Imágenes de páginas
PDF
EPUB

sional judgment of the Bureau Director or qualified members of his staff could be relied upon for their disposition.

Bureau of Motor Carriers

Authority for Bureau of Motor Carriers district supervisors to approve onetime shipment motor carrier temporary authorities, in bona fide emergencies, in the field.

In about 100 cases annually, authorization is given for one-time shipments in severe emergencies; eg, replacement parts for a transformer which has interrupted electrical power in a community; a bridge span portion to repair a bridge closed to traffic until repaired.

Bureau of Operating Rights

1. Areas where orders now are entered in the name of a single Commissioner or Division I. such as orders assigning cases for hearing, orders extending dates for the filling of pleadings, orders postponing compliance dates, effective dates, and orders authorizing the changing of name of a carrier, etc.

2. Noncontested motor, water, and freight forwarder application cases of the type now handled by Operating Rights Board No. 1.

Item No. 1 would relieve Commissioners of the possibility of dealing personally with up to 10.000 items a year. Item No. 2 appears desirable since actions of Board No. 1 about 1.200 a year, are seldom questioned by the filing of petitions for reconsideration, and it is believed that the nature of the cases is such that delegations to an individual would be just as effective.

Pureau of Trafic

Approval of special permission applications, now handled by the Special Permission Board, consisting of three members.

There are about 10.000 of these items coming before the Special Permission Board each year. If this work is delegated to individuals, it probably would be divided among as many as three persons because of the volume. However, rather than have two or three board members look at each request for special permission (e.g.. each board member now reviews about 6,700 a year), each of 3 indivdual delegates would look at one-third of the total number or about 3,300.

Bureau of Transport Economics and Statistics

1. Matters relating to annual, periodical, or special reports of carriers, lessors, brokers. freight forwarders, and other persons under parts I, II, III, and IV, presently assigned to Division 2. For example, approval of changes in the reporting forms and other requirements which often are made to conform them to corresponding changes in the Commission's acounting rules governing the respective types of carriers.

2. Extensions of time for filing annual, periodical, or special reports; exemption of individual carriers and others from reporting requirements, access to waybills or photostat copies thereof; and public inspection of monthly accident reports, now assigned to the Vice Chairman. These items are routine in nature. For example, the extension of filing dates is essentially an administrative matter, as is the granting of access to waybills or to accident reports. These delegations would relieve Division 2 of the necessity of passing upon some 25 report matters each year, and the the Vice Chairman of acting on 200 applications per year in matters currently asisgned to him.

Recommendation No. 11

S. 1149

This proposed bill would give effect to legislative recomendation No. 11 of the Interstate Commerce Commission as set forth on page 66 of its 78th annual report as follows:

"We recommend that section 19(a) be amended in the following respects: (1) to eliminate the requirement that the Commission determine the present vaue of land; (2) to eliminate the requirement that the Commission determine the valuation of property held by carriers for purposes other than for use in common carrier service; (3) to eliminate the requirement that the Commission ascertain and report the amount, value, and disposition of aids, gifts, grants, and donations and the amount and value of concessions and allowances made by carriers in consideration thereof; and (4) to make optional the requirement that the Commission keep itself informed of changes in the quantity of the property of carriers, following the completion of the original valuation of such property."

JUSTIFICATION

The purpose of the attached draft bill is to eliminate or make optional certain mandatory valuation requirements which are no longer considered necessary or appropriate to the proper performance of the regulatory functions of the Interstate Commerce Commission. Foremost among these are the requirements (1) that the Commission determine the present value of carrier land holdings, and (2) that the Commission keep itself informed of changes in the quantity of the property of carriers following the completion of the original valuation of such property.

The requirement that the Commission determine the present value of land was appropriate in finding original property valuations under an earlier concept which also gave consideration to the reproduction cost of property other than land. Accounting methods have changed, however, and today the concept of "reproduction cost" generally is in disuse by this Commission for rail ratemaking purposes. In this respect, it is significant that the Commission, in establishing a base for measuring rate of return for railroads, now uses the original cost of property other than land less depreciation thereon as shown on the books of the carrier, and to this sum is added an allowance for working capital and the estimated present value of land. Clearly, this formula would be more logical and consistent if the original cost of land were substituted for a determination of present value.

