NORFOLK SOUTHERN RAILWAY CO. v. SHANKLIN, individually and as next friend of SHANKLIN

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344 OCTOBER TERM, 1999
Syllabus
NORFOLK SOUTHERN RAILWAY CO. v. SHANKLIN,
individually and as next friend of SHANKLIN
certiorari to the united states court of appeals for
the sixth circuit
No. 99–312. Argued March 1, 2000—Decided April 17, 2000
The Federal Railroad Safety Act of 1970 (FRSA) authorizes the Secre-
tary of Transportation to promulgate regulations and issue orders for
railroad safety, and it requires the Secretary to maintain a coordinated
effort to solve railroad grade crossing problems. The FRSA also has
an express pre-emption provision. One regulation promulgated by
the Secretary, through the Federal Highway Administration (FHWA),
addresses the adequacy of warning devices installed under the Federal
Railway-Highway Crossings Program (Crossings Program). That pro-
gram provides funds to States for the construction of such devices pur-
suant to the Highway Safety Act of 1973. According to the regula-
tion, adequate warning devices installed using federal funds, where
any of several conditions are present, are automatic gates and flashing
lights. 23 CFR § 646.214(b)(3). For crossings where those conditions
are not present, a State’s decision about what devices to install is sub-
ject to FHWA approval. § 646.214(b)(4). Respondent’s husband was
killed when petitioner’s train hit his vehicle at a crossing with advance
warning signs and reflectorized crossbucks that the Tennessee Depart-
ment of Transportation (TDOT) had installed using federal funds under
the Crossings Program. The signs were installed and fully compliant
with applicable federal standards. Respondent brought a diversity
wrongful death action in federal court, alleging that petitioner was
negligent in, among other things, failing to maintain adequate warning
devices at the crossing. The District Court denied petitioner’s sum-
mary judgment motion, holding that the FRSA did not pre-empt re-
spondent’s inadequate warning device claim. After a trial, the jury
awarded respondent damages on this and other negligence issues. The
Sixth Circuit affirmed.
Held: The FRSA, in conjunction with §§ 646.214(b)(3) and (4), pre-empts
state tort claims concerning a railroad’s failure to maintain adequate
warning devices at crossings where federal funds have participated in
the devices’ installation. In CSX Transp., Inc. v. Easterwood, 507
U. S. 658, 670, this Court held that, because §§ 646.214(b)(3) and (4) “es-
tablish requirements as to the installation of particular warning de-
vices,” “when they are applicable, state tort law is pre-empted.” Thus,

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345 Cite as: 529 U. S. 344 (2000)
Syllabus
the sole question here is whether they “are applicable” to all warn-
ing devices actually installed with federal funds. Easterwood answers
this question as well, because it held that the requirements in (b)(3)
and (4) are mandatory for all such devices. Id., at 666. They estab-
lish a standard of adequacy that determines the type of warning device
to be installed when federal funds participate in the crossing im-
provement project. Once the FHWA has approved and funded the
improvement and the devices are installed and operating, the regu-
lation displaces state and private decisionmaking authority with a
federal-law requirement. Importantly, this is precisely the interpre-
tation of §§ 646.214(b)(3) and (4) that the FHWA endorsed in Easter-
wood. The Government’s position here—that (b)(3) and (4) only apply
where the warning devices have been selected based on diagnostic
studies and particularized analyses of a crossing’s conditions—is not
entitled to deference, because it contradicts the regulation’s plain text
as well as the FHWA’s own previous construction that the Court
adopted as authoritative in Easterwood. Respondent’s argument that
pre-emption does not apply here because this crossing presented sev-
eral (b)(3) factors, and because the TDOT did not install pavement
markings required by the FHWA’s Manual on Uniform Traffic Control
Devices, misconceives how pre-emption operates under these circum-
stances. If they are applicable, §§ 646.214(b)(3) and (4) establish a fed-
eral standard for adequacy that displaces state tort law addressing the
same subject. Whether the State should have originally installed dif-
ferent or additional devices, or whether conditions at the crossing have
since changed such that different devices would be appropriate, is im-
material. Nothing prevents a State from revisiting the adequacy of
devices installed using federal funds, or from installing more protec-
tive devices at such crossings with their own funds or additional FHWA
funding, but the State cannot hold the railroad responsible for the ade-
quacy of those devices. Pp. 352–359.
173 F. 3d 386, reversed and remanded.
O’Connor, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Scalia, Kennedy, Souter, Thomas, and Breyer, JJ., joined.
Breyer, J., filed a concurring opinion, post, p. 359. Ginsburg, J., filed a
dissenting opinion, in which Stevens, J., joined, post, p. 360.
Carter G. Phillips argued the cause for petitioner. With
him on the briefs were G. Paul Moates, Stephen B. Kinnaird,
Everett B. Gibson, and Wiley G. Mitchell, Jr.

