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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 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, vou 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 regnlations. We subscribe 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 dată upon which to base a need for legislation such as this.

Mr. O'CONNELL. At the time we wrote the letter and at the time I wrote the speech, we did not have in our possession that information that led us to believe that we could then recommend legislation. Since then, the Department has recommended legislation and we support the legislation.

Mr. Watson. Has that additional data been presented to you and, if it has been, what is the nature of the data that causes you to change your mind?

Mr. O'CONNELL. No data has been submitted to me from the Department since the time we wrote the letter.

Mr. Watson. The essence of your testimony is that earlier you thought that a study should be initiated before we launch into the Federal field in this area, but now, since the Department of Transportation says we need this bill, you go along with them. I think that is a fair statement, isn't it?

Mr. O'CONNELL. May I look at my letter just to be sure that I know what I am talking about?

Mr. Watson. Surely,
Mr. O'CONNELL. I guess what you said is a fair statement.
Mr. Watson. Thank you very much.
Mr. KORNEGAY. Will the gentleman yield?
Mr. WATSON. Yes,

Mr. KORNEGAY. If I recall correctly, the Secretary testified that the Department has been working on the legislation since sometime last fall, and if that is the case, of course, they started on it before these statements were made by you, about which Mr. Watson and I have queried you. It appears to me that certainly the Department has not given the railroads, both management and the brotherhoods, time to follow your advice and try to do something about the safety picture.

Now, the figures present a rather dismal picture. I said several times in these hearings with reference to safety that the figures are well pinpointed in this record. The statistics have been presented by one witness after another.

My point is that the causes of these accidents have been well pinpointed, and the only people I know of that can really do something about it are the people who work on the railroads and the people who run the railroads.

I am not quarreling with you but it does appear to me that you are rather inconsistent to take the position that you have in speeches and in reports and then come in here and endorse far-reaching legislation that seems to have support of no one expect the Government.

Thank you very much,
The CHAIRMAN. Mr. Springer, do you have any further questions?
The CHAIRMAN. Any further questions?

If not, I want to thank you, Mr. O'Connell, and the two who accompanied you, for being here.

Mr. O'CONNELL. Thank you. The CHAIRMAN. Our next witness is Mr. George I. Bloom, chairman of the Pennsylvania Public Itility Commission, and member, executive committee, National Association of Regulatory Utility Commissioners.

Mr. Bloom, you may proceed as you see fit.



Mr. Bloom. Chairman Staggers and members of the committee, my name is George I. Bloom. I am a member of the executive committee of the National Association of Regulatory Utility Commissioners (NARUC). I am also chairman of the Pennsylvania Public Utility Commission.

The NARUC is a quasi-governmental nonprofit organization founded in 1889. ithin its membership are the governmental bodies of the 50 States engaged in the regulation of carriers and public utilities. Our chief objective is to serve the public interest through the improvement of Government regulation.

We appreciate very much this opportunity to make our views known on H.R. 16980, which proposes authorization for the Secretary of Transportation to establish safety standards governing railroads.

I am not here to quarrel with the intent of this proposed legislation. We of the NARUC have long been vitally concerned with the subject of rail safety.

But, I respectfully urge that the public utility commission in Pennsylvania, and the agencies of the other States, be allowed to participate in the formulation of minimum rail safety standards, and continue to retain our jurisdiction in the enforcement of such standards in the respective States because the best results can be obtained from such a partnership.

It is my conviction that State regulation in this all-important field should not be disturbed as long as it does not conflict with the Transportation Department's goals and meets minimum safety standards.

I trust that your distinguished committee will not regard me as immodest when I say that the Pennsylvania Public Utility Commission has an outstanding railroad safety program. Our philosophy of safety-backed up by strong, progressive rules and regulations which will be distributed to you—would be destroyed by total Federal preemption.

In the best interests of the traveling public and railroad employees, I submit that this should not be allowed to happen. Instead, Pennsylvania and the other State members of the NARUC should be made partners with DOT to achieve maximum rail safety.

The Pennsylvania's PUC's railroad division in the Transportation Bureau has been, and is now, manned by seasoned engineers and safety investigators. We have 16 engineers-a number considerably higher than that of any Federal inspection contingent ever used in the Statewho give top priority to every type of rail safety.

Contrast our working staff, if you will, with that assigned the rail safety division of DOT which we understand totals 150 inspectors to cover all 50 States. Because of conventional budgetary limitations, it is doubtful if DOT will ever be able to field an adequate enforcement staff on its own.

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