Association of Am. Railroads v. Adams, Civ. A. No. 78-1184.
| Decision Date | 12 September 1978 |
| Docket Number | Civ. A. No. 78-1184. |
| Citation | 485 F. Supp. 1077 |
| Parties | ASSOCIATION OF AMERICAN RAILROADS, Plaintiff, v. Brock ADAMS, Secretary of Transportation, Defendant. |
| Court | U.S. District Court — District of Columbia |
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Lee A. Monroe, Thomas Phemister, Washington, D. C., for plaintiff.
William Briggs, Asst. U. S. Atty., Washington, D. C., for defendant.
This action was initiated upon a motion for a temporary restraining order filed by plaintiff Association of American Railroads (hereinafter referred to as "AAR") challenging both the substantive and procedural legality of certain rear end train-marking regulations promulgated by the Federal Railroad Administration (hereinafter referred to as "FRA"). Plaintiff's motion for a temporary restraining order was denied, after argument, by the Court. Shortly thereafter, AAR's motion for a preliminary injunction was also denied, the Court finding, among other things, that plaintiff had failed to demonstrate its likelihood of prevailing on the merits or to present a substantial case on the merits. See Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S.App. D.C. 220, 559 F.2d 841 (D.C.Cir.1977) and Virginia Petroleum Jobbers Association v. F.P.C., 104 U.S.App.D.C. 106, 259 F.2d 921 (D.C.Cir.1958).
The case is now before the Court on plaintiff's motion for summary judgment and intervenors'1 and defendants'2 joint cross-motion for summary judgment. Upon consideration of these motions, memoranda submitted in support thereof and the entire record, the Court finds that the defendants and intervenors are entitled to judgment as a matter of law.
The FRA regulations at issue were promulgated only after a lengthy administrative and legislative process which commenced with the enactment of the Federal Railroad Safety Act of 1970, 45 U.S.C. §§ 431-441. Section 431(a) of the Act grants the Secretary of Transportation broad authority to "prescribe, as necessary, appropriate rules, regulations, orders and standards for all areas of railroad safety." The Secretary of Transportation then delegated this comprehensive authority to the Administrator of the Federal Railroad Administration. See 49 C.F.R. § 1.49. In 1973 the FRA commenced rulemaking concerning rear end marking of passenger trains in which all parties to this litigation participated, both by submission of written comments and by oral presentation at the hearing. At this time the FRA was considering both active (lighted) and passive (reflective) markers and determined that additional field testing and data collection were required prior to the promulgation of final regulations. AAR opposed the rule proposed by the FRA in its entirety.
On September 20, 1974, the UTU petitioned the FRA to institute rulemaking requiring placement of highly visible, lighted markers on the rear end of freight trains. In February of 1975, the FRA gave public notice that it was considering rulemaking on the UTU petition and solicited public comments but, as in the 1973 rulemaking procedure, no further action was taken. Once again, the AAR opposed the institution of such rulemaking. Thus, despite the institution of two separate rulemaking proceedings, the FRA had failed to impose mandatory rear end marking devices on either passenger or freight trains.
45 U.S.C. § 431(g).3 In addition, the 1976 amendment included a limitation of the preemptive effect of the mandated regulations if the FRA decided to require passive devices for freight trains.
On November 17, 1976, the FRA published a notice of proposed rulemaking on the subject of rear end marking devices for passenger, commuter and freight trains, while incorporating the two earlier rulemaking procedures. In that notice the FRA recognized its discretion to treat passenger and freight trains differently while stating:
"The distinction in the language used in each of these subsections subsections (2) and (3) of 45 U.S.C. § 431(g) leads to the conclusion that Congress intended to allow for different means of marking the rear end of passenger and commuter trains on the one hand, and freight trains on the other." 41 Fed.Reg. 50702.
The proposal set forth in the public notice of rulemaking contemplated the use of passive marking devices for freight trains and noted its belief that existing reflective technology could meet the statutory standard set forth by 45 U.S.C. § 431(g). The AAR, however, opposed the tentative performance standard because it believed the standard to be too stringent. See comments of the AAR on Notice No. 1, FRA Docket No. RSRM-1 (December 17, 1976). With the exception of limited comments directed to the absence of an economic impact statement, AAR failed to exercise its right to comment on the subject matter of the FRA rulemaking.
At the public hearing of December 3, 1976, the AAR representative declined to participate though individual railroads presented oral testimony. The UTU representative argued for the use of lighted marking devices on all trains.
Written comments submitted to the FRA pointed out that the proposed performance standard, written in terms of straight track and clear weather conditions, would fail to assure safe railroad operation in those areas which include hills and curved track, thus falling short of the statutory mandate requiring that markers be highly visible "during periods of darkness or whenever weather conditions restrict clear visibility." These comments point to what is the crucial issue in this litigation — whether reflective materials can be considered "highly visible" under all conditions within the meaning of the statute.
After full ventilation of the issues and problems involving the proposed standard, the FRA revised its initial proposal and issued a final rule on January 6, 1977. The final rule set forth a performance standard which the FRA believed was responsive to the statutory mandate by providing a measure for those devices which could be considered "highly visible" during periods of reduced and restricted visibility. Though the FRA left the issue open, it noted that reflective substances then in existence would in all likelihood fail to meet the performance standard. See 42 Fed.Reg. 2324. This final rule was to be in effect December 31, 1977, thereby giving the railroads nearly one year to comply.
The AAR's initial petition for reconsideration was denied in April, 1977. Meanwhile, the FRA continued on its own to research and investigate marking devices having the potential to meet the performance standard. The FRA also observed and considered a AAR-3M Company demonstration of the qualities of retroflective materials. Finally, on December 8, 1977, the FRA amended the final rule by making procedures whereby railroads could submit marking devices for FRA approval and postponed the effective date of the regulations to July 1, 1978. See 42 Fed.Reg. 62007.
On February 8, 1978, the AAR again petitioned the FRA for reconsideration of its final rule. A carefully detailed denial was sent to AAR on June 1, 1978. AAR then filed this action several days prior to the July 1, 1978 effective date of the final rule, challenging on several grounds the validity of the FRA rear end marking regulations concerning freight trains. AAR's petition to have the enforcement of these rules temporarily and preliminarily enjoined was denied by this Court.
The federal defendants argue that the Court may uphold the action of the FRA as within the general rulemaking authority conferred by 45 U.S.C. § 431(a) or as being within the specific mandate of the 1976 amendment. The AAR, however, asserts that the validity of the FRA's action must be tested under Section 431(g). The Court agrees with the position taken by the AAR but does not base its conclusion upon the decisions cited by petitioner: SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943) and Doraiswamy v. Secretary of Labor, 180 U.S.App.D.C. 360, 368, 555 F.2d 832, 840 (D.C.Cir.1976). Both of these cases involved findings of fact, not interpretations of law. In fact, Chenery allows a reviewing tribunal to affirm a lower court or agency decision on grounds wholly different from those relied upon below. See Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 157, 82 L.Ed. 603 (1937). It does, however, clearly appear that Congress chose to preempt the general rulemaking authority of Section 431(g) and therefore the action of the FRA must be tested under the latter section. Section 431(a) does, however, remain relevant to the proper construction of Section 431(g).
When properly framed, the crucial issue of this litigation becomes relatively easy to resolve: "Did Congress, in enacting the 1976 amendments, intend to limit the FRA's pre-existing authority and thereby prohibit the FRA from requiring placement lighted marking of freight trains?" The Court concludes that Congress did not intend to do so.
As originally formulated, 45 U.S.C. § 431(a) has been described as a grant of plenary regulatory authority over all areas of railroad safety. See United...
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