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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.

95-388—68—14

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. (hesser, in his reference to the criminal penalties provided by the bill, makes what then becomes a rather (urious statement. At page 16 of his testimony he says:

2. This subsection has been beefed up by making it clearly applicable not only to the persons who actually commit the proscribed acts or omit to do acts required, but also to those who advise, counsel or cause them.

His proposed Amendment No. 22 would certainly "beef up" the criminal penalties, but not with respect to any employee or his representative, since they will have been excluded from the definition of "persons" within meaning of the bill, and the section would not even apply to them.

The same comment is to be made about Mr. Chesser's proposed amendments to section 6 of the bill, dealing with civil penalties. He would "beef up" that section but it would not apply to acts or omissions of employees or their representatives.

I shall not comment upon each of the 44 amendments proposed by Mr. Chesser except to say that the safety authority purportedly vested in the Secretary of Transportation could be completely nullified by a labor agreement and could never be enforced against the employees or their representatives.

The whole concept of the amendments proposed by railroad labor, which amendments would be necessary to make the bill acceptable to them, is in complete disregard of their own statistical presentation. In Table 20 of Mr. Homer's presentation (submitted by Mr. Chesser), there is shown the trend in train accidents caused by employee error. Measured by the standard used by Jr. Homer, the ratio of train accidents caused by employee error increased from 1.34 in 1961 to 2.09 in 1966. Thus, with respect to that single cause of train accidents, Mr. Homer presents a picture of increase in train accidents caused by employee error that equals or exceeds the increase caused by any other single factor. Nevertheless, and in the face of this showing by their own witness, railroad labor proposes amendments by which no provisions of this bill would apply to the employees or their representatives.

There is one other amendment proposed by Mr. Chesser upon which I feel compelled to comment. In section 3(c) the bill provides that the Secretary may grant such exceptions from the requirements of any regulation prescribed as he considers to be "in the public interest." Mr. Chesser proposes to strike the words "public interest" and substitute the words "interest of safety of the public and employees.”

In the earlier part of my statement I pointed out the tremendous difficulty, handicap and delay that we have encountered in obtaining revisions of the Power Brake Rules. The amendment to which I have just referred would substitute for the standard of "public interest" the standard of "interest of safety of the public and employees.” Thus, the Secretary would not be able to grant exceptions unless such exceptions were in the "interest of safety of the public and employees." In other words, where an exception clearly would leave safety unaffected but would, in the public interest, result in economies and efficiencies with no detriment to safety the Secretary would be prohibited from granting such exception. The test that railroad labor here suggests the secretary must follow is that his exception must be in the "interest of safety of the public and employees." This is a very neat way of writing into this bill a foreclosure of exceptions that might accommodate efficiency and economy but would in no way affect safety.

We of the railroad industry have expressed our complete opposition to this bill or any similar bill and have, I believe, shown this Committee that such legislation is neither justified nor required. I think I have also shown you that railroad labor is in actuality opposed to the bill. We sincerely request that this Committee take no action on this proposed legislation.

Mr. MOLONEY. The section-by-section analysis that accompanied Secretary Boyd's letter of transmittal and the testimony of Mr. Lang. neither of those described the full scope and impact of this bill.

Nor do they describe all of the implications that can be drawn from the provisions of the bill. Indeed the scope and impact of this bill is such as to reach every area of railroad operations and in effect place the Secretary of Transportation in almost complete control of the very life of the railroad industry.

I will point out in the course of my testimony that the bill even extends beyond the railroad industry and will involve the railroad supply industry and the manufacturing industries that serve the railroads.

I think it has been shown by earlier witnesses that the bill largely, in our opinion, is a bill that calls for regulation purely and simply for the sake of regulation.

That conclusion we reach I think is supported by consideration of certain aspects of the bill.

An illustration, for instance, can be found at the very outset in the definition of railroad as that term is defined in paragraph (5) section 2 of the bill. It is defined this way:6 '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."

The definition embraces any “contrivance," whatever that term may mean, "now known or hereafter invented” and it includes "monorail," "tube,” and “other guideway.”

Now, there obviously is no need for any such forms of transportation to be regulated today. The only apparent reason that we can see for including these terms in such a definition or having the definition as broad as it is, is to satisfy the desire of the Secretary to obtain safety authority over them when and if they are invented and when and if they do become elements of interstate commerce at some time in the future.

The definition itself is an example of regulation for the sake of regulation. I say that because there is one thing certain and that is that the creation of regulatory authority in the Secretary over these contrivances that I have mentioned cannot be based on any showing of inadequacy of safety in their operation.

In fact, they will not even have been invented. They will not even have been put to use so that no statistical showing could be made to impose regulation.

I simply point to this definition as being evidence of the fact that this whole scheme is really regulation for the sake of regulation.

The definitions that are contained in paragraphs (5), (6), and (7) of section 2 of the bill and their interrelationship are almost beyond my comprehension. “Rail commerce" means any operation by a railroad in or affecting interstate or foreign commerce or the transportation of mail by railroad but the word "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.

Thus in effect a single freight car or a single track motor car or weed burner by very definition becomes a railroad and it does not have to be placed in use but it simply may be designed for such use.

A "rail carrier” means any person who engages in any operation by any contrivance such as I have described. If I were not enough confused at that point I would then read paragraph (8) of section 2 and that contains the definition of “rail facilities and equipment," defined as including without limitation trackage, roadbed, guideways and any facility, building, property, locomotive, rolling stock, device, equipment or appliance used or designed for use in rail commerce and any part or appurtenance of any of the foregoing.

While this definition lists in specific items, many of those items such as facility, property, device, equipment and appliance are themselves not specific but include the entire gamut of imagination.

Again, and as if we had not already heard enough, the listing is simply an inclusion "without limitation.”

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