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Mr. FRIEDEL. In that event you may proceed to read your statement Mr. Secretary, and it will not be necessary to insert your prepared statement.
Secretary Boys. Thank you, sir.
The Federal Railroad Administrator, Mr. A. Scheffer Lang, appeared before you last week to testify in my behalf on H.R. 16980, and the
This bill, which would substitute general administrative regulatory authority for specific statutory regulation, is essential if we are to reverse railroad accident trends.
Our previous testimony dealt with the provisions of the bill in some detail. The committee requested clarification of certain provisions, however, and I will comment briefly on these.
Section 5(b) of the bill provides that: Compliance with any standard, rule, or regulation, established under this act does not exempt any person from any liability which would otherwise accrue, except to the extent that the action creating the liability was specifically compelled by any such standard, rule or regulation.
This provision without exception appears in substantially the same form in the National Traffic and Motor Vehicle Safety Act. Without the exception, the purpose of this provision is to state the neutrality of the bill with respect to the issue of tort liability. Thus an act could not be defended against a charge of negligence solely on the ground that it was in compliance with or did not violate a safety rule.
To this extent the provision simply affirms the general rule of law that compliance with a legislative or administrative requirement will not prevent a finding of negligence where a reasonable man would have exercised greater care. For example if a safety regulation provided that a train should proceed across a trest le at a speed not in excess of 15 miles per hour, the regulation would afford no defense to a charge that a train going 15 miles per hour should have been going 5 miles an hour under the circumstances.
The exception was added at the request of the Department of Justice to cover a special circumstance. The special circumstances would arise when the precise act complained of as being negligent was directed to be done by the rulemaker. As an example let us assume that the Government issued a regulation that a train should cross a trestle at 15 miles per hour, neither more nor less. In that instance, the railroad could invoke the exception against a charge that in spite of the rule it should have been going 5 miles per hour. The purpose of the exception, of course, is to avoid requiring one who is regulated to act at his peril and risk either a charge of negligence or a penalty for violating a regulation. Apparently the Department of Justice has been involved in some cases where this issue was present, and believes the exception should be available.
A question was also raised with respect to the liability of the Government under section 5(b). The section does nothing to shift any liability which might otherwise exist from one to another of the possible defendants-the Government, a carrier, or an employee.
The Government's liability is governed by the Federal Tort Claims Act. That act exempts the Government from liability if the alleged negligence arises in the exercise of a discretionary function. Rulemaking and inspection activities generally fall within the discretionary
area. We are submitting a legal memorandum which deals more fully with both of these points.
Section 11(c) prohibits the admission in evidence of accident reports of the National Transportation Safety Board or the Department and prohibits employees of the Board or the Department from giving expert or opinion testimony concerning accidents. Factual evidence may be given when it is not available by other means.
The question was asked last week as to the inconsistency between this provision and section 12(c) of the Natural Gas Pipeline Safety bill. The latter permits the use of accident reports in any civil, criminal, or other judicial proceeding arising out of the accident without, as the committee report points out, intending to predetermine the admissibility as evidence of the accident report.
The laws on the admission of accident reports are not consistent. The Federal Aviation Act, section 701(e), the Interstate Commerce Act, section 220(f), the Locomotive Inspection Act, section 8, and the Accident Reports Act, section 4, prohibit the admission as evidence of accident reports. The Highway Safety Act, section 106, authorizes the admission of reports. In drafting H.R. 16980, we elected to prohibit admission because that was already the law in the railroad safety area.
There are two interests to le balanced here. One is the right of the parties to a lawsuit to obtain the evidence needed to support their positions. The other is the necessity to elicit all of the facts involved in accidents in order to prevent future accidents. These are very close issues of public policy about which reasonable men may differ. On balance, I believe our choice was correct.
Both labor and management witnesses have asserted that section 3(a) of the bill is too broad in its grant of regulatory authority. Both suggest narrowing the authority granted, but to different ends. The fact of the matter is that there is very little ground to stand on between a system of specific safety regulation by statute and general safety regulation by administrative process.
