filed: July 24, 1989; As Corrected October 6, 1989.
On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil Nos. 86-2989 and 86-4718.
Gibbons, Chief Judges, Seitz, Higginbotham, Sloviter, Becker, Stapleton, Mansmann, Greenberg, Hutchinson, Scirica, Cowen, and Nygaard, Circuit Judges.
Opinion ANNOUNCING THE JUDGMENT OF THE COURT
This case, before us on consolidated cross-appeals from the judgment of the district court, requires us to construe a welter of statutory provisions establishing the obligations of recipients of federal financial assistance to provide accessible public transportation for the handicapped. The statutory provisions involved are section 16(a) of the Urban Mass Transportation Act ("UMTA"), 49 U.S.C.app. § 1612(a) (1982); section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (1982 & Supp. V 1987 & West Supp. 1989); section 165(b) of the Federal-Aid Highway Act, 23 U.S.C. § 142 note (1982) (Bus and Other Project Standards); and section 317(c) of the Surface Transportation Assistance Act of 1982 ("STAA"), 49 U.S.C.A.app. § 1612(d) (West Supp. 1989) (originally codified at 49 U.S.C.app. § 1612(c) (1982)). The principal question before us is whether certain regulations promulgated by the Department of Transportation ("DOT") at 49 C.F.R. § 27.95 & 27.97 (1987), delineating local transit authorities' obligations to meet the needs of the disabled, are in compliance with these statutes. The regulations were challenged by seven disabled individuals and twelve organizations, who brought one of the consolidated actions on behalf of themselves and their mobility-impaired members ("ADAPT"), on the grounds that they were in derogation of the applicable statutes.
The first challenged regulation, 49 C.F.R. § 27.95 (1987), gives local governments the option to effectuate the purposes of the statutes through either accessible mass transit, paratransit,*fn1 or a combination of both. The district court concluded that the regulation was not an arbitrary and capricious exercise of delegated authority and granted summary judgment for the defendant Secretary of Transportation on this issue. Contending that the law requires mainline accessibility, or "mainstreaming," and that the regulations' paratransit-only option obviates that requirement, ADAPT appeals, No. 88-1177.
The other challenged regulation, 49 C.F.R. § 27.97, is a safe harbor provision insulating transit operators that spend 3% of their average operating costs from further liability under the statutes. The district court granted summary judgment for the plaintiffs on this issue, holding that the safe harbor was arbitrary and capricious. The district court set the regulation aside and remanded for further consideration by the Secretary. The Secretary, contending that the safe harbor provision was necessary to keep expenditures for transportation for the disabled within reasonable bounds, as mandated by the statutes, appeals, No. 88-1139.*fn2
For the reasons that follow, we will affirm, though on remand we will require the district court to set a timetable for the Secretary's further rulemaking.
I. STATUTORY AND REGULATORY HISTORY
The first of the relevant statutes to be enacted was the Urban Mass Transportation Act of 1964, amended by Congress in the Urban Mass Transportation Assistance Act in 1970. The Act provides for federal financial assistance to local transit operators. The 1970 amendments added section 16(a), which declared a national policy that
elderly and handicapped persons have the same right as other persons to utilize mass transportation facilities and services; that special efforts shall be made in the planning and design of mass transportation facilities and services so that the availability to elderly and handicapped persons of mass transportation which they can effectively utilize will be assured. . . .
Subsequently, Congress passed section 504 of the Rehabilitation Act of 1973, commonly known as the civil rights bill of the disabled. Section 504, which was introduced by Senators Humphrey and Percy as an amendment to the Civil Rights Act of 1964, provides that:
No otherwise qualified individual with handicaps in the United States . . . shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Congress then enacted section 165(b) of the Federal-Aid Highway Act of 1973, which directed that
[the] Secretary of Transportation shall require that projects receiving Federal financial assistance . . . shall be planned, designed, constructed, and operated to allow effective utilization by elderly and handicapped persons who, by reason of illness, injury, age, congenital malfunction, or other permanent or temporary incapacity or disability . . . are unable without special facilities or special planning or design to utilize such facilities and services effectively. . . . The Secretary shall not approve any program or project to which this section applies which does not comply with the provisions of this subsection requiring access to public mass transportation facilities, equipment, and services for elderly or handicapped persons.
