The opinion of the court was delivered by: GREEN
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'
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.
Meanwhile, legislative consideration of railroad safety resumed and in 1976 Congress passed an amendment to the Federal Railroad Safety Act of 1970 which, among other things, required the Secretary of Transportation to issue, within 180 days of enactment,
such rules, regulations, orders and standards as may be necessary to require that
(2) the rear car of all passenger and commuter trains shall have one or more highly visible markers which are lighted during periods of darkness or whenever weather conditions restrict clear visibility; and
(3) the rear car of all freight trains shall have highly visible markers during periods of darkness or whenever weather conditions restrict clear visibility.
45 U.S.C. § 431(g).
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.
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 ...