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I assume, further, that if a union contract provides that an employee can continue on a specific job, perhaps with corrective vision, that you would not supersede that contract, or would you have the authority under this legislation to supersede any such contract?

Mr. LANG. I think that we would have the authority to say that an employee was not physically qualified.

Mr. WATSON. Even if the contract worked out between the employees and the employer concluded otherwise? In other words, you could disrupt the contract if the Secretary felt that this employee was not qualified?

Mr. LANG. I don't think I like the word "disrupt" in this context because no such regulations, if any were ever written, would be written without the full participation of both management and the employees. Obviously, this would be a very sensitive kind of a problem area to get into and we would exercise unusual caution in being sure that our standards, if any, were not arbitrary.

Mr. WATSON. Now, I assume that the thrust of this will go toward the safety of equipment and such as that. I believe earlier you mentioned there were a number of derailments because of axle failure or wheel failure.

Mr. LANG. That is correct.

Mr. WATSON. I notice on the last exhibit, D-2, entitled "Locomotive Accidents and Casualties Caused by Failures of Locomotive Parts or Appurtenances." That table would seem to totally contradict what you stated earlier because it shows that there has been a 25-percent decrease in the number of accidents because of parts failures since 1961.

Are you aware of that table? Is that table accurate, or again is it a relative matter and you will have to explain.

Mr. LANG. No, sir. Let me make two comments on it.

The table as it is here before you is entirely accurate. The locomotive and all of the matters that might cause accidents as shown in this table is completely and totally under our present authority and we have a very extensive set of regulations and a very extensive enforcement division to see that those regulations are complied with in the locomotive. The locomotive is the one area where we have, for practical purposes, total and complete authority today.

I might make one further comment here. Our preliminary figures for 1967, unfortunately show that there has been an upturn in the number of accidents caused by locomotive failures.

I would also point out, however, that as important as the locomotive is in railroad operations and as important a potential source of accident, these numbers constitute an almost vanishingly small percentage of the total number of train accidents that occur, that is to say, that the locomotives cause almost no accidents relative to other causes and here we have complete regulatory authority today.

Mr. WATSON. I ask you one final question in reference to a question propounded to you by my colleague from North Carolina, Mr. Broyhill, in reference to the criminal provisions for the assaulting of your inspectors and such as that. You mentioned that you had heard that the ICC had one or two. I believe you made the statement that you had never had any of your inspectors assaulted or denied the right to inspect any of these vehicles by the carriers.

Mr. LANG. There have been attempts made to deny them the right to inspect vehicles but we know of no instance in which the denial was accompanied with the use of force.

Mr. WATSON. But, yet, you think it would be necessary to preempt the rights of the localities in this particular criminal field, to give the Federal Government the jurisdiction, as apparently we imply, that would discredit all law enforcement procedures on a local level and make it all Federal?

Do you feel on the basis of that limited information that you have that it justifies the inclusion of such drastic provisions?

Mr. LANG. I think you would have to be the judge; the committee would have to be the judge as to how drastic they are.

We recommend them only because this is a problem which the Commission has run up against before and we wanted to make this bill as complete as we could.

Mr. WATSON. But it is a very rare proposition. I assure you the committee will have the final say but we don't want to be accused by the Secretary again of being deceptive to the American public.

Thank you, Mr. Chairman.

The CHAIRMAN. Mr. Adams.

Mr. ADAMS. Mr. Lang, in subsection (b), the Secretary shall prescribe as interim Federal rail safety regulations the specific safety requirements which will remain in effect for 2 years, as I read the bill. Is this patterned on any other Federal law, or is this something novel?

Mr. LANG. Well, this, I think, is a little bit different situation than we would encounter in any other safety statutes because of the fact that we do have this collection of statutes already on the books and have regulations in force under those statutes.

We have to provide for their continuation during the period that would be required to create any new regulations under legislation such as that.

Mr. ADAMS. I see.

In other words, this section then is to put into effect a continuation of your present standards while you are developing the others.