If we could predict sufficiently far into the future the precise objects and practices which should become the subject of safety regulation, Congress could legislate with precision and there would be little need for any delegation of legislative authority. By and large, this has been the practice followed in the rail safety area and it has proven inadequate to the task. The legislative process is simply not suited to dealing with a dynamic industry on a daily basis.
Broad delegations of safety regulatory authority are certainly not unprecedented. Section 3 (a) follows quite closely the regulatory framework of section 601 of the Federal Aviation Act of 1958.
In an equally broad rain, the National Traffic and Motor Vehicle Safety Act of 1966 directs the Secretary to establish "appropriate Federal motor vehicle safety standards." The act requires that these be practical, meet a need for safety, and be stated in objective terms. In a word, they must be "reasonable"—the same basic standard which all rulemaking must meet under the Administrative Procedure Act.
Numerous other provisions of H.R. 16980 have a counterpart in existing legislation or the gas pipeline bill which the committee has recently considered. The maximum civil penalty of $1,000 is consist ent with the Federal Aviation Act and the Motor Vehicle Safety Act. The minimum of $250 is consistent with the Safety Appliance Act.
The civil penalty compromise provisions are quite common and already exist in the aviation, motor vehicle, and maritime areas.
The criminal penalties for assault are identical to those in title 18 of the United States Code. The proposed $10,000 penalty for knowing and willful violations has no direct counterpart in title 18 but represents a judgment that willful violations of safety regulations should exact a substantially higher penalty than a nonwillful violation.
The provisions regarding injunctive relief in section 9 are the same as those in the gas pipeline bill. The same is true of the general powers in subsections 10 (a) and (c). Other general powers contained in subsections 10 (b) and (d) have counterparts in the Federal Aviation Act.
Section 8, dealing with the designation of an agent for service, is similar to a requirement in the Motor Vehicle Safety Act.
I think it fair to conclude that we have attempted to follow existing legislative policy as much as possible in developing H.R. 16980. Quite naturally, some departures have been necessary to cope with factors unique to the railroad area.
I will be happy to elaborate on any of these matters, Mr. Chairman, or attempt to clarify any other questions the committee might have.
Mr. FRIEDEL. Thank you, Mr. Secretary. We are going to adhere to the 5-minute rule. Mr. Springer, you are recognized. Mr. SPRINGER. Mr. Secretary, the thing I think that has intrigued this committee for the first time in a long time I can remember, that a bill has appeared before this committee with which neither labor nor management is happy.
There have been suggestions, so I understand, so informally, some 40 amendments by labor. Without any further information, I would guess probably management would have that or half that number.
If that is true, and we consider all of these, it will be long past July 9, which is the date which the Rules Committee has set for the last day to secure a rule.
This bill has appeared to members of this committee to be rather sweeping. Do you believe that in order to get safety, that you need all of these rules that you have set out in this bill?
Secretary Boyd. Yes, sir; that is our considered judgment.
Mr. SPRINGER. You mentioned the Federal Aviation Act. Are you talking about safety in the same manner which we prescribe under Federal aviation ?
Secretary Boyd. Esssentially, yes. The philosophy is essentially the same, except for the fact that aviation and railroads each has some unique aspects.
Mr. SPRINGER. Well, your regulation for aviation is far more stringent than it is for ground traffic. Isn't that right?
Secretary Boyd. Oh, that is quite true, and I am glad you asked that, because I do not think that this bill would lead us to regulating railroad traffic at all in the sense that we regulate air traffic.
It would certainly have the same impact, though, in that we would develop broad, industrywide safety rules.
Mr. SPRINGER. What do you have in mind, we will say, in the regulation of qualifications of employees?
Secretary Boyd. This is under section 3(a) (3) which gives the Secretary the authority to prescribe rules, regulations, or minimum stand
ards governing qualifications of employees. Such standards would include minimum physical, mental, technical, and training requirements. As in the motor carrier field, these could relate to vision, hearing, freedom from organic diseases likely to interfere with the same performance of duties, or excessive use of alcoholic beverages.
They could also relate to the ability to read and understand the English language, and a basic knowledge of rules and regulations relating to safety.
