[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                         REAUTHORIZATION OF THE
                        NATIONAL TRANSPORTATION
                              SAFETY BOARD

=======================================================================

                               (110-120)

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                                AVIATION

                                 OF THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 23, 2008

                               __________


                       Printed for the use of the
             Committee on Transportation and Infrastructure



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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                 JAMES L. OBERSTAR, Minnesota, Chairman

NICK J. RAHALL, II, West Virginia,   JOHN L. MICA, Florida
Vice Chair                           DON YOUNG, Alaska
PETER A. DeFAZIO, Oregon             THOMAS E. PETRI, Wisconsin
JERRY F. COSTELLO, Illinois          HOWARD COBLE, North Carolina
ELEANOR HOLMES NORTON, District of   JOHN J. DUNCAN, Jr., Tennessee
Columbia                             WAYNE T. GILCHREST, Maryland
JERROLD NADLER, New York             VERNON J. EHLERS, Michigan
CORRINE BROWN, Florida               STEVEN C. LaTOURETTE, Ohio
BOB FILNER, California               FRANK A. LoBIONDO, New Jersey
EDDIE BERNICE JOHNSON, Texas         JERRY MORAN, Kansas
GENE TAYLOR, Mississippi             GARY G. MILLER, California
ELIJAH E. CUMMINGS, Maryland         ROBIN HAYES, North Carolina
ELLEN O. TAUSCHER, California        HENRY E. BROWN, Jr., South 
LEONARD L. BOSWELL, Iowa             Carolina
TIM HOLDEN, Pennsylvania             TIMOTHY V. JOHNSON, Illinois
BRIAN BAIRD, Washington              TODD RUSSELL PLATTS, Pennsylvania
RICK LARSEN, Washington              SAM GRAVES, Missouri
MICHAEL E. CAPUANO, Massachusetts    BILL SHUSTER, Pennsylvania
TIMOTHY H. BISHOP, New York          JOHN BOOZMAN, Arkansas
MICHAEL H. MICHAUD, Maine            SHELLEY MOORE CAPITO, West 
BRIAN HIGGINS, New York              Virginia
RUSS CARNAHAN, Missouri              JIM GERLACH, Pennsylvania
JOHN T. SALAZAR, Colorado            MARIO DIAZ-BALART, Florida
GRACE F. NAPOLITANO, California      CHARLES W. DENT, Pennsylvania
DANIEL LIPINSKI, Illinois            TED POE, Texas
DORIS O. MATSUI, California          DAVID G. REICHERT, Washington
NICK LAMPSON, Texas                  CONNIE MACK, Florida
ZACHARY T. SPACE, Ohio               JOHN R. `RANDY' KUHL, Jr., New 
MAZIE K. HIRONO, Hawaii              York
BRUCE L. BRALEY, Iowa                LYNN A WESTMORELAND, Georgia
JASON ALTMIRE, Pennsylvania          CHARLES W. BOUSTANY, Jr., 
TIMOTHY J. WALZ, Minnesota           Louisiana
HEATH SHULER, North Carolina         JEAN SCHMIDT, Ohio
MICHAEL A. ARCURI, New York          CANDICE S. MILLER, Michigan
HARRY E. MITCHELL, Arizona           THELMA D. DRAKE, Virginia
CHRISTOPHER P. CARNEY, Pennsylvania  MARY FALLIN, Oklahoma
JOHN J. HALL, New York               VERN BUCHANAN, Florida
STEVE KAGEN, Wisconsin               ROBERT E. LATTA, Ohio
STEVE COHEN, Tennessee
JERRY McNERNEY, California
LAURA A. RICHARDSON, California
ALBIO SIRES, New Jersey

                                  (ii)

  
?

