`[Federal Register Volume 72, Number 14 (Tuesday, January 23, 2007)]
[Proposed Rules]
[Pages 2833-2851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-362]


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DEPARTMENT OF TRANSPORTATION

49 CFR Part 39

[Docket OST 2007 26829]
RIN 2105-AB87


Transportation for Individuals With Disabilities: Passenger 
Vessels

AGENCY: Department of Transportation, Office of the Secretary.

ACTION: Notice of proposed rulemaking.

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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); [email protected] 
(e-mail).

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

Background

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

    Ferries and passenger vessels operated by public entities are 
covered by the ADA, and subject at this time to DOJ Title II 
requirements as well as Sec.  37.5 of this Part * * *. We anticipate 
further rulemaking to create appropriate requirements for passenger 
vessels * * *. The reason for this action is that, at the present 
time, the Department lacks sufficient information to determine what 
are reasonable accessibility requirements for various kinds of 
passenger vessels. We note that the DOJ has determined that 
passenger vessels encompassing places of public accommodation (e.g., 
cruise ships, floating restaurants) are subject to the general 
nondiscrimination and policies and practices portions of its Title 
III rule (Subparts B and C of 28 CFR Part 36). The Department of 
Transportation anticipates working with the Access Board and DOJ on 
further rulemaking to define requirements for passenger vessels * * 
*. The Department does want to make clear its view that the ADA does 
cover passenger vessels, including ferries, excursion vessels, 
sightseeing vessels, floating restaurants, cruise ships, and others. 
Cruise ships are a particularly interesting example of vessels 
subject to ADA coverage.
    Cruise ships are a unique mode of transportation. Cruise ships 
are self-contained floating communities. In addition to transporting 
passengers, cruise ships house, feed, and entertain passengers and 
thus take on aspects of public accommodations. Therefore cruise 
ships appear to be a hybrid of a transportation service and a public 
accommodation. As noted above, DOJ covers cruise ships as public 
accommodations under its Title III rules.
    In addition to being public accommodations, cruise ships clearly 
are within the scope of a ``specified public transportation 
service.'' The ADA prohibits discrimination in the full and equal 
enjoyment of specified public transportation services provided by a 
private entity that is primarily engaged in the business of 
transporting people and whose operations affect commerce (Sec.  
304(a)). ``Specified public transportation'' is defined by Sec.  
301(10) as ``transportation by bus, rail, or any other conveyance 
(other than by aircraft) that provides the general public with 
general or special service (including charter service) on a regular 
and continuing basis.''
    Cruise ships easily meet the definition of ``specified public 
transportation.'' Cruise ships are used almost exclusively for 
transporting passengers and no one doubts that their operations 
affect commerce. Cruise ships operate according to set schedules or 
for charter and their services are offered to the general public. 
Finally, despite some seasonal variations, their services are 
offered on a regular and continuing basis.
    Virtually all cruise ships serving U.S. ports are foreign-flag 
vessels. International law clearly allows the U.S. to exercise 
jurisdiction over foreign-flag vessels while they are in U.S. ports, 
subject to treaty obligations. A state has complete sovereignty over 
its internal waters, including ports. Therefore, once a commercial 
ship voluntarily enters a port, it becomes subject to the 
jurisdiction of the coastal state. In addition, a state may 
condition the entry of a foreign ship into its internal waters or 
ports on compliance with its laws and regulations. The United States 
thus appears to have jurisdiction to apply ADA requirements to 
foreign-flag cruise ships that call in U.S. ports.

    The U.S. Supreme Court recently affirmed the Department's long-held 
view that the ADA covers passenger vessels, specifically including 
foreign-flag cruise ships. In Spector et al. v. Norwegian Cruise Lines, 
545 U.S. 119 (2005), the Court held that cruise ships are ``public 
accommodations'' that provide ``specified public transportation'' 
within the meaning of the ADA. The Court said that, while there may be 
some limitations on the coverage of the ADA to matters purely 
concerning the internal affairs of a foreign-flag vessel, matters 
concerning

[[Page 2834]]

the ship operators' policies and conditions relating to transportation 
of passengers with disabilities (e.g., higher fares or surcharges for 
disabled passengers, waivers of medical liability, requirements for 
attendants) had nothing to do with a ship's internal affairs. Such 
matters, then, are clearly subject to ADA jurisdiction. It is issues of 
this kind that are the focus of this NPRM.
    The Access Board has been working for some time on drafting 
accessibility guidelines for passenger vessels. On November 26, 2004, 
the Access Board published for comment a notice of availability of 
draft guidelines for larger passenger vessels with a capacity of over 
150 passengers or overnight accommodations for over 49 passengers. 
Since that time, the Access Board has been reviewing comments it 
received and planning work on a Regulatory Assessment for vessel 
guidelines. On July 7, 2006, the Access Board issued a second notice of 
availability asking for comments on a revised draft of vessel 
guidelines. Following the review of comments on that notice, the Access 
Board, in cooperation with the Department of Transportation, would 
issue an NPRM and Regulatory Assessment concerning physical 
accessibility requirements for larger passenger vessels. As we envision 
it, the final rule resulting from such a future NPRM would ultimately 
be joined with a final rule resulting from the current proposed rule in 
a single, comprehensive passenger vessel ADA rule.
    On November 29, 2004, the Department published an advance notice of 
proposed rulemaking (ANPRM) asking questions about the shape of future 
ADA requirements for passenger vessels (69 FR 69247). The Department 
received 43 comments to the ANPRM. Most of these comments concerned the 
Access Board's draft guidelines and physical accessibility issues 
relating to existing and new vessels, and some of them concerned 
physical accessibility issues specific to very small vessels. The 
Department is retaining these comments and will consider them in 
context of the continuing work on the Access Board's draft vessel 
guidelines and the future NPRM that would propose to incorporate those 
guidelines in DOT rules.
    The only comment that concerned the issues included in this NPRM 
was from the International Council of Cruise Lines (ICCL), a trade 
association for entities in the cruise industry. ICCL recommended that 
rules exempt transfers of persons from larger vessels to tenders; 
recognize the flexibility of cabin configurations; exclude from 
coverage shore excursions provided by third-party-vendors, particularly 
in foreign countries; have eligibility criteria and direct threat 
provisions that allow operators to establish policies that will avoid 
safety risks; permit requirements for personal attendants; and permit 
limitations on the transportation of service animals. The Department 
will discuss these comments in context of the individual sections of 
the proposed rule.

Section-by-Section Analysis

Sec.  39.1 What is the purpose of this part?

