and any changes in such rules should be only for the purpose of "achieving safety."

Now compare the "achievement" of safety with the "promotion" of safety, if you will. When the railroads in 1959 proposed a minor change in the power-brake rules, indeed only exemption from one rule in specific circumstances, the Interstate Commerse commission held that under the language of the statute it had no authority to grant the request since safety would not be achieved thereby though it would remain or might remain unimpaired while efficiency was promoted. After much legal maneuvering, including another petition that was denied for the same reason without hearing, the issue was brought before a U.S. court by the AAR in 1966; and, while that case was pending, the Commission vacated its order that was made the subject of the appeal, thus leaving the court nothing to adjudicate.

More than 6 months later, in March 1967, the Commission issued another order reversing its view of the law but the railway unions immediately filed for the reconsideration of that order.

The AAR filed a reply urging denial of the petition and a few days later, on April 1, 1967, the Department of Transportation obtained jurisdiction of this matter.

The question has remained with that Department for more than 13 months without any action by that body.

I feel obliged to mention the history of that proceeding in as much detail as I have because it clearly demonstrates to us that the "promote" language of this bill could and would be seized upon just as the "achieved" language of the earlier law was; and our experience with the existing language of the Power Brake Act proves to us that there would be no quick or easy solution to the legal quibble that would inevitably arise.

May I go back now to the definition of rail facilities and equipment. There are obvious conflicts of jurisdiction that would arise under this bill. As I have explained, the definition of rail facilities and equipment is such as would set up at least one clear conflict between the regulation of the Department of Transportation under this bill and the regulation of the Federal Communication 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 such 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 seems clear to us that train radios along with almost every other imaginable device come within the definition of rail facilities and equipment as that term is defined in this bill.

The FCC has for more than 30 years had plenary jurisdiction over these matters. 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 refuse licenses for radio and would not have such powers even if this bill were enacted.

We feel that it is entirely possible therefore that the FCC would continue to issue as they have in the past railroad radio licenses in the

interest of safety only to have the DOT prohibit, modify, or limit the use of such licenses on the very same ground of safety but viewed in a different light.

Now, it may be asserted that the possibility of this kind of a conflict that I have described is so remote and fantastic as to be an unfair criticism of the bill but it is not remote, it is not fantastic, nor do we think it is unfair.

Such conflict now actually exists not before the DOT but in the State of Arizona. With the support of the Railway Brotherhoods, the Corporation Commission of Arizona now 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 the use of such radio-in-train operation has been authorized by the FCC for railroads including those operating in Arizona on the express ground that it would promote safety.

There could be little doubt that if this bill were enacted this demand of the railroad unions would forthwith be transferred from the Commission in Arizona to the new tribunal of the Department of Transportation and would most likely be broadened to a national basis.

In addition to this conflict, there are others that might take place. The Department of Labor, for instance, has now under consideration certain safety regulations to be adopted in the interest of dockworkers and under the admiralty authority of this act. If adopted those rules would apply to certain railroad employees and operations in the port

areas.

Section 4 of the bill deals with the relationship of State and Federal laws and regulations after this bill might become 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 will be left entirely to the States.

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 regulation. However, at page 4 of his written statement the Federal Railroad Administrator said:

Section 4 of the bill reserves to the States the regulation of certain aspects of railroad safety.

And again at page 10 of his statement the Administrator said: 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 to me then that the intent and purpose of section 4 is to leave with the States all safety regulatory authority with respect to, one, vertical and horizontal clearance requirements; two, all railroad highway grade-crossing matters; three, the speed and audible signals of trains operating within urban and other densely populated areas; and, four, 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 reason for these provisions of section 4.

Nor do the statements of the Federal Railroad Administrator afford any sound reason for this split in jurisdiction. We do not understand how or why safety would 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 in his statement, 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 area we offered our utmost cooperation.

We understand the Department of Transportation research plan in that area is under discussion and that it 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 mind and I submit that they are serious questions.

