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I find it difficult to see any real practical difference between an affirmative certification and certification by refusal to remove them under the act.

In effect, you are really certifying these people?

Secretary BOYD. No; I don't think so, at all. I am not sure that I can give you a good analogy, but I would say that what we are saying is this: In order to get to the situation you raised in your question, there would first have to be the establishment of a standard. It would have to be established within the context of the Administrative Procedure Act, which by definition requires that it be reasonable, that it be related to safety, that the basis and purpose of the standards be stated. The rule might provide that all x-type employees, based on safety considerations, must have so many hours of training on a recurrent basis.

Mr. SATTERFIELD. And certain technical skills or background? Secretary BOYD. Well, not necessarily. I don't know. It might well be that.

Mr. SATTERFIELD. Well, let me ask you this question-

Secretary BOYD. But let me say if, in fact, there was an employee of a railroad in a position, doing that kind of work, who did not have that kind of training, and if the procedures had been followed, so there was no question in the minds of either the rulemaker or the court, in case of appeal, that this had a direct safety implication, then certainly that man ought not to be in that job.

Mr. SATTERFIELD. Well, let me ask you this question: Under the language of this bill, as it is presently prepared, do you believe that it is possible--I am not saying that you would, now, but is it possible that some successor to you in office might decide that certification for jobs is proper, and under the language of this statute he would have the right to certify?

Secretary BOYD. We don't think so.

Mr. SATTERFIELD. You wouldn't object to perfecting language to make it abundantly sure that you did not have that right, then? Secretary BOYD. No. I don't believe we would object. I don't think we see the value of it, but no.

Mr. SATTERFIELD. Thank you, Mr. Chairman.

Mr. FRIEDEL. Thank you.

The Chair recognizes Mr. Brotzman for 5 minutes.

Mr. BROTZMAN. Thank you, Mr. Chairman.

Mr. Secretary, I would like to use my time to straighten out the record in regard to one particular part of the bill.

I think that the dialog the other day before the committee went something like this. It may have been my question, and may not. We asked Mr. Lang about the figures in the authorization and it is my recollection that he said that these were not his figures initially.

His response was that they were not the figures from the Department, but I think, then, that Chairman Staggers corrected this, that these were in fact figures that had come from Mr. Sweeney.

Now, the reason I mention this is, I think you understand that when we go to the floor, this is always a matter of grave concern with regard to any particular bill. I know it is hard to balance dollars versus human lives, but in the interest of clarifying the record, and because this will be a question that will be asked rather frequently, I think, on

both sides of the aisle, can you now tell me if in fact this figure of $5 million authorization for fiscal year 1969 is a figure from your Department? Is that correct?

Secretary BOYD. Yes, those figures came from the Department.

Mr. BROTZMAN. And how about the same for the $6 billion figure? Secretary BOYD. Yes, sir.

Mr. BROTZMAN. O.K. Proceed with your answer.

Secretary BOYD. Well, I have answered.

Mr. BROTZMAN. All right. Now, can you tell us what the $5 million authorization you request reflects? How did you arrive at that particular figure?

Secretary BOYD. I would like to ask Mr. Lang to respond to that. Mr. LANG. Yes.

That reflects, Mr. Brotzman, the outside limit of the expense due to the addition of personnel who are present in the Bureau of Railroad Safety.

Mr. BROTZMAN. All right. We are talking about personnel. Additional personnel. What additional personnel do you contemplate will be required to administer the act?

Mr. LANG. Well, first and foremost, we would have to add some personnel to our present staff, in order to consider both potential new regulations and the problems associated with reissuing as permanent regulations those which would be established as interim regulations. Mr. BROTZMAN. We are not making any progress.

I know you will have to have some. I want to know what

to have.

you have

See, these are the questions they ask on the floor. Now, the question is, what do you have to have? You say "some." I want to know, what?

Mr. LANG. May I ask, Mr. Brotzman, that you explain to me what you mean by the word "What"? Numbers of people?

Mr. BROTZMAN. Yes.

