Indeed, in the preamble of the congressional consent to the compact it is stated "Divided regulatory responsibility is not conducive to the development of an adequate system of mass transit for the entire metropolitan area, which is in fact a single integrated, urban community."

Nor would the transportation thus exempted be a minor exemption. It is perfectly obvious that the transportation encompassed within the language of section 5 could become a very substantial factor in the overall transportation picture in this area. In the litigation concerning the Mall shuttle, it was established that the Mall currently is visited by about 12 million people annually-and the Congressman who just preceded me stated Washington will be visited this year by about 15 million visitors, and we know that the number will increase substantially in future years.

I do not know how many visitors annually are projected for the Visitors Center.

I should make it very clear at this point that the Commission is not objecting to the kind of transportation envisaged by section 5. Rather, it is asserting only that such transportation should be subject to the same jurisdiction as all other transportation in the metropolitan area. Nor do we assert exclusive jurisdiction. We recognize, as we recognized in the litigation concerning the Mall shuttle, that the Secretary of the Interior has statutory power to enter into contracts with concessionaires and to impose contractual obligations upon such concessionaires. It is our position only that such concessionaires are, and should continue to be, also subject to the obligations imposed upon them by the

compact.

Of course, if the transportation is performed by the Federal Government itself, it would be exempt from the jurisdiction of the Commission by reason of the express provisions of the compact to which I previously referred. If this is what section 5 of the bill is intended to authorize, we respectfully suggest that the language should be clarified to make this explicit.

In summary, we have sought to express our views here because of the possibility that, upon enactment of section 5 of the bills before you, it would be argued that Congress had overthrown the holding of the court of appeals in the Mall shuttle case as to the Commission's jurisdiction over concessionaires of the Interior Department. It is our belief that if this is the purpose of the legislation, it would not accomplish that result since unilateral amendment of the compact is impossible. It is further our belief that it would be unwise to seek to accomplish that result.

Accordingly, we would hope that the language of section 5 would be deleted. Alternatively, if you feel that it is appropriate to include in the legislation some language authorizing transportation by concessionaires on the Mall, and between the Mall and the Visitors Center, we would hope that you leave no doubt that such transportation is subject to the provisions of the compact.

Thank you very much, Mr. Chairman.

Mr. GRAY. Well, thank you, Mr. Avery, for a very clear statement. As you know and as you point out, this is a complèx problem and it was not the intent of the Chair certainly to circumvent the powers of the Commission in introducing this legislation containing section 3.

What we have here is a unique situation where the Secretary of the Interior contends that he has authority, statutory authority, to enter into a contract with a concessionaire for transportation around the Mall. However, as you know, Congress is a separate entity entirely and he has not claimed and certainly knows he does not have the authority to grant a concessionaire to run around the Capitol. All of us know that one of the first places people are going to go when they leave this Visitor Center at Union Station is the Capitol. So what we really were seeking to do in section 5 was to give the Secretary authority not only around the Mall, but also on the Capitol Grounds.

Now, frankly, I am going to confess my ignorance. I did not realize, since this was Government property, that any concessionaire would have to obtain permission from the Commission. It is only 6 years old and it is not something we have been dealing with every day. For that omission and oversight I apologize.

What we are really seeking to do here is not to circumvent, as I said, your authority, or even the courts, in setting out this route, but to give the Secretary clear power that he would need in order to properly operate the shuttle service. Because to bring 5,000 to 6,000 vehicles in every day to the Visitor Center and give them an incentive to get out of their car, which is what we are trying to do to avoid congestion, we definitely need public transportation fast and dependable.

Now, whether it is interpretive shuttle service by this concessionaire that Mr. Udall has entered into an agreement with or whether it is the existing company here in Washington, D.C. Transit, this committee is not interested in that particular question or argument. We are merely interested in seeing that the Secretary has the power to provide this type of shuttle service.

Because it is an integral part of the Visitor Center, I think you will agree that for every busload of 80 people that we can put in a bus, we are eliminating 20 to 30 vehicles off the streets. This is good for everybody. This is good for commerce and trade here in the District by allowing more people to come in that can park and want to shop. It will eliminate the congestion of the tourists, who certainly are clogging the streets and who have no place to park. It would allow tourists to enjoy their visits to our historical places of interest.

