Petition for Writ of Certiorari — CSXT, Inc. v. Pitz
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IN THE DEC 29 1983
Supreme Court of the United] St#tés.ee °°" ™
OCTOBER TERM, 1989 7
CSXT, INC.,
Petitioner,
vs.
JAMES J. PITZ, DIRECTOR OF THE DEPARTMENT
OF TRANSPORTATION OF THE STATE OF MICHIGAN,
NORMA J. FLEMING, ADMINISTRATOR
OF THE RAILROAD SAFETY AND TARIFFS
DIVISION OF THE DEPARTMENT
OF TRANSPORTATION OF THE STATE OF MICHIGAN
and THE DEPARTMENT OF TRANSPORTATION OF
THE STATE OF MICHIGAN
and_
UNITED TRANSPORTATION UNION,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PATRICK E. HACKETI*
CAROL HACKETT GARAGIOLA
FRASCO & HACKETT, P.C.
1400 N. Woodward Avenue
Suite 205
Bloomfield Hills, MI 48013
(313) 647-6860
SALLY J. KIRCHER
CSXT, INC., Law Department
500 Water Street
Jacksonville, FL 32202
(904) 359-1224
Attorneys for Petitioner
* Counsel of Record
-
hl
QUESTIONS PRESENTED
Whether The Locomotive Boiler Inspection Act, 45
U.S.C. § 22 et. seq. (LBIA) totally occupies the field of
locomotive equipment regulation, thus providing the basis
for a facially conclusive preemption challenge to the Michi-
gan Department of Transportation (MDOT) rule requiring
locomotives to be equipped with toilets.
Whether the Federal Railroad Safety Act, 45 USC § 421
et. seq. (FRSA) prohibits concurrent state and statewide
regulation of locomotive equipment, thus providing the
basis for a facially conclusive preemption challenge to the
MDOT rule requiring locomotives to be equipped with
toilets.
Ill.
Whether Younger abstention is appropriate in cases which
raise facially conclusive preemption claims.
IV.
Whether state administrative proceedings can be consid-
ered judicial in nature for purposes of Younger abstention
when the state constitution, statutes and state court decisions
expressly deny judicial powers to such agency, where such
agency has no power to assess fines, compel compliance with
its orders, or impose liability, and where such agency serves
as both adversary and decision maker.
ii
LIST OF PARTIES AND RULE 28.1 LIST
The parties before the Court of Appeals and this Court
are all listed in the caption.
CSX Transportation, Inc. (“CSXT”) is a wholly-owned
subsidiary of CSX Corporation (“CSX”). The sw »sidiaries
and affiliates of CSXT or CSX, other than those wholly owned
by them, are:
The Akron Union Passenger Depot Company;
Allegheny and Western Railway Company;
Augusta and Summerville Railroad Company;
The Baltimore and Cumberland Valley Railroad
Extension Company;
The Baltimore and Philadelphia Railroad Company;
Beaver Street Tower Company;
Central Transfer Railway and Storage Company;
Chatham Terminal Company;
Clearfield and Mahoning Railway Company
The Cleveland Terminal & Valley Railroad
Company
Dayton and Michigan Railroad Company;
Dayton and Union Railroad Company;
The Home Avenue Railroad Company;
The Lakefront Dock and Railroad Terminal
Company;
North Charleston Terminal Company;
Richmond-Washington Company, which has a
subsidiary, RF&P Corporation;
Winston-Salem Southbound Railway Company:
Woodstock & Blockton Railway Company;
Mid-Allegheny Corporation
TABLE OF CONTENTS
Page
eet et iwc uve eweres ]
ie als oss 5 4's wk ae bbe oe ee 2
CONSTITUTIONAL PROVISIONS, STATUTORY
PROVISIONS & REGULATIONS INVOLVED..... 2
StATEeerms OF THE CASE.................... 4
REASONS FOR GRANTING THE PETITION ....... 6
CONCLUSION & RELIEF REQUESTED........... 19
APPENDICES
Re as ey 6 sg vs w'k bee Am A-]
Judgment of the Court of Appeals
en cc thd eb ssessccceceasoaes B-]
Opinion of the Court of Appeals
ae a Wao eo 66 oo ds cubes ba C-1
Court of Appeals Order Denying Rehearing
ees cees cede de ¥eceea D-1
Opinion of the District Court
ae ak hay ob G6 bbls ds ss es ve E-1]
Federal Railroad Administration Regulations
en F-]
Michigan Statutes relevant to MDOT’s powers
a a G-1
MDOT Administrative Proceeding Documents
ES H-1
Order Staying Mandate
iv
TABLE OF AUTHORITIES
Cases: Page
American Motors Sales Corp. vs. Runke, 708 F.2d. 202
SE I a 3's oe ou. a ac ae a 18
Consolidated Rail Corp. vs. Pennsylvania Public Utili-
ties, 356 F. Supp. 653 (ED Pa. 1982) aff'd mem.
696 F. 2d 981 (CA 3, 1982), aff'd. mem. 461 U.S.
912, 103 S. Ct. 1888, 77 L.Ed.2d 280 (1983)... .. 7
Deakins vs. Monaghan, 484 U.S. 193 (1988) 1085S. Ct.
om PB pene eee re eee 13
Detroit & Mackinac Railway Company vs. Michigan
Railroad Commission, 235 U.S. 403 (1914). ...... 16,17
Fidelity Federal Savings & Loan Assoc. vs. de La Cues-
tra, 458 U.S. 141, 102 S. Ct. 3014, 73 L.Ed.2d 664
CR ARs ere arn a is cS hema k ke:s 6
Huffman vs. Pursue, Ltd., 420 U.S. 592, 95S. Ct. 1200,
We a EOE gos cc on ccma keene waa 13
In re Consolidated Freight Co., 265 Mich. 340 at 350
sage lla ae = eet greater ale, a 17
Marshall vs. Burlington Northern, Inc., 720 F.2d 1149
I a a bos nS < bas bw a SA eee be 7
Missouri Pacific Railroad Co., vs. Railroad Comm'n of
Texas, MOPAC I), 833 F.2d 570 (CA 5, 1987) ....8,9,10
Missouri Pacific Railroad Co. vs. Railroad Comm’n of
Texas, (MOPAC II) 850 F.2d 264 (CA 5-1988) Cert.
denied __ U.S. __ (1989) 57 USLW 3452...... 8,9,10
Napier vs. Atlantic Coastline, 272 U.S. 605, 47 S. Ct.
fe Se Gf GR Sores re 6,7
New Orleans Public Service, Inc. vs. Council of the City
of New Orleans, ___ US. 109 S. Ct. 2506
ads Ss 6 woke aan tee ek ae eee ee 5 8,11,12,13,14,17
Ohio Civil Rights Commission vs. Dayton Christian
School, 477 U.S. 619, 106 S. Ct. 2718, 92 L.Ed.2d
PE ae iae es in Ak bck s A AE eee 13,15
Pennzoil vs. Texaco, Inc., 481 U.S. 1, 107 S. Ct. 1519,
ee Ey oo ia go 5 Sa bw 4 we Xa 6 Kao Bi we 13
Pollitz vs. Michigan Railroad Commission, 205 Mich
549, 172 N.W. 611 (Mich. 1919) .............. 16
Prentis vs. Atlantic Coastline Co., 211 U.S. 210, 20 S.
ry ae UP EE y «c's so wes he 2 es 17
Public Utility Commission of Ohio vs. United Fuel Gas
Company, 317 U.S. 456, 63 S. Ct. 369, 87 L.Ed.
Es vn Garan ued oak ah ee ee es wee 14,15
Cases: Page
Rayner vs. Smirl, 873 F.2d 60 (1989) ............. 1]
Silkwood vs. Kerr-McGee Corp., 464 U.S. 238, 104 S.
eM} ee PM ES ee 6
Wardair Canada vs. Florida Dept. of Revenue, 477
U.S. 1, 106 S. Ct. 2369. 91 L.Ed.2d 1 (1986)..... 6
Willcox vs. Consolidated Gas Co., 212 U.S. 19, 29 S.
om, he ay cere 13
Younger vs. Harris, 401 U.S. 37, 91 S. Ct. 746, 27
RN a eae voc dwn eee ebewekyn 13,14,15,18
Constitution, Statutes, and Regulations:
United States Constitution:
Article 1, §8, Clauses l and3................... 2.6
oo oa rob a woot anaes aesualee 2.5.6
Michigan Constitution:
I oe ee ge ss a Aes 3,16
Federal Statutes:
Federal Anti-Injunction Act, 28 USC § 2283 (1976) .18
Federal Natural Gas Act of 1938 15 USC § 8717, et
MA fate bo ces ecb oa a eA REkE eR ee es 14,15
Federal Railroad Administration 49 USC §103 ..... ‘ata
Federal Railroad Safety Act 45 USC § 421 et seq.
Se re ee nr 3,4,5,9,10,11,12,15
jJurtediction, 36 USC § 19541)... ......-..02.2.. 2 Z
28 USC § 1331, 28 USC § 1337, 28 USC § 1332 ....5
Locomotive Boiler Inspection Act 45 USC § 22 et seg.
CEE Pie Geass hocks ee elec casa tae es ers 2,.4,5,6,7,8,12,15™
Public Law 589-670, 49 USC § 1655 (e)(1)(E)...... F aes
Michigan Statutes:
MICH. COMP. LAWS. ANN. §§ 460.302: 460.558:
462.19; 462.26(a), (c); 462.38; 467.10; 469.9;
rs Ro 6 54 8 6S Ee e's Se ncen ee 3,17
Federal Regulations:
49 CFR 229, 230, 231.16, 213.17, 231.29, 231.30,
ee a. s ere ein 3,10,12,15™
State Regulations:
MICH. ADM. CODE, Rule 460.1473............. 4,10,12,15'°
Miscellaneous:
H.R. Rep. No. 91-1194, 91st Cong., 2d Sess. reprinted
in 1970, U.S. Code Cong. & Ad. News, at 4117 ...9
No.
IN THE
Supreme Court of the United States
OCTOBER TERM, 198°
CSXT, INC.
Petitioner,
vs.
JAMES J. PITZ, DIRECTOR OF THE DEPARTMENT
OF TRANSPORTATION OF THE STATE OF MICHIGAN,
NORMA J. FLEMING, ADMINISTRATOR
OF THE RAILROAD SAFETY AND TARIFFS
DIVISION OF THE DEPARTMENT
OF TRANSPORTATION OF THE STATE OF MICHIGAN
and THE DEPARTMENT OF TRANSPORTATION OF
THE STATE OF MICHIGAN
and
UNITED TRANSPORTATION UNION,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CSXT, Inc., petitions for a Writ of Certiorari to review
the judgment of the United States Court of Appeals for the
Sixth Circuit in this case.
OPINIONS BELOW
The opinion of the Court of Appeals (App. B, p. B-1-B-12)
is reported at 883 F.2d. 468. The opinion of the District
Court (App. D, p. D-1-D-10) is reported at 699 F. Supp
127.
2
JURISDICTION
The judgment of the Court of Appeals (App. A, pp. A-1-
2) was entered on August 22, 1989. A petition for rehearing
was denied on October 4, 1989. (App. C, p. C-1). Pursuant
to Supreme Court Rule 20.4, this petition is timely filed on
or before January 2, 1990. Jurisdiction of this Court is
invoked under 28 USC 1254(1).
CONSTITUTIONAL PROVISIONS, STATUTORY
PROVISIONS AND REGULATIONS INVOLVED
1. Article 1, § 8, Clauses 1 and 3 of the United States
Constitution provide in relevant part:
The Congress shall have the power—To regulate Com-
merce with foreign Nations, and among the several
States, and with the Indian Tribes;
2. Article 6, Clause 2 of the United States Constitution
provides:
This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the Au-
thority of the United States, shall be the supreme Law
of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.
3. The Locomotive Boiler Inspection Act, 45 USC § 22,
et seq, provides in relevant part at § 23:
It shall be unlawful for any carrier to use or permit
to be used on its line any locomotive unless said locomo-
tive, its boiler, tender, and all parts and appurtenances
thereof are in propery condition and safe to operate in
the service to which the same are put, that the same
may be employed in the active service of such carrier
without unnecessary peril to life or limb, and unless
said locomotive, its boiler, tender, and all parts and
appurtenances thereof have been inspected from time
to time in accordance with the provisions of sections 22
3
to 29 and 31 to 34 of this title and are able to withstand
such test or tests as may be prescribed in the rules and
regulations hereinafter provided for.
. The Federal Railroad Safety Act, 45 USC § 421, et.
seq.
(FRSA) provides in relevant part at § 434:
The Congress declares that laws, rules, regulations,
orders, and standards relating to railroad safety shall be
nationally uniform to the extent practicable. A State
may adopt or continue in force any law, rule, regulation,
order or standard relating to railroad safety until such
time as the Secretary has adopted a rule, regulation,
order, or standard covering the subject matter of such
State requirement. A State may adopt or continue in
force an additional or more stringent iaw, rule, regula-
tion, order, or standard relating to railroad safety when
necessary to eliminate or reduce an essentially local
safety hazard, and when not incompatible with any
Federal law, rule, regulation, order, or standard, and
when not creating an undue burden on interstate
commerce.
5. Federal Railroad ‘Administration Regulations dealing
with locomotive equipment are set forth verbatim in Appen-
dix E and are identified here as: 49 CFR 229, 230, 231.16,
213.17, 231.29, 231.30, 232.19 and 49 CFR 223.
6. Article III, §2 of the Constitution of the State of
Michigan provides: _
-
4.
The powers of government are divided into three
branches; legislative, executive and judicial. No person
exercising powers of one branch shall exercise powers
mee. mort to another branch except as express-
ly provided in this constitution.
The following relevant Michigan statutes are set forth
verbatim in Appendix F to illustrate the absence of judicial
power in the Michigan Department of Transportation.
MICH. COMP. LAWS ANN. §§ 460.302; 460.558;
462.19; 462.26(a), (c); 462.38; 467.10; 469.9; 469.37;
and 469.103.
4
8. Rule 460.1473 MICH. ADM. CODE, provides in rele-
vant part:
(a) Adequate toilet facilities shall be made available
for trainmen, enginemen and yardmen, after hearing
thereon and order by the commission, which toilet
facilities shall be kept in a reasonably clean and sanitary
condition.
STATEMENT OF THE CASE
The facts are not in dispute. The Michigan Department
of Transportation (MDOT) adopted a Rule (Mich ADM Code
Rule 460.1473 (a)) which it interprets to require toilets on
locomotives in Michigan. CSXT, an interstate railroad
system operating in Michigan and many states, uses some
locomotives in Michigan that are not equipped with toilets.
In 1986, upon complaint of intervenor, United Transporta-
tion Union (UTU), MDOT conducted field inspections,
issued requirements for compliance and gave notice of an
administrative hearing to enforce the Rule. (App. G, pp
G-1-G-17). CSXT filed its Complaint in the Federal District
Court asserting total federal preemption of the regulation
of locomotive equipment by virtue of two federal statutes,
the Locomotive Boiler Inspection Act (LBIA), 45 USC § 22-
43 and the Federal Railroad Safety Act of 1970 (FRSA), 45
USC § 421-44. CSX then moved to stay the administrative
hearing which motion was denied by MDOT’s Administra-
tive Law Judge. (App. G, pp. G-18-G-19). CSXT sought and
obtained from the District Court a preliminary injunction
against MDOT’s enforcement of its Rule.
On May 13, 1988, the District Court granted CSXT’s
Motion for Summary Judgment declaring that MDOT’s Rule
was preempted by LBIA and FRSA insofar as it requires
commodes on locomotives operating in Michigan.
On appeal by defendants, the Sixth Circuit Court of
Appeals ruled that the District Court should have abstained,
5
vacated the judgment and remanded the case with instruc-
tions to dismiss. On motion, the Mandate was stayed. (App.
H, p. H-1).
In bringing this case within the guidelines of Younger
abstention, the Court of Appeals made four distinct findings
challenged here:
1. That the LBIA does not prohibit concurrent state regu-
lation or purport to occupy the field of railroad regulation;
2. That the FRSA allows limited concurrent state
regulation;
3. That MDOT’s administrative proceedings were judicial
in nature; and
4. That Younger abstention applies in this case.
The bases for federal court jurisdiction in this case in the
first instance are:
28 USC § 1331—This civil action arises under the consti-
tution and laws of the United States,
specifically Article I, § 8, Clause 3 (the
Commerce Clause) and Article VI,
Clause 2 (the Supremacy Clause) and
the Locomotive Boiler Inspection Act,
45 USC, §22-43 and the Federal
Railroad Safety Act of 1970, 45 USC,
§ 421-44.
28 USC § 1337—This is a civil action arising under the
LBIA and the FRSA, being acts of Con-
gress regulating commerce or protec-
ting trade and commerce against
restraints.
28 USC §1332—The matter in controversy is between
citizens of different states and exceeds
the statutory amount.
6
REASONS FOR GRANTING THE PETITION
1. The Court of Appeals has rendered a decision in
conflict with the decisions of this Court and of other
federal courts of appeal concerning the Locomotive
Boiler Inspection Act's 45 USC § 22 et. seq. (LBIA),
total occupation of the field of locomotive equip-
ment regulation and its total preemptive effect.
The Court of Appeals held that the LBIA,
“lists certain equipment required for locomotives and
railroad cars . . . does not prohibit concurrent state regu-
lation or purport to occupy the field of railroad
iregulation|*.” (App. B, p. B-4).
*Misprinted in the text of the opinion as “negotiation”.
This holding is in conflict with the decisions of this Court
and of other federal courts of appeal which hold unequivo-
cally, that the LBIA occupies totally the field of locomotive
equipment regulation and preempts states from any and all
requirements concerning locomotive equipment.
In Napier vs. Atlantic Coastline, 272 U.S. 605, 47 S. Ct.
207, 71 L. Ed. 432 (1926), this Court held that Congress
intended the LBIA to occupy totally the field of locomotive
equipment.’ The Court found that the LBIA preempted a
Georgia statute requiring automatic doors to fireboxes on
'The doctrine of preemption is based on the Supremacy
Clause of the United States Constitution, Article VI, Cl.2, which
mandates that federal law overrides conflicting state law. Congres-
sional intent determines whether federal law preempts a particular
state or local law. Wardair Canada vs. Florida Department of
Revenue, 477 U.S. 1, 106 S. Ct. 2369, 91 L. Ed. 2d 1 (1986).
