expected that the Act would be a device to require shorter trains (hence a greater number of train and engine crews) and the hiring of more car inspectors. In an effort to lessen the fears of the industry in this respect, Congress inserted a proviso in the law as passed to the effect that the rules adopted thereunder and any changes in such rules should be only for the purpose of "achieving safety." When the railroads in 1959 proposed a minor change in the rules-indeed, only exemptions from one rule in specific circumstances-the Interstate Commerce Commission held it had no authority to grant the request since safety would not be "achieved" thereby, though it might remain unimpaired while efficiency was promoted. After much legal maneuvering, including another petition that was denied for the same reason without a hearing, this issue was brought before a United States court by the AAR in 1966. While the case was pending the Commission vacated the orders that were the subject of the appeal, thus leaving the court nothing to adjudicate. More than six months later, in March 1967, the Commission issued an order reversing its view of the law; but the railway unions almost immediately filed for reconsideration of that order. The AAR filed a reply overnight urging denial of the union petition, and a few days later, on April 1, 1967, the DOT obtained jurisdiction of the matter. The question has remained for more than 13 months before the Department of Transportation without any action by that body.

I feel obliged to mention this history in some detail simply because it demonstrates to us that the "promote" language of this bill could be seized upon by railway labor just as the "achieve" language of the earlier law was. Our experience with the existing language of the Power Brake Act proves to us that no quick or easy solution to the legal quibble that would be advanced could be expected.

May I advert to the definition of "rail facilities and equipment". There are obvious conflicts of jurisdiction that would arise under the bill. The definition of "rail facilities and equipment" sets up at least one clear conflict between the regulations of the Department of Transportation under H.R. 16980 and the regulations of the Federal Communications Commission under the Communications Act of 1934. Railroads have for years used various types of radio communications to assist in the performance of rail transportation under licenses and general authority emanating from the FCC. In many cases the grant of authority has been expressly for the purpose of maintaining or improving railroad safety in accordance with needs found by the FCC to exist. Yet it is abundantly clear that train radios, along with almost every other imaginable device, come within the definition of "rail facilities and equipment" as contained in paragraph (8) of section 2. The FCC has for more than 30 years had plenary jurisdiction of these matters; but this definition, together with the broad powers related to it, would in effect negate that jurisdiction. The Department of Transportation has no power to issue or to refuse licenses for radio and would not have such powers even if the bill were enacted. It is entirely possible, therefore, that the FCC would continue to issue railroad radio licenses in the interest of safety only to have the DOT prohibit, modify, or limit the use of such licenses on the same safety grounds (viewed differently). Or the situation might be turned around-the DOT might require the use of radio and in a certain manner, but the FCC for sufficient reasons of its own might withhold the necessary licenses or general authority.

It may be asserted that the possibility of this kind of conflict is so remote as to be fantastic; and that to suggest it as a defect of this bill is unfair. But it is not remote or fantastic or unfair. Such conflict now exists, not before the DOT, but in the State of Arizona. With the support of the railway brotherhoods the Corporation Commission of Arizona has under consideration a proposal to forbid (in the name of safety) use of mobile train radio in that State in connection with any ordinary train operation, despite the fact that use of such radio in train operations has been authorized by the FCC for railroads, including those operating in Arizona, on the express ground that it would promote safety. There can be no doubt that if H.R. 16980 were enacted this demand of the railroad unions would forthwith be transferred from Arizona to the new tribunal of the Department of Transportation, and most likely broadened to a national basis.

In addition to this conflict, which enactment of the bill would automatically create, there may be other conflicts inherent in it as respects other Federal agencies. At this moment, for example, the Department of Labor has under consideration certain safety regulations to be adopted in the interest of dock workers under the admiralty authority of Congress as expressed in the Longshoremen's Act. If adopted, these rules would apply to certain railroad employees and operations in port areas.

The conflicts between the Secretary's authority and the authority of other Federal and State officials that would arise when the Secretary began to regulate industries that make or repair railroad equipment, devices and appliances would be so numerous as to likely require creation of a Bureau of Conflicts within the DOT.

Section 4 of the bill deals with the relationship of State and Federal laws and regulations after this bill becomes law. It is not clear from the language of the section whether there will be both State and Federal jurisdiction over certain areas or whether those areas would be left entirely to State jurisdiction. The bill provides that 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....

It would seem from this language that there would be dual State and Federal jurisdiction. However, at page 4 of his written statement, the Federal Railroad Administrator said that "section 4 of the bill reserves to the States the regulation of certain aspects of railroad safety."

