Tuesday, 

July 6, 2010 

Part II 

Department of 

Transportation 

49 CFR Part 39 

Transportation for Individuals With 

Disabilities: Passenger Vessels; Final Rule 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
38878 Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 39 

[Docket OST–2007–26829] 

RIN 2105–AB87 

Transportation for Individuals With 

Disabilities: Passenger Vessels 

AGENCY: Office of the Secretary, 

Department of Transportation. 

ACTION: Final rule; request for 

comments. 

SUMMARY: The Department is issuing a 

new Americans with Disabilities Act 

(ADA) rule to ensure nondiscrimination 

on the basis of disability by passenger 

vessel operators (PVOs). This 

rulemaking concerns service and policy 

issues. Issues concerning physical 

accessibility standards will be 

addressed at a later time, in conjunction 

with proposed passenger vessel 

accessibility guidelines drafted by the 

United States Access Board. The 

Department is also seeking further 

comment on three issues, concerning 

emotional support animals, mobility 

aids, and the relationship of DOT and 

DOJ rules. 

DATES: This rule is effective November 

3, 2010. Comments should be received 

by October 4, 2010. 

ADDRESSES: You may submit comments 

(identified by the agency name and DOT 

Docket ID Number OST–2007–26829) by 

any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and follow 

the online instructions for submitting 

comments. 

• Mail: Docket Management Facility: 

U.S. Department of Transportation, 1200 

New Jersey Avenue, SE., West Building 

Ground Floor, Room W12–140, 

Washington, DC 20590–0001. 

• Hand Delivery or Courier: West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., between 

9 a.m. and 5 p.m. ET, Monday through 

Friday, except Federal holidays. 

• Fax: 202–493–2251. 

Instructions: You must include the 

agency name (Office of the Secretary, 

DOT) and Docket number (OST–2009–

) for this notice at the beginning of your 

comments. You should submit two 

copies of your comments if you submit 

them by mail or courier. Note that all 

comments received will be posted 

without change to http:// 

www.regulations.gov including any 

personal information provided and will 

be available to Internet users. You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (65 FR 

19477) or you may visit http:// 

DocketsInfo.dot.gov. 

Docket: For Internet access to the 

docket to read background documents 

and comments received, go to http:// 

www.regulations.gov. Background 

documents and comments received may 

also be viewed at the U.S. Department 

of Transportation, 1200 New Jersey 

Ave., SE., Docket Operations, M–30, 

West Building Ground Floor, Room 

W12–140, Washington, DC 20590, 

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

through Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Robert C. Ashby, Deputy Assistant 

General Counsel for Regulation and 

Enforcement, Department of 

Transportation, 1200 New Jersey 

Avenue, SE., Room W94–302, 

Washington, DC 20590. (202) 366–9310 

(voice); (202) 366–7687 (TDD); 

bob.ashby@dot.gov (e-mail). 

SUPPLEMENTARY INFORMATION: The 

Department of Transportation has 

issued rules concerning 

nondiscrimination on the basis of 

disability for almost every mode of 

passenger transportation, including 

public transportation (bus, subway, 

commuter rail), over-the-road buses, 

intercity rail, and air transportation. The 

only mode for which the Department 

has yet to issue rules is transportation 

by passenger vessels. With this final 

rule, the Department can begin to close 

this gap in coverage of transportation for 

individuals with disabilities. 

Background 

When the Department issued its first 

Americans with Disabilities Act (ADA) 

rules in 1991, we discussed the coverage 

of passenger vessels. The Department 

reserved action on passenger vessels in 

the regulatory text in the final rule, and 

made the following statements on the 

subject in the preamble (56 FR 45599– 

45560; September 6, 1991): 

Ferries and passenger vessels operated by 

public entities are covered by the ADA, and 

subject at this time to DOJ Title II 

requirements as well as § 37.5 of this Part. 

* * * We anticipate further rulemaking to 

create appropriate requirements for passenger 

vessels * * *. The reason for this action is 

that, at the present time, the Department 

lacks sufficient information to determine 

what are reasonable accessibility 

requirements for various kinds of passenger 

vessels. * * * The Department of 

Transportation anticipates working with the 

Access Board and DOJ on further rulemaking 

to define requirements for passenger vessels. 

* * * The Department does want to make 

clear its view that the ADA does cover 

passenger vessels, including ferries, 

excursion vessels, sightseeing vessels, 

floating restaurants, cruise ships, and others. 

Cruise ships are a particularly interesting 

example of vessels subject to ADA coverage. 

Cruise ships are a unique mode of 

transportation. Cruise ships are selfcontained floating communities. In addition 

to transporting passengers, cruise ships 

house, feed, and entertain passengers and 

thus take on aspects of public 

accommodations. Therefore cruise ships 

appear to be a hybrid of a transportation 

service and a public accommodation * * * 

In addition to being public 

accommodations, cruise ships clearly are 

within the scope of a ‘‘specified public 

transportation service.’’ The ADA prohibits 

discrimination in the full and equal 

enjoyment of specified public transportation 

services provided by a private entity that is 

primarily engaged in the business of 

transporting people and whose operations 

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

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

‘‘transportation by bus, rail, or any other 

conveyance (other than by aircraft) that 

provides the general public with general or 

special service (including charter service) on 

a regular and continuing basis.’’ 

Cruise ships easily meet the definition of 

‘‘specified public transportation.’’ Cruise 

ships are used almost exclusively for 

transporting passengers and no one doubts 

that their operations affect commerce. Cruise 

ships operate according to set schedules or 

for charter and their services are offered to 

the general public. Finally, despite some 

seasonal variations, their services are offered 

on a regular and continuing basis. 

Virtually all cruise ships serving U.S. ports 

are foreign-flag vessels. International law 

clearly allows the U.S. to exercise 

jurisdiction over foreign-flag vessels while 

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

obligations. A State has complete sovereignty 

over its internal waters, including ports. 

Therefore, once a commercial ship 

voluntarily enters a port, it becomes subject 

to the jurisdiction of the coastal State. In 

addition, a State may condition the entry of 

a foreign ship into its internal waters or ports 

on compliance with its laws and regulations. 

The United States thus appears to have 

jurisdiction to apply ADA requirements to 

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

ports. 

The U.S. Supreme Court affirmed the 

Department’s long-held view that the 

ADA covers passenger vessels, 

specifically including foreign-flag cruise 

ships. In Spector et al. v. Norwegian 

Cruise Lines, 545 U.S. 119 (2005), the 

Court held that cruise ships are ‘‘public 

accommodations’’ that provide 

‘‘specified public transportation’’ within 

the meaning of the ADA. The Court said 

that, while there may be some 

limitations on the coverage of the ADA 

to matters purely concerning the 

internal affairs of a foreign-flag vessel, 

matters concerning the ship operators’ 

policies and conditions relating to 

transportation of passengers with 

disabilities (e.g., higher fares or 

surcharges for disabled passengers, 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 38879 

waivers of medical liability, 

requirements for attendants) had 

nothing to do with a ship’s internal 

affairs. Such matters, then, are clearly 

subject to ADA jurisdiction. It is issues 

of this kind that are the focus of this 

final rule. 

The Access Board has been working 

for some time on drafting accessibility 

guidelines for passenger vessels. On 

November 26, 2004, the Access Board 

published for comment a notice of 

availability of draft guidelines for larger 

passenger vessels with a capacity of 

over 150 passengers or overnight 

accommodations for over 49 passengers. 

Since that time, the Access Board has 

been reviewing comments received and 

planning work on a Regulatory 

Assessment for vessel guidelines. On 

July 7, 2006, the Access Board issued a 

second notice of availability asking for 

comments on a revised draft of vessel 

guidelines. Following the review of 

comments on that notice, the Access 

Board, in cooperation with the 

Department of Transportation, would 

issue an NPRM and Regulatory 

Assessment concerning physical 

accessibility requirements for larger 

passenger vessels. As envisioned, the 

final rule resulting from such a future 

NPRM would ultimately be joined with 

a final rule resulting from this final rule 

in a single, comprehensive passenger 

vessel ADA rule. 

On November 29, 2004, the 

Department published an advance 

notice of proposed rulemaking 

(ANPRM) asking questions about the 

shape of future ADA requirements for 

passenger vessels (69 FR 69247). The 

Department received 43 comments to 

the ANPRM. Most of these comments 

concerned the Access Board’s draft 

guidelines and physical accessibility 

issues relating to existing and new 

vessels, and some of them concerned 

physical accessibility issues specific to 

very small vessels. The Department is 

retaining these comments and will 

consider them in context of the 

continuing work on the Access Board’s 

draft vessel guidelines and the future 

NPRM that would propose to 

incorporate those guidelines in DOT 

rules. 

The only comment on the ANPRM 

that concerned issues included in this 

NPRM was from the International 

Council of Cruise Lines (ICCL), a trade 

association for entities in the cruise 

industry. ICCL recommended that the 

rules exempt transfers of persons from 

larger vessels to tenders; recognize the 

flexibility of cabin configurations; 

exclude from coverage shore excursions 

provided by third-party-vendors, 

particularly in foreign countries; have 

eligibility criteria and direct threat 

provisions that allow operators to 

establish policies that will avoid safety 

risks; permit requirements for personal 

attendants; and permit limitations on 

the transportation of service animals. 

The Department addressed these 

comments in context of the individual 

sections of the proposed rule. 

The notice of proposed rulemaking 

(NPRM) for this rule was issued on 

January 23, 2007 (72 FR 2833). In 

response to the NPRM, hundreds of 

comments were received from disability 

advocacy groups, the regulated industry, 

other governmental agencies, and the 

general public. At the request of 

industry, the Department held a public 

meeting on April 8–9, 2008, where 

members of these groups attended to 

inform the Department of their views on 

the practical effect of the NPRM’s 

provisions. This final rule addresses the 

comments received in the docket and at 

the public meeting. 

Section-by-Section Analysis 

Section 39.1 What is the purpose of 

this Part? 

This section briefly states the 

nondiscrimination-related purposes of 

the rule and specifies that 

nondiscrimination requirements apply 

to operators of foreign-flag as well as 

U.S. vessels. 

Section 39.3 What do the terms in this 

rule mean? 

This section defines the terms used in 

this rule. Many of the definitions are 

based on parallel definitions in other 

disability nondiscrimination 

regulations, adapted to the passenger 

vessel context. This preamble 

discussion focuses on terms that are 

specific to the passenger vessel context. 

Other terms have the same meanings as 

they do in other DOT disability rules. 

Because this rule does not propose 

physical accessibility requirements for 

vessels, the definition of ‘‘accessible’’ 

will be fleshed out with proposed 

standards based on Access Board 

guidelines in a future rulemaking. The 

definitions of ‘‘auxiliary aids and 

services’’ and ‘‘direct threat’’ are drawn 

from Department of Justice regulations. 

‘‘Direct threat’’ concerns only threats to 

the health and safety of others. 

Something that may threaten only the 

health or safety of a passenger with a 

disability, himself or herself, by 

definition cannot be a direct threat. The 

definition of ‘‘direct threat’’ is consistent 

with the understanding of that term in 

DOT and DOJ regulations. In the 

preamble to its over-the-road bus ADA 

rulemaking, the Department provided a 

thorough discussion of this concept (63 

FR 51671–51674), which remains a good 

guide to the Department’s thinking on 

this issue. 

The definition of ‘‘disability’’ is taken 

from the existing ADA rule, 49 CFR Part 

37. The Department is well aware that 

the ADA Amendments Act of 2008 

altered the definition of disability. 

However, in its pending ADA Title II 

and Title III regulations, DOJ has not 

modified its existing definitions of this 

term, though it expects to do so In the 

future. The Department believes that it 

would be best to work on the regulatory 

expression of the amended definition in 

concert with DOJ, resulting in a single 

government-wide regulatory definition. 

Typically, in DOT transportation 

nondiscrimination practice (in contrast, 

for example, to employment 

nondiscrimination matters), the 

definition of ‘‘disability’’ has not been a 

major issue. In implementing this rule, 

the Department will be informed by the 

2008 legislation if any issues arise in 

which the changed language of the 

statute are relevant to the obligations of 

PVOs. 

The term ‘‘disability’’ means, with 

respect to an individual, a physical or 

mental impairment that substantially 

limits one or more of the major life 

activities of such individual; a record of 

such an impairment; or being regarded 

as having such an impairment. A 

commenter expressed concern that 

passengers may have many different 

kinds of disabilities and said that the 

proposed rule does not clearly define 

‘‘disability.’’ Another commenter stated 

that the definition of ‘‘disability’’ is 

unnecessarily confusing since it allows 

people who are ‘‘misclassified as 

disabled’’ to be considered disabled for 

the purposes of this rule. 

The definition of the term ‘‘disability’’ 

in this rulemaking is based on the ADA 

statutory definition of ‘‘disability,’’ and 

longstanding DOT and DOJ regulatory 

definitions. People who are ‘‘regarded 

as’’ having a disability, even if in fact 

they don’t, have always been a protected 

class under the ADA. It is certainly true 

that there are many kinds of disabilities, 

and the definition, as fitting in a civil 

rights mandate, is intentionally broad. 

The definition of ‘‘facilities’’ is also 

consistent with the definition of this 

term in other DOJ and DOT rules. 

Examples of facilities in the passenger 

vessel context include such things 

landside facilities and floating docks 

that a vessel operator owns, leases, or 

controls in the U.S. (including its 

territories, possessions, and 

commonwealths). Comments received 

in relation to the definition of facilities 

and terminals from the cruise line 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
38880 Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 

industry objected to applying this 

rulemaking to facilities outside the U.S. 

due to possible conflict with the laws of 

the host nation. As in the case of the Air 

Carrier Access Act, where the 

Department does not assert jurisdiction 

over airports in foreign countries, the 

Department does not in this rule attempt 

to cover port facilities abroad. A 

passenger vessel operator (PVO) would 

be viewed as controlling a facility, even 

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

owner, through a contract or other 

arrangement, delegated authority over 

use of the facility to the passenger vessel 

operator during those times in which 

the vessel was at the facility. 

The Department realizes that entities 

other than PVOs, such as municipalities 

or other private businesses, may own, 

lease, or control U.S. landside facilities 

that passenger vessels use. The 

obligations of these entities would be 

controlled by Titles II and III of the ADA 

and, in some cases, by section 504 of the 

Rehabilitation Act of 1973. The 

relationship envisioned between the 

facility owner/controller and the PVO is 

analogous to other situations in which 

entities subject to different disability 

access rules share responsibility (e.g., 

public entity landlord subject to Title II 

leases property to a private entity 

subject to Title III). 

The definition of ‘‘historic vessel’’ is 

also one that is likely to become more 

significant when future rulemakings 

include physical accessibility standards 

to Part 39. ‘‘New,’’ ‘‘existing,’’ and ‘‘used’’ 

passenger vessel are also terms that will 

be of greater importance once physical 

accessibility standards are in place. 

Because they are not necessary in this 

regulation, the Department has deleted 

these definitions. We anticipate 

proposing definitions of these and other 

terms relevant to the application of 

physical accessibility standards in a 

subsequent rulemaking related to 

Access Board proposals for passenger 

vessel guidelines. 

‘‘Operates’’ means the provision of 

transportation by any public or private 

entity on a passenger vessel. Moreover, 

the definition also includes the 

provision of transportation by another 

party having a contractual or other 

arrangement or relationship with the 

PVO involved. As in other parts of the 

Department’s accessibility rules, a party 

can contract out its functions, but 

cannot contract away its 

responsibilities. 

‘‘Passenger vessel’’ is meant to be a 

broadly encompassing term for any boat, 

ship, or other craft that is hired by 

members of the public or for other 

activities conducted as a part of the 

vessel operator’s normal operations 

(which could include promotional 

activities such as the use of a vessel by 

members of the public for which a fare 

is not charged or free ferry service). 

Boats or other craft that are rented or 

leased to consumers to be operated by 

the consumer (versus by the passenger 

vessel operator and its personnel) are 

not covered. 

One commenter recommended 

excluding vessels that support offshore 

oil and gas activities from this 

definition. Such vessels are chartered by 

a customer principally for transport of 

cargo. Other commenters recommended 

excluding from the rulemaking supply 

vessels, crew boats, all vessels below a 

certain size (e.g., 100 gross tons, space 

for 150 or 6 passengers) school training 

or sailing vessels, party fishing vessels, 

and research vessels carrying students if 

the ‘‘mission’’ of the vessel would be 

compromised. 

It appears that many of these 

comments were based on the premise 

that this rule will require significant 

physical changes to existing vessels. It 

will not. This rule addresses policies 

and practices of PVOs, not the design or 

construction of their vessels. With 

respect to PVO policies that would, for 

example, exclude an individual because 

he is blind, or charge extra fees because 

a passenger uses a wheelchair or other 

assistive device, the nondiscrimination 

principles of the ADA do not apply any 

differently because of the size or 

function of a vessel. As it develops its 

vessel accessibility guidelines, the 

Access Board is taking vessel size 

matters into account, and in future 

rulemaking the Department anticipates 

harmonizing its standards with the 

Access Board guidelines, including size 

limitations the Access Board rule may 

adopt. 

The Passenger Vessel Association 

commented that, where a vessel owner 

or operator is not paid for carrying the 

passengers, there should be no 

additional requirements placed on the 

owner by the rule. The Department 

disagrees. The rights of individuals with 

disabilities are protected under the ADA 

whether or not the individual is a 

paying customer. There is no basis 

under the statute for treating individuals 

differently based on their status as 

paying or non-paying passengers. 

‘‘Passenger vessel operator’’ is a term 

that includes both owners and operators 

of a passenger vessel. A PVO may be 

either a public or a private entity. 

