49 U.S.C. § 20106 — Preemption

Page 558 TITLE 49—TRANSPORTATION § 20106 HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 20105(a) ...... 45:435(a) (1st sen- tence related to authority for State participa- tion). Oct. 16, 1970, Pub. L. 91–458, § 206(a) (1st sentence), (b), (f), 84 Stat. 972, 973, 974; Nov. 16, 1990, Pub. L. 101–615, § 28(a)(1)–(3), (b), (c), 104 Stat. 3276, 3277. 20105(b) (1)(A). 45:435(a) (1st sen- tence related to contents of cer- tification). 20105(b) (1)(B). 45:435(b) (1st sen- tence). 20105(b)(2) .. 45:435(f). 20105(b)(3) .. 45:435(b) (2d–last sentences). 20105(c) ...... 45:435(c). Oct. 16, 1970, Pub. L. 91–458, § 206(c), (e), 84 Stat. 973, 974. 20105(d) ...... 45:435(g). Oct. 16, 1970, Pub. L. 91–458, 84 Stat. 971, § 206(g); added Oct. 10, 1980, Pub. L. 96–423, § 4(a), 94 Stat. 1812. 20105(e) ...... 45:435(d). Oct. 16, 1970, Pub. L. 91–458, § 206(d), 84 Stat. 974; Oct. 10, 1980, Pub. L. 96–423, § 4(b), 94 Stat. 1812. 20105(f) ....... 45:435(e). In subsection (a), the first sentence is added for clar- ity. In subsection (b)(1)(A)(iii), the words ‘‘as necessary for the enforcement by him of each rule, regulation, order, and standard referred to in paragraph (2) of this subsection, as interpreted by the Secretary’’ are omit- ted as surplus. In subsection (b)(1)(B)(i) and (ii), the words ‘‘railroad carrier’’ are substituted for ‘‘railroad’’ because of the definition of ‘‘railroad carrier’’ in section 20102 of the revised title. In subsection (b)(1)(B)(iii), the words ‘‘a detail of’’ are omitted as surplus. In subsection (b)(3), the text of 45:435(b) (2d sentence) and the words ‘‘as he deems’’, ‘‘reasonable’’, and ‘‘with respect to such safety rules, regulations, orders, and standards’’ are omitted as surplus. In subsection (c)(1), the word ‘‘enforce’’ is substituted for ‘‘obtain compliance with’’ for clarity and consist- ency in this section. In subsection (e), the words ‘‘out of funds appro- priated pursuant to this subchapter or otherwise made available’’, ‘‘reasonably’’, and ‘‘satisfactory’’ are omit- ted as surplus. The words ‘‘will be at least as much as the average amount expended’’ are substituted for ‘‘will be maintained at a level which does not fall below the average level of such expenditures’’ for clarity and to eliminate unnecessary words. Editorial Notes AMENDMENTS 2002—Subsec. (a). Pub. L. 107–296, § 1710(a)(2), sub- stituted ‘‘the Secretary concerned’’ for ‘‘the Secretary’’ in second sentence. Pub. L. 107–296, § 1710(a)(1), substituted ‘‘The Sec- retary concerned’’ for ‘‘The Secretary of Transpor- tation’’ in first sentence. Subsecs. (b), (c). Pub. L. 107–296, § 1710(a)(2), sub- stituted ‘‘Secretary concerned’’ for ‘‘Secretary’’ wher- ever appearing. Subsec. (d). Pub. L. 107–296, § 1710(a)(2), (3), sub- stituted ‘‘Secretary concerned’’ for ‘‘Secretary’’ and ‘‘duties under chapters 203–213 of this title (in the case of the Secretary of Transportation) and duties under section 114 of this title (in the case of the Secretary of Homeland Security)’’ for ‘‘Secretary’s duties under chapters 203–213 of this title’’. Subsec. (e). Pub. L. 107–296, § 1710(a)(2), substituted ‘‘Secretary concerned’’ for ‘‘Secretary’’ wherever ap- pearing. Subsec. (f). Pub. L. 107–296, § 1710(a)(2), (4), substituted ‘‘Secretary concerned’’ for ‘‘Secretary’’ and ‘‘chapter (in the case of the Secretary of Transportation) and du- ties under section 114 of this title (in the case of the Secretary of Homeland Security)’’ for ‘‘chapter’’. Subsec. (g). Pub. L. 107–296, § 1710(a)(5), added subsec. (g). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Do- mestic Security. § 20106. Preemption (a) NATIONAL UNIFORMITY OF REGULATION.—(1) Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable. (2) A State may adopt or continue in force a law, regulation, or order related to railroad safe- ty or security until the Secretary of Transpor- tation (with respect to railroad safety matters), or the Secretary of Homeland Security (with re- spect to railroad security matters), prescribes a regulation or issues an order covering the sub- ject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, reg- ulation, or order— (A) is necessary to eliminate or reduce an es- sentially local safety or security hazard; (B) is not incompatible with a law, regula- tion, or order of the United States Govern- ment; and (C) does not unreasonably burden interstate commerce. (b) CLARIFICATION REGARDING STATE LAW CAUSES OF ACTION.—(1) Nothing in this section shall be construed to preempt an action under State law seeking damages for personal injury, death, or property damage alleging that a party— (A) has failed to comply with the Federal standard of care established by a regulation or order issued by the Secretary of Transpor- tation (with respect to railroad safety mat- ters), or the Secretary of Homeland Security (with respect to railroad security matters), covering the subject matter as provided in subsection (a) of this section; (B) has failed to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the Sec- retaries; or (C) has failed to comply with a State law, regulation, or order that is not incompatible with subsection (a)(2). (2) This subsection shall apply to all pending State law causes of action arising from events or activities occurring on or after January 18, 2002. (c) JURISDICTION.