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However, if it were to be determined that the provisions of Section 111e) 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(e). 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)).

To clarify my testimony concerning the above, I have enlarged upon my immediately preceding answer in the hearing record. Sincerely yours,

JOSEPH J. O'CONNELL, Jr.,

Chairman. The CHAIRMAN. It seems to me that section (c) almost is exactly the opposite from section 12(c) of the Natural Gas Pipeline Safety Act.

Mr. O'CONNELL. It is.
The CHAIRMAN. Were you consulted as to this difference?
Mr. O'CONNELL. No.

The CHAIRMAN. What is your opinion as to what procedures should be followed ?

Mr. O'CONNELL. We believe the provision in this law is preferable. Let me say the provision in this law with respect to the use of reports. the availability of our reports, or the lack of availability of them is the same basic provision as has existed in the aviation field for 30 vears. It has been in existence in the railroad field for some time and, as I understand it, the pipeline bill proposed that reports of this agency or action reports are available for use in private litigation.

This legislation continues the existing limitation from other fields and we prefer it. We believe it is more consistent with the longadhered-to pattern with respect to the use of these reports. We prefer it.

(The following correspondence was subsequently submitted for the record :)

DEPARTMENT OF TRANSPORTATION,
NATIONAL TRANSPORTATION SAFETY BOARD,

Washington, D.C., June 12, 1968.
Hon. HARLEY 0. STAGGERS,
Chairman, Committee on Interstate and Foreign Commerce, Rayburn House Office

Building, Washington, D.C. DEAR CONGRESSMAN STAGGERS: This is in reply to your letter of Vay 22. 1968, concerning S. 1166, a bill providing for safety standards for the transportation of natural gas by pipeline as certain sections relate to our operations.

Under Section 5(a) of the Department of Transportation Act, the Board was established within the Department of Transportation. To the extent the Board is within the Department under this provision, its employees can be considered to be officials and employees of the Department. For some purposes, therefore, employees of the Board can be considered to be employees of the Department.

However, the Board, including its officials and employees, under Section 5(f), is independent of the Secretary and other offices and officials of the Department in

the exercise of its functions, powers, and duties. This independence is further emphasized by the requirement that the Board submit an annual report to the Congress under Section 5(g); that it has authority to issue rules, regulations and procedures under Section 5(1); that it can select, appoint, employ and fix compensation of its employees under Section 5(n); and by reason of the additional fact that its budget, while submitted with that of the Department, is not subject to Department review.

In our judgment, it would be difficult to conclude that under Section 12(c) Board employees would be found to be officials, employees, or agents of the Department of Transportation, particularly if one interprets its general language in the light of the more specific language concerning the use of accident reports used in H.R. 16980, the proposed railroad safety standards bill. Thus, in natural gas pipeline accidents investigated by the Board, under Section 5(d) (4) of the Department of Transportation Act, reports of the Board would not be subject to Section 12(c) nor would its officials or employees be subject to the requirements of Section 12(c) concerning the giving of testimony in judicial proceedings. However, as previously indicated in my letter of May 20, 1968, Board reports would be subject to the normal rules of evidence and would be made public pursuant to Section 5(e). Also, the current Board policy of permitting its investigators to furnish facts in private litigation, not otherwise obtainable from other sources, would be applicable. Sincerely yours,

JOSEPH J. O'CONNELL, Jr., Chairman,

HOUSE OF REPRESENTATIVES,
('OMMITTEE ON INTERSTATE AND FOREIGN (OM MERCE,

Washington, D.C., June 20, 1968,
Hon. JOSEPH J. O'C'ONNELL, Jr.,
National Transportation Safety Board,
Department of Transportation, Washington, D.C.

DEAR ('HAIRMAN O'CONNELL: This acknowledges your letter of June 12 in which you comment on a provision of S. 1166 having to do with the availability of your reports as evidence in a suit for damages.

I note that you do not furnish a clear-cut answer to the problem of whether or not for the purposes of section 12(c) in that bill, Board employees would be found to be officials, employees or agents of the Department of Transportation, but say that in the light of the language contained in another bill, H.R. 16980, that you think it would be difficult so to conclude.

I must acknowledge I am confused by the last paragraph of your letter in which you refer to section 5(e) of the Department of Transportation Act, requiring the making public of your reports and your reference to section 5(d) (4). As I read it, reports under section 5(d), except for 5(d) (4), are required to be made public by section 5(e). Sincerely yours,

HARLEY O. STAGGERS, Chairman.

