Initial standards.-Section 103 (h) of the reported bill requires the Secretary to issue initial Federal safety standards based upon existing public safety standards on or before January 31, 1967. It further requires that on or before January 31, 1968, that the Secretary shall issue new and revised safety standards.

The committee considers that prompt issuance of safety standards is necessary in the public interest. Therefore, the Secretary is required to issue safety standards based on existing public standards no later than January 31, 1967. The existing public safety standards on which the Secretary would base these standards would necessarily include those that have been promulgated by the General Services Administrator as well as those of other Federal departments and agencies and those of States and other public bodies. No later than January 31, 1968, the Secretary is required to issue new and revised standards to extend the initial standards as well as to cover aspects of performance not theretofore dealt with by previous standards.

Patent problem. In considering this legislation and specifically the safety standards which will result therefrom the committee was aware of the complexities which may arise from standards requiring the use of patented processes or equipment. The committee determined that rather than report a provision which would directly affect patent law it would be more appropriate to leave this problem to a case-by-case determination. In a particular case the courts can and no doubt will consider the various equities of the parties and the public prior to enjoining the infringement of a patent. If infringement of a patent is required to meet a Federal safety standard, the court may well limit the patentee to damages. See City of Milwaukee v. Activated Sludge, Inc., 69 F. 2d 577 (Č.A.·7, 1934).

NATIONAL MOTOR VEHICLE SAFETY ADVISORY COUNCIL

Section 104 of the reported bill creates a National Motor Vehicle Safety Advisory Council consisting of 13 members. The members are to be appointed by the Secretary, and he shall designate the chairman. Members of the Council are to be chosen as follows: Three representing motor vehicle manufacturers, two representing motor vehicle safety equipment manufacturers, three representing State or local governments, and five representing the general public. Members are to be appointed for 4-year terms on a staggered basis. The duties of the Council shall be to advise and make recommendations to the Secretary with respect to motor vehicle safety standards under this act. The Secretary is required to seek such advice and recommendations before establishing, amending, or revoking a safety standard. Members of the Council may be paid up to $100 a day when engaged in their actual duties. They will also receive travel expenses. Receiving payment for services does not render a member of the Council an employee or officer of the United States for any purpose.

The introduced bill did not contain any provision similar to section 104 of the reported bill. The committee decided that it would be desirable to create an Advisory Council to insure that the Secretary have available to him the advice and recommendations of a cross section of those principally interested in his formulation of safety standards. The Council will be comprised of a balance between the industries concerned and the public and State and local governments.

The committee intends that participation in the activities of the Council as a member, and receipt of payment therefor, shall not be construed to be participation as a Government officer or employee within the meaning of section 208 of title 18 of the United States Code or any other provision of law of the United States relating to conflicts of interest.

JUDICIAL REVIEW

Section 105 of the reported bill establishes the detailed procedure for judicial review of any order issued under section 103 of this title. In a case of actual controversy as to the validity of such an order any person who will be adversely affected by the order when it is effective may before the 60th day after the order is issued petition the U.S. court of appeals where he resides or has his principal place of business for judicial review of the order. The court is to transmit a copy of the petition to the Secretary and the Secretary thereupon to file a record of the proceedings on which he based his order. The court is granted authority to order additional evidence where it is shown that such additional evidence is material and there were reasonable grounds for failing to produce it in the proceeding before the Secretary. The Secretary may thereupon modify his findings or make new findings by reason of such additional evidence and shall file such modified or new findings and his recommendations-if any-modifying or setting aside his original order, with the return to the court of such additional evidence.

The court is given jurisdiction to review any order in accordance with section 10 of the Administrative Procedure Act and to grant appropriate relief as provided in that section.

The judgment of the court with respect to any order of the Secretary is final subject to review by the Supreme Court. The remedies provided for in subsection (a) of section 105 are to be in addition to and not in substitution for any remedies otherwise provided by law. Subsection (b) of this section provides that a certified copy of the transcript of the records and proceedings under this section shall be furnished by the Secretary to any interested party upon his request and payment for cost thereof, and shall be admissible in any proceeding criminal, exclusion of imports, or otherwise arising under or in respect of this title, whether or not proceedings with respect to the order have been previously initiated or become final under subsection (a) of this section.

