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Then to make things even more confusing, section 2 states that the definitions therein contained are to mean what the definitions say "unless the context otherwise requires."
Just how or when and what person, board, forum or court would make this determination as to what the context may otherwise require presents at least to my mind an intriguing question but one that I am not able to answer.
While the definitions in section 2 present sufficient problems in themselves, those definitions as they are used in the context of section 3 of the bill become more involved, and the full scope of the bill, whether intended or not, becomes apparent.
By this section the Secretary is empowered and there is imposed upon him the duty to promote safety in rail commerce by prescribing and revising from time to time standards, rules and regulations.
While a complete understanding of rail commerce, as I have explained, may be difficult or impossible, the fact remains that, whatever it is, the Secretary is empowered and it becomes his duty to promote safety in that area.
Now, he is to accomplish this by prescribing and revising from time to time three specific things: First, he is to prescribe and revise from time to time minimum standards governing the use, design, materials, workmanship, installation, construction, and performance of rail facilities and equipment.
Now, I ask that you refer back to the definition of rail facilities and equipment as I have described it and when you do so you will find that rail facilities and equipment includes without limitation such things as any facility, building, property, device, equipment or appliance used or designed for use in rail commerce and any part or appurtenance of any of those.
Thus, the Secretary can, and he must, for example, apply this power and duty to railroad buildings including even the general office building and the Secretary has complete control over its use, its design, the materials that go into it, the workmanship on it, the installation of it, the construction and the performance.
Apply, if you will, this definition to any device or appliance and you may wind up with a computer and apply it, if you will, to any facility or property and you gentlemen may take your pick. Apply it to rolling stock and locomotives and the Secretary will control not only their use and their design but also the materials, workmanship, installation, and construction by their manufacturer, who will usually not be a rail carrier at all.
Apply it to rail and the Secretary will control the design, material, workmanship, and manufacture of rail by the steel industry and its use by the carriers.
While I could say much more about section 3(a) (1), I would like to move on to the second paragraph of section 3(a).
Under this section the Secretary's powers would clearly extend beyond the railroad industry itself and embrace a large area of the railroad supply industry.
Let me take, for example, a private car company manufacturing its own cars and leasing them to either railroads or shippers and, when necessary, receiving such cars back at its own facilities for maintenance, serving, repair, or overhaul. That private car owner would
be subject to the Secretary's jurisdiction in performance of such work including the frequency and manner thereof and the equipment and facilities used by him in performing the work; in other words, the plant itself and all machinery and equipment within the plant that might be required to perform the work.
Another example would be the overhaul of a railroad locomotive by the manufacturer thereof. Example after example could be cited but I think the point has been sufficiently made and may be summarized this way:
That any inspecting, testing, maintenance, servicing, repair, and overhaul of any rail facilities and equipment performed by anyone outside the railroad industry would bring such person and his equipment and his facilities under the jurisdiction of the Secretary.
Moving to paragraph (3) of section 3(a) the Secretary would be empowered to prescribe rules, regulations, or minimum standards governing the qualifications of each and all employees of the railroad industry insofar as their activities might, in the opinion of the Secretary, relate in any way to the safety in rail commerce.
As an extreme example, and perhaps I should say that maybe it isn't too extreme because I think when Mr. Lang was on the stand that a question along this line was asked and the answer was that the Secretary would, let's say, be able to pass upon the qualifications of any railroad employee including the chief executive, and I assume that it is quite possible that the Secretary might be of the opinion that a man from an operating or safety background would, let's say, make a better chief executive than would a man with the background of law or accounting.
As used in the paragraph that I have referred to, the terms "practices, methods, and procedures” of all rail carriers has no limitations and, when it is applied to any and all employees, the meaning of such terms become even more difficult to comprehend.
“Practices, methods, and procedures” to my mind would cover anything and everything that a railroad carrier might do and I suppose the standardization and procurement of even office equipment would be considered a practice, method or procedure.