There has been considerable latitude for a number of years with respect to what might properly be considered in ariving at a rate base, and the wide choice available to regulatory agencies in this connection has been recognized by the Supreme Court. In Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 586 (1942), the Court held that "The Constitution does not bind ratemaking bodies to the service of any single formula or combination of formulas ** *" and in Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 602 (1944), the Court amplified its opinion in the Natural Gas Pipeline Co. case by holding that "it is not the theory but the impact of the rate order which counts. If the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the act is at an end. The fact that the method employed to reach that result may contain infirmities is not then important.

In the absence of a continuous need for present value of land data by the Commission, it is not in the public interest to spend large sums of money to develop the information and keep it reasonably current as contemplated by the present statutory requirement.

At the present time, by virtue of regulations issued by the Commission pursuant to the mandatory requirement in section 19a (f) of the Interstate Commerce Act, railroads and pipeline companies must report annually the number of units of property acquired or retired during the year. This information is utilized in determining the cost of reproduction of such property. As indicated above, however, the concept of reproduction value is no longer the dominant consideration in the determination of a rate base for railroads; and, in this circumstance, we believe that this reporting requirement represents an unnecessary burden upon rail carriers.

The situation with respect to the reporting of units of property changes by pipeline carriers, however, is unlike that of the railroads. The Commission finds property valuations for pipeline carriers each year; and, in this process, property units are used in the development of the cost of reproduction-new, an element which is considered by the Commission in arriving at rate bases for pipelines. For this reason, we recommend that, in lieu of repeal, the mandatory requirement in section 19a (f) be made optional as the needs of the Commission dictate.

The Commission has made adequate provision for the proper accounting and financial reporting of noncarrier property, and the value of such property is not considered for valuation or ratemaking purposes. Therefore, we see no need to value noncarrier property as is presently required by the third subparagraph of section 19a (b) of the act.

Insofar as aids, gifts, grants, and donations are concerned, practically all property in this category is of record in the original valuations found by the Commission for railroads. The significance of this information has diminished over the years, and carriers have long since discontinued the granting of

49-278-65--3

concessions in the form of land-grant rates in consideration of such gratuities. Accordingly, the draft bill would also repeal subparagraph "Fifth" of section 19a (b) of the act.

Enactment of this draft bill would, in our opinion, result in a considerable saving to the railroad industry and, in principal effect, would eliminate a statutory requirement no longer necessary nor feasible because of the magnitude of the undertaking ecessary to keep reasonably current.

Recommendation No. 12

S. 1150

This proposed bill would give effect to legislative recommendation No. 12 of the Interstate Commerce Commission as set forth on page 67 of its 78th annual report as follows:

"We recommend that section 20a (12) be amended so as (a) to eliminate the necessity for prior approval of the Commission for a person to hold the position of officer or director of more than one carrier when such carriers are in a single integrated system of carriers lawfully operated under common control. and (b) to make it clear that the prohibition against the holding by ‘any person' of the position of officer or director of more than one carrier applies to the holding of such positions by different members, officers, employees, or directors, of the same firm, partnership, corporation, association, or joint stock association, or to the representation of a person on the board of directors of more than one carrier through an agent or nominee.”

JUSTIFICATION

The first sentence of section 20a (12) requires persons desiring to serve as an officer or director of more than one carrier to file an application and obtain approval from the Commission even though the carriers involved are affiliated members of the same system of carriers. Where railroads are under lawful common control, they form essentially a single system. Louisville & J. B. R. Co. Merger, 295 I.C.C. 11. In this circumstance, the holding of intrasystem interlocking officer positions and directorships is a natural aid to coordination of operations, and the Commission has long approved such applications as a matter of course. Nevertheless, the filing and processing of formal applications for such authority entail considerable time and expense both for the applicant and the Commission which could be saved without adversely affecting the public interest.