The provisions of this section are comparable to the general judicial review provisions in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 371(f)). The term "person adversely affected" which is contained in this bill as well as the Food and Drug Act and a number of other statutes has been subject to judicial interpretation in many cases. The courts generally have construed this term to permit many diverse individuals and groups and associations of individuals to have judicial review of administrative actions. The committee believes that it would be unwise at the outset of this new and far-reaching traffic safety program to attempt to delineate more precisely than this those persons who will have standing to seek judicial review.

Except for two changes the reported bill is substantially unchanged from the introduced bill. The introduced bill provided that the pe

tition for review must be filed within 45 days after the date the order was issued; this was extended by the committee to a 60-day period. The other change from the introduced bill is the committee revision of paragraph (3) of subsection (a) to provide that the court shall have jurisdiction to review an order in accordance with section 10 of the Administrative Procedure Act and to grant relief as provided therein. This inclusion means (1) that a reviewing court will consider the entire record before it and (2) that the findings of the Secretary will be sustained when supported by substantial evidence on the basis of the entire record.

RESEARCH, TESTING, AND TRAINING

Section 106 of the reported bill requires the Secretary to conduct all research, testing, development, and training necessary to carry out this title including specifically (1) the collection of data for the purpose of determining the relationship between vehicle or equipment performance and (A) accidents and (B) deaths and personal injuries resulting from accidents; (2) procuring experimental vehicles and equipment whether by negotiation or otherwise; and (3) selling or otherwise disposing of test vehicles and equipment. The Secretary is further authorized to conduct any of this research, testing, development, or training by making grants to State, interstate agencies, and nonprofit institutions.

This section requires the Secretary to undertake a broad-scale research, testing, development, and training program for the purpose of acquiring information and knowledge necessary to relate directly motor vehicle and equipment performance characteristics to accidents involving vehicles and the resultant deaths and injuries. Testimony established the necessity to distinguish between accidents and the injuries and deaths which result from accidents. This difference has been described in terms of a "first collision" and a "second collision." Two of the principal goals sought by this legislation are (1) to reduce the number of accidents through improvement in vehicle and equipment performance and (2) to minimize the consequences of the impact of a driver or passenger in a vehicle with the interior of the vehicle or with some other object in the case of ejection from the vehicle as the result of an accident.

The Secretary is directed to obtain experimental and other vehicles and equipment for research and testing purposes. He is given considerable latitude in this regard and he may obtain experimental vehicles or experimental equipment through negotiation, contract, direct grant, or in any other appropriate manner. The committee expects that the utilization of experimental vehicles and equipment would be well underway within a year from the date of enactment of this title and that in establishing and carrying out research and development programs, the Secretary will coordinate his actions to the fullest extent possible with appropriate State programs.

The Secretary is authorized to sell or otherwise dispose of experimental vehicles and equipment after they have served the purpose for which they were acquired and to credit the proceeds to the current appropriations available for this title.

COOPERATION WITH OTHER AGENCIES

Section 107 of the reported bill authorizes the Secretary to advise, assist, and cooperate with other departments and agencies of the Federal Government as well as States and other interested public and private agencies in the planning and development of safety standards and methods for inspecting and testing to determine compliance therewith.

This section was included to make certain that the Secretary would have full authority to consult with the entire spectrum of agencies, public and private, in the planning and development of standards and methods for inspecting and testing to determine compliance with such standards. For example, this would permit the Secretary to advise and consult with other concerned Federal departments and agencies such as the Department of Defense, the Department of Health, Education, and Welfare, the General Services Administration, the Federal Aviation Agency, as well as the many State, public, and private organizations concerned with the various aspects of problems relating to motor vehicle and equipment safety. This would include educational institutions which are participating in the search for safety as well as such other private agencies as the Secretary determines appropriate.

