Right now you used the words "rail facilities" to include without limitation, and any facility, building.

Secretary BOYD. Right.

Mr. SPRINGER. Do you think the Supreme Court will interpret that the 12th Street Station is not under this language.

Secretary BOYD. No; I don't think it would.

Mr. SPRINGER. You don't think the Supreme Court would?
Secretary BOYD. No, sir.

Mr. SPRINGER. I am rather inclined to believe that, with the way that they interpret these Federal statutes, that they would interpret anything using the word building. If you had 25 or 30 people hurt and a couple killed in a panic down those stairways, I am inclined to believe that on a suit the Supreme Court would say that word "building" included that.

Secretary BOYD. Mr. Springer, I don't want you to think that I am sort of stuck on one wing here, but the fact is that this language is almost verbatim from the natural gas pipeline bill, and very similar language is used in the Federal Aviation Act. There has been no question so far as I know of the Federal Aviation Administration or its predecessor, the Federal Aviation Agency, or the Civil Aviation Administration, which had the same act going back to 1938 of taking safety jurisdiction in connection with the terminal.

Mr. SPRINGER. Well, I will give you an example.

If someone in Kennedy Airport got his foot caught between the plane and the compressor that goes out, do you think that that is safety? That is in the terminal.

Secretary BOYD. Yes, sir. I think that is safety, Of course, there you have the question possibly-I don't know-of the operation of the plane. If the operation of a train were involved, I think that this bill if enacted would cover that situation. However, there has been no effort, no expression of desire, nor to my knowledge any feeling on the part of anyone that the Federal Aviation Administration has any jurisdiction over the escalators, the elevators, the baggage chutes, the counters, the seats in the terminal, or anything in the terminal. Yet it contains similar language.

Mr. SPRINGER. Well, I am just trying to get your impression of what you want so that the committee will understand.

Now you use the words on line 10, page 3, "overhaul of rail facilities and equipment."

What do you visualize there?

Secretary BOYD. Well, as Mr. Lang pointed out, that would involve essentially the same thing as is true in the Federal Aviation Administration where, for example, engines are required to be overhauled after a specified number of flight hours.

I don't contemplate that we would operate on an hourly use basis, but it is possible. In connection with the comments made by the chairman earlier about the high-speed train and our concern about the impact of braking on the wheels, it may well be that under this bill we would require an inspection of the wheels for damage due to heat buildup after so many hours of use.

Mr. SPRINGER. Including the frequency and manner thereof and the equipment and facilities required therefor. Secretary BOYD. Yes, sir.

Mr. SPRINGER. In other words, the roundhouse, or whatever it is, would be under your jurisdiction, is that right?

Secretary BOYD. Yes, sir.

Mr. SPRINGER. Now, if that is all true, let's go to page 3 beginning with line 13:

(3) rules, regulations, or minimum standards, governing qualifications of employees, and practices, methods, and procedures of rail carriers as the Secretary may find necessary to provide adequately for safety in rail commerce.

Secretary BOYD. This again is similar to the Federal Aviation Act. It is not verbatim, but it is similar.

Mr. SPRINGER. You don't have any what I would call Airways Labor Act, do you?

Secretary BOYD. No; the aviation commercial operations insofar as labor is concerned are conducted under the Railway Labor Act.

Mr. SPRINGER. Insofar as airways are concerned, it is under the Railway Labor Act?

Secretary BoYD. Well, whatever labor relations there are in the airlines in commercial aviation in interstate commerce are conducted under the Railway Labor Act.

Mr. SPRINGER. All right.

Now, do you issue a license to a pilot?

Secretary BOYD. Yes, sir.

Mr. SPRINGER. Do you contemplate issuing a license to the engineer? Secretary BOYD. No, sir.

Mr. SPRINGER. Do you think you have such power?

Secretary BOYD. I don't see it in this bill. Now, we would

Mr. SPRINGER. "*** regulations, or minimum standards governing qualifications of employees, and practices ***"

Under this could you set up

Secretary BOYD. Yes; clearly.

Mr. SPRINGER. Could you set up a physical qualification such as, we will say, eyes?

Secretary BOYD. Yes, sir.

Mr. SPRINGER. A physical examination?

Secretary BOYD. Yes, sir.