It is not the intent that this give us the authority to issue a Department of Transportation license or certaificate to, for example, each and every locomotive engineer or tower operator. It would give us the authority to require that carriers, where necessary in the interest of safety, provide proof that their employees are properly qualified.
While we don't seek licensing authority over individual employees we are asking for the authority to license persons to act in the Secretary's behalf. In carrying out his responsibilities under section 10(b), the Secretary is authorized to delegate to authorized persons certain functions relating to examinations and inspection and testing. Under this provision, the Secretary would, in a sense, certify or license railroad officials and employees to assist in the administration of regulations and reporting requirements.
This authority could be used to license rules examiners, mechanical inspectors, track inspectors, and others, under whose supervision the procedures required by the regulations are to be accomplished.
Mr. SPRINGER. What kind of authority presently do you have, under the safety transferred to you by ICC?
Secretary Boyd. The authority we have today is specific statutory authority.
Mr. SPRINGER. All right, now what is that authority?
Secretary Boyd. The Safety Appliance Act which prescribes Federal standards and regulations concerning power brakes, couplers, secure grab irons, handholds, ladders, running boards, handbrakes, and height of drawbars.
The Locomotive Inspection Act which requires locomotives to be in safe operating condition and authorizes the Bureau of Railroad Safety to inspect locomotives and order out of service any not in conformity.
The Ash Pan Act which requires locomotives to be equipped with ash pans which can be removed without requiring employees to get under the locomotive.
The Accident Reports Act which authorizes the investigation of collisions, derailments, and other accidents resulting in serious injury to person or property of the railroad. Carriers are required to file monthly reports of such accidents.
The Signal Inspection Act which provides authority to order installation of signal devices, and to prescribe rules and standards and instructions for installation inspection, maintenance and repair of such systems. The railroads must have Federal Rail Administration approval to materially change the existing signal system.
Mr. SPRINGER. All right, now, Mr. Secretary, at the present time, you don't set up any qualifications under the authority transferred to you from ICC for employees?
Secretary Boyd. No, we do not.
Mr. SPRINGER. Now you are asking for a broad delegation of authority in the field of who can be employed on railroads?
Secretary Boyd. No, sir, that is not correct. Mr. SPRINGER. Well, by your standards you are doing that, aren't you?
Secretary Boyd. We are saying that if this bill becomes law, we would then be in a position to require the employees of the railroads to have basic qualifications depending on the job and of course there is no intention that the qualifications would go to the total railroad activity.
Mr. SPRINGER. Do you mean those that do have something to do with what you consider safety, you have qualifications?
Secretary Boyd. With the rolling stock, yes, sir.
Mr. SPRINGER. All right, now I want to be sure, Mr. Chairman, that the Secretary is coming back. I have got a total here of 13 questions and I have asked one so I want to be sure the Secretary is going to be available for questioning because we have not even got started on these questions and I just want to make it clear, so there will be no misunderstanding that the Secretary does not get out of here without coming back to answer the questions which this committee propounds.
Mr. Secretary, on the first round, this committee has a rule of only 5 minutes. Later on, we interrogate until we get through, the second time.
Thank you, Mr. Chairman.
Mr. Secretary, as I recall, it was last Tuesday when Mr. Lang testified for the Department on behalf of the bill we have under consideration. At that time several of the committee had comments to make with reference to the speech that you made in Denver, back on April 10.
They were critical of some of the statements that you made during the course of that address. I was one of the members who participated in some of the comments that were made on that occasion, and I think it only fair to you to go back into it at this time, because I have always believed in not saying anything behind a man's back I would not say to his face.
Certainly, there was some degree of disappointment expressed by certain members of the committee over some of the comments that you made about the committee in Denver and more particularly about a bill that was recently reported out of this committee, namely, the Natural Gas Pipeline Safety Act.
You described that act, and the action of the committee as being meaningless, an empty gesture, a dangerous deception and a failure to protect the public interest.
Is that about the gist of your comments on that occasion? Secretary Boyd. Yes, sir; I think that is an accurate paraphrase. Mr. KORNEGAY. Now, I assume one of the criticisms that you had of the bill relating to the Gas Pipeline Safety Act was 5 (a). Is that right?
Secretary Boyd. I beg your pardon, siri