Amicus Curiae Brief — Railroad Commission v. Missouri Pacific Railroad

Supreme Court, alk

i a Pe ee

No. 91-1423

Iu the Supreme Court of the United

OCTOBER TERM, 1992

RAILROAD COMMISSION OF TEXAS, ET AL., PETITIONERS

MISSOURI PACIFIC RAILROAD. ET AI

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUT

BRIEF FOR THE UNITED STATES AS AMICUS CURITAE

KENNETH W. STARR

Sol Cc for Cr le ral

STUART M. GERSON

Ass stant Atte rpeed Cre?

Mat REEN E M A\HONEY

WALTER B. MCCORMICK, JR Denuty Soliestor Gen

General Counsel WILLIAM K. KELLEY

PAUL M. GEIER A fant to the Solicitor

Assistant General Counsel General

for Litigation De nartment « f J stice

DALE C. ANDREWS Washington, D.C. 205

Deputy Assistant General (202 214-2217

Counsel for Litigation

Department of Transportation

Washington, D.C. 20590

QUESTION PRESENTED

Whether Texas Administrative Code tit. 16, § 5.619

, which requires railroads to provide walkways

(1988)

adjacent to railroad tracks in certain circumstances, is

preempted by regulations adopted by the Secretary of

Transportation, pursuant to the Federal Railroad Safety

Act of 1970. 45 U.S.C. 4384.

TABLE OF CONTENTS

Statement

Discussion .. :

Conclusion

Appendix ‘

”

TABLE OF AUTHORITIES

Cases:

Black v. Seaboard System R.R., 487 N.E.2d 468

(Ind. Ct. App. 1986). is

Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608

(1992) ace

Florida Lime & Avocado Growers V. Paul, 373 U.S.

132 (1963)

Gade Vv. National Solid Waste Management Ass’n,

112 S. Ct. 2374 (1992) ...... : 10,

Illinois Central Gulf Ry. v. Tennessee Public Serv-

ices Comm’n, 736 S.W.2d 112 (Tenn. Ct. App.

1987)

Missouri Pacific R.R. Vv. Railroad Comm'n:

658 F. Supp. 617 (W.D. Tex. 1987)

833 F.2d 570 (5th Cir. 1987)

850 F.2d 264 (5th Cir. 1988)

Napier Vv. Atlantic Coast Line R.R., 272 U.S. 605

(1926)

Norfolk & Western R.R. v. Burns, 587 F. Supp.

161 (E.D. Mich. 1984)

Norfolk & Western R.R.vV. Public Utilities Comm’n,

926 F.2d 567 (6th Cir. 1991)

Perez Vv. Campbell, 402 U.S. 637 (1971)

Ray v. Atlantic Richfield Co., 485 U.S. 151

(1978)

Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983)

Southern Pacific Transportation v. Public Utilities

Comm'n:

647 F. Supp. 1220 (N.D. Calif. 1986)

820 F.2d 1111 (9th Cir. 1987)

(111)

Page

16

11,17

10, 11

11,15

a a

IV

Statutes and regulations: Pege

Federal Railroad Safety Act of 1970, 45 U.S.C.

I We II seca Acanaccctaaeatenesecnanandsibeia slsseaeechded aSecueun 2

IE tachenccetteescendetintn eaticslisecavenecdanseannetnes 2,10

I eats MI I erascicesccccecicerrcneneivchicaleniceeibeippascnionconbcn’ 10

BG FI sek bh Gs cc cass ck caunceeeannene dace aia 15

1 Sie GD eo certcreinsteatienierca 2, 3, 4, 7, 8, 9, 12, 15, 16

Rail Safety Improvement Act of 1988, Pub. L. No.

100-342, § 19, 102 Stat. 637 (45 U.S.C. 431(n).. 14

Tex. Admin. Code tit. 16 (1988) :

§ 5.619 .......... iat chistindicaagseothaumeeniatane 2, 5, 6, 7, 8, 9, 10, 11, 12

FSC ERR ERIN F nt Iain Bec RS TN ARNE ER ae 2

NI i icsesk cok recaps ihenclacn ebsrutecedttaadein 2

Se II 6h i cocci ccandbabemncncaehaiaceswaneyermaa meena 2,3

UEP ONIND seccceecsnsntcsscrrescicemens ieee reer eee 2

49 C.F.R.:

+ & F

II ce

Section 213.37 ............. Cd dads anaes eeeaeamerateme ee

I MME UD oo geecccccuteemasnntecintensestaceeeccs

ee ee

Pt. 214:

Section 214.103(c) (to be codified) 4,15

2

3

3

III ee 3, 10

3

3

3

4

Miscellaneous:

oe ES ic ) 5,10

42 Fed. Reg. (1977) :

Miscellaneous—Continued : Page

51 Fed. Reg. 17,300-17,301 (1986) _.......00 15

56 Fed. Reg. (1991) :

SIR ie Se ST eS IF 14

LOTR RESTA ET De Ae TOC Ind TANT 15

57 Fed. Reg. (1992) :

88 OO REE Ee aad Se REN RTT E, 4,15, 16

SE NTE Lee RO LIT 4

Letter from John M. Mason, FRA Chief Counsel

to the Texas Railroad Commission (Oct. 17,

Iu the Supreme Court of the United States

OCTOBER TERM, 1992

No. 91-1423

RAILROAD COMMISSION OF TEXAS, ET AL., PETITIONERS

v.

MISSOURI PACIFIC RAILROAD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s order

inviting the Solicitor General to express the views of the

United States.

STATEMENT

Respondents, a group of railroad companies, brought

this action against petitioners Railroad Commission of

Texas and its Commissioners seeking declaratory and in-

junctive relief that certain safety regulations promul-

gated by the Commission are preempted by federal law.

1. The state regulation at issue in this case requires

railroads to construct walkways alongside railroad tracks,

in certain circumstances and in conformity with design

specifications set by the Commission. See Tex. Admin.