Our constituents often call us; their cars have been hauled off when they parked on the streets where parking was prohibited.

So I am sure you will agree it is desirable and imperative to have public transportation around the Mall to all these facilities. The question is what is the best way to approach it.

There is a strong feeling on this committee, that I certainly share, that we ought to, if we charge for parking at the Visitor Center, give free bus service as far as the Capitol. So if we follow your suggestion here and require a concessionaire to come to your Commission and ask for free bus service, I am wondering if this would not set a more dangerous precedent with other people who are appearing before your Commission for certificates of convenience and necessity? I wonder if this would not make more of a dangerous precedent than for Congress just to exempt the Commission from any authority relating to this specific need for strict service to go to the Capitol and around the

Mall.

Mr. AVERY. I really do not think it would be a dangerous precedent,

Mr. Chairman. For one thing, what you are discussing is a very unique situation. There is, after all, only one Capitol and one Visitor Center, and I think everybody recognizes and we certainly recognize, as I tried to indicate in my statement, that the transportation you envisage here is a very good thing and should be provided. If it were provided as free transportation between the Visitor Center and the Mall, I would not regard it as raising any serious problem as precedent for the Commission as for the very uniqueness of the situation that you are dealing with here.

What we are worried about

Mr. GRAY. On page 3 of your testimony, you say:

While the Interior Department could enter into a contractual arrangement with a concessionaire, that concessionaire must comply with the provisions of the Compact.

So I am looking downstream thinking, well, if we give authority to the Secretary to enter into a contract with the concessionaire and we all feel that we should have free bus service from the Center as far as the Capitol, and then the concessionaire goes to the Commission and asks for that authority, then according to your own statement here, they must comply with the provisions of the compact. The compact may not have any provision for any type of free bus service. Then we run into the situation where Congress has spoken, we feel this is what we should do, give free bus service to the Capitol; and then you come back and make a ruling, we are sympathetic but we feel that this would be setting a precedent where somebody in Alexandria might say, "Well, I think we ought to give free bus service from the courthouse up to some other place in Alexandria, and Congress did it so why can't we do it?

So I am looking at this from your standpoint as doing a good job with the Commission, that this might set a more dangerous precedent than if we just exempt this particular route from any consideration of the Commission, which certainly would not then set any precedent because Congress is speaking for a specific problem and a specific location, which, as you point out, is unique. We only have one Capitol and we only have one Visitor Center per se.

Mr. AVERY. Well, if I could say two things to that: First of all, if it was strictly free transportation, if there was a separate line going say from the Visitor Center to the Capitol, buses just running on that route and it was free, in the first place, that would not be subject to our jurisdiction, that particular line: because the compact says only that we have jurisdiction over transportation for hire. Of course, if it is free, it is not transportation for hire.

Mr. GRAY. What we have been thinking, frankly, as an incentive to get people out of their cars, was to take a portion of the parking fee and subsidire this leg of the journey. In other words, if we charge, say, $1 to park for a 24-hour period at the Visitor Center, they can take the stub for that parking ticket and that would be admission to the free bus service. This could be used even for the Capitol employees and other Goverment workers. If we have of periods and someone here could not find a place to park and wanted to park his car, he could get a free bus ride to work. So we felt that actually it would be really subsidized serie

It just would not make a lot of sense to have a bus which could hold 80 passengers haul 40 free and have another bus with 40 on it coming up here for hire. This would be an uneconomical thing to do. They should all ride on the same bus. The question is, How are we going to collect it? My thought was we could take a portion of the parking fee and pay for that particular part of the service that was going to be provided free.

So this is why it is such a unique situation and so complex that I am wondering if the provision of the compact would even be able to take care of this type of situation. And that is the thing we are fearful of, if we go ahead and authorize this Center-the railroad has put up $19,5 million of their money to build this, then we get into a hassle such as the one now in court between your Commission and the Secretary of the Interior, and as a result we would be stymied and would have no transportation. That is the thing we are trying to avoid.