This clearly implies no Federal regulation in those particular areas. Again, at page 10 of his written statement, the Administrator referred to the States and said that "under the legislation proposed here, they would continue to regulate in these areas of local concern, but they would be preempted from independent action in areas of national concern."

It appears, therefore, that it is the intent and purpose of section 4 to leave with the States all safety regulatory authority with respect to 1) vertical and horizontal clearance requirements, 2) all railroad-highway grade crossing matters, 3) the speed and audible signals of trains operating within urban and other densely populated areas, and 4) the installation or removal of industrial and spur tracks.

If there is to be Federal regulation of the broad and sweeping nature provided by this bill, we do not understand the reasons for the provisions of section 4. Nor do the statements of the Federal Railroad Administrator afford any sound reasons for this split in jurisdiction. We do not understand why or how safety will be promoted by the States retaining jurisdiction in these specified areas while the Secretary takes over jurisdiction in all other areas. Indeed, as pointed out by Mr. Menk, the area of safety at grade crossings was the first, and insofar as we know the only, area selected by the Department of Transportation for detailed study and exploration; and with respect to which we offered our utmost cooperation. We understand the Department of Transportation's research plan is under discussion and may come to fruition in June. However, we now find that the intent and purpose of this bill is to leave the regulatory authority over this area entirely in the hands of the States.

Other questions concerning section 4 arise in our minds. Why is Federal and uniform safety regulation of railroad bridges, with respect to which there has been neither death nor casualty in the last six or seven years, of such vital importance; while uniform Federal regulation of safety at grade crossings is specifically rejected by section 4 even though people are killed at grade crossings every day? Why is it essential for the Federal Government to regulate the use, design, materials, workmanship, installation, construction and performance of railroad cars and locomotives; while each State will regulate the clearance required to accommodate such equipment? Why is it essential to have Federal and uniform regulations that all trains must be equipped with audible signals meeting Federal standards, and manufactured to Federal designs in shops under Federal supervision, when the States can prohibit the use of such signals during a large part or all of the train movement?

We do not understand how the installation or removal of industrial and spur tracks plays any part in the question of railroad safety. The installation or removal of industrial and spur tracks may raise issues of a political nature but seldom, if ever, would issues of safety arise.

Perhaps section 4 is simply an accommodation to political expendiency which the Department deems necessary to achieve or speed up passage of its bill.

Section 5(b) provides that compliance with any standard, rule or regulation established by the Secretary [something that is required by section 5(a)] does not exempt any person from any liability which would otherwise accrue except to the extent that the action creating the liability was specifically compelled by such standard, rule or regulation.

What is the difference between compulsion to obey the rule, which compulsion the bill amply provides, and "specific" compulsion? Where the act of complying with the standard, rule or regulation, or the end result of such compliance, is

made the basis for a claim of liability then the person so complying should be specifically exonerated from any liability.

Section 6(a) of the bill establishes a "civil penalty" for any violation of any rule or standard promulgated by the Secretary, with each day of violation constituting a separate offense. Under existing law for the most part comparable penalties for violation of railroad safety statutes are a flat $250. Prior to 1957 the penalty was, under most of the safety acts, a flat $100. The amount was raised to $250 by the Congress in 1957. It is now sought to make the penalty a variable one ranging between the current sum and a maximum of $1000. No reason appears for this change, particularly since this penalty is to be exacted in non-willful, nonknowing violations. In such cases there can scarcely be any degree of culpability; but the existence of the flexible penalty permits a quite arbitrary assessment of culpability where none exists. Obviously the flexible penalty is proposed in a situation where it is entirely inappropriate.

The same section provides a penalty of $10,000 plus imprisonment for any knowing and willful violation of any rule or standard. The monetary penalty is grossly excessive, being equal to the monetary penalty fixed in section 6(c) of the bill, for such acts as forcible assault with a deadly weapon. It may also be observed that under the comparable safety regulation of common carriers by motor vehicle (§ 222 (a) of the Interstate Commerce Act) even repeated knowing and willful violations of comparable safety regulations cannot be penalized more than $500 (without any provision for imprisonment).

Moreover, it is easy to assume, as this bill does, that a "knowing and willful" violation is necessarily wicked. This simplistic assumption does not always fit the facts. Sometimes the question arises in a test case; sometimes a court decision will finally determine that a violation was in law "knowing and willful," even though it was originally based on a mistake of fact or law. Such violations do not deserve this heavy penalty.

