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Mr. KORNEGAY. Is that, Mr. Lang, brought about as a result of failure to adequately and properly inspect and repair the tracks and the track beds ? Or is it brought about by increased speed or frequency of use, if you know?

Mr. LANG. I can't give you a definitive answer to that, Mr. Kornegay. But my judgment is that all of these factors have been at work in producing a deterioration in actual experience.

Mr. KORNEGAY. Well, the general reputation of the railroads has been that it has been one of the safest modes of transportation we have, and rightly so. They have their own rights-of-way, their own roads. They are certainly not congested, as are the highways. I can see the increase in the figures, and indications are that the increase is rather abrupt.

Thank you very much.
Mr. Lang. Thank you, sir.
Mr. FRIEDEL. Mr. Watson?
Mr. WATSON. Thank you, Mr. Chairman.
Mr. Boyd, there are just two or three questions,

You cited a moment ago the fact that there has been a rather substantial increase in the number of derailments and also in the number of collisions. I am sure in your studies you have gone so far as to ascertain whether or not this increase is attributable to, one, equipment deficiencies, or, two, employee negligence.

Would you give us those figures?

Secretary Boyd. We submitted in connection with Mr. Lang's testimony a series of analyses, which was identified as attachment B, to his testimony. And I believe that they cover pretty much the points which you have just raised. The figures show that during the period 1961 through 1966 the cause of accidents related to negligence of employees, as reported, rose from 1,225 to 1,999. For the same period of time, the cause related to defects or failures of equipment went from 1,474 in 1961 to 1,843 in 1966 with defects or improper maintenance of way and structure from 587 in 1961 to 1,428 in 1966.

There was an increase in all other causes from 863 in 1961 to 1,523 in 1966.

Mr. Watson. So that, interpreting your figures, the causes of these increases in derailments and collisions are about equal between equipment deficiencies and employee negligence, either in inspections or failures or omissions to act?

Secretary Boyd. I would say roughly the same.

Mr. Watson. All right, sir. Now the next question is, when we have a collision or derailment due to negligence of the employee, what does your Department propose to do about it; force the carrier to fire the employee? What action would you take?

Secretary Boyd. It would depend on the regulation. There is no way to generalize on this that I know, Mr. Watson. The employee, if he were found guilty of violating a regulation, would be subject to a civil penalty of up to $1,000.

Mr. Watson. And you would assess that against him? Is that the primary deterrent that you would have in mind?

Secretary Boyd. Yes, sir.

Mr. Watson. Would you allow that employee, after assessing the civil penalty against him, to continue? These are some basic questions that I think the employee should know about.

Secretary Boyd. Well, of course, the answer is going to depend on the way the regulations are drawn and the magnitude of the violation.

Now we are assuming that there is a finding of a violation, to begin with. It would seem to me that there might be major differences between violations; in the same way as there is between simple negligence and gross negligence. And it would also, I think, depend on what was the accident that was caused and what was the effect of the accident, as well as where did the accident occur, how many people were either directly involved or potentially in danger.

Mr. Watson. Certainly you have given it more than just casual thought. What do you think would remove the employees; simple negligence, gross, willful, or what? You have certainly thought about this?

Secretary Boyd. We don't have any authority to remove employees.

Mr. Watson. In other words, under this act, even though the accident may result in the loss of many lives, you would have no authority whatsoever to remove that employee, although the négligence of that employee was responsible for the accident?

Secretary Boyd. That is correct.

Mr. Watson. So as a basic matter, other than the simple penalty or what have you, you would not remove the cause so far is it relates to employees?

Secretary Boyd. That is correct; although, as I think Mr. Menk testified, the railroads are intensely interested in safety and I don't believe that they would be willing to ignore a situation which they thought jeopardized the operation of the railroad, regardless of what the Department of Transportation did or did not do.

Mr. WATSON. Of that I am convinced, and it leads me to the next question.

