“SECRETARY OF LABOR,Complainant,v.CONSOLIDATED RAIL CORPORATION,Respondent.Docket Nos. 91-3133 &91-3134_ORDER_ On July 1, 1992, Respondent filed a Petition for Interlocutory Reviewrequesting review of the administrative law judge’s order denying itsMotion to Dismiss. Respondent argues that under section 4(b)(1) of theOccupational Safety and Health Act of 1970, 29 U.S.C ? 653(b)(1), theOccupational Safety and Health Administration (\”OSHA\”) lacksjurisdiction over the worksite. Since the worksite involved the repairand maintenance of a railroad bridge, the Respondent argues that it wasunder the exclusive jurisdiction of the Federal Railroad Administration(\”FRA\”) due to the FRA’s assertion of its regulatory authority and theresulting preemption of OSHA’s jurisdiction. The Secretary has. filed anOpposition to the Petition.The Commission has reviewed the Petition for Interlocutory Review andthe Secretary’s Opposition and finds that under Commission Rule 73(a),29 C.F.R. ? 2200.73(a), this case involves an important question of lawabout which there is substantial ground for difference of opinion andthat immediate review of the ruling may materially expedite thedisposition of the proceedings. Accordingly, the Petition forInterlocutory Review is granted. The proceedings before theAdministrative Law Judge, including the hearing scheduled for July 24,1992; are stayed.Edwin G. Foulke, Jr.ChairmanDonald G. Wiseman Commissioner Velma Montoya CommissionerDated July 22, 1992————————————————————————VIA FEDERAL EXPRESSMr. Ray Darling, Jr.Executive SecretaryOccupational Safety & Health Review CommissionRE: Secretary v. Consolidated Rail Corporation_OSHRC Docket Nos. 91-3133 and 91-3134_Dear Mr. Darling:Enclosed please find the original and four copies of Respondent’sPetition for Interlocutory Review for filing in the above-referenced matter.Copies have been served upon all interested parties.Very truly yours,NANCI A. HOOVERAssociate General Counsel 17NAH: ldEnclosuresCopy: All Interested Parties SECRETARY OF LABOR,Complainant,v.CONSOLIDATED RAIL CORPORATION,Respondent.Docket Nos. 91-3133 & 91-3134*RESPONDENT CONSOLIDATED RAIL CORPORATION’S **PETITION FOR INTERLOCUTORY REVIEW*Pursuant to 29 C.F.R. ? 2200-73, Respondent, Consolidated RailCorporation (Conrail), hereby petitions the Review Commission for aninterlocutory review of Administrative Law Judge Brady’s Order denyingRespondent’s Notion to Dismiss. In support of this Motion, Respondentasserts that review of this Order involves an important question of lawand policy about which there in substantial ground for difference ofopinion and that immediate review of the ruling may materially expeditethe final disposition of the proceedings. The reasons for this Petitionare set forth in the accompanying Memorandum of Law.WHEREFORE, respondent respectfully requests that this petition be granted.Respectfully submitted,NANCI A. HOOVER Consolidated Rail CorporationATTORNEY FOR RESPONDENTSECRETARY OF LABOR,Complainant,v.CONSOLIDATED RAIL CORPORATION,Respondent.Docket Nos. 91-313391-3134*RESPONDENT CONSOLIDATED RAIL CORPORATION’SMEMORANDUM IN SUPPORT OF PETITION FOR INTERLOCUTORY REVIEW*In early October of 1991, representatives of the Occupational Safety andHealth Administration (OSHA) conducted an inspection of a worksitelocated at a railroad bridge near the intersection of theCincinnati-Dayton Road and Saxony Road in Miamisburg, Ohio. At the timeof the inspection, a Consolidated Rail Corporation (Conrail) maintenanceof way gang was engaged in maintenance and repair work upon the railroadbridge. An a result of this inspection, citations were issued to Conrailfor alleged violations of OSHA regulations found at the worksite. Thosecitations have become the basis for two related proceedings before theReview Commission, OSHRC Docket No. 91-3133 and No. 91-3134. On May 8,1992, Conrail filed a Motion to Dismiss the Secretary’s complaints inthese matters, on the basis that OSHA did not have jurisdiction over theworking conditions cited. Rather, the Federal Railroad Administration(FRA), the agency designated by Congress as responsible for safety inthe railroad industry, has sole jurisdiction to issue and enforceregulations regarding the safety of maintenance of way employees, andupon railroad bridges. A copy of this Motion is attached and marked asExhibit \”A\”.By Order dated June 25, 1992, Judge Brady held that OSHA was not, undersection 4(b)(1) of the Occupational Safety and Health Act (the \”Act\”),29 U.S.C. ? 653(b)(1); preempted from issuing the citations in this caseby the Federal Railroad Administration (FRA). A copy of this Order isattached and marked as Exhibit \”B\”.This Order denied RespondentConsolidated Rail Corporation’s (Conrail) Motion to Dismiss theSecretary’s complaint in this matter. Respondent now seeks an immediatereview of this Order pursuant to 29 U.S.C. ? 2200.73, which permitsinterlocutory review upon the discretion of the Review Commission, andwhere the Commission finds that the review \”involves an importantquestion of law or policy about which there in substantial ground fordifference of opinion and the immediate review of the ruling maymaterially expedite the final disposition of the proceedings.\”There is no question that this standard is met with respect to JudgeBrady’s Order. The preemption issue in the area of bridge safety forrailroad maintenance of way employees in an important question of lawthat has significant ramifications throughout the railroad industry.This threshold jurisdictional question warrants an immediate resolution.A declaration of the agency responsible for this area would eliminateany potential confusion on this subject, and benefit both employers andemployees.That this is a legal question for which there is substantial ground fordifference of opinion is also easily shown from an examination of thelaw in this area. For example, as Judge Brady himself admits, in 1978the Federal Railroad Administration (FRA) spoke directly on this subjectin its Policy Statement, which noted that:[T]he OSHA regulations would not apply to ladders, platforms, and othersurfaces on signal masts, centenary systems, railroad bridges,turntables, and similar structures or to walkways beside the tracks inyards or along the right-of-way. These are areas which are so much apart of the operating environment that they must be regulated by theagency with primary responsibility for railroad safety.43 Fed. Reg. 10587 (1978). Yet, Judge Brady found that the FRA did notpreempt OSHA in this matter because they have failed to issueregulations on this subject. This directly contravenes a prior decisionof the Review Commission on this very question, when it found that \”theFRA policy statement is an exercise of the FRA’s statutory authoritythat gives rise to an exemption under section 4(b)(1) of the OSH Act.