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

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

    This section proposes definitions of terms in this rule. Many of 
the definitions are based on parallel definitions in the Department's 
ADA and Air Carrier Access Act (ACAA) regulations or Department of 
Justice rules, adapted to the passenger vessel context. This preamble 
discussion focuses on terms that are specific to the passenger vessel 
context. Other terms would have the same meanings as they do in other 
DOT disability rules.
    Because this NPRM does not propose physical accessibility 
requirements for vessels, the definition of ``accessible'' will be 
fleshed out with proposed standards based on Access Board guidelines in 
a future rulemaking. The definition of ``direct threat,'' drawn from 
Department of Justice regulations, concerns only threats to the health 
and safety of others. Something that may threaten only the health or 
safety of a passenger with a disability by definition cannot be a 
direct threat.
    In addition to vessels, ``facilities'' include landside facilities 
that a vessel operator owns, leases, or controls in the U.S. (including 
its territories, possessions, and commonwealths). A passenger vessel 
operator (PVO) would be viewed as controlling a facility, even if it 
did not own or lease it, if the facility owner, through a contract or 
other arrangement, delegated authority over use of the facility to the 
passenger vessel operator during those times in which the vessel was at 
the facility. Facilities in these three categories would be covered 
directly by Part 39. The Department seeks comment on how 
responsibilities should be allocated when there are multiple PVOs who 
operate at a given landside facility or who only use the facility 
infrequently.
    The Department realizes that entities other than PVOs, such as 
municipalities or other private businesses, may own, lease, or control 
landside facilities that passenger vessels use. The obligations of 
these entities would be controlled by Titles II and III of the ADA and, 
in some cases, by section 504 of the Rehabilitation Act of 1973. We 
envision the relationship between the facility owner/controller and the 
PVO to be analogous to other situations in which entities subject to 
different disability access rules share responsibility (e.g., public 
entity landlord subject to Title II leases property to a private entity 
subject to Title III). We seek comment on whether landside facility-
specific language should be added to the Department's other ADA or 
section 504 rules.
    The NPRM does not propose making this requirement applicable to 
facilities located outside the U.S. However, we seek comment on whether 
the final rule should apply to facilities outside the U.S. if a PVO (as 
distinct from another foreign entity) owns, leases, or controls the 
facility.
    The definition of ``historic vessel'' is also one that is likely to 
become more significant when future rulemakings add physical 
accessibility standards to Part 39. Following practice in other 
portions of the ADA, it is likely that historic vessels (e.g., the USS 
Constellation in Baltimore harbor) would be exempted from some 
accessibility requirements. ``New,'' ``existing,'' and ``used'' 
passenger vessel are also terms that will be of greater importance once 
physical accessibility standards are in place. They are based on new 
and used vehicle definitions in the Department's ADA rules for surface 
transportation modes.
    With respect to the definition of ``new passenger vessel,'' which 
will be used in connection with vessel standards in Subpart E when they 
are added to the regulation, we seek comment on transition rules. That 
is, at what point in the procurement, design, construction, and 
delivery of a vessel should requirements for new vessels attach?
    ``Operates'' means the provision of transportation or other service 
by any public or private entity on a passenger vessel. Importantly, it 
also includes the provision of transportation or other service by 
another party having a contractual or other arrangement or relationship 
with the entity involved. As in other parts of the Department's 
accessibility rules, a party can contract out its functions, but cannot 
contract

[[Page 2835]]

away its responsibilities. By ``other services,'' we mean activities 
that take place on a vessel other than simply going from Point A to 
Point B (e.g., food service, recreation, entertainment, gambling). This 
section would also cover situations in which a vessel makes a round 
trip from Point A to Point A, like some dinner, excursion, and gambling 
vessels do.
    ``Passenger vessel'' is meant to be a broadly encompassing term for 
any boat, ship, or other craft that takes on members of the public for 
hire or other activities conducted as a part of the vessel operators 
normal operations (which could include promotional activities involving 
use of a vessel by members of the public for which a fare is not 
charged, free shuttle or ferry service). The only exception is for 
boats or other craft that are rented or leased to consumers and which 
the consumers themselves (as distinct from the passenger vessel 
operator and its personnel) operate. The Department seeks comment on 
whether there are any additional situations that the rule should cover 
(e.g., the PVO or an organization to which the PVO makes the vessel 
available provides a charitable or promotional excursion for which no 
fee is charged). The Department also seeks comment on whether there 
should be exceptions or different provisions for vessels that are not 
primarily designed or used as passenger vessels, but may carry 
passengers for hire on certain occasions (e.g., supply vessels, crew 
boats, school training or sailing vessels, research vessels carrying 
students).
    In some cases, such as certain on-the-water gambling casinos, 
museums, or restaurants, an activity takes place on a structure that 
floats but is permanently anchored or tethered to a dock or other shore 
facility. On one hand, because it floats on the water, such a structure 
could be regarded as a vessel covered by this rule. On the other hand, 
because it never actually goes anywhere, it could be regarded as a 
facility, like an on-shore building, that is more appropriately covered 
by Department of Justice rules. We seek comment on this matter.
    The ``passenger vessel operator'' (PVO) is a term that includes 
both owners and operators of a passenger vessel. A PVO may be either a 
public or a private entity. Sometimes, ownership of vessels can be 
complex, with two or more different parties involved, and yet another 
party responsible for the day-to-day operation of the vessel. In such 
situations, all the parties involved would be jointly and severally 
responsible for compliance with these rules.
    For the most part, ``passenger with a disability'' and ``qualified 
individual with a disability'' have the same meaning for purposes of 
the proposed rule. There could be situations in which a qualified 
individual with a disability may not actually be a passenger, or in 
which someone is seeking to perform functions on behalf of a person 
with a disability. The ``passenger with a disability'' term includes 
both situations in which someone buys a ticket to travel on a vessel 
and situations (e.g., a gambling boat) in which members of the public 
go on board, without a ticket, to use the services provided on the 
vessel, regardless of whether the vessel leaves its dock or mooring.
    ``Terminal'' would be defined broadly, meaning any property or 
facilities adjacent to the means of boarding a vessel that passengers 
use to get to the vessel. A terminal, in this sense, can be a large 
complex, a building, or a very simple facility. Importantly, terminals 
are covered under Part 39 only to the extent that the PVO owns or 
leases the terminal or exercises control over its selection, design, 
construction, or alteration (e.g., POV[A1] selects site for 
construction of new facility; or PVO has choice of docking at existing 
accessible or inaccessible facility).
    As noted in the discussion of ``facility,'' the Department seeks 
comment on whether Part 39 should apply to a terminal located outside 
the U.S. if the PVO is involved in one of these ways. If the PVO does 
none of these things, the terminal would not in any circumstance be 
covered under Part 39, though other parts of the ADA and section 504 of 
the Rehabilitation Act of 1973, as amended, may well apply to terminals 
located in the U.S. We also note that activities that a PVO itself 
conducts, regardless of the facility in which they are conducted, would 
be expected to be available to persons with disabilities.
    In other transportation contexts, there has been considerable 
discussion of whether the long-standing definition of ``wheelchair'' 
remains adequate, in light of the development and use of mobility 
devices that may not fit within the definition. We seek comment on this 
question in the context of passenger vessels. Should there be a 
definition that specifically acknowledges mobility devices that may not 
literally be ``wheelchairs,'' or should a more inclusive term be 
developed?

