Mr. BROTZMAN. All right, 19 for the first year, and 44 for the second year.

Mr. LANG. For the second year.

Mr. BROTZMAN. Where are these individuals going to be?

Mr. LANG. Twenty-three of that 44 would be the first additions to our field inspection staff.

Mr. BROTZMAN. Is the 19 included in the 44, or is this 44 in addition? Mr. LANG. No; that is total, 44.

Mr. BROTZMAN. All right, 44 in the second year; 23, I think you said, were additions to your inspection team out in the field.

Mr. LANG. Yes.

Mr. BROTZMAN. All right.

Mr. FRIEDEL. Mr. Lang, I wish you would say "Yes." or "No." You shake your head, and the reporter can't hear the answer.

Mr. LANG. Yes.

Mr. BROTZMAN. Now, according to my quick calculations here, that would be 63 additional people in 2 years' time.

Mr. LANG. No, no. I am sorry. The 44 includes the 19 for the first year. It would be a net addition of 44 people after the end of 2 years, including the 19 added during the first year.

Mr. BROTZMAN. All right. Now, is that all that is encompassed in this $5 million authorization figure? And the $6 million authorization figure?

Mr. LANG. No. In the third year we estimate, and again I repeat that these are preliminary estimates, that a net addition, total addition of 69 personnel.

Mr. FRIEDEL. I am sorry, the gentleman's time has expired.

Mr. BROTZMAN. Thank you.

Mr. FRIEDEL. Mr. Adams?

Mr. ADAMS. Thank you, Mr. Chairman.

Mr. Secretary, it is a pleasure to welcome you to the committee this morning.

I want to ask you some questions on this bill, and make some comparisons with the pipeline safety bill, particularly in the area regarding admission of evidence.

Before doing that, I want to say first that I am not concerned about your publicly commenting on actions of this committee in which your Department will later be involved, and I assume at some time in the future you will probably be critical of some positions that I take publicly. I am pleased that the public is now aware of the great dangers we face in this area. If you do respond to the committee questions, which I am sure you will, as to whether or not something was drafted by your Department, I would like you to specifically comment at that time as to whether or not is was drafted as a service in response to a request of someone on the committee which I know the Departments will do from time to time, to aid in areas of technical legislation, or whether it was recommended to the committee as a departmental position.

There is a great deal of difference between the two, so if you answer, I would particularly like to know the answer to that question, Mr. Secretary.

Secretary BOYD. Yes, sir; I will try to give you a full report.

Mr. ADAMS. And I won't argue the details of the gas pipeline safety bill here, except that I understand you did publicly comment about some representations in the committee report that there could be a general application of rules under section 3 rather than specific individual actions which would mean that you would have a general power over pipelines already in the ground, which was a position many of us have publicly argued for, and I agree with you in your publicly stated position, and I think this position makes a great improvement in that section and we are very grateful that that has happened. I therefore won't bother you with the details on it.

Those of us who opposed the original language will have to decide at the time the bill is on the floor, whether to correct this section by legislative history based on the report or whether an amendment will be required.

I think this whole process is moving the country forward in this area of gas pipeline safety, and I think this is a fine display of how a committee and the Congress and the Administration can work to improve legislation by the honest and sharp debate that can occur, and I certainly expect you will participate in it.

Now, going particularly to this bill as it is compared to the gas pipeline safety bill, I would call your attention to section 11 which you commented on in your statement on page 3. This was an issue that we discussed at some length during the gas pipeline bill. This section involves the use of accident reports.

In the gas pipeline safety bill we used one method. You have set forth here in page 3 of your statement the fact that there should be different rules as to whether or not you can use accident reports in railroad cases. You have recommended in this railroad safety billand this is at line 7 on page 12 of the bill-a different system. So you won't have to fiddle with it there, among your papers I will read you what is says. It says:

"No part of any report required by any rail carrier under this act,' and then it goes on, "shall be admitted as evidence or be used in any suit for action or damages."

I would ask you this question, first: We do not allow the use of these reports as formally being placed in evidence under either bill, do we? Secretary BoYD. No, sir.

Mr. ADAMS. And that is the general system used throughout the Federal Government with regard to this type of accident report, because of the dangers of hearsay, and so on. Isn't that correct?

Secretary BOYD. Well, they are not prohibited in the gas pipeline

bill.

Mr. ADAMS. No; we do not comment on them, but it is said therein that the reports can be used, but there is nothing said about their being used as admitted to evidence. That is, they need not be allowed by the court, or disallowed under the terms of the bill.

Secretary Boy. That is covered by the House committee report, where it comments that this is the province of the court, and not of the Congress.