\”_Consolidated Rail Corporation,_ 10 OSHC 1577, 1579 (1982). Variouscourts have similarly dismissed the theory espoused by the Order of June25, 1992, (_see, e.g., Velasquez v. Southern Pacific Co_., 734 F.2d 216(5th Cir. 1984), and N_orfolk & W. Ry. v. Public Utilities Com’n ofOhio,_ 926 F.2d 567 (6th Cir. 1991) rehearing den. April 12, 1991)) andmany more courts have found that, on the subject of railroad bridgesafety and maintenance of way employees, the FRA has the sole authorityto issue and promulgate regulations. A full review of the law in thismatter is contained in Respondent’s Brief in Support of Its Motion toDismiss, which is attached and marked as Exhibit \”C\”. Obviously, then,in light of the Review Commission’s own language on this subject, whichin controlling precedent, it is apparent that substantial grounds existfor a differing opinion from that of the Judge in this case.An immediate review of this matter would serve to materially expeditethe final disposition of the proceedings in these cases. This is apractical determination requiring an assessment of the litigationsituation, particularly the prospects for settlement and the costs oflitigation. The parties here are sharply divided on the jurisdiction, asa matter of law, of OSHA in this situation. A hearing on the merits ofthe citations is currently scheduled for July 24, 1992, in Dayton, Ohiobefore Judge Brady. An authoritative statement of the law would not onlysettle an issue of general importance to the industry, it would clarifythe scope of Conrail’s duties and responsibilities in this area, andthus precipitate meaningful settlement discussions. A hearing on themerits would involve a lot of unnecessary expense and time from allparties, and could be avoided by granting review of Judge Brady’s Order,and staying the proceedings before the Administrative Law Judge.For all these reasons, the Review Commission should grant review ofJudge Brady’s Order of June 25, 1992. This review certainly involves animportant question of law about which there is substantial ground fordifference of opinion and an immediate review of this ruling wouldmaterially expedite the final disposition of the proceedings.Respectfully submitted,NANCI A. HOOVERConsolidated Rail CorporationATTORNEY FOR RESPONDENTSECRETARY OF LABOR,Complainant,v.CONSOLIDATED RAIL CORPORATION,Respondent.Docket Nos. 91-3133**91-3134*RESPONDENT CONSOLIDATED RAIL CORPORATION’*S*MOTION TO DISMISS SECRETARY’S COMPLAINT*Pursuant to 29 C.F.R. ? 2200.40(a) ,Respondent, Consolidated RailCorporation (Conrail), hereby moves for an order dismissing theSecretary’s complaint in this matter for lack of jurisdiction. Insupport of this motion Respondent states the following:1. On or about, October 1-2, 1991, Complainant conducted an inspectionof Respondents workplace located at the railroad bridge near theintersection of Cincinnati-Dayton Road and Saxony Road.2. At the time of the inspection, the worksite consisted of Conrailmaintenance, of way employees who were engaged in maintenance and repairduties on the railroad bridge.3. As a result of this inspection, citations were issued to Respondentby Complainant, alleging that Conrail had violated the OSH Act at thisworksite. In accordance with OSH Act procedures, these citations thatwere issued are now the subject of two related actions before theOccupational Safety and Health Review Commission; Docket No. 91-3133 andDocket No. 91-3134.4. Section 4(b)(1) of the Occupational Safety and Health Act (OSH Act)provides that \”[n]othing in this chapter shall apply to workingconditions of employees with respect to which other Federal agencies. .. exercise statutory authority.to prescribe or enforce standards orregulations affecting occupational safety or health.\” [[29]] U.S.C. ?653(b)(1).5. Congress has specifically designated the Federal RailroadAdministration (FRA) as having the authority to issue rules, regulationsor standards concerning the safety of maintenance of way employees, andBridge safety. [[45]] U.S.C. ? 431(n).6. OSHA has no jurisdiction to issue citations and proposed penaltiesfor alleged violations of the OSH Act at said worksite, because PRA haspreempted OSHA’s authority in this matter.WHEREFORE, respondent respectfully requests that this motion be granted,and an order be issued dismissing the Secretary’s complaint in this matter.Respectfully submitted,NANCI A. HOOVERConsolidated Rail Corporation*ATTORNEY FOR RESPONDENT*SECRETARY OF LABOR,Complainant,v.CONSOLIDATED RAIL CORPORATION,Respondent.Docket Nos.91-3133 & 91-3134_ORDER DENYING MOTION TO DISMISS___Respondent, Consolidated Rail Corporation (Conrail) filed a motion todismiss the citations in this case asserting the Occupational Safety andHealth Administration (OSHA) has no jurisdiction because the railroad issubject to the jurisdiction of the Federal Railway Administration (FRA).In support of the motion, Respondent asserts that any question of OSHAjurisdiction was resolved by an FRA policy state went in 1978. Thestatement included the following:Within the area of railroad operations, it is FRA which must decide whatregulations are necessary and feasible … FRA has now exercised itsstatutory authority … While it is expected that additional regulatoryinitiative may be undertaken as necessary. . . it is the judgement ofthe agency that piecemeal regulation of individual hazards … by anyother agency of government would be disruptive and contrary to thepublic interest. Should it be demonstrated that further specificregulatory action is required . . . FRA will not hesitate to employ itsemergency powers or to initiate special- purpose proceedings directed tothe solution of individual problems. Therefore, as the primaryregulatory agency, FRA has exercised and continues to exercise itsjurisdiction over the safety of railroad operations.43 Fed. Reg. 10586 (1978).Since the citations relate to working conditions at a railroad bridgeworksite, Conrad points out that the policy statement specificallydeclares OSHA regulations do not apply to bridges. It states in part asfollows:. . . the OSHA regulations would not apply to ladders, platforms, andother surfaces on signal masts, catenary systems, railroad bridges,turntables, and similar structures or to walkways beside the tracks inyards or along the right-of-way. These are areas which are so much apart of the operating environment that they must be regulated by theagency with primary responsibility for railroad safety.43 Fed. Reg. 10587.Conrail also suggests that there has been congressional deference to FRAby a 1998 amendment to the Federal Railroad Safety Act (FRSA). Theamendment provides that:The Secretary shall within one year after June 22, 1988 issue suchrules, regulations, orders and standards as may be necessary for thesafety of maintenance of way employees, including standards for bridgesafety equipment, such as nets, walkways, handrails, and safety lines,and requirements relating to instances when boats shall be used.45 U.S.C. ? 