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(11) "State agency" means the State department, commission, agency, officer or official which is authorized by State law to engage in the regulation of the safety of railroad operations. When State law divides performance of such regulatory functions among two or more State units of government, each unit shall be deemed to be a part of the "State agency."

Section 4 is hereby stricken and the following provision is inserted in lieu thereof:

FEDERAL-STATE COOPERATION

Sec. 4. (a) It is the policy of the Congress to promote safety in rail commerce, and to assist in efforts by State agencies to accomplish this objective. The following provisions are intended to further this policy.

(b) Each State agency is authorized to establish and conduct a program for safety in rail commerce which is designed to reduce rail accidents, and deaths, injuries and property damage resulting therefrom. Such a program shall be compatible with the minimum standards prescribed by the Secretary pursuant to Section 3 of this Act. To the extent permitted by the jurisdiction of the State agency, the program shall include, but not be limited to, provisions for: (1) safety standards applicable to trackage, roadbed and other stationary structures, rolling stock and other rail facilities and equipment; (2) vertical and horizontal clearance requirements; (3) grade crossing protection, including safety devices, grade separation, location of new crossings, closing of existing crossings, and rules governing train blocking of crossings; (4) speed limits and audible signals of trains; (5) weed and vegetation control; (6) railroad operating rules and practices; (7) systematic recording of accidents, including deaths and serious injuries resulting therefrom; (8) accident investigations to determine the probable causes of accidents; (9) inspections and tests to determine compliance with Federal and State safety standards; (10) reporting of alleged violations of Federal safety standards to the Secretary or his designees; and (11) enforcement of State safety standards.

(c) No State law or regulation affecting safety in rail commerce, now or hereafter adopted, shall be nullified by this Act unless it is in conflict with a standard prescribed by the Secretary under this Act.

(d) In a matter governed by a Federal standard, a State agency, upon giving the Secretary at least ninety days advance notice, may adopt a more stringent standard if such State standard is reasonable, does not constitute an undue burden on interstate commerce, and is required by the public interest. The Secretary, upon complaint by an aggrieved party or upon his own motion, and after notice and opportunity for a hearing, may suspend any such proposed State standard or nullify the standard if it has become effective, if he finds the standard to be unreasonable, an undue burden on interstate commerce, or not required by the public interest.

(e) (1) Upon an application submitted not later than September 30 in any calendar year, the Secretary shall pay out of available funds up to 50 per centum of the cost of the personnel, equipment and activities of a State agency reasonably required to carry out a State program for safety in rail commerce under subsection (b) of this section during the following calendar year if such program is found by the Secretary to be in the public interest. No such payment may be made unless the State agency making application under this subsection gives assurances satisfactory to the Secretary that the State agency will provide the remaining cost of such a safety program and that the aggregate expenditures of funds of the State, exclusive of Federal grants, for the safety program will be maintained at a level which does not fall below the average level of such expenditures for the last two fiscal years preceding the date of enactment of this section. Federal funds shall be allocated on an equitable basis among the State agencies whose programs are approved by the Secretary under this subsection. (2) Upon application by the national organization of the State commissions, as referred to in section 205 (f) of the Interstate Commerce Act, the Secretary shall pay out of available funds the sum of $20,000, plus such additional sums as he deems justified, to such national organization to pay the reasonable cost of coordinating the activities of the State agencies among themselves and with the Secretary under this Act, and assisting them in the establishment and conduct of safety programs, and rendering technical assistance to such agencies in other regulatory matters.

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(3) Payments under this section may be made in installments, in advance or by way of reimbursement, with necessary adjustments on account of overpayments and underpayments.

(4) The Secretary may, by regulation, provide for the form and manner of filing of applications under this section, and for such reporting and fiscal procedures as he deems necessary to assure the proper accounting for Federal funds. (f) The Secretary is authorized to cooperate with State agencies in strengthening their rail safety programs by providing technical advice, assistance and information. The Secretary may develop training programs for State personnel engaged in carrying out the provisions of this Act.

(g) A State agency, upon timely application, shall have an unconditional right to intervene as a party in proceedings before the Department arising under this Act.

NATIONAL RAILROAD SAFETY ADVISORY COMMITTEE

Sec. 4.1. (a) There is established in the Department of Transportation a National Railroad Safety Advisory Committee, composed of the Federal Railroad Administrator, who shall be chairman, and nine members appointed by the Secretary as follows:

(1) Three members shall be selected from State agencies after consultation with representatives of the national organization of the State commissions, as referred to in section 205 (f) of the Interstate Commerce Act;

(2) Three members shall be selected from the management of rail carriers after consultation with management representatives; and

(3) Three members shall be selected from labor unions involved in rail commerce after consultation with union representatives.