To implement these statutory mandates, DOT promulgated regulations in 1976 requiring local planners to make "'special efforts' in planning public mass transportation facilities and services that can effectively be utilized by elderly and handicapped persons." 41 Fed.Reg. 18,234 (1976).
Moreover, two days before the regulations were published, then-President Gerald Ford issued Executive Order Number 11,914, 41 Fed.Reg. 17,871 (1976), directing the Department of Health, Education, and Welfare ("HEW") (now the Department of Health and Human Services, see 20 U.S.C. § 3508 (1982)), to coordinate implementation of the non-discriminatory policy announced in section 504 for all federal agencies.
HEW's guidelines, issued in 1978, required all recipients of federal funds to mainstream handicapped persons by making public transportation "readily accessible to and usable by handicapped persons." 45 C.F.R. §§ 85.57(a), 85.58(a) (1978). The HEW guidelines stressed that participating programs should authorize those options offering access "in the most integrated setting appropriate." 43 Fed.Reg. 2132, 2138 (1978). With respect to public transportation, the HEW guidelines specifically required retrofitting of subways and buses to make these modes of transportation fully accessible to the disabled. 45 C.F.R. §§ 85.57(b), 85.58.
Importantly, even though the language of HEW's guidelines appeared to require mainstreaming, HEW was careful not to preclude the possibility of paratransit. HEW stated that it "[wished] to make clear that it does not construe [the guidelines] to preclude in all circumstances the provision of specialized services as a substitute for, or supplement to, totally accessible services. " 43 Fed.Reg. at 2134.
In 1979, DOT promulgated regulations in compliance with the HEW guidelines. Those regulations contained requirements mandating across-the-board alterations to ensure that all transportation facilities were made accessible to handicapped persons. 44 Fed.Reg. 31,442 (1979). The 1979 regulations, accordingly, were viewed as requiring transit operators to retrofit their existing systems to make them accessible to the handicapped.
The 1979 regulations were immediately challenged by the American Public Transit Association, a trade association of public transit operators. In American Public Transportation Association (APTA) v. Lewis, 211 U.S. App. D.C. 42, 655 F.2d 1272 (D.C.Cir. 1981), the Court of Appeals for the District of Columbia Circuit invalidated the retrofitting requirements as inconsistent with section 504. APTA v. Lewis, 655 F.2d at 1278. The court found that compliance would require extensive modifications to existing systems and would impose heavy financial burdens on local transit authorities. The court remanded and directed DOT to determine whether other statutes could support the extensive requirements of the regulations.
Subsequent to APTA v. Lewis, DOT promulgated interim regulations. 46 Fed.Reg. 37,488 (1981) [hereinafter 1981 Interim Regulations]. Pursuant to these regulations, recipients of federal funds were required to make "special efforts" to accommodate the transportation needs of the handicapped but could elect under "local option" provisions how to do so. Local transit operators were to opt whether (1) to make their buses accessible by the installation of wheelchair lifts; (2) to establish a paratransit system, separate from the regular transit system, using vans that could accommodate wheelchairs; or (3) to establish a mixed system, using accessible buses for some parts of the system and paratransit for other parts. The 1981 Interim Regulations also contained a safe harbor: transit operators would be relieved of their obligation to provide transportation services to the handicapped as long as they spent 3-1/2% of UMTA funds on such services. Under the regulations, once the spending requirement was met, there would be no federal scrutiny of the extent of the transportation services provided to the handicapped.
Then, in January of 1982, DOT announced a notice of proposed rulemaking. 47 Fed.Reg. 1890, 1891 (1982). Noting the 3-1/2 safe harbor provision, DOT observed that without any substantive criteria, the quality of the transportation services offered handicapped persons might be inconsistent or quite low in some geographical areas. DOT stated it was considering three alternative approaches, each of which would allow local transit authorities discretion to determine the type of service they would offer.
Apparently dissatisfied with the slow pace of DOT's rulemaking, Congress, in December of 1982, enacted the Surface Transportation Assistance Act of 1982, 49 U.S.C.A.app. § 1612(d), which requires that DOT issue regulations to establish minimum criteria for the provision of services to the disabled.*fn4 In fact, when the provision of STAA ordering DOT to establish the minimum service criteria was proposed by Senator Cranston, he criticized the 1981 Interim Regulations as "a total abdication of Federal responsibility for protecting handicapped persons from discrimination and inadequate services." 128 Cong.Rec. 30,822, 30,824 (1982); see also 128 Cong.Rec. 32,634, 32,642 (1982) (Sen. Riegle saying same). Senator Cranston underscored the need for the provision as follows:
[A] most unfortunate situation [exists] in which the Department of Transportation's hands-off, local-option, self-certification, no-monitoring, and no-criteria position is transforming the antidiscrimination laws into meaningless symbols. And it is not just that accessible bus service is fast becoming a lost hope in many parts of the country; the special services -- paratransit -- for handicapped persons are proving to be unsatisfactory.