431(n).Respondent notes that the Occupational Safety and Health Act (Act)itself acknowledges the jurisdiction of other federal agencies whichhave more specific Congressional authority to regulate workingconditions. Reference is made to Section 4(b)(1) of the Act which statesin part as follows:Nothing in this chapter shall apply to working conditions of employeeswith respect to which other Federal agencies … exercise statutoryauthority to prescribe or enforce standards or regulations affectingoccupational safety and health.The Secretary argues that Section 4(b)(1) does not provide forindustry-wide exemption and OSHA \”shall yield jurisdiction to a sisterfederal agency only to the extent that it actually exercises itsauthority and then only to the specific working conditions at issue.This actual exercise of authority can entail affirmative action, such asrulemaking, or by refusing to enact regulations after giving fullconsideration of the working conditions and articulating a formalposition as a result.\” Therefore, the FRA policy statement is notsufficient exercise of jurisdiction in this case.In argument both parties cite the Commission decision in \/ConsolidatedRail Corp.\/, 10 BNA OSHC 1577,1982 CCH OSHD ? 26,044 (No. 79-1277,1982). The Commission held the policy statement was sufficient exerciseto preempt OSHA by stating OSHA standards should not apply to theworking conditions in that case. The Commission relied on the decisionin \/Southern Pacific Transportation Co. v. Usery,\/ 539 F.2d 386 [4 OSHC1693] (5th Cir. 1976), \/cert.\/ \/denied\/, 434 U.S. 874 [5 OSHC 1888](1977) which states:Our rejection of the railroad’s position does not constitute anacceptance of the theory that every OSHA regulation remains operativeuntil the FRA adopts a regulation of its own on that specific subject… Neither OSHA itself nor the existence of OSHA regulations affectsthe ability of the primary regulatory agency, here the FRA, toarticulate its regulations as it chooses. Much of their displacingeffect will turn on that articulation. … Furthermore, as the dominantagency in its limited area, the FRA can displace OSHA regulations byarticulating a formal position that a given working condition should gounregulated or that certain regulations — and no others — should applyto a defined subject.Although the policy statement does not appear to \”articulate a formalposition,\” as stated by the Court or have \”the force and effect of law,\”[[1]] as indicated by Congress, the Commission ruling is binding in thiscase. Nonetheless, Conrail’s motion to dismiss must be dismissed.Conrail concedes that the FRA has yet to issue the rules and regulationsaffecting bridge safety, as directed by Congress in 1988. It is alsoacknowledged that the Administrator of the FRA argued in 1991 that thepolicy statement did not intend to preempt OSHA from all aspects ofbridge safety. 56 Fed. Reg. 3435 (1\/30\/91).The evidence fails to show that the FRA has issued standards or\”articulated a formal position\” regarding the regulation of the workingconditions cited in this case. Respondent’s motion is hereby dismissed.Dated this 25th day of June, 1992._\/s\/ Paul L. Brady _PAUL L BRADYJudgeSECRETARY OF LABOR,Complainant,v.CONSOLIDATED RAIL CORPORATION,Respondent.OSHRC DocketNos. 91-313391-3134*RESPONDENT CONSOLIDATED RAIL CORPORATION’S_BRIEF IN SUPPORT OF ITS MOTION TO DISMISS_*I. _Statement of Facts_On or about October 1-2, 1991, representatives of the OccupationalSafety and Health Administration (OSHA) conducted an inspection of aworksite located at a railroad bridge near the intersection of SaxonyRoad and Cincinnati-Dayton Road. This worksite consisted of maintenanceof way employees of Consolidated Rail Corporation (Conrail) who wereengaged in repair and maintenance work on the bridge. As a result ofthis inspection, OSHA issued two separate sets of citation to Conrail.The initial citation was dated October 8, 1991, and consisted of a twoitem serious citation alleging violations of 29 C.F.R. ? 1926.59(g)(8)and ? 1926.59(h). Conrail duty contested this citation and it wasthereafter docketed with the Review Commission under OSHRC Docket No.91-3133. OSHA then issued a second group of citations, still as a resultof the same inspection of the Miamisburg railroad bridge worksite, whichwas dated October 19, 1991. These citations consisted of a six itemserious citation, and a one item other-than-serious citation. Four ofthe items dealt with the scaffolding being used in the bridge work. Theremaining item concerned alleged violations of ? 1926.20(b)(2), ?1926.21(b)(2), and an alleged other-than-serious violation of ?1926-51(f). These citations were docketed with the Review Commissionunder OSHRC Docket No. 91-3134.Both Conrail and the Secretary have file discovery in those cases. Thehearing on the merits is scheduled for June 16, 1992 in Dayton, Ohio.II. _General Background___Conrail operates a railroad system in fourteen states in the Northeastand Midwest, the District of Columbia and one Canadian province.Conrail’s principal routes stretch from Illinois in the west toMassachusetts in the east, and from Kentucky in the south to Canada inthe north. The Conrail employees who construct and maintain thesethousands of miles of track, and hundreds of bridges, trestles and otherstructures are known in the industry as maintenance of way employees.These types of employees typically work in gangs, without fixedheadquarters, and move from location to location as the work progresses,in a kind of mobile assembly line. Other gangs may work at one site fora period of time until the work is completed, and then move on to a newproject. Many of Conrail’s maintenance of way employees are providedwith meals and lodging at the company’s expense. Camp cars are providedfor housing, and are subject to Federal Railroad Administration (FRA)guidelines and inspections. Although maintenance of way employees can becompared to construction workers in general industry, they are dailyconfronted with issues and situations unique to the railroad industry,and function in a way not easily duplicated elsewhere.As a railroad, Conrail is subject to numerous Acts that are designed toaddress the peculiar problems of the rail industry; the FederalEmployers’ Liability Act, 45 U.S.C. ? 51 et. seg., and the Railway LaborAct, 45 U.S.C. ? 151 et. seg., to name but a few. Similarly, a part ofthe Department of Transportation, the FRA, is charged with theresponsibility to \”carry out all railroad safety laws of the UnitedStates . . . The Secretary of Transportation is responsible for all actstaken under those laws and for ensuring that the laws are uniformlyadministered and enforced among the safety offices.\” 49 U.S.C. ? 103(a).The regulations enacted by the FRA can be found at 49 C.F.R. ? 213, et.seg. Congress has also enacted the Federal Rail Safety Act, 45 U.S.C. 42et. seq., directing the Department of Transportation to promulgateregulations on a variety of topics relating to safety in the railindustry. In accordance with its authority, the FRA administers suchregulations by conducting inspections, and issuing violations. Congresshas clearly demonstrated by the enactment of these laws the railroadindustry has problems and concerns that are unique, and merit separateconsideration apart from generic laws best suited for general industry.III._Legal Argument _In 1970 Congress enacted the Federal Railroad Safety Act (FRSA), 45U.S.C. ? 421, et. seq. As the Seventh Circuit Court of Appeals hasobserved, \”(T)he purpose of the Act was to provide comprehensive anduniform safety regulations for all areas of railroadoperations.