You are on page 1of 19

Federal Register / Vol. 72, No.

14 / Tuesday, January 23, 2007 / Proposed Rules 2833

(Catalog of Federal Domestic Assistance No. comment. Note that all comments excursion vessels, sightseeing vessels,
83.100, ‘‘Flood Insurance.’’) received will be posted without change floating restaurants, cruise ships, and others.
to http://dms.dot.gov, including any Cruise ships are a particularly interesting
Dated: January 12, 2007.
example of vessels subject to ADA coverage.
David I. Maurstad, personal information provided.
Cruise ships are a unique mode of
Director, Mitigation Division, Federal Docket: You may view the public transportation. Cruise ships are self-
Emergency Management Agency, Department docket through the Internet at http:// contained floating communities. In addition
of Homeland Security. dms.dot.gov or in person at the Docket to transporting passengers, cruise ships
[FR Doc. E7–887 Filed 1–22–07; 8:45 am] Management System office at the above house, feed, and entertain passengers and
BILLING CODE 9110–12–P
address. thus take on aspects of public
FOR FURTHER INFORMATION CONTACT: accommodations. Therefore cruise ships
appear to be a hybrid of a transportation
Robert C. Ashby, Deputy Assistant service and a public accommodation. As
DEPARTMENT OF TRANSPORTATION General Counsel for Regulation and noted above, DOJ covers cruise ships as
Enforcement, Department of public accommodations under its Title III
49 CFR Part 39 Transportation, 400 7th Street, SW., rules.
Room 10424, Washington, DC 20590– In addition to being public
[Docket OST 2007 26829] accommodations, cruise ships clearly are
0001. (202) 366–9306 (voice); (202) 755–
RIN 2105–AB87 7687 (TDD); bob.ashby@dot.gov (e-mail). within the scope of a ‘‘specified public
transportation service.’’ The ADA prohibits
SUPPLEMENTARY INFORMATION: The
Transportation for Individuals With discrimination in the full and equal
Department of Transportation has enjoyment of specified public transportation
Disabilities: Passenger Vessels issued rules concerning services provided by a private entity that is
AGENCY: Department of Transportation, nondiscrimination on the basis of primarily engaged in the business of
Office of the Secretary. disability for almost every mode of transporting people and whose operations
passenger transportation, including affect commerce (§ 304(a)). ‘‘Specified public
ACTION: Notice of proposed rulemaking.
public transportation (bus, subway, transportation’’ is defined by § 301(10) as
SUMMARY: The Department is proposing commuter rail), over-the-road buses, ‘‘transportation by bus, rail, or any other
conveyance (other than by aircraft) that
to issue a new Americans with intercity rail, and air transportation. The
provides the general public with general or
Disabilities Act (ADA) rule to ensure only mode on which the Department special service (including charter service) on
nondiscrimination on the basis of has yet to propose rules is a regular and continuing basis.’’
disability by passenger vessels. This transportation by passenger vessels. Cruise ships easily meet the definition of
notice of proposed rulemaking (NPRM) With this NPRM, the Department is ‘‘specified public transportation.’’ Cruise
concerns service and policy issues. beginning the process of filling this ships are used almost exclusively for
Issues concerning physical accessibility remaining gap in our coverage of transporting passengers and no one doubts
standards will be addressed at a later transportation for individuals with that their operations affect commerce. Cruise
time, in conjunction with proposed disabilities. ships operate according to set schedules or
passenger vessel accessibility guidelines for charter and their services are offered to
Background the general public. Finally, despite some
drafted by the Access Board. seasonal variations, their services are offered
Comment Closing Date: Comments When the Department issued its first on a regular and continuing basis.
should be submitted by April 23, 2007. Americans with Disabilities Act (ADA) Virtually all cruise ships serving U.S. ports
Late-filed comments will be considered rules in 1991, we explicitly asserted are foreign-flag vessels. International law
to the extent practicable. coverage over passenger vessels. The clearly allows the U.S. to exercise
ADDRESSES: You may submit comments Department reserved action on jurisdiction over foreign-flag vessels while
identified by the docket number [OST passenger vessels in the regulatory text they are in U.S. ports, subject to treaty
of this final rule, and we made the obligations. A state has complete sovereignty
2007–26829] by any of the following
following statements on the subject in over its internal waters, including ports.
methods: Therefore, once a commercial ship
• Web site: http://dms.dot.gov. the preamble (56 FR 45599–45560;
voluntarily enters a port, it becomes subject
Follow the instructions for submitting September 6, 1991): to the jurisdiction of the coastal state. In
comments on the DOT electronic docket Ferries and passenger vessels operated by addition, a state may condition the entry of
site. public entities are covered by the ADA, and a foreign ship into its internal waters or ports
• Federal e-Rulemaking Portal: subject at this time to DOJ Title II on compliance with its laws and regulations.
http://www.regulations.gov. Follow the requirements as well as § 37.5 of this Part The United States thus appears to have
instructions for submitting comments. * * *. We anticipate further rulemaking to jurisdiction to apply ADA requirements to
• Fax: (202) 493–2251. create appropriate requirements for passenger foreign-flag cruise ships that call in U.S.
• Mail: Docket Management System; vessels * * *. The reason for this action is ports.
that, at the present time, the Department The U.S. Supreme Court recently
U.S. Department of Transportation, 400 lacks sufficient information to determine
Seventh Street, SW., Nassif Building, what are reasonable accessibility
affirmed the Department’s long-held
Room PL–401, Washington, DC 20590– requirements for various kinds of passenger view that the ADA covers passenger
0001. vessels. We note that the DOJ has determined vessels, specifically including foreign-
• Hand Delivery: To the Docket that passenger vessels encompassing places flag cruise ships. In Spector et al. v.
Management System; Room PL–401 on of public accommodation (e.g., cruise ships, Norwegian Cruise Lines, 545 U.S. 119
the plaza level of the Nassif Building, floating restaurants) are subject to the general (2005), the Court held that cruise ships
400 Seventh Street, SW., Washington, nondiscrimination and policies and practices are ‘‘public accommodations’’ that
DC, between 9 a.m. and 5 p.m., Monday portions of its Title III rule (Subparts B and provide ‘‘specified public
C of 28 CFR Part 36). The Department of transportation’’ within the meaning of
jlentini on PROD1PC65 with PROPOSAL

through Friday, except Federal holidays.


Transportation anticipates working with the
Instructions: You must include the Access Board and DOJ on further rulemaking
the ADA. The Court said that, while
agency name and docket number [OST– to define requirements for passenger vessels there may be some limitations on the
2007–26829] or the Regulatory * * *. The Department does want to make coverage of the ADA to matters purely
Identification Number (RIN) for this clear its view that the ADA does cover concerning the internal affairs of a
rulemaking at the beginning of your passenger vessels, including ferries, foreign-flag vessel, matters concerning

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
2834 Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules

the ship operators’ policies and to tenders; recognize the flexibility of when there are multiple PVOs who
conditions relating to transportation of cabin configurations; exclude from operate at a given landside facility or
passengers with disabilities (e.g., higher coverage shore excursions provided by who only use the facility infrequently.
fares or surcharges for disabled third-party-vendors, particularly in The Department realizes that entities
passengers, waivers of medical liability, foreign countries; have eligibility other than PVOs, such as municipalities
requirements for attendants) had criteria and direct threat provisions that or other private businesses, may own,
nothing to do with a ship’s internal allow operators to establish policies that lease, or control landside facilities that
affairs. Such matters, then, are clearly will avoid safety risks; permit passenger vessels use. The obligations of
subject to ADA jurisdiction. It is issues requirements for personal attendants; these entities would be controlled by
of this kind that are the focus of this and permit limitations on the Titles II and III of the ADA and, in some
NPRM. transportation of service animals. The cases, by section 504 of the
The Access Board has been working Department will discuss these Rehabilitation Act of 1973. We envision
for some time on drafting accessibility comments in context of the individual the relationship between the facility
guidelines for passenger vessels. On sections of the proposed rule. owner/controller and the PVO to be
November 26, 2004, the Access Board analogous to other situations in which
published for comment a notice of Section-by-Section Analysis entities subject to different disability
availability of draft guidelines for larger § 39.1 What is the purpose of this part? access rules share responsibility (e.g.,
passenger vessels with a capacity of public entity landlord subject to Title II
over 150 passengers or overnight This section briefly states the leases property to a private entity
accommodations for over 49 passengers. nondiscrimination-related purposes of subject to Title III). We seek comment
Since that time, the Access Board has the rule and specifies that on whether landside facility-specific
been reviewing comments it received nondiscrimination requirements apply language should be added to the
and planning work on a Regulatory to operators of foreign-flag as well as Department’s other ADA or section 504
Assessment for vessel guidelines. On U.S. vessels. rules.
July 7, 2006, the Access Board issued a § 39.3 What do the terms in this rule The NPRM does not propose making
second notice of availability asking for mean? this requirement applicable to facilities
comments on a revised draft of vessel located outside the U.S. However, we
guidelines. Following the review of This section proposes definitions of seek comment on whether the final rule
comments on that notice, the Access terms in this rule. Many of the should apply to facilities outside the
Board, in cooperation with the definitions are based on parallel U.S. if a PVO (as distinct from another
Department of Transportation, would definitions in the Department’s ADA foreign entity) owns, leases, or controls
issue an NPRM and Regulatory and Air Carrier Access Act (ACAA) the facility.
Assessment concerning physical regulations or Department of Justice The definition of ‘‘historic vessel’’ is
accessibility requirements for larger rules, adapted to the passenger vessel also one that is likely to become more
passenger vessels. As we envision it, the context. This preamble discussion significant when future rulemakings add
final rule resulting from such a future focuses on terms that are specific to the physical accessibility standards to Part
NPRM would ultimately be joined with passenger vessel context. Other terms 39. Following practice in other portions
a final rule resulting from the current would have the same meanings as they of the ADA, it is likely that historic
proposed rule in a single, do in other DOT disability rules. vessels (e.g., the USS Constellation in
comprehensive passenger vessel ADA Because this NPRM does not propose Baltimore harbor) would be exempted
rule. physical accessibility requirements for from some accessibility requirements.
On November 29, 2004, the vessels, the definition of ‘‘accessible’’ ‘‘New,’’ ‘‘existing,’’ and ‘‘used’’
Department published an advance will be fleshed out with proposed passenger vessel are also terms that will
notice of proposed rulemaking standards based on Access Board be of greater importance once physical
(ANPRM) asking questions about the guidelines in a future rulemaking. The accessibility standards are in place.
shape of future ADA requirements for definition of ‘‘direct threat,’’ drawn from They are based on new and used vehicle
passenger vessels (69 FR 69247). The Department of Justice regulations, definitions in the Department’s ADA
Department received 43 comments to concerns only threats to the health and rules for surface transportation modes.
the ANPRM. Most of these comments safety of others. Something that may With respect to the definition of ‘‘new
concerned the Access Board’s draft threaten only the health or safety of a passenger vessel,’’ which will be used in
guidelines and physical accessibility passenger with a disability by definition connection with vessel standards in
issues relating to existing and new cannot be a direct threat. Subpart E when they are added to the
vessels, and some of them concerned In addition to vessels, ‘‘facilities’’ regulation, we seek comment on
physical accessibility issues specific to include landside facilities that a vessel transition rules. That is, at what point
very small vessels. The Department is operator owns, leases, or controls in the in the procurement, design,
retaining these comments and will U.S. (including its territories, construction, and delivery of a vessel
consider them in context of the possessions, and commonwealths). A should requirements for new vessels
continuing work on the Access Board’s passenger vessel operator (PVO) would attach?
draft vessel guidelines and the future be viewed as controlling a facility, even ‘‘Operates’’ means the provision of
NPRM that would propose to if it did not own or lease it, if the facility transportation or other service by any
incorporate those guidelines in DOT owner, through a contract or other public or private entity on a passenger
rules. arrangement, delegated authority over vessel. Importantly, it also includes the
The only comment that concerned the use of the facility to the passenger vessel provision of transportation or other
issues included in this NPRM was from operator during those times in which service by another party having a
jlentini on PROD1PC65 with PROPOSAL

the International Council of Cruise the vessel was at the facility. Facilities contractual or other arrangement or
Lines (ICCL), a trade association for in these three categories would be relationship with the entity involved.
entities in the cruise industry. ICCL covered directly by Part 39. The As in other parts of the Department’s
recommended that rules exempt Department seeks comment on how accessibility rules, a party can contract
transfers of persons from larger vessels responsibilities should be allocated out its functions, but cannot contract

