FEDERAL STANDARDS FOR RAILROAD SAFETY TUESDAY, MAY 21, 1968 HOUSE OF REPRESENTATIVES, COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, The committee met at 10 a.m., pursuant to notice, in room 2123, Rayburn House Office Building, Hon. Harley O. Staggers (chairman) presiding. The CHAIRMAN. The committee will come to order. This morning the Committee on Interstate and Foreign Commerce is commencing hearings on H.R. 16980, a bill drafted by the Secretary of Transportation which would establish safety standards, rules, and regulations for railroad equipment and facilities, and railroad operations. This committee has had a longstanding interest in the field of safety of transportation operations, an interest that has been enhanced in recent years with the changing technologies and the changing requirements of today's modern transportation systems. In 1958, this committee engaged in a thorough revision of the Federal Aviation Act with especial attention to the safety of aviation. In 1965, the committee considered and the Congress enacted a bill providing for safety in oil pipeline operations. In 1966, the committee considered and the Congress enacted a new and sweeping statute relating to the creation of safety standards for motor vehicles, both passenger cars and trucks. The committee has just reported out a bill having to do with the safety standards for natural gas pipeline facilities. This morning we come to railroad safety where for many years the Federal interest has been concerned only in a very limited way. In the last few years there has been a steady increase in the number of railroad accidents. Five years ago it was said that part of this increase was attributable to a change in the statistical reporting requirements. But by 2 years ago when the report of the Bureau of Railroad Safety and Service of the Interstate Commerce Commission for fiscal year 1965 was issued, there could be no doubt that the increased number of railroad accidents was not a statistical fact but a most serious and grave situation. When that report was issued, I wrote to President Daniel Loomis of the Association of American Railroads and to the then Chairman Bush of the Interstate Commerce Commission, asking of them what was causing this dismal picture and what could be done to improve the situation. This correspondence I will introduce as part of this record. (See pp. 392-406.) Later in 1966 a subcommittee of the Committee on Government Operations issued a report on the operations of the Bureau of Railroad Safety and made a number of recommendations regarding the improvement of the operations of that Bureau which it hoped might result in reducing these train accidents. Subsequent to that time the Bureau of Railroad Safety was transferred to the Department of Transportation. That Department has necessarily become involved in doing something to improve safety for the record seems even worse now than it was 2 years ago. It is my hope that in the course of the hearings on this legislation we may receive some encouragement as to what can be done about providing greater protection for passengers, for property, and for employees. At this point in the record we shall insert the bill under consideration and such agency reports thereon that are available. (The bill, H.R. 16980, and departmental reports thereon, follow :) [H.R. 16980, 90th Cong., 2d sess.] A BILL To authorize the Secretary of Transportation to establish safety standards, rules, and regulations for railroad equipment, trackage, facilities, and operations, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Federal Railroad Safety Act of 1968". DEFINITIONS SEC. 2. As used in this Act, unless the context otherwise requires (1) "Board" means the National Transportation Safety Board. (2) "Chairman" means the Chairman of the National Transportation Safety Board. (3) "Department" means the Department of Transportation. (4) "Person" means any individual, firm, copartnership, corporation, company, association, joint-stock association, or body politic; and includes any trustee, receiver, assignee, or other similar representative thereof. (5) "Railroad" means any contrivance now known or hereafter invented, used or designed for operating on, along or through a track, monorail, tube, or other guideway. (6) "Rail commerce" means any operation by railroad in or affecting interstate or foreign commerce or the transportation of mail by railroad. (7) "Rail carrier" means any person who engages in rail commerce. (8) "Rail facilities and equipment" include, without limitation, trackage, roadbed and guideways, and any facility, building, property, locomotive, rolling stock, device, equipment, or appliance used or designated for use in rail commerce, and any part or appurtenance of any of the foregoing. (9) "Secretary" means the Secretary of Transportation. FEDERAL SAFETY REGULATION SEC. 3. (a) The Secretary is empowered and it shall be his duty to promote safety in rail commerce by prescribing, and revising from time to time (1) minimum standards governing the use, design, materials, workmanship, installation, construction, and performance of rail facilities and equipment; (2) rules, regulations, and minimum standards governing the use, inspection, testing, maintenance, servicing, repair, and overhaul of rail facilities and equipment, including frequency and manner thereof and the equipment and facilities required therefor; and (3) rules, regulations, or minimum standards, governing qualifications of employees, and practices, methods, and procedures of rail carriers as the Secretary may find necessary to provide adequately for safety in rail commerce. (b) Within ninety days following the date of enactment of this Act, the Secretary shall prescribe as interim Federal rail safety regulations the specific safety requirements prescribed in or under the statutes repealed by section 13. The interim regulations shall remain in effect for two years or until modified, terminated, superseded, set aside or repealed by the Secretary whichever is earlier. The provisions of the Administrative Procedure Act shall not apply to the establishment of interim regulations. In construing any interim regulation, all orders, determinations, delegations, rules, regulations, standards, requirements, permits, and privileges which (1) have been issued, made, granted, or allowed to become effective under the statute from which that standard is derived and (2) are in effect on the date of enactment of this Act, shall apply and continue to be applicable according to their terms until modified, terminated, superseded, set aside, or repealed by the Secretary in the exercise of authority vested in him by this Act, by any court of competent jurisdiction, or by operation of law. (c) The Secretary may grant such exemptions from the requirements of any regulation prescribed under this Act as he considers to be in the public interest. STATE REGULATION AND ENFORCEMENT SEC. 4. A State may regulate safety in rail commerce, in a manner which does not conflict with any Federal regulation, in the following areas and no others: (1) vertical and horizontal clearance requirements; (2) grade crossing protection (including grade separation) which relates to the location of new crossings, closing of existing crossings, the type of crossing protection required or permitted, and rules governing train blocking of crossings; (3) the speed and audible signals of trains while operating within urban and other densely populated areas; and (4) the installation or removal of industrial and spur tracks. In exercising the authority reserved by clause (4), nothing herein shall be interpreted to diminish any authority which the Interstate Commerce Commission may have to require its approval of such actions. Other State laws and regulations affecting safety in rail commerce will continue in full force and effect for a period of two years following the date of enactment of this Act, unless abrogated prior to that time by court order, State legislative or administrative action, or by regulations issued by the Secretary. SEC. 5. (a) No person shall PROHIBITIONS (1) fail to comply with any applicable standard, rule, or regulation established or continued in effect pursuant to this Act; or (2) fail or refuse access to or copying of records, or fail to make reports or provide information, or fail or refuse to permit entry or inspection, as required under section 9. (b) Compliance with any standard, rule, or regulation established under this Act does not exempt any person from any liabiilty which would otherwise accrue, except to the extent that the action creating the liability was specifically compelled by any such standard, rule, or regulation. PENALTIES SEC. 6. (a) Any person who violates any provision of section 5 shall be subject to a civil penalty of not less than $250 nor more than $1,000 for each violation. If the violation is a continuing one, each day of such violation shall constitute a separate offense. Any person who knowingly and willfully violates any such provision shall be fined not more than $10,000 or imprisoned not more than one year, or both. Imposition of any punishment under this section shall be in lieu of whatever civil penalty might otherwise apply. (b) The civil penalties provided in this section may be compromised by the Secretary. The amount of any penalty, when finally determined, or the amount agreed upon in compromise, may be deducted from any sums owing by the United States to the person charged. (c) Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person engaged in the performance of inspection or investigatory duties under this Act, or on account of the performance of such duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both. Whoever, in the commission of any such acts, uses a deadly or dangerous weapon shall be fined not more than $10,000 or imprisoned not more than ten years, or both. Whoever kills any other person engaged in the performance of inspection or investigatory duties under this Act, or on account of the performance of such duties, shall be punished as provided under section 1111 and 1112 of title 18, United States Code. INJUNCTIVE RELIEF SEC. 7. (a) The United States district courts shall have jurisdiction, subject to the provisions of rule 65 (a) and (b) of the Federal Rules of Civil Procedure, to restrain violations of this Act (including the restraint of operations in rail commerce) or to enforce standards, rules, or regulations established hereunder, upon petition by the appropriate United States attorney or the Attorney General on behalf of the United States. Whenever practicable, the Secretary shall give notice to any person against whom an action for injunctive relief is contemplated and afford him an opportunity to present his views, and, except in the case of a knowing and willful violation, shall afford him reasonable opportunity to achieve compliance. However, the failure to give such notice and afford such opportunity shall not preclude the granting of such relief. (b) In any proceeding for criminal contempt for violation of an injunction or restraining order issued under this section, which violation also constitutes a violation of this Act, trial shall be by the court or, upon demand of the accused, by a jury. Such trial shall be conducted in accordance with the practice and procedure applicable in the case of proceedings subject to the provisions of rule 42 (b) of the Federal Rules of Criminal Procedure. (c) Actions under this Act may be brought in the district wherein any act or transaction constituting the violation occurred, or in the district wherein the defendant is found or is an inhabitant or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or transacts business or wherever the defendant may be found. (d) In any action brought under this Act, subpenas for witnesses who are required to attend a United States district court may run into any other district. DESIGNATION OF AGENT FOR SERVICE SEC. 8. It shall be the duty of every rail carrier to designate in writing an agent upon whom service of all administrative and judicial processes, notices, orders, decisions and requirements may be made for and on behalf of said rail carrier and to file such designation with the Secretary, which designation may from time to time be changed by like writing, similarly filed. Service of all administrative and judicial processes, notices, orders, decisions and requirements may be made upon said rail carrier by service upon such designated agent at his office or usual place of residence with like effect as if made personally upon said rail