Mr. KORNEGAY. 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 of 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. KORNEGAY. 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?

Mr. 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 authority 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 CHAIRMAN. Mr. Harvey.
Mr. HARVEY. No questions.
The CHAIRMAN. 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 say 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 change 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 you would not express an opinion as to whether it would be changed or whether it ever should have been changed?

Mr. O'CONNELL. No.

Mr. PICKLE. Now, also in that noise abatement bill, we had a specific requirement that these standards were to be established by the Administrator. We said clearly that in prescribing and amending the standards in the rules the "administrator shall," and we listed three things to consider: (1) Relevant available data relating to aircraft noise and sonic boom included research, development testing, evaluation; (2) consult with the safety agencies; and (3) considered proposed rules consistent with the high degree of safety and other facts.

What we were getting at was before these rules or standards would be put into effect there would have to be a specific finding of fact as to economic ability, as to their safety, as to their demand, and so forth. Now, there is no finding of fact at all in this particular measure. I asked Secretary Boyd why this kind of thing would not also be applicable in this particular place, the noise abatement bill. His reply, as I recall it, was that in effect it would be provided for under the Administrative Procedure Act, and there was some disagreement as to whether he did or didn't agree to this testimony a week ago.

My question to you is: Why should we not put this extra language in there so that in the future when we go to establishing these standards pertaining to safety, the railroad transportation, a railroad company would have a right of protection under the Administrative Procedure Act and under these other findings of fact that what they would be asked to do was reasonable, fair, practical, timely, and safe. Do you have any feeling about that?

Mr. O'CONNELL. Well, I think, as I understand it, that the Secretary addressed himself to that problem and he stresses as I would, the fact that under existing law and under the Administrative Procedure Act that the formulation of any regulations in this bill as in other bills would be subjected to the very careful scrutiny of the industry concerned or labor interests or what have you.

Without specifying a certain thing that you were mentioning, there are many protections which surround the rights that regulate these, if you will, under existing law.

Mr. PICKLE. I am sure that that may be true but what objection should there be to putting it in the law and spelling out that there would have to be these findings of fact and the means of giving fair and equal protection to whatever agency might be presented, whether it is in the aviation or railroad field?

Mr. O'CONNELL. Congressman, the only hesitancy I have, I am not sure whether a detailed series of requirements of the sort that you are describing might not unnecessarily hamper the operation we are talking about. I just do not know. I can see that it was adopted in the narrow field of noise abatement and I am just not clear how good it would be in a general bill like that.

Mr. PICKLE. Of course, you would not want it to hamper, but I think we would be less concerned about it hampering somebody than we would, the law would work equally and fairly to all agencies concerned.

I am concerned about the appeal under the noise abatement, that the National Safety Board Act has the final appeal-it has the control over the FAA and DOT. Would that be the situation here, that you get final appeal?

Mr. O'CONNELL. No. In this; no. We have no jurisdiction with respect to regulations issued under this act.

Mr. PICKLE. That is not why it should be any

Mr. O'CONNELL. No.

different.

Mr. PICKLE. I don't believe you answered my question.

I say, why would we not have a very definite delineation of appeal in this particular measure that would go to your Board? Now, it may be in this act; I have not noticed that part of it.

Mr. O'CONNELL. It is not in this act and I would very strongly oppose any suggestion that regulations issued by the Secretary or an Administrator under this act be subject to appeal to the National Transportation Safety Board. There is no such provision in other law. Mr. PICKLE. If we provide for it in this particular bill, there would be a final appeal to you.

Mr. O'CONNELL. If you mean in the noise abatement bill; yes.
Mr. PICKLE. Are you not for that?

Mr. O'CONNELL. It is all right with me. We didn't ask for it. Mr. PICKLE. Then if it is all right with you, do you think this also ought to be put in the railroad bill?

Mr. O'CONNELL. No; definitely not.

Mr. PICKLE. What is the difference?

Mr. O'CONNELL. Entirely different. This is a very narrow question involving noise abatement and the statute, as I understand it, contemplates an appeal to us.

Mr. PICKLE. I submit to you, and I know I am over my time, we are talking about the same common denominator and that is safety. It is just not design; it is not construction; it is not rolling stock or it is not new jet engines. The common denominator is safety and in that respect there ought not to be any difference. You say it is a short line; I differ with you.

Mr. O'CONNELL. Mr. Congressman, I would like to make it clear that in my judgment the idea of having an appeal in terms or regulatory power under this legislation appeal to the National Transportation Board would very significantly change the role of the National Transportation Safety Board and make it an entirely different organization than it was ever intended to be. We have no such authority with respect to regulations issued by the Federal Aviation Administrator. For example, appeals by people in the regulatory field go to the courts; they do not in any other area go to us. We were not set up as an appeal agency regardless of the fact we are going to listen to appeals regarding noise abatement.

Mr. PICKLE. In noise abatement, we do provide and there is a provision, generally speaking, that there would be judicial review. You always have your right to go to court. We are trying to see under the Administrative Procedure Act the means of just, reasonable administration of a standard that there would be appeal.

The bill was written to go from the Administrator in consultation with the Secretary to the Board. Now, you tell me that that is good in that instance but would not be good here. I say to you I don't see the difference.

The CHAIRMAN. I might say, Mr. Pickle, that in the noise abatement thing the appeal is on the noise abatement, not on the safety factor.

Mr. PICKLE. Mr. Chairman, that is true but safety is something that overrides both. You cannot differentiate easily between safety and noise abatement.

The CHAIRMAN. It says that safety shall be given consideration but that is not the overriding issue.

The gentleman from South Carolina, Mr. Watson.

Mr. WATSON. Thank you, Mr. Chairman.

Mr. O'Connell, I want to pursue the line of questions that Mr. Kornegay started a moment ago. I just want to try to establish your position.

I have before me an address which you made on January 30, this year, before the Board of Directors of the Transportation Association of America. You state on page 5, the last paragraph, and I quote you: "I am not one of those who believes that every time we consider what appears to us to be a weakness in the safety record or the safety program of the segment of your industry the answer is necessarily one of regulation or another law."

Then on page 6, you come up with the expression: "The watchword then is self-help."

Now, what transpired between January 30 and now which causes you to recommend this vast granting of powers to the Department of Transportation?

Mr. O'CONNELL. Well, my belief is as it was then, that in the final analysis the primary responsibility for the safety of the railroads is imposed on the railroads and their management and labor. Time has gone on and the Secretary has come to the conclusion, made the recommendation to this Congress, that time had run out on the selfhelp program, if you will, unaided by Federal regulations. We sub

scribe to that.

Mr. KORNEGAY. Would the gentleman yield?

Mr. WATSON. You made that statement in January. Did you not make the statement in a report as late as April 10, 1968, and I read from page 3 of that report, that you recommended a study be made. before any Federal powers be granted in this particular field? Now, has the study been made?

Mr. O'CONNELL. That letter you are speaking about I gather is the letter we sent to the Railroad Administrator; right?

Mr. WATSON. That is right.

Mr. O'CONNELL. I cannot speak for him but I assume that he had been studying and continues to study the situation we called to his attention. Subsequent to our letter, they resolved the basic question which we had been considering for some months in favor of recommending legislation.

Mr. WATSON. Well, actually then if this is not your determination, you are supporting this measure simply because the Department of Transportation supports it: isn't that it? You have not made a determination yourself that this legislation is necessary because you state on page 3:

We recommend that the Federal Railroad Administration initiate studies which would go beyond the data provided in current accident reports.

I assume by that language, Mr. O'Connell, that you think that data presently in your possession or in the possession of others is not adequate data upon which to base a need for legislation such as this.