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February 7, 1980

NEIL GOLDSCHMIDT, et al., Defendants.

The opinion of the court was delivered by: OBERDORFER




 Accessibility for each mode of public transportation must be achieved within three years, except that "extraordinarily expensive" structural changes to or replacements of existing vehicles or facilities may be accomplished over longer periods, in some cases as much as 30 years. *fn2" Some particularly costly structural changes can be waived on application to the Secretary. 49 C.F.R. § 27.99 (1979). Under the regulations, the only major actions that transit authorities must take immediately are to acquire accessible buses and subway cars, if they decide to acquire any new vehicles at all, and to initiate compliance planning. Compliance plans are due 12 to 18 months after the effective date of the regulations.

 Federal assistance for mass transit is currently provided under three major programs: the discretionary capital grant program under section three of the Urban Mass Transportation Act ("UMTA"), 49 U.S.C. § 1602 (1976), the formula grant program under section 5 of UMTA, 49 U.S.C. § 1604 (1976), and the interstate substitution program under the Federal Aid Highway Act, 23 U.S.C. § 103(e)(4) (1976). Over three billion dollars per year in authorized federal grants for mass transit under these programs are presently conditioned upon compliance with the DOT regulations. Estimates of the cost of compliance vary from three to seven billion dollars. *fn3" The federal government would ultimately bear some of these additional costs through increased grants under the Urban Mass Transportation and Federal Aid Highway programs; local transit authorities would bear the remainder. *fn4" DOT estimates that the costs that would ultimately be borne by local authorities would be about $ 460 million over 30 years; plaintiffs place the figure at over.$ 4.5 billion for the same period.

 The relevant regulations invoke as authority section 504 of the Rehabilitation Act of 1973, as amended *fn5" ("section 504"), section 16 of the Urban Mass Transportation Act of 1964, as amended *fn6" ("section 16"), and section 165 of the Federal-Aid Highway Act of 1973, as amended *fn7" ("section 165"). Section 504 provides in part that

No otherwise qualified handicapped individual in the United States . . . shall, solely by reason of 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. . . .

 Section 16 provides

It is hereby declared to be the 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 of mass transportation which they can effectively utilize will be assured; and that all Federal programs offering assistance in the field of mass transportation . . . should contain provisions implementing this policy.

 Section 165 provides

that projects (funded under the Federal-Aid Highway Act) shall be planned, designed, constructed and operated to allow effective utilization by elderly or handicapped persons who . . . 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.

 In April, 1976, President Ford issued Executive Order 11914, charging the Secretary of HEW with the responsibility to "coordinate the implementation of Section 504 . . . by all Federal departments and agencies . . ." and to "establish standards for determining what are discriminatory practices within the meaning of 504." The Executive Order also directed each agency administering programs providing federal financial assistance to issue its own regulations, consistent with the standards established by the Secretary of HEW. In response to this Presidential directive, HEW promulgated guidelines setting standards for other federal agencies to follow in developing their section 504 regulations. 43 Fed.Reg. 2132 (January 13, 1978), codified at 45 C.F.R. §§ 85.1-85.99 (1978) ("the HEW guidelines").

 The HEW guidelines provided generally with respect to program accessibility that

No qualified handicapped person shall, because a recipient's facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity that receives or benefits from federal financial assistance.

 45 C.F.R. § 85.56 (1979). More important, however, the guidelines provided with respect to making available to handicapped persons the same things that are available generally that

A recipient . . . may not . . . provide different or separate aid, benefits, or services to handicapped persons than is (sic) provided to others unless such action is necessary to provide handicapped persons with aid, benefits, or services that are as effective as those provided to others.

 45 C.F.R. § 85.51(b)(1)(iv) (1979). In addition, the guidelines provided that

A recipient shall operate each program or activity so that . . . when viewed in its entirety, (it) is readily accessible to and usable by handicapped persons. This paragraph does not necessarily require a recipient to make each of its existing facilities or every part of its existing facilities accessible to and usable by handicapped persons.

 45 C.F.R. § 85.57(a) (1979).

 Finally, the HEW guidelines provided that structural changes, determined pursuant to the foregoing to be necessary, should be made within three years

Provided, that, if the program is a particular mode of transportation (e.g., a subway system) that can be made accessible only through extraordinarily expensive structural changes to, or replacement of, existing facilities and if other accessible modes of transportation are available, the federal agency responsible for enforcing section 504 with respect to that program may extend this period of time . . . for a reasonable and definite period . . . .