Mr. SPRINGER. Now, isn't it true that safety has been, under the Railway Labor Act, a matter of negotiation between employer and employee?

Secretary BOYD. I am not sure that I can answer that, Mr. Springer. I would think the railroad management and the brotherhoods would have to give you the answer to that.

Mr. SPRINGER. Your counsel knows whether that is true or not, don't you, counsel? Don't you know that?

Mr. TIDD. I assume, Mr. Springer, that they do contract in areas in which safety factors are involved, but I would not think that they are contracting in contravention of existing railway safety statutes. They may be contracting as to safety standards in areas not covered by

statute.

Mr. SPRINGER. All I am trying to find out is whether you are going beyond that or not. That is what I am trying to find out.

For instance, I take it from what you say that you could set age, you could set qualifications for engineers and firemen. Whether you say

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license them or not, what I am trying to find out is whether you could do such a thing or not.

Secretary BOYD. The bill does not provide for licensing. It provides for delegations, which might be considered to be a form of certification for those employees of the railroad who would be delegated authority from the Secretary of Transportation to carry out various of his safety functions under the bill. Such delegations would not be in connection with their jobs as brakemen or switchmen or engineers or anything like that, but to carry out functions of the act on delegated authority. Only in this sense would we have authority to "certificate".

Mr. SPRINGER. That is what I want to know.

Secretary BOYD. But that is a different thing than talking about the great mass of operating employees of the railroad.

Mr. SPRINGER. What about switchmen or stackmen?

Secretary BOYD. NO.

Mr. SPRINGER. You don't believe you would have a right to set qualifications?

Secretary BOYD. This is a different thing. Yes, we think we would have under this bill the authority to establish minimum qualifications. Mr. SPRINGER. Such as age?

Secretary BOYD. Age, eyesight, physical condition, and an ability to read and write the English language would be examples.

Mr. SPRINGER. You could set up those, I think, Mr. Secretary, and let's be reasonable. You could set up under the regulation anything that

you thought had to do with safety and put it into the certification. They would have to pass that kind of examination, right?

Secretary BoYD. That is only if you assume that the Secretary is going to be arbitrary, in the first place, and if the Administrative Procedure Act means nothing, in the second place.

Mr. SPRINGER. I will get to that. I am just trying to find out what you have in mind. You are a pretty reasonable man, Mr. Secretary, but not everybody is like you.

What I'm worrying about is the fourth and fifth and sixth and successive Secretaries of Transportation who didn't hear these hearings.

Secretary BOYD. Let me say this: The Federal Aviation Act is a suc

cessor to the Civil Aeronautics Act of 1938, and there have been about 12 Administrators since them, many of whom didn't hear, didn't go through the hearings, and didn't have anything to do with aviation at the time the 1938 act was passed.

There is no question in my mind, and I think it would be very helpful if anyone were interested in finding out whether, in fact, over the years the airlines and aircraft manufacturers haven't found that the Administrators of the CAA and its successors hadn't been very reasonable men. Men who dealt with the safety regulation and with an understanding attitude.

The key hasn't been what is in the law. The law is very important, but the key to it is providing the Bureau of Railroad Safety, the Federal Railroad Administrator or whoever, with sufficient technically competent people to work on these problems. That has been done in the FAA, because aviation is sort of a glamour thing, whereas historically there has been for any number of reasons an unwillingness to provide the Bureau of Railroad Safety with the number and the qualifications

of people to deal in the same manner with the railroad industry, even in the limited area in which they have had jurisdiction in the past. I really believe

Mr. SPRINGER. Mr. Secretary, not to argue with you-and I will let you make your statement. It is perfectly all right. I don't visualize dealing with airplanes and railroads in the same vein.

Most of us have been critical that it wasn't safe enough that the standards required for pilots-and I raised that in hearings with Buckingham last year in the Denver crash that this particular pilot operating that plane didn't have the qualifications. And when I got the record, it showed that the fellow had flunked at least once.

We are wondering, do you need all this authority to run the railroads? This is the question we raise. We certainly do not visualize FAA and railroads in the same classification insofar as the need is concerned.

I am talking about regulations. Let us go down the line to line 24, beginning with: "The provisions of the Administrative Procedure Act shall not apply to the establishment of interim regulations." Secretary BOYD. Yes, sir.

