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railroads, there will be nothing the Federal Department of Transportation can do within its present authority to prevent installation of such a device even if it adds gross hazards to operating employees or to the travelling and shipping public. In the absence of broad legislation such as is under consideration here, it would take a new specific act of Congress to authorize powers for such regulation.
This is a real not a theoretical problem. The Baltimore and Ohio Railway has put into service a large covered hopper car with a capacity of 100 tons, identified as Pullman Standard TLDX cars, 7000 series. When this car is in use in a train operating on a curve of six degrees or more, it develops a critically dangerous rocking motion at speeds between 10 and 25 miles per hour. The railroad accordingly has put out a special rule that any train including such cars must be operated either at speeds below ten miles an hour or above 25 miles an hour. It should be possible to enforce a regulation that this car either be removed from service or be prohibited from interchanges with other railroads. But the Federal government has no power whatever to issue any regulation in this area.
I have cited these illustrations only to show that even in areas where there are now elements of control---such as those embodied in the Safety Appliance Acts-the control is strictly limited by the language of the Acts. This is an absurd situation-that the Department of Transportation, now charged with the administration of safety laws in the whole field of transportation, should be so restricted in its controls for the largest transportation agency, the railroads.
The bills which you are considering will fill in the gaps in the regulatory authority now residing in existing laws. Among the more significant areas where additional regulatory controls are essential are the following:
(1) Railroad structures, track and roadway.--Hundreds of train accidents are caused every year as a result of defects in way and structure elements; in addition, many train service casualties to both operating and maintenance employees occur because of unsafe conditions that go uncorrected in railroad yards, and on and about railroad facilities.
Except to the extent to which way and structure items are included under the Signal Inspection Act, the Federal government presently has no authority in this area. A full discussion of the consequences of this major hiatus in regulation will be presented by Mr. Harold Crotty, President of the Brotherhood of Maintenance of Way Employes, who will appear later as a witness.
(2) Railroad equipment.—Thousands of train accidents and many train service casualties result from defects in railroad equipment. As I have indicated above, items of railroad equipment are subject only to limited controls by the Federal government. Locomotives, in general, are covered by the Locomotive Inspection Act, but freight and passenger cars are covered only to the extent to which specific items have been set forth in the Safety Appliance Acts. Thus, the government has no authority with respect to car undercarriages, trucks, wheels, or even couplers and draft gear except to the limited extent set forth in the Safety Appliance Acts. In 1966, 265 train accidents occurred as a consequence of defects in trucks; 789 were caused by defective wheels and axles; defective couplers, draft gear and related parts caused 346 train accidents; defects in sills, sides, floors, doors and other car structural parts caused 143 train accidents; and many hundreds of casualties were caused by defective hoses, brake shafts, steps, stirrups, footboards, and other car parts.?
I have mentioned the Locomotive Inspection Act. This is an area where nominally the Federal government already has some power to control practicesparticularly to require that locomotives be not dispatched into service when they are in an unsafe condition. However, the record of the carriers over many years has shown serious laxity in this respect. Each year, the Annual Reports of the Director of Locomotive Inspection have recited accidents which occurred because of unsafe conditions on locomotives. Many such accidents occurred after Interstate Commerce Commission inspectors had reported unsafe conditions, sometimes many times; the conditions, however, went unheeded and uncorrected until they resulted in accidents and injuries to employees. The attention of the Presidential Railroad Commission was directed to this amazing condition in 1961; thereafter, for some reason, the Interstate Commerce Commission stopped reporting this information in the reports to Congress of its Director of Locomotive Inspection. I cannot believe that these violations and oversights just stopped happening. I cite this circumstance, however, to illustrate how careless the carriers can be of their equipment even in circumstances within the control of the Federal government.
(3) Railroad operating rules.---Thousands of train accidents and a large proportion of the train service casualties which occur each year are directly attributable
2 Preceding statistics are all preliminary.
to acts of personnel which are subject only to the operating rules of the carriers. The Interstate Commerce Commission has never had any significant controls in this field. Operating rules are determined by each individual railroad. A degree of standardization may have been imparted to such codes of rules through committees of the Association of American Railroads and other similar voluntary agencies. Nevertheless, the number of accidents which occur each year that should be averted by safe practices in operations is almost unbelievable.
In this connection, it must be remembered that railroading is by nature a hazardous profession, and that many conditions of modern railroad operations have increased hazards over the years. Trains operate much faster today than they did a few decades ago. Trains are much longer than they once were. Back in the days of steam motive power, trains of 100 or more cars were unusual. Today, with multiple diesel locomotives affording almost unlimited horsepower, trains of two hundred and more cars are common. Furthermore, cars are much larger and carry much more weight. The average gross weight of trains in 1921 was 1,435 tons; in 1966 it was 3,613 tons.
