Mr. BROWN. I think the gentleman from Washington misses the point. The point is that the language of the legislation in controversy was drafted by the Secretary's Department, and all of us on the subcommittee are aware of that. Now, it is one thing for the Secretary's Department to draft language with which he disagrees. I think that is an administrative problem for the Secretary. But it is another thing for the Secretary to criticize the committee for adopting language which his Department suggested. Mr. ADAMS. I would just reply to the gentleman, this was never represented to me, in committee or otherwise. Mr. BROWN. It may not have been, but as a member of the subcommittee, I can assure the gentleman that that is exactly where the language came from. Mr. ADAMS. Then the gentleman of the subcommittee who brought it up should have so stated to the rest of us. Mr. KORNEGAY. As I recall, it was stated in the full committee. Mr. FRIEDEL. The Chair recognizes Mr. Van Deerlin. Mr. VAN DEERLIN. Thank you, Mr. Chairman. I just want to say that I think the Secretary has shown considerable stature in the attitude that he has taken this morning. It is possible to find a friend in disagreement, and to feel that the friend made a mistake. I consider the Secretary a friend, and I consider that he made a mistake, and I just want to say that I am very happy he delivered that speech in Denver, instead of San Diego. [Laughter.] Secretary BoYD. Mr. Chairman, I would like to provide for the record, in either this hearing, or if not possible, in connection with the natural gas pipeline bill, what are the facts as to whether or not my Department drafted the language. I think this is a fairly crucial point, and I would like the opportunity to present the facts for the record, as I am able to ascertain them, when I go back to the Department. Mr. FRIEDEL. Well, I want to tell you it would not be very timely to submit it for the record, because we are hearing another bill, but because it was brought in, that remark will be included. Secretary BOYD. Thank you, sir. Mr. FRIEDEL. The Chair recognizes Mr. Nelsen. Mr. NELSEN. No questions, Mr. Chairman. Mr. FRIEDEL. Mr. Pickle. Mr. PICKLE. Mr. Secretary, it is always good to see you here, even when there are matters of controversy. If it wouldn't be out of order, I would like to ask you a question about the railway safety bill. [Laughter.] Last week, in the hearings, I raised a question about the definition. of the word "railroad," and it says it means any contrivance now known or hereinafter invented, used or designed for operating on or along a track, monorails, or guide rails. My concern was that this gives, by definition, jurisdiction to a Secretary from now and forever on inventions that perhaps are not even known or heard of. Now, do you care to comment whether you think it should be this broad, and should include inventions now, hereinafter, to be invented? Secretary BoYD. Yes, sir, quite clearly. At the time the Air Safety Act was adopted, in 1926, there was no concept of a supersonic transport, much less a hypersonic transport, which will have hardly any of the vestiges of the airplane except that it will start in the atmosphere, on the surface, and it will land in the atmosphere, on the surface. Under the existing law, the Federal Aviation Administration will have the power to issue safety regulations pertaining to the construction, operation, and maintenance of a hypersonic transport. Mr. PICKLE. Should there be, if this jurisdiction is kept in the bill, with reference to safety-that is the key word-if that is kept in the bill, should there also be language in that measure that says that this is subject to a finding of fact of some kind, by some board, or some group, so that we will say a railroad has some means of protecting itself, or preparing itself, in the event that this jurisdiction was extended? Now, in the air, on noise abatement measures, this is in the language, there must be a finding of fact that it must be economically feasible, and other factors. Now, why wouldn't language like that give some protection, we will say, to a railroad? Secretary BoyD. Congressman Pickle, if I understand, the Administrative Procedures Act provisions pertain to the establishment of these regulations, and those require that the basis for and purpose of the rule be stated, in effect findings of fact, and there is also a provision for judicial review. I believe that Mr. PICKLE. Mr. Secretary, I am not an attorney. I don't know. I am advised that the Administrative Procedures Act does not pertain to these standards, and even with respect to judicial review, as I recall, only with respect to the interim standards. Is that correct, or not? Secretary BoYD. No, that is not correct. That is absolutely incorrect. Mr. PICKLE. Well, which