Preemptive intent may be indicated by express statutory language.
Fidelity Federal Savings and Loan Assoc. vs. de La Cuestra, 458
U.S. 141, 102 S. Ct. 3014, 73 L. Ed. 2d, 664. Or, preemptive
intent is inferred where federal law so pervades a given field as to
evince a Congressional intent exclusively to occupy the field.
Silkwood vs. Kerr-McGee Corp., 464 U.S. 238, 104 S. Ct. 615, 78
L. Ed. 2d, 443 (1984).
Oe
locomotives, and a Wisconsin statute requiring cab curtains
on locomotives. The Court examined § 23 of the LBIA and
concluded,
“We hold that state legislation is precluded, because the
Boiler Inspection Act, as we construe it. was intended to
occupy the field. The broad scope of the authority
conferred upon the Commission * leads to that conclu-
sion. Because the standard set by the Commission
must prevail, requirements by the states are precluded,
however commendable or however different their
purpose.” Id. at 613, 47 S. Ct. at 210.
Napier’s holding concerning the LBIA’s total preemption
of locomotive equipment regulation has been reaffirmed by
recent decisions of this Court and three federal courts of
appeal. In Consolidated Rail Corp. vs. Pennsylvania Public
Utilities, 536 F. Supp. 653 (E.D. Pa., 1982), aff'd mem. 696
F. d 981 (CA 3, 1982), affd sum. sub. nom., Pennsylvania
Public Utilities Comm'n vs. Consolidated Rail Corp., 461 U.S.
912, 103 S. Ct. 1888, 77 Ed. 2d 280 (1983), the district
court ruled that the LBIA preempted a state speed recorder
statute because the speed recorder statute regulated locomo-
tive equipment and the LBIA totally preempts state regula-
tion of locomotive equipment. The Third Circuit and the
Supreme Court summarily affirmed this judgment.
The Ninth Circuit reaffirmed the Napier holding in Mar-
shall vs. Burlington Northern Inc., 720 F. 2d 1149 (CA 9,
1983), a grade crossing accident case involving allegations
that the railroad had failed to provide strobe lights on its
locomotives. Justice Kennedy, then sitting on the court of
appeals, cited the holding in Napier and stated,
“...the [LBIA] preempts any state regulations of
locomotive equipment.” Id., at 1152.
* “Secretary of Transportation” was substituted for “Interstate
Commerce Commission” pursuant to Pub. L. 589-670, 49 USC
§ 1655 (e)(1)(E). The Federal Railroad Administration carries out
the powers and duties of the Locomotive Boiler Inspection Act
vested in the Secretary of Transportation. 49 USC § 103.
8
In Missouri Pacific Railroad Co.. vs. Railroad Comm'n of
Texas (MOPAC I), 833 F. 2d 570 (CA 5, 1987) the Fifth
Circuit affirmed the district court’s ruling that the LBIA
preempted a Texas regulation requiring first aid kits and
fire extinguishers on locomotives. The court of appeals
announced,
“We hold that the state legislation is precluded because
the |LBIA]... was intended to occupy the field.” Id.,
833 F.2d at 576.
The court further noted,
“State attempts to prescribe any locomotive safety
equipment must necessarily fail.” Id., 833, F. 2d at 576,
n. 7.
Most recently, the same court of appeals strongly
reafirmed this position stating,
“Yet there is nothing clearer in the law than the fact that
locomotives themselves are subject to no regulations,
requirements, or additions to equipment at all.” Missouri
Pacific Railroad Co. vs. Railroad Comm’n of Texas
(MOPAC II), 850 F. 2d 264, 269 (CA 5, 1988), citing
Napier, 272 US at 613, 47 S. Ct. 210.
In the instant case, the Court of Appeals’ incorrect assess-
ment of the LBIA’s total occupation of the field of locomotive
equipment, and total preemptive effect concerning any and
all regulation of locomotive equipment by the states, pre-
vented that court from properly identifying CSXT’s preemp-
tion claim as facially conclusive. Failing to so identify
CSXT’s preemption claim, the Court of Appeals erroneously
construed and applied the Supreme Court's recent decision
concerning Younger abstention in New Orleans Public Ser-
vice, Inc. vs. Council of City of New Orleans (NOPSI), ——
US. 109 S. Ct. 2506, L. Ed. 2d —___(1989).
’ |
)
2. The Court of Appeals has rendered a decision in
conflict with the decisions of other federal courts
of appeal concerning preemption of concurrent
state and statewide regulation of locomotive equip-
ment under the Federal Railroad Safety Act, 45,
USC § 421 et. seq. (FRSA).
The Court of Appeals held that the FRSA allows the
Secretary of Transportation to:
“prescribe appropriate rules for all areas of railroad
safety,” including rules concerning equipment and oper-
ating procedures. (Citing FRSA § 431 (a)). The Act
allows limited concurrent state regulation. (App. B. p.
B-4).
This ruling is in conflict with the decisions of the federal
court of appeals for the Fifth Circuit, which hold that
virtually all state regulations affecting the train itself appear
preempted by FRSA. MOPAC II, 850 F. 2d at 268. This
ruling is also in conflict with the Fifth Circuit’s broad ap-
' proach to construing “subject matter”, MOPAC I, 833 F.
2d 570, which approach leads to identifying the “subject
matter” in the case at bar as “locomotive equipment”. FRSA,
then, prohibits concurrent state and statewide regulation of
locomotive equipment because federal regulations cover
that subject matter.
FRSA § 434, preempts a state railroad safety regulation
with statewide application if the Secretary of Transportation
(see fn 2, supra) has adopted a rule covering the subject
matter of such state requirement. The legislative history of
FRSA makes it clear that:
“there is no intent to permit a State to establish State-
wide standards superimposed on national standards cov-
ering the same subject matter.” 1970 U.S. Code Cong.
& Admin. News at 4117.
A broad approach to construing “subject matter” is consis-
tent with Congress’ stated intent in § 434 to provide for
10
safety through nationally uniform railroad regulation. A
broad construction of “subject matter” leads to limited state
regulation, fulfilling Congress’ stated purpose of national
uniformity. A narrow construction of “subject matter”
permits states extensively to regulate where the Federal
Railroad Administration (FRA) may have regulated com-
prehensively, though not exhaustively. Such an approach
would promote piecemeal and fragmentary regulation by
the states, effectively destroying national uniformity. As is
evident from its analysis in MOPAC I, 833 F. 2d 570, the
Fifth Circuit has adopted a broad construction of “subject
matter”. Such an approach supports its conclusion in MOPAC
II that the FRSA preempts virtually all state regulation of
the train itself, since “the FRA has regulated most aspects
of train safety.” MOPAC II, 850 F. 2d at 268.
The Fifth Circuit, in MOPAC I, supra, rejected the “pur-
pose of the state regulation” as “too mincing” a construction
of whether FRA regulations “cover the subject matter”,
because such a construction would “thwart federal superin-
tendence of the field.” Id., at 574. Instead, that court looked
at whether, from a practical standpoint, state requirements
generally add to FRA requirements. Id, at 575. Also, that
court considered whether the physical area covered by the
state regulation was under the domain of the FRA. Id.,
at 577. If so, the subject matter was covered by federal
regulation. Applying these tests, it is apparent that the FRA
has covered the subject matter of MDOT’s rule.
The subject matter of locomotive equipment is exten-
sively, though not exhaustively, covered by federal regula-
tions. (See FRA regulations, App. E.) Since federal regula-
tions “cover the subject matter”, FRSA preempts MDOT’s
rule requiring locomotives to be equipped with toilets.
Following the reasoning of the Fifth Circuit, and in contrast
to the holding of the Sixth Circuit in the instant case, FRSA
does not allow for concurrent state and statewide regulation
of locomotive equipment.
1]
See also Rayner vs. Smirl, 873 F.2d 60 (1989), wherein
the Fourth Circuit held FRSA so completely preemptive of
state law as to warrant removal of a state court action to
federal court, where it was then dismissed on preemption
grounds. Thus, the Fourth Circuit has joined the Fifth in
confirming the total preemptive effect of FRSA.
The Sixth Circuit's incorrect assessment of FRSA’s pre-
emption of state locomotive equipment regulation pre-
vented that court from properly identifying CSXT’s preemp-
tion claim as facially conclusive. Failing to so identify
CSXT’s preemption claim, the Court of Appeals erroneously
construed and applied the Supreme Court’s recent decision
concerning Younger abstention in NOPSI, supra.
3. The Court of Appeals has decided an important
question of federal law, the appropriateness of
Younger abstention in facially conclusive preemp-
tion claims, which question has not been, but
should be, settled by this Court.
Ruling that the district court should have abstained from
deciding CSXT’s preemption claim, the Court of Appeals
held,
“We do not see any reason to analyze abstention cases
involving a preemption claim differently than other
abstention cases.” (App. B, p. B-9).
Relying on NOPSI, the Court of Appeals wrote that the
Supreme Court:
“rejected the argument that the presence of a preemp-
tion question bars a court from applying Younger
abstention.” (App. B, p. B-5).
The Court of Appeals looked only to the NOPSI conclusion
that Younger abstention can be extended to substantial
claims of federal preemption. The Court of Appeals did
not acknowledge that CSXT presented a facially conclusive
preemption claim, that NOPSI distinguished between “sub-
12
stantial” preemption claims and “facially conclusive” pre-
emption claims, and that the decision in NOPSI dealt only
with substantial preemption claims. NOPSI specifically left
open the question of the appropriateness of Younger absten-
tion in facially conclusive preemption cases. This important
question of federal law deserves the attention of this Court.
Writing for the majority in NOPSI, Justice Scalia framed
the issue for the instant case.
Thus, NOPSI argues, even if a substantial claim of
federal preemption is not sufficient to render abstention
inappropriate, at least a facially conclusive claim is.
Perhaps so. But we do not have to decide the matter
here, since the proceeding and order do not meet that
description. NOPSI, U.S. 109 S. Ct. at 2517.
The opinion then proceeds to outline the reasons why
NOPSI's preemption claim was not facially conclusive.
a. CSXT’s preemption claim is facially
conclusive.
The factors presented in NOPSI which lead to the conclu-
sion that NOPSI did not involve a facially conclusive preemp-
tion claim, lead to the opposite conclusion in the instant
case. MDOT has sought directly to regulate equipment on
CSXT locomotives used in interstate commerce. MDOT has
questioned the validity of the LBIA and FRSA-prescribed
allocation of power concerning regulation of locomotive
equipment. In attempting to regulate locomotive equip-
ment, MDOT has not taken a normal administrative step
within its jurisdiction. Regulation of locomotive equipment
is directly foreclosed by the LBIA, the FRSA, the regulations
supplementing those statutes, and the case law applying
them. Moreover, as CSXT, MDOT, the UTU and the Court
of Appeals agree, in this case, “the facts are not in dispute.”
(App. B, p. B-2). No further factual inquiry is required for
purposes of the threshold abstention determination that
MDOT’s rule and proceedings are “flagrantly and patently”
unlawful.
13
b. Younger abstention should not be extended to
facially conclusive preemption claims.
Over the past eighteen years, the application of Younger
abstention has been broadened by this Court from criminal
court proceedings, Younger vs. Harris, 410 U.S. 37, 91 S.
Ct. 746, 27 L. Ed. 2d 669 (1971) to quasi-criminal court
proceedings, Huffman vs. Pursue, Ltd., 420 U.S. 592, 95 S.
Ct. 1200, 43 L. Ed. 2d 482 (1975), to civil state court
proceedings involving important state interests, Pennzoil Co.
vs. Texaco, Inc., 481 U.S. 1, 107 S. Ct. 1519, 95 L. Ed.
2d 1 (1987), to state administrative proceedings involving
important state interests, Ohio Civil Rights Comm’n vs.
Dayton Christian Schools, 477 U.S. 619, 106 S. Ct. 2718,
71 L. Ed. 2d 1 (1986).
While these rulings progressively bar federal plaintiffs
from access to federal courts, this Court continues to ack-
nowledge that abstention is “the exception, not the rule”,
NOPSI US. 109 S. Ct. at 2513; that the federal
courts’ obligation to adjudicate claims within their jurisdic-
tion is “virtually unflagging”, NOPSI, U.S , 109 S.
Ct. at 2513, quoting Deakins vs. Monaghan, 484 U.S. 193,
203, 108 S. Ct. 523, 530, 98 L. Ed. 2d 529 (1988); and that
the “right of a party plaintiff to choose a Federal Court where
there is a choice cannot be properly denied”. NOPSI,
US. 109 S. Ct. at 2513, quoting Willcox vs. Consoli-
dated Gas Co., 212 U.S. 19, 40, 29 S. Ct. 192, 195 53 L.
Ed. 382 (1909). The Younger abstention decisions define
the narrow class of cases in which federal courts have
discretion to withhold authorized relief because of undue
interference with state proceedings. Petitioner's case pres-
ents circumstances which demonstrate that facially conclu-
sive preemption claims do not belong within this narrow
class of cases.
Younger vs. Harris, (supra), set forth the abstention princi-
ple, but also held that abstention is not appropriate if a
federal plaintiff will suffer irreparable injury absent equita-
14
ble relief. NOPSI, supra U.S. at 109 S. Ct. at
2517, citing Younger, 410 U.S. at 43-44, 91 S. Ct. at 750.
Younger suggested that irreparable injury may be established
by showing that the challenged state statute is “flagrantly
and patently violative of express constitutional provisions.”
NOPSI, US. at , 1098S. Ct. at 2517, citing Younger,
410 U.S. at 53-54, 91 S. Ct. at 755. Some preemption cases
do involve state statutes, regulations, orders or proceedings
which flagrantly and patently violate the Supremacy Clause
of the United States Constitution. Such facially conclusive
preemption claims should fall outside the reach of Younger
abstention.
In Public Utilities Comm'n of Ohio vs. United Fuel Gas Co..,
317 U.S. 456, 63 S. Ct. 369, 87 L. Ed. 396 (1943), this
Court refused to apply abstention to a facially conclusive
preemption claim. The Supreme Court affirmed an order of
a federal district court enjoining the state Public Utilities
Commission of Ohio (PUCO) from attempting to directly
regulate interstate gas prices. Deciding that abstention was
inappropriate, this Court stated:
“First, and most important, the orders of the state
commission are on their face plainly invalid. No inquiry
beyond the orders themselves and the undisputed facts
which underlie them is necessary to discover that they
are in conflict with the federal Act. Id., 317 U.S. at
468, 469, 63 S. Ct. at 376.
Supporting this conclusion, were the following facts noted
by the Court. Congress specifically divested state agencies
of any jurisdiction to regulate interstate rates when it passed
the Natural Gas Act of 1938, 15 USC 8717, et. seq. In place
of the supplanted state regulation, Congress had created a
“comprehensive scheme of regulation” for interstate gas
rates. Id., 317 U.S. at 467, 63 S. Ct. at 375. Congress had
also granted exclusive jurisdiction to the Federal Power
Commission to regulate interstate gas rates. Moreover,
there was no need in United Fuel Gas to look beyond the
15
face of the PUCO order and the Ohio statute permitting
such order for the Court to determine that the state's actions
and statute were preempted by the Natural Gas Act.°
The United Fuel Gas decision pre-dated Younger and
the extension of Younger abstention to state administrative
proceedings in Dayton Christian Schools, supra. United Fuel
Gas, however, was cited with approval in NOPSI, U.S.
at , 109 S. Ct. at 2517. This Court should clarify that
the decision and rationale of United Fuel Gas survive Younger
and Dayton Christian Schools, and hold that Younger absten-
tion is not appropriate in cases involving facially conclusive
preemption claims.
To do so is consistent with the suggestion in Younger
that abstention is not appropriate where a challenged state
statute is flagrantly and patently violative of express constitu-
tional prohibitions. Refusing to extend Younger abstention
to facially conclusive preemption claims will not conflict with
Younger abstention’s goal of preventing undue interference
with state proceedings. This is so because the interference
is not “undue” when state proceedings involve flagrant and
patent violations of constitutional prohibitions.
CSXT presented a facially conclusive preemption claim to
the federal district court. The decision of the Court of
Appeals improperly and needlessly bars Petitioner and other
similarly situated federal plaintiffs from authorized federal
° All of these aspects are present in CSXT’s preemption claim.
Congress, through the LBIA and FRSA, has divested the states of
any jurisdiction to regulate locomotives. In place of state regula-
tion, Congress has enacted a comprehensive scheme of federal
regulation for locomotives and other railroad rolling stock.
Through the LBIA and FRSA, Congress has granted the FRA
exclusive power to regulate the subject matter of locomotive
equipment. Moreover, in the instant case there is no need to look
beyond the face of the MDOT rule, and the undisputed actions of
MDOT enforcing the rule, to determine that MDOT’s actions and
rule are preempted by the LBIA and FRSA.
16
relief. This Court's ruling will resolve this important and as
yet unanswered federal question.
4. The Court of Appeals has rendered a decision in
conflict with applicable decisions of this Court and
of the Michigan Supreme Court concerning the
“judicial” nature of MDOT’s administrative
proceedings.
The Court of Appeals held that MDOT’s administrative
proceedings constitute an ongoing state proceeding that was
judicial in nature. While some administrative proceedings
may be judicial in nature, such is not the case respecting
MDOT'’s administrative hearing.
The Michigan Constitution states:
The powers of government are divided into three
branches; legislative, executive and judicial. No person
exercising powers of one branch shall exercise powers
properly belonging to another branch except as
expressly provided in this Constitution. Mich. Const.,
Art. Ill, § 2.
Referring to MDOT’s predecessor, the Michigan Railroad
Commission, the Michigan Supreme Court has stated:
[The Michigan Railroad Commission] has no judicial or
legislative powers, is an administrative [agency], and
with reference to most matters committed to it... is a
trier of facts. Pollitz v. Michigan Railroad Commission,
205 Mich 549, 566; 172 N.W. 611, 617 (1919). See
also Detroit & Mackinac Railway vs. Michigan Railroad
Commission, 235 U.S. 403, 404-405 (1914)
As to another predecessor of MDOT, the Michigan Public
Utilities Commission, Michigan’s Supreme Court later said:
But the public utilities commission and other commis-
sions of like character are primarily administrative
bodies, adjuncts to either or both the legislative depart-
ment or the executive department. They also function in
quasi-judicial capacities. But because of constitutional
17
prohibitions (Const. art. 5, § 1; art. 7, § 1) neither legisla-
tive powers nor purely judicial functions can be exer-
cised by such commissions or boards. In re Consolidated
Freight Co., 265 Mich. 340 at 350 (1933).