Sometimes, ownership of vessels can be 

complex, with two or more parties 

involved, with yet another party 

responsible for the day-to-day operation 

of the vessel. In such situations, all the 

parties involved would be jointly and 

severally responsible for compliance 

with these rules. 

In a change from the NPRM, the term 

PVO includes only private entities 

primarily engaged in the business of 

transporting people. The Department of 

Justice (DOJ) has authority over public 

accommodations that operate vessels 

and are not primarily engaged in the 

business of transporting people. DOJ’s 

regulations applicable to public 

accommodations apply to ensure 

nondiscrimination by such vessel 

operators. Persons with complaints or 

concerns about discrimination on the 

basis of disability by vessel operators 

who are private entities not primarily 

engaged in the business of transporting 

people, or questions about how DOJ’s 

regulations apply to such operators and 

vessels, should contact DOJ. For these 

reasons, it has been determined that it 

is not necessary to include provisions in 

this final rule concerning vessels 

operated by private entities not 

primarily engaged in the business of 

transporting people. 

The basic distinction is that a vessel 

operator whose vessel takes passengers 

from Point A to Point B (e.g., a cruise 

ship that sails from Miami to one or 

more Caribbean islands, a private ferry 

boat between two points on either side 

of a river, a water taxi between two 

points in an urban area) is most likely 

a private entity primarily in the 

business of transporting people. A 

vessel operator who departs from Point 

A, takes passengers on a recreational 

trip, and returns passengers to Point A 

without ever providing for 

disembarkation at a Point B (e.g., a 

dinner or harbor cruise, a fishing 

charter) is most likely a private entity 

not primarily engaged in the business of 

transporting people. In cases where it is 

not clear whether a vessel operator is or 

is not primarily engaged in the business 

of transporting people, the Department 

of Transportation, in consultation with 

DOJ, will determine into which category 

the operator falls. There may be certain 

situations in which a passenger vessel’s 

operations can simultaneously be 

subject to both DOT and DOJ rules. 

The terms, ‘‘individual with a 

disability’’ and ‘‘qualified individual 

with a disability,’’ have similar 

meanings for purposes of the rule. There 

could be situations in which a qualified 

individual with a disability may not 

actually be a passenger, such as in the 

case of an individual choosing to assist 

a person with a disability in ways that 

do not involve actually accompanying 

the person on a voyage (e.g., assistance 

with buying tickets, assistance in 

moving through a terminal, advocating 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 38881 

for the person with the PVO concerning 

policies affecting the person’s travel). 

‘‘Specified public transportation’’ 

should not be read under this Part to 

include promotional rides on vessels for 

the purpose of informing a vessel 

purchase. Nor does it include operations 

of vessels by private entities not 

primarily engaged in the business of 

transporting people. 

‘‘Terminal’’ refers to property or 

facilities adjacent to the means of 

boarding a vessel that passengers use to 

get to the vessel. A terminal, in this 

sense, can be a large complex, a 

building, or a very simple facility. 

Importantly, terminals are covered 

under Part 39 only to the extent that the 

PVO owns or leases the terminal or 

exercises control over its selection, 

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

PVO selects site for construction of new 

facility; PVO has choice of docking at 

existing accessible or inaccessible 

facility). 

The definition of ‘‘wheelchair’’ is 

taken from the Department’s ADA rule 

for surface transportation modes, 49 

CFR part 37. The only difference is that 

the part 39 definition does not include 

a sentence referring to the ‘‘common 

wheelchair’’ term. This term was taken 

from Access Board guidelines relating to 

the design and construction of surface 

transportation vehicles, and it is not 

clear that the term has a relevant 

application in the passenger vessel 

context. Moreover, the inclusion of the 

term in part 37 has been problematic, in 

that it has led to unanticipated 

operational applications of what was 

intended to be a design standard. 

Section 39.5 To whom do the 

provisions of this Part apply? 

The Department is applying the 

provisions of this Part to all passenger 

vessels, regardless of size. There are 

three major exceptions to this general 

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

vessels would be covered, coverage of 

foreign-flag vessels would be limited to 

those that pick up or discharge 

passengers in the U.S. For example, 

suppose a foreign-flag cruise PVO 

operates two ships. One of them sails 

only among ports in Europe. Another 

picks up passengers in Miami and 

cruises to several Caribbean ports. The 

latter would be covered and the former 

would not. Several commenters 

recommended for the rule to apply to all 

domestic and foreign cruise ships, 

including river cruise ships, regardless 

of whether the ships picks up 

passengers in the U.S. The Cruise Lines 

International Association, Inc. 

disagreed, and commented that the rules 

should not cover foreign flag cruise 

ships that do not embark, disembark, or 

stop at any U.S. ports because Congress 

has not made a ‘‘clear statement’’ of 

intent that the ADA apply 

extraterritorially. This rule covers only 

those vessels that pick up or discharge 

passengers in the U.S. 

The second exception will address 

vessel accessibility standards. To this 

end, this rule reserves paragraph (c) to 

state the scope of the applicability of 

these standards in the future. As noted 

above, some comments urged exempting 

small vessels from the rules due to the 

difficulty in making physical 

modifications to such vessels. The 

Department notes that draft Access 

Board vessel guidelines would limit 

their application to vessels permitted to 

carry over 150 passengers or over 49 

overnight passenger capacity categories, 

as well as tenders with a capacity of 60 

or more and all ferries. The Department 

would follow the Access Board’s final 

guidelines, when they are issued, with 

respect to coverage. 

While exemptions or scoping 

provisions based on vessel size might be 

appropriate for accessibility standards, 

the Department believes that there is no 

basis by which to justify an exemption 

from the nondiscrimination provisions 

not related to such standards. The 

provisions of this rule are do not require 

physical changes to a vessel, but rather 

concern an operator’s policies to ensure 

treatment for disabled passengers that is 

consistent with the intent of the ADA. 

The third exception, as noted above, 

is that the rule will apply only to private 

entities primarily engaged in the 

business of transporting people, and not 

to private entities not primarily engaged 

in the business of transporting people. 

This change eliminates from coverage 

the vast majority of small private 

entities to which the NPRM would have 

applied. 

Section 39.7 What other authorities 

concerning nondiscrimination on the 

basis of disability apply to owners and 

operators of passenger vessels? 

This section simply points out that 

recipients of Federal financial assistance 

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

addition to part 39, subject to section 

504 of the Rehabilitation Act and DOT 

implementing rules. Department of 

Justice (DOJ) ADA regulations, as 

applicable, also cover PVOs. 

Section 39.9 What may a PVO of a 

foreign-flag vessel do if it believes that 

a provision of a foreign nation’s law 

prohibits compliance with a provision of 

this Part? 

Section 39.9, which parallels language 

in the Department’s Air Carrier Access 

Act (ACAA) rules for foreign carriers, 

provides a waiver mechanism for 

situations in which a PVO for a foreignflag vessel believes that a binding legal 

requirement of a foreign nation (or of an 

international agreement) precludes 

compliance with a requirement of Part 

39. This provision concerns binding 

legal requirements, not guidance or 

codes of suggested practices. It concerns 

situations in which such a binding legal 

requirement actually precludes 

compliance with a Part 39 provision 

(e.g., Part 39 says ‘‘You must do X,’’ 

while a binding foreign legal 

requirement says ‘‘You must not do X’’), 

as opposed to a situation where foreign 

law authorizes a practice that differs 

from a Part 39 requirement (e.g., Part 39 

says ‘‘You must do Y,’’ while a foreign 

law says ‘‘You may do Z’’). In a situation 

where the Department grants a waiver, 

the Department would look to the PVO 

for a reasonable alternative means of 

achieving the purpose of the waived 

provision. 

To avoid placing PVOs in a situation 

in which they potentially would be 

required to comply with contradictory 

legal requirements, this rule provides 

PVOs 90 days from the publication of 

the final rule to file a waiver request. If 

the PVO files a waiver request meeting 

the requirements of this section within 

that period, it could continue to 

implement policies that it believes are 

consistent with the foreign law in 

question pending the Department’s 

decision on the waiver request. 

A commenter suggested that an 

international governing body could be 

set up to mediate issues of conflict 

between foreign law and U.S. law. The 

same commenter recommended that 

such a governing body could also 

evaluate a PVO’s alternative means of 

compliance under the standard of ‘‘best 

interest of the person with a disability.’’ 

At this time, the Department does not 

believe that the establishment of 

procedures other than those proposed in 

the NPRM is appropriate or necessary. 

These decisions are properly made by 

the Department as part of its ADA 

responsibilities. The parallel provisions 

under the Air Carrier Access Act have 

worked well with respect to 

international air carriers. 

Proposed section 39.11, concerning 

equivalent facilitation, has been 

reserved since it relates mainly to future 

standards based on the Access Board’s 

vessel design and construction 

guidelines, which have not yet been 

formally proposed or adopted by the 

Access Board. The Department 

anticipates proposing such a provision 

in a subsequent NPRM to adopt Access 

Board guidelines. 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
38882 Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 

Section 39.13 When must PVOs 

comply with the provisions of this Part? 

As a general matter, PVOs would have 

to begin to comply with the provisions 

of this rule as soon as the rule becomes 

effective. There is no evident reason 

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

pertaining to denials of transportation 

on the basis of disability, extra or 

special charges, attendants, advance 

notice, waivers of liability, etc. Indeed, 

a significant number of PVO 

commenters said that their practices and 

policies are already consistent with the 

requirements the Department is making 

part of this rule. 

Comments were received urging a 

range of options from requiring 

immediate compliance with the rule to 

delaying the rule until it can be issued 

with the Access Board’s final standards 

and so that training can be conducted 

for implementing the rule. As the final 

rule does not include training 

requirements and no vessel 

modifications are required as a result of 

this rule, the Department believes that 

simply defining nondiscrimination 

policies under the ADA does not require 

any lead time for implementation. 

Section 39.21 What is the general 

nondiscrimination requirement of this 

Part? 

The provisions of this section are 

parallel to the general 

nondiscrimination requirements in the 

Department’s other disability-related 

rules. We call attention particularly to 

paragraph (b), which would require 

reasonable modification of PVOs’ 

otherwise acceptable general policies 

where doing so is necessary to 

accommodate the needs of a particular 

individual or category of individuals 

with a disability. Such modification is 

required unless it would require a 

fundamental alteration in the nature of 

the PVO’s services, facilities, etc. The 

final rule modifies the NPRM’s language 

to reflect distinctions between the 

reasonable modification obligations of 

public and private entities, consistent 

with DOJ rules on the subject. 

A few commenters stated that the 

language relating to ‘‘reasonable 

modifications’’ was not congruent with 

other Departmental ADA rulemakings 

and that the requirement to make 

reasonable modifications exceeds the 

Department’s authority under the ADA. 

‘‘Reasonable modifications’’ is a central 

idea of disability law, occurring in many 

applications of section 504 of the 

Rehabilitation Act. A similar provision 

was adopted in a rulemaking concerning 

the Air Carrier Access Act, and it has 

caused no problems of which we are 

aware. Department of Justice (DOJ) ADA 

rules have long included the concept. 

While the Department’s surface 

transportation ADA rule (49 CFR part 

37) does not presently include this 

language, the Department, in a pending 

rulemaking concerning part 37, has 

proposed to add it. The Department 

believes it is appropriate for a PVO to 

modify policies so that accessible 

service is actually made available to 

passengers, absent a alteration. 

Commenters were unable to provide any 

examples of how doing so would be 

inimical to passenger vessel operations 

or safety. 

Section 39.23 What are the 

requirements concerning contractors to 

owners and operators of passenger 

vessels? 

As noted above, contractors and other 

persons whom the PVO uses to provide 

services to passengers ‘‘stand in the 

shoes’’ of the PVO with respect to the 

requirements of this rule. The PVO must 

ensure, through provisions in the 

contracts or other agreements with such 

third parties, that the third parties 

comply with applicable requirements. 

Commenters were concerned with the 

speed at which contracts must be 

updated to reflect contractors’ duties on 

behalf of a PVO with respect to the 

ADA. All contracts must be updated 

within one year from the effective date 

of this rule or the contract anniversary 

date, whichever one comes sooner. The 

Department believes this amount of time 

is sufficient for compliance. 

Another commenter suggested 

excluding contractors outside of the 

U.S. from the requirements of the rule. 

This final rule does not apply to 

contractors who work with PVOs 

outside of the U.S. However, PVOs are 

encouraged to voluntarily contract for 

compliance with the ADA to the 

maximum degree that foreign/ 

international laws will allow. 

In reference to paragraph (b), the same 

commenter suggested that the 

requirement to include ‘‘assurance of 

compliance’’ language in contracts 

should not be applied to contracts 

between cruise lines and their U.S.- 

based contractors. The commenter 

expressed that modifying contracts to 

add this required language would cause 

an ‘‘undue burden’’ on cruise lines and 

would be unnecessary due to existing 

ADA requirements applicable to U.S.- 

based contractors. There is no showing 

in any of the comments that the task of 

making such a modification to the 

contract would be a significant barrier at 

all, let alone an ‘‘undue burden.’’ If, as 

the commenter suggests, the contractors 

are already in compliance with ADA 

obligations, the burden on them would 

be negligible. 

Another commenter questioned 

whether paragraph (b) implicitly 

requires the creation of a written 

contract where the PVO and contractor 

have been operating without such a 

contract. There is no mandate for a 

written contract, though good business 

practices often involve written 

contracts. However, the absence of a 

written contract does not excuse 

noncompliance by a PVO resulting from 

the action of a third party acting on its 

behalf. The Department does not need to 

receive copies of written agreements 

between a PVO and a contractor. 

Section 39.25 May PVOs refuse to 

provide transportation or use of a 

passenger vessel on the basis of 

disability? 

The Department views any policy or 

action prohibiting a person with a 

disability from being transported on or 

otherwise using a passenger vessel as 

discriminatory on its face. If a PVO says 

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

are a person with a disability, therefore 

stay off my vessel,’’ the PVO would 

violate this rule. 

The Department recognizes that some 

disabilities may make other passengers 

uncomfortable. That is not a justifiable 

reason to deny access to the vessel to 

persons with these disabilities (see 

paragraph (b)). Only if there is a genuine 

safety issue, meeting the stringent 

criteria outlined in section 39.27, would 

the PVO be justified in excluding a 

person because the person has a 

disability. Even in that case, the PVO 

would have to provide a written or email explanation to the person within 

10 days of the denial (paragraph (c)). 

Two commenters indicated that 

historic vessels may not be able to meet 

the requirements of this section. 

Another commenter inquired as to 

whether the section allows the PVO to 

deny a ‘‘wheelchair-bound’’ passenger 

access to a second deck where the deck 

is only accessible by stairs, or from 

going to a first deck dining space when 

there is no remaining accessible space 

in the dining room. The Department 

recognizes that, particularly for vessels 

built before the adoption of physical 

accessibility standards, some vessels 

will not enable some persons with 

certain disabilities to travel on or to 

obtain some services aboard the vessels. 

For example, an older vessel might not 

have any overnight cabins of a size that 

could accommodate a person using a 

power wheelchair, or might have a 

dining area that is on a deck that can be 

accessed only by using steps. The 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 38883 

Department would not, in such a 

situation, regard a PVO’s statement to a 

passenger about existing physical 

barriers as equivalent to a policy 

denying transportation on or use of the 

vessel on the basis of disability. 

Another commenter suggested using a 

‘‘strict scrutiny’’ standard for 

determining whether a vessel’s 

explanation for denying access is 

reasonable. The ‘‘strict scrutiny’’ legal 

standard is used for assessing 

constitutional law issues, and it is not 

suitable for this situation. 

Many of the comments regarding this 

section ultimately addressed vessel 

construction and the difficulty involved 

in handling numerous passengers with 

mobility aids. This rulemaking imposes 

no duty on PVOs to make alterations to 

their vessels to accommodate disabled 

passengers, beyond existing ADA 

requirements for Title II (program 

accessibility) or Title III (readily 

achievable barrier removal) entities. 

As was pointed out by commenters in 

the public meeting, passenger vessels 

operate a customer service oriented 

business that necessitates 

accommodating passenger requests 

whenever possible. However, this rule 

does not call on PVOs to do the 

physically impossible. For instance, 

suppose a vessel has entries/corridors 

that are 30 inches wide and a passenger 

uses a mobility aid that is 36 inches 

wide. The passenger is not able to be 

physically accommodated through those 

corridors using this device and the PVO 

would not be in violation of this rule. 

(Of course, if the passenger chose to use 

an alternative mobility device that could 

fit the space, the passenger would have 

to be provided access using the 

alternative device.) 

Section 39.27 Can a PVO take action 

to deny transportation or restrict 

services to a passenger with a disability 

based on safety concerns? 

This section states that a PVO can 

deny transportation or restrict services 

to a person with a disability when 

necessitated by legitimate safety 

requirements. Legitimate safety 

requirements cannot be based on mere 

speculation, stereotypes, or 

generalizations about individuals with 

disabilities. They can be based only on 

actual, demonstrable safety risks. The 

rule would also permit a PVO to deny 

or restrict transportation of a passenger 

with a disability in the event that the 

passenger posed a direct threat to 

others. While there is no recordkeeping 

requirement in the rule, a PVO that 

claims legitimate safety requirements as 

the basis for any restriction on a 

passenger with a disability should be 

prepared to justify the actual safety 

basis for its restriction. This would be 

an important issue in the review of a 

complaint by the cognizant Federal 

agency. 

Section 39.29 May PVOs limit the 

numbers of passengers with a disability 

on a passenger vessel? 

