It is our opinion that the Government's liability under H.R. 16980, if enacted, would be no greater than in the case of S. 1166, the proposed gas pipeline safety bill. It may be less. It should be noted that the exemption of § 5(b) is provided with respect to acts specifically required by "standard rule or regulation." It has been held in this connection, that the promulgation of regulations, even if unreasonable or unconstitutional, is clearly a discretionary function within the protection of the exemption. Dupree v. United States, 247 F. 2d 819, 825 (C.A. 3, 1957). Consequently, we believe that as now drafted § 5(b), in all probability, would not subject the Government to liability. As the Secretary's letter of March 18 noted, however, no one can predict with certainty what the courts will do in these cases. With respect to the question of preemption of liability of the carriers, we do not believe that there would be any such preemption. In our opinion, the extent to which the Government has allowed itself to be sued under the Federal Tort Claims Act has no bearing upon the liabilities of private parties for their own conduct.

The CHAIRMAN. Turning over to 10(b) of the act, I want to get a little clarification here if I could. Concerning delegation of persons with certain powers, I am just wondering if he would delegate to a private person such function as the conducting of medical examinations and so forth.

Mr. LANG. Yes, sir; that is the intention of this kind of a provision. It would also permit us to delegate to qualified employees of the carriers themselves the responsibility for conducting certain inspections. The CHAIRMAN. Well, under 10(c), why must the Secretary advise, assist, and cooperate with others in developing standards? I think this is a little different than any law we ever had brought before this committee. Consult with somebody else, yes. That he must advise, assist, and cooperate with others, that is strange language to me.

Mr. LANG. I cannot pretend to be an expert on such language, Mr. Chairman, but I know one of the things that we had in mind here was the pending legislation which I referred to in my statement, the Occupational Health and Safety Act which would confer rather broad authority on the Secretary of Labor to prescribe rules and regulations in the interest of employee safety.

There clearly would be some areas of interface or potential overlap between that kind of authority if it were to be conferred on the Secretary of Labor, and the authority that would be conferred under this legislation on the Secretary of Transportation. I think it is particularly important that these two people be in step with each other in promulgating or enforcing the regulations, and this section would make that clear.

The CHAIRMAN. It looks to me like you are conferring to the other agencies the powers you ought to have yourself for the things that you want to do.

Mr. LANG. Well, the intention here, Mr. Chairman, is only to authorize the Secretary to consult.

The CHAIRMAN. I see "authorize" here and that is true.

Mr. LANG. It is not intended to allow him to delegate this authority to some other agency as I understand it.

The CHAIRMAN. Advise and assist, what else could you interpret it as if not to consult with them to get some information that they want themselves? It says, "The Secretary is authorized to advise, assist, and cooperate with other Federal departments and agencies and State and other interested public and private agencies and persons." Who else could you get into this thing if you were going to advise and assist with instead of having to consult with them for advice or some

thing? It looks to me like you are going to delegate everything to them where you want some advice yourself.

Mr. LANG. Mr. Chairman, I do not think we have any strong feeling on the precise language of the bill as long as there are other agencies that will be in potentially safety areas that will abut this one and some kind of coordination is desired.

The CHAIRMAN. I do not know of any other safety bill that is going to come before the committee where you consult with them to do the job, and it seems like you are trying to give it to somebody else in this thing. I just don't understand why it was written.

Mr. LANG. I do not think that is the intention.
The CHAIRMAN. Well, I would not think so.

In section 10 (d), what is the meaning of "to amend such special rules"?

Mr. LANG. To issue and amend such orders.

The CHAIRMAN. What is the meaning of "special"?

Mr. LANG. Well, the one type of action which we now take that might logically fall under this category of special rules are the permits that are issued under the Hazardous Materials Act for the transportation of commodities that do not fall under standard regulations. This simply would provide for the unusual situations where there was some potential safety problem but the existing regulations did not cover them.

The CHAIRMAN. You are going to make them special rules here, is that right?

Mr. LANG. Yes, sir.

Mr. BROTZMAN. Would the chairman yield?

The CHAIRMAN. Yes.

Mr. BROTZMAN. Have you ever read this bill before?

Mr. LANG. Yes; I have.