Mr. SPRINGER. Is there a reason for that?

Secretary BOYD. Yes, sir. The interim regulations are those which are currently in effect under existing statutory authority. That statutory authority would be repealed by this bill. Those regulations which are now in effect would become the interim regulations. There would be no change whatsoever.

Mr. SPRINGER. All right. Now, if those are subject to the Administrative Procedure Act, why shouldn't they be during the 2-year period? Secretary BOYD. The Administrative Procedure Act has to do with the establishment of the regulation. That process was gone through at the time those regulations were established.

Mr. SPRINGER. If you want to take an appeal from the finding by you or one of your employees, don't you go to the Administrative Procedure Act on that?

Secretary BOYD. That would still apply. That has nothing to do with the establishment of the regulation.

Mr. SPRINGER. That wasn't the way we understood it.

Secretary BOYD. I am sorry.

Mr. SPRINGER. That is not the way our counsel tells us it reads, but we are willing to take your word if that is what you intended.

Secretary BOYD. In the regulations currently in effect, the Administrative Procedure Act procedures for appeal are included.

Mr. SPRINGER. All right. If you say that is true, then we will take your word, or else we will get language that does what you are talking about. But we didn't understand it that way.

Secretary BOYD. All right, sir.

Mr. SPRINGER. Now, let us go to page 4, lines 16, 17, and 18:

A State may regulate safety in rail commerce, in a manner which does not

- conflict with any Federal regulation, in the following areas. . .

This does not conflict with any Federal regulation. This means that Federal regulation would supersede any State regulations, is that right, which were in conflict?

Secretary BOYD. Yes, sir.

Mr. SPRINGER. Suppose that under No. 1 "vertical and horizontal clearance requirements" and under No. 2 "grade crossing protection (including grade separation) which relates to the location of new crossings, closing of existing crossings, the type of crossing protection required or permitted, and rules governing train blocking of crossings"

Let us take train blocking of crossings. My recollection is that the State of Illinois has a 20-minute rule. If the Federal regulation said 5 minutes or 30 minutes, yours would prevail, is that right?

Secretary BOYD. Yes, sir, although certainly this is an interpretation which would never have occurred to us that we would be dealing in areas of the length of time a train can block a crossing. We see this as primarily a matter for local decision, and we do not see the requirement for national regulation of the time a train can block a crossing.

Mr. SPRINGER. Let us go to a grade crossing, which would have to do with the vertical and horizontal elevation. Suppose that the Federal regulation said that it should be only 10 percent.

Secretary BOYD. I am sorry. I didn't understand you.

Mr. SPRINGER. Suppose that the approach to the grade crossing in the Federal regulation said that it should be 5 percent and the State regulation said that the grade could be 10 percent.

Secretary BoYD. Our assumption is that the Federal Government won't be regulating that either. The grade crossing would be a matter for the State highway department and the Bureau of Public Roads, not for railroad safety.

Mr. SPRINGER. Well, suppose that you had one of those grades, and I assume that it would go up like this. You don't regulate that. You have seen that kind, haven't you, in some rural sections where you go up like this and go down like that and just barely clear?

Secretary BoYD. Yes, sir.

Mr. SPRINGER. You don't have anything to do with that?

Secretary BOYD. This bill doesn't, and whether the Department of Transportation would have anything to do with it would depend on whether that crossing was on a Federal aid highway.

Mr. SPRINGER. Let us go to No. 3:

(3) the speed and audible signals of trains while operating within urban and other densely population areas;

Suppose that Illinois said the speed should be 10 miles an hours and you said 15 miles an hour. Which would prevail?

Secretary BOYD. There is no question on all of these. If the Federal Government issued a regulation, it would preempt. There is no question.

Mr. SPRINGER. No question about preemption?

Secretary BOYD. There is no question about preemption. However, the purpose of putting these four exceptions in here is to indicate that so far as we are concerned and as we understand what is involved, these are primarily matters of local jurisdiction and authority, and we would not propose to get involved in issuing regulations which would be in conflict with these.

Mr. SPRINGER. Now, as to the audible signal in passing through Mattoon, Ill., if the Federal Government says that it shall be 10 seconds and the State says that it shall be every 15 seconds, in that instance I take it the Federal would apply.