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346 NORFOLK SOUTHERN R. CO. v. SHANKLIN
Counsel
Gregory S. Coleman, Solicitor General of Texas, ar-
gued the cause for the State of Texas et al. as amici curiae
urging reversal. With him on the brief were John Cornyn,
Attorney General of Texas, Andy Taylor, First Assistant
Attorney General, and Linda E. Eads, Deputy Attorney
General, Bill Pryor, Attorney General of Alabama, D. Mi-
chael Fisher, Attorney General of Pennsylvania, Charlie
Condon, Attorney General of South Carolina, and Norman
N. Hill.
Thomas C. Goldstein argued the cause for respondent.
With him on the briefs were Pamela R. O’Dwyer and
Brian Wolfman.
Patricia A. Millett argued the cause for the United States
as amicus curiae urging affirmance. With her on the brief
were Solicitor General Waxman, Acting Assistant Attorney
General Ogden, Deputy Solicitor General Kneedler, Doug-
las N. Letter, Michael E. Robinson, Nancy E. McFadden,
Paul M. Geier, Dale C. Andrews, Edward V. A. Kussy, and
S. Mark Lindsey.*
*Briefs of amici curiae urging reversal were filed for the Association
of American Railroads by Daniel Saphire; and for the Product Liability
Advisory Council, Inc., by Kenneth S. Geller and Charles Rothfeld.
Briefs of amici curiae urging affirmance were filed for the State of
North Carolina et al. by Michael F. Easley, Attorney General of North
Carolina, and Amy R. Gillespie, Assistant Attorney General, and by the
Attorneys General for their respective States as follows: Bill Lockyer of
California, Ken Salazar of Colorado, James E. Ryan of Illinois, Carla J.
Stovall of Kansas, Mike Hatch of Minnesota, Jeremiah W. (Jay) Nixon of
Missouri, Frankie Sue Del Papa of Nevada, Patricia A. Madrid of New
Mexico, W. A. Drew Edmondson of Oklahoma, Sheldon Whitehouse of
Rhode Island, and Darrell V. McGraw, Jr., of West Virginia; for the Angels
on Track Foundation et al. by Robert L. Pottroff; for the Association of
Trial Lawyers of America by Dale Haralson; and for the United Transpor-
tation Union by Lawrence M. Mann and Clinton Miller III.
William C. Hopkins II and David V. Scott filed a brief for Kenneth
W. Heathington et al. as amici curiae.

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347 Cite as: 529 U. S. 344 (2000)
Opinion of the Court
Justice O’Connor delivered the opinion of the Court.
This case involves an action for damages against a railroad
due to its alleged failure to maintain adequate warning
devices at a grade crossing in western Tennessee. After
her husband was killed in a crossing accident, respondent
brought suit against petitioner, the operator of the train in-
volved in the collision. Respondent claimed that the warn-
ing signs posted at the crossing, which had been installed
using federal funds, were insufficient to warn motorists of
the danger posed by passing trains. The specific issue we
must decide is whether the Federal Railroad Safety Act of
1970, 84 Stat. 971, as amended, 49 U. S. C. § 20101 et seq.,
in conjunction with the Federal Highway Administration’s
regulation addressing the adequacy of warning devices in-
stalled with federal funds, pre-empts state tort actions such
as respondent’s. We hold that it does.
I
A
In 1970, Congress enacted the Federal Railroad Safety Act
(FRSA) “to promote safety in every area of railroad opera-
tions and reduce railroad-related accidents and incidents.”
49 U. S. C. § 20101. The FRSA grants the Secretary of
Transportation the authority to “prescribe regulations and
issue orders for every area of railroad safety,” § 20103(a), and
directs the Secretary to “maintain a coordinated effort to
develop and carry out solutions to the railroad grade crossing
problem,” § 20134(a). The FRSA also contains an express
pre-emption provision, which states:
“Laws, regulations, and orders related to railroad
safety 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 until the
Secretary of Transportation prescribes a regulation or