‘The term “walkway” is defined by the Commission as “[a]

pathway located alongside a railroad track or railroad switch for

the purpose of providing an area for a railroad employee to perform

(1)

2

Code tit. 16, § 5.619 (1988). Walkways are required in

the following circumstances:

Walkways shall be located along both sides of all

tracks within yards and tracks adjacent thereto so

as to include all points contiguous to yards where

railroad employees normally work on the ground.

Walkways conforming to this standard shall be con-

structed and maintained throughout the area where

mechanical inspections routinely occur.

Id. § 5.619(e). The regulations detail the locations where

walkways are required (id. § 5.619(f)-(h)), and also

prescribe the surface, slope, and width of the walkways

(id. § 5.619(b)-(d)). The purpose of the regulations is

to enhance occupational safety by providing more secure

footing for railroad employees working alongside the

tracks. Pet. 4. The question presented is whether these

walkway regulations are preempted by federal law.

2. a. In 1970, Congress enacted the Federal Railroad

Safety Act of 1970 (FRSA), 45 U.S.C. 421, 431 et seq., to

“promote safety in all areas of railroad operations and

to reduce railroad-related accidents.” 45 U.S.C. 421. To

that end, FRSA gives the Secretary of Transportation

authority to promulgate regulations relating to railroad

safety. The Secretary has in turn delegated that authority

to the Administrator of the Federal Railroad Adminis-

tration (FRA). 49 C.F.R. 1.49(m).

FRSA also provides that regulations issued by the Sec-

retary preempt any state requirement if the “subject

matter” has been ‘“‘cover[ed]” by the Secretary, unless the

state requirement represents a supplemental (but not

conflicting) response to an “essentially local safety haz-

ard.” 45 U.S.C. 434. This express preemption provision

states in its entirety:

duties associated with that track.” Tex. Admin. Code tit. 16,

§ 5.619(a)(1) (1988).

3

The Congress declares that laws, rules, regula-

tions, orders, and standards relating to railroad

safety shall be nationally uniform to the extent prac-

ticable. 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 cov-

ering the subject matter of such State requirement.

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 incompatible with any Federal

law, rule, regulation, order, or standard, and when

not creating an undue burden on interstate commerce.

45 U.S.C. 434.

b. Over the last two decades, the Secretary has exer-

cised his delegated rulemaking authority to issue exten-

sive safety regulations relating to railroad operations.

The overall safety program adopted by FRA is set forth

in Parts 200-240 of Title 49 of the Code of Federal

Regulations.

Subpart B of Part 213 directly establishes the mini-

mum safety requirements a railroad must satisfy “for

roadbed and areas immediately adjacent to roadbed.” 49

C.F.R. 213.31.2. The regulations impose two principal

requirements. First, a railroad must ensure that drain-

age facilities “under or immediately adjacent” to the

roadbed be maintained so as “to accommodate expected

water flow for the area concerned.” 49 C.F.R. 213.33.

Second, vegetation ‘on or immediately adjacent to road-

bed must be controlled” to ensure that it does not, inter

alia, “|i|nterfere with railroad employees performing

norma! trackside duties.” 49 C.F.R. 213.37, 213.37(c).

2 The federal regulations therefore operate in the same area de-

scribed in the Texas walkway regulations, i.e., the area “along both

sides of all tracks.” Tex. Admin. Code tit. 16, §5.619(e) (1988).

Cee eee eee

4

Subpart D, which governs the requirements for “track

structure,” also has a bearing on the structural charac-

teristics of the roadbed. Those regulations require that

track must be supported with ballast materials that:

(a) Transmit and distribute the load of the track

and railroad rolling equipment to the subgrade;

(b) Restrain the track laterally, longitudinally,

and vertically under dynamic loads imposed by rail-

road rolling equipment and thermal stress exerted by

the rails;

(c) Provide adequate drainage for the track; and

(d) Maintain proper track cross-level, surface, and

alinement.

49 C.F.R. 213.103.

FRA has not adopted regulations requiring railroads

to construct walkways adjacent to railroad tracks. The

only express reference to walkways in FRA regulations

is set forth in standards governing railroad bridges and

trestles. Under 49 C.F.R. 214.103(c), FRA has specified

certain design requirements governing walkways on

bridges and trestles, if the railroads or their contractors

decide to utilize walkways in lieu of personal fall arrest

systems or safety nets. See “Final Rule: Bridge Worker

Safety Rules,” 57 Fed. Reg. 28,116, 28,128 (June 24,

1992) (to be codified 49 C.F.R. 214.103 (c)).

3. a. In October 1986, the Chief Counsel of FRA ad-

vised the Commission by letter of FRA’s view that Section

5.619 is “without force and effect,” because it is pre-

empted by federal law. See Letter from John M. Mason,

FRA Chief Counsel, to the Texas Railroad Commission 1

(Oct. 17, 1986) (Mason Letter) (reprinted, App., infra,

la-8a). In support of that conclusion, the letter cited the

track safety and roadbed comvosition regulations, which

he noted extended to areas immediately adjacent to the

roadbed. Invoking FRSA’s express preemption provision,

45 U.S.C. 434, the Chief Counsel stated (Mason Letter at

4; App., infra, 6a):

5

although FRA has not issued a specific rule on walk-

way location and width, in my opinion FRA has

acted so as to occupy the subject matter addressed

by the Commission’s rule, i.e., trackside walkways, a

matter subsumed by the larger subject of areas im-

mediately adjacent to the roadbed.

b. FRA has addressed the subject of walkways and

worker safety in other contexts as well. Although FRA’s

safety program does address concerns related to worker

safety, in 1975 FRA considered adoption of a code of

occupational standards directed at all railway employee

activities. 40 Fed. Reg. 10,693 (1975). FRA later con-

cluded that this rulemaking should be terminated. That

decision was reflected in a 1978 Policy Statement in

which FRA concluded that a comprehensive code of occu-

pational regulations was unnecessary in light of regula-

tions promulgated by the Occupational Safety and Health

Administration (OSHA), covering a broad range of em-

ployee activity. At the same time, however, the agency

expressed its determination that OSHA regulations con-

cerning walking and working surfaces should not apply

to “walkways beside the tracks in yards or along the

right-of-way.” 43 Fed. Reg. 10,587 (1978).