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

    The Department proposes that the provisions of this part apply to 
all passenger vessels, regardless of size. There are two major 
exceptions to this general coverage. First, while all U.S.-flagged 
vessels would be covered, coverage of foreign-flag vessels would be 
limited to those that pick up or discharge passengers in the U.S.
    For example, suppose a foreign-flag cruise PVO operates two ships. 
One of them sails only among ports in Europe. Another picks up 
passengers in Miami and cruises to several Caribbean ports. The latter 
would be covered and the former would not. The Department seeks comment 
on a situation that may occur, in which tickets are sold to U.S. 
passengers for a combined trip that includes transportation to a non-
U.S. port where they board a ship. For example, suppose Grand Fenwick 
Cruise Lines sells a package to U.S. passengers including air fare from 
New York to the Bahamas, where passengers board the S.S. Grand Duchess 
Gloriana for a Caribbean cruise; should the ship transportation be 
covered for purposes of Part 39 nondiscrimination rules?
    The second exception concerns the future vessel accessibility 
standards. The NPRM reserves paragraph (c), which would state the scope 
of the applicability of these standards. The Department notes that the 
July 2006 draft Access Board vessel [A2] would limit their 
application vessels permitted to carry over 150 passengers or over 49 
overnight passenger capacity categories, as well as tenders with a 
capacity of 59 or more and all ferries. The Department currently 
anticipates following the Access Board's final guidelines, when they 
are issued, with respect to coverage. The Department also seeks comment 
on whether there should be any vessel size or capacity limits on any of 
the specific nondiscrimination provisions that are proposed in this 
NPRM with respect to subjects other than vessel accessibility 
standards.

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

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

[[Page 2836]]

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

Sec.  39.11 How may a PVO obtain approval to use an equivalent 
facilitation?

    These sections provide means by which PVOs may obtain DOT 
authorization to do something different from what these regulations 
would require. Section 39.9, which parallels language in the 
Department's proposed Air Carrier Access Act (ACAA) rules for foreign 
carriers, provides a waiver mechanism for situations in which a PVO for 
a foreign-flag vessel believes that a binding legal requirement of a 
foreign nation (or of an international agreement) precludes compliance 
with a requirement of Part 39. This provision concerns binding legal 
requirements, not guidance or codes of suggested practices. It concerns 
situations in which such a binding legal requirement actually precludes 
compliance with a Part 39 provision (e.g., Part 39 says ``You must do 
X,'' while a binding foreign legal requirement says ``You must not do 
X''), as opposed to a situation where foreign law authorizes a practice 
that differs from a Part 39 requirement (e.g., Part 39 says ``You must 
do Y,'' while a foreign law says ``You may do Z''). In a situation 
where the Department grants a waiver, the Department would look to the 
PVO for a reasonable alternative means of achieving the purpose of the 
waived provision.
    To avoid placing PVOs in a situation in which they potentially were 
required to comply with contradictory legal requirements, the NPRM 
proposes that PVOs seeking a waiver would have 90 days from the 
publication of the final rule to file a waiver request. If the PVO 
filed a complete waiver request within that period, it could continue 
to implement policies that it believes are consistent with the foreign 
law in question pending the Department's decision on the waiver 
request.
    Section 39.11, on the other hand, concerns a potentially wider 
range of situations in which a PVO applies to the Department for 
authorization to provide a different means of compliance with a 
requirement of the DOT rules than the rules themselves specify. 
Equivalent facilitations can apply to the details of physical 
accessibility standards, when they become part of the rule, but could 
also apply to policy and administrative matters covered by the rule. It 
is important to note that to be considered an equivalent facilitation, 
the different means of compliance must provide equal or greater 
accessibility than that required by the regulatory text.

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

    As a general matter, PVOs would have to begin to comply with the 
provisions of this rule as soon as the rule becomes effective. There is 
no evident reason why PVOs should need a lengthy phase-in period to 
comply with requirements pertaining to denials of transportation on the 
basis of disability, extra or special charges, personal or safety 
assistants, advance notice, waivers of liability, etc. The Department 
would hope and expect that most PVOs are already acting in ways that 
are in compliance with these nondiscrimination policy and 
administrative practice requirements. If not, then this NPRM should put 
PVOs on notice that changes in their policies may be necessary in the 
near future.
    There are some provisions of the proposed rule concerning which it 
would be reasonable for PVOs to have a longer phase-in period, however. 
Specific sections on such matters as modifications to terminals and 
other landside facilities and training for personnel have proposed 
compliance dates intended to give PVOs a reasonable time to meet 
requirements. The Department seeks comment on these proposed compliance 
dates, as well as on whether there are other provisions on which PVOs 
would need additional time to comply.

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

    The provisions of this section are parallel to the general 
nondiscrimination requirements in the Department's other disability-
related rules. We would call attention particularly to paragraph (b), 
which would require modification of PVOs' otherwise acceptable general 
policies where doing so is necessary to accommodate the needs of a 
particular individual or category of individuals with a disability. 
Such modification is required unless it would be unduly burdensome or 
require a fundamental alteration in the nature of the PVO's services, 
programs, or activities.

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

    As noted above, contractors and other persons whom the PVO uses to 
provide services to passengers ``stand in the shoes'' of the PVO with 
respect to the requirements of this rule. The PVO must ensure, through 
provisions in the contracts or other agreements with such third 
parties, that the third parties comply with applicable requirements. We 
seek comment on whether, if at all, contractors outside the United 
States should be covered by this requirement. All new contracts and 
other agreements must have this assurance language. The Department 
seeks comment on whether the rule should require the addition of 
assurance language to existing contracts and agreements, and, if so, 
what the compliance period for such additions should be. Since PVOs 
cannot contract away their responsibilities, PVOs remain responsible 
for the third parties' actions. This would be true, in the Department's 
view, even with respect to actions of third parties where the PVO's 
agreements with the third parties did not yet include assurance 
language.