Michigan's Constitution forbids the exercise of judicial
powers by MDOT. It is a fact-finder and may issue orders
as the legislature may authorize. It has no judicial power to
assess fines or to compel compliance with a regulation, order
or statute which it administers. For any such enforcement,
MDOT must, through the Attorney General or a local prose-
cutor, turn to a judicial proceeding in a court. (See MICH.
COMP. LAWS ANN. §§ 460.302; 460.558; 462.19; 462.26
(a), (c); 462.38; 467.10; 469.9; 469.37; and 469.103.) App.
F. pp. F-1-F-6.
In short, MDOT’s proceedings, whether called administra-
tive or quasi-judicial, can only go so far. MDOT can act as
a factfinder and issue orders but under Michigan's Constitu-
tion cannot exercise judicial powers. Its proceedings in this
case, contrary to the appellate court holding, were not
judicial in nature.
Prentis vs. Atlantic Coastline Co., 211 U.S. 210, 29 S. Ct.
67, 53 L. Ed. 150 (1908) is quoted by the Court of Appeals
in support of its finding of a “judicial! proceeding” here.
Prentis dealt with the Virginia State Corporation Commission
which, under Virginia law, was vested with both legislative
and judicial powers (NOPSI, 109 S. Ct. at 2519).
Prentis presented a problem not existent here. There the
Court had to decide whether the commission was exercising
its legislative or its judicial powers. Here, MDOT has
no judicial powers. The Prentis test is unnecessary and
inapplicable. Indeed, in Detroit & Mackinaw Railway vs.
Michigan Railway Commission, 235 U.S. at 404-5, Justice
Holmes discussed Prentis and clearly contrasted Michigan's
Constitution with its separation of powers with Virginia's,
which affirmatively granted dual powers. In that case, the
18
Michigan Supreme Court was found to be without legislative
powers to fix rates.
Another compelling argument against elevating MDOT’s
proceeding to the level of “judicial” is found in American
Motors vs. Runke, (CA 6 1983) 708 F. 2d 202, 204, n. 5.
While that case involved the Federal Anti-Injunction Act, it
discussed the nature of a Kentucky DOT administrative
proceeding, finding it essentially an executive function and
pointing out . . . “The State is both the adversary and decision
maker”. Such is the case with MDOT. The essence of
a judicial proceeding is a neutral forum. MDOT is an
adversary.
Michigan's Constitution and Michigan's Supreme Court
say MDOT is without judicial powers. The “judicial pro-
ceeding” required to satisfy Younger guidelines is absent
here.
19
CONCLUSION AND RELIEF REQUESTED
The Petition for Writ of Certiorari should be granted.
Respectfully submitted,
PATRICK E. HACKETT
CAROL HACKETT GARAGIOLA
Attorneys for Petitioner
1400 N. Woodward, Suite 205
Bloomfield Hills, MI 48013
(313) 647-6860
SALLY KIRCHER
CSXT, INC.
Law Department
Attorney for Petitioner
500 Water Street
Jacksonville, FL 32202
(904) 359-1224
APPENDIX A
A-]
United States Court of Appeals
For THE SIXTH CIRCUIT
No. 88-1629
CSXT, INC, a Virginia corporation,
Plaintiff-Appellee,
v.
James J. Pitz and Norma J. FLEMING, in their official capacities;
DEPARTMENT OF TRANSPORTATION OF THE STATE OF MICHIGAN,
Defendants-Appellants (88-1642),
THE UNITED TRANSPORTATION UNION,
Intervening Defendant-
Appellant (88-1629).
Before: MERRITT and BOGGS, Circuit Judges; and CONTIE,
Senior Circuit Judge.
JUDGMENT
ON APPEAL from the United States District Court for the
Western District of Michigan.
THIS CAUSE came on to be heard on the record from the
said district court and was argued by counsel.
ON CONSIDERATION WHEREOF, It is now here or-
dered and adjudged by this court that the judgment of the
said district court in this case be and the same is hereby
vacated and the case is remanded with instructions to
dismiss.
A-2
IT Is FURTHER ORDERED that Appellants recover
from Plaintiff-Appellee the costs on appeal, as itemized
below, and that execution therefor issue out of said district
court, if necessary.
ENTERED BY ORDER OF
THE COURT
Leonard Green, Clerk
/s/ | LEONARD GREEN
Clerk
A True Copy.
Attest:
/s/ Tom BENNIGNUS
Deputy Clerk
Issued as Mandate: October 12, 1989
COSTS: APPELLANT TO RECOVER
Filing Fee........... S
PIE sciciswnessccs $176.00
NR siactoseves $
APPENDIX B
-—
B-]
Nos. 58-1629; 88-1642
United States Court of Appeals
For Tue Sixti Circuit
CSXT, Inc. a Virginia corporation, >
Plaintiff-Appellee,
¥s
James J. Prrz. Director of the Depart-
ment of Transportation of the State
of Michigan, Nora J. FLeminc. Ad- | oO. appear from the
ministrator of the Railroad Safety Unit a Seeks m Pic.
and Tariffs Division of the Depart- t wey 6 = i th
ment of Transportation of the State f ++ st - ishsies of
of Michigan, and the DrrarTMENT Michie —
OF TRANSPORTATION OF THE STATE OF eines ie
MICHIGAN
Defendants-Appellants (S$8-1642),
and
Tuk UNtrepD TRANSPORTATION UNION.
Intervening
Defendant-Appellant (88-1629). J
Decided and Filed August 22, 1989
Before: MERRITT and BOGGS, Circuit Judges; and
CONTIE, Senior Circuit Judge.
MERRITT. Circuit Judge. The defendants, James J. Pitz,
Norma J. Fleming and Michigan Department of Transporta-
tion, and the intervening defendant, United Transportation
Union. appeal on abstention grounds a District Court injunc-
tion restraining the Department from enforcing any state
administrative action or rule requiring toilets in railroad
locomotives. The injunction was issued on grounds that
sucha Michigan rule would be preempted by the Locomotive
B-2
Boiler Inspection Act, 45 U.S.C. §§ 22-43 (1976) and the
Federal Railroad Safety Act of 1970, 45 U.S.C. §§ 421-44
(1976). The District Court held that the preemption doc-
trine prohibits the state agency from conducting the contem-
plated proceeding.’ The central problem raised by the
appeal is whether abstention is appropriate in preemption
cases. We conclude under the circumstances of this case
that abstentiou is appropriate; and we, therefore. reverse
the order of the District Court. CSXT, Inc. v. Pitz, 699
F.Supp. 127 (W.D. Mich. 1958).
I.
The facts are not in dispute. The plaintiff, CSXT, is an
interstate railroad system operating in Michigan. About
one-third of CSXT’s locomotives are not equipped with
toilets. The defendant, Michigan Department of Transporta-
tion, has a general rule requiring that all railroads have
“adequate toilet facilities” for the health of their emplovees.
Mich. Adm. Code Rule 460.1473(a).°
The intervening defendant-appellant, United Transporta-
tion Union, is an international union representing CSXT
train crews working in Michigan. After receiving reports
that crew members were being asked to work on CSXT
locomotives that did not provide toilet facilities, the Union
' The language of the District Court's injunction is as follows:
In accordance with the accompanying opinion, this Court
grants plaintiffs motion for summary judgment, declares that
the LBIA and the FRSA each preempts Rule 460.1473(a),
insofar as it is construed to require commodes on locomotives
operating in Michigan, and enjoins MDOT from so construing
and entorcing the rule.
> Rule 160.1 173(a) provides in pertinent part:
Adequate toilet facilities shall be made available for train-
men, enginemen and vardmen, after hearing thereon and
order of the commission, which toilet facilities shall be kept
in a reasonably clean and sanitary condition.
B-3
filed a complaint with the Michigan Department of Trans-
portation. The complaint charged CSXT with violating the
Michigan rule requiring railroads to have “adequate toilet
facilities.”
The agency scheduled a hearing before an administrative
law judge after CSXT had filed a motion to stay the adminis-
trative proceedings. CSXT then filed a suit for injunctive
and declaratory relief in federal court. After a hearing, the
AL] denied CSXT’s motion for stay. She stated that she
doubted that the agency had the authority to entertain the
constitutional claims but cited Michigan authority holding
that although Michigan administrative agencies ordinarily
do not entertain constitutional claims, such claims may be
raised in court on review of the agency's decision. Joint
Appendix at 107. Additionally, the ALJ said that the sanitary
regulations at issue were well within the police powers of
the state. She refused to hold that the federal statutes relied
upon by CSXT were intended “to prohibit state regulation
in an area so basic to public health.” Id. at 108.
The federal District Court granted the Union's motion to
intervene on February 4, 1988, and on the same date entered
a preliminary injunction restraining the state agency from
enforcing its rule and restraining the agency from conducting
the scheduled administrative proceedings until the District
Court ruled on CSXT’s motion for summary judgment. On
February 10, 1988, the Union filed a motion to abstain. The
District Court did not expressly consider or rule on the
Union's abstention motion. The court found the state rule
as applied to locomotives to be preempted by federal law
and, therefore, without oral argument granted CSXT’s sum-
mary judgment motion and issued a permanent injunction.
This appeal requires us to answer two questions. First,
does the fact that this case raises preemption rather than
other types of constitutional issues require us to modify the
classic abstention analysis? And second, once the proper
B-4
mode of analysis is determined, does it require abstention
in this case?
The first question presented is whether the fact that this
case is a preemption case, rather than another type of federal
question case, should alter the way in wich we view the
abstention question. We conclude that it should not.
Two federal statutes are claimed to preempt the Michigan
regulation. The Federal Boiler Inspection Act, 45 U.S.C.
§§ 22-43 (1976), first adopted in 1911, lists certain equip-
ment required for locomotives and railroad cars. Enforce-
ment of the act is by civil penalty (“not less than $250
and not more than $2500") assessed by the Secretary of
Transporation, which may be collected by suit in federal
court. Id. at §34. The Act does not prohibit concurrent
state regulation or purport to occupy the field of railroad
negotiation. The Railroad Safety Act, 45 U.S.C. §§ 421-44
(1976), adopted in 1970. is broader. It allows the Secretary
to “prescribe... appropriate rules . . . for all areas of railroad
safety,” including rules concerning equipment and operating
procedures. Id. at § 431(a). The Act allows limited concur-
rent state regulation.’ The Act also provides for a similar
but more elaborate system of enforcement through the
’ The Act states:
The Congress declares that laws... relating to railroad
safety shall be nationally uniform to the extent practicable. A
State may adopt or continue in force any law... relating to
railroad safety until such time as the Secretary has adopted a
rule. covering the subject matter of such State requirement.
A State may adopt or continue in force an additional or more
stringent law .. . relating to railroad safety when necessary to
eliminate or reduce an essentially local safety hazard, and
when not incompatible with any Federal law... and when
not creating an undue burden on interstate commerce.
15 U.S.C. § 431 (1976Xemphasis added).
B-5
assessment and collection of civil penalties. Id. at § 436.
The Secretary has not prescribed rules directly governing
locomotive toilets, but CSXT argues that the Secretary has
adopted general rules “covering the subject matter” and,
therefore, has preempted Michigan law.
The Supreme Court in New Orleans Public Service, Inc. t.
Council of City of New Orleans, U.S. . 109 S.Ct.
2506 (1989) (holding federal abstention not appropriate in
favor of state administrative proceedings which are legisla-
tive in character), reversing 798 F.2d 858 (5th Cir. 1986),
has recently rejected the argument that the presence of a
preemption question bars a court from applying Younger
abstention. The Court rejected NOPSI's contention that a
district court presented with a preemption-based request
for equitable relief was a priori divested of its power to
abstain.*
The recent ruling in NOPSI casts doubt on the holding of
the Eighth Circuit in Middle South Energy, Inc. cv. Arkansas
Public Service Comm'n, 772 F.2d 404, 417 (8th Cir. 1985).
There the Eighth Circuit declined to abstain in a nuclear
power case in which it found that the Arkansas Public Service
Commission was interfering with the jurisdiction of the
Federal Energy Regulatory Commission. The state agency
threatened to hold illegal certain purchase contracts be-
tween a large, multi-state, electric utility and its Arkansas
subsidiary. The Arkansas agency apparently wanted to deter
the state subsidiary from taking nuclear power from the
parent, and the court suggested that such a state decision
would have a serious effect on the parent's construction of
*[Ojne of the issues in the present case is whether the
principle of Younger can properly be extended to this type of
suit. NOPSI argues that Younger does not require abstention
in the face of a substantial claim that the challenged state
action is completely pre-empted by federal law.... We
disagree.
NOPSI, 109 S.Ct. at 2516.
B-6
a multi-billion dollar nuclear power plant. The basis of the
Court's abstention ruling is not entirely clear, but it appears
that the Court declined to abstain because it considered
federal regulatory jurisdiction over the power contracts in
question to be exclusively vested in the federal power
agency. The Eighth Circuit did not discuss whether it
considered the federal court's jurisdiction over the preemp-
tion issue to be exclusive or concurrent with the state court's.
The abstention issue in preemption cases should not turn
on a determination concerning the location of exclusive
regulatory jurisdiction in a federal or state agency. The
state-federal regulatory jurisdictional issue usually turns, in
one form or another, on whether the activity in question is
characterized as intrastate or interstate. See, e.g, Federal
Power Act, 16 U.S.C. § 824(b)(1)(1976)(distinction stated
as “transmission of electrical energy in interstate commerce”
or “the sale of electrical energy at wholesale” versus “local
distribution” or “the transmission of eletrical energy in
intrastate commerce”). Under such statutes, the regulatory
jurisdiction is exclusively state if the activity is intrastate,
and exclusively federal if interstate. Such determinations of
regulatory jurisdiction are often highly fact-specific and
address themselves in the first instance to the expertise of the
administrative agencies charged with economic regulation of
the particular industry. In such cases both Congress and the
state legislature have delegated frontline authority to find
facts and devise economic regulations to administrative
bodies with specialized knowledge of the industries to be
regulated. Ordinarily, it is not prudent for courts to interfere
in the regulatory process before the facts are sorted out and
the regulatory rule is defined and applied.
In the present case there is no grant of exclusive jurisdic-
tion to federal courts to resolve federal railroad safety ques-
tions or preemption claims in this area of the law. State
courts do not lack jurisdiction over railroad safety issues or
preemption claims. State courts normally have concurrent
B-7
jurisdiction of federal issues unless such jurisdiction is with-
drawn by federal statute. Gulf Offshore Co. v. Mobil Oil
Corp., 453 U.S. 473, 478-79 (1981); Chicas Products Ltd.
v. Owen, 864 F.2d 1280, 1252-86 (6th Cir. 1988).
Other policies support our holding that abstention cases
involving preemption should not be treated differently than
other abstention cases. We reject the oft-repeated assertion
that the federal courts have “unique expertise” in adjudicat-
ing preemption claims because they are “comparatively
more skilled at interpreting and applying federal law and
are much more likely to correctly ascertain congressional
intent.” Note, The Preemption Dimension of Abstention, 89
Colum.L.Rev. 310, 322-23 (1989). State judges are not
inferior to federal judges. They have the ability to interpret
federal statutes, however complex. Though preemption is
a constitutional issue, it is not of a differrent order of
magnitude than due process, first amendment and other
constitutional issues which often arise during the course of
a state or federal administrative and judicial proceeding. To
hold that a state court may decide federal constitutional
issues generally but should not decide preemption issues
makes little sense.
State courts frequently decide such issues. It may be
argued that state judges are somewhat more inclined to
read state regulatory jurisdiction more broadly than federal
judges. Compare Michigan Gas Storage Co. v. Michigan
Public Service Comm'n, 405 Mich. 376, 275 N.W.2d 457
(1979), in which the Michigan Supreme Court, after exten-
sive analysis of the federal Natural Gas Act, concluded that
the Act does not preempt state regulation of the securities
of gas companies, with ANR Pipeline Co. v. Schneidewind,
801 F.2d 228 (6th Cir. 1986), affd, 108 S. Ct. 1145 (1988),
reaching the opposite result. But see Natural Gas Pipeline
Co. t. Illinois Commerce Comm'n, 33 Il.2d 214, 210 N.E.2d
490 (1965). in which the Illinois Supreme Court held Illinois
regulation of natural gas securities preempted by the Natural
B-8
Gas Act. Even if it were true that state judges were less
inclined to displace state regulatory jurisdiction than federal
judges, this tendency is not a sufficient reason to modify the
doctrine of abstention by substituting federal for state judges
in cases raising preemption issues.
The Tennessee Court of Appeals recently decided a pre-
emption issue under the Federal Railroad Safety Act similar
to the one raised in the present case. The issue was whether
the federal Act preempts state administrative proceedings
enforcing a requirement concerning the construction of
“walkways” in railroad switching yards. Judge Cantrell, after
extensive analysis of the issue, concluded that Tennessee's
walkways rule was not covered by a federal rule on the same
subject matter and, therefore, was not preempted. Illinois
Central Gulf Ry. Co. vc. Tennessee Public Service Comm'n,
736 $.W.2d 112, 115 (Tenn.App. 1987).
In fact, state courts are often in a better position to decide
preemption issues because they would do so on review of
an administrative decision finding the facts. The threshold
determination of whether jurisdiction over an activity is
exclusively federal or state or is concurrent is often highly
fact-specific and often requires the specialized knowledge
of the state administrative agency to which regulation of the
activity has been delegated.
Moreover, even if we accepted the proposition that some
state courts lacked the necessary expertise, the resulting
harm—that a case could be decided incorrectly by a state
court and be denied certiorari by the United States Supreme
Court so that federal-court review of the incorrectly decided
constitutional claim was precluded—is no greater than it is
when a federal court incorrectly decides a case, and the
United States Supreme Court declines review. If the federal
decision to abstain and the state decision to assert jurisdiction
were inappropriate, it may be that the doctrine of res
judicata should not apply in full force to the state court
B-9
judgment. See Key cv. Wise, 454 U.S. 1103 (1981)(Brennan,
J.. dissenting from denial of certiorari).
