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Mr. VAN DEERLIN. Did you eventually advise the subcommittee that on advice of the association counsel, Mr. Burstein, it would be necessary for the subcommittee to serve a subpena in order to secure the papers and documents requested?
Mr. GENOVESE. Yes, sir.
Mr. VAN DEERLIN. In accordance with the subpena served upon you, have you brought with you today the papers and documents specified in the subpena?
Mr. GENOVESE. No, sir; I did not. They are quite voluminous and in view of the weather condition and at the counsel's suggestion I did not bring them with me. They are offered to be available in our office for inspection.
Mr. Van DEERLIN. Will there be any restriction on the investigation of those files by the committee staff?
Mr. GENOVESE. None whatsoever; no, sir. Mr. VAN DEERLIN. You are the official in charge of files and records of the Movers' & Warehousemen's Association of America ?
Mr. GENOVESE. Yes, sir.
Mr. VAN DEERLIN. In light of the unusual sequence of events in which you at first apparently declined such access and agreed that they would be produced only under subpena, and obviously the committee would always rather take the first course than the second, will you assure the committee that these files will be made available during regular business hours at a time—I suppose I should say mutually convenient, but I don't mean to suggest that this should not be a time until spring, or will it be sometime within 10 days?
Mr. GENOVESE. They will be available.
Mr. VAN DEERLIN. I see. Well, in that case I think we could say that Mr. Genovese can be temporarily excused.
Do you have any questions at this point, Mr. Harvey?
Mr. HARVEY. I have just this question, Mr. Genovese. How many files and papers are we talking about?
Mr. GENOVESE. I would say three files, one for each year, and they probably measure about 6 to 8 inches in thickness.
Mr. HARVEY. Would they fit in a briefcase, for example, or would they fit in a filing carton or what are we talking about ? My point is that you have been served with a subpena duces tecum which is a rather serious instrument, as I am sure your attorney would advise you, and it is customary in response to that to return the records and files along with you. That is what the subpena duces tecum calls for and I am wondering if these files are so voluminous—is that your testimony?--that you cannot produce them or for some other reason?
Mr. BURSTEIN. Mr. Harvey, may I address the Chair?
Mr. BURSTEIN. Mr. Chairman, my name is Herbert Burstein. I am general counsel for the association.
Let me explain first, in response to Congressman Harvey's inquiry, we are sensitive to our responsibility to respond to subpenas and we are, of course, concerned about the matters which are the subject of investigation by this committee. There is no attempt to either evade or avoid responding to a subpena.
Mr. Genovese is an employee of an association consisting of some 600 members, and as a matter of protection for him, so that nobody could accuse him and no member could accuse him of turning over records of the association which are not his property, I have requested that a subpena be served.
Second, I had spoken with Mr. Lishman prior to this appearance and suggested that the records be made available in our office. We have no objection to that. The records may be voluminous. The subpena is drawn in very broad terms, it is not only correspondence and three files but there are other records, memorandums, which might be books and records of account, and so forth, so we have no idea really of what was intended to be produced.
Now we have no objection to the investigators appearing in our office and searching whatever file they would like to examine and abstracting from it and copying but leaving with us the originals any documents which they think
are relevant, material, and pertinent to your inquiry. I don't think it is really three files, it is books and records. That is how the subpena reads-all books, records, papers, memorandums, correspondence, and the like. I was not entirely certain in my own mind precisely what was called for in this subpena.
Mr. HARVEY. We thank you for that clarification.
Mr. VAN DEERLIN. Without objection Mr. Genovese will be temporarily excused and he will be notified if, as and when further testimony is required in connection with the subcommittee's study and investigation.
Thank you both, against the elements of weather, for being with us this morning. Mr. BURSTEIN. Thank you. Mr. GENOVESE. Thank
you. Mr. BURSTEIN. I apologize for being late, but I was late because of the airlines.
