by their larger competitors who can afford the legal counsel and legal costs involved.

In many instances it seems probably that small operators would be so appalled at legal action being brought against them that they would fail to appear to protect their interests.

Carriers operating under the authority of sections 203 (b) (5) and 203 (b) (6) sometimes engage in unauthorized operations. So do common carriers, contract carriers, and private carriers.

We do not believe that the question of whether or not carriers are engaged in authorized transportation should be shielded from private action in some cases but not in others. A violation is a violation, regardless by whom committed. It would appear reasonable that all should be treated equally-that there should be no discrimination as between carriers.

We, therefore, respectfully recommend that part (2) of section 4 of S. 1727 be deleted.

In further support of this recommendation we would argue that one of the key responsibilities delegated to the Commission by the Congress is the determination of the scope within which carriers may operate. This is a complex matter, one requiring all the expertise and judgment available to the Commission.

The distinction between what is legal and what is illegal transportation is often finely drawn-requiring intimate experience with the subleties and complexities of the statute and regulatory history to arrive at sound and consistent conclusions.

To delegate this primary responsibility to the courts, even though the Commission retains an authority to intervene in particular cases, appears unwise. No one knows how many private suits may be filed or whether or not it will be possible for the Commission to inquire into or to participate in all such cases.

What may appear in the application for relief (copy of which would be sent to the Commission) to be a simple set of facts and a simple issue of law, may, during the process of adjudication develop as a complex matter indeed.

The opportunity of expressing these views is very much appreciated. Senator LAUSCHE. In summary, as I understand your views, they are that you favor this provision which will give the right to all interested parties to recover reparations for excessive charges? Mr. TRIGGS. Yes, sir.

Senator LAUSCHE. You feel that the complexity of the regulations on safety and operations are so manifold that forfeiture ought not to be given as absolutely or given at all?

Mr. TRIGGS. On safety and violations of safety.

Senator LAUSCHE. On safety regulations?

Mr. TRIGGS. Yes.

Senator LAUSCHE. Now then, with respect to private suits for the enforcement of the act, are you completely against the bringing of any private suits for the enforcement of the act?

Mr. TRIGGS. Yes; that is where we are; I am not saying that it might not be possible to write legislative criteria that we could go along with, but policywise we do have that position.

Senator LAUSCHE. You believe that these safeguards which have been provided about a plaintiff having to show a clear and patent

violation; and that before he can get an injunction he must post a bond to indemnify the defendant against losses; and the right that is given to the Commission to intervene, still do not protect adequately?

Mr. TRIGGS. I think those are desirable features and represent some protection. They do not cure the question of discrimination at all. Senator LAUSCHE. Will you describe that as you see it applicable to cooperatives, and so on?

Mr. TRIGGS. Well, I suppose that the nature of the private petition that might be filed in particular cases would commonly be something like this: An assertion that the defendant is engaged in unlawful practice of a particular kind which would, I suppose, have to be described, and the request that the court issue an injunction to prohibit the defendant from engaging in this specified character of transportation service.

Now if that complaint were to be filed against a common or contract carrier, the carrier could in many, perhaps most, instances, say to the court: this involves an interpretation of the transportation service that we are authorized to perform under our certificate or permit, and it is therefore not within the jurisdiction of the court. I would suppose this is a question of evidence. But it would appear that if there were any color of fact to this assertion that the court would necessarily have to find that it did not have jurisdiction.

Then in the case of private carriers, the assertion by the carrier that this involved a question of its authority to operate under the primary business test, and is therefore a question for the Commission, not the courts-if there is any color of fact to this assertion I think the court would also have to conclude that the complaint is not within the jurisdicion of the court.

But if a case is brought against a 203 (b) (6) carrier-that is the exempt agricultural, fishery, lumber hauler-for example, that his trip leasing practice is not in accord with the law, or if a case is brought against a cooperative-for example, it is asserted that the cooperative's backhaul business is unauthorized, the cooperative or the carrier might believe that it is thoroughly within its right to engage in the questioned transportation, but they have no basis to tell the court that the character of their business is a proper matter for the Commission, not the courts. I think this is discriminatory, and I do not see how it would be possible to cure the discrimination by any proposal that I am aware of.

