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claimed that it had complied with certain State requirements and, therefore, could not be found to have been negligent. In rejecting the claim of the utility the Court stated at page 424 as follows:

"Evidence was offered by appellant to negative this rule by showing that it had substantially complied with the General Orders of the Railroad Commission, and from this premise it is now argued that due care on the part of the company was thus established. At most, such a showing would only relieve the company of the charge of negligence per se. It does not affect the question of negligence due to the acts or omissions of the company as related to the particular circumstances of the case. The rule has been stated thus:

"It does not follow that merely because one has complied with the terms of a statute or ordinance that he is thereby absolved from negligence. One may act in strict conformity with the terms of an enactment and yet not exercise the amount of care which is required under the circumstances.' (Citing cases)

"In other words, the question is whether under all the circumstances negligence has been shown."

(See also United States v. Marshal, 230 Fed. 2d 183 (9th Cir.-1956); Nevis v. Pacific Gas & Electric Co., 43 Cal. 2d 626, 275 P. 2d 43 (1943); Prosser, Torts (Third Ed.) Page 205).

The fact that a defendant could show DOT inspection and approval would not, we think, make a difference. In Kamienski v. Bluebird Air Service, 321 Ill. App. 340, 53 NE 2d 131 (1944) involving a suit against an airline by passengers for personal injuries suffered in a crash, the defendant tried to show that the engine had been inspected and approved by the Government. On this point, the Court stated at page 134:

"Common carriers, especially these transporting people through the air, cannot rely upon government inspection for fulfillment of their duty."

Scope of the Exception

The exception provides that nothing in the Act will affect the liability of covered persons:

"Except to the extent that the action creating the liability was specifically compelled by any such standard, rule or regulation."

The scope of the exception is difficult to evaluate prospectively. In air traffic control situations, specific acts are constantly being directed by controllers. No similar situations, in which DOT employees would direct specific acts for railroad safety purposes, are expected to arise. If the performance of such acts (without negligence) would subject the persons performing them to some liability, the fact that they were specifically required by DOT rules or regulations would exempt the persons doing them from liability. We believe this exemption to be appropriate. Persons should not be subject to liability for the performance of acts specifically directed by the Government.

Liability of the Government Under § 5(b) of H.R. 16980 and the Extent to Which Such Liability May Preempt Liability on the Part of Carriers.

The Government enjoys sovereign immunity from suit except to the extent that Congress has authorized suit under the Federal Tort Claims Act (set out in various parts of Title 28 of the United States Code). The Act permits suits for negligence of employees in the ordinary operations of Government business; for example, driving automobiles. It does not, however, permit suits against the Government based on actions involving the so-called "discretionary function or duty." Subsection (a) of section 2680 of Title 28 expressly provides that the benefits of the Tort Claims Act shall not apply to:

"Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Government, whether or not the discretion involved be abused."

The Department addressed itself to the scope of the discretionary exemption in a letter, dated March 18, 1968, to Representative MacDonald, Chairman of the Subcommittee on Communications and Power, in connection with the Government's possible liability under S. 1166, the proposed "Natural Gas Pipeline Safety Act of 1968." Representative MacDonald had requested that we review a Memorandum of Law which had been submitted to him and which discussed the possibility of Government liability in connection with the enforcement of the proposed law.

In our letter of March 18, 1968, we stated that:

"Under the statutory exceptions to Federal Government liability set forth in 28 U.S.C. 2680, it is the opinion of this Department that determinations and inspections under the authority of S. 1166 will not give rise to a cause of action which would lead to a holding of liability against the United States."

We further stated:

"We specifically rely on the "discretionary function or duty" exception stated in 28 U.S.C. 2680 (a) and discussed in the Memorandum of Law in some detail (pages 10-21). While it must be conceded that no one can predict with certainty what the courts will hold with respect to this issue, our analysis leads us to the conclusion that the above stated exception as interpreted in a long line of Federal cases, including the leading case of Dalehite v. United States, is applicable to activities to be conducted by this Department under the proposed law.

Proceeding further on this issue, the Court in Weinstein v. United States, 244 F.2d 68 (1957) referred to the legislative history of the Federal Tort Claims Act and pointed out that the discretionary exception was 'designed to preclude . . application of the act to a claim against a regulatory agency. . . . Since the language used . . . exempts from the act claims against federal agencies growing out of their regulatory activities it is not necessary expressly to except such agencies. . . by name. . .' (Memorandum for the Use of the Committee on the Judiciary, H. of Rep., 77th Cong., 2d Sess., Explanatory of Committee Print of H.R. 5373 (Jan. 1942), p. 8). Citing the Dalehite case among others the Circuit Court stated: 'It is well settled that 'discretionary function' embraces regulation.' Again in a later case, the U.S. Court of Appeals for the Second Circuit in Blaber v. United States, 332 F. 2d 629 (1964), in upholding the discretionary function exception, relied upon the Dalehite case pointing out that the Supreme Court considered the scope of 28 U.S.C. 1680 (a) and had characterized the section as follows: 'Where there is room for policy, judgment, and decision there is descretion.' As stated above we believe that any actions authorized by S. 1166 will fall within the discretionary function exception."