Mr. ADAMS. Right, and I think that we can both agree that generally reports that contain hearsay statements or conclusions are generally not allowed in evidence without some type of business records rule or some other special rule of evidence being applied. Isn't that correct? Secretary BoYD. That is my understanding of the law.

Mr. ADAMS. Now, you indicate here that these reports could not be used at all, and I want to know whether it is the Department's position, and I agree with the evidence position, but I am sure I would prevent there being used at all, and I call your attention to the fact that under title 18, the criminal law sections of the United States Code provide that an employee can't release information unless it is allowed by some statute, and I wanted to know whether it is your interpretation and your position here that employees should not be allowed to reveal these reports, or their information, to individuals who come in and ask for them.

Secretary BOYD. I hope this is responsive, Mr. Adams.

The current practice, as I understand it, is that if someone seeks a copy of a report in this area, they must first sign a certificate that they do not intend to use it in a private legal action. On the basis of that certificate signing, the report is made available to them.

Mr. ADAMS. Can they use the information that is within the report? I am not quarreling about the report being used. I understand that. Let me ask you this question

Secretary BoYD. I would say that if they can't use the report, they can't use the information in it. However, one must bear in mind that where there is a plaintiff or a litigant dealing with a particular accident or incident, the great bulk of the information is available to anyone who pursues it. Therefore, when we get to the question of whether or not they could use the information, I think it would be an almost impossible job to say to a litigant, "You can't use this, because you got it out of this report."

The chances are that he could have gotten it elsewhere.
Mr. ADAMS. All right. Let me indicate the distinction.
Mr. FRIEDEL. The time of the gentleman has expired.

Mr. ADAMS. I ask unanimous consent to proceed for 1 additional minute?

Mr. FRIEDEL. No objection. All right.

Mr. ADAMS. Would you please and you can comment by memorandum, if you wish, so we won't take any more time—but in gas pipeline safety or in aircraft, we have allowed these reports to be used for information because in the general tort liability role when you alone are responsible for a situation and an accident occurs. In a gas or an airplane accident, where everything is destroyed you can be held liable unless you can show you weren't at fault. An heir will need some evidence to say this rule should apply so as to shift the burden of proof under this general tort theory that the man who has got control over the activity, and conducts the activity, and then everybody is killed and everything is all destroyed, then he is responsible for showing that he wasn't at fault, since he had control over the circumstances. I forget the Latin title for it.

Secretary BOYD. Res ipsa.

Mr. ADAMS. Res ipsa. Now, in a railroad accident, it may be different, because everything isn't destroyed, and you can use other systems of proof, and I would like a comment from your Department by memorandum as to what your position is on this section, with regard to whether we should use a different approach than in the gas pipeline or aircraft cases because res ipsa doesn't apply here.

Secretary BOYD. We will submit a response.

(The following information was subsequently submitted:)

DEPARTMENT OF TRANSPORTATION,

OFFICE OF THE SECRETARY, Washington, D.C., June 18, 1968.

Hon. HARLEY O. STAGGERS,

Chairman, Committee on Interstate and Foreign Commerce,

House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: In the course of my appearance before your Committee on H.R. 16980, the railroad safety bill, two items were requested for inclusion in the record. These items, which are enclosed, were:

1. A justification of section 11 (c) which deals with the protection of accident reports (attachment A).

2. A “Preliminary Report of Railroad Accidents and Resulting Casualties" issued by the Federal Railroad Administration in December 1967 (attachment B).

There are two other points I would like to clarify for the record. Mr. Brown asked why the provision assessing inspection costs against the industry, which appeared in section 15 (b) of the gas pipeline safety bill as passed by the Senate, was not included in the rail safety bill. I am informed that section 15 (b) was not proposed by the Administration. However, the Administration did not object to the provision since it was entirely consistent with existing user charge policies. Mr. Adams asked whether under section 6(a), which provides that in the case of continuing violations each day of violation shall constitute a separate offense, the Department would have to initiate a series of legal actions. Section 901 of the Federal Aviation Act contains an identical provision. The practice there is to file a single complaint containing separate counts for each day that a violation continues.

In your letter to me of June 5 you asked for clarification of the interpretation which we would propose to give the words "affecting interstate commerce" appearing in the definition of "rail commerce" in section 2(6). Specifically, you asked whether the Department intended to include "only railroad operations or anything that moves on a track or guide-way such as subways, street railways, and the like."

It is not the Department's intention to cover within the scope of section 2(6) everything that moves on a track or guide-way. Nor, as I indicated in my testimony, would we contemplate regulating the safety of urban subway or rail transit systems. However, if those systems operated across state lines, they would be subject to Federal safety regulation and would be regulated if the need were clear. The principal concern of the Federal Government is with safety in interstate, intercity rail operations, and with intrastate, intercity rail operations where the particular facts show that the operation is either "in" interstate commerce or clearly "affects" interstate commerce.

