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Secretary BOYD. There is no question.

Mr. SPRINGER. All right. I just want to be sure that we understand what preemption there is and there is no misunderstanding about preemption.

Secretary Bord. There is none. I think there may be considerable misunderstanding about the intent of this legislation.

Mr. SPRINGER. Now, going to number four, line 2, page 5:

(4), nothing herein shall be interpreted to diminish any authority which the Interstate Commerce Commission may have to require its approval of such actions.

What do you have in mind?

Secretary BOYD. The purpose of that clause is to make sure that we are not by action in this legislation revoking any ICC authority. I have no knowledge of anything that would be involved, but we want to make it clear that this bill would not revoke any of the existing authority which the ICC may have.

Mr. SPRINGER. Suppose that the authority which the ICC has is different from yours. Which prevails?

Secretary BOYD. I have no idea.

Mr. SPRINGER (reading):

Nothing herein shall . . . diminish any authority which the Interstate Commerce Commission may have to require its approval of such actions.

Secretary Born. This refers, as you know, to clause (4), which has to do only with the installation and removal of industrial and spur tracks. I think this goes to the question not so much of safety as to abandonments which come within the area of economic regulation, and the ICC does have jurisdiction.

Mr. SPRINGER. What do you mean by:

Other State laws and regulations affecting safety in rail commerce will continue in full force and effect for a period of two years following the date of enactment of this Act, unless abrogated prior to that time by court order, State legislative or administrative action, or by regulations issued by the Secretary.

Secretary BOYD. I don't know. Mr. Tidd?

Mr. TIDD. The intent there, Mr. Springer, is that the State laws would remain in effect for 2 years, which would give the Secretary of Transportation time to develop permanent regulations. As those permanent regulations were promulgated through the Administrative Procedure Act processes, affected State laws would be repealed or abrogated by the superseding Federal regulations.

Secretary BOYD. In other words, the total preemption would take place within 2 years. But as the regulations were developed prior to that time, they would take effect when they had been developed and published.

Mr. SPRINGER. All right. Now let us just look at this. Here is an amendment which has been suggested:

Nothing in this Act shall in any way be construed or applied so as to abridge, modify, limit, supersede, or repeal any provisions of the Railway Labor Act or any agreements made pursuant thereto.

Do you have an objection to that amendment?

Secretary BOYD. Yes, we would, because we think that this is unnecessary. We don't think it accomplishes a safety purpose and there is no question. I think this must get back to the question of whether

or not a safety regulation can have anything to do with a contract, and it can. There is no question about it. It can.

We would object to that.

Mr. SPRINGER. Let me ask you this: In many contracts I think, even between labor and management, under the Railway Labor Act you have questions of safety which have been negotiated. You would not favor allowing that to remain with the parties?

Secretary BOYD. Well, let me put it this way. Under the Federal Aviation Act under the airline agreements with the pilots, the FAA requires two pilots as a safety matter on a number of planes. The airlines and the unions have agreements calling for three pilots, which the union, as I understand it, has required as a safety feature. We haven't abrogated any of that.

Mr. SPRINGER. Let me ask you about another. That amendment provides that acts or omissions of employees growing out of labor disputes would be exempt.

What is your position on that?

Secretary BOYD. This bill would not provide for that exemption. I do understand that there is a feeling that there might be double jeopardy involved here, not in legal terms but in practical terms, because of the feeling that the management would take punitive action in addition to that taken by the regulatory agency.

Mr. SPRINGER. I have just two more questions, Mr. Chairman.

The other day I asked about complete information on the economic impact of this bill. I still assume that such a study was made before this legislation was brought up here.

What do you have with you today on this subject?

Secretary BOYD. We have already submitted for the record, Mr. Springer, I believe in connection with Mr. Lang's testimony, a paper identified as "Attachment 2," labeled "Cost of Broadened Safety Regulations to the Railroad Industry."

It begins by saying it is not possible to estimate with any precision the net cost to the railroad industry and thus to the user of a broadened program of Federal safety regulation. Then it goes on to point out that there are areas of cost which may be significantly reduced by an expanded program. These are the reduction in the number and costs of permanent injuries, reduced damage to track equipment and lading, and improved reliability of operations due to fewer train accidents and permanent injuries.

