS 

Subpart A—General 

Sec. 

39.1 What is the purpose of this part? 

39.3 What do the terms in this rule mean? 

39.5 To whom do the provisions of this part 

apply? 

39.7 What other authorities concerning 

nondiscrimination on the basis of 

disability apply to owners and operators 

of passenger vessels? 

39.9 What may the owner or operator of a 

foreign-flag vessel do if it believes a 

provision of a foreign nation’s law 

prohibits compliance with a provision of 

this part? 

39.11 How may a PVO obtain approval to 

use an equivalent facilitation? 

39.13 When must PVOs comply with the 

provisions of this part? 

Subpart B—Nondiscrimination and Access 

to Services 

39.21 What is the general 

nondiscrimination requirement of this 

part? 

39.23 What are the requirements 

concerning contractors to owners and 

operators of passenger vessels? 

39.25 May PVOs limit the number of 

passengers with a disability on a 

passenger vessel? 

39.27 May PVOs refuse to provide 

transportation or use of a vessel on the 

basis of disability? 

39.29 May PVOs limit access to 

transportation or use of a vessel on the 

basis that a passenger has a 

communicable disease or other medical 

condition? 

39.31 May PVOs require a passenger with a 

disability to provide a medical 

certificate? 

39.33 May PVOs require a passenger with a 

disability to provide advance notice that 

he or she is traveling on or using a 

passenger vessel? 

39.35 May PVOs require a passenger with a 

disability to provide advance notice in 

order to obtain certain specific services 

in connection with transportation on or 

use of a passenger vessel? 

39.37 May PVOs require a passenger with a 

disability to travel with a personal or 

safety assistant? 

39.39 May PVOs impose special charges on 

passengers with a disability for 

providing services and accommodations 

required by this rule? 

39.41 May PVOs impose other restrictions 

on passengers with a disability that they 

do not impose on other passengers? 

39.43 May PVOs require passengers with a 

disability to sign waivers or releases? 

Subpart C—Information for Passengers 

39.51 What information must PVOs 

provide to passengers with a disability? 

39.53 Must information and reservation 

services of PVOs be accessible to 

individuals with hearing or vision 

impairments? 

39.55 Must PVOs make copies of this rule 

available to passengers? 

39.57 What is the general requirement for 

PVOs’ communications with passengers? 

Subpart D—Accessibility of Landside 

Facilities 

39.61 What requirements must PVOs meet 

concerning the accessibility of terminals 

and other landside facilities? 

39.63 What accommodations are required at 

terminals and other landside facilities for 

individuals with hearing or vision 

impairments? 

Subpart E—Accessibility of Vessels 

[Reserved] 

Subpart F—Assistance and Services to 

Passengers With Disabilities 

39.81 What assistance must PVOs provide 

to passengers with a disability in getting 

to and from a passenger vessel? 

39.83 What are PVOs’ obligations for 

assisting passengers with a disability in 

getting on and off a passenger vessel? 

39.85 What services must PVOs provide to 

passengers with a disability on board a 

passenger vessel? 

39.87 What services are PVOs not required 

to provide to passengers with a disability 

on board a passenger vessel? 

39.89 What requirements apply to on-board 

safety briefings, information, and drills? 

39.91 Must PVOs permit passengers with a 

disability to travel with service animals? 

39.93 What mobility aids and other 

assistive devices may passengers with a 

disability bring onto a passenger vessel? 

39.95 May PVOs limit their liability for the 

loss of or damage to mobility aids and 

other assistive devices? 

Subpart G—Complaints and Enforcement 

Procedures 

39.101 What are the requirements for 

providing Complaints Resolution 

Officials? 

39.103 What actions do CROs take on 

complaints? 

39.105 How must PVOs respond to written 

complaints? 

39.107 Where may passengers file 

complaints? 

39.109 What enforcement action may be 

taken under this part? 

Authority: 42 U.S.C. 12101 through 12213; 

49 U.S.C. 322. 

Subpart A—General 

§ 39.1 What is the purpose of this part? 

The purpose of this part is to carry out 

the Americans with Disabilities Act 

with respect to passenger vessels. This 

rule prohibits owners and operators of 

passenger vessels, including U.S. and 

foreign-flag vessels, from discriminating 

against passengers on the basis of 

disability; requires vessels and related 

facilities to be accessible; and requires 

owners and operators of vessels to take 

steps to accommodate passengers with a 

disability. 


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§ 39.3 What do the terms in this rule 

mean? 

In this regulation, the terms listed in 

this section have the following 

meanings: 

‘‘Accessible’’ means, with respect to 

vessels and facilities, complying with 

the applicable accessibility 

requirements of this part. 

‘‘Alteration’’ means a change to a 

passenger vessel or facility that affects 

or could affect the usability of the 

vessel, facility, or a portion thereof. 

Alterations include, but are not limited 

to, remodeling, renovation, 

rehabilitation, reconstruction, historic 

restoration, changes or rearrangement in 

structural parts or elements, and 

changes or rearrangement in the plan 

configuration of walls, bulkheads, and 

partitions. Normal maintenance, 

reroofing, painting or wallpapering, 

asbestos removal, or changes to 

propulsion, mechanical or electrical 

systems are not alterations unless they 

affect the usability of the passenger 

vessel or facility. 

‘‘The Act’’ or ‘‘ADA’’ means the 

Americans with Disabilities Act of 1990 

(Pub. L. 101–336, 104 Stat. 327, 42 

U.S.C. 12101–12213 and 47 U.S.C. 225 

and 611), as it may be amended from 

time to time. 

‘‘Assistive device’’ means any piece of 

equipment that assists a passenger with 

a disability to cope with the effects of 

his or her disability. Such devices are 

intended to assist a passenger with a 

disability to hear, see, communicate, 

maneuver, or perform other functions of 

daily life, and may include medical 

devices and medications. 

‘‘Auxiliary aids and services’’

includes: 

(1) Qualified interpreters, notetakers, 

transcription services, written materials, 

telephone headset amplifiers, assistive 

listening devices, assistive listening 

systems, telephones compatible with 

hearing aids, closed caption decoders, 

closed and open captioning, text 

telephones (also known as telephone 

devices for the deaf, or TDDs), videotext 

displays, or other effective methods of 

making aurally delivered materials 

available to individuals with hearing 

impairments; 

(2) Qualified readers, taped texts, 

audio recordings, Braille materials, large 

print materials, or other effective 

methods of making visually delivered 

materials available to individuals with 

visual impairments; 

(3) Acquisition or modification of 

equipment or devices; or 

(4) Other similar services or actions. 

‘‘Coast Guard’’ means the United 

States Coast Guard, an agency of the 

Department of Homeland Security. 

‘‘Commerce’’ means travel, trade, 

transportation, or communication 

among the several states, between any 

foreign country or any territory and 

possession and any state, or between 

points in the same state but through 

another state or foreign country. 