I would emphasize, however, that the purpose of the Administration's rail safety bill is to enable the Federal Government to be forward looking in its regulation of rail safety and thus anticipate, and, hopefully, correct safety problems before they result in accidents. For this reason, I believe it would be unwise to prescribe overly restrictive definitions which would provide none of the latitude necessary to deal with changing transportation systems, concepts, and technology.

Sincerely,

ALAN S. BOYD, Secretary.

ATTACHMENT A

USE OF ACCIDENT INVESTIGATION REPORTS UNDER SECTION 11 (c) OF H.R. 16980 The provisions of section 12(c) of S. 1166, the Gas Pipeline Safety bill, provide that accident investigation reports may be used in litigation and that investigators shall testify, if requested. The Committee has requested the Department's reasons for proposing in section 11 (c) of H.R. 16980 that the use of accident reports be restricted.

Subsection (c) of section 11 provides as follows:

"No part of any report required of a rail carrier under this Act, or any report made to the Secretary by an employee of the Department, or any report of the

Secretary or the Board relating to any accident or the investigation thereof, shall be admitted as evidence or be used in any suit or action for damages growing out of any matter mentioned in such report or reports. Employees of the Board or Department who have engaged in the investigation of a railroad accident shall not give expert or opinion testimony concerning such accidents in any such suit or action. Factual testimony of Board or Department personnel on matters observed in accident investigation shall be required only where the Chairman or the Secretary initially, or the Court before which such suit or action is pending, determines that the evidence is not available by other means. Unless otherwise ordered by the Court, such factual testimony shall be taken only by deposition upon oral examination or written interrogatories, pursuant to regulations issued by the Secretary or the Board."

The subsection is based on § 4 of the Accident Reports Act (45 U.S.C. 41) and § 8 of the Locomotive Inspection Act (45 U.S.C. 33). These sections provide that neither the reports of the carriers, where required, nor the reports of the Government may be admitted into evidence or used for any purpose in any litigation arising out of the contents of the reports.

State and Federal courts have given heed to the provisions. In Louisville and Nashville Ry. Co. v. Stephens (1944), 298 Ky. 328; 182 SW 2d 447, a case involving an action against the carrier for the death of a fireman resulting from a boiler explosion, the carrier's report of the accident to the ICC was held not admissable in evidence. Similarly, the Yanick v. Pennsylvania RR Co. (D.C.N.Y. 1961), 192 F. Supp. 373, the court held that testimony embodying opinions of ICC investigators concerning the accident may not be used for any purpose at a trial growing out of the accident.

Copies of investigation reports published by the Federal Railroad Administration are available to the public on request. Copies of reports made by carriers are made available in accordance with the provisions of 49 C.F.R. 225.9. That section provides that before access to carrier reports is permitted, the requesting party must certify in writing that such availability will not result in violation of the Accident Reports Act and that the reports will not be used for any purpose in any suits on any matters mentioned in the reports.

Under § 220 (f) of the Interstate Commerce Act (49 U.S.C. 320(f)), accident reports required to be made by motor carriers, formerly to the ICC and now to the Federal Highway Administration, may not be admitted into evidence, or used for any other purpose, in connection with private suits growing out of these accidents. This prohibition has been implemented in 49 C.F.R. 294.1.

Safeguards are also taken by the NTSB and the FAA with respect to air accident reports and files. Section 701 (e) of the Federal Aviation Act of 1958 (72 Stat. 740, 781; 49 U.S.C. 1301, 1441) provides that:

"No part of any report or reports of the Board relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such report or reports."

This section has been implemented by the NTSB in its regulations (14 C.F.R. 435). These regulations provide that accident reports and underlying papers are available to Board employees for official business. However, employees have no control over these records or discretion as to their use. Section 435.3 of the regulations permit the release, by field supervisory investigators at any time during or after the investigation of the accident, of the following information: (1) Place and date of the accident;

(2) Make, model, identification mark, and registered owner or operator of the aircraft involved;

(3) Name and addresses of the crew and other occupants of the aircraft or persons injured in the accident; and

(4) Medical information on fatalities and injuries when factually established by physicians and hospitals.

The section permits the national office in Washington to release the following additional information:

(1) The names of witnesses and their addresses;

(2) Replies as to facts in answer to specific inquiries; and

(3) The portion of the file containing the factual data, but not the portion containing opinions, conclusions, evaluations or recommendations of Board or FAA employees.

While § 701 (e) applies only to Board reports, the FAA has adopted a consistent policy with respect to testimony of its employees as witnesses in legal proceedings