The opinion of the court was delivered by: RICHEY
This case is before the Court on cross-motions for summary judgment on Counts IV and V of the second amended complaint. In addition, plaintiffs have moved for both a dissolution of the stay of judicial review of the "Certification Acceptance" regulations published at 43 Fed.Reg. 46966 (1978) (to be codified at 23 C.F.R. § 640.109) and an order further specifying defendants' responsibilities under § 116 of the Federal-Aid Highway Act of 1973, 23 U.S.C. § 117 (1976). The defendants are the Secretary of Transportation and the Administrator of the Federal Highway Administration ("FHWA" or "the Agency"). Both plaintiffs are users of the highway systems affected by the defendants' actions.
In view of the adequacy under 23 U.S.C. § 117(a) of the regulations recently promulgated by the FHWA
which in essence precludes the existence of controverted material facts in Counts IV and V of the second amended complaint the Court finds it appropriate to enter summary judgment in favor of the defendants on both counts. In doing so, the Court also dissolves its stay of judicial review of the defendant Agency's regulations.
Before analyzing the issues raised in the instant motions, a brief review of the lengthy history of this case is necessary.
Plaintiffs commenced this action almost five years ago. In their original complaint, they sought injunctive and declaratory relief to prevent the Secretary of Transportation and the FHWA from implementing § 116 of the Federal-Aid Highway Act of 1973, 87 Stat. 301 (currently at 23 U.S.C. § 117 (1976), As amended by The Federal-Aid Highway Act of 1976, § 116, 90 Stat. 436
The Federal-Aid Highway Act, 23 U.S.C. §§ 101-156 (1976), establishes a cooperative federal-state program for the development of safe, efficient and economical roads. Under the Act, states which obtain federal funds are subject to close federal supervision to insure that the highways built meet safety standards acceptable to the United States Government. Section 117 of title 23, United States Code, provides an alternative procedure through which the Secretary of Transportation can discharge his safety-related responsibilities. In lieu of the detailed review of each state highway project, under this statute the Secretary can accept "Certification" from a state if he finds that the state's projects "will be carried out in accordance with State laws . . . and standards which will accomplish the policies and objectives contained in or issued pursuant to this title." 23 U.S.C. § 117(a) (1976
). This alternative procedure is known as "Certification Acceptance" (hereinafter, "CA").
Plaintiffs' original complaint challenged, on procedural and substantive grounds, the FHWA's CA regulations which were enacted pursuant to 23 U.S.C. § 117(c) (1976
) and published in the Federal Register on May 15, 1974. 39 Fed.Reg. 17310 (to have been codified at 23 C.F.R. § 640.7). It also challenged, as contrary to the mandate of § 116 of the Federal-Aid Highway Act of 1973, 87 Stat. 301 (currently at 23 U.S.C. § 117 (1976) (amended 1976)), the Agency's approval of the CA plan for Georgia, the first state to receive acceptance of Certification. This Court, in its memorandum opinion of April 28, 1976, ruled that: (1) the plaintiffs have standing to maintain this action; (2) the promulgation of the CA regulations as well as the approval of a state's Certification (in this case, Georgia) both constitute "a matter relating to . . . grants" under 5 U.S.C. § 553(a)(2) (1976), and are therefore exempt from the rulemaking requirements of 5 U.S.C. § 553 (1976); (3) the American Association of State Highway and Transportation Officials ("AASHTO"), which the plaintiffs asserted had consulted with the defendants in the course of the development of the CA regulations, is an "advisory committee" within the meaning of the Federal Advisory Committee Act, 5 U.S.C. App. I § 3(2) (1976); and (4) the plaintiffs were entitled to judicial review under 5 U.S.C. § 702 (1976) of the defendants' decision to approve the Georgia CA plan.
Center for Auto Safety v. Tiemann, 414 F. Supp. 215 (D.D.C.1976), Aff'd in part sub nom. Center for Auto Safety v. Cox, 188 U.S.App.D.C. 426, 580 F.2d 689 (1978) (affirmed as to the status of AASHTO).
