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:

A 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 Bord. 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.

As I recall, in the matter of the hours of service regulation, I believe that one of the principal reasons for advocating that was a safety factor.

Secretary BoYD. That is not covered by this legislation, Mr. Watson. Mr. WATSON. And you would not intend to include that? Secretary BOYD. This specifically excludes it.

Mr. WATSON. As I recall further in the dispute over firemen, that was likewise predicated on a safety factor. You would not envision going into that field. Do you recall that dispute?

Secretary BOYD. Yes, sir. I recall it. Certainly the safety regulations would clearly have an impact on the crew consist. There is no ques-tion about that.

Mr. WATSON. And you would have jurisdiction overriding any contracts in that particular field of the crew and its composition?

Secretary BoYD. We would not have the power to override contracts. We would have the power to issue minimum standards, and whether or not the contract complied would be something that you could only consider after the regulation had been passed.

Mr. WATSON. So that you would govern the terms of the contract? Secretary BOYD. Yes, sir.

Mr. WATSON. So, in essence, you will be able to override contracts between management and labor so far as consist of crews?

Secretary BOYD. So far as the minimum.

Mr. WATSON. That is right.

Secretary BOYD. Yes, not the maximum, the minimum.

Mr. WATSON. That is right; but you will have the authority there. So far as the length of the train, would it envision getting into that field? That is not a safety factor.

Secretary BoYD. I don't know. It could be.

Mr. WATSON. Now you studied this thing, and I am sure you just didn't casually come up with this legislation. I am sure you gave that matter some thought. Would it or would it not?

Mr. LANG. If I might, Mr. Watson, at the present time we don't see a problem, a safety problem associated with train length. However, at such time as the accident experience suggested to us that there might in fact be such a safety problem we might go into rulemaking proceedings that did in some way affect the length of trains.

Mr. WATSON. Mr. Lang, you have studied this matter, and you gave us a number of statistics. Has your study thus far indicated that the length of the train is a safety factor?

Mr. LANG. No, sir; not thus far.

Secretary BOYD. But by the same token, I don't believe that we want this record to reflect that train length will never have any relation to safety.

Mr. WATSON. I am sure that under the terms of this bill as it is written now, you would have the authority to control length, the number of crew, as well as the speed of the train and everything else. Secretary BoYD. Yes, sir. That is quite right and under the provisions of the Administrative Procedure Act.

Mr. WATSON. Thank you very much.

Mr. FRIEDEL. Mr. Carter.

Mr. HARVEY. Mr. Secretary, I have just a couple of questions here. When Mr. Moloney was here last week, he stated that under the terms of the bill that you can make rules simply by announcing them, and I

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would like to refer you to his statement. I don't know if you have a copy. I will read you what he said on page 7 of his statement. I will quote his language:

Under the Administrative Procedure Act which is the only procedural restraint on the Secretary's rulemaking powers under this bill he need only announce a proposed rule in the Federal Register and receive written comments on it. He may thereupon adopt it, reject it, or modify it after considering such comments, but his action need not be based on those comments.

Is that true?

Mr. TIDD. That is, I suppose, literally true, that it need not be based upon them. But he has to consider them. I suppose to the extent he consideres and rejects them, one might say they are not based on them. But only in that sense.

Mr. HARVEY. You have no quarrel with Mr. Moloney's interpretation of the Administrative Procedure Act in this regard?

it.

Secretary BOYD. As a literal interpretation, we have no quarrel with

Mr. HARVEY. I didn't know if you had finished your statement or not, Mr. Secretary.

Secretary BOYD. Yes, I had finished. As a practical matter I doubt very seriously that Mr. Moloney can show where this has in fact occurred under the innumerable number of regulations which have been issued under that provision of the Administrative Procedure Act. Mr. HARVEY. All right.

The other question that I have is with regard to the inspections that are entailed under this and the employment of personnel in that regard. Who do you contemplate will be doing the inspections, how many inspectors, and so forth?

Secretary BOYD. I will ask Mr. Lang to respond, if I may.

Mr. LANG. Mr. Harvey, we would anticipate using inspectors who are on the payroll of the Bureau of Safety; that is to say the Federal payroll, to do inspection work associated with the area that our present authority does not allow us to get into, once regulations covering such areas had been promulgated under the Administrative Procedure Act.

However, we would also anticipate the possibility of making more explicit use of railroad company employees to do certain kinds of inspection tasks associated with the overall safety regulations which is something that we do not now do under many of our present statutes.

Mr. HARVEY. And would the employees report directly to you or would they report to the railroads and the railroads report to you, or how does that work?

Mr. LANG. They would report strictly to their own companies, but they would make inspections and file reports which would also go to us. Mr. HARVEY. I didn't mean to get into this at great length, but I am still not satisfied here. Obviously, one of the things bothering this committee the most is that this bill so greatly expands the areas into which your Department can now go. You are getting into the design of cars, for example, and all sorts of other areas that we haven't been in before. How much of a payroll do you intend building up in this regard? How many new inspectors is it going to take?

Secretary BOYD. We submitted for the record a breakdown. I am sorry. We have not submitted it yet. We have a breakdown which we

will submit for the record which will indicate the number of personnel which we feel will be required to carry out the functions of this law. Mr. BROWN. Mr. Chairman, will the gentleman yield?

Mr. HARVEY. Yes, I yield.

Mr. BROWN. I wonder why we couldn't have the breakdown now since some of us may have some questions. After we get it, if the Department officials are no longer with us or aren't going to come back to the hearing, whom do we ask questions of with reference to this rather vital information in connection with this legislation?

Secretary BOYD. We have only two copies. We will make them available to you.

Mr. BROWN. Would it be possible, Mr. Chairman, if after looking at these copies, to ask the Department officials to come back so that we can ask some questions on the cost figures involved in this legislation?

Mr. FRIEDEL. As I said last week, it will be submitted for the record, but the chairman would like to have this bill considered no later than Monday or Tuesday of this week.

Mr. BROWN. I understand, Mr. Chairman, but I think if the Department has figures that relate to the cost of the legislation which are submitted after the Department witnesses leave the stand, and we don't have the opportunity to ask questions on those figures, we are at least, to a degree, operating in the dark up to that point.

I, for one, would like to have a chance to look at those figures because from the testimony so far, I can't feel that the figures are realistic.

Mr. FRIEDEL. I am sure that this could go on for months if we ask these questions.

Mr. BROWN. In view of the kind of legislation it is, I think that would be good.

Mr. FRIEDEL. The Chair will take it under advisement.

Mr. SKUBITZ. Would the gentleman yield?

Mr. HARVEY. I yield.

Mr. SKUBITZ. The thing that bothers me is the reasons given by Mr. Lang and the brotherhoods-the increased number of derailments; is that correct?

Secretary BoYD. Yes, sir.

Mr. SKUBITZ. One of the railroad executives testified that they inspect the tracks every day. Now, what do you intend to do that they haven't done?

Secretary BOYD. I can't give you an answer to that, Mr. Skubitz. It would depend on first of all getting some people who could get into that area and make some studies and recommendations to Mr. Lang who would then propose some regulations, but I think it is quite apparent that if the railroads are doing everything they can and the derailments have increased, practically doubled over the past 6 years, there must be something wrong.

Mr. SKUBITZ. Well, do you intend to put inspectors in the field? Is that what you intend to do? How many will you need?

Secretary BoYD. Well, inspectors is a term which I think is rather loosely used. I don't know, though, that we would put inspectors out. We wouldn't put inspectors out to do the same job the railroad is doing. We would hire some people who either had the capability or could be trained to try to figure out what is going on. If these things are happen