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In this same accident, the railroad rule book carried two different versions of the same critical rule. A regulation could simply require orderly removal of old rules and clarity in representation.

I might say on the side that I think it is rather sad to even think of a necessity for a regulation to correct the operating practice of a railroad in order to bring them up to date. These inconsistencies do exist and one way of eliminating them is by a regulation requiring them to be kept up to date.

The control tower in which the operator who made the key error had been working was also crowded by several train crews having coffee and making distracting noise at the time the error was made. A regulation for control tower discipline which might have prevented this error is already in effect for air traffic control operations.

In the same accident, after it was realized that two trains were headed toward each other in the same track, it was impossible to halt either train, even though both trains carried operating radios. Apparently., the radios were not turned on because their use was merely optional. A regulation could simply require that radios, when carried aboard, be left on.

These are examples of regulations which would carry little or no direct cost to the railroad. Now, some examples of problems with equipment and track.

In two cases, one not yet reported, the relatively slow braking of railroad trains appears to have been a factor. Many people do not realize that train brakes are very slow in application. A time of 8 seconds may be required to transmit an emergency brake impulse from the locomotive to the rear of a 150-car train. After that time, as much as 10 seconds is required for each car to attain the full braking deceleration available. Together, a total time of 18 seconds may pass before all brakes are fully applied on all 150 cars. At 60 miles per hour, the train will move 1,584 feet before the brakes are fully applied.

In one case under review, the train literally came a part during the emergency stop. It is not unusual for trains to be derailed, to sustain internal collisions after first breaking apart, or to go off a curve under emergency braking. These problems have been present in railroad practice for more than 70 years.

Engineering improvement of brakes would be required preliminary to issuance of regulations requiring higher standards of braking, and the regulation would have to be applied over a period of years.

In still another case, passengers failed to escape from a burning rail car because there were no emergency exits, and the inward-opening doors jammed under the press of the crowd. The need for this regulation indicates the lack of transfer of technical knowledge from other fields.

Regulations for aircraft were promulgated years ago by the Federal Aviation Administration, and similar requirements could be applied to all new railroad construction.

Inward opening doors have been prohibited in public buildings for half a century.

Emergency lighting, another factor in this same accident, could be required to be installed in existing trains. The Board does not know the cost of such regulation, but such lights are already required in restaurants, churches, and other places of public gathering,

In another case now under Board review, a broken rail, originating at a bolt hole in a rail joint triggered a sequence of hazardous material fire and explosion in a small community, requiring the evacuation of the town and causing damage exceeding $500,000.

The interesting point here is that rails have been breaking at bolt hole stress concentration points for many decades.

The cost to the railroads of replacing the rails and of the accidents from such failures must be very high by now. It seems clear that rail joint design should not employ bolt holes, but no low-cost substitute, as I know, has yet been developed, or if it has been developed it is not in general use.

This example illustrates not only the need for engineering development by industry, but the need for forceful Government action to energize such development. Design to prevent repeated failures is a very ordinary kind of engineering development problem.

We have indicated to the Secretary our awareness that his current regulatory authority did not encompass many areas related to the causes of railroad accidents. Our concern about the state of railroad operations vis-a-vis safety, for example, was indicated in the recommendations accompanying our report on the railroad collision in New York City, where we stated that there is clear need for a reappraisal, a self-assessment and corrective action by the railroad industry.

We further indicated our belief that the primary responsibility for improved railroad safety should rest upon railroad management and labor. That is still our belief. However, we said that if it appears that they cannot or will not accept the challenge promptly to arrest the worsening railroad accident picture, consideration should be given to supporting or proposing Federal legislation which would provide additional safety regulatory authority for the Department of Transportation in the railroad safety field.

The Department is now seeking such action—as is set forth in H.R. 16980. On the basis of his review of the railroad safety program, the Secretary has concluded that broad authority to provide safety standards is required. Under this bill, the piecemeal efforts of years would be replaced by one comprehensive statute. The Secretary would be authorized to set minimum standards in areas where there is, at present, no Federal regulation.

For example, standards for the design and construction of rail facilities and equipment would be possible. In our review of the Everett case, discussed above, we recommended such action.