In summary, we do not see any reason to analyze absten-
tion cases involving a preemption claim differently than
other abstention cases. In particular, we do not agree that
the decisive abstention question in preemption cases arising
from pending state administrative proceedings is whether
the regulatory authority over the particular activity in ques-
tion is exclusively federal or exclusively state. A federal
court need ask itself only two questions: whether the state
court has concurrent judicial jurisdiction to decide the
preemption question, and, if the answer to that question is
“Yes,” whether a federal court should abstain in favor of
ongoing state proceedings originating in the state regulatory
agency. There is no question in the present case that
concurrent judicial jurisdiction exists. We, therefore, pro-
ceed to inquire whether abstention is appropriate.
Ill.
Abstention pursuant to the judicially-crafted rule an-
nounced in Younger vc. Harris, 401 U.S. 37 (1971), is appro-
priate only where a court can answer all three of the follow-
ing questions in the affirmative:
|Flirst, do [the relevant state proceedings] . . . constitute
an ongoing state judicial proceeding; second, do the
proceedings implicate important state interests; and
third, is there an adequate opportunity in the state
proceedings to raise constitutional challenges.
Middlesex County Ethics Comm. v. Garden State Bar Ass'n,
457 U.S. 423, 432 (1982). In the present case we answer
affirmatively all three questions.
Is the administrative proceeding here an “ongoing state
judicial proceeding?” Middlesex, 457 U.S. at 432. Under
the Supreme Court's recent analysis is NOPSI, it clearly is.
There the Court explained that an agency’s proceeding will
|
B-10
be characterized as judicial or legislative depending on the
“nature of the final act” which it is designed to produce.
NOPSI, 109 S.Ct. at 2519 (quoting Prentis v. Atlantic Coast
Line Co., 211 U.S. 210, 226-27 (1908)(Holmes, J.)). Where
the proceeding “investigates, declares and enforces liabil-
ities as they stand on present and past facts and under laws”
supposed already to exist,” it is judicial. Id. at 2520 (quoting
Prentis, 211 U.S. at 226). We are faced with an administra-
tive proceeding before the Michigan Department of Trans-
portation in which the interpretation and application of a
state rule requiring “adequate toilet facilities” are in ques-
tion and in which the final result will be a determination
whether CSXT is liable for a violation of this established
rule. There is, thus, an ongoing state proceeding that is
judicial in nature, and we must acknowledge that it impli-
cates all the comity concerns that motivate the Younger
doctrine.
The third requirement—of an “adequate opportunity” to
raise the issue—is also met. even though the state adminis-
trative agency may have no power to hear CSXT’s constitu-
tional claim, because Michigan law supplies full judicial
review of this agency proceeding. The Michigan Administra-
tive Procedures Act, Mich. Comp. Laws § 24.301, provides
for review of such proceedings, and the Michigan courts will
entertain the federal question on review. See Michigan Gas
Storage Co., supra (reviewing preemption issues); Blue Cross
and Blue Shield of Michigan v. Baerwaldt, 726 F.2d 296,
300 (6th Cir. 1984).
Our analysis of this question has been decisively settled
by decisions of the Supreme Court and this Court. In Watts
t. Burkhart, 854 F.2d 839 (6th Cir. 1988), our Court traced
the development of the doctrine of abstention as it applies
to pending state administrative proceedings. In Watts, a
doctor faced a license suspension proceeding before the
Tennessee Board of Medical Examiners, a proceeding in
which his federal constitutional claims could first be adjudi-
B-11
cated only by a state court in review of the decision of the
Board. Judge Contie, writing for our Court, concluded that
Supreme Court's decision in Ohio Civil Rights Comm'n v.
Dayton Christian Schools, Inc., 477 U.S. 619 (1986), governs
the question:
Watts contends that he will not be permitted to assert
his constitutional claims in the administrative proceedings
before the Board. This contention is supported by the
record, which shows that after Watts asserts his constitu-
tional claims as affirmative defenses to the Division's
motion to summarily suspend his license, the Division
successfully brought a motion to strike those defenses on
the ground that they were not within the scope of review
of proceedings before the Board of Medical Examiners.
This fact alone does not, however, establish that Watts will
be deprived of an opportunity to present his constitutional
claims. In Dayton Christian Schools, the Supreme Court
stated that “it is sufficient... that constitutional claims
may be raised in state court judicial review of the adminis-
trative proceeding.”
Watts, 854 F.2d at 848. The Full quotation from the Dayton
Christian Schools case is as follows:
In any event, it is sufficient . . . that constitutional claims
may be raised in state-court judicial review of the
administrative proceeding. Section 4112.06 of Ohio
Rev. Code Ann. (1980) provides that any “respondent
claiming to be aggrieved by a final order of the commis-
sion ...may obtain judicial review thereof.” Dayton
cites us to no Ohio authority indicating that this provi-
sion does not authorize judicial review of claims that
agency action violates the United States Constitution.
477 U.S. at 619.
Finally, we do not agree that the state proceedings which
CSXT seeks to have enjoined do not implicate vital state
interests. The unsanitary disposal of human waste creates a
risk of pollution and disease: preventing such risks is one of
B-12
the preeminent functions of the state’s police power to
protect the health and safety of its residents. A finding of
preemption will bar the enforcement of a state law, but it is
not a finding that the state has no important interest. Rather
it is finding that the federal interest is more important or
more vital than the state interest, so that the supremacy
clause requires that the federal interest prevail.
The case before us thus involves an ongoing state adminis-
trative proceeding that is judicial in nature; it involves a state
administrative proceeding from which CSXT may appeal to
Michigan state courts to obtain a ruling on its constitutional
claim, and it arises in an area in which Michigan has a vital
state interest. Every element of abstention is present.
IV.
For all the foregoing reasons, we conclude that the District
Court should have abstained. Our holding should not be
read as applying a hard and fast rule of abstention in all
state administrative matters involving preemption, for as
Professor Shapiro has aptly warned:
The complexity of our federal system—the tension
between notions of separateness and interdependence,
between the existence and the limits of federal suprem-
acy—makes it impossible to frame a simple rule that
will resolve every case. Sometimes these tensions cut
in favor of federal action. At other times, they counsel
reluctance to pull apart federal and state issues that are
not easily separated; to disrupt ongoing state proceed-
ings unless the very prosecution of those proceedings,
regardless of their outcome, threatens impairment of
federal rights; to take over the management of state
institutions; or to assume the inability of state courts to
recognize and entorce federal rights.
Shapiro, Jurisdiction and Discretion, 60 N.Y.U.L. Rev. 543,
583 (1985). We find no considerations in this case, however,
which would counsel the federal courts to interfere with
the ongoing railroad safety proceeding in the Michigan
Department of Transportation. Accordingly, the judgment
of the District Court is vacated and the case remanded with
instructions to dismiss.
APPENDIX C
C-]
No. 88-1629
United States Court of Appeals
~Foiu THE SixtTH CIRCUIT
CSXT, INC., a Virginia corporation, >
Plaintiff-Appellee,
V.
JaMEs J. Pitz, Director of the Depart-
ment of Transportation of the State latlaatiaie
of Michigan, et a/.,
Defendants,
UNITED TRANSPORTATION UNION,
Defendant-Appellant 53
Before: MERRITT, Chief Judge, BOGGS, Circuit Judge, —
and CONTIE, Senior Circuit Judge
The Court having received a petition for rehearing en
banc, and the petition having been circulated not only to
the original panel members but also to all other active judges
of this Court, and no judge of this Court having requested
a vote on the suggestion for rehearing en banc, the petition
for rehearing has been referred to the original hearing panel.
The panel has further reviewed the petition for rehearing
and concludes that the issues raised in the petition were
fully considered upon the original submission and decision
of the case. Accordingly, the petition is denied.
ENTERED BY ORDER OF
THE COURT
/s/ | LEONARD GREEN
Leonard Green, Clerk
APPENDIX D
CXST, INC., a Virginia
Corporation, Plaintiff,
v.
James J. PITZ, Director of the Department of Transportation
of the State of Michigan, Norma J. Fleming, Administrator
of the Railroad Safety and Tariffs Division of the Depart-
ment of Transportation of the State of Michigan, and the
Department of Transportation of the State of Michigan,
Defendants,
and
The United Transportation Union,
Intervening Defendant.
No. L 88-17 CA 5.
United States District Court,
W.D. Michigan, S.D.
Mav 13. 1988.
Railway company operating in both Canada and United
States sought declaratory judgment that state rule requiring
locomotives operating within state to have commodes in
them was preempted by federal law. The District Court,
Robert Holmes Bell. J.. held that both Federal Railroad
Safety Act and Locomotive Boiler Inspection Act completely
preempted state regulations dealing with locomotives, its
boiler, tender, and all parts and appurtenances including
state regulation requiring locomotives to have commodes.
Judgment for plaintiff.
D-2
Employers’ Liability Key 46
States Key 15.45
Both Federal Railroad Safety Act and Locomotive Boiler
Inspection Act completely preempted state regulation deal-
ing with a locomotive, its boiler, tender, and all parts and
appurtenances thereof, including state regulation requiring
locomotives to have commodes; state regulation was within
subject matter already contained within federal regulations.
Boiler Inspection Act, 45 U.S.C.A §22 et seq.: Federal
Railroad Safety Act of 1970, § 101 et seq., 45 U.S.C.A. § 421
et seq.; U.S.C.A. Const. Art. 6, cl. 2
Patrick E. Hackett, Carol Hackett-Garagiola, Bloomfield
Hills, Mich., Sally J. Kircher, Jacksonville, Fla., for plaintiff.
Frank J. Kelley, Atty. Gen., State of Mich. by Susan Peck
lannotti, William Reid Ralls, Lansing, Mich., for defendants.
OPINION
ROBERT HOLMES BELL, District Judge.
Before this Court is plaintiffs motion for summary judg-
ment on its complaint. In its complaint plaintiff seeks
a judgment declaring that the Michigan Department of
Transportation (MDOT) Rule 460.1473(a) is preempted by
the Locomotive Boiler Inspection Act (LBIA), 45
U.S.C. § 22 et seg., and the Federal Railroad Safety Act
(FRSA), 45 U.S.C. § 421 et seq. and an injunction prohibiting
defendant MDOT from enforcing Rule 460.1 473(a) against
CSXT.
BACKGROUND
CSXT is a railway company operating in Canada and
twenty states including Michigan. United Transportation
Union (UTU), intervening defendant, represents railroad
workers and complained to MDOT that CSXT violated Rule
D-3
460.1473(a) by failing to provide commodes on locomotives
operating in Michigan. MDOT scheduled a hearing on the
complaint before an administrative law judge for February
10,1988. On January 23, 1988, CSXT filed this lawsuit for
declaratory and injunctive relief. On January 27, 1988, an
MDOT administrative law judge denied CSXT’s motion to
stay state administrative proceedings pending this Court's
determination of CSXT’s claims that Rule 460.1473(a) was
preempted. On February 8, 1988, this Court granted
CSXT’s motion for a preliminary injunction restraining de-
fendants from enforcing Rule 460.1473(a) until August 4,
1988, or until this Court's ruling on CSXT’s motion for
summary judgment.
Of CSXT’s 3,000 locomotives approximately 1,000 do not
have commodes. Some unequipped locomotives operate in
Michigan. However, CSXT indicates that it plans to equip
all of its locomotives with commodes within three vears.
The disputed rule textually requires “adequate toilet facili-
ties.” but does not specifically require equipping each loco-
motive with an individual commode. Nevertheless, MDOT
has argued its position assuming that enforcement of Rule
460.1473(a) would require equipping locomotives with
commodes. The administrative law judge's analysis pre-
sumes the same. Althoug!: UTU does not concur with MDOT
that the rule requires a commode on every locomotive, for
purposes of its preemption analysis this Court assumes that
application of the rule would require installation of a com-
mode on each CSXT locomotive operating in Michigan. Rule
460.1473(a) provides:
Running Facilities
Rule 3. (1) Adequate toilet facilities shall be made avail-
able for trainmen, enginemen and yardmen, after hearing
thereon and order by the commission, which toilet facili-
ties shall be kept in reasonably clean and sanitary
condition.
D-4
ANALYSIS
The issue before this Court is whether Rule 460.1473(a)
is preempted by the Boiler Inspection Act (LBIA), 45 U.S.C.
§ 22 et seg., and the Federal Railroad Safety Act (FRSA), 45
U.S.C. § 421 et seq.
The doctrine of preemption is based upon the supremacy
clause of the Constitution, art. VI, cl. 2, which mandates
that federal law overrides any conflicting state regulation.
Moreover, when exercising one of its plenary powers, Con-
gress can occupy an entire regulable field with federal
law and effectively prohibit any parallel state legislation.
Missouri-Pacific Railroad Company t. Porter, 273 U.S. 341,
47 S.Ct. 383, 71 L.Ed. 672 (1927). Congress can clearly
manifest its intention to preempt state law by explicitly
stating its intent to totally occupy a field. Or in lieu of
any clear manifestation courts will discern the clarity of
Congress’ intent to preempt state regulation by the perva-
siveness of the federal regulatory scheme, the need for
national uniformity, or the potential for conflict between
-administering federal and state programs. Florida Lime and
Avacado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210,
10 L.Ed.2d 248 (1963), Pennsylvania v. Nelson, 350 U.S.
497, 76 S.Ct. 477, 100 L.Ed. 640 (1956).
Locomotive Boiler Inspection Act
CSXT argues that the LBIA preempts Rule 460.1473(a)
because in the LBIA Congress intended to occupy the entire
field of locomotive equipment regulation as determined by
the Supreme Court in Napier v. Atlantic Coast Line Railroad,
272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432 (1926). Defen-
dants and amicus respond that Napier is no longer good law
because the FRSA has impliedly superseded the LBIA.
The LBIA, 45 U.S.C. § 23, provides:
It shall be unlawful for any carrier to use or permit to
be used on its line any locomotive unless said !ocomotive,
——
D-5
its boiler, tender, and all parts and appurtenances thereof
are in proper condition and safe to operate in the service
to which the same are put, that the same may be employed
in the active service of such carrier without unnecessary
peril to life or limb, and unless said locomotive, its boiler,
tender, and all parts and appurtenances thereof have
been inspected from time to time in accordance with the
provisions of sections 22 to 29 and 31 to 34 of this
title and are able to withstand such test or tests as may
prescribed in the rules and regulations hereinafter pro-
vided for.
In Napier the Court held that LBIA preempted a Georgia
state statute requiring automatic doors on locomotive fire-
boxes and a Wisconsin statute requiring locomotive cab
curtains. The Court recognized that the LBIA comprehen-
sively empowered the Interstate Commerce Commission
[authority now resident with the Secretary of Transportation
and the Federal Railroad Administration, 49 U.S.C.App.
§§ 103 and 1655(e)(1)(E)] to promulgate regulations regard-
ing material, construction, and design of locomotives and all
their appurtenances in order to enforce compliance with the
LBIA. Napier, at 609, 47 S.Ct. at 208. The Court also noted
that no federal regulation existed as to the specific items,
fire-box doors and cab curtains, that the state regulation
required. However, the Court determined that Congress
intended the LBIA to occupy the entire field of locomotive
equipment and consequently the LBIA preempted the state
legislation, Napier, at 612-613, 47 S.Ct. at 209-10.
Even though Napier was decided in 1926, contemporary
federal courts continue to accept it as binding precedent
recognizing that Congress intended that the LBIA would
occupy totally the field of locomotive equipment and pre-
empt any state regulation of it. Further, this Court is
unaware of any federal court authority overruling Napier.
Marshall v. Burlington Northern, Inc., 720 F.2d 1149 (9th
Cir.1983), Missouri Pacific Railroad Co. v. Railroad Commis-
D-6
sion of Texas, 833 F.2d 570 (5th Cir.1987), Consolidated
Rail Corp. v. Pennsylvania Public Utility, 536 F.Supp. 653
(E.D.Pa.1982), aff'd mem., 696 F.2d 981 (3rd Cir.1982),
aff'd mem., 461 U.S. 912, 103 S.Ct. 1888, 77 L.Ed.2d 280
(1983). Moreover, the various authorities proffered by
defendants are neither binding precedent on this Court nor
reasonably persuasive.
This Court is similarly convinced that in the LBIA Con-
gress clearly manifested its intent to fully occupy the field
of locomotive equipment regulation by employing language
providing for “rules and regulations” covering a “locomotive,
its boiler, tender, and all parts and appurtenances thereof.”
Defendants contend that the FRSA, passed subsequently
to the LBIA, indicates an unambiguous change in Congress’
alleged intent to occupy the field of locomotive equipment
regulation. Defendants refer to the legislative history of the
FRSA identifying its primary purpose to “promote safety in
all areas of railroad operations” and calling “for broadscale
Federal legislation with provisions for active State participa-
tion to assure a much higher degree of railroad safety in the
vears ahead.” H.R.Rep. No. 1194, 91st Cong., 2d Sess. 19-
20 (1970), reprinted in 1970 U.S.Code Cong. & Admin.News
4104-4105. (Report 1194, with cites to USSCAN).
CSXT, however, notes that Report 1194, at 4113-4114,
underscores the continuing effect of existing federal railroad
safety law when commenting on § 202 of the FRSA:
The committee added the words “supplementing provi-
sions of law and regulations in effect on the date of
enactment of this title” to the Secretary’s rulemaking
authority to make clear that this grant of jurisdiction does
not replace the existing rail safety statutes and implemen-
ting regulations transferred to the Department of
Transportation. ... It is the committee’s intent that those
existing statutes will continue to be enforced and adminis-
tered by the Department in their respective area and that
D-7
the new authority will be implemented with respect to
those areas of rail safety not now subject to Federal
jurisdiction. In other words, it is the intent of the commit-
tee that the existing statutes continue to be administered
and enforced as if this legislation had not been enacted.
Since the LBIA was in effect on the date of the FRSA’s
enactment, this legislative history indicates that Congress
did not intend that the FRSA would supersede the LBIA.
This Court acknowledges that in the LBIA Congress in-
tended to occupy the field of locomotive equipment regula-
tion, as recognized in Napier, and determines that the FRSA
did not impliedly modify the LBIA. Consequently, this
Court determines that the LBIA preempts Rule 460.1473(a)
insofar as it may be construed to require commodes on
locomotives operating in Michigan.
Federal Railroad Safety Act
CSXT claims that the FRSA preempts Rule 460.!473(a)
because the rule attempts to regulate the same subject
matter as the FRSA, does not qualify under the FRSA’s
provision for limited state regulation. Defendants and
amicus argue that the FRSA specifically provides for state
regulation such as Rule 460.147 2(a).