(b) The appointed members of the Committee may be compensated at a rate to be fixed by the Secretary not to exceed $100 per diem (including travel time) when engaged in the actual duties of the Committee. All such members, while away from their homes or regular places of business, may be allowed travel expenses, including per diem in lieu of subsistence as authorized by section 5703 of title 5, United States Code, for persons in the Government service employed intermittently. Payments under this section shall not render such members of the Committee employees or officials of the United States for any purpose.

(c) The National Railroad Safety Advisory Committee shall advise, consult with, and make recommendations to, the Secretary on matters relating to the activities and functions of the Department in the field of railroad safety. The Committee is authorized: (1) to review research projects or programs submitted to or recommended by it in the field of railroad safety and recommend to the Secretary, for prosecution under this Act, any such projects which it believes show promise of making valuable contributions to human knowledge with respect to the cause and prevention of railroad accidents; and (2) to review, prior to issuance, standards proposed to be issued by the Secretary under the provisions of this Act and to make recommendations thereon. Such recommendations shall be published in connection with the Secretary's determination.

(d) The National Railroad Safety Advisory Committee shall meet from time to time upon call of the Chairman or five of its members.

(e) The Secretary shall provide to the National Railroad Safety Advisory Committee from among the personnel and facilities of the Department such staff and facilities as are necessary to carry out the functions of such Committee.

The CHAIRMAN. The other two pieces that you have brought there will be looked over and, if appropriate, they will be in the record; if not, they will be in the file if they are repetitious or if they don't involve pertinent material.

(The material referred to has been placed in committee files.)

The CHAIRMAN. I want to especially thank you, Mr. Bloom, for giving us this report. I want to compliment you on the work that you and the commission are doing in Pennsylvania.

I think if every State were doing this there would be no need for this legislation-if every State was doing their job as you appear to be by the evidence that you have given today.

Your whole presentation has been very interesting and certainly informative for the committee. There are many suggestions in there that I am sure we want to look at. So, I certainly want to thank you. Mr. Springer.

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Mr. SPRINGER. Mr. Bloom, are you a member, or the chairman of your State commission?

Mr. BLOOM. I am the chairman of the commission and I am not a lifelong regulator. I came to the commission in May, I believe, of 1965, and prior to that time was secretary to the Commonwealth.

Mr. SPRINGER. Is the president of the National Association of Regulatory Utility Commissioners now a chairman of the commission in Illinois?

Mr. BLOOM. Yes, he is. He is in Philadelphia this morning making a speech. He is up in Pennsylvania.

Mr. SPRINGER. He is a very capable man. He and I were in the same law school class. I have a high regard for him. We are not of the same party. He is a man possessing the finest qualities.

Mr. BLOOM. We get along fine. I happen to be of the other political party than Jim and we have a very fine relationship. In fact, all the commissioners-we don't operate on the basis of our party affiliation. I happen to have been a Republican State chairman in Pennsylvania for a good many years and we never think of that in connection with our regulatory functions.

Mr. SPRINGER. I believe that is generally true in the country, at least those requests have been made to this committee by your association through the years in that connection.

According to the way I read your appendix, NARUC has three amendments. Is that correct?

Mr. BLOOM. Yes, sir.

Mr. SPRINGER. Now, I notice that you have quoted the President on page 12 of announcing an objective of achieving a total working partnership between the Federal and State governments. Well, I take the President at his word. However, when these administrators come down here-bureaucrats, whatever you want to call them--I find that it does not turn out to be what I would consider a partnership. It turns out to be a partnership if or but. In other words, if they don't like what you do, the regulation they put into effect shall prevail. Do you understand what I mean?

Mr. BLOOM. Yes, sir: I understand what you mean.

Mr. SPRINGER. Now, this is the part that disturbs me to a great extent. If you are going to have a partnership, I want to be sure that that is exactly what we do have.

Now, in your amendments, at page 2 of the amendments, (c) at the bottom of the page:

No statutory regulation affecting safety in rail commerce, now or hereafter adopted, shall be nullified by this Act unless it is in conflict with a standard prescribed by the Secretary under this Act.

Is that a partnership?

Mr. BLOOM. NO; it is not a partnership, but we were thinking about what we could get passed and what we could get written into the bill. Mr. SPRINGER. I am glad you said that because I thought that is what you meant.

Mr. BLOOM. We felt as a practical proposition that we were faced with that situation, and that if we were going to get any jurisdiction left in the State commissions someone had to call the final shots. It is not what we would like.

Mr. SPRINGER. We have had this up before, Mr. Bloom. In some instances, we have said in essence that where a commission has as good regulations, the Federal Government shall not preempt the State. How do like that approach?