With respect to the specific question of walkways, the

agency in 1977 considered, but declined to adopt, a pro-

posed rule requiring railroads to construct walkways on

bridges and trestles. FRA found that the benefits of the

walkways rule would be outweighed by the costs. 42 Fed.

Reg. 22,184, 22,185 (1977). The agency further con-

cluded that States should instead address the “employee

safety problem” by requiring walkways “in a particular

area’’ or “on a particular structure” as “local” conditions

require. Jd. at 22,185.

4. Respondents brought the present action in federal

district court seeking to enjoin the Commission’s enforce-

ment of Section 5.619. The complaint alleged that the

regulation was preempted by FRSA and the agency’s

ey

6

implementing regulations.* Respondents ultimately pre-

vailed on that preemption claim after two appeals.

a. The district court initially granted summary judg-

ment for the railroads in 1987 based upon its conclusion

that walkways were part of the roadbed, and the subject

of roadbeds had been occupied by FRA regulations. See

Missouri Pacific R.R. v. Ratlroad Comm’n, 653 F. Supp.

617, 624-626 (W.D. Tex. 1987). On appeal, the Fifth

Circuit reversed and remanded for further proceedings.

See Missouri Pacific R.R. v. Railroad Comm’n, 833 F.2d

570 (5th Cir. 1987) (reprinted, Pet. App. 40a-55a).

The court of appeals rejected the argument that FRA’s

failure to adopt a walkway requirement should itself be

dispositive of the preemption inquiry. Pet. App. 48a-49a.

The court determined that this regulatory omission should

not be construed as an FRA policy decision that walk-

ways should not be required. Instead, the court viewed

FRA’s actions in prior rulemaking proceedings concern-

ing various walkway and worker safety issues as a deci-

sion to postpone consideration of the issue. Jd. at 49a.

The court nevertheless concluded that preemption

should be required if Section 5.619 had the practical! ef-

fect of regulating the design and structure of the road-

bed and track. Pet. App. 46a-47a. In the court of ap-

peals’ view, “if, from a practical standpoint, the * * *

requirements of the state walkway regulation generally

add to the FRA standards by requiring the railroad to

strengthen or enlarge the roadbed beyond FRA require-

ments,” id. at 47a, the federal regulations have covered

the subject matter of the state rule and preemption is

triggered. Because the Commission had submitted an

affidavit disputing the railroads’ claim that walkways

3 The complaint also challenged other regulations, and included

other causes of action. The challenged regulations were upheld in

part and invalidated in part. See Pet. App. 40a-55a. The only issue

before this Court is whether Section 5.619 is preempted by FRSA.

7

would materially impact the roadbed structure, the court

of appeals remanded the case for trial. Jd. at 47a-48a.

b. After trial on remand, the district court concluded

that Section 5.619 is preempted by FRSA. See Pet. App.

18a-37a. Both parties presented expert testimony con-

cerning the factual relationship between compliance with

the state and federal regulations. Based upon the testi-

mony of the railroads’ experts, which the district court

found to be “more persuasive,” id. at 3la, the court en-

tered factual findings concerning the effects of compli-

ance with the state requirement on the federal scheme.

First, the district court concluded that walkways are

“an integral part” of the “roadbed and track structure.”

Pet. App. 33a. Second, the district court concluded that

compliance with Section 5.619 would generally require

railroads “to strengthen or enlarge the roadbed beyond

the FRA requirements.” Pet. App. 32a. Third, the court

further found that compliance with Section 5.619 would

directly interfere with the track safety standards adopted

by FRA. The court based that conclusion on the fact

that the state-mandated walkways would have to be

constructed with “materials that would, because of con-

tinuous rail traffic and regular maintenance, have the

effect of weakening the track structure, impair drain-

age, and in time, weaken the roadbed itself.” Pet. App.

oda.!

The court of appeals affirmed, concluding that the dis-

trict court’s factual findings regarding the practical

* In an alternative holding, the district court (Pet. App. 34a-36a)

concluded that Section 5.619 does not come within FRSA’s “local

safety hazard” exception, see 45 U.S.C. 434. The court noted that

rules applicable on a statewide basis cannot be addressed to local

hazards, and, in any event, the state regulation is incompatible with

federal rules because the walkways required by state law would

“impede the drainage capability of the track structure.” Pet. App.

36a. The court of appeals found it unnecessary to reach the local

safety hazard issue because the Commission expressly disclaimed

reliance on that exception to FRSA preemption. Jd. at 18a.

— a n

8

effects of Section 5.619 on the operation of FRA regu-

lations were not clearly erroneous. Pet. App. la-1l5a.

Accordingly, the court permanently enjoined enforcement

of Section 5.619.

DISCUSSION

In our view, the court of appeals correctly determined

that petitioner’s rule mandating walkways alongside rail-

road tracks is preempted. Further, we do not believe

that it is necessary for the Court to grant plenary

review of the issue at this time. Although the decision

conflicts with a per curiam affirmance of the Ninth

Circuit in Southern Pacific Transportation v. Public

Utilities Comm’n, 820 F.2d 1111 (1987), that conflict

may well be resolved by the circuits upon reconsidera-

tion of this issue in light of the decision in CSX Trans-

portation, Inc. v. Easterwood, Nos. 91-790 & 91-1206

(argument scheduled for Jan. 12, 1993). The threshold

issue here, as in CSX, is the proper standard for deter-

mining when a federal regulation should be found to

“cover[] the subject matter” of a state requirement within

the meaning of Section 434 of FRSA. We therefore be-

lieve that the petition in this case should be held pending

the decision in CSX, and that the need to remand the

case for further proceedings should be determined in

light of that decision.