We are not trying to circumvent any of your authority whatsoever, but it is a unique situation and I think the public interest here must be served first. With all due respect to the compact and with all due respect to the Commission, the public interest I think is paramount and these other matters are secondary.

Mr. AVERY. Well, that really touches on the second point that I wanted to make, and that is if you enacted legislation along the lines you are discussing indicating that what you want is the Secretary to provide free transportation to the Capitol, and if the concessionaire then came to the Commission for the necessary authority to do that, frankly it is inconceivable to me that the Commission would ignore specific language enacted by the Congress expressing the desire to have this. So frankly I cannot

Mr. GRAY. It is inconceivable? You have to admit you are in litigation now with the Secretary of the Interior and he quoted certain statutory authority that he had, and the Commission was not willing to accept that authority that he had, so it is just conceivable if you ignore the Secretary, you could ignore Congress if it was in a gray area. I am not saying you would do it deliberately; but if your authority was not clear, or our authority is not clear, then conceivably it could be a gray area that is subject to litigation.

Mr. AVERY. That is true if it were a gray area.

There was a disagreement between us and the Secretary, between his jurisdiction and our jurisdiction, and the court in fact ended up saying we are right, so that I am forced to agree if the matter were left gray, we might get into a dispute. But if you enact this language that made clear your intent, there would not be any gray area.

Mr. GRAY. That was the point I was getting at. Why would the Commission object if we wrote into the act exempting just this, and not the general transportation at all but just exempt this particular one from the Commission's jurisdiction, since it is a compact between the District, Maryland, and Virginia. The purpose, as I understand it-and I voted for it in 1960-was to give you the authority to coordinate transportation needs of all these areas. But I do not think that Congress intended in setting up this compact that we would not have jurisdiction here on our own Government property.

I yield to the gentleman from Texas, then I will get to you, Mr. Denney.

Mr. WRIGHT. I am just a little curious, what was the basis of your action against the Interior Department? Was it simply that you felt the Department had failed to comply with the law that you are charged with administering by refusing to come and ask you for a certificate of convenience and necessity?

Mr. AVERY. Yes.

Mr. WRIGHT. Is this all that was involved? Or did you have some more pronounced objection to their operating this little shuttle?

Mr. AVERY. No, Mr. Wright. Of course I cannot now and we have never taken a position publicly on what we would say about the desirability of the service. That is a matter which I cannot comment on, because it has got to come before the full Commission. But what we were saying, what we said to the Interior Department was that the concessionaire was a person engaged in transportation for hire in the Washington metropolitan district and, therefore, we had no choice but to take the position that the compact applied to it.

Now, the Secretary had two arguments. He referred first to certain statutory provisions which gave him exclusive jurisdiction over the Mall area of the District of Columbia, and he referred to the exemption in our compact of transportation by the Federal Government.

We carefully considered his arguments and we thought that his position on the law was not so clear that we felt we should accept it. So that in order to clarify the law, we brought an action in the court and tried to expedite it as quickly as we could to get the question settled.

Now, the court, as it turned out, agreed with our interpretations of the acts investing the Secretary with jurisdiction over the park areas and with our interpretation of the exemption, and held: Yes, this was transportation for hire by a person in the Washington metropolitan district, and therefore the compact had to be complied with. Mr. WRIGHT. I believe that you raised an interesting point and have served the Commission well by bringing this to our attention in order that we may determine what we wish the legislation to dowhether expressly to subject this to your jurisdiction, or expressly to exempt it.

If it were subjected to your jurisdiction, what would be the questions you would want to have answered from a concessionaire? What will be the area of your determination?

Mr. AVERY. Well, in the first instance, Mr. Wright, the first question that comes up is in the proceeding for a certificate of convenience and necessity. The question in that proceeding is: Is there a need for the service? Would the public convenience and necessity be usefully served by the institution of this service?

Mr. WRIGHT. Now, if the Congress directs in legislation that service of this type be provided, would this still confer upon you, in your judgment, a need to make a determination that there is a public convenience and necessity to be served? Would you be obliged to hold a judicial inquiry to find out whether or not it should be done if Congress has directed that it be done?