Section 6(b) of the bill makes the Secretary in his unfettered discretion prosecutor, judge, jury, and offsetting debtor as well in the matter of fines. A provision such as this encourages and even promotes administrative absolutism. For many years the penalties called for by railroad safety acts could be imposed only after the making of a case by the government before a Federal court. This is the right way, and the only way, to prevent abuses.

The Secretary's analysis of the bill says that the criminal penalties described in subsection (c) are already in the United States Code. If so, there is no reason to include them here except on the assumption that railroads are more likely than others to forcibly assault government officials while in he performance of their duties.

Section 7(a) of the bill in terms permits the Secretary to seek injunctive relief against the operations of a railroad. While the bill very carefully provides for court action by the Secretary to enforce his rules and regulations, the bill is entirely silent with respect to the right of anyone to bring a court action to review any rule, regulation or standard promulgated by the Secretary. Such a provision should be an integral part of any statute of this nature. Apparently, the Department intended this to be a one-way street.

Section 7(c) permits any court action by the government against a railroad for any cause arising under the bill to be brought in any district where the railroad is found. Indeed service may be made and the action brought in a State in which the railroad does not operate but simply may have a freight solicitation office and salesman. The government should not be permitted to shop for a favorable forum in this manner, but should be restricted to the district where a violation is supposed to have occurred. This is a matter of elementary fairness. The provision of the same subsection, permitting service on the railroad in any district where it is found, is likewise burdensome and is in addition useless in view of the requirement of section 8 that an agent for service of process be appointed by every railroad. It makes no sense for the railroad to designate an agent by law and then find itself served through persons other than the agent in any far-away district where it may happen to do business.

Section 10 (d) contains another extremely broad grant of power to the Secretary. He may do virtually anything under this language that he deems necessary for carrying out the provisions of the act or to perform his powers and duties under it. This grant does not run to what is necessary but to what he thinks necessary. As such, it is clearly excessive as promoting unrestrained and possibly quite unnecessary regulation, court action, and investigation.

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Although section 11(3) repeats in substance some of the language of the existing Accident Reports Act to the effect that reports submitted by railroads on accidents shall not be admitted as evidence in court, there is no provision for an essential accompaniment, namely, that such reports shall not be distributed to any person other than an authorized representative of the railroad or the Department. Even though an ambulance chaser is not able to use such a report as such, in court, he can obtain it and through its use in his own office obtain considerable advantage in suits later to be brought, including the advantage of stirring up litigation.

The same subsection departs from the existing restrictions of the Accident Reports Act under which employees of the Board or Department are prohibited from giving any evidence concerning accidents which they have investigated. The existing provision is a salutary one, for it encourages the fullest disclosure on the part of all concerned to the government investigator who ought to know of it. To permit, as the proposal does, such a person to testify in a subsequent court action arising from the accident which he has investigated is foolish and unjust and will tend only to decrease the value of the investigation while promoting actions at law. Moreover, the provision that such an employee can testify only to facts and not as to opinion invites endless controversy. Any lawyer knows that the boundary between fact and opinion is in many cases impossible to draw; and, in any event, any view of "facts" is necessarily and inevitably colored by "opinion." The two are inextricable.

I understand that the Department's own rules relating to air accidents now prohibit any testimony by its investigators or other employees in litigation arising out of airline accidents. Why should the railroads be treated worse than the air lines?

In this testimony I have refrained as much as possible from speaking of individual words or sentences which seem poorly drafted or otherwise improper because I have attempted to discuss only the more important deficiencies. I cannot refrain, however, from mentioning one word which appears in section 12 of the bill, authorizing the Secretary to obtain State assistance in enforcement. Under this section the Department is empowered to contract with State agencies for "surveillance services." "Surveillance" is a police word and a police-state word applied to known criminals or to "enemies of the people." Neither that word nor the attitude it implies belongs in or even behind a bill to regulate American industry considered by an American Congress.

I would like now to address my remarks to the testimony of railroad labor as it has been presented to this Committee. While railroad labor attempts to play the role of proponent of this bill it is quite obvious that such is not the case. In his testimony, Mr. Chesser proposed 44 amendments to the bill in an attempt to make it even acceptable to railroad labor. While railroad labor may want a bill vesting in the Secretary of Transportation broad regulatory safety authority over all areas of railroad operations, it seems obvious that they do not want this bill any more so than does the railroad industry.

While they impliedly argue that the bill and their requested 44 amendments thereto would impose a scheme of Federal regulation of railroads comparable to that exercised over other forms of transportation, such as the airlines and motor carriers, that simply is not the case.