point is incorrect? The whole statement? Secretary BOYD. Yes, sir. Mr. PICKLE. All right. Then you are saying that the Administrative Procedures Act does pertain, and therefore must be a finding of fact before this can be put into effect? Secretary BoYD. Yes, sir. Mr. PICKLE. All right. Well, my concern, Mr. Secretary, is that surely we should address ourselves to the matter of safety. We must be for safety, and try to come up with a reasonable bill. Secretary BOYD. Yes, sir. Mr. PICKLE. And I hope if we do, we won't find ourselves subject to attack again that we have been going against the public interest, because we do try to do the best. What we ought to be doing is finding ways, in this particular bill, how we can improve railways, railway transportation, through demonstration projects and any other means, rather than to be pulling back on technicalities, about the way the measure is written. This is our great need, rather than to be concerned over the language of the law. Secretary BOYD. Yes, sir. Mr. PICKLE. I take the same view with respect to the natural gas pipeline bill. It may not be all everybody wants, but it was the opinion of the big majority of this committee that it was a good bill, and we hope to come out also with a good bill, not subject to attack. Secretary BOYD. May I say, Mr. Pickle, in connection with the Administrative Procedures Act, it will not apply to the interim standards, because that is merely the application of the existing requirements. It doesn't change anything except to move them into this new act. Mr. PICKLE. You think that the interim standard Mr. FRIEDEL. Your time has expired. Mr. PICKLE. Thank you, Mr. Chairman. Mr. WATSON. Thank you, Mr. Chairman. Mr. Secretary, I want to say initially that certainly you were within your rights to criticize this committee as you did out in Colorado. I was taking the position earlier with your assistant, Mr. Lang, that I think we should look at this bill very carefully and make sure that we do not subject ourselves to some of the criticism of our procedure in public in the future. Would you say, Mr. Secretary-I am sure you gave a lot of study to this measure before your recommended it-would you state briefly some of the deficiencies, either equipment or employeewise, which gave rise to the request for such sweeping powers as you have requested in this legislation? Specific deficiencies, either in minimum standards for employment, employees, or equipment? Secretary BOYD. All right, sir. Dealing with employees, there was a finding of negligence of employees leading to accidents in the following categories and in the following numbers: Observance of signals and orders, in 1961, there were 136; 1962, 126; 1963 Mr. WATSON. Now, Mr. Secretary, if I may interrupt at that point, you say that you have had these findings of deficiencies so far as failure to do what, now, to obey orders? Secretary BOYD. Negligence in observance of signals and orders. Mr. WATSON. All right. Secretary BOYD. That is category 1. I have several others. Mr. WATSON. All right. Now let's take them one at a time. How would this bill rectify that particular deficiency of negligence of employees? Secretary BOYD. It is entirely possible, Mr. Watson, that it might take, and I think for all of these, requirements establishing qualifications for the job. I don't know. I am not familiar with these individual cases. Mr. KUYKENDALL. Will the gentleman yield for just a moment? Mr. KUYKENDALL. He is quoting out of Mr. Lang's statement of last week. It is attachment B. Mr. WATSON. I will yield to you. Mr. KUYKENDALL. I just wanted to point out where he was reading, so we all had it in front of us, so we could refer to it. Mr. WATSON. All right, sir. Well, then, we have his figures apparently before us. But specifically, how would this legislation rectify these deficiencies which exist? Secretary BOYD. Well, I can't guarantee and don't presume to indi cate that this legislation or any other legislation is going to eliminate accidents. It is our feeling, however, that looking at the total picture, the establishment of a comprehensive, reasonable set of railroad safety regulations, dealing with the operation of the train, and the train in its environment on the maintenance of right-of-way, and the maintenance of the equipment, will tend to reduce accidents. But we can't give you any guarantee, Mr. Watson, under any set of circumstances. Mr. WATSON. Well, I was just wondering, specifically, what you had in mind as to how you might rectify these things. Just the mere passage of broad, sweeping legislation and giving you regulatory authority-I just wondered, specifically, how that would rectify them. In other words, have not you called these matters to the attention of the railroads, and have they not made corrective steps, in trying