With the addition of radioactive materials in recent years, and the even newer and more hazardous problems in transporting rocket and missile fuels, this element in the safety picture is becoming more critical every day.

I have been discussing major areas where Federal authority to influence railway safety is substantially deficient. I turn now to the matter of state controls. State laws vary widely in the extent to which they regulate railway safety questions. In some areas they cover elements also covered in Federal laws. Some states, for example, have safety appliance laws and rules. States also provide laws covering signals and interlockings, hours of service of employees and locomotive inspection. Such authority is ordinarily limited in its effect by a rule that it may not unnecessarily burden interstate commerce. In any event, where there is conflict, Federal rules have been dominant and in some instances the courts have held Federal law has pre-empted the field.

Federal and state authority function jointly in an attempt to regulate railhighway grade-crossings. Highway speeds, licensing of motor vehicles and drivers are State controlled. Prescription of grade-crossing protective devices is wholly within the province of the states, and state and local police perform the primary accident investigation of rail-highway grade crossings. Some states and localities exert controls over train speeds.

Some states regulate the size of train crews, although many of these important laws have been repealed or held invalid by the courts in recent years.

In all areas, state authority is incomplete and lacks uniformity. Although a few states have adopted regulations which fill in some of the more important gaps in Federal regulation, most states have not done so. Thus, many elements of extreme importance to safety improvement are subject to no controls whatever.

The Federal government has broad, all-embracing authority with respect to both air safety and regulated common carrier motor carries. It is indisputable, as experience over the years has demonstrated, that a comprehensive railroad safety statute is long overdue.

Having expressed our unequivocal support for the basic purposes to be served by this legislation, I would like now to direct your attention to a number of specific changes in the contemplated statutory scheme which RLEA considers vital to the effectuation of these purposes and their effective coupling with other existing and related laws. Since the present proposed provisions of this legislation were developed thoroughly by the Department of Transportation in its testimony, I will discuss only the major concerns that RLEA has.

Attached to my statement is a set of our complete suggested amendments to this bill. I will now direct my attention to those which railroad labor considers of the highest priority.

At the outset we note the bill makes no provision whatsoever to assure that the Secretary of Transportation's authority shall not extend to activities involving or growing out of a legitimate labor dispute. Yet, Section 7(a) of the bill provides for injunctive relief to restrain_violations of this Act (including the restraint of operations in rail commerce). I need not remind you that the American labor movement is bottomed on the right to lawfully strike to protest grievances. Obviously we will not willingly abide its destruction. (See our amendment #25 for suggested language).

A second matter of vital concern is the possible inroads this legislation would unwittingly make upon the functions of, or negotiations under, the Railway Labor Act. The final bill should not be construed to limit, supersede or modify the provisions of the Railway Labor Act or any agreements made pursuant thereto (see our suggested amendment #9). This is another area where the railway labor movement fought very hard to achieve deserved rights, and we want to make sure that these rights are protected.

The next objectionable feature of this bill is that all railroad workers could be subjected to civil and criminal sanctions for obeying the orders of their superiors. The employees or their representatives, as distinguished from executive, managerial, or supervisory personnel, should be excluded from the prohibitions and sanctions of the proposed legislation (See amendment #1 and #4). It cannot be argued against this proposed amendment that unfairness or inequity would result, for if the amendment were not passed, the employee would be subjected to statutory sanctions of a violation of the Act on the one hand and discpilinary action by the carriers on the other hand for failure to obey the orders of his superiors to violate the Act. The employees should not be placed in such a dilemma.

Section 4 provides that all state laws, with few exceptions, will unwittingly be supplanted not later than two years from the date of enactment of this bill. As pointed out previously while there are only a few states with comprehensive legislation relating to railroad safety, nevertheless the safety standards that now exist

in those states should be retained until there are federal standards at least equal to the state laws to be superseded. (See amendment #13). However, under the present bill if the Department of Transportation has not promulgated its regulations after two years, the state statutes would nevertheless be superseded without any effective standards to substitute in their place.