The Department views any policy 

limiting the number of passengers with 

a disability on a vessel as discriminatory 

on its face. However, the cruise industry 

and several PVOs commented that 

limiting the number of passengers with 

mobility aids might be necessary based 

on what a vessel can accommodate 

either physically or with current staff 

levels. The Department understands 

these comments but believes it is 

necessary to differentiate between 

disabled individuals with mobility 

impairments as opposed to persons with 

other disabilities such as hearing or 

vision impairments. PVOs do not have 

any need to limit the number of 

disabled individuals without a mobility 

impairment. 

However, the Department does 

recognize that vessel weight and 

stability requirements may necessarily 

limit the number of disabled passengers 

requiring wheelchairs or other powered 

mobility devices that can safely be 

physically accommodated on board at 

any one time. For example, if there are 

already two individuals on board the 

vessel using power wheel chairs, and 

accommodating a third such individual 

would create weight or stability issues 

that would threaten the safety of the 

vessel and persons aboard it, the 

Captain could deny transportation to the 

third individual on the basis of a 

legitimate safety requirement. The 

Department anticipates that this issue 

would arise only on relatively small 

vessels (e.g., a small water taxi), not on 

larger vessels (e.g., a cruise ship, the 

Staten Island ferry). 

The Department also recognizes that, 

on some smaller vessels, the physical 

limitations of the vessel may impose 

limits on the number of wheelchairs or 

other mobility devices that can 

physically fit. This provision is not 

intended to require, for example, that 10 

wheelchairs must be accommodated on 

a vessel where there is physical space 

for only four. 

Section 39.31 May PVOs limit access 

to transportation on or use of a vessel 

on the basis that a passenger has a 

communicable disease? 

Section 39.33 May PVOs require a 

passenger with a disability to provide a 

medical certificate? 

These related provisions are intended 

to limit PVOs’ discretion to impose 

requirements or restrictions on 

passengers on medical grounds. Most 

disabilities are not medical conditions: 

A person is not ill because he or she 

cannot see, hear, or walk, and applying 

a medical model to many disabilities is 

inappropriate. On the other hand, 

people with some communicable 

diseases may have a disability as the 

result of their disease and can pose 

health threats to others on board the 

vessel. 

With respect to communicable 

diseases, the PVO cannot deny or 

restrict transportation on or use of a 

passenger vessel on the basis that the 

passenger has a communicable disease, 

unless the PVO acts (1) on the basis of 

a determination by a public health 

authority or (2) the PVO is able to make 

a two-pronged determination. One 

prong is the severity of the health 

consequences of a disease; the other is 

whether the disease can readily be 

communicated by casual contact. Only 

if a disease has both severe 

consequences to the health of other 

persons and is readily communicable by 

casual contact could a PVO legitimately 

deny or restrict transportation. 

For example, HIV/AIDS has severe 

health consequences, but is not readily 

communicable by casual contact. The 

common cold is readily communicable 

by casual contact but does not have 

severe health consequences. 

Consequently, having a cold or AIDS 

would not be a basis on which a PVO 

could limit a person’s transportation on 

or use of a vessel. Probably the best 

recent example of a disease that meets 

both criteria is Severe Acute Respiratory 

Syndrome (SARS), and a readily 

human-to-human transmissible flu 

pandemic with severe effects on persons 

contracting the disease or an outbreak of 

norovirus would also qualify. 

It should be noted that there could be 

some circumstances in which the two 

criteria mentioned in this section could 

interact. For example, a public health 

authority could issue an alert or 

recommendation concerning the travel 

by people with a particular disease, but 

not make a determination that such 

persons could not travel at all. In these 

circumstances, a PVO could still restrict 

travel by persons with the disease if it 

met both the casual contact 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
38884 Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 

transmission and severe health 

consequences prongs of the regulatory 

test in this section. 

It is important that, in addressing 

communicable disease issues, PVOs act 

in a nondiscriminatory way. Policies for 

excluding passengers on the basis of 

communicable disease or illness must 

not be exercised to exclude disabled 

passengers disproportionately. For 

example, if only deaf individuals with 

norovirus are denied boarding, while 

hearing passengers with the same 

condition are allowed to board, there 

would be a violation of this rule. 

In any case in which a medical 

certificate may be required or a 

limitation on a passenger’s travel be 

imposed because of a communicable 

disease, the limitation would have to be 

the minimum needed to deal with the 

medical issue involved. For example, 

the PVO would not be authorized to 

deny transportation to an individual if 

a less drastic alternative, such as the 

passenger’s use of medical measures 

that would reduce the likelihood of the 

transmission of an illness, is available. 

If a PVO refuses transportation to a 

passenger with a disability on grounds 

related to a communicable disease or 

other medical condition, the PVO must 

permit the passenger to travel or use the 

vessel (or a comparable vessel for a 

comparable trip) at a later available date 

within one year at the same price as the 

original trip or, at the passenger’s 

discretion, provide a refund. If there is 

not an available date for the passenger 

to be rebooked within one year, a refund 

would have to be provided. 

Section 39.31 would prohibit a PVO 

from requiring a medical certificate in 

any situation other than the 

communicable disease situation 

discussed in section 39.31. This 

represents a change from the NPRM, in 

which the Department proposed to 

permit medical certificates in 

circumstances such as the use of 

personal oxygen supplies or a 

determination by vessel personnel that 

an individual could not travel 

successfully without requiring 

extraordinary medical assistance. The 

Department believes that, in the 

passenger vessel context (as distinct 

from airline service, on which these 

proposals were modeled), the risks that 

these proposals were intended to 

address are much less probable, and that 

imposing medical certificate 

requirements on passengers are 

consequently not justified. 

Two commenters objected to allowing 

the PVO to require medical certification 

from a disabled individual under any 

circumstance. Other commenters were 

in favor of requiring medical 

documentation under all circumstances. 

Another commenter suggested allowing 

PVOs to restrict the number of 

passengers with disabilities that are at a 

very high risk of requiring emergency 

and/or extensive medical care during 

the course of the voyage. As noted 

above, the Department believes that 

provisions of this kind are unnecessary 

and could lead to unfair exclusions or 

restrictions for passengers. We therefore 

did not include such provisions in the 

final rule. 

Section 39.35 May PVOs require a 

passenger with a disability to provide 

advance notice that he or she is 

traveling on or using a passenger vessel 

when no special services are sought? 

Section 39.37 May PVOs require a 

passenger with a disability to provide 

advance notice in order to obtain 

particular auxiliary aids and services or 

to arrange group travel? 

These related sections make clear that 

it is never appropriate for a PVO to 

require a person to provide advance 

notice simply that he or she is planning 

to travel, just because he or she has a 

disability. The PVO’s nondiscriminatory 

policies and practices should be in 

place, regardless. On the other hand, 

there may be specific circumstances in 

which provision of advance notice is 

needed. These include to groups of 10 

or more passengers with disabilities 

traveling together and the provision of 

a particular auxiliary aid or service (e.g., 

a sign language interpreter). Numerous 

comments were received on these 

provisions. The main thrust of these 

comments was that PVOs need to know 

what sort of disabilities their passengers 

have in order to adequately plan to 

accommodate them from both a safety 

perspective and to provide them the 

best experience possible. The 

Department is sympathetic to this 

position and seeks to balance the right 

of privacy of the passengers with the 

need of PVOs to plan to accommodate 

and provide services to passengers. 

Passengers with a disability are not 

required to identify themselves as 

disabled when they are seeking no 

special privileges or services or 

auxiliary aids or services. PVOs can 

legitimately suggest that passengers 

with disabilities voluntarily selfdisclose needs for special privileges or 

services, and it may be prudent for 

passengers to do so in order to avoid 

confusion. 

However, with respect to groups of 

passengers with disabilities traveling 

together, a passenger may be required to 

identify that need to the PVO at the time 

of reservation. Likewise, a passenger 

seeking a particular auxiliary aid or 

service may be required to provide 

advance notice. PVOs’ reservation and 

information systems must ensure that 

when passengers provide this notice, 

the information is transmitted clearly 

and on time to persons who need to 

provide the services involved. PVOs 

should consider soliciting information 

regarding the need for special assistance 

from all persons making a reservation. 

Section 39.39 How do PVOs ensure 

that passengers with disabilities are able 

to use accessible cabins? 

The Department anticipates that the 

forthcoming Access Board guidelines 

will address the scoping and 

dimensions of accessible cabins on new 

or altered vessels. While this rule 

consequently does not require vessels 

with overnight accommodations to have 

accessible cabins, we recognize that 

cabins identified by PVOs as accessible 

do exist on some vessels. This section 

concerns how PVOs would make sure 

that passengers with disabilities actually 

are able to get those accessible cabins. 

The Department recognizes that nondisabled passengers, understanding that 

accessible cabins are somewhat more 

roomy than other cabins in the same 

class of service, may sometimes seek to 

reserve those cabins, making them 

unavailable to passengers with 

disabilities. 

The NPRM proposed a system in 

which a passenger requesting an 

accessible cabin would be required, at 

the PVO’s request, to present 

documentation of the physical 

condition that necessitates use of an 

accessible cabin, at which point their 

reservations would trump even earlier 

reservations for an accessible cabin 

made by non-disabled passengers, 

though no passengers would ever be 

‘‘bumped’’ from the voyage as a result. 

Some commenters objected to having to 

provide medical documentation. Others 

said that passengers with disabilities 

should be able to book an accessible 

cabin up to the day of sailing, while 

other commenters stated that 

reservations for accessible cabins should 

be made within a set time frame (i.e., 72 

hours) before departure. 

In response to comments, the 

Department is deleting the proposed 

requirement that passengers provide 

documentation of their disability and 

revising the reservation requirements. 

Instead, the final rule includes what we 

believe is a simpler system, in which 

accessible cabins must be withheld from 

reservation until all cabins in that class 

of service have been reserved. If a 

passenger with a disability requests a 

remaining accessible cabin, then the 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 38885 

passenger with a disability gets that 

cabin. However, once all the other, nonaccessible cabins have been booked, the 

PVO may, if it chooses, book the cabins 

for non-disabled passengers. 

While the final rule does not require 

or permit medical documentation for 

persons reserving accessible cabins 

because they have a disability, PVOs 

have to ask persons seeking to reserve 

such a cabin whether they have a 

disability that requires use of the 

accessibility facilities provided in the 

cabin. In addition, PVOs may require a 

written attestation from the passenger 

that her or she needs the accessible 

features provided in the cabin. These 

provisions are modeled on an approach 

that is sometimes used concerning 

reserving accessible seating sports 

stadiums. PVOs must also investigate 

the potential misuse of accessible cabins 

and can take action against abusers (e.g., 

a PVO may deny transportation to a 

non-disabled individual who books an 

accessible cabin on the basis of a 

misrepresentation that the individual 

has a disability). 

The Department recognizes that some 

existing vessels may not have accessible 

cabins in all classes of service. PVOs, 

however, cannot properly impose costs 

on disabled passengers because vessels 

lack accessible cabins in some classes of 

service. If a passenger with a disability 

wants to travel in a less costly class of 

service, rather than a more expensive 

class, but the PVO has chosen to make 

adequate numbers of accessible cabins 

available only in more other expensive 

classes of service, the PVO must make 

accessible cabins available to passengers 

with disabilities at no more than the 

cost of the class of service the passenger 

requests. Under a nondiscrimination 

rule, disabled passengers, like all other 

passengers, should be able to purchase 

accommodations they can use at a price 

they are willing to pay. 

Section 39.41 May a passenger with a 

disability be required to travel with 

another person? 

The Department regards requiring a 

passenger with a disability to travel 

with another person, just because that 

person has a disability, as 

discriminatory on its face. Such a 

requirement is not only an affront to the 

independence and dignity of the 

passenger, but may sometimes make 

travel cost-prohibitive. In the NPRM, the 

Department proposed allowing PVOs to 

require a personal or safety assistant in 

some circumstances. This proposal was 

based on a parallel section of the ACAA 

rule. However, in the specific situation 

of passenger vessel transportation 

(which differs from air travel in a 

number of important respects), the 

Department believes that allowing PVOs 

to require an assistant could lead to 

abuse, and is not likely to be necessary 

in any event. The rule clearly states that 

crew members are not required to assist 

passengers with personal functions like 

eating, dressing, or toileting. Passengers 

who need assistance with these 

functions will therefore be aware that 

they cannot expect crew members to 

perform these functions and, 

consequently, will choose to travel with 

a companion if they need to. Vessel 

personnel are likewise trained to 

perform safety functions for all 

passengers. 

One commenter asked if the PVO is 

allowed to require a personal caretaker 

for each disabled person where a group 

of passengers with a disability intend to 

bring only one caretaker for the group. 

Given that the rule does not permit 

requirements to travel with an attendant 

at all, the PVO could not impose such 

a requirement. Another commenter 

stated that this provision of the rule 

places all responsibility for care on the 

PVO regardless of the credibility of the 

passenger’s claim of independence. 

Again, vessel personnel do not have 

personal care obligations with respect to 

passengers with disabilities. We do not 

believe that a passenger with a disability 

who cannot eat without assistance is 

likely to embark on a lengthy voyage 

without someone to help with eating. 

Section 39.43 May PVOs impose 

special charges on passengers with a 

disability for providing services required 

by this rule? 

Price discrimination is forbidden. 

PVOs may not charge higher fares to 

passengers with disabilities than to 

other passengers. PVOs cannot impose 

surcharges on passengers with 

disabilities, or any sort of extra or 

special charges for facilities, equipment, 

accommodations, or services that must 

be provided to passengers because they 

have a disability. This prohibition 

would apply not only to formal charges 

made by the PVO itself, but to informal 

charges that PVO personnel might seek 

to impose or pressure passengers with a 

disability to pay. For example, if a 

vessel cannot be boarded by a 

wheelchair user without assistance (e.g., 

because the boarding ramp slope is too 

steep), it would not be appropriate for 

vessel personnel who provide boarding 

assistance to ask, pressure, or imply that 

the wheelchair users should provide a 

tip for the assistance. 

One of the important implications of 

the prohibition on price discrimination 

concerns situations in which an 

accommodation for a person with a 

disability is available only in a more 

expensive type or class of service than 

the passenger requests. The most 

important application of this principle 

concerns reservations for accessible 

cabins, which are governed by section 

39.39. However, the same principle 

would apply to other services or 

accommodations on board some ships 

as well. The only comment regarding 

this section stated that passengers 

requiring an accessible cabin should be 

provided the same pricing options 

available to passengers who do not 

require an accessible cabin. This section 

as written ensures this to be the case. 

Section 39.45 May PVOs impose 

restrictions on passengers with a 

disability that they do not impose on 

other passengers? 

Section 39.47 May PVOs require 

passengers with a disability to sign 

waivers or releases? 

These related sections (i.e., sections 

39.45 and 39.47) would forbid 

restrictions on passengers with a 

disability that are not imposed on other 

passengers, including requirements to 

sign waivers or releases either for 

themselves or their assistive devices. 

The kinds of restrictions these sections 

address are restrictions created by PVO 

policy. The Department is aware that, 

particularly pending the adoption of 

passenger vessel physical accessibility 

standards, portions of existing vessels 

may well be inaccessible to some 

passengers with a disability. 

Inaccessibility of this kind would not 

violate these sections, but an 

administrative rule declaring certain 

portions of a vessel off limits to a 

passenger with a disability would, if 

that rule did not apply equally to all 

passengers. Likewise, waivers of 

liability or releases not required of all 

passengers cannot be required of 

passengers with a disability (including, 

but not limited to, waivers or releases 

concerning mobility devices). 

Section 39.51 What is the general 

requirement for PVOs’ provision of 

auxiliary aids and services to 

passengers? 

This section requires PVOs to 

effectively communicate with 

passengers with disabilities, through the 

use of auxiliary aids or services where 

needed. This obligation includes 

effectively conveying information so 

that both the passenger and the PVO can 

be understood and understand what is 

being communicated. The language of 

the final rule distinguishes between the 

somewhat different obligations of public 

and private entities with regard to the 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
38886 Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 

provision of auxiliary aids and services, 

and states the fundamental alteration 

and undue burden exception to these 

requirements. PVOs, not individuals 

with disabilities, have the responsibility 

to provide needed auxiliary aids and 

services. 

‘‘Undue burden’’ is one of the 

fundamental concepts in disability law, 

applying in a variety of contexts. The 

basic definition of what constitutes an 

undue burden is stated in the 

Department of Justice Title III rule, 28 

CFR 36.104, as being something that 

involves significant difficulty or 

expense. In determining whether an 

action would result in an undue burden, 

the factors that the DOJ definition lists, 

adapted to the passenger vessel context, 

include 

(1) The nature and cost of the action 

needed to comply with Part 39 requirements; 

(2) The overall financial resources of the 

PVO involved, the number of persons 

employed by the PVO; the effect on expenses 

and resources; legitimate safety requirements 

that are necessary for safe operation of the 

vessel; or the impact otherwise of the action 

upon the operation of vessel; 

(3) The geographic separateness, and the 

administrative or fiscal relationship of PVO 

in question to any parent corporation or 

entity; 

(4) If applicable, the overall financial 

resources of any parent corporation or entity; 

the overall size of the parent corporation or 

entity with respect to the number of its 

employees; the number, type, and location of 

its facilities; and 

(5) If applicable, the type of operation or 

operations of any parent corporation or 

entity, including the composition, structure, 

and functions of the workforce of the parent 

corporation or entity. 

DOJ provides further information about 

its application of the concept in the 

preamble to its Title III regulation 

(discussion of 28 CFR 36.303(f), see 

http://www.ada.gov/reg3a.html). 

