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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 hare 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 prerail.

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?
VIr. 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. SPRIXGER. 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.

Mr. KORXEGAY. Well, you state, though, Mr. O'Connell, in the report that the railroads—and by that I assume you mean both the management and the brotherhoods, the two working together-should use voluntary methods to improve safety.

Mr. O'CONNELL. Right.

Mr. KORNEGAY. Then you go on to say that if that does not prove satisfactory, does not improve the picture, then legislation for better regulations would be called for.

Mr. O'CONNELL. Yes.

Mr. KORNEGAY. But it would appear to me that you had not given the brotherhoods and the management an opportunity yet to change their procedures if they are called for and try to improve their safety record.

Mr. O'CONNELL. It is not up to us to give them an opportunity or not. We certainly felt that they should use every possible means to improve their situation. The Secretary in recommending the legislation had the advantage

such information as we have selected from our accident investigations, and we have called his attention to the general declining record of safety in the railroads.

Based on that and with other information, the Secretary came to the conclusion that the time had run out, that it was time for the Congress to consider legislation. We have no difficulty with that.

Mr. KORNEGAY. But the position you took in your report which was filed back a couple months ago and the position you take here today is somewhat inconsistent on it.

Mr. O'CONNELL. Well, I don't believe so. It may be but I don't believe so. I believe we would urge them in any event to do all that they can. We had hoped that these very hearings would give the railroads an opportunity to tell the committee what they had done in recent months, either following our admonition or their own good judgment in terms of reversing this trend.

Mr. KORNEGAY. Do you have any figures or statistics or have you accumulated them in the past 2 months to indicate whether there has been any improvement?

Mr. O'CONNELL. No, I would not expect there had been any. You would have heard about it from the railroads.

As I say, I thought the railroads would have used this as a forum to explain to you people what they are doing.

Mr. KORNEGAY. Your Board, part of its function is to collect statistics, is it not?

Mr. O'CONNELL. Well, we do not collect statistics. We would get statistics as available through the railroads.

Mr. KORNEGAY. They are made available to you?
Mr. O'CONNELL. Yes.

Mr. KORXEGAY. My question is this: Do you have any way to indicate whether the picture with reference to safety is improving, tending to stay about as it was, or declining?

Vr. O'CONNELL. No, I have no general information as to any change or lack of change in the last 3 or 4 months.

Mr. KORNEGAY. Your Board is an independent board, as I understand it. is it not?

Mr. O'CONNELL. That is true.

Mr. KORNEGAY. You are not under the jurisdiction, control, or supervision of the Secretary?

Mr. O'CONNELL. No.

Mr. KORNEGAY. This opinion that you render here today, is it one you and the Board arrived at independent of any suggestion from anybody else in Government or otherwise?

Mr. O'CONNELL. Yes, it was.

Mr. KORNEGAY. Do you have any difficulty with the authority granted in this bill to the Secretary that would put him in a position of overseeing and in some instances actually initiating conditions or terms of contracts entered into between the brotherhoods and management?

Mr. O'CONNELL. No, I have no difficulty with that at all.

Mr. KORNEGAY. In other words, you feel that he should have that authoritv if he feels that

Mr. O'CONNELL. As I understand the authority he has in this bill, which is comparable to the authority of the Administrator in the aviation field in this regard, I think that it is alright. Mr. KORNEGAY. That is all. Thank you. The CHAIRMAX. Mr. Harvey. Mr. HARVEY. No questions. The CHAIRMAX. Mr. Pickle. Mr. PICKLE. Thank you, Mr. Chairman. I do have a few questions I would like to ask Mr. O'Connell.

First, in the bill, H.R. 3440, which is a bill to amend the FAA act and authorize aircraft noise abatement, the bill as originally sent to our committee directed that the Secretary was empowered to establish certain standards. Our subcommittee and full committee changed that language to read that it would be the administrator of the FAA, and I believe it is fair to sav that there was general agreement between the FAA and the DOT that this would be a satisfactory arrangement inasmuch as the actual certification for safety originated and was controlled by the FAA, and therefore they were related so closely it was all right.

The bill that comes up this time has this same problem. It says, “The Secretary is empowered."

Now, what is your position if we were to change the language? Should we chance the language to read that the Secretary, the Administrator of the Railway Safety Board-or perhaps I should ask you who would be a counterport to the FAA Administrator under the noise abatement bill. Would you take that approach?

Mr. O'CONNELL. I believe that the counterpart to the FAA Administrator in the noise abatement bill would be the Railroad Administrator under this bill. I was not a party to the consideration that led the committee to change the language to substitute the FAA Administrator to the Secretary, but that is a matter for the Congress to consider.

I certainly know that as a practical matter the authority given to the Secretary will, as an operating matter, be carried out through the Railroad Administration but I have no feeling about it.

Mr. PICKLE. Then vou would not express an opinion as to whether it would be changed or whether it ever should have been changed?

TILI.

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