The present course is clearly not the answer. Not only are we headed toward affording handicapped and elderly persons third-class treatment, but we are frustrating our own efforts to rehabilitate people, help them get back into productive activities, be more independent, and get off of disability and welfare rolls. Mobility is certainly critical to these efforts, and it is a tragic waste to fund vocational rehabilitation programs and then frustrate those rehabilitation efforts by failing to insure that we continue to make progress in enabling disabled persons to find and to get to and from work.
On September 8, 1983, DOT published a second notice of proposed rulemaking to replace the 1981 Interim Regulations. See 48 Fed.Reg. 40,684 (1983). The proposed regulations would continue to allow local transit systems to select how they would provide for the transportation needs of the handicapped. However, in contrast to the 1981 Interim Regulations, the 1983 proposed regulations would have established six service criteria that special transit systems were required to meet.
The next step in the rulemaking process proceeded from the case of Maine Association of Handicapped Persons v. Dole, 623 F. Supp. 920 (D.Me. 1985), in which the district court criticized the Secretary's "unimaginably leisurely pace" in promulgating the final regulations and entered an order directing that the regulations be issued. 623 F. Supp. at 926. On May 20, 1986, the Secretary published the regulations at issue here. See 51 Fed.Reg. 18,994 (1986). Subpart E of the regulations maintains a local option provision and establishes minimum service criteria for handicapped persons for the three different types of transportation services: accessible bus, paratransit, and a combination of the two. The minimum service criteria for each of the available options take into account: (1) nondiscriminatory eligibility; (2) maximum response time; (3) no restrictions or priorities based on trip purpose; (4) comparable fares to those for the general public; (5) comparable hours and days of service; and (6) comparable service area. See 49 C.F.R. § 27.95.
After setting forth the detailed service criteria, Subpart E sets forth the current safe harbor provision:
(a) Calculation. To determine its limit on required expenditures for a given fiscal year, the recipient shall calculate 3.0 percent of its total annual average operating costs (as reported to UMTA in compliance with requirements under section 15 of the Urban Mass Transportation Act, as amended) it reasonably expects to incur in the current fiscal year and did incur during the previous two fiscal years.
(b) Effect. A recipient is not required, in any fiscal year, to spend more than the amount of its limit on required expenditures that fiscal year in order to comply with this subpart, even if, as a result, the recipient cannot provide service to handicapped persons that fully meets the service criteria specified by § 27.95 (b), (c) or (d), as applicable. Each recipient shall, in all cases, comply with § 27.95 (b)(1) or (c)(3)(i), as applicable.
In its complaint for declaratory and injunctive relief, ADAPT requested the district court to vacate Subpart E of the Department of Transportation's 1986 regulations, alleging that Subpart E's local option provisions unlawfully permitted recipients of federal transportation systems to exclude handicapped persons from effective and meaningful access to federally-assisted transit systems. ADAPT further attacked the regulations on the ground that the provision excusing full compliance with federal disability rights statutes beyond expenditures of 3% of operating costs was invalid.
In its complaint, ADAPT contended that denial of accessibility resulted in confinement of its members to segregated specialized transportation facilities, increased the burden of obtaining employment, education and meeting other essential needs, restricted opportunities to take part in cultural, social and community activities, and abridged the opportunity to exercise guaranteed constitutional rights.
In addition to its contention that the regulations were promulgated in violation of the enumerated transportation statutes described above, ADAPT charged that the challenged regulations violated section 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706 (1982). ADAPT claimed that the rules were promulgated in bad faith, without sufficient factual basis, without adequate explanation, without sufficient consideration of reasonable alternatives, and hence, in an arbitrary and capricious manner.
On cross-motions for summary judgment, the district court held that DOT could reasonably conclude that Congress has not legislated mainstreaming the disabled into public transportation. The court thus upheld DOT's implementation of a local option policy and granted summary judgment on that issue in DOT's favor. See Americans Disabled for Accessible Public Transportation v. Dole, 676 F. Supp. 635, 640-41 (E.D.Pa. 1988) (Katz, J.).