It must be emphasized that because 

something creates some degree of cost 

and difficulty, it is not necessarily an 

undue burden. There are ‘‘due burdens,’’ 

costs and difficulties that must be borne 

in order to afford nondiscriminatory 

service to individuals with disabilities. 

As the factors in the DOJ definition 

indicate, what may be an undue burden 

for a small entity (e.g., because it would 

‘‘break the bank’’ for that entity, making 

profitable operation impossible) may be 

a ‘‘due burden’’ that would be ‘‘small 

change’’ to a larger entity. Requiring an 

extensive and very expensive service to 

meet a minor, transitory need might be 

undue because it is disproportionate. 

‘‘Undue burden’’ determinations 

inevitably involve the exercise of 

informed judgment about the facts of a 

given situation, but the bar is intended 

to be high: The concept is not intended 

to provide a free pass to entities to avoid 

nondiscrimination obligations. It should 

be emphasized, in the context of 

auxiliary aids and services, that even if 

one particular auxiliary aid or service 

creates an undue burden, the PVO 

retains an obligation to provide effective 

communication through use of another 

auxiliary aid or service that is not 

unduly burdensome. 

One commenter said that, in order for 

a PVO to effectively communicate with 

individuals with hearing and visual 

impairments, the PVO should install 

advanced technology for videophones 

and instant messaging on its vessel. The 

Department believes it would be 

premature, as well as outside the scope 

of the notice for this rulemaking, to 

require a particular technology or vessel 

communication system at this time, but 

this is an issue that could be addressed 

as part of the future accessibility 

standard rulemaking. 

Section 39.53 What information must 

PVOs provide to passengers with a 

disability? 

The Department recognizes that some 

existing vessels may not be able to be 

made accessible to people with mobility 

impairments and that some ports (e.g., 

some foreign ports at which a cruise 

ship calls) may not be usable by persons 

with some disabilities. This section 

requires PVOs to inform people with 

disabilities, accurately and in detail, 

about what they can expect. 

Such information includes: (1) Any 

limitations of the usability of the vessel 

or portions of the vessel by people with 

mobility impairments; (2) any 

limitations on the accessibility of 

boarding and disembarking at ports at 

which the vessel will call (e.g., because 

of the use of inaccessible lighters or 

tenders as the means of coming to or 

from the vessel); (3) any limitations on 

the accessibility of services or tours 

ancillary to the transportation provided 

by the vessel concerning which the PVO 

makes arrangements available to 

passengers; (4) limitations on the ability 

of passengers to take a service animal off 

the vessel at a foreign port (e.g., because 

of quarantine regulations); and (5) the 

particular auxiliary aids or services 

available to passengers with hearing or 

vision impairments for each of the 

various on-board activities and services 

that require advance notice in order to 

be made available. With this 

information, potential passengers with a 

disability can make an informed choice 

about whether seeking transportation on 

a particular vessel is worth their while. 

One commenter suggested that 

providing information about boarding 

and disembarking only to those 

passengers that self-identify as having a 

disability may cause confusion and bad 

feelings among those passengers with 

disabilities that did not self-identify. 

Moreover, the commenter recommended 

making such information available in all 

promotional materials including preboarding information, Web site, 

advertisements, the Daily Program, and 

in all brochures. The Department 

believes that there is merit in providing 

such information generally to all 

passengers. However, if a PVO provides 

this information to people who ask for 

it in order to accommodate a disability, 

that is sufficient to meet the PVO’s 

obligation under the rule. 

Section 39.55 Must information and 

reservation services of PVOs be 

accessible to individuals with hearing or 

vision impairments? 

This section applies to information 

and reservation services made available 

to consumers in the United States, 

regardless of the nationality of a PVO or 

where the personnel or equipment 

providing the services are themselves 

based. If a PVO provides telephone 

reservation or information service to the 

public, the PVO must make this service 

available to individuals who are deaf or 

hard-of-hearing through use of a text 

telephone (TTY) or a TTY relay service 

(TRS). In response to comments 

received on this section, the Department 

will not require each PVO to have 

access to a text telephone, so long as 

they can receive calls through a text 

telephone relay service. 

One commenter stated that this 

provision should include a Web 

accessibility requirement following the 

World Wide Web Consortium standards. 

The Department is aware that Web 

accessibility is an important issue for 

people with disabilities, and we will 

address this subject further during the 

next phase of passenger vessel 

rulemaking. 

Another commenter recommended 

that individuals such as travel agents 

and boat crew who interact with 

consumers should receive training on 

what disability access is available. In 

reference to travel agents, the 

Department believes this is outside the 

scope of this rulemaking. As for 

employees, comments from PVOs 

asserted that crews are already trained 

to accommodate passengers with 

disabilities. The Department may 

further consider training requirements 

for crews during the development of the 

next phase of the passenger vessel 

rulemaking. 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 38887 

Section 39.57 Must PVOs make copies 

of this rule available to passengers? 

PVOs must maintain a current copy of 

the text of this rule on each vessel and 

in every terminal which they serve. The 

copy may be a paper copy or a digital 

copy so long as it can be easily 

referenced by PVO employees and by 

passengers upon their request. 

Commenters supported this section as 

written. Private sector PVOs who do not 

receive Federal financial assistance are 

not required to make a copy of the rule 

available in languages other than 

English. However, any PVOs that do 

receive Federal financial assistance 

should be aware of their obligations 

concerning persons with lower English 

proficiency under Title VI of the Civil 

Rights Act of 1964, as amended, and 

applicable Executive Orders and 

regulations. As part of a PVO’s 

obligation to communicate effectively, a 

PVO must make copies available in 

accessible formats on request, subject to 

the fundamental alteration provisions of 

section 39.51(c). If provision of the 

information is not feasible in one 

accessible format, because it would 

involve a fundamental alteration, then 

another accessible format would have to 

be made available. 

Section 39.61 What requirements must 

PVOs meet concerning the accessibility 

of terminals and other landside 

facilities? 

This section applies to landside 

facilities that the PVO owns, leases, or 

controls in the U.S. It requires 

compliance with the same ADA 

obligations as apply to other types of 

transportation facilities under 49 CFR 

part 37. 

If the PVO does not own, lease, or 

control a facility, then the requirements 

of this section do not apply to it (there 

may well be situations in which a 

public entity or another private entity 

would own or control the facility, in 

which case the other entity would have 

its own ADA and/or section 504 

obligations). In the case of a foreign 

facility, where ADA or section 504 rules 

would not apply in their own right, 

facility accessibility would then become 

a matter of the law of the country in 

which the facility is located. 

Commenters recommended that this 

section should be applied to facilities 

both inside and outside of the US. 

However, as noted in the discussion of 

the definition of ‘‘facility,’’ the 

Department can apply this regulation 

only to facilities located in the U.S, 

since the ADA does not apply to 

landside facilities in foreign territory. 

The rule makes a familiar three-part 

breakdown of accessibility 

responsibilities for covered facilities, 

similar to that found in DOT’s existing 

ADA regulations (see 49 CFR part 37, 

subpart C). New facilities must meet 

accessibility standards from the 

beginning. In the case of an alteration, 

the altered portion of the existing 

facility has to be brought up to the same 

accessibility standards applicable to 

new facilities. For existing facilities not 

otherwise being altered, the PVO has to 

ensure that the facility is able to be used 

by a passenger with a disability to 

access the PVO’s vessel. This could be 

achieved through a variety of means. As 

under other applications of the ADA, 

requirements for public sector entities 

under Title II and private sector entities 

under Title III differ somewhat with 

respect to existing facilities (i.e., 

program accessibility vs. readily 

achievable barrier removal). These 

differences are stated in paragraph (c) of 

this section. 

We note that there may be many 

situations in which a PVO shares 

accessibility responsibilities with 

another party. For example, a PVO may 

lease a portion of a port facility that is 

owned by a private or public entity. The 

PVO has responsibilities under this Part; 

the other entity may have 

responsibilities in its own right under 

Title II or III or the ADA and under 

section 504. In these cases, it would be 

up to the parties involved to allocate the 

responsibilities among themselves, so 

that they jointly ensure that accessibility 

requirements are met for the facility. 

Where the PVO does not own, lease, or 

control a facility, the PVO has no 

responsibility for making accessibility 

changes under this rule. 

One commenter recommended that 

facilities used by small vessels should 

be exempt from this section. The 

Department again finds no basis for 

limiting the applicability of this 

provision based on vessel size. A 

landside facility operated by a small 

vessel PVO has no different status from 

one operated by a large PVO for ADA or 

section 504 purposes. 

Section 39.63 What modifications and 

auxiliary aids and services are required 

at terminals and other landside facilities 

for individuals with hearing or vision 

impairments? 

This section specifies that effective 

communication that has to be provided 

at terminals and other landside facilities 

to ensure that persons with sensory 

impairments will be able to request and 

receive the information otherwise 

available to the public, concerning such 

subjects as ticketing, fares, and 

schedules. A few commenters said that 

PVOs should not have to make changes 

to facilities that the PVO does not own 

or operate. Again, where the PVO does 

not own, lease, or control a facility, the 

PVO has no responsibility for making 

accessibility changes to the facility 

under this rule. Moreover, effective 

communication can be achieved 

through means, like auxiliary aids and 

services, that would not require 

modifications to facilities where a PVO 

is not able to make changes to the 

facility. 

The Department proposed a one-year 

phase-in for both existing and new 

facilities in order to allow PVOs to 

explore and implement the best 

communications options for their 

customers and business operations. One 

commenter expressed that there should 

not be a phase-in period for this 

provision and that it should become 

effective immediately due to current 

technology and existing ADA 

requirements. The Department agrees, 

and in this final rule, makes this 

provision effective when the rule goes 

into effect. 

Subpart E—Accessibility of Vessels 

This subpart is reserved. It is a placeholder for the subsequent inclusion of 

passenger vessel physical accessibility 

standards based on future Access Board 

guidelines. We emphasize that this rule 

does not create standards for the design 

and construction of vessels and does not 

impose requirements to alter existing 

vessels for the purpose of accessibility. 

PVOs remain obligated, of course, to 

meet existing ADA requirements for 

readily achievable barrier removal (Title 

III) or program accessibility (Title II). 

Section 39.81 What assistance must 

PVOs provide to passengers with a 

disability in getting to and from a 

passenger vessel? 

This section does not deal with 

boarding a vessel, as such. Rather, it 

deals with how people get to the point 

of boarding a vessel, in terms of land 

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

and the terminal) and in actually 

moving through the terminal and 

boarding process up to the point of 

getting onto the vessel, where the PVO 

or a contractor to the PVO provides their 

services. PVOs are responsible for 

making sure that these services are 

accessible to people with disabilities. 

Representatives of the cruise line 

industry commented that requiring 

cruise lines to ensure the accessibility of 

services provided by third-party 

independent contractors, such as 

transportation to or from the cruise ship, 

would be unreasonable and a denial of 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
38888 Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 

due process. This rule does not impose 

such an obligation if the PVO and the 

service provider, such as a taxi 

company, have no contractual 

relationship. This provision will not 

have extraterritorial application and 

will apply only with respect to 

terminals located in the U.S. 

Section 39.83 What are PVOs’ 

obligations for assisting passengers with 

a disability in getting on and off a 

passenger vessel? 

The optimal solution for boarding a 

vessel involves a passenger with a 

disability being able to board 

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

ramp). The Department realizes that 

there will be many situations where this 

optimal solution does not exist. In these 

situations, the PVO is responsible for 

providing assistance that enables a 

passenger with a disability to get on or 

off the vessel. As noted above, this rule 

does not require vessel personnel to do 

the physically impossible with respect 

to providing boarding assistance. One 

commenter asked how a PVO is to 

decide between a passenger who is ‘‘not 

able to get on or off a passenger vessel 

without assistance’’ and one who can 

‘‘readily get on or off a passenger vessel 

without assistance.’’ In such a situation 

the PVO should ask the passenger 

whether he/she wants or needs 

assistance. 

We note that a number of comments 

represented that these services are 

already being provided in many 

instances, so we believe it is fair to 

suggest that this requirement would not 

create significant added burdens for 

PVOs. We also note that this provision 

pertains to normal boarding and 

disembarkation from a vessel. 

Obviously, in the case of an ‘‘abandon 

ship’’ or other emergency situation, crew 

should use any means necessary to 

ensure that all passengers can safely 

evacuate. 

The Department appreciates the 

comments received regarding accessible 

boarding systems and will use them to 

inform a future rulemaking in this area 

when the Access Board has provided 

appropriate standards on which a 

regulation can be based. 

Section 39.85 What services must 

PVOs provide to passengers with a 

disability on board a passenger vessel? 

Section 39.87 What services are PVOs 

not required to provide to passengers 

with a disability on board a passenger 

vessel? 

These sections concern services that 

PVOs must provide or, alternatively, do 

not need to provide to passengers with 

a disability. The services a PVO must 

provide include movement about the 

vessel, but only with respect to portions 

of the vessel that are not accessible to 

passengers with a disability acting 

independently. To the extent that a PVO 

makes accessibility improvements to a 

vessel, the PVO can probably reduce its 

obligation to provide this service. When 

food is provided to passengers, PVO 

personnel must help passengers with a 

disability to a limited degree, including 

opening packages and identifying food, 

or explaining choices. Assistance in 

actual eating or other personal functions 

(e.g., toileting or provision of medical 

equipment or supplies or assistive 

devices, beyond what is provided to all 

passengers) is not required. Effective 

communication of all on-board 

information is required. 

Several commenters expressed that 

PVOs should be required to provide 

closed captioning on televisions, 

interpreters aboard the vessel (in 

theatres or other ‘‘public’’ rooms aboard 

the vessel), and wheelchairs for use by 

passengers. In this rulemaking, the 

Department is not mandating the use of 

any specific means of communication, 

though televisions, if provided for 

passengers, must have closed 

captioning. Otherwise, PVOs’ obligation 

is to provide effective communication, 

through the use of auxiliary aids and 

services as appropriate for Title II or III 

entities, as the case may be. As for 

wheelchairs or other assistive devices, 

the Department believes this is the 

responsibility of the passenger and not 

the PVO, except to the extent that the 

PVO would need a wheeled mobility 

assistive device to provide boarding 

assistance to an individual who does 

not normally use such a device but 

could not board the vessel without one 

(e.g., a semi-ambulatory person who can 

walk on a level surface but would have 

difficulty with a steep boarding ramp). 

One commenter also expressed that 

sign language interpreters should be 

provided on vessels traveling inside and 

outside of the U.S. Use of sign language 

interpreters is one type of auxiliary aids 

and services, which may be provided 

subject to the fundamental alteration 

provisions of section 39.51(c). 

Section 39.89 What requirements 

apply to on-board safety briefings, 

information, and drills? 

This section specifies that safetyrelated information must be 

communicated effectively to passengers 

with disabilities. This would include 

the use of auxiliary aids and services, 

where needed. Safety videos would 

have to be captioned or have an 

interpreter inset, in order to make the 

information available to persons with 

impaired hearing. Providing safety 

information in this way is a key 

component of effective communication 

of this material to individuals who are 

deaf or who have hearing impairments. 

Passengers with disabilities must be 

enabled to participate in evacuation and 

other safety drills, and information 

about evacuation and safety procedures 

would have to be kept in locations that 

passengers with disabilities can access 

and use. Several commenters supported 

requiring PVOs to utilize flashing lights 

to warn passengers with hearing 

disabilities of emergencies. This issue 

will be addressed by the Access Board. 

Section 39.91 Must PVOs permit 

passengers with a disability to travel 

with service animals? 

Many persons with disabilities rely on 

service animals to travel and conduct 

daily functions. This section specifies 

that PVOs would be required to permit 

service animals to accompany a 

passenger with a disability on board a 

vessel. 

Foreign countries may limit entry of 

service animals. This should not affect 

the carriage of service animals on the 

vessel, however, since there is no 

requirement that the animal leave the 

ship. Limitations on the ability of such 

an animal to leave the ship at a foreign 

port would be included in the 

information that a cruise ship would 

provide to potential customers inquiring 

about an upcoming cruise. Consistent 

with foreign port requirements, the PVO 

could insist that the animal not 

disembark at a port where doing so is 

not permitted. The user could leave the 

vessel even if the animal had to remain 

on board, however. PVOs and owners 

would have to work together to ensure 

that the animal was properly cared for 

in the owner’s absence (e.g., in the case 

of a lengthy excursion away from the 

vessel). 

Several commenters said that PVOs 

should permit passengers with 

disabilities to bring their own food and 

supplies for service animals without any 

charge and provide refrigerators for 

proper storage of such food. PVO 

commenters said that PVOs should not 

be required to provide food for the 

animal, stating that there should be no 

charges for passengers using their own 

animal food and that most cruise lines 

currently follow this practice. Under the 

final rule, PVOs will not be required to 

provide food for service animals, but 

passengers may bring a reasonable 

quantity of their own food aboard the 

vessel at no additional charge. PVOs 

must provide refrigeration space for the 

animal food. This requirement applies 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 38889 

only to cruise ships or other vessels 

providing overnight accommodations. 

There is no need for refrigeration on 

short-voyage ferries or water taxis. 

We view a limitation on the number 

of service animals that can be brought 

on a given voyage as tantamount to a 

number limit on passengers with a 

disability (i.e., as a number limit), which 

this rule prohibits. It is not evident that 

having a number of such animals on 

board a ship at a given time would be 

disruptive to ship operations, and vague 

concerns about adverse effects on the 

quality of the cruise experience for other 

passengers do not trump the 

nondiscrimination imperative of the 

ADA. 