 45 C.F.R. § 85.57(b) (1978).

 On June 8, 1978, the Department of Transportation published a "Notice of Proposed Rulemaking" in the Federal Register, announcing its intention to adopt regulations establishing conditions for federal grants for mass transit systems which would require states and localities to take steps to guarantee non-discriminatory provision of mass transit services to the handicapped. The notice of proposed rulemaking published specific proposals and provided for a 90-day period during which comments from the public on those proposals or any alternatives would be accepted. *fn8" In addition, public hearings were held in five cities: New York, Chicago, Denver, San Francisco/Oakland, and Washington, D.C. Six hundred fifty persons and groups submitted written comments in the rulemaking docket; 220 persons and groups made presentations at the hearings.

 The final DOT regulations at issue here were adopted on May 31, 1979. The final rule reflects extensive consideration of program accessibility, particularly with respect to bus service. 44 Fed.Reg. 31455-6 (May 31, 1979). The background statement about the final regulations reported 180 comments about whether buses using fixed routes should be made accessible to the handicapped by facilities, lifts and other devices specifically designed and retrofitted (so-called mainline bus service), or whether the Secretary could or should provide transportation for the handicapped by subsidizing "paratransit" or "special service" in the form essentially of door-to-door service by small, specially-rented buses, limousines and taxis. The Secretary considered this issue and decided in 1977 and reaffirmed in the present rule that regularly scheduled buses should be accessible to the handicapped. 44 Fed.Reg. 31456 (May 31, 1979).

 The background of the rule reflects consideration of the relative costs and benefits of mainstreaming and special services, *fn9" as well as the technological problems involved. *fn10" One paragraph considered, without detail, whether the use of lifts for wheelchairs would greatly slow bus service. Another paragraph considered whether lifts would pose safety hazards and, finally, whether the lift technology had advanced to the point that lifts would be reliable. In addition, there was reference to the Secretary's earlier (and since abandoned) decision to require grantees to procure the so-called Transbus. *fn11" The Secretary resolved all these issues in favor of the mainline, as distinguished from special service, solution. The final regulations, in the view of DOT, made the accessibility requirement independent of the Transbus mandate, so that if the Transbus did not materialize (as has since proved to be the case), accessibility would be achieved by lifts, for example, until other technology produced a Transbus or other solution.

 The DOT regulations contain a special waiver provision for existing subway, commuter rail, and streetcar systems. Section 27.99 provides that recipients that operate such systems may "petition the Secretary for a waiver of any of (their) obligations under § 27.87 or § 27.89 with respect to accessibility for handicapped persons." 44 Fed.Reg. 31480 (May 31, 1979). The waiver privilege is limited, however, by a provision that waiver requests may only be submitted after all transition plans have been completed (about 12 to 18 months after the effective date of the regulations) and after the metropolitan planning organization and handicapped persons and groups representing handicapped persons have, "through a consultative process, . . . developed arrangements for alternative service substantially as good or better than that which would have been provided absent a waiver." Id. The Secretary "may grant such a petition in his or her discretion, provided that the Secretary determines that local alternative service to handicapped persons will be substantially as good as or better than that which would have been provided by the waived requirement." Id. The section-by-section analysis accompanying the regulations significantly elucidates DOT's position with respect to the waiver provision:

The stringent requirements of this section ensure that only meritorious requests for waiver will be granted. It should be noted that the section requires that alternative services "will be" as good as or better than those which would have been provided by the waiver (sic) requirement. Recipients do not have to show that the alternative services, at the time the petition is submitted, are equivalent to the services that would have been provided when program accessibility for the rail system in question had been achieved. Rather, the recipient must demonstrate to the Secretary's satisfaction that within the period established for program accessibility, or a shorter time established by the Secretary in his or her reasonable discretion, the appropriate level of service will be established. The required alternative service may be provided by any mode or combination of modes, including accessible mainline buses and special service paratransit.

 44 Fed.Reg. 31464 (May 31, 1979) (emphasis supplied).

 The waiver provision contained in section 27.99 does not apply to bus systems. There is, however, a general provision applicable to all DOT regulations authorizing DOT to exempt a person, in certain circumstances, from the requirements of one or more regulations. 49 C.F.R. § 5.11 (1978) reads in part

(a) Any person may petition the Secretary . . . for a permanent or temporary exemption from any rule.
(b) Each petition filed under this section must . . .
(4) Contain any information and arguments available to the petitioner to support the action sought; and
(5) In the case of a petition for exemption, unless good cause is shown in that petition, be submitted at least 60 days before the proposed effective date of the exemption.