PROHIBITED ACTS AND EXEMPTIONS

Prohibited acts.-Section 108(a) of the reported bill prohibits every person from manufacturing for sale, selling, offering for sale, or introducing or delivering for introduction in interstate commerce, or importing into the United States, any vehicle or item of equipment manufactured on or after the date a Federal safety standard applicable thereto takes effect unless it conforms with that standard, except as otherwise provided in subsection (b) of this section. This subsection also prohibits any person to fail to keep records, or refuse access to records, or to refuse to permit the copying of such records, or to fail to make reports, or to provide information required in section 112(b) and (c) of this title. It is further prohibited for any person to issue any certificate that a vehicle or item of equipment conforms to all of the Federal safety standards applicable to it if that person in the exercise of due care either knows or has reason to know that the certificate is false or misleading in any material respect. The purpose of this section is to prohibit the manufacture, sale, or importation into this country of vehicles or items of equipment that fail to meet the Federal safety standards. Sections 109 and 110 provide methods for enforcing these prohibitions, civil penalties, and injunctions. The principal addition made by the committee to this subsection is the provision prohibiting the issuance of a false or misleading certificate. (Section 114 imposes an affirmative duty on certain persons to issue these certificates.)

Limitation-used car standards.-Section 108(b) (1) provides that the prohibited acts enumerated in paragraph (1) of subsection (a) of this section (that is, the manufacture, sale, and importation of vehicles or equipment which do not meet safety standards) shall not apply to any sale, offer for sale, or introduction or delivery for introduction in interstate commerce after the first purchase of the motor

vehicle or item of equipment in good faith for purposes other than resale.

This means that the safety standards would be enforced only up through the first purchase of the vehicle or equipment by the first person who acquires it for purposes other than resale.

Section 108(b) (1) further contains a declaration of congressional policy to encourage and strengthen the enforcement of State inspection of used vehicles. In order to carry out this policy the Secretary is required to conduct a thorough study of safety standards and inspection requirements and procedures applicable to used vehicles in each State and the effect of various programs authorized by this title thereon, and report to Congress not later than 1 year after the date of enactment of this title the results of the study and his recommendations for additional legislation. As soon as practicable thereafter, but not later than 1 year from the date this report is submitted, the Secretary after consultation with the Council and such other interested public and private agencies as he deems advisable shall establish uniform Federal safety standards to apply to all used motor vehicles. These standards have to be expressed in terms of performance and he is authorized to amend or revoke them.

The committee realized that the manufacture of vehicles and equipment is but one part of the larger vehicle and equipment story. If efforts are made to improve only new motor vehicles and equipment through establishing safety standards only a small portion of the total problem will be dealt with. These provisions relating to used vehicles were added to encourage State action to inaugurate inspection of all motor vehicles where such inspection does not exist and to improve existing State inspections, by providing uniform inspection standards for vehicles in use.

Exemptions. Section 108(b) (2) of the reported bill provides that paragraph (1) of subsection (a) of this section (prohibiting the manufacture, sale, or importation of vehicles or equipment not meeting safety standards) shall not apply to any person who establishes that he did not know or have reason to know in the exercise of due care that such vehicle or item of equipment is not in conformity with an applicable Federal safety standard nor shall it apply to any person who before the first purchase for purposes other than resale holds a certificate issued by either the manufacturer or importer of the vehicle or equipment to the effect that such vehicle or equipment conforms to all applicable safety standards unless that person knows that such vehicle or equipment does not so conform.

This exemption from the prohibitions contained in paragraph (1) of subsection (a) of this section applies if a person proves that, in the exercise of due care, he did not know or have reason to know that the vehicle or item of equipment failed to meet the Federal standard. This exemption also applies to any person who has a certificate issued by the manufacturer or importer that the vehicle conforms to all applicable or Federal standards unless that person does in fact know that the vehicle or equipment does not so conform. Thus, under this exemption there is no imposition of absolute liability; however, the burden of proof is placed upon the person who claims this exemption and once a failure to comply becomes known any continued failure could be stopped by injunction and would be subject to the assessment of a civil penalty in accordance with section 109.