‘‘Designated public transportation’’

means transportation provided by a 

public entity by passenger vessel that 

provides the general public with general 

or special service, including charter 

service, on a regular and continuing 

basis. 

‘‘Department’’ or ‘‘DOT’’ means the 

United States Department of 

Transportation, including the Office of 

the Secretary of Transportation, the 

Federal Transit Administration, the 

Federal Highway Administration, and 

the Maritime Administration. 

‘‘Direct threat’’ means a significant 

risk to the health or safety of others that 

cannot be eliminated by a modification 

of policies, practices, or procedures, or 

by the provision of auxiliary aids or 

services. 

‘‘Disability’’ means, with respect to an 

individual, a physical or mental 

impairment that substantially limits one 

or more of the major life activities of 

such individual; a record of such an 

impairment; or being regarded as having 

such an impairment. 

(1) (The phrase ‘‘physical or mental 

impairment’’ means—

(i) Any physiological disorder or 

condition, cosmetic disfigurement, or 

anatomical loss affecting one or more of 

the following body systems: 

neurological, musculoskeletal, special 

sense organs, respiratory including 

speech organs, cardiovascular, 

reproductive, digestive, genito-urinary, 

hemic and lymphatic, skin, and 

endocrine; 

(ii) Any mental or psychological 

disorder, such as mental retardation, 

organic brain syndrome, emotional or 

mental illness, and specific learning 

disabilities. 

(iii) The term ‘‘physical or mental 

impairment’’ includes, but is not limited 

to, such contagious or noncontagious 

diseases and conditions as orthopedic, 

visual, speech, and hearing 

impairments; cerebral palsy, epilepsy, 

muscular dystrophy, multiple sclerosis, 

cancer, heart disease, diabetes, mental 

retardation, emotional illness, specific 

learning disabilities, HIV disease, 

tuberculosis, drug addiction and 

alcoholism. 

(iv) The phrase ‘‘physical or mental 

impairment’’ does not include 

homosexuality or bisexuality. 

(2) The phrase ‘‘major life activities’’

means functions such as caring for one’s 

self, performing manual tasks, walking, 

seeing, hearing, speaking, breathing, 

learning, and working; 

(3) The phrase ‘‘has a record of such 

an impairment’’ means has a history of, 

or has been misclassified as having, a 

mental or physical impairment that 

substantially limits one or more major 

life activities. 

(4) The phrase ‘‘is regarded as having 

such an impairment’’ means—

(i) Has a physical or mental 

impairment that does not substantially 

limit major life activities, but which is 

treated by a public or private entity as 

constituting such a limitation; 

(ii) Has a physical or mental 

impairment that substantially limits a 

major life activity only as a result of the 

attitudes of others toward such an 

impairment; or 

(iii) Has none of the impairments 

defined in paragraph (1) of this 

definition but is treated by a public or 

private entity as having such an 

impairment. 

(5) The term ‘‘disability’’ does not 

include—

(i) Transvestism, transsexualism, 

pedophilia, exhibitionism, voyeurism, 

gender identity disorders not resulting 

from physical impairments, or other 

sexual behavior disorders; 

(ii) Compulsive gambling, 

kleptomania, or pyromania; 

(iii) Psychoactive substance abuse 

disorders resulting from the current 

illegal use of drugs. 

‘‘Existing vessel’’ means a passenger 

vessel in existence at the time of the 

effective date of Subpart E of this part. 

‘‘Facility’’ means terminals and any of 

landside facilities related to the use of 

passenger vessels in the United States 

(including its territories, possessions, 

and commonwealths) that a vessel 

owner or operator owns, leases, or 

controls (e.g., terminals, boarding 

ramps, walks, parking lots, ticketing 

areas, baggage drop-off and retrieval 

sites) normally used by passengers or 

other members of the public. 

‘‘Historic vessel’’ means a craft, ship, 

or boat of historic significance that is 

made available to the public to tour. 

Such vessels are usually permanently 

moored to a facility, but may take the 

public on excursions in some cases. 

‘‘Individual with a disability’’ means 

a person who has a disability, but does 

not include an individual who is 

currently engaging in the illegal use of 

drugs, when a public or private entity 

acts on the basis of such use. 

‘‘Operates’’ includes, with respect to 

passenger vessel service, the provision 

of transportation or other service by a 

public or private entity itself or by a 

person under a contractual or other 


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arrangement or relationship with the 

entity. 

‘‘Passenger for hire’’ means a 

passenger for whom consideration is 

contributed as a condition of carriage on 

the vessel, whether directly or indirectly 

flowing to the owner, charterer, 

operator, agent, or any other person 

having an interest in the vessel. 

‘‘Passenger vessel’’ means any ship, 

boat, or other craft used as a conveyance 

on water, regardless of its means of 

propulsion, which accepts passengers 

for hire in connection with other 

revenue-generating activities. The term 

includes, but is not limited to, cruise 

ships, (whether U.S.- or foreign-flag); 

ferries; dinner, excursion, or sightseeing 

boats; boats chartered for fishing or 

other private recreational activities; and 

floating facilities used for gambling 

(whether tethered to a dock or mobile). 

The term does not include boats or other 

craft rented or leased to and operated 

solely by consumers. 

‘‘Passenger vessel owner or operator 

(PVO)’’ means any public or private 

entity that owns or operates a passenger 

vessel. When the party that owns a 

passenger vessel is a different party 

from the party that operates the vessel, 

both are responsible for complying with 

the requirements of this part. The term 

includes entities that are primarily 

engaged in the business of transporting 

people (e.g., a cruise ship or excursion 

vessel) and entities that are not 

primarily engaged in transporting 

people (e.g., an amusement park 

operator which operates a passenger 

vessel to transport visitors from a 

parking area to the main part of the park 

or a hotel located on an island that 

operates a passenger vessel to shuttle 

guests from the mainland to the island). 

‘‘Private entity’’ means any entity 

other than a public entity. 

‘‘Public entity’’ means: 

(1) Any state or local government; 

(2) Any department, agency, special 

purpose district, or other 

instrumentality of one or more state or 

local governments (including an entity 

established to provide public ferry 

service). 

‘‘Purchase or lease,’’ with respect to 

passenger vessels, means the time at 

which an entity is legally obligated to 

obtain a vessel, such as the time of 

contract execution. 