All of these things have added potential hazards to railroad operations.
The pressures in railroad yards where trains are made up and broken up have increased heavily. In 1966, there were 1,240 switching collisions. Railroad operating officials have long considered yard operations the biggest single efficiency bottleneck they face, and efforts to speed up yard work have been heavy and .continuous in recent years. The result, in increased pressures on yard personnel, has shown up in the accident records.
The higher speeds and heavier trains of modern railroading have affected flagging conditions, and should have led to the adoption of more stringent rules .covering the positioning of flags when trains stop in unexpected circumstances. Many carriers instead have proposed just the opposite; in some territories where automatic block signals are used, they have eliminated flagging altogether. Use of radio equipment as a substitute for flagging has also led to many dangers, as Mr. Crotty will point out.
Track motor car operation and the movements of other self-propelled equipment units have little protection against collisions with other traffic. Accidents involving such equipment in maintenance of way and signal department work have been a constant and continuing source of death and injury to employees. Again the only controls are the rules adopted by the railroads themselves. The major cause of these accidents has been the failure to provide adequate protection for the movements of such cars. The Interstate Commerce Commission in its Accident Investigation Reports dealing with such accidents has reapeatedly recommended that protection be provided. The Commission's recommendations however carried no authority to order the carriers to install safe procedures.
In this connection, the Commission stated in Accident Investigation Report No. 3996, dated June 21, 1963:
"During the past 10 years, the Commission has investigated 52 accidents involving the operation of track motorcars. These accidents resulted in the death of 63 persons and in the injury of 111 persons."
Ten years earlier in 1953, Report No. 3518 stated:
"Since January 1, 1944, the Commission has investigated 45 collisions, including the present case, which were caused by failure to provide adequate protection for the movement of track motor-cars. These accidents resulted in the death of 81 persons and the injury of 144 persons. In the report covering the investigations of these accidents, the Commission repeatedly has recommended that the carrier take measures to provide adequate protection for the movement of track motor-cars on its line."
(4) Rail-Highway Grade-Crossing Hazards.-In 1966, there were 4,117 highway grade-crossing accidents resulting in 1,782 deaths and 4,073 injuries. Grade, crossing accidents account for more fatalities than any other cause. Federal control over motor vehicle safety standards, as discussed below, is more complete than its authority over railroad operations; nevertheless, this control can be exercised only over carriers subject to the Interstate Commerce Act, and control over general highway safety is more completely under the authority of the state and local governments than under the Federal government.
Insofar as railroad operations affect rail-highway safety, the Federal government's restrictions with reference to operating rules carry over into this area also. Even so simple a matter as the prescription of the amount of time for the warning of the approach of a train has been beyond the powers of the Interstate
Commerce Commission. This subject was raised in the course of the Commission's investigation of the overall problem of rail-highway grade-crossing accidents in 1963 and 1964. (Reported in Vol. 322 I.C.C., 1-92.) The Commission's comment was as follows:
"From the outset it should be pointed out that while ordinances issued by local and municipal authorities restrict the speed of trains in many localities particularly in congested areas, we have no authority to regulate speeds as such except in an indirect manner." (P. 75)
The Commission's statement then described the very limited circumstances under which the Commission could require the installation of certain signal systems or control devices when operations exceeded certain speeds. However, actual speed limitation is not possible under existing laws.
The Federal government has the authority under the Signal Inspection Act to prescribe signal devices to control traffic over the lines of the railways, but it has not construed this law as providing authority to prescribe rail-highway protective devices.
These are but examples of areas where there is no national uniform control possible under existing laws as they have been construed by the Interstate Commerce Commission and the courts.
(5) We come to the special problem of explosives and inflammables.- Perhaps the most serious problem faced by railroad enginemen and other crew members today arises from the transportation of inflammable and explosive commodities in highway vehicles. As in the case of all rail-highway accidents, jurisdiction is exercised by both Federal and State authorities; however, no controls have operated to prevent these terrible catastrophes.