Then in section 5, would you explain to me what you mean by this section? Again I ask just for information as to your type of operation. The section says it does not exempt any person from any liability which would otherwise accrue except to the extent that the action creates any such standard rule or regulation.

Mr. LANG. Mr. Adams, if I might, as was already pointed out to me, I did a very inept job of trying to explain this before you were able to be here. I am going to try to submit a better explanation for the record. Mr. ADAMS. Thank you.

I have no further questions.

The CHAIRMAN. Mr. Brotzman.

Mr. BROTZMAN. Thank you, Mr. Chairman.

Mr. Lang, who drafted the legislation?

Mr. LANG. There were a great many people involved in the drafting of this legislation, Mr. Brotzman.

Mr. BROTZMAN. Who is responsible for it? Are you?

Mr. LANG. The Secretary is responsible for it; I am here testifying for him.

Mr. BROTZMAN. Does that differ from the provisions of this bill? Mr. LANG. Yes, sir.

Mr. BROTZMAN. He would come up here and answer questions relative to these particular provisions; right?

Mr. LANG. I think he would be glad to do so.

Mr. BROTZMAN. Back to this section 5, and I am trying to read this as carefully as I can to make sense.

Now, once again, section 5(b), is this to relieve a common law responsibility for negligence or is it to abrogate contributory negligence, or what is the purpose of that 5 (b) provision?

Mr. LANG. If I understand this language, it is not to relieve a person of that liability.

Mr. BROTZMAN. What is the purpose?

Mr. LANG. It is to assure that in fact that liability is a continuing

one.

Mr. BROTZMAN. Does it change the common law in any way? Is it to change the common law in any way?

Mr. LANG. I would have to refer that to Mr. Corcoran.

Mr. CORCORAN. No; it does not, Mr. Brotzman.

Mr. BROTZMAN. That is the intent, not to change the common law? Mr. CORCORAN. Yes.

Mr. WATSON. Will the gentleman yield?

Mr. BROTZMAN. Yes.

Mr. WATSON. "Except to the extent that the action creating the liability was specifically compelled by any such standard, rule, or regulation," as I interpret that, as a country lawyer, you do propose to exempt them.

Mr. BROTZMAN. This is the way I read it, too, but I would like to have counsel's explanation. You see, one of the problems is we will talk to you here this morning and then if you pass away or you are gone and we cannot-I strike "pass away," if that disturbs you, Mr. Corcoran.

Mr. CORCORAN. Thank you.

Mr. BROTZMAN. I saw the look on your face.

If you are not available to us and we don't get the answers to these questions now, then we never have the opportunity to cross-examine you, you see. This is one of the continuing problems we have.

Now, I read it the same way that he does.

Mr. SPRINGER. Will the gentleman yield?

Mr. BROTZMAN. Yes.

Mr. SPRINGER. I have a second round of questions.

I want the gentleman to come back tomorrow. I want to ask some more questions. I hardly got started with 5 minutes today. I stayed out but I have a series of questions.

Mr. Chairman, I am willing to wind up today as far as these people are concerned but I would like to ask the gentleman some more questions.

Mr. BROTZMAN. I yielded to my distingished colleague here who had a specific question relative to a clause.

I think if you will answer the questions yes or no and then explain your answer, we would all understand you much better. Why don't you respond to his question?

Mr. WATSON. Maybe counsel can respond better than Mr. Lang.
Mr. CORCORAN. Would you repeat the question?

Mr. WATSON. On page 5, line 22 of the bill, start with line 20 so that we get it in its complete context.

Compliance with any standard, rule, or regulation established under this Act does not exempt any person from any liability which would otherwise accrue. I agree with that, the interpretation there does not exempt the common law liability.

But you have this:

Except to the extent that the action creating the liability was specifically compelled by any such standard, rule, or regulation.

I assume if you are going to follow through with this, you are going to promulgate standards, rules and regulations and you are going to expect the railroad to comply with them regardless of your

expense.

Now give us your interpretation of that last clause. Is my interpretation not right?

Mr. CORCORAN. Congressman, this particular language was at the specific recommendation of the Department of Justice and I think in our presentation for the record in writing we will attempt to show you that there are certain sections of the law which not only provide liability but exclude defenses such as assumption of risk and contributory negligence as defenses to a carrier in such actions.

