(2) To completely destroy also State power to regulate any kind of aircraft not engaged in carrier operation in any manner whatsoever.

(3) To completely disable a State not only from regulating the operation of aircraft, but also from enforcing police regulations which may in any way "interfere” with the movement of traffic, or persons or freight, to or from airports or other landing places.

(4) To completely disable any State from making any law or regulation whatsoever, which affects the movement of traffic transported or to be transported by air, which differs from laws or regulations in effect in all other States.

(5) To completely disable any State from making any rule or regulation which "impairs uniformity" in any of the requirements designed for public protection with respect to the condition under which operation of aircraft shall be undertaken, either commercially, or privately, or in experimentation, or otherwise.

It is impossible to foresee how far this new section would extend in disabling the States from the ordinary exercise of their police powers, entirely aside from regulation of operations in the air. It is plain, however, that everything in said paragraph (a) following the words "air commerce," in line 19, is designed to restrict the States from the exercise of police powers which may affect other matters than operation of aircraft in the air, or the rates and service of air carriers.

GENERAL COMMENT

The only reason for undertaking to destroy what have always been regarded as the constitutional rights of the States is that the big air lines ask for such destruction. No evidence has been presented before this committee to support the legislative findings which the association of State commissions ask to have stricken out.

There is no evidence whatever that regulation in any State is in any way hampering or impeding the development of aviation, or in any way endangering interstate air commerce. The contrary is admitted.

Chairman Pogue of the Civil Aeronautics Board, at page 66 of the printed hearing, said, "The State aviation officials have been consistently very cooperative with this idea of having uniformity of regulation."

There is no evidence that in any single State has there been any attempt whatever to oppose in any way the administration of the extremely wide powers which the Board has, under the definition of “air commerce,” in section 1 (3) of the present law. Colonel Gorrell, president of the Air Transport Association, filed a brief, arguing for exclusive Federal regulation with respect to economic matters, as well as safety matters. His argument for destruction of State regulatory power was summarized in his statement at pages 161 and 162. He referred to the varying regulations of the States respecting trucks, and to cases where State commissions have made intrastate railroad rates which have been set aside by the Interstate Commerce Commission as discriminatory, and then said:

*

"Thus it is apparent from the past history of railroad regulation by States and the Federal Government, that State action may not only produce nonuniformity upon important matters of national policy but may result in burdening interstate traffic. * * It is no answer to say that these things have not happened yet in air transport. They have happened to other forms of transport. It is only the part of wisdom to act now to prevent their happening in the future And the appropriate method of accomplishing that end is to confer the exclusive power to effectuate economic as well as safety regulation upon the Federal Government."

* *

*

When citing the horrible exeample of diverse State regulations affecting trucks, Colonel Gorrell said, at page 154, "No such legislation has yet been enacted for aviation within the States," but he argued that it might be enacted. With respect to the provisions in the act which the association now asks to have struck out, he made a delightfully frank statement of their purpose, at page 155, as follows:

"Mr. HOLMES. But also in that legislation we provided certain airways that come especially under the jurisdiction of the Board. Now the States have no jurisdiction today over those airways.

"Colonel GORRELL. Not over your airways, no, sir; or anything that would interfere with safety on the airways.

"Mr. HOLMES. That is right. So, we did make a start. *

"Colonel GORRELL. We suggest you button it up so that no court can overrule your administrative body.

This statement of purpose to control the action of the courts made by Colonel Gorrell ties in with Mr. Tipton's statement hereinbefore quoted.

Exclusive Federal regulation is all right for the big air lines, which can maintain their national association, and retain men of the great ability of Colonel Gorrell to take care of their regulatory relations for them. Exclusive Federal regulation is no burden to them. It plays into their hands; and by making local operation in a small way costly and difficult, it will tend to keep the little operators out of business, and will help the big operators to monopolize this new industry.

