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April 14, 1982


The opinion of the court was delivered by: JAMES T. GILES



 APRIL 14, 1982

 By Statute, Pennsylvania requires locomotives to have speed recorders and indicators. 66 Pa. Cons. Stat. § 2705 (1978). *fn1" Plaintiff railroad, contending that the statute is preempted by federal law, sues the state *fn2" for a declaration that the statute is unconstitutional under the supremacy clause, U.S. Const. art. VI, cl. 2. Before me is plaintiff's motion for summary judgment. For the reasons which follow, the motion is granted.

 The railroad contends that the state statute conflicts with two federal statutes, the Locomotive Boiler Inspection Act, 45 U.S.C. § 23 (1976), and the Federal Railroad Safety Act, id. § 434, and a federal regulation, 49 C.F.R. § 229.117 (1980). The railroad argues that the Locomotive Inspection Act totally preempts the field of locomotive equipment, barring any state regulation of that subject. Alternatively, the railroad argues that the state statute is independently preempted by the test of the Railroad Safety Act, because a federal rule covers the same subject matter as the state statute.

 The state argues that Congress has redistributed railroad regulatory authority so that the total-preemption test of the Locomotive Inspection Act is no longer valid. It contends that the correct tests are those stated in the Railroad Safety Act. State regulations of speed recorders allegedly meets those tests because it does not cover the same subject matter as the federal regulation, or, if it does overlap, because it comes within the statutory exception of the Railroad Safety Act. *fn3"


 In the landmark Napier case, the Court held that Congress intended the Locomotive Boiler Inspection Act to occupy totally the field of locomotive equipment. *fn4" The Act, by itself, thus preempts state regulation of locomotive equipment. The state concedes that this was Congress's intent in passing the Locomotive Inspection Act. *fn5" The state, however, argues that "the rule of Napier. . . has been abrogated" by the Federal Railroad Safety Act, 45 U.S.C. § 434. See State's Brief, supra note 5, at 2. Thus, the question whether the state statute is preempted by the Locomotive Inspection Act turns on whether the latter act's preemptive purpose was modified by the Railroad Safety Act.

 Prior to passage of the Railroad Safety Act, federal law governed only a few areas of railroad safety. Congress found that this spotty federal coverage resulted in numerous preventable accidents. To remedy this problem it passed the Federal Railroad Safety Act. The Act aimed to promote railroad safety by insuring "broad Federal regulatory authority over all areas of railroad safety," *fn6" and promoting "nationally uniform" railroad-safety standards. *fn7" While expanding the field for federal regulation, Congress also stated a narrower rule governing preemption of state law. *fn8" The state contends that this rule operates to limit the scope of preemption of the Locomotive Inspection Act.

 That a reasonably strong argument exists in favor of the state's position is shown by Justice Roberts' opinion in Norfolk & Western Railway Co. v. Pennsylvania Public Utility Commission, 489 Pa. 109, 118-23, 413 A.2d 1037, 1042-44 (1980) (state law requiring flush toilets in locomotives not preempted by Locomotive Inspection Act because Railroad Safety Act changes preemption test). I, however, disagree with the state's argument for two reasons. First, the legislative history of the Railroad Safety Act shows that Congress intended no change to the Locomotive Inspection Act. Second, elimination of the total-preemption test for locomotive equipment runes contrary to the purpose of the Railroad Safety Act.

 In passing the Railroad Safety Act, Congress could have repealed the Locomotive Inspection Act, or recodified or subsumed it within the comprehensive Railroad Safety Act. *fn9" Instead, Congress concluded that the Locomotive Inspection Act was working well, and specifically determined to keep it independently in force "without change." *fn10" These decisions negate implied modification of any part of the Locomotive Inspection Act, including its total occupation of the locomotive-equipment field. *fn11"

 In expanding the scope of federal rule-making authority in the Railroad Safety Act, Congress allowed the states to continue regulating until displaced by federal rules in the same area. *fn12" The continued validity of state rules in areas that had always been subject to state regulation does not make railroad regulation less uniform than in the past. Thus, the new preemption rule, as applied to new areas of federal railroad regulatory jurisdiction, does not impair the congressional purpose of uniform regulation.

