“Docket No. 91-3133 91-3134 SECRETARY OF LABOR,Complainant,v.CONSOLIDATED RAIL CORPORATION,Respondent.Docket Nos. 91-3133 & 91-3134ORDER\u00a0On July 1, 1992, Respondent filed a Petition forInterlocutory Review requesting review of the administrative law judge’s order denying itsMotion to Dismiss. Respondent argues that under section 4(b)(1) of the Occupational Safetyand Health Act of 1970, 29 U.S.C ? 653(b)(1), the Occupational Safety and HealthAdministration (\”OSHA\”) lacks jurisdiction over the worksite. Since the worksiteinvolved the repair and maintenance of a railroad bridge, the Respondent argues that itwas under the exclusive jurisdiction of the Federal Railroad Administration(\”FRA\”) due to the FRA’s assertion of its regulatory authority and the resultingpreemption of OSHA’s jurisdiction. The Secretary has. filed an Opposition to the Petition.The Commission has reviewed the Petition forInterlocutory Review and the Secretary’s Opposition and finds that under Commission Rule73(a), 29 C.F.R. ? 2200.73(a), this case involves an important question of law aboutwhich there is substantial ground for difference of opinion and that immediate review ofthe ruling may materially expedite the disposition of the proceedings. Accordingly, thePetition for Interlocutory Review is granted. The proceedings before the AdministrativeLaw Judge, including the hearing scheduled for July 24, 1992; are stayed.Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Commissioner\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Velma Montoya\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0CommissionerDated July 22, 1992VIA FEDERAL EXPRESSMr. Ray Darling, Jr.Executive SecretaryOccupational Safety & Health Review Commission RE: Secretary v. Consolidated Rail Corporation OSHRC Docket Nos. 91-3133 and 91-3134Dear Mr. Darling:Enclosed please find the original and four copies of Respondent’s Petition forInterlocutory Review for filing in the above-referenced matter.Copies have been served upon all interested parties. Very truly yours,NANCI A. HOOVER Associate General Counsel 17NAH: ldEnclosuresCopy: All Interested Parties\u00a0SECRETARY OF LABOR,Complainant,v.CONSOLIDATED RAIL CORPORATION,Respondent.Docket Nos. 91-3133 & 91-3134RESPONDENT CONSOLIDATED RAIL CORPORATION’S PETITION FOR INTERLOCUTORY REVIEWPursuant to 29 C.F.R. ? 2200-73, Respondent,Consolidated Rail Corporation (Conrail), hereby petitions the Review Commission for aninterlocutory review of Administrative Law Judge Brady’s Order denying Respondent’s Notionto Dismiss. In support of this Motion, Respondent asserts that review of this Orderinvolves an important question of law and policy about which there in substantial groundfor difference of opinion and that immediate review of the ruling may materially expeditethe final disposition of the proceedings. The reasons for this Petition are set forth inthe accompanying Memorandum of Law.WHEREFORE, respondent respectfully requests that thispetition be granted.Respectfully submitted,NANCI A. HOOVER\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Consolidated Rail CorporationATTORNEY FOR RESPONDENTSECRETARY OF LABOR,Complainant,v.CONSOLIDATED RAIL CORPORATION,Respondent.Docket Nos. 91-313391-3134RESPONDENT CONSOLIDATED RAIL CORPORATION’SMEMORANDUM IN SUPPORT OF PETITION FOR INTERLOCUTORY REVIEWIn early October of 1991, representatives of theOccupational Safety and Health Administration (OSHA) conducted an inspection of a worksitelocated at a railroad bridge near the intersection of the Cincinnati-Dayton Road andSaxony Road in Miamisburg, Ohio. At the time of the inspection, a Consolidated RailCorporation (Conrail) maintenance of way gang was engaged in maintenance and repair workupon the railroad bridge. An a result of this inspection, citations were issued to Conrailfor alleged violations of OSHA regulations found at the worksite. Those citations havebecome the basis for two related proceedings before the Review Commission, OSHRC DocketNo. 91-3133 and No. 91-3134. On May 8, 1992, Conrail filed a Motion to Dismiss theSecretary’s complaints in these matters, on the basis that OSHA did not have jurisdictionover the working conditions cited. Rather, the Federal Railroad Administration (FRA), theagency designated by Congress as responsible for safety in the railroad industry, has solejurisdiction to issue and enforce regulations regarding the safety of maintenance of wayemployees, and upon railroad bridges. A copy of this Motion is attached and marked asExhibit \”A\”.By Order dated June 25, 1992, Judge Brady held thatOSHA was not, under section 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 thiscase by the Federal Railroad Administration (FRA). A copy of this Order is attached andmarked as Exhibit \”B\”.This Order denied Respondent Consolidated RailCorporation’s (Conrail) Motion to Dismiss the Secretary’s complaint in this matter.Respondent now seeks an immediate review of this Order pursuant to 29 U.S.C. ? 2200.73,which permits interlocutory review upon the discretion of the Review Commission, and wherethe Commission finds that the review \”involves an important question of law or policyabout which there in substantial ground for difference of opinion and the immediate reviewof the ruling may materially expedite the final disposition of the proceedings.\”There is no question that this standard is met withrespect to Judge Brady’s Order. The preemption issue in the area of bridge safety forrailroad maintenance of way employees in an important question of law that has significantramifications throughout the railroad industry. This threshold jurisdictional questionwarrants an immediate resolution. A declaration of the agency responsible for this areawould eliminate any potential confusion on this subject, and benefit both employers andemployees.That this is a legal question for which there is substantial ground for difference ofopinion is also easily shown from an examination of the law in this area. For example, asJudge Brady himself admits, in 1978 the Federal Railroad Administration (FRA) spokedirectly on this subject in its Policy Statement, which noted that:[T]he OSHA regulations would not apply to ladders, platforms, and other surfaces on signalmasts, centenary systems, railroad bridges, turntables, and similar structures or towalkways beside the tracks in yards or along the right-of-way. These are areas which areso much a part of the operating environment that they must be regulated by the agency withprimary responsibility for railroad safety.43 Fed. Reg. 10587 (1978). Yet, Judge Brady found that the FRA did not preempt OSHA inthis matter because they have failed to issue regulations on this subject. This directlycontravenes a prior decision of the Review Commission on this very question, when it foundthat \”the FRA policy statement is an exercise of the FRA’s statutory authority thatgives rise to an exemption under section 4(b)(1) of the OSH Act.