SUPREME COURT OF THE UNITED STATES

                                    --------
                             Nos. 91-790 AND 91-1206
                                    --------

                      CSX TRANSPORTATION, INC., PETITIONER
                    91-790             v.
                                       __
                    LIZZIE BEATRICE EASTERWOOD


                    LIZZIE BEATRICE EASTERWOOD, PETITIONER
                    91-1206            v.
                                       __
                            CSX TRANSPORTATION, INC.
                       ON WRIT OF CERTIORARI TO THE UNITED
                    STATES COURT OF APPEALS FOR THE ELEVENTH
                                     CIRCUIT

                                [April 21, 1993]

  JUSTICE  THOMAS,  with  whom  JUSTICE  SOUTER joins,  concurring  in  part and
dissenting in part.

  I  believe  that  the  Federal  Railroad  Safety  Act  and  the  Secretary  of
Transportation's  implementing regulations pre-empt neither of respondent/cross-
petitioner Easterwood's state-law  tort claims.  I  therefore concur in  Parts I
and II of the Court's opinion but dissent from the remainder.
  In  Part III of its opinion,  the Court holds that  the Secretary's regulation
setting "maximum  allowable  operating  speeds  for all  freight  and  passenger
trains" pre-empts Easterwood's claim  that CSX "breached its common-law  duty to
operate its  train at a  moderate and  safe rate of  speed" below the  federally
specified maximum speed at the Cook Street crossing.  Ante, at 14 (citing 49 CFR
                                                      ____
S213.9(a)  (1992)).   The  Court  concedes,  however,  that  "the provisions  of
S213.9(a) address  only  the maximum  speeds at  which trains  are permitted  to
travel  given the  nature of  the track  on which  they operate."   Ante,  at 15
        _______________________________________________________     ____
(emphasis added).  Likewise, CSX makes no effort to characterize

                        91-790 & 91-1206 - CONCUR/DISSENT

2                    CSX TRANSPORTATION, INC. v. EASTERWOOD
                                             ____

any duty to  reduce speed under Georgia  law as a state-law  obligation based on
track  safety, the precise "subject matter" "cover[ed]" by the Secretary's speed
regulation.  45 U. S. C. S434.   Indeed, CSX admits  that it shoulders a  state-
law duty to take measures  against crossing accidents, including an  "attempt to
stop     or     slow     the     train    if     possible     to     avoid     a
collision." (Ftnote. 1)   Reply Brief for Petitioner  in No. 91-790, p.  3.  The
            (Ftnote. 1)
Court effectively agrees,  as is evident from its decision  to limit its opinion
to a  common-law negligence action for  excessive speed and from  its refusal to
address related state-law claims for the violation of a statutory speed limit or
the failure to avoid a specific hazard.  See ante, at 16-17, and n. 15.  For me,
                                             ____
these concessions dictate the conclusion that Easterwood's excessive speed claim
escapes pre-emption.  Speed limits based solely on track characteristics, see 49
CFR  SS213.51-213.143  (1992),  cannot be  fairly  described  as  "substantially
subsum[ing] the  subject matter of . . . state law" regulating speed as a factor
in grade crossing safety.  Ante, at 5.
                           ____
  The Secretary's own explanation of his train speed regulation confirms my view
that the  federal speed  standard does  not pre-empt  state regulation  of train
speed  as a method of ensuring crossing  safety.  When the Secretary promulgated
his speed  regulation in conjunction  with a set  of track safety  standards, he
declined  to  consider "variable  factors such  as  population density  near the
track" because  these matters fell "beyond  the scope of the  notice of proposed
rule  making."  36 Fed.  Reg. 20336 (1971).   See also id.,  at 11974 (notice of
                                                       ___
proposed rule-

























                    
____________________

   1)  See generally Ga. Code Ann. S46-8-190(b) (1992) (requiring an "engineer
   1)  
operating [a] locomotive" to "exercise due care in approaching [a] crossing, in
order to avoid doing injury to any person or property which may be on the
crossing"); Georgia Railroad & Banking Co. v. Cook, 94 Ga. App. 650, 651-652, 95
            ______________________________    ____
S. E. 2d 703, 706-707 (1956); Atlantic Coast Line R. Co. v. Bradshaw, 34 Ga.
                              __________________________    ________
App. 360, 129 S. E. 304 (1925).

