2010-28236. Transportation for Individuals With Disabilities: Passenger Vessels

AGENCY:

Department of Transportation, Office of the Secretary.

ACTION:

Response to comments; stay of effective date.

SUMMARY:

On July 6, 2010, the Department of Transportation issued a new Americans with Disabilities Act (ADA) final rule to ensure nondiscrimination on the basis of disability by passenger vessel operators (PVOs). The final rule requested comment on three issues: Service animals, mobility devices, and the consistency of the rule with recent Department of Justice ADA rules. This document responds to those comments and makes certain adjustments in effective dates for the final rule.

DATES:

49 CFR 39.39 is stayed effective from November 8, 2010 through January 3, 2012; the remainder of 49 CFR part 39 is stayed effective from November 8, 2010 through January 3, 2011.

FOR FURTHER INFORMATION CONTACT:

Robert C. Ashby, Deputy Assistant General Counsel for Regulation and Enforcement, Department of Transportation, 1200 New Jersey Avenue, SE., Room W94-302, Washington, DC 20590. [phone] (voice); [phone] (TDD); [e-mail] (e-mail).

SUPPLEMENTARY INFORMATION:

After a lengthy, open, and inclusive rulemaking process including an advance notice of proposed rulemaking (ANPRM), a notice of proposed rulemaking (NPRM), public meetings, and consultation with the Access Board and the Department of Justice (DOJ), the Department of Transportation issued a final rule (49 CFR part 39) applying the ADA to the policies and practices of passenger vessel operators (PVOs). The rule was issued on July 6, 2010 (75 FR 38878) with an effective date of November 3, 2010. The final rule included a request for comment on three issues: service animals, mobility aids, and the general consistency of Part 39 with recent DOJ rules under Titles II and III of the ADA. The Department worked closely with DOJ to ensure that part 39, as published, is fully consistent with DOJ ADA rules. The question raised in the request for comments was whether it would be appropriate for the Department to make changes to the rule that could differ from the DOJ rules in some respects.

The Department received over 30 comments. About two-thirds of these were from advocates of psychiatric service animals (PSAs). They supported considering such animals to be service animals and opposed permitting emotional service animals (ESAs) to be considered as service animals. Two disability organizations supported the use of ESAs on ships and urged the Department to permit them to travel with their users. The Department is not making any changes in its rules in response to these comments. Part 39's existing definition of service animals encompasses PSAs. The preamble to the final rule made clear that ESAs, consistent with DOJ rules, are not considered to be service animals that PVOs are required to accommodate, though the Department said that it is a good idea for PVOs to accept ESAs.

Two organizations representing PVOs commented on the rule. Both urged that the Department's rules be consistent with those of DOJ. DOT regards its existing rules as being consistent with those of DOJ, in general as well as with respect to particular matters such as service animals and mobility aids. The Department is not making any substantive changes to its rules, which consequently will remain consistent with those of DOJ.

One of these organizations pointed out that the DOJ ADA rules become effective in six months rather than four, and that a DOJ provision on hotel reservations had an 18-month effective date. It asked that DOT change its effective dates to be consistent with these DOJ dates. The Department believes that these requests are reasonable. Consequently, we are changing the effective date for most provisions of the rule from November 3, 2010, to January 3, 2011. In addition to being consistent with the DOJ time frame, this extension will permit more time for the Department to work on guidance and interpretations that will assist regulated parties and the public to implement the new rules smoothly. We will also extend the effective date for the cabin reservations section of the rule to January 3, 2012. In addition to being consistent with the DOJ time frame for hotel reservations, this extension will provide additional time for PVOs to make necessary changes to their computer systems to carry out the regulatory requirements.

Some commenters made comments outside the scope of the Department's request for comment. One of the PVO organizations expressed its disagreement with various provisions of the final rule and sought clarification of others. Other comments asked for clarifications on some issues, such as where complaints should be sent or coverage of coastwise vessels carrying passengers not for hire. We will not respond to those comments here, since they are beyond the scope of the Department's request for comments, but we would note that, in the normal course of business, the Department regularly provides interpretations of or guidance concerning new regulatory provisions. We will do so in the case of Part 39 where necessary and appropriate.

Regulatory Process Matters

This stay of effective dates relates to an underlying final rule that was significant for purposes of Executive Order 12886 and the Department's Regulatory Policies and Procedures. However, this notice makes no changes in the text of the final regulation, and the changes to the effective date of the rule are not themselves significant. These changes do not impose any additional costs or burdens on any regulated parties, and they provide regulated entities, including small entities, additional time to comply with the regulations. For this reason, the Department certifies that these changes to the effective dates do not impose significant economic effects on a substantial number of small entities.

Issued at Washington, DC, November 2, 2010.

Ray LaHood,

Secretary of Transportation.