Almost a year later, the Court issued a second memorandum opinion as part of its judicial review of the defendants' decision to accept Georgia's Certification. Center for Auto Safety v. Tiemann, 428 F. Supp. 118 (D.D.C.1977). This opinion ruled that under 23 U.S.C. § 117(a), the defendants are required to make a finding that the applicant state not only has laws and safety standards equivalent to federal standards, but also has the Capability to ensure that those standards will be enforced. 428 F. Supp. at 119-20. This second test is called a "capability" finding. The Court also held that the defendant Agency's finding regarding Georgia's enforcement capability was not sufficiently articulated to afford a proper basis for judicial review; accordingly, the Court remanded the case to the Agency for clarification. Id. at 120-21. Finally, because the defendants were in the process of altering the CA regulations at issue, the Court refrained from acting on the plaintiffs' challenge to the then-current regulations. Id. at 121-22. Thus, in its order of February 28, 1977, the Court stayed judicial review of the CA regulations.
On October 12, 1978, the FHWA issued final CA regulations at 43 Fed.Reg. 46963 (to be codified at 23 C.F.R. pt. 640). Shortly thereafter, plaintiffs filed their second amended complaint challenging these regulations on substantive grounds. The plaintiffs also renewed their challenge to the defendant's
approval of Georgia's application for certification. II. SUMMARY JUDGMENT IS APPROPRIATE AS TO COUNT V BECAUSE THE FINAL REGULATIONS COMPLY WITH THE MANDATE OF 23 U.S.C. § 117
In Count V of their second amended complaint, plaintiffs assert that the final regulations published at 43 Fed.Reg. 46963 (to be codified at 23 C.F.R. pt. 640) "fail to establish reasoned methods by which State Certifications can be evaluated to make the required capability finding . . ."
Second Amended Complaint P 73 (filed November 27, 1978). Accordingly, plaintiffs conclude, these regulations violate 23 U.S.C. § 117. Defendants submit that their interpretation of section 117, as reflected in the latest regulations, is not only reasonable, but also complies with previous orders issued by the Court. Because the issues raised in Count V are purely legal whether the Agency's final regulations are a valid exercise of statutory authority the Court finds that summary judgment is appropriate. Furthermore, now that final regulations have been issued, the Court deems it appropriate to dissolve the stay of judicial review, granted in its order of February 28, 1977. Finally, after a careful study of the regulations at issue, the Court concludes that they comply with the mandate of 23 U.S.C. § 117; accordingly, the Court shall grant defendants' motion for summary judgment as to Count V of the second amended complaint.
Currently, the regulations provide that a "capability" finding "will be based on an FHWA evaluation of a State's performance and resources." 43 Fed.Reg. 46965 (to be codified at 23 C.F.R. § 640.109(a)(2)(ii)). In addition, the regulations specify the various reports, reviews, and other sources which may be examined in evaluating a state's resources or performance. Id. (to be codified at 23 C.F.R. §§ 640.109(a)(2)(ii)(A) & (B)). Plaintiffs argue that this reference to documentary sources is inadequate and that Only a comprehensive list of specific factors can satisfy the mandate of 23 U.S.C. § 117. The plaintiffs, however, have failed to show where the statute, in either its language or it legislative history, mandates these specific criteria. Although the statute requires the Secretary of Transportation to make a finding of "capability," it does not prescribe any particular formula or method. As the regulations currently stand, this Court is unable to conclude that they will lead to arbitrary or capricious decision making. As the Court of Appeals for this Circuit explained in Pacific Legal Foundation v. Dept. of Transportation, 193 U.S. App. D.C. 184 at -- , 593 F.2d 1338, at 1343 (1979), agency rulemaking should be sustained when it is "consistent with its statutory mandate, rational, and not arbitrary."
Moreover, a review of the Federal-Aid Highway Act, 23 U.S.C. §§ 101-156 (1976), indicates that when Congress desired to set specific performance levels, the law clearly reflected that intent. Thus, § 109(b) of title 23 establishes the requirement that the Interstate Highway System provide at least four lanes of traffic. Even more significant is Congress' failure to include the specific criteria, which the plaintiffs' propose, when it amended section 117 in 1976. Plaintiffs' suggestions were certainly before the legislature at that time, and Congress must have deliberately declined to adopt such criteria. See Kay v. FCC, 143 U.S.App.D.C. 223, 231, 443 F.2d 638, 646 (1970). Thus, the Court concludes that Congress has decided to permit the Secretary of Transportation or the Administrator of the FHWA to determine the factors relevant ...