The district court held, however, that the 3% safe harbor provision was an arbitrary and capricious exercise of delegated power. ADAPT, 676 F. Supp. at 642. The court recognized the agency's responsibility to consider costs in determining what efforts transit providers are to take to accommodate the handicapped. Nonetheless, it found the 3% figure unreasonable on the facts of the administrative record. The district court determined that although DOT may properly take costs into account, it "may not . . . abrogate entirely the rights granted by [the] statutes" by cost considerations. Id. at 641. The court concluded that there was no rational connection between the facts found and the choice made and that the decision to impose the 3% safe harbor provision ran contrary to the evidence before the agency. Therefore, on the challenge to the safe harbor provision, summary judgment was entered in ADAPT's favor. Declining to rewrite the regulations to delete the arbitrary portions, the court remanded the matter to DOT, directing it to formulate regulations resolving the conflicting goals of equality for the handicapped and cost efficiency.*fn5 As noted above, both sides appealed.*fn6
III. VALIDITY OF THE LOCAL OPTION PROVISION
A. Is Mainstreaming Required?
The threshold question is whether mainstreaming is required by the relevant federal statutes. None of the statutes at issue expressly require local transit authorities to provide mainstreaming for mobility-impaired individuals. While some portions of the legislative history support a mainstreaming requirement, there is also much evidence of congressional opposition to mainstreaming and a preference for local option. The Supreme Court has held that "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). Given the breadth of the Secretary's discretion to fashion appropriate minimum criteria for handicapped services, we must accord particular deference to the standards set forth in the challenged regulations. The Secretary struck a balance between preserving local discretion, avoiding the imposition of unduly burdensome costs, and ensuring adequate transportation services for the handicapped. If this balance represents a permissible reading of the statutes, the regulations must be upheld even if we would have struck a different balance in the absence of the regulations. See Chevron, 467 U.S. at 843 n. 11.
1. Section 504 of the Rehabilitation Act
In attempting to discern what is required by the language of section 504, we must view it in light of two countervailing legislative concerns: (1) effectuation of the statute's objectives of assisting the handicapped; and (2) the need to impose reasonable boundaries in accomplishing this purpose. See Alexander v. Choate, 469 U.S. 287, 299, 105 S. Ct. 712, 83 L. Ed. 2d 661 (1985). The Supreme Court first considered the balance between these considerations in Southeastern Community College v. Davis, 442 U.S. 397, 60 L. Ed. 2d 980, 99 S. Ct. 2361 (1979). In Davis, a deaf plaintiff, denied entry to a nursing school because she could not participate in the nursing program without full-time supervision, alleged that the school's admission decision violated section 504. On review, the Court determined that section 504 requires that an "otherwise qualified handicapped individual" must be provided with meaningful access to benefits that a federal fund grantee offers. The Court defined the phrase "otherwise qualified" as "one who is able to meet all of a program's requirements in spite of his handicap." 442 U.S. at 406.
The Court carefully circumscribed its mandate that otherwise qualified individuals may not be treated differently by holding that section 504 does not compel fundamental alteration to programs receiving federal assistance since such radical adjustments would constitute an "unauthorized extension of the obligations imposed by [§ 504]." Id. at 410. The Court then concluded that "neither the language, purpose, nor history of § 504 reveals an intent to impose an affirmative-action obligation on all recipients." Id. at 411.
The Court found that Southeastern's physical qualification requirement for its nursing program was legitimate and that to change it would alter the fundamental nature of the program. Since Davis could not meet this requirement, she was not otherwise qualified under section 504 and Southeastern's decision to exclude Davis was not discriminatory.
The Court clarified Davis in Alexander v. Choate, 469 U.S. 287, 83 L. Ed. 2d 661, 105 S. Ct. 712 (1985). Challenged in Choate was a state's proposal to impose a limitation on the number of annual in-patient hospital days for which state Medicaid would reimburse hospitals on behalf of Medicaid recipients. A class of disabled Medicaid recipients argued against the 14-day limitation, asserting that the proposal's implementation would have a disproportionately adverse impact on the disabled in violation of section 504. As in Davis, the Court held that the proposal did not preclude meaningful access to or exclude the handicapped from Medicaid services in a way that violated section 504. The Court amplified its Davis holding and stated that federally-funded programs were required to make reasonable modifications to accommodate the disabled. The Court interpreted section 504 as imposing two limitations on the duty to accommodate.