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules 2835

away its responsibilities. By ‘‘other responsible for compliance with these § 39.5 To whom do the provisions of
services,’’ we mean activities that take rules. this part apply?
place on a vessel other than simply For the most part, ‘‘passenger with a
going from Point A to Point B (e.g., food The Department proposes that the
disability’’ and ‘‘qualified individual provisions of this part apply to all
service, recreation, entertainment, with a disability’’ have the same
gambling). This section would also passenger vessels, regardless of size.
meaning for purposes of the proposed There are two major exceptions to this
cover situations in which a vessel makes rule. There could be situations in which
a round trip from Point A to Point A, general coverage. First, while all U.S.-
a qualified individual with a disability flagged vessels would be covered,
like some dinner, excursion, and
may not actually be a passenger, or in coverage of foreign-flag vessels would
gambling vessels do.
which someone is seeking to perform be limited to those that pick up or
‘‘Passenger vessel’’ is meant to be a functions on behalf of a person with a
broadly encompassing term for any boat, discharge passengers in the U.S.
disability. The ‘‘passenger with a
ship, or other craft that takes on For example, suppose a foreign-flag
disability’’ term includes both situations
members of the public for hire or other cruise PVO operates two ships. One of
in which someone buys a ticket to travel
activities conducted as a part of the them sails only among ports in Europe.
on a vessel and situations (e.g., a
vessel operators normal operations Another picks up passengers in Miami
gambling boat) in which members of the
(which could include promotional and cruises to several Caribbean ports.
public go on board, without a ticket, to
activities involving use of a vessel by The latter would be covered and the
members of the public for which a fare use the services provided on the vessel,
former would not. The Department
is not charged, free shuttle or ferry regardless of whether the vessel leaves
seeks comment on a situation that may
service). The only exception is for boats its dock or mooring.
occur, in which tickets are sold to U.S.
or other craft that are rented or leased ‘‘Terminal’’ would be defined passengers for a combined trip that
to consumers and which the consumers broadly, meaning any property or includes transportation to a non-U.S.
themselves (as distinct from the facilities adjacent to the means of port where they board a ship. For
passenger vessel operator and its boarding a vessel that passengers use to example, suppose Grand Fenwick
personnel) operate. The Department get to the vessel. A terminal, in this Cruise Lines sells a package to U.S.
seeks comment on whether there are sense, can be a large complex, a passengers including air fare from New
any additional situations that the rule building, or a very simple facility. York to the Bahamas, where passengers
should cover (e.g., the PVO or an Importantly, terminals are covered board the S.S. Grand Duchess Gloriana
organization to which the PVO makes under Part 39 only to the extent that the for a Caribbean cruise; should the ship
the vessel available provides a PVO owns or leases the terminal or transportation be covered for purposes
charitable or promotional excursion for exercises control over its selection, of Part 39 nondiscrimination rules?
which no fee is charged). The design, construction, or alteration (e.g.,
Department also seeks comment on The second exception concerns the
POV[A1] selects site for construction of future vessel accessibility standards.
whether there should be exceptions or new facility; or PVO has choice of
different provisions for vessels that are The NPRM reserves paragraph (c),
docking at existing accessible or which would state the scope of the
not primarily designed or used as inaccessible facility).
passenger vessels, but may carry applicability of these standards. The
As noted in the discussion of Department notes that the July 2006
passengers for hire on certain occasions
‘‘facility,’’ the Department seeks draft Access Board vessel [A2] would
(e.g., supply vessels, crew boats, school
training or sailing vessels, research comment on whether Part 39 should limit their application vessels permitted
vessels carrying students). apply to a terminal located outside the to carry over 150 passengers or over 49
U.S. if the PVO is involved in one of overnight passenger capacity categories,
In some cases, such as certain on-the-
these ways. If the PVO does none of as well as tenders with a capacity of 59
water gambling casinos, museums, or
these things, the terminal would not in or more and all ferries. The Department
restaurants, an activity takes place on a
any circumstance be covered under Part currently anticipates following the
structure that floats but is permanently
39, though other parts of the ADA and Access Board’s final guidelines, when
anchored or tethered to a dock or other
shore facility. On one hand, because it section 504 of the Rehabilitation Act of they are issued, with respect to
floats on the water, such a structure 1973, as amended, may well apply to coverage. The Department also seeks
could be regarded as a vessel covered by terminals located in the U.S. We also comment on whether there should be
this rule. On the other hand, because it note that activities that a PVO itself any vessel size or capacity limits on any
never actually goes anywhere, it could conducts, regardless of the facility in of the specific nondiscrimination
be regarded as a facility, like an on- which they are conducted, would be provisions that are proposed in this
shore building, that is more expected to be available to persons with NPRM with respect to subjects other
appropriately covered by Department of disabilities. than vessel accessibility standards.
Justice rules. We seek comment on this In other transportation contexts, there § 39.7 What other authorities
matter. has been considerable discussion of concerning nondiscrimination on the
The ‘‘passenger vessel operator’’ whether the long-standing definition of basis of disability apply to owners and
(PVO) is a term that includes both ‘‘wheelchair’’ remains adequate, in light operators of passenger vessels?
owners and operators of a passenger of the development and use of mobility
vessel. A PVO may be either a public or devices that may not fit within the This section simply points out that
a private entity. Sometimes, ownership definition. We seek comment on this recipients of Federal financial assistance
of vessels can be complex, with two or question in the context of passenger (e.g., some public ferry operators) are, in
jlentini on PROD1PC65 with PROPOSAL

more different parties involved, and yet vessels. Should there be a definition addition to Part 39, subject to section
another party responsible for the day-to- that specifically acknowledges mobility 504 of the Rehabilitation Act and DOT
day operation of the vessel. In such devices that may not literally be implementing rules. Department of
situations, all the parties involved ‘‘wheelchairs,’’ or should a more Justice (DOJ) ADA regulations, as
would be jointly and severally inclusive term be developed? applicable, also cover PVOs.

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
2836 Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules

§ 39.9 What may a PVO of a foreign- means of compliance must provide ensure, through provisions in the
flag vessel do if it believes that a equal or greater accessibility than that contracts or other agreements with such
provision of a foreign nation’s law required by the regulatory text. third parties, that the third parties
prohibits compliance with a provision of comply with applicable requirements.
§ 39.13 When must PVOs comply with
this part? We seek comment on whether, if at all,
the provisions of this part?
§ 39.11 How may a PVO obtain contractors outside the United States
As a general matter, PVOs would have should be covered by this requirement.
approval to use an equivalent to begin to comply with the provisions
facilitation? All new contracts and other agreements
of this rule as soon as the rule becomes must have this assurance language. The
These sections provide means by effective. There is no evident reason Department seeks comment on whether
which PVOs may obtain DOT why PVOs should need a lengthy phase- the rule should require the addition of
authorization to do something different in period to comply with requirements assurance language to existing contracts
from what these regulations would pertaining to denials of transportation and agreements, and, if so, what the
require. Section 39.9, which parallels on the basis of disability, extra or compliance period for such additions
language in the Department’s proposed special charges, personal or safety should be. Since PVOs cannot contract
Air Carrier Access Act (ACAA) rules for assistants, advance notice, waivers of away their responsibilities, PVOs
foreign carriers, provides a waiver liability, etc. The Department would remain responsible for the third parties’
mechanism for situations in which a hope and expect that most PVOs are actions. This would be true, in the
PVO for a foreign-flag vessel believes already acting in ways that are in Department’s view, even with respect to
that a binding legal requirement of a compliance with these actions of third parties where the PVO’s
foreign nation (or of an international nondiscrimination policy and agreements with the third parties did
agreement) precludes compliance with a administrative practice requirements. If not yet include assurance language.
requirement of Part 39. This provision not, then this NPRM should put PVOs
concerns binding legal requirements, on notice that changes in their policies § 39.25 May PVOs limit the numbers of
not guidance or codes of suggested may be necessary in the near future. passengers with a disability on a
practices. It concerns situations in There are some provisions of the passenger vessel?
which such a binding legal requirement proposed rule concerning which it The Department views any policy
actually precludes compliance with a would be reasonable for PVOs to have limiting the number on passengers with
Part 39 provision (e.g., Part 39 says a longer phase-in period, however. a disability on a vessel as discriminatory
‘‘You must do X,’’ while a binding Specific sections on such matters as on its face. With respect to the concern
foreign legal requirement says ‘‘You modifications to terminals and other expressed by ICCL about large groups of
must not do X’’), as opposed to a landside facilities and training for passengers with a disability traveling
situation where foreign law authorizes a personnel have proposed compliance together, we believe that the provision
practice that differs from a Part 39 dates intended to give PVOs a of § 39.35 permitting PVOs to ask for
requirement (e.g., Part 39 says ‘‘You reasonable time to meet requirements. advance notice in this situation (e.g., so
must do Y,’’ while a foreign law says The Department seeks comment on as to be able to make the needed
‘‘You may do Z’’). In a situation where these proposed compliance dates, as reconfigurations of the flexible space in
the Department grants a waiver, the well as on whether there are other overnight accommodations that ICCL’s
Department would look to the PVO for provisions on which PVOs would need comment mentions) should be helpful.
a reasonable alternative means of additional time to comply.
achieving the purpose of the waived § 39.27 May PVOs refuse to provide
provision. § 39.21 What is the general transportation or use of a passenger
To avoid placing PVOs in a situation nondiscrimination requirement of this vessel on the basis of disability?
in which they potentially were required part? The Department views any policy or
to comply with contradictory legal The provisions of this section are action prohibiting a person with a
requirements, the NPRM proposes that parallel to the general disability from being transported on or
PVOs seeking a waiver would have 90 nondiscrimination requirements in the otherwise using a passenger vessel as
days from the publication of the final Department’s other disability-related discriminatory on its face. If a PVO says
rule to file a waiver request. If the PVO rules. We would call attention to a person, literally or in effect, ‘‘you
filed a complete waiver request within particularly to paragraph (b), which are a person with a disability, therefore
that period, it could continue to would require modification of PVOs’ stay off my vessel,’’ the PVO would
implement policies that it believes are otherwise acceptable general policies violate this rule. The Department
consistent with the foreign law in where doing so is necessary to recognizes that some disabilities may
question pending the Department’s accommodate the needs of a particular make other passengers uncomfortable.
decision on the waiver request. individual or category of individuals That is not a justifiable reason to deny
Section 39.11, on the other hand, with a disability. Such modification is access to the vessel to persons with
concerns a potentially wider range of required unless it would be unduly these disabilities (see paragraph (b)).
situations in which a PVO applies to the burdensome or require a fundamental Only if there is a genuine safety issue,
Department for authorization to provide alteration in the nature of the PVO’s meeting the stringent direct threat
a different means of compliance with a services, programs, or activities. criteria outlined in paragraph (c), would
requirement of the DOT rules than the the PVO be justified in excluding a
rules themselves specify. Equivalent § 39.23 What are the requirements person because the person has a
facilitations can apply to the details of concerning contractors to owners and disability. Even in that case, the PVO
physical accessibility standards, when operators of passenger vessels?
jlentini on PROD1PC65 with PROPOSAL

would have to provide a written


they become part of the rule, but could As noted above, contractors and other explanation to the person within 10
also apply to policy and administrative persons whom the PVO uses to provide days of the denial (paragraph (d)).
matters covered by the rule. It is services to passengers ‘‘stand in the The Department recognizes that,
important to note that to be considered shoes’’ of the PVO with respect to the particularly prior to the adoption of
an equivalent facilitation, the different requirements of this rule. The PVO must physical accessibility standards, some

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules 2837

vessels will not have accommodations contact. The common cold is readily § 39.33 May PVOs require a passenger
that will permit persons with some communicable by casual contact but with a disability to provide advance
disabilities to travel on or to obtain typically does not have severe health notice that he or she is traveling on or
some services on the vessels. consequences. Consequently, having a using a passenger vessel?
For example, an older vessel might cold or having AIDS would not be a § 39.35 May PVOs require a passenger
not have any overnight cabins of a size basis on which a PVO could limit a with a disability to provide advance
that could accommodate a person using person’s transportation on or use of a notice in order to obtain certain services
a power wheelchair, or might have a vessel. Probably the best recent example in connection with transportation on or
dining area that is on a deck which can of a disease that meets both criteria is use of a passenger vessel?
be accessed only by using steps. The Severe Acute Respiratory Syndrome
Department would not, in such a In these related sections, the
(SARS), and, in the future, a readily Department is saying, first, that it is
situation, regard a PVO’s statement to a
human-to-human transmissible avian never appropriate for a PVO to require
passenger about the lack of adequate
flu pandemic might well qualify. PVOs a person to provide advance notice that
physical accommodations as equivalent
to a policy denying access on the basis could legitimately take into account he or she is coming, just because he or
of disability. determinations by public health she has a disability. The PVO’s
authorities about the travel of persons nondiscriminatory policies and
§ 39.29 May PVOs limit access to with a certain disease (e.g., if the practices should be in place, ready to
transportation on or use of a vessel on Centers for Disease Control or World deal with whoever shows up. On the
the basis that a passenger has a Health Organization issued a finding other hand, there may be specific
communicable disease or other medical that persons with a certain disease or accommodations for which provision of
condition? symptoms should not travel). advance notice is needed. One that
§ 39.31 May PVOs require a passenger seems reasonable is when a large
In any case in which a medical number of people with a disability plan
with a disability to provide a medical certificate may be required or a
certificate? to travel as a group. The NPRM uses the
limitation on a passenger’s travel be ACAA standard of a group of 10 or more
These related provisions are intended imposed, the limitation should be the disabled passengers traveling as a group.
to limit PVOs’ discretion to impose minimum needed to deal with the We seek comment on whether this
requirements or restrictions on medical issue or direct threat to the concept should be refined to recognize
passengers on medical grounds. Most health of others. For example, the PVO the possibility that some groups of
disabilities are not medical conditions: would not be authorized to deny disabled passengers traveling together
A person is not ill because he or she transportation to an individual if a less may not need any special
cannot see, hear, or walk, and applying drastic alternative, such as the use of a accommodations. In such a case, is the
a medical model to many disabilities is personal assistant or the passenger’s use advance notice provision advisable?
inappropriate. On the other hand, of medical measures that would mitigate A second instance where advance
people with a variety of medical the transmission of an illness is notice could be helpful concerns a
conditions (e.g., heart disease) may have available. request for an accessible overnight
at least temporary disabilities. If there is cabin. The Department’s proposal on
reasonable doubt that a passenger with If a PVO refuses transportation to a this subject is intended to grapple with
a medical condition can complete a passenger with a disability on grounds the reported problem of nondisabled
given trip or use a vessel without related to a medical condition, the travelers reserving an accessible cabin
requiring extraordinary medical NPRM proposes that the PVO would because it is roomier, thus denying its
assistance, then this rule would permit have to permit the passenger to travel or availability to a disabled passenger who
the PVO to require a medical certificate use the vessel at any time within a year may subsequently seek the
from the individual. In applying this at the same price as the original trip or, accommodation. Under the proposal,
requirement, the Department believes it at the passenger’s discretion, provide a everyone reserving an accessible cabin
is reasonable for the PVO to take into refund. The Department seeks comment would be informed that, if a passenger
account the length of the passenger’s on whether and how to apply this with a disability made a reservation at
stay aboard the vessel. concept to situations in which an least 72 hours before the vessel’s
With respect to communicable equivalent trip is not available within a scheduled departure and requested an
diseases, the PVO cannot deny or year (e.g., Grand Fenwick Cruise Lines accessible cabin, any nondisabled
restrict transportation on or use of a makes only one trip to Tierra del Fuego person who had previously reserved the
passenger vessel on the basis that the every three years, or the S.S. Grand cabin would be moved to another cabin,
passenger has a communicable disease, Duchess Gloriana’s trips are all fully if one were available. The NPRM would
unless the PVO makes a direct threat booked for the next year). The not require any passenger to be bumped
determination. In the communicable Department also seeks comment on from a voyage as a result, only
disease area, the Department believes reassigned to a different cabin.
how, if at all, the availability of trip
that PVOs should consider two factors. Obviously, the operation of this
insurance to the individual passenger
One is the severity of the consequences provision would depend on self-
of a disease; the other is whether the should be related to this proposed
identification by the passenger with a
disease can readily be communicated by provision.
disability of his or her need for the
casual contact. Only if a disease has accessible cabin.
severe consequences to the health of The Department seeks comment on
other persons and is readily whether the rule should specify in more
jlentini on PROD1PC65 with PROPOSAL