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348 NORFOLK SOUTHERN R. CO. v. SHANKLIN
Opinion of the Court
issues an order covering the subject matter of the State
requirement.” § 20106.
Although the pre-emption provision contains an exception,
see ibid., it is inapplicable here.
Three years after passing the FRSA, Congress enacted
the Highway Safety Act of 1973, § 203, 87 Stat. 283, which,
among other things, created the Federal Railway-Highway
Crossings Program (Crossings Program), see 23 U. S. C.
§ 130. That program makes funds available to States for the
“cost of construction of projects for the elimination of haz-
ards of railway-highway crossings.” § 130(a). To partici-
pate in the Crossings Program, all States must “conduct and
systematically maintain a survey of all highways to identify
those railroad crossings which may require separation, relo-
cation, or protective devices, and establish and implement
a schedule of projects for this purpose.” § 130(d). That
schedule must, “[a]t a minimum, . . . provide signs for all
railway-highway crossings.” Ibid.
The Secretary, through the Federal Highway Adminis-
tration (FHWA), has promulgated several regulations imple-
menting the Crossings Program. One of those regulations,
23 CFR § 646.214(b) (1999), addresses the design of grade
crossing improvements. More specifically, §§ 646.214(b)(3)
and (4) address the adequacy of warning devices installed
under the program.* According to § 646.214(b)(3), “[a]de-
*Sections 646.214(b)(3) and (4) provide in full:
“(3)(i) Adequate warning devices, under § 646.214(b)(2) or on any project
where Federal-aid funds participate in the installation of the devices are
to include automatic gates with flashing light signals when one or more of
the following conditions exist:
“(A) Multiple main line railroad tracks.
“(B) Multiple tracks at or in the vicinity of the crossing which may be
occupied by a train or locomotive so as to obscure the movement of another
train approaching the crossing.
“(C) High Speed train operation combined with limited sight distance
at either single or multiple track crossings.

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quate warning devices . . . on any project where Federal-aid
funds participate in the installation of the devices are to
include automatic gates with flashing light signals” if any
of several conditions are present. Those conditions in-
clude (A) “[m]ultiple main line railroad tracks,” (B) multiple
tracks in the vicinity such that one train might “obscure
the movement of another train approaching the crossing,”
(C) high speed trains combined with limited sight dis-
tances, (D) a “combination of high speeds and moderately
high volumes of highway and railroad traffic,” (E) the use
of the crossing by “substantial numbers of schoolbuses or
trucks carrying hazardous materials,” or (F) when a “di-
agnostic team recommends them.” § 646.214(b)(3)(i). Sub-
section (b)(4) states that “[f]or crossings where the re-
quirements of § 646.214(b)(3) are not applicable, the type of
warning device to be installed, whether the determination is
made by a State regulatory agency, State highway agency,
and/or the railroad, is subject to the approval of FHWA.”
Thus, at crossings where any of the conditions listed in (b)(3)
exist, adequate warning devices, if installed using federal
funds, are automatic gates and flashing lights. And where
the (b)(3) conditions are not present, the decision of what
devices to install is subject to FHWA approval.
“(D) A combination of high speeds and moderately high volumes of
highway and railroad traffic.
“(E) Either a high volume of vehicular traffic, high number of train
movements, substantial numbers of schoolbuses or trucks carrying hazard-
ous materials, unusually restricted sight distance, continuing accident oc-
currences, or any combination of these conditions.
“(F) A diagnostic team recommends them.
“(ii) In individual cases where a diagnostic team justifies that gates are
not appropriate, FHWA may find that the above requirements are not
applicable.
“(4) For crossings where the requirements of § 646.214(b)(3) are not
applicable, the type of warning device to be installed, whether the deter-
mination is made by a State regulatory agency, State highway agency,
and/or the railroad, is subject to the approval of FHWA.”