It clearly enunciated the first limitation that accommodations necessitating fundamental or substantial changes to the nature of the program were not mandated. The second, concerning the extent of expenditures required to effectuate the alteration, was not as fully delineated. As the Court explained, "[the] balance struck in Davis requires that an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers." Choate, 469 U.S. at 301; see Davis, 442 U.S. at 405-06. In both Choate and Davis, the Court recognized that where handicapped persons' needs can be accommodated without imposing undue financial or administrative burdens, the refusal to make necessary modifications might become unreasonable and discriminatory. See Choate, 469 U.S. at 301; Davis, 442 U.S. at 412-413. In both cases, however, the Court refused to mandate the modifications sought because they were "substantial." See Choate, 469 U.S. at 308-09; Davis, 442 U.S. at 413-14. Choate and Davis therefore contemplate a continuum in which some modest modifications may be necessary to avoid discrimination but other more substantial modifications are not required by section 504.
In its final rulemaking, DOT characterized Choate as an elaboration of the "undue burden" standard announced in Davis. See 51 Fed.Reg. 18,996 (1986). DOT noted that although Choate was decided after the expiration of the comment period on the proposed regulation, DOT would have entertained additional comments on the impact of Choate had it believed it necessary to do so. DOT, however, construed the holding in Choate as consistent with Davis to the extent that if accommodations entail extensive costs and administrative burdens, the refusal to undertake alterations to a program is not discriminatory. See id.
The district court disposed of the reasonable accommodation issue by stating that it had reviewed section 504 and concluded that Congress has not yet legislated mainstreaming for the disabled in public transportation. ADAPT, 676 F. Supp. at 639 ("Congress has not yet legislated equality for the handicapped regardless of cost"). The district court then upheld the validity of Subpart E's local option provision.
Neither Supreme Court precedent nor section 504 on its face addresses the extent to which federally-funded transportation programs are required to make physical modifications to accommodate disabled people. However, every federal court that has addressed the question whether mainstreaming in public transit is required has concluded that section 504 does not mandate mainstreaming. See, e.g., Rhode Island Handicapped Action Committee v. Rhode Island Public Transit Authority, 718 F.2d 490, 494-99 (1st Cir. 1983); American Public Transportation Association v. Lewis, 211 U.S. App. D.C. 42, 655 F.2d 1272, 1277-78 (D.C.Cir. 1981); Disabled in Action of Baltimore v. Bridwell, 593 F. Supp. 1241, 1250-52 (D.Md. 1984), appeal dismissed, 820 F.2d 1219 (4th Cir. 1987).
The difficulty in determining precisely the extent of accommodation mandated by section 504 is illustrated by the history of the regulations intended to implement section 504. As previously discussed, the regulations were subject to much revision prompted either by executive, legislative or judicial pressures.
In the absence of a clear congressional mandate, the Supreme Court's decision in Chevron, 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778, requires us to defer to an agency's interpretation of the relevant statute in its regulations. The regulations we consider today were enacted pursuant to a broad delegation of discretion under statutory standards that this Court has previously characterized as ambiguous at best. See Disabled in Action of Pennsylvania v. Sykes, 833 F.2d 1113, 1117 (3d Cir. 1987), cert. denied, 485 U.S. 989, 108 S. Ct. 1293, 99 L. Ed. 2d 503 (1988). Applying the Davis/Choate standard, we conclude that section 504 does not mandate mainstreaming.
2. The Urban Mass Transportation Act
Nothing in the plain language of section 16(a) of UMTA suggests that Congress has mandated mainstreaming. While portions of the pertinent legislative history support ADAPT's position,*fn7 a thorough reading of the statutory text and the legislative history suggests that Congress gave the Secretary broad discretion to address the transportation problems of the handicapped rather than requiring one particular solution, i.e., mainstreaming.
Section 16(a) expresses a clear intent to increase the accessibility of federally assisted mass transportation. It speaks, however, in broad and general terms that cannot fairly be construed as establishing particular standards or mandating a particular federal policy. Section 16(a) requires only that federally assisted programs make "special efforts" to ensure that the handicapped can effectively utilize transportation services. It requires that the handicapped be able to utilize mass transportation systems, but does not explicitly or implicitly mandate the means by which mass transportation must be made available to the handicapped. Under the common understanding of the phrase, it is surely possible to conclude that a community has made "special efforts" to ensure that the handicapped may use mass transportation facilities and services even if those efforts do not actually enable the handicapped to fully exploit each of those facilities and services. Because section 16(a) does not unequivocally require the Secretary to implement mainline accessibility, Congress apparently left the Secretary broad discretion to map out the contours of an appropriate federal policy.