\”_Chicago Transit Authority v. Flohr,_ 570 F.2d 1305, 1308(7th Cir. 1977). This analysis of the Congressional intent is validatedby the Act’s explicit directive to the Secretary of Transportation toadopt railroad regulations \”to promote safety in_all areas of railroadoperations_.\” 45 U.S.C. ? 432 (emphasis added).In 45 U.S.C. ? 434, Congress further confirmed its intention that laws,rules, regulations, orders and standards relating to railroad safetyshould be uniform and consistent. Indeed, the legislative history of theFRSA evidences an unmistakable Congressional intent favoring exclusiveFRA regulation:With the exception of industrial or plant railroads, the railroadindustry has very few local characteristics. Rather, in terms of itsoperation, it has a truly interstate character calling for a uniformbody of regulations and enforcement. It is a national system.H.R. Rep. No. 1194, 91st Cong., 2d Sess., reprinted in 1970 U.S. CodeCong. & Admin. News 4104, 4109-4111.Given this clear Congressional mandate, the preemptive effect of theFRSA has been broadly construed by the federal courts. For example, incommenting on the FRSA, the Third Circuit Court of Appeals said, \”Webelieve these statutory provisions evince, as the district courtdetermined, a ‘total preemptive intent.’\” _National Ass’n of RegulatoryUtility Com’rs v. Coleman,_ 542 F.2d 11, 13 (3rd Cir. 1976) Similarly,the Fifth Circuit has noted, \”The meaning of the Congressionaldeclaration is clear. The ultimate goal of the Act is to establishnational uniform control of railroad safety . . . . \” _Donelon v. NewOrleans Terminal Co.,_ 414 F-2d 1108, 1112 (5th Cir.)_cert. den._, 414U.S. 855 (1973).Of course, the federal courts have not been unmindful that theOccupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. ??651-678, also addresses occupational safety, but they have recognizedthat the OSH Act is primarily concerned with working conditions in abroader industrial environment, and that the OSH Act is inapplicablewhenever the FRA has primary jurisdiction over the railroad workingconditions at issue. _Velasquez v. Southern Pacific Transp. Co_., 734F.2d 216 (5th Cir. 1984); _Southern Pacific Transp. Co. v. Usery, _539F.2d 386, 391 (5th Cir. 1976),cert. denied, 434 U.S. 874 (1977);_Southern Ry. v. Occupational Saf. & H. Rev. Comm_., 539 F.2d 335, 339(4th Cir.) cert, den, 429 U.S. 999 (1976); and _Norfolk & W. Ry, v.Burns_ ,587 F. Supp. 161, 167 (E.D. Mich. 1984). Indeed, deference tothe Federal Railroad Administration’s primary jurisdiction overoccupational health and safety issues pertaining to the railroadindustry is reflected in Section 4(b)(1) of the OSH Act itself whichcedes jurisdiction over employee \”working conditions\” to other federalagencies which have more specific Congressional authority to enforcestandards or regulate working conditions affecting specific occupations:Nothing in this chapter shall apply to working conditions of employeeswith respect to which other Federal agencies . . . exercise statutoryauthority to prescribe or enforce standards or regulations affectingoccupational safety or health.29 U.S.C. ? 653 (b)(1).The language in Section 4(b)(1) of the OSH Act cannot be road to cloakOSHA with authority to stop in whenever OSHA perceives, correctly ornot, a dangerous situation which another agency may not be attending toproperly. As a Michigan District Court in a case involving a state withits own OSHA program (MIOSHA), noted:the test of preemption is not whether a hazard exists or not.Admittedly, in certain preempted areas, a MIOSHA inspector could go outand say there is a hazard in the roadbed, and no reasonably-mindedperson could disagree with him. But the test of preemption is broaderthan that. If the area itself is precluded from regulation, then thatpreclusion would be binding on MIOSHA._Burns_, _supra_ 587 F. Supp. at 172. This concept is essential to acomplete understanding of the limits of OSHA’s jurisdiction.Most importantly, the FRA has in the past consistently and emphaticallydeclared its exclusive jurisdiction over working conditions pertainingto railroad bridges. For example, in November, 1976, the FRA addressedthe issue of whether walkways should be required on all railroad bridgesas a matter of federal regulation. 41 Fed. Reg. 50 (1976). This FRArulemaking was terminated in April, 1977 when the FRA concluded thatsuch mandate could not be justified because it would impose significantadded financial burdens of the railroad industry. The FRA determinedthat diverting railroad resources from other maintenance and improvementprojects would not serve the overall interests of employee safety. 42red. Reg. 22185 (1977).The next year, however, on March 14, 1978, the FRA issued a sweepingpolicy statement describing the amount of authority it was willing tocede to OSHA. The FRA policy statement included the following declarations:Within the area of railroad operations, it is FRA which must decide whatregulations are necessary and feasible . . . FRA has now exercised itsstatutory authority . . . While it in expected that additionalregulatory initiative may be undertaken as necessary,. . . it is thejudgment of the agency that piecemeal regulation of individual hazards.. . by any other agency of government would be disruptive and contraryto the public interest. Should it be demonstrated that further specificregulatory action is required . . . FRA will not, hesitate to employ itsemergency powers or to initiate special-purpose proceedings directed tothe solution of individual problems. Therefore, as the primaryregulatory agency, FRA has exercised and continues to exercise itsjurisdiction over the safety of railroad operations.43 Fed. Reg. 10586 (1978).Specifically the FRA went on to declare that OSHA regulations would beallowed to have some application to railroad offices and shops that hadthe character of a general or industrial setting, but no more. The FRAretained exclusive jurisdiction over the railroads’ field operations andall matters pertaining to \”(1) track, roadbed and associated devices andstructures, (2) equipment and (3) human factors.\” 43 Fed. Reg. 10585. Inregard to those areas, the FRA declared that \”(I)n these traditionalareas of railroad safety, FRA has developed a special expertise whichmakes this agency uniquely qualified to play the primary role in theFederal Government’s role to assure safe employment … in activitiesrelated to railroad operations.