Whether the FRA's Federal Register preamble can eviscerate the plain language of regulations requiring railroads to provide on-track safety to all roadway workers, including contractors' employees, and whether a railroad's OTS program creates duties to its contractors' roadway-worker employees actionable for breach

QUESTIONS PRESENTED Federal Railroad Administration (“FRA”) regulations found at 49 C.F.R. §§ 214.303(a)-(b) and 214.307 (App. G, infra, 55a-57a) require railroads to adopt and implement a program affording on-track safety [“OTS”] to “all roadway workers” (defined at § 214.7, id, infra, 51a-53a) performing duties on each such railroad’s tracks, and to monitor effectiveness of and compliance with such programs. Despite this mandatory duty to afford OTS to “all” roadway workers, the FRA’s Federal Register preamble to part 214 (App. G, infra, 68a-70a) suggests railroads have no OTS duties to their contractors’ roadway-worker employees. Under 49 U.S.C. § 20106(b)(1)(B) (App. G, infra, 47a-48a), a state-law action for personal injury or death based on a party’s failure to comply with its own plan created pursuant to a regulation or order issued by the Secretary of Transportation is not preempted. The questions presented are whether, despite the unambiguous duties §§ 214.303(a)-(b) and 214.307 impose on railroads for the safety of “all” roadway-workers, including their contractors’ roadway-worker employees, the FRA’s Federal Register preamble may eviscerate the plain language of these regulations; and whether a railroad’s OTS program, adopted under § 214.303(a) as its “own plan, rule, or standard” under 49 U.S.C. § 20106(b) (1)(B), imposes duties to its contractor’s roadway-worker employees, actionable for breach.