—Nothing in this section cre- ates a Federal cause of action on behalf of an in- jured party or confers Federal question jurisdic- tion for such State law causes of action. (Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 866; Pub. L. 107–296, title XVII, § 1710(c), Nov. 25, 2002, 116 Stat. 2319; Pub. L. 110–53, title XV, § 1528, Aug. 3, 2007, 121 Stat. 453.) Page 559 TITLE 49—TRANSPORTATION § 20107 HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 20106 .......... 45:434. Oct. 16, 1970, Pub. L. 91–458, § 205, 84 Stat. 972. In this section, before clause (1), the words ‘‘The Con- gress declares that’’ are omitted as unnecessary. In clause (3), the word ‘‘unreasonably’’ is substituted for ‘‘undue’’ for consistency in the revised title and with other titles of the United States Code. Editorial Notes AMENDMENTS 2007—Pub. L. 110–53 amended section generally. Prior to amendment, text of section read as follows: ‘‘Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad secu- rity shall be nationally uniform to the extent prac- ticable. A State may adopt or continue in force a law, regulation, or order related to railroad safety or secu- rity until the Secretary of Transportation (with re- spect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order cov- ering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to rail- road safety or security when the law, regulation, or order— ‘‘(1) is necessary to eliminate or reduce an essen- tially local safety or security hazard; ‘‘(2) is not incompatible with a law, regulation, or order of the United States Government; and ‘‘(3) does not unreasonably burden interstate com- merce.’’ 2002—Pub. L. 107–296, § 1710(c), in introductory provi- sions, in first sentence inserted ‘‘and laws, regulations, and orders related to railroad security’’ after ‘‘safety’’, in second sentence substituted ‘‘Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters),’’ for ‘‘Transportation’’, and in second and third sentences inserted ‘‘or security’’ after ‘‘order re- lated to railroad safety’’. Par. (1). Pub. L. 107–296, § 1710(c)(2), inserted ‘‘or secu- rity’’ after ‘‘safety’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Do- mestic Security. § 20107. Inspection and investigation (a) GENERAL.—To carry out this part, the Sec- retary of Transportation may take actions the Secretary considers necessary, including— (1) conduct investigations, make reports, issue subpenas, require the production of docu- ments, take depositions, and prescribe record- keeping and reporting requirements; and (2) delegate to a public entity or qualified person the inspection, examination, and test- ing of railroad equipment, facilities, rolling stock, operations, and persons. (b) ENTRY AND INSPECTION.—In carrying out this part, an officer, employee, or agent of the Secretary, at reasonable times and in a reason- able way, may enter and inspect railroad equip- ment, facilities, rolling stock, operations, and relevant records. When requested, the officer, employee, or agent shall display proper creden- tials. During an inspection, the officer, em- ployee, or agent is an employee of the United States Government under chapter 171 of title 28. (c) RAILROAD RADIO COMMUNICATIONS.— (1) IN GENERAL.—To carry out the Sec- retary’s responsibilities under this part and under chapter 51, the Secretary may authorize officers, employees, or agents of the Secretary to conduct, with or without making their pres- ence known, the following activities in cir- cumstances the Secretary finds to be reason- able: (A) Intercepting a radio communication, with or without the consent of the sender or other receivers of the communication, but only where such communication is broadcast or transmitted over a radio frequency which is— (i) authorized for use by one or more railroad carriers by the Federal Commu- nications Commission; and (ii) primarily used by such railroad car- riers for communications in connection with railroad operations. (B) Communicating the existence, con- tents, substance, purport, effect, or meaning of the communication, subject to the re- strictions in paragraph (3). (C) Receiving or assisting in receiving the communication (or any information therein contained). (D) Disclosing the contents, substance, purport, effect, or meaning of the commu- nication (or any part thereof of such com- munication) or using the communication (or any information contained therein), subject to the restrictions in paragraph (3), after having received the communication or ac- quired knowledge of the contents, substance, purport, effect, or meaning of the commu- nication (or any part thereof). (E) Recording the communication by any means, including writing and tape recording. (2) ACCIDENT AND INCIDENT PREVENTION AND INVESTIGATION.—The Secretary, and officers, employees, and agents of the Department of Transportation authorized by the Secretary, may engage in the activities authorized by paragraph (1) for the purpose of accident and incident prevention and investigation. (3) USE OF INFORMATION.—(A) Information obtained through activities authorized by paragraphs (1) and (2) shall not be admitted into evidence in any administrative or judicial proceeding except— (i) in a prosecution of a felony under Fed- eral or State criminal law; or (ii) to impeach evidence offered by a party other than the Federal Government regard- ing the existence, electronic characteristics, content, substance, purport, effect, meaning, or timing of, or identity of parties to, a com- munication intercepted pursuant to para- graphs (1) and (2) in proceedings pursuant to section 5122, 5123, 20702(b), 20111, 20112, 20113, or 20114 of this title. (B) If information obtained through activi- ties set forth in paragraphs (1) and (2) is ad- mitted into evidence for impeachment pur-