Sec.  39.25 May PVOs limit the numbers of passengers with a disability 
on a passenger vessel?

    The Department views any policy limiting the number on passengers 
with a disability on a vessel as discriminatory on its face. With 
respect to the concern expressed by ICCL about large groups of 
passengers with a disability traveling together, we believe that the 
provision of Sec.  39.35 permitting PVOs to ask for advance notice in 
this situation (e.g., so as to be able to make the needed 
reconfigurations of the flexible space in overnight accommodations that 
ICCL's comment mentions) should be helpful.

Sec.  39.27 May PVOs refuse to provide transportation or use of a 
passenger vessel on the basis of disability?

    The Department views any policy or action prohibiting a person with 
a disability from being transported on or otherwise using a passenger 
vessel as discriminatory on its face. If a PVO says to a person, 
literally or in effect, ``you are a person with a disability, therefore 
stay off my vessel,'' the PVO would violate this rule. The Department 
recognizes that some disabilities may make other passengers 
uncomfortable. That is not a justifiable reason to deny access to the 
vessel to persons with these disabilities (see paragraph (b)). Only if 
there is a genuine safety issue, meeting the stringent direct threat 
criteria outlined in paragraph (c), would the PVO be justified in 
excluding a person because the person has a disability. Even in that 
case, the PVO would have to provide a written explanation to the person 
within 10 days of the denial (paragraph (d)).
    The Department recognizes that, particularly prior to the adoption 
of physical accessibility standards, some

[[Page 2837]]

vessels will not have accommodations that will permit persons with some 
disabilities to travel on or to obtain some services on the vessels.
    For example, an older vessel might not have any overnight cabins of 
a size that could accommodate a person using a power wheelchair, or 
might have a dining area that is on a deck which can be accessed only 
by using steps. The Department would not, in such a situation, regard a 
PVO's statement to a passenger about the lack of adequate physical 
accommodations as equivalent to a policy denying access on the basis of 
disability.

Sec.  39.29 May PVOs limit access to transportation on or use of a 
vessel on the basis that a passenger has a communicable disease or 
other medical condition?

Sec.  39.31 May PVOs require a passenger with a disability to provide a 
medical certificate?

    These related provisions are intended to limit PVOs' discretion to 
impose requirements or restrictions on passengers on medical grounds. 
Most disabilities are not medical conditions: A person is not ill 
because he or she cannot see, hear, or walk, and applying a medical 
model to many disabilities is inappropriate. On the other hand, people 
with a variety of medical conditions (e.g., heart disease) may have at 
least temporary disabilities. If there is reasonable doubt that a 
passenger with a medical condition can complete a given trip or use a 
vessel without requiring extraordinary medical assistance, then this 
rule would permit the PVO to require a medical certificate from the 
individual. In applying this requirement, the Department believes it is 
reasonable for the PVO to take into account the length of the 
passenger's stay aboard the vessel.
    With respect to communicable diseases, the PVO cannot deny or 
restrict transportation on or use of a passenger vessel on the basis 
that the passenger has a communicable disease, unless the PVO makes a 
direct threat determination. In the communicable disease area, the 
Department believes that PVOs should consider two factors. One is the 
severity of the consequences of a disease; the other is whether the 
disease can readily be communicated by casual contact. Only if a 
disease has severe consequences to the health of other persons and is 
readily communicable by casual contact could a PVO legitimately 
determine that there is a direct threat. For example, HIV/AIDS has 
severe consequences, but is not readily communicable by casual contact. 
The common cold is readily communicable by casual contact but typically 
does not have severe health consequences. Consequently, having a cold 
or having AIDS would not be a basis on which a PVO could limit a 
person's transportation on or use of a vessel. Probably the best recent 
example of a disease that meets both criteria is Severe Acute 
Respiratory Syndrome (SARS), and, in the future, a readily human-to-
human transmissible avian flu pandemic might well qualify. PVOs could 
legitimately take into account determinations by public health 
authorities about the travel of persons with a certain disease (e.g., 
if the Centers for Disease Control or World Health Organization issued 
a finding that persons with a certain disease or symptoms should not 
travel).
    In any case in which a medical certificate may be required or a 
limitation on a passenger's travel be imposed, the limitation should be 
the minimum needed to deal with the medical issue or direct threat to 
the health of others. For example, the PVO would not be authorized to 
deny transportation to an individual if a less drastic alternative, 
such as the use of a personal assistant or the passenger's use of 
medical measures that would mitigate the transmission of an illness is 
available.
    If a PVO refuses transportation to a passenger with a disability on 
grounds related to a medical condition, the NPRM proposes that the PVO 
would have to permit the passenger to travel or use the vessel at any 
time within a year at the same price as the original trip or, at the 
passenger's discretion, provide a refund. The Department seeks comment 
on whether and how to apply this concept to situations in which an 
equivalent trip is not available within a year (e.g., Grand Fenwick 
Cruise Lines makes only one trip to Tierra del Fuego every three years, 
or the S.S. Grand Duchess Gloriana's trips are all fully booked for the 
next year). The Department also seeks comment on how, if at all, the 
availability of trip insurance to the individual passenger should be 
related to this proposed provision.

Sec.  39.33 May PVOs require a passenger with a disability to provide 
advance notice that he or she is traveling on or using a passenger 
vessel?

Sec.  39.35 May PVOs require a passenger with a disability to provide 
advance notice in order to obtain certain services in connection with 
transportation on or use of a passenger vessel?

    In these related sections, the Department is saying, first, that it 
is never appropriate for a PVO to require a person to provide advance 
notice that he or she is coming, just because he or she has a 
disability. The PVO's nondiscriminatory policies and practices should 
be in place, ready to deal with whoever shows up. On the other hand, 
there may be specific accommodations for which provision of advance 
notice is needed. One that seems reasonable is when a large number of 
people with a disability plan to travel as a group. The NPRM uses the 
ACAA standard of a group of 10 or more disabled passengers traveling as 
a group. We seek comment on whether this concept should be refined to 
recognize the possibility that some groups of disabled passengers 
traveling together may not need any special accommodations. In such a 
case, is the advance notice provision advisable?
    A second instance where advance notice could be helpful concerns a 
request for an accessible overnight cabin. The Department's proposal on 
this subject is intended to grapple with the reported problem of 
nondisabled travelers reserving an accessible cabin because it is 
roomier, thus denying its availability to a disabled passenger who may 
subsequently seek the accommodation. Under the proposal, everyone 
reserving an accessible cabin would be informed that, if a passenger 
with a disability made a reservation at least 72 hours before the 
vessel's scheduled departure and requested an accessible cabin, any 
nondisabled person who had previously reserved the cabin would be moved 
to another cabin, if one were available. The NPRM would not require any 
passenger to be bumped from a voyage as a result, only reassigned to a 
different cabin. Obviously, the operation of this provision would 
depend on self-identification by the passenger with a disability of his 
or her need for the accessible cabin.
    The Department seeks comment on whether the rule should specify in 
more detail the kinds of disabilities that would trigger this provision 
(e.g., should the provision be limited to persons with mobility 
impairments?) or whether the PVO should be permitted,