                        Subcommittee on Aviation

                 JERRY F. COSTELLO, Illinois, Chairman

BOB FILNER, California               THOMAS E. PETRI, Wisconsin
LEONARD L. BOSWELL, Iowa             HOWARD COBLE, North Carolina
RICK LARSEN, Washington              JOHN J. DUNCAN, Jr., Tennessee
RUSS CARNAHAN, Missouri              VERNON J. EHLERS, Michigan
JOHN T. SALAZAR, Colorado            STEVEN C. LaTOURETTE, Ohio
DANIEL LIPINSKI, Illinois            FRANK A. LoBIONDO, New Jersey
NICK LAMPSON, Texas                  JERRY MORAN, Kansas
ZACHARY T. SPACE, Ohio               ROBIN HAYES, North Carolina
BRUCE L. BRALEY, Iowa                SAM GRAVES, Missouri
HARRY E. MITCHELL, Arizona           JOHN BOOZMAN, Arkansas
JOHN J. HALL, New York, Vice Chair   SHELLEY MOORE CAPITO, West 
STEVE KAGEN, Wisconsin               Virginia
STEVE COHEN, Tennessee               JIM GERLACH, Pennsylvania
NICK J. RAHALL, II, West Virginia    MARIO DIAZ-BALART, Florida
PETER A. DeFAZIO, Oregon             CHARLES W. DENT, Pennsylvania
ELEANOR HOLMES NORTON, District of   TED POE, Texas
Columbia                             DAVID G. REICHERT, Washington
CORRINE BROWN, Florida               CONNIE MACK, Florida
EDDIE BERNICE JOHNSON, Texas         JOHN R. `RANDY' KUHL, Jr., New 
ELLEN O. TAUSCHER, California        York
TIM HOLDEN, Pennsylvania             LYNN A WESTMORELAND, Georgia
MICHAEL E. CAPUANO, Massachusetts    MARY FALLIN, Oklahoma
DORIS O. MATSUI, California          VERN BUCHANAN, Florida
MAZIE K. HIRONO, Hawaii              JOHN L. MICA, Florida
LAURA A. RICHARDSON, California        (Ex Officio)
JAMES L. OBERSTAR, Minnesota
  (Ex Officio)

                                 (iii)


                                CONTENTS

                                                                   Page

Summary of Subject Matter........................................    vi

                               TESTIMONY

Dillingham, Dr. Gerald, Director, Physical Infrastructure Issues, 
  accompanied by Gregory Wilshusen, Director, Information 
  Security Issues, U.S. Government Accountability Office.........     4
Rosenker, Hon. Mark V., Chairman, National Transportation Safety 
  Board..........................................................     2

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Costello, Hon. Jerry F., of Illinois.............................    22
Mitchell, Hon. Harry E., of Arizona..............................    28
Oberstar, Hon. James L., of Minnesota............................    29
Petri, Hon. Thomas E., of Wisconsin..............................    35
Richardson, Hon. Laura A., of California.........................    43

               PREPARED STATEMENTS SUBMITTED BY WITNESSES

Dillingham, Dr. Gerald L.........................................    46
Rosenker, Hon. Mark V............................................    87

                       SUBMISSIONS FOR THE RECORD

Rosenker, Hon. Mark V., Chairman, National Transportation Safety 
  Board:

  Response to request from Rep. DeFazio..........................    99
  Response to request from Rep. Oberstar.........................   100

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 HEARING ON REAUTHORIZATION OF THE NATIONAL TRANSPORTATION SAFETY BOARD