\” ConsolidatedRail Corporation, 10 OSHC 1577, 1579 (1982). Various courts have similarly dismissedthe theory espoused by the Order of June 25, 1992, (see, e.g., Velasquez v. SouthernPacific Co., 734 F.2d 216 (5th Cir. 1984), and Norfolk & W. Ry. v. PublicUtilities Com’n of Ohio, 926 F.2d 567 (6th Cir. 1991) rehearing den. April 12, 1991))and many more courts have found that, on the subject of railroad bridge safety andmaintenance of way employees, the FRA has the sole authority to issue and promulgateregulations. A full review of the law in this matter is contained in Respondent’s Brief inSupport of Its Motion to Dismiss, 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 exist for a differingopinion from that of the Judge in this case.An immediate review of this matter would serve to materially expedite the finaldisposition of the proceedings in these cases. This is a practical determination requiringan assessment of the litigation situation, particularly the prospects for settlement andthe costs of litigation. The parties here are sharply divided on the jurisdiction, as amatter of law, of OSHA in this situation. A hearing on the merits of the citations iscurrently scheduled for July 24, 1992, in Dayton, Ohio before Judge Brady. Anauthoritative statement of the law would not only settle an issue of general importance tothe industry, it would clarify the scope of Conrail’s duties and responsibilities in thisarea, and thus precipitate meaningful settlement discussions. A hearing on the meritswould involve a lot of unnecessary expense and time from all parties, and could be avoidedby granting review of Judge Brady’s Order, and staying the proceedings before theAdministrative Law Judge.For all these reasons, the Review Commission should grant review of Judge Brady’s Order ofJune 25, 1992. This review certainly involves an important question of law about whichthere is substantial ground for difference of opinion and an immediate review of thisruling would materially 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. 91-313391-3134RESPONDENT CONSOLIDATED RAIL CORPORATION’SMOTION TO DISMISS SECRETARY’S COMPLAINTPursuant to 29 C.F.R. ? 2200.40(a) ,Respondent, Consolidated Rail Corporation (Conrail),hereby moves for an order dismissing the Secretary’s complaint in this matter for lack ofjurisdiction. In support of this motion Respondent states the following:1. On or about, October 1-2, 1991, Complainant conducted an inspection of Respondentsworkplace located at the railroad bridge near the intersection of Cincinnati-Dayton Roadand Saxony Road.2. At the time of the inspection, the worksite consisted of Conrail maintenance, of wayemployees who were engaged in maintenance and repair duties on the railroad bridge.3. As a result of this inspection, citations were issued to Respondent by Complainant,alleging that Conrail had violated the OSH Act at this worksite. In accordance with OSHAct procedures, these citations that were issued are now the subject of two relatedactions before the Occupational Safety and Health Review Commission; Docket No. 91-3133and Docket 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 working conditions of employees withrespect to which other Federal agencies. . . exercise statutory authority.to prescribe orenforce standards or regulations affecting occupational safety or health.\” [[29]]U.S.C. ? 653(b)(1).5. Congress has specifically designated the Federal Railroad Administration (FRA) ashaving the authority to issue rules, regulations or standards concerning the safety ofmaintenance of way employees, and Bridge safety. [[45]] U.S.C. ? 431(n).6. OSHA has no jurisdiction to issue citations and proposed penalties for allegedviolations of the OSH Act at said worksite, because PRA has preempted OSHA’s authority inthis matter.WHEREFORE, respondent respectfully requests that this motion be granted, and an order beissued dismissing the Secretary’s complaint in this matter.Respectfully submitted,NANCI A. HOOVERConsolidated Rail Corporation ATTORNEY FOR RESPONDENTSECRETARY OF LABOR,Complainant,v.CONSOLIDATED RAIL CORPORATION,Respondent.Docket Nos.91-3133 & 91-3134ORDER DENYING MOTION TO DISMISSRespondent, Consolidated Rail Corporation (Conrail) filed a motion to dismiss thecitations in this case asserting the Occupational Safety and Health Administration (OSHA)has no jurisdiction because the railroad is subject to the jurisdiction of the FederalRailway Administration (FRA). In support of the motion, Respondent asserts that anyquestion of OSHA jurisdiction 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 what regulations arenecessary and feasible … FRA has now exercised its statutory authority … While it isexpected that additional regulatory initiative may be undertaken as necessary. . . it isthe judgement of the agency that piecemeal regulation of individual hazards … by anyother agency of government would be disruptive and contrary to the public interest. Shouldit be demonstrated that further specific regulatory action is required . . . FRA will nothesitate to employ its emergency powers or to initiate special- purpose proceedingsdirected to the solution of individual problems. Therefore, as the primary regulatoryagency, FRA has exercised and continues to exercise its jurisdiction over the safety ofrailroad operations.43 Fed. Reg. 10586 (1978).Since the citations relate to working conditions at a railroad bridge worksite, Conradpoints out that the policy statement specifically declares OSHA regulations do not applyto bridges. It states in part as follows:. . . the OSHA regulations would not apply to ladders, platforms, and other surfaces onsignal masts, catenary systems, railroad bridges, turntables, and similar structures or towalkways beside the tracks in yards or along the right-of-way. These are areas which areso much a part of the operating environment that they must be regulated by the agency withprimary responsibility for railroad safety.43 Fed. Reg. 10587.Conrail also suggests that there has been congressional deference to FRA by a 1998amendment to the Federal Railroad Safety Act (FRSA). The amendment provides that: The Secretary shall within one year after June 22, 1988 issue such rules, regulations,orders and standards as may be necessary for the safety of maintenance of way employees,including standards for bridge safety equipment, such as nets, walkways, handrails, andsafety 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 thejurisdiction of other federal agencies which have more specific Congressional authority toregulate working conditions. Reference is made to Section 4(b)(1) of the Act which statesin part as follows: Nothing in this chapter shall apply to workingconditions of employees with respect to which other Federal agencies … exercisestatutory authority to prescribe or enforce standards or regulations affectingoccupational safety and health.The Secretary argues that Section 4(b)(1) does not provide for industry-wide exemption andOSHA \”shall yield jurisdiction to a sister federal agency only to the extent that itactually exercises its authority and then only to the specific working conditions atissue. This actual exercise of authority can entail affirmative action, such asrulemaking, or by refusing to enact regulations after giving full consideration of theworking conditions and articulating a formal position as a result.