carrier, and in default of such designation of such agent, service of process, notice, order, decision or requirement in any proceeding before the Secretary or in any judicial proceeding for enforcement of this Act or any rule, regulation, or standard prescribed pursuant to this Act may be made by posting such process, notice, order, decision, or requirement in the Office of the Secretary. RECORDS AND REPORTS SEC. 9. (a) Every rail carrier shall establish and maintain such records, make such reports, and provide such information as the Secretary may reasonably require to enable him to determine whether such carrier has acted or is acting in compliance with this Act and rules, regulations, and standards issued thereunder, and to otherwise carry out his responsibilities under this Act. Each such rail carrier shall, upon request of an officer, employee, or agent authorized by the Secretary, permit such officer, employee, or agent to inspect and copy books, papers, records, and documents relevant to determining whether such person has acted or is acting in compliance with this Act and orders, rules, and regulations issued thereunder. (b) To carry out the Board's and the Secretary's responsibilities under this Act, officers, employees, or agents authorized by the Secretary or Chairman, upon display of proper credentials, are authorized at all times to enter upon, inspect and examine rail facilities and equipment. (c) All information reported to or otherwise obtained by the Secretary or the Board or their representatives pursuant to subsection (a) containing or relating to a trade secret or other matter referred to in section 1905 of title 18 of the United States Code, shall be considered confidential for the purpose of that section, except that such information may be disclosed to other officers, employees, or agents concerned with carrying out this Act or when relevant in any proceeding under this Act. Nothing in this section shall authorize the withholding of information by the Secretary, Chairman, or any officer or employee under their control, from the duly authorized committees of the Congress. GENERAL POWERS SEC. 10. (a) The Secretary is authorized to conduct, or contract with individuals, States, or nonprofit institutions for the conduct of, research, development, testing, evaluation, and training as necessary to carry out the provisions of this Act. (b) The Secretary may, subject to such regulations, supervision, and review as he may prescribe, delegate to any qualified private person, or to any employee or employees under the supervision of such person, any work, business, or function respecting the examination, inspection, and testing necessary to carry out his responsibilities under this Act. (c) The Secretary is authorized to advise, assist, and cooperate with other Federal departments and agencies and State and other interested public and private agencies and persons, in the planning and development of (1) Federal rail safety standards, rules, and regulations, and (2) methods for inspecting and testing to determine compliance with Federal rail safety standards, rules, and regulations. (d) The Secretary is empowered to perform such acts, to conduct such investigations, to issue such subpenas, to take such depositions, to issue and amend such orders, and to make and amend such special rules and regulations as he shall deem necessary to carry out the provisions of, and to exercise and perform his powers and duties under this Act. ACCIDENT INVESTIGATION SEC. 11. (a) The Secretary is authorized to conduct investigations of any accident occurring in rail commerce, and may invite participation by State agencies. (b) The Board shall have the authority to determine the cause or probable cause and report the facts, conditions, and circumstances relating to accidents investigated under subsection (a) above, but may delegate such authority to any office or official of the Board or to any officer or official of the Department, with the approval of the Secretary, as it may determine appropriate. (c) No part of any report required of a rail carrier under this Act, or any report made to the Secretary by an employee of the Department, or any report of the Secretary or the Board, relating to any accident or the investigation thereof, shall be admitted as evidence or be used in any suit or action for damages growing out of any matter mentioned in such report or reports. Employees of the Board or Department who have engaged in the investigation of a railroad accident shall not give expert or opinion testimony concerning such accidents in any such suit or action. Factual testimony of Board or Department personnel on matters observed in accident investigation shall be required only where the Chairman or the Secretary initially, or the court before which such suit or action is pending, determines that the evidence is not available by other means. Unless otherwise ordered by the court, such factual testimony shall be taken only by deposition upon oral examination or written interrogatories, pursuant to regulations issued by the Secretary or the Board. USE OF STATE SERVICES SEC. 12. The Secretary is authorized to enter into agreements with appropriate State agencies for the provision of inspection and surveillance services as necessary to effective enforcement of Federal rail safety regulations. State services may be procured on such terms and conditions as the Secretary may prescribe and may be reimbursed from any appropriations available for expenditure under this Act. The Secretary may delegate to an officer of such State, and authorize successive redelegation of, any authority under this Act necessary to the conduct of an effective enforcement program. STATUTES REPEALED; SAVING PROVISION SEC. 13. (a) The Safety Appliance Acts including the Power or Train Brakes Safety Appliance Act of 1968 (45 U.S.C. 1-16), the Ash Pan Act (45 U.S.C. 1721), the Locomotive Inspection Act (45 U.S.C. 22-34), the Accident Reports Act (45 U.S.C. 38-43), and the Signal Inspection Act (49 U.S.C. 26) are repealed as of the effective date of the interim regulations required to be promulgated by section 3(b) of this Act. (b) No suit, action, or other proceeding and no cause of action under the statutes repealed by this Act shall abate by reason of enactment of this Act. |