major public hearings were held covering locomotives, freight cars, safety appliance, power brakes, track, and signal systems.

Rulemaking is now underway in the crucial areas of Freight Car Safety Standards and Track Safety Standards, as well as locomotive inspection.

Freight Car Safety Standards

The primary goal of FRA in the freight car area has been to eliminate regulations dealing with maintenance, which are in part derived from industry practices of several years ago. This is in order to concentrate on the safety performance of the railroads rather than the means used to achieve safety.

The revised freight car rules were published on December 31, 1979. Two petitions for reconsideration of the final rule have been filed. We will rule on these petitions within the next few weeks.

Locomotive Inspection Regulations

Locomotive inspection requirements are one of the oldest areas of Federal safety regulation, dating back to 1911. The locomotive revision effort is in the final stage of the regulatory process; a final rule will be issued in the very near future.

Track Safety Standards

The FRA has received extensive comments on the proposed revisions to the Track Safety Standards published for public comment in September of 1979. The areas of principal concern to the commenters were: the elimination of the knowledge requirement for liability; regulation of track on private industrial property; the use of rail weight to determine speed limitations; the elimination of the differential between maximum speeds for passenger and freight trains; and the increased costs said to be associated with the proposed revisions.

The FRA found much of the analysis submitted in support of the commenters' positions to be persuasive. As a result, we have decided to withdraw the Notice of Proposed Rulemaking and reevaluate our approach to revision of the Tack Safety Standards.

Safety glazing

On December 31, 1979, FRA published final rules requiring the progressive installation of improved glazing materials in the windows of locomotives, passenger cars and cabooses. The purpose of this rule is to protect the occupants of rail vehicles from death or serious injury resulting from objects thrown at railroad trains or objects suspended from bridges. The new glazing will also resist intrusion by small caliber bullets.

This rulemaking resulted from a joint petition filed by the Association of American Railroads and the Railway Labor Executives' Association, both of which were active participants in the proceedings. The technical basis for improved glazing standards was provided by the FRA research and development program.

Car size study

SAFETY RESEARCH

In late 1978, the Congress mandated a study of the size, weight and length of railroad freight cars under Section 10 of the Federal Railroad Safety Authorization Act of that year. The basic work on the study was completed within the twelvemonth period specified in the law, and the report of the study has now been transmitted to the Congress by the Secretary of Transportation.

In summary, we found that the growth in car size has not had a significant net impact on fatalities resulting from railroad operations. However, there is no question_that_heavier axle loadings are seriously aggravating deferred maintenance of track and roadbed, and contributing to the overall train accident picture. Proper responses to this problem appear to fall into two categories. First, track maintenance and internal rail inspections must keep pace with increased dynamic loadings. For most mainline operations, heavier cars will necessitate heavier rail sections, continuous welded rail, and better attention to roadbed. Of course, it would not be feasible or prudent for the Federal government to control maintenance and rehabilitation programs. The FRA can only insist that realistic standards for track and structures and realistic inspection procedures be observed.

A second clear area of need identified by the study is the performance of certain "bad actor" cars, particularly, covered hopper cars. In the near future, we hope to be able to announce a cooperative venture which will further isolate the most critical design problems and develop a program for addressing those cars most in need of attention.

FAST

One of the most important accomplishments in the R&D area as it impacts safety improvement, is the progress being made on the Facility for Accelerated Service Testing (FAST). In just three and a half years of testing, we have accumulated the equivalent of 22 years of in-service experience. Important findings regarding track structure and equipment maintenance, applicable to the entire industry, have been generated by this testing program. Over 30 major results from FAST have been implemented by railroads and suppliers to improve safety and efficiency.

Finally, I would like to discuss the specific amendments included in this proposed authorization bill.

PROPOSED 1980 SAFETY AMENDMENTS

The amendments included in our bill are intended to modernize, clarify and strengthen the enforcement powers of the FRA related to railroad safety. The principal amendments would:

Permit the United States to bring a single suit for multiple civil penalties in the jurisdiction where the railroad has its principal executive office, as an alternative to bringing suit in a number of separate judicial districts where the violations occurred.

Provide civil penalty sanctions for violations of those provisions of the Hours of Service Act relating to employee sleeping quarters.

Provide explicit compliance order and injunctive relief authority for enforcement of the older railroad safety laws.

Extend the period within which negotiations may be conducted on claims under the Hours of Service Act, without the necessity of bringing suit, where notification of the violations has been provided in a timely fashion.

Eliminate certain unnecessary reporting requirements under the Locomotive Inspection Act.