Now this section 3(a) (3) will, in my opinion, inevitably involve the Secretary in matters that have heretofore been considered bargainable under the processes of the Railway Labor Act.
Many of the matters embraced within this paragraph have been bargained and have been included in labor contracts. The Secretary would be given the power to override such contracts and agreements and to impose his own terms and conditions.
I believe it is unnecessary for me to enlarge on this point and its mere mention should be sufficient to indicate the real scope of the proposed legislation that you are now considering; and I may say that later in my statement, when I discuss the submission made by the Railroad Brotherhoods, I will come back to this particular point.
Another undisclosed consequence that would follow from paragraph (3) of section 3(a) is one that we do not feel is as obvious to those outside of our industry but it is certainly obvious to us.
The Congress is thoroughly familiar with recent strikes, actual and threatened, by various groups of employees such as firemen and trainmen, in the name of safety; and past Congresses have spent many un
pleasant days contemplating such strikes or acting to prevent them or wondering what to do about them.
When strikes have taken place, management officials have usually been able to take over the operation of essential trains so that at least some of the necessities of national life can continue to be transported; but it is not difficult for me to envision under this bill rules adopted by the Secretary under this paragraph that-although adopted in good faith-might have the effect of disqualifying the management personnel who in the past have performed such essential services.
Section 3 of the bill does nothing to confine the Secretary or his agent in the exercise of the powers it grants. To be specific, it requires no hearing on any rule, regulation, or standard that he may choose to adopt.
The Administrative Procedure Act is the sole relief that anyone subject to his regulatory powers would have. But under that Administrative Procedure Act he need not conduct a hearing. He need simply announce a proposed rule in the Federal Register and receive written comment about it; and he may thereupon adopt the rule, reject the rule, or modify it after he considers such comments: but his action need not be based, nor is it required to be based, upon the comments that he has received.
Unfortunately, and I say that sincerely, rulemaking in matters of railroad safety has been for many years a battleground on which the differences between management and labor have been fought out and the clashes between the parties on safety rules are about as adversary as any lawsuit that you can possibly conceive. It is utterly unrealistic to regard these rule procedings as nonadversary.
In such matters it is essential that the preservation of the rights of the parties be provided for by the requirement of hearing and by the necessity of decisions based upon the record.
As I pointed out, section 3(a) empowers the Secretary to promote safety in certain ways by prescribing and revising rules, standards, and regulations.
Now, in our minds to promote something is to advance or elevate it; and we assume that any rules that might be adopted by the Secretary initially under this authority would in good faith be so designed, at least in his opinion, even though our experience later under that rule or regulation might disclose that it neither furthered nor did it evaluate safety. Indeed, experience might show that that rule could be completely modified or wholly done away with without any effect whatsoever on safety, and if that were done then efficiencies and economies would be achieved without safety being affected in any way.
From experience, however, if that situation should develop, we know what the results would be at least in the way of time. The Power Brake Act of 1958 adopted by the Congress over our protests proves it. When Congress was considering the Power Brake Act in 1957 and 1958, the AAR witness asserted and proved that railroad labor hoped and expected that the act would be a device to require shorter trains, hence a greater number of train and engine crews, and the hiring of more car inspectors.
In an effort to lessen this fear of our industry, Congress inserted a proviso in that law to the effect that the rules adopted thereunder
and any changes in such rules should be only for the purpose of "achieving safety."
Now compare the "achievement” of safety with the “promotion” of safety, if you will. When the railroads in 1959 proposed a minor change in the power-brake rules, indeed only exemption from one rule in specific circumstances, the Interstate Commerse commission held that under the language of the statute it had no authority to grant the request since safety would not be achieved thereby though it would remain or might remain unimpaired while efficiency was promoted.
After much legal maneuvering, including another petition that was denied for the same reason without hearing, the issue was brought before a U.S. court by the AAR in 1966; and, while that case was pending, the Commission vacated its order that was made the subject of the appeal, thus leaving the court nothing to adjudicate.