While this rule does not require it, the 

Department believes that it is a good 

idea to permit not only service animals, 

per se, but also emotional support 

animals (ESA) to accompany passengers 

with disabilities who use them. This can 

be beneficial to individuals who 

genuinely need the assistance of such an 

animal to enjoy fully travel and services 

aboard a vessel. We refer PVOs and 

passengers with disabilities to 

applicable provisions of the 

Department’s Air Carrier Access Act 

regulations and appendices (14 CFR part 

382) for suggestions on how and in what 

circumstances it is appropriate to 

accommodate people using ESAs. 

Commenters raised questions about 

animal relief areas aboard the vessel. 

Since this goes the design or 

construction of physical features of the 

a vessel, it is better addressed in the 

next rulemaking phase concerning 

accessibility standards. 

Section 39.93 What wheelchairs and 

other assistive devices may passengers 

with a disability bring onto a passenger 

vessel? 

Section 39.95 May PVOs limit their 

liability for the loss of or damage to 

wheelchairs and other assistive devices? 

These sections say simply that 

passengers should be permitted to bring 

and use their own wheelchairs and 

other assistive devices on board a 

vessel. The cruise line industry stated 

that it does not support the use of 

mobility devices that are two-wheeled 

and allow an individual to ‘‘ride’’ the 

device. Another commenter expressed 

that the references to mobility aids and 

other assistive devices do not conform 

to the current standard found in 49 CFR 

part 37. The Department is currently 

reviewing and may revise its part 37 

treatment of mobility aids. 

With respect to mobility aids, the 

final rule is modeled on an approach 

supported by the Department of Justice. 

That is, manual and power wheelchairs 

and other manual mobility aids must be 

accommodated in any area open to 

pedestrian use. This requirement is 

intended to be implemented consistent 

with other provisions of the rule (e.g., 

concerning existing facility 

accessibility, weight and balance 

concerns), which may in occasional 

situations limit the ability especially of 

larger power wheelchairs to be 

accommodated. 

With respect to other powered 

mobility devices (e.g., two-wheeled 

devices, such as Segways, designed or 

adapted for use by a person with a 

disability to accommodate that 

disability), PVOs would be required to 

make reasonable modifications in 

policies, practices, or procedures to 

allow such devices to be used by 

individuals with mobility disabilities, 

unless doing so would be inconsistent 

with legitimate safety requirements. The 

Department expects that, in most cases, 

such devices would be permitted to be 

used. 

The Department strongly emphasizes 

that any such safety requirements 

cannot be pretextural and must be based 

on actual, demonstrable, risks and not 

on not mere speculation, stereotypes, or 

generalizations either about people with 

disabilities or their mobility devices. 

While the rule does not include a 

recordkeeping requirement concerning 

such safety requirements, a PVO subject 

to a complaint about arbitrarily 

excluding a mobility device would 

doubtless be asked to document the 

factual justification for any policy 

limiting passengers’ devices. 

These requirements apply to PVOs 

covered by both Title II and Title III of 

the ADA. In addition, Title II (i.e., 

public sector) entities would have to 

minimize any restrictions placed on use 

of other powered mobility devices and 

provide a written explanation to the 

user, on request, of any exclusion or 

restriction of his or her device. This 

latter provision is found in the Title II 

enforcement provision of this regulation 

(section 36.109). 

Once a device is on board, if the PVO 

is responsible for its loss or damage, the 

PVO must compensate the owner, at the 

level of the original purchase price of 

the device. One commenter stated that 

the appropriate cost for the loss of 

damaged assistive devices should be the 

current replacement cost for the device 

rather than the original purchase price. 

The Department is utilizing the original 

purchase price. This is the measure of 

the level of compensation found within 

the Department’s ACAA rule, and we 

believe it will most appropriately 

compensate the owner for the loss of or 

damage to the device. 

Section 39.101 What are the 

requirements for providing Complaints 

Resolution Officials? 

Section 39.103 What actions do CROs 

take on complaints? 

The Complaints Resolution Official 

(CRO) is the PVO’s expert in disability 

matters, knowledgeable about both the 

Department’s regulations and the PVO’s 

procedures, and is able to assist 

passengers with disabilities and other 

PVO personnel in resolving issues. The 

CRO model should adapt very well to 

passenger vessels, to solve problems at 

the PVO level before they become 

matters for complaints to the DOT or 

DOJ. 

A commenter expressed that it may be 

impractical and financially burdensome 

to have a CRO onboard each vessel. The 

Department does not mandate that CRO 

duties necessarily be full-time for a 

given employee, and CRO functions can 

be performed as collateral duties of 

existing personnel. PVOs could, for 

example, use a number of different 

vessel and landside personnel as CROs, 

who might perform these functions in 

addition to their other duties. We expect 

that PVOs will have varying degrees of 

formality in their CRO programs; 

however, no matter whether in a facility 

or on a vessel, all employees should be 

able to direct a passenger to the CRO. 

PVOs are likely to find it necessary to 

ensure that not only CROs, but also 

other personnel who interact with 

passengers, are sufficiently 

knowledgeable regarding the 

requirements of these rules and 

proficient in performing tasks related to 

passengers with disabilities. (PVO 

commenters asserted that their 

personnel are already trained to deal 

properly with customers, including 

passengers with disabilities.) If they are 

not, it is likely that mistakes will be 

made that would potentially lead to 

noncompliance. Some commenters 

recommended the adoption of training 

standards or requirements in this rule. 

However, the Department is not 

instituting any formal training 

requirement at this time and will leave 

it to PVOs to decide how best to prepare 

their CROs, along with the remainder of 

their entire staff, to meet the 

responsibilities that PVOs have under 

this Part. If, over time, the Department 

becomes aware of implementation or 

compliance difficulties that appear to 

stem from a lack of training, the 

Department can revisit this issue. 

One commenter expressed that 

certifying the training or drafting a 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
38890 Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 

training curriculum would be difficult 

and unnecessary. This rule does not 

institute a certification requirement. 

Another commenter expressed that 

information about CROs should be 

posted on the PVO’s Web site so that 

passengers have access to the 

information. We agree that sources of 

various information, including Web 

sites, should include information on the 

function of CROs and how to contact 

them, but we are not requiring this as 

part of this rule. 

Section 39.105 How must PVOs 

respond to written complaints? 

Section 39.107 Where may passengers 

obtain assistance with matters covered 

by this regulation? 

The required responses to complaints 

under this section by the PVO may be 

in either written or e-mail form. At this 

time, the Department is not instituting 

a reporting requirement for complaints 

received by PVOs regarding violations 

of this rule. Upon analysis of operations 

under this rule, the Department may 

propose a reporting requirement at a 

later date. It should be noted that these 

sections concern the interaction 

between PVOs and passengers; these are 

not procedures for Federal agency 

responses to complaints made to DOT or 

DOJ. For example, DOJ does not follow 

these procedures when it receives a 

complaint concerning a Title III PVO. 

One commenter suggested that 

deadlines be put into place to ensure 

that complaints do not languish and that 

a timely resolution is received. The 

commenter also suggested that there 

should be an outside organization for 

aggrieved passengers to take complaints 

to if they are not satisfied with the CRO 

resolution. In so far as deadlines are 

concerned, these sections, as written, 

provide deadlines for filing and 

responding to complaints. In reference 

to appeals of a PVO’s decision, the 

complainant has the ability to pursue 

DOT or DOJ enforcement action, for 

Title II or Title III entities, respectively. 

The PVO must notify the complainant of 

this right. 

Section 39.109 What enforcement 

actions may be taken under this Part? 

One important difference between the 

ACAA and the ADA is that, under the 

former, the Department has its own civil 

penalty enforcement authority and 

procedures. The Department does not 

have its own civil penalty authority 

under Titles II and III of the ADA, 

though the Department can conduct 

investigations and compliance reviews, 

collect data, find facts, come to 

conclusions, and refer matters to the 

Department of Justice for further action 

under section 504 and Title II. The 

Departmental Office of Civil Rights 

(DOCR) will be the central point for 

receiving such complaints. DOJ has the 

jurisdiction to conduct investigations 

and take enforcement action under Title 

III, which can lead to the imposition of 

damages and civil penalties. 

Some PVOs receive Federal financial 

assistance, such as ferry operators who 

receive Federal Transit Administration 

(FTA) funding. Complaints concerning 

violations of this Part by FTA-assisted 

ferry operators could be made to the 

FTA under the Department’s ADA and 

section 504 rules, and FTA could take 

enforcement action as provided in those 

rules. No comments were received on 

this section and it is adopted as written. 

Request for Comments: This rule is a 

final rule with a request for comments 

limited to three issues. All provisions 

will go into effect on November 3, 2010. 

With respect to the three issues on 

which the Department is seeking further 

comment, the Department intends, 

before the effective date of the rule, to 

publish either an amended final rule or 

a notice explaining why no further 

changes are being made. 

The first issue concerns use by 

passengers with disabilities of 

emotional support animals. Unlike 

service animals, emotional support 

animals are not trained to perform 

specific physical tasks, but by their 

presence assist individuals with mental 

health-related disabilities in coping 

with the effects of their disabilities. For 

example, an emotional support animal 

may assist an individual with a severe 

anxiety disorder in dealing with the 

stresses of travel. In the absence of this 

assistance from the animal, the 

individual could find travel very 

difficult or impossible. 

As noted in the preamble discussion 

of section 39.91, this rule does not 

require PVOs to provide access to 

emotional support animals. In another 

disability discrimination context, under 

the Air Carrier Access Act, the 

Department requires air carriers to 

permit emotional support animals to 

travel with their users. The Department 

seeks comment on whether PVOs 

should be required to allow access for 

individuals with disabilities and their 

emotional support animals. If PVOs are 

required to do so, what, if any, 

safeguards against abuse (e.g., 

passengers attempting to pass off their 

pets as emotional support animals) 

should be included? 

The service animal provisions as 

currently written in this rule are 

consistent with DOJ’s proposed rules 

amending Title II and Title III. Should 

DOT rules be identical to DOJ rules in 

this with respect to emotional support 

animals (i.e., such that the use of 

emotional support animals is treated the 

same way on passenger vessels as it is 

in other public accommodations 

covered by DOJ rules, such as parks, 

restaurants, dorms, lodging, hospitals, 

etc.)? Alternatively, should DOT have 

discretion to have different provisions 

specific to vessels? 

The second issue concerns the 

treatment of mobility aids. Section 39.93 

divides mobility devices into two 

categories: Wheelchairs and other 

power-driven mobility devices. 

Wheelchairs have a specific definition 

in section 39.3, including ‘‘three or fourwheeled devices, usable indoors, 

designed for and used by individuals 

with mobility impairments, whether 

operated manually or powered.’’ Under 

section 39.93, PVOs must permit 

wheelchairs to be used in any area open 

to pedestrian use, though, as noted in 

the preamble discussion of section 

39.25, there could be circumstances in 

which a particular wheelchair does not 

fit a particular space. 

PVOs can limit the use of other 

power-driven mobility aids by applying 

a series of factors set forth in paragraph 

39.93(b). The application of these 

factors could give PVOs greater 

discretion to permit or refuse use of 

devices that did not meet the definition 

of ‘‘wheelchair,’’ (e.g., devices that 

otherwise look like traditional 

wheelchairs but have six wheels, twowheeled devices like Segways) than 

they have with respect to wheelchairs. 

The Department seeks comment two 

sets of questions related to the handling 

of mobility aids. 

First, should a PVO have to 

demonstrate (i.e., bear a burden of 

proof) that it has a sound basis for 

excluding or restricting a passenger’s 

other power-driven mobility aid? 

Should there be any basis other than 

safety (i.e., inconsistency with a 

legitimate safety requirement) for a 

decision to exclude or limit a device? 

Should it be made clear that a device, 

even if not originally designed for use 

by individuals with disabilities, should 

be accepted on board a vessel if it is 

adapted for use by a passenger with a 

disability, again subject to legitimate 

safety requirements? 

Second, should the entire approach to 

mobility aids be rethought? For 

example, it may not be necessary to 

distinguish between categories of 

mobility aids at all. One commenter to 

the NPRM suggested adopting the term 

‘‘wheeled mobility assistive device’’ be 

used in place of other terms. In this 

concept, if a wheeled mobility assistive 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 38891 

device, however it is designed, can be 

accommodated on board a vessel, 

consistent with legitimate safety 

requirements, it would have to be 

accepted by the PVO, regardless of 

whether it was a ‘‘wheelchair,’’ per se. 

The Department seeks comment on this 

approach and on whether, if adopted, it 

should include any categorical 

exceptions (e.g., gasoline enginepowered devices). For information, the 

Department refers interested persons to 

the Department’s September 2005 

interpretation of its existing ADA 

regulation (49 CFR part 37) concerning 

acceptance of mobility aids [http:// 

www.fta.dot.gov/civilrights/ada/ 

civil_rights_3893.html]. 

Similar to the emotional support 

animal issue earlier, the mobility aid 

provisions as currently written in this 

rule are consistent with DOJ’s proposed 

rules amending Title II and Title III. 

Should DOT rules be identical to DOJ 

rules in this with respect to mobility 

aids (i.e., such that the use of mobility 

aids is treated the same way on 

passenger vessels as it is in other public 

accommodations covered by DOJ rules, 

like as parks, restaurants, dorms, 

lodging, hospitals, etc.)? Alternatively, 

should DOT have discretion to have 

different provisions specific to vessels? 

The third issue the Department seeks 

comment on concerns the overall 

relationship between DOJ and DOT 

ADA rules. DOJ currently has draft final 

rules revising its Title II and Title III 

DOT rules under review by the Office of 

Management and Budget (OMB). It is 

possible that, as part of the interagency 

review process led by OMB, provisions 

in the DOJ rules (e.g., concerning the 

definition of auxiliary aids and services 

and the application of that definition) 

might change in a way that create a 

difference between the language of part 

39 and the language of the forthcoming 

DOJ rules. In such a situation, should 

DOT amend part 39 to be consistent 

with the new DOJ language? The 

purpose of doing so would be to avoid 

confusion or any burden placed on 

people with disabilities or PVOs that 

might arise if different definitions or 

substantive provisions of different rules 

applied in the specific context of 

passenger vessel operations, as distinct 

from other aspects of public 

accommodations or public sector 

facilities and activities covered by, DOJ 

rules. 

Regulatory Analyses and Notices 

Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This is a significant rule under 

Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

purposes. This is because the rule 

address issues of considerable policy 

interest and creates requirements for 

entities that have not previously been 

subject to regulation. However, the rule 

does not impose significant costs. The 

main thrust of the rule is to prohibit 

PVOs from taking actions—such as 

requiring attendants, denying 

transportation, limiting access for 

service animals, or imposing special 

charges—that create barriers to travel by 

persons with disabilities. There is little, 

if any, cost to a PVO from avoiding 

taking discriminatory actions. 

According to comments received at both 

the ANPRM and NPRM stages, many 

PVOs already provide boarding 

assistance and other services to 

passengers with disabilities, so it is 

reasonable to assume that the passenger 

assistance provisions of this rule will 

not have significant incremental costs. 

This rule does not impose a training 

requirement or reporting requirements. 

In the section of the preamble 

responding to the Regulatory Flexibility 

Act, the Department will discuss the 

cost impacts, or lack of same, from some 

specific sections of the rule. 

Some commenters did express 

concern about potential costs of the 

NPRM. These comments largely were 

the result of commenters mistakenly 

believing that the NPRM proposed 

requiring PVOs to physically alter 

vessels, especially small vessels. In fact, 

the NPRM did not propose, and the final 

rule does not require, alterations to 

vessels for the purpose of achieving 

accessibility. The rule takes vessels as 

they are and focuses on the policies and 

practices of PVOs with respect to the 

use of the vessels by passengers with 

disabilities. 

In a future rulemaking, the 

Department anticipates proposing, in 

conjunction with the Access Board, 

design and construction standards for 

vessels. These standards will affect new 

vessels and alterations to existing 

vessels. This future rulemaking is 

expected to involve a more detailed 

regulatory evaluation with respect to the 

costs and benefits of its proposals. 

In the passenger vessel context, as in 

other areas, the purpose of the ADA is 

to ensure nondiscrimination on the 

basis of disability and accessibility of 

travel on vessels for people with 

disabilities. Consequently, the most 

important benefits of this rule are the 

largely non-quantifiable benefits of 

increased access and mobility for 

passengers with disabilities. Policies 

required by this rule will eliminate most 

practices of PVOs that prevent or inhibit 

travel by persons with disabilities. The 

benefits that will accrue from removal of 

these barriers cannot be quantified, but 

could well include increased 

employment, business, recreational, and 

educational opportunities for travelers 

with disabilities, and quality of life 

enhancements associated with travel 

opportunities both within the U.S. and 

to foreign points. 

Many persons with mobility 

impairments will be able to use 

passenger vessel services for the first 

time, and take advantage of an 

expanded range of travel opportunities. 

Even persons with disabilities who do 

not immediately choose to use a 

passenger vessel will know that barriers 

to such travel have been removed, and 

there is a psychological benefit to 

knowing one can travel if one wishes 

(what economists sometimes refer to as 

the ‘‘option value’’ of a regulatory 

provision). 

Other beneficiaries of this rule 

include the travel companions, family, 

and friends of passengers with 

disabilities, since persons with 

disabilities would have greater and 

more varied travel opportunities. In 

addition, to the extent that changes in 

PVO practice make use of vessels easier 

for everyone, there will be indirect 

benefits for the general traveling public. 