Mr. BROTZMAN. Has your counsel?

Mr. LANG. Yes.

Mr. BROTZMAN. I sat here 20 minutes and I know less about this bill than when you started. This is exactly the way it was on the pipeline safety bill only in that case the Secretary made an ineffective and ineffectual presentation. You are asking us to rubberstamp something. You come up here and you do not answer one single question as to what is in this bill. It is very, very ineffective and it does not help us to do our job.

Thank you, Mr. Chairman.

The CHAIRMAN. Section 10 (b) and (c), I was wondering if this is a change in the Board's powers and duties on section 5 of 85-870. Mr. LANG. Of the Board's, that is to say the National Transportation Safety Board?

The CHAIRMAN. Yes.

Mr. LANG. No; this would have the effect of preserving their powers and duties as established under the DOT Act.

The CHAIRMAN. I am referring actually to 11(b). I am sorry.

Mr. LANG. Those provisions would have the effect of preserving that authority.

The CHAIRMAN. What is that now?

Mr. LANG. Those provisions would have the effect of preserving the authority of the National Transportation Safety Board as it was con

ferred on them under the DOT Act. The way the DOT Act is written their power derives from the authority that the Secretary has under the existing rail safety statutes. If under this legislation we were to repeal those existing rail safety statutes, we would have to be sure by this language to preserve those powers and duties that were conferred indirectly through the DOT Act on the National Transportation Safety Board, and this language would have the effect of doing that. The CHAIRMAN. You think this is no change in the Board's powers? Mr. LANG. It is not intended to be in any way, shape, or form. The CHAIRMAN. Maybe you can clarify that a little bit later. I had some other questions comparing this with the Natural Gas Safety Act. I will forgo that for the time being and come back for questions a little later.

Mr. Friedel.

Mr. FRIEDEL. Your statement on page 1, the last paragraph, you say, "In the last 7 years the monthly average of train accidents has increased steadily from 341 in 1961 to 608 in 1967." These are monthly averages?

Mr. LANG. That is correct.

Mr. FRIEDEL. Do you have a breakdown between passenger train and freight train accidents?

Mr. LANG. Yes. I do not have that breakdown with me. The number of passenger train accidents is quite small, Mr. Friedel, but we could furnish that for the record.

(The information requested follows:)

ANALYSIS OF TRAIN ACCIDENTS1

(Passenger, Freight, and Other Trains), 1961-67

1 Prepared by the Federal Railroad Administration, Department of Transportation.

2 Yard switching and work train service.

Mr. FRIEDEL. On page 5 in the next to the last paragraph:

Approximately 95 percent of the accidents that occur on the Nation's railroads are caused by factors not subject to any control by the Federal agency responsible for promoting railroad safety.

Will you clarify that statement.

Mr. LANG. These are accidents, Mr. Friedel, that are caused by failures from track or failures in equipment or components of equipment that our present statutes do not reach. As an example, our present statutes do not give us the authority to write any regulations or conduct any kind of inspection in connection with the running gear on freight cars. A rather significant share of the total derailments are caused by failures to correct the running gears, broken wheels, faulty axles, broken frames and so forth. Our present authority does not permit us to write any regulation in those areas.

Mr. FRIEDEL. Just one more question. On page 18, the first paragraph, you say:

So we are aware that even as we propose this step forward in the safety of railroad operations, we at the Department of Transportation have a long job ahead of us in finding and recommending to the Congress ways in which to assure that the railroad industry will be able to remain financially viable.

That is the first and only time I read in your statement that you were going to report to Congress; everything else you were taking in your own hands and not reporting to the Congress. Your rules and regulations and any broad powers that you have under this bill, you would have the sole power. This is the only time you are recommending that you would report to the Congress. I feel there should be some safeguard because in a safety act you might be going too far. There ought to be some report to the Congress.

I hope the committee goes into that more thoroughly.
The CHAIRMAN. Mr. Springer.

Mr. SPRINGER. Thank you, Mr. Chairman.

Mr. Lang, have you or anybody on your staff made an estimate of what the costs involved in putting these regulations in effect are to be? Mr. LANG. We have made some very preliminary estimates, Mr. Springer, but they are not good enough at this point, we didn't feel, so that we were able to recommend specific dollar figures.

