(cont.) Previous Section
Legislative History
The Senate and House versions of the bill that became the ADA contained similar, but somewhat different, provisions concerning OTRBs. The Senate bill provided that it was discrimination to purchase or lease a new OTRB "that is not readily accessible to and usable by individuals with disabilities." (S. Rept. 101-116 at 73). This term meant "able to be entered into and exited from safely and effectively used by individuals with disabilities, including individuals who use wheelchairs." (Id.) The Senate Committee on Labor and Human Resources then provided more specific guidance on what constituted a vehicle that was readily accessible and usable by individuals with disabilities:
Lifts, ramps, and fold-up seats or other wheelchair spaces with appropriate securement devices are among the current features necessary to make transit vehicles readily accessible to and usable by individuals with disabilities. The requirement that a vehicle is to be readily accessible obviously entails that each vehicle is to have some spaces for individuals who use wheelchairs or three-wheeled mobility aids; how many spaces are to be made available for wheelchairs is, however, a determination that depends on various factors, including the number of vehicles in the fleet, seat vacancy rates, and usage by people with disabilities...[C]onsistent with these general factors, the determination of how many spaces must be available should be flexible and generally left up to the provider; provided that at least some spaces on each vehicle are accessible. (Id. at 73-74)
Senator Hatch, in a separate statement of additional views, criticized the provision of the Senate bill requiring new OTRBs to be "readily accessible to and usable by" individuals with disabilities as imposing a requirement to purchase lift-equipped buses, which he said would impose overly onerous costs on the private bus industry. He believed that no such requirement should be imposed by Congress until the results of the OTA study were available. (Id. at 102-105.)
The House Committee on Public Works and Transportation began its discussion of OTRB requirements by addressing the relationship between the general nondiscrimination requirements of §304 and the vehicle-specific requirements of the section:
The examples of discrimination contained in section 304(b) are intended to address situations that are not covered in the specific vehicle and system requirements ...The general rule contained in paragraph (a) and the examples of discrimination contained in paragraph (b) are not intended to override the specific requirements contained in the sections referenced in the previous sentence. For example, an individual with a disability could not make a successful claim under section 304(a) that he or she had been discriminated against in the full and equal enjoyment of public transportation services on the grounds that an over-the-road bus was not wheelchair lift-equipped, if a lift was not required under 304(b) or 306(a)(2). (H. Rept. 101-485, Pt. 1, at 39)
Commenting on the regulations to be issued by DOT, the Committee added:
Section 304(b)(4) requires over-the-road buses to comply with the regulations issued under section 306(a)(2) and makes it discrimination to purchase or lease an over-the-bus which does not meet those requirements. Two sets of regulations will be issued by the Department of Transportation under section 306(a)(2) which include vehicle specific requirements for over-the-road buses. (Id. at 40.)
The first of these two regulations is the interim rule which the Department has already issued as 49 CFR 37.169. "While these interim requirements are in effect," the Committee said, "it will not be considered discrimination for a private entity to purchase or lease an over-the-road bus which is not wheelchair lift-equipped or to which a boarding chair/ramp is not provided to board such bus." (Id. at 43.) With respect to the second regulation, the Committee said the following:
Section 306(a)(2)(B) requires the Secretary of Transportation to review the OTA study and issue final regulations not later than one year after the submission of the study to the Secretary. The regulations shall require, taking into account the purposes of the study under section 305 and any recommendations resulting from such study, each private entity which uses an over-the-road bus to provide transportation to individuals to provide accessibility to such bus to individuals with disabilities. The regulations will be effective 7 years after date of enactment for small providers, as defined by the Secretary, and 6 years after date of enactment for other providers. The Secretary may define small providers using current ICC class definitions. The extra year for compliance for these providers acknowledges the increased burden that implementation of some accessibility requirements could have on operators with relatively small fleets. Section 306(a)(2)(C) states that no regulations may require the installation of accessible restrooms in over-the-road buses if such installation would result in a loss of seating capacity. The term "seating capacity" has the same meaning discussed under section 305--a reduction in the number of seats in which passengers can ride comfortably. (Id. )
Statements of additional views by Congressman Hammerschmidt and several colleagues, and Congressman Schuster and several colleagues, praised the House version of the OTRB language as representing a constructive compromise acceptable to all interested parties, including the disability community and the OTRB industry. (Id. at 60, 64-65.)