\” 43, Fed.Reg 10585.Thus, the FRA declared its exclusive jurisdiction over the railroads,field operations, and specifically declared that OSHA regulations wouldnot apply to railroad bridges:OSHA regulations concerning working surfaces deal with such matters asladders, stairways, platforms, scaffolds and floor openings. Generally,theses regulations are applicable in railroad offices, shops, and otherfixed work places. There are three principal exceptions to the rule.First, they would not apply with respect to the design of locomotivesand other rolling equipment used on a railroad, since working conditionsrelated to such surfaces are regulated by FRA as major aspects ofrailroad. operations.Second, as the agency which has exercised jurisdiction over railroadoperation, FRA is \”responsible for the safe movement of rolling stockthrough railroad repair shops. OSHA requirements for general industryare in some respects inconsistent with the optimum safety of employeesin this unique environment where hazards from moving equipmentpredominate. Therefore, OSHA regulations on guarding of openpits,ditches, etc., would not apply to inspection pits in locomotive orcar repair facilities. FRA is better equipped to ensure proper clearancetechnology and employee knowledge of existing industry practices as wellas the prevalence and severity of hazards, represented by specificinjury occurrence codes in accident\/incident reporting statistics. FRAis responsible for determining what additional regulatory steps, if anymay be necessary in this area in light of overall safety considerations.Third, _the OSHA regulations would not apply _to ladders, platforms, andother surfaces on signal masts, centenary systems _railroad bridges,_turntables, and similar structures or to walkways beside the tracks inyards or along the right-of-way. _These are areas which are so much apart of the operating environment that they must be regulated by theagency with primary responsibility for railroad safety._43 Fed. Reg. 10587 (1978).The FRA, then, has unequivocally declared OSHA regulations inapplicableto those areas within FRA’s special expertise, including railroadbridges. It 1978 pronouncement ousted OSHA from any authority overworking conditions of railroad bridges because those physical structures\”are so much a part of the operating environment that they must beregulated by the agency with primary responsibility for railroadsafety.\” _Id._Congressional deference toward the FRA at the expense of OSHA’s moregeneric jurisdiction is unquestioned in the area of bridge safety. The1988 amendment to FRSA specifically states that \”standards for bridgesafety equipment\” are for the sole discretion of the Secretary ofTransportation and the Federal Railroad Administration:The Secretary shall within one year after June 22, 1988, issue suchrules, regulations, orders and standards as may be necessary for thesafety of maintenance of way employees, including standards for bridgesafety equipment, such as nets, walkways, handrails, and safety lines,and requirements relating to instance when boats shall be used.45 U.S.C. ? 431(n). This serves to confirm that OSHA has no authority toregulate maintenance of way employees who are working on railroadbridges, and that it is solely the responsibility of the FRA to \”issuesuch rules, regulations, orders and standards as it may deem to benecessary\” for the safety of railroad employees engaged in bridge work.[[1]]The Occupational Safety and Health Review Commission (the ReviewCommission) has recognized that \”there is no doubt that the FRA has thestatutory authority to regulate the safety of employees in the railroadindustry.\” _Secretary of Labor v. Consolidated Rail Corp._, 10 OSHC1577, 1579-81 (1982). Moreover, in the same proceeding the ReviewCommission conceded that the FRA’s declarations of jurisdiction in Marchof 1978 ousted OSHA from jurisdiction over all aspects of the railroadindustry other than limited jurisdiction over railroad shops and officesthat typified a more traditional industrial setting. Id. The Commissionalso cited a letter written by John M. Sullivan, the administrator ofthe FRA at the time the 1978 Policy Statement had been promulgated,which emphasized that by issuing its Policy Statement, \”the FRAarticulated its view that existing FRA regulations constitute acomprehensive exercise of authority over working conditions which arerooted in railroad operations.\” 10 OSHC at 1579 n. 8.[[2]]The federal courts have likewise held that OSHA jurisdiction overworking conditions on railroad bridges has specifically been preemptedby the FRA’s declaration of March, 1978. Recently, the Sixth Circuitconsidered the issue of FRA regulation of railroad bridges, and afterreviewing the FRA’s 1977 and 1978 pronouncements in the area, reiteratedthat the FRA clearly displaced all other regulations, and rendered theminapplicable to railroad bridges._Norfolk & W. Ry. v. Public UtilitiesComm’n of Ohio, _926 F.2d 567 (6th Cir. 1991)_rehearing den_. April 12,1991. The court also noted that the 1988 amendment to the FRSAspecifically \”reinforces the FRA’s exclusive authority\” over workingconditions involving railroad bridges. The statute unmistakablyunderscores Congress’, conviction that the FRA is best qualified todetermine what, if any, national regulation might be required to furtherthe interest of employee safety when working on railroad bridges._Norfolk & W. Ry._ 926 F.2d at 571–72.The court in _Norfolk & W. Ry_. also dismissed the argument thatpreemption cannot take effect until the FRA enacts specific regulationsof its own covering the same subject matter._Norfolk & W\/ Ry_ 926 F.2dat 570, citing _Ray v. Atlantic Richfield Co_., 435 U.S. 151, 178(1978). Ample federal precedent exists for the finding that the clearlanguage used by the FRA in its 1978 Policy Statement placed it wellwithin the rule of negative preemption \”whereby a federal agency’saffirmation of its own primary authority takes on the character of aruling that no such regulation is appropriate or approved.\” _Norfolk &W. Ry._, 727 F. Supp. 367, 369-70 aff’d, 926 F.2d 567 (6th Cir.1991)._See also Velasquez_, _supra_., 734 F.2d at 218. Further, onecannot argue that the FRA’s failure to act promptly in response to theCongressional mandate somehow constitutes the necessary authority forOSHA to \”fill in the gaps\” by being applicable to railroad bridges untilsuch time as the FRA actually issues regulations. The Ohio DistrictCourt in _Norfolk & W.Ry_. flatly rejected this reasoning:Finally, even if the amendment is viewed as a mandate, it does notfollow that the FRA’s failure to act within the time specified in theamendment operates to relegate regulation to the states contrary to theoverriding intent of the FRSA. The amendment makes no such provision andnothing in the legislative history suggests that Congress so intended._Norfolk & W. Ry._, 727 F. Supp. at 371, aff’d 926 F.2d 567 (6th Cir.1991). _See also Velasquez_, _supra_, 734 F.2d at 18. Similarly, in_Southern Pacific_, supra the Fifth Circuit Court of Appeals concludedthat OSHA regulations were subject to preemption by FRA mandate, even ifthe FRA did not adopt a regulation on the same subject. The Courtreasoned that the FRA’s exclusive jurisdiction over railroad \”workingconditions\” could be properly exercised, in terms of a hazard, _or interms of a place or physical structure._ Thus, _Southern Pacific_specifically states:Our rejection of the railroad’s position [on industry-wide exemption]does not constitute an acceptance of the theory that every regulationremains operative until the FRA adopts a regulation of its own on thatspecific subject . . . Section 4(b)(1) means that any FRA exercisedirected at a working condition — defined either in term of asurrounding or a \”hazard\” — displaces OSHA coverage of that workingcondition . . . furthermore, as the dominant federal agency in itslimited area the FRA can displace OSHA regulations by articulating aformal position that a given working condition should go unregulated orthat certain regulations — and no others — should apply to a definedsubject.In either situation, the scope of the exemption created by Section4(b)(1) is determined by the FRA’s intent, as derived from itsarticulations._Southern Pacific Transp. Co. v. Usery_, 539 F.2d at 391-92. _Accord_:_Southern Ry. v. OSHRC_, 539 F.2d 335, 338-40 (4th Cir. 1976);_Baltimore & O. R.R. v. OSHRC_, 548 F.2d 1052 (D.C. Cir. 1976). The FRAcould not have been more explicit in its 1978 Policy Statement that itintended to oust OSHA from any authority over working conditions onrailroad bridges when it stated that those physical structures \”are somuch a part of the operating environment that they must be regulated bythe agency with primary responsibility for railroad safety.