Why, for instance, is Federal and uniform safety regulation of bridges with respect to which the record before this committee will show there has been neither death nor injury in the last 6 or 7 years, why is Federal and uniform safety regulation over railroad bridges 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, material, workmanship, installation, construction, and performance, and I might say even size and shape of railroad cars and locomotives while each State will regulate the amount of clearance required to accommodate the equipment in its operation?

Why is it essential to have Federal and uniform regulations that all trains must be equipped with audible signals meeting Federal standards, manufactured to Federal design in shops under Federal supervision when the States can prohibit the use of such signals during a large part of or all of the train movement?

We frankly do not understand. I gave this a lot of thought and came up with no answer. We do not understand how the installation or removal of industrial and spur tracks plays any part in the question of railroad safety. We have, however, from experience found that that question sometimes raises issues of a political nature but very seldom any issues of a safety nature.

Section 5(b) of the bill provides that compliance with any standard, rule or regulation established by the Secretary, something that is definitely 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 standards, rule, or regulation and we ask what is the difference between compulsion to obey the rule which compulsion is certainly amply provided for, what is the difference between that and "specific compulsion."

Where the act of complying with the standard, rule, or regulation or the end result of such compliance is itself made the basis for a claim of liability, then the parties so complying with that rule or regulation should be specifically exonerated from any liability.

Section 6(a) of the bill establishes a civil penalty for any violation of any rule, standard, and so on of the Secretary with each day of violation constituting a separate offense.

Under existing law for the most part the comparable penalties for violating the railroad safety rules are a flat $250. Prior to 1957 the penalty was $100. The amount was raised to $250 in 1957.

It is now sought to make the penalty a variable one ranging between the current sum and a maximum of $1,000.

No reason appears to us for this change, particularly since the penalty is to be exacted in a nonwillful, nonknownng violation. In such cases there can scarcely be any degree of culpability but the existence of a flexible penalty permits a quite arbitrary assessment for culpability where none exists.

Obviously the flexible penalty is imposed in a situation where we think 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 we think is grossly excessive and it is exactly the penalty fixed in another section of the bill for such things as forcible assault with a deadly weapon. It may also be observed that under the comparable safety regulation of common carriers by motor vehicle even repeated, knowing and willful violation 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 a wicked thing. We think that is very much of an oversimplification.

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 upon a mistake of fact or law.

We do not think that such violations deserve the heavy penalty provided in this bill.

The Secretary's analysis of the bill says that the criminal penalties prescribed in subsection (c) are already under the United States Code.

If so there is no reason to include them in this bill insofar as our industry is concerned except on the assumption that the railroads are more likely than others to forcibly assault Government officials in the performance of their duties, and we doubt that.

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 him. Such a provision should be an integral part of any statute of this nature.

Section 11(c) of the bill repeats in substance some of the language of the existing Accident Report Act to the effect that reports submitted by railroads on accidents shall not be admitted as evidence in court but there is no provision or an essential accompaniment, namely, that such report should 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 and as evidence, he can obtain it and through its use in

his own office obtain considerable advantage in lawsuits to be brought, but the principal point is that he can obtain it in stirring up litigation. The same subsection departs from 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 investigated.

This provision we think is a good one because, when you have that kind of a provision, you obviously are going to have a much greater disclosure, a more full disclosure, a more honest disclosure, a more complete disclosure to the investigator and the investigator will be much more able to perform his duties more effectively and we think that this encourages that type of investigation.

We think that the provisions of the bill would discourage it. I would like now to address my remarks to the presentation made by railroad labor.

Now, while railroad labor attempts to play the role of a proponent of the bill it is quite obvious to us that such is not the case. In his testimony Mr. Chesser proposed 44 amendments to this bill in an attempt to make it 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 operation it seems quite obvious that they do not want this bill any more 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 airlines and motor carriers, that simply is not the case.

Their proposed amendment No. 9, for instance, 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 this intent of the 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.

Now, there is no provision comparable to this amendment No. 9 in the safety provisions of the Federal Aviation Act even though