                              ----------                              


                       Wednesday, April 23, 2008

                  House of Representatives,
    Committee on Transportation and Infrastructure,
                                  Subcommittee on Aviation,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 2:00 p.m., in 
Room 2167, Rayburn House Office Building, Hon. Jerry F. 
Costello [chairman of the Subcommittee] Presiding.
    Mr. Costello. The Subcommittee will come to order. The 
Chair will ask all Members, staff and everyone to turn 
electronic devices off or on vibrate.
    The Subcommittee is meeting today to hear testimony on the 
reauthorization of the National Transportation Safety Board. I 
have a statement that I will enter into the record, make brief 
comments and then recognize the Ranking Member, Mr. Petri, for 
any comments that he may have or any opening statement that he 
may have.
    So I will enter my statement in the record so that we can 
get to witnesses. It is my understanding that we will be called 
for votes about 2:45, so rather than for us to give our opening 
statements, we would rather hear from you, your testimony, and 
to give us some time for questions. And so I will enter my 
statement in the record.
    But this hearing, of course, is concerning the 
reauthorization of the NTSB. The NTSB is requesting both 
additional statutory authority and funding. The President's 
budget would not allow for additional staff or additional 
resources for the NTSB.
    It is my position that the NTSB has to have the necessary 
resources and staffing in order for them not only to carry out 
their statutory responsibilities but to continue to be the 
premier investigative agency in the world.
    So with that, I will recognize the Ranking Member, Mr. 
Petri, for his opening statement or brief comments.
    Mr. Petri. Mr. Chairman, thank you very much. And I will 
follow your excellent example and ask that my full statement be 
made a part of the record. And let me just summarize by first 
thank you for having this important hearing.
    The National Transportation Safety Board, under the recent 
able leadership of our Mark Rosenker, is an agency of some 500 
professionals; and they have built a tremendous record of 
making recommendations that have increased the safety of the 
traveling public in carefully examining instances as they 
occur. And they are looked to by safety agencies and by people 
all over the world when accidents occur, and they operate not 
only within the United States but abroad.
    So this is a national gem. And I am delighted to have 
people from the agency and the panel before us here today.
    Mr. Costello. I thank the Ranking Member for his comments.
    And now I want to recognize our witnesses and thank them 
for being here today: the Chairman of the NTSB, the Honorable 
Dr. Mark Rosenker; Dr. Gerald Dillingham, who is the Director 
for Physical Infrastructure Issues with the U.S. Government 
Accountability Office--and I understand that you are 
accompanied by, but he will not be offering testimony, but is 
here to answer questions, Mr. Gregory Wilshusen, who is 
Director of Information Security Issues, with the Government 
Accountability Office as well.
    Mr. Chairman Rosenker, you are recognized for 5 minutes.