So in a sense when we are talking about, for instance, under our Safety Appliance Act right now, the violation of a Safety Appliance Act takes away from the carrier certain defenses which it might otherwise have. We will attempt to show in our written presentation that these two sections in that sentence together preserve for the employees, if you will, the rights that they now have by common law and by FELA and also protect the carrier. We do not want to change in any way the present relationship, statutory or common law, on damage suits between carriers and employees.

Mr. KORNEGAY. Will the gentleman yield?

Mr. WATSON. Yes.

Mr. KORNEGAY. I would like to ask the question of counsel. Does this exception under the section that we are talking about defer liability from the Secretary or the Federal Government in any way if the accident occurred as a result of this rule or regulation promulgated?

Mr. CORCORAN. Congressman Satterfield asked that question and we will also provide an answer to that for the record.

Mr. BROTZMAN. I am just about through.

Will you have that for us when you return, I guess tomorrow, so that we can ask you some questions about this particular matter? I am just about through, Mr. Chairman.

I didn't hear you justify the $5 million figure that you are asking us to vote in the way of an authorization for fiscal year 1969, and $6 million for the following fiscal year as provided therein. Can you just sum up for me how you arrived at the $5 million figure?

Mr. LANG. Mr. Brotzman, we did not arrive at the figure. The bill as we sent it up had no figure in it.

Mr. BROTZMAN. The bill as you sent it up had no figure in it, meaning we have put that figure in the bill?

Mr. LANG. Yes, sir.

The CHAIRMAN. I might explain this as the chairman. I made the statement to Assistant Secretary Sweeney that under Public Law 84801 that requires every new program to carry with it a specific authorization for every new program. So we went back to him and he supplied these figures which I put in the bill. It was then introduced by

me.

Mr. LANG. I stand corrected then, Mr. Brotzman.

Mr. BROTZMAN. This is the kind of thing I keep going through here. All we are trying to do is to understand the bill to try to make reasonable judgments.

The CHAIRMAN. Your time has expired.

Mr. Brown.

Mr. BROWN. Mr. Brotzman has asked a couple questions that I wanted to get into on this $5 or $6 million figure.

Do I understand, Mr. Lang, that you have no figure on the cost to the Department of Transportation of this legislation and no estimate of what this will cost the railroads and therefore the public ultimately? Mr. LANG. We have no firm figures on the cost to us although as I indicated when I answered Mr. Springer's earlier question, having misunderstood it, we do not anticipate that there would be any large increase in the cost of operating our Bureau of Railroad Safety program over that which we have today.

Now as far as the second question is concerned, that was also a question asked by Mr. Springer.

Mr. BROWN. I was here when Mr. Springer asked the question. I just want you to say yes or no, you know or you don't know how much it is going to cost.

Mr. LANG. I do not know.

Mr. BROWN. And there is nothing in the budget for it?

Mr. LANG. That is correct, sir, there is nothing in the budget.

Mr. BROWN. And you have no justification for the $5 or $6 million figure?

Mr. LANG. We have not furnished such.

Mr. BROWN. That is exactly what I wanted to know.

Mr. SPRINGER. Will the gentleman yield?

Mr. BROWN. Yes.

Mr. SPRINGER. The part that mystifies me is that you set standards for requirements of rail facilities and all equipment which I take it would go to the whole matter of design.

Now it seems to me that if you are going to go into this thing that you are going to OK certain construction of cars, that you are going to set up standards which are going to change a lot of other things, it is the same thing you ran into in the automobile bill. Of course you will

into the whole question of construction, and this is what bothers me on this question of whether or not you are going to substantially increase rail cost.

From the testimony you have given, I take it you think a great deal of equipment is outmoded. That is why I hope if you come back tomorrow you will tell us what this is going to cost the rail industry which it ultimately is going to cost the public.

Thank you.

Mr. BROWN. I have a couple of other questions. If this bill should be passed in its present form, does the Department of Transportation an

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