1. Under well-established principles governing pre-

emption analysis, state law is preempted in any circum-

stance in which Congress expressly so provides. See,

e.g., Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608

(1992); Shaw v. Delta Air Lines, Inc., 463 U.S. 85

(1983). Section 484 of FRSA, 45 U.S.C. 434, is such

an express preemption provision. In order to ensure “to

the extent practicable” national uniformity of rail safety

regulation, Section 434 mandates that state laws relating

to railroad safety—such as the regulation at issue in this

case—are preempted if the Secretary of Transportation

promulgates a rule, regulation, standard or order “cover-

ing the subject matter” of the state requirement. 45

9

U.S.C. 434. To the extent that the Secretary has covered

a subject (and where Section 434’s local hazard exception

is not applicable) a State is expressly precluded from

continuing to enforce its own requirements.® Rather, the

Secretary’s regulation is substituted as the governing

rule.

In CSX, the United States filed a brief as amicus curiae

setting forth our view of the proper analysis of pre-

emption issues under FRSA. In our view, whether the

Secretary has “cover[ed]” a subject matter should be

determined by reference to several factors. First, “if the

specific requirement imposed on the railroad by the State

has also been addressed by the Secretary” directly through

regulations, then the subject of the state requirement has

been “covered.” Brief for the United States as Amicus

Curiae Supporting Affirmance at 15-16, CSX Transporta-

tion, Inc. v. Easterwood, Nos. 91-790 & 91-1206. Second,

“if the Secretary has not addressed the specific state

requirement, preemption should nevertheless be found if

federal regulations deal broadly and substantially with—

in effect, occupy the field of—the state law requirement

at issue.” Jd. at 16. Third, the agency’s interpreta-

tion of the “subject” covered by its safety regulation—

and therefore its preemptive scope—should ordinarily be

dispositive. [bid.

2. Although federal regulations do not expressly ad-

dress the need for walkways alongside railroad tracks

to promote worker safety, the second and third factors

set forth in our brief in CSX—the scope of the field regu-

lated by FRA and the agency’s intent—fully support the

* Under the local hazard exception, States are permitted to con-

tinue to enforce a regulation “when necessary to eliminate or reduce

an essentially local safety hazard,” so long as the provision does not

conflict with federal regulations and does not impose an undue

burden on interstate commerce. 45 U.S.C. 434. We agree with the

district court that Section 5.619 aft not come within that exception

because it is applicable throughout the State of Texas. Petitioners

do not contend otherwise. See Pet. App. 13a.

10

court of appeals’ conclusion that Section 5.619 is pre-

empted. Regardless of the subject matter label the Com-

mission may seek to attach to its regulation, it is ap-

parent that Texas has sought to enhance railway em-

ployee safety by regulating the design of the roadbed

adjacent to the track. That subject has been covered by

FRA’s regulations.

a. FRSA granted the Secretary broad authority to

regulate “all areas of railroad safety.” 45 U.S.C. 431(a).

As the agency has developed its overall safety program,

it has unquestionably taken into account the safety of

railway employees. See, e.g., 40 Fed. Reg. 20,693 (1975).

One component of that overall safety program is the

regulation of the roadbed and the adjoining area along-

side the track. FRA has established the “minimum re-

quirements” the railroad must meet to construct a safe

“roadbed and areas immediately adjacent to roadbed.”

49 C.F.R. 213.31. Those minimum safety standards do

not mandate construction of walkways on top of or ad-

joining the roadbed. Section 5.619 seeks directly to sup-

plement FRA’s minimum safety requirements by man-

dating the construction of roadbeds equipped with walk-

ways. Because FRA has already regulated comprehen-

sively on the subject of the design standards for the

construction of areas adjacent to the track, the state

regulation is necessarily preempted.® See Gade v. Na-

tional Solid Waste Management Ass’n, 112 S. Ct. 2374,

2385 (1992) (“To allow a State selectively to ‘supple-

ment’ certain federal regulations with ostensibly non-

conflicting standards would be inconsistent with [a]

® This conclusion holds true regardless of whether the agency

actually considered the specific hazard the State sought to regulate,

here the footing of railway employees working alongside the track.

That is the very nature of field preemption. See, e.g., Napier v.

Atlantic Coast Line R.R., 272 U.S. 605, 612-613 (1926). The agency’s

regulation of the subject must, however, be comprehensive enough

to support the conclusion that the subject has been “covered”, and

that supplemental state regulation is thereby prohibited.

ee

11

federal scheme of establishing uniform federal stand-

ards.”); Ray v. Atlantic Richfield Co., 485 U.S. 151, 165

(1978) (where “federal scheme * * * aims precisely at

the same ends as does [the state scheme],” state scheme

cannot be defended on grounds that it establishes “dif-

ferent and higher design requirements’”’).

Any claim that “walkways” and “roadbeds” are sepa-

rate and independent “subjects” is directly refuted by

the factual findings entered in this case. The district

court found, and the court of appeals agreed, that com-

pliance with Section 5.619 would require railroads to

change the materials that make up roadbeds and to en-

large and strengthen existing roadbeds. See Pet. App.

8a-9a. The State has accordingly sought to regulate the

problem of insecure footing alongside the track by regu-

lating the construction of the roadbed—the very subject

of FRA regulations. That it cannot do. See Napier v.

Atlantic Coast Line R.R., 272 U.S. 605, 612 (1926)

(holding that a state law mandating an automatic fire-

door on locomotives to protect firefighters was preempted

by federal laws regulating locomotive design, even though

the federal agency had not addressed this specific hazard,

because the laws would “operate upon the same object’’

and were “directed to the same subject—the equipment

of locomotives”). See also Gade, 112 S. Ct. at 2385

(efforts to regulate public safety through imposition of

safety standards on workers impermissibly intruded into

subjects regulated by OSHA). The problem posed by

uncoordinated safety regulation by state and federal

authorities in this area is underscored by the district

court’s further finding that construction of the walkways

in the manner required by Texas law would in fact

‘“weaken|]”’ the “track structure” and the “roadbed.” Pet.

App. 38a.

b. The agency has consistently interpreted its regula-

tions as fully occupying the subject of roadbed structure,

to the exclusion of the State’s authority to adopt state-

12

wide walkway requirements. Under Section 434, Con-

gress gave the Secretary authority to preempt all state-

wide regulation of railroad safety issues through adop-

tion of standards and orders so that uniform, national

regulation could be achieved “to the extent practicable.”

