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hensive program for railroad safety requires such authority. The proposal you have before you would provide for such a program. That concludes my statement, Mr. Chairman.

The CHAIRMAN. Thank you, Mr. O'Connell.

This bill is aimed to improve railroad safety. It would seem to me that the bill helps in the profits that everyone would want and that is the motive that all businesses strive for, the profit motive.

Another witness made the statement that the total money cost of accidents to the railroad alone amounted to $249 million in 1966. In that year, the totals were $904 million profits; total cost of accidents was $249 million.

It seems to me if we could bring down the accident rate, it would help the cost to the railroads, profits and everything else, as well as save lives and the dangers that you have talked about here to bystanders and to those who work on the railroads. I think this would necessarily follow.

I notice another statement of Mr. Menk that he said in his testimony it would probably take years to work out safety regulations in the areas not covered by Federal or State laws. I don't believe that would be any reason not to start, do you?

Mr. O'CONNELL. No: I believe it is time.

The CHAIRMAN. I think some should start now and make up a uniform law. I think that perhaps some railroads have some very fine regulations and enforce them but there evidently are some who do not. I think we should have the minimum standard of some kind to see that they are enforced.

Mr. O'CONNELL. I could not agree with you more, sir.

The CHAIRMAN. I would like to ask you about the effect, it is not quite clear to me, of section 11(b) and section 11 (c) of the bill. Does this change your authority of the Department of Transportation Act?

Mr. O'CONNELL. It is our opinion that it does not. Our opinion is that the effect of section 11(b) is merely confirmatory of the authority that we now have under the Transportation Act. It was not intended nor does it have the effect, in our view, of cutting down or restricting the authority that we presently possess.

If I felt it did, I would be most anxious that something be done in the way of clarifying it because certainly there is no intention on the part of the Department or those who drafted the legislation to have this legislation which you are considering to change the authority which the National Transportation Board now has.

I must say the concept of the independence which we have which is stated in the Department of Transportation Act is a rather difficult thing to understand clearly because it is rather anomalous in Government affairs. We are a part of the Department and we are directed to carry out our obligations and functions independent of the Department. We are most conscious of that authority. The Department is most meticulous in recognizing that and we believe that the present law is unchanged by the proposals.

The CHAIRMAN. Well, in section 11(c) of this bill, it states a number of your actions cannot be admitted into evidence; your employees cannot be required to give expert testimony even in a damage suit.

Does this also apply to section 5(d) and section 5(e) of the Transportation Act?

Mr. O'CONNELL. No; that has exactly the same effect of present law. There would be no change in authority since it was the intent of the Department and this Board, in drafting this provision, that it would relate only to accident investigations, reports, and determinations of cause undertaken pursuant to the proposed Federal Railroad Safety Act. We do not believe that the statutory limitation on the usage of reports as evidence or the provisions concerning providing of factual testimony by Board employees would extend to investigations and reports undertaken pursuant to the Board's independent authority set forth in section 5(d) (4) of the Department of Transportation Act. However, if it were to be determined that the provisions of section 11(c) 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 (c). 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)).

(The following letter was subsequently submitted by Mr. O'Connell :)

Hon. HARLEY O. STAGGERS,

DEPARTMENT OF TRANSPORTATION, NATIONAL TRANSPORTATION SAFETY BOARD, Washington, D.C., June 21, 1968.

Chairman, Committee on Interstate and Foreign Commerce,
House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: This is in reply to your letter of June 10, 1968, concerning certain provisions of H.R. 16980, a bill which would authorize the Secretary of Transportation to establish certain standards for railroad safety.

During my appearance before your Committee on Wednesday, June 5, 1968, I indicated that Sections 11 (b) and 11 (c) of his bill would not effect any limitation upon the authority of this Board. Concerning Section 11 (b), I believe we are in agreement that this merely confirms existing law as now embodied in the Accident Reports Act and Section 5 (b) (1) of the Department of Transportation Act.

Concerning Section 11 (c), I indicated there would be no change in authority since it was the intent of the Department and this Board, in drafting this provision, that it would relate only to accident investigations, reports, and determinations of cause undertaken pursuant to the proposed Federal Railroad Safety Act. We do not believe that the statutory limitation on the usage of reports as evidence or the provisions concerning providing of factual testimony by Board employees would extend to investigations and reports undertaken pursuant to the Board's independent authority set forth in Section 5(d) (4) of the Department of Transportation Act.

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However, if it were to be determined that the provisions of Section 11(e) 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 years. 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 O. 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 May 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,

COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,

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

HOUSE OF REPRESENTATIVES.

Washington, D.C., June 20, 1968,

National Transportation Safety Board,
Department of Transportation, Washington, D.C.

DEAR CHAIRMAN 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,

The CHAIRMAN. Mr. Friedel.

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

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

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