\” 43 Fed.Reg. 10587 (1978). In fact, this view is reiterated in a 1989 letterfrom the FRA to Cynthia Attwood, the Associate Solicitor for the UnitedStates Department of Labor (See Exhibit B).That the FRA’s jurisdiction in this area has been generally accepted isapparent by the text of a 1991 letter from Gerald Scannell, theAssistant Secretary for OSHA, Department of Labor, who states that \”theFRA has jurisdiction over all areas of railroad safety that are directlyrelated to railroad operations, including those maintenance or repairduties performed by maintenance-of-way workers.\” (February 5, 1991letter from Scannell to Steven J. Anthony, of the Norfolk Southern. Acopy of the letter attached as Exhibit C). Although critical of theFRA’s efforts in the area, the Brotherhood of Maintenance of WayEmployee (BMWE), has also acknowledged the Agency’s responsibilities forthe safety of its membership (Testimony of Railway Labor Executives’Association before the Oversight Hearing on Railroad Safety, attached asExhibit D).IV. _Conclusion_The purpose of Section 4(b)(1) of the OSH Act was to allow specializedagencies to deal with the peculiar conditions of those industries thatsignificantly differ from general industry. Federal courts have againand again found that the FRA 1978 Policy Statement serves to preempt theOSH Act with reference to railroad bridges. The statutory languageclearly demonstrates that Congress intended the FRA to have exclusivejurisdiction over maintenance of way workers and railroad bridges.Congress has further served to underline the FRA’s jurisdiction bydirecting it to promulgate regulations dealing with various safetyissues regarding maintenance of way work. Conrail respectfully requests,therefore, that its motion to dismiss be granted, and that the citationsissued by OSHA as a result of its inspection of the Miamisburg railroadbridge be vacated.Respectfully submitted,NANCI A. HOOVERConsolidated Rail Corporation ATTORNEY FOR RESPONDENTMarch 7, 1989Ms. Cynthia L. AttwoodAssociate SolicitorSolicitor of LaborDear Ms. Attwood:I write in response to your request for answers to two questions: (1)does the Federal Railroad Administrative (FRA) have regulations toensure that fall protection equipment is provided railroad workers whereappropriate; and (2) does FRA have jurisdiction over the safety ofworkers performing track repair and maintenance?With regard to full protection for railroad workers, FRA does not nowhave such a rule in place. However, we expect to publish in the nearfuture a Notice of Proposal Rulemaking concerning the safety of railroademployees working on bridges. See Rail Safety Improvement Act of 1988(Pub. L. 100-342, 102 Stat. 624, June 22, 1988). We expect the proposedrule to address personal protective apparatus for use by railroademployees working on walkways, over or near water, or on scaffolds.These devices would include safety belts, lifelines, lanyards, safetynets, boats, railings and respirators.As to protection of maintenance-of-way workers performing trackmaintenance or repair, responsibility for their safety is FRA’s,according to the Policy Statement issued by FRA March 14, 1978, whichdelineates respective areas on FRA and OSHA jurisdictional authority. 43F.R. 10583. Following prefatory statements that FRA activity in the areaof occupational safety will concentrate on the \”safety of railroadoperations\” (i.e., \”conditions and procedures necessary to achieve thesafe movement of equipment over the rails\”), the Policy Statement notesthat \”… proper precautions to assure that trackmen are not struck bytrains or other equipment moving over the rails are part of the safetyof railroad operations.\” 43 F.R. 10585.In addition, the policy statement provides that\”. . . OSHA regulationswould not apply to. . . walkways beside the tracks in yards or alongright-of-way. These are areas which are so much a part of the operatingenvironment that they must be regulated by the agency with primaryresponsibility for railroad safety.\” 43 F.R. 10587.I hope this information is helpful. If you have any further questions,please contact me.Very truly yours,Original signed byGregory B. McBrideAssistant Chief Counselfor safetycc:Associate Administrator for safetyRegional Director, Region 2Mr. Steven J. Anthony Norfolk Southern CorporationDear Mr. Anthony:This letter is in response to your concerns about the safety and healthof railroad workers. Both the Occupational Safety and HealthAdministration (OSHA) and the Federal Railroad Administration (FRA) havecertain responsibilities for protecting the safety and health ofrailroad employees. A discussion of their respective jurisdictionalauthorities follows.Congress passed the Occupational Safety and Health Act of 1970 (OSH Act)to assure so far as possible safe and healthful working conditions forall workers. In passing the OSH Act, Congress was cognizant of theoccupational safety and health protection functions provided by otherFederal agencies. Under agency exercises its statutory authority forworkplace safety and health conditions. By including this provision,Congress prevented duplication of efforts among Federal agencies.In passing the Federal Railroad Safety Act of 1970, Congress gave thestatutory authority to protect the safety and health of railroademployees to the FRA. Under this authority in 1976, FRA published anotice of proposed rulemaking in the Federal Register concerning theissuance of railroad occupational safety and health standards. In March1978, however, FRA terminated its rulemaking efforts after reviewing thecomments submitted to the docket, and reconsidering its role in thegeneral area of occupational safety and health. Instead, FRA issued aPolicy Statement which delineated respective of OSHA and FRAjurisdictional authority for protection railroad employees. According tothe Policy Statement that has jurisdiction over all areas of railroadsafety that are directly related to railroad operations, including thosemaintenance or repair duties performed by maintenance-of-way workers.The three major areas of railroad operation