[[Page 2838]]

or required, to seek documentation of a disability from a passenger 
seeking to reserve such an accommodation. We also seek suggestions for 
any alternative means of addressing this issue. We recognize that, 
especially on some cruise ships, it is commonplace for travelers to 
reserve cabins months in advance. It is also commonplace for whole 
voyages to be sold out months in advance. We seek comment, thus, on 
whether a passenger with a disability who requested an accessible cabin 
72 hours before departure could appropriately bump a nondisabled 
passenger from a cabin reserved months ahead of time. Similarly, we 
seek comment on whether a deadline for requesting an accessible cabin 
should be 72 hours or another fixed time before departure or, 
alternatively, based on when passengers in general reserve their 
cabins. (If the latter, for example, an accessible cabin might have to 
be requested before half of all cabins are reserved.) Additionally, we 
seek comment on whether, as we do in the ADA rule for over-the-road 
buses, we should provide that any cut-off date for reservations in 
general should also be applied to requests for an accessible cabin.
    The Department recognizes that, pending the development of 
passenger vessel physical accessibility standards, even new vessels are 
not required to have a particular number of accessible cabins. This 
provision would apply to the accessible cabins that now exist, as well 
as any others that may become available in the future. We also 
recognize that there could be situations in which an accessible room 
would not be available to a passenger with a disability because another 
passenger with a disability had already reserved the room. Other than 
treating such situations as a ``first-come first-served'' manner, do 
commenters have any suggestions for resolving such a situation?
    The Department also seeks comment on whether 72 hours would be a 
reasonable amount of advance notice in these situations and on whether 
there are other services for which an advance notice requirement would 
be reasonable.
    There could be situations in which a similar principle could 
arguably apply to other shipboard activities. For example, some cruise 
ships may assign seats for dinner. If a passenger with a disability was 
unable, because of barriers in the dining area, to get readily to his 
or her assigned seat, could it be viewed as a reasonable modification 
of the PVO's seating policy to shift dining table assignments of other 
passengers to provide accessibility to a dining table? If so, taking 
into account any disruption of the operator's seating plans or of the 
other passengers' seating arrangements, would a request for an 
accessible table have to be made a specified number of hours before 
departure? The Department seeks comment on this or similar issues 
involving on-board activities.

Sec.  39.37 May PVOs require a passenger with a disability to travel 
with a personal or safety assistant?

    The Department regards requiring a passenger with a disability to 
travel with another person, just because that person has a disability, 
as discriminatory on its face. Such a requirement is not only an 
affront to the independence and dignity of the passenger, but may 
sometimes make travel cost-prohibitive. On the other hand, there can be 
situations in which traveling with another person as a safety assistant 
is essential for safety purposes. Paragraph (b) spells out three 
situations in which it would be justifiable to impose a requirement for 
a safety assistant. These situations are drawn from the similar 
provision of the Department's ACAA rule, and the Department seeks 
comment on any other situations in vessel contexts where such a 
requirement could be justified.
    As ICCL's comment noted, because some passenger voyages are much 
longer than airplane flights, there may be situations in which a 
personal assistant is necessary (the ACAA rule never permits a 
requirement for personal assistants, as distinct from persons needed to 
assist with an emergency evacuation, in air travel). Consequently, the 
Department proposes that if a passenger with a disability needs a 
personal assistant to help perform key personal tasks, such as eating, 
toileting, and dressing, and the passenger's use of the vessel will be 
lengthy enough so that the passenger will need to perform these tasks, 
the PVO may require the passenger with a disability to have a personal 
assistant. For shorter voyages akin in length to airplane flights, the 
PVO could not impose such a requirement. However, for a longer voyage 
(e.g., a multi-day cruise), the PVO could do so.
    The Department recognizes that there can be situations in which a 
passenger and a PVO disagree about whether a safety or personal 
assistant is necessary. In these situations, the proposed rule 
contemplates that the PVO would have the last word, and could require 
the attendant over the passenger's objections. However, in such a 
situation, the rule would require the PVO to put its money where its 
mouth is, and not charge for the transportation or use of the vessel by 
the assistant who the passenger was involuntarily required to bring 
along. As under the ACAA rule (where a similar provision has been in 
effect since 1990 without causing significant disruptions), the PVO 
could designate a member of its own staff or a passenger volunteer as 
the assistant, in order to deter any potential abuse by a passenger who 
would, for example, unreasonably object to the use of an assistant in 
order to secure free transportation for a friend or family member.

Sec.  39.39 May PVOs impose special charges on passengers with a 
disability for providing services and accommodations required by this 
rule?

    Price discrimination is forbidden. PVOs may not charge higher fares 
to passengers with disabilities than to other passengers. PVOs cannot 
impose surcharges on passengers with disabilities, or any sort of extra 
or special charges for facilities, equipment, accommodations, or 
services that must be provided to passengers because they have a 
disability. This prohibition would apply not only to formal charges 
made by the PVO itself, but to informal charges that PVO personnel 
might seek to impose or pressure passengers with a disability to pay. 
For example, if a vessel cannot be boarded by a wheelchair user without 
assistance (e.g., because the boarding ramp slope is too steep), it 
would not be appropriate for vessel personnel who provide boarding 
assistance to ask, pressure, or imply that the wheelchair users should 
provide a tip for the assistance.
    One of the important implications of the prohibition on price 
discrimination concerns situations in which an accommodation for a 
person with a disability is available only in a more expensive type or 
class of service than the passenger requests. For example, suppose a 
passenger with a disability tries to make a reservation for an inside 
cabin. However, the only accessible cabins on the vessel are in the 
more expensive outside cabins with windows. The PVO would have to 
provide the accessible cabin to the passenger with a disability at the 
price of the less expensive accommodation he or she had requested. This 
is consistent with ADA practice in other contexts, such as booking of 
hotel rooms or sleeping compartments on Amtrak trains.

[[Page 2839]]

Sec.  39.41 May PVOs impose restrictions on passengers with a 
disability that they do not impose on other passengers?

Sec.  39.43 May PVOs require passengers with a disability to sign 
waivers or releases?

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

Sec.  39.51 What information must PVOs provide to passengers with a 
disability?