DEPARTMENT OF TRANSPORTATION,
NATIONAL TRANSPORTATION SAFETY BOARD,

Washington, D.C., June 25, 1968.
Hon. HARLEY O, STAGGERS,
Chairman, Committee on Interstate and Foreign Commerce,
Rayburn House Office Building, Washington, D.C.

DEAR MR. CHAIRMAN: This is in reply to your letter of June 20, 1968, with further reference to section 12(C) of S. 1166, a bill providing for safety standards for the transportation of natural gas by pipeline.

Concerning the application of the provisions of section 12(c), it is our conclusion that Board employees would not come within the applicability of this section. My reference to H.R. 16980, the proposed railroad safety bill, was intended solely to indicate that in that bill a specific reference to the Board was inserted so that its employees and reports would be covered by this section. There is no comparable reference in section 12(c) of S. 1166.

With reference to the last paragraph of my previous letter of June 12, 1968, I can understand your confusion, since we made reference to the requirements

of section 5(e) in discussing the public release of reports of accidents investigated under section 5(d) (4) of the Department of Transportation Act. This was in error. The public release of such reports is discretionary with the Board. However, it is Board policy to make public all reports of accidents, including those investigated under that section. We deem the availability of our reports to the public as a most necessary ingredient to obtaining our primary objective-accident prevention. I trust the above will clarify our position in this matter to your satisfaction. Sincerely yours,

JOSEPH J. O'CONNELL, Jr., Chairman. The CHAIRMAN. Mr. Friedel.

Mr. FRIEDEL. Mr. O'Connell, I would like to add to the opening remark made by the Chairman about the terrible tragedy that we heard early this morning of the shooting of a presidential candidate. I would imagine that there would be many, many more here today but they are glued to radio and television waiting to hear the latest news. It is a terrible thing; I don't know what the country is coming to.

On page 2 of your statement where you say, "We are authorized to make recommendations to the Secretary or Administrators," would this act if it is passed make it mandatory that they accept your recommendations or you just make the recommendations and it is up to the Secretary to accept them or disregard it?

Mr. O'CONNELL. This proposed legislation would not change the existing authority at all. The Secretary or the Administrator has the option to accept them or not. Mr. FRIEDEL. Your recommendations are not binding?

Mr. O'CONNELL. They are not binding; that is true. This legislation would not change that.

Mr. FRIEDEL. Thank you, Mr. Chairman.
The CHAIRMAN. Mr. Springer.

Mr. SPRINGER. Mr. O'Connell, how long have you been Chairman of the Transportation Safety Board?

Mr. O'CONNELL. Since May 2, 1967.

Mr. SPRINGER. Subsequent to the formation of the Transportation Department?

Mr. O'CONNELL. Yes; the Department came into existence legally on April 1, 1967.

Mr. SPRINGER. If H.R. 16980 were enacted, would it be your duty to enforce that law?

Mr. O'CONNELL. No.
Mr. SPRINGER. Whose duty would it be to enforce that law?
Mr. O'CONNELL. The Secretary of Transportation.

Mr. SPRINGER. Now, where do you differentiate from the Secretary insofar as the powers and the duties are concerned?

Mr. O'CONNELL. Well, in the literal sense of regulation, we have no power at all. The Secretary would have the power to regulate the railroads to the extent authorized by the legislation that you are considering. He would have the authority to determine what regulations were required with the due process involved.

Under the Administrative Procedure Act, he would issue such regu. lations and his people would enforce those regulations.

Mr. SPRINGER. What would you do?

Mr. O'CONNELL. We would continue to do what we have done in this and other fields since the first of May last year. We would monitor

the systems; we would investigate accidents on occasion; we would observe the process of both the industry and of the regulating agency, and to the extent that we felt something was amiss or could be improved it would be our obligation to make recommendations to that end.

Mr. SPRINGER. What primarily is your duty ?

Mr. O'CONNELL. Well, it is difficult to say in a word. Our statutory duty is to concern ourselves with safety in all modes of transportation by investigation, by observation, by inquiry, and to convert that which we have learned into meaningful results through making recommendations, either to the Department, to an industry, or on occasion, to the Congress.

