Guidance Questions and Answers Concerning 49 CFR Part 39, ADA Rules Concerning Passenger Vessels

COVERAGE/APPLICABILITY ISSUES 

39.5

QUESTION: ARE PASSENGERS WHO TRAVEL ON A PVO’s VESSEL ONLY BETWEEN TWO FOREIGN PORTS PROTECTED BY THE REQUIREMENTS OF THE RULE?

ANSWER:

*Such passengers are not covered by the protections of the rule.

*For example, suppose Passenger X boards a vessel in Los Angeles and travels to Australia, with a stopover in Tahiti. Passenger Y boards the same vessel in Tahiti and travels to Australia. Both passengers disembark in Melbourne. Passenger X is covered by the protections of the rule, while Passenger Y is not.

*The reason for this distinction is that it would not be appropriate to extend the Department’s jurisdiction under the ADA to attempt to cover passengers traveling only between two foreign ports.

*Nevertheless, to avoid the appearance or reality of unfairly disparate treatment of passengers with disabilities depending on where they board or leave vessels, the Department urges PVOs to treat all passengers equally with respect to disability nondiscrimination matters.

39.5

QUESTION: DO THE PROVISIONS OF PART 39 APPLY TO PVOs WHOSE VESSELS PICK UP OR DISCHARGE PASSENGERS AT U.S. PORTS, OR ONLY TO PVOs WHOSE VESSELS PICK UP PASSENGERS AT U.S. PORTS?

ANSWER:

*There is a discrepancy between the language of the preamble to the Department’s regulation and its regulatory text that may cause confusion on this point.

*The preamble to the rule says that “coverage of foreign-flag vessels would be limited to those that pick up or discharge passengers in the U.S.”

*The regulatory text of section 39.5(b) says that “If you are the PVO of a foreign-flag passenger vessel, this Part applies to you only if your vessel picks up passengers at a [U.S] port…”

*It is the rule text, rather than the preamble, that controls in terms of establishing legal requirements. Consequently, given the present rule text, a passenger who boards a vessel at a U.S. port and disembarks at a foreign port is covered by the protections of the rule, but a passenger who boards at the foreign port and disembarks at the U.S. port is not.

*The Department is considering whether to amend the rule text on this matter.

39.9

QUESTION: HOW WILL THE DEPARTMENT IMPLEMENT THE CONFLICT OF LAW WAIVER REQUEST PROVISIONS OF PART 39?

ANSWER:

*Under section 39.9, a PVO may apply for a conflict of law waiver if the legal requirement of a foreign government to which the PVO is subject creates a conflict with the requirements of the Department’s rule.

*To be considered a conflict under this section, the foreign provision must be legally mandatory (e.g., a statute or a rule) rather than guidance or a recommendation. It must explicitly prohibit something that Part 39 requires or explicitly require something that Part 39 prohibits.

*The Department would consider, under this provision, conflicts arising from a binding treaty or international agreement as well as from the law of an individual foreign nation.

*The Department recognizes that new laws are enacted and that existing laws change. The Department would consider future conflict of law waiver requests based on new or changed foreign legal requirements.

*The Department has no objection to groups of PVOs submitting a joint conflict of law waiver request. For example, suppose six cruise lines are subject to a legal requirement of Country X. The six cruise lines, or a trade association representing them, could submit a single waiver request, rather than having to submit six individual requests. The Department’s response would apply to all six cruise lines.