    The Department recognizes that vessels and facilities will not be 
equally accessible; that some vessels, ports, services, and facilities 
may not be usable by persons with some disabilities. This section would 
require PVOs to inform people with disabilities, accurately and in 
detail, about what they can expect. What features of a vessel are 
accessible and what are not? What limitations, if any, are there 
concerning the ability of a vessel to accommodate persons with a 
particular disability? At what ports could passengers with a disability 
expect to be able to get on and off the ship, and by what means? If 
third parties are making tours and excursions available to passengers, 
to what extent are these tours accessible to persons with a particular 
disability? With this information, potential passengers with a 
disability can make an informed choice about whether seeking 
transportation on a particular vessel is worth their while.

Sec.  39.53 Must information and reservation services of PVOs be 
accessible to individuals with hearing or vision impairments?

    This section would apply to information and reservation services 
made available to consumers in the United States, regardless of the 
nationality of a PVO or where the personnel or equipment providing the 
services are themselves based. The first proposed requirement is for 
TTY service for persons with hearing impairments. The Department is 
aware that some deaf and hard-of-hearing persons now may use other 
technologies in preference to TTYs (e.g., videophones, instant 
messaging), and we seek comment on how, if at all, this development 
should be reflected in a final rule.
    On-line booking services, as well as web sites providing 
information about passenger vessel availability, schedules, and 
services, are very important in today's marketplace. Consequently, the 
Department views it as very important for on-line resources to be 
available to persons with disabilities. We would view a web site 
meeting section 508 or World Wide Web Consortium standards as being 
accessible for this purpose. The regulatory text does not make a 
specific proposal on this subject, but we seek comment on whether the 
final rule based on this NPRM, or a future rule incorporating vessel 
accessibility standards, should include such a requirement. We also 
seek comment on the costs of requiring Web site accessibility in the 
passenger vessel industry, the appropriate standards for accessible 
sites, and the timing and phase-in period appropriate for such a 
requirement.

Sec.  39.55 Must PVOs make copies of this rule available to passengers?

    The NPRM would propose that PVOs maintain a copy of the rule on 
each vessel and at each U.S. terminal. The purpose of doing so would be 
to make the rule readily available for reference in case a question 
occurred about whether a PVO was acting consistently with its 
requirements.

Sec.  39.57 What is the general requirement for PVOs' communications 
with passengers?

    This section states the general effective communication requirement 
for PVOs.

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

    This section applies to landside facilities that the PVO owns, 
leases, or controls in the U.S. If the PVO does not own, lease, or 
control a facility, then the requirements of this section do not apply 
to it (there may well be situations in which case a public entity or 
another private entity would own or control the facility, in which the 
other entity would have its own ADA and/or 504 obligations). In the 
case of a foreign facility, where ADA or section 504 rules would not 
apply in their own right, facility accessibility would then become a 
matter of the law of the country in which the facility is located. As 
noted in the discussion of the definition of ``facility,'' the 
Department seeks comment on whether a PVO covered by this rule should 
have accessibility obligations for a foreign facility that the PVO 
itself, as distinct from a separate foreign entity, owns, controls or 
leases.
    The rule would make a familiar three-part breakdown of 
accessibility responsibilities for covered facilities. New facilities 
must meet accessibility standards from the beginning. In the case of an 
alteration, the altered portion of the existing facility would have to 
be brought up to the same accessibility standards applicable to new 
facilities. For existing facilities not otherwise being altered, the 
PVO would have to ensure that the facility is able to be used by a 
passenger with a disability to access the PVO's vessel. This could be 
achieved through a variety of means.
    We note that there may be many situations in which a PVO shares 
accessibility responsibilities with another party. For example, a PVO 
may lease a portion of a port facility that is owned by a private or 
public entity. The PVO has responsibilities under this part; the other 
entity has responsibilities in its own right under Title II or III or 
the ADA or under section 504. In these cases, it would be up to the 
parties involved to allocate the responsibilities among themselves, so 
that they jointly ensure that accessibility requirements are met for 
the facility.
    We also recognize that there can be instances in which a vessel 
berths at a floating dock, rather than literally at a landside 
facility. We would propose to treat such a floating dock in the same 
way as a landside facility for accessibility purposes, but we seek 
comment on whether any different treatment would be appropriate.
    The Department seeks comment on whether it would be advisable to 
add specific provisions similar to Sec. Sec.  37.41, 37.43, and 37.45 
in the Department's existing ADA rule for the new construction and 
alteration of passenger vessel facilities, including provisions for 
alterations affecting areas containing a primary function that are 
subject to additional requirements for path of travel.

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

    This section specifies the effective communications that would have 
to be provided at terminals and other landside facilities to ensure 
that persons with sensory impairments would be able to receive the 
information otherwise available to the public,

[[Page 2840]]

concerning such subjects as ticketing, fares, and schedules. There 
would be a one-year phase-in period for this requirement, which would 
apply to existing as well as new facilities.

Subpart E--Accessibility of Vessels

    This subpart would be reserved. It is a place-holder for the 
subsequent inclusion of passenger physical accessibility standards 
based on future Access Board guidelines. We note that, in connection 
with any rule incorporating the guidelines as DOT standards, DOT would 
designate an agency as the ``administrative authority'' to make certain 
determinations. We anticipate that the Department would designate the 
U.S. Coast Guard, with that agency's consent, as the administrative 
authority for many of these provisions, for foreign-flag as well as 
U.S. vessels. It is not necessary for this NPRM to propose this 
designation, since it logically would be part of a future NPRM 
proposing to adopt Access Board guidelines as DOT regulatory standards.
    There are, however, some facility accessibility issues that may not 
be covered by future Access Board guidelines. For example, we seek 
comment on whether a provision should be added for accessibility of 
televisions and telephones on vessels, similar to what DOT has proposed 
for air carriers pursuant to the Air Carrier Access Act (see 71 FR 9285 
(February 23, 2006)). The Access Board's guidelines will not address 
televisions and telephones in passenger rooms since they are not fixed 
elements.
    It is our understanding that cruise ships typically provide 
televisions in passenger rooms and lounges. The Television Decoder 
Circuitry Act requires televisions with screens 13 inches or greater to 
contain built-in circuitry that receives and decodes closed captions. 
Cruise ships also typically provide telephones in passenger rooms. The 
Hearing Aid Compatibility Act and FCC rules require certain telephones 
to have volume controls and to be compatible with hearing aid 
technology. We seek information on whether cruise ships are currently 
providing televisions that are capable of receiving and decoding closed 
captions, and hearing aid compatible telephones with volume controls.
    The Department does not intend to impose requirements in this area 
in the final rule resulting from this NPRM. Rather, we are seeking 
comment on this subject in order to determine whether, in a future NPRM 
that would propose adoption of the Access Board's final passenger 
vessel guidelines, to propose adding requirements concerning telephones 
and televisions as a DOT modification to the guidelines.