Mr. LANG. Please recognize that these are preliminary estimates at this point. I can't lay my hand on the exact figure, but I believe it was an estimate of 19 people for the first fiscal year following the constituting of this bill

Mr. BROTZMAN. Just a minute. Nineteen people?

Mr. LANG. In addition to the present, the presently authorized strength of 247.

Mr. BROTZMAN. Now, I want to be sure I understand. Are these 19 additional people to be at the Department of Transportation headquarters? Is this what you are talking about?

Mr. LANG. The first year, they would all be at the Department of Transportation headquarters.

Mr. BROTZMAN. All right. That is 19. Right? And is that all for the first year?

I am not trying to put words in your mouth. I am just trying to get the record straight. Believe me, that is my only purpose in asking these questions, because these are the questions that come up, and it is our job to find out.

Mr. LANG. The estimates that we worked out came to 19 for the first year, and 44 for the second.

Mr. BROTZMAN. All right, 19 for the first year, and 44 for the second

year.

Mr. LANG. For the second year.

Mr. BROTZMAN. Where are these individuals going to be?

Mr. LANG. Twenty-three of that 44 would be the first additions to our field inspection staff.

Mr. BROTZMAN. Is the 19 included in the 44, or is this 44 in addition? Mr.LANG. No: that is total. 44.

Mr. BROTZMAN. All right, 44 in the second year; 23, I think 23, I think you said, were additions to your inspection team out in the field.

Mr. LANG. Yes.

Mr. BROTZMAN. All right.

Mr. FRIEDEL. Mr. Lang, I wish you would say "Yes." or "No." You shake your head, and the reporter can't hear the answer.

Mr. LANG. Yes.

Mr. BROTZMAN. Now, according to my quick calculations here, that would be 63 additional people in 2 years' time.

Mr. LANG. No, no. I am sorry. The 44 includes the 19 for the first year. It would be a net addition of 44 people after the end of 2 years, including the 19 added during the first year.

Mr. BROTZMAN. All right. Now, is that all that is encompassed in this $5 million authorization figure? And the $6 million authorization figure?

Mr. LANG. No. In the third year we estimate, and again I repeat that these are preliminary estimates, that a net addition, total addition of 69 personnel.

Mr. FRIEDEL. I am sorry, the gentleman's time has expired.

Mr. BROTZMAN. Thank you.

Mr. FRIEDEL. Mr. Adams?

Mr. ADAMS. Thank you, Mr. Chairman.

Mr. Secretary, it is a pleasure to welcome you to the committee this morning.

I want to ask you some questions on this bill, and make some comparisons with the pipeline safety bill, particularly in the area regarding admission of evidence.

Before doing that, I want to say first that I am not concerned about your publicly commenting on actions of this committee in which your Department will later be involved, and I assume at some time in the future you will probably be critical of some positions that I take publicly. I am pleased that the public is now aware of the great dangers we face in this area. If you do respond to the committee questions, which I am sure you will, as to whether or not something was drafted by your Department, I would like you to specifically comment at that time as to whether or not is was drafted as a service in response to a request of someone on the committee which I know the Departments will do from time to time, to aid in areas of technical legislation, or whether it was recommended to the committee as a departmental position.

There is a great deal of difference between the two, so if you answer, I would particularly like to know the answer to that question, Mr. Secretary.

Secretary BoYD. Yes, sir; I will try to give you a full report.

Mr. ADAMS. And I won't argue the details of the gas pipeline safety bill here, except that I understand you did publicly comment about some representations in the committee report that there could be a general application of rules under section 3 rather than specific individual actions which would mean that you would have a general power over pipelines already in the ground, which was a position many of us have publicly argued for, and I agree with you in your publicly stated position, and I think this position makes a great improvement in that section and we are very grateful that that has happened. I therefore won't bother you with the details on it.

Those of us who opposed the original language will have to decide at the time the bill is on the floor, whether to correct this section by legislative history based on the report or whether an amendment will be required.

I think this whole process is moving the country forward in this area of gas pipeline safety, and I think this is a fine display of how a committee and the Congress and the Administration can work to improve legislation by the honest and sharp debate that can occur, and I certainly expect you will participate in it.

Now, going particularly to this bill as it is compared to the gas pipeline safety bill, I would call your attention to section 11 which you commented on in your statement on page 3. This was an issue that we discussed at some length during the gas pipeline bill. This section involves the use of accident reports.

In the gas pipeline safety bill we used one method. You have set forth here in page 3 of your statement the fact that there should be different rules as to whether or not you can use accident reports in railroad cases. You have recommended in this railroad safety billand this is at line 7 on page 12 of the bill-a different system. So you won't have to fiddle with it there, among your papers I will read you what is says. It says:

"No part of any report required by any rail carrier under this act," and then it goes on, "shall be admitted as evidence or be used in any suit for action or damages."

I would ask you this question, first: We do not allow the use of these reports as formally being placed in evidence under either bill, do we? Secretary BOYD. No, sir.

Mr. ADAMS. And that is the general system used throughout the Federal Government with regard to this type of accident report, because of the dangers of hearsay, and so on. Isn't that correct?

Secretary BoYD. Well, they are not prohibited in the gas pipeline

bill.

Mr. ADAMS. No; we do not comment on them, but it is said therein that the reports can be used, but there is nothing said about their being used as admitted to evidence. That is, they need not be allowed by the court, or disallowed under the terms of the bill.

Secretary Boy. That is covered by the House committee report, where it comments that this is the province of the court, and not of the Congress.

Mr. ADAMS. Right, and I think that we can both agree that generally reports that contain hearsay statements or conclusions are generally not allowed in evidence without some type of business records rule or some other special rule of evidence being applied. Isn't that correct? Secretary Born. That is my understanding of the law.

Mr. ADAMS. Now, you indicate here that these reports could not be used at all, and I want to know whether it is the Department's position, and I agree with the evidence position, but I am sure I would prevent there being used at all, and I call your attention to the fact that under title 18, the criminal law sections of the United States Code provide that an employee can't release information unless it is allowed by some statute, and I wanted to know whether it is your interpretation and your position here that employees should not be allowed to reveal these reports, or their information, to individuals who come in and ask for them.

Secretary BOYD. I hope this is responsive, Mr. Adams.

The current practice, as I understand it, is that if someone seeks a copy of a report in this area, they must first sign a certificate that they do not intend to use it in a private legal action. On the basis of that certificate signing, the report is made available to them.

Mr. ADAMS. Can they use the information that is within the report? I am not quarreling about the report being used. I understand that. Let me ask you this question

Secretary BOYD. I would say that if they can't use the report, they can't use the information in it. However, one must bear in mind that where there is a plaintiff or a litigant dealing with a particular accident or incident, the great bulk of the information is available to anyone who pursues it. Therefore, when we get to the question of whether or not they could use the information, I think it would be an almost impossible job to say to a litigant, "You can't use this, because you got it out of this report.

The chances are that he could have gotten it elsewhere.
Mr. ADAMS. All right. Let me indicate the distinction.
Mr. FRIEDEL. The time of the gentleman has expired.

Mr. ADAMS. I ask unanimous consent to proceed for 1 additional minute?

Mr. FRIEDEL. No objection. All right.

Mr. ADAMS. Would you please and you can comment by memorandum, if you wish, so we won't take any more time--but in gas pipeline safety or in aircraft, we have allowed these reports to be used for information because in the general tort liability role when you alone are responsible for a situation and an accident occurs. In a gas or an airplane accident, where everything is destroyed you can be held liable unless you can show you weren't at fault. An heir will need some evidence to say this rule should apply so as to shift the burden of proof under this general tort theory that the man who has got control over the activity, and conducts the activity, and then everybody is killed and everything is all destroyed, then he is responsible for showing that he wasn't at fault, since he had control over the circumstances. I forget the Latin title for it.

Secretary BOYD. Res ipsa.

Mr. ADAMS. Res ipsa. Now, in a railroad accident, it may be different, because everything isn't destroyed, and you can use other systems of proof, and I would like a comment from your Department by memorandum as to what your position is on this section, with regard to whether we should use a different approach than in the gas pipeline or aircraft cases because res ipsa doesn't apply here.

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