Because making passenger vessel 

transportation and services more readily 

available to passengers with disabilities 

and others traveling with them is likely 

to increase overall usage of vessels to 

some degree, it is likely that there will 

be some economic benefits to PVOs 

from compliance with the rule, though 

the Department does not have 

information allowing us to quantify 

these potential benefits. 

Regulatory Flexibility Act 

In considering this rule from the point 

of view of the Regulatory Flexibility 

Act, we emphasize two main points. 

First, for the reasons discussed above, 

we believe strongly that the overall costs 

of the rule to any entities—large or 

small—will be very low. The rule will 

not create significant economic impacts 

on anyone. In particular, the 

Department here repeats what it has 

said throughout the rulemaking: The 

rule does not impose design and 

construction standards that will require 

vessel operators, large or small, to alter 

their vessels. 

Second, compared to the NPRM, the 

number of small entities subject to the 

rule is greatly reduced. The final rule 

covers only private entities primarily 

engaged in the business of transporting 

people, eliminating from coverage 

private entities not primarily engaged in 

the business of transporting people. The 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
38892 Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 

vast majority of small entities that the 

NPRM would have covered (e.g., fishing 

charter boats, sightseeing and dinner 

cruise boats, dive boats) are not subject 

to the final rule. Of the private entities 

primarily engaged in the business of 

transporting people that the rule does 

cover, most—such as cruise ships and 

public ferry systems—are not small 

entities. Some, such as smaller ferry or 

water taxi operations, may be small 

entities. While the number of small 

entities covered by the final rule is not 

ascertainable from the record of this 

rulemaking, the Department believes 

that it is highly unlikely to be 

substantial. 

The Small Business Administration 

(SBA) Office of Advocacy commented 

on the NPRM. One of the primary SBA 

comments concerned SBA’s estimate 

that a very large number of small 

businesses would be covered by the 

rule. Given the change in the final rule 

to cover only private entities primarily 

engaged in the business of transporting 

people, SBA’s estimate—based almost 

entirely on private entities not primarily 

engaged in the business of transporting 

people—is no longer applicable. We 

recognize that there could also be some 

small public entities that are covered by 

the rule (e.g., a small municipality that 

operates a ferry or water taxi service), 

though the record of the rulemaking 

does not provide a basis for knowing 

whether this is the case or estimating 

how many there may be. Because the 

costs of the rule to any entities is 

minimal, there would not be a 

significant cost to these Title II entities. 

SBA also pointed to certain sections 

of the rule that it thought could involve 

costs. With respect to section 39.3, SBA 

asked that the Department should make 

clear that there is no liability for 

discrimination based on the 

accessibility of existing vessels. As 

stated elsewhere, this rule does not 

impose any incremental obligation to 

alter existing vessels for the purpose of 

accessibility. PVOs, like other entities, 

remain subject to the existing ADA 

requirements to provide program 

accessibility (Title II) or to ensure 

readily achievable barrier removal (Title 

III). SBA also suggested making 

compliance materials available 

regarding the rule’s definitions, 

particularly if there are conflicting 

definitions between DOJ rules and the 

Air Carrier Access Act. Under this or 

any rule, no one is required to comply 

with a definition. Compliance is 

required only with substantive 

provisions of a rule. The final rule has 

harmonized DOT passenger vessel rule 

provisions with DOJ ADA rule 

provisions. 

With respect to section 39.13, SBA 

said the small business community was 

confused about the difference between 

this rule and forthcoming Access Board 

guidelines, and that the effective date of 

the rule should be extended six months. 

The distinction is actually a very clear 

and simple one: This rule concerns the 

policies that PVOs apply to passengers 

with disabilities on their vessels and 

does not create design or construction 

standards for new or altered vessels. 

The forthcoming Access Board 

guidelines will create design and 

construction standards for new and 

altered larger vessels (e.g., those with a 

passenger capacity of over 150 

passengers or over 49 spaces for 

overnight accommodations), but will 

not address the kinds of policy issues 

that the current DOT rule addresses. 

The Department is making this rule 

effective 120 days from the date of 

publication, and we do not believe a 

longer lead time is needed to assist the 

relatively few remaining small PVOs 

covered by the rule in understanding 

this straightforward point. Through long 

experience, the Department has found it 

most helpful to issue guidance (e.g., 

questions and answers) after a 

regulation has gone into effect, when 

both we and the regulated parties have 

had time to determine what 

implementation and interpretation 

questions of general interest are 

valuable to address. 

With respect to sections 39.29 (39.27 

in the NPRM) and 39.93, SBA asserted 

that there was a paperwork burden, a 

recordkeeping requirement, and a 

training burden. Section 39.29 of the 

final rule in fact requires neither 

paperwork, nor recordkeeping, nor 

training. It simply directs vessel 

operators not to impose number limits, 

except where legitimate safety 

requirements (i.e., with regard to weight 

and balance) dictate otherwise. In most 

instances, given that the final rule 

focuses on larger vessels, this exception 

is unlikely to come into play. Section 

39.93 has been revised for greater 

consistency with the Department of 

Justice’s approach to mobility aid 

issues, and likewise does not include 

recordkeeping or training requirements. 

In one category of cases—denial of 

access to an ‘‘other powered mobility 

device’’ by a public entity, the entity 

would have to provide a written 

explanation on the passenger’s request. 

Given that public entities covered by the 

rule—mostly large public ferry 

systems—are not small entities, and that 

it is likely there would be few instances 

in which mobility devices would be 

denied passage, and fewer still in which 

the passenger asked for a written 

explanation, the Department believes 

that the cost and burden of this 

requirement would be very minor. 

With respect to the advance notice 

provisions of the rule (39.33 and 39.35 

in the NPRM, 39.35 and 39.37 of the 

final rule), SBA requested that the 

Department respond to the comment 

that operators of small vessels should be 

able to require advance notice for fewer 

than the proposed group of 10 or more 

disabled passengers traveling together. 

As noted above, most of the vessels to 

which this comment pertained are not 

covered by the final rule. Moreover, 

comments did not suggest a persuasive 

reason why, for example, a group of four 

or six wheelchair users should be 

burdened with an advance notice 

requirement simply because the size of 

the vessel or size of the business 

operating the vessel is smaller. The 

Department believes the 10-person 

group provision is sensible, and it 

remains in the final rule. 

With respect to section 39.83, 

concerning assistance by vessel 

personnel in getting persons with 

disabilities on and off the vessel, SBA 

asked the Department to provide 

estimates of the costs of providing such 

assistance, as a ‘‘new requirement.’’ As 

SBA acknowledged, commenters to the 

NPRM said that their personnel 

commonly performed this function 

already. In analyzing the costs of a rule, 

the Department focuses on incremental 

costs, not assuming a baseline in which 

no one is performing something 

required by the rule. The information in 

the record suggests that the incremental 

costs of this provision of the rule would 

be low, and the record does not provide 

information on how many vessel 

operators (particularly the relatively few 

small PVOs that the final rule covers) 

currently decline to provide boarding 

assistance to passengers with 

disabilities. While the record therefore 

does not support a quantified estimate 

of the incremental costs of this 

requirement to small entities, the 

Department is justified, based on the 

evidence of the record, for estimating 

that it would be very low. 

Concerning service animals, SBA 

suggested that there should be an 

exception to the rule that would allow 

very small vessels to deny passage for 

safety reasons. As noted above, the 

number of very small vessels covered by 

the rule is likely to be very small. Denial 

of access to a service animal is 

tantamount to denying transportation to 

its user. Consequently, the provisions of 

section 39.27, concerning exclusion of a 

passenger with disabilities in 

connection with legitimate safety 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 38893 

requirements, would apply in a case 

where a PVO believed it should exclude 

a service animal for safety reasons. SBA 

also notes that smaller ferries and other 

small vessels might not have 

refrigerators on board to store food for 

service animals. There is no need to 

refrigerate animal food on the short trips 

typically run by small ferries or water 

taxis, so the issue would likely never 

arise. The need to store and refrigerate 

animal food would most likely arise on 

vessels that provide overnight 

accommodations, which typically are 

larger vessels. 

With respect to complaints resolution 

officers (CROs; sections 39.101–39.105) 

SBA requests an estimate of the costs of 

this requirement. As SBA concedes, 

there are no training requirements for 

CROs in the final rule, and many of the 

same personnel already receive 

customer relations and safety training. 

Consequently, the incremental cost of 

getting small entities’ CROs to the point 

of proficiency is limited to the time to 

read and understand the rule. The rule 

is not excessively lengthy, with the 

regulatory text likely to amount to 

around 7–8 Federal Register pages. It is 

not necessary for CROs to memorize the 

rule, only to become familiar enough 

with it to know what provisions to 

reference when a question or issue 

arises. It is fair to assume that this task 

would take an hour. Suppose there are 

500 small PVOs covered by the rule 

(likely an overgenerous number). Then 

the total burden would be 500 work 

hours. To make a cost estimate, one 

would multiply this number of hours by 

the average hourly wage of PVO 

personnel who would read the rule. If 

this average is $20/hour, then the total 

cost of the requirement for small PVOs 

would be $10,000. 

To estimate the cost and burden of 

having CROs working for small entities 

to provide responses to written 

complaints, it would be necessary to 

estimate how many such complaints 

there will be. The record of the 

rulemaking provides no basis for 

making such an estimate. The main 

purpose of the CRO requirement is to 

resolve problems before they turn into 

written complaints. Likewise, the 

purpose of the entire rule is to set forth 

explicit expectations for PVO policies, 

so that PVOs do not conduct themselves 

in ways that give rise to complaints. 

Many vessel industry commenters said 

that they emphasize providing good 

customer service to passengers with 

disabilities. If true, this would minimize 

the occurrence of complaints. For these 

reasons, the Department believes that 

the number of written complaints 

involving small entities would be small. 

If we assume that the task of gathering 

information for and writing a letter to a 

complainant would take four hours, and 

that 20 percent of the hypothetical 500 

PVOs—100 entities—had one complaint 

filed against them per year, the task 

would occupy 400 work hours. Again, if 

we multiply this figure by the average 

hourly wage of the CRO—assuming, as 

before, that this is $20/hour—then the 

annual total is $8,000. It is possible to 

plug in a variety of assumptions about 

the number of CROs, the number of 

complaints, and the wage rates 

involved, but the bottom line remains a 

very modest economic impact in any 

plausible scenario. 

Parties aggrieved by PVO misconduct 

already have the authority to bring 

litigation under the ADA or to complain 

to DOJ about disability discrimination. 

The Spector case, cited earlier in this 

preamble, is the most prominent 

example of such litigation, having been 

decided by the Supreme Court. 

Because the costs of the rule are 

minimal to any covered parties, and 

because the number of small entities 

affected is likely to be very small, I 

certify that this rule will not have a 

significant economic effect on a 

substantial number of small entities. 

Federalism 

While there are some State and local 

entities (i.e. operators of State or 

municipal ferry systems) that would be 

covered by this rule, most regulated 

parties are private entities. The rule will 

not create any significant changes in the 

Federal/State/local relationship with 

respect to these entities, and has no preemptive effect. Consequently, we have 

concluded that there are not sufficient 

Federalism impacts to warrant the 

preparation of a Federalism assessment. 

List of Subjects in 49 CFR Part 39 

Individuals with disabilities, Mass 

transportation, Passenger vessels. 

Issued this 16th day of June 2010 at 

Washington, DC. 

Ray LaHood, 

Secretary of Transportation. 

■ For the reasons set forth in the 

preamble, the Department of 

Transportation is amending 49 CFR 

subtitle A by adding a new 49 CFR part 

39, to read as follows: 

PART 39—TRANSPORTATION FOR 

INDIVIDUALS WITH DISABILITIES: 

PASSENGER VESSELS 

Subpart A—General 

Sec. 

39.1 What is the purpose of this Part? 

39.3 What do the terms in this rule mean? 

39.5 To whom do the provisions of this Part 

apply? 

39.7 What other authorities concerning 

nondiscrimination on the basis of 

disability apply to owners and operators 

of passenger vessels? 

39.9 What may the owner or operator of a 

foreign-flag vessel do if it believes a 

provision of a foreign nation’s law 

prohibits compliance with a provision of 

this Part? 

39.11 [Reserved] 

39.13 When must PVOs comply with the 

provisions of this Part? 

Subpart B—Nondiscrimination and Access 

to Services 

39.21 What is the general 

nondiscrimination requirement of this 

Part? 

39.23 What are the requirements 

concerning contractors to owners and 

operators of passenger vessels? 

39.25 May PVOs refuse to provide 

transportation or use of a vessel on the 

basis of disability? 

39.27 Can a PVO take action to deny 

transportation or restrict services to a 

passenger with a disability based on 

safety concerns? 

39.29 May PVOs limit the number of 

passengers with a disability on a 

passenger vessel? 

39.31 May PVOs limit access to 

transportation or use of a vessel on the 

basis that a passenger has a 

communicable disease? 

39.33 May PVOs require a passenger with a 

disability to provide a medical 

certificate? 

39.35 May PVOs require a passenger with a 

disability to provide advance notice that 

he or she is traveling on or using a 

passenger vessel when no special 

services are sought? 

39.37 May PVOs require a passenger with a 

disability to provide advance notice in 

order to obtain particular auxiliary aids 

and services or to arrange group travel? 

39.39 How do PVOs ensure that passengers 

with disabilities are able to use 

accessible cabins? 

39.41 May a passenger with a disability be 

required to travel with another person? 

39.43 May PVOs impose special charges on 

passengers with a disability for 

providing services required by this rule? 

39.45 May PVOs impose other restrictions 

on passengers with a disability that they 

do not impose on other passengers? 

39.47 May PVOs require passengers with a 

disability to sign waivers or releases? 

Subpart C—Information for Passengers 

39.51 What is the general requirement for 

PVOs’ provision of auxiliary aids and 

services to passengers? 

39.53 What information must PVOs provide 

to passengers with a disability? 

39.55 Must information and reservation 

services of PVOs be accessible to 

individuals with hearing or vision 

impairments? 

39.57 Must PVOs make copies of this rule 

available to passengers? 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
38894 Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 

Subpart D—Accessibility of Landside 

Facilities 

39.61 What requirements must PVOs meet 

concerning the accessibility of terminals 

and other landside facilities? 

39.63 What modifications and auxiliary 

aids and services are required at 

terminals and other landside facilities for 

individuals with hearing or vision 

impairments? 

Subpart E—Accessibility of Vessels 

[Reserved] 

Subpart F—Assistance and Services to 

Passengers with Disabilities 

39.81 What assistance must PVOs provide 

to passengers with a disability in getting 

to and from a passenger vessel? 

39.83 What are PVOs’ obligations for 

assisting passengers with a disability in 

getting on and off a passenger vessel? 

39.85 What services must PVOs provide to 

passengers with a disability on board a 

passenger vessel? 

39.87 What services are PVOs not required 

to provide to passengers with a disability 

on board a passenger vessel? 

39.89 What requirements apply to on-board 

safety briefings, information, and drills? 

39.91 Must PVOs permit passengers with a 

disability to travel with service animals? 

39.93 What wheelchairs and other assistive 

devices may passengers with a disability 

bring onto a passenger vessel? 

39.95 May PVOs limit their liability for the 

loss of or damage to wheelchairs and 

other assistive devices? 

Subpart G—Complaints and Enforcement 

Procedures 

39.101 What are the requirements for 

providing Complaints Resolution 

Officials? 

39.103 What actions do CROs take on 

complaints? 

39.105 How must PVOs respond to written 

complaints? 

39.107 Where may persons obtain 

assistance with matters covered by this 

regulation? 

39.109 What enforcement actions may be 

taken under this Part? 

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

49 U.S.C. 322; 29 U.S.C. 794. 

Subpart A—General 

§ 39.1 What is the purpose of this Part? 

The purpose of this Part is to carry out 

the Americans with Disabilities Act and 

Section 504 of the Rehabilitation Act of 

1973 with respect to passenger vessels. 

This rule prohibits owners and 

operators of passenger vessels, 

including U.S. and foreign-flag vessels, 

from discriminating against passengers 

on the basis of disability; requires 

vessels and related facilities to be 

accessible; and requires owners and 

operators of vessels to take steps to 

accommodate passengers with 

disabilities. 

§ 39.3 What do the terms in this rule 

mean? 

In this regulation, the terms listed in 

this section have the following 

meanings: 

‘‘Accessible’’ means, with respect to 

vessels and facilities, complying with 

the applicable requirements of this Part. 

‘‘The Act’’ or ‘‘ADA’’ means the 

Americans with Disabilities Act of 1990 

(Pub. L. 101–336, 104 Stat. 327, 42 

U.S.C. 12101–12213 and 47 U.S.C. 225 

and 611), as it may be amended from 

time to time. 

‘‘Assistive device’’ means any piece of 

equipment that assists a passenger with 

a disability to cope with the effects of 

his or her disability. Such devices are 

intended to assist a passenger with a 

disability to hear, see, communicate, 

maneuver, or perform other functions of 

daily life, and may include medical 

devices. 

‘‘Auxiliary aids and services’’ 

includes: 

(1) Qualified interpreters on-site or 

through video remote interpreting (VRI) 

services; notetakers; real-time computeraided transcription services; written 

materials; exchange of written notes; 

telephone handset amplifiers; assistive 

listening devices; assistive listening 

systems; telephones compatible with 

hearing aids; closed caption decoders; 

open and closed captioning, including 

real-time captioning; voice, text, and 

video-based telecommunications 

products and systems, including text 

telephones (TTYs), videophones, and 

captioned telephones, or equally 

effective telecommunications devices; 

videotext displays; accessible electronic 

and information technology; or other 

effective methods of making aurally 

delivered information available to 

individuals who are deaf or hard of 

hearing; 

(2) Qualified readers, taped texts, 

audio recordings, brailed materials and 

displays, screen reader software, 

magnification software, optical readers, 

secondary auditory programs (SAP), 

large print materials, accessible 

electronic and information technology, 

or other effective methods of making 

visually delivered materials available to 

individuals who are blind or have low 

vision; 

(3) Acquisition or modification of 

equipment or devices; or 

(4) Other similar services or actions. 