to eliminate the so-called negligence of employees? Secretary BoYD. Well, as you know from the testimony last week, Mr. Watson, there is a great deal of room for argument over what the statistics mean. Mr. WATSON. Yes, sir. Secretary BOYD. As we read the statistics, they mean to us that the accident rate has been going up, year after year. Now, as to whether or not these have been called to the attention of the railroads, the fact of the matter is that the railroads report these to us. This is the basis for our information. Mr. WATSON. All right, sir. Well, have you not made suggestions to the railroads as to what they might do to correct these particular situations? Secretary BOYD. Yes, sir. Mr. WATSON. Let's get down to some of the specifics of this legislation, here. On page 2 of your testimony you cite an example which might apply to the exception under section 5(b). You cite the example that perhaps you might issue a regulation that a train should cross a trestle at 15 miles per hour, neither more no less. Is there such a provision in the regulations or the laws now? Isn't that a little farfetched? Can you give me another example? Secretary BoYD. No, sir; that is as close in as we could be to try to find an example of where this exception might operate. Mr. WATSON. In other words, you would conclude that you might specify that they cross at 15 miles an hour, no more nor less, and that, if a train came along and crossed it at 5 miles per hour, perhaps they would be in violation of your regulation. Is that it? Secretary BOYD. That is a purely hypothetical circumstance, to try to explain what is intended by this exception. Mr. WATSON. And it is rather unrealistic; isn't it? Secretary BOYD. Yes, sir. Mr. WATSON. Very unrealistic. Secretary BOYD. Yes, sir. Surely. Mr. WATSON. But we are trying to deal here with realism, rather than pure hypothesis. Let me ask you this. Suppose you issue a regulation that no radios will be used. Then we have a wreck, in the absence of a radio. Would that be a valid defense, to the railroads? Secretary BOYD. Well, it seems to me that that is probably as unrealistic as our 15-mile-an-hour example. Mr. WATSON. That's the problem we have. We are dealing all up in the air, on things that probably wouldn't happen, here, and I agree with Mr. Springer. We have got a number of questions we would like to ask you, and I hope that we will have the opportunity. Secretary BOYD. Let me reiterate, Mr. Watson, that this provision was included at the instance of the Department of Justice. This was not something that we tacked on the bill, and the Department of Justice, unfortunately, did not provide us with examples. Mr. WATSON. Well, I appreciate that fact, but my sentiments were expressed in an aside by one of my colleagues from Ohio, when he said just because the Justice Department recommends it, this is no particular endorsement, so far as he is concerned. Mr. FRIEDEL. The time of the gentleman has expired. Mr. Satterfield. Mr. SATTERFIELD. Thank you, Mr. Chairman. Mr. Secretary, I would like to refer for a moment to a question Mr. Pickle asked, concerning application of the Administrative Procedure Act. I am aware this bill specifically states that for interim standards. it would not apply. Would you point out for us, please, the sections in this bill that state that it would apply with respect to permanent standards, and that judicial review would apply? Secretary BOYD. It applies by its own terms. Mr. Satterfield-the Administrative Procedure Act. Mr. SATTERFIELD. Well, my recollection of the gas pipeline safety bill, is that specific language was submitted in that instance to specifically include it. Is there any reason why it was omitted here? Secretary BOYD. We have no objection to it being included. It is not necessary, but we have no objection whatsoever to its being included. Mr. SATTERFIELD. I notice in your report, in reference to section 5(b) of the bill, you state that a legal memorandum will be submitted. Do you have any idea when we might expect that? Secretary BOYD. Today. Mr. SATTERFIELD. Thank you. I have one other point that I want to address my remarks to, and this has to do with standards with regard to qualifications of employees. Assume that after this act goes into effect, you find that an employee occupies a job for which the standards hold that he is not qualified. Would you have the right, then, to demand that he be removed, or transferred to some job for which he is qualified? Secretary BOYD. The answer is yes. Mr. SATTERFIELD. Well, I understood you to say a few minutes ago that you did not believe that this language would give you the authority, and certainly you wouldn't exercise the authority of certifying people for jobs. Secretary BOYD. To do what? Mr. SATTERFIELD. To certify people for specific jobs. |