There are several factors at work here: One, until we actually conduct rulemaking in these areas over which we do not now have authority but which we would get authority for under this kind of legislation, it is difficult for us to know what kind of regulations we would end up creating.

We have some ideas of what these might look like but until we have actually gone through them

Mr. SPRINGER. Give us an estimate.

Mr. LANG. Well, let me qualify my statement.

I will do so in just a moment but let me add one additional qualification at this point, or two, really.

First, we have been in the process in the last year since the Bureau of Railroad Safety was transferred from the Interstate Commerce Commission to the Federal Railroad Administration of reorganizing that Bureau. The outlines of that reorganization are now complete and we have begun to restaff in some critical areas in that Bureau.

We are also making some changes in the way in which we operate in the field. We are hopeful, although it is still too early to say what the results will be, that these will result in our being able to do our present job with fewer personnel than we now have.

Mr. SPRINGER. Mr. Lang, I am not talking about that.

How much is this going to cost the transportation industry that is going to be reflected in user charges? That is what I want to know. Mr. LANG. Our present estimates indicate that we would not be required under any of the regulations which we can currently visualize to increase our staff by more than 25 percent above its present level. Mr. SPRINGER. Mr. Lang, did you listen to my question?

Mr. LANG. I cannot translate that into dollar terms.

Mr. SPRINGER. Mr. Lang, listen very closely. This is simple question. What I want to know is, what will the cost of your estimate be in increased costs to the transportation industry which will be reflected in the cost of transporting an article aboard a train?

Mr. LANG. None, nothing, zero.

Mr. SPRINGER. You are positive?

Mr.LANG. Under the existing statutes, I am, sir.

Mr. SPRINGER. You mean with this law in effect?

Mr. LANG. Under our present statutes, none of the costs of railroad safety regulations are passed along to the carrier; they come out of the general fund.

Mr. SPRINGER. Mr. Lang, you are still not answering my question which I have asked three times. I am not asking you what it is going to cost in the form of enforcement of it; what I am asking you is: When you put regulations into effect, what does that cost in increased transportation costs? Not what it costs the Federal Government for enforcement, but what does this cost the general public?

Mr. LANG. I am sorry, Mr. Springer. I did misunderstand your question. I think I understand it now and my answer is that I cannot tell you.

Mr. SPRINGER. All right.

Now, you are frank. The automobile safety people said it would not cost anything and when we got them in here and it cost $50 to $100 to $140 and everybody raised a little Ned with it the next year they came back in here and a Senator over on the other side had a hearing on it and tried to disprove it all when as a matter of fact we knew we had testimony here that it was going to cost at least $50 and nobody went higher than $100, and some of that cost $140 per passenger car.

I want some testimony, may I say, before we get through as to what this is going to cost the transportation industry and be reflected in the cost of transporting an article. There is not very much passenger business left. If you are going to set up standards here now, this is worthwhile, that is all right.

But I want to be sure the whole record is made so seomebody does not come back next year and say, "Well, it really didn't cost that much; the railroads are just adding it on like they did about the automobile industry," when we knew as a matter of fact it was going to cost more money and it was in the record when the testimony was taken.

I want to know before we get through with this what the additional costs are going to be, what those are going to reflect. If it is worthwhile, that is a different thing. I don't want to go ahead with the assumption everything is rosy and then next year it comes up about increased freight rates showing an increased cost as a result of your regulations. I want to know, now I don't want those objections coming from my district next year.

Now, can you give that to the staff? This is just as important to the fact that you are going to do the regulation. Can you do that?

Mr. LANG. We can make an attempt to do so, Mr. Springer.

I can tell you in advance the estimates we can give would be stated best only in ranges and they would be quite large ranges. (The information requested follows:)

FEDERAL RAILROAD ADMINISTRATION STATEMENT ON COST OF BROADENED SAFETY REGULATION TO THE RAILROAD INDUSTRY

It is not possible to estimate with any precision the net cost to the railroad industry, and thus to the railroad user, of a broadened program of Federal safety regulation. Reasonable estimates will be possible only as the information developed through rule-making in specific areas of regulation can be collected and assessed. It is possible, however, to make some general observations about this problem which can help put it in perspective.