So we suggest in lieu thereof that we strike this provision as constituting a new adventure and exploration in enforcement of the act, keeping in mind that this act contains a whole series of new enforcement procedures anyway, so that the enforcement power of the Commission is going to be enhanced. And the whole question of the authorized character of transportation service is a very subtle one, involving fine distinctions, and it is best left in the hands of a quasijudicial body that is really expert in this field.

Senator LAUSCHE. The essence of your objection to the proposal to give to alleged interested parties the power to sue lies in your conviction that this law will not operate equally upon all people who are supposed to come within its spirit?

Mr. TRIGGS. That is a basic feature of our objection.
Senator LAUSCHE. Do you have any questions?

Mr. SENDER. Yes, sir. One of the bills the committee is considering in these hearings is H.R. 5401. Your statement does not deal with H.R. 5401?

Mr. TRIGGS. No.

Mr. SENDER. With regard to that portion of H.R. 5401 providing for private suits for enforcement of the act, what is your position as to that provision of H.R. 5401?

Mr. TRIGGS. Well, I think that that is an improvement as compared with not having the provision at all. But it does not cure the question of discrimination at all.

Mr. SENDER. In what respect?

Mr. TRIGGS. Well, in that the defendant in the case who is a common carrier or a contract carrier or a private carrier will have the right to question the jurisdiction of the court, whereas the defendant who is an exempt carrier or a cooperative carrier would not have the right to question the jurisdiction of the court.

Mr. SENDER. Is that because of the proviso that "nothing in this paragraph shall be construed to deprive the Commission of its jurisdiction to interpret or construe certificates of public convenience and necessity, permits, or rules and regulations issued by the Commission?" Mr. TRIGGS. Yes, sir.

Mr. SENDER. If that provision were deleted would you still feel that section of H.R. 5401 was discriminatory?

Mr. TRIGGS. If that provision and all shielding provisions were deleted it would leave all parties on the same footing. Now I would still say that there is a question of what is desirable as to primary jurisdiction; is not this such a matter of expertise, of training and experience in a particular area of law that it is best left to the Commission to have the initial say-so.

Mr. SENDER. An amendment was added to H.R. 5401 on the floor to give the Commission the discretion to notify the courts, and then the courts would send it to the Commission. Do you regard that provision as discriminatory?

Mr. TRIGGS. Oh, I thought that that was the provision you referred to before. Well, it does not cure the question of discrimination. Furthermore, I wonder if that is practical. How much of a multiplicity of suits are we going to have filed under this provision? Is it going to be possible for the Commission to take a look at every one of those cases and they will have to follow each case; you cannot determine whether it is one that they ought to be involved in by reading the complaint. You have got to get the answer and hear some of the argument before you know whether or not a crucial area of interpretation of the statute is involved.

Senator LAUSCHE. That is all, and we thank you very much for your

statement.

Mr. TRIGGS. Thank you, Senator.

Senator LAUSCHE. Mr. Harmanson of the National Council of Farmer Cooperatives.

You may proceed. Let it be understood that your whole statement will be printed in the record, and with that in mind, if you think that you can go to the heart of the views you want to express you may disregard the paper.

STATEMENT OF L. JAMES HARMANSON, JR., GENERAL COUNSEL, NATIONAL COUNCIL OF FARMER COOPERATIVES

Mr. HARMANSON. Thank you, Mr. Chairman. Let me identify myself. I am L. James Harmanson, Jr., general counsel of the National Council of Farmer Cooperatives.

This statement is presented on behalf of the council. In the first part of my statement I do have an identification of the council, but in deference to the other witnesses to follow I shall omit that in its entirety, and also I shall omit the council position and come to the bottom of page 2 and get to the heart of the transportation issues that are before you.

Let me say that we do appreciate this opportunity very much of appearing before your subcommittee and presenting the views of the council on what we regard as a very important matter.

Senator LAUSCHE. You are very welcome.