66*

*

*

From the evidence from the Aeronautics Commissions of Illinois and New Jersey presented before this committee on March 11 and 12, 1943, the committee can see how local aviation is being helped by State participation in its development and control. That, however, is exactly what the anti-State-regulation provisions of this bill are designed to cut off. Colonel Gorrell, at page 158, having talked about the bugbear of diverse State truck regulation said: the beginning of a similar condition already exists even in the air-transport industry, new as it is. True, the consequences of such regulation have not yet become very apparent, for contrary to what happened in the other forms of transportation, in aviation the Federal Government has early assumed the role of guide and regulator; and the States have legislated more slowly, and have not yet intervened to a marked degree in the safety and economic aspects of regulation. Yet legislation already does exist on the statute books of the several States that manifest similar diversities in regulatory policy For example, while most of the States have some legislation on the statute books relating to commercial aviation, the same confusion that prevailed in highway transport concerning the proper regulatory agency obtains here; indeed it is probably the result of that diversity in the highway field. Thus 24 States commit aviation to some specialized aviation commission, aeronautics board, or director; 5 vest the authority in a State railroad or public utility commission; 6 have reposed it in State highway department or an aeronautical division thereof; and 2 identify it with some fiscal agency of the State. In 10 States there is no authority designated to administer the regulation provided for."

* * *

It is plain that it entails no destructive hardship on the aviation industry that in some States the industry is regulated in local matters by a utilities commission, and in others by an aeronautics commission, or even that in some others aviation laws are left to be enforced by the courts. What Colonel Gorrell wants is no State laws whatever.

Proceeding, still on page 158, Colonel Gorrell said:

"State regulation of aviation has largely concerned itself hitherto with ownership of the air subject to right of flight, with ordinary police powers regarding conduct of citizens in the use of airplanes, and have to a large extent modeled their safety provisions upon those of the Federal Government. But diversities do exist. While 35 States prescribe that aircraft and airmen must have Federal licenses, Virginia requires both; New Hampshire and Connecticut speak only of State licenses; Iowa calls for Federal unless released in writing by the State commission; Utah, Oregon, North Dakota, Minnesota, Michigan, Maryland, and Louisiana say that aircraft and airmen must have Federal or State license or registration.

"It should also be observed that seven States require certificates of public convenience and necessity for operation, issued usually by a public utility commission; and some certificates have actually been issued. Massachusetts has provided for State regulation of rates charged by air-line common carriers, including filing of tariffs, and the full complement of maximum, minimum, and actual rate prescription. And several other States, notably West Virginia, Illinois, Pennsylvania, and California, have also requested the filing of air-line tariffs. Eleven States specifically declare that railroads may own and operate aircraft; and one includes steamship companies as well. California forbids operation at less than 1,000 feet over congested places, Delaware at less than 1.000 feet over congested places and 500 feet elsewhere, Vermont at less than 600 feet, and New York has both such limitations."

This is the entire specification of hurtful State regulation, upon the basis of which Congress is asked to enact this destructive legislation. The statement carries the refutation of the argument that because there is diversity in the regulation of highways there will be hurtful diversity in the regulation of aviation. Indeed, the evidence strikingly supports the statement of Chairman Pogue, of the Civil Aeronautics Board, that "State aviation officials have been consistently very cooperative with this idea of having uniformity of regulations."

Colonel Gorrell's statement shows that of the 46 States mentioned by him, as regulating licenses of aircraft and airmen, 2 require State licenses without reference to Federal licenses, 7 require either a Federal license or a State license, 1 requires a Federal license unless the State board in writing grants exemption from that requirement, and 36 require Federal licenses. These are laws regulating intrastate air commerce. It is the most striking example of successful coordination of State and Federal regulation by voluntary effort, under the helpful provisions for cooperation enacted by Congress in section 205 (b) of the present law, which can be found in any field of regulatory activity. Certainly it is not a result which calls for the destruction of State regulatory powers.

It is a cause for some surprise that the Chairman of the Civil Aeronautics Board, after receiving the consistent cooperation of State aviation officials in promoting uniformity of regulation, to which he bears testimony on page 66, has permitted himself to be drawn here to support this legislation, which would destroy State regulatory power in local matters, and would deprive aviation of the benefit which it is now receiving from the helpful participation of these State regulatory bodies. Furthermore, the reasoning underlying the testimony presented by him is not altogether clear. At pages 45 and 46 of the hearing he said:

"From the beginning air carriers have formed systems of transportation traversing several States. There are few States indeed, which cannot be crossed in 2 hours' flying time. The average passenger's trip by air carrier is nearly 400 miles in length * ** * American Airlines flies over 23 States, United Air Lines 15, Transcontinental & Western Air 14, and Eastern Air Lines 18. Picture the 23 States over which American flies each regulating local rates, each passing on the issuance of new securities, on mergers, consolidations, interlocking relationships, and each requiring the filing of extensive reports and information. Because of this national character of air transportation, the airtransport industry has from the beginning urged exclusive Federal control."

