They recommended in this report here that the Department of Transportation Safety Division should consider supporting that legislation. I think

Mr. BROTZMAN. Now actually, just to short circuit, yesterday, however, the man who was testifying up here was from the Federal Railroad Administration.

Mr. CHESSER. I believe they call it the Bureau of Railroad and Pipeline Safety. Mr. Lang is the Administrator of that Division of DOT.

Mr. BROTZMAN. We are trying to make our safety agencies function, and to be more effective as far as the Federal Government is concerned, but I am wondering if it works that way.

Mr. CHESSER. We have set aside this in the Department of Transportation. Then you have this Division of Railroad Safety, and Mr. Lang is the Administrator of that Division, which I think is right, and should be set up in this manner.

Mr. BERNSTEIN. Mr. Chairman, Mr. Brotzman, I can help on that. Historically, it has apparently been felt, by the Congress, that those who investigate accidents and try and find out what happens shouldn't be the ones saddled with the problem of doing the corrective work. They should be independent of the court, so to speak.

Mr. BROTZMAN. I would agree.

Mr. BERNSTEIN. So the National Transportation Safety Board is an independent Board, which is set up strictly to find out who done it.

Now, when they find out who done it, what happened, how it happened, that report can serve one or all of three purposes. First, it can help the administrative agency that has a law that it can operate on, perhaps through adoption of the rules.

Second, it has a use in private litigation, to tell whether there was fault for which there will be common law responsibilities, and third, the background against which you gentlemen, yourself, can make recommendations for future legislation. That is the purpose of this Board, and the Board is independent of the Department of Transportation itself.

Mr. FRIEDEL. The gentleman's time has expired.

Mr. Adams.

Mr. ADAMS. Thank you, Mr. Chairman.

Mr. Chesser, I want to join also with the other members who have complimented you and the other members of your staff on your very comprehensive presentation. I have two areas I would like to question you about.

The first one involves the relationship between the States and the Federal Government on the handling of crossings.

An examination of the items in your table 30, and in your statement, indicates that the largest group of accidents-some 1,800 casualties out of 2,600―are caused by grade crossing accidents. If you wish counsel to answer this for you, it is all right with me.

Under section 3, subsection (a) (2), the Federal Government would be given regulation over rail facilities and equipment, which is defined under section 2(8) as including trackage, roadbed, and guideways. However, under section 4 of the act, it is stated that the States may regulate safety in rail commerce at grade crossings, including grade

separations, and so on. Since this is far and away the largest area of accidents, I would like your comment or counsel's comment as to whether you think the system that is set up here of maintaining in effect a series of State regulations over grade crossings is preferable to having some type of uniform Federal minimum regulation of the grade crossings. I assume this also ties into signaling, and the other basicthings that prevent a collision at the crossing.

Mr. BERNSTEIN. Well, you are getting into policy, now, as distinguished from legal problems, but let me restate views I have heard. There are two views of this problem. One would be to have a single Federal standard on these matters, and that's it. The other view, and I had this expressed to me by the head of one of the State commissions, only as recently as yesterday, that if State commissions are permitted to retain powers in certain areas, for example, in grade crossing tracks, that the impetus they may give the Federal Government-in other words, if they adopt a more stringent, more effective standard, may cause the Federal standard to be made more effective.

The net result would be, by having both a Federal power in this area and a State power, the net effect upon an interstate railroad, of course, would probably require them to conform to the highest standard, so the States are there, in effect, to prod the Federal Government constantly into approving the Federal or the universal standard, and the State

Mr. ADAMS. Now I assume there is no universal standard established for grade crossings by the Federal Government.

Mr. BERNSTEIN. Not now.

Mr. ADAMS. Should there be or shouldn't there be, in your opinion? It is not mentioned in your statement and it is not here.

Mr. BERNSTEIN. Mr. Chesser can correct me if I am wrong, but the brotherhoods are of the view that the Federal Government, through DOT, should have power to presecribe standards for grade crossings, yes.

Mr. ADAMS. And that is not presently in the bill, is it?

Mr. BERNSTEIN. Well, we believe there would be power under three. Mr. ADAMS. That's what I want to know.

Mr. BERNSTEIN. We believe——

Mr. ADAMS. If you want to supply a memorandum on it, rather than take the time now, you can, but under section 4(2), grade crossings, it says, "which does not conflict with any Federal regulation in the following areas" and no others. The States all have these regulations, as I understand it.