communicable by casual contact could detail the kinds of disabilities that


a PVO legitimately determine that there would trigger this provision (e.g.,
is a direct threat. For example, HIV/ should the provision be limited to
AIDS has severe consequences, but is persons with mobility impairments?) or
not readily communicable by casual whether the PVO should be permitted,

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
2838 Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules

or required, to seek documentation of a table assignments of other passengers to the rule would require the PVO to put
disability from a passenger seeking to provide accessibility to a dining table? its money where its mouth is, and not
reserve such an accommodation. We If so, taking into account any disruption charge for the transportation or use of
also seek suggestions for any alternative of the operator’s seating plans or of the the vessel by the assistant who the
means of addressing this issue. We other passengers’ seating arrangements, passenger was involuntarily required to
recognize that, especially on some would a request for an accessible table bring along. As under the ACAA rule
cruise ships, it is commonplace for have to be made a specified number of (where a similar provision has been in
travelers to reserve cabins months in hours before departure? The Department effect since 1990 without causing
advance. It is also commonplace for seeks comment on this or similar issues significant disruptions), the PVO could
whole voyages to be sold out months in involving on-board activities. designate a member of its own staff or
advance. We seek comment, thus, on a passenger volunteer as the assistant, in
§ 39.37 May PVOs require a passenger
whether a passenger with a disability order to deter any potential abuse by a
with a disability to travel with a
who requested an accessible cabin 72
personal or safety assistant? passenger who would, for example,
hours before departure could
The Department regards requiring a unreasonably object to the use of an
appropriately bump a nondisabled
passenger from a cabin reserved months passenger with a disability to travel assistant in order to secure free
ahead of time. Similarly, we seek with another person, just because that transportation for a friend or family
comment on whether a deadline for person has a disability, as member.
requesting an accessible cabin should be discriminatory on its face. Such a § 39.39 May PVOs impose special
72 hours or another fixed time before requirement is not only an affront to the charges on passengers with a disability
departure or, alternatively, based on independence and dignity of the for providing services and
when passengers in general reserve their passenger, but may sometimes make
accommodations required by this rule?
cabins. (If the latter, for example, an travel cost-prohibitive. On the other
accessible cabin might have to be hand, there can be situations in which Price discrimination is forbidden.
requested before half of all cabins are traveling with another person as a safety PVOs may not charge higher fares to
reserved.) Additionally, we seek assistant is essential for safety purposes. passengers with disabilities than to
comment on whether, as we do in the Paragraph (b) spells out three situations other passengers. PVOs cannot impose
ADA rule for over-the-road buses, we in which it would be justifiable to surcharges on passengers with
should provide that any cut-off date for impose a requirement for a safety
disabilities, or any sort of extra or
reservations in general should also be assistant. These situations are drawn
special charges for facilities, equipment,
applied to requests for an accessible from the similar provision of the
accommodations, or services that must
cabin. Department’s ACAA rule, and the
Department seeks comment on any be provided to passengers because they
The Department recognizes that,
other situations in vessel contexts where have a disability. This prohibition
pending the development of passenger
vessel physical accessibility standards, such a requirement could be justified. would apply not only to formal charges
even new vessels are not required to As ICCL’s comment noted, because made by the PVO itself, but to informal
have a particular number of accessible some passenger voyages are much charges that PVO personnel might seek
cabins. This provision would apply to longer than airplane flights, there may to impose or pressure passengers with a
the accessible cabins that now exist, as be situations in which a personal disability to pay. For example, if a
well as any others that may become assistant is necessary (the ACAA rule vessel cannot be boarded by a
available in the future. We also never permits a requirement for wheelchair user without assistance (e.g.,
recognize that there could be situations personal assistants, as distinct from because the boarding ramp slope is too
in which an accessible room would not persons needed to assist with an steep), it would not be appropriate for
be available to a passenger with a emergency evacuation, in air travel). vessel personnel who provide boarding
disability because another passenger Consequently, the Department proposes assistance to ask, pressure, or imply that
with a disability had already reserved that if a passenger with a disability the wheelchair users should provide a
the room. Other than treating such needs a personal assistant to help tip for the assistance.
situations as a ‘‘first-come first-served’’ perform key personal tasks, such as One of the important implications of
manner, do commenters have any eating, toileting, and dressing, and the
the prohibition on price discrimination
suggestions for resolving such a passenger’s use of the vessel will be
concerns situations in which an
situation? lengthy enough so that the passenger
accommodation for a person with a
The Department also seeks comment will need to perform these tasks, the
disability is available only in a more
on whether 72 hours would be a PVO may require the passenger with a
reasonable amount of advance notice in disability to have a personal assistant. expensive type or class of service than
these situations and on whether there For shorter voyages akin in length to the passenger requests. For example,
are other services for which an advance airplane flights, the PVO could not suppose a passenger with a disability
notice requirement would be impose such a requirement. However, tries to make a reservation for an inside
reasonable. for a longer voyage (e.g., a multi-day cabin. However, the only accessible
There could be situations in which a cruise), the PVO could do so. cabins on the vessel are in the more
similar principle could arguably apply The Department recognizes that there expensive outside cabins with windows.
to other shipboard activities. For can be situations in which a passenger The PVO would have to provide the
example, some cruise ships may assign and a PVO disagree about whether a accessible cabin to the passenger with a
seats for dinner. If a passenger with a safety or personal assistant is necessary. disability at the price of the less
jlentini on PROD1PC65 with PROPOSAL

disability was unable, because of In these situations, the proposed rule expensive accommodation he or she had
barriers in the dining area, to get readily contemplates that the PVO would have requested. This is consistent with ADA
to his or her assigned seat, could it be the last word, and could require the practice in other contexts, such as
viewed as a reasonable modification of attendant over the passenger’s booking of hotel rooms or sleeping
the PVO’s seating policy to shift dining objections. However, in such a situation, compartments on Amtrak trains.

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules 2839

§ 39.41 May PVOs impose restrictions The Department is aware that some deaf in the discussion of the definition of
on passengers with a disability that they and hard-of-hearing persons now may ‘‘facility,’’ the Department seeks
do not impose on other passengers? use other technologies in preference to comment on whether a PVO covered by
§ 39.43 May PVOs require passengers TTYs (e.g., videophones, instant this rule should have accessibility
with a disability to sign waivers or messaging), and we seek comment on obligations for a foreign facility that the
releases? how, if at all, this development should PVO itself, as distinct from a separate
be reflected in a final rule. foreign entity, owns, controls or leases.
The NPRM would forbid restrictions On-line booking services, as well as The rule would make a familiar three-
on passengers with a disability that are web sites providing information about part breakdown of accessibility
not imposed on other passengers, passenger vessel availability, schedules, responsibilities for covered facilities.
including requirements to sign waivers and services, are very important in New facilities must meet accessibility
or releases either for themselves or their today’s marketplace. Consequently, the standards from the beginning. In the
assistive devices. The kinds of Department views it as very important case of an alteration, the altered portion
restrictions these sections address are for on-line resources to be available to of the existing facility would have to be
restrictions created by PVO policy. The persons with disabilities. We would brought up to the same accessibility
Department is aware that, particularly view a web site meeting section 508 or standards applicable to new facilities.
pending the adoption of passenger World Wide Web Consortium standards For existing facilities not otherwise
vessel physical accessibility standards, as being accessible for this purpose. The being altered, the PVO would have to
portions of existing vessels may well be regulatory text does not make a specific ensure that the facility is able to be used
inaccessible to some passengers with a proposal on this subject, but we seek by a passenger with a disability to
disability. Inaccessibility of this kind comment on whether the final rule access the PVO’s vessel. This could be
would not violate these sections, but an based on this NPRM, or a future rule achieved through a variety of means.
administrative rule declaring certain incorporating vessel accessibility We note that there may be many
portions of a vessel off limits to a standards, should include such a situations in which a PVO shares
passenger with a disability would, if requirement. We also seek comment on accessibility responsibilities with
that rule did not apply equally to all the costs of requiring Web site another party. For example, a PVO may
passengers. accessibility in the passenger vessel lease a portion of a port facility that is
industry, the appropriate standards for owned by a private or public entity. The
§ 39.51 What information must PVOs
accessible sites, and the timing and PVO has responsibilities under this part;
provide to passengers with a disability?
phase-in period appropriate for such a the other entity has responsibilities in
The Department recognizes that requirement. its own right under Title II or III or the
vessels and facilities will not be equally ADA or under section 504. In these
accessible; that some vessels, ports, § 39.55 Must PVOs make copies of this cases, it would be up to the parties
services, and facilities may not be rule available to passengers? involved to allocate the responsibilities
usable by persons with some The NPRM would propose that PVOs among themselves, so that they jointly
disabilities. This section would require maintain a copy of the rule on each ensure that accessibility requirements
PVOs to inform people with disabilities, vessel and at each U.S. terminal. The are met for the facility.
accurately and in detail, about what purpose of doing so would be to make We also recognize that there can be
they can expect. What features of a the rule readily available for reference instances in which a vessel berths at a
vessel are accessible and what are not? in case a question occurred about floating dock, rather than literally at a
What limitations, if any, are there whether a PVO was acting consistently landside facility. We would propose to
concerning the ability of a vessel to with its requirements. treat such a floating dock in the same
accommodate persons with a particular way as a landside facility for
disability? At what ports could § 39.57 What is the general accessibility purposes, but we seek
passengers with a disability expect to be requirement for PVOs’ communications comment on whether any different
able to get on and off the ship, and by with passengers? treatment would be appropriate.
what means? If third parties are making This section states the general The Department seeks comment on
tours and excursions available to effective communication requirement whether it would be advisable to add
passengers, to what extent are these for PVOs. specific provisions similar to §§ 37.41,
tours accessible to persons with a 37.43, and 37.45 in the Department’s
§ 39.61 What requirements must PVOs
particular disability? With this existing ADA rule for the new
meet concerning the accessibility of
information, potential passengers with a construction and alteration of passenger
terminals and other landside facilities?
disability can make an informed choice vessel facilities, including provisions for
about whether seeking transportation on This section applies to landside alterations affecting areas containing a
a particular vessel is worth their while. facilities that the PVO owns, leases, or primary function that are subject to
controls in the U.S. If the PVO does not additional requirements for path of
§ 39.53 Must information and own, lease, or control a facility, then the travel.
reservation services of PVOs be requirements of this section do not
accessible to individuals with hearing or apply to it (there may well be situations § 39.63 What accommodations are
vision impairments? in which case a public entity or another required at terminals and other landside
This section would apply to private entity would own or control the facilities for individuals with hearing or
information and reservation services facility, in which the other entity would vision impairments?
made available to consumers in the have its own ADA and/or 504 This section specifies the effective
United States, regardless of the obligations). In the case of a foreign communications that would have to be
jlentini on PROD1PC65 with PROPOSAL

nationality of a PVO or where the facility, where ADA or section 504 rules provided at terminals and other
personnel or equipment providing the would not apply in their own right, landside facilities to ensure that persons
services are themselves based. The first facility accessibility would then become with sensory impairments would be
proposed requirement is for TTY service a matter of the law of the country in able to receive the information
for persons with hearing impairments. which the facility is located. As noted otherwise available to the public,