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

    This section does not deal with boarding a vessel, as such. Rather, 
it deals with how people get to the point of boarding a vessel, in 
terms of land transfers (e.g., a bus between the airport and the 
terminal) and in actually moving through the terminal and boarding 
process up to the point of getting onto the vessel. PVOs would be 
responsible for making sure that these services were accessible to 
people with disabilities. The Department seeks comment on the extent, 
if any, to which such a requirement should apply to services provided 
outside the U.S. (e.g., Grand Fenwick Cruise Lines itself provides, or 
contracts with a local bus company to provide, land transportation 
between the dock and points of interest in Barbados).

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

    The optimal solution for boarding a vessel involves a passenger 
with a disability being able to board independently (e.g., via a level-
entry ramp). The Department realizes that there will be many situations 
where this optimal solution does not exist. In these situations, the 
PVO is responsible for providing assistance that enables a passenger 
with a disability to get on or off the vessel. We note that a number of 
comments to the ANPRM represented that these services are already being 
provided in many instances, so we believe it is fair to suggest that 
this requirement would not create significant added burdens for PVOs. 
We also note that this provision pertains to normal boarding and 
disembarkation from a vessel: obviously, in the case of an ``abandon 
ship'' or other emergency situation, crew will use any means necessary 
to ensure that all passengers can safely evacuate.
    On some occasions, it may be the custom on cruise ships or other 
vessels with overnight accommodations to temporarily store luggage in 
passageways in preparation for disembarkation at the end of a voyage. 
This may have the effect of preventing passengers with disabilities 
from using otherwise accessible routes. The Department seeks comment on 
the extent of this problem and what requirements in a final rule, if 
any, should be devised to address it.
    The Department also seeks comment on whether a provision should be 
added that would require the use of accessible boarding systems, as 
described in Sec.  V412 of the Access Board's draft guidelines, for 
vessels with a certain passenger capacity at terminals that have a 
certain threshold level of annual embarkations, similar to the 
provision in DOT's Air Carrier Access rule. See 14 CFR 382.40(a). If 
so, what vessel passenger capacity and threshold level of annual 
embarkations should be used for requiring accessible boarding systems? 
Also, if a provision is added requiring accessible boarding systems at 
certain terminals, would it be advisable to require the PVO negotiate 
an agreement with the terminal operator to ensure the provision of 
accessible boarding systems, similar to the provision in DOT's Air 
Carrier Access Act and section 504 rules concerning boarding devices 
for commuter aircraft? See 14 CFR 382.40(b) and (c). Such an approach 
might also require amendment of the DOT 504 rule, 49 CFR Part 27.

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

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

    These sections concern services that PVOs would, or need not, 
provide to passengers with a disability. The services in question 
include movement about the vessel, but only with respect to portions of 
the vessel that are not accessible to passengers with a disability 
acting independently. To the extent that a PVO makes accessibility 
improvements to a vessel, the PVO can probably reduce its obligation to 
provide this service. When food is provided to passengers, PVO 
personnel would help passengers with a disability to a limited degree, 
including opening packages and identifying food, or explaining choices. 
Assistance in actual eating or other personal functions (e.g., 
toileting or provision of medical equipment or supplies or assistive 
devices, beyond what is provided to all passengers) would not be 
required. Effective communication of on-board information would be 
required.

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

    This section specifies that safety-related information must be 
communicated effectively to passengers with disabilities. This can 
include the

[[Page 2841]]

use of alternative formats and other auxiliary aids, where needed. 
Safety videos would have to be captioned or have an interpreter inset, 
in order to make the information available to persons with impaired 
hearing. Passengers with disabilities must be enabled to participate in 
evacuation and other safety drills, and information about evacuation 
and safety procedures would have to be kept in locations that 
passengers with disabilities can access and use. The Department seeks 
comment on whether any special accommodations would be needed to assist 
persons with cognitive disabilities.

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

    Many persons with disabilities rely on service animals to travel 
and conduct daily functions. This section specifies that PVOs would be 
required to permit service animals to accompany a passenger with a 
disability on board a vessel.
    ICCL raised a number of service animal-related comments in its 
ANPRM response. We agree that foreign countries may limit entry of 
service animals; this should not affect the carriage of service animals 
on the vessel, however, since there is no requirement that the animal 
leave a cruise ship. Limitations on the ability of a service animal to 
leave the ship at a foreign port would be among the information that a 
cruise ship would provide to potential customers inquiring about an 
upcoming cruise. We also agree that PVOs would not be required to 
supply food for the animal. We seek comment on whether it is necessary 
to require PVOs to permit passengers with a disability to bring their 
own supplies of food for the service animal on board, without charge by 
the PVO. We also seek comment on whether PVOs should make refrigeration 
services available for service animal food.
    ICCL commented that service animals typically share the cabin of 
the passengers who use them. The Department does not see an objection 
to this practice, though we seek comment on whether service animal 
users have had any problems in this regard.
    We would view a limitation on the number of service animals that 
can be brought on a given voyage as tantamount to a number limit on 
passengers with a disability (i.e., as a number limit, which the 
proposed rule would prohibit). It is not self-evident that having a 
number of service animals on board a ship at a given time would be 
disruptive to ship operations, and vague concerns about adverse effects 
on the quality of the cruise experience for other passengers do not 
trump the nondiscrimination imperative of the ADA.
    The Department is not proposing, at this time, to adopt ACAA 
service animal guidance for other transportation contexts, though the 
general principles behind this guidance apply across the board to all 
transportation and public accommodations applications of the ADA. The 
Department anticipates that, following the publication of a final rule 
on passenger vessels, it would work with stakeholders to develop more 
detailed guidance on this subject for passenger vessels. One issue the 
Department would likely address in such guidance is the extent to which 
PVOs could inquire as to the status of an animal as a service animal 
(e.g., to prevent potential abuse from persons wanting to bring pets on 
board the vessel in ways inconsistent with the PVO's policy on pets).
    One issue that arises, especially in the context of longer voyages, 
concerns service animal relief areas. The Department seeks comment what 
requirements, if any, should be included in a final rule concerning the 
provision of such areas. Should a final rule specify the number and 
location of such areas? We are glad to see from the ICCL comment that 
cruise operators typically provide relief areas.
    ICCL, of course, represents the cruise industry, which frequently 
operates larger ships than other PVOs. The Department seeks comment on 
whether, with respect to any of the issues discussed in this section, 
there should be differing requirements for smaller vessels.