Mr. BERNSTEIN. May I say this, Mr. Adams: We believe that under the present bill, there is power, but in order to clarify this matter, we have proposed certain new definitions, so that the regulatory power would comprehend these definitions, and our definition of right-of-way and trackage is very much expanded to assure, by those definitions, to assure that the Federal power will extend to rights-of-way, bridges, tunnels.

Mr. ADAMS. And grade crossings?

Mr. BERNSTEIN. Overpasses, grade crossings, and so on.

Mr. ADAMS. All right.

Now my second questions is on section 5(b). We got into this briefly yesterday, and we are going to be supplied with more information on

it. This deals with exemption of persons from liability, and I just simply don't know what the language here means.

If you wish to comment on it, please do so, and then we will have your comments, as well as those of all the others as they come along. Mr. BERNSTEIN. We will comment. When we saw DOT's proposal on this, and I read the except clause, which is what you are referring to, I didn't understand it, in all candor, and I gave it to four other lawyers in my office, and one of them understood it.

And so we were against it, for one simple reason: If you don't understand it, you can't be for it, you have to be against it, but the best view of it was that it was circular reasoning, the dog biting his tail, saying that you weren't relieved of common law liability because of the rule, but if you followed the rule, it was OK.

Now, the only way I can read that as saying you are liable on one end, if you are not on the other. I think it is very inept language, and I think it lacks clarity, and what is even more important, the brotherhoods feel that there should be no relief from common law liability merely because you follow a rule.

Common law, I believe

Mr. ADAMS. You would relieve certain specific statutory liabilities. For example, this would exempt the type of liability created under the general principle that if you violate a rule, you have a type of additional specific liability.

In other words, when you violate a specific rule, as opposed to a general liability, you can be held liable but under this if you are specifically authorized to follow a rule you would be exempted from all liability, general and specific.

Mr. BERNSTEIN. Well, it may mean what you say, Mr. Adams, but I don't know that it does mean that, and what is more important, I don't think any court will know.

Mr. ADAMS. All right, fine.

Thank you, Mr. Chairman.

Mr. FRIEDEL. Mr. Brown.

Mr. BROWN. I would like to pursue this area in a little more detail. Mr. BERNSTEIN. I am sorry.

Mr. BROWN. Well, it may be helpful to the question that I am going to ask.

Mr. BERNSTEIN. I am sorry, Mr. Brown.

Mr. BROWN. I was just trying to get the chairman's approval that you are conversing on your own time, and not on mine. [Laughter.] Mr. BERNSTEIN. You can submit the bill to us, Mr. Brown.

Mr. BROWN. Thank you.

My question pertains to 5(b) and 3(a) (3), and your remarks about the exemptions under your amendment No. 9 to the Railway Labor Act exemptions.

Is your thinking that anything that the railroads and railroad labor agreed on would not be subject to Federal jurisdiction under 3(a)(3) of this legislation? Is that correct?

Mr. BERNSTEIN. Right.

Mr. BROWN. Now under 5 (b)

Mr. BERNSTEIN. When you said "agreed on," I assume you mean agreement reached under the Railway Labor Act.

Mr. BROWN. Right.

Now, under 5(b), where does that leave this responsibility, or the possibility of suit, if management and labor agree on a regulation or a standard which the Federal Government does not agree to?

Mr. BERNSTEIN. I will answer you. I have already stated that it was our view that amendment 9, anything that was bargained on between brotherhood and management under the Railway Labor Act would be carved out of the jurisdiction of the administrator.

Having done that, if you knock the except clause off in 5(b), the act merely reads "Compliance with any standards does not exempt you from any liability," meaning common law liability, which would be the situation as it previously existed, and as it should be.

Mr. BROWN. If labor and management reach an agreement setting a standard which does not comply with the Government standard, would labor then share management's common law liability?

Mr. BERNSTEIN. I do not believe so, and I might say incidentally, on this very same subject, a question was asked yesterday, Would the adoption of these regulations or this provision in compliance, 5(b), impose any liability on the Federal Government, for what people did, and I think the answer is this: The Federal Government is civilly liable only to the extent permitted by the so-called Federal Tort Claims Act, with which I am sure you are familiar.

The old rule of the common law used to be you can't sue the sovereign. The Federal Government says, "Now, you can sue us, for certain things."

Now under that act, there is an exception or exemption, of course, so-called, using the statutory language now, so-called discretionary functions.