TESTIMONY OF THE HONORABLE MARK V. ROSENKER, CHAIRMAN, NATIONAL 
                  TRANSPORTATION SAFETY BOARD

    Mr. Rosenker. Thank you sir.
    Chairman Costello, Ranking Member Petri, as Chairman of the 
NTSB, I am pleased to be appear before you today in support of 
our request for reauthorization.
    First, I would like to thank this Committee for its 
tremendous support. The Safety Board enjoys a reputation both 
here at home and abroad for impartial, independent 
investigation of aviation disasters. As this Committee knows, 
we have approached accidents in all modes of transportation 
with that same philosophy.
    We are currently in the midst of investigating a highway 
accident that shocked our Nation, the collapse of the I-35W 
bridge in Minneapolis. We are making excellent progress in this 
investigation and hope to present a final report in a public 
Board meeting before the end of this year.
    Other surface transportation accident investigations that 
will soon be completed are the fiery freight train derailment 
in New Brighton, Pennsylvania, the crash of a motor coach from 
Ohio last year in Atlanta that took seven lives, and the 
grounding of the Empress of the North in Alaska that endangered 
hundreds of cruise ship passengers.
    Since our last reauthorization in 2006, the Board has held 
32 public Board meetings and adopted 58 accident investigation 
reports. We also investigated more than 3,200 aviation 
accidents and numerous surface transportation accidents, we 
published over 3,900 aviation accident briefs, and our labs 
read out 179 flight data recorders, 156 cockpit voice recorders 
and performed 326 wreckage examinations.
    Additionally, the Board issued more than 345 safety 
recommendations.
    I am extremely proud of the significant management 
improvements we have made in recent years. The number of open 
general aviation investigations declined from 2,231 cases in 
2002 to 647 open cases as of this morning. Several high-profile 
major investigations were completed in a year or less, among 
them the Big Dig tunnel ceiling collapse, which was completed 
in exactly 12 months; the crash of a Comair regional jet in 
Kentucky, which was completed in 11 months; and the derailment 
of a Washington, D.C., Metro train at Mount Vernon Square was 
completed in only 9 months.
    In order to build on this success, the Safety Board is 
asking for authorized resource levels capable of funding 399 
full-time positions in fiscal year 2009 and 475 FTEs in both 
fiscal years 2010 and 2011.
    In fiscal year 2008, several years of virtually no 
budgetary growth following several years of virtually no 
budgetary growth, Congress provided the Safety Board with $1.5 
million over the President's budget. That enabled us to return 
8 FTE investigative personnel back to the Agency's ranks.
    We are also able to achieve significant cost savings by 
consolidating portions of the NTSB Training Center in our 
headquarters and then subleasing that space to other Federal 
agencies. Through these savings, we were able to return another 
five FTEs to our rolls. In order to carry out the mission of 
the Safety Board effectively, we still need 475 FTEs.
    In preparation for this hearing, Agency staff, with the 
input from our Board members, performed a review of our 
governing statutes, and we respectfully present some suggested 
amendments.
    The first area is one where we believe technical 
corrections are advisable to clearly articulate the Board's 
authority to investigate incidents. The Board already 
investigates some incidents. One example would be runway 
incursions that come quite close to causing an accident. 
However, some on my staff are concerned that our current 
statutes do not clearly grant this authority.
    ICAO is also urging member States to investigate a greater 
number of serious incidents in order to be proactive in 
advancing aviation safety. Our proposed amendments would make 
clear the Safety Board's authority to provide independent 
investigation of certain incidents.
    A second issue reflected in our reauthorization request is 
our perceived need for a clearer articulation of the Board's 
authority to access critical information during Board 
investigations. We believe that Congress expects the Safety 
Board to access all records, materials and information 
necessary to make a proper determination of the causes of an 
accident.
    We are seeking clear authority to access medical and 
financial records. Medical records, say, of a ship's master or 
pilot, perhaps, in order to assess the accuracy of a medical 
certificate application and the propriety of the licensing and 
medical oversight process. Financial records, for example, such 
as the credit card records of pilot involved in a commercial 
aircraft disaster in order to examine the activities the night 
before and their relationship to rest periods and fatigue 
management.
    And finally, the Board proposed changes to enhance its 
authority to investigate marine accidents, that have sufficient 
national importance such that an accident is deserving of an 
independent investigation by the Board. I understand the Coast 
Guard and Maritime Transportation Subcommittee will be holding 
a hearing in early May to discuss that specific issue.
    Thank you again for your support. And I will be happy to 
answer any questions.
    Mr. Costello. The Chair thanks you, Chairman Rosenker. And 
let me say to your ending comment that the Coast Guard 
Subcommittee will, in fact, be reviewing these issues and some 
of the proposals that you have made for statutory authority and 
other changes.
    The Chair now recognizes Dr. Dillingham.

    TESTIMONY OF DR. GERALD DILLINGHAM, DIRECTOR, PHYSICAL 
   INFRASTRUCTURE ISSUES, ACCOMPANIED BY GREGORY WILSHUSEN, 
    DIRECTOR, INFORMATION SECURITY ISSUES, U.S. GOVERNMENT 
                     ACCOUNTABILITY OFFICE