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
2840 Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules

concerning such subjects as ticketing, adoption of the Access Board’s final requirements in a final rule, if any,
fares, and schedules. There would be a passenger vessel guidelines, to propose should be devised to address it.
one-year phase-in period for this adding requirements concerning The Department also seeks comment
requirement, which would apply to telephones and televisions as a DOT on whether a provision should be added
existing as well as new facilities. modification to the guidelines. that would require the use of accessible
§ 39.81 What assistance must PVOs boarding systems, as described in
Subpart E—Accessibility of Vessels § V412 of the Access Board’s draft
provide to passengers with a disability
This subpart would be reserved. It is in getting to and from a passenger guidelines, for vessels with a certain
a place-holder for the subsequent vessel? passenger capacity at terminals that
inclusion of passenger physical have a certain threshold level of annual
This section does not deal with embarkations, similar to the provision
accessibility standards based on future boarding a vessel, as such. Rather, it
Access Board guidelines. We note that, in DOT’s Air Carrier Access rule. See 14
deals with how people get to the point CFR 382.40(a). If so, what vessel
in connection with any rule of boarding a vessel, in terms of land
incorporating the guidelines as DOT passenger capacity and threshold level
transfers (e.g., a bus between the airport of annual embarkations should be used
standards, DOT would designate an and the terminal) and in actually
agency as the ‘‘administrative authority’’ for requiring accessible boarding
moving through the terminal and systems? Also, if a provision is added
to make certain determinations. We boarding process up to the point of
anticipate that the Department would requiring accessible boarding systems at
getting onto the vessel. PVOs would be certain terminals, would it be advisable
designate the U.S. Coast Guard, with responsible for making sure that these
that agency’s consent, as the to require the PVO negotiate an
services were accessible to people with agreement with the terminal operator to
administrative authority for many of disabilities. The Department seeks
these provisions, for foreign-flag as well ensure the provision of accessible
comment on the extent, if any, to which boarding systems, similar to the
as U.S. vessels. It is not necessary for such a requirement should apply to
this NPRM to propose this designation, provision in DOT’s Air Carrier Access
services provided outside the U.S. (e.g., Act and section 504 rules concerning
since it logically would be part of a Grand Fenwick Cruise Lines itself
future NPRM proposing to adopt Access boarding devices for commuter aircraft?
provides, or contracts with a local bus See 14 CFR 382.40(b) and (c). Such an
Board guidelines as DOT regulatory company to provide, land transportation
standards. approach might also require amendment
between the dock and points of interest of the DOT 504 rule, 49 CFR Part 27.
There are, however, some facility in Barbados).
accessibility issues that may not be § 39.85 What services must PVOs
covered by future Access Board § 39.83 What are PVOs’ obligations for
provide to passengers with a disability
guidelines. For example, we seek assisting passengers with a disability in
on board a passenger vessel?
comment on whether a provision should getting on and off a passenger vessel?
be added for accessibility of televisions The optimal solution for boarding a § 39.87 What services are PVOs not
and telephones on vessels, similar to vessel involves a passenger with a required to provide to passengers with a
what DOT has proposed for air carriers disability being able to board disability on board a passenger vessel?
pursuant to the Air Carrier Access Act independently (e.g., via a level-entry These sections concern services that
(see 71 FR 9285 (February 23, 2006)). ramp). The Department realizes that PVOs would, or need not, provide to
The Access Board’s guidelines will not there will be many situations where this passengers with a disability. The
address televisions and telephones in optimal solution does not exist. In these services in question include movement
passenger rooms since they are not fixed situations, the PVO is responsible for about the vessel, but only with respect
elements. providing assistance that enables a to portions of the vessel that are not
It is our understanding that cruise passenger with a disability to get on or accessible to passengers with a
ships typically provide televisions in off the vessel. We note that a number of disability acting independently. To the
passenger rooms and lounges. The comments to the ANPRM represented extent that a PVO makes accessibility
Television Decoder Circuitry Act that these services are already being improvements to a vessel, the PVO can
requires televisions with screens 13 provided in many instances, so we probably reduce its obligation to
inches or greater to contain built-in believe it is fair to suggest that this provide this service. When food is
circuitry that receives and decodes requirement would not create provided to passengers, PVO personnel
closed captions. Cruise ships also significant added burdens for PVOs. We would help passengers with a disability
typically provide telephones in also note that this provision pertains to to a limited degree, including opening
passenger rooms. The Hearing Aid normal boarding and disembarkation packages and identifying food, or
Compatibility Act and FCC rules require from a vessel: obviously, in the case of explaining choices. Assistance in actual
certain telephones to have volume an ‘‘abandon ship’’ or other emergency eating or other personal functions (e.g.,
controls and to be compatible with situation, crew will use any means toileting or provision of medical
hearing aid technology. We seek necessary to ensure that all passengers equipment or supplies or assistive
information on whether cruise ships are can safely evacuate. devices, beyond what is provided to all
currently providing televisions that are On some occasions, it may be the passengers) would not be required.
capable of receiving and decoding custom on cruise ships or other vessels Effective communication of on-board
closed captions, and hearing aid with overnight accommodations to information would be required.
compatible telephones with volume temporarily store luggage in
passageways in preparation for § 39.89 What requirements apply to
controls.
The Department does not intend to disembarkation at the end of a voyage. on-board safety briefings, information,
jlentini on PROD1PC65 with PROPOSAL

impose requirements in this area in the This may have the effect of preventing and drills?
final rule resulting from this NPRM. passengers with disabilities from using This section specifies that safety-
Rather, we are seeking comment on this otherwise accessible routes. The related information must be
subject in order to determine whether, Department seeks comment on the communicated effectively to passengers
in a future NPRM that would propose extent of this problem and what with disabilities. This can include the

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules 2841

use of alternative formats and other vague concerns about adverse effects on § 39.101 What are the requirements for
auxiliary aids, where needed. Safety the quality of the cruise experience for providing Complaints Resolution
videos would have to be captioned or other passengers do not trump the Officials?
have an interpreter inset, in order to nondiscrimination imperative of the § 39.103 What actions do CROs take
make the information available to ADA. on complaints?
persons with impaired hearing. The Department is not proposing, at
Passengers with disabilities must be this time, to adopt ACAA service animal The role of the Complaints Resolution
enabled to participate in evacuation and guidance for other transportation Official (CRO) was first developed in the
other safety drills, and information contexts, though the general principles Department’s 1990 ACAA regulations,
about evacuation and safety procedures behind this guidance apply across the and it has proved very helpful in the
would have to be kept in locations that board to all transportation and public airline service context. As applied in the
passengers with disabilities can access accommodations applications of the passenger vessel context, the CRO
and use. The Department seeks ADA. The Department anticipates that, would be the PVO’s expert in disability
comment on whether any special following the publication of a final rule matters, knowledgeable about both the
accommodations would be needed to on passenger vessels, it would work Department’s regulations and the PVO’s
assist persons with cognitive with stakeholders to develop more procedures, and able to assist
disabilities. detailed guidance on this subject for passengers with disabilities and other
passenger vessels. One issue the PVO personnel in resolving issues. We
§ 39.91 Must PVOs permit passengers believe that the CRO model can
with a disability to travel with service Department would likely address in
such guidance is the extent to which potentially be adapted very well to
animals? passenger vessels, with the intent of
PVOs could inquire as to the status of
Many persons with disabilities rely on solving problems at the PVO level
an animal as a service animal (e.g., to
service animals to travel and conduct before they become matters for
prevent potential abuse from persons
daily functions. This section specifies complaints to the Department or for
wanting to bring pets on board the
that PVOs would be required to permit litigation. These proposed provisions
vessel in ways inconsistent with the
service animals to accompany a are modeled closely on the ACAA CRO
PVO’s policy on pets).
passenger with a disability on board a provisions, and the Department seeks
One issue that arises, especially in the
vessel. comment on what changes, if any,
context of longer voyages, concerns
ICCL raised a number of service should be made in adapting this model
service animal relief areas. The
animal-related comments in its ANPRM to passenger vessels.
Department seeks comment what As in the airline context, the
response. We agree that foreign
requirements, if any, should be included Department does not intend to mandate
countries may limit entry of service
in a final rule concerning the provision that CRO duties necessarily be full-time
animals; this should not affect the
of such areas. Should a final rule specify for a given employee. PVOs could, for
carriage of service animals on the vessel,
the number and location of such areas? example, train a number of different
however, since there is no requirement
We are glad to see from the ICCL vessel and landside personnel to act as
that the animal leave a cruise ship.
comment that cruise operators typically CROs, who might perform these
Limitations on the ability of a service
provide relief areas. functions as a collateral duty.
animal to leave the ship at a foreign port
ICCL, of course, represents the cruise PVOs are likely to find it necessary to
would be among the information that a
industry, which frequently operates ensure that not only CROs, but also
cruise ship would provide to potential
customers inquiring about an upcoming larger ships than other PVOs. The other personnel who interact with
cruise. We also agree that PVOs would Department seeks comment on whether, passengers, are trained sufficiently to be
not be required to supply food for the with respect to any of the issues knowledgeable about the requirements
animal. We seek comment on whether it discussed in this section, there should of these rules and proficient in
is necessary to require PVOs to permit be differing requirements for smaller performing tasks related to passengers
passengers with a disability to bring vessels. with disabilities. If they are not, it is
their own supplies of food for the § 39.93 What mobility aids and other likely that mistakes will be made that
service animal on board, without charge assistive devices may passengers with a would potentially lead to
by the PVO. We also seek comment on disability bring onto a passenger vessel? noncompliance. The Department seeks
whether PVOs should make comment on what, if any, training
§ 39.95 May PVOs limit their liability
refrigeration services available for requirements should be included in a
for the loss of or damage to mobility
service animal food. final rule.
aids and other assistive devices? One model that the Department could
ICCL commented that service animals
typically share the cabin of the These sections say simply that consider would resemble the training
passengers who use them. The passengers should be permitted to bring requirements in the ACAA rule. This
Department does not see an objection to and use their own mobility aids and model would involve training to
this practice, though we seek comment other assistive devices on board a proficiency concerning the requirements
on whether service animal users have vessel. Once the devices are there, if the of this rule; the PVO’s procedures with
had any problems in this regard. PVO is responsible for loss or damage, respect to the provision of
We would view a limitation on the the PVO must compensate the owner, at transportation or use of a passenger
number of service animals that can be the level of the original purchase price vessel to passengers with a disability,
brought on a given voyage as of the device. This measure of the level including the proper and safe operation
tantamount to a number limit on of compensation is derived from the of any equipment used to accommodate
passengers with a disability (i.e., as a Department’s ACAA rule. We also seek passengers with a disability; the use of
jlentini on PROD1PC65 with PROPOSAL

number limit, which the proposed rule comment on alternative methods of the equipment used by the PVO and
would prohibit). It is not self-evident measuring the appropriate level of appropriate assistance procedures that
that having a number of service animals compensation, such as the depreciated safeguard the safety and dignity of
on board a ship at a given time would present value of the device or the passengers. Training on the ACAA
be disruptive to ship operations, and current replacement cost for the device. model would also address such matters