The FRSA, § 205, 45 U.S.C. § 434, provides:
The Congress declares that laws, rules, regulations,
orders, and standards relating to railroad safety shall be
nationally uniform to the extent practicable. A State may
adopt or continue in force any law, rule, regulation, order,
or standard relating to railroad safety until such time as
the Secretary has adopted a rule, regulation, order, or
standard covering the subject matter of such State require-
ment. A State may adopt or continue in force an additional
or more stringent law, rule, regulation, order, or standard
relating to railroad safety when necessary to eliminate or
reduce an essentially local safety hazard, and when not
D-5
incompatible with any Federal law, rule, regulation, order,
or standard, and when not creating an undue burden on
interstate commerce.
This Court recognizes that Congress prefaces this section
with its policy declaration that railroad safety laws “shall be
nationally uniform to the extent practicable.” This Court
further notes that Congress provides for individual state
regulations relating to railroad safety until a federal regula-
tion is promulgated covering the “subject matter” of the
state regulation. CSXT asserts that “subject matter” should
be construed as regulable categories, such as, locomotive
equipment. Defendants and amicus maintain that “subject
matter” should be narrowly construed to mean particular
and specific items, such as, sanitary facilities on locomotives.
The pivotal issue is the scope of the phrase “subject matter.”
This Court acknowledges Congress’ explicit statement
that railroad safety laws should be as nationally uniform as
practicable. This reasonably suggests that the “subject
matter” under state regulation should be circumscribed and
distinct from the “subject matter” under federal regulation.
Nevertheless, Congress does provide for additional or more
stringent state regulation of a federally regulated “subject
matter” in order to eliminate or reduce an “essentially local
safety hazard.” But that is not the present case as the parties
themselves recognize.
Congress’ mandate of national uniformity also logically
implies a broad construction of the term “subject matter” as
a category, class, or group, rather than a specific, particular,
or individual item. If “subject matter” were construed
narrowly as item specific, then states would be free to
interstitially impose a myriad of gap filling safety regulations
in areas where Congress may have regulated comprehen-
sively, although not exhaustively. This approach would
promote piecemeal, ad hoc, and fragmentary regulation,
and, thereby, effectively destroy national uniformity.
D-9
This Court acknowledges and endorses the rationale of
Norfolk and Western Ry. Co. cv. Burns, 587 F.Supp. 161
(E.D.Mich. 1984). In Burns the court determined that
the FRSA preempted state regulation of railroad walkways
because walkways comprised an unspecified part of the
general track structure, which was a federally regulated
“subject matter.” The Burns court recognized the potential
“subject matter” conflict arising from Congress’ intent to
provide uniform railway safety regulations and the states’
limited right to regulate for safety:
To the degree that this pronouncement suggests federal
preemption, it is equally important to note that the matter
of permissible state regulation is specifically addressed.
First, it is clear that there can be no preemption unless
the Secretary has actually adopted a railroad safety stan-
dard. That does not necessarily mean that the standard
adopted must detail ecery conceivable item that might be
contemplated thereby; but, at least, there has to be some
action generally indicating that the Secretary is acting
pursuant to the powers vested in him by Congress. (em-
phasis added)
Burns, at 164. c
In the instant case, federal regulations exist comprehen-
sively governing locomotive design and equipment. Railroad
locomotive safety standards are extensively specified in 49
C.F.R. §§ 229.1-229.141 (1987) detailing numerous individ-
ual items of locomotive equipment. This Court recognizes
the expansive range and comprehensive scope of these safety
standards for locomotive design and equipment. This Court
also acknowledges that locomotive commodes do not appear
as specific regulated items. Nevertheless, this Court deter-
mines that the phrase, “subject matter,” is most reasonably
construed broadly as a category, group, or class because of
the comprehensive scope and character of existing federal
locomotive safety regulations. Even though these compre-
hensive federal regulations do not exhaustively “detail every
D-10
conceivable item that might be contemplated,” they, in fact,
define a category of “subject matter” by their scope and
range of which this Court determines that locomotive com-
modes are part and parcel. Therefore, the existing compre-
hensive federal regulation of locomotive equipment, which
this Court recognizes as constituting a category, class, group,
or field of “subject matter” under the FRSA, § 205, preempts
state regulation requiring locomotive commodes.
CONCLUSION
Accordingly, this Court determines that the LBIA and
the FRSA each preempt Rule 460.1473(a) insofar as it is
construed to require commodes on locomotives operating
in Michigan.
APPENDIX E
229.4]
229.43
229.45
229.46
229.4%
229.49
229.51
229.53
229.55
229.57
229.59
PART 229—RAILROAD LOCOMOTIVE
SAFETY STANDARDS
Subpart A—General
Scope.
Applicability.
Information collection.
Definitions.
Prohibited acts.
Movement of non-complying locomotives.
Locomotive identification.
Control of locomotives.
Non-MU control cab locamotives.
Accident reports.
Prior waivers.
Subpart B—Inspections and Tests
Daily inspection.
Periodic inspection: General.
Tests: Every periodic inspection.
Annual tests.
Biennial tests.
Main reservoir tests.
Out-of-use credit.
Subpart C—Safety Requirements
GENERAL REQUIREMENTS
Protection against personal injury.
Exhaust and battery gases.
General condition.
BRAKE SYSTEM
General.
Brakes:
Emergency brake valve.
Main reservoir system.
Aluminum main reservoirs.
Brake gauges.
Piston travel.
Foundation brake gear.
Leakage.
E-2
Sec.
Drart SysTeM
229.61 Draft svstem.
SUSPENSION SYSTEM
229.63 Lateral motion.
229.64 Plain bearings.
229.65 Spring rigging.
229.67 Trucks.
229.69 Side bearings.
229.71 Clearance above top of rail.
229.73 Wheel sets.
229.75 Wheel and tire defects.
ELECTRICAL SYSTEM
229.77 Current collectors.
229.79 Third rail shoes.
229.81 Emergency pole: shoe insulation.
229.83 Insulation or grounding of metal parts.
229.85 Doors and cover plates marked “Danger”.
229.87 Hand-operated switches.
229.89 Jumpers: cable connections.
229.91 Motors and generators.
INTERNAL COMBUSTION EQUIPMENT
229.93 Safety cut-off device.
229.95 Venting. _
229.97 Grounding fuel tanks.
229.99 Safety hangers.
229.101] Engines.
StrAM GENERATORS
229.103 Safe working pressure; factor of safety.
229.105 Steam generator number.
229.107 Pressure gauge.
229.109 Safety valves.
— 229.111 Water-flow indicator.
229.113 Warning notice.
CaBs AND CAB EQUIPMENT
229.115 Slip/slide alarms. ;
229.117 Speed indicators.
229.119 Cabs. floors. and passageways.
229.121 Locomotive cab noise.
E-3
pine
229.123 Pilots, snowplows, end plates.
399), 125 Headli hts.
;
229.129 Audible warning device.
229.131 Sanders.
Subpart D—Design Requirements
229.141 Body structure, MU locomotives.
APPENDIX A—ForM FRA—6180—49A [Note]
APPENDIX B—SCHEDULE OF CIVIL PENALTIES
APPENDIX C—FRA Locomotive STANDARDS Derect CODE
[Note]
AvuTHoRITy: Secs. 1, 2,5, 9, 36 Stat. 913, 914 (45 U.S.C.
22, 23, 28, 34); sec. 6(e) and (f), 80 Stat. 939, 940 (49
U.S.C. 1655(e) and (f)).
Source: 45 FR 21109, Mar. 31, 1980, unless otherwise
noted.
Subpart A—General
§ 229.1 Scope.
This part prescribes minimum Federal safety standards for
all locomotives except those propelled by steam power.
§ 229.3 Applicability.
This part applies to all common carriers by railroad as
defined in the Locomotive Inspection Act (45 U.S.C. 22).
§ 229.4 Information collection.
(a) The information collection requirements in this part
have been reviewed by the Office of Management and
Budget pursuant to the Paperwork Reduction Act of 1980,
Pub. L. 96-511, and have been assigned OMB control
number 2130-0004.
E-4
(b) The information collection requirements are found in
the following sections:
(1) Section 229.9
(2) Section 229.17
) Section 229.21]
(4) Section 229.23
) Section 229.27
(6) Section 229.29
(7) Section 229.31
(8) Section 229.33
(9) Section 229.55
(10) Section 229.103
(11) Section 229.105
(12) Section 229.113
(50 FR 6953, Feb. 19, 1985]
§ 229.5 Definitions.
As used in this part—
(a) “Break” meansa fracture resulting in complete separa-
tion into parts.
(b) “Cab” means that portion of the superstructure de-
signed to be occupied by the crew operating the locomotive.
(c) “Carrier” means a common carrier by railroad subject
to the Locomotive Inspection Act (45 U.S.C. 22).
(d) “Control cab locomotive” means a locomotive without
propelling motors but with one or more control stands.
(e) “Crack” means a fracture without complete separation
into parts, except that castings with shrinkage cracks or hot
; E-5
tears that do not significantly diminish the strength of the
member are not considered to be cracked.
(f} “Dead locomotive” means—
(1) A locomotive other than a control cab locomotive
that does not have any traction device supplying tractive
power; or
(2) A control cab locomotive that has a locked and
unoccupied cab.
(g) “High voltage” means an electrical potential of more
than 150 volts.
(h) “Lite locomotive” means a locomotive or a consist of
locomotives not attached to any piece of equipment or
attached only to a caboose.
(i) “Locomotive” means a piece of on-track equipment
other than hi-rail, specialized maintenance, or other similar
equipment—
(1) With one or more propelling motors designed for
moving other equipment;
(2) With one or more propelling motors designed to
carry freight or passenger traffic or both: or
(3) Without propelling motors but with one or more
control stands.
(j) “MU locomotive” means a multiple operated electric
locomotive described in paragraph (i)(2) or (3) of this section.
(k) “Powered axle” is an axle equipped with a traction
device.
(l) “Serious injury” means an injury that results in the
amputation of any appendage, the loss of sight in an eye,
the fracture of a bone, or the confinement in a hospital for
a period of more than 24 consecutive hours.
sl
E-6
§ 229.7 Prohibited acts.
(a) The Locomotive Inspection Act (45 U.S.C. 22-34)
makes it unlawful for any carrier to use or permit to be used
on its line any locomotive unless the entire locomotive and
its appurtenances—
(1) Are in proper condition and safe to operate in the
service to which they are put, without unnecessary peril
to life or limb; and
(2) Have been inspected and tested as required by this
part.
(b) A carrier is subject to a penalty, as provided in
Appendix B, if it fails to comply with any provision of this
part or of the Locomotive Inspection Act.
§ 229.9 Movement of non-complying locomotives.
(a) Except as provided in paragraphs (b) and (c), a locomo-
tive with one or more conditions not in compliance with this
part may be moved only as a lite locomotive or a dead
locomotive after the carrier has complied with the following:
(1) A qualified person shall determine—
(i) That it is safe to move the locomotive; and
(ii) The maximum speed and other restrictions necessary
for safely conducting the movement;
(2)(i) The engineer in charge of the movement of the
locomotive shall be notified in writing and inform all other
crew members in the cab of the presence of the non-
complying locomotive and the maximum speed and other
restrictions determined under paragraph (a)(1)(ii) of this
section.
(ii) A copy of the tag described in paragraph (a)(3) of this
section may be used to provide the notification required by
paragraph (a)(2)(i) of this section.
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(3) A tag bearing the words “non-complying locomotive”
and containing the following information, shall be securely
attached to the control stand on each MU or control cab
locomotive and to the isolation switch or near the engine
start switch on every other tvpe of locomotive—
(i) The locomotive number:
(ii) The name of the inspecting carrier;
(iii) The inspection location and date;
(iv) The nature of each defect;
(v) Movement restrictions, if any;
(vi) The destination; and
(vii) The signature of the person making the determina-
tions required by this paragraph.
(b) A locomotive that develops a non-complying condition
enroute may continue to utilize its propelling motors, if the
requirements of paragraph (a) are otherwise fully met, until
the earlier of—
(1) The next calendar day inspection, or
(2) The nearest forward point where the repairs neces-
sary to bring it into compliance can be made.
(c) A non-complying locomotive may be moved lite or
dead within a vard, at speeds not in excess of 10 miles per
hour, without meeting the requirements of paragraph (a) of
this section if the movement is solely for the purpose of
repair. The carrier is responsible to insure that the move-
ment may be safely made.
(d) A dead locomotive may not continue in use following
a calendar day, inspection as a controlling locomotive or at
the head of a train or locomotive consist.
(e) A locomotive does not cease to be a locomotive because
its propelling motor or motors are inoperative or because
its control jumper cables are not connected.
——————
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(f) Nothing in this section authorizes the movement of a
locomotive subject to a Special Notice for Repair unless
the movement is made in accordance with the restrictions
contained in the Special Notice.
§ 229.11 Locomotive identification.
(a) The letter “F” shall be legibly shown on each side
of every locomotive near the end which for identification
purposes will be known as the front end.
(b) The locomotive number shall be displaved in clearly
legible numbers on each side of each locomotive.
§ 229.13 Control of locomotives.
Except when a locomotive is moved in accordance with
§ 229.9. whenever two or more locomotives are coupled
in remote or multiple control, the propulsion system, the
sanders, and the power brake system of each locomotive
shall respond to control from the cab of the controlling
locomotive. Ifa dynamic brake or regenerative brake system
is in use, that portion of the system in use shall respond to
control from the cab of the controlling locomotive.
§ 229.14 Non-MU control cab locomotives.
On each non-MU control cab locomotive, only those com-
ponents added to the passenger car that enable it to serve as
a lead locomotive. control the locomotive actually providing
tractive power, and otherwise control the movement of the
train, are subject to this part.
§ 229.17 Accident reports.
(a) In the case of an accident due to a failure from any
cause of a locomotive or any part or appurtenance of a
locomotive, or person coming in contact with an electrically
energized part or appurtenance, that results in serious injury
or death of one or more persons, the carrier operating the
bet
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locomotive shall immediately report the accident by toll free
telephone, Area Code 800-424-0201. The report shall state
the nature of the accident, number of persons killed or
seriously injured, the place at which it occurred, the location
at which the locomotive or the affected parts may be in-
spected by the FRA, and the name, title and phone number
of the person making the call. The locomotive or the part
or parts affected by the accident shall be preserved intact
by the carrier until after the FRA inspection.
(b) Written confirmation of the oral report required by
paragraph (a) of this section shall be immediately mailed to
the Federal Railroad Administration, RRS-25, Washington,
D.C. 20590, and contain a detailed description of the acci-
dent, including to the extent known, the causes and the
number of persons killed and injured. The written report
required by this paragraph is in addition to the reporting
requirements of 49 CFR Part 225.
§ 229.19 Prior waivers.
All waivers of every form and type from any requirement
of any order or regulation implementing the Locomotive
Inspection Act, applicable to one or more locomotives except
those propelled by steam power, shall lapse on August 31,
1980, unless a copy of the grant of waiver is filed prior to
that date with the Office of Safety (RRS-23), Federa! Railroad
Administration, Washington, D.C. 20590.
Subpart B—Inspections and Tests
§ 229.21 Daily inspection.
(a) Except for MU locomotives, each locomotive in use
shall be inspected at least once during each calendar day.
A written report of the inspection shall be made. This report
shall contain the name of the carrier; the initials and number
of the locomotive: the place, date and time of the inspection;
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a description of the non-complving conditions disclosed by
the inspection; and the signature of the emplovee making
the inspection. Except as provided in § 229.9, any conditions
that constitute non-compliance with any requirement of this
part shall be repaired before the locomotive is used. A
notation shall be made on the report indicating the nature
of the repairs that have been made. The person making the
repairs shall sign the report. The report shall be filed and
retained for at least 92 days in the office of the carrier at
the terminal at which the locomotive is cared for. A record
shall be maintained on each locomotive showing the place,
date and time of the previous inspection.
(b) Each MU locomotive in use shall be inspected at least
once during each calendar day and a written report of the
inspection shall be made. This report may be part of a single
master report covering an entire group of MU’s. Ifany non-
complying conditions are found, a separate, individual report
shall be made containing the name of the carrier; the initials
and number of the locomotive; the place, date and time of
the inspection; the non-complvying conditions found; and the
signature of the inspector. Except as provided in § 229.9,
any conditions that constitute non-compliance with any
requirement of this part shall be repaired before the locomo-
tive is used. A notation shall be made on the report indicating
the nature of the repairs that have been made. The person
making the repairs shall sign the report. The report shall
be filed in the office of the carrier at the place where the
inspection is made or at one central location and retained
for at least 92 days.
(c) Each carrier shall designate qualified persons to make
the inspections required by this section.
[45 FR 21109, Mar. 31, 1980, as amended at 50 FR 6953,
Feb. 19, 1985]
§ 229.23 Periodic inspection: General.
(a) Each locomotive and steam generator shall be inspected
at each periodic inspection to determine whether it complies
atic
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with this part. Except as provided in § 229.9, all non-
complying conditions shall be repaired before the locomo-
tive or the steam generator is used. Except as provided in
§ 229.33, the interval between any two periodic inspections
may not exceed 92 days. Periodic inspections shall only
be made where adequate facilities are available. At each
periodic inspection, a locomotive shall be positioned so that
a person may safely inspect the entire underneath portion
of the locomotive.
(b) The periodic inspection of the steam generator may
be postponed indefinitely if the water suction pipe to the
water pump and the leads to the main switch (steam genera-
tor switch) are disconnected, and the train line shut-off-
valve is wired closed or a blind gasket applied. However,
the steam generator shall be so inspected before it is returned
to use.
(c) After April 30, 1980, each new locomotive shall receive
an initial periodic inspection before it is used. Except as
provided in § 229.33, each locomotive in use on or before
April 30, 1980, shall receive an initial periodic inspection
within 92 days of the last 30-day inspection performed under
the prior rules (49 CFR 230.331 and .451). At the initial
periodic inspection, the date and place of the last tests
performed that are the equivalent of the tests required by
§§ 229.27, 229.29, and 229.31 shall be entered on Form
FRA F 6180-49A. These dates shall determine when the
tests first become due under §§ 229.27, 229.29, and 229.31.
Out of use credit may be carried over from Form FRA F
6180-49 and entered on Form FRA F 6180-49A.
