the use of radios, and I know of many, many instances where the radio has been most helpful, in the interests of safety. And I can document this.

Mr. WATSON. Mr. Chairman.

Mr. FRIEDEL. Mr. Watson.

Mr. WATSON. Do I understand that both of these gentlemen will come back and give us an opportunity?

Mr. FRIEDEL. I understand that Mr. Menk cannot return, but Mr. Moloney will be here.

Mr. KORNEGAY. Mr. Chairman.

Mr. WATSON. Mr. Chairman, let me again make an observation. I appreciate the fact that we want to hear from the Secretary of Transportation, but I assume these gentlemen have got to keep the railroad going, and employees have got to be working, and the Secretary of Transportation is a Government official.

I would hope that we would show them a little consideration somewhere along the line, too.

Mr. KORNEGAY. Mr. Chairman.

Mr. FRIEDEL. We are going to try to do that. This is by agreement that we have the Secretary here at 10:30.

Mr. Menk.

Mr. MENK. May I suggest I don't have to leave until 1:30. My plane does not leave until 1:30 and if you have finished with the Secretary, I will be just delighted then to stay.

Mr. FRIEDEL. He will be standing by.

Mr. MOLONEY. May I suggest this, too, Mr. Chairman, that I am sitting at the witness chair here, now theoretically at least in the position of counsel, not necessarily a witness. I am available for questioning and you asked me to return today. I will be available any time today.

Mr. FRIEDEL. All right, thank you. You are excused, gentlemen. The Chair will now state that at the request of several members of the committee we have had Mr. Boyd come here to clear up a lot of questions.

I understand you have a very short statement, and your statement will be included in the record, and we will go right on with the questions.

STATEMENT OF HON. ALAN S. BOYD, SECRETARY, DEPARTMENT OF TRANSPORTATION; ACCOMPANIED BY A. SCHEFFER LANG, ADMINISTRATOR, FEDERAL RAILROAD ADMINISTRATION; J. THOMAS TIDD, ASSISTANT GENERAL COUNSEL FOR LEGISLATION

Secretary BOYD. Thank you, Mr. Chairman.

Mr. FRIEDEL, Mr. Secretary, there have been several questions raised as to the meaning of the language in this bill, which relates to injunctions. Is it your intention that the injunctive relief sought by section 11 should override the Norris-LaGuardia Act?

Secretary BOYD. No, sir; we have not understood it to do that.

Mr. FRIEDEL. You did not understand it to be that way. And that is clearly not the intention to override?

Secretary BOYD. Clearly not the intention to override the NorrisLaGuardia Act.

Mr. FRIEDEL. Is it your intention that the power of the Secretary to establish qualifications of employees contained in section 3(a) (3) should override the agreements reached under the Railway Labor Act?

Secretary BOYD. Well, it is entirely possible that it would; yes. And in the identical fashion that regulations of the Federal Aviation Administration may or may not have that same result, because both aviation and railroad agreements are under the Railway Labor Act, It would be no different from the functioning of the Federal Aviation Administration in this regard.

Mr. FRIEDEL. Well, would you go into the wages and hours of service?

Secretary BOYD. No. That is not related in either case. Those are not involved.

Mr. FRIEDEL. It could override agreements reached under the Railway Labor Act. I know you have some jurisdiction over the airport, aviation, but

Secretary BOYD. Under the Railway Labor Act?

Mr. FRIEDEL. But if the management and unions enter into an agreement, you could override that agreement?

Secretary BOYD. The regulations could, in a theoretical sense, Mr. Chairman. The Federal Aviation Administration has safety regulations which require the air carriers to utilize people who have certain qualifications.

Now if the railroads and the brotherhoods were to reach an agreement that would say, by way of a very exaggerated example, that a man to be a locomotive engineer did not have to understand the signal system, or if it were silent on that subject and the Federal Railroad Administrator acting through the Secretary had issued regulations saying that in order to be qualified to operate a locomotive an engineer must understand the signal system on the railroad, then the law and the regulations would override the contract.

Mr. FRIEDEL. On the other hand supposing the management and unions agree that the locomotive engineer should be employed to the age of 65, if in good health, and you come out with regulations that 60 would be the age limit.