‘‘Qualified individual with a 

disability’’ means an individual with a 

disability—

(1) Who, as a passenger (referred to as 

a ‘‘passenger with a disability’’), 

(i) With respect to obtaining a ticket 

for transportation on passenger vessel 

offers, or makes a good faith attempt to 

offer, to purchase or otherwise validly to 

obtain such a ticket; 

(ii) With respect to obtaining 

transportation on or use of a passenger 

vessel, or other services or 

accommodations required by this part, 

(A) Buys or otherwise validly obtains, 

or makes a good faith effort to obtain, a 

ticket for transportation on a passenger 

vessel and presents himself or herself at 

the vessel for the purpose of traveling 

on the voyage to which the ticket 

pertains; or 

(B) With respect to use of a passenger 

vessel for which members of the public 

are not required to obtain tickets, 

presents himself or herself at the vessel 

for the purpose of using the vessel for 

the purpose for which it is made 

available to the public; and 

(C) Meets reasonable, 

nondiscriminatory requirements 

applicable to all passengers; or 

(2) Who, with respect to 

accompanying or meeting a traveler, 

using ground transportation, using 

facilities, or obtaining information about 

schedules, fares, reservations, or 

policies, takes those actions necessary to 

use facilities or services offered by the 

PVO to the general public, with 

reasonable accommodations, as needed, 

provided by the PVO. 

‘‘Secretary’’ means the Secretary of 

Transportation or his/her designee. 

‘‘Section 504’’ means section 504 of 

the Rehabilitation Act of 1973 (Pub. L. 

93–112, 87 Stat. 394, 29 U.S.C. 794), as 

amended. 

‘‘Service animal’’ means any guide 

dog, signal dog, or other animal 

individually trained to work or perform 

tasks for an individual with a disability, 

including, but not limited to, guiding 

individuals with impaired vision, 

alerting individuals with impaired 

hearing to intruders or sounds, alerting 

persons with seizure disorders to the 

onset of a seizure, providing minimal 

protection or rescue work, pulling a 

wheelchair, or fetching dropped items. 

‘‘Solicitation’’ means the closing date 

for the submission of bids or offers in a 

procurement. 

‘‘Specified public transportation’’

means transportation by passenger 

vessel provided by a private entity to 

the general public, with general or 

special service (including charter 

service) on a regular and continuing 

basis. 

‘‘Terminal’’ means, with respect to 

passenger vessel transportation, the 

portion of a property located 

appurtenant to a dock, entry ramp, or 

other means of boarding a passenger 

vessel, including areas of interface with 

land transportation, passenger shelters, 

designated waiting areas, restrooms, 

concession areas, ticketing areas, and 

baggage drop-off and retrieval sites,to 

the extent that the PVO owns or leases 

the facility or exercises control over the 

selection, design, construction, or 

alteration of the property. 

‘‘United States’’ or ‘‘U.S.’’ means the 

United States of America, including its 

territories, commonwealths, and 

possessions. 

‘‘Wheelchair’’ means a mobility aid 

belonging to any class of wheeled 

devices, usable indoors, designed or 

adapted for and used by individuals 

with disabilities, whether operated 

manually or powered. A ‘‘common 

wheelchair’’ is such a device which 

does not exceed 30 inches in width and 

48 inches in length measured two 

inches above the ground, and does not 

weigh more than 600 pounds when 

occupied. 

‘‘You’’ means the owner or operator of 

a passenger vessel, unless the context 

requires a different meaning. 

§ 39.5 To whom do the provisions of this 

part apply? 

(a) Except as provided in paragraph 

(b) or (c) of this section, this part applies 

to you if you are the owner or operator 

of any passenger vessel, and you are: 

(1) A public entity that provides 

designated public transportation; 

(2) A private entity primarily engaged 

in the business of transporting people 

whose operations affect commerce that 

provides specified public 

transportation; or 

(3) A private entity that owns, 

operates, or leases a place of public 

accommodation, and you are not 

primarily engaged in the business of 

transporting people. 

(b) If you are the PVO of a foreign-flag 

passenger vessel, this part applies to 

you only if your vessel picks up 

passengers at a port in the United States, 

its territories, possessions, or 

commonwealths. 

(c) [Reserved] 

§ 39.7 What other authorities concerning 

nondiscrimination on the basis of disability 

apply to owners and operators of 

passenger vessels? 

(a) If you receive Federal financial 

assistance from the Department of 

Transportation, compliance with 

applicable requirements of this part is a 

condition of compliance with section 

504 of the Rehabilitation Act of 1973 

and of receiving financial assistance. 

(b) You are also subject to ADA 

regulations of the Department of Justice 

(28 CFR Parts 35 or 36, as applicable). 

The provisions of this part shall be 

interpreted in a manner that will make 

them consistent with applicable 


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Department of Justice regulations. In 

any case of apparent inconsistency, the 

provisions of this part shall prevail. 

§ 39.9 What may the owner or operator of 

a foreign-flag vessel do if it believes a 

provision of a foreign nation’s law prohibits 

compliance with a provision of this part? 

(a) If you are the PVO of a foreign-flag 

vessel, and you believe that a binding 

legal requirement of a foreign nation 

precludes you from complying with a 

provision of this part, you may request 

a waiver of the provision of this part. 

(b) You must send such a waiver 

request to the Department. 

(c) Your waiver request must include 

the following elements: 

(1) A copy, in the English language, of 

the foreign law involved; 

(2) A description of how the binding 

legal requirement of a foreign nation 

applies and how it precludes 

compliance with a provision of this 

part; 

(3) A description of the alternative 

means you will use, if the waiver is 

granted, to effectively achieve the 

objective of the provision of this part 

subject to the waiver or, if applicable, a 

justification of why it would be 

impossible to achieve this objective in 

any way. 

(d) If you submit such a waiver 

request in the 90-day period between 

the publication of this rule in the 

Federal Register and the effective date 

of this part, you may continue to apply 

the foreign legal requirement pending 

the Department’s response to your 

waiver request. 

(e) The Department may grant the 

waiver request if it determines that the 

binding legal requirement of a foreign 

nation applies, that it does preclude 

compliance with a provision of this 

part, and that the PVO has provided an 

effective alternative means of achieving 

the objective of the provision of this part 

subject to the waiver or clear and 

convincing evidence that it would be 

impossible to achieve this objective in 

any way. 

§ 39.11 How may a PVO obtain approval to 

use an equivalent facilitation? 

(a) Nothing in this part prevents the 

use of designs, products, or technologies 

as alternatives to those prescribed in 

this part, or alternative ways of 

providing accommodations and services 

to passengers with disabilities, provided 

they result in substantially equivalent or 

greater accessibility and usability. 

(b) If, as a PVO or the manufacturer 

of a product or accessibility feature to be 

used in a passenger vessel, you wish to 

provide an equivalent facilitation in lieu 

of complying with a provision of this 

part, you may request approval to do so 

from the Department. 

(c) You must use the following 

process to request approval of an 

equivalent facilitation: 

(1) You must provide the following 

information with your request: 

(i) Entity name, address, contact 

person, and telephone; 

(ii) Specific provision(s) of this part or 

49 CFR Part 38 concerning which the 

entity is seeking a determination of 

equivalent facilitation. 