Mr. SPRINGER. You have no power under the National Transportation Safety Board to act ?

Mr. O'CONNELL. No.

Mr. SPRINGER. “Has the power to initiate on its own motion or conduct a rail, highway, or pipeline accident investigation as the Board deems it necessary or appropriate." Mr. O'CONNELL. That is true. Mr. SPRINGER. Would this act change that? Mr. O'CONNELL. No.

Mr. SPRINGER. “Request the Secretary or Administrators to initiate specific and accident investigations or conduct further investigations as the Board determines to be necessary or appropriate."

Is that changed ?
Mr. O'CONNELL. No.

Mr. SPRINGER. “Arrange for personal participation of members or other personnel of the Board in accident investigations conducted by the Secretary or Administrators in such cases as it deems appropriate."

Is that changed ?
Mr. O'CONNELL. No.
Mr. SPRINGER. Let me repeat this:

Arrange for personal participation of members or other personnel of the Board in accident investigations conducted by the Secretary”.

Will he have the authority to conduct any investigations?
Mr. O'CONNELL. Yes.
Mr. SPRINGER. Still will?
Mr. O'CONNELL. He does.
Mr. SPRINGER. Will he have it under this act ?

Mr. O'CONNELL. This act will give it to him specifically in connection with railroad regulations; yes.

Mr. SPRINGER. Now, if you investigate that and he investigates that, then there is no job for you to investigate it, is there?

Mr. O'CONNELL. That overly simplifies the situation, if I may say so. If this law is passed, it will bring the railroad industry into line with the present existing situation in this field with the aviation industry, if you will, and with the interstate truck and bus industry, the maritime industry, and so forth.

Each of the agencies has the responsibility to regulate safety in a given field as with the authority and responsibility to investigate accidents for the purpose of learning what they can from them.

Mr. SPRINGER. Why is it necessary for you to request the Secretary to conduct such investigation?

Mr. O'CONNELL. Well, it was not known when that law was passed whether we would have to request him to but that we were given authority to request him to if we thought he should make an investigation that he was not inclined to do.

Mr. SPRINGER. What will happen if we passed this law?

Mr. O'CONNELL. Well, as far as our activities are concerned, our relationship with the Department will go on exactly as before.

Mr. SPRINGER. Will he have authority to make separate investigations if he wanted to? Mr. O'CONNELL. Oh, yes. Mr. SPRINGER. What I cannot understand is what your need is. Mr. O'CONNELL. You mean why we exist? Mr. SPRINGER. Yes.

Mr. O'CONNELL. Well, I might say that the Congress of the United States when it passed the Department of Transportation Act felt there was a need for the type of function which you have been describing and they felt it was important enough to create the Board and to give it the independence which the statute provides and provide us or clothe us with those responsibilities which you have been reading.

The Board has been in existence for about a year now and we have yet to be disabused of the impression that the Congress was wise.

Mr. SPRINGER. Do you feel that your powers have been curtailed any by this act?

Mr. O'CONNELL. Not one bit.
Mr. SPRINGER. You are sure of that?
Mr. O'CONNELL. Yes; I am sure of that.

Mr. SPRINGER. Now, I gather from your statement that one of the greatest areas of danger in railroad safety is the grade crossing; is that right?

Mr. O'CONNELL. To human life: yes.
Mr. SPRINGER. That is where most of the deaths occur.
Mr. O'CONNELL. True.

Mr. SPRINGER. In other words, several hundred times the number of people killed by employees on railroads are killed at grade crossings.

Mr. O'CONNELL. About 10 times, I would say.

Mr. SPRINGER. Now, why is this area specifically from the safety jurisdiction of DOT?

Mr. O'CONNELL. Why, is it excluded ?
Mr. SPRINGER. Yes.

Mr. O'CONNELL. I don't believe it is entirely excluded if I understand the law.

Mr. SPRINGER. What do you mean by not entirely excluded ? Would you pin that down?

Mr. O'CONNELL. I would be glad to.

As I understand the legislation, the railroad grade crossing problem is one of the areas which is initially reserved to the States, if I am not mistaken, subject to the right of the Secretary to enter into the situation if the situation requires it. My understanding is it is a matter of division. It is one of the areas which is Isted as amatter of jursdiction of the States.

Mr. SPRINGER. When you say that you understand that is a matter of jurisdiction of the States, give us legal opinion on that.

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