More than 6 months later, in March 1967, the Commission issued another order reversing its view of the law but the railway unions immediately filed for the reconsideration of that order.
The AAR filed a reply urging denial of the petition and a few days later, on April 1, 1967, the Department of Transportation obtained jurisdiction of this matter.
The question has remained with that Department for more than 13 months without any action by that body.
I feel obliged to mention the history of that proceeding in as much detail as I have because it clearly demonstrates to us that the promote” language of this bill could and would be seized upon just as the "achieved" language of the earlier law was; and our experience with the existing language of the Power Brake Act proves to us that there would be no quick or easy solution to the legal quibble that would inevitably arise.
May I go back now to the definition of rail facilities and equipment.
There are obvious conflicts of jurisdiction that would arise under this bill. As I have explained, the definition of rail facilities and equipment is such as would set up at least one clear conflict between the regulation of the Department of Transportation under this bill and the regulation of the Federal Communication Commission under the Communications Act of 1934.
Railroads have for years used various types of radio communications to assist in the performance of rail transportation under licenses and general authority emanating from the FCC.
In many cases the grant of such authority has been expressly for the purpose of maintaining or improving railroad safety in accordance with needs found by the FCC to exist.
Yet it seems clear to us that train radios along with almost every other imaginable device come within the definition of rail facilities and equipment as that term is defined in this bill.
The FCC has for more than 30 years had plenary jurisdiction over these matters. This definition, together with the broad powers related to it, would in effect negate that jurisdiction.
The Department of Transportation has no power to issue or refuse licenses for radio and would not have such powers even if this bill were enacted.
We feel that it is entirely possible therefore that the FCC would continue to issue as they have in the past railroad radio licenses in the
interest of safety only to have the DOT prohibit, modify, or limit the use of such licenses on the very same ground of safety but viewed in a different light.
Now, it may be asserted that the possibility of this kind of a conflict that I have described is so remote and fantastic as to be an unfair criticism of the bill but it is not remote, it is not fantastic, nor do we think it is unfair.
Such conflict now actually exists not before the DOT but in the State of Arizona. With the support of the Railway Brotherhoods, the Corporation Commission of Arizona now has under consideration a proposal to forbid in the name of safety use of mobile train radio in that State in connection with any ordinary train operation despite the fact that the use of such radio-in-train operation has been authorized by the FCC for railroads including those operating in Arizona on the express ground that it would promote safety.
There could be little doubt that if this bill were enacted this demand of the railroad unions would forthwith be transferred from the Commission in Arizona to the new tribunal of the Department of Transportation and would most likely be broadened to a national basis.
In addition to this conflict, there are others that might take place. The Department of Labor, for instance, has now under consideration certain safety regulations to be adopted in the interest of dockworkers and under the admiralty authority of this act. If adopted those rules would apply to certain railroad employees and operations in the port areas.
Section 4 of the bill deals with the relationship of State and Federal laws and regulations after this bill might become law. It is not clear from the language of the section whether there will be both State and Federal jurisdiction over certain areas or whether those areas will be left entirely to the States.
The bill provides that:
A State may regulate safety in rail commerce, in a manner which does not conflict with any Federal regulation, in the following areas and no others ...
It would seem from this language that there would be dual State and Federal regulation. However, at page 4 of his written statement the Federal Railroad Administrator said:
Section 4 of the bill reserves to the States the regulation of certain aspects of railroad safety.
And again at page 10 of his statement the Administrator said:
Under the legislation proposed here, they would continue to regulate in these areas of local concern, but they would be preempted from independent action in areas of national concern.
It appears to me then that the intent and purpose of section 4 is to leave with the States all safety regulatory authority with respect to, one, vertical and horizontal clearance requirements; two, all railroad highway grade-crossing matters; three, the speed and audible signals of trains operating within urban and other densely populated areas; and, four, the installation or removal of industrial and spur tracks.
If there is to be Federal regulation of the broad and sweeping nature provided by this bill, we do not understand the reason for these provisions of section 4.