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
2842 Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules

as awareness and appropriate responses there a different or simpler approach we assistance provisions of the NPRM
to passengers with a disability, could take toward complaint reporting? would not have large incremental costs.
including persons with physical, The final rule would include detailed We seek comment and data on these
sensory, mental, and emotional information on addresses, phone matters, however. As a general matter,
disabilities, including how to numbers, etc. where complaints could we seek comment on whether any fuller
distinguish among the differing abilities be filed at DOT or DOJ. Obviously, a regulatory evaluation or analysis
of individuals with a disability. passenger dissatisfied with the PVO’s concerning the cost of the proposed
Training on this model would cover resolution of a complaint could file a provisions or other matters should be
contractor personnel as well as direct complaint with DOT or DOJ. developed in connection with the final
employees of PVOs. The Department § 39.109 What enforcement action may rule.
seeks comment on whether such a be taken under this part? In the passenger vessel context as in
requirement is advisable. We also seek other areas, the purpose of the ADA is
comment on alternative training models One important difference between the to ensure nondiscrimination on the
that might be appropriate. ACAA and the ADA is that, under the basis of disability and accessibility of
former, the Department has its own civil travel on vessels for people with
The Department also seeks comment penalty enforcement authority and
on what the costs of training are likely disabilities. Consequently, the most
procedures. The Department does not important benefits of this proposed rule
to be. With respect to training, the have its own civil penalty authority
Department does not currently have are the largely non-quantifiable benefits
under Titles II and III of the ADA,
data concerning the number of PVO of increased access and mobility for
though the Department can conduct
personnel who would have to be trained passengers with disabilities. These
investigations and compliance reviews,
or the costs per person of such training. proposals would eliminate most policies
collect data, find facts, come to
We seek data from the industry or other of PVOs that would prevent or inhibit
conclusions, and refer matters to the
sources on this matter. We point out travel by persons with disabilities. The
Department of Justice for further action.
that, in the regulatory evaluation for the benefits that would accrue from removal
DOJ can, of course, conduct
Department’s 2004 NPRM to expand of these barriers cannot be quantified,
enforcement proceedings on its own
ACAA coverage to foreign air carriers, but could well include increased
initiative.
the Department projected annual Some PVOs receive Federal financial employment, business, recreational, and
training costs of around $9.5 million, for assistance, such as ferry operators who educational opportunities for travelers
an industry that probably has an receive Federal Transit Administration with disabilities, and quality of life
affected work force of that may be of (FTA) funding. Complaints concerning enhancements associated with travel
roughly comparable size. violations of this part by FTA-assisted opportunities both within the U.S. and
ferry operators could be made to the to foreign points.
If there is such a training requirement,
FTA under the Department’s ADA and Many persons with mobility
the Department seeks comment on what
504 rules, and FTA could take impairments would be able to use
time frames or deadlines we should
enforcement action as provided in those passenger vessel services for the first
establish for completing the training.
rules. time, and take advantage of an
We also seek comment on what, if any,
expanded range of travel opportunities.
reporting or record retention Regulatory Analyses and Notices Even persons with disabilities who did
requirements there should be
The Department believes that this not immediately choose to use a
concerning training. The Department
NPRM proposes a significant rule for passenger vessel would know that
does not, at this time, contemplate
Executive Order 12866 and DOT barriers to such travel had been
drafting a training curriculum or
Regulatory Policies and Procedures removed, and there is a psychological
certifying the training of PVO personnel.
purposes. While the NPRM does not benefit to knowing one can travel if one
§ 39.105 How must PVOs respond to impose significant costs, it addresses wishes (what economists sometimes
written complaints? issues that are of considerable policy refer to as the ‘‘option value’’ of a
§ 39.107 Where may passengers file interest and would create requirements regulatory provision).
complaints? for entities that have not previously Other beneficiaries of the proposed
been subject to regulation. In a future rule would include the travel
These provisions are also based on rulemaking, the Department anticipates companions, family, and friends of
current ACAA procedures, and we again proposing, in conjunction with the passengers with disabilities, since
seek comment on how they may best be Access Board, physical accessibility persons with disabilities would have
adapted to the passenger vessel context. standards for vessels. This future greater and more varied travel
We also seek comment on whether this rulemaking is expected to involve a opportunities. In addition, to the extent
rule should include a reporting more detailed regulatory evaluation that changes in PVO practice make use
requirement, analogous to that of the with respect to the costs and benefits of of vessels easier for everyone, there
ACAA rule (see 14 CFR 382.70). The its proposals, and it is also likely to be would be indirect benefits for the
purpose of such a requirement would be a significant rulemaking. general traveling public.
to help the Department identify types of This NPRM focuses on prohibiting Because making passenger vessel
issues that may need additional unnecessary practices that have transportation and services more readily
attention or particular PVOs that may be discriminatory effects, such as extra available to passengers with disabilities
having problems in a particular area in charges and denials of transportation. and others traveling with them is likely
which the Department could focus Observing such prohibitions will not to increase overall usage of vessels to
compliance efforts. Should such a have significant cost impacts on PVOs. some degree, it is likely that there will
jlentini on PROD1PC65 with PROPOSAL

requirement be limited to PVOs According to ANPRM comments, many be some economic benefits to PVOs
operating vessels over a certain size PVOs already provide boarding from compliance with the proposed
(e.g., 50 passenger capacity)? Is a assistance and other services to rule. The Department seeks data that
requirement similar to that of the ACAA passengers with disabilities, so it is would assist in quantifying these
a good idea in the vessel context, or is reasonable to assume that the passenger potential benefits.

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules 2843

For the reasons stated above, the PART 39—TRANSPORTATION FOR 39.57 What is the general requirement for
Department believes that compliance INDIVIDUALS WITH DISABILITIES: PVOs’ communications with passengers?
with the provisions proposed in this PASSENGER VESSELS Subpart D—Accessibility of Landside
NPRM would have very low costs. That Facilities
Subpart A—General
is, avoiding discriminatory policies and 39.61 What requirements must PVOs meet
providing improved information to Sec.
39.1 What is the purpose of this part? concerning the accessibility of terminals
passengers with disabilities would not 39.3 What do the terms in this rule mean? and other landside facilities?
impose substantial costs on regulated 39.5 To whom do the provisions of this part 39.63 What accommodations are required at
parties generally. Therefore, the apply? terminals and other landside facilities for
Department certifies that this NPRM, if 39.7 What other authorities concerning individuals with hearing or vision
adopted, would not have substantial nondiscrimination on the basis of impairments?
disability apply to owners and operators
economic effects on a significant Subpart E—Accessibility of Vessels
of passenger vessels?
number of small entities. 39.9 What may the owner or operator of a [Reserved]
Nevertheless, the Department seeks foreign-flag vessel do if it believes a Subpart F—Assistance and Services to
comment on small entity-related issues, provision of a foreign nation’s law Passengers With Disabilities
prohibits compliance with a provision of
including whether there should be this part? 39.81 What assistance must PVOs provide
provisions that mitigate any burdens on 39.11 How may a PVO obtain approval to to passengers with a disability in getting
small entities resulting from the use an equivalent facilitation? to and from a passenger vessel?
proposed requirements. This 39.13 When must PVOs comply with the 39.83 What are PVOs’ obligations for
information would include data on provisions of this part? assisting passengers with a disability in
numbers of companies and vessels Subpart B—Nondiscrimination and Access getting on and off a passenger vessel?
(domestic and foreign-flag) that would to Services 39.85 What services must PVOs provide to
passengers with a disability on board a
be affected. In addition, the Department 39.21 What is the general
passenger vessel?
seeks comment on what standard nondiscrimination requirement of this
39.87 What services are PVOs not required
should be used for analyzing small part?
39.23 What are the requirements to provide to passengers with a disability
entity impacts with respect to passenger on board a passenger vessel?
concerning contractors to owners and
vessel transportation. Small Business operators of passenger vessels? 39.89 What requirements apply to on-board
Administration (SBA) size standards in 39.25 May PVOs limit the number of safety briefings, information, and drills?
13 CFR Part 121 establish a 500- passengers with a disability on a 39.91 Must PVOs permit passengers with a
employee standard (i.e., any entity with passenger vessel? disability to travel with service animals?
fewer employees would be regarded as 39.27 May PVOs refuse to provide 39.93 What mobility aids and other
transportation or use of a vessel on the assistive devices may passengers with a
a small business for SBA purposes). Is basis of disability? disability bring onto a passenger vessel?
there any reason for using a different 39.29 May PVOs limit access to 39.95 May PVOs limit their liability for the
standard for purposes of this rulemaking transportation or use of a vessel on the loss of or damage to mobility aids and
(e.g., a PVO which does not operate any basis that a passenger has a other assistive devices?
boats above a certain size)? communicable disease or other medical
condition? Subpart G—Complaints and Enforcement
While there are some state and local 39.31 May PVOs require a passenger with a Procedures
entities (i.e. operators of state or disability to provide a medical 39.101 What are the requirements for
municipal ferry systems) that would be certificate?
providing Complaints Resolution
covered by this proposed rule, most 39.33 May PVOs require a passenger with a
disability to provide advance notice that Officials?
regulated parties would be private 39.103 What actions do CROs take on
he or she is traveling on or using a
sector entities. As noted above, we do passenger vessel? complaints?
not expect significant economic impacts 39.35 May PVOs require a passenger with a 39.105 How must PVOs respond to written
on any regulated parties from the disability to provide advance notice in complaints?
proposed rule. Consequently, we have order to obtain certain specific services 39.107 Where may passengers file
concluded that there are not sufficient in connection with transportation on or complaints?
use of a passenger vessel? 39.109 What enforcement action may be
Federalism impacts to warrant the 39.37 May PVOs require a passenger with a taken under this part?
preparation of a Federalism assessment. disability to travel with a personal or
As a civil rights rule, this proposal is safety assistant? Authority: 42 U.S.C. 12101 through 12213;
not subject to review with respect to 39.39 May PVOs impose special charges on 49 U.S.C. 322.
unfunded mandates. passengers with a disability for
providing services and accommodations Subpart A—General
Issued this 5th day of January 2007, at required by this rule?
Washington, DC. 39.41 May PVOs impose other restrictions § 39.1 What is the purpose of this part?
Mary E. Peters, on passengers with a disability that they The purpose of this part is to carry out
do not impose on other passengers?
Secretary of Transportation. 39.43 May PVOs require passengers with a
the Americans with Disabilities Act
disability to sign waivers or releases? with respect to passenger vessels. This
List of Subjects for 49 CFR Part 39 rule prohibits owners and operators of
Subpart C—Information for Passengers passenger vessels, including U.S. and
Individuals with disabilities, Mass
39.51 What information must PVOs foreign-flag vessels, from discriminating
transportation, Passenger vessels. provide to passengers with a disability? against passengers on the basis of
jlentini on PROD1PC65 with PROPOSAL

For the reasons set forth in the 39.53 Must information and reservation disability; requires vessels and related
services of PVOs be accessible to
preamble, the Department of individuals with hearing or vision facilities to be accessible; and requires
Transportation proposes to add a new impairments? owners and operators of vessels to take
49 CFR Part 39, to read as follows: 39.55 Must PVOs make copies of this rule steps to accommodate passengers with a
available to passengers? disability.

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
2844 Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules

§ 39.3 What do the terms in this rule ‘‘Commerce’’ means travel, trade, seeing, hearing, speaking, breathing,
mean? transportation, or communication learning, and working;
In this regulation, the terms listed in among the several states, between any (3) The phrase ‘‘has a record of such
this section have the following foreign country or any territory and an impairment’’ means has a history of,
meanings: possession and any state, or between or has been misclassified as having, a
‘‘Accessible’’ means, with respect to points in the same state but through mental or physical impairment that
vessels and facilities, complying with another state or foreign country. substantially limits one or more major
the applicable accessibility ‘‘Designated public transportation’’ life activities.
requirements of this part. means transportation provided by a (4) The phrase ‘‘is regarded as having
‘‘Alteration’’ means a change to a public entity by passenger vessel that such an impairment’’ means—
passenger vessel or facility that affects provides the general public with general (i) Has a physical or mental
or could affect the usability of the or special service, including charter impairment that does not substantially
vessel, facility, or a portion thereof. service, on a regular and continuing limit major life activities, but which is
Alterations include, but are not limited basis. treated by a public or private entity as
to, remodeling, renovation, ‘‘Department’’ or ‘‘DOT’’ means the constituting such a limitation;
rehabilitation, reconstruction, historic United States Department of (ii) Has a physical or mental
restoration, changes or rearrangement in Transportation, including the Office of impairment that substantially limits a
structural parts or elements, and the Secretary of Transportation, the major life activity only as a result of the
changes or rearrangement in the plan Federal Transit Administration, the attitudes of others toward such an
configuration of walls, bulkheads, and Federal Highway Administration, and impairment; or
partitions. Normal maintenance, the Maritime Administration. (iii) Has none of the impairments
reroofing, painting or wallpapering, ‘‘Direct threat’’ means a significant defined in paragraph (1) of this
asbestos removal, or changes to risk to the health or safety of others that definition but is treated by a public or
propulsion, mechanical or electrical cannot be eliminated by a modification private entity as having such an
systems are not alterations unless they of policies, practices, or procedures, or impairment.
affect the usability of the passenger by the provision of auxiliary aids or (5) The term ‘‘disability’’ does not
vessel or facility. services. include—
‘‘The Act’’ or ‘‘ADA’’ means the ‘‘Disability’’ means, with respect to an (i) Transvestism, transsexualism,
Americans with Disabilities Act of 1990 individual, a physical or mental pedophilia, exhibitionism, voyeurism,
(Pub. L. 101–336, 104 Stat. 327, 42 impairment that substantially limits one gender identity disorders not resulting
U.S.C. 12101–12213 and 47 U.S.C. 225 or more of the major life activities of from physical impairments, or other
and 611), as it may be amended from such individual; a record of such an sexual behavior disorders;
time to time. impairment; or being regarded as having
(ii) Compulsive gambling,
‘‘Assistive device’’ means any piece of such an impairment.
kleptomania, or pyromania;
equipment that assists a passenger with (1) (The phrase ‘‘physical or mental
(iii) Psychoactive substance abuse
a disability to cope with the effects of impairment’’ means—
(i) Any physiological disorder or disorders resulting from the current
his or her disability. Such devices are
condition, cosmetic disfigurement, or illegal use of drugs.
intended to assist a passenger with a
anatomical loss affecting one or more of ‘‘Existing vessel’’ means a passenger
disability to hear, see, communicate,
the following body systems: vessel in existence at the time of the
maneuver, or perform other functions of
neurological, musculoskeletal, special effective date of Subpart E of this part.
daily life, and may include medical
sense organs, respiratory including ‘‘Facility’’ means terminals and any of
devices and medications.
‘‘Auxiliary aids and services’’ speech organs, cardiovascular, landside facilities related to the use of
includes: reproductive, digestive, genito-urinary, passenger vessels in the United States
(1) Qualified interpreters, notetakers, hemic and lymphatic, skin, and (including its territories, possessions,
transcription services, written materials, endocrine; and commonwealths) that a vessel
telephone headset amplifiers, assistive (ii) Any mental or psychological owner or operator owns, leases, or
listening devices, assistive listening disorder, such as mental retardation, controls (e.g., terminals, boarding
systems, telephones compatible with organic brain syndrome, emotional or ramps, walks, parking lots, ticketing
hearing aids, closed caption decoders, mental illness, and specific learning areas, baggage drop-off and retrieval
closed and open captioning, text disabilities. sites) normally used by passengers or
telephones (also known as telephone (iii) The term ‘‘physical or mental other members of the public.
devices for the deaf, or TDDs), videotext impairment’’ includes, but is not limited ‘‘Historic vessel’’ means a craft, ship,
displays, or other effective methods of to, such contagious or noncontagious or boat of historic significance that is
making aurally delivered materials diseases and conditions as orthopedic, made available to the public to tour.
available to individuals with hearing visual, speech, and hearing Such vessels are usually permanently
impairments; impairments; cerebral palsy, epilepsy, moored to a facility, but may take the
(2) Qualified readers, taped texts, muscular dystrophy, multiple sclerosis, public on excursions in some cases.
audio recordings, Braille materials, large cancer, heart disease, diabetes, mental ‘‘Individual with a disability’’ means
print materials, or other effective retardation, emotional illness, specific a person who has a disability, but does
methods of making visually delivered learning disabilities, HIV disease, not include an individual who is
materials available to individuals with tuberculosis, drug addiction and currently engaging in the illegal use of
visual impairments; alcoholism. drugs, when a public or private entity
acts on the basis of such use.
jlentini on PROD1PC65 with PROPOSAL