    Mr. Dillingham. Thank you, Mr. Chairman, Mr. Petri, 
Chairman Oberstar.
    In 2006, at the request of this Subcommittee, we reviewed 
NTSB's activities and made 18 management and internal control-
related recommendations. Our examination of agencies across the 
government have shown that effective management practices and 
internal controls are critical for agencies to carry out their 
missions cost effectively and efficiently.
    Mr. Chairman, I want to note that we do not find anything 
that would diminish NTSB's status as the gold standard for 
accident investigations in either our 2006 review or the 
follow-up review that we conducted this year.
    My testimony this afternoon provides the Subcommittee with 
an update of NTSB's performance in the key areas of our 2006 
review, namely, general management practices, accident 
investigations and safety studies and the operation of the NTSB 
Training Center.
    We also reviewed NTSB's information security practices and 
its reauthorization proposal for issues that the Subcommittee 
may want to examine closely for potential unintended 
consequences.
    Regarding general management practices, we found that NTSB 
had made significant progress in this area and established a 
solid foundation for future improvements. We think that these 
future improvements should include a training plan for staff 
that supports the Agency's strategic plan and a full cost 
accounting system that will enable management to know what 
Agency resources are being applied to which task across the 
Agency.
    Regarding accident investigation and safety studies, NTSB 
has developed transparent, risk-based criteria for selecting 
which rail, pipeline, and hazardous material accidents to 
investigate. In contrast, NTSB has made limited progress in 
limiting its use of safety studies. We believe safety studies 
can increase the scope and impact of NTSB's safety 
recommendations.
    With regard to the training center, NTSB has increased the 
use of the training center and decreased the center's overall 
operating deficit. However, the classroom space is still used 
less than 25 percent of the time. Furthermore, we found that 
NTSB's business plan for the center lacked marketing strategies 
to explain how it could further increase its use and how it 
could reduce the training center's remaining $1 million a year 
annual deficit.
    With regard to information security, NTSB has also made 
progress in this area. However, we think that this could be 
among the most serious deficiencies in NTSB's operations; 
specifically, until NTSB takes action to encrypt all of its 
laptops and limit access privileges on work stations, the 
Agency is at increased risk that its computers and the data 
they contain may be compromised.
    We are, therefore, making new recommendations in this 
testimony that NTSB should address these critical information 
security gaps as soon as possible.
    Finally, Mr. Chairman, we would like to draw the 
Subcommittee's attention to some specific provisions and 
language of NTSB's reauthorization proposal.
    First, the NTSB is seeking an exemption from the 
Antideficiency Act, which would authorize the Board to incur 
obligations for both the acquisition and lease of real property 
in advance or in excess of an appropriation. We recommend that 
the Subcommittee consider a more narrow authority that 
addresses NTSB's particular need to obtain a new lease for its 
headquarters in 2010.
    Second, the reauthorization proposal seeks to make several 
changes to the Agency accident investigation process that has 
the potential to expand the scope of the Agency's authority. 
For example, the proposal expands the definition of accidents 
to include events that affect transportation safety, but do not 
involve structural damage. The implications for such a change 
for NTSB's workload are unclear and should be explored further.
    Mr. Chairman and Members of the Subcommittee, because a 
full implementation of effective management practices and 
internal controls are critical to NTSB's being able to continue 
to carry out its accident investigation mission and remain the 
gold standard, we recommend that NTSB report on its progress in 
improving its management practices and internal controls in its 
annual performance and accountability report by other 
congressionally approved forwarding mechanisms.
    Thank you, Mr. Chairman. I will be pleased to answer any 
question that you or Members of the Subcommittee may have.
    Mr. Costello. The Chair thanks you, Dr. Dillingham.
    Chairman Rosenker, let me ask you a couple of questions 
concerning your request to both change some statutory language 
and to give the NTSB more authority, specifically the 
requirement today that single probable cause be identified as 
a--the primary factor in aviation accidents in particular.
    I understand that the requirement to identify a single 
probable cause is not consistent with ICAO standards, and I 
wonder if you might share your thoughts with us as to the 
benefits of modifying that statutory requirement.
    Mr. Rosenker. Sir, in reality, we do actually have causes, 
probable causes when, in fact, we make and finish our accident 
investigations. Sometimes there were one or two; sometimes 
there can be an entire page or two. The actual heading states 
"probable cause," but in the language, many times it will 
include causes and additional factors.
    So, as far as we are concerned, it is the way we operate 