 In the proceedings on plaintiffs' motion for preliminary injunction, defendants represented that this provision permitted administrative consideration of applications for relief from conditions required by the regulations. In the course of denying plaintiffs' motion for a preliminary injunction, the Court announced its intention to entertain motions by individuals claiming irreparable injury as a result of defendants' denial of exemptions pursuant to the foregoing. Several applications have been filed under this provision; as of January 18, 1980, DOT had not decided any of them.


 In November, 1978, after the publication of DOT's Notice of Proposed Rulemaking but before the adoption of the final rule, section 504 was amended to require that all proposed regulations adopted by agencies pursuant to section 504 be submitted to "appropriate authorizing committees of Congress" at least 30 days prior to their effective date. Pub.L. 95-602, §§ 119, 122(d) (2), 92 Stat. 2982, 2987.

 Congress also provided in 1978, in section 321 of the Surface Transportation Assistance Act of 1978, that DOT provide funds to transit operators, such as plaintiffs here, to develop "detailed estimates" of the cost of retrofitting their subway, streetcar and commuter rail systems to make them "accessible to and usable by handicapped persons". The statute requires the Secretary to compile and report to Congress by January 30, 1980 "the results" of those studies "together with his recommendation for such legislation as may be necessary to finance the improvements set forth in the cost estimates . . . ." Pub.L. 95-599, § 321, 49 U.S.C. § 1612 nt (Supp.1978). *fn12" Although the reports were due under the statute on January 30, 1980, DOT notified Congress that they would be completed and forwarded in August, 1980.

 In late 1979, about one-half year after the adoption of the final DOT regulations, Congress passed the Department of Transportation and Related Agencies Appropriations Act of 1980, Pub.L. 96-131, 93 Stat. 1023, providing appropriations for DOT programs for fiscal year 1980. Under that Act, $ 1,380,000 was appropriated for the discretionary capital grant program under section 3 of the Urban Mass Transportation Act, see 93 Stat. 1027, 1032; $ 1,405,000 for the formula grant program under section 5 of UMTA; *fn13" and $ 700,000 under the interstate substitution program of the Federal Aid Highway Act, see 93 Stat. 1033. The appropriations act specifically provides that "none of these funds shall be available to retrofit any existing fixed rail transit system to comply with the regulations issued pursuant to section 504 of the Rehabilitation Act of 1973." See 93 Stat. 1027, 1032. This restriction applies only to fiscal year 1980; as noted, the time allowed under the DOT regulations for achieving accessibility for fixed rail systems is between 10 and 30 years in most cases.

 The House Report accompanying the 1979 appropriation act expressed the Committee's concern that "the regulations (at issue here) might require the expenditure of vast sums with only minimal benefits to handicapped persons." H.R.Rep.No.272, 96th Cong., 1st Sess. 48 (1979) (Committee on Appropriations). The Committee noted that section 321 of the Surface Mass Transportation Act requires "a study of this issue," and stated that pending completion of the study, it would recommend "language . . . prohibit(ing) the use of (federal) funds to retrofit any existing rail transit system." That was the language adopted by Congress.

 Similarly, with respect to buses, the Committee Report called on DOT to "evaluate the costs and benefits associated with equipping all regular bus routes with lifts . . . and ensure that any lifts which are currently being purchased with UMTA assistance are reliable, maintainable and operable." Id.

 In November, 1979, while this case was under submission here, the Congressional Budget Office published a report at the request of the Senate Budget Committee and the Transportation Subcommittee of the House Public Works and Transportation Committee entitled "Urban Transportation for Handicapped Persons: Alternative Federal Approaches." See Plaintiffs' Exhibit W. Referring to the regulations, the report states as a fact that:

The Congress is currently considering whether to fund these changes through reductions in other transit programs or through new appropriations or whether to enact new legislation requiring DOT or HEW to modify their rules.

 See id. at xi. According to the report, there are three alternatives: the plan contemplated by the DOT regulations (the transit plan); a plan to furnish door-to-door services to persons who have difficulty in walking to transit stops, waiting in bad weather, balancing on moving buses, and moving through crowds; and a plan supplementing this latter plan with capital grants to paraplegics and quadriplegics to cover the purchase price of specially-adapted private cars or vans.

 The report puts squarely to Congress the necessity of addressing "the economic and budgetary implications of the DOT regulations." The report asserts that

In examining its options, the Congress will wish to promote the most beneficial transport services for handicapped persons in light of national social and economic objectives.

 Thus, by virtue of the provisions of Section 504, requiring delivery of proposed regulations to Congress, Congress' responsibility for funding grants for transportation (including transportation for the handicapped), as recently evidenced in the DOT appropriations act, Pub.L. 96-131, and the Congressional Budget Office Report, the policy, budget and technological ...

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