Cite as: 507 U. S. 658 (1993)
Opinion of Thomas, J.
against crossing accidents, including an "attempt to stop or slow the train if possible to avoid a collision." 1 Reply Brief for Petitioner in No. 91-790, p. 3. The 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 675, 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 §§ 213.51-213.143 (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 664.
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 rulemaking).2 By contrast, the state law support-1 See generally Ga. Code Ann. § 46-8-190(b) (1992) (requiring an "engineer 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).
2 I reject the Solicitor General's contention that "[t]he Secretary has 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 collision [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
677
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