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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 Boyn. That is not covered by this legislation, Mr. Watson. Mr. Watsox. 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 question 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. Tipp. 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?

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

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

ing at a greater rate, and I don't think there is any dispute, it is obvious that the daily inspection is not satisfactory, and we would try to get to the root cause of the problem.

Mr. HARVEY. Could I ask my one question here and then I will yield the floor and the gentleman can wind up here, Mr. Chairman.

Mr. Boyd, let me just say that on the question of personnel that that is one area where I differ from you greatly. It is one area that I very respectfully differed with you on in the gas pipeline safety bill, and I thought when you came before us you would be prepared to tell us exactly what you were contemplating in that particular time and what use of personnel. I do think it is vital, as Mr. Brown has pointed out, that we know it.

Secretary Boyd. This is what we propose. We do not have clearance from the Bureau of the Budget. In the first year after this bill is passed, we would propose additional staffing as follows: In the Washing Office, three division chiefs, two for the technical staff and the research and development program, one hearing officer, five members of the technical staff in the regulation-writing area, two attorneys, two secretaries.

In connection with the State program, we would propose two coordinators, for a total of 17 additional personnel.

For the second year of the operation, we would propose two document clerks in the Washington office, two secretaries in the headquarters operation, seven track, bridge, and tunnel inspectors, five operator and radio rules inspectors, eight design and running gear inspectors in the field staff. The seven, the five, and the eight are in the field staff as would be three secretaries, for a total of 23.

For the third year of operation, we would provide in the headquarters operation three additional employees in the technical staff on the research and development program. Mr. FRIEDEL. Three additional, making a total of what?

Secretary Boyd. Making a total of 12 over the 3-year period in the headquarters staff. In the regulation-writing operation there would be no increase, so that we would have a total of 10 people in that for the 3-year period.

We would eliminate one of the State coordinators so that we would have one left instead of the two. We would add seven track, bridge, and tunnel inspectors in the field. We would add five inspectors for operator and radio rules.

Mr. HARVEY. Is that the third year?
Secretary Boyn. That is the third year.

That would give you a total of 14 track, bridge, and tunnel inspectors, a total of 10 operators and radio rules inspectors. We would add seven design and running gear inspectors, which would give a total of 15. We would add four secretaries in the field, which would give a total of seven, for a total of 46 in the field. That would mean an overall total of 69 additional employees over a 3-year period following the enactment of this legislation.

Mr. HARVEY. I thank you for that information.

Mr. Chairman, I have more questions, but I will yield the floor to my colleagues here.

Mr. FRIEDEL. All right. Mr. Brotzman.
Mr. BROTZMAN. Thank you, Mr. Chairman.

Mr. Secretary once again to get back to the scope of the bill, and this is not just what your intention is but what the authority granted by the language involved here does. Turning to page 2 for just a moment, I have read and reread the definitions here and the first is that “ "Railroad' means any contrivance now known or hereafter invented, used or designed for operating on, along or through a track, monorail, tube, or other guideway."

Then you have to read that I think in conjunction with what "rail commerce," which is where your authority comes from. "Rail commerce" means any operation by railroad in or affecting interstate or foreign commerce or the transportation of mail by railroad. The key words there being "affecting interstate or foreign commerce.”

Is it your opinion that you would have authority over municipaltype modes of transportation under this language?

Secretary Boyd. No, sir.
Mr. BROTZMAN. You think that you do not have it!

Secretary Boyd. That is right; unless of course you get a situation such as might be the case in New York where you have in effecta municipal subway operation which might cross State boundaries in the metropolitan area. Then we would have jurisdiction.

Mr. BROTZMAN. It's an easier case you are making legally when the transportation actually does go across a State line, but I emphasized the words “Affecting interstate or foreign commerce" and I think you are familiar and so is your counsel with the rather broad construction that these particular words have received from the Supreme Court of the United States.

I was thinking for example of a circumstance such as the Bay Area Rapid Transit System that they are putting together out in the San Francisco-Oakland area.

It seems to me that an operation such as that does affect interstate commerce and I am sure you could make a legal argument that it would, but what I am trying to find out is what your thought are on this because we have to be guided in part by the way you construe it or your counsel construes it.

Secretary Boyd. Well, we don't contemplate attempting to regulate the safety of operations such as the Bay Area Rapid Transit. De do not interpret this language as bringing an operation such as BART within the purview of this act.

Mr. BROTZMAN. So as of this particular moment at least according to your attitude unless the mode of transportation actually crosses a State line then you don't think you do have authority, is that correct?

Secretary Boyd. No, sir. No; that is not my statement at all. I think that it is entirely possible that you will find some of the shortline railroads operating completely within the boundaries of one State which would be in my judgment either in interstate commerce or in an operation that affects interstate commerce and would therefore be subject to the regulation of this legislation.

Mr. BROTZMAN. One of the reasons I am asking these questions is that in some of the testimony relative to the Gas Act it seemed to me that there was a much broader construction appended by you and your department relative to what "affects interstate commerce" and it seemed to me that it was much more expansive than these same terms are receiving from you right now.

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