Every federal court that has squarely addressed the contention that section 16(a) mandates mainstreaming has held that it does not. See, e.g., Rhode Island Handicapped Action Committee, 718 F.2d at 497, 499 (finding that section 16(a) provided no "legislative standards to guide a court in this area" and concluding that guidance on the appropriate implementation of the statute must come from the Secretary); Atlantis Community, Inc. v. Adams, 453 F. Supp. 825, 831 (D.Colo. 1978) ("In [UMTA and § 504], Congress said do something for the mobility handicapped and left it to the Secretary to determine what that something should be. . . . [The] federal statutes . . . do not provide a sufficient definition of the duties of the federal [transportation officials] to give direction to them."); Vanko v. Finley, 440 F. Supp. 656, 660 (N.D.Ohio 1977) (rejecting "plaintiff's contention that [section 16(a)] requires that 'all transit rolling stock and facilities [must be able to be] effectively utilized by all mobile disabled and elderly people'" and finding no "statutory infirmity in . . . the operation of a separate paratransport system parallel to the main bus and rapid systems"); see also American Public Transit Association v. Goldschmidt, 485 F. Supp. 811, 823 (D.D.C. 1980) (generality of congressional expression in UMTA and § 504 establishes broad delegation of authority; "law, the heterogenous character of the handicapped population, the breadth and variety of the states and communities affected, and the uncertain and changing technology available preclude a Congressional prescription of the particular means for carrying out its policy"), rev'd on other grounds sub nom. APTA v. Lewis, 211 U.S. App. D.C. 42, 655 F.2d 1272 (D.C.Cir. 1982).
In light of UMTA's broad language, which clearly does not define the ways in which UMTA was to be effected, we also conclude that section 16(a) of UMTA does not mandate mainstreaming, but rather grants wide latitude to the Secretary to determine how best local governments are to comply with the mandates of UMTA.
3. The Federal-Aid Highway Act
Although ADAPT raised the issue below, the district court reached its conclusion that Congress has not ordered mainstreaming of the disabled without commenting on section 105(b) of the Federal-Aid Highway Act. We hold what is implicit in the district court's silence, that the Federal-Aid Highway Act does not speak to whether mainstreaming is required.
Section 105(b) of the Federal-Aid Highway Act, amending section 165(b) of the Federal-Aid Highway Act of 1973, provided that DOT must require that "projects" funded pursuant to particular provisions of the Federal-Aid Highway Act be "planned, designed, constructed, and operated to allow effective utilization by . . . handicapped persons." 23 U.S.C. § 142 note. The "projects" included within the purview of section 165(b) include "construction" of "high occupancy vehicle lanes, highway traffic control devices, bus passenger loading areas and facilities . . . and fringe and transportation corridor parking facilities," the "purchase of buses," and the "construction, reconstruction, and improvement of fixed rail facilities including . . . rolling stock." 23 U.S.C. § 142(a) (incorporated by reference into 23 U.S.C. § 142 note). DOT acknowledges that this amendment expressed a clear intention of requiring increased accessibility to mass transit. DOT, however, argues persuasively that the amendment did not mandate mainstream accessibility.
With regard to this amendment, the Senate Report stated:
The bill contains a statement of national policy which is similar to that found in Section 16(a) of the Urban Mass Transportation Act of 1964, as amended, and which declares that elderly and handicapped persons have the same right to utilize mass transportation systems as other persons. This amendment goes further than the Urban Mass Transportation Act, however, permitting the Secretary to approve only those programs or projects which comply, to the maximum extent feasible, with the provisions of this subsection.
S.Rep. No. 1111, 93d Cong., 2d Sess. 8 (1974) (emphasis added). The amendment may have been intended to "go further than [UMTA]," id., in the sense that it added the enforcement mechanism of requiring DOT to withhold approval where certain new federally-funded facilities, buses and rolling stock were not made accessible, but it continued to emphasize that efforts of accommodation are to be limited by feasibility, and we understand feasibility to include financial, engineering and physical plant considerations.