For this reason, it is both reasonable and logical to define

the scope of the “subject” addressed by federal regula-

tions through reference to the agency’s intent.

i. FRA has repeatedly expressed the view that the

issue of trackside walkways is encompassed by its regula-

tions governing the subject of track and roadbed design,

and that States have no authority to mandate construc-

tion of walkways in the absence of a local hazard. As

set forth, FRA _ specifically advised the Commission

in 1986 of the agency’s view that Section 5.619 was

“without force and effect” because trackside walkways are

encompassed within the “subject of areas immediately

adjacent to the roadbed.” Mason Letter at 1, 4; App.,

infra, la, 6a. FRA has also advised other States that

federal law prohibited imposition of statewide walkway

requirements.’

vi. The agency’s interpretation of the scope of the

subject matter covered by its regulations is also grounded

in the FRA Policy Statement issued in 1978. 43 Fed.

Reg. 10,583 (1978). That policy was adopted in connec-

tion with the agency’s decision not to issue a compre-

hensive code* of occupational standards covering all

aspects of railway employment. The Policy Statement ex-

plains that FRA has had “longstanding” involvement in

“regulatory activities concerned with assuring * * * safe

working conditions for railroad employees.” Jd. at 10,584.

Although the agency determined that it should not ven-

ture into areas traditionally regulated by OSHA by

adopting occupational standards governing issues com-

mon to railroad and non-railroad employees in “railroad

yards, shops, and associated offices,” id. at 10,587, it em-

7 We have lodged copies of these letters with the Court.

a eens naneneeeeaieentesaemeeaaaeel

13

phasized that it had in the past, and would in the future,

reserve exclusive authority over occupational safety issues

presented by core railroad operations on and alongside

the tracks. Jd. at 10,586, 10,587.

FRA explained that the “objective of protecting” all

“railroad employees,” as well as other persons “along the

right-of-way” was “implicit” in its regulations, including

those governing tracks and roadbeds. 43 Fed. Reg. 10,585

(1978). The Policy Statement underscored the agency’s

view that supplemental regulations by other governmen-

tal agencies in these areas would be counterproductive.

It further explained that this view is based on the fact

that “[p]rotection of the public generally and employees

in particular is, of necessity, an integrated undertaking,”

because “it is not possible to regulate an individual haz-

ard without impacting on other, related working condi-

tions, nor without impacting on the safe transportation

of persons and property.” Ibid. The agency specifically

stated that it considered hazards addressed by walkways

beside the tracks to be within the area as to which the

agency had occupied the field. Jd. at 10,587.°

iw. It is also germane that FRA has consistently re-

jected proposals to adopt supplemental regulations requir-

ing walkways on railroad bridges. In 1977, the agency

concluded that such a rule was not only unwarranted,

8 In its first decision in this case, the court of appeals construed

this section of the Policy Statement as a concession that the agency

had not yet addressed the issue of walkways. Pet. App. 49a. To the

contrary, the Statement reflects the agency’s position that it had

already regulated comprehensively in this area, and that it would

supplement its regulatory scheme if and when it determined that

there was a need for additional standards. See 43 Fed. Reg. 10,586

(1978) (stating that the agency had already “exercised its statutory

authority” concerning the field of “(t]rack, roadbed and associated

devices and structures” and that “[wJhile it is expected that addi-

tional regulatory initiatives may be undertaken, as necessary, * * *

it is the judgment of the agency that piecemeal regulation of in-

dividual hazards * * * by any other agency of government would be

disruptive and contrary to the public interest”).

14

but might have a deleterious effect on safety. See 42 Fed.

Reg. 22,185 (1977).°

Responding to a congressional directive to consider safety

issues pertaining to workers on railroad bridges, see Rail

Safety Improvement Act of 1988, Pub. L. No. 100-342,

$19, 102 Stat. 637 (codified as 45 U.S.C. 481(n)), FRA

recently revisited the issue. Again, however, the agency

concluded that a walkway requirement would be inap-

propriate. “Federal Railroad Administration, Notice of

Proposed Rulemaking: Bridge Worker Safety Rules,” 56

Fed. Reg. 3434 (1991). In concluding that walkways

should not be required, FRA stated:

[T]he high cost of complying with a federal walkway

requirement could divert funds otherwise intended

for ongoing maintenance and improvement programs.

The net result could actually decrease overall safety

to railroad employees and members of the public.

Based on these findings, FRA determined [in 1977]

that a federal walkway requirement was not war-

ranted, and in fact, may be deleterious to railroad

employee[s’] safety.

® FRA noted that:

[T]he issuance of a Federal rule requiring walkways on rail-

road bridges, trestles, and similar structures cannot be justified

at the present time. First, any such rule would impose signifi-

cant added burdens in terms of the large dollar cost to the

railroad industry for construction of the walkways, the added

hazard to persons and property and additional liability exposure

for the railroads because of increased trespassing, and the

possible decrease in overall railroad safety because of the

diversion of resources from other maintenance and improve-

ment projects. Secondly, neither the commenters nor the FRA

has been able to demonstrate that such a rule would result in

a definite or measurable improvement to railroad employee

safety. Finally, if an employee safety problem does exist because

of the lack of walkways in a particular area or on a particular

structure, regulation by a State agency that is in a better posi-

tion to assess the local need is the more appropriate response.

42 Fed. Reg. 22,185 (1977).

ee

15

Id. at 3438. In the final rule, FRA concluded that rail-

roads should have the option of using walkways in lieu

of personal fall arrest systems or worker safety nets.

See “Federal Railroad Administration, Final Rule: Bridge

Worker Safety Rules,” 57 Fed. Reg. 28,116 (1992) (pro-

mulgating rule, to be codified at 49 C.F.R. 214.103(c),

prescribing standards for walkways in such circum-

stances) .'°

iv. In summary, FRA has consistently expressed the

view that its regulations cover the subject addressed by

state-imposed walkway requirements and that such state

requirements are preempted by Section 434 of FRSA.