Would your decision override their agreement?

Secretary BoYD. Yes, sir. That has been done. That is a good case in point, although I don't know that there is any contemplation that that would be done in the railroad industry.

Mr. FRIEDEL. I was just using that as an example.

Mr. Kornegay.

Mr. SPRINGER. Mr. Chairman, might I ask a question?

Mr. FRIEDEL. Yes.

Mr. SPRINGER. A parliamentary inquiry. Are you going to allow the Secretary to read his statement?

Mr. FRIEDEL. I understand it is a printed statement, and I asked him to put it in the record.

Mr. SPRINGER. Well, I believe this statement ought to be read. There are some important questions I think would be in this statement.

Mr. FRIEDEL. In that event you may proceed to read your statement Mr. Secretary, and it will not be necessary to insert your prepared statement.

Secretary BOYD. Thank you, sir.

The Federal Railroad Administrator, Mr. A. Scheffer Lang, appeared before you last week to testify in my behalf on H.R. 16980, and the Administration's bill to improve rail safety.

This bill, which would substitute general administrative regulatory authority for specific statutory regulation, is essential if we are to reverse railroad accident trends.

Our previous testimony dealt with the provisions of the bill in some detail. The committee requested clarification of certain provisions, however, and I will comment briefly on these.

Section 5 (b) of the bill provides that :

Compliance with any standard, rule, or regulation, established under this act 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 any such standard, rule or regulation.

This provision without exception appears in substantially the same form in the National Traffic and Motor Vehicle Safety Act. Without the exception, the purpose of this provision is to state the neutrality of the bill with respect to the issue of tort liability. Thus an act could not be defended against a charge of negligence solely on the ground that it was in compliance with or did not violate a safety rule.

To this extent the provision simply affirms the general rule of law that compliance with a legislative or administrative requirement will not prevent a finding of negligence where a reasonable man would have exercised greater care. For example if a safety regulation provided that a train should proceed across a trestle at a speed not in excess of 15 miles per hour, the regulation would afford no defense to a charge that a train going 15 miles per hour should have been going 5 miles an hour under the circumstances.

The exception was added at the request of the Department of Justice to cover a special circumstance. The special circumstances would arise when the precise act complained of as being negligent was directed to be done by the rulemaker. As an example let us assume that the Government issued a regulation that a train should cross a trestle at 15. miles per hour, neither more nor less. In that instance, the railroad. could invoke the exception against a charge that in spite of the rule it should have been going 5 miles per hour. The purpose of the exception, of course, is to avoid requiring one who is regulated to act at his peril and risk either a charge of negligence or a penalty for violating a regulation. Apparently the Department of Justice has been involved in some cases where this issue was present, and believes the exception should be available.

A question was also raised with respect to the liability of the Government under section 5(b). The section does nothing to shift any liability which might otherwise exist from one to another of the possible defendants-the Government, a carrier, or an employee.

The Government's liability is governed by the Federal Tort Claims Act. That act exempts the Government from liability if the alleged negligence arises in the exercise of a discretionary function. Rulemaking and inspection activities generally fall within the discretionary

area. We are submitting a legal memorandum which deals more fully with both of these points.

Section 11(c) prohibits the admission in evidence of accident reports of the National Transportation Safety Board or the Department and prohibits employees of the Board or the Department from giving expert or opinion testimony concerning accidents. Factual evidence may be given when it is not available by other means.

The question was asked last week as to the inconsistency between this provision and section 12(c) of the Natural Gas Pipeline Safety bill. The latter permits the use of accident reports in any civil, criminal, or other judicial proceeding arising out of the accident without, as the committee report points out, intending to predetermine the admissibility as evidence of the accident report.

The laws on the admission of accident reports are not consistent. The Federal Aviation Act, section 701(e), the Interstate Commerce Act, section 220(f), the Locomotive Inspection Act, section 8, and the Accident Reports Act, section 4, prohibit the admission as evidence of accident reports. The Highway Safety Act, section 106, authorizes the admission of reports. In drafting H.R. 16980, we elected to prohibit admission because that was already the law in the railroad safety area. There are two interests to be balanced here. One is the right of the parties to a lawsuit to obtain the evidence needed to support their positions. The other is the necessity to elicit all of the facts involved in accidents in order to prevent future accidents. These are very close issues of public policy about which reasonable men may differ. On balance, I believe our choice was correct.