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350 NORFOLK SOUTHERN R. CO. v. SHANKLIN
Opinion of the Court
B
Shortly after 5 a.m. on October 3, 1993, Eddie Shanklin
drove his truck eastward on Oakwood Church Road in
Gibson County, Tennessee. App. to Pet. for Cert. 28a. As
Shanklin crossed the railroad tracks that intersect the road,
he was struck and killed by a train operated by petitioner.
Ibid. At the time of the accident, the Oakwood Church
Road crossing was equipped with advance warning signs and
reflectorized crossbucks, id., at 34a, the familiar black-and-
white, X-shaped signs that read “RAILROAD CROSSING,”
see U. S. Dept. of Transportation, Federal Highway Adminis-
tration, Manual on Uniform Traffic Control Devices § 8B–2
(1988) (MUTCD). The Tennessee Department of Transpor-
tation (TDOT) had installed the signs in 1987 with federal
funds received under the Crossings Program. App. to Pet.
for Cert. 3a. The TDOT had requested the funds as part
of a project to install such signs at 196 grade crossings in
11 Tennessee counties. See App. 128–131. That request
contained information about each crossing covered by the
project, including the presence or absence of several of the
factors listed in § 646.214(b)(3). See id., at 134. The
FHWA approved the project, App. to Pet. for Cert. 34a,
and federal funds accounted for 99% of the cost of installing
the signs at the crossings, see App. 133. It is undisputed
that the signs at the Oakwood Church Road crossing were
installed and fully compliant with the federal standards for
such devices at the time of the accident.
Following the accident, Mr. Shanklin’s widow, respondent
Dedra Shanklin, brought this diversity wrongful death action
against petitioner in the United States District Court for the
Western District of Tennessee. Id., at 29–34. Respond-
ent’s claims were based on Tennessee statutory and common
law. Id., at 31–33. She alleged that petitioner had been
negligent in several respects, including by failing to maintain
adequate warning devices at the crossing. Ibid. Petitioner
moved for summary judgment on the ground that the FRSA

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pre-empted respondent’s suit. App. to Pet. for Cert. 28a.
The District Court held that respondent’s allegation that the
signs installed at the crossing were inadequate was not pre-
empted. Id., at 29a–37a. Respondent thus presented her
inadequate warning device claim and three other allegations
of negligence to a jury, which found that petitioner and
Mr. Shanklin had both been negligent. App. 47. The jury
assigned 70% responsibility to petitioner and 30% to Mr.
Shanklin, and it assessed damages of $615,379. Ibid. The
District Court accordingly entered judgment of $430,765.30
for respondent. Id., at 48.
The Court of Appeals for the Sixth Circuit affirmed, hold-
ing that the FRSA did not pre-empt respondent’s claim that
the devices at the crossing were inadequate. 173 F. 3d 386
(1999). It reasoned that federal funding alone is insufficient
to trigger pre-emption of state tort actions under the FRSA
and §§ 646.214(b)(3) and (4). Id., at 394. Instead, the rail-
road must establish that § 646.214(b)(3) or (4) was “applied”
to the crossing at issue, meaning that the FHWA affirma-
tively approved the particular devices installed at the cross-
ing as adequate for safety. Id., at 397. The court concluded
that, because the TDOT had installed the signs for the pur-
pose of providing “minimum protection” at the Oakwood
Church Road crossing, there had been no such individualized
determination of adequacy.
We granted certiorari, 528 U. S. 949 (1999), to resolve a
conflict among the Courts of Appeals as to whether the
FRSA, by virtue of 23 CFR §§ 646.214(b)(3) and (4) (1999),
pre-empts state tort claims concerning a railroad’s failure to
maintain adequate warning devices at crossings where fed-
eral funds have participated in the installation of the devices.
Compare Ingram v. CSX Transp., Inc., 146 F. 3d 858 (CA11
1998) (holding that federal funding of crossing improvement
triggers pre-emption under FRSA); Armijo v. Atchison, To-
peka & Santa Fe R. Co., 87 F. 3d 1188 (CA10 1996) (same);
Elrod v. Burlington Northern R. Co., 68 F. 3d 241 (CA8 1995)

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352 NORFOLK SOUTHERN R. CO. v. SHANKLIN
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(same); Hester v. CSX Transp., Inc., 61 F. 3d 382 (CA5 1995)
(same), cert. denied, 516 U. S. 1093 (1996), with 173 F. 3d 386
(CA6 1999) (case below); Shots v. CSX Transp., Inc., 38 F. 3d
304 (CA7 1994) (no pre-emption until representative of Fed-
eral Government has determined that devices installed are
adequate for safety).
II
We previously addressed the pre-emptive effect of the
FHWA’s regulations implementing the Crossings Program in
CSX Transp., Inc. v. Easterwood, 507 U. S. 658 (1993). In
that case, we explained that the language of the FRSA’s
pre-emption provision dictates that, to pre-empt state law,
the federal regulation must “cover” the same subject matter,
and not merely “ ‘touch upon’ or ‘relate to’ that subject mat-
ter.” Id., at 664; see also 49 U. S. C. § 20106. Thus, “pre-
emption will lie only if the federal regulations substantially
subsume the subject matter of the relevant state law.” Eas-
terwood, supra, at 664. Applying this standard, we con-
cluded that the regulations contained in 23 CFR pt. 924
(1999), which “establish the general terms of the bargain be-
tween the Federal and State Governments” for the Cross-
ings Program, are not pre-emptive. 507 U. S., at 667. We
also held that § 646.214(b)(1), which requires that all traffic
control devices installed under the program comply with the
MUTCD, does not pre-empt state tort actions. Id., at 668–
670. The MUTCD “provides a description of, rather than
a prescription for, the allocation of responsibility for grade
crossing safety between Federal and State Governments and
between States and railroads,” and hence “disavows any
claim to cover the subject matter of that body of law.” Id.,
at 669–670.
With respect to §§ 646.214(b)(3) and (4), however, we
reached a different conclusion. Because those regulations
“establish requirements as to the installation of particular
warning devices,” we held that “when they are applicable,
state tort law is pre-empted.” Id., at 670. Unlike the other