                        91-790 & 91-1206 - CONCUR/DISSENT

                     CSX TRANSPORTATION, INC. v. EASTERWOOD                    3
                                             ____

making). (Ftnote. 2)    By  contrast,  the  state  law  supporting  Easterwood's
         (Ftnote. 2)
excessive speed  claim would impose liability on CSX for "operating [a] train at
a speed that was greater than reasonable and safe" at a crossing "adjacent  to a
busily traveled  thoroughfare."  App. 4-5.   Because the Secretary  has not even
considered  how train speed affects crossing safety,  much less "adopted a rule,
regulation, order, or standard covering [that]  subject matter," Georgia remains
free to "continue in force any law" regulating train speed for this purpose.  45
U. S. C. S434.
  Only by  invoking a broad regulatory "background" can the  Court conclude that
"S213.9(a) should be understood  as covering the subject  matter of train  speed
with respect to track conditions."  Ante, at 16.  It rests in part on the Manual
                                    ____
on  Uniform Traffic Control Devices for Streets  and Highways, which has no pre-
emptive  effect by  its  own terms  or under  the federal  regulations requiring
compliance  with   it.    See  ante,  at  9-11;  23  CFR  S646.214(b)(1)  (1992)
                               ____
(permitting "State  standards" to "supplemen[t]" the Manual).  The Court goes so
far as to rely  on a federal crossing  gate regulation that concededly does  not
govern  the  Cook Street  site.   Compare ante,  at  15 ("[A]utomatic  gates are
                                          ____
required for federally funded projects"), with ante, at 13 ("These  facts do not
                                               ____
establish  that  federal  funds  `participate[d]  in  the  installation  of  the
[warning]  devices' at Cook Street")  (quoting 23 CFR S646.214(b)(3)(i) (1992)).
Rather than attempt to excavate such scant
























                    
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   2)  I reject the Solicitor General's contention that "[t]he Secretary has
   2)  
concluded that reduced train speeds do not represent an appropriate method of
preventing crossing accidents."  Brief for United States as Amicus Curiae 29. 
                                                            _____________
The very source cited in support of this proposition states that "[i]f a colli-
sion [at a crossing] seems unavoidable," a locomotive engineer "must decide
whether the train should be slowed or put into emergency mode."  Rail-Highway
Crossings Study, Report of the Secretary of Transportation to the United States
Congress 5-10 (April 1989).  The Secretary's original declaration that he did
not consider crossing safety concerns therefore stands uncontradicted.

                        91-790 & 91-1206 - CONCUR/DISSENT

4                    CSX TRANSPORTATION, INC. v. EASTERWOOD
                                             ____

evidence of pre-emption,  I would follow the most natural  reading of the Secre-
tary's  regulations: the Federal Government has chosen neither to regulate train
speed as a  factor affecting grade  crossing safety nor  to prevent States  from
doing so.   The Court's contrary  view of these  regulations' pre-emptive effect
may  well create a jurisdictional  gap in which States lack  the power to patrol
the potentially hazardous  operation of  trains at speeds  below the  applicable
federal limit.
  Had  the Secretary wished to pre-empt all state laws governing train speed, he
                                        ___
could  have  more  explicitly defined  the  regulatory  "subject  matter" to  be
"cover[ed]."   Doubtless  such a  decision would  be true to  Congress' declared
intent  that  "laws,  rules,  regulations,  orders,  and standards  relating  to
railroad safety shall  be nationally  uniform to  the extent  practicable."   45
U. S. C. S434.   To read  the Secretary's existing  maximum speed regulation  as
encompassing  safety  concerns  unrelated  to  track  characteristics,  however,
negates Congress' desire that  state law be accorded  "considerable solicitude."
Ante, at 5.  The "historic police powers of the States" to regulate train safety
____
must not "be superseded . . . unless that [is] the clear and manifest purpose of
Congress."  Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947).  Respect
            ____    _______________________
for the presumptive  sanctity of state law  should be no less  when federal pre-
emption occurs by administrative  fiat rather than by congressional  edict.  See
Fidelity Fed.  Savings &  Loan Assn.  v. De  la Cuesta, 458  U. S. 141,  153-154
____________________________________     _____________
(1982).
  I would uphold Easterwood's right to pursue both of the common-law tort claims
at issue.  Accordingly, I respectfully dissent from the  Court's conclusion that
the excessive speed claim is pre-empted.