Both labor and management witnesses have asserted that section 3(a) of the bill is too broad in its grant of regulatory authority. Both suggest narrowing the authority granted, but to different ends. The fact of the matter is that there is very little ground to stand on between a system of specific safety regulation by statute and general safety regulation by administrative process.

If we could predict sufficiently far into the future the precise objects and practices which should become the subject of safety regulation, Congress could legislate with precision and there would be little need for any delegation of legislative authority. By and large, this has been the practice followed in the rail safety area and it has proven inadequate to the task. The legislative process is simply not suited to dealing with a dynamic industry on a daily basis.

Broad delegations of safety regulatory authority are certainly not. unprecedented. Section 3(a) follows quite closely the regulatory framework of section 601 of the Federal Aviation Act of 1958.

In an equally broad vain, the National Traffic and Motor Vehicle Safety Act of 1966 directs the Secretary to establish "appropriate Federal motor vehicle safety standards." The act requires that these be practical, meet a need for safety, and be stated in objective terms. In a word, they must be "reasonable"-the same basic standard which all rulemaking must meet under the Administrative Procedure Act.

Numerous other provisions of H.R. 16980 have a counterpart in existing legislation or the gas pipeline bill which the committee has recently considered. The maximum civil penalty of $1,000 is consistent with the Federal Aviation Act and the Motor Vehicle Safety Act. The minimum of $250 is consistent with the Safety Appliance Act.

The civil penalty compromise provisions are quite common and already exist in the aviation, motor vehicle, and maritime areas.

The criminal penalties for assault are identical to those in title 18 of the United States Code. The proposed $10,000 penalty for knowing and willful violations has no direct counterpart in title 18 but represents a judgment that willful violations of safety regulations should exact a substantially higher penalty than a nonwillful violation.

The provisions regarding injunctive relief in section 9 are the same as those in the gas pipeline bill. The same is true of the general powers in subsections 10 (a) and (c). Other general powers contained in subsections 10 (b) and (d) have counterparts in the Federal Aviation

Act.

Section 8, dealing with the designation of an agent for service, is similar to a requirement in the Motor Vehicle Safety Act.

I think it fair to conclude that we have attempted to follow existing legislative policy as much as possible in developing H.R. 16980. Quite naturally, some departures have been necessary to cope with factors unique to the railroad area.

I will be happy to elaborate on any of these matters, Mr. Chairman, or attempt to clarify any other questions the committee might have. Mr. FRIEDEL. Thank you, Mr. Secretary.

We are going to adhere to the 5-minute rule.

Mr. Springer, you are recognized.

Mr. SPRINGER. Mr. Secretary, the thing I think that has intrigued this committee for the first time in a long time I can remember, that a bill has appeared before this committee with which neither labor nor management is happy.

There have been suggestions, so I understand, so informally, some 40 amendments by labor. Without any further information, I would guess probably management would have that or half that number. If that is true, and we consider all of these, it will be long past July 9, which is the date which the Rules Committee has set for the last day to secure a rule.

This bill has appeared to members of this committee to be rather sweeping. Do you believe that in order to get safety, that you need all of these rules that you have set out in this bill?

Secretary BOYD. Yes, sir; that is our considered judgment.

Mr. SPRINGER. You mentioned the Federal Aviation Act. Are you talking about safety in the same manner which we prescribe under Federal aviation?

Secretary BOYD. Esssentially, yes. The philosophy is essentially the same, except for the fact that aviation and railroads each has some unique aspects.

Mr. SPRINGER. Well, your regulation for aviation is far more stringent than it is for ground traffic. Isn't that right?

Secretary BOYD. Oh, that is quite true, and I am glad you asked that, because I do not think that this bill would lead us to regulating railroad traffic at all in the sense that we regulate air traffic.

It would certainly have the same impact, though, in that we would develop broad, industrywide safety rules.

Mr. SPRINGER. What do you have in mind, we will say, in the regulation of qualifications of employees?

Secretary Born. This is under section 3(a) (3) which gives the Secretary the authority to prescribe rules, regulations, or minimum stand