The courts have held, whatever the outer limit of discretionary functions may be, it is clear that the act of adopting a rule or regulation by the administrative agency is a discretionary function.

There are borderline or gray areas, but that is not a gray area. When a Federal administrator adopts a rule or regulation, that is an action which is exempt from civil responsibility under the Federal Tort and Claims Act.

Now, it is true there won't be a comparable relief to private agencies, such as the brotherhoods, but I think the fact that the brotherhood and the railroad come to an agreement on something does make the brotherhood liable, if for no other reason that the common law concept of human intervention.

That is, the railroad itself has made this agreement, and they are running the railroad, and if they think that arriving at that agreement will create liability or create an accident, then it is their duty not to arrive at such an agreement. That is the concept of human intervention in common law tort.

Mr. BROWN. I have just one other area of questioning. Do you understand the licensing described yesterday by Mr. Lang as not covered in this legislation?

Mr. BERNSTEIN. I understood Mr. Lang, and we were somewhat dismayed, in all honesty, by Mr. Lang's thought that they might get into extensive licensing.

Mr. BROWN. His enthusiasm?

Mr. BERNSTEIN. Our enthusiasm was on the wane at that point, when he spoke about that. Do I speak for the brotherhood?

Mr. CHESSER. Yes.

Mr. BERNSTEIN. We didn't like that.

Mr. BROWN. His enthusiasm seemed to be quite extensive.
Mr. BERNSTEIN. Yes, it did.

Mr. FRIEDEL. The House is in session, and the committee will stand adjourned until 10 tomorrow morning, and we will continue at that time.

We have two other witnesses that were to be heard this morning and we will hear them tomorrow.

Mr. CHESSER. Thank you, Mr. Chairman.

(The following correspondence was subsequently submitted for the record :)

Mr. AL H. CHESSER,

HOUSE OF REPRESENTATIVES,

COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,
Washington, D.C., May 23, 1968.

Chairman, RLEA Safety Committee,
Brotherhood of Railroad Trainmen,
Washington, D.C.

DEAR MR. CHESSER: In the hearings yesterday on H.R. 16980, a bill to establish railroad safety standards there was a colloquy between Representative Brotzman and Mr. Bernstein appearing on page 159 having to do with the role of the National Transportation Safety Board.

Mr. Bernstein discussed the role of that Board and stated that after it had investigated an accident, it issued a report which might serve several purposes, among which purposes was that it had a "use in private litigation". In this connection I wish that you would review the language of Section 11 of the bill, language which has been disturbing to me, and comment as to whether or not subsection (c) cannot be construed in a manner opposite to that suggested by Mr. Bernstein, namely, as preventing the use of any such report in any private litigation.

Sincerely yours,

HARLEY O. STAGGERS,

Chairman.

Hon. HARLEY O. STAGGERS,

RAILWAY LABOR EXECUTIVES' ASSOCIATION,
Washington, D.C., June 7, 1968.

Chairman, Committee on Interstate and Foreign Commerce,
Rayburn House Office Building, Washington, D.C.

DEAR MR. CHAIRMAN: This letter is in response to your letter of May 23, 1968, in which you asked me to comment on whether or not Section II (c) of H.R. 16980 would prevent the use of any report by the National Transportation Safety Board.

Decisions from limited litigation which has already arisen under parallel language in other statutes such as aviation (49 U.S.C. 144 (e)) and motor carriers (49 U.S.C. 320(f) prohibit any report from being introduced as evidence. Universal Airlines, Inc. v. Eastern Airlines, Inc., 188 F. 2d 993, 88 U.S. App. D.C. 219 (1951); Lobel v. American Airlines, 192 F. 2d 217 (2d Cir. 1951). The scope and extent to which the reports may be otherwise used is unclear, particularly their use in pretrial proceedings. In the case of Yanick v. Pennsylvania Railroad Company, 192 F. Supp. 373 (E.D.N.Y .1961), the Court permitted testimony which was given in an ICC investigation to be used for impeaching a witness. In Berguido v. Eastern Airlines, 317 F. 2d 628 (3rd Cir. 1963), the Court permitted the use of experts' testimony given at a Civil Aeronautics Board hearing to be used to refresh the witness' recollection.

The Railway Labor Executives Association favors extensive use of these reports in private civil litigation. This would assure private litigants the advantages of public investigation which they could not privately afford to duplicate, and would still serve the purpose of avoiding the possibility that the report will in effect preempt the function of the fact-finder in any litigation. While it