The Conference Committee report described the construction of the final version of these provisions the bill as follows:
The Senate bill specifies that over-the-road buses must be readily accessible and usable by individuals with disabilities within 7 years for small providers and 6 years for other providers...The House amendment deletes the specific obligation to make each bus "readily accessible to and usable by" individuals with disabilities at the end of the 6 or 7 year period...Instead, the House amendment specifies that the purchase of new over-the-road buses must be made in accordance with regulations issued by the Secretary of Transportation....The Senate recedes. (H. Rept. 101-596 at 79.)
The Congressional reports also discussed the purposes of the OTA study. The House Committee made the following statements:
Section 305(a) directs the Office of Technology Assessment (OTA) to conduct a study to determine (1) the access needs of individuals with disabilities to over-the-road bus service; and (2) the most-cost effective methods for providing access to over-the-road buses and over-the-road bus service to individuals with disabilities through all forms of boarding options. During its hearings on the legislation, the Committee heard conflicting testimony on the cost and reliability of wheelchair lifts or other boarding assistance devices with regard to their use on over-the-road buses. Therefore, before mandating these or any other boarding options in this Act, a thorough study of the access needs of individuals with disabilities to these buses and the cost-effectiveness of different methods of providing such access is required by the Act. Section 305(b) specifies which issues must be analyzed by the study, but is not intended to be all-inclusive. The analysis required by the legislation includes a review of accessibility issues relating to vehicle-specific aspects of over-the-road buses, as well as to system-wide aspects of over-the-road bus service. Both aspects of over-the-road bus accessibility are included so that neither is favored over the other in the organization of the study. (H. Rept. 101-485, Pt. q, at 40-41.)
With respect to different boarding assistance options, the Committee directed OTA to examine
the effectiveness of various methods of providing accessibility to such buses and service to individuals with disabilities. All types of methods (including the use of boarding chairs, ramps, wheelchair lifts, and other boarding assistance devices) which may, or may not, involve the physical lifting of a boarding assistance device should be analyzed in terms of their effectiveness. (Id. at 41.)
Consistent with the Senate bill's provision requiring OTRBs to be "readily accessible to and usable by" individuals with disabilities, the Senate Committee's comments on the purposes of the study had a different emphasis than those of the House Committee:
Section 305 of the legislation directs the Architectural and Transportation Barriers Compliance Board to undertake a study to determine the access needs of individuals with disabilities to over-the road buses readily accessible to and usable by individuals with disabilities. In determining the most cost-effective methods for making over-the-road buses readily accessible to and usable by persons with disabilities, particularly individuals who use wheelchairs, the legislation specifies that the study should analyze the cost of providing accessibility, recent technological and cost saving developments in equipment and devices, and possible design changes. Thus, the Committee is interested in having the study include a review a current technology such as lifts that enable persons with mobility impairments, particularly those individuals who use wheelchairs, to get on and off buses without being carried; alternative designs to the current lifts; as well as alternative technologies and modifications to the design of buses that may be developed that will also enable such individuals to get on and off over-the-road buses without being carried. (S. Rept. 101-116 at 74.)
In the Conference Committee, as noted above, the Senate receded, and the House provision became part of the final bill. The Conference Committee report said that
the purpose of the study is revised to include a determination of the access needs of individuals with disabilities, particularly individuals who use wheelchairs, through all forms of boarding options. The study must analyze, among other things, the effectiveness of various methods of providing access to such buses and service to individuals with disabilities. (H. Rept. 101-596 at 79.)