(Whereupon, at 11:27 a.m., the subcoinmittee recessed, subject to the call of the Chair.)
INQUIRY INTO CERTAIN PROCEDURES OF THE
INTERSTATE COMMERCE COMMISSION
TUESDAY, JUNE 16, 1970
HOUSE OF REPRESENTATIVES,
. that we are sorry
that we have not been able to start this meeting on time because of a very important vote on the floor that we all had to be present for.
I hope we will not have any more interruptions during the afternoon, and I hesitate, also, to start until we have more members here, but I believe in regard to saving time it would be wise if we did start.
I had hoped that we would have a member of the minority here. They are not here yet, but I am sure they will be in a few moments, so the Chair could probably give his statement before we get started, and we hope that others will be here at that time.
At the hearings today, the special subcommittee will receive oral and written evidence from members of the Interstate Commerce Commission and from certain of its personnel concerning the Interstate Commerce Act and its administration.
Some time ago I requested the staff to perform a study at the Interstate Commerce Commission concerning the serious situation surrounding passenger train discontinuances. I won't take time to review the facts in detail, but do want to mention some of the more serious aspects.
As we are aware, there has been a continuous decrease in the nuniber of passenger trains running in this country.
This represents an urgent situation since, once these train discontinuances are granted by ICC, the decision is practically irreversible as it is almost impossible to restore service once it has been discontinued. We have also had allegations that the railroads in some cases have deliberately downgraded their service so as to discourage the public from riding on their trains, and then using the decrease in railroad passengers as an argument for discontinuing the service altogether.
In April 1968 an ICC hearing examiner, Mr. Messer, issued a report in which he was critical of the level of passenger service being provided to the American public, and strongly suggested that the ICC should do something to insure the adequacy of that service.
The ICC in September 1969 by a 7 to 2 vote sidetracked Mr. Messer's recommended report and order by ruling that the Commission had no jurisdiction to establish minimum standards for rail passenger service. This decision is now before the courts.
I wish to welcome members of the Commission and of its staff. Mr. Stafford was supposed to be here, but other business called him away, and he could not be here this afternoon.
Your testimony will be very helpful in enabling the committee to perform its constitutional and statutory duty of overseeing the operations of the ICC, an independent regulatory agency and arm of the Congress.
Before questioning the witnesses, I should like to briefly outline our authority to conduct the present hearings.
Rule 11 of the House of Representatives charges the Commerce Committee with responsibility for legislation having to do with the regulation of interstate and foreign communications, section 136 of the Legislative Reorganization Act of 1946 directs the committee to exercise continuous watchfulness over the execution by the administrative agencies of any laws within its jurisdiction.
House Resolution 116, 91st Congress, authorizes this subcommittee to conduct investigations and studies concerning transportation matters and to require by subpena “the attendance and testimony of such witnesses and the production of such books, records, correspondence, memorandums, papers, and documents, as it deems necessary."
Rule 11 and House Resolution 116 will be inserted at an appropriate place in the record. A copy of same will be given to each witness.
(The documents referred to follow :)
RULES OF THE HOUSE OF REPRESENTATIVES
RULE XI. POWERS AND DUTIES OF COMMITTEES
All proposed legislation, messages, petitions, memorials, and other matters relating to the subject listed under the standing committees named below shall be referred to such committees, respectively :
11. COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE
(a) Interstate and foreign commerce generally.
(d) Interstate oil compacts and petroleum and natural gas, except on the public lands.
(e) Public health and quarantine.
(f) Railroad labor and railroad retirement and unemployment, except revenue measures relating thereto.
(g) Regulation of interstate and foreign communications.
(h) Regulation of interstate and foreign transportation, except transportation by water not subject to the jurisdiction of the Interstate Commerce Com. mission.
(i) Regulation of interestate transmission of power, except the installation of connections between Government water-power projects.
(j) Securities and exchanges. (k) Weather Bureau.