‘‘Coast Guard’’ means the United 

States Coast Guard, an agency of the 

Department of Homeland Security. 

‘‘Commerce’’ means travel, trade, 

transportation, or communication 

among the several States, between any 

foreign country or any territory and 

possession and any State, or between 

points in the same State but through 

another State or foreign country. 

‘‘Department’’ or ‘‘DOT’’ means the 

United States Department of 

Transportation, including any of its 

agencies. 

‘‘Designated public transportation’’ 

means transportation provided by a 

public entity by passenger vessel that 

provides the general public with general 

or special service, including charter 

service, on a regular and continuing 

basis. 

‘‘Direct threat’’ means a significant risk 

to the health or safety of others that 

cannot be eliminated by a modification 

of policies, practices, or procedures, or 

by the provision of auxiliary aids or 

services. 

‘‘Disability’’ means, with respect to an 

individual, a physical or mental 

impairment that substantially limits one 

or more of the major life activities of 

such individual; a record of such an 

impairment; or being regarded as having 

such an impairment. 

(1) The phrase physical or mental 

impairment means— 

(i) Any physiological disorder or 

condition, cosmetic disfigurement, or 

anatomical loss affecting one or more of 

the following body systems: 

Neurological, musculoskeletal, special 

sense organs, respiratory including 

speech organs, cardiovascular, 

reproductive, digestive, genito-urinary, 

hemic and lymphatic, skin, and 

endocrine; 

(ii) Any mental or psychological 

disorder, such as mental retardation, 

organic brain syndrome, emotional or 

mental illness, and specific learning 

disabilities; 

(iii) The term physical or mental 

impairment includes, but is not limited 

to, such contagious or noncontagious 

diseases and conditions as orthopedic, 

visual, speech, and hearing 

impairments; cerebral palsy, epilepsy, 

muscular dystrophy, multiple sclerosis, 

cancer, heart disease, diabetes, mental 

retardation, emotional illness, specific 

learning disabilities, HIV disease, 

tuberculosis, drug addiction and 

alcoholism; 

(iv) The phrase physical or mental 

impairment does not include 

homosexuality or bisexuality. 

(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 work. 

(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. 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 38895 

(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; or 

(iii) Psychoactive substance abuse 

disorders resulting from the current 

illegal use of drugs. 

‘‘Facility’’ means all or any portion of 

buildings, structures, sites, complexes, 

equipment, roads, walks, passageways, 

parking lots, or other real or personal 

property, including the site where the 

building, property, structure, or 

equipment is located. 

‘‘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 by a public or private 

entity itself or by a person under a 

contractual or other 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, 

whether or not for hire. The term does 

not include boats or other craft rented 

or leased to and operated solely by 

consumers or fixed floating structures 

permanently moored or attached to a 

landside facility. 

‘‘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. To be a 

PVO for purposes of this Part, a private 

entity must be a private entity primarily 

engaged in the business of transporting 

people, as determined by the 

Department of Transportation in 

consultation with the Department of 

Justice. 

‘‘Private entity’’ means any entity 

other than a public entity that is 

primarily engaged in the business of 

transporting people. 

‘‘Public entity’’ means: 

(1) Any State or local government; or 

(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). 

‘‘Qualified individual with a 

disability’’ means an individual with a 

disability— 

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

a ‘‘passenger with a disability’’), with 

respect to obtaining transportation on or 

use of a passenger vessel, or other 

services or accommodations required by 

this Part, 

(i) 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 

(ii) 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 

(iii) 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 modifications, 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. 

‘‘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, where the private entity is 

primarily engaged in the business of 

transporting people. 

‘‘Terminal’’ means, with respect to 

passenger vessel transportation, the 

portion of a property located adjacent to 

a dock, entry ramp, or other means of 

boarding a passenger vessel, including 

areas through which passengers gain 

access to land transportation, passenger 

shelters, designated waiting 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 any mobility aid 

belonging to any class of three or fourwheeled devices, usable indoors, 

designed for and used by individuals 

with mobility impairments, whether 

operated manually or powered. 

‘‘You’’ means the owner or operator of 

a passenger vessel, unless the context 

requires a different meaning. 

§ 39.5 To whom do the provisions of this 

Part apply? 

(a) Except as provided in paragraph 

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

to you if you are the owner or operator 

of any passenger vessel, and you are: 

(1) A public entity that provides 

designated public transportation; or 

(2) A private entity primarily engaged 

in the business of transporting people 

whose operations affect commerce and 

that provides specified public 

transportation; 

(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. 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
38896 Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 

§ 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 part 35 or 36, as applicable). 

§ 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 before November 3, 2010 you 

may continue to apply the foreign legal 

requirement pending the Department’s 

response to your waiver request. 

(e) The Department shall grant the 

waiver request if it determines that the 

binding legal requirement of a foreign 

nation applies, that it does preclude 

compliance with a provision of this 

Part, and that the PVO has provided an 

effective alternative means of achieving 

the objective of the provision of this Part 

subject to the waiver or clear and 

convincing evidence that it would be 

impossible to achieve this objective in 

any way. 

§ 39.11 [Reserved] 

§ 39.13 When must PVOs comply with the 

provisions of this part? 

You are required to comply with the 

requirements of this part beginning 

November 3, 2010, except as otherwise 

provided in individual sections of this 

part. 

Subpart B—Nondiscrimination and 

Access to Services 

§ 39.21 What is the general 

nondiscrimination requirement of this part? 

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

the following things, either directly or 

through a contractual, licensing, or 

other arrangement: 

(1) You must not discriminate against 

any qualified individual with a 

disability, by reason of such disability, 

with respect to the individual’s use of 

a 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, 

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)(1) As a PVO that is a private 

entity, you must make reasonable 

modifications in policies, practices, or 

procedures when such modifications are 

necessary to afford such goods, services, 

facilities, privileges, advantages, or 

accommodations to individuals with 

disabilities, unless you can demonstrate 

that making such modifications would 

fundamentally alter the nature of such 

goods, services, facilities, privileges, 

advantages, or accommodations. 

(2) As a PVO that is a public entity, 

you must make reasonable 

modifications in policies, practices, or 

procedures when necessary to avoid 

discrimination on the basis of disability, 

unless you can demonstrate that making 

the modifications would fundamentally 

alter the nature of the services, 

programs, or activities you offer. 

§ 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 

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 or agreements 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. With respect to 

contracts or agreements existing on 

November 3, 2010, you must ensure the 

inclusion of this assurance by November 

3, 2011 or on the next occasion on 

which the contract or agreement is 

renewed or amended, whichever comes 

first. 

(1) This assurance must commit the 

contractor to compliance with all 

applicable provisions of this Part in 

activities performed on behalf of the 

PVO. 

(2) The assurance must also commit 

the contractor to implementing 

directives issued by your Complaints 

Resolution Officials (CROs) under 

§ 39.103. 

(c) As a PVO, you must also include 

such an assurance of compliance in 

your contracts or agreements of 

appointment with U.S. travel agents. 

With respect to contracts or agreements 

with U.S. travel agents existing on 

November 3, 2010, you must ensure the 

inclusion of this assurance by November 

3, 2011 or on the next occasion on 

which the contract or agreement is 

renewed or amended, whichever comes 

first. You are not required to include 

such an assurance in contracts with 

foreign travel agents. 

(d) You remain responsible for your 

contractors’ and U.S. travel agents’ 

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 or U.S. 

travel agent. 

§ 39.25 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) 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 § 39.27 or is 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 38897 

otherwise specifically permitted by this 

part. You must provide this written 

statement to the person within 10 

calendar days of the refusal of 

transportation or use of the vessel. 

§ 39.27 Can a PVO take action to deny 

transportation or restrict services to a 

passenger with a disability based on safety 

concerns? 

(a) As a PVO, you may take action to 

deny transportation or restrict services 

to a passenger with a disability if 

necessitated by legitimate safety 

requirements. Safety requirements must 

be based on actual risks and not on mere 

speculation, stereotypes, or 

generalizations about individuals with 

disabilities. 

Example 1 to paragraph 39.27(a): You may 

take such action in order to comply with 

Coast Guard safety regulations. 

Example 2 to paragraph 39.27(a): You may 

take such action if accommodating a large or 

heavy wheelchair would, together with its 

occupant, create weight and balance problem 

that could affect adversely the seaworthiness 

of the vessel or impede emergency egress 

from the vessel. 

Example 3 to paragraph 39.27(a): You 

could restrict access to a lifeboat for a 

mobility device that would limit access to the 

lifeboat for other passengers. 

(b) In taking action pursuant to 

legitimate safety requirements, you must 

take the action that imposes the 

minimum feasible burdens or 

limitations from the point of view of the 

passenger. For example, if you can meet 

legitimate safety requirements by a 

means short of refusing transportation to 

a passenger, you must do so. 

(c) You may take action to deny 

transportation or restrict services to a 

passenger if the passenger poses a direct 

threat to others. In determining whether 

an individual poses a direct threat to the 

health or safety of others, the PVO must 

make an individualized assessment, 

based on reasonable judgment that relies 

on current medical knowledge or on the 

best available objective evidence, to 

ascertain: The nature, duration, and 

severity of the risk; the probability that 

the potential injury will actually occur; 

and whether reasonable modifications 

of policies, practices, or procedures will 

mitigate the risk. 

§ 39.29 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 

other than individuals with a mobility 

disability on your vessel. However, if in 

the Captain’s judgment, weight or 

stability issues are presented by the 

presence of mobility devices and would 

conflict with legitimate safety 

requirements pertaining to the vessel 

and its passengers, then the number of 

passengers with mobility aids may be 

limited, but only to the extent 

reasonable to prevent a avoid such a 

conflict. 

§ 39.31 May PVOs limit access to 

transportation or use of a vessel on the 

basis that a passenger has a communicable 

disease? 

(a) You must not take any of the 

following actions on the basis that a 

passenger has a communicable disease 

or infection, unless one of the 

conditions of paragraph (b) of this 

section exists: 

(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) You may take actions listed in 

paragraph (a) of this section only if 

either or both of the conditions listed in 

paragraphs (b)(1) and (2) of this section 

are met. The action you take must be the 

least restrictive from the point of view 

of the passenger, consistent with 

protecting the health of other 

passengers. 

(1) 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 or 

should travel only under conditions 

specified by the public health 

authorities; 

(2) 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. 

Example 1 to paragraph 39.31(b)(2). A 

passenger has a common cold. This condition 

is readily transmissible by casual contact but 

does not have serious health consequences. 

You may not take any of the actions listed 

in paragraph (a) of this section. 

Example 2 to paragraph 39.31(b)(2): A 

passenger has HIV/AIDS. This condition is 

not readily transmissible by casual contact 

but does have serious health consequences. 

You may not take any of the actions listed 

in paragraph (a) of this section. 

Example 3 to paragraph 39.31(b)(2): A 

passenger has SARS or a norovirus. These 

conditions are readily transmissible by casual 

contact and have serious health 

consequences. You may take an action listed 

in paragraph (a) of this section. 

Example 4 to paragraph 39.31(b)(2). A 

passenger has a condition that is not readily 

transmissible by casual contact to or does not 

have serious health consequences for the 

general passenger population. However, it is 

possible that it could be readily transmitted 

by casual contact with and have serious 

health consequences for an individual with 

a severe allergy or severely compromised 

immune system. You may not take any of the 

actions listed in paragraph (a) of this section. 

(c) Any action of those listed in 

paragraph (a) of this section that you 

take under paragraph (b) of this section 

must be the least drastic action you can 

take to protect the health of other 

passengers. For example, if you can 

protect the health of other passenger by 

imposing a condition on the 

transportation of a passenger with a 

communicable disease (e.g., limiting the 

passenger’s access to certain facilities on 

the vessel for a period of time), you 

cannot totally deny transportation on 

the vessel. 

(d) For purposes of paragraph (a)(4) of 

this section, a medical certificate is a 

written statement from the passenger’s 

physician saying that the passenger’s 

disease or infection would not, under 

the present conditions in the particular 

passenger’s case, be readily 

communicable to other persons by 

casual contact during the normal course 

of the passenger’s transportation or use 

of the vessel. Such a 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 sufficiently recent to pertain 

directly to the communicable disease 

presented by the passenger at the time 

the passenger seeks to board the vessel. 

(e) 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 

available 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. If there is no available 

reservation within one year, you must 

provide a refund. 

(f) 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. 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
38898 Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 

§ 39.33 May PVOs require a passenger 

with a disability to provide a medical 

certificate? 

Except as provided in § 39.31, you 

must not require a passenger with a 

disability to have a medical certificate 

as a condition for being provided 

transportation on your vessel. 

§ 39.35 May PVOs require a passenger 

with a disability to provide advance notice 

that he or she is traveling on or using a 

passenger vessel when no particular 

services are sought? 

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 when the passenger is not seeking 

particular auxiliary aids or services, or 

special privileges or services, that in 

order to be provided need to be arranged 

before the passenger arrives to board the 

vessel. The PVO always has an 

obligation to provide effective 

communication between the PVO and 

individuals who are deaf or hard of 

hearing or blind or visually impaired 

through the use of appropriate auxiliary 

aids and services. 

§ 39.37 May PVOs require a passenger 

with a disability to provide advance notice 

in order to obtain particular auxiliary aids 

and services or to arrange group travel? 

(a) Except as provided in this section, 

as a PVO you must not require a 

passenger with a disability to provide 

advance notice in order to obtain 

services or privileges required by this 

Part. 

(b) 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. 

(c) With respect to providing 

particular auxiliary aids and services, 

you may request reasonable advance 

notice to guarantee the availability of 

those aids or services. 

(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 privileges, 

the notice is communicated, clearly and 

on time, to the people responsible for 

providing the requested service or 

accommodation. 

§ 39.39 How do PVOs ensure that 

passengers with disabilities are able to use 

accessible cabins? 

(a) As a PVO operating a vessel that 

has accessible cabins, you must follow 

the requirements of this Part to ensure 

that passengers with disabilities who 

need accessible cabins have 

nondiscriminatory access to them. 

(b) You must, with respect to 

reservations made by any means (e.g., 

telephone, Internet, in person, or 

through a third party): 

(1) Modify your policies, practices, or 

procedures to ensure that individuals 

with disabilities can make reservations 

for accessible cabins during the same 

hours and in the same manner as 

individuals who do not need accessible 

cabins; 

(2) Identify and describe accessible 

features in the cabins offered through 

your reservations service in enough 

detail to permit individuals with 

disabilities to assess independently 

whether a given cabin meets his or her 

accessibility needs. 

(3) Ensure that accessible cabins are 

held for use by individuals with 

disabilities until all other cabins in that 

class of service have been rented; 

(4) Reserve accessible cabins upon 

request by a passenger with disabilities 

and ensure that the specific accessible 

cabin reserved by that passenger is held 

for him or her, even you do not 

normally hold specific cabins for 

passengers who make reservations. 

(c) You may release unsold accessible 

cabins to persons without disabilities 

for their own use when all other cabins 

in the same class of service and price for 

a voyage have been reserved. 

(d) If a passenger with a disability 

seeks to reserve an accessible cabin in 

a given class of service, and there is not 

an available accessible cabin in that 

class of service, but there is an available 

accessible cabin in a different class of 

service, you must allow the passenger to 

reserve that accessible cabin at the price 

of the requested class of service of the 

class of service in which the accessible 

cabin exists, whichever is lower. 

(e) As a PVO, you are never required 

to deny transportation to any passenger 

who has already reserved passage in 

order to accommodate a passenger with 

a disability in an accessible cabin. 

(f) You must not require proof of 

disability, including, for example, a 

doctor’s note, before reserving an 

accessible cabin. 

(g) To prevent fraud in the assignment 

of accessible cabins (e.g., attempts by 

individuals who do not have disabilities 

to reserve accessible cabins because 

they have greater space, you— 

(1) Must inquire of persons seeking to 

reserve such cabins whether the 

individual (or an individual for whom 

the cabin is being reserved) has a 

mobility disability or a disability that 

requires the use of the accessible 

features that are provided in the cabin. 

(2) May require a written attestation 

from the individual that accessible 

cabin is for a person who has a mobility 

disability or a disability that requires 

the use of the accessible features that are 

provided in the cabin. 

(h) You must investigate the potential 

misuse of accessible cabins where there 

is good cause to believe that such cabins 

have been purchased fraudulently, and 

you may take appropriate action against 

someone who has reserved or purchased 

such a cabin fraudulently. For example, 

if an individual who does not have a 

disability reserves an accessible cabin, 

after having attested that he or she has 

a mobility disability, you may deny 

transportation to the individual. 

§ 39.41 May a passenger with a disability 

be required to travel with another person? 

(a) 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) Your personnel are not required to 

perform personal tasks (e.g., assisting 

with eating, dressing, toileting) for a 

passenger. 

§ 39.43 May PVOs impose special charges 

on passengers with a disability for 

providing services 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 available only in a type or 

class of service or part of a vessel that 

are more expensive than the type or 

class of service or part of 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, or services that this rule 

requires to be provided to passengers 

with a disability. 

§ 39.45 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 or services; 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 38899 

(4) Requiring passengers to wear 

badges or other special identification; or 

(5) Requiring ambulatory passengers, 

including but not limited to blind or 

visually impaired passengers, to use a 

wheelchair or other mobility device in 

order to receive assistance required by 

this Part or otherwise offered to the 

passenger. 