In this area, the Interstate Commerce Commission had broad authority for many years over all types of carriers and shippers and has prescribed detailed rules for railroads and motor carriers specifying the containers, and the methods and conditions of handling thousands of dangerous commodities. On its face the authority of the government seems as complete as it can be, but it does not actually function that way. Although Commission regulations control the structure and the integrity of tank cars and containers, they have no more control on the undercarriage, the trucks and the wheels than they have for other cars. It is to be expected that both the carriers and Federal inspectors would exercise great care in their inspections of cars that carry explosives and other dangerous commodities, but car defects unrelated to the container elements themselves still might go uncorrected. And, of course, there are always other cars in the train. A derailment caused by a hotbox in a boxcar adjacent to a tank car will probably derail the tank car. Again, it should be remembered the Federal government has no control over operating rules. Accidents arising from operating elements can happen in a train carrying dynamite, or perhaps radio-active materials.
It is imperative that the Federal government have the power to specify the route over which dangerous commodities should be moved. This would make possible the diversion of such shipments from heavily populated areas or from any areas where traffic-railway or highway—increases the likelihood of accidents.
A major hazard is in the potential for collisions with highway vehicles carrying dangerous commodities. The power to prescribe details of vehicle structure and container design is of little avail in preventing a collision between a train and a motor truck. Expansion of control over the entire area of rail-highway movements alone can approach this problem.
This is an expanding problem. The Interstate Commerce Commission made the following comments in its 80th report to Congress:
“The attempt to improve regulations for the transportation of explosives and other dangerous articles has been given top priority consideration in the Commission's administrative and budgetary decisions.
"Since the end of World War II, the production of industrial chemicals has increased 350 percent. Last year alone there was a 12 percent increase in the consumption of commercial explosives over the previous year. More than 1.85 billion pounds of these explosives are now used annually, and therefore must be transported. More than 100,000 shipments of radio-active materials are made each year and the potential growth of atomic power plants will offer a far greater need for this type of transportation. Military shipments of explosives by commercial transportation are not included in the above figures. To single out two products transported by a single mode in 1962, there were about 5,000 tank trucks transporting liquefied petroleum gas and anhydrous ammonia. By 1972 this figure will probably double. The shipment of rocket and missile fuels is increasing each year. To add to this picture of known problems, there are about 25 new dangerous commodities developed each day.” (P. 73)
With the addition of radioactive materials in recent years, and the even newer and more hazardous problems in transporting rocket and missile fuels, this element in the safety picture is becoming more critical every day.
I have been discussing major areas where Federal authority to influence railway safety is substantially deficient. I turn now to the matter of state controls. State laws vary widely in the extent to which they regulate railway safety questions. In some areas they cover elements also covered in Federal laws. Some states, for example, have safety appliance laws and rules. States also provide laws covering signals and interlockings, hours of service of employees and locomotive inspection. Such authority is ordinarily limited in its effect by a rule that it may not unnecessarily burden interstate commerce. In any event, where there is conflict, Federal rules have been dominant and in some instances the courts have held Federal law has pre-empted the field.
Federal and state authority function jointly in an attempt to regulate railhighway grade-crossings. Highway speeds, licensing of motor vehicles and drivers are State controlled. Prescription of grade-crossing protective devices is wholly within the province of the states, and state and local police perform the primary accident investigation of rail-highway grade crossings. Some states and localities exert controls over train speeds.
Some states regulate the size of train crews, although many of these important laws have been repealed or held invalid by the courts in recent years.
In all areas, state authority is incomplete and lacks uniformity. Although a few states have adopted regulations which fill in some of the more important gaps in Federal regulation, most states have not done so. Thus, many elements of extreme importance to safety improvement are subject to no controls whatever.
The Federal government has broad, all-embracing authority with respect to both air safety and regulated common carrier motor carries. It is indisputable, as experience over the years has demonstrated, that a comprehensive railroad safety statute is long overdue.
Having expressed our unequivocal support for the basic purposes to be served by this legislation, I would like now to direct your attention to a number of specific changes in the contemplated statutory scheme which RLEA considers vital to the effectuation of these purposes and their effective coupling with other existing and related laws. Since the present proposed provisions of this legislation were developed thoroughly by the Department of Transportation in its testimony, I will discuss only the major concerns that RLEA has.
Attached to my statement is a set of our complete suggested amendments to this bill. I will now direct my attention to those which railroad labor considers of the highest priority.
At the outset we note the bill makes no provision whatsoever to assure that the Secretary of Transportation's authority shall not extend to activities involving or growing out of a legitimate labor dispute. Yet, Section 7(a) of the bill provides for injunctive relief to restrain violations of this Act (including the restraint of operations in rail commerce). I need not remind you that the American labor movement is bottomed on the right to lawfully strike to protest grievances. Obviously we will not willingly abide its destruction. (See our amendment #25 for suggested language).
