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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 BOYD. 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. KYROS. Thank you, Mr. Chairman.

I yield my time to the gentleman from Washington.

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?

95-385-65-17

Would you clarify it for me, please?

Secretary BOYD. Yes, sir. My answer is "Yes," to your first question. 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.

Mr. ADAMS. That's what you mean.

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 a 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 defect 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?

Secretary BOYD. Line 4, under section 6(a), on page 4.

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.

Secretary BOYD. We don't understand that this language requires a separate suit for each violation.

Mr. ADAMS. Well

Secretary BOYD. We will be glad to submit you a memorandum.

Mr. ADAMS. Could you give me a memorandum on that, please?
Secretary BOYD. Yes, sir.

Mr. ADAMS. As to which way you want it to go, and what you think, and if the language, there, you believe, is adequate.

Secretary BOYD. Yes, sir.

(For information requested see DOT letter dated June 18, 1968, p. 246.)

Mr. FRIEDEL (presiding). The gentleman's time has expired.
Mr. Keith.

Mr. KEITH. Thank you, Mr. Chairman.

Mr. Secretary, to what extent was this legislation, in its formative stages, discussed with representatives of the railroad industry, either labor or management?

Secretary BOYD. Do you want to comment, Mr. Lang?

Mr. LANG. If I might, Mr. Chairman, answer that. Mr. Keith, it was discussed in its formative stages on a couple of occasions with both representatives of the carriers and the brotherhoods.

Mr. KEITH. Would you briefly outline how that was initiated, and followed through? Were they given a draft of the original proposal, that was the result of a committee appointed by some executive in your department? What is the genesis of this statement?

Mr. LANG. No, sir; we did not give them draft language. We discussed draft language with them, and all of the substantive provisions of the legislation, at considerable length.

Mr. KEITH. Roughly, over how long a period of time, and how many meetings?

Mr. LANG. We had either two or three meetings with each group, over a period of a month or a month and a half, and this was followed by a lot of detailed draftsmanship by our staff in the Department, and also, other departments were involved in some of it.

Mr. KEITH. I don't want to take the time away from these gentlemen. who have been here earlier this morning.

I reserve the right.

Mr. FRIEDEL. Thank you very much. You are very kind.

Mr. Kuykendall is recognized for 5 minutes.

Mr. KUYKENDALL. Do you have any recollection of whether or not the brotherhoods gave you any suggestions as to the drafting of this legislation?

Mr. LANG. If I might, Mr. Chairman, yes, Mr. Kuykendall, they did. They gave us a number.

Mr. KUYKENDALL. Do you have any recollection as to whether you in any way followed any of these suggestions?

Mr. LANG. Yes, I think some of them were followed.

Since we used these matters with them before much of the detailed language was actually drafted, I can't say precisely, you know, which of the ideas were theirs initially, and which were ours. They did, how

ever, make a number of suggestions which we know that we did not follow.

Mr. KUYKENDALL. May I suggest that you check the record of testimony on this subject?

Do you have a rule of thumb as to roughly how much an employee costs your Department for a year? A high-level technical type of employee, like the ones you have put on this act?

Secretary BOYD. We can give you an average grade. We will be happy to provide it for the record.

(The information requested follows:)

Hon. HARLEY O. STAGGERS,

DEPARTMENT OF TRANSPORTATION,
FEDERAL RAILROAD ADMINISTRATION,
Washington, D.C., June 7, 1968.

Chairman, House Committee on Interstate and Foreign Commerce,

House of Representatives, Washington, D.C.

Dear Mr. CHAIRMAN: I am providing the following information on the average employee cost in the Bureau of Railroad Safety as requested during hearings on H.R. 16980 before your committee.

AVERAGE EMPLOYEE COST, BUREAU OF RAILROAD SAFETY, FEDERAL RAILROAD

ADMINISTRATION

1. Average salary__

2. Average total cost (travel expense, fringe benefits, and salary). Sincerely,

$11, 879 15, 720

A. SCHEFFER LANG, Administrator.

Mr. KUYKENDALL. Well, of course, there is more than salary. It costs more than salary to put a man on the payroll. I realize that.

To follow just a little bit on Mr. Brotzman, and here is one of the things that I think we need to clarify, I am not making an accusation here, because there is bound to be more than employees, because the first 2 years you have 53 man-years you are adding, for $11 million. That would come to $174,000 each, if that's all you were getting out of $11 million, so in other words, your answer to Mr. Brotzman's inquiry was never made at all clear as to what the $11 million for the first 2 years was going to be spent for.

I know it is going to be spent for something besides employees, and I would like to have that clarified.

Secretary BoYD. I would like to say, Mr. Kuykendall, Mr. Lang was responding to Mr. Brotzman, and Mr. Brotzman never got beyond personnel. I wouldn't want it to be inferred that we were not giving him an answer.

Mr. KUYKENDALL. I know

you were.

Secretary BOYD. The fact is, he ran out of time before he got to other objects.

Mr. KUYKENDALL. I was following him on his questions.

Now, would you turn, if you will, to Mr. Lang's testimony, in attachment C, in the back?

Mr. Lang, I know you have it.

There have been so many statistics quoted up here, and we are trying to figure out how to compare apples with apples, as to what the meaning really is.

Now, in this attachment, saying employee casualty rate per million man-hours worked, from all the tables that I have seen presented,

other than the fact that productivity has increased, I believe this would be about the soundest of the tables that I see, because to me, employee injuries and deaths are the most important single thing in the matter of railroad safety.

Now, we find here that, for instance, from 1962, to 1966, we have a slight decrease in deaths. Over the period, we go to figures like 12, 11, 12, 11.

In other words, for all practical purposes, from 1961 to 1966, there in no increase in deaths.

Is this correct, Mr. Lang?

Mr. LANG. That is correct.

Mr. KUYKENDALL. All right. Now, in injuries, we go just about the same type of figures. We had up in 1961, 1,189; went down to 1,158 in 1964; went to 1,205, and back down to 119.

Now this is for all practical purposes no change. Would you say this is true?

Mr. LANG. That is correct.

Mr. KUYKENDALL. Now, I would like to get your clarification of your statement, either Mr. Boyd or Mr. Lang, it doesn't make any difference, that you say a drastic increase in accidents as affects casualties for employees.

Does this chart substantiate your statement there has been a drastic increase?

Mr. LANG. I don't believe that we said quite that. We said there has been a drastic increase in train accidents, which is a related by separate set of figures.

Mr. KUYKENDALL. All right. Now, would you care to discuss the difference in how much railroad time or materiel that $750 would buy today, as compared to 1958?

Couldn't you say that today it would take about an $875 accident to be the same as a $750 accident in 1958?

Mr. LANG. I believed we addressed ourselves to that question in our original appendix.

Mr. KUYKENDALL. Yes. I would like to know.

Mr. LANG. In our original appendix, appendix A-3

Mr. KUYKENDALL. In your original statement?

Mr. LANG. In the original statement, yes, sir, and if you will notice. in column 4, there, we have computed and adjusted what we call an adjusted recording threshold.

Mr. KUYKENDALL. All right. Now, how did you adjust this?

I saw the "adjusted," but I never did-Is that an inflation adjustment?

Mr. LANG. That is correct, sir.

Mr. KUYKENDALL. All right. I don't believe any of us understood. this. I am very grateful that you did bring it out, because I asked the question the other day.

All right. What was the rate of your adjustment?

Mr.LANG. That is shown in column 3.

Mr. KUYKENDALL. Would you put it in layman's terms, so I don't have to figure it out?

In other words, 61 to a 100, is this your rate of adjustment?
Mr. LANG. That is correct.

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