\” Therefore, theFRA policy statement is not sufficient exercise of jurisdiction in this case.In argument both parties cite the Commission decision in Consolidated Rail Corp.,10 BNA OSHC 1577,1982 CCH OSHD ? 26,044 (No. 79-1277, 1982). The Commission held thepolicy statement was sufficient exercise to preempt OSHA by stating OSHA standards shouldnot apply to the working conditions in that case. The Commission relied on the decision inSouthern Pacific Transportation Co. v. Usery, 539 F.2d 386 [4 OSHC 1693] (5thCir. 1976), cert. denied, 434 U.S. 874 [5 OSHC 1888] (1977) whichstates:Our rejection of the railroad’s position does not constitute an acceptance of the theorythat every OSHA regulation remains operative until the FRA adopts a regulation of its ownon that specific subject … Neither OSHA itself nor the existence of OSHA regulationsaffects the ability of the primary regulatory agency, here the FRA, to articulate itsregulations as it chooses. Much of their displacing effect will turn on that articulation…. Furthermore, as the dominant agency in its limited area, the FRA can displace OSHAregulations by articulating a formal position that a given working condition should gounregulated or that certain regulations — and no others — should apply to a definedsubject.Although the policy statement does not appear to \”articulate a formal position,\”as stated by the Court or have \”the force and effect of law,\” [[1]] as indicatedby Congress, the Commission ruling is binding in this case. Nonetheless, Conrail’s motionto dismiss must be dismissed.Conrail concedes that the FRA has yet to issue the rules and regulations affecting bridgesafety, as directed by Congress in 1988. It is also acknowledged that the Administrator ofthe FRA argued in 1991 that the policy statement did not intend to preempt OSHA from allaspects of bridge safety. 56 Fed. Reg. 3435 (1\/30\/91).The evidence fails to show that the FRA has issued standards or \”articulated a formalposition\” regarding the regulation of the working conditions 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. 91-313391-3134RESPONDENT CONSOLIDATED RAIL CORPORATION’SBRIEF IN SUPPORT OF ITS MOTION TO DISMISSI. Statement of FactsOn or about October 1-2, 1991, representatives of the Occupational Safety and HealthAdministration (OSHA) conducted an inspection of a worksite located at a railroad bridgenear the intersection of Saxony Road and Cincinnati-Dayton Road. This worksite consistedof maintenance of way employees of Consolidated Rail Corporation (Conrail) who wereengaged in repair and maintenance work on the bridge. As a result of this inspection, OSHAissued two separate sets of citation to Conrail. The initial citation was dated October 8,1991, and consisted of a two item 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 thenissued a second group of citations, still as a result of the same inspection of theMiamisburg railroad bridge worksite, which was dated October 19, 1991. These citationsconsisted of a six item serious citation, and a one item other-than-serious citation. Fourof the items dealt with the scaffolding being used in the bridge work. The remaining itemconcerned alleged violations of ? 1926.20(b)(2), ? 1926.21(b)(2), and an allegedother-than-serious violation of ? 1926-51(f). These citations were docketed with theReview Commission under OSHRC Docket No. 91-3134.Both Conrail and the Secretary have file discovery in those cases. The hearing on themerits is scheduled for June 16, 1992 in Dayton, Ohio.II. General BackgroundConrail operates a railroad system in fourteen statesin the Northeast and Midwest, the District of Columbia and one Canadian province.Conrail’s principal routes stretch from Illinois in the west to Massachusetts in the east,and from Kentucky in the south to Canada in the north. The Conrail employees who constructand maintain these thousands of miles of track, and hundreds of bridges, trestles andother structures are known in the industry as maintenance of way employees. These types ofemployees typically work in gangs, without fixed headquarters, and move from location tolocation as the work progresses, in a kind of mobile assembly line. Other gangs may workat one site for a period of time until the work is completed, and then move on to a newproject. Many of Conrail’s maintenance of way employees are provided with meals andlodging at the company’s expense. Camp cars are provided for housing, and are subject toFederal Railroad Administration (FRA) guidelines and inspections. Although maintenance ofway employees can be compared to construction workers in general industry, they are dailyconfronted with issues and situations unique to the railroad industry, and function in away not easily duplicated elsewhere.As a railroad, Conrail is subject to numerous Acts that are designed to address thepeculiar problems of the rail industry; the Federal Employers’ Liability Act, 45 U.S.C. ?51 et. seg., and the Railway Labor Act, 45 U.S.C. ? 151 et. seg., to name but a few.Similarly, a part of the Department of Transportation, the FRA, is charged with theresponsibility to \”carry out all railroad safety laws of the United States . . . TheSecretary of Transportation is responsible for all acts taken under those laws and forensuring that the laws are uniformly administered and enforced among the safetyoffices.\” 49 U.S.C. ? 103(a). The regulations enacted by the FRA can be found at 49C.F.R. ? 213, et. seg. Congress has also enacted the Federal Rail Safety Act, 45 U.S.C.42 et. seq., directing the Department of Transportation to promulgate regulations on avariety of topics relating to safety in the rail industry. In accordance with itsauthority, the FRA administers such regulations by conducting inspections, and issuingviolations. Congress has clearly demonstrated by the enactment of these laws the railroadindustry has problems and concerns that are unique, and merit separate consideration apartfrom generic laws best suited for general industry.III. Legal Argument In 1970 Congress enacted the Federal Railroad SafetyAct (FRSA), 45 U.S.C. ? 