Not only is that conclusion required by a proper analysis

of the scope of preemption under FRSA, as a practical

matter it does not create any regulatory lapse. Under

45 U.S.C. 432, the Secretary has authority to issue emer-

gency orders to remedy unsafe conditions. As the district

court noted, FRA has persuaded railroads in Texas to

remedy unsafe walkway conditions in Texas, on at least

10 FRA has accordingly decided, based upon its expert weighing

of relevant safety considerations, not to impose a walkway require-

ment—on railroad bridges or elsewhere. That decision would, in and

of itself, provide an independent basis for preemption, even if the

Court were to find that the roadbed regulations had not already

covered this subject through occupation of the field. See Ray v.

Atlantic Richfield Co., 435 U.S. 151, 178 (1978) (“where failure of

* * * federal officials affirmatively to exercise their full authority

takes on the character of a ruling that no such regulation is appro-

priate or approved pursuant to the policy of the statute, States are

not permitted to use their police power to enact such regulation.”)

(internal quotation mark omitted). See also, Missouri Pacific R.R. v.

Railroad Comm’n, 850 F.2d 264 (5th Cir. 1988) (concluding that

FRA’s decision not to prescribe regulations concerning the use of

cabooses (see 51 Fed. Reg. 17,300-17,301 (1986)) was preemptive

under Section 434 of FRSA); Norfolk & Western R.R. v. Public

Utilities Comm’n, 926 F.2d 567, 571-572 (6th Cir. 1991) (holding

that FRA’s decision not to promulgate regulations requiring walk-

ways on railroad bridges was preemptive of state efforts to impose

such rules because FRA’s “deliberate refusal to require walkways

* * * negatively preempted [the state rule! because the FRA ha[d]

‘covered’ the subject matter.”). But see Pet. App. 48a-49a.

16

two occasions without having to issue emergency orders.

See Pet. App. 33a. There is accordingly no reason to

believe that the agency’s interpretation of the subject

matter covered by its regulations does not conform to

congressional intent.

3. The holding of the Fifth Circuit in this case con-

flicts with the only other circuit court decision addressing

the question whether state regulations relating to general

trackside walkways are preempted by Section 434." In

Southern Pacific Transportation v. Public Utilities

Comm’n, 820 F.2d 1111 (1987) (reprinted Pet. App.

70a-71a), the Ninth Circuit held that state walkway

regulations were not preempted under FRSA because the

Secretary had not adopted regulations covering that sub-

ject matter. The conflict between the Fifth and Ninth

Circuits does not, however, presently warrant this Court’s

review."”

The Ninth Circuit’s decision in Southern Pacific was a

per curiam affirmance of the district court’s analysis in

Southern Pacific Transportation v. Public Utilities Comm'n,

647 F. Supp. 1220 (N.D. Cal. 1986) (reprinted, Pet. App.

56a-69a). The district court in that case concluded that

11 The Sixth Circuit’s decision in Norfolk & Western R.R. v. Public

Utilities Commission, supra, concerns a related, but distinct issue-

the validity of state laws mandating walkways along railroad

bridges. With respect to that precise issue, it is plain that FRA has

specifically determined that bridge walkways are inappropriate. See

57 Fed. Reg. 28,116 (1992).

12 A number of district and state courts have also had occasion

to address whether Section 434 preempts state regulations relating

to walkways adjacent to railroad tracks. See, e.g., Norfolk & West-

ern R.R. Vv. Burns, 587 F. Supp. 161 (E.D. Mich. 1984) (FRSA

preempted Michigan Occupational Safety and Health Act regulation

of tracks, roadbeds and walkways in rail yards) ; Black v. Seaboard

System R.R., 487 N.E.2d 468 (Ind. Ct. App. 1986) (FRSA pre-

empted Indiana Public Service Commission rules relating to the

condition of walkways along roadbeds) ; Illinois Central Gulf Ry. v.

Tennessee Public Services Comm’n, 736 S.W.2d 112 (Tenn. Ct. App.

1987) (state walkway regulations not preempted by FRSA). See

also Pet. App. 45a n.11 (gathering cases).

17

““[s]tate and federal regulations * * * cannot be held to

cover the same subject matter unless they address the

same safety concerns.” Pet. App. 68a. Applying that

analysis, the court held that state walkway regulations

were directed at a different safety objective than FRA

roadbed regulations, and were therefore not preempted.

bid.

The Southern Pacific analysis is flawed. In our view,

it cannot be squared with this Court’s recent rejection of

“the aberrational doctrine .. . that state law may frus-

trate the operation of federal law as long as the state

* * * in passing its law had some purpose in mind other

than one of frustration.” Gade, 112 S. Ct. at 2387 (quot-

ing Perez v. Campbell, 402 U.S. 637, 651-652 (1971) ).

See also Florida Lime & Avocado Growers V. Paul, 373

U.S. 182, 142 (1963). The better view, as we have ex-

pressed, is that Section 434 preemption depends on the

scope of the Secretary’s regulations and the Secretary’s

view of what subject those regulations cover.

In any event, it is unclear that the Ninth Cireuit would

adhere to its cursory per curiam affirmance in Southern

Pacific. First, that court did not have the benefit of the

Fifth Circuit’s searching legal analysis in this case, or

the district court’s factual findings concerning the rela-

tionship between state walkway and federal roadbed reg-

ulations. Moreover, it is likely that this Court’s analysis

in CSX will effectively require the Ninth Circuit (as wel]

as other courts of appeals) to reconsider prior precedents

construing the preemptive scope of Section 434. It accord-

ingly does not appear to be necessary to grant plenary

review in this case in order to resolve the conflict between

the Fifth and Ninth Circuits.