right now. It is our operating procedure and so, therefore, we 
are not--it is not necessary for us to have to go too far with 
that issue.
    Mr. Costello. But you are aware that there is discussion 
going on in the aviation community that they have concerns 
about this issue.
    Let me also ask you about what role you think the Safety 
Board should play in increasing emphasis on human factors as a 
way to improve aviation safety.
    Mr. Rosenker. Human factors are critical.
    As you know, the majority of accidents that result in 
fatalities, and frankly, the majority of accidents, have a 
large number of human factors that, in fact, have created the 
environment for the accident to occur. So when we can, in fact, 
improve and understand and eliminate some of the mistakes that 
are being done whether it be by fatigue or whether it be 
training or whether it be by skill or a host of other 
distractions, then we can begin the process of actually 
reducing the number of accidents that we investigate.
    Mr. Costello. You mentioned in your testimony concerns 
about the NTSB's ability to gain access to personal financial 
records. And can you give examples, either in general or 
specific, as to how your lack of ability to gain personal 
financial records has hampered investigations in the past?
    Mr. Rosenker. Sir, when we attempt to subpoena, for 
example, records--financial records, credit card records--of an 
accident victim, perhaps an airplane pilot who we are 
attempting to understand the 72-hour background, getting his 
credit cards or her credit cards would go a long way to 
understanding if they were in a bar somewhere, if they were 
supposedly supposed to be sleeping and they were out at a club 
or out purchasing something.
    So the financial records in those kinds of accidents, along 
with any operator accident, would help us a great deal toward 
understanding the 72-hour background before we make 
determinations.
    Mr. Costello. Dr. Dillingham, would you like to follow up 
and comment on any of the questions that I just asked Chairman 
Rosenker as far as the authority of identifying the single 
probable cause versus, which is apparently inconsistent with, 
ICAO standards? What are your thoughts on changing the NTSB to 
identify more than one probable cause to an incident or an 
accident?
    Mr. Dillingham. Mr. Chairman, I think there is some value 
to harmonization of standards; and I think in terms of the ICAO 
having a different standard than what the NTSB has actually 
been operating under for quite some time, I think it is 
worthwhile that NTSB sort of collaborate with ICAO to see if 
there is a medium that can be reached.
    Mr. Costello. And the issue of gaining access to financial 
records, would you like to comment on that?
    Mr. Dillingham. Yes, sir. I think that is a--those are 
capabilities that I think NTSB needs. I think those are similar 
kinds of access that law enforcement agencies currently have. 
And if it allows NTSB to complete a more robust investigation 
and come to a cause sooner, I think that is important.
    I think one of the concerns that we heard as we tried to 
look at this, was the idea of the violation of privacy issues; 
and to the best of our knowledge, these kinds of records are 
protected by freedom of information and, therefore, the privacy 
issues are also taken care of.
    Mr. Costello. Chairman Rosenker, the final question before 
I recognize the Ranking Member.
    You were also--the NTSB is also asking for additional 
authority to issue subpoenas beyond your current ability 
concerning public hearings that may include, for example, 
depositions. Tell us why that is necessary.
    Mr. Rosenker. Sir, we have been issuing subpoenas and, for 
the most part, we get a good response. But in areas such as 
medical records and, right now, financial records, there has 
been some reluctance on behalf of those that we have subpoenaed 
to provide that information to us. So, they have read our 
statute narrowly; even though we believe we have the authority, 
it needs to be clarified.
    In the HHS preamble concerning the HIPAA regulations, we 
are actually named there as a health--not a health provider but 
a health agency that is, in fact, similar to the FDA or the 
CDC; but it is not clarified in the actual regulations 
themselves. So this type of clarification for us would go a 
long way to enable us to get the medical records which we 
believe are critical.
    We have looked at an accident right now where medical 
records were extremely important in the collision of the Cosco 
Busan, where the pilot of the ship had a number of prescription 
drugs that he had in his records.
    Mr. Costello. Would you agree that the President's budget 
request that he submitted to the Congress is inadequate to deal 
with what the NTSB wants to do in terms of hiring additional 
personnel?
    Mr. Rosenker. Sir, earlier in the budgeting process, we 
submitted to the White House, and we also submitted to Congress 
as we normally do each year, what we believe would be the 
appropriate number of people to do this job effectively. We 
received our budget, and that is what we are--I am here 
representing at this time.
    Mr. Costello. So would the answer be "yes" or "no"?
    Mr. Rosenker. Sir, we can always use more people.
    Mr. Costello. The Chair would note that in your information 
and the testimony that you have submitted to us, you believe 
that the needs are a minimum of 475 full-time equivalent 