421, et. seq. As the Seventh Circuit Court of Appeals hasobserved, \”(T)he purpose of the Act was to provide comprehensive and uniform safetyregulations for all areas of railroad operations.\”Chicago Transit Authority v.Flohr, 570 F.2d 1305, 1308 (7th Cir. 1977). This analysis of the Congressional intentis validated by the Act’s explicit directive to the Secretary of Transportation to adoptrailroad regulations \”to promote safety in all areas of railroad operations.\”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 safety should be uniform andconsistent. Indeed, the legislative history of the FRSA evidences an unmistakableCongressional intent favoring exclusive FRA regulation:With the exception of industrial or plant railroads, the railroad industry has very fewlocal characteristics. Rather, in terms of its operation, it has a truly interstatecharacter calling for a uniform body of regulations and enforcement. It is a nationalsystem.H.R. Rep. No. 1194, 91st Cong., 2d Sess., reprinted in 1970 U.S. Code Cong. & Admin.News 4104, 4109-4111.Given this clear Congressional mandate, the preemptive effect of the FRSA has been broadlyconstrued by the federal courts. For example, in commenting on the FRSA, the Third CircuitCourt of Appeals said, \”We believe these statutory provisions evince, as the districtcourt determined, a ‘total preemptive intent.’\” National Ass’n of RegulatoryUtility Com’rs v. Coleman, 542 F.2d 11, 13 (3rd Cir. 1976) Similarly, the FifthCircuit has noted, \”The meaning of the Congressional declaration is clear. Theultimate goal of the Act is to establish national uniform control of railroad safety . . .. \”\u00a0 Donelon v. New Orleans Terminal Co., 414 F-2d 1108, 1112 (5th Cir.)cert. den., 414 U.S. 855 (1973).Of course, the federal courts have not been unmindful that the Occupational Safety andHealth Act of 1970 (OSH Act), 29 U.S.C. ?? 651-678, also addresses occupational safety,but they have recognized that the OSH Act is primarily concerned with working conditionsin a broader industrial environment, and that the OSH Act is inapplicable whenever the FRAhas primary jurisdiction over the railroad working conditions at issue. Velasquez v.Southern Pacific Transp. Co., 734 F.2d 216 (5th Cir. 1984); Southern PacificTransp. Co. v. Usery, 539 F.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 ,587F. Supp. 161, 167 (E.D. Mich. 1984). Indeed, deference to the Federal RailroadAdministration’s primary jurisdiction over occupational health and safety issuespertaining to the railroad industry is reflected in Section 4(b)(1) of the OSH Act itselfwhich cedes jurisdiction over employee \”working conditions\” to other federalagencies which have more specific Congressional authority to enforce standards or regulateworking conditions affecting specific occupations:Nothing in this chapter shall apply to working conditions of employees with respect towhich other Federal agencies . . . exercise statutory authority to prescribe or enforcestandards or regulations affecting occupational 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 cloak OSHA with authorityto stop in whenever OSHA perceives, correctly or not, a dangerous situation which anotheragency may not be attending to properly. As a Michigan District Court in a case involvinga state with its own OSHA program (MIOSHA), noted:the test of preemption is not whether a hazard exists or not. Admittedly, in certainpreempted areas, a MIOSHA inspector could go out and say there is a hazard in the roadbed,and no reasonably-minded person could disagree with him. But the test of preemption isbroader than that. If the area itself is precluded from regulation, then that preclusionwould be binding on MIOSHA. Burns, supra 587 F. Supp. at 172. This concept is essential to a completeunderstanding of the limits of OSHA’s jurisdiction.Most importantly, the FRA has in the past consistently and emphatically declared itsexclusive jurisdiction over working conditions pertaining to railroad bridges. Forexample, in November, 1976, the FRA addressed the issue of whether walkways should berequired on all railroad bridges as a matter of federal regulation. 41 Fed. Reg. 50(1976). This FRA rulemaking was terminated in April, 1977 when the FRA concluded that suchmandate could not be justified because it would impose significant added financial burdensof the railroad industry. The FRA determined that diverting railroad resources from othermaintenance and improvement projects would not serve the overall interests of employeesafety. 42 red. Reg. 22185 (1977).The next year, however, on March 14, 1978, the FRA issued a sweeping policy statementdescribing the amount of authority it was willing to cede to OSHA. The FRA policystatement included the following declarations:Within the area of railroad operations, it is FRA which must decide what regulations arenecessary and feasible . . . FRA has now exercised its statutory authority . . . While itin expected that additional regulatory initiative may be undertaken as necessary,. . . itis the judgment of the agency that piecemeal regulation of individual hazards. . . by anyother agency of government would be disruptive and contrary to the public interest. Shouldit be demonstrated that further specific regulatory action is required . . . FRA will not,hesitate to employ its emergency powers or to initiate special-purpose proceedingsdirected to the solution of individual problems. Therefore, as the primary regulatoryagency, FRA has exercised and continues to exercise its jurisdiction over the safety ofrailroad operations.43 Fed. Reg. 10586 (1978). Specifically the FRA went on to declare that OSHA regulations would be allowed to havesome application to railroad offices and shops that had the character of a general orindustrial setting, but no more. The FRA retained exclusive jurisdiction over therailroads’ field operations and all matters pertaining to \”(1) track, roadbed andassociated devices and structures, (2) equipment and (3) human factors.