Clarify the power of the Secretary to issue emergency orders in the full range of circumstances that may present an immediate threat of death or serious injury. A technical amendment would also consolidate the safety-related investigative and administrative powers of the Secretary under the Interstate Commerce Act into the Federal Railroad Safety Act.

Attached to this testimony is a copy of our draft bill, together with a section-bysection analysis, detailing the basis and scope of each of the amendments which we are requesting. We have also attached our comments on safety bills pending before the Committee.

Mr. Chairman, this completes my prepared statement. My associates and I will be happy to respond to any questions which the Committee may have.

A BILL To amend the Federal Railroad Safety Act of 1970, and other rail safety Acts to extend authorization for appropriations and for other purposes

Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Federal Railroad Safety Authorization Act of 1980".

AUTHORIZATION FOR APPROPRIATIONS

SEC. 2. Section 212 of the Federal Railroad Safety Act of 1970, as amended (Safety Act), 45 U.S.C. 441, is amended to read as follows:

"SEC. 212. AUTHORIZATION FOR APPROPRIATIONS.

"There are authorized to be appropriated to carry out the provisions of this Act not to exceed $28 million for the fiscal year ending September 30, 1981, and such sums as may be necessary for increases in salary, pay, retirement, and other employee benefits authorized by law, and for other nondiscretionary costs; and such sums as may be necessary for the fiscal year ending September 30, 1982. Sums appropriated for automated track inspection and the State safety grant program are authorized to remain available until expended."

INJUNCTIVE RELIEF

SEC. 3. (a) Section 210(a) of the Safety Act, 45 U.S.C. 439(a), is amended by striking the period at the end thereof and adding the following in lieu thereof: "and to restrain violations or to enforce rules, regulations, orders or standards established under any statute transferred to the Secretary under subsections (e)(1), (e)(2), and

(e)(6)(A) of section 6 of the Department of Transportation Act, as amended (49 U.S.C. 1655(e) (1), (2) and (6)(A)).”

(b) Section 210 of the Safety Act, 45 U.S.C. 439, is further amended by adding a new subsection (c) as follows:

"(c) Actions under subsection (a) of this section may be brought in the United States district court where any action or transaction constituting the violation occurred or where the defendant has its principal executive office. Nothing in this section shall authorize any State agency participating in investigative and surveillance activities under the provisions of section 206 of this title to bring a cause of action under this section in any United States district court located outside of the boundaries of the State."

VENUE

SEC. 4. (a) Section 6 of the Act of March 3, 1893, as amended, 45 U.S.C. 6, is amended by striking “having jurisdiction" immediately following the words "United States" the second time they appear, and by adding "or where the defendant has its principal executive office" immediately following the word "committed".

(b) Section 9 of the Act of February 17, 1911, as amended, 45 U.S.C. 34, is amended by striking “having jurisdiction" immediately following the words "United States" the second time they appear, and by adding "or where the defendant has its principal executive office" immediately following the word "committed."

(c) Section 25(h) of Part I of the Interstate Commerce Act, as amended, 49 U.S.C. 26(h), is amended by striking "having jurisdiction" immediately following the words "United States" the second time they appear, and by adding "or where the defendant has its principal executive office" immediately following the word "committed." (d) Section 209(c) of the Safety Act, 45 U.S.Č. 438(c), is amended by striking "having jurisdiction" immediately following the words "United States" the second time they appear, and by adding "or where the defendant has its principal executive office" immediately following the word "occurred."

HOURS OF SERVICE AMENDMENTS

SEC. 5 Subsection (a) of section 5 of the Hours of Service Act, as amended, 45 U.S.C. 64a(a), is amended to read as follows:

"(a) Any such common carrier, or any officer or agent thereof, requiring or permitting any employee to go, be, or remain on duty in violation of section 2, section 3 or section 3A, or violating any other provision of this Act shall be liable to a penalty of $500 for each and every violation, to be recovered in a suit or suits to be brought by the United States attorney in the district court of the United States in the locality where such violations shall have been committed or where the defendant has its principal executive office. In the case of paragraphs (3) and (4) of subsection 2(a) of this Act, each day a facility is in noncompliance shall constitute a separate offense. It shall be the duty of such United States attorney to bring such suit upon satisfactory information being lodged with such attorney; but to such suit shall be brought after the expiration of two years from the date of such violation except when administrative notification pursuant to the Federal Claims Collection Act (31 U.S.C. 951-953) has been provided to the common carrier within two years from the date of the violation, and in no event shall suit be brought after the expiration of the period specified in 28 U.S.C. § 2462."