that are regulated by FRAinclude tracks, road beds, and associated structures such as bridges;equipment; and human factors, such as hours of service. OSHA regulatesthose hazards which are not covered by FRA, such as those found inrepair shops, servicing areas, and other locations not directly relatedto operating railroads.In 1988, Congress passed the Railroad Safety Improvement Act which,among other things, amended Section 431 of the Federal Railroad SafetyAct to mandate that FRA issue regulations for the safety ofmaintenance-of-way employees. FRA has not yet issued rules implementingthis provision. We understand that FRA is presently considering possiblerulemaking for certain categories of railroad workers.Recordkeeping is the one area of joint OSHA and FRA jurisdiction for therailroad industry. In 1982, the Occupational Safety and Health ReviewCommission held, that railroad companies were subject to both FRA andOSHA recordkeeping requirements, due to OSHA’s continued interest inoccupational illnesses and injuries occurring in the industry.In sum, OSHA and FRA play separate, but complementing, roles inprotecting the safety and health of railroad employees. FRA hasjurisdiction over all areas of railroad safety that are directly relatedto railroad operations. OSHA protects workers from hazards which are notcovered by FRA. Recordkeeping is the only area in which the railroadindustry is subject to both OSHA and FRA requirements.If we may be of further assistance in this matter, please contact Ms.Regina Flahie of my staff at (202) 523-8021.Sincerely,Gerald F. ScannellAssistant SecretaryOctober 2, 1990BEFORE THE HOUSE SUBCOMMITTEE ON TRANSPORTATION AND HAZARDOUS MATERIALSOVERSIGHT HEARING ON RAILROAD SAFETYTESTIMONY OF RAILWAY LABOR EXECUTIVES ASSOCIATIONThe testimony is being submitted on behalf of the Railway LaborExecutives Association (\”RLEA\”). The constituent unions represented byRLEA are as follows:American Railway & Airway Supervisor’s Association,Division of TCUAmerican Train Dispatchers AssociationBrotherhood of Maintenance of Way EmployeeBrotherhood of Railroad SignalmenBrotherhood of Railroad Carmen, Division of TCUBrotherhood of Locomotive EngineersHotel Employees & Restaurant Employees International UnionInternational Association of Machinists & Aerospace WorkersInternational Brotherhood of Boilermakers & BlacksmithsInternational Brotherhood of Electrical WorkersInternational Brotherhood of Fireman & OfficersInternational Longshoreman’s AssociationNational Marine Engineers’ Beneficial AssociationSheet Metal Workers’ International AssociationInternational Union of North AmericaTransportation Communications UnionTransport Workers’ Union of AmericaThe Federal railroad enforcement program is seriously lacking due tomismanagement and misguided philosophical ideals. When Federalinspections fails, everyone suffers because there are so few shacks onthe system. After many years of bringing this overall conduct ofCongress, we sincerely appreciate this Committee requesting the GeneralAccounting Office (\”GAO\”) to investigate it. On April 22, 1982, we firstadvised your Subcommittee that \”The System Safety Plan represents abackward step in reducing accidents and injuries.\” We repeated ourconcerns many times during the ensuing years. Now, rail company. Withrespect to certain RSA mandates effect employee and public safety.A _Bridge Safety For Maintenance-Of-Way Employees_Today, we have a serious concern about the maintenance of way employees.In the RSIA, the FRA was told to issue several regulations concerningsafety for maintenance of way employees within one year from June 22,1988. FRA has only issued rules on blue flag protectors designed toprotect workers in camp cars, and it published interpretations of theapplication of the Hours of Service Act to employees in camp cars.Concerning camp cars, only after Congressional intervention and a jointproposal from the Brotherhood of Maintenance of Way Employee (\”BMWE\”)and the Association of American Railroads (\”AAR\”), that set in FRA forover one year, did FRA adopt guidelines concerning camp car safety andhealth. What is so distasteful here is FRA’s implicit promise to therailroads that it will not enforce the guidelines. See 56 Fed. Reg.30892-93 (July 27, 1990) where the FRA states, in part,in accord with the statute, FRA does not intend to penalize a railroadfor conditions not within its control, even if these conditions dointerfere with … FRA will not take enforcement action unless therailroad has failed to arrange for repair of the unit with reasonablepromptness…Nor does FRA intend to assess penalties for conditionswithin the railroads control that would not interfere with the rest ofan ordinary person.This is FRA parody at its finest. Just like every other FRA enforcementtactic, these camp car guidelines will be mocked by the railroads. Therailroads will merely promise to correct an unsafe condition and thenFRA will turn its back. The possibilities of what FRA will not enforceare endless. The probability that living conditions in camp cars willchange is nil.Of greater concern, is FRA’s adamant refusal to adopt \”standards forbridge safety equipment, such as nets, walkways, handrails, and safetylines…\” 45 U.S.C. ? 431(n). FRA has taken no action and its soledefense is its stated concern that the standards may encroach upon OSHAstandards. Since the enactment of the RSIA, FRA has completely avoidedthe issue with its gerrymander tactics. On March 7, 1989, FRA respondedto a Department of Labor inquiry with respect to protections mandatedby the RSIA. a letter to Ms.Cynthia L. Attwood Associate Solicitor ofLabor, FRA first states, \”We expect to publish in the near future anotice of proposed Rulemaking.\” See Attached Exhibit 2. This is October2,1990, eighteen months later, and still no notice. Second, FRA told thedepartment of labor, this area of employee safety is our \”responsibility…. according to the policy Statement issued by FRA March 14, 1978,. .. . Thus, on March 7, 1989, FRA made clear that it is responsible foremployee safety and that the Department of Labor should stay clear.For twelve years, FRA and the railroads have hidden behind the infamousPolicy Statement. The history of FRA abdication here is revealing. Allfederal track safety standards are contained in 49 C.F.R. Part 213.These standards were initially adopted on October 20, 1971. see 36 Fed.Reg. 20,336, and last amended on September 7, 1982. 