\” 43 Fed. Reg.10585. In regard to those areas, the FRA declared that \”(I)n these traditional areasof railroad safety, FRA has developed a special expertise which makes this agency uniquelyqualified to play the primary role in the Federal Government’s role to assure safeemployment … in activities related 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 would not apply to railroad bridges:OSHA regulations concerning working surfaces deal with such matters as ladders, stairways,platforms, scaffolds and floor openings. Generally, theses regulations are applicable inrailroad offices, shops, and other fixed work places. There are three principal exceptionsto the rule. First, they would not apply with respect to the design of locomotives andother rolling equipment used on a railroad, since working conditions related to suchsurfaces are regulated by FRA as major aspects of railroad. operations.Second, as the agency which has exercised jurisdiction over railroad operation, FRA is\”responsible for the safe movement of rolling stock through railroad repair shops.OSHA requirements for general industry are in some respects inconsistent with the optimumsafety of employees in this unique environment where hazards from moving equipmentpredominate. Therefore, OSHA regulations on guarding of open pits,ditches, etc., would notapply to inspection pits in locomotive or car repair facilities. FRA is better equipped toensure proper clearance technology and employee knowledge of existing industry practicesas well as the prevalence and severity of hazards, represented by specific injuryoccurrence codes in accident\/incident reporting statistics. FRA is responsible fordetermining what additional regulatory steps, if any may be necessary in this area inlight of overall safety considerations.Third, the OSHA regulations would not apply to ladders, platforms, and othersurfaces on signal masts, centenary systems railroad bridges, turntables, andsimilar structures or to walkways beside the tracks in yards or along the right-of-way. Theseare areas which are so much a part of the operating environment that they must beregulated by the agency with primary responsibility for railroad safety.43 Fed. Reg. 10587 (1978).The FRA, then, has unequivocally declared OSHA regulations inapplicable to those areaswithin FRA’s special expertise, including railroad bridges. It 1978 pronouncement oustedOSHA from any authority over working conditions of railroad bridges because those physicalstructures \”are so much a part of the operating environment that they must beregulated by the agency with primary responsibility for railroad safety.\” Id.Congressional deference toward the FRA at the expense of OSHA’s more generic jurisdictionis unquestioned in the area of bridge safety. The 1988 amendment to FRSA specificallystates that \”standards for bridge safety equipment\” are for the sole discretionof the Secretary of Transportation and the Federal Railroad Administration:The Secretary shall within one year after June 22,1988, issue such rules, regulations, orders and standards as may be necessary for thesafety of maintenance of way employees, including standards for bridge safety equipment,such as nets, walkways, handrails, and safety lines, and requirements relating to instancewhen boats shall be used.45 U.S.C. ? 431(n). This serves to confirm that OSHA has no authority to regulatemaintenance of way employees who are working on railroad bridges, and that it is solelythe responsibility of the FRA to \”issue such rules, regulations, orders and standardsas it may deem to be necessary\” for the safety of railroad employees engaged inbridge work.[[1]]The Occupational Safety and Health Review Commission (the Review Commission) hasrecognized that \”there is no doubt that the FRA has the statutory authority toregulate the safety of employees in the railroad industry.\” Secretary of Labor v.Consolidated Rail Corp., 10 OSHC 1577, 1579-81 (1982). Moreover, in the sameproceeding the Review Commission conceded that the FRA’s declarations of jurisdiction inMarch of 1978 ousted OSHA from jurisdiction over all aspects of the railroad industryother than limited jurisdiction over railroad shops and offices that typified a moretraditional industrial setting. Id. The Commission also cited a letter written by John M.Sullivan, the administrator of the FRA at the time the 1978 Policy Statement had beenpromulgated, which emphasized that by issuing its Policy Statement, \”the FRAarticulated its view that existing FRA regulations constitute a comprehensive exercise ofauthority over working conditions which are rooted in railroad operations.\” 10 OSHCat 1579 n. 8.[[2]]The federal courts have likewise held that OSHA jurisdiction over working conditions onrailroad bridges has specifically been preempted by the FRA’s declaration of March, 1978.Recently, the Sixth Circuit considered the issue of FRA regulation of railroad bridges,and after reviewing the FRA’s 1977 and 1978 pronouncements in the area, reiterated thatthe FRA clearly displaced all other regulations, and rendered them inapplicable torailroad bridges. Norfolk & W. Ry. v. Public Utilities Comm’n of Ohio, 926 F.2d567 (6th Cir. 1991) rehearing den. April 12, 1991. The court also noted that the1988 amendment to the FRSA specifically \”reinforces the FRA’s exclusiveauthority\” over working conditions involving railroad bridges. The statuteunmistakably underscores Congress’, conviction that the FRA is best qualified to determinewhat, if any, national regulation might be required to further the interest of employeesafety when working on railroad bridges. Norfolk & W. Ry. 926 F.2d at 571–72.The court in Norfolk & W. Ry. also dismissed the argument that preemptioncannot take effect until the FRA enacts specific regulations of its own covering the samesubject matter. Norfolk & W\/ Ry 926 F.2d at 570, citing Ray v. AtlanticRichfield Co., 435 U.S. 151, 178 (1978). Ample federal precedent exists for thefinding that the clear language used by the FRA in its 1978 Policy Statement placed itwell within the rule of negative preemption \”whereby a federal agency’s affirmationof its own primary authority takes on the character of a ruling that no such regulation isappropriate or approved.