employees to fully meet the NTSB's core mission of accident 
investigation.
    Clearly, the President's budget that has been submitted to 
the Congress would not allow for the additional personnel, so I 
would note that for the record and answer the question for you.
    The Chair at this time now recognizes the Ranking Member, 
Mr. Petri.
    Mr. Petri. Thank you very much, Mr. Chairman.
    I noticed from the report that you submitted that you have 
conducted some 1,800 aviation-related investigations in just 
the last year. Fortunately, in commercial aviation there have 
been no fatalities during that period; but there have been a 
number of incidents that you have investigated and some 100 
highway, rail and maritime situations, perhaps the most 
spectacular of which is the investigation that resulted in some 
13 fatalities on I-35 in Minneapolis, Minnesota.
    Could you discuss the status of that whole review and the 
conclusions of your staff and what you are doing to help 
minimize similar situations occurring in the future?
    Mr. Rosenker. Yes, sir.
    As you know, on August 1st it was a terrible tragedy in 
Minneapolis when the I-35W bridge collapsed. Our team got there 
on the first day and watched the first responders work very 
hard. And I have to congratulate the people of Minnesota and 
the people of Minneapolis and the first responding community; 
they did an outstanding job.
    We brought in all the investigators we possibly could; all 
of our highway investigators and a number of research and 
engineering investigators came in. We had about 30 people at 
the site, many of whom stayed until November when, mid-October, 
we released the site back to Mn/DOT.
    November, we had finished up all of our on-site work in 
Minneapolis and brought some key pieces of the structure back 
to our laboratory, restoring a whole host of it in our training 
center.
    In January, we made an announcement. We made a 
recommendation to the Federal Highway Administration that we 
had seen some interesting issues as it related to the design of 
the I-35W bridge in the gusset plates. They seemed to be 
inadequate. They seemed to be less than what, in fact, would be 
necessary for the appropriate safety margin.
    As a result of that--and we are continuing to test--we made 
recommendations to the Federal Highway Administration to 
basically deal with the States that any time a change in 
weight--whether it be an operational load, a live load; or 
whether it be an enhancement, additional decking, new systems 
for it such as guard rails--any time you are going to change 
that weight, a complete assessment of calculations of the 
bridge, including gusset plates, must be done.
    And as a result of that--one of the things that became 
quite clear, Mn/DOT took a look at all of their bridges and did 
that series of calculations, and recently found that the DeSoto 
Bridge in St. Cloud was not up to the safety margins it needed; 
and as a result, Mn/DOT closed that bridge.
    Mr. Petri. There are some issues as to whether there should 
be more hearings on the process. I wonder if you could discuss 
that.
    Mr. Rosenker. Yes, sir.
    Each time we deal with a major accident, the professional 
investigative staff will create what we call an "action memo." 
That action memo is an internal document that is used for the 
Members to decide whether we should vote for having a hearing 
or vote not to have a hearing.
    They give us a very detailed argument for whether they want 
the hearing and believe it will be of great value and provide 
additional information to their investigation; or whether they 
believe it would not be of value and, thus, not invest the 
intense resources that it takes to do such a hearing.
    In this case, the professional investigative team offered 
its action memo to the Board, and three of the five Board 
members voted to support their finding which was to not hold a 
hearing, since it would not provide a return on investment as 
it related to the amount of time which it would take.
    Ultimately, what happens is, since we have small numbers of 
resources to work on these projects, on all of our projects, in 
order to devote the appropriate time it takes to do a good 
hearing, a thorough hearing, to guarantee we get something for 
that time, it takes a good deal of time to do that, and it 
normally will take anywhere from an additional 2 to 4 months in 
the investigative procedure.
    In this case, the professional investigators believe and 
have indicated to me they can have this investigation completed 
and provide it to a public sunshine Board meeting before the 
end of this year.
    Mr. Costello. The Chair thanks the Ranking Member and now 
recognizes the distinguished Chairman of the Full Committee, 
Chairman Oberstar.
    Mr. Oberstar. I want to thank you, Mr. Chairman.
    And thank you, Mr. Chairman Rosenker, for participating in 
this hearing, which is necessary because it is your job 
description. And it is the reauthorization of the Board, so it 
is a matter of courtesy to thank you, but it is your 
responsibility to be here for its future.
    And you know I have been a strong advocate for the Board 
over all of its years. I was on the staff of this Committee 
when the Department of Transportation was created, and we 
established the National Transportation Safety Board as an 
independent safety board within the Department.
    But several years later, it was determined--