47 Fed. Reg. 39,402.In neither of the rulemakings did the FRA consider promulgating rulescovering walkways or bridge safety equipment. In 1971, FRA stated thattime did not permit it to issue comprehensive standards applying to allareas of track construction and maintenance 36 Fed. Reg. 11,874 1971.The FRA has had other opportunities to adopt regulations coveringwalkways and has declined to do so. On March 7, 1975, FRA proposed toadopt certain railroad occupational safety and health standards whichwould incorporate the then existing OSHA standards printed at 29 C.F.R.? 1910 et seg. 40 Fed. Reg. 10,883 (1975). These initial standards wouldhave included walking-working surfaces. Subsequently, after receivingcomments on the proposed rulemaking,the FRA anticipated regulating onlythree areas: means of , fire protection,and environmental controls. See41 Fed. Reg. 20, 150, 20, 195 (1975).The FRA declined to providecoverage over walkways. On November 15, 1976, the FRA in Docket No.RS8-1 published an Advance Notice of Proposed Rulemaking (41 Fed. Reg.50,302) based on petitions for rulemaking filed by the RLEA to requirethe construction of walkways on railroad bridges, trestles and similarstructures. Based upon the comments it received, the FRA declined toadopt any rule covering walkways. In response to the question, \”Arefederal regulations concerning walkways appropriate? The FRA stated:Are federal regulations concerning walkways appropriate?Seven commenters expressed the opinion that a uniform federal standardfor walkways that would be applicable nationwide is not appropriate.Such a standard, they contended could not deal effectively with the widevariety of conditions that exists on railroads throughout the country.They cited the differences in topography and weather, traffic frequency,operating conditions and the design and historical or architecturalmerit of the structures. Because of this variety, the walkway questionshould be addressed on a case-by-case basis rather than by issuance of asingle uniform rule.Secondly, some railroads contended that, where a safety problem existsbecause of topography or operating conditions in a particular area orwith respect to particular structures, the problem is a local one whichshould be addressed by State regulatory agencies. Several commentersbelieved that, where such regulatory action has been necessary in thepast, State activity has been effective in responding to the safetyproblem on a case-by-case basis. The issuance of a Federal standard bywalkways might be counterproductive since it would generally preempt theStates from carrying out their responsibilities under existing Statelaws except where an essentially local safety hazard could beidentified. 42 Fed. Reg. 22,185 (1977). With respect to bridge safetystandards FRA stated that the OSHA regulations would not apply toladders, platforms, and other surfaces on signal masts, cantanarysystems, railroad bridges, turntables, and similar structures…Theseare areas which are so much a part of the operating enforcement thatthey must be regulated by the agency with primary responsibility forrailroad safety.43 Fed. Reg. 1058, 10586 (March 14, 1978). Ultimately, the FRA neveradopted its three initial proposed standards nor the contemplated seriesof standards. Instead, the FRA terminated its rulemaking proceedings andissued the Policy Statement. The FRA announced it would \”determine theneed for and of general standards to address individual hazards\” to suchsurface keeping in mind the requirements of proper clearances. Id at 10,587.Once again, the FRA has not enacted such regulations since the issuanceof this Policy Statement, and at the present time FRA is disregarding aspecific Congressional mandate. In order to satisfy certainCongressional inquiries and stay in the clear. Secretary Skinnerattempted to exonerate FRA for its failings in a letter to ChairmanLuken on July 13, 1990. See Attached Exhibit 3. However, SecretarySkinner takes a position that contradicts what FRA and the railroadshave been saving for the last twelve years. In his letter, SecretarySkinner statesFinally, section 19 required that the Secretary issue such rules as maybe necessary for safety of workers on railroad bridges. As explained atthe June 28 meeting with members of your staff, the Occupational Safetyand Health Administration (OSHA) currently has such standards for thesafety of workers on railroad bridges. The proposal submitted by theBMWE and the AAR was comprised of portions of those OSHA standards, butdeparted from them in many respects. Thus, the questions before FRA havebeen (i) whether, as a matter of agency resources, FRA should take overthis responsibility from OSHA via section 4(b)(1) of the OSH Act, and(ii) whether, as a matter of safety, existing OSHA standards can andshould be adjusted to account for the unique railroad environment.Secretary Skinner’s excuse for the delay is lame. For twelve years FRAhas forced OSHA to stand aside, forced states to bear witness to unsafework environments and forced rail labor to work without adequate safetyprotections. FRA’s March 1989, letter and Secretary Skinner’s letterneed some explanation.The FRA’s ukase directly conflicts with the statutory plain language,the legislative the legislative history, and the overall purpose of theRSIA. The RSIA constitutes a rejection FRA’s refusal to act. Congresshas expressly refused to sanction the decision of the FRA that theregulation of walkways is either unnecessary or inappropriate.B _Inspection and Maintenance of Signals At Grade Crossings_One of the most alarming safety problems in the railroad industry existsat grade crossings. We have long been concerned that this area ofrailroad safety has been relegated a low priority by the FRA. Ourconcerns are real and FRA’s treatment of the subject matter has notdiminished our fears.FOOTNOTES:[[1]] House Committee on Government Operations, H.R. Rep. No. 393, 97thCong., 1st Sess. 2 (1981).[[1]] Although Congress directed the FRA to issue the new rules andregulations in twelve months, the FRA has in fact not yet done so.However, the Notice for Proposed Rulemaking was issued on January 30,1991(56 Fed. Reg. 3434), a hearing was held, and written comments weresolicited. In a November, 1991 article in the magazine _Traffic World,_Gilbert Carmichael, the Administrator for the FRA, pledged to get therules out in early 1992 (A copy of the article is attached and marked asExhibit A). Due, no doubt, to President Bush’s moratorium, the FRA hasnot yet issued the regulations.[[2]] It is true that in 1991, the Administrator of the FRA confused thequestion of FRA\/OSHA jurisdiction by arguing that the Policy Statementdid not intend to OSHA from all aspects of bridge safety. 56 Fed. Reg.at 3435 (January 30, 1991). This conflicts with the previously heldposition of the FRA, as stated in the Policy Statement and as noted in aletter dated March 7, 1989 from the Assistant Chief Counsel for Safetyof the FRA (attached and marked as Exhibit B).Significantly, there is no recognized principle of law by which the FRAmay now overrule or trump the explicit language of the 1978 PolicyStatement by mischaracterising its purpose. The Congressional intent inthe matter of railroad bridges is clear, and is unequivocally confirmedby federal case law, the 1978 Policy Statement itself. This body of lawcannot now be changed by any ambiguity engendered by the FRA’s comments.Under federal law, such retrospective history, or \”loser’s history,\” asit had sometimes been labeled by federal courts, is not entitled to anyweight. _Consumer Product Safety Com’n v. QTE Sylvania, Inc.,_ 447 U.S.102 (1980); _Matter of Russell Sinclair,_ 870 F.2d 1340, 1342-43 (7thCir. 1989); _Northern Group Services v. Auto Owners Ins_. Co., 833 F.2d85, 92, (6th Cir. 1987).”