By its terms, the Federal-Aid Highway Act does not speak to whether a system as a whole must be accessible. The text of the act, see supra at 25, directs the Secretary to require that projects, including buses, purchased with certain federal funds, be designed and operated to allow effective utilization by the handicapped. It thus arguably requires that certain funds appropriated for projects involving the areas that serve as ingress and egress to transportation be spent on accessible projects and that new buses and rolling stock be accessible. It does not speak to what is required of existing systems. Insofar as a system, whether it is fully accessible, paratransit-oriented, or a combination, gets funds for these new facilities or purchases new buses and rolling stock pursuant to the statutory provisions listed in section 165 of the Federal-Aid Highway Act, that Act may require those new additions to be accessible.*fn8 However, section 165 does not indicate whether existing systems may incorporate paratransit services or provide transportation to the handicapped solely through paratransit. Section 165 thus does not speak to the issue of mainstreaming, but only to new purchases. It therefore does not undermine the Secretary's interpretation of the transportation acts in Subpart E.*fn9 See infra Typescript at 31-36.
4. The Surface Transportation Assistance Act of 1982
Section 317(c) of STAA, 49 U.S.C.A.App. § 1612(d), was enacted to require a more active federal role in the development and enforcement of substantive standards for serving the handicapped in federally-assisted mass transit programs. The statute gives the Secretary extremely broad discretion to adopt appropriate standards for handicapped services. On its face section 317(c) requires only that the Secretary establish "minimum criteria" for serving the handicapped and does not specify any substantive standard mandating mainline accessibility or otherwise constraining the Secretary's discretion. See 49 U.S.C.A.App. § 1612(d).
The legislative history of STAA also demonstrates that Congress did not unambiguously mandate mainstreaming. While this history contains some statements supporting mainstreaming, it also contains contrary statements. Senator Cranston, a co-sponsor of the provision adding section 317(c), stated that "we are not imposing an enormously costly burden for transit systems or requiring an immediate return to the controversial, tough [mainline accessibility regulations] in place before July of 1981." 128 Cong. Rec. at 32,643.
Congress was apparently unlikely to approve any effort to compel accessible mainline transit. Senator Cranston stated, when he proposed § 317(c), that
[ultimately] and ideally, I believe that transit systems should be fully accessible to handicapped and elderly persons, including those who must use wheelchairs. However, I recognize that it is not now feasible to gain approval of legislation that would provide a full guarantee of eventual accessibility.
128 Cong.Rec. at 30,824. Indeed, the Secretary's 1979 regulations had set out precisely such a policy and were met with severe criticism in Congress. In 1980, both houses of Congress passed bills that would have compelled the Secretary to abandon the compulsory mainline accessibility policy of the 1979 regulations and required the Secretary to permit a "local option." See, e.g., S. 2720, 96th Cong., 2d Sess., § 118; 126 Cong.Rec. 32,197-98 (1980). In the course of considering this legislation, several members of Congress expressed a clear preference for local discretion and paratransit alternatives to mainline accessibility.
Senator Exon, for example, stated that "[the] adoption by the Congress of a local option exemption to section 504 would remedy what I consider the very unfortunate rules and regulations of the Department of Transportation regarding the issue of so-called accessible buses versus special transportation services for the handicapped." 126 Cong.Rec. 16,696 (1980). Similarly, Senator McClure noted that paratransit alternatives offered a feasible and, in some cases, more effective means of providing services than accessible bus service. 126 Cong.Rec. 16,698-16,700 (1980). While these "local option" bills were not enacted into permanent law, the terms of the Senate provisions were incorporated by reference into DOT's 1981 appropriations legislation, thereby barring the Secretary from using any funds to compel bus accessibility in fiscal year 1981. See Pub.L. No. 96-400, § 324, 94 Stat. 1699 (1980).
There is nothing in the legislative history that suggests that in enacting section 317(c) of STAA, Congress intended to reverse itself and to foreclose paratransit alternatives to bus accessibility. Indeed, Senator Riegle, a co-sponsor of the provision, suggested that the Secretary could adopt standards governing services that "are not in the form of accessible buses or other equipment serving the general public." 128 Cong.Rec. 32,642-43. Similarly, Senator Cranston noted that rather than alter federal policy on accessibility, the measure would "still retain the philosophy of granting broad discretion to local systems in the design and implementation of their programs." Id. at 32,644. We conclude that both the statutory language and the ...