(3) Acquisition or modification of (iv) The phrase ‘‘physical or mental


equipment or devices; or impairment’’ does not include ‘‘Operates’’ includes, with respect to
(4) Other similar services or actions. homosexuality or bisexuality. passenger vessel service, the provision
‘‘Coast Guard’’ means the United (2) The phrase ‘‘major life activities’’ of transportation or other service by a
States Coast Guard, an agency of the means functions such as caring for one’s public or private entity itself or by a
Department of Homeland Security. self, performing manual tasks, walking, person under a contractual or other

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00050 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules 2845

arrangement or relationship with the offer, to purchase or otherwise validly to concession areas, ticketing areas, and
entity. obtain such a ticket; baggage drop-off and retrieval sites,to
‘‘Passenger for hire’’ means a (ii) With respect to obtaining the extent that the PVO owns or leases
passenger for whom consideration is transportation on or use of a passenger the facility or exercises control over the
contributed as a condition of carriage on vessel, or other services or selection, design, construction, or
the vessel, whether directly or indirectly accommodations required by this part, alteration of the property.
flowing to the owner, charterer, (A) Buys or otherwise validly obtains, ‘‘United States’’ or ‘‘U.S.’’ means the
operator, agent, or any other person or makes a good faith effort to obtain, a United States of America, including its
having an interest in the vessel. ticket for transportation on a passenger territories, commonwealths, and
‘‘Passenger vessel’’ means any ship, vessel and presents himself or herself at possessions.
boat, or other craft used as a conveyance the vessel for the purpose of traveling ‘‘Wheelchair’’ means a mobility aid
on water, regardless of its means of on the voyage to which the ticket belonging to any class of wheeled
propulsion, which accepts passengers pertains; or devices, usable indoors, designed or
for hire in connection with other (B) With respect to use of a passenger adapted for and used by individuals
revenue-generating activities. The term vessel for which members of the public with disabilities, whether operated
includes, but is not limited to, cruise are not required to obtain tickets, manually or powered. A ‘‘common
ships, (whether U.S.- or foreign-flag); presents himself or herself at the vessel wheelchair’’ is such a device which
ferries; dinner, excursion, or sightseeing for the purpose of using the vessel for does not exceed 30 inches in width and
boats; boats chartered for fishing or the purpose for which it is made 48 inches in length measured two
other private recreational activities; and available to the public; and inches above the ground, and does not
floating facilities used for gambling (C) Meets reasonable, weigh more than 600 pounds when
(whether tethered to a dock or mobile). nondiscriminatory requirements occupied.
The term does not include boats or other applicable to all passengers; or ‘‘You’’ means the owner or operator of
craft rented or leased to and operated (2) Who, with respect to a passenger vessel, unless the context
solely by consumers. accompanying or meeting a traveler, requires a different meaning.
‘‘Passenger vessel owner or operator using ground transportation, using
(PVO)’’ means any public or private facilities, or obtaining information about § 39.5 To whom do the provisions of this
schedules, fares, reservations, or part apply?
entity that owns or operates a passenger
vessel. When the party that owns a policies, takes those actions necessary to (a) Except as provided in paragraph
passenger vessel is a different party use facilities or services offered by the (b) or (c) of this section, this part applies
from the party that operates the vessel, PVO to the general public, with to you if you are the owner or operator
both are responsible for complying with reasonable accommodations, as needed, of any passenger vessel, and you are:
the requirements of this part. The term provided by the PVO. (1) A public entity that provides
‘‘Secretary’’ means the Secretary of designated public transportation;
includes entities that are primarily
Transportation or his/her designee. (2) A private entity primarily engaged
engaged in the business of transporting ‘‘Section 504’’ means section 504 of
people (e.g., a cruise ship or excursion in the business of transporting people
the Rehabilitation Act of 1973 (Pub. L. whose operations affect commerce that
vessel) and entities that are not 93–112, 87 Stat. 394, 29 U.S.C. 794), as
primarily engaged in transporting provides specified public
amended. transportation; or
people (e.g., an amusement park ‘‘Service animal’’ means any guide
operator which operates a passenger (3) A private entity that owns,
dog, signal dog, or other animal operates, or leases a place of public
vessel to transport visitors from a individually trained to work or perform
parking area to the main part of the park accommodation, and you are not
tasks for an individual with a disability, primarily engaged in the business of
or a hotel located on an island that including, but not limited to, guiding
operates a passenger vessel to shuttle transporting people.
individuals with impaired vision, (b) If you are the PVO of a foreign-flag
guests from the mainland to the island). alerting individuals with impaired
‘‘Private entity’’ means any entity passenger vessel, this part applies to
hearing to intruders or sounds, alerting you only if your vessel picks up
other than a public entity. persons with seizure disorders to the
‘‘Public entity’’ means: passengers at a port in the United States,
onset of a seizure, providing minimal its territories, possessions, or
(1) Any state or local government; protection or rescue work, pulling a
(2) Any department, agency, special commonwealths.
wheelchair, or fetching dropped items. (c) [Reserved]
purpose district, or other ‘‘Solicitation’’ means the closing date
instrumentality of one or more state or for the submission of bids or offers in a § 39.7 What other authorities concerning
local governments (including an entity procurement. nondiscrimination on the basis of disability
established to provide public ferry ‘‘Specified public transportation’’ apply to owners and operators of
service). means transportation by passenger passenger vessels?
‘‘Purchase or lease,’’ with respect to vessel provided by a private entity to (a) If you receive Federal financial
passenger vessels, means the time at the general public, with general or assistance from the Department of
which an entity is legally obligated to special service (including charter Transportation, compliance with
obtain a vessel, such as the time of service) on a regular and continuing applicable requirements of this part is a
contract execution. basis. condition of compliance with section
‘‘Qualified individual with a ‘‘Terminal’’ means, with respect to 504 of the Rehabilitation Act of 1973
disability’’ means an individual with a passenger vessel transportation, the and of receiving financial assistance.
disability— portion of a property located (b) You are also subject to ADA
jlentini on PROD1PC65 with PROPOSAL

(1) Who, as a passenger (referred to as appurtenant to a dock, entry ramp, or regulations of the Department of Justice
a ‘‘passenger with a disability’’), other means of boarding a passenger (28 CFR Parts 35 or 36, as applicable).
(i) With respect to obtaining a ticket vessel, including areas of interface with The provisions of this part shall be
for transportation on passenger vessel land transportation, passenger shelters, interpreted in a manner that will make
offers, or makes a good faith attempt to designated waiting areas, restrooms, them consistent with applicable

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00051 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
2846 Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules

Department of Justice regulations. In part, you may request approval to do so than those to which the determination
any case of apparent inconsistency, the from the Department. specifically pertains.
provisions of this part shall prevail. (c) You must use the following (ii) You must not claim that a
process to request approval of an determination of equivalent facilitation
§ 39.9 What may the owner or operator of equivalent facilitation: indicates approval or endorsement of
a foreign-flag vessel do if it believes a (1) You must provide the following any product or method by the Federal
provision of a foreign nation’s law prohibits
compliance with a provision of this part?
information with your request: government or the Department of
(i) Entity name, address, contact Transportation.
(a) If you are the PVO of a foreign-flag person, and telephone;
vessel, and you believe that a binding (ii) Specific provision(s) of this part or § 39.13 When must PVOs comply with the
legal requirement of a foreign nation 49 CFR Part 38 concerning which the provisions of this part?
precludes you from complying with a entity is seeking a determination of You are required to comply with the
provision of this part, you may request equivalent facilitation. requirements of this part beginning
a waiver of the provision of this part. (iii) Alternative method of [insert effective date of the final rule],
(b) You must send such a waiver compliance, with demonstration of how except as otherwise provided in
request to the Department. the alternative meets or exceeds the individual sections of this part.
(c) Your waiver request must include level of accessibility or usability of the
the following elements: vessel provided this part. Subpart B—Nondiscrimination and
(1) A copy, in the English language, of (2) Before you submit your request for Access to Services
the foreign law involved; equivalent facilitation, you must § 39.21 What is the general
(2) A description of how the binding provide opportunities for public nondiscrimination requirement of this part?
legal requirement of a foreign nation participation: (a) As a PVO, you must not do any of
applies and how it precludes (i) You must consult in person, in
the following things, either directly or
compliance with a provision of this writing, or by other appropriate means,
through a contractual, licensing, or
part; with individuals with disabilities and
other arrangement:
(3) A description of the alternative groups representing them, as well as (1) You must not discriminate against
means you will use, if the waiver is conduct outreach to passengers, any qualified individual with a
granted, to effectively achieve the particularly those with disabilities. This disability, by reason of such disability,
objective of the provision of this part consultation must take place at all with respect to the individual’s use of
subject to the waiver or, if applicable, a stages of the development of the request the vessel;
justification of why it would be for equivalent facilitation. All (2) You must not require a qualified
impossible to achieve this objective in documents and other information individual with a disability to accept
any way. concerning the request shall be special services that the individual does
(d) If you submit such a waiver available, upon request, to the not request;
request in the 90-day period between Department and members of the public. (3) You must not exclude a qualified
the publication of this rule in the (ii) You must make your proposed individual with a disability from or
Federal Register and the effective date request available for public review and deny the person the benefit of any
of this part, you may continue to apply comment before the request is made vessel transportation or related services
the foreign legal requirement pending final or transmitted to DOT. In making that are available to other persons. This
the Department’s response to your the request available for public review, is true even if there are separate or
waiver request. you must ensure that it is available, different services available for
(e) The Department may grant the upon request, in accessible formats. individuals with a disability, except
waiver request if it determines that the (3) A determination whether to when specifically permitted by another
binding legal requirement of a foreign approve or disapprove your request, in section of this part; and
nation applies, that it does preclude whole or in part, will be made by the (4) You must not take any action
compliance with a provision of this Department on a case-by-case basis. against an individual (e.g., refusing to
part, and that the PVO has provided an Determinations are made by the General provide transportation) because the
effective alternative means of achieving Counsel, with the concurrence of the individual asserts, on his or her own
the objective of the provision of this part Assistant Secretary for Transportation behalf or through or on behalf of others,
subject to the waiver or clear and Policy. rights protected by this part or the ADA.
convincing evidence that it would be (i) An approval may be conditioned (b) You must make reasonable
impossible to achieve this objective in on specified actions that you agree to modifications in policies, practices, or
any way. take. procedures when the modifications are
(ii) The Department normally necessary to avoid discrimination on the
§ 39.11 How may a PVO obtain approval to considers approving an equivalent
use an equivalent facilitation? basis of disability or to provide program
facilitation only with respect to the accessibility to your services, unless you
(a) Nothing in this part prevents the specific situation concerning which the can demonstrate that doing so would
use of designs, products, or technologies request is made. However, the fundamentally alter the nature of the
as alternatives to those prescribed in Department may approve a request for service, program, or activity, or would
this part, or alternative ways of equivalent facilitation with respect to a result in undue administrative or
providing accommodations and services product or accessibility feature that the financial burdens.
to passengers with disabilities, provided Department determines can provide an
they result in substantially equivalent or equivalent facilitation in a class of § 39.23 What are the requirements
greater accessibility and usability.
jlentini on PROD1PC65 with PROPOSAL

situations. concerning contractors to owners and


(b) If, as a PVO or the manufacturer (4)(i) You must not cite an approval operators of passenger vessels?
of a product or accessibility feature to be of a request for equivalent facilitation as (a) If, as a PVO, you enter into a
used in a passenger vessel, you wish to indicating that a product or method contractual or other arrangement or
provide an equivalent facilitation in lieu constitutes equivalent facilitation in relationship with any other party to
of complying with a provision of this situations, or classes of situations, other provide services to or affecting