\” Norfolk & W. Ry., 727 F. Supp. 367, 369-70aff’d, 926 F.2d 567 (6th Cir. 1991). See also Velasquez, supra., 734 F.2d at218. Further, one cannot argue that the FRA’s failure to act promptly in response to theCongressional mandate somehow constitutes the necessary authority for OSHA to \”fillin the gaps\” by being applicable to railroad bridges until such time as the FRAactually issues regulations. The Ohio District Court in Norfolk & W.Ry. flatlyrejected this reasoning:Finally, even if the amendment is viewed as a mandate, it does not follow that the FRA’sfailure to act within the time specified in the amendment operates to relegate regulationto the states contrary to the overriding intent of the FRSA. The amendment makes no suchprovision and nothing 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). Seealso Velasquez, supra, 734 F.2d at 18. Similarly, in Southern Pacific,supra the Fifth Circuit Court of Appeals concluded that OSHA regulations were subject topreemption by FRA mandate, even if the FRA did not adopt a regulation on the same subject.The Court reasoned that the FRA’s exclusive jurisdiction over railroad \”workingconditions\” could be properly exercised, in terms of a hazard, or in terms of aplace or physical structure. Thus, Southern Pacific specifically states:Our rejection of the railroad’s position [on industry-wide exemption] does not constitutean acceptance of the theory that every regulation remains operative until the FRA adopts aregulation of its own on that specific subject . . . Section 4(b)(1) means that any FRAexercise directed at a working condition — defined either in term of a surrounding or a\”hazard\” — displaces OSHA coverage of that working condition . . . furthermore,as the dominant federal agency in its limited area the FRA can displace OSHA regulationsby articulating a formal position that a given working condition should go unregulated orthat certain regulations — and no others — should apply to a defined subject.In either situation, the scope of the exemption created by Section 4(b)(1) is determinedby the FRA’s intent, as derived from its articulations.Southern Pacific Transp. Co. v. Usery, 539F.2d at 391-92. Accord: Southern Ry. v. OSHRC, 539 F.2d 335, 338-40 (4thCir. 1976); Baltimore & O. R.R. v. OSHRC, 548 F.2d 1052 (D.C. Cir. 1976). TheFRA could not have been more explicit in its 1978 Policy Statement that it intended tooust OSHA from any authority over working conditions on railroad bridges when it statedthat those physical structures \”are so much a part of the operating environment thatthey must be regulated by the agency with primary responsibility for railroadsafety.\” 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 United States Departmentof Labor (See Exhibit B).That the FRA’s jurisdiction in this area has been generally accepted is apparent by thetext of a 1991 letter from Gerald Scannell, the Assistant Secretary for OSHA, Departmentof Labor, who states that \”the FRA has jurisdiction over all areas of railroad safetythat are directly related to railroad operations, including those maintenance or repairduties performed by maintenance-of-way workers.\” (February 5, 1991 letter fromScannell to Steven J. Anthony, of the Norfolk Southern. A copy of the letter attached asExhibit C). Although critical of the FRA’s efforts in the area, the Brotherhood ofMaintenance of Way Employee (BMWE), has also acknowledged the Agency’s responsibilitiesfor the safety of its membership (Testimony of Railway Labor Executives’ Associationbefore the Oversight Hearing on Railroad Safety, attached as Exhibit D).IV. ConclusionThe purpose of Section 4(b)(1) of the OSH Act was to allow specialized agencies to dealwith the peculiar conditions of those industries that significantly differ from generalindustry. Federal courts have again and again found that the FRA 1978 Policy Statementserves to preempt the OSH Act with reference to railroad bridges. The statutory languageclearly demonstrates that Congress intended the FRA to have exclusive jurisdiction overmaintenance of way workers and railroad bridges. Congress has further served to underlinethe FRA’s jurisdiction by directing it to promulgate regulations dealing with varioussafety issues regarding maintenance of way work. Conrail respectfully requests, therefore,that its motion to dismiss be granted, and that the citations issued by OSHA as a resultof its inspection of the Miamisburg railroad bridge be vacated.Respectfully submitted,NANCI A. HOOVERConsolidated Rail Corporation\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0ATTORNEY 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 FederalRailroad Administrative (FRA) have regulations to ensure that fall protection equipment isprovided railroad workers where appropriate; and (2) does FRA have jurisdiction over thesafety of workers performing track repair and maintenance?With regard to full protection for railroad workers,FRA does not now have such a rule in place. However, we expect to publish in the nearfuture a Notice of Proposal Rulemaking concerning the safety of railroad employees workingon bridges. See Rail Safety Improvement Act of 1988 (Pub. L. 100-342, 102 Stat. 624, June22, 1988). We expect the proposed rule to address personal protective apparatus for use byrailroad employees working on walkways, over or near water, or on scaffolds. These deviceswould include safety belts, lifelines, lanyards, safety nets, boats, railings andrespirators.As to protection of maintenance-of-way workersperforming track maintenance or repair, responsibility for their safety is FRA’s,according to the Policy Statement issued by FRA March 14, 1978, which delineatesrespective areas on FRA and OSHA jurisdictional authority. 43 F.R. 10583. Followingprefatory statements that FRA activity in the area of occupational safety will concentrateon the \”safety of railroad operations\” (i.e., \”conditions and proceduresnecessary to achieve the safe movement of equipment over the rails\”), the PolicyStatement notes that \”… proper precautions to assure that trackmen are not struckby trains or other equipment moving over the rails are part of the safety of railroadoperations.\” 43 F.R. 10585.In addition, the policy statement provides that\”. . . OSHA regulations would notapply to. . . walkways beside the tracks in yards or along right-of-way. These are areaswhich are so much a part of the operating environment that they must be regulated by theagency with primary responsibility 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 Corporation Dear Mr. Anthony: This letter is in response to your concerns about the safety and health of railroadworkers. Both the Occupational Safety and Health Administration (OSHA) and the FederalRailroad Administration (FRA) have certain responsibilities for protecting the safety andhealth of railroad employees. A discussion of their respective jurisdictional authoritiesfollows.Congress passed the Occupational Safety and Health Act of 1970 (OSH Act) to assure so faras possible safe and healthful working conditions for all workers. In passing the OSH Act,Congress was cognizant of the occupational safety and health protection functions providedby other Federal agencies. Under agency exercises its statutory authority for workplacesafety and health conditions. By including this provision, Congress prevented duplicationof efforts among Federal agencies.In passing the Federal Railroad Safety Act of 1970, Congress gave the statutory authorityto protect the safety and health of railroad employees to the FRA. Under this authority in1976, FRA published a notice of proposed rulemaking in the Federal Register concerning theissuance of railroad occupational safety and health standards. In March 