This legislation would establish greater monetary penalties for violations of the statute. I believe the recent accident and casualty record of the railroad industry speaks by itself for the need to increase these penalties. The Interstate Commerce Commission, which in the past has tried to enforce existing laws, has been very specific on the extent to which the present laws are being violated.

In its 79th Annual Report, the Commission stated to Congress: "There has been a sharp rise in violations of the various railroad safety laws in the past 5 years. Higher utilization is being obtained from equipment, leaving less time available for maintenance. Carriers have decreased the number of maintenance and repair facilities and employees engaged in such work. While the primary responsibility for the observance of the safety laws, of necessity, rests on the railroads, our inspection program reinforces that responsibility by bringing deficiencies to the attention of the carriers. We have intensified our efforts during the year to obtain better compliance.

Our enforcement activities have been materially increased as a result of the high degree of noncompliance. In this fiscal year, 684 cases involving 2,272 counts were transmitted to the U.S. attorneys for prosecution in the courts.

"Under authority of section 25 of the Interstate Commerce Act, 4,600 signal systems were inspected, and a large number of unsatisfactory maintenance conditions were called to the attention of the carriers and were corrected.

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"Under the provisions of the Locomotive Inspection Act, 111 accidents were reported during the fiscal year (App. E). Locomotive equipment failure contributed to 87 of these accidents, which resulted in 93 injuries but no fatalities. Most were caused by unsafe condition of cab floors, steps, and passageways, by defective cab seats, and by crankcase explosions. There was a substantial increase in the number of locomotives found in unsafe condition and ordered out of service." (Pgs. 73 and 74.)

In its 80th Annual Report, the Commission found it necessary again to discuss the many violations of its regulations:

"The number of violations of the railroad safety laws increased 29.8 percent during the past year, continuing the trend of increased violations which began 6 years ago. The high level of the Nation's economy has generated a great demand for equipment. As a result, utilization of equipment has increased. At the same time, maintenance and repair facilities and the number of mechanical personnel employed by carriers have continued to diminish.

"The rise in violations has resulted in an increase in enforcement actions. In 1965, 930 cases involving 3,014 counts were prepared for transmission to U.S. attorneys. As a result, 786 cases involving 2,720 counts were prosecuted by U.S. attorneys during the year. In 771 cases, the defendants were found guilty and assessed fines totaling $654,500.” (P. 69)

From these reports it is clear that present penalties under the safety laws are too low. They no longer serve to deter railways from direct violations of safety standards when managements find it profitable to do so. Even if the provisions of the pending legislation were enacted, we believe the minimum penalty of $250 would not be a sufficient economic incentive for the railroads to comply with the safety requirements. A minimum penalty of $500 would be a more realistic figure. (See Amendment #19.) Perhaps even more significant to an effective enforcement plan would be the inclusion of a "cease and desist' authority discussed hereinafter. (Proposed amendment #24.)

SUMMARY ANALYSIS OF OTHER PROPOSED AMENDMENTS

Sec. 2. Definitions

Amendments #2-4: New definitions of "appliance", "rolling stock", "trackage", were added to make it explicitly clear what is intended to be covered. It is important that in general legislation, coverage provisions should be stated with sufficient precision. For example, "rolling stock", might not be interpreted to include track motor cars or maintenance of way equipment. The proposed new

definitions hopefully will avoid ambiguity and potentially restrictive application and interpretation.

New definitions of "employee" and "representative" were added for two purposes: First, to give these two classes certain rights of hearing, intervention and judicial review; and second, to assure their exclusion, for reasons earlier described, from the prohibitions and sanctions of the proposed legislation.

Sec. 3. Federal Safety Regulation

Amendment #5: Apart from the self-explanatory changes, the addition here assures that everything connected with inspection and testing, both personnel and equipment, shall be subjected to DOT standards and rules.

Amendment #6: The value of any interim regulations is questionable. Not only are interim regulations a novel concept but would unnecessarily complicate the procedural transition period. In addition, placing an aribtrary ninety-day time period within which new regulations must be prescribed may breed insufficient, or inadequate ineffective standards and regulations. Further support for the deletion of this subsection is the fact that the Administrative Procedure Act would not be applicable to the interim standards. (As to other problems created by this subsection see the discussion of Amendments #39-41.)