(iii) Alternative method of 

compliance, with demonstration of how 

the alternative meets or exceeds the 

level of accessibility or usability of the 

vessel provided this part. 

(2) Before you submit your request for 

equivalent facilitation, you must 

provide opportunities for public 

participation: 

(i) You must consult in person, in 

writing, or by other appropriate means, 

with individuals with disabilities and 

groups representing them, as well as 

conduct outreach to passengers, 

particularly those with disabilities. This 

consultation must take place at all 

stages of the development of the request 

for equivalent facilitation. All 

documents and other information 

concerning the request shall be 

available, upon request, to the 

Department and members of the public. 

(ii) You must make your proposed 

request available for public review and 

comment before the request is made 

final or transmitted to DOT. In making 

the request available for public review, 

you must ensure that it is available, 

upon request, in accessible formats. 

(3) A determination whether to 

approve or disapprove your request, in 

whole or in part, will be made by the 

Department on a case-by-case basis. 

Determinations are made by the General 

Counsel, with the concurrence of the 

Assistant Secretary for Transportation 

Policy. 

(i) An approval may be conditioned 

on specified actions that you agree to 

take. 

(ii) The Department normally 

considers approving an equivalent 

facilitation only with respect to the 

specific situation concerning which the 

request is made. However, the 

Department may approve a request for 

equivalent facilitation with respect to a 

product or accessibility feature that the 

Department determines can provide an 

equivalent facilitation in a class of 

situations. 

(4)(i) You must not cite an approval 

of a request for equivalent facilitation as 

indicating that a product or method 

constitutes equivalent facilitation in 

situations, or classes of situations, other 

than those to which the determination 

specifically pertains. 

(ii) You must not claim that a 

determination of equivalent facilitation 

indicates approval or endorsement of 

any product or method by the Federal 

government or the Department of 

Transportation. 

§ 39.13 When must PVOs comply with the 

provisions of this part? 

You are required to comply with the 

requirements of this part beginning 

[insert effective date of the final rule], 

except as otherwise provided in 

individual sections of this part. 

Subpart B—Nondiscrimination and 

Access to Services 

§ 39.21 What is the general 

nondiscrimination requirement of this part? 

(a) As a PVO, you must not do any of 

the following things, either directly or 

through a contractual, licensing, or 

other arrangement: 

(1) You must not discriminate against 

any qualified individual with a 

disability, by reason of such disability, 

with respect to the individual’s use of 

the vessel; 

(2) You must not require a qualified 

individual with a disability to accept 

special services that the individual does 

not request; 

(3) You must not exclude a qualified 

individual with a disability from or 

deny the person the benefit of any 

vessel transportation or related services 

that are available to other persons. This 

is true even if there are separate or 

different services available for 

individuals with a disability, except 

when specifically permitted by another 

section of this part; and 

(4) You must not take any action 

against an individual (e.g., refusing to 

provide transportation) because the 

individual asserts, on his or her own 

behalf or through or on behalf of others, 

rights protected by this part or the ADA. 

(b) You must make reasonable 

modifications in policies, practices, or 

procedures when the modifications are 

necessary to avoid discrimination on the 

basis of disability or to provide program 

accessibility to your services, unless you 

can demonstrate that doing so would 

fundamentally alter the nature of the 

service, program, or activity, or would 

result in undue administrative or 

financial burdens. 

§ 39.23 What are the requirements 

concerning contractors to owners and 

operators of passenger vessels? 

(a) If, as a PVO, you enter into a 

contractual or other arrangement or 

relationship with any other party to 

provide services to or affecting 


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passengers, you must ensure that the 

other party meets the requirements of 

this part that would apply to you if you 

provided the service yourself. 

(b) As a PVO, you must include an 

assurance of compliance with this part 

in your contracts with any contractors 

who provide to the public services that 

are subject to the requirements of this 

part. Noncompliance with this 

assurance is a material breach of the 

contract on the contractor’s part. 

(1) This assurance must commit the 

contractor to compliance with all 

applicable provisions of this part in 

activities performed on behalf of the 

PVO. 

(2) The assurance must also commit 

the contractor to implementing 

directives issued by your Complaints 

Resolution Officials (CROs) under 

§ 39.103. 

(c) As a PVO, you must also include 

such an assurance of compliance in 

your contracts or agreements of 

appointment with U.S. travel agents. 

You are not required to include such an 

assurance in contracts with foreign 

travel agents. 

(d) You remain responsible for your 

contractors’ compliance with this part 

and with the assurances in your 

contracts with them. 

(e) It is not a defense to an 

enforcement action under this part that 

your noncompliance resulted from 

action or inaction by a contractor. 

§ 39.25 May PVOs limit the number of 

passengers with a disability on a passenger 

vessel? 

As a PVO, you must not limit the 

number of passengers with a disability 

on your vessel. 

§ 39.27 May PVOs refuse to provide 

transportation or use of a vessel on the 

basis of disability? 

(a) As a PVO, you must not refuse to 

provide transportation or use of a vessel 

to a passenger with a disability on the 

basis of his or her disability, except as 

specifically permitted by this part. 

(b) You must not refuse to provide 

transportation or use of a vessel to a 

passenger with a disability because the 

person’s disability results in appearance 

or involuntary behavior that may offend, 

annoy, or inconvenience crewmembers 

or other passengers. 

(c) You may refuse to provide 

transportation or use of a vessel to any 

passenger on the basis of safety only as 

provided in this paragraph: 

(1) You can determine that there is a 

disability-related safety basis for 

refusing to provide transportation or use 

of a vessel to a passenger with a 

disability if you are able to demonstrate 

that the passenger poses a direct threat 

(see definition in § 39.3). In determining 

whether an individual poses a direct 

threat, you must make an individualized 

assessment, based on reasonable 

judgment that relies on current medical 

knowledge or on the best available 

objective evidence, to ascertain: 

(i) the nature, duration, and severity 

of the risk; 

(ii) the probability that the potential 

harm to the health and safety of others 

will actually occur; and 

(iii) whether reasonable modifications 

of policies, practices, or procedures will 

mitigate the risk. 

(2) If you determine that the passenger 

does pose a direct threat, you must 

select the least restrictive response from 

the point of view of the passenger, 

consistent with protecting the health 

and safety of others. For example, you 

must not refuse transportation or use of 

the vessel to the passenger if you can 

protect the health and safety of others 

by means short of a refusal (e.g., by 

implementing measures recommended 

by a physician in connection with a 

medical certificate under § 39.31 to 

prevent the transmission of a disease). 

(d) If you refuse to provide 

transportation or use of a vessel to a 

passenger on a basis relating to the 

individual’s disability, you must 

provide to the person a written 

statement of the reason for the refusal. 