18

CONCLUSION

The petition should be held and disposed of as appro-

priate in light of the decision in CSX Transportation,

Inc. v. Easterwood, Nos. 91-790 & 91-1206.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

WALTER B. MCCORMICK, JR. MAUREEN E. MAHONEY

General Counsel Deputy Solicitor General

PAUL M. GEIER WILLIAM K. KELLEY

Assistant General Counsel Assistant to the Solicitor

for Litigation General

DALE C. ANDREWS

Deputy Assistant General

Counsel for Litigation

Department of Transportation

DECEMBER 1992

APPENDIX

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL RAILROAD ADMINISTRATION

400 Seventh St., S.W.

Washington, D.C. 20590

Oct. 17, 1986

Mr. James E. Nugent, Commissioner

Mr. Mack Wallace, Commissioner

Mr. Clark Jobe, Commissioner

Railroad Commission of Texas

P.O. Drawer 12967

Austin, Texas 78711

Dear Sirs:

I understand that the Railroad Commission of Texas

has recently adopted several safety rules affecting the

operations of railroads operating within the State of

Texas, and that these rules are now the subject of litiga-

tion in the United States District Court for the Western

District of Texas. On behalf of the Federal Railroad

Administration, I have previously stated my opinion as

FRA Chief Counsel on the subject of state regulation of

railroad walkways. Accordingly, I believe it may be

helpful to furnish you and the court with those views as

they relate to the walkway requirement stated in section

0.619 of the Texas Administrative Code. I have had an

opportunity to study your examiner’s memorandum and

recommendation as well as the comments filed by the

Texas Class I Railroads.

For the reasons stated below, it is my opinion as Chief

Counsel that the rule adopted as section 5.619 has been

preempted and is thus without force and effect.

(la)

ee

2a

The Federal Railroad Safety Act of 1970 (Safety Act)

provides in part: “The Congress declares that laws, rules,

regulations, orders, and standards relating to railroad

safety shall be national uniform to the extent practicable.”

45 U.S.C. § 434. Courts have consistently acknowledged

Congress’ intent to establish national uniform control of

railroad safety and to preempt regulation in this field.

Donelon v. New Orleans Terminal Co., 474 F.2d 1108 (5th

Cir. 1973), cert. denied, 414 U.S. 855 (1973); Chicago

Transit Auth. v. Flohr, 570 F.2d 1805 (7th Cir. 1977);

Southern Pacific Transp. Co, v. United States, 462 F. Supp.

1193 (.D. Ca. 1978); Atchison, Topeka and Santa Fe

Ry. Co. v. Illinois Commerce Comm., 453 F. Supp. 920

(N.D. Ill. 1977). In fact, some courts have characterized

the Safety Act as evincing a “total preemptive” intent.

National Association of Regulatory Commissioners v.

Coleman, 542 F.2d 11, 13 (8d Cir. 1976); Santa Fe, 453

I’. Supp. at 925.

In Santa Fe, the court warned against interpreting the

Safety Act in a way that would frustrate its stated pur-

pose of establishing uniform standards. The court found

that the legislative history of the Act clearly articulates

this purpose:

|The railroad industry] has a truly interstate char-

acter calling for a uniform body of regulation and

enforcement. . . . To subject a carrier to a number

of different State administrative and judicial systems

in several areas of operation could well result in an

undue burden on interstate commerce.

Id at 925, quoting House Report, 1970 U.S. Code Cong.

& Admin. News, 91st Cong., 2d Sess. pp. 4104, 4110-11.

Consistent with the statutory mandate, FRA has pre-

viously expressed the agency’s views on the scope of its

regulatory purview:

8a

The overall FRA program to assure the safety of

railroad operations may be generally subdivided into

three fields: (1) Track, roadbed, and associated de-

vices and structures, (2) equipment, (3) human

factors. FRA has now exercised its statutory author-

ity with respect to each of these regulatory fields by

actual rulemaking. While it is expected that addi-

tional regulatory initiatives may be undertaken, as

necessary, in each of the major regulatory fields, it

is the judgment of the agency that piecemeal regu-

lation of individual hazards in any of the three

regulatory fields by any other agency of government

would be disruptive and contrary to the public

interest.

Policy Statement and Termination of Rulemaking on

Railroad Occupational Safety and Health Standards, 43

Fed. Reg. 10,583, 10,586 (1978).

However, in the recognition that some state regulation

of rail safety may be necessary, the Safety Act sets out

a framework for determining when State requirements

are preempted:

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 law, rule, regulation, order, or standard

relating to railroad safety when necessary to elimi-

nate or reduce an essentially local safety hazard, and

when not incompatible with any Federal law. rule.

regulation, order, or standard, and when noi creating

an undue burden on interstate commerce.

45 U.S.C. § 434 (emphasis added).

This framework establishes two levels of inquiry. First,

upon identification of the “subject matter” of the chal-

4a

lenged state rule, the question is whether FRA has taken

affirmative or negative action “covering” that “subject

matter,” i.e., has FRA occupied it in whole or in part

either (i) by rule, regulation, etc., or (ii) by an agency

decision, such as a policy statement or termination of a

proposed rulemaking proceeding, that for a particular

subject matter no rule or restriction is appropriate or

necessary as a matter of rail safety (or a combination

of affirmative and negative actions addressing a given

subject matter). See Ray v. Atlantic Richfield Co., 435

U.S. 151, 178 (1977) ; Napier v. Atlantic Coast Line R.R.,

272 U.S. 605 (1926). If not, there is no further inquiry,

and the State rule stands “until such time” as FRA does

so act to “cover[] the subject matter”.

If so, however, the inquiry passes to the second level:

the state rule (by hypothesis “an additional or more

stringent” one) is enforceable only if it satisfies a three-

prong test: (i) necessary to eliminate or reduce an essen-

tially local safety hazard; (ii) not incompatible with any

Federal rule; and (iii) not an undue burden on inter-

state commerce. The legislative history of section 434

makes clear that the first prong does not contemplate

statewide laws or rules; a “local safety hazard” is to

be read as one peculiar to a particular locality. H.R. Rep.

1194, 91st Cong., 2d Sess. (1970).