Sec. 6. Penalties

Amendments #17-22: Tidier legislative draftsmanship indicates that the civil penalties be separated from the criminal penalties into different sections. (See Federal Aviation Act, 49 U.S.C. § 1471-1472.) This has been accomplished in the proposed redraft by amending Section 6 and adding a new Section 7. The proposed changes to this section are as follows:

1. Rather than limiting the civil sanctions to a violation of Section 5, a change has been made to extend the civil penalties to all violations under this Act.

2. The minimum penalty provision of $250 has been increased to $500. (Note earlier discussion.)

3. Another change made is to avoid evidentiary ambiguities as to what constitutes a continuing violation.

4. A final change is the deletion of the sentence restricting civil action where there has been punishment for a criminal violation. There is no need for such a restriction. While in his discretion, the Secretary may elect not to proceed with both civil and criminal sanctions for the same violation, some violations may warrant imposition of both civil and criminal penalties. Our proposal gives the flexibility for appropriate action as circumstances require.

[Sec. 7.] (Criminal) Penalties

This new section has been inserted for the reasons stated in Section 6. The next to the last sentence in Section 6(a) of the proposed bill has been carried over into new Section 7(a) with the following changes:

1. The words "knowingly and" have been eliminated for simplicity of prosecution (although it is acknowledged that some criminal statutes use the phrase "knowingly and willfully") because in our view proof of willfullness should be sufficient.

2. This subsection has been beefed up by making it clearly applicable not only to the persons who actually commit the proscribed acts or omit to do acts required, but also to those who advise, counsel, or cause them.

Sec. 7. Injunctive Relief

Amendment # 24: The injunctive provisions of this bill basically follow established patterns. (See National Traffic and Motor Vehicle Safety Act of 1966, § 110; Natural Gas Pipeline Safety Act of 1967, S. 1166, Sec. 10.) Notably missing from the proposed bill, however, is any supplementary and commonly employed "cease and desist' powers. The Secretary is given such authority in all proposed amendments so as to be able to prevent the carrier from using a rail facility which is not in condition for safe operation, without the necessity of obtaining a court decree. (See, e.g., 49 U.S.C. § 1425(b), Re: Aviation.)

Sec. 10. General Powers

Amendment # 29: A new subsection (c) has been added to assure greater consideration of practical railroad experience in the appointment of persons to administer the proposed legislation.

Sec. 12. Use of State Services

Amendments #35-37: These changes assure that the state agency with which agreements are entered into and to which enforcement may be delegated is one

regularly concerned with parallel state programs. (See, e.g., Wholesome Meat Act, 15, 21 U.S.C. § 301(a).)

Sec. 13. Statutes Repealed. (Refer also to the discussion of amendment #6.)

Amendments # 39-41: As a practical matter, the repealer device of the present bill creates serious questions as to what law, if any, would apply with respect to prohibitions and sanctions for violations of existing standards, rules and regulations taken over by DOT. To assure proper coverage of violations of the old statutes and regulations prior to the adoption of the new regulations, and to offer the same assurance as to violations thereafter before the adoption of new supplanting rules and regulations, a repealer approach somewhat like that in the National Traffic and Motor Vehicle Safety Act of 1966 (§ 117) is suggested and this amendment has been so articulated.

New sections which have been added: Amendment #42.

[Sec. 16.] Hearings

The proposed bill contains no express hearing requirement and would, therefore, require hearings only to the extent provided under the Administrative Procedure Act. Thus hearings would not be required nor could they be demanded with respect to the adoption of rules and regulations or with respect to proposed compromises of penalties, etc. The proposed amendment requires a reasonable notice and an opportunity for a hearing for any basic actions proposed by DOT. This is bottomed on the theory that the purposes of the legislation (i.e., to insure the safety of the public and employees) can best be served by granting the right to a hearing, a right which presumably will be exercised only as circumstances require.

In order to speed up the hearing process where particular exigencies require, the Secretary is given authority under certain conditions to prescribe an informal hearing procedure.

To minimize cumulative testimony, subsection (c) permits the Secretary to limit the number of witnesses in either a formal or informal hearing.