OTA Legal Analysis
In the study mandated by §305 of the ADA, the OTA set forth a view of the OTRB requirements of the statute that leaves the Department relatively little regulatory discretion. OTA states that "[s]ection 304(b)(4)(A) clarifies that the exclusion of OTRBs from 304(b)(3) is with respect to the compliance date and specific standards, not from the requirement for accessibility." (OTA study at 6.) Unlike situations in which the concept of "undue burden" applies, OTA asserts, "transportation services must meet accessibility standards regardless of cost considerations." (Id.) Moreover, "OTA could find no language in the ADA stating or implying that OTRBs can be held to a lesser standard than other modes of transportation, nor does the ADA give guidance on promulgating such a lesser standard." (Id.) The §305 requirement for the OTA study is not "an exemption or retreat from the policies and goals of the ADA," and §306 requires that "DOT's regulations must apply specified previous sections of the ADA to OTRBs and must require OTRB operators to provide accessible service." (Id. at 6-7.)
OTA defines an "accessible OTRB" as one having a level change mechanism (on-board or station-based) that allows individuals to remain in their wheelchairs, a sufficiently wide door to accommodate persons with mobility impairments, two wheelchair securement locations, a means to communicate with persons with sensory or cognitive disabilities, and provisions for the use of accessible restroom facilities. (Id. at 25.) OTA asserts that
[f]or fixed-route transportation systems, the ADA requires private operators to install accessibility technologies when purchasing or leasing a vehicle. Eventually, all scheduled fixed-route service will use accessible vehicles. In the case of privately operated OTRBs, there is some debate about whether DOT has the latitude to promulgate regulations under a different, perhaps lesser, standard of accessibility. However, the OTA expects that the same standard of accessibility will be applied to all private operators of public transportation within the jurisdiction of the ADA...Therefore, OTA anticipates that ADA's standard of accessible service for fixed-route private operators of other public transportation systems extends to fixed route service using OTRBs. In other words, to meet the requirements of the ADA, all OTRBs leased or purchased for use in fixed route service must be accessible.
Charter and tour services meet the definition of demand-responsive systems. For demand-responsive transportation systems (other than those using OTRBs or automobiles), the ADA has required each private operator ...,[w]hen purchasing a new vehicle,...to purchase an accessible vehicle, unless the operator can show that the system, when viewed in its entirety, provides the same level of service to individuals with disabilities as to those without. As with fixed-route service, OTA anticipates that the ADA's standard of accessibility for private operators of other demand-responsive transportation systems applies to demand-responsive services using OTRBs...In other words, to meet the requirements of the ADA, private operators of demand-responsive OTRB service must eventually have access to enough accessible OTRBs to meet the demand. (Id. at 25-26, emphasis in original.)
OTA also takes the view that
the ADA does not allow operators to provide accessible service through the use of alternative vehicles or through reservations systems used solely for persons with disabilities. For example, a tour operator could not provide accessible service with an accessible van that transports passengers with disabilities while the rest of the tour patrons ride in an OTRB. (Id. at 26.)
Views of Commenters to the DOT ANPRM
Bus industry commenters argued that DOT has considerable flexibility in fashioning OTRB requirements. For example, Greyhound argued that the ADA tells DOT to consider "all forms of boarding options" and the "access needs of individuals," rather than binding DOT to a requirement for all new accessible buses. It also asserted that the portions of §305 that direct OTA to study the economic consequences of accessibility requirements, the anticipated demand for accessible service, and the cost-effectiveness of means of providing accessibility imply that DOT could rely on such factors to devise a requirement other than requiring all new buses to have lifts. Greyhound also pointed to the distinction between the §306 requirement of "accessibility to such bus" and what it regards as the more stringent requirement, elsewhere in the ADA, for making facilities or services "readily accessible to and usable by" individuals with disabilities. The American Bus Association expressed similar views.
Disability community commenters took the opposite position. For example, the Paralyzed Veterans of America/Consortium of Citizens with Disabilities (PVA/CCD) comments said that the "accessibility to such bus" term in §306 demonstrated that "Congress plainly indicated its preference for judging accessibility by a vehicle standard rather than a service equivalency standard." The Department's OTRB regulations should be consistent with those for other "private primarily engaged" operators except where the OTRB statutory language differs. Moreover, OTA's findings and conclusions should be "presumptively determinative" of the Department's regulatory decisions. PVA/CCD also assert that OTRB requirements are properly viewed as applying to used as well as new OTRBs. The Disability Rights Education and Defense Fund (DREDF) made similar arguments, stating that Congress mandated that "each individual OTRB should be accessible," rather than allowing a generalized service standard. In addition, DREDF supported, with respect to service in the interim before all buses are accessible, having a boarding chair on each bus and opposed any advance notice requirements.