Mr. BLOOM. I like it and I like the concept of the Hinshaw amendment in the Natural Gas Act in which a State certifies that it has taken jurisdiction, and is enforcing that jurisdiction, that the Federal Government cannot take jurisdiction.

But we have found any attempt to write the Hinshaw concept into law is just an uphill job and we have not been able to get anywhere, so we are trying to do the next best thing.

Mr. SPRINGER. All right.

I am glad you put all this in the record because this is what I want to know.

What you wanted is what you thought you could get; that is why we are having this hearing.

Mr. BLOOM. I want to be perfectly frank with you and I think that is what you want me to be.

Mr. SPRINGER. That is exactly what I wanted to know.

Do you believe that the amendment that you have written on the first page of your appendix beginning "Federal-State cooperation," section 4, all the way through over to and including the middle of page 5, will give you truly what the President has mentioned here as a total working partnership between the Federal and State Governments?

Your counsel can answer if he is more expert in this field.

Mr. BLOOM. I can answer with my own opinion and then I would like to have counsel answer it.

My own opinion is that does not make us a full-fledged partnership or a full-fledged partner as I would like to see it.

On the other hand, I can envision the difficulties in trying to work it out so that no one would have the final say in the last analysis. Somebody has got to have the final say.

Mr. SPRINGER. All right.

Now, I want to come to the next part.

Mr. BLOOM. May I have counsel comment at that point?

Mr. SPRINGER. Yes.

Would you identify yourself, please?

Mr. RODGERS. Yes, sir.

I am Paul Rodgers, general counsel for the NARUC.

Mr. SPRINGER. No relation to Paul Rogers on this committee?

Mr. RODGERS. No, sir: unfortunately not.

The main thing that disturbs us about the administration bill is that it calls for virtually a total preemption of the regulation of rail safety by the Federal Government.

Now, in section 4, they identify about four areas in which they say we are still going to have Federal regulation in these four areas but we will permit State regulation in those four very limited areas to the extent it does not conflict with our regulations.

Now, we think that throws out the window all the expertise and all of the staff that the State commissions have built up. We think if you are going to approve a broad bill you should certainly try to salvage everything that the State commissions have done and will be able to do in the future.

I agree with your observation, Congressman Springer, that our proposed language would not be a true partnership and it would give the Federal Government the ultimate authority to lay down such standards as it deems appropriate.

Mr. SPRINGER. Mr. Chairman, on page 5, you have suggested a National Railroad Safety Advisory Committee. Now, in this are you attempting to establish bilaterally what you more nearly believe to be a true State-Federal relation?

Mr. BLOOM. We are trying to establish that in promulgating the various rules on safety that the industry will be represented and be heard and they will have the benefit of that. We would like to have labor, the brotherhoods, represented on that committee because they have a great knowledge of matters that ought to be considered.

We think that the regulatory bodies throughout the 50 States ought to have a right to make recommendations as to the people who would be there representing the regulatory bodies to make suggestions. It falls somewhat short, of course, because the Secretary can listen to all three groups and then disregard everything that the three groups would suggest to him, but it is the best that could be done so that they would have an opportunity to be heard before any regulation was adopted.

Mr. SPRINGER. Right now you have on page 7, No. 2, again, about line 6. One of your powers of this Board would be "to review, prior to issuance." We are going to run into the Secretary on that because I have had him on the stand about this "prior" to doing anything and he does not want to do that; he wants to issue the regulation and let you comment on it.

There is a lot of difference between consulting with you prior to issuance, and issuing and asking for the comments.

Mr. BLOOM. It is like the old judge said, "Let's give them a fair trial before we hang them."

Mr. SPRINGER. Right.

Standards proposed to be issued prior to issuance, standards proposed to be issued by the Secretary under the provisions of this act. You would also have the power in this Board to make recommendations as to whether or not this does meet the specific problem; is that correct?

Mr. BLOOM. Yes, sir.

Mr. SPRINGER. That is what you are seeking to do by this Board; right?

Mr. BLOOM. That is correct; yes.

Mr. SPRINGER. Then the recommendation shall be published with the Secretary's determination or prior to his determination? I am not sure when you say "in connection with the Secretary's determination." Mr. BLOOM. That would be published with his determination. Now, this language here parallels the Advisory Board setup for the Federal Highway Safety Act which was passed in 1966.

Mr. SPRINGER. I am sorry; I am not sure I understand.

Mr. BLOOM. This Board that we propose here is very similar to the Board established by Congress in the Federal Highway Safety Act of 1966.

Mr. SPRINGER. I had forgotten that. That was before the Committee on Public Works and that is the reason we would not know about it.

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