Subsection (d) in emergency situations permits the Secretary to exercise his authority without the necessity of conducting a hearing. A good example of the applicability of this subsection is where a cease and desist order is imperative because of potentially imminent disaster where particularly dangerous practices were to continue pending the outcome of conventional hearings or adjudication. [Sec. 17.] Appeal

This section provides for an appeal of the presiding officers' decision to the Secretary upon specified conditions.

[Sec. 18.] Intervention

This amendment permits intervention by all interested parties. This right to intervene would be extended to a state, in view of the contemplated state responsibility in connection with enforcement and the state interest by virtue of the preemption of State law by Federal law.

[Sec. 19.] Judicial Review

Because of the proposed extension of the right of hearing, and to assure statutory completeness, this new section has been added providing for judicial review in accordance with the Administrative Procedure Act, except for the time periods provided.

[Sec. 21.] Publication of Compromises

This provides that any compromise reached under Sec. 6(b) must be published in the Federal Register, which notice shall include the amount agreed upon in compromise, the number of violations compromised, describing with particularity each particular violation.

PROPOSED AMENDMENTS TO H.R. 16980

Amendment #1

On page 2, line 8, strike the period, and add the following: "but shall not include any employee or his designated representative as defined in this section." Amendment #2

On page 2, lines 14 and 15, strike "or the transportation of mail by railroad".

Amendment #3

On page 2, line 21, strike "device, equipment.".

Amendment #4

On page 2, after line 25, add the following:

"(10) Appliance' means any instrument, equipment, apparatus, part, appurtenance, or accessory, of whatever description, which is used or is capable of being or intended to be used, in the direction, control or operation of trains, locomotives, and rolling stock.

"(1) 'Rolling stock' means all rail cars including but not limited to passenger train cars, cabooses, car floats, sea trains, track motor cars, maintenance of way equipment, freight train cars, railway service cars, and industrial and mine cars. "(12) Trackage' means tracks, bridges, roadbed, rights of way, and structures for support of way, track and rail traffic.

"(13) 'Employee' means any person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendition of his service) who performs any work as an employee or subordinate official of the carrier not having executive, managerial, or supervisory responsibilities.

"(14) 'Representative' means any person or persons, labor union, organization, or corporation designated either by a carrier or group of carriers or by employees of any carrier, to act for it or them."

Amendment #5

On page 3, line 12, after the word "therefor", insert the following: "and the personnel for such inspection and testing of rail facilities and equipment".

Amendment #6

On page 3, beginning with line 18, strike all through line 11 on page 4. Amendment #7

On page 4, line 12, redesignate "(c)" as "(b)”.

Amendment #8

On page 4, line 14, strike "public interest" and insert in lieu thereof the following: "interest of safety of the public and employees".

Amendment #9

On page 4, between lines 14 and 15, add the following:

"(c) Nothing in this Act shall in any way be construed or applied so as to abridge, modify, limit, supersede, or repeal any provisions of the Railway Labor Act (Title 45, United States Code, Sections 151-188, as amended) or any agreements made pursuant thereto."

Amendment #10

On page 4, line 16, strike "A" and insert in lieu thereof the following: "Notwithstanding any other provisions of this Act, a".

Amendment #11

On page 4, line 18, strike "and no others". Amendment #12

On page 4, beginning with line 25, strike the semicolon in line 25, insert a period in its place, and strike everything that follows through line 10 on page 5.

Amendment #13

On page 5, between lines 10 and 11, add the following:

"(b) Other State laws and regulations affecting safety in rail commerce shall not be superseded by this Act or rules or regulations promulgated hereunder until and unless (1) the Secretary promulgates such rules and regulations in the interest of safety of the public and employees, and (2) the Secretary finds, after notice and hearing, that the Federal standards so adopted impose a standard of safety equal to or higher than the standard imposed by the particular provisions of State law to be superseded.”

Amendment #14

On page 5, line 12, strike "No person shall", and insert in lieu thereof the following: "It shall be unlawful for any person, as defined in this Act, to".

Amendment #15

On page 5, line 20, after "rule," add "order".