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

Sec.  39.95 May PVOs limit their liability for the loss of or damage to 
mobility aids and other assistive devices?

    These sections say simply that passengers should be permitted to 
bring and use their own mobility aids and other assistive devices on 
board a vessel. Once the devices are there, if the PVO is responsible 
for loss or damage, the PVO must compensate the owner, at the level of 
the original purchase price of the device. This measure of the level of 
compensation is derived from the Department's ACAA rule. We also seek 
comment on alternative methods of measuring the appropriate level of 
compensation, such as the depreciated present value of the device or 
the current replacement cost for the device.

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

Sec.  39.103 What actions do CROs take on complaints?

    The role of the Complaints Resolution Official (CRO) was first 
developed in the Department's 1990 ACAA regulations, and it has proved 
very helpful in the airline service context. As applied in the 
passenger vessel context, the CRO would be the PVO's expert in 
disability matters, knowledgeable about both the Department's 
regulations and the PVO's 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

[[Page 2842]]

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.

Sec.  39.105 How must PVOs respond to written complaints?

Sec.  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.

Sec.  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.

[[Page 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


Sec.  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.

[[Page 2844]]

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

    In this regulation, the terms listed in this section have the 
following meanings:
    ``Accessible'' means, with respect to vessels and facilities, 
complying with the applicable 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

[[Page 2845]]

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.


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

    (a) Except as provided in paragraph (b) or (c) of this section, 
this part applies to you if you are the owner or operator of any 
passenger vessel, and you are:
    (1) A public entity that provides designated public transportation;
    (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]


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

    (a) If you receive Federal financial assistance from the Department 
of Transportation, compliance with applicable requirements of this part 
is a condition of compliance with section 504 of the Rehabilitation Act 
of 1973 and of receiving financial assistance.
    (b) You are also subject to ADA regulations of the Department of 
Justice (28 CFR Parts 35 or 36, as applicable). The provisions of this 
part shall be interpreted in a manner that will make them consistent 
with applicable

[[Page 2846]]

Department of Justice regulations. In any case of apparent 
inconsistency, the provisions of this part shall prevail.


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

    (a) If you are the PVO of a foreign-flag vessel, and you believe 
that a binding legal requirement of a foreign nation precludes you from 
complying with a provision of this part, you may request a waiver of 
the provision of this part.
    (b) You must send such a waiver request to the Department.
    (c) Your waiver request must include the following elements:
    (1) A copy, in the English language, of the foreign law involved;
    (2) A description of how the binding legal requirement of a foreign 
nation applies and how it precludes compliance with a provision of this 
part;
    (3) A description of the alternative means you will use, if the 
waiver is granted, to effectively achieve the objective of the 
provision of this part subject to the waiver or, if applicable, a 
justification of why it would be impossible to achieve this objective 
in any way.
    (d) If you submit such a waiver request 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.


Sec.  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.


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

    You are required to comply with the requirements of this part 
beginning [insert effective date of the final rule], except as 
otherwise provided in individual sections of this part.

Subpart B--Nondiscrimination and Access to Services


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

    (a) As a PVO, you must not do any of the following things, either 
directly or through a contractual, licensing, or other arrangement:
    (1) You must not discriminate against any qualified individual with 
a disability, by reason of such disability, with respect to the 
individual's use of 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.


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

    (a) If, as a PVO, you enter into a contractual or other arrangement 
or relationship with any other party to provide services to or 
affecting

[[Page 2847]]

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 
Sec.  39.103.
    (c) As a PVO, you must also include such an assurance of compliance 
in your contracts or agreements of appointment with U.S. travel agents. 
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.


Sec.  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.


Sec.  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 Sec.  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 Sec.  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.


Sec.  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 Sec.  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.


Sec.  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

[[Page 2848]]

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.


Sec.  39.33  May PVOs require a passenger with a disability to provide 
advance notice that he or she is traveling on or using a passenger 
vessel?

    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.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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.

[[Page 2849]]

Subpart C--Information for Passengers


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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


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

    As a PVO, you must comply with the following requirements with 
respect to all terminal and other landside facilities you own, lease, 
or control in the United States (including its territories, 
possessions, and commonwealths):
    (a) With respect to new facilities, you must do the following:
    (1) You must ensure that terminal facilities are readily accessible 
to and usable by individuals with disabilities, including individuals 
who use wheelchairs. You are deemed to comply with this obligation if 
the facilities meet requirements of 49 CFR Part 37, Sec.  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, Sec.  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.


Sec.  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


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

    (a) As a PVO, if you provide, contract for, or otherwise arrange 
for transportation to and from a passenger vessel (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.


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

    (a) If a passenger with a disability can readily get on or off a 
passenger vessel without assistance, you are not required to provide 
such assistance to the passenger. You must not require such a passenger 
with a disability to accept

[[Page 2850]]

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.


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

    As a PVO, you must provide services on board the vessel as 
requested by or on behalf of passengers with a disability, or when 
offered by PVO personnel and accepted by passengers with a disability, 
as follows:
    (a) Assistance in moving about the vessel, with respect to any 
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-of-hearing, so that these 
passengers have timely access to information the PVO provides to other 
passengers (e.g., weather, on-board services, delays).


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

    As a PVO, you are not required to provide extensive special 
assistance to passengers with a disability. For purposes of this 
section, extensive special assistance includes the following 
activities:
    (a) Assistance in actual eating;
    (b) Assistance within a 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.


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

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


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

    (a) As a PVO, you must permit service animals to accompany 
passengers with a disability.
    (b) You must permit the service animal to accompany the passenger 
in all locations that passengers can use on a vessel.
    (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.


Sec.  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 battery-powered 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.


Sec.  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


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

    (a) As a PVO, you must designate one or more Complaints Resolution 
Officials (CROs).
    (b) You must make a CRO available on each vessel and each terminal 
you serve. You must make CRO service available in the language(s) in 
which you make your

[[Page 2851]]

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.


Sec.  39.103  What actions do CROs take on complaints?

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


Sec.  39.105  How must PVOs respond to written complaints?

    (a) As a PVO, you must respond to written complaints received by 
any means (e.g., letter, fax, e-mail, electronic instant message) 
concerning matters covered by this part.
    (b) A passenger making a written complaint, must state whether he 
or she had contacted a CRO in the matter, provide the name of the CRO 
and the date of the contact, if available, and enclose any written 
response received from the CRO.
    (c) As a PVO, you are not required to respond to a complaint 
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.


Sec.  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.


Sec.  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`