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

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.