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regulations, “§§ 646.214(b)(3) and (4) displace state and pri-
vate decisionmaking authority by establishing a federal-law
requirement that certain protective devices be installed or
federal approval obtained.” Ibid. As a result, those regu-
lations “effectively set the terms under which railroads are
to participate in the improvement of crossings.” Ibid.
In Easterwood itself, we ultimately concluded that the
plaintiff ’s state tort claim was not pre-empted. Ibid. As
here, the plaintiff brought a wrongful death action alleging
that the railroad had not maintained adequate warning de-
vices at a particular grade crossing. Id., at 661. We held
that §§ 646.214(b)(3) and (4) were not applicable because the
warning devices for which federal funds had been obtained
were never actually installed at the crossing where the acci-
dent occurred. Id., at 671–673. Nonetheless, we made
clear that, when they do apply, §§ 646.214(b)(3) and (4) “cover
the subject matter of state law which, like the tort law on
which respondent relies, seeks to impose an independent
duty on a railroad to identify and/or repair dangerous cross-
ings.” Id., at 671. The sole question in this case, then, is
whether §§ 646.214(b)(3) and (4) “are applicable” to all warn-
ing devices actually installed with federal funds.
We believe that Easterwood answers this question as
well. As an original matter, one could plausibly read
§§ 646.214(b)(3) and (4) as being purely definitional, establish-
ing a standard for the adequacy of federally funded warning
devices but not requiring that all such devices meet that
standard. Easterwood rejected this approach, however, and
held that the requirements spelled out in (b)(3) and (4) are
mandatory for all warning devices installed with federal
funds. “[F]or projects that involve grade crossings . . . in
which ‘Federal-aid funds participate in the installation of the
[warning] devices,’ regulations specify warning devices that
must be installed.” Id., at 666 (emphasis added). Once it
is accepted that the regulations are not merely definitional,
their scope is plain: They apply to “any project where

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354 NORFOLK SOUTHERN R. CO. v. SHANKLIN
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Federal-aid funds participate in the installation of the de-
vices.” 23 CFR § 646.214(b)(3)(i) (1999).
Sections 646.214(b)(3) and (4) therefore establish a stand-
ard of adequacy that “determine[s] the devices to be in-
stalled” when federal funds participate in the crossing im-
provement project. Easterwood, 507 U. S., at 671. If a
crossing presents those conditions listed in (b)(3), the State
must install automatic gates and flashing lights; if the (b)(3)
factors are absent, (b)(4) dictates that the decision as to what
devices to install is subject to FHWA approval. See id., at
670–671. In either case, § 646.214(b)(3) or (4) “is applicable”
and determines the type of warning device that is “ade-
quate” under federal law. As a result, once the FHWA has
funded the crossing improvement and the warning devices
are actually installed and operating, the regulation “dis-
place[s] state and private decisionmaking authority by estab-
lishing a federal-law requirement that certain protective de-
vices be installed or federal approval obtained.” Id., at 670.
Importantly, this is precisely the interpretation of
§§ 646.214(b)(3) and (4) that the FHWA endorsed in Easter-
wood. Appearing as amicus curiae, the Government ex-
plained that § 646.214(b) “establishes substantive standards
for what constitutes adequate safety devices on grade cross-
ing improvement projects financed with federal funds.”
Brief for United States as Amicus Curiae in CSX Transp.,
Inc. v. Easterwood, O. T. 1992, Nos. 91–790 and 91–1206, p. 23.
As a result, §§ 646.214(b)(3) and (4) “cover the subject matter
of adequate safety devices at crossings that have been im-
proved with the use of federal funds.” Ibid. More specifi-
cally, the Government stated that § 646.214(b)
“requires gate arms in certain circumstances, and re-
quires FHWA approval of the safety devices in all other
circumstances. Thus, the warning devices in place at a
crossing improved with the use of federal funds have, by
definition, been specifically found to be adequate under a
regulation issued by the Secretary. Any state rule that