And:

"We have additionally examined this question in the light of your reference to cases in the field of aviation related to the actions of Federal air traffic controllers. Recent cases have tended to hold the Government liable for the negligence of its air traffic controllers under certain circumstances. In Ingham v. Eastern Air Line Inc., 373 F. 2d 241 (1967), the court rejected the 'discretionary function' exception as an argument against imposing tort liability and stated:

Where the government decided to establish and operate an air traffic control system, that decision was the exercise of 'discretion' at the planning level, and could not serve as the basis of liability. See Dalehite v. United States. But once having made that decision, the government's employees were required thereafter to act in a reasonable manner. A failure to do so rendered the government liable for the omission or commission. Indian Towing Co. v. United States, 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48 (1955).

In this case the air traffic controller violated a section of the FAA's Air Traffic Control Procedures Manual which required 'weather conditions and subsequent changes as necessary' to be reported to an approaching plane. The failure in this instance was found to be the cause of a crash.

This same court also rejected the 'negligent misrepresentation' argument and said that:

Where the gravamen of the complaint is the negligent performance of operational tasks, rather than misrepresentation, the government may not rely on § 2690 (h) to absolve itself of liabiilty.

However, whatever the liability for negligence of air traffic controllers may be, we do not believe that the rationale underlying it would be applicable to the activities of this Department under S. 1166. Our inspectors would not act in the role of issuing day-to-day orders regarding the direction or flow of traffic through pipelines nor would they be responsible for such operations. Accordingly, we consider that they would not be performing 'operational tasks' so as to impose liability on the Government as in some of the recent air traffic controller decisions. We cannot, of course, state positively that under a given set of circumstances a court would not hold that proximate cause of injury or damage was in fact due to the negligence of a DOT employee. To this extent we agree with the writer of the Memorandum of Law to the effect that in an appropriate case the Government may be liable, but as a general rule, it is considered that the activities of inspectors will probably be such that the discretionary function exception under the Federal Tort Claims Act will effectively prevent any claim of liability against the United States."

95-388-68-3

It is our opinion that the Government's liability under H.R. 16980, if enacted, would be no greater than in the case of S. 1166, the proposed gas pipeline safety bill. It may be less. It should be noted that the exemption of § 5(b) is provided with respect to acts specifically required by "standard rule or regulation." It has been held in this connection, that the promulgation of regulations, even if unreasonable or unconstitutional, is clearly a discretionary function within the protection of the exemption. Dupree v. United States, 247 F. 2d 819, 825 (C.A. 3, 1957). Consequently, we believe that as now drafted § 5(b), in all probability, would not subject the Government to liability. As the Secretary's letter of March 18 noted, however, no one can predict with certainty what the courts will do in these cases. With respect to the question of preemption of liability of the carriers, we do not believe that there would be any such preemption. In our opinion, the extent to which the Government has allowed itself to be sued under the Federal Tort Claims Act has no bearing upon the liabilities of private parties for their own conduct.

The CHAIRMAN. Turning over to 10(b) of the act, I want to get a little clarification here if I could. Concerning delegation of persons with certain powers, I am just wondering if he would delegate to a private person such function as the conducting of medical examinations and so forth.

Mr. LANG. Yes, sir; that is the intention of this kind of a provision. It would also permit us to delegate to qualified employees of the carriers themselves the responsibility for conducting certain inspections. The CHAIRMAN. Well, under 10(c), why must the Secretary advise, assist, and cooperate with others in developing standards? I think this is a little different than any law we ever had brought before this committee. Consult with somebody else, yes. That he must advise, assist, and cooperate with others, that is strange language to me.

Mr. LANG. I cannot pretend to be an expert on such language, Mr. Chairman, but I know one of the things that we had in mind here was the pending legislation which I referred to in my statement, the Occupational Health and Safety Act which would confer rather broad authority on the Secretary of Labor to prescribe rules and regulations in the interest of employee safety.

There clearly would be some areas of interface or potential overlap between that kind of authority if it were to be conferred on the Secretary of Labor, and the authority that would be conferred under this legislation on the Secretary of Transportation. I think it is particularly important that these two people be in step with each other in promulgating or enforcing the regulations, and this section would make that clear.

The CHAIRMAN. It looks to me like you are conferring to the other agencies the powers you ought to have yourself for the things that you want to do.

Mr. LANG. Well, the intention here, Mr. Chairman, is only to authorize the Secretary to consult.

The CHAIRMAN. I see "authorize" here and that is true.