Does the chairman ask the committee to understand that he apprehends anything such as he asks the Commission to picture, or that it could possibly occur, even if the States should show a sudden desire to sabotage aviation instead of to build it up, as they are attempting to do? It is difficult to understand what reasoning actuates the presentation of testimony of that character. Chairman Pogue further said, at pages 46 and 47:

"In the field of safety regulation, the Board's authority now extends to all operations in interstate commerce and to all operations which directly affect or which may endanger safety in interstate, overseas, or foreign air commerce. It is inevitable that this phraseology will receive a broad and liberal interpretation. * * * Flight is no exception to the old rule that a chain is no stronger than its weakest link. Here again, Federal uniformity of regulation is essential. Think of United Air Lines' pilots having to comply with safety rules changing 15 times going between New York and San Francisco during one night. It simply could not work-not with planes traveling 1,600 miles per day on the average. And it is not only air lines which must have uniform rules. Substantially every aircraft in the air 'may endanger safety in interstate commerce.' Any plane is capable of flying great distances, of flying on the Federal airways, of interfering with interstate flying in a hundred ways. * * *

"A graphic illustration of this general problem is found in a recent case involving the safety provisions of the Civil Aeronautics Act, in which proceedings had been instituted by the Federal Government to impose a civil penalty for the operation by the defendant of an uncertificated aircraft on a civil airway (Rosenham v. United States, Circuit Court of Appeals, Tenth Circuit, decided November 16, 1942). The defendant offered to prove that the aircraft was certified as airworthy by the Utah State Aeronautics Commission, that the operations of the aircraft had been exclusively intrastate, and that its operation on the airway had been at a time when there was no interstate traffic in the vicinity which could be affected by defendant's flight. The United States district court, however, entered judgment against the defendant on the pleadings and this decision was upheld by the Circuit Court of Appeals for the Tenth Circuit, on the ground that he might endanger safety in air commerce and Congress had acted in that field and that that was a valid action." [Italics supplied.]

Again the chairman's reasoning is obscure. He admits that " * * the Board's authority now extends to all operations in interstate commerce and to 86429-43- -7

all operations which directly affect or which may endanger safety in interstate, overseas, or foreign air commerce," and he adds, "It is inevitable that this phraseology will receive a broad and liberal interpretation." He cites Rosenham v. United States. In that case, the Utah regulatory officials made no attempt to oppose the Board in the exercise of the broad jurisdiction given it by Congress in the present law. In that case, the court sustained the jurisdiction claimed by the Board, and yet, the chairman says the case is a "graphic illustration of this general problem" which he asks you to accept as making this destructive legislation necessary.

It may be that a case sustaining the jurisdiction of the Board, which, under the present law, has the broad sweep stated by Chairman Pogue, is a "graphic illustration" of the need for more legislation, but the reasoning leading to that conclusion is too profound for the ordinary man to grasp.

Mr. BULWINKLE. The committee will stand adjourned to reconvene next Tuesday morning, perhaps, at 10 o'clock. If we do reconvene, I will give proper notice.

(Thereupon, at 12:10 p. m., the subcommittee adjourned, as above indicated.)

(The following was submitted for the record:)

Hon. CLARENCE F. LEA,

AIR LINE PILOTS ASSOCIATION,

Chicago, March 24, 1943.

Chairman, House Interstate and Foreign Commerce Committee, United States House of Representatives, Washington, D. C.

DEAR CONGRESSMAN LEA: I have been noticing in various Washington releases that your committee is taking testimony relative to the parts of H. R. 1012 dealing with the air space jurisdiction of the United States and other aspects of the State rights versus Federal rights question as it affects civil flying and air transportation. I have prepared a statement, dealing with certain aspects of this subject, which represents the views of the Nation's air-line pilots who, by the nature of their work, are very close to this problem.

In the attached brief are the opinions of the air-line pilots who are proponents of clearing up the conflict between State and Federal jurisdiction in aviation so that it may develop properly and free from all forms of petty squabblingpolitical, legal, and otherwise.

In view of the apparent interest of your committee in this particular subject at the moment, I would like to respectfully ask that you consider including the attached statement in the record of the hearings on H. R. 1012.

With good wishes, I am,
Sincerely yours,

AIR LINE PILOTS ASSOCIATION,
DAVID L. BEHNCKE, President.

STATEMENT OF DAVID L. BEHNCKE, PRESIDENT OF THE AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, RELATIVE TO JURISDICTION OF THE NAVIGABLE AIR SPACE OF THE UNITED STATES.

