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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 insuffi. cient, 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. 16950 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”.
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".
On page 5, beginning with line 22, strike the comma, insert a period in its place, and strike everything that follows through line 24. Amendment #17
On page 6, line 1, strike "Penalties" and insert in lieu thereof "Civil Penalties”. Amendment #18
On page 6, line 3, strike "Sec. 5” and insert in lieu thereof “this Act”. Amendment #19
On page 6, line 4, strike "$250” and insert in lieu thereof "$500". Amendment #20
On page 6, beginning with line 4, strike everything after the period through line 11. Amendment #21
On page 6, beginning with line 17, strike all through line 4 on page 7. Amendment #22
On page 7, between lines 4 and 5, add the following:
"Sec. 7. (a) Any person who willfully violates or fails or refuses to comply with any provision of this Act, or who advises, counsels or causes another to violate or fail or refuse to comply with any provision of this Act, shall be fined not more than $10,000 or imprisoned for not more than a year, or both.
"(b) Whoever assaults with force, resists, opposes, impedes, intimidates, or interferes with any person engaged in the performance of his official duties under this Act, or on account of the performance of such duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both. Whoever, in the commission of any such acts, uses a deadly or dangerous weapon shall be fined not more than $10,000 or imprisoned not more than ten years, or both. Whoever kills any other person engaged in the performance of his official duties under this Act, or on account of the performance of such duties, shall be punished as provided under sections 1111 and 1112 of Title 18, United States Code." Amendment #23
On page 7, line 6, strike "7" and insert in lieu thereof "8". Amendment #24
On page 8, between lines 13 and 14, add the following:
“(e) Whenever the Secretary shall find that any rail facility used or intended to be used by any rail carrier in rail commerce is not in condition for safe operation he shall so notify the carrier, in such form and manner as he (the Secretary) may prescribe; thereafter, such rail facility shall not be used in rail commerce, or in such manner as to endanger rail transportation, unless found by the Secretary to be in condition for safe operation. After notice that the rail facility is not in condition for safe operation, or, thereafter, prior to the time that the Secretary finds the rail facility to be in condition for safe operation, any such use without authority shall be prima facie evidence of a willful violation." Amendment #25
On page 8, between lines 13 and 14 add the following:
“LABOR DISPUTES “Sec. 9. No act or omission of any employee or representative of any employee (as these terms are defined in this Act), involving or growing out of any labor dispute of a character or kind such as specified in Section 104 of Title 29, United States Code, shall be subject to the sanctions and remedies provided in Sections 5, 6, 7, and 8 of this Act.” Amendment #26
On page 8, line 15, strike "g” and insert in lieu thereof "10". Amendment #27
On page 9, line 9, strike "9" and insert in lieu thereof "11".
On page 10, line 16, strike “10” and insert in lieu thereof "12". Amendment #29
On page 11, between lines 2 and 3, insert the following:
"(c) Notwithstanding any other provision of law related to the hiring or appointment of employees in the competitive or non-competitive service, the Secretary is authorized and directed in the selection and hiring of personnel and the determination of the salary and grade for such appointments to give the practical railroad experience of persons considered for appointment at least equal weight with other factors such as technical and professional training, quality and extent of responsibility previously assumed, and prior salary levels." Amendment #30
On page 11, line 3, strike "(c)” and insert in lieu thereof "(d)”. Amendment #31
On page 11, line 6, after the word “persons', add the following: "and designated representatives, as defined in this Act.” Amendment #32
On page 11, line 10, strike "” and insert in lieu thereof "e". Amendment #33
On page 11, line 17, strike "11" and insert in lieu thereof "13". Amendment #34
On page 12, line 23, strike “12”, and insert in lieu thereof “14”. Amendment #35
On page 12, line 24, strike "appropriate State Agencies” and insert in lieu thereof "an appropriate State agency, as hereinafter defined.” Amendment #36
On page 13, line 5, strike "an officer of such State" and insert in lieu thereof: "appropriate State agency”. Amendment #37
On page 13, between lines 7 and 8, insert the following: “The appropriate State agency with which the Secretary may enter into agreements and to which the Secretary may delegate authority under this subsection shall be a single agency of the State primarily responsible for the coordination of the State programs having objectives similar to those under this Act.” Amendment #38
On page 13, line 9, strike “13” and insert in lieu thereof “15”. Amendment #39
On page 13, beginning with line 14, strike everything after the word "are" through line 16, and insert in lieu thereof the following: "hereby repealed; Provided:
“(1) That all orders, determinations, rules, regulations, standards, requirements, permits, and privileges which
"(i) have been issued, made, granted, or allowed to become effective under any of the statutes repealed by this Act, and
(ii) are in effect at the date this Act takes effect, shall continue in effect as if they had been effectively issued under Section 3 of this Act according to their terms until specifically modified, terminated, superseded, set aside, or repealed by the Secretary in the interest of safety of the public and employees
exercising the authority vested in him by this Act." Amendment #40
On page 13, line 17, strike "(b) No", and insert in lieu thereof “(2) That no." Amendment #41
On page 13, between lines 19 and 20, add the following:
“(3) That, whoever, prior to the date of enactment of this Act violates any provision of law repealed by this section, shall be punished in accordance with the provisions of such laws as were in effect on the date such violation occurred. Whoever, on or after the date of enactments of this Act, violates any provision