On page 2 we say that $10 million to $30 million annually spent on more frequent and closer inspection procedures would in themselves produce the most significant improvement in railroad accident experience, and we relate that to the experiences which the industry now incurs in maintenance of way and maintenance of equipment, which in 1966 was $3,100 million total or about 30 cents on the gross revenue dollar of the areas covered by this bill.

Mr. SPRINGER. Mr. Secretary, suppose that your regulations come along and state that there ought to be a different kind of a box, we will say, on the railroad boxcar. Does this mean that every single boxcar in this country has to have that kind of equipment on it?

Secretary BOYD. A different kind of a box?

Mr. SPRINGER. We will say so, a hot box.

Secretary BOYD. No; I don't think so.

Mr. SPRINGER. Well now, let me ask this. I want to find out what is retroactive and what is not retroactive. Are these regulations retroactive as to all equipment? If you are limiting this to safety-and I am taking your word that that is what you are doing-you are still talking about all equipment, are you not?

Secretary BoYD. Yes, sir.

Mr. SPRINGER. This means like the pipeline that we were talking about last week, which, if it is retroactive, it picks up all pipeline. This picks up all equipment, right?

Secretary BoYD. Yes, sir; and it is entirely possible that, if it were ascertained that a certain kind of journal was unsafe at certain speeds, that there might be a requirement for a slow order on any trains operating with that type of journal.

Mr. SPRINGER. All right. I just want to be sure that I know what "all equipment" covers. The reason I raise this is because I did do it in the Automobile Safety Act. And, of course, everybody said no cost, not to cost anything. And, lo and behold

Secretary BoYD. That was not the statement of anybody testifying for the administration.

Mr. SPRINGER. Well, let me say this: They didn't give any figures. That is what I am talking about.

Secretary BoYD. Well, it is utterly impossible to give finite figures. Mr. SPRINGER. In that one it was Mr. Secretary. It would be very easy to figure up what those would cost, the seat belts. This comes between $100 and $150 per car.

You can find all sorts of holes for auto safety. But if I had asked in my district, "Do you want these auto safety bills," it wouldn't have gotten 2 percent of the people. This is the point I raise. Are we coming back next year with railroad rates raised?

I am trying to find out now, just as I did in the auto safety billand I am trying to find out whether you estimate that these costs are going to be sufficient to produce a raise in rates.

Secretary BOYD. Let me point this out. You know there has been a lot of argument over statistics.

Mr. SPRINGER. You can find all kinds of things. We are trying to get the best opinion we can.

Secretary BOYD. Let me give you some statistics which are indisputable: that between 1961 and 1967 the annual number of derailments increased from 2,671 to 4,961. In the same period, 1961 to 1967, the annual number of collisions increased from 982 to 1,522.

Now, I woud like to say, without being able to give anybody a figure, that if through the regulatory process and safety we can help to bring down the number of these derailments and collisions, we are obviously going to bring down the costs. The railroad industry cannot stand here and tell you or anybody else that these things aren't costing a lot of money. They are costing a lot of money. They are draining them.

Mr. SPRINGER. There is no question, but what I am trying to find out is whether what you are talking about is going to cause a rate increase. This is what I am asking, and you don't seem to be able to give an

answer.

Secretary BOYD. I have no doubt, Mr. Springer, that if this legislation becomes law, the next time the railroads go before the ICC seeking a rate increase, regardless of what the facts turn out to be, they will

say, "Because of all these bureaucratic safety regulations that the Department of Transportation has imposed on us, we have to raise rates."

Mr. SPRINGER. But you wouldn't give the industry credit for good faith?

Secretary BoYD. Sure, I give them credit for good faith, and they will believe it. They will believe it, but, believe you me, if anyone wants to do a hatchet job on some of the other statistics which they have presented to support a rate increase, it can be done, and it can be done objectively. But I don't question that they believe them.

Mr. SPRINGER. Of course, as for statistics, for instance, we passed a safety bill last year. From the best information I have in trying to follow it closely, more people are being killed thus far in the year since we passed it than were killed before.

Secretary BOYD. That is absolutely incorrect.

Mr. SPRINGER. What were the figures?