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more or different crossing devices were necessary at a
federally funded crossing is therefore preempted.” Id.,
at 24.
Thus, Easterwood adopted the FHWA’s own understanding
of the application of §§ 646.214(b)(3) and (4), a regulation that
the agency had been administering for 17 years.
Respondent and the Government now argue that
§§ 646.214(b)(3) and (4) are more limited in scope and only
apply where the warning devices have been selected based
on diagnostic studies and particularized analyses of the con-
ditions at the crossing. See Brief for Respondent 16, 24;
Brief for United States as Amicus Curiae 22 (hereinafter
Brief for United States). They contend that the Crossings
Program actually comprises two distinct programs—the
“minimum protection” program and the “priority” or “haz-
ard” program. See Brief for Respondent 1–7; Brief for
United States 15–21. Under the “minimum protection” pro-
gram, they argue, States obtain federal funds merely to
equip crossings with advance warning signs and reflectorized
crossbucks, the bare minimum required by the MUTCD,
without any judgment as to whether the signs are adequate.
See Brief for Respondent 5–7, 30–36; Brief for United States
15–21. Under the “priority” or “hazard” program, in con-
trast, diagnostic teams conduct individualized assessments of
particular crossings, and state or FHWA officials make spe-
cific judgments about the adequacy of the warning devices
using the criteria set out in § 646.214(b)(3). See Brief for
Respondent 5–7, 34–35; Brief for United States 18–21.
They therefore contend that (b)(3) and (4) only apply to de-
vices installed under the “priority” or “hazard” program,
when a diagnostic team has actually applied the decisional
process mandated by (b)(3). See Brief for Respondent 16;
Brief for United States 18–25. Only then has the regulation
prescribed a federal standard for the adequacy of the warn-
ing devices that displaces state law covering the same
subject.

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356 NORFOLK SOUTHERN R. CO. v. SHANKLIN
Opinion of the Court
This construction, however, contradicts the regulation’s
plain text. Sections 646.214(b)(3) and (4) make no distinc-
tion between devices installed for “minimum protection” and
those installed under a so-called “priority” or “hazard” pro-
gram. Nor does their applicability depend on any individu-
alized determination of adequacy by a diagnostic team or an
FHWA official. Rather, as the FHWA itself explained in its
Easterwood brief, §§ 646.214(b)(3) and (4) have a “compre-
hensive scope.” Brief for United States in CSX Transp.,
Inc. v. Easterwood, O. T. 1992, Nos. 91–790 and 91–1206, at
12. Section 646.214(b)(3) states that its requirements apply
to “any project where Federal-aid funds participate in the
installation of the devices.” 23 CFR § 646.214(b)(3)(i) (1999)
(emphasis added). And § 646.214(b)(4) applies to all feder-
ally funded crossings that do not meet the criteria specified
in (b)(3). Either way, the federal standard for adequacy
applies to the crossing improvement and “substantially
subsume[s] the subject matter of the relevant state law.”
Easterwood, 507 U. S., at 664.
Thus, contrary to the Government’s position here,
§§ 646.214(b)(3) and (4) “specify warning devices that must
be installed” as a part of all federally funded crossing im-
provements. Id., at 666. Although generally “an agency’s
construction of its own regulations is entitled to substantial
deference,” Lyng v. Payne, 476 U. S. 926, 939 (1986), no such
deference is appropriate here. Not only is the FHWA’s in-
terpretation inconsistent with the text of §§ 646.214(b)(3) and
(4), see Robertson v. Methow Valley Citizens Council, 490
U. S. 332, 359 (1989), but it also contradicts the agency’s own
previous construction that this Court adopted as authorita-
tive in Easterwood, cf. Maislin Industries, U. S., Inc. v. Pri-
mary Steel, Inc., 497 U. S. 116, 131 (1990) (“Once we have
determined a statute’s clear meaning, we adhere to that de-
termination under the doctrine of stare decisis, and we judge
an agency’s later interpretation of the statute against our
prior determination of the statute’s meaning”).

