678
Opinion of Thomas, J.
ing Easterwood's 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. § 434.
Only by invoking a broad regulatory "background" can the Court conclude that "§ 213.9(a) should be understood as covering the subject matter of train speed with respect to track conditions." Ante, at 675. 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 668-670; 23 CFR § 646.214(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 674 ("[A]utomatic gates are required for federally funded projects"), with ante, at 672 ("These facts do not establish that federal funds 'participate[d] in the installation of the [warning] devices' at Cook Street") (quoting 23 CFR § 646.214(b)(3)(i) (1992)). Rather than attempt to excavate such scant evidence of pre-emption, I would follow the most natural reading of the Secretary'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.
(Apr. 1989). The Secretary's original declaration that he did not consider crossing safety concerns therefore stands uncontradicted.
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