The matter of establishing a more clean-cut and sharply defined jurisdiction of the navigable air spaces of the United States has been long one of interest to the airline pilots. The primary reason for this interest is that the navigable air space is the same to them as the waterways are to the river and inland waterway pilots, the railroads are to the railroad men, and the roads are to the highway transportation employees.

Our country's vast air network operates through the navigable air space and, in the opinion of the air-line pilots, it is high time that something be done to eliminate the conflict between the States and the Federal Government relating to this jurisdiction. At the present time the matter is one fraught with considerable confusion and, while the Civil Aeronautics Administration has certain authorities from the Congress to establish and maintain airways, this jurisdiction seems to have become in certain respects somewhat of a stepchild. This is especially true in the matter of preventing the building of obstructions around airports and along the airways, such as radio towers, high lines, and the proper standardization of all airports, airport and airway facilities.

It is recognized that the point in our national and State law set-up where Federal jurisdiction should commence and State jurisdiction should give way

has always been a delicate one. However, I believe that air transportation has now developed to a point where it is possible and necessary to establish definitely where this point is.

For example, I have been in this business for more than 25 years and have seen it grow to its present surprising proportions and, at the same time, I realize that it has only started to develop. Years ago when a handful of old-timers started to fly they weren't worried about State lines because they seldom flew far enough to cross one. Improvements in power plants and equipment resulting in speed and more speed changed all this, and today's air commerce is flowing day after day across many State lines carrying a constant flow of interstate commerce with the same disregard for State lines as is evidenced in all surface interstate commerce-only to a far greater degree. The swiftness of air travel and the large number of State lines that may be crossed on one flight gives great weight to the argument that the Federal Government should have exclusive jurisdiction of the navigable air spaces of the United States.

This argument, however, becomes somewhat secondary when another factor is brought to light. This factor is the protection of the Government's investment in the vast chain of flying fields that have been built in this country to serve both civil and military aviation and to this chain is constantly being added more flying fields. Airports built several years ago have already been outmoded and are being enlarged and improved. The ideal flying field is one sufficiently large and obstruction-free. I believe that the flying field of tomorrow should have 10,000-foot runways in all directions and should have no obstructions. Of course, I am speaking of the ideal. We all know that except in rare instances, because of the thickly populated nature of our industrial metropolitan centers, that we can not hope for 100 percent obstruction-free flying fields.

However, we do the best we can and we pick the closest and most obstructionfree spots we can find for our fields within reasonable transportation distances of the centers of commerce and population-in other words, the metropolitan areas of our country. For example, let's assume that we pick a flying field site today bordering any large city we may choose to name, and the Federal Government comes in and either builds an airport or helps finance it. It usually turns out to be a good field and a real credit to the community that it serves and a real asset to national defense and our country. Then comes the matter of what surrounds this field. Gradually the real estate becomes more valuable, communities spread out and build up to the airport, around and beyond it, and then comes the rude awakening. Our flying field that is worth millions in taxpayers' money, in some form or other, gradually becomes obstruction-bound.

In the opinion of the air-line pilots, the proper way to go about protecting regularly established landing areas which are a part of the regular national airways network and used in interstate and other long-distance air commerce, is to properly and uniformly zone the territory surrounding such airfields. In other words, it is merely a matter of drawing a circle around an airfield to allow a given zoned space. Such space between the edge of the airfield and the circle should be zoned so that no buildings or other obstructions may be erected above certain heights. Then there could be circle two and circle three with their respective similarly zoned areas, in which buildings and other obstructions could be progressively high so as to follow the contour of a safe glide path to and from the landing area.

Unless something like this is done and done quickly, the airport obstruction problem will be so great it will be impossible of a solution because once capital is invested in much valuable development it goes without saying that the cost factor will prevent its condemnation and removal. In order to clear up this picture and protect the country's flying fields from the erection of dangerous obstructions, there is also going to have to be given consideration to Federal condemnation laws. This, of course, gets into a rather extensive legal field. I merely wish to bring it up and point out that unless Federal condemnation teeth are legislated into the control of air space jurisdiction, it will be impossible to prevent and remove obstructions from around flying fields and along the airways.

I am not sure, but believe the navigable rivers of this country are kept open by the Army Engineering Corps. In any event, I have noticed nobody can build a bridge, a dock, or in any way interfere with the navigable channels of our rivers and lakes and coastwise waterways unless they clear the project they have in mind with the Army engineers. In the air picture when it becomes a matter of preventing the building or removing of a dangerous obstruc