802

October 1, 1999

The Honorable Frank R. Wolf

Member, U.S. House of Representatives

13873 Park Center Road

Suite 130

Herndon, Virginia 20171

Dear Congressman Wolf:

This is in response to the letter you forwarded from one of your constituents, xxxxx xx xxxxx. xxx xxxxx posed several questions regarding the applicability and enforceability of the Americans with Disabilities Act of 1990 (ADA) on entities that operate passenger vessels registered domestically or under foreign flags.

Passenger vessels, both privately and publicly owned, are subject to the requirements of the ADA. Section 301 of the ADA prohibits discrimination against persons with disabilities by private entities in their operation of places of public accommodation. A place of public accommodation is defined as a facility that falls within one or more of the twelve broad categories listed in the statute with operations that affect commerce. The categories include places of lodging, establishments serving food or drink, places of exhibition or entertainment, places of public gathering, sales or rental establishments, service establishments, and places of exercise or recreation. Passenger vessels, which may contain guest cabins, restaurants, snack bars, movie theaters, casinos, lounges, gift shops, beauty shops, health clubs, and pool areas, contain one or more of these types of places of public accommodation.

In addition, privately owned passenger vessels are covered by section 304 of the ADA. Section 304 prohibits discrimination on the basis of disability in "specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce." Specified public transportation is defined as "transportation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special services (including charter service) on a regular and continuing basis." 42 U.S.C. 12181(10).

Passenger vessels operated by public entities also are covered by the ADA. Section 222 of the ADA prohibits a public entity which operates a fixed route system (such as a ferry) from purchasing or leasing new vehicles that are not readily accessible to and usable by individuals with disabilities, including those who use wheelchairs. Section 202 of the ADA prohibits a public entity from excluding a person with a disability from its services, programs, or activities.

Nothing in the plain language of the ADA excludes from coverage foreign flag vessels that do business in the United States. The ADA does not exempt from coverage public accommodations or transportation services operated by foreign corporations. Absent a statutory exemption, corporations doing business in the United States must comply with all generally applicable laws, including laws that prohibit discrimination. The fact that a passenger vessel sails under a foreign flag and is registered in a foreign country does not exempt it from generally applicable laws of the countries in which it does business.

Because foreign flag vessels generally are subject to the laws of the United States when they are in United States ports or other internal waters, the Department of Justice has determined that foreign flag vessels are subject to the requirements of the ADA when they are in the ports or internal waters of the United States. The Department of Justice Technical Assistance Manual provides that foreign flag ships "that operate in United States ports may be subject to domestic law, such as the ADA, unless there are specific treaty prohibitions that preclude enforcement." Title III Technical Assistance Manual III-1.2000(D) (1994 Supp.). The Department of Transportation has similarly determined that the United States "appears to have jurisdiction to apply ADA requirements to foreign-flag cruise ships that call in U.S. ports" except to the extent that enforcing ADA requirements would conflict with a treaty. 56 Fed. Reg. 45,584, 45,600 (1991). Therefore, unless there is a showing that the application of the ADA to a foreign flag vessel would conflict with an international convention to which the United States is a party, the ADA applies. Of course, the ADA also applies to U.S. flagged vessels. Recently, the Department filed a brief as amicus curiae, or "friend of the court," in support of a private lawsuit under the ADA against Premier Cruises. In the Department's brief we argued that title III of the ADA governs the operations of cruise ships that do business in the United States, including foreign flag ships such as Premier's "Big Red Boat."

With respect to your constituent's questions concerning enforcement, title III of the ADA authorizes the Department of Justice to investigate alleged violations of the Act by public accommodations and commercial facilities. 42 U.S.C. § 12188 (b)(1)(A). The Department may seek judicial relief only in instances where there appears to be a pattern or practice of discrimination or where an issue of general public importance is involved. The Department of Justice also is charged with enforcing title II complaints against public entities. With respect to both title II and title III complaints, an individual with a disability may choose to file an action in court rather than file a complaint with the Department.

I am enclosing a copy of the Division's latest Status Report which summarizes our ADA enforcement activity, as well as a copy of the Department's brief in the above referenced case against Premier Cruises. I hope this information is useful to you in responding to your constituent. Please do not hesitate to contact the Department if we can be of assistance in other matters.

Sincerely,

Bill Lann Lee

Acting Assistant

Attorney General

Civil Rights Division

Enclosures