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357 Cite as: 529 U. S. 344 (2000)
Opinion of the Court
The dissent contends that, under our holding, state law is
pre-empted even though “[n]o authority, federal or state, has
found that the signs in place” are “adequate to protect
safety.” Post, at 360 (opinion of Ginsburg, J.). This pre-
supposes that States have not fulfilled their obligation to
comply with §§ 646.214(b)(3) and (4). Those subsections es-
tablish a standard for adequacy that States are required to
follow in determining what devices to install when federal
funds are used. The dissent also argues that Easterwood
did not hold that federal funding of the devices is “sufficient”
to effect pre-emption, and that “any statement as to the auto-
matic preemptive effect of federal funding should have re-
mained open for reconsideration in a later case.” Post,
at 361. But Easterwood did not, in fact, leave this question
open. Instead, at the behest of the FHWA, the Court
clearly stated that §§ 646.214(b)(3) and (4) pre-empt state
tort claims concerning the adequacy of all warning devices
installed with the participation of federal funds.
Respondent also argues that pre-emption does not lie in
this particular case because the Oakwood Church Road
crossing presented several of the factors listed in
§ 646.214(b)(3), and because the TDOT did not install pave-
ment markings as required by the MUTCD. See Brief for
Respondent 20–22, 36; Brief in Opposition 6–8. This mis-
conceives how pre-emption operates under these circum-
stances. When the FHWA approves a crossing improve-
ment project and the State installs the warning devices
using federal funds, §§ 646.214(b)(3) and (4) establish a fed-
eral standard for the adequacy of those devices that displaces
state tort law addressing the same subject. At that point,
the regulation dictates “the devices to be installed and the
means by which railroads are to participate in their selec-
tion.” Easterwood, supra, at 671. It is this displacement
of state law concerning the devices’ adequacy, and not the
State’s or the FHWA’s adherence to the standard set out
in §§ 646.214(b)(3) and (4) or to the requirements of the

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358 NORFOLK SOUTHERN R. CO. v. SHANKLIN
Opinion of the Court
MUTCD, that pre-empts state tort actions. Whether the
State should have originally installed different or additional
devices, or whether conditions at the crossing have since
changed such that automatic gates and flashing lights would
be appropriate, is immaterial to the pre-emption question.
It should be noted that nothing prevents a State from re-
visiting the adequacy of devices installed using federal funds.
States are free to install more protective devices at such
crossings with their own funds or with additional funding
from the FHWA. What States cannot do—once they have
installed federally funded devices at a particular crossing—
is hold the railroad responsible for the adequacy of those de-
vices. The dissent objects that this bestows on railroads a
“double windfall”: The Federal Government pays for the in-
stallation of the devices, and the railroad is simultaneously
absolved of state tort liability. Post, at 360–361. But the
same is true of the result urged by respondent and the Gov-
ernment. Respondent and the Government acknowledge
that §§ 646.214(b)(3) and (4) can pre-empt state tort law, but
they argue that pre-emption only occurs when the State has
installed the devices pursuant to a diagnostic team’s analysis
of the crossing in question. Under this reading, railroads
would receive the same “double windfall”—federal funding
of the devices and pre-emption of state tort law—so long as
a diagnostic team has evaluated the crossing. The supposed
conferral of a “windfall” on the railroads therefore casts no
doubt on our construction of the regulation.
Sections 646.214(b)(3) and (4) “cover the subject matter”
of the adequacy of warning devices installed with the partici-
pation of federal funds. As a result, the FRSA pre-empts
respondent’s state tort claim that the advance warning
signs and reflectorized crossbucks installed at the Oakwood
Church Road crossing were inadequate. Because the TDOT
used federal funds for the signs’ installation, §§ 646.214(b)(3)
and (4) governed the selection and installation of the devices.
And because the TDOT determined that warning devices

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359 Cite as: 529 U. S. 344 (2000)
Breyer, J., concurring
other than automatic gates and flashing lights were appro-
priate, its decision was subject to the approval of the FHWA.
See § 646.214(b)(4). Once the FHWA approved the project
and the signs were installed using federal funds, the federal
standard for adequacy displaced Tennessee statutory and
common law addressing the same subject, thereby pre-
empting respondent’s claim.
The judgment of the Court of Appeals for the Sixth Circuit
is reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice Breyer, concurring.
I agree with Justice Ginsburg that “common sense and
sound policy” suggest that federal minimum safety stand-
ards should not pre-empt a state tort action claiming that in
the particular circumstance a railroad’s warning device re-
mains inadequate. Post, at 360 (dissenting opinion). But the
Federal Government has the legal power to do more. And,
as the majority points out, ante, at 353–356, the specific Fed-
eral Highway Administration regulations at issue here do,
in fact, do more—when read in light of CSX Transp., Inc. v.
Easterwood, 507 U. S. 658 (1993), which faithfully replicates
the Government’s own earlier interpretation. So read, they
say that once federal funds are requested and spent to install
warning devices at a grade crossing, the regulations’ stand-
ards of adequacy apply across the board and pre-empt state
law seeking to impose an independent duty on a railroad
with respect to the adequacy of warning devices installed.
Id., at 671; ante, at 357. I see no need here to reconsider
the relevant language in this Court’s earlier opinion be-
cause the Government itself can easily avoid the pre-emption
that it previously sought. It can simply change the relevant
regulations, for example, by specifying that federal money is
sometimes used for “minimum,” not “adequate,” programs,
which minimum programs lack pre-emptive force. The

