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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.
Number of train accidents 1.
Injured. Passengers on trains: (a) in train accidents: 1
Injured. Employees on duty
2,458 24, 194
1, 824 5,411 2,684 25, 552 1, 782 4,073
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.
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 Boyd. 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 Boyd. That is for carrying out the provisions of the act.
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
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 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?
Secretary Boyd. I don't think that we are dealing in terms of competence, when we talk about hiring these people-we are not talking about in terms of their competence to make decisions on safety matters. We are talking about hiring these men to carry out the provisions of the law.
The question of whether or not something is related to safety will come about through either expressions by the railroad, by the brotherhoods, by those who live by the side of the railroad, or the people in the rail administration, who, any one of whom of these classes of people, may suggest there should be a regulation, at which time the procedures of the Administrative Procedure Act would come into effect, and there would be an opportunity for everybody to get his licks in, as a result of which we would find whether or not there was a safety relationship, and whether that relationship required a regulation.
Mr. KORNEGAY (presiding). The gentleman's time has expired.
Mr. BROWN. I ask unanimous consent, Mr. Chairman, to continue for 1 minute. Mr. KORNEGAY. Without objection, so ordered.
Mr. Brown. Mr. Secretary, is it my understanding that section 3(a) (3), covering qualifications of employees, would include the president of the railroad?
Secretary Boyd. That is an argument ad absurdum. This is no different than the regulatory authority of the Federal Aviation Administration, and nobody ever raised the question whether or not Juan Tripp or W. W. Patterson were qualified to operate the greatest airlines in the world.
Mr. Brown. Well, let's get down to a little more basic level. What about the man that takes tickets?
Mr. KORNEGAY. 1 minute has expired.
Mr. Brown. Could he answer the question? I got the question in, I think. Could I get an answer to it?
Secretary Boys. I don't know of any safety relationship to the tickettaking function, unless the man happened to clip his own finger, and we don't think that is within our purview.
Mr. Brown. I would commend Mr. Lang's testimony to you on both of these points, Mr. Secretary.
Mr. KORNEGAY. Mr. Kyros.
Mr. ADAMS. I thank the gentleman, and I would like to call the Secretary's attention now to section 6, which is the penalty section. · This section provides for both civil penalties and later for criminal penalties, and I would like to call your attention particularly to lines 9, 10, and 11, and ask you this. It says, "Imposition of any punishment under this section shall be in lieu of whatever civil penalty might otherwise apply."
I would like to know, is that section stating that if the criminal penalty under this section is applied, then you do not apply the civil penalty, which is listed above, in the section, or does this mean that if any punishment, either civil or criminal, is applied under this section, then no other penalty which might exist elsewhere in the law, in terms of injunction or anything else, would apply?
Would you clarify it for me, please?
Mr. Adams. It applies to-in other words, this section is all selfcontained, and we probably, then, should add an amendment, something to the effect that imposition of any criminal penalties under this section shall be in lieu of any civil penalty under this section? Is that it?
Secretary Boyd. Definitely.
Now, with regard to the amounts, and I turn now to the civil penalty section, which is in the top part of 6(a), I simply do not know, and am asking you as a matter of opinion if you think these penalties are adequate.
It says a civil penalty of not less than $250 nor more than $1,000 for each violation.
In the other acts, we have used a higher figure, and have used a continuing figure for each day in which the violation continues.
I notice you use a different system here. Would you explain why, and if you have a preference?
Secretary Boyd. Well, the $1,000 is the same as the language of the Motor Vehicles Safety Act. The $250 is carried over from the Safety Appliance Act, and both of them seem to us to be reasonable, in the context of this legislation.
Mr. Adams. Well, the reason I ask is under section 3 you have pointed out in your testimony, in support of your general regulatory powers under section 3 that you are recommending that we shift from a specific regulation system, which we have now, of saying, “You have got to put x brake on," and so on, to a general system of rules that you suggest and then administer.
Now, generally, in a general regulatory system, you use a penalty system that says: If you haven't replaced all of these brakes on this kind of train, or you haven't corrected this type of crossing defeet you will have a penalty of $1,000 a day, of $500 a day, until you do it.
Now, the other type of regulation, where you say, "Put it on," and he doesn't put it on, you charge him $1,000 for not doing it.
Would you explain to me the system here and what you have recommended ?
Secretary Boyd. Well, the sentence beginning at the end of page 4 I think covers this. “If the violation is a continuing one”.
Mr. Adams. Where was that again, Mr. Secretary?
If the violation is a continuing one, each day of such violation shall constitute a separate offense.
Mr. Adams. Well, now—there is a difference, because if you make each one, each day, a separate offense, you have got to have a series, a seriatim series of actions.
In other words, you are going to file suit, you are going to have to file suit for 15 counts for 15 days, each one with a possible penalty of $15,000, and so on.
Secretary Boyd. No, no.
Mr. Adams. The other one, if you convict, and he is doing it, and it continues, your penalty can mount.
I just want to know.