WASHINGTON—Railroad companies later this month will be immune from state tort lawsuits under a so-called "midnight regulation" that the Transportation Safety Administration has adopted.

The new regulation is included in the final rule of the rail transportation security measure that the TSA, which is part of the U.S. Department of Homeland Security, published in the Nov. 26 Federal Register. The rule takes effect Dec. 26.

The rule is based on the premise, adopted by the Bush administration in numerous other regulations, that state tort lawsuits are impliedly pre-empted by federal law. Implied pre-emption occurs when Congress does not expressly pre-empt a state tort action but when allowing a tort claim would appear to conflict with congressional intent.

However, the American Assn. for Justice, a Washington-based trial lawyers group, asserts that Congress in a 2007 measure related to a train accident expressed that it did not intend to pre-empt state tort claims.

AAJ representatives said the organization is working on persuading Congress to strike the pre-emption provision next year.

Since last year, members of Congress have objected to the state tort lawsuit pre-emptions that various federal agencies have inserted into regulations (BI, Sept. 17, 2007).