(d) Each periodic inspection shall be recorded on Form
FRA F 6180-49A. The form shall be signed by the person
conducting the inspection and certified by that person’s
supervisor that the work was done. The form shall be
displayed under a transparent cover in a conspicuous place
in the cab of each locomotive.
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(e) At the first periodic inspection in each calendar year
the carrier shall remove from each locomotive Form FRA
F 6180-49A covering the previous calendar year. If a
locomotive does not receive its first periodic inspection in a
calendar year before April 2 because it is out of use, the
form shall be promptly replaced. The Form FRA F 6180-
49A covering the preceding year for each locomotive, in or
out of use, shall be signed by the railroad official responsible
for the locomotive and filed as required in § 229.23(f). The
date and place of the last periodic inspection and the date
and place of the last test performed under §§ 229.27, 229.29,
and 229.31 shall be transferred to the replacement Form
FRA F 6180-49A.
(f) The mechanical officer of each railroad who is in charge
of a locomotive shall maintain in his office a secondary record
of the information reported on Form FRA F 6180-49A under
‘his part. The secondary record shall be retained until Form
FRA F 6180-49A has been removed from the locomotive
and filed in the railroad office of the mechanical officer in
charge of the locomotive. If the Form FRA F 6180-49A
removed from the locomotive is not clearly legible, the
secondary record shall be retained until the Form FRA F
6180-49A for the succeeding year is filed. The Form F
6180-49A removed from a locomotive shall be retained until
the Form FRA F 6180-494 for the succeeding year is filed.
(45 FR 21109, Mar. 31, 1980, as amended at 46 FR 39852,
June 12, 1980; 50 FR 6953, Feb. 19, 1985]
§ 229.25 Tests: Every periodic inspection.
Each periodic inspection shall include the following:
(a) All gauges used by the engineer for braking the train
or locomotive, except load meters used in conjunction with
an auxiliary brake system, shall be tested by comparison
with a dead-weight tester or a test gauge designed for this
purpose.
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(b) All electrical devices and visible insulation shall be
inspected.
(c) All cable connections between locomotives and jump-
ers that are designed to carry 600 volts or more shall be
thoroughly cleaned. inspected, and tested for continuity.
(d) Each steam generator that is not isolated as prescribed
in § 229.23(b) shall be inspected and tested as follows:
(1) All automatic controls, alarms and protective de-
- vices shall be inspected and tested.
(2) Steam pressure gauges shall be tested by comparison
with a dead-weight tester or a test gauge designed for
this purpose. The siphons to the steam gauges shall be
removed and their connections examined to determine
that they are open.
(3) Safety valves shall be set and tested under steam
after the steam pressure gauge is tested.
§ 229.27 Annual tests.
Each locomotive shall be subjected to the tests and inspec-
tions included in paragraphs (b) and (c) of this section, and
each non-MU locomotive shall also be subjected to the tests
and inspections included in paragraph (a) of this section, at
intervals that do not exceed 368 calendar days:
(a)(1) The filtering devices or dirt collectors located in
the main reservoir supply line to the air brake system shall
be cleaned, repaired, or replaced.
(2) Brake cylinder relay valve portions, main reservoir
safety valves, brake pipe vent valve portions, feed and
reducing valve portions in the air brake system (including
related dirt collectors and filters) shall be cleaned, re-
paired, and tested.
(3) The date and place of the cleaning, repairing, and
testing shall be recorded on Form FRA F 6180-49A
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and the person performing the work and that person's
supervisor shall sign the form. A record of the parts of
the air brake system that are cleaned, repaired, and tested
shall be kept in the carrier's files or in the cab of the
locomotive.
(4) At its option, a carrier may fragment the work
required by this paragraph. In that event, a separate air
record shall be maintained under a transparent cover in
the cab. The air record shall include the locomotive
number, a list of the air brake components, and the date
and place of the last inspection and test of each component.
The signature of the person performing the work and the
signature of that person's supervisor shall be included for
each component. A duplicate record shall be maintained
in the carrier's files.
(b) Load meters shall be tested. Errors of less than five
percent do not have to be corrected. The date and place of
the test shall be recorded on Form FRA F 6180-49A and
the person conducting the test and that person's supervisor
shall sign the form.
(c) Each steam generator that is not isolated as prescribed
in § 229.23(b), shall be subjected to a hydrostatic pressure
at least 25 percent above the working pressure and the
visual return water-flow indicator shall be removed and
inspected.
Eprroria Note: For a limited temporary waiver of com-
pliance document affecting § 229.27 (a)(2), see 50 FR 3910,
Jan. 29,1985. _
§ 229.29 Biennial tests.
(a) Except for the valves and valve portions on non-
MU locomotives that are cleaned, repaired, and tested as
prescribed in § 229.27(a), all valves, valve portions, MU
locomotive brake cylinders and electric-pneumatic master
controllers in the air brake svstem (including related dirt
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collectors and filters) shall be cleaned, repaired, and tested
at intervals that do not exceed 736 calendar days. The date
and place of the cleaning, repairing, and testing shall be
recorded on Form FRA F 6180-49A, and the person per-
forming the work and that person's supervisor shall sign the
form. A record of the parts of the air brake system that are
cleaned, repaired, and tested shall be kept in the carrier's
files or in the cab of the locomotive.
(b) At its option, a carrier may fragment the work re-
quired by this section. In that event, a separate air record
shall be maintained under a transparent cover in the cab.
The air record shall include the locomotive number, a list
of the air brake components, and the date and place of the
inspection and test of each component. The signature of
the person performing the work and the signature of that
person's supervisor shall be included for each component.
A duplicate record shall be maintained in the carrier's files.
Eprroriat Note: For a limited temporary waiver of com-
pliance document affecting § 229.29(a), see 50 FR 3910,
Jan. 29, 1985.
§ 229.31 Main reservoir tests.
(a) Except as provided in paragraph (c) of this section,
before it is put in service and at intervals that do not
exceed 736 calendar days, each main reservoir other than
an aluminum reservoir shall be subjected to a hydrostatic
pressure of at least 25 percent more than the maximum
working pressure fixed by the chief mechanical officer. The
test date, place. and pressure shall be recorded on Form
FRA F 6180-49A, and the person performing the test and
that person's supervisor shall sign the form.
(b) Except as provided in paragraph (c) of this section,
each main reservoir other than an aluminum reservoir shall
be hammer tested over its entire surface while the reservoir
is empty at intervals that do not exceed 736 calendar days.
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The test date and place shall be recorded on Form FRA F
6150-49A, and the person performing the test and that
person's supervisor shall sign the form.
(c) Each welded main reservoir originally constructed to
withstand at least five times the maximum working pressure
fixed by the chief mechanical officer may be drilled over its
entire surface with telltale holes that are three-sixteenths of
an inch in diameter. The holes shall be spaced not more
than 12 inches apart, measured both longitudinally and
circumferentially, and drilled from the outer surface to an
extreme depth determined by the formula—
D = (.6PR/(S—0.6P))
where:
D = extreme depth of telltale holes in inches but in no
case less than one-sixteenth inch;
P = certified working pressure in pounds per square
inch;
S = one-fifth of the minimum specified tensile strength
of the material in pounds per square inch: and
R = inside radius of the reservoir in inches.
One row of holes shall be drilled lengthwise of the reservoir
on a line intersecting the drain opening. A reservoir so
drilled does not have to meet the requirements of paragraphs
(a) and (b) of this section, except the requirement for a
hydrostatic test before it is placed in use. Whenever any
such telltale hole shall have penetrated the interior of any
reservoir, the reservoir shall be permanently withdrawn
from service. A reservoir now in use may be drilled in lieu
of the tests provided for by paragraphs (a) and (b) of this
section, but it shall receive a hydrostatic test before it is
returned to use.
(d) Each aluminum main reservoir before being placed
in use and at intervals that do not exceed 736 calendar davs
thereafter, shall be —
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(1) Cleaned and given a thorough visual inspection of
all internal and external surfaces for evidence of defects
or deterioration: and
(2) Subjected to a hydrostatic pressure at least twice
the maximum working pressure fixed by the chief mechan-
ical officer, but not less than 250 p.s.i. The test date,
place, and pressure shall be recorded on Form FRA F
6180-49A, and the person conducting the test and that
person's supervisor shall sign the form.
§ 229.33 Out-of-use credit.
When a locomotive is out of use for 30 or more consecutive
days or is out of use when it is due for any test or inspection
required by §§ 229.23, 229.25, 229.27, 229.29, or 229.31,
an out-of-use notation showing the number of out-of-use
days shall be made on an inspection line on Form FRA F
6150-49A. A supervisory employee of the carrier who is
responsible for the locomotive shall attest to the notation.
If the locomotive is out of use for one or more periods of at
least 30 consecutive days each, the interval prescribed for
any test or inspection under this part may be extended by
the number of days in each period the locomotive is out of
use since the last test or inspection in question. A movement
made in accordance with § 229.9 is not a use for purposes
of determining the period of the out-of-use credit.
Subpart C—Safety Requirements
GENERAL REQUIREMENTS
§ 229.41 Protection against personal injury.
Fan openings. exposed gears and pinions. exposed moving
parts of mechanisms. pipes carrying hot gases and high-
voltage equipment. switches. circuit breakers. contactors,
relays. grid resistors, and fuses shall be in non-hazardous
locations or equipped with guards to prevent personal injury.
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§ 229.43 Exhaust and battery gases.
(a) Products of combustion shall be released entirely out-
side the cab and other compartments. Exhaust stacks shall
be of sufficient height or other means provided to prevent
entry of products of combustion into the cab or other
compartments under usual operating conditions.
(b) Battery containers shall be vented and batteries kept
from gassing excessively.
§ 229.45 General condition.
All systems and components on a locomotive shall be
free of conditions that endanger the safety of the crew,
locomotive or train. These conditions include: insecure
attachment of components, including third rail shoes or
beams, traction motors and motor gear cases, and fuel tanks;
fuel, oil, water, steam, and other leaks and accumulations of
oil on electrical equipment that create a personal injury
hazard: improper functioning of components, including slack
adjusters, pantograph operating cylinders, circuit breakers,
contactors, relays, switches, and fuses; and cracks, breaks,
excessive wear and other structural infirmities of compo-
nents, including quill drives, axles, gears, pinions, panto-
graph shoes and horns, third rail beams, traction motor gear
cases, and fuel tanks.
BrakkE SYSTEM
§ 229.46 Brakes: General.
The carrier shall know before each trip that the locomotive
brakes and devices for regulating all pressures, including
but not limited to the automatic and independent brake
valves. operate as intended and that the water and oil have
been drained from the air brake system.
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§ 229.47 Emergency brake value.
(a) Except for locomotives with cabs designed for occu-
pancy by only one person, each road locomotive shall be
equipped with a brake pipe valve that is accessible to a
member of the crew, other than the engineer, from that
crew member's position in the cab. On car body type
locomotives, a brake pipe valve shall be attached to the wall
adjacent to each end exit door. The words “Emergency
Brake Valve” shall be legibly stenciled or marked near each
brake pipe valve or shall be shown on an adjacent badge
plate.
(b) MU and control cab locomotives operated in road
service shall be equipped with an emergency brake valve
that is accessible to another crew member in the passenger
compartment or vestibule. The words “Emergency Brake
Valve” shall be legibly stenciled or marked near each valve
or shall be shown on an adjacent badge plate.
§ 229.4% Main reservoir system.
(a)(1) The main reservoir system of each locomotive shall
be equipped with at least one safety valve that shall prevent
an accumulation of pressure of more than 15 pounds per
square inch above the maximum working air pressure fixed
by the chief mechanical officer of the carrier operating the
locomotive.
(2) Except for non-equipped MU locomotives built prior
to January 1, 1981, each locomotive that has a pneumatically
actuated system of power controls shall be equipped with a
separate reservoir of air under pressure to be used for
operating those power controls. The reservoir shall be
provided with means to automatically prevent the loss of
pressure in the event of a failure of main air pressure, have
storage capacity for not less than three complete operating
cycles of control equipment and be located where it is not
exposed to damage.
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(b) A governor shall be provided that stops and starts or
unloads and loads the air compressor within 5 pounds per
square inch above or below the maximum working air pres-
sure fixed by the carrier.
(c) Each compressor governor used in connection with the
automatic air brake system shall be adjusted so that the
compressor will start when the main reservoir pressure is
not less than 15 pounds per square inch above the maximum
brake pipe pressure fixed by the carrier and will not stop
the compressor until the reservoir pressure has increased at
least 10 pounds.
§ 229.51 Aluminum main reservoirs.
(a) Aluminum main reservoirs used on locomotives shall
be designed and fabricated as follows:
(1) The heads and shell shall be made of Aluminum
Association Alloy No. 5083-0, produced in accordance
with American Society of Mechnical Engineers (ASME)
Specification SB-209, as defined in the “ASME Boiler and
Pressure Vessel Code” (1971 edition), section II, Part B,
page 123, with a minimum tensile strength of 40,000 p.s.i.
(40 k.s.i.).
(2) Each aluminum main reservoir shall be designed
and fabricated in accordance with the “ASME Boiler and
Pressure Vessel Code,” section VIII, Division I (1971
edition), except as otherwise provided in this part.
(3) An aluminum main reservoir shall be constructed to
withstand at least five times its maximum working pressure
or 800 p.s.i., whichever is greater.
(4) Each aluminum main reservoir shall have at least two
inspection openings to permit complete circumferential
visual observation of the interior surface. On reservoirs
less than 18 inches in diameter, the size of each inspection
opening shall be at least that of 11-inch threaded iron
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pipe, and on reservoirs 18 or more inches in diameter,
the size of each opening shall be at least that of 2-inch
threaded iron pipe.
(b) The following publications, which contain the industry
standards incorporated by reference in paragraph (a) of this
section, may be obtained from the publishers and are also
on file in the Office of Safety of the Federal Railroad Adminis-
tration, Washington, D.C. 20590. Sections II and VIII of
the “ASME Boiler and Pressure Vessel Code” (1971 edition)
are published by the American Society of Mechanical Engi-
neers, United Engineering Center, 345 East 47th Street,
New York, New York 10017.
§ 229.53 Brake gauges.
All gauges used by the engineer for braking the train or
locomotive shall be located so that they may be conveniently
read from the engineer’s usual position in the cab. An air
gauge may not be more than three pounds per square inch
in error.
§ 229.55 Piston travel.
(a) Brake cylinder piston travel shall be sufficient to pro-
vide brake shoe clearance when the brakes are released.
(b) When the brakes are applied on a standing locomotive,
the brake cylinder piston travel may not exceed 1% inches
less than the total possible piston travel. The total possible
piston travel for each locomotive shall be entered on Form
FRA F 6180-49A.
(c) The minimum brake cylinder pressure shall be 30
pounds per square inch.
§ 229.57 Foundation brake gear.
A lever, rod, brake beam, hanger, or pin may not be worn
through more than 30 percent of its cross-sectional area,
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cracked, broken, or missing. All pins shall be secured in
place with cotters, split keys, or nuts. Brake shoes shall be
fastened with a brake shoe key and aligned in relation to the
wheel to prevent localized thermal stress in the edge of the
rim or the flange.
§ 229.59 Leakage.
(a) Leakage from the main air reservoir and related piping
may not exceed an average of 3 pounds per square inch per
minute for 3 minutes after the pressure has been reduced
to 60 percent of the maximum pressure.
(b) Brake pipe leakage may not exceed 5 pounds per
square inch per minute.
(c) With a full service application at maximum brake pipe
pressure and with communication to the brake cylinders
closed, the brakes shall remain applied at least 5 minutes.
(d) Leakage from control air reservoir, related piping,
and pneumatically operated controls may not exceed an
average of 3 pounds per square inch per minute for 3
minutes.
DRAFT SYSTEM
§ 229.61 Draft system.
(a) A coupler may not have any of the following conditions:
(1) A distance between the guard arm and the knuckle
nose of more than 5! inches on standard type couplers
(MCB contour 1904) or more than 5 %, inches on D&E
couplers.
(2) A crack or break in the side wall or pin bearing
bosses outside of the shaded areas shown in Figure 1 or
in the pulling face of the knuckle.
Figure l
(3) A coupler assembly without anticreep protection.
(4) Free slack in the coupler or drawbar not absorbed
by friction devices or draft gears that exceeds one-half
inches.
(5) A broken or cracked coupler carrier.
(6) A broken or cracked voke.
(7) A broken draft gear.
(b) A device shall be provided under the lower end of all
drawbar pins and articulated connection pins to prevent the
pin from falling out of place in case of breakage.
SUSPENSION SYSTEM
§ 229.63 Lateral motion.
(a) Except as provided in paragraph (b), the total uncon-
trolled lateral motion between the hubs of the wheels and
boxes, between boxes and pedestals or both, on any pair of
wheels may not exceed 1 inch on non-powered axles and
friction bearing powered axles, or % inch on all other
powered axles.
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(b) The total uncontrolled lateral motion may not exceed
1% inches on the center axle of three-axle trucks.
§ 229.64 Plain bearings.
A plain bearing box shall contain visible free oil and may
not be cracked to the extent that it will leak oil.
§ 229.65 Spring rigging.
(a) Protective construction or safety hangers shall be
provided to prevent spring planks, spring seats or bolsters
from dropping to track structure in-event of a hanger or
spring failure.
(b) An elliptical spring may not have its top (long) leaf
broken or any other three leaves broken, except when that
spring is part of a nest of three or more springs and none of
the other springs in the nest has its top leaf or any other
three leaves broken. An outer coil spring or saddle may not
be broken. An equalizer, hanger, bolt, gib, or pin may not
be cracked or broken. A coil spring may not be fully
compressed when the locomotive is at rest.
(c) A shock absorber may not be broken or leaking clearly
formed droplets of oil or other fluid.
§ 229.67 Trucks.
(a) The male center plate shall extend into the female
center plate at least % inch. On trucks constructed to
transmit tractive effort through the center plate or center
pin, the male center plate shall extend into the female center
plate at least 112 inches. Maximum lost motion in a center
plate assemblage may not exceed 4 inch.
(b) Each locomotive shall have a device or securing
arrangement to prevent the truck and locomotive body from
separating in case of derailment.
(c) A truck may not have a loose tie bar or a cracked or
broken center casting, motor suspension lug, equalizer,
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hanger, gib or pin. A truck frame may not be broken or
have a crack in a stress area that may affect its structural
integrity.