1978, however, FRAterminated its rulemaking efforts after reviewing the comments submitted to the docket,and reconsidering its role in the general area of occupational safety and health. Instead,FRA issued a Policy Statement which delineated respective of OSHA and FRA jurisdictionalauthority for protection railroad employees. According to the Policy Statement that hasjurisdiction over all areas of railroad safety that are directly related to railroadoperations, including those maintenance or repair duties performed by maintenance-of-wayworkers. The three major areas of railroad operation that are regulated by FRA includetracks, road beds, and associated structures such as bridges; equipment; and humanfactors, such as hours of service. OSHA regulates those hazards which are not covered byFRA, such as those found in repair shops, servicing areas, and other locations notdirectly related to operating railroads.In 1988, Congress passed the Railroad Safety Improvement Act which, among other things,amended Section 431 of the Federal Railroad Safety Act to mandate that FRA issueregulations for the safety of maintenance-of-way employees. FRA has not yet issued rulesimplementing this 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 the railroadindustry. In 1982, the Occupational Safety and Health Review Commission held, thatrailroad companies were subject to both FRA and OSHA recordkeeping requirements, due toOSHA’s continued interest in occupational illnesses and injuries occurring in theindustry. In sum, OSHA and FRA play separate, but complementing, roles in protecting the safety andhealth of railroad employees. FRA has jurisdiction over all areas of railroad safety thatare directly related to railroad operations. OSHA protects workers from hazards which arenot covered by FRA. Recordkeeping is the only area in which the railroad industry issubject to both OSHA and FRA requirements.If we may be of further assistance in this matter, please contact Ms. Regina Flahie of mystaff at (202) 523-8021. Sincerely,Gerald F. ScannellAssistant SecretaryOctober 2, 1990BEFORE THE HOUSE SUBCOMMITTEE ON TRANSPORTATION AND HAZARDOUS MATERIALSOVERSIGHT HEARING ON RAILROAD SAFETYTESTIMONY OF\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0RAILWAY LABOR EXECUTIVES ASSOCIATIONThe testimony is being submitted on behalf of theRailway Labor Executives Association (\”RLEA\”). The constituent unionsrepresented by RLEA are as follows:American Railway & Airway Supervisor’sAssociation,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 to mismanagement andmisguided philosophical ideals. When Federal inspections fails, everyone suffers becausethere are so few shacks on the system. After many years of bringing this overall conductof Congress, we sincerely appreciate this Committee requesting the General AccountingOffice (\”GAO\”) to investigate it. On April 22, 1982, we first advised yourSubcommittee that \”The System Safety Plan represents a backward step in reducingaccidents and injuries.\” We repeated our concerns many times during the ensuingyears. Now, rail company. With respect to certain RSA mandates effect employee and publicsafety. A Bridge Safety For Maintenance-Of-Way EmployeesToday, we have a serious concern about themaintenance of way employees. In the RSIA, the FRA was told to issue several regulationsconcerning safety for maintenance of way employees within one year from June 22, 1988. FRAhas only issued rules on blue flag protectors designed to protect workers in camp cars,and it published interpretations of the application of the Hours of Service Act toemployees in camp cars. Concerning camp cars, only after Congressional intervention and ajoint proposal from the Brotherhood of Maintenance of Way Employee (\”BMWE\”) andthe Association of American Railroads (\”AAR\”), that set in FRA for over oneyear, did FRA adopt guidelines concerning camp car safety and health. What is sodistasteful here is FRA’s implicit promise to the railroads that it will not enforce theguidelines. See 56 Fed. Reg. 30892-93 (July 27, 1990) where the FRA states, in part,in accord with the statute, FRA does not intend topenalize a railroad for conditions not within its control, even if these conditions dointerfere with … FRA will not take enforcement action unless the railroad has failed toarrange for repair of the unit with reasonable promptness…Nor does FRA intend to assesspenalties for conditions within the railroads control that would not interfere with therest of an ordinary person.This is FRA parody at its finest. Just like every other FRA enforcement tactic, these campcar guidelines will be mocked by the railroads. The railroads will merely promise tocorrect an unsafe condition and then FRA will turn its back. The possibilities of what FRAwill not enforce are endless. The probability that living conditions in camp cars willchange is nil.Of greater concern, is FRA’s adamant refusal to adopt\”standards for bridge safety equipment, such as nets, walkways, handrails, and safetylines…\” 45 U.S.C. ? 431(n). FRA has taken no action and its sole defense is itsstated concern that the standards may encroach upon OSHA standards. Since the enactment ofthe RSIA, FRA has completely avoided the issue with its gerrymander tactics. On March 7,1989, FRA responded to a Department of Labor inquiry with respect\u00a0 to protectionsmandated by the RSIA. a letter to Ms.Cynthia L. Attwood Associate Solicitor of Labor, FRAfirst states, \”We expect to publish in the near future a notice of proposedRulemaking.\” See Attached Exhibit 2. This is October 2,1990, eighteen months later,and still no notice. Second, FRA told the department of labor, this area of employeesafety is our \”responsibility …. according to the policy Statement issued by FRAMarch 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 hiddenbehind the infamous Policy Statement. The history of FRA abdication here is revealing. Allfederal track safety standards are contained in 49 C.F.R. Part 213. These standards wereinitially adopted on October 20, 1971. see 36 Fed. Reg. 20,336, and last amended onSeptember 7, 1982. 47 Fed. Reg. 39,402. In neither of the rulemakings did the FRA considerpromulgating rules covering walkways or bridge safety equipment. In 1971, FRA stated thattime did not permit it to issue comprehensive standards applying to all areas of trackconstruction and maintenance 36 Fed. Reg. 11,874 1971.The FRA has had other opportunities to adopt regulations covering walkways and hasdeclined to do so. On March 7, 1975, FRA proposed to adopt certain railroad occupationalsafety and health standards which would incorporate the then existing OSHA standardsprinted at 29 C.F.R. ? 