A second matter of vital concern is the possible inroads this legislation would unwittingly make upon the functions of, or negotiations under, the Railway Labor Act. The final bill should not be construed to limit, supersede or modify the provisions of the Railway Labor Act or any agreements made pursuant thereto (see our suggested amendment #9). This is another area where the railway labor movement fought very hard to achieve deserved rights, and we want to make sure that these rights are protected.
The next objectionable feature of this bill is that all railroad workers could be subjected to civil and criminal sanctions for obeying the orders of their superiors. The employees or their representatives, as distinguished from executive, managerial, or supervisory personnel, should be excluded from the prohibitions and sanctions of the proposed legislation (See amendment #1 and #4). It cannot be argued against this proposed amendment that unfairness or inequity would result, for if the amendment were not passed, the employee would be subjected to statutory sanctions of a violation of the Act on the one hand and discpilinary action by the carriers on the other hand for failure to obey the orders of his superiors to violate the Act. The employees should not be placed in such a dilemma.
Section 4 provides that all state laws, with few exceptions, will unwittingly be supplanted not later than two years from the date of enactment of this bill. As pointed out previously while there are only a few states with comprehensive legislation relating to railroad safety, nevertheless the safety standards that now exist
in those states should be retained until there are federal standards at least equal to the state laws to be superseded. (See amendment #13). However, under the present bill if the Department of Transportation has not promulgated its regulations after two years, the state statutes would nevertheless be superseded without any effective standards to substitute in their place.
This legislation would establish greater monetary penalties for violations of the statute. I believe the recent accident and casualty record of the railroad industry speaks by itself for the need to increase these penalties. The Interstate Commerce Commission, which in the past has tried to enforce existing laws, has been very specific on the extent to which the present laws are being violated.
In its 79th Annual Report, the Commission stated to Congress :
“There has been a sharp rise in violations of the various railroad safety laws in the past 5 years. Higher utilization is being obtained from equipment, leaving less time available for maintenance. Carriers have decreased the number of maintenance and repair facilities and employees engaged in such work. While the primary responsibility for the observance of the safety laws, of necessity, rests on the railroads, our inspection program reinforces that responsibility by bringing deficiencies to the attention of the carriers. We have intensified our efforts during the year to obtain better compliance.
Our enforcement activities have been materially increased as a result of the high degree of noncompliance. In this fiscal year, 684 cases involving 2,272 counts were transmitted to the U.S. attorneys for prosecution in the courts.
"Under authority of section 25 of the Interstate Commerce Act, 4,600 signal systems were inspected, and a large number of unsatisfactory maintenance conditions were called to the attention of the carriers and were corrected.
“Under the provisions of the Locomotive Inspection Act, 111 accidents were reported during the fiscal year (App. E). Locomotive equipment failure contributed to 87 of these accidents, which resulted in 93 injuries but no fatalities. Most were caused by unsafe condition of cab floors, steps, and passageways, by defective cab seats, and by crankcase explosions. There was a substantial increase in the number of locomotives found in unsafe condition and ordered out of service." (Pgs. 73 and 74.)
In its 80th Annual Report, the Commission found it necessary again to discuss the many violations of its regulations:
"The number of violations of the railroad safety laws increased 29.8 percent during the past year, continuing the trend of increased violations which began 6 years ago. The high level of the Nation's economy has generated a great demand for equipment. As a result, utilization of equipment has increased. At the same time, maintenance and repair facilities and the number of mechanical personnel employed by carriers have continued to diminish.
“The rise in violations has resulted in an increase in enforcement actions. In 1965, 930 cases involving 3,014 counts were prepared for transmission to U.S. attorneys. As a result, 786 cases involving 2,720 counts were prosecuted by U.S. attorneys during the year. In 771 cases, the defendants were found guilty and assessed fines totaling $654,500." (P. 69)
From these reports it is clear that present penalties under the safety laws are too low. They no longer serve to deter railways from direct violations of safety standards when managements find it profitable to do so. Even if the provisions of the pending legislation were enacted, we believe the minimum penalty of $250 would not be a sufficient economic incentive for the railroads to comply with the safety requirements. A minimum penalty of $500 would be a more realistic figure. (See Amendment #19.) Perhaps even more significant to an effective enforcement plan would be the inclusion of a "cease and desist” authority discussed hereinafter. (Proposed amendment #24.)
SUMMARY ANALYSIS OF OTHER PROPOSED AMENDMENTS
Sec. 2. Definitions
Amendments #2-4: New definitions of "appliance'', "rolling stock","trackage'', were added to make it explicitly clear what is intended to be covered. It is important that in general legislation, coverage provisions should be stated with sufficient precision. For example, "rolling stock”, might not be interpreted to include track motor cars or maintenance of way equipment. The proposed new