In reality, the outcome under section 434 will be deter-

mined largely by whether the FRA rule has “cover[ed]

the subject matter” of the state rule, for if it has the

three-prong test establishes a very exacting standard for

the State rule to satisfy. Indeed, while the statute con-

templates some State regulation, the courts have con-

strued the section 434 framework narrowly, giving broad

support to the Safety Act’s mandate for national uniform-

ity. National Association of Regulatory Commissioners,

542 F.2d at 14; Donelon, 474 F.2d at 1112; Santa Fe, 453

F, Supp. at 926. These holdings are consistent with the

court’s commonly narrow construction of such saving

5a

clauses in order to give full expression to the Congressional

purpose. Cippollone v. Liggett Group, Inc., 593 F. Supp.

1146 (D. N. J. 1984), citing People of the State of IIli-

nois v. City of Milwaukee, 731 F. 2d 403, 413-14 (7th

Cir. 1984), American Progressive Life and Health Insur-

ance Co. of New York v. Corcoran, 715 F.2d 784, 786-87,

(2d Cir. 1983); Ventura County v. Gulf Oil Corp., 601

F.2d 1080, 1084 (9th Cir. 1979); Great Western United

Corp. v. Kidwell, 577 F.2d 1256, 1274-81 (5th Cir. 1978).

As I understand it, section 5.619 prescribes, with cer-

tain exceptions, a uniform statewide standard of six-foot

minimum continuous walkways along both sides of tracks

in yards and places where switching is performed.

FRA has several rules covering this subject matter.

FRA has adopted general regulations (49 C.F.R. Part

214) that prescribe minimum safety requirements for

railroad track subject to Federal jurisdiction, which have

been held to preempt the entire field of track safety

Standards. Santa Fe, 453 F. Supp. at 925. The FRA

track standards also prescribe minimum requirements

for areas “immediately adjacent” to the roadbed. 49

C.F.R. Part 213, Subpart B. This provision requires the

control of vegetation adjacent to roadbed that might

interfere with employees performing normal trackside

duties. 49 C.F.R. § 213.37. Moreover, FRA requires the

correction of defective walkways on signal structures

under the authority of the Signal Inspection Act. 49

U.S.C. § 26(e).

In addition to these rules, FRA has expressed its policy

that other government entities are precluded from exer-

cising jurisdiction with respect to areas such as walk-

ways beside the tracks in yards or along the right-of-way:

These are areas which are so much a part of the

operating environment that they must be regulated

by the agency with the primary responsibility for

railroad safety. Therefore, FRA will determine the

need for and feasibility of general standards to

6a

address individual hazards relating to such surfaces,

keeping in mind the requirement of proper clear-

ances and the familiarity of employees with existing

industry designs.

Policy Statement of Termination of Rulemaking on Rail-

road Occupational Safety and Health Standards, 43 Fed.

Reg. 10,583, 10587 (1978).

FRA has also expressed its intent to use its Safety

Act emergency power, in addition to its authority under

the Signal Inspection Act and the Track Safety Stand-

ards, to achieve the correction of walkway-related prob-

lems. /d.

Thus, although FRA has not issued a specific rule on

walkway location and width, in my opinion FRA has

acted so as to occupy the subject matter addressed by

the Commission’s rule, 7.e., trackside walkways, a matter

subsumed by the larger subject of areas immediately

adjacent to the roadbed.

Our view of FRA’s preemption of this area has been

confirmed in court. In Norfolk and Western Ry. Co. v.

Burns, 587 F. Supp. 161 (E.D. Mich. 1984), the court

cited and relied on FRA’s 1978 policy statement, quoted

above, to find preemption under section 434. Given the

relationship of the walkways to the railbed and the gen-

eral construction of the roadbed and the rail system itself,

the court reasoned that walkways are a part of the track

structure and rail system and that regulation of them

is accordingly preempted by FRA. The court, of course,

recognized the State’s ability to address local safety

hazards. Jd. at 170. A rule applicable on a statewide

basis does not address a local safety hazard. See also,

Black v. Public Service Comm. of Indiana, 487 N.E. 2d

468 (Ind. Ct. App. 1988).

Moreover, FRA has previously considered a walkway

rule. On November 15, 1976, FRA published an advance

notice of proposed rulemaking, stating that it was study-

ing the need for a Federal regulation requiring the con-

a eS

Ta

struction of walkways on railroad bridges, trestles, and

similar structures. (As I understand it, section 5.619

regulates walkways on a statewide basis, but does not

apply generally outside yards). On April 26, 1977, FRA

terminated this proceeding because it had concluded that

the significant cost of constructing such walkways could

not be justified by any definite or measureable improve-

ment to railroad employee safety. FRA also found that

such walkways could present added hazards because of

increased trespassing, and that requiring their installa-

tion could cause overall railroad safety to decrease be-

cause it would divert resources from other more bene-

ficial maintenance and improvement projects. FRA found

that if an employee safety problem does exist because of

lack of walkways in a particular area or on a particular

structure, regulation by a state agency addressing a

hazard peculiar to a given locality is the “more appro-

priate response.” 42 Fed. Reg. 22,184 (1977). FRA’s

consideration of walkways in that proceeding, together

with its regulation of trackside areas, demonstrates con-

clusively that FRA has addressed the subject matter and

occupied it.

Accordingly, section 5.619 is preempted by FRA’s

actions in this area unless the State can satisfy the

three-prong test of section 434. In this case, however,

I believe it would be most difficult for the State to meet

its burden of proof under that test. Even if the State

could establish that section 5.619 was compatible with

Federal regulations and not a burden on interstate com-

merce, I doubt that the State could show that this order

was “necessary to eliminate or reduce an essentially local

safety hazard,” i.e., one limited to a particular structure.

To the contrary, section 5.619 by its own terms applies

statewide. See National Association of Regulatory Utility

Commissioners, 542 F.2d at 14-15; Santa Fe, 453 F. Supp.

at 926.

In conclusion, it is my opinion as Chief Counsel that

section 5.619 has been preempted, since the subject matter

8a

has been addressed by FRA and the broad nature of the

order does not comport with the Safety Act criteria for

additional State requirements.

Very truly yours,

/s/ John M. Mason

JOHN M. MASON

Chief Counsel

ec: United States District Court for the Western

District of Texas (Austin Division), No. A-86-CA-406

SY U.S. GOVERNMENT PRINTING OFFice; 1992 342479 60125