Analysis
The Department takes the position that it has substantial legal discretion to devise regulations to implement the OTRB requirements of the ADA. DOT could require that OTRB operators meet standards like those applied to other "private, primarily engaged" transportation providers by §304(b)(3), but the Department is not required to do so. The Department may consider both vehicle-based and service-based approaches to OTRB accessibility, and may consider other factors such as cost. However, the Department is also not mandated by the statute or its legislative history to choose the least costly, or arguably most cost-effective, approach to OTRB access.
1. Separate statutory requirements
The first reason for this conclusion is that Congress explicitly separated the requirements for most "private primarily engaged" transportation providers, set forth in §304(b)(3), from those for OTRB operators, set forth in §304(b)(4). The former requirement tells fixed route operators to purchase or lease accessible new (but not used) vehicles and tells demand responsive operators to purchase or lease accessible new (but not used) vehicles or ensure that they can provide equivalent service to individuals with disabilities. The latter requirement is simply that the purchase or lease of OTRBs (with no distinction stated between new and used buses) must comply with the regulations issued by DOT under §306(a)(2).
Had Congress wished to mandate that OTRB requirements be identical with those applying to other "private primarily engaged" transportation providers, Congress could simply have included OTRBs under the requirements of §304(b)(3), perhaps with an effective date delayed until 1996/97. Instead, Congress specifically said that §304(b)(3) requirements apply to vehicles "other than...an over-the-road bus" and assigned to the Department responsibility for devising OTRB requirements.
2. Different accessibility language
The second reason is that Congress intentionally chose different language to express the accessibility requirements for OTRB operators and other "private primarily engaged" providers, respectively. As noted above, §306(a)(2) provides that the Department's regulations must require "each private entity which uses an over-the-road bus to provide accessibility to such bus to individuals with disabilities, including individuals who use wheelchairs." Disability group comments asserted that the "accessibility to such bus" language should be understood to require that each OTRB must be an accessible bus (e.g., have the accessibility features identified by OTA).
While this language does lend some support to the idea that Congress intended buses to be accessible, it differs from language Congress used elsewhere in the ADA (e.g., §304(b)(3)), where Congress required that a vehicle be "readily accessible to and usable by" individuals with disabilities. This latter phrase clearly refers to a vehicle that has accessibility features of the kind cited by OTA or required by 49 CFR Part 38. By using a different term, "accessibility to such bus," Congress at least left open the possibility of accessibility being provided by other means.
3. Intent of OTA study
The third reason for the Department's conclusion concerning its discretion flows from an analysis of the ADA's language and legislative history concerning the OTA report. Section 306(a)(2)(B)(ii) tells the Department to consider not only the recommendations of the OTA study but also its "purposes." The House legislative history said that one important purpose, to be achieved before mandating any particular boarding options, was to study "the access needs of individuals with disabilities to these buses and the cost-effectiveness of different methods of providing such access." (H. Rept. 101-485, Pt. 1, at 40-41). Specifically, the study was to review both "vehicle-specific aspects of over-the-road buses...[and] system-wide aspects of over-the-road bus service. Both aspects...are included so that neither is favored over the other in the organization of the study." (Id.) All types of methods (including boarding chairs, lifts, ramps, and others) were to be considered. While the Senate legislative history had a stronger (though not exclusive) focus on the use of lift technology, the Conference Committee language states that all forms of boarding options and access to buses and bus service were to be analyzed by the study.
Since Congress intended OTA to study and make recommendations concerning these matters, it is fair to infer that DOT, mandated to take the purposes and recommendations of the study into account, is entitled to consider the same factors and options in its rulemaking. The same point applies with respect to other matters that Congress told OTA to study, such as the demand for accessible OTRB service, the cost of providing accessible OTRBs and OTRB service, and the impact of accessibility requirements on the continuation of OTRB service, particularly in rural areas. Nothing in the statute or the legislative history requires that any of these factors be emphasized to the exclusion of others.