Minimum standards for inspections of all facilities and equipment, not just for locomotives, also could be established. Minimum standards for the operations of rail carriers, including training and company operating rules could be authorized; as clearly noted in our report of the New York Central accident.

The Secretary would have the authority to effect uniform regulation for all those areas needing action, as demonstrated in the cases reviewed by the Board, and in the areas which have been the major causes of the accelerated accident rate in the railroad industry.

The Secretary in transmitting this proposal to the Congress, indicated the intent to prescribe safety standards based upon "continuing research programs and upon the changing transportation needs **** We agree there must be sufficient natural development of advanced

safety technology to feed advanced regulations. There is a need for innovation and technological development in rail safety which would not necessarily be assured by regulatory authority alone.

The provision of this bill having direct effect on our Board is section 11, concerning accident investigations. It would preserve the existing relationship between the Department and the Board as spelled out in the Department of Transportation Act, and to which I referred in my opening remarks.

The Secretary would have the authority to investigate accidents, the Board would determine cause and report the conditions and circumstances. The Board would be permitted to delegate to the Department the determination of cause and reporting of minor accidentsthereby enabling the Board to devote its energies to major accidents of a catastrophic nature. The Board would also have and retain its parallel authority to investigate railroad accidents, under section 5(d) (4) of the Department of Transportation Act.

Section 11 would also retain the existing law concerning the use of reports of railroad accidents in private litigation (45 U.S.C. 40) and recognize the existing practice of permitting Department and Board investigators to present testimony concerning facts developed during investigations and which cannot be obtained from other sources,

The proposed language, as it refers to accident reports of the Board, would parallel the existing law and practice in aviation (49 U.S.C. 1441(e)) and motor carrier (49 U.S.C. 320(f)). The public would have access to the facts and at the same time to do so with minimum burden to the small staff of investigators who are engaged in this activity.

I do not feel that the primary concern at this point is the safety of passengers on today's trains. The railroad fatality rate on a passengerwide basis is as low as is found in any form of transportation. We need to be concerned about the railroad employees and bystanders who do not directly benefit from rail traffic, but are in conflict with it.

I will not repeat again the full statistics for employee casualties which you have already heard. I would point out, however, that the rates of bystanders fatalities to user fatalities is far higher in railroad operation than highway safety or air travel.

In 1967, there were 12 passenger fatalities, 167 fatalities among employees, and 2,279 fatalities at grade crossings and at other places where people get into contact with the railroad. This includes all categories of accidents reported to the Federal Railroad Administration, irrespective of legal status of those killed, and includes so-called trespassers.

In highway usage in 1967, there were 43,600 fatalities among persons riding in vehicles and 9,400 among pedestrians. In domestic commercial air transport there were 226 passenger fatalities and only 14 fatalities among persons on the ground.

The disparity in the railroad safety problem is important in the philosophy of this law. Both management and labor need more safety, but the bystanders to rail operation need it even more.

In my judgment, the railroad accident picture is serious and urgent. The Secretary, after a detailed review of the problem, has concluded that broader legislation is necessary and that a uniform and compre

hensive program for railroad safety requires such authority. The proposal you have before you would provide for such a program.

That concludes my statement, Mr. Chairman.
The CHAIRMAN. Thank you, Mr. O'Connell.

This bill is aimed to improve railroad safety. It would seem to me that the bill helps in the profits that everyone would want and that is the motive that all businesses strive for, the profit motive.

Another witness made the statement that the total money cost of accidents to the railroad alone amounted to $249 million in 1966. In that year, the totals were $904 million profits; total cost of accidents was $249 million.

It seems to me if we could bring down the accident rate, it would help the cost to the railroads, profits and everything else, as well as save lives and the dangers that you have talked about here to bystanders and to those who work on the railroads. I think this would necessarily follow.

I notice another statement of Mr. Venk that he said in his testimony it would probably take years to work out safety regulations in the areas not covered by Federal or State laws. I don't believe that would be any reason not to start, do you?

Mr. O'CONXELL. No; I believe it is time.

The CHAIRMAN. I think some should start now and make up a uniform law. I think that perhaps some railroads have some very fine regulations and enforce them but there evidently are some who do not. I think we should have the minimum standard of some kind to see that they are enforced.

Mr. O'CONNELL. I could not agree with you more, sir.