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules 2847

passengers, you must ensure that the that the passenger poses a direct threat threat, you must consider the following
other party meets the requirements of (see definition in § 39.3). In determining factors:
this part that would apply to you if you whether an individual poses a direct (1) Whether U.S. or international
provided the service yourself. threat, you must make an individualized public health authorities (e.g., the
(b) As a PVO, you must include an assessment, based on reasonable Centers for Disease Control, Public
assurance of compliance with this part judgment that relies on current medical Health Service, World Health
in your contracts with any contractors knowledge or on the best available Organization) have determined that
who provide to the public services that objective evidence, to ascertain: persons with a particular condition
are subject to the requirements of this (i) the nature, duration, and severity should not be permitted to travel;
part. Noncompliance with this of the risk; (2) Whether an individual has a
assurance is a material breach of the (ii) the probability that the potential condition that is both readily
contract on the contractor’s part. harm to the health and safety of others transmissible by casual contact in the
(1) This assurance must commit the will actually occur; and context of traveling on or using a
contractor to compliance with all (iii) whether reasonable modifications passenger vessel and has serious health
applicable provisions of this part in of policies, practices, or procedures will consequences;
activities performed on behalf of the mitigate the risk. (3) Whether applying the provisions
PVO. (2) If you determine that the passenger of § 39.27 (c)(1) through (2) would
(2) The assurance must also commit does pose a direct threat, you must otherwise lead to the conclusion that
the contractor to implementing select the least restrictive response from the person poses a direct threat to the
directives issued by your Complaints the point of view of the passenger, health or safety of others.
Resolution Officials (CROs) under consistent with protecting the health (c) If your action under this section
§ 39.103. and safety of others. For example, you results in the postponement of a
(c) As a PVO, you must also include must not refuse transportation or use of passenger’s transportation or use of the
such an assurance of compliance in the vessel to the passenger if you can vessel, you must permit the passenger to
your contracts or agreements of protect the health and safety of others travel or use the vessel at a later time
appointment with U.S. travel agents. by means short of a refusal (e.g., by (up to one year from the date of the
You are not required to include such an implementing measures recommended postponed trip or use of the vessel) at
assurance in contracts with foreign by a physician in connection with a the cost that would have applied to the
travel agents. medical certificate under § 39.31 to passenger’s originally scheduled trip or
(d) You remain responsible for your prevent the transmission of a disease). use of the vessel without penalty or, at
contractors’ compliance with this part (d) If you refuse to provide the passenger’s discretion, provide a
and with the assurances in your transportation or use of a vessel to a refund for any unused transportation or
contracts with them. passenger on a basis relating to the use of the vessel.
(e) It is not a defense to an individual’s disability, you must (d) If you take any action under this
enforcement action under this part that provide to the person a written section that restricts a passenger’s
your noncompliance resulted from statement of the reason for the refusal. transportation or use of the vessel, you
action or inaction by a contractor. This statement must include the specific must, on the passenger’s request,
basis for your opinion that the refusal provide a written explanation within 10
§ 39.25 May PVOs limit the number of meets the standards of paragraph (c) of days of the request.
passengers with a disability on a passenger this section or is otherwise specifically
vessel? § 39.31 May PVOs require a passenger
permitted by this part. You must
As a PVO, you must not limit the with a disability to provide a medical
provide this written statement to the certificate?
number of passengers with a disability person within 10 calendar days of the
on your vessel. (a) Except as provided in this section,
refusal of transportation or use of the
you must not require a passenger with
§ 39.27 May PVOs refuse to provide vessel.
a disability to have a medical certificate
transportation or use of a vessel on the § 39.29 May PVOs limit access to as a condition for being provided
basis of disability? transportation or use of a vessel on the transportation.
(a) As a PVO, you must not refuse to basis that a passenger has a communicable (b)(1) You may require a medical
provide transportation or use of a vessel disease or other medical condition? certificate for a passenger with a
to a passenger with a disability on the (a) You must not do any of the disability—
basis of his or her disability, except as following things on the basis that a (i) Who needs medical oxygen during
specifically permitted by this part. passenger has a communicable disease his or her transportation or use of the
(b) You must not refuse to provide or infection, unless you determine that vessel; or
transportation or use of a vessel to a the passenger’s condition poses a direct (ii) Whose medical condition is such
passenger with a disability because the threat: that there is reasonable doubt that the
person’s disability results in appearance (1) Refuse to provide transportation or individual can complete the
or involuntary behavior that may offend, use of a vessel to the passenger; transportation or use of the vessel
annoy, or inconvenience crewmembers (2) Delay the passenger’s safely, without requiring extraordinary
or other passengers. transportation or use of the vessel (e.g., medical assistance.
(c) You may refuse to provide require the passenger to take a later (2) For purposes of this paragraph, a
transportation or use of a vessel to any trip); medical certificate is a written statement
passenger on the basis of safety only as (3) Impose on the passenger any from the passenger’s physician saying
provided in this paragraph:
jlentini on PROD1PC65 with PROPOSAL

condition, restriction, or requirement that the passenger is capable of


(1) You can determine that there is a not imposed on other passengers; or completing the transportation or use of
disability-related safety basis for (4) Require the passenger to provide a the vessel safely, without requiring
refusing to provide transportation or use medical certificate. extraordinary medical assistance.
of a vessel to a passenger with a (b) In assessing whether the (c)(1) You may also require a medical
disability if you are able to demonstrate passenger’s condition poses a direct certificate for a passenger if he or she

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00053 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
2848 Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules

has a communicable disease or accommodations, the notice is assistant that you do not require, you
condition that poses a direct threat to communicated, clearly and on time, to may charge for the transportation of that
the health or safety of others. the people responsible for providing the person.
(2) For purposes of this paragraph, a requested service or accommodation.
medical certificate is a written statement (e) If a passenger does not meet § 39.39 May PVOs impose special charges
from the passenger’s physician saying on passengers with a disability for
advance notice or check-in requirements
providing services and accommodations
that the disease or infection would not, you establish consistent with this required by this rule?
under the present conditions in the section, you must still provide the
particular passenger’s case, be service or accommodation if you can do (a) As a PVO, you must not charge
communicable to other persons during so by making reasonable efforts, without higher fares, surcharges, or other fees to
the normal course of the passenger’s delaying the trip. passengers with a disability that are not
transportation or use of the vessel. The imposed on other passengers for
medical certificate must state any § 39.37 May PVOs require a passenger transportation or use of the vessel.
conditions or precautions that would with a disability to travel with a personal or (b) If the accommodations on a vessel
safety assistant?
have to be observed to prevent the that are accessible to passengers with a
transmission of the disease or infection (a) Except as provided in paragraph disability are in a type or class of service
to other persons in the normal course of (b) of this section, you must not require or part of a vessel that are more
the passenger’s transportation on or use that a passenger with a disability travel expensive than the type or class of
of the vessel. It must be dated within 10 with another person as a condition of service or past of[A3] a vessel that the
days of the date of the trip or use of the being provided transportation on or use passenger requests, you must provide
vessel for which it is presented. of a passenger vessel. the accessible accommodation at the
(b) You may require a passenger with price of the type or class of service or
§ 39.33 May PVOs require a passenger a disability in one of the following facility that the passenger requests.
with a disability to provide advance notice categories to travel with a safety
that he or she is traveling on or using a (c) You must not impose special or
assistant as a condition of being
passenger vessel? extra charges for providing facilities,
provided transportation or use of a
As a PVO, you must not require a equipment, accommodations, or
passenger vessel, if you determine that
passenger with a disability to provide services that this rule requires to be
a safety assistant is essential for safety:
advance notice of the fact that he or she provided to passengers with a disability.
(1) A passenger who, because of a
is traveling on or using a passenger mental disability, is unable to § 39.41 May PVOs impose other
vessel. comprehend or respond appropriately to restrictions on passengers with a disability
§ 39.35 May PVOs require a passenger
safety instructions from vessel that they do not impose on other
personnel. passengers?
with a disability to provide advance notice
in order to obtain certain specific services (2) A passenger with a mobility (a) As a PVO, you must not subject
in connection with transportation on or use impairment so severe that the person is passengers with a disability to
of a passenger vessel? unable to assist in his or her own restrictions that do not apply to other
(a) Except as provided in paragraph evacuation from the vessel in an passengers, except as otherwise
(b) of this section, as a PVO you must emergency; explicitly permitted in this part.
not require a passenger with a disability (3) A passenger who has both severe (b) Restrictions you must not impose
to provide advance notice in order to hearing and severe vision impairments, on passengers with a disability include,
obtain services or accommodations if the person cannot establish some but are not limited to, the following:
required by this part. means of communication with vessel
(1) Restricting passengers’ movement
(b) (1) If 10 or more passengers with personnel for purposes of safety
within the vessel or a terminal;
a disability seek to travel as a group, you information and instructions.
(c) You may require a passenger with (2) Requiring passengers to remain in
may require 72 hours advance notice for
a disability to have a personal assistant a holding area or other location in order
the group’s travel.
(2) If a passenger needs an accessible if the passenger is unable to perform to receive transportation, services, or
overnight cabin, you may require 72 personal tasks (e.g., eating, dressing, accommodations;
hours advance notice for the toileting) without such an assistant, and (3) Requiring passengers to wear
accommodation. In order to ensure that the duration of the transportation or use badges or other special identification; or
such accommodations remain available of the vessel is long enough that the (4) Requiring ambulatory passengers,
for passengers with a disability, you passenger must perform one or more of including but not limited to blind or
must inform other passengers who these tasks while on the vessel. visually impaired passengers, to use a
reserve accessible cabins that, if a (d) If you determine that a person wheelchair in order to receive assistance
person with a disability requests the meeting the criteria of paragraph (b) or required by this part or otherwise
accommodation by 72 hours before the (c) of this section must travel with a offered to the passenger.
vessel’s scheduled departure, you will safety or personal assistant, contrary to
the individual’s self-assessment that he § 39.43 May PVOs require passengers with
move the other person to a different a disability to sign waivers or releases?
cabin. or she is capable of traveling
(c) If the passenger with a disability independently, you must not charge for (a) As a PVO, you must not require
provides the advance notice you the transportation of the safety assistant. passengers with a disability to sign any
require, consistent with this section, for You may also designate a member of release or waiver of liability in order to
a service, then you must provide the your staff or a passenger volunteer to receive transportation or use of a vessel
perform the personal or safety assistant or to receive services or
jlentini on PROD1PC65 with PROPOSAL

requested service or accommodation.


(d) Your reservation and other role in such a case, rather than carrying accommodations for a disability.
administrative systems must ensure that at no charge a person designated by the (b) You must not require passengers
when passengers provide the advance passenger. In a case in which a with a disability to sign waivers of
notice that you require, consistent with passenger voluntarily chooses to travel liability for damage to or loss of
this section, for services and with a personal assistant or a safety wheelchairs or other assistive devices.

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00054 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules 2849

Subpart C—Information for make it available to passengers on § 39.63 What accommodations are
Passengers request. required at terminals and other landside
facilities for individuals with hearing or
§ 39.51 What information must PVOs § 39.57 What is the general requirement vision impairments?
provide to passengers with a disability? for PVOs’ communications with (a) As a PVO, the information you
As a PVO, you must provide the passengers?
provide to the general public at
following information to passengers PVOs must ensure the effective terminals and other landside facilities
who self-identify as having a disability communication to passengers with must be effectively communicated to
or who request disability-related disabilities of all information provided individuals with impaired vision and
information, or persons making to passengers, through the use of deaf and hard-of-hearing individuals. To
inquiries on the behalf of such persons. auxiliary aids where needed. the extent that this information is not
The information you provide must, to available to these individuals through
the maximum extent feasible, be Subpart D—Accessibility of Landside signage and/or verbal public address
specific to the vessel a person is seeking Facilities announcements, your personnel must
to travel on or use. § 39.61 What requirements must PVOs promptly provide the information to
(a) The availability of accessible meet concerning the accessibility of such individuals on their request, in
facilities on the vessel; including, but terminals and other landside facilities? languages in which the information is
not limited to, means of boarding the provided to the general public.
vessel, lavatories, staterooms, decks, As a PVO, you must comply with the
following requirements with respect to (b) The types of information you must
dining, and recreational facilities; make available include, but are not
(b) Any limitations on the ability of all terminal and other landside facilities
you own, lease, or control in the United limited to, information concerning
the vessel to accommodate passengers ticketing, fares, schedules and delays,
with a disability; States (including its territories,
possessions, and commonwealths): and the checking and claiming of
(c) Any limitations on the
luggage.
accessibility of boarding and (a) With respect to new facilities, you
must do the following: (c) You must meet the requirements of
disembarking at ports at which the
this section by [date one year from
vessel will call and services or tours (1) You must ensure that terminal effective date of the final rule].
ancillary to the transportation provided facilities are readily accessible to and
by the vessel concerning which the PVO usable by individuals with disabilities, Subpart E—Accessibility of Vessels
makes arrangements available to including individuals who use [Reserved]
passengers. wheelchairs. You are deemed to comply
with this obligation if the facilities meet Subpart F—Assistance and Services to
§ 39.53 Must information and reservation
services of PVOs be accessible to requirements of 49 CFR Part 37, § 37.9, Passengers With Disabilities
individuals with hearing or vision and the standards referenced in that
impairments? section. § 39.81 What assistance must PVOs
provide to passengers with a disability in
This section applies to information (2) You must ensure that there is an
getting to and from a passenger vessel?
and reservation services made available accessible path between the terminal or
to persons in the United States. other passenger waiting area and the (a) As a PVO, if you provide, contract
(a) If, as a PVO, you provide boarding ramp or device used for the for, or otherwise arrange for
telephone reservation or information vessel. An accessible route is one transportation to and from a passenger
service to the public, you must make meeting the requirements of the vessel (e.g., a bus transfer from an
this service available to individuals who standards referenced in 49 CFR Part 37, airport to a vessel terminal), you must
are deaf or hard-of-hearing through use § 37.9. ensure that the transfer service is
of a text telephone (TTY). (b) When a facility is altered, the accessible to and usable by individuals
(1) You must make TTY service altered portion must meet the same with disabilities, as required by this
available during the same hours as standards that would apply to a new part.
telephone service for the general public. facility. (b) You must also provide assistance
(2) Your response time to TTY calls requested by or on behalf of a passenger
(c) With respect to an existing facility,
must be equivalent to your response with a disability in moving between the
you must ensure that passengers with a
time for your telephone service to the terminal entrance (or a vehicle drop-off
disability can use the facility to gain
general public. point adjacent to the entrance) and the
access to your vessel. You may meet this
(3) You must meet this requirement place where people get on or off the
obligation through any combination of
by [date one year from the effective date passenger vessel. This requirement
facility accessibility, equipment, the
of the final rule]. includes assistance in accessing key
assistance of personnel, or other
(b) If, as a PVO, you provide written functional areas of the terminal, such as
appropriate means consistent with the
(i.e., hard copy) information to the ticket counters and baggage checking/
safety and dignity of passengers with a
public, you must ensure that this claim. It also includes a brief stop upon
disability. With respect to making
information is able to be communicated request at an accessible restroom or
structural modifications in existing
effectively, on request, to persons with nearby takeout food vendor.
facilities, you have the same obligations
vision impairments. You must provide
as any other public or private entity § 39.83 What are PVOs’ obligations for
this information in the same
under the applicable provisions of DOT assisting passengers with a disability in
languages(s) in which it is available to getting on and off a passenger vessel?
ADA regulations.
the general public.
(d) Where you share responsibility for (a) If a passenger with a disability can
jlentini on PROD1PC65 with PROPOSAL