This statement must include the specific 

basis for your opinion that the refusal 

meets the standards of paragraph (c) of 

this section or is otherwise specifically 

permitted by this part. You must 

provide this written statement to the 

person within 10 calendar days of the 

refusal of transportation or use of the 

vessel. 

§ 39.29 May PVOs limit access to 

transportation or use of a vessel on the 

basis that a passenger has a communicable 

disease or other medical condition? 

(a) You must not do any of the 

following things on the basis that a 

passenger has a communicable disease 

or infection, unless you determine that 

the passenger’s condition poses a direct 

threat: 

(1) Refuse to provide transportation or 

use of a vessel to the passenger; 

(2) Delay the passenger’s 

transportation or use of the vessel (e.g., 

require the passenger to take a later 

trip); 

(3) Impose on the passenger any 

condition, restriction, or requirement 

not imposed on other passengers; or 

(4) Require the passenger to provide a 

medical certificate. 

(b) In assessing whether the 

passenger’s condition poses a direct 

threat, you must consider the following 

factors: 

(1) Whether U.S. or international 

public health authorities (e.g., the 

Centers for Disease Control, Public 

Health Service, World Health 

Organization) have determined that 

persons with a particular condition 

should not be permitted to travel; 

(2) Whether an individual has a 

condition that is both readily 

transmissible by casual contact in the 

context of traveling on or using a 

passenger vessel and has serious health 

consequences; 

(3) Whether applying the provisions 

of § 39.27 (c)(1) through (2) would 

otherwise lead to the conclusion that 

the person poses a direct threat to the 

health or safety of others. 

(c) If your action under this section 

results in the postponement of a 

passenger’s transportation or use of the 

vessel, you must permit the passenger to 

travel or use the vessel at a later time 

(up to one year from the date of the 

postponed trip or use of the vessel) at 

the cost that would have applied to the 

passenger’s originally scheduled trip or 

use of the vessel without penalty or, at 

the passenger’s discretion, provide a 

refund for any unused transportation or 

use of the vessel. 

(d) If you take any action under this 

section that restricts a passenger’s 

transportation or use of the vessel, you 

must, on the passenger’s request, 

provide a written explanation within 10 

days of the request. 

§ 39.31 May PVOs require a passenger 

with a disability to provide a medical 

certificate? 

(a) Except as provided in this section, 

you must not require a passenger with 

a disability to have a medical certificate 

as a condition for being provided 

transportation. 

(b)(1) You may require a medical 

certificate for a passenger with a 

disability—

(i) Who needs medical oxygen during 

his or her transportation or use of the 

vessel; or 

(ii) Whose medical condition is such 

that there is reasonable doubt that the 

individual can complete the 

transportation or use of the vessel 

safely, without requiring extraordinary 

medical assistance. 

(2) For purposes of this paragraph, a 

medical certificate is a written statement 

from the passenger’s physician saying 

that the passenger is capable of 

completing the transportation or use of 

the vessel safely, without requiring 

extraordinary medical assistance. 

(c)(1) You may also require a medical 

certificate for a passenger if he or she 


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has a communicable disease or 

condition that poses a direct threat to 

the health or safety of others. 

(2) For purposes of this paragraph, a 

medical certificate is a written statement 

from the passenger’s physician saying 

that the disease or infection would not, 

under the present conditions in the 

particular passenger’s case, be 

communicable to other persons during 

the normal course of the passenger’s 

transportation or use of the vessel. The 

medical certificate must state any 

conditions or precautions that would 

have to be observed to prevent the 

transmission of the disease or infection 

to other persons in the normal course of 

the passenger’s transportation on or use 

of the vessel. It must be dated within 10 

days of the date of the trip or use of the 

vessel for which it is presented. 

§ 39.33 May PVOs require a passenger 

with a disability to provide advance notice 

that he or she is traveling on or using a 

passenger vessel? 

As a PVO, you must not require a 

passenger with a disability to provide 

advance notice of the fact that he or she 

is traveling on or using a passenger 

vessel. 

§ 39.35 May PVOs require a passenger 

with a disability to provide advance notice 

in order to obtain certain specific services 

in connection with transportation on or use 

of a passenger vessel? 

(a) Except as provided in paragraph 

(b) of this section, as a PVO you must 

not require a passenger with a disability 

to provide advance notice in order to 

obtain services or accommodations 

required by this part. 

(b) (1) If 10 or more passengers with 

a disability seek to travel as a group, you 

may require 72 hours advance notice for 

the group’s travel. 

(2) If a passenger needs an accessible 

overnight cabin, you may require 72 

hours advance notice for the 

accommodation. In order to ensure that 

such accommodations remain available 

for passengers with a disability, you 

must inform other passengers who 

reserve accessible cabins that, if a 

person with a disability requests the 

accommodation by 72 hours before the 

vessel’s scheduled departure, you will 

move the other person to a different 

cabin. 

(c) If the passenger with a disability 

provides the advance notice you 

require, consistent with this section, for 

a service, then you must provide the 

requested service or accommodation. 

(d) Your reservation and other 

administrative systems must ensure that 

when passengers provide the advance 

notice that you require, consistent with 

this section, for services and 

accommodations, the notice is 

communicated, clearly and on time, to 

the people responsible for providing the 

requested service or accommodation. 

(e) If a passenger does not meet 

advance notice or check-in requirements 

you establish consistent with this 

section, you must still provide the 

service or accommodation if you can do 

so by making reasonable efforts, without 

delaying the trip. 

§ 39.37 May PVOs require a passenger 

with a disability to travel with a personal or 

safety assistant? 

(a) Except as provided in paragraph 

(b) of this section, you must not require 

that a passenger with a disability travel 

with another person as a condition of 

being provided transportation on or use 

of a passenger vessel. 

(b) You may require a passenger with 

a disability in one of the following 

categories to travel with a safety 

assistant as a condition of being 

provided transportation or use of a 

passenger vessel, if you determine that 

a safety assistant is essential for safety: 

(1) A passenger who, because of a 

mental disability, is unable to 

comprehend or respond appropriately to 

safety instructions from vessel 

personnel. 

(2) A passenger with a mobility 

impairment so severe that the person is 

unable to assist in his or her own 

evacuation from the vessel in an 

emergency; 

(3) A passenger who has both severe 

hearing and severe vision impairments, 

if the person cannot establish some 

means of communication with vessel 

personnel for purposes of safety 

information and instructions. 

(c) You may require a passenger with 

a disability to have a personal assistant 

if the passenger is unable to perform 

personal tasks (e.g., eating, dressing, 

toileting) without such an assistant, and 

the duration of the transportation or use 

of the vessel is long enough that the 

passenger must perform one or more of 

these tasks while on the vessel. 