A total of 851 interlocking directorship applications were filed during the period covered by the Commission's 74th, 75th, 76th, and 77th annual reports to Congress (1960 through 1963). Since only about 2 percent of these applications involved position in unaffiliated carriers, the time and money consumed in filing and processing approximately 98 percent of these applications could have been saved if the section were revised as recommended. Moreover, a considerable reduction in recordkeeping expenses would have been realized. Regulation of the holding of officer positions and directorships in two or more unaffiliated carriers under section 20a (12) should, of course, be continued in order, among other things, to prevent the acquisition of control by one carrier over another, or the control or management of two carriers in a common interest without prior approval of the Commission under section 5 of the act. However, we believe that section 20a (12) should be strengthened by making it also apply when an officer, director, or partner of a noncarrier (for example a holding company or brokerage firm) also holds a position as an officer or director of a carrier and another officer, director or partner of the same noncarrier holds a similar position with another, an unaffiliated, carrier.

There is, in our opinion, little difference between (a) two directors or partners in a noncarrier separately holding positions with two different carriers, and (b) an individual holding such positions. The possibilities of achieving common control of the carriers and the undesirable practices which section 20a (12) was designed to prevent, are practically the same in both situations. The use of different officers of noncarrier holding companies and brokerage firms to control the affairs of two or more unaffiliated carriers can thus circumvent the present section and defeat its purpose.

S. 1152

Recommendation No. 17

This proposed bill would give effect to Legislative Recommendation No. 17 of the Interstate Commerce Commission as set forth on page 71 of its 78th annual report as follows:

"We recommend that section 220 (f) of the Interstate Commerce Act, section 8 of the Locomotive Inspection Act, and section 4 of the Accident Reports Act be amended so as to (a) incorporate in the Locomotive Inspection Act a prohibition against use in a damage suit of any report sent by a carrier under that act; (b) prohibit the introduction in evidence in any damage suit of the report submitted to the Commission by its accident investigators; (c) prohibit expert opinion testimony by the Commission's accident investigators in damage suits; and (d) restrict factual testimony by the Commission's accident investigators to cases where factual evidence is not reasonably available from other sources.”

JUSTIFICATION

This Commission faces the same problems as those outlined by the Civil Aeronautics Board (109 Congressional Record, 4491-4492) in regard to efforts of litigants to compel Commission employees who have investigated an accident to testify in damage suits. In this respect, therefore, our draft bill follows the same lines as proposed in companion bills S. 1136 and H.R. 5200, introduced during the 88th Congress at the request of the CAB. In addition, our proposed measure would resolve a related problem which arises from differences in the wording of similar sections in acts we administer, and involves efforts of litigants to compel the production of accident reports submitted by Commission investigators and, in the case of rail accidents, the reports submitted by the carriers as well.

Section 25 (f) of the Interstate Commerce Act, 49 U.S.C., section 26(f); sections 1 to 3 of the Accident Reports Act, 45 U.S.C., sections 38 to 40; and section 8 of the Locomotive Inspection Act, 45 U.S.C., section 32, require rail carriers subject to Commission regulation to report to the Commission all accidents in which such carriers may be involved, and charge the Commission with the duty of investigating and making reports concerning such accidents. Under authority of section 201 (a) of the act, 49 U.S.C.. section 304 (a), motor carriers are required by regulation to report accidents of a certain severity, and investigations and reports on many of these are made. The Commission's investigation is performed in large measure by investigators employed by the Commission's Bureau of Motor Carriers and Bureau of Safety and Service. Written reports are prepared by these investigators as to all accidents investigated by them, which embody their factual observations and conclusions. These reports are submitted to the Commission and form the basis for the Commission's accident reports.

Section 220 (f) of the Intertate Commerce Act, section 4 of the Accident Reports Act, and section 8 of the Locomotive Inspection Act prohibit the introduction in evidence or the use for any purpose in damage suits of the Commission's report of investigation. The first two acts mentioned also prohibit such use of the report of carriers. The congressional purpose in excluding such reports clearly is to protect the integrity of the Commission's accident investigation function and to facilitate the securing of full and complete accident reports from the carriers involved. The statutes as now worded, however, do not literally cover the report which the investigator submits to the Commission nor do they cover expert opinion evidence given by way of live testimony by the Commission investigator. Also, the Locomotive Inspection Act does not literally cover the report submitted by the carriers.