I have already pointed out how section 3 of the bill would vest in the Secretary enormous powers over not only the railroad industry but any industry which manufactured, inspected, tested, maintained, serviced, repaired, or overhauled rail facilities and equipment and over the plant, equipment and facilities required therefor. Amendment No. 5 proposed by Mr. Chesser would reach out and embrace even the personnel of such non-carrier industries.

Their proposed Amendment No. 9 would provide that the bill could in no way be construed or applied so as to have any effect upon the Railway Labor Act or upon any existing agreements or those hereafter made pursuant to such Act. In other words, any standard, rule or regulation prescribed by the Secretary could be nullified by the provisions of labor agreements. In order that there may be no doubt about the intent of this proposed amendment by railroad labor, let me quote the record while Mr. Chesser and Mr. Bernstein were appearing :

Mr. KUYKENDALL. Let's correct something here. Let's just say that qualification for the airline pilot was set up and licensed by the FAA.

Mr. BERNSTEIN. We considered this very problem. Let me answer it this way. Mr. KUYKENDALL. So let's say they set up similar qualifications for one of your engineers.

Mr. BERNSTEIN. Let's assume that the administration tries to put in a rule that a man can't operate as a train engineer beyond age 60.

Mr. KUYKENDALL. Okay.

Mr. BERNSTEIN. And let's assume that the Brotherhoods and management have negotiated an agreement permitting him to operate until age 65. We submit that if amendment number 9 is included in the bill, that the 65-year age limit negotiated by agreement would prevail, not the 60-year rule adopted by the administrator. In that circumstance, the 60-year-old-age rule adopted by the administrator would be beyond his authority. I think the court would have to hold that he had no authority, because this was a subject covered by a negotiated agreement under the Railway Labor Act, and therefore, having paramount control under this amendment number 9. (Tr. 133–4.)

There is no comparable provision in the safety provisions of the Federal Aviation Act, though management and labor in the airline industry are subject to the terms and provisions of the Railway Labor Act.

But Mr. Chesser's proposed amendments would not stop with negotiated labor agreements. His proposed Amendment No. 25 would provide that no act or omission of any employee or representative of any employee involving or growing out of any labor dispute shall be subject to the sanctions and limitations provided under the bill. Whatever an employee might do or fail to do in any labor dispute (even before agreement has been reached) and no matter how contrary to or in violation of the Secretary's standards, rules and regulations such act or omission might be, that employee or his representative would not be subject to the sanctions and remedies provided. Mr. Chesser explains this proposed amendment in the following language:

At the outset we note the bill makes no provision whatsoever to assure that the Secretary of Transportation's authority shall not extend to activities involving or growing out of a legitimate labor dispute. Yet, Section 7(a) of the bill provides for injunctive relief to restrain violations of this Act (including the restraint of operations in rail commerce). I need not remind you that the American labor movement is bottomed on the right to lawfully strike to protest grievances. Obviously we will not willingly abide its destruction (p. 11).

And Mr. Crotty flatly stated that:

The proposed legislation which you are now considering is a great improvement over the existing laws which relate to railroad safety. However, before the Brotherhoods could support such legislation, a number of revisions must be made. We are very concerned about several particular consequences of the application of the proposed legislation. Probably the most important problems are the possibility that the legislation may limit the functions of, or the negotiations under, the Railway Labor Act, and that the Secretary's authority may extend to activities involving or growing out of a labor dispute. We fought many hard and long years in order to get these protections and rights, and we could never support any legislation which might limit or interfere with them (pp. 18–19).

In other words, in the event of a labor dispute, any existing regulations respecting safety, a matter over which they express such concern, would, insofar as activities of employees are concerned, be shunted aside, locked in the closet and forgotten.

Again, I know of no such provision in the Federal Aviation Act, or any other act of that nature.

Mr. Chesser goes even further, and proposes amendments which would exclude entirely from the prohibitions and sanctions of the bill any act or omission by railroad employees or their representatives, as distinguished from executive, managerial or supervisory personnel. In other words, no matter the circumstances under which the employee or his representative failed to comply with or violated the Secretary's rules and regulations, the sanctions and penalties would not apply to them. This is accomplished by his proposed Amendments No. 1 and No. 4.

His Amendment No. 1 would remove from the definition of "person" any employee or his designated representative. His Amendment No. 4 would then define employee or his designated representative.

Again, I know of no such safety provision in statutes such as the Federal Aviation Act or the Motor Carrier Act.

Having thus effectively eliminated employees or their representatives from any sanctions or penalties under the bill, Mr. Chesser, in his reference to the criminal penalties provided by the bill, makes what then becomes a rather curious statement. At page 16 of his testimony he says: