Secretary BOYD. We will submit a response.

(The following information was subsequently submitted:)

DEPARTMENT OF TRANSPORTATION,

OFFICE OF THE SECRETARY, Washington, D.C., June 18, 1968.

Hon. HARLEY O. STAGGERS,

Chairman, Committee on Interstate and Foreign Commerce,
House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: In the course of my appearance before your Committee on H.R. 16980, the railroad safety bill, two items were requested for inclusion in the record. These items, which are enclosed, were:

1. A justification of section 11 (c) which deals with the protection of accident reports (attachment A).

2. A "Preliminary Report of Railroad Accidents and Resulting Casualties" issued by the Federal Railroad Administration in December 1967 (attachment B).

There are two other points I would like to clarify for the record. Mr. Brown asked why the provision assessing inspection costs against the industry, which appeared in section 15(b) of the gas pipeline safety bill as passed by the Senate, was not included in the rail safety bill. I am informed that section 15(b) was not proposed by the Administration. However, the Administration did not object to the provision since it was entirely consistent with existing user charge policies. Mr. Adams asked whether under section 6(a), which provides that in the case of continuing violations each day of violation shall constitute a separate offense, the Department would have to initiate a series of legal actions. Section 901 of the Federal Aviation Act contains an identical provision. The practice there is to file a single complaint containing separate counts for each day that a violation continues.

In your letter to me of June 5 you asked for clarification of the interpretation which we would propose to give the words "affecting interstate commerce" appearing in the definition of "rail commerce” in section 2(6). Specifically, you asked whether the Department intended to include "only railroad operations or anything that moves on a track or guide-way such as subways, street railways, and the like."

It is not the Department's intention to cover within the scope of section 2(6) everything that moves on a track or guide-way. Nor, as I indicated in my testimony, would we contemplate regulating the safety of urban subway or rail transit systems. However, if those systems operated across state lines, they would be subject to Federal safety regulation and would be regulated if the need were clear. The principal concern of the Federal Government is with safety in interstate, intercity rail operations, and with intrastate, intercity rail operations where the particular facts show that the operation is either "in" interstate commerce or clearly "affects" interstate commerce.

I would emphasize, however, that the purpose of the Administration's rail safety bill is to enable the Federal Government to be forward looking in its regulation of rail safety and thus anticipate, and, hopefully, correct safety problems before they result in accidents. For this reason, I believe it would be unwise to prescribe overly restrictive definitions which would provide none of the latitude necessary to deal with changing transportation systems, concepts, and technology.

Sincerely,

ALAN S. BOYD, Secretary.

ATTACHMENT A

USE OF ACCIDENT INVESTIGATION REPORTS UNDER SECTION 11(c) oF H.R. 16980 The provisions of section 12(c) of S. 1166, the Gas Pipeline Safety bill, provide that accident investigation reports may be used in litigation and that investigators shall testify, if requested. The Committee has requested the Department's reasons for proposing in section 11 (c) of H.R. 16980 that the use of accident reports be restricted.

Subsection (c) of section 11 provides as follows:

"No part of any report required of a rail carrier under this Act, or any report made to the Secretary by an employee of the Department, or any report of the

Secretary or the Board relating to any accident or the investigation thereof, shall be admitted as evidence or be used in any suit or action for damages growing out of any matter mentioned in such report or reports. Employees of the Board or Department who have engaged in the investigation of a railroad accident shall not give expert or opinion testimony concerning such accidents in any such suit or action. Factual testimony of Board or Department personnel on matters observed in accident investigation shall be required only where the Chairman or the Secretary initially, or the Court before which such suit or action is pending, determines that the evidence is not available by other means. Unless otherwise ordered by the Court, such factual testimony shall be taken only by deposition upon oral examination or written interrogatories, pursuant to regulations issued by the Secretary or the Board."

The subsection is based on § 4 of the Accident Reports Act (45 U.S.C. 41) and § 8 of the Locomotive Inspection Act (45 U.S.C. 33). These sections provide that neither the reports of the carriers, where required, nor the reports of the Government may be admitted into evidence or used for any purpose in any litigation arising out of the contents of the reports.

State and Federal courts have given heed to the provisions. In Louisville and Nashville Ry. Co. v. Stephens (1944), 298 Ky. 328; 182 SW 2d 447, a case involving an action against the carrier for the death of a fireman resulting from a boiler explosion, the carrier's report of the accident to the ICC was held not admissable in evidence. Similarly, the Yanick v. Pennsylvania RR Co. (D.C.N.Y. 1961), 192 F. Supp. 373, the court held that testimony embodying opinions of ICC investigators concerning the accident may not be used for any purpose at a trial growing out of the accident.

Copies of investigation reports published by the Federal Railroad Administration are available to the public on request. Copies of reports made by carriers are made available in accordance with the provisions of 49 C.F.R. 225.9. That section provides that before access to carrier reports is permitted, the requesting party must certify in writing that such availability will not result in violation of the Accident Reports Act and that the reports will not be used for any purpose in any suits on any matters mentioned in the reports.

Under § 220 (f) of the Interstate Commerce Act (49 U.S.C. 320(f)), accident reports required to be made by motor carriers, formerly to the ICC and now to the Federal Highway Administration, may not be admitted into evidence, or used for any other purpose, in connection with private suits growing out of these accidents. This prohibition has been implemented in 49 C.F.R. 294.1.

Safeguards are also taken by the NTSB and the FAA with respect to air accident reports and files. Section 701 (e) of the Federal Aviation Act of 1958 (72 Stat. 740, 781; 49 U.S.C. 1301, 1441) provides that:

"No part of any report or reports of the Board relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such report or reports."

This section has been implemented by the NTSB in its regulations (14 C.F.R. 435). These regulations provide that accident reports and underlying papers are available to Board employees for official business. However, employees have no control over these records or discretion as to their use. Section 435.3 of the regulations permit the release, by field supervisory investigators at any time during or after the investigation of the accident, of the following information: (1) Place and date of the accident;

(2) Make, model, identification mark, and registered owner or operator of the aircraft involved;

(3) Name and addresses of the crew and other occupants of the aircraft or persons injured in the accident; and

(4) Medical information on fatalities and injuries when factually established by physicians and hospitals.

The section permits the national office in Washington to release the following additional information:

(1) The names of witnesses and their addresses;

(2) Replies as to facts in answer to specific inquiries; and

(3) The portion of the file containing the factual data, but not the portion containing opinions, conclusions, evaluations or recommendations of Board or FAA employees.

While § 701 (e) applies only to Board reports, the FAA has adopted a consistent policy with respect to testimony of its employees as witnesses in legal proceedings

and with respect to the release and disclosure of FAA files and documents. 14 C.F.R., Part 185 sets out this policy. Section 185.5 provides that FAA employees may testify only as to facts in any proceeding not involving the Government as a party. An employee may not testify as an expert or opinion witness unless so directed by the court. The stated purposes of the rule are (1) to conserve employee time for official business, (2) to avoid criticism of the agency where the employees participate in controversial issues, and (3) to avoid spending the time of the United States for private purposes.

Historically, railroad accident reports have been expressly restricted by statute. We believe that the basis for the restriction remains valid at this time. Most accidents are initially investigated and reported on by the carriers. Usually, only selected accidents, involving serious injury and loss of life or considerable property damage, are investigated by DOT staff, and then generally, only after the track has been cleared and normal service resumed. Unlike accidents in other modes, train wrecks, unless quickly removed, can tie up an entire rail line and cause serious economic disruption in areas served.

We do not now, or in the foreseeable future, expect to be able to send staff investigators to the scenes of accidents within a short time, for example, eight hours. In addition, there is no way for the carrier to know that the Department will investigate. Consequently, we believe that it would be unreasonable to expect a carrier to allow a line which could otherwise be cleared to remain closed until the Department determined that an investigation should be made and a team of investigators dispatched to the scene. Consequently, a considerable portion of the information upon which an accurate evaluation of cause can be made remains solely within the control of the carrier. To insure complete objectivity in the preservation and transmission of this information, carriers and employees should be certain that their reports will not subsequently form the basis for adverse judgments in any litigation which may ensue.

The following excerpt from the Committee Report accompanying H.R. 3649, which became the Accident Reports Act, affirm this view:

"Your committee believes that if this bill passes and the authority provided in section 3 is given to the commission, thorough and careful investigations will be made, and as by section 4 of the bill (45 U.S.C. § 41) neither the report made by the company nor the report of the investigation made by the committee are to be admitted as evidence or for any purpose in any suit or action for damages, it will be possible to secure ful and complete testimony of all the facts connected with any given accident.

"As the reports of these investigations increase and the causes of accidents are established and made known, it will be possible for the commission to make recommendations to Congress with a view to the enactment of remedial legislation. The ascertainment by a disinterested commission of the causes of railroad accidents and the publicity given to the findings of such commission will have a beneficial effect throughout the country, and lead to the correction by the common carriers of such faults in management or defects in road construction or equipment as may have been found to be defective. It is in this particular that the legislation provided in section 3 is expected to be peculiarly valuable" (House Report No. 36, Dec. 14, 1909, on H.R. 3649).

The floor statement of Mr. Mann objecting to the removal of the provision is also pertinent:

"Mr. Speaker, I hope the amendment will not be agreed to. The proposition before the House is the matter of obtaining information in regard to railroad accidents for the purpose of avoiding accidents, and not for the purpose of helping personal injury claimants who may have lawsuits pending. It is not the duty or the province of Congress to provide either for or against the railroad or the claimant in a personal injury case, but what we want to have in this bill and in the next bill which our committee hope to call up are provisions under which we may avoid railway accidents. We want to get the railways to furnish freely the information in regard to the accidents, and to give to the Commission power to investigate the accidents. If the evidence taken under such circumstances or the reports made under such circumstances are to be admitted as evidence, we all know that we will not obtain the same degree of faithful proof and reports which we would otherwise" (45 Cong. Rec. 155).

ATTACHMENT B

DEPARTMENT OF TRANSPORTATION PRELIMINARY REPORT OF RAILROAD ACCIDENTS AND RESULTING CASUALTIES, DECEMBER 1967

This statement, issued monthly, furnishes preliminary accident report data as reported by all railroads in the United States without detailed examination or final corrections. Statement No. M-400, "Summary of Accidents Reported by All Line-haul and Switching and Terminal Railroad Companies," released at a later date on a monthly, quarterly, and annual basis furnishes these data on a corrected basis and in greater detail.

I Train accidents are those arising from the operation or movement of trains, locomotives, or cars which result in more than $750 damage to equipment, track, or roadbed with or without a reportable death or injury; train-service accidents are those arising from the operation or movement of trains, locomotives, or cars which result in a reportable death or injury but not more than $750 damage to equipment, track, or roadbed; nontrain accidents are those which do not result from the operation or movement of trains, locomotives, or cars.

Mr. ADAMS. Thank you, Mr. Secretary.
Thank you, Mr. Chairman.

Mr. FRIEDEL. Thank you.

Mr. Brown.

Mr. BROWN. First I would like to point out that the Secretary has interest in these questions, because he or some Secretary of Transportation will be administering these sections, I assume. And, for the record, we would like to establish what you have in mind as administration that relates to the language of the legislation as was submitted by your Department of the Congress for consideration.

And my aside to Mr. Watson, who, because everybody was making a clean breast of everything said here, and defending it, responded that the Justice Department submitted language which you weren't sure you could defend. I presume the Justice Department will not be testifying on this legislation, and you will have to be the person to defend the language.

Secretary BOYD. Yes, sir.

Mr. BROWN. Regarding the language, if it is to be defended, I would now like to ask some questions with relation to section 3(a) (2) and (3).

Am I to understand, under this language, that you will ultimately license some employees of the railroad, as some employees of the aircraft industry are now licensed?

Secretary BOYD. No, sir, we do not have that in mind.

Mr. BROWN. Well, I find that in conflict, Mr. Secretary, with the testimony of Mr. Lang when he appeared on this bill a few days ago. You do not have in mind licensing any employees?

Secretary Born. No, sir. I think it would be helpful if Mr. Lang expressed his views on that.

Mr. LANG. Except, Mr. Brown, in order to carry out the authority under section 10(b), where the Secretary would be authorized to authorize employees of the carrier to perform certain functions necessary to the carrying out of the regulations. What we have in mind, here, of course, specifically. are functions of inspection, examination.

Secretary Born. That is for carrying out the provisions of the act. Mr. LANG. That is correct.

Secretary BoYD. Not for operating the railroads.

Mr.LANG. That is correct.

Mr. BROWN. I am sorry that time does not permit me to look back in the testimony the other day to find

Secretary BOYD. That is covered in my statement this morning. Mr. BROWN. To find Mr. Lang's statement on the subject a few days ago.

Mr. LANG. Mr. Brown, if I might, I have looked through the record very carefully, and I think that my answers the other day were less than totally clear on this. We have tried to clear them up in what the Secretary said this morning.

Mr. BROWN. Mr. Secretary, would you have authority regarding the scheduling of trains under the language of this legislation?

Secretary BOYD. Certainly it never occurred to us. We don't relate scheduling trains with safety.

Mr. BROWN. Would you have the authority to determine the number of cars on trains?

Secretary BoYD. I think if it developed that there was a safety problem as a result of the number of cars, we would have the authority to issue regulations, yes.

Mr. BROWN. The load limits of cars?

Secretary Born. Yes.

Mr. BROWN. The speed of the cars?

Secretary Born. Yes.

Mr. BROWN. The staffing of the train?

Secretary BOYD. You mean crew consist?

Mr. BROWN. Yes.

Secretary Born. Yes, sir.

Mr. BROWN. The routing of the train?

Secretary BOYD. That I don't understand as being related.

Mr. BROWN. This doesn't have any bearing on safety?

Secretary BOYD. Well, I don't know. I can't answer that. The railroads and the brotherhoods would have to discuss that. I am not competent to discuss routing as relating to safety.

Mr. BROWN. Do you anticipate that the 19 men that you will hire, or the 44 men in the second year, will be competent to determine these matters?