Mr. HARMANSON. First, the increased civil penalties. The council is strongly opposed to authorization for the imposition of civil forfeitures as contained in section 3 of S. 1727 and in S. 1733 for failure or refusal to comply with regulations pertaining to maximum hours of service of employees, safety of operations, or standards of equipment. The latest compilation of the revised safety regulations of the Commission, published as of January 1, 1965, by the American Trucking Associations, Inc., contains over 160 pages in small print with an additional 8 pages of index.

This is the compilation, Mr. Chairman, to which I refer. This is the one published by the American Trucking Associations, Inc., and I notice that Mr. Triggs referred to about 70 pages. That is the publication by the Interstate Commerce Commission, as I understand it, which is on larger pages. It is a little larger size. I want to note that so you do not have a question as to the discrepancy. This is a different publication.

Many of the regulations contain uncertain terms and with respect to these even a most prudent and conscientious man cannot be certain that his judgment and that of the Commission personnel will agree as to what constitutes satisfactory compliance. An operator may have taken all possible steps to comply but still through mechanical failure or the fault of others, not his own, be guilty of failure to comply with some one or more of the regulations.

We, therefore, recommend that the increased civil penalties as authorized in section 3 of S. 1727 and in S. 1733, which is the bill to implement the Commission's recommendation, be omitted insofar as they would be made to apply to failure or refusal to comply with safety regulations.

Senator LAUSCHE. On this aspect of the bill your thoughts are in conformity with the thoughts just expressed by Mr. Triggs, is that correct?

Mr. HARMANSON. Yes, sir.

Senator LAUSCHE. And there have been others who have testified that the forfeitures ought not to be so severe as they are set forth in regard to safety violation?

Mr. HARMANSON. I think they have; but our position is not only that they should not be so severe-our position is that the civil for

feitures requiring no proof of knowledge should not apply at all to failure to comply with the safety regulations.

Senator LAUSCHE. You may proceed to you next subject.

M. HARMANSON. Delete primary jurisdiction proviso: We recommend that the proviso beginning on line 2, page 5, of S. 1727 be deleted. It reads as follows:

Provided, however, That nothing in this section shall deprive the Commission of its primary jurisdiction to determine the validity of an operation in dispute under the primary business test.

Section 3, in addition to authorizing imposition of civil penalties for failure or refusal to comply with safety regulations, also authorizes such penalties for failure or refusal to comply with certain operating authority provisions of the Interstate Commerce Act. The Interstate Commerce Commission would be the moving party in these actions and as the agency charged with the administration of all the provisions of the Interstate Commerce Act, it should and presumably would, determine that in its opinion there has been a failure or refusal to comply with a specified provision before it proceeded in a civil forfeiture action against any carrier-common, contract, private, or "exempt." Therefore, unless the proviso-this proviso which I have just read to you which is in S. 1727, this civil forfeitures section-is intended to have some meaning not clear from the words used, we believe it should be deleted. If it is intended to result in some different treatment of private carriers from other types of motor carriers as to application of the "civil penalties" provisions, then it is discriminatory as to the other types of motor carriers and should be deleted for that reason.

Mr. SENDER. The House deleted it, did they not?
Mr. HARMANSON. That is my understanding.

I would like to add a few words concerning the expanded concept of civil forfeiture actions as proposed in these bills. The council has definite reservations concerning the wisdom of expansion of this concept. We realize that this is well settled in other areas of law, antitrust and what not, but for the reasons which I shall mention briefly the council does have some reservations, but it goes along with it as an expression of their desire to cooperate in trying to stamp out illegal carriage.

However, in spite of its reservations, it has authorized support of the imposition of civil penalties (forfeitures) for violation of operating authority provisions of the Interstate Commerce Act. There are definite hazards in this proposal which could work a grave injustice and costly burden to motor carriers of all types who honestly strive to comply with the law unless the authority herein proposed to be vested in the Interstate Commerce Commission is discharged very sparingly and responsibly. The whole area of motor carrier operations for which the term "gray area" has been coined is admittedly, by the term itself, recognized as an area in which honest and informed men may differ as to whether a particular operation is legal or illegal. In many cases the answer has to be found in the Federal courts and sometimes in the Supreme Court of the United States. It is so close. It is immaterial whether lack of definiteness in the law itself or lack of certainty in the regulations issued under the law account for the alleged difficulty under existing procedure for prompt determi