The CHAIRMAN. I would like to ask you about the effect, it is not quite clear to me, of section 11(b) and section 11(c) of the bill. Does this change your authority of the Department of Transportation Act?

Mr. O'CONNELL. It is our opinion that it does not. Our opinion is that the effect of section 11(b) is merely confirmatory of the authority that we now have under the Transportation Act. It was not intended nor does it hare the effect, in our view, of cutting down or restricting the authority that we presently possess.

If I felt it did, I would be most anxious that something be done in the way of clarifying it because certainly there is no intention on the part of the Department or those who drafted the legislation to have this legislation which you are considering to change the authority which the National Transportation Board now has.

I must say the concept of the independence which we have which is stated in the Department of Transportation Act is a rather difficult thing to understand clearly because it is rather anomalous in Government affairs. We are a part of the Department and we are directed to carry out our obligations and functions independent of the Department. We are most conscious of that authority. The Department is most meticulous in recognizing that and we believe that the present law is unchanged by the proposals.

The CHAIRMAN. Well, in section 11(c) of this bill, it states a number of your actions cannot be admitted into evidence; your employees cannot be required to give expert testimony even in a damage suit.

Does this also apply to section 5(d) and section 5(e) of the Transportation Act?

Mr. O'CONNELL. No; that has exactly the same effect of present law.

There would be no change in authority since it was the intent of the Department and this Board, in drafting this provision, that it would relate only to accident investigations, reports, and determinations of cause undertaken pursuant to the proposed Federal Railroad Safety Act. We do not believe that the statutory limitation on the usage of reports as evidence or the provisions concerning providing of factual testimony by Board employees would extend to investigations and reports undertaken pursuant to the Board's independent authority set forth in section 5(d) (4) of the Department of Transportation Act.

However, if it were to be determined that the provisions of section 11(c) were applicable to investigations conducted under section 5(d) (4), it would have an effect upon the Board, albeit not an adverse one. At present, the requirement of section 5(e) that the Board make public its reports, is not applicable to subsection 5(d) (4), as you indicate. Thus, the Board does have discretion but it is the policy of this Board to make public all of its reports of accidents.

Concerning the use of reports of investigations under section 5(d) (4), as distinguished from availability, the subject of section 5(e), there is no statutory limitation. Neither is there any statute concerning the giving of testimony in civil actions by employees who have engaged in such investigations. However, the general rules of evidence do, in our judgment, bar admission into evidence of such reports even lacking such a statutory provision. Also, it is the Board's policy to make its investigators available to give factual testimony where such evidence is not available by other means. Similarly, it is our policy to forbid employees from giving expert or opinion testimony. These policies are common to all of our investigations, including aviation accident investigations, even though there is no existing statutory provision comparable to that proposed under section 11(c). This policy has been accepted by the courts for aviation matters (Universal Airlines, Inc. v. Eastern Airlines, Inc., 188 F.2d (C.A.B. 1951)).

(The following letter was subsequently submitted by Mr. O'Connell :)

DEPARTMENT OF TRANSPORTATION,
NATIONAL TRANSPORTATION SAFETY BOARD,

Washington, D.C., June 21, 1968.
Hon. HARLEY 0. STAGGERS,
Chairman. Committee on Interstate and Foreign Commerce,
House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: This is in reply to your letter of June 10, 1968, concerning certain provisions of H.R. 16980, a bill which would authorize the Secretary of Transportation to establish certain standards for railroad safety.

During my appearance before your Committee on Wednesday, June 5, 1968, I indicated that Sections 11 (b) and 11(c) of his bill would not effect any limitation upon the authority of this Board. Concerning Section 11(b), I believe we are in agreement that this merely confirms existing law as now embodied in the Accident Reports Act and Section 5(b) (1) of the Department of Transportation Act.

Concerning Section 11(c), I indicated there would be no change in authority since it was the intent of the Department and this Board, in drafting this provision, that it would relate only to accident investigations, reports, and determi. nations of cause undertaken pursuant to the proposed Federal Railroad Safety Act. We do not believe that the statutory limitation on the usage of reports as evidence or the provisions concerning providing of factual testimony by Board employees would extend to investigations and reports undertaken pursuant to the Board's independent authority set forth in Section 5(d) (4) of the Department of Transportation Act.

95–388—6823

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