In view of these figures that you have cited, do you know of any recommendations that have been made either by your Department or by the ICC, to the carriers which they have not in good faith made an effort to implement?

Secretary Boyd. No. However, I should point out to you, Mr. Watson, that the great bulk of these accidents are in areas where the Department currently has not had any jurisdiction, therefore no authority nor any reason to know for itself what was involved.

Mr. WATSON. I am sure you have had some dialog or contact with carriers on a semiofficial basis rather than purely on the basis of the authority of power. I am sure Mr. Lang pointed out that you discussed even this legislation with them prior to it. What I want to know is, if all of this is so bad, why hasn't someone talked with the railroads about it to se if they can do something about it?

Secretary Boyd. I don't think there is any question but what we have engaged in many conversations with the railroads; and I don't think there is any question that the railroad people tell you that they, themselves, are concerned about their derailments particularly.

Mr. WATSON. All right, sir.

Secretary Boyd. And we have discussed this with them. I don't know that we have had any solutions for them. We were both aware of the problem and it has been discussed.

Mr. Watson. Now let's get down to some further statistics. Since you have looked into this and apparently have discussed it on a casual basis with the carriers, and I assume with the employees' representatives, what specific acts of employee negligence and equipment deficiencies have you found !

Secretary Boyd. Well, I just related the gross.

Mr. Watson. What was the actual negligence? You say it was due to employee negligence. What was that?

Secretary Boyd. I can give you categories. I cannot tell you that a particular accident occurred because an employee did not throw a switch; but the categories have to do with observance of signals and orders, the use of airbrakes, the use of handbrakes, the use of switches, and other uses including excessive speed; but I have no knowledge of any particular accident, Mr. Watson. I couldn't give you any information on any railroad accident.

Mr. WATSON. So far as you know, you are unaware of any recommendation which you, or even the ÍCC, have made on an unofficial basis to the carriers and/or to the employees that has not been implemented!

Secretary Boyd. That have not been implemented. I would like to ask Mr. Lang to answer this question.

Mr. LANG. Mr. Watson, I think I can give you a pretty clearcut example of an area in which recommendations have been made to the carriers in the past where some would say they probably have not followed them up.

These are recommendations that have been made specifically in connection with the formal investigation on our part or previously on the part of the ICC of a railroad accident as authorized by the existing Accident Reports Act.

Here a number of investigations have been made of accidents under that authority that involved collisions between trains and track motor cars carrying maintenance-of-way employees principally. In a great many of these accident reports the Commission, or more recently our Bureau of Railroad Safety, have pointed out in the recommendations sections of those reports that the carrier has either failed to create or put in force adequate rules, safety rules covering the operation of these track motor cars, or has failed to enforce these rules adequately. So that, accidents have occurred which in many cases are the result of man failures.

I think I might insert parenthetically that perhaps our use of the word "negligence” here is unfortunate. It shouldn't be given, I don't think, a legalistic connotation. I think it is probably better to speak here of man failures as opposed to equipment or track failures rather than employee negligence which connotes something a little bit more drastic than I think we are really talking about here.

Mr. Watson. Of course, I can understand the legal difference, but it is a failure in any event.

Mr. LANG. Yes, sir.

Mr. Watson. Somebody gave us a statement here that according to the preliminary report on railroad accidents and resulting casualties, I believe the report was issued by your Department

Mr. Lang. I am sure it was, sir. Mr. WATSON (continuing). Passenger fatalities on America's railroads were reduced by better than 50 percent in 1967. Is that correct?

Mr. LANG. I believe that is correct.

Mr. WATSON. And further that report indicated that the railroad has an outstanding record as the safest of all means of public transportation.

Secretary Boyd. Could you further identify that document, please, sir?

Mr. Watson. This is apparently a news service, Association of American Railroads, dated May 8, 1968.

Secretary Boyd. That is not our report.