(d) If you determine that a person 

meeting the criteria of paragraph (b) or 

(c) of this section must travel with a 

safety or personal assistant, contrary to 

the individual’s self-assessment that he 

or she is capable of traveling 

independently, you must not charge for 

the transportation of the safety assistant. 

You may also designate a member of 

your staff or a passenger volunteer to 

perform the personal or safety assistant 

role in such a case, rather than carrying 

at no charge a person designated by the 

passenger. In a case in which a 

passenger voluntarily chooses to travel 

with a personal assistant or a safety 

assistant that you do not require, you 

may charge for the transportation of that 

person. 

§ 39.39 May PVOs impose special charges 

on passengers with a disability for 

providing services and accommodations 

required by this rule? 

(a) As a PVO, you must not charge 

higher fares, surcharges, or other fees to 

passengers with a disability that are not 

imposed on other passengers for 

transportation or use of the vessel. 

(b) If the accommodations on a vessel 

that are accessible to passengers with a 

disability are in a type or class of service 

or part of a vessel that are more 

expensive than the type or class of 

service or past of[A3] a vessel that the 

passenger requests, you must provide 

the accessible accommodation at the 

price of the type or class of service or 

facility that the passenger requests. 

(c) You must not impose special or 

extra charges for providing facilities, 

equipment, accommodations, or 

services that this rule requires to be 

provided to passengers with a disability. 

§ 39.41 May PVOs impose other 

restrictions on passengers with a disability 

that they do not impose on other 

passengers? 

(a) As a PVO, you must not subject 

passengers with a disability to 

restrictions that do not apply to other 

passengers, except as otherwise 

explicitly permitted in this part. 

(b) Restrictions you must not impose 

on passengers with a disability include, 

but are not limited to, the following: 

(1) Restricting passengers’ movement 

within the vessel or a terminal; 

(2) Requiring passengers to remain in 

a holding area or other location in order 

to receive transportation, services, or 

accommodations; 

(3) Requiring passengers to wear 

badges or other special identification; or 

(4) Requiring ambulatory passengers, 

including but not limited to blind or 

visually impaired passengers, to use a 

wheelchair in order to receive assistance 

required by this part or otherwise 

offered to the passenger. 

§ 39.43 May PVOs require passengers with 

a disability to sign waivers or releases? 

(a) As a PVO, you must not require 

passengers with a disability to sign any 

release or waiver of liability in order to 

receive transportation or use of a vessel 

or to receive services or 

accommodations for a disability. 

(b) You must not require passengers 

with a disability to sign waivers of 

liability for damage to or loss of 

wheelchairs or other assistive devices. 


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Subpart C—Information for 

Passengers 

§ 39.51 What information must PVOs 

provide to passengers with a disability? 

As a PVO, you must provide the 

following information to passengers 

who self-identify as having a disability 

or who request disability-related 

information, or persons making 

inquiries on the behalf of such persons. 

The information you provide must, to 

the maximum extent feasible, be 

specific to the vessel a person is seeking 

to travel on or use. 

(a) The availability of accessible 

facilities on the vessel; including, but 

not limited to, means of boarding the 

vessel, lavatories, staterooms, decks, 

dining, and recreational facilities; 

(b) Any limitations on the ability of 

the vessel to accommodate passengers 

with a disability; 

(c) Any limitations on the 

accessibility of boarding and 

disembarking at ports at which the 

vessel will call and services or tours 

ancillary to the transportation provided 

by the vessel concerning which the PVO 

makes arrangements available to 

passengers. 

§ 39.53 Must information and reservation 

services of PVOs be accessible to 

individuals with hearing or vision 

impairments? 

This section applies to information 

and reservation services made available 

to persons in the United States. 

(a) If, as a PVO, you provide 

telephone reservation or information 

service to the public, you must make 

this service available to individuals who 

are deaf or hard-of-hearing through use 

of a text telephone (TTY). 

(1) You must make TTY service 

available during the same hours as 

telephone service for the general public. 

(2) Your response time to TTY calls 

must be equivalent to your response 

time for your telephone service to the 

general public. 

(3) You must meet this requirement 

by [date one year from the effective date 

of the final rule]. 

(b) If, as a PVO, you provide written 

(i.e., hard copy) information to the 

public, you must ensure that this 

information is able to be communicated 

effectively, on request, to persons with 

vision impairments. You must provide 

this information in the same 

languages(s) in which it is available to 

the general public. 

§ 39.55 Must PVOs make copies of this 

rule available to passengers? 

As a PVO, you must keep a current 

copy of this part on each vessel and 

each U.S. port or terminal you serve and 

make it available to passengers on 

request. 

§ 39.57 What is the general requirement 

for PVOs’ communications with 

passengers? 

PVOs must ensure the effective 

communication to passengers with 

disabilities of all information provided 

to passengers, through the use of 

auxiliary aids where needed. 

Subpart D—Accessibility of Landside 

Facilities 

§ 39.61 What requirements must PVOs 

meet concerning the accessibility of 

terminals and other landside facilities? 

As a PVO, you must comply with the 

following requirements with respect to 

all terminal and other landside facilities 

you own, lease, or control in the United 

States (including its territories, 

possessions, and commonwealths): 

(a) With respect to new facilities, you 

must do the following: 

(1) You must ensure that terminal 

facilities are readily accessible to and 

usable by individuals with disabilities, 

including individuals who use 

wheelchairs. You are deemed to comply 

with this obligation if the facilities meet 

requirements of 49 CFR Part 37, § 37.9, 

and the standards referenced in that 

section. 

(2) You must ensure that there is an 

accessible path between the terminal or 

other passenger waiting area and the 

boarding ramp or device used for the 

vessel. An accessible route is one 

meeting the requirements of the 

standards referenced in 49 CFR Part 37, 

§ 37.9. 

(b) When a facility is altered, the 

altered portion must meet the same 

standards that would apply to a new 

facility. 

(c) With respect to an existing facility, 

you must ensure that passengers with a 

disability can use the facility to gain 

access to your vessel. You may meet this 

obligation through any combination of 

facility accessibility, equipment, the 

assistance of personnel, or other 

appropriate means consistent with the 

safety and dignity of passengers with a 

disability. With respect to making 

structural modifications in existing 

facilities, you have the same obligations 

as any other public or private entity 

under the applicable provisions of DOT 

ADA regulations. 

(d) Where you share responsibility for 

ensuring accessibility of a facility with 

another entity, you and the other entity 

are jointly and severally responsible for 

meeting applicable accessibility 

requirements. 

§ 39.63 What accommodations are 

required at terminals and other landside 

facilities for individuals with hearing or 

vision impairments? 

(a) As a PVO, the information you 

provide to the general public at 

terminals and other landside facilities 

must be effectively communicated to 

individuals with impaired vision and 

deaf and hard-of-hearing individuals. To 

the extent that this information is not 

available to these individuals through 

signage and/or verbal public address 

announcements, your personnel must 

promptly provide the information to 

such individuals on their request, in 

languages in which the information is 

provided to the general public. 