 In contrast, in areas already governed by the Locomotive Inspection Act, the states had no regulations. If the Railroad Safety Act were to change the preemption test for those areas, the states could expand their regulatory authority, allowing a new reservoir of differing, and possibly incompatible, railroad-safety law. *fn13" This would run counter to Congress's purpose of uniform national regulation. *fn14" It is contrary to Congress's purpose in passing the Railroad Safety Act to allow the states to reoccupy fields from which they previously had been displaced. Thus, I conclude that Congress did not intend the preemption provision of the Railroad Safety Act to modify the total-preemptive effect of the Locomotive Inspection Act.

 The state statute regulates locomotive equipment, an area totally preempted by the Locomotive Inspection Act. Therefore, to the extent that the state is attempting to regulate railroad common carriers within the jurisdiction of the Interstate Commerce Commission, see 45 U.S.C. § 22, the state statute conflicts with federal law and violates the supremacy clause.


 Even assuming, however, that the proper tests for preemption is that stated in the Railroad Safety Act, the Pennsylvania statute is still preempted. The Railroad Safety Act allows state railroad-safety regulation of areas not covered by the "subject matter" of a rule adopted by the federal government. Furthermore, a state may regulate railroad safety in the same area as the federal government if the state rule relates to "an essentially local safety hazard" and meets other conditions. *fn15"

 The Federal Railroad Administration has adopted a rule governing speed indicators in locomotives. *fn16" That rule requires locomotives to be equipped with speedometers. Because the rule does not require speed recorders, compare note 16 supra (federal rule), with note 1 supra (state statute), the state argues that it statute does not cover the same "subject matter" as the federal rule. Furthermore, the state contends that even if the subject matter is identical, the state law fits within the local-safety-hazard exception.

 A speed recorder, "in essence, . . . is a recording speedometer." *fn17" The speedometer and speed recorder often are incorporated in the same device, a fact recognized by the state statute. *fn18" Federal regulators thought speedometers and speed recorders belonged to the same subject matter. The Federal Railroad Administration discussed proposed speedometer and speed-recorder regulation under the same heading. See 39 Fed. Reg. 4929 (1974) (advance notice of proposed rulemaking). *fn19" This view of both devices as part of a unitary subject was shared by the Pennsylvania legislature, which regulated speedometers and speed recorders in the same sentence of the statute. See 66 Pa. Cons. Stat. § 2705(a); note 1 supra. I hold that regulation of speedometers and speed recorders is regulation of the same "subject matter" -- speed indication or speed control. Because state and federal rules cover the same area, the Railroad Safety Act preempts the state law unless it is saved by the local-hazard exception.

 The state statute, however, does not relate to a local safety hazard and makes no attempt at localization. On its face, the statute does not relate to a local problem. Speed indication, speed recording, and accident reconstruction generally affect interstate commerce and are national problems subject to national regulation. See, e.g., 44 Fed. Reg. 29,610-11, 29,617 (1979); 39 Fed. Reg. 4929 (1974).

 The state, however, argues that even if the law is not local in its language, it is local in intent and effect. The local hazard that the legislature intended to minimize is an allegedly unique, statewide problem resulting from the presence of hundreds of miles of high-speed railroad lines. See State's Brief, supra note 5, at 9. It is recognized that these high-speed lines cross Pennsylvania's borders and form part of the northeast corridor rail system. In National Association of Regulatory Utility Commissioners v. Coleman, 542 F.2d 11 (3d Cir. 1976), the state also argued that a statewide hazard was local. There, plaintiffs (including the Pennsylvania Public Utility Commission, see id. at 12,) challenged preemption of state accident-reporting requirements by federal regulations. One argument advanced by plaintiffs was that statewide requirements were "expressly excepted under the savings clause of Section 434." Id. at 14. That argument was "devoid of merit" then, id., and is devoid of merit now. *fn20" Therefore, I hold that the state statute is not exempt from preemption under the Railroad Safety Act.


 It would be constitutionally impermissible to apply 66 Pa. Cons. Stat. § 2507 to railroads, such as plaintiff, which are subject to federal jurisdiction under the Locomotive Inspection Act or the Railroad Safety Act.

 An appropriate order follows.


 AND NOW, this 13th day of April, 1982, it is hereby ORDERED that:

 1. Plaintiff's motion for summary judgment is GRANTED.

 2. JUDGMENT hereby is entered in favor of plaintiff and against defendants.

 3. It is declared that 66 Pa. Cons. Stat. § 2705 (1978) is preempted by 45 U.S.C. § 23 (1976), and by 45 U.S.C. § 434 (1976) and 49 C.F.R. § 229.117 (1980), and therefore, as applied to plaintiff, violates the supremacy clause, U.S. Const. art. VI, cl.2.


 James T. Giles, J.

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