CONSOLIDATION OF ADMINISTRATIVE POWERS, CRIMINAL PENALTY FOR FALSE

REPORTING

SEC. 6. (a) Section 208(b) of the Safety Act, 45 U.S.C. 437(b), is amended by adding "and under the functions transferred by subsections (e)(1), (e)(2), and (e)(6)(A) of section 6 of the Department of Transportation Act (49 U.S.C. 1655(e) (1), (2) and (6)(A))," immediately following the word "title".

(b) Section 208 of the Safety Act, 45 U.S.C. 437, is further amended by adding the following new subsection (d) at the end thereof:

"(d) In carrying out the functions formerly vested in the Interstate Commerce Commission and transferred to the Secretary by subsections (e)(1), (e)(2), and (e)(6)(A) of section 6 of the Department of Transportation Act of (49 U.S.C. 1655(e) (1), (2), and (6)(A)), the Secretary is authorized to perform such acts as authorized in subsection (a) of this section including, but not limited to, conducting investigations, making reports, issuing subpoenas, requiring production of documents, taking depositions, and prescribing recordkeeping and reporting requirements as he deems necessary to carry out the transferred functions. The Secretary is further authorized to issue orders directing compliance with the statutes transferred by subsections

(e)(1), (e)(2), and (e)(6)(a) of section 6 of the Department of Transportation Act or with any regulation or order issued thereunder; the district courts of the United States shall have jurisdiction, upon petition by the Attorney General, to enforce such orders by appropriate means.

(c) Section 209 of the Safety Act, 45 U.S.C. 438, is further amended by adding the following new subsection (e) at the end thereof:

"(e) With respect to any record or report required under this title to be made, prepared, or preserved, any person who knowingly and willfully (1) makes a false entry in the record or report; (2) destroys, mutilates, changes, or by another means falsifies the record; (3) does not enter required specified facts and transactions in the record; (4) makes, prepares, or preserves the record in violation of a regulation or order issued under this title; or (5) files a false report or record with the Secretary, shall be fined not more than $5,000, imprisoned for not more than 2 years, or both."

EMERGENCY SAFETY ORDERS

SEC. 7. Section 203 of the Safety Act, 45 U.S.C. 432, is amended to read as follows: "SEC. 203. EMERGENCY POWERS.

"(a) If through testing, inspection, investigation, or research carried out pursuant to this title, the Secretary determines that an unsafe condition or practice, or a combination of conditions or practices, or both, creates an emergency situation involving a hazard of death or injury to persons, the Secretary may immediately issue an order, without regard to the provisions of section 202(b) of this title, imposing such restrictions or prohibitions as may be necessary to bring about the abatement of the emergency situation.

"(b) Subsequent to the issuance of an order under this section, opportunity for review shall be provided in accordance with section 554 of title 5 of the United States Code.

"(c) If a petition for review of an order has been filed under paragraph (b) but administrative review of the order is not complete, the order shall cease to be effective on the expiration of thirty (30) days from date of issuance, unless the Secretary determines in writing that the emergency situation remains in existence. "(d) Prior to the issuance of a final order in a proceeding for administrative review under subsection (b), the district courts of the United States shall have jurisdiction to restrain or enjoin the operation of an order issued under this section only if

"(1) after opportunity for preliminary hearing, the court finds it probable that the Secretary has acted in excess of the authority conferred by this section; or "(2) after opportunity for preliminary evidentiary hearing, the court finds it probable that there is no reasonable basis to support the determination of the Secretary that an emergency situation exists."

ELIMINATION OF REPORTING REQUIREMENTS UNDER LOCOMOTIVE INSPECTION ACT

SEC. 8. Section 6 of the Act of February 17, 1911, 45 U.S.C. 29, is amended by striking the fourth and fifth sentences thereof.

SECTION BY SECTION ANALYSIS OF DRAFT BILL

Section 2 of the bill would amend section 212 of the Federal Railroad Safety Act of 1970 (Safety Act) to authorize appropriations for fiscal years 1981 and 1982. A total of $28 million is requested for fiscal year 1981, and such sums as are necessary for increased personnel costs as may be authorized by law, while such sums as may be necessary are requested for fiscal year 1982. In the past, $10 million per year has been authorized for Safety Research and Development (R. & D.) undertaken pursuant to the Safety Act, 49 U.S.C. 421, 431-441, while most R. & D. has been funded under the Department of Transportation (DOT) Act. The Department recommends that the specific R. & D. authorization be deleted from the Safety Act and reliance be placed on the DOT Act for R. & D. authorization in order to promote clarity and assure the authorization and appropriation processes are reasonably parallel.