(c) Special muster stations for 

disabled individuals are permissible for 

emergency evacuations in order to 

centrally locate available resources. 

§ 39.47 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 not 

required of all passengers in order to 

receive transportation or use of a vessel 

or to receive services relating to 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 mobility or 

assistive devices. 

Subpart C—Information for 

Passengers 

§ 39.51 What is the general requirement 

for PVOs’ provision of auxiliary aids and 

services to passengers? 

(a) If you are a PVO that is a public 

entity, you must furnish appropriate 

auxiliary aids and services where 

necessary to afford an individual with a 

disability an equal opportunity to 

participate in, and enjoy the benefits of, 

a service, program or activity. In 

determining what type of auxiliary aid 

or service is necessary, you must give 

primary consideration to the requests of 

individuals with disabilities. 

(b) If you are a PVO that is a private 

entity, you must furnish appropriate 

auxiliary aids or services where 

necessary to ensure effective 

communication with individuals with 

disabilities. 

(c) If a provision of a particular 

auxiliary aid or service would result in 

a fundamental alteration in the nature of 

the goods, services, facilities, privileges, 

advantages, or accommodations being 

offered or in an undue burden, you shall 

provide an alternative auxiliary aid or 

service, if one exists, that would not 

result in a fundamental alteration or 

undue burden but would nevertheless 

ensure that, to the maximum extent 

possible, individuals with disabilities 

receive the goods, services, facilities, 

privileges, advantages, or 

accommodations you offer. 

(d) As a PVO, it is your responsibility, 

not that of a passenger with a disability, 

to provide needed auxiliary aids and 

services. 

§ 39.53 What information must PVOs 

provide to passengers with a disability? 

As a PVO, you must provide the 

following information to individuals 

who self-identify as having a disability 

(including those who are deaf or hard of 

hearing or who are blind or visually 

impaired) or who request disabilityrelated 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, toilet rooms, staterooms, decks, 

dining, and recreational facilities. 

(b) Any limitations of the usability of 

the vessel or portions of the vessel by 

people with mobility impairments; 

(c) Any limitations on the 

accessibility of boarding and 

disembarking at ports at which the 

vessel will call (e.g., because of the use 

of inaccessible lighters or tenders as the 

means of coming to or from the vessel); 

(d) Any limitations on the 

accessibility of services or tours 

ancillary to the transportation provided 

by the vessel concerning which the PVO 

makes arrangements available to 

passengers; 

(e) Any limitations on the ability of a 

passenger to take a service animal off 

the vessel at foreign ports at which the 

vessel will call (e.g., because of 

quarantine regulations) and provisions 

for the care of an animal acceptable to 

the PVO that the passenger must meet 

when the passenger disembarks at a port 

at which the animal must remain aboard 

the vessel. 

(f) The services, including auxiliary 

aids and services, available to 

individuals who are deaf or hard of 

hearing or blind or visually impaired. 

(g) Any limitations on the ability of 

the vessel to accommodate passengers 

with a disability. 

(h) Any limitations on the 

accessibility of boarding and 

disembarking at ports at which the 

vessel will call and services or tours 

ancillary to the transportation provided 

by the vessel concerning which the PVO 

makes arrangements available to 

passengers. 

§ 39.55 Must information and reservation 

services of PVOs be accessible to 

individuals with hearing or vision 

impairments? 

This section applies to information 

and reservation services made available 

to 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 and who use 

a text telephone (TTY) or a TTY relay 

service (TRS). 

(1) You must make service to TTY/ 

TRS users available during the same 

hours as telephone service for the 

general public. 

(2) Your response time to TTY/TRS 

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 this Part]. 

(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 language(s) 

in which you make it available to the 

general public. 

§ 39.57 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. If you are an entity that does 

not receive Federal financial assistance, 

you are not required to make this copy 

available in languages other than 

English. You must make it available in 

accessible formats on request, subject to 

the provisions of § 39.51(c). 

Subpart D—Accessibility of Landside 

Facilities 

§ 39.61 What requirements must PVOs 

meet concerning the accessibility of 

terminals and other landside facilities? 

As a PVO, you must comply with the 

following requirements with respect to 

all terminal and other landside facilities 

you own, lease, or control in the United 

States (including its territories, 

possessions, and commonwealths): 

(a) With respect to new facilities, you 

must do the following: 

(1) You must ensure that terminal 

facilities are readily accessible to and 

usable by individuals with disabilities, 

including individuals who use wheeled 

mobility assistive devices. You are 

deemed to comply with this obligation 

if the facilities meet the requirements of 

49 CFR 37.9, and the standards 

referenced in that section. 

(2) You must ensure that there is an 

accessible route between the terminal or 

other passenger waiting area and the 

boarding ramp or device used for the 

vessel. An accessible route is one 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
38900 Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 

meeting the requirements of the 

standards referenced in 49 CFR 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, 

your obligations are the following: 

(1) If you are a public entity, you must 

ensure that your terminals and other 

landside facilities meet program 

accessibility requirements, consistent 

with Department of Justice requirements 

at 28 CFR 35.150. 

(2) If you are a private entity, you are 

required to remove architectural barriers 

where doing so is readily achievable, 

i.e., easily accomplishable and able to 

be carried out without much difficulty 

or expense, consistent with Department 

of Justice requirements at 28 CFR 36.304 

or, if not readily achievable, ensure that 

your goods, services, facilities, 

privileges, advantages, or 

accommodations are available through 

alternative methods if those methods are 

readily achievable, consistent with 

Department of Justice regulations at 28 

CFR 36.305. 

(d) Where you share responsibility for 

ensuring accessibility of a facility with 

another entity, you and the other entity 

are jointly and severally responsible for 

meeting applicable accessibility 

requirements. 

§ 39.63 What modifications and auxiliary 

aids and services are required at terminals 

and other landside facilities for individuals 

with hearing or vision impairments? 

(a) As a PVO, you must ensure that 

the information you provide to the 

general public at terminals and other 

landside facilities is effectively 

communicated to individuals who are 

blind or who have impaired vision and 

deaf or hard-of-hearing individuals, 

through the use of auxiliary aids and 

services. To the extent that this 

information is not available to these 

individuals through accessible signage 

and/or verbal public address 

announcements or other means, your 

personnel must promptly provide the 

information to such individuals on their 

request, in languages (e.g., English, 

Norwegian, Japanese) 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. 

Subpart E—Accessibility of Vessels 

[Reserved] 

Subpart F—Assistance and Services to 

Passengers With Disabilities 

§ 39.81 What assistance must PVOs 

provide to passengers with a disability in 

getting to and from a passenger vessel? 

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

for, or otherwise arrange for 

transportation to and from a passenger 

vessel in the U.S. (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) of a 

terminal in the U.S. 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 toilet room. 

§ 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 

assistance from you in getting on or off 

the vessel unless it is provided to all 

passengers as a matter of course. 

(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 vessel personnel). 

§ 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 physical 

barriers rendering an area not readily 

accessible and usable to the passenger. 

(b) If food is provided to passengers 

on the vessel, assistance in preparation 

for eating, such as opening packages and 

identifying food; 

(c) Effective communication with 

passengers who have vision 

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

timely access to information the PVO 

provides to other passengers (e.g., 

weather, on-board services, delays). 

§ 39.87 What services are PVOs not 

required to provide to passengers with a 

disability on board a passenger vessel? 

As a PVO, you are not required to 

provide extensive special assistance to 

passengers with a disability. For 

purposes of this section, extensive 

special assistance includes the 

following activities: 

(a) Assistance in actual eating; 

(b) Assistance within a toilet room or 

assistance elsewhere on the vessel with 

elimination functions; and 

(c) Provision of medical equipment or 

services, or personal devices, except to 

the extent provided to all passengers. 

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

drills? 

As a PVO, you must comply with the 

following requirements with respect to 

safety briefings, information, or drills 

provided to passengers: 

(a) You must provide the briefings or 

other safety-related information through 

means that effectively communicate 

their content to persons with vision or 

hearing impairments, using auxiliary 

aids and services where necessary for 

effective communication. This includes 

providing written materials in 

alternative formats that persons with 

vision impairments can use. 

(b) You must not require any 

passenger with a disability to 

demonstrate that he or she has listened 

to, read, or understood the information 

presented, except to the extent that you 

impose such a requirement on all 

passengers. You must not take any 

action adverse to a qualified individual 

with a disability on the basis that the 

person has not ‘‘accepted’’ the briefing. 

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

safety briefings to passengers on video 

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

passengers with impaired hearing (e.g., 

through use of captioning or placement 

of a sign language interpreter in the 

video). 

(d) You must provide whatever 

assistance is necessary to enable 

passengers with disabilities to 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 38901 

participate fully in safety or emergency 

evacuation drills provided to all 

passengers. 

(e) You must maintain evacuation 

programs, information, and equipment 

in locations that passengers can readily 

access and use. 

§ 39.91 Must PVOs permit passengers with 

a disability to travel with service animals? 

(a) As a PVO, you must permit service 

animals to accompany passengers with 

a disability. 

(b) You must permit the service 

animal to accompany the passenger in 

all locations that passengers can use on 

a vessel, including in lifeboats. 

(c) You must permit the passenger 

accompanied by the service animal to 

bring aboard a reasonable quantity of 

food for the animal aboard the vessel at 

no additional charge. If your vessel 

provides overnight accommodations, 

you must also provide reasonable 

refrigeration space for the service 

animal food. 

(d) 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. 

(e) If the legal requirements of a 

foreign government (e.g., quarantine 

regulations) do not permit a service 

animal to disembark at a foreign port, as 

a PVO you may require the animal to 

remain on board while its user leaves 

the vessel. You must work with the 

animal’s user to ensure that the animal 

is properly cared for during the user’s 

absence. 

§ 39.93 What wheelchairs and other 

assistive devices may passengers with a 

disability bring onto a passenger vessel? 

(a) As a PVO subject to Title III of the 

ADA, you must permit individuals with 

mobility disabilities to use wheelchairs 

and manually powered mobility aids, 

such as walkers, crutches, canes, braces, 

or other similar devices designed for use 

by individuals with mobility disabilities 

in any areas open to pedestrian use. 

(b)(1) As A PVO subject to Title III of 

the ADA, you must make reasonable 

modifications in your policies, 

practices, or procedures to permit the 

use of other power-driven mobility 

devices by individuals with mobility 

disabilities, unless you can demonstrate 

that a device cannot be operated on 

board the vessel consistent with 

legitimate safety requirements you have 

established for the vessel. 

(2) In determining whether a 

particular other power-driven mobility 

device can be allowed on a specific 

vessel as a reasonable modification 

under paragraph (b)(1) of this section, 

the PVO must consider: 

(i) The type, size, weight, dimensions, 

and speed of the device; 

(ii) The vessel’s volume of pedestrian 

traffic (which may vary at different 

times of the day, week, month, or year); 

(iii) The vessel’s design and 

operational characteristics (e.g., the size 

and balance requirements of the vessel, 

the density and placement of stationary 

devices, and the availability of storage 

for the device, if requested by the user); 

(iv) Whether legitimate safety 

requirements can be established to 

permit the safe operation of a device in 

the specific vessel; and 

(c)(1) As a PVO subject to Title III of 

the ADA, you must not ask an 

individual using a wheelchair or other 

power-driven mobility device questions 

about the nature and extent of the 

individual’s disability. 

(2) You may ask a person using an 

other power-driven mobility device to 

provide a credible assurance that the 

mobility device is required because of 

the person’s disability. In response to 

this inquiry, you must accept the 

presentation of a valid, State-issued 

disability parking placard or card, or 

State-issued proof of disability as a 

credible assurance that the use of the 

other power-driven mobility device is 

for the individual’s mobility disability. 

In lieu of a valid, State-issued disability 

parking placard or card, or State-issued 

proof of disability, a PVO shall accept 

as a credible assurance a verbal 

representation not contradicted by 

observable fact, that the other powerdriven mobility device is being used for 

a mobility disability. 

(d) As a PVO subject to Title II of the 

ADA, you must follow the requirements 

of paragraphs (a) through (c) of this 

section. In addition, any restriction you 

impose on the use of an other powered 

mobility device on your vessel must be 

limited to the minimum necessary to 

meet a legitimate safety requirement. 

For example, if a device can be 

accommodated in some spaces of the 

vessel but not others because of a 

legitimate safety requirement, you could 

not completely exclude the device from 

the vessel. 

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

permit passengers with a disability to 

bring wheelchairs or other powered 

mobility devices into lifeboats or other 

survival craft, in the context of an 

emergency evacuation of the vessel. 

§ 39.95 May PVOs limit their liability for 

loss of or damage to wheelchairs 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 wheeled 

mobility assistive devices or other 

assistive devices. The criterion for 

calculating the compensation for a lost, 

damaged, or destroyed wheelchair or 

other assistive device is the original 

purchase price of the device. 

Subpart G—Complaints and 

Enforcement Procedures 

§ 39.101 What are the requirements for 

providing Complaints Resolution Officials? 

(a) As a PVO, you must designate one 

or more Complaints Resolution Officials 

(CROs). 

(b) You must make a CRO available 

for contact on each vessel and at each 

terminal that you serve. The CRO may 

be made available in person or via 

telephone, if at no cost to the passenger. 

If a telephone link to the CRO is used, 

TTY or TRS service must be available so 

that persons with hearing impairments 

may readily communicate with the 

CRO. You must make CRO service 

available in the language(s) in which 

you make your other services available 

to the general public. 

(c) 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, policies, 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 (c)(1) of this section to 

passengers with a disability using those 

services. 

(d) Each CRO must be thoroughly 

familiar with the requirements of this 

Part and the PVO’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. 

(e) You must ensure that each of your 

CROs has the authority to make 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2
38902 Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 

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 may not be given 

authority to countermand a decision of 

the master of a vessel with respect to 

safety matters. 

§ 39.103 What actions do CROs take on 

complaints? 

When a complaint is made directly to 

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

CRO must promptly take dispositive 

action as follows: 

(a) If the complaint is made to a CRO 

before the action or proposed action of 

PVO personnel has resulted in a 

violation of a provision of this Part, the 

CRO must take, or direct other PVO 

personnel to take, whatever action is 

necessary to ensure compliance with 

this Part. 

(b) If an alleged violation of a 

provision of this Part has already 

occurred, and the CRO agrees that a 

violation has occurred, the CRO must 

provide to the complainant a written 

statement setting forth a summary of the 

facts and what steps, if any, the PVO 

proposes to take in response to the 

violation. 

(c) If the CRO determines that the 

PVO’s action does not violate a 

provision of this Part, the CRO must 

provide to the complainant a written 

statement including a summary of the 

facts and the reasons, under this Part, 

for the determination. 

(d) The statements required to be 

provided under this section must inform 

the complainant of his or her right to 

complain to the Department of 

Transportation and/or Department of 

Justice. The CRO must provide the 

statement in person to the complainant 

in person if possible; otherwise, it must 

be transmitted to the complainant 

within 10 calendar days of the 

complaint. 

§ 39.105 How must PVOs respond to 

written complaints? 

(a) As a PVO, you must respond to 

written complaints received by any 

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

instant message) concerning matters 

covered by this Part. 

(b) A passenger making a written 

complaint, must state whether he or she 

had contacted a CRO in the matter, 

provide the name of the CRO and the 

date of the contact, if available, and 

enclose any written response received 

from the CRO. 

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

respond to a complaint from a passenger 

postmarked or transmitted more than 45 

days after the date of the incident. 

(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. The 

response must be effectively 

communicated to the recipient. 

(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 or DOJ enforcement action 

under this part, as applicable. DOT has 

enforcement authority under Title II of 

the ADA for public entities and under 

section 504 of the Rehabilitation Act for 

entities that receive Federal financial 

assistance; DOJ has enforcement 

authority under Title III of the ADA for 

private entities. 

§ 39.107 Where may persons obtain 

assistance with matters covered by this 

regulation? 

A passenger, PVO, or any other 

person may obtain information, 

guidance, or other assistance concerning 

49 CFR part 39 from then DOT 

Departmental Office of Civil Rights and/ 

or DOT Office of General Counsel, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590. 

§ 39.109 What enforcement actions may be 

taken under this Part? 

(a) The Department of Transportation 

investigates complaints and conducts 

reviews or other inquiries into the 

compliance with this Part of PVOs that 

are Title II entities. 

(b) As a PVO subject to Title II of the 

ADA, you must be prepared to provide 

to the Department of Transportation a 

written explanation of your action in 

any situation in which you exclude or 

restrict an individual with a disability 

or any mobility or other assistive device 

used by such an individual with respect 

to the use of your vessel. 

(c) The Department of Transportation 

investigates complaints conducts 

compliance reviews or other inquiries 

into the compliance of this Part of 

PVOs, whether private or public 

entities, that receive Federal financial 

assistance from the Department, under 

section 504 of the Rehabilitation Act of 

1973, as amended. 

(d) The Department may refer any 

matter concerning the compliance of 

PVOs with this Part to the Department 

of Justice for enforcement action. 

(e) The Department of Justice 

investigates complaints and conducts 

reviews or other inquiries into the 

compliance with this Part of PVOs that 

are Title III entities. 

(f) The Department of Justice may file 

suit in Federal court against both Title 

II and Title III PVOs for violations of 

this part. 

[FR Doc. 2010–15101 Filed 7–2–10; 8:45 am] 

BILLING CODE 4910–9X–P 


wwoods2 on DSK1DXX6B1PROD with RULES-PART 2