(b) The types of information you must 

make available include, but are not 

limited to, information concerning 

ticketing, fares, schedules and delays, 

and the checking and claiming of 

luggage. 

(c) You must meet the requirements of 

this section by [date one year from 

effective date of the final rule]. 

Subpart E—Accessibility of Vessels 

[Reserved] 

Subpart F—Assistance and Services to 

Passengers With Disabilities 

§ 39.81 What assistance must PVOs 

provide to passengers with a disability in 

getting to and from a passenger vessel? 

(a) As a PVO, if you provide, contract 

for, or otherwise arrange for 

transportation to and from a passenger 

vessel (e.g., a bus transfer from an 

airport to a vessel terminal), you must 

ensure that the transfer service is 

accessible to and usable by individuals 

with disabilities, as required by this 

part. 

(b) You must also provide assistance 

requested by or on behalf of a passenger 

with a disability in moving between the 

terminal entrance (or a vehicle drop-off 

point adjacent to the entrance) and the 

place where people get on or off the 

passenger vessel. This requirement 

includes assistance in accessing key 

functional areas of the terminal, such as 

ticket counters and baggage checking/ 

claim. It also includes a brief stop upon 

request at an accessible restroom or 

nearby takeout food vendor. 

§ 39.83 What are PVOs’ obligations for 

assisting passengers with a disability in 

getting on and off a passenger vessel? 

(a) If a passenger with a disability can 

readily get on or off a passenger vessel 

without assistance, you are not required 

to provide such assistance to the 

passenger. You must not require such a 

passenger with a disability to accept 


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assistance from you in getting on or off 

the vessel. 

(b) With respect to a passenger with 

a disability who is not able to get on or 

off a passenger vessel without 

assistance, you must promptly provide 

assistance that ensures that the 

passenger can get on or off the vessel. 

(c) When you have to provide 

assistance to a passenger with a 

disability in getting on or off a passenger 

vessel, you may use any available means 

to which the passenger consents (e.g., 

lifts, ramps, boarding chairs, assistance 

by tour personnel). However, you must 

never use hand-carrying (i.e., directly 

picking up the passenger’s body in the 

arms of one or more personnel) to effect 

a level change the passenger needs to 

get on or off the vessel, even if the 

passenger consents. 

§ 39.85 What services must PVOs provide 

to passengers with a disability on board a 

passenger vessel? 

As a PVO, you must provide services 

on board the vessel as requested by or 

on behalf of passengers with a 

disability, or when offered by PVO 

personnel and accepted by passengers 

with a disability, as follows: 

(a) Assistance in moving about the 

vessel, with respect to any spaces that 

are not readily accessible and usable to 

the passenger. 

(b) If food is provided to passengers 

on the vessel, assistance in preparation 

for eating, such as opening packages and 

identifying food; 

(c) Effective communication with 

passengers who have vision 

impairments or who are deaf or hard-ofhearing, so that these passengers have 

timely access to information the PVO 

provides to other passengers (e.g., 

weather, on-board services, delays). 

§ 39.87 What services are PVOs not 

required to provide to passengers with a 

disability on board a passenger vessel? 

As a PVO, you are not required to 

provide extensive special assistance to 

passengers with a disability. For 

purposes of this section, extensive 

special assistance includes the 

following activities: 

(a) Assistance in actual eating; 

(b) Assistance within a restroom or 

assistance elsewhere on the vessel with 

elimination functions; and 

(c) Provision of medical equipment or 

services, or assistive devices, except to 

the extent provided to all passengers. 

§ 39.89 What requirements apply to onboard safety briefings, information, and 

drills? 

As a PVO, you must comply with the 

following requirements with respect to 

safety briefings, information, or drills 

provided to passengers: 

(a) You must provide the briefings or 

other safety-related information through 

means that effectively communicate 

their content to persons with vision or 

hearing impairments. This includes 

providing written materials in 

alternative formats that persons with 

vision impairments can use. 

(b) You must not require any 

passenger with a disability to 

demonstrate that he or she has listened 

to, read, or understood the information 

presented, except to the extent that you 

impose such a requirement on all 

passengers. You must not take any 

action adverse to a qualified individual 

with a disability on the basis that the 

person has not ‘‘accepted’’ the briefing. 

(c) As a PVO, if you present on-board 

safety briefings to passengers on video 

screens, you must ensure that the safetyvideo presentation is accessible to 

passengers with impaired hearing (e.g., 

through use of open captioning or 

placement of a sign language interpreter 

in the video). 

(1) You may use an equivalent nonvideo alternative to this requirement 

only if neither open captioning nor a 

sign language interpreter inset can be 

placed in the video presentation 

without so interfering with it as to 

render it ineffective or it would not be 

large enough to be readable. 

(2) You may implement the 

requirements of this section by 

substituting captioned or interpreted 

video materials for uncaptioned/ 

uninterpreted video materials as the 

uncaptioned/uninterpreted materials are 

replaced in the normal course of the 

carrier’s operations. 

(d) You must provide whatever 

assistance is necessary to enable 

passengers with disabilities to 

participate fully in safety or emergency 

evacuation drills provided to all 

passengers. 

(e) You must maintain evacuation 

programs, information, and equipment 

in locations that passengers can readily 

access and use. 

§ 39.91 Must PVOs permit passengers with 

a disability to travel with service animals? 

(a) As a PVO, you must permit service 

animals to accompany passengers with 

a disability. 

(b) You must permit the service 

animal to accompany the passenger in 

all locations that passengers can use on 

a vessel. 

(c) You must accept the following as 

evidence that an animal is a service 

animal: identification cards, other 

written documentation, presence of 

harnesses, tags, and/or the credible 

verbal assurances of a passenger with a 

disability using the animal. 

(d) If you decide not to accept an 

animal as a service animal, you must 

explain the reason for your decision to 

the passenger and document it in 

writing. A copy of the explanation must 

be provided to the passenger within 10 

calendar days of the incident. 

§ 39.93 What mobility aids and other 

assistive devices may passengers with a 

disability bring onto a passenger vessel? 

(a) As a PVO, you must permit 

passengers with a disability to bring the 

following kinds of items onto a 

passenger vessel, consistent with Coast 

Guard requirements concerning 

security, safety, and hazardous 

materials: 

(1) Wheelchairs and other mobility 

devices, including, but not limited to, 

manual wheelchairs and batterypowered wheelchairs; 

(2) Other mobility aids, such as canes 

(including those used by persons with 

impaired vision), crutches, and walkers; 

(3) Other assistive devices (e.g., 

vision-enhancing devices, personal 

ventilators, portable oxygen 

concentrators, and respirators that use 

non-spillable batteries); 

(4) Personal oxygen supplies. 

