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

E-9

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

E-15

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.

E-16

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 —

E-17

(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.

E-18

§ 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.

E-19

§ 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

E-2]

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,

E-22

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,

E-25

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.

E-44

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.

E-46

(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

E-47

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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