Funds for the Automated Track Inspection Program (ATIP) and the State Safety Participation Program would be authorized to remain available until expended, as has been the case in prior years. Carryover authority has enhanced the efficiency of these programs and assures continuity in their administration.

Section 3(a) of the bill would amend section 210 of the Safety Act, 49 U.S.C. 439, to provide jurisdiction in the United States district courts for actions to enforce rules,

regulations, orders, or standards issued under statutes transferred to the Secretary of Transportation under subsection (e)(1), (e)(2), and (e)(6)(A) of section 6 of the Department of Transportation Act (49 U.S.C. 1655(e) (1), (2) and (6)(A)). This authority will assure the Secretary the same explicit remedy of injunctive relief for violations of the older safety laws that section 210 presently provides for violations of the Safety Act itself. The statutes transferred under the DOT Act were the Safety Appliance Acts (45 U.S.C. 1–16), the Locomotive Inspection Act (45 U.S.C. 22-34), the Signal Inspection Act (49 U.S.C. 26), the Accident Reports Act (45 U.S.C. 38-42), and the Hours of Service Act (45 U.S.C. 61-64b).

While the current section 210 is silent on the issue of venue, section 3(b) of the bill would provide that any injunction relief action could be brought in the district court for the locality where the controversy arose or where the principal executive office of the railroad is located. (See discussion of section 4 for further explanation of venue.) State actions under section 207 of the Safety Act could only be brought in an United States district court within the particular State.

Section 4 would amend the Safety Appliance Acts, the Locomotive Inspection Act, the Signal Inspection Act, and the Safety Act to provide venue for the recovery of civil penalties for violations of those Acts in either the United States district court for the locality where the violation occurred or where the defendant has its principal executive office.

Currently, these statutes provide that the only court in which suit for the recovery of civil penalties may be brought is the United States district court for the location where the violation occurred. The amendment provides that an alternative forum for such suits will be in the United States district court where the defendant has its principal executive office. "Principal executive office" is used in lieu of the more common "principal place of business" because of its more certain application in the railroad context. At least one federal court has held that the "principal place of business" of a railroad is located in the State in which it hauls the greatest volume of traffic. In many instances this is not the State where the principal officers of the railroad are located.

Since the establishment of the Federal Claims Collection Act of 1966 (31 U.S.C. 951-953), the Federal Railroad Administration has settled administratively, without resort to the United States district courts, the vast majority of claims arising under the safety statutes. The only claims referred to the Department of Justice under these statutes for the institution of civil penalty actions have involved questions of law, rather than questions of fact. However, because of the requirement that the proper venue for such actions lies only in the United States district court where the violation occurred, FRA has been forced to file lawsuits involving the same legal issue in several different districts. This has resulted in a multiplicity of lawsuits and created the potential for inconsistent legal results.

In 1976, to cite a recent example, a question of law arising under one of the safety Acts required the filing of lawsuits by the United States in nine different district courts. Each of those suits involved the same legal issue and involved the same defendant. Yet because of the statutory venue requirement, nine separate lawsuits were required to be filed. Because of the crowded civil dockets, the various courts set the cases for determination on a widely divergent schedule. Two cases resulted in appeals being taken to different United States Courts of Appeals, again on the same legal issue. A Petition for Certiorari was filed with the Supreme Court. The legal issue involved was not finally resolved until Congress acted in 1978.

This amendment to the venue provision would significantly reduce the cost of litigation to both the Government and the private sector such as that which occurred in 1976. In addition, it would assist in reducing the caseload upon the United States district courts through consolidation of related suits.

It should be noted that the venue provided by this amendment is more restrictive than the general venue statute (28 U.S.C. 1391). That statute provides that suit against a corporation may be brought in any judicial district where ". . . it is incorporated or licensed to do business or is doing business. Limiting venue to the location where the violation occurred or where the defendant has its principal executive office, which refers to the location where the corporate headquarters for that railroad are located, will not unduly burden any defendant.

In addition, the amendment would eliminate the jurisdictional reference which is currently found in these railroad safety statutes. Jurisdiction in these matters is amply provided for by the general jurisdictional statutes, 28 U.S.C. 1337, 1345 and 1355. The statutes amended by this section are more properly characterized as venue requirements and should be so identified.

Section 5, which would also amend the venue requirement of the Hours of Service Act (45 U.S.C. 64a) in a manner similar to the changes effected by section 4,