§ 229.69 Side bearings.
(a) Friction side bearings with springs designed to carry
weight may not have more than 25 percent of the springs in
any one nest broken.
(b) Friction side bearings may not be run in contact
unless designed to carry weight. Maximum clearance of side
bearings may not exceed one-fourth inch on each side or a
total of one-half inch on both sides, except where more than
two side bearings are used under the same rigid superstruc-
ture. The clearance on one pair of side bearings under the
same rigid superstructure shall not exceed one-fourth inch
on each side or a total of one-half inch on both sides: the
other side bearings under the same rigid superstructure may
have one-half inch clearance on each side or a total of 1 inch
on both sides. These clearances apply where the spread of
the side bearings is 50 inches or less; where the spread is
zreater, the side bearing clearance may only be increased
proportionately.
§ 229.71 Clearance above top of rail.
No part or appliance of a locomotive except the wheels,
flexible nonmetallic sand pipe extension tips, and trip cock
arms may be less than 2! inches above the top of rail.
§ 229.73 Wheel sets.
(a) The variation in the circumference of wheels on the
same axle may not exceed % inch (two tape sizes) when
applied or turned.
(b) The maximum variation in the diameter between anv
two wheel sets in a three-powered-axle truck may not exceed
¥; inch, except that when shims are used at the journal box
E-26
springs to compensate for wheel diameter variation, the
maximum variation may not exceed 114 inch. The maximum
variation in the diameter between any two wheel sets on
different trucks on a locomotive that has three-pow ered-axle
trucks may not exceed 144 inch. The diameter of a wheel
set is the average diameter of the two wheels on an axle.
(c) On stancard guage locomotives. the distance between
the inside gauge of the flanges on non-wide flange wheels
mas not be less than 53 inches or more than 53% inches.
The distance between the inside gauge of the flanges on
wide flange wheels may not be less than 53 inches or more
than 53% inches.
(d) The distance back to back of flanges of wheels mounted
on the same axle shall not vary more than % inch.
229.75 Wheels and tire defects.
Wheels and tires may not have any of the following
conditions:
(a) A single flat spot that is 242 inches or more in length,
or two adjoining spots that are each two or more inches in
length.
(b) A gouge or chip in the flange that is more than 1'%
inches in length and ‘2 inch in width.
(c) A broken rim. if the tread, measured from the flange
at a point five-eighths inch above the tread. is less than 3%
inches in width. ;
(d) A shelled-out spot 242 inches or more in length. or
two adjoining spots that are each two or more inches in
length.
(e) A seam running lengthwise that is within 3% inches
of the flange.
(f) A flange worn to a % inch thickness or less. gauged at
a point % inch above the tread.
E-27
(g) A tread worn hollow %, inch or more on a locomotive
in road service or ¥% inch or more on a locomotive in
switching service.
(h) A flange height of 112 inches or more measured from
tread to the top of the flange.
(i) Tires less than 14 inches thick.
(j) Rims less than 1 inch thick on a locomotive in road
service or less than % inch on a locomotive in yard service.
(k) A crack or break in the flange, tread, rim, plate, or
hub.
(1) A loose wheel or tire.
(m) Fusion welding may not be used on tires or steel
wheels of locomotives, except for the repair of flat spots and
worn flanges on locomotives used exclusively in yard service.
A wheel that has been welded is a welded wheel for the life
of the wheel.
ELECTRICAL SYSTEM
§ 229.77 Current collectors.
(a) Pantographs shall be so arranged that they can be
operated from the engineer's normal position in the cab.
Pantographs that automatically rise when released shall have
an automatic locking device to secure them in the down
position. -
(b) Each pantograph operating on an overhead trolley
wire shall have a device for locking and grounding it in the
lowest position, that can be applied and released only from
a position where the operator has a clear view of the panto-
graph and roof without mounting the roof.
§ 229.79 Third rail shoes.
When locomotives are equipped with both third rail and
overhead collectors, third-rail shoes shall be deenergized
E-25
while in yards and at stations when current collection is
exclusively from the overhead conductor.
§ 229.51 Emergency pole; shoe insulation.
(a) Each locomotive equipped with a pantograph opera-
ting on an overhead trolley wire shall have an emergency
pole suitable for operating the pantograph. Unless the entire
pole can be safely handled, the part of the pole which can
be safely handled shall be marked to so indicate. This pole
shall be protected from moisture when not in use.
(b) Each locomotive equipped with third-rail shoes shall
have a device for insulating the current collecting apparatus
from the third rail.
§ 229.83 Insulation or grounding of metal parts.
All unguarded noncurrent-carrying metal parts subject to
becoming charged shall be grounded or thoroughly
insulated.
§ 229.85 Doors and cover plates marked “Danger”.
All doors and cover plates guarding high voltage equip-
ment shall be marked “Danger—High Voltgage” or with the
word “Danger” and the normal voltage carried by the parts
so protected.
§ 229.87 Hand-operated switches.
All hand-operated switches carrying eurrents with a poten-
tial of more than 150 volts that may be operated while under
load shall be covered and shall be operative from the outside
of the cover. Means shal! be provided to show whether the
switches are open or closed. Switches that should not be
operated while under load shall be legibly marked with the
words “must not be operated under load” and the voltage
carried.
E-29
§ 229.89 Jumpers; cable connections.
(a) Jumpers and cable connections between locomotives
shall be so located and guarded to provide sufficient vertical
clearance. They may not hang with one end free.
(b) Cable and jumper connections between locomotive
may not have any of the following conditions:
(1) Broken or badly chafed insulation.
(2) Broken plugs, receptacles or terminals.
(3) Broken or protruding strands of wire.
§ 229.91 Motors and generators.
A motor or a generator may not have any of the following
conditions:
(a) Be shorted or grounded.
(b) Throw solder excessively.
(c) Show evidence of coming apart.
(d) Have an overheated support bearing.
(e) Have an excessive accumulation of oil.
INTERNAL COMBUSTION EQUIPMENT
§ 229.93 Safety cut-off device.
The fuel line shall have a safety cut-off device that—
(a) Is located adjacent to the fuel supply tank or in
another safe location;
(b) Closes automatically when tripped and can be reset
without hazard; and
(c) Can be hand operated from clearly marked locations,
one inside the cab and one on each exterior side of the
locomotive.
E-30
§ 229.95 Venting.
Fuel tank vent pipes may not discharge on the roof nor
on or between the rails.
§ 229.97 Grounding fuel tanks.
Fuel tanks and related piping shall be electrically
grounded.
§ 229.99 Safety hangers.
Drive shafts shall have safety hangers.
§ 229.101 Engines.
(a) The temperature and pressure alarms, controls and
related switches of internal combustion engines shall func-
tion properly.
(b) Whenever an engine has been shut down due to
mechanical or other problems, a distinctive warning notice
giving reason for the shut-down shall be conspicuously
attached near the engine starting control until repairs have
been made.
(c) Wheel slip/slide protection shall be provided on a
locomotive with an engine displaying a warning notice when-
ever required by § 229.115(b).
STEAM GENERATORS
§ 229.103 Safe working pressure; factor of safety.
The safe working pressure for each steam generator shall
be fixed by the chief mechanical officer of the carrier. The
minimum factor of safety shall be four. The fixed safe
working pressure shall be indicated on FRA Form F 6180-
49A.
E-31
§ 229.105 Steam generator number.
An identification number shall be marked on the steam
generator’s separator and that number entered on FRA Form
F 6180-49A.
§ 229.107 Pressure gauge.
(a) Each steam generator shal! have an illuminated steam
gauge that correctly indicates the pressure. The steam
pressure gauge shall be graduated to not less than one and
one-half times the allowed working pressure of the steam
generator. =
(b) Each steam pressure gauge on a steam generator shall
have a siphon that prevents steam from entering the gauge.
The pipe connection shall directly enter the separator and
shall be steam tight between the separator and the gauge.
§ 229.109 Safety valves.
Every steam generator shall be equipped with at least two
safety valves that have a combined capacity to prevent an
accumulation of pressure of more than five pounds per
square inch above the allowed working pressure. The safety
valves shall be independently connected to the separator
and located as closely to the separator as possible without
discharging inside of the generator compartment. The ends
of the safety valve discharge lines shall be located or pro-
tected so that discharged steam does not create a hazard.
§ 229.111 Water-flow indicator.
(a) Steam generators shall be equipped with an illumi-
nated visual return water-flow indicator.
(b) Steam generators shall be equipped with an operable
test valve or other means of determining whether the steam
generator is filled with water. The fill test valve may not
discharge steam or hot water into the steam generator
compartment.
E-32
~§ 229.113 Warning notice.
Whenever any steam generator has been shut down be-
cause of defects, a distinctive warning notice giving reasons
for the shut-down shall be conspicuously attached near the
steam generator starting controls until the necessary repairs
have been made. The locomouve in which the steam genera-
tor displaving a warning notice is located may continue in
service until the next periodic inspection.
CaBs AND CAB EQUIPMENT
§ 229.115 Slip/slide alarms
(a) Except for MU locomotives, each locomotive used in
road service shall be equipped with a device that provides
an audible or visual alarm in the cab of either slipping or
sliding wheels on powered axles under power. When two
or more locomotives are coupled in multiple or remote
control, the wheel slip/slide alarm of each locomotive shall
be shown in the cab of the controlling locomotive.
(b) Except as provided in § 229.9, an equipped locomotive
may not be dispatched in road service, or continue in road
service following a daily inspection, unless the wheel
slip/slide protective device of whatever type—
(1) Is functioning for each powered axle under power;
and
(2) Would function on each powered axle if it were
under power.
(c) Effective January 1, 1981, all new locomotives capable
of being used in road service shall be equipped with a device
that detects wheel slip/slide for each powered axle when it
is under power. The device shall produce an audible or
visual alarm in the cab.
E-33
§ 229.117 Speed indicators.
(a) After December 31, 1980, each locomotive used as a
controlling locomotive at speeds in excess of 20 miles per
hour shall be equipped with a speed indicator which is—
(1) Accurate within +3 miles per hour of actual speed
at speeds of 10 to 30 miles per hour and accurate within
+5 miles per hour at speeds above 30 miles per hour;
and
(2) Clearly readable from the engineer's normal position
under all light conditions.
(b) Each speed indicator required shall be tested as soon
as possible after departure by means of speed test sections
or equivalent procedures.
§ 229.119 Cabs, floors, and passageways.
(a) Cab seats shall be securely mounted and braced. Cab
doors shall be equipped with a secure and operable latching
device.
(b) Cab windows of the lead locomotive shall provide an
undistorted view of the right-of-way for the crew from
their normal position in the cab. (See also, Safety Glazing
Standards, 49 CFR Part 223, 44 FR 77348, Dec. 31, 1979.)
(c) Floors of cabs, passageways, and compartments shall
be kept free from oil, water, waste or any obstruction that
creates a slipping, tripping or fire hazard. Floors shall be
properly treated to provide secure footing.
(d) The cab shall be provided with proper ventilation and
with a heating arrangement that maintains a temperature of
at least 50 ‘degrees Fahrenheit 6 inches above the center of
each seat in the cab.
(e) Similar locomotives with open end platforms coupled
in multiple control and used in road service shall have a
means of safe passage between them; no passageway is
E-34
required through the nose of car body locomotives. There
shall be a continuous barrier across the full width of the end
of alocomotive or a continuous barrier between locomotives.
(f) Containers shall be provided for carrying fusees and
torpedoes. A single container may be used if it has a partition
to separate fusees from torpedoes. Torpedoes shall be kept
in a closed metal container.
§ 229.121 Locomotive cab noise.
(a) After August 31, 1980, the permissible exposure to a
continuous noise in a locomotive cab shall not exceed an
eight-hour time-weighted average of Q9O0dB(A), with a
doubling rate of 5dB(A) as indicated in the table. Continuous
noise is any sound with a rise time of more than 35 milli-
seconds to peak intensity and a duration of more than 500
milliseconds to the time when the level is 20dB below the
peak.
Sound
Duration permitted (hours) level
(dB(A))
Wiles is bunbsecuacasdagebbevubelcicasenanecanasianisiaaasmeenbadunsdacdasiens 87
_ ree ieeiiabnekaatdudabanasaata inner tisaieddads a eeseaaniaie abs 90
i caciaiebshshihacesddtcinenadianitasbiccidens hia aieaietaaiatiesandasennatabaieseacaes 92
Tcsicudinviedabeinciedeushadkieianciicanedecmuviedacuniiumaanesammananciies 95
_ SEER AO TET EN ANAS OR A ON OTN 100
at daiapuaelasibicscenaphiccenidaiinubsbtaiannRinubiieusueedianauicuatave nanan 102
I isc icecauhsnas tikes gpeahcacshasigase bblaniadacitiuiaeeates apmiciaesdinabealeiaais 105
Ti sshd uke ahesteiniaiocaniesckbansiaedionnsekueanaugienensiontalans 110
ME NE eiticnicistastnarncsidseoeasanesandahsatiionanekuannen 115
(b) When the continuous noise exposure is composed of
two or more periods of noise exposure of different levels,
their combined effect shall be considered. Exposure to
different levels for various periods of time shall be computed
according to the following formula:
D = T,/L, + T:/L: . ee .T2/L2
E-35
Where:
D = noise dose.
T = the duration of exposure (in hours) at a given
continuous noise level.
L = the limit (in hours) for the level present during
the time T (from the table).
If the value of D exceeds 1, the exposure exceeds permissi-
ble levels.
(c) Exposure to continuous noise shall not exceed
115dB(A).
(d) Noise measurements shall be made under typical oper-
ating conditions using a sound level meter conforming, at a
minimum, to the requirements of ANSI $1.4-1971, Type 2,
and set to an A-weighted slow response or with an audiodosi-
meter of equivalent accuracy and precision.
(e) In conducting sound level measurements with a sound
level meter, the microphone shall be oriented vertically and
positioned approximately 15 centimeters from and on axis
with the crew member's ear. Measurements with an audio-
dosimeter shall be conducted in accordance with manufac-
turer's procedures as to microphone placement and
orientation.
§ 229.123 Pilots, snowplows, end plates.
After January 1, 1981, each lead locomotive shall be
equipped with an end plate that extends across both rails, a
pilot, or a snowplow. The minimum clearance above the
rail of the pilot. snowplow or end plate shall be 3 inches,
and the maximum clearance 6 inches.
§ 229.125 Headlights.
(a) Each lead locomotive used in road service shall have
a headlight that produces at least 200,000 candela. If a
E-36
locomotive or locomotive consist in road service is regularly
required to run backward for any portion of its trip other
than to pick up a detached portion of its train or to make
terminal movements, it shall also have on its rear a headlight
that produces at least 200,000 candela. Each headlight shall
be arranged to illuminate a person at least 800 feet ahead
and in front of the headlight.
(b) Each locomotive or locomotive consist used in yard
service shall have two headlights, one located on the front
of the locomotive or locomotive consist and one on its rear.
Each headlight shall produce at least 60,000 candela and
shall be arranged to illuminate a person at least 300 feet
ahead and in front of the headlight.
(c) Headlights shall be provided with a device to dim the
light.
§ 229.127 Cab lights.
(a) Each locomotive shall have cab lights which will pro-
vide sufficient illumination for the control instruments,
meters, and gauges to enable the engine crew to make
accurate readings from their normal positions in the cab.
These lights shall be located, constructed, and maintained
so that light shines only on those parts requiring illumination
and does not interfere with the crew’s vision of the track
and signals. Each controlling locomotive shall also have a
conveniently located light that can be readily turned on and
off by the persons operating the locomotive and that provides
sufficient illumination for then: to read train orders and
timetables.
(b) Cab passageways and compartments shall have ade-
quate illumination.
§ 229.129 Audible warning device.
(a) After August 31, 1980, each lead locomotive shall be
provided with an audible warning device that produces a
E-37
minimum sound level of 96db(A) at 100 feet forward of the
locomotive in its direction of travel. The device shall be
arranged so that it can be conveniently operated from the
engineer's normal position in the cab.
(b) Measurement of the sound level shall be made using
a sound level meter conforming, at a minimum, to the
requirements of ANSI $1.4-1971, Type 2, and set to an
A-weighted slow response. While the locomotive is on level
tangent track, the microphone shall be positioned 4 feet
above the ground at the center line of the track, and shall
be oriented with respect to the sound source in accordance
with the manufacturer’s recommendations.
(c) A 4dB(A) measurement tolerance is allowable for a
given measurement.
§ 229.131 Sanders.
Except for MU locomotives, each locomotive shall be
equipped with operable sanders that deposit sand on each
rail in front of the first power operated wheel set in the
direction of movement.
Subpart D—Design Requirements
§ 229.141 Body structure, MU locomotives.
(a) MU locometives built new after April 1, 1956 that are
operated in trains having a total empty weight of 600,000
pounds or more shall have a body structure designed to meet
or exceed the following minimum specifications:
(1) The body structure shall resist a minimum static end
load of 800,000 pounds at the rear draft stops ahead of
the bolster on the center line of draft. without developing
any permanent deformation in any member of the body
structure.
i
E-35
(2) An anti-climbing arrangement shall be applied at
each end that is designed so that coupled MU locomotives
under full compression shall mate in a manner that will
resist one locomotive from climbing the other. This
arrangement shall resist a vertical load of 100,000 pounds
without exceeding the vield point of its various parts or
its attachments to the body structure.
(3) The coupler carrier and its connections to the body
structure shall be designed to resist a vertical downward
thrust from the coupler shank of 100,000 pounds for any
horizontal position of the coupler, without exceeding the
yield points of the materials used. When yielding type of
coupler carrier is used, an auxiliary arrangement shall be
provided that complies with these requirements.
(4) The outside end of each locomotive shall be pro-
vided with two main vertical members one at each side of
the diaphragm opening, each main member shall have an
ultimate shear value of not less than 300,000 pounds at a
point even with the top of the underframe member to
which it is attached. The attachment of these members
at bottom shall be sufficient to develop their full shear
value. If reinforcement is used to provide the shear value,
the reinforcement shall have full value for a distance of
18 inches up from the underframe connection and then
taper to a point approximately 30 inches above the under-
frame connection.
(5) The strength of the means of locking the truck to
the body shall be at least the equivalent of an ultimate
shear value of 250,000 pounds.