§ 39.55 Must PVOs make copies of this ensuring accessibility of a facility with readily get on or off a passenger vessel
rule available to passengers? another entity, you and the other entity without assistance, you are not required
As a PVO, you must keep a current are jointly and severally responsible for to provide such assistance to the
copy of this part on each vessel and meeting applicable accessibility passenger. You must not require such a
each U.S. port or terminal you serve and requirements. passenger with a disability to accept

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00055 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
2850 Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules

assistance from you in getting on or off safety briefings, information, or drills verbal assurances of a passenger with a
the vessel. provided to passengers: disability using the animal.
(b) With respect to a passenger with (a) You must provide the briefings or (d) If you decide not to accept an
a disability who is not able to get on or other safety-related information through animal as a service animal, you must
off a passenger vessel without means that effectively communicate explain the reason for your decision to
assistance, you must promptly provide their content to persons with vision or the passenger and document it in
assistance that ensures that the hearing impairments. This includes writing. A copy of the explanation must
passenger can get on or off the vessel. providing written materials in be provided to the passenger within 10
(c) When you have to provide alternative formats that persons with calendar days of the incident.
assistance to a passenger with a vision impairments can use.
(b) You must not require any § 39.93 What mobility aids and other
disability in getting on or off a passenger
passenger with a disability to assistive devices may passengers with a
vessel, you may use any available means disability bring onto a passenger vessel?
to which the passenger consents (e.g., demonstrate that he or she has listened
lifts, ramps, boarding chairs, assistance to, read, or understood the information (a) As a PVO, you must permit
by tour personnel). However, you must presented, except to the extent that you passengers with a disability to bring the
never use hand-carrying (i.e., directly impose such a requirement on all following kinds of items onto a
picking up the passenger’s body in the passengers. You must not take any passenger vessel, consistent with Coast
arms of one or more personnel) to effect action adverse to a qualified individual Guard requirements concerning
a level change the passenger needs to with a disability on the basis that the security, safety, and hazardous
get on or off the vessel, even if the person has not ‘‘accepted’’ the briefing. materials:
passenger consents. (c) As a PVO, if you present on-board (1) Wheelchairs and other mobility
safety briefings to passengers on video devices, including, but not limited to,
§ 39.85 What services must PVOs provide screens, you must ensure that the safety- manual wheelchairs and battery-
to passengers with a disability on board a video presentation is accessible to powered wheelchairs;
passenger vessel? passengers with impaired hearing (e.g., (2) Other mobility aids, such as canes
As a PVO, you must provide services through use of open captioning or (including those used by persons with
on board the vessel as requested by or placement of a sign language interpreter impaired vision), crutches, and walkers;
on behalf of passengers with a in the video). (3) Other assistive devices (e.g.,
disability, or when offered by PVO (1) You may use an equivalent non- vision-enhancing devices, personal
personnel and accepted by passengers video alternative to this requirement ventilators, portable oxygen
with a disability, as follows: only if neither open captioning nor a concentrators, and respirators that use
(a) Assistance in moving about the sign language interpreter inset can be non-spillable batteries);
vessel, with respect to any spaces that placed in the video presentation (4) Personal oxygen supplies.
are not readily accessible and usable to without so interfering with it as to (b) You must permit passengers with
the passenger. render it ineffective or it would not be a disability to use their mobility aids
(b) If food is provided to passengers large enough to be readable. and assistive devices on board the
on the vessel, assistance in preparation (2) You may implement the vessel in all locations passengers access.
for eating, such as opening packages and requirements of this section by (c) You are not required to permit
identifying food; substituting captioned or interpreted passengers with a disability to bring
(c) Effective communication with video materials for uncaptioned/ these items into lifeboats or other
passengers who have vision uninterpreted video materials as the survival craft, in the context of an
impairments or who are deaf or hard-of- uncaptioned/uninterpreted materials are emergency evacuation of the vessel.
hearing, so that these passengers have replaced in the normal course of the
timely access to information the PVO carrier’s operations. § 39.95 May PVOs limit their liability for
provides to other passengers (e.g., (d) You must provide whatever loss of or damage to mobility aids or other
assistance is necessary to enable assistive devices?
weather, on-board services, delays).
passengers with disabilities to Consistent with any applicable
§ 39.87 What services are PVOs not participate fully in safety or emergency requirements of international law, you
required to provide to passengers with a evacuation drills provided to all must not apply any liability limits with
disability on board a passenger vessel? respect to loss of or damage to
passengers.
As a PVO, you are not required to (e) You must maintain evacuation wheelchairs or other assistive devices.
provide extensive special assistance to programs, information, and equipment The criterion for calculating the
passengers with a disability. For in locations that passengers can readily compensation for a lost, damaged, or
purposes of this section, extensive access and use. destroyed wheelchair or other assistive
special assistance includes the device shall be the original purchase
following activities: § 39.91 Must PVOs permit passengers with price of the device.
(a) Assistance in actual eating; a disability to travel with service animals?
(b) Assistance within a restroom or (a) As a PVO, you must permit service Subpart G—Complaints and
assistance elsewhere on the vessel with animals to accompany passengers with Enforcement Procedures
elimination functions; and a disability.
(b) You must permit the service § 39.101 What are the requirements for
(c) Provision of medical equipment or providing Complaints Resolution Officials?
services, or assistive devices, except to animal to accompany the passenger in
the extent provided to all passengers. all locations that passengers can use on (a) As a PVO, you must designate one
or more Complaints Resolution Officials
jlentini on PROD1PC65 with PROPOSAL

a vessel.
§ 39.89 What requirements apply to on- (c) You must accept the following as (CROs).
board safety briefings, information, and evidence that an animal is a service (b) You must make a CRO available on
drills? animal: identification cards, other each vessel and each terminal you serve.
As a PVO, you must comply with the written documentation, presence of You must make CRO service available in
following requirements with respect to harnesses, tags, and/or the credible the language(s) in which you make your

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00056 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1
Federal Register / Vol. 72, No. 14 / Tuesday, January 23, 2007 / Proposed Rules 2851

other services available to the general CRO must take, or direct other PVO (2) If you deny that a violation has
public. personnel to take, whatever action is occurred, your response must include a
(c) You may make the CRO available necessary to ensure compliance with summary of the facts and your reasons,
in person or via telephone, at no cost to this part. under this part, for the determination.
the passenger. If a telephone link to the (b) If an alleged violation of a (3) Your response must also inform
CRO is used, TTY service must be provision of this part has already the complainant of his or her right to
available so that persons with hearing occurred, and the CRO agrees that a pursue DOT and/or DOJ enforcement
impairments may readily communicate violation has occurred, the CRO must action under this part.
with the CRO. provide to the complainant a written
(d) You must make passengers with a statement setting forth a summary of the § 39.107 Where may passengers file
disability aware of the availability of a facts and what steps, if any, the PVO complaints?
CRO and how to contact the CRO in the proposes to take in response to the (a) Any person believing that a PVO
following circumstances: violation. has violated any provision of this part
(1) In any situation in which any (c) If the CRO determines that the may contact the following office for
person complains or raises a concern PVO’s action does not violate a assistance: U.S. Department of
with your personnel about provision of this part, the CRO must Transportation, Departmental Office of
discrimination, accommodations, or provide to the complainant a written Civil Rights, 400 Seventh Street, SW,
services with respect to passengers with statement including a summary of the Washington, DC 20590.
a disability, and your personnel do not facts and the reasons, under this part, (b) Any person believing that a PVO
immediately resolve the issue to the for the determination. has violated any provision of this part
customer’s satisfaction or provide a (d) The statements required to be may also file a complaint with the
requested accommodation, your provided under this section must inform Disability Rights Section, Civil Rights
personnel must immediately inform the the complainant of his or her right Division, Department of Justice.
passenger of the right to contact a CRO complain to the Department of (c) Any person believing that a PVO
and the location and/or phone number Transportation and/or Department of that receives Federal financial
of the CRO available on the vessel or at Justice. The CRO must provide the assistance has violated any provision of
the terminal. Your personnel must statement in person to the complainant this part may also file a complaint with
provide this information to the in person if possible; otherwise, it must the civil rights office of the concerned
passenger in a format he or she can use. be transmitted to the complainant
DOT operating administration.
(2) Your reservation agents, within 10 calendar days of the
(d) Requests for assistance and
contractors, and web sites must provide complaint.
complaints must be filed no later than
information equivalent to that required § 39.105 How must PVOs respond to 180 days after the incident, or after the
by paragraph (d)(1) of this section to written complaints? end of a continuing violation, to ensure
passengers with a disability using those (a) As a PVO, you must respond to that they can be investigated.
services. written complaints received by any
(e) Each CRO must be thoroughly § 39.109 What enforcement action may be
means (e.g., letter, fax, e-mail, electronic
familiar with the requirements of this taken under this part?
instant message) concerning matters
part and the carrier’s procedures with covered by this part. (a) The Department of Transportation
respect to passengers with a disability. (b) A passenger making a written may investigate complaints and conduct
The CRO is intended to be the PVO’s complaint, must state whether he or she reviews or other inquiries into the
‘‘expert’’ in compliance with the had contacted a CRO in the matter, compliance of PVOs with this part.
requirements of this part. provide the name of the CRO and the (b) The Department may issue and
(f) You must ensure that each of your date of the contact, if available, and make public findings and
CROs has the authority to make enclose any written response received recommendations concerning any
dispositive resolution of complaints on from the CRO. matter relating to the compliance of
behalf of the PVO. This means that the (c) As a PVO, you are not required to PVOs with this part.
CRO must have the power to overrule respond to a complaint postmarked or (c) The Department may refer any
the decision of any other personnel, transmitted more than 45 days after the matter concerning the compliance of
except that the CRO is not required to date of the incident, except for PVOs with this part to the Department
be given authority to countermand a complaints referred to you by the of Justice for enforcement action.
decision of the master of a vessel with Department of Transportation. (d) The Department of Justice may
respect to safety matters. (d) As a PVO, you must make a conduct investigations and take
dispositive written response to a written enforcement action concerning
§ 39.103 What actions do CROs take on disability complaint within 30 days of
complaints?
compliance with the provisions of this
its receipt. The response must part on its own initiative at any time.
When a complaint is made directly to specifically admit or deny that a (e) With respect to a PVO that receives
a CRO (e.g., orally, by phone, TTY) the violation of this part has occurred. DOT financial assistance, the
CRO must promptly take dispositive (1) If you admit that a violation has
Department may take enforcement
action as follows: occurred, you must provide to the
action as provided in 49 CFR Parts 27
(a) If the complaint is made to a CRO complainant a written statement setting
and 37.
before the action or proposed action of forth a summary of the facts and the
PVO personnel has resulted in a steps, if any, you will take in response [FR Doc. E7–362 Filed 1–22–07; 8:45 am]
violation of a provision of this part, the to the violation. BILLING CODE 4910–22–P
jlentini on PROD1PC65 with PROPOSAL

VerDate Aug<31>2005 16:24 Jan 22, 2007 Jkt 211001 PO 00000 Frm 00057 Fmt 4702 Sfmt 4702 E:\FR\FM\23JAP1.SGM 23JAP1

You might also like