Mr. LANG. It is not intended to allow him to delegate this authority to some other agency as I understand it.

The CHAIRMAN. Advise and assist, what else could you interpret it as if not to consult with them to get some information that they want themselves? It says, "The Secretary is authorized to advise, assist, and cooperate with other Federal departments and agencies and State and other interested public and private agencies and persons." Who else could you get into this thing if you were going to advise and assist with instead of having to consult with them for advice or some

thing? It looks to me like you are going to delegate everything to them where you want some advice yourself.

Mr. LANG. Mr. Chairman, I do not think we have any strong feeling on the precise language of the bill as long as there are other agencies that will be in potentially safety areas that will abut this one and some kind of coordination is desired.

The CHAIRMAN. I do not know of any other safety bill that is going to come before the committee where you consult with them to do the job, and it seems like you are trying to give it to somebody else in this thing. I just don't understand why it was written.

Mr. LANG. I do not think that is the intention.
The CHAIRMAN. Well, I would not think so.

In section 10(d), what is the meaning of "to amend such special rules"?

Mr. LANG. To issue and amend such orders.

The CHAIRMAN. What is the meaning of "special"?

Mr. LANG. Well, the one type of action which we now take that might logically fall under this category of special rules are the permits that are issued under the Hazardous Materials Act for the transportation of commodities that do not fall under standard regulations. This simply would provide for the unusual situations where there was some potential safety problem but the existing regulations did not cover them.

The CHAIRMAN. You are going to make them special rules here, is that right?

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Mr. BROTZMAN. Have you ever read this bill before?

Mr. LANG. Yes; I have.

Mr. BROTZMAN. Has your counsel?

Mr. LANG. Yes.

Mr. BROTZMAN. I sat here 20 minutes and I know less about this bill than when you started. This is exactly the way it was on the pipeline safety bill only in that case the Secretary made an ineffective and ineffectual presentation. You are asking us to rubberstamp something. You come up here and you do not answer one single question as to what is in this bill. It is very, very ineffective and it does not help us to do our job.

Thank you, Mr. Chairman.

The CHAIRMAN. Section 10 (b) and (c), I was wondering if this is a change in the Board's powers and duties on section 5 of 85-870. Mr. LANG. Of the Board's, that is to say the National Transportation Safety Board?

The CHAIRMAN. Yes.

Mr. LANG. No; this would have the effect of preserving their powers and duties as established under the DOT Act.

The CHAIRMAN. I am referring actually to 11(b). I am sorry.

Mr. LANG. Those provisions would have the effect of preserving that authority.

The CHAIRMAN. What is that now?

Mr. LANG. Those provisions would have the effect of preserving the authority of the National Transportation Safety Board as it was con

ferred on them under the DOT Act. The way the DOT Act is written their power derives from the authority that the Secretary has under the existing rail safety statutes. If under this legislation we were to repeal those existing rail safety statutes, we would have to be sure by this language to preserve those powers and duties that were conferred indirectly through the DOT Act on the National Transportation Safety Board, and this language would have the effect of doing that. The CHAIRMAN. You think this is no change in the Board's powers? Mr. LANG. It is not intended to be in any way, shape, or form. The CHAIRMAN. Maybe you can clarify that a little bit later. I had some other questions comparing this with the Natural Gas Safety Act. I will forgo that for the time being and come back for questions a little later.

Mr. Friedel.

Mr. FRIEDEL. Your statement on page 1, the last paragraph, you say, "In the last 7 years the monthly average of train accidents has increased steadily from 341 in 1961 to 608 in 1967." These are monthly averages?

Mr.LANG. That is correct.

Mr. FRIEDEL. Do you have a breakdown between passenger train and freight train accidents?

Mr. LANG. Yes. I do not have that breakdown with me. The number of passenger train accidents is quite small, Mr. Friedel, but we could furnish that for the record.

(The information requested follows:)

ANALYSIS OF TRAIN ACCIDENTS1

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1 Prepared by the Federal Railroad Administration, Department of Transportation. Yard switching and work train service.

Mr. FRIEDEL. On page 5 in the next to the last paragraph:

Approximately 95 percent of the accidents that occur on the Nation's railroads are caused by factors not subject to any control by the Federal agency responsible for promoting railroad safety.

Will you clarify that statement.

Mr. LANG. These are accidents, Mr. Friedel, that are caused by failures from track or failures in equipment or components of equipment that our present statutes do not reach. As an example, our present statutes do not give us the authority to write any regulations or conduct any kind of inspection in connection with the running gear on freight cars. A rather significant share of the total derailments are caused by failures to correct the running gears, broken wheels, faulty axles, broken frames and so forth. Our present authority does not permit us to write any regulation in those areas.

Mr. FRIEDEL. Just one more question. On page 18, the first paragraph, you say:

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