(b) MU locomotives built new after April 1, 1956 that are
operated in trains having a total empty weight of less than
600,000 pounds shall have a body structure designed to
meet or exceed the following minimum specifications:
(1) The body structure shall resist a minimum static end
load of 400,000 pounds at the rear draft stops ahead of
E-39
the bolster on the center line of draft, without developing
any permanent deformation in any member of the body
structure.
(2) An anti-climbing arrangement shall be applied at
each end that is designed so that coupled locomotives
under full compression shall mate in a manner that will
resist one locomotive from climbing the other. This
arrangement shall resist a vertical load of 75,000 pounds
without exceeding the yield point of its various parts or
its attachments to the body structure.
(3) The coupler carrier and its connections to the body
structure shal! be designed to resist a vertical downward
thrust from the coupled shank of 75,000 pounds for any
horizontal position of the coupler, without exceeding the
vield points of the materials used. When a vielding tvpe
of coupler carrier is used, an auxiliary arrangement shall
be provided that complies with these requirements.
(4) The outside end of each MU locomotive shall be
provided with two main vertical members, one at each
side of the diaphragm opening: each main member shall
have an ultimate shear value of not less than 200,000
pounds at a point even with the top of the underframe
member to which it is attached. The attachment of these
members at bottom shall be sufficient to develop their full
shear value, the reinforcement shall have full value for a
distance of 18 inches up from the underframe connection
and then taper to a point approximately 30 inches above
the underframe connection.
(5) The strength of the means of locking the truck to
the body shall be at least the equivalent of an ultimate
shear value of 250,000 pounds.
APPENDIX A—Formi FRA 6180—49A
EpitoriaL Notre Appendix A. published at 45 FR 211158,
Mar. 31, 1980, as part of the original document, is not
carried in the CFR. Copies of Form FRA F6180—49A are
available by contacting the Federal Railroad Administration,
Office of Standards and Procedures, 400 7th St., SW., Wash-
ington, DC 20590
E-40
APPENDIX B—SCHEDULE oF Civit Penacties’
|See footnotes at the end of table. |}
Violation
Intentional-
violation
Subpart A—General
‘
» 229.5
Prohibited acts
Safet, deficiencies
not governed by specific regulation: To be
assessed on relevant facts
$250-2.500
§$250-2.500
$229.9 Movement of non-complying loco-
SINUS ccscccecssvis siasnbnensbippiesadadueatanssenihecieh (’) (’)
§ 229.11 Locomotive identification .............. 250 500
£229.13 Control of locomotives.....00........... 1.000 1.500
AG OW OPIN SII cath acanitccisunistsonenrdeeenivakn 250 500
$229.17 Accident reports ................0000000000 1.000 1.500
S SEER: FRONT WN IIUS cccccccsicsnscesvescsestsssceses (*) (*)
Subpart B—Inspections and Tests
§229.2)1 Daily inspection |
ia)(b)
i) Inspection overdue 00000000 $500) $1.000
(ii) Inspection report not made. mmprop- |
erly executed. or not retained... 250 500)
ic) Inspection not pertonmed by a qualified
person padgannenssentebenea 500 75
$229.23 Perunlic inspection General
ialib)
(1) Inspection overdue eet | 1.000 2000
Gi) Inspection pertormed mnproperly or |
at a location where the underneath por- |
thon cannot be safely inspected | 750 1.500
ichd .
) Fomn missing ee as a su 1.000
(ii) Form not properly displaved ........... 250) 500
(ii) Form improperly executed 50) 1.00)
ehh) 250 500)
229.25 Tests: Every penodic inspection 1.000 2.000
‘22927 Annual tests 1.000 2000
$229.29 Biennial tests | 1.000 | 2000
$229.3] Main reser: oir tests
iahih | 750) 1.250
ichd) | 1.000 1500
© 229.33 Out-ot-use credit | 250 sau
E-4]
APPENDIX B—SCHEDULE OF CIVIL
Pexatries' —Continued
|See footnotes at the end of table. |
Intentional’
Violation violation
Subpart C—Safety Requirements
} 229.41 Protection against personal injury . ss $750
§ 229 43 Exhaust and batters gases 750 1 000
§ 229.45 General condition To be assessed |
“a we we
Sn nn On on on oe al
based on relevant facts
229 46 Brakes General
229 47 Emergency brake valve
229.45 Main reservoir system
(a)
(bie)... Ae
229.51 Aluminum main reser oirs .
229.53 Brake gauges
229.55 Piston travel!
229.57 Foundation brake gear eras
229.59 Leakage ..... Pn
229.61 Draft svstem
229.63 Lateral motion
229.44 Plain beanngs.
229.65 Spring rigging 5
229.67 Truchs....... conidia
229.69 Side bearings ......... peelaiaiaie
229 71 Clearance ahove top of rail ..
229.73 Wheel sets Ne
229.75 Wheel and tire defects
(aid) Shid flat or shelled spots):
(it) Two adjoining spots each of which is
more than 2” but less than 242” in length
On) Two adjoining spots each of which
are at least 2” in length if either spot is
2's" or more in length ...........
tb) Gouge or chip in flange of
i) More than 142” but less than 1%” in
length and more than 2” but less than
ag GEER A
ii) 1%” of more in leneth and %” or
more in width
ic) Broken nim. at SRR RAM PR a RRL
ie) Seam in tread PER Ded EPS OI
250-2.500
1.000
500
70
500
500
500
x00
Tau
500
00
500
750
750
500)
750
000
500
—
—
750)
1.500
1a
1.3500
1.000
1500
1.000
500
250-2. 500
1.500
750
—
250
on
06
750
750
250
750
500
750
1.250
1.250
1.000
1.250
1.500
1.000
~— —
Se
ee
1.000
2000
1.500
2.000
1.500
2000
1500
1.000
F-42
APPENDIX B—SCHEDULE OF CIVIL
Pensities'—Continued
[See footnotes at the end of table. |}
Intentional-
Violation violation
Wf) Flange thickness of
O) or less but more than |), 1500 200
iii) ' hy.” or less 20 2500
(¢) Tread worn hollow “su 1.000
(hi) Flange height of
i) 19S” or greater but less than 1% 1300} 2 000
(i) 1°." or more _ 2000 2500
i) Tire thickness 750 1.250
Y! Row thickness
)) Less than 1” in road sersice and %” in |
varcLsersice es) 1500 2 000
i) '4.” of less in road service aaa uf "|
- m vard service | 2000 2500
th) Cracked or broken
(i) Crack of less than 1’ 1.250 1.730
(ii) Crack of 1” or more 2 000 2500
|
(iii) Break | 2500 2500
(})} Loose wheel or tire. | 1500 2000
in) Welded wheel or tire 2000 2500
‘2 229 77 Current collectors a ee 500 1 000
$229.79 Third rail shoes and lcci SPAS, 500 1.000
$229.51 Emergency pole: shoe insulation ... 500 1.000
§ 229.453 Insulation or grounding of metal |
lelschasctonsentpibeonbendvtsecseevesaoatniebecnscceneesies Loon 1.500
$229.85 Door and cover eau marked
: s_, a a local SM | 750
$229.57 Hand operated suttehes.. | 500) 750
|
§ 229.459 Jumpers: cable connections
UD cdnidihedaaade R WIERD ana Whe 500 750
ih) Peabo He. soe She MaRS rcs 100g 1500
229.91 Motors and generators ............. Loo 1500
» 229.93 Satets cut-off device . amet sau 750
$229.95 Venting pee ase 500 730
£229 97 Grounding tuel tanks | S00 750
} 229.99 Satets hangers el su 75
) 229 10) Engines |
-
ia) 1.000 1.500
ib) fei BTED 750
ic) | 1008 1.500
§229.103 Sale working pressure: factor of |
satety ; ; 500 750
E-43
Aprenpdix B—SCHEDULE OF CIVIL
Prenatics!'—Continued
[See footnotes at the end of table.}
Intentional-
Violation violation
pa. a
§ 229.105 Steam generator number.............. 250) 500
© 220.10, Peesnre audee............................. 500 1.000
PSae. Few Gaeeey earees................................ 1.000 1.500
$229.11! Water-tlow mdicator.......00...0...... 500 730
$ 229.113 Warning notice .................0000..... 500 "30
$ 229.115 Sligr/slide alarins...................c0000.0 1.000 1.300
$229.117 Speed indicators ..............0.....000. 750 1.000
) 229.119 Cabs. floors. and passageways:
(a)
i) Cab seat not securely mounted or
Ne canrersecesss 1.000 1.500
. - }
(ii) Insecure or moperative latching
SS I A 500 1.000
OS 500 750
$229.12) Locomotive cab noise ..0...00.......... 500 750
§ 229.123 Pilots. snowplows. and plates ....... 500 1.000
ON 1.000 -1.500
Ce ec. censcsrevessesasess 750 1.250
§ 229.129 Audible warning device ............... 500 750
SSS LTD 500 1.000
Subpart D—Design Requirements
§ 229.141 Bods structure. MU locomotives... 500 1.000
45 USC. 34 requires the Secretary of Transportation to assess a penalty of
not less than $250 nor more than $2.500 for each and every violation of the
Locomotive Inspection Act or any rule or regulation prosaulgated under that
statute.
- For purposes of this schedule. an intentional violation is the Knowing and
willful failure of acarnerto comply with the provisions of this part. The know ledge
required tor an intentional violation is knowledge of the facts constituting the
siglation. Knowledge of the regulations is presumed by law. Evidence that a
violation has been committed or has been allowed to continue after an FRA
inspector has provided the center notification of non-compliance with this part is
~ prima facie evidence that the violation was knowing and willtul. Evidence that a
repair has been made to a locomotive part or appurtenance but that such part or
appurtenance was not brought into full compliance with this part is prima facie
evidence that the siolation was knowing and willful.
‘Failure to observe any condition for movement set forth im paragraph (a) of
§ 229.9 will deprive the carrier of the exception and make the carrier liable for
penalty under §§ 229 7 through 229.141.
* Failure to comply with this provision will result in the lapse of any affected
waver.
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APPENDIX C—FRA LOCOMOTIVE
STANDARDS—CODE OF DEFECTS
EpiroriaL Note: Appendix C, published at 45 FR 21121,
Mar. 31, 1980, as part of the original document, is not
carried in the CFR.
PART 230—LOCOMOTIVE
INSPECTION
AuTuority: Secs. 1, 2, 5, 9, 36 Stat. 913, 914 (45 tp eo
22, 23, 28, 34): sec. 6(e) and (f), 80 Stat. 939, 940 (49
U.S.C. 1655(e) and (f))
§ 230.0 Steam powered locomotives.
(a) No railroad may use a steam powered locomotive on
its line unless that locomotive meets the requirements of 49
CFR Part 230, Subpart A (§ § 230.1 to 230.55) and Subpart
B (§ § 230.101 to 230.162) as in effect on October 1, 1978.
(b) Any interested person may consult the October 1,
1978 revision of 49 CFR Parts 200-999 or obtain a copy
of these regulations by contacting the Federal Railroad
Administration, Office of Standards and Procedures, 400 7th
St., S.W., Washington, D.C. 20590.
[45 FR 21109, Mar. 31, 1980]
PART 231—RAILROAD SAFETY
APPLIANCE STANDARDS
231.1 Box and other house cars built or placed in service
before October 1, 1966.
231.2 — cars and high-side gondolas with fixed
ends.
231.3. Drop-end high-side gondola cars.
231.4 Fixed-end low-side gondola and low-side hopper
cars.
231.5 Drop-end low-side gondola cars.
231.6 Flat cars.
231.7 Tank cars with side platforms.
231.8 Tank cars without side sills and tank cars with short
side sills and end platforms.
231.9 Tank cars without end sills.
- E-45
minimum clearance of 2 inches around handle.
(4) Manner of application. Uncoupling levers shall be
securely fastened with bolts or rivets.
(g) Couplers. Locomotives shall be equipped with auto-
matic couplers at rear of tender and front of locomotive.
§ 231.16 Steam locomotives used in switching service.
(a) Footboards—(1) Number. Two or more.
(2) Dimensions. (i) Minimum width of tread, 10 inches.
(ii) Minimum height of back stop, 4 inches above tread.
(iii) Height from top of rail to top of tread, not more
than 12 nor less than 9 inches.
(iv) If made of wood, minimum thickness of tread shall
be 114, preferably 2 inches.
(v) Footboards may be made of material other than
wood which provides the same as or a greater degree of
safety than wood of 114 inches thickness. When made of
material other than wood, the tread surface shall be of
antiskid design and constructed with sufficient open space
to permit the elimination of snow and ice from the tread
surface.
(3) Location. Ends or sides. If on ends, they shall extend
not less than 18 inches outside of guage of straight track,
and shall be not more than 12 inches shorter than buffer-
beam at each end.
(4) Manner of application. (i) End footboards may be
constructed in two sections, provided that practically all
space on each side of coupler is filled; each section shall
be not less than 3 feet in length.
(ii) Footboards shall be securely bolted to two 1- by 4-
inch metal brackets. provided footboard is not cut or
notched at any point.
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(iii) If footboard is cut or notched or in two sections,
not less than four 1- by 3-inch metal brackets shall be
used, two located on each side of coupler. Each bracket
shall be securely bolted to buffer-beam, end sill or tank
frame by not less than two %-inch bolts.
(iv) If side footboards are used, a substantial handhold
or rail shall be applied not less than 30 inches nor more
than 60 inches above tread or footboard.
(b) Sill steps—(1) Number. Two or more.
(2) Dimensions. (i) Lower tread of step shall be not less
than § by 12 inches, metal. (May have wooden treads.)
(ii) If stirrup steps are used, clear length of tread shall
be not less than 10, preferably 12, inches.
(3) Location. One or more on each side at gangway
secured to locomotive or tender.
(4) Manner of application. Sill steps shall be securely
fastened with bolts or rivets.
(c) End handholds—(1) Number. Two.
(2) Dimensions. Minimum diameter, 1 inch, wrought
iron or steel. Minimum clearance, 4 inches, except at
coupler casting or braces when minimum clearance shall
be 2 inches.
(3) Location. One on pilot, buffer-beam: one on rear
end of tender, extending across front end of locomotive
and rear end of tender. Ends of handholds shall be not
more than 6 inches from ends of buffer-beam or end sill,
securely fastened at ends.
(4) Manner of application. End handholds shall be
securely fastened with bolts or rivets.
(d) Side handholds—(1) Number. Four.
(2) Dimensions. Minimum diameter, seven-eighths of
an inch, wrought, iron or steel. Clear length equal to
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approximate height of tank. Minimum clearance, 2, pref-
erably 214 inches.
(3) Location. Vertical. One on each side of tender near
front corner; one on each side of locomotive at gangway.
(4) Manner of application. Side handholds shall be
securely fastened with bolts or rivets.
(e) Uncoupling lecers—(1) Number. Two double levers,
operative from either side.
(2) Dimensions. (i) Handles of front-end levers shall be
not more than 12, preferably 9, inches from ends of buffer-
beam, and shall be so constructed as to give a minimum
clearance of 2 inches around handle.
(ii) Rear-end levers shall extend across end of tender
with handles not more than 12, preferably 9, inches from
side of tender, with a guard bent on handle to give not
less than 2 inches clearance around handle.
(3) Location. One on rear end of tender and one on
front end of locomotive.
(f) Handrails and steps for headlights. Switching locomo-
tives with sloping tenders with manhole or headlight located
on sloping portion of tender shall be equipped with secure
steps and handrail or with platform and handrail leading to
such manhole or headlight.
(¢) End-ladder clearance. No part of locomotive or tender
except draft rigging, coupler and attachments, safety chains,
buffer block, footboard, brake pipe, signal pipe, steam-heat
pipe or arms of uncoupling lever shall extend to within 14
inches of a vertical plane passing through the inside face of
knuckle when closed with horn of coupler against buffer
block or end sill.
(h) Couplers. Locomotives shall be equipped with auto-
matic couplers at rear of tender and front of locomotive.
E-45
§ 231.17 Specifications common to all steam locomotives.
(a) Hand brakes.
(1) Hand brakes will not be required on locomotives
nor on tenders when attached to locomotives.
(2) If tenders are detached from locomotives and used
in special service, they shall be equipped with efficient
hand brakes.
(b) Running boards—
(1) Number. Two.
(2) Dimensions. Not less than 10 inches wide. If of
wood, not less than 1? inches in thickness; if of metal, not
less than three-sixteenths of an inch, properly supported.
(3) Location. One on each side of boiler extending from
cab to front end near pilot-beam. (Running boards may
be in sections. Flat-top steamchests may form section of
running board.)
(4) Manner of application. (i) Running boards shall be
securely fastened with bolts, rivets, or studs.
(ii) Locomotives having Wootten type boilers with cab
located on top of boiler more than 12 inches forward from
boiler head shall have suitable running boards running
from cab to rear of locomotive, with handrailings not less
than 20 nor more than 48 inches above outside edge of
running boards, securely fastened with bolts, rivets, or
studs.
(c) Handrails—
(1) Number. Two or more.
(2) Dimensions. Not less than 1 inch in diameter,
wrought iron or steel.
(3) Location. One on each side of boiler extending from
near cab to near front end of boiler, and extending across
E-49
front end of boiler. and extending across front end of
boiler, not less than 24 nor more than 66 inches above
running board.
(4) Manner of application. Handrails shall be securely
fastened to boiler.
(d) Tenders of Vanderbilt type. (1) Tenders known as the
Vanderbilt type shall be equipped with running boards; one
on each side of tender not Jess than 10 inches in width and
one on top of tender not less than 48 inches in width,
extending from coal space to rear of tender.
(2) There shall be a handrail on each side of top running
board, extending from coal space to rear of tank, not less
than 1 inch in diameter and not less than 20 inches in
height above running board from coal space to manhole.
(3) There shall be a handrail extending from coal space
to within 12 inches ef rear of tank, attached to each side
of tank above side running board not less than 30 nor
more than 66 inches above running board.
(4) There shall be one vertical end handhold on each
side of Vanderbilt tvpe of tender, located within § inches
of rear of tank extending from within 8 inches of top of
end sill to within S$ inches of side handrail. Post supporting
rear end of side running board, if not more than 2 inches
in diameter and properly located, may form section of
handhold.
(5) An additional horizontal end handhold shall be ap-
plied on rear end of all Vanderbilt tvpe of tenders which
are not equipped with vestibules. Handhold to be located
not less than 30 nor more than 66 inches above top of end
sill. Clear length of handhold to be not less than 48 inches.
(6) Lad
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