1910 et seg. 40 Fed. Reg. 10,883 (1975). These initial standardswould have included walking-working surfaces. Subsequently, after receiving comments onthe proposed rulemaking,the FRA anticipated regulating only three areas: means of , fireprotection,and environmental controls. See 41 Fed. Reg. 20, 150, 20, 195 (1975).The FRAdeclined to provide coverage 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 onpetitions for rulemaking filed by the RLEA to require the construction of walkways onrailroad bridges, trestles and similar structures. Based upon the comments it received,the FRA declined to adopt any rule covering walkways. In response to the question,\”Are federal regulations concerning walkways appropriate? The FRA stated:Are federal regulations concerning walkways appropriate?Seven commenters expressed the opinion that a uniform federal standard for walkways thatwould be applicable nationwide is not appropriate. Such a standard, they contended couldnot deal effectively with the wide variety of conditions that exists on railroadsthroughout the country. They cited the differences in topography and weather, trafficfrequency, operating conditions and the design and historical or architectural merit ofthe structures. Because of this variety, the walkway question should be addressed on acase-by-case basis rather than by issuance of a single uniform rule.Secondly, some railroads contended that, where a safety problem exists because oftopography or operating conditions in a particular area or with respect to particularstructures, the problem is a local one which should be addressed by State regulatoryagencies. Several commenters believed that, where such regulatory action has beennecessary in the past, State activity has been effective in responding to the safetyproblem on a case-by-case basis. The issuance of a Federal standard by walkways might becounterproductive since it would generally preempt the States from carrying out theirresponsibilities under existing State laws except where an essentially local safety hazardcould be identified. 42 Fed. Reg. 22,185 (1977). With respect to bridge safety standardsFRA stated that the OSHA regulations would not apply to ladders, platforms, and othersurfaces on signal masts, cantanary systems, railroad bridges, turntables, and similarstructures…These are areas which are so much a part of the operating enforcement thatthey must be regulated by the agency with primary responsibility for railroad safety.43 Fed. Reg. 1058, 10586 (March 14, 1978). Ultimately, the FRA never adopted its threeinitial proposed standards nor the contemplated series of standards. Instead, the FRAterminated its rulemaking proceedings and issued the Policy Statement. The FRA announcedit would \”determine the need for and of general standards to address individualhazards\” to such surface keeping in mind the requirements of proper clearances. Id at10,587.Once again, the FRA has not enacted such regulations since the issuance of this PolicyStatement, and at the present time FRA is disregarding a specific Congressional mandate.In order to satisfy certain Congressional inquiries and stay in the clear. SecretarySkinner attempted to exonerate FRA for its failings in a letter to Chairman Luken on July13, 1990. See Attached Exhibit 3. However, Secretary Skinner takes a position thatcontradicts what FRA and the railroads have been saving for the last twelve years. In hisletter, Secretary Skinner statesFinally, section 19 required that the Secretary issue such rules as may be necessary forsafety of workers on railroad bridges. As explained at the June 28 meeting with members ofyour staff, the Occupational Safety and Health Administration (OSHA) currently has suchstandards for the safety of workers on railroad bridges. The proposal submitted by theBMWE and the AAR was comprised of portions of those OSHA standards, but departed from themin many respects. Thus, the questions before FRA have been (i) whether, as a matter ofagency resources, FRA should take over this 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 FRA has forced OSHA tostand aside, forced states to bear witness to unsafe work environments and forced raillabor to work without adequate safety protections. FRA’s March 1989, letter and SecretarySkinner’s letter need some explanation.The FRA’s ukase directly conflicts with the statutory plain language, the legislative thelegislative history, and the overall purpose of the RSIA. The RSIA constitutes a rejectionFRA’s refusal to act. Congress has expressly refused to sanction the decision of the FRAthat the regulation of walkways is either unnecessary or inappropriate.B\u00a0 Inspection and Maintenance of Signals At Grade CrossingsOne of the most alarming safety problems in the railroad industry exists at gradecrossings. We have long been concerned that this area of railroad safety has beenrelegated a low priority by the FRA. Our concerns are real and FRA’s treatment of thesubject matter has not diminished our fears.FOOTNOTES: [[1]] House Committee on Government Operations, H.R. Rep. No. 393, 97th Cong., 1st Sess. 2(1981).[[1]] Although Congress directed the FRA to issue thenew rules and regulations 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), ahearing was held, and written comments were solicited. In a November, 1991 article in themagazine Traffic World, Gilbert Carmichael, the Administrator for the FRA, pledgedto get the rules 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 has not yet issued theregulations.[[2]] It is true that in 1991, the Administrator ofthe FRA confused the question of FRA\/OSHA jurisdiction by arguing that the PolicyStatement did not intend to OSHA from all aspects of bridge safety. 56 Fed. Reg. at 3435(January 30, 1991). This conflicts with the previously held position of the FRA, as statedin the Policy Statement and as noted in a letter dated March 7, 1989 from the AssistantChief Counsel for Safety of the FRA (attached and marked as Exhibit B).Significantly, there is no recognized principle of law by which the FRA may now overruleor trump the explicit language of the 1978 Policy Statement by mischaracterising itspurpose. The Congressional intent in the matter of railroad bridges is clear, and isunequivocally confirmed by federal case law, the 1978 Policy Statement itself. This bodyof law cannot now be changed by any ambiguity engendered by the FRA’s comments. Underfederal law, such retrospective history, or \”loser’s history,\” as it hadsometimes been labeled by federal courts, is not entitled to any weight. ConsumerProduct Safety Com’n v. QTE Sylvania, Inc., 447 U.S. 102 (1980); Matter of RussellSinclair, 870 F.2d 1340, 1342-43 (7th Cir. 1989); Northern Group Services v. AutoOwners Ins. Co., 833 F.2d 85, 92, (6th Cir. 1987).”