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 Mr. 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: "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 11 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."

Then to make things even more confusing, section 2 states that the definitions therein contained are to mean what the definitions say "unless the context otherwise requires."

Just how or when and what person, board, forum or court would make this determination as to what the context may otherwise require presents at least to my mind an intriguing question but one that I am not able to answer.

While the definitions in section 2 present sufficient problems in themselves, those definitions as they are used in the context of section 3 of the bill become more involved, and the full scope of the bill, whether intended or not, becomes apparent.

By this section the Secretary is empowered and there is imposed upon him the duty to promote safety in rail commerce by prescribing and revising from time to time standards, rules and regulations.

While a complete understanding of rail commerce, as I have explained, may be difficult or impossible, the fact remains that, whatever it is, the Secretary is empowered and it becomes his duty to promote safety in that area.

Now, he is to accomplish this by prescribing and revising from time to time three specific things: First, he is to prescribe and revise from time to time minimum standards governing the use, design, materials, workmanship, installation, construction, and performance of rail facilities and equipment.

Now, I ask that you refer back to the definition of rail facilities and equipment as I have described it and when you do so you will find that rail facilities and equipment includes without limitation such things as any facility, building, property, device, equipment or appliance used or designed for use in rail commerce and any part or appurtenance of any of those.

Thus, the Secretary can, and he must, for example, apply this power and duty to railroad buildings including even the general office building and the Secretary has complete control over its use, its design, the materials that go into it, the workmanship on it, the installation of it, the construction and the performance.

Apply, if you will, this definition to any device or appliance and you may wind up with a computer and apply it, if you will, to any facility or property and you gentlemen may take your pick. Apply it to rolling stock and locomotives and the Secretary will control not only their use and their design but also the materials, workmanship, installation, and construction by their manufacturer, who will usually not be a rail carrier at all.

Apply it to rail and the Secretary will control the design, material, workmanship, and manufacture of rail by the steel industry and its use by the carriers.

While I could say much more about section 3(a) (1), I would like to move on to the second paragraph of section 3 (a).

Under this section the Secretary's powers would clearly extend be-yond the railroad industry itself and embrace a large area of the railroad supply industry.

Let me take, for example, a private car company manufacturing its own cars and leasing them to either railroads or shippers and, when necessary, receiving such cars back at its own facilities for maintenance, serving, repair, or overhaul. That private car owner would

be subject to the Secretary's jurisdiction in performance of such work including the frequency and manner thereof and the equipment and facilities used by him in performing the work; in other words, the plant itself and all machinery and equipment within the plant that might be required to perform the work.

Another example would be the overhaul of a railroad locomotive by the manufacturer thereof. Example after example could be cited but I think the point has been sufficiently made and may be summarized this way:

That any inspecting, testing, maintenance, servicing, repair, and overhaul of any rail facilities and equipment performed by anyone outside the railroad industry would bring such person and his equipment and his facilities under the jurisdiction of the Secretary.

Moving to paragraph (3) of section 3(a) the Secretary would be empowered to prescribe rules, regulations, or minimum standards governing the qualifications of each and all employees of the railroad industry insofar as their activities might, in the opinion of the Secretary, relate in any way to the safety in rail commerce.

As an extreme example, and perhaps I should say that maybe it isn't too extreme because I think when Mr. Lang was on the stand that a question along this line was asked and the answer was that the Secretary would, let's say, be able to pass upon the qualifications of any railroad employee including the chief executive, and I assume that it is quite possible that the Secretary might be of the opinion that a man from an operating or safety background would, let's say, make a better chief executive than would a man with the background of law or accounting.

As used in the paragraph that I have referred to, the terms "practices, methods, and procedures" of all rail carriers has no limitations and, when it is applied to any and all employees, the meaning of such terms become even more difficult to comprehend.

"Practices, methods, and procedures" to my mind would cover anything and everything that a railroad carrier might do and I suppose the standardization and procurement of even office equipment would be considered a practice, method or procedure.

Now this section 3(a) (3) will, in my opinion, inevitably involve the Secretary in matters that have heretofore been considered bargainable under the processes of the Railway Labor Act.

Many of the matters embraced within this paragraph have been bargained and have been included in labor contracts. The Secretary would be given the power to override such contracts and agreements and to impose his own terms and conditions.

I believe it is unnecessary for me to enlarge on this point and its mere mention should be sufficient to indicate the real scope of the proposed legislation that you are now considering; and I may say that later in my statement, when I discuss the submission made by the Railroad Brotherhoods, I will come back to this particular point.

Another undisclosed consequence that would follow from paragraph (3) of section 3 (a) is one that we do not feel is as obvious to those outside of our industry but it is certainly obvious to us.

The Congress is thoroughly familiar with recent strikes, actual and threatened, by various groups of employees such as firemen and trainmen, in the name of safety; and past Congresses have spent many un

pleasant days contemplating such strikes or acting to prevent them or wondering what to do about them.

When strikes have taken place, management officials have usually been able to take over the operation of essential trains so that at least some of the necessities of national life can continue to be transported; but it is not difficult for me to envision under this bill rules adopted by the Secretary under this paragraph that although adopted in good faith-might have the effect of disqualifying the management personnel who in the past have performed such essential services.

Section 3 of the bill does nothing to confine the Secretary or his agent in the exercise of the powers it grants. To be specific, it requires no hearing on any rule, regulation, or standard that he may choose to adopt.

The Administrative Procedure Act is the sole relief that anyone subject to his regulatory powers would have. But under that Administrative Procedure Act he need not conduct a hearing. He need simply announce a proposed rule in the Federal Register and receive written comment about it; and he may thereupon adopt the rule, reject the rule, or modify it after he considers such comments: but his action need not be based, nor is it required to be based, upon the comments that he has received.

Unfortunately, and I say that sincerely, rulemaking in matters of railroad safety has been for many years a battleground on which the differences between management and labor have been fought out and the clashes between the parties on safety rules are about as adversary as any lawsuit that you can possibly conceive. It is utterly unrealistic to regard these rule procedings as nonadversary.

In such matters it is essential that the preservation of the rights of the parties be provided for by the requirement of hearing and by the necessity of decisions based upon the record.

As I pointed out, section 3(a) empowers the Secretary to promote safety in certain ways by prescribing and revising rules, standards, and regulations.

Now, in our minds to promote something is to advance or elevate it; and we assume that any rules that might be adopted by the Secretary initially under this authority would in good faith be so designed, at least in his opinion, even though our experience later under that rule or regulation might disclose that it neither furthered nor did it evaluate safety. Indeed, experience might show that that rule could be completely modified or wholly done away with without any effect whatsoever on safety, and if that were done then efficiencies and economies would be achieved without safety being affected in any way.

From experience, however, if that situation should develop, we know what the results would be at least in the way of time. The Power Brake Act of 1958 adopted by the Congress over our protests proves it. When Congress was considering the Power Brake Act in 1957 and 1958, the AAR witness asserted and proved that railroad labor hoped and 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 this fear of our industry, Congress inserted a proviso in that law to the effect that the rules adopted thereunder