Mr. Watson. Yes, but it says here, and I will read the first paragraph of it:

Passenger fatalities on American railroads were reduced by highlighting a drop in rail casualties in virtually all categories. The Department of Transportation preliminary report on railroad accidents * * *

I assume that that statement was issued on the basis of your report. Are those figures inaccurate?

Secretary Boyd. I don't question the accuracy. I don't know about them. We will have to get a copy of our report and make it available for the record.

(For data supplied see attachment B, DOT letter dated June 18, 1968, p. 249.)

Mr. Watson. I would hope that you will, and if this is not correct, I hope you will correct it.

Secretary Boyd. I don't question the accuracy of it.

Mr. Watson. Now Mr. Secretary, one of the recommendations of Mr. Crotty on page 20 of his testimony is that railroad workers should be entirely excluded from the sanctions of the proposed legislation. Do you agree or disagree with that?

Secretary Boyd. Well, we disagree with that. Our bill would not provide for that exemption. However, as I pointed out to Mr. Springer, the brotherhoods do feel that there is a practical problem of double jeopardy, that they might be penalized by the Government and by the company, and I think that is a real problem, no question about that.

Mr. Watson. Then certainly, wouldn't you recommend that we should look into that very carefully? Further, if you are going to exclude them, I would like to ask this question, and maybe Mr. Lang will be able to answer it.

As I understand it, the responsibility of the railroads is based on a respondeat superior doctrine and, if you are going to exclude or exonerate the servant, how can you get to the master especially in matters dealing with negligence of employees?

Mr. Lang. I don't understand your question.

Secretary Boyd. I don't understand your question, Mr. Watson, because we don't propose to exclude the servant.

Mr. Watson. That is right, but I say, if there is to be the exclusion of the servant, I don't know how you can exclude him, but, if you should exclude him, how can you hold the railroad responsible!

Secretary Boyd. We havn't given that any contemplation because we didn't intend to exclude him.

Mr. WATSON. Just one final question here in three points just so that we can nail this down. As I understood earlier, you said, that, in the event of a conflict between a regulation of your Department and the ICC, that your regulation would be paramount and it would override the ICC regulation.

Secretary Boyd. No, sir. That language appears on pages 4 and 5 of H.R. 16980. On page 4, line 25, clause (4), following a statement which says:

State may regulate safety in rail commerce, in a manner which does not conflict with any Federal regulation, in the following areas, the installation or removal of industrial and spur tracks.

Then it says:

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

This clause (4) relates to the abandonment of trackage. Mr. WATSON. That is right. In all other areas if there be a conflict, then your regulation will be superior over any regulation of the ICC.

Secretary Boyd. That is correct, sir. However, I believe that neither the Department nor the ICC are aware of any other areas of potential conflict.

Mr. WATSON. All right, sir.

Secondly, in the event of any conflict between the regulations issued by your Department and the FCC, which I understand now controls the communications features of the equipment used in rail transportation, which regulation would supersede the other?

Secretary BoyD. I have no idea. There is nothing in here which addresses itself to that question. The only thing I can refer you to, Mr. Watson, is in the Federal Aviation Act. The FAA regulates the safety of airways. The Federal Communications Commission regulates the height of towers and we just have to work these out on a one-by-one basis.

Mr. WATSON. Well, I think that we had better give some thought to that because there has been some evidence, as I recall here, of the questionable safety value of the various communications equipment in use on the railroads.

Secretary Boyd. I don't conceive of that as leading to a conflict between departmental regulations and the FCC, however.

Mr. WATSON. One final thing. In the event of the conflict between your regulations and any contracts entered into between employees and employers of the railroad, your regulation would override any employee contracts?

Secretary Boyd. Yes, sir. Mr. WATSON. Specifically override them? Secretary Boyd. Yes, sir. Mr. WATSON. And you are aware of the fact that as someone pointed out earlier, probably with the railroads, that you have had a number of adversary proceedings in this particular field.

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