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 1sted 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.

Mr. PULS. As I understood the testimony of the Secretary, and I think we agreed

Mr. SPRINGER. Don't tell me what the Secretary says. Tell me what you interpret as the attorney for this Board.

Mr. PULS. Under the general authority of 3(a) of this act, it seems there is authority for certain parts of the grade crossing problem, those particularly referring to the railroad rights-of-way. I don't see anything there that runs to the other part of the problem, the highway problem.

I assume the Secretary has authority under the Highway Acts. This is an area that is traditionally local, highways left to the States, and it is my understanding that is why it is set forth.

Mr. SPRINGER. Counsel, let me ask you this question: Suppose the State of Illinois says that a grade crossing can be 10 percent and the Federal Administrator says it shall be 5 percent. Which controls?

Mr. PULS. My understanding is that he has stated that he does not have the authority to do that under this act.

Mr. SPRINGER. Is that what the Secretary said?

Mr. PULS. My understanding is that this is on the highway side, not the railroad side.

Mr. SPRINGER. He did not say that at all. What he said was that if it contradicts, I have the authority to say what that grade shall be. That is what he said.

Mr. PULS. If he has the authority, then his will preempt.

Mr. SPRINGER. Then what we are saying is that whenever it conflicts with the Federal regulation, the Federal regulation shall prevail. Mr. PULS. Yes.

Mr. SPRINGER. All right.

Now we have it down and we understand each other. I wanted to see if you understood this.

Now, Mr. Chairman, in those defects in failure of equipment which is the largest cause of the derailments, what has happened to that? Mr. O'CONNELL. I am sorry. I missed the last of your question. Mr. SPRINGER. I will repeat the question.

Defects or failure of equipment what has happened in that field in the last few years?

Mr. O'CONNELL. What has happened in the field?

Mr. SPRINGER. Yes.

Mr. O'CONNELL. Other than the rising tide of accidents, do you mean?

Mr. SPRINGER. Well, has that gone up or down?

Mr. O'CONNELL. It has gone up, of course. That is one of the reasons that we are here.

Mr. SPRINGER. What about causes of derailment? Has it gone up or down?

Mr. O'CONNELL. The costs?

Mr. SPRINGER. The causes.

Mr. O'CONNELL. Very little change in causes.

Mr. SPRINGER. Proportion of derailment causes.

Mr. O'CONNELL. There is very little change over the years in proportion of causes of derailments.

Mr. SPRINGER. Due to failure of equipment, defects of equipment. Mr. O'CONNELL. That is exactly right. Very little change.

Mr. SPRINGER. Is that what your statement says?

Mr. O'CONNELL. I am saying that, whether my statement says that or not.

Mr. SPRINGER. Let me read your statement:

Defects in or failure of equipment, on the other hand, though still the largest group of causes of derailments, had declined as a proportion of derailment causes from 47.5 percent in 1961 to 34.9 percent in 1966.

Is that rail changes?

Mr. O'CONNELL. What I understood you to ask and what I believe I said was that within the derailment field caused by failure of equipment there has been little change in the proportions of the various types of equipment defects.

Mr. SPRINGER. Well, Mr. Chairman, I don't think you have answered my question if that is what you said. I think I have answered the question by putting in the record what you did say and that is that it had declined as a proportion of derailment causes due to the defective or faulty equipment of 47.5 percent to 34.9 percent.

That is a true statement, isn't it?

Mr. O'CONNELL. Yes.

Mr. SPRINGER. That is the answer to the question which I asked.
Mr. O'CONNELL. I will accept it.

Mr. SPRINGER. I want to ask your counsel a question.

Does H.R. 16980 curtail any powers you have?

Mr. PULS. No, sir; it does not.

Mr. SPRINGER. You are sure?

Mr. PULS. Yes, sir.

Mr. SPRINGER. That is not the opinion that is given to us by our counsel who we think has been in this field a long time.

The thing that bothers me about this is here you are asking for one thing and the Secretary comes in and I cannot say but what he accomplishes exactly the same thing under this bill in which he asks this authority. We cannot understand on this committee, at least the ones that are reading this pretty carefully line by line, that what he is asking in effect is for practically the same authority that you already

have.

It does not keep you from doing the same thing but he has practically the same authority that you do, to investigate accidents.

Mr. O'CONNELL. May I answer that?

Mr. SPRINGER. Yes.

Mr. O'CONNELL. It is true that he does and that is true in other modes of transportation.

I believe that the authority in this bill giving the Secretary the authority to investigate accidents was put there intentionally to give him an authority which he needs ancillary to his need to regulate.

The fact that we have authority to investigate too makes this comparable to what already exists in other fields.

Mr. SPRINGER. Do you think there are two agencies, then, that are needed to investigate accidents?

Mr. O'CONNELL. Yes, and so does the Congress as of right now. Mr. SPRINGER. But we have not passed this bill yet.

Mr. O'CONNELL. You passed the Transportation Act in 1966 which created this agency.

Mr. SPRINGER. Under that act, does the Secretary have the same power to investigate accidents that you do?

Mr. O'CONNELL. Except to the extent conferred in this area, of course he does.

Mr. SPRINGER. Then you have two agencies doing the same thing; is that correct?

Mr. O'CONNELL. We have two agencies which have authority to investigate accidents; that is true. Mr. SPRINGER. All right.

That is all, Mr. Chairman.

The CHAIRMAN. Mr. Kornegay.

Mr. KORNEGAY. Thank you, Mr. Chairman.

Mr. O'Connell, nice to see you this morning. I am sorry I was detained and did not have time to hear you present your formal

statement.

I have not had an opportunity to read your statement.

You endorse this legislation?

Mr. O'CONNELL. Yes.

Mr. KORNEGAY. As it is written?

Mr. O'CONNELL. We have no difficulty with it as it is written.

Mr. KORNEGAY. No amendments?

Mr. O'CONNELL. We have none to suggest.

Mr. KORNEGAY. The reason I asked you that, the second witness has come in and endorsed it and it seems like most of them are in opposition to this particular bill for various reasons.

I understand the brotherhoods have 40-some amendments they think should be made to it. The railroad management has a quarrel with it, as well as others.

Now, as Chairman of the National Transportation Safety Board, I believe under the law you are required to submit reports to the Congress on an annual basis; is that correct?

Mr. O'CONNELL. That is true.

Mr. KORNEGAY. And you submitted back earlier this year, on March 15, a copy of that; is that correct?

Mr. O'CONNELL. That is correct.

Mr. KORNEGAY. Now, in that report, on page 6, I find the following language:

We believe the rail industry should immediately consider a review of the rules and voluntarily agree to adhere to specific amendment standards. If such voluntary standards should prove unsuccessful, there may be increased Federal regulation. However, in the first instance we recommend that the Department examine the feasibility of the industry revising and amending its rules and observing them voluntarily.

Mr. O'CONNELL. Yes.

Mr. KORNEGAY. This is a statement from the report.

What has happened in the last few weeks since the filing of this report to change your mind with respect to the approach that should be made to increase the safety on the railroads?

Mr. O'CONNELL. Well, I would say nothing has changed our basic belief in the situation. We filed that report in March and we had written the New York Central report in January, in both of which we suggested-and we still suggest that the primary responsibility for safety is on the industry and both management and labor.