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Trial lawyer and union organizations and two key congressmen are accusing the Federal Railroad Administration of attempting an end-run around a newly enacted federal law preserving state personal injury lawsuits against railroads. The vehicle, they charge, is a proposed railroad safety regulation whose preamble contains language pre-empting “any State law, regulation, or order, including State common law,” concerning the operation of a cab car or multiple-unit locomotive as the leading unit of a passenger train. The complaining groups and the chairmen of two House committees contend the preamble is inconsistent with a law signed by President Bush on Aug. 3 that clarified that the Federal Railway Safety Act of 1970 (FRSA) was not designed to pre-empt cases brought by victims of railroad derailments. The clarification, inserted in the homeland security law, “sends a loud and clear message that the FRSA in no way preempts state common law claims,” said Representative James L. Oberstar, D-Minn., chairman of the House Committee on Transportation and Infrastructure, and Representative Bennie G. Thompson, D-Miss., chairman of the House Committee on Homeland Security, in a letter to Joseph Boardman, administrator of the Federal Railroad Administration (FRA). “Accordingly, the FRA’s preamble containing language attempting to preempt state common law standards directly contradicts Congressional intent and subverts the legislative determination,” they wrote. The Brotherhood of Locomotive Engineers and Trainmen goes further to accuse the FRA of issuing the preamble “in a naked attempt to affect the outcome of a judicial appeal” in which the defendant appellant is a railroad involved in the largest commuter train derailment in modern times. A 2005 collision On Jan. 26, 2005, a California Metrolink commuter train, traveling in push mode (the locomotive in the rear pushing three passenger cars in front of it) collided with another Metrolink train traveling in the opposite direction. The derailment resulted in 11 deaths and approximately 150 injured passengers, some with very severe and permanent residual disabilities. “We believe there is substantial evidence establishing that FRA published this preamble concerning this subject at this time specifically in an attempt to assist Metrolink in its appeal,” said the union’s John P. Tolman, vice president and national legislative representative, in formal comments on the proposed rule. Steven W. Kulm, public affairs director for the FRA, said the agency does not comment on public comments received during the course of proposed rule-making. “We will certainly address those comments in our final rule,” he said. The public comment period closed on Oct. 1. Federal lawmakers became involved in the railroad pre-emption issue primarily at the behest of their colleagues from North Dakota and California. The “Railroad Preemption Clarification,” inserted in the law implementing the recommendations of the 9/11 Commission, was made retroactive to Jan. 18, 2002, to ensure that lawsuits stemming from a derailment on that date in Minot, N.D., could proceed. Federal courts had found those suits pre-empted by the FRSA. It also establishes that states may adopt additional or more stringent laws, regulations or orders relating to railroad safety or security under certain specified circumstances. [NLJ, Aug. 13]. The Federal Railroad Administration issued its notice of proposed rule-making, which included the pre-emption preamble, “just four days” after Congress voted to approve its pre-emption clarification, noted Gerie Voss, regulatory counsel to the American Association for Justice. Preambles are not supposed to have legal effect, but often do, said Voss. “We’ve had cases in several different disciplines where courts would give deference to an agency opinion in the preamble to a rule,” she said. “In the ongoing litigation in Glendale, California, the railroad is pointing to the FRA’s proposed rule and saying this is an indication of what the FRA believes, and that should dictate how any cases move forward. The railroad is ignoring the law.”

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