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360 NORFOLK SOUTHERN R. CO. v. SHANKLIN
Ginsburg, J., dissenting
agency remains free to amend its regulations to achieve the
commonsense result that the Government itself now seeks.
With that understanding, I join the majority’s opinion.
Justice Ginsburg, with whom Justice Stevens joins,
dissenting.
A fatal accident occurred on October 3, 1993, at a railroad
crossing in Gibson County, Tennessee. The crossing was
equipped not with automatic gates or flashing lights, but
only with basic warning signs installed with federal funds
provided under the Federal Railway-Highway Crossings
Program. See 23 U. S. C. § 130. This federal program
aimed to ensure that States would, “[a]t a minimum, . . .
provide signs for all railway-highway crossings.” § 130(d).
No authority, federal or state, has found that the signs in
place at the scene of the Gibson County accident were ade-
quate to protect safety, as distinguished from being a bare
minimum. Nevertheless, the Court today holds that whole-
sale federal funding of improvements at 196 crossings
throughout 11 west Tennessee counties preempts all state
regulation of safety devices at each individual crossing. As
a result, respondent Dedra Shanklin cannot recover under
state tort law for the railroad’s failure to install adequate
devices. And the State of Tennessee, because it used fed-
eral money to provide at least minimum protection, is
stopped from requiring the installation of adequate devices
at any of the funded crossings.
The upshot of the Court’s decision is that state negligence
law is displaced with no substantive federal standard of
conduct to fill the void. That outcome defies common sense
and sound policy. Federal regulations already provide that
railroads shall not be required to pay any share of the cost
of federally financed grade crossing improvements. 23 CFR
§ 646.210(b)(1) (1999). Today the railroads have achieved a
double windfall: the Federal Government foots the bill for
installing safety devices; and that same federal expenditure

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361 Cite as: 529 U. S. 344 (2000)
Ginsburg, J., dissenting
spares the railroads from tort liability, even for the in-
adequacy of devices designed only to secure the “minimum”
protection Congress envisioned for all crossings. See 23
U. S. C. § 130(d). Counsel for petitioner Norfolk Southern
Railway correctly conceded at oral argument that the rele-
vant statutes do not compel releasing the railroads when the
devices installed, though meeting federal standards for “min-
imum” protection, see ante, at 350, fail to provide adequate
protection. The road is open for the Secretary of Transpor-
tation to enact regulations clarifying that point. See ante,
at 359–360 (Breyer, J., concurring).
As persuasively explained by the Court of Appeals for the
Seventh Circuit in Shots v. CSX Transp., Inc., 38 F. 3d 304
(1994) (Posner, C. J.), and reiterated by the Court of Ap-
peals for the Sixth Circuit in the instant case, 173 F. 3d 386
(1999), our prior decision in CSX Transp., Inc. v. Easter-
wood, 507 U. S. 658 (1993), does not necessitate the ouster of
state law the Court now commands. Easterwood, in which
the tort claimant prevailed, dispositively held only that fed-
eral funding was necessary to trigger preemption, not that
it was sufficient by itself to do so. Because federal funds
did not in fact subsidize the crossing at issue in that case,
id., at 671–673, any statement as to the automatic pre-
emptive effect of federal funding should have remained open
for reconsideration in a later case where federal funds did
participate. I do not read the admittedly unclear language
of 23 CFR §§ 646.214(b)(3) and (4) (1999) to dictate that Fed-
eral Highway Administration authorization of federal fund-
ing to install devices is tantamount to approval of each of
those devices as adequate to protect safety at every crossing
so funded. And I do not think a previous administration’s
argument to that effect as amicus curiae in Easterwood
estops the Government from taking a different view now. I
agree with the sound reasoning in Shots and would affirm
the Court of Appeals’ judgment.