Secretary BoYD. The figures were 53,000 in 1966 and 53,000 in 1967, and the exposure had increased by about 10 percent in 1967 over 1966. Mr. SPRINGER. You mean the number of automobiles on the road? Secretary BOYD. The number of automobiles, the number of miles driven, the number of people in the automobiles.

Mr. SPRINGER. Are the same?

Secretary BoYD. No, no. I mean they were 10 percent higher in 1967 than they were in 1966.

Mr. SPRINGER. All right. I am glad to have that information. I will watch it closely over the next 5 years.

Mr. WATSON. Will the gentleman yield at that point?

Mr. SPRINGER. Yes.

Mr. WATSON. You don't attribute that to this particular act. Don't you give credit to some of the safety programs that States have sponsored, or do you attribute it to the Automobile Safety Act?

Secretary BOYD. I wasn't making any particular attribution, Mr. Watson. I was merely pointing out that Mr. Springer's understanding was not related to what in fact had happened. As I understand it, his point was that they passed the safety legislation for automobiles and it didn't improve anything.

Mr. WATSON. Do you know of anyone having the facts to show what percentage of the reduction is directly attributable to the Automotive Safety Act?

Secretary BOYD. Yes. There are two that I can point to as concrete items. One is the collapsible steering wheel. This didn't reduce the number of accidents. It reduced the number of fatalities.

Mr. WATSON. Of course, the collapsible steering wheel I assume is the energy absorbing steering wheel.

Secretary BOYD. That is correct.

Mr. WATSON. It was well along in development and usage prior to

passage

Secretary BoYD. No, sir.

Mr. WATSON. But it was in development and usage prior to the passage of the act?

Secretary BoYD. No, sir. It was not in usage.

Mr. WATSON. I will have to refer to my colleague from Michigan, but I thought they were in use prior to the passage of the act.

Secretary BOYD. If you will check the testimony, you will find that it was impossible according to the statement of the automobile manufacturers when they testified in early 1966, I believe and I may be wrong on my date-to put this into general use on the automobile. Now, in fact, what you say is correct in terms of development. They started developing this in 1957, so that it has been in the process of development for a good many years.

Another point I would like to make and would be glad to furnish this. committee with figures and testimony of Dr. Nahum, who is. I think, accepted as the outstanding expert in his particular area, is that the new type windshield we required has had the effect of saying innumerable lives, so that I have no apologies for the beneficial effect of the motor vehicle regulations whatsoever.

As to whether it is worthwhile is something else, because it is going to be up to each individual to put a price on human life.

Mr. SPRINGER. I have just one further question.

Mr. Secretary, it is my understanding in this bill that when you get ready to put rules and regulations into effect, you put them into effect and ask for comments. Is that correct?

Secretary BOYD. NO.

Mr. SPRINGER. How do you go about this?

Secretary BOYD. Now, bear in mind we are not talking about the interim regulations, because those are regulations which are already in effect. We are talking about the development of a new regulation. Let us suppose that for whatever reason the Department feels there are medical and safety reasons which indicate that there might be a cutoff age for an employee in a particular type of work. What would happen would be that the Department would publish in the Federal Register a notice of proposed rulemaking giving notice to everybody who might have an interest that the Department was considering a regulation which would say that employees carrying out "X" type of work must be under 70 years of age. The Federal Register notice would set forth a time and place for receiving comment over a 30-90 day period of time.

All comments received would be evaluated. Then the Department would issue a final regulation.

Mr. SPRINGER. After hearing, is that right, or after notice?

Secretary BOYD. After notice.

Mr. SPRINGER. Let me ask you this. On page 7, line 13:

Whenever practicable, the Secretary shall give notice to any person against whom an action for injunctive relief is contemplated and afford him an opportunity to present his views. . .

Is there a reason for using the words "whenever practicable"? Secretary BOYD. This is standard language. We can provide you with something for the record.

Mr. SPRINGER. "However, the failure to give such notice and afford such opportunity shall not preclude the granting of such relief." Secretary BOYD. That is also standard language.

Mr. SPRINGER. Do you think that is good language?

Secretary Boyn. Sure it is. If there is a reason to seek injunctive relief, I do not think that it should be made impossible because it happens to be a holy day or a weekend or something, because injunctive relief is not a normal course of business to begin with.

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