(b) You must permit passengers with 

a disability to use their mobility aids 

and assistive devices on board the 

vessel in all locations passengers access. 

(c) You are not required to permit 

passengers with a disability to bring 

these items into lifeboats or other 

survival craft, in the context of an 

emergency evacuation of the vessel. 

§ 39.95 May PVOs limit their liability for 

loss of or damage to mobility aids or other 

assistive devices? 

Consistent with any applicable 

requirements of international law, you 

must not apply any liability limits with 

respect to loss of or damage to 

wheelchairs or other assistive devices. 

The criterion for calculating the 

compensation for a lost, damaged, or 

destroyed wheelchair or other assistive 

device shall be the original purchase 

price of the device. 

Subpart G—Complaints and 

Enforcement Procedures 

§ 39.101 What are the requirements for 

providing Complaints Resolution Officials? 

(a) As a PVO, you must designate one 

or more Complaints Resolution Officials 

(CROs). 

(b) You must make a CRO available on 

each vessel and each terminal you serve. 

You must make CRO service available in 

the language(s) in which you make your 


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other services available to the general 

public. 

(c) You may make the CRO available 

in person or via telephone, at no cost to 

the passenger. If a telephone link to the 

CRO is used, TTY service must be 

available so that persons with hearing 

impairments may readily communicate 

with the CRO. 

(d) You must make passengers with a 

disability aware of the availability of a 

CRO and how to contact the CRO in the 

following circumstances: 

(1) In any situation in which any 

person complains or raises a concern 

with your personnel about 

discrimination, accommodations, or 

services with respect to passengers with 

a disability, and your personnel do not 

immediately resolve the issue to the 

customer’s satisfaction or provide a 

requested accommodation, your 

personnel must immediately inform the 

passenger of the right to contact a CRO 

and the location and/or phone number 

of the CRO available on the vessel or at 

the terminal. Your personnel must 

provide this information to the 

passenger in a format he or she can use. 

(2) Your reservation agents, 

contractors, and web sites must provide 

information equivalent to that required 

by paragraph (d)(1) of this section to 

passengers with a disability using those 

services. 

(e) Each CRO must be thoroughly 

familiar with the requirements of this 

part and the carrier’s procedures with 

respect to passengers with a disability. 

The CRO is intended to be the PVO’s 

‘‘expert’’ in compliance with the 

requirements of this part. 

(f) You must ensure that each of your 

CROs has the authority to make 

dispositive resolution of complaints on 

behalf of the PVO. This means that the 

CRO must have the power to overrule 

the decision of any other personnel, 

except that the CRO is not required to 

be given authority to countermand a 

decision of the master of a vessel with 

respect to safety matters. 

§ 39.103 What actions do CROs take on 

complaints? 

When a complaint is made directly to 

a CRO (e.g., orally, by phone, TTY) the 

CRO must promptly take dispositive 

action as follows: 

(a) If the complaint is made to a CRO 

before the action or proposed action of 

PVO personnel has resulted in a 

violation of a provision of this part, the 

CRO must take, or direct other PVO 

personnel to take, whatever action is 

necessary to ensure compliance with 

this part. 

(b) If an alleged violation of a 

provision of this part has already 

occurred, and the CRO agrees that a 

violation has occurred, the CRO must 

provide to the complainant a written 

statement setting forth a summary of the 

facts and what steps, if any, the PVO 

proposes to take in response to the 

violation. 

(c) If the CRO determines that the 

PVO’s action does not violate a 

provision of this part, the CRO must 

provide to the complainant a written 

statement including a summary of the 

facts and the reasons, under this part, 

for the determination. 

(d) The statements required to be 

provided under this section must inform 

the complainant of his or her right 

complain to the Department of 

Transportation and/or Department of 

Justice. The CRO must provide the 

statement in person to the complainant 

in person if possible; otherwise, it must 

be transmitted to the complainant 

within 10 calendar days of the 

complaint. 

§ 39.105 How must PVOs respond to 

written complaints? 

(a) As a PVO, you must respond to 

written complaints received by any 

means (e.g., letter, fax, e-mail, electronic 

instant message) concerning matters 

covered by this part. 

(b) A passenger making a written 

complaint, must state whether he or she 

had contacted a CRO in the matter, 

provide the name of the CRO and the 

date of the contact, if available, and 

enclose any written response received 

from the CRO. 

(c) As a PVO, you are not required to 

respond to a complaint postmarked or 

transmitted more than 45 days after the 

date of the incident, except for 

complaints referred to you by the 

Department of Transportation. 

(d) As a PVO, you must make a 

dispositive written response to a written 

disability complaint within 30 days of 

its receipt. The response must 

specifically admit or deny that a 

violation of this part has occurred. 

(1) If you admit that a violation has 

occurred, you must provide to the 

complainant a written statement setting 

forth a summary of the facts and the 

steps, if any, you will take in response 

to the violation. 

(2) If you deny that a violation has 

occurred, your response must include a 

summary of the facts and your reasons, 

under this part, for the determination. 

(3) Your response must also inform 

the complainant of his or her right to 

pursue DOT and/or DOJ enforcement 

action under this part. 

§ 39.107 Where may passengers file 

complaints? 

(a) Any person believing that a PVO 

has violated any provision of this part 

may contact the following office for 

assistance: U.S. Department of 

Transportation, Departmental Office of 

Civil Rights, 400 Seventh Street, SW, 

Washington, DC 20590. 

(b) Any person believing that a PVO 

has violated any provision of this part 

may also file a complaint with the 

Disability Rights Section, Civil Rights 

Division, Department of Justice. 

(c) Any person believing that a PVO 

that receives Federal financial 

assistance has violated any provision of 

this part may also file a complaint with 

the civil rights office of the concerned 

DOT operating administration. 

(d) Requests for assistance and 

complaints must be filed no later than 

180 days after the incident, or after the 

end of a continuing violation, to ensure 

that they can be investigated. 

§ 39.109 What enforcement action may be 

taken under this part? 

(a) The Department of Transportation 

may investigate complaints and conduct 

reviews or other inquiries into the 

compliance of PVOs with this part. 

(b) The Department may issue and 

make public findings and 

recommendations concerning any 

matter relating to the compliance of 

PVOs with this part. 

(c) The Department may refer any 

matter concerning the compliance of 

PVOs with this part to the Department 

of Justice for enforcement action. 

(d) The Department of Justice may 

conduct investigations and take 

enforcement action concerning 

compliance with the provisions of this 

part on its own initiative at any time. 

(e) With respect to a PVO that receives 

DOT financial assistance, the 

Department may take enforcement 

action as provided in 49 CFR Parts 27 

and 37. 

[FR Doc. E7–362 Filed 1–22–07; 8:45 am] 

BILLING CODE 4910–22–P 


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