Efforts of litigants to subpena the report of Commission investigators, and to compel such investigators to give expert testimony in damage suits, have uniformly been resisted by the Commission on the ground that the purpose and policy of the cited statutes require that such information not be disclosed in damage suits. For the most part, our resistance has been successful, but we have been handicapped by the absence of a clear statutory provision governing the situation. The number of such subpenas could be expected to decline sharply upon the enactment of a clear-cut statutory provision, with a resultant saving in the time which the Commission and its staff must devote to such matters.

The bill proposed by the CAB is based upon the principles enunciated by the Court in Universal Airlines v. Eastern Air Lines, 188 F. 2d 993, and the Commission concurs in those principles and the procedure therein suggested. Under such procedures, no private litigant will be denied factual testimony essential to

establishing his case. At the same time, requests for testimony of accident investigators would be kept to a minimum and the integrity of the Commission's investigation function would be protected. Moreover, advance requests for permission to take an investigator's deposition or for his appearance in court will permit a more efficient scheduling of duties within the Commission with resulting savings in time, effect, and expense.

Recommendation No. 18

S. 1153

This proposed bill would give effect to legislative recommendation No. 18 of the Interstate Commerce Commission as set forth on page 72 of its 78th Annual Report as follows:

"We recommend, in view of the prohibitions in section 1001 of title 18, United States Code, that the Interstate Commerce Act and various related acts be amended to eliminate the mandatory requirement that certain reports, applications, and complaints be filed with the Commission under oath, and that such oath provisions be made discretionary with the Commission."

JUSTIFICATION

The purpose of the attached draft bill is to eliminate from various statutes administered by the Interstate Commerce Commission the mandatory requirement that certain reports, applications, and complaints be made under oath, and to authorize the Commission to impose such requirements at its discretion. Under section 20(2) of part I and comparable provisions in other parts of the Interstate Commerce Act, the annual reports of the carriers are required to be filed with the Commission under oath. The oath requirements is also mandatory for reports filed under section 1 of the Accident Reports Act and section 9 of the Locomotive Inspection Act. By contrast, such requirement is discretionary with the Commission with respect to periodical or special reports filed under section 20(2) and various other provisions of the Interstate Commerce Act, and there is no statutory requirement at all of an oath for reports submitted by conferences, bureaus, and other organizations formed pursuant to section 5a of the act or for periodical and special reports filed under section 20b(6), relating to railroad securities modifications.

In addition to the mandatory requirement of an oath for the above-mentioned reports, an oath is also required for applications filed by railroads and motor carriers under sections 20a (4) and 214 of the act, respectively, for authority to issue securities, and for applications for exemption for regulations filed under section 204(a) (4a) by motor carriers operating solely within a single State. An oath is similarly required with respect to applications filed under section 77(p) of the Bankruptcy Act for Commission approval to solicit, use, or act under proxies, authorizations, or deposit agreements in railroad reorganization proceedings.

No

Other mandatory oath requirements are found in those provisions of the act governing the filing of applications for motor carrier, water carrier, and freight forwarder operating authorities and complaints involving the rates of motor contract carriers and water common and contract carriers. comparable requirements are imposed, however, with respect to complaints involving the rates of railroads, pipelines, or express companies subject to part I; motor common carriers subject to part II; or freight forwarders subject to part IV of the act, respectively.

The foregoing oath requirements are, in the Commission's opinion, both unnecessary and burdensome. Section 35 of the Criminal Code (18 U.S.C. 1001) imposes penalties of fine and imprisonment for knowingly making false statements or representations to Federal administrative agencies, and these provisions have been construed to apply to the giving of false information even though not under oath. Moreover, penalties for knowingly making false statements in carrier reports are contained in section 20(7) (b) and comparable provisions in other parts of the Interstate Commerce Act. In view of these statutory provisions against the giving or filing of faise information, it seems clear that the mandatory oath requirements in the laws administered by the Commission are no longer necessary. Moreover, they are burdensome to the carriers and cause delays and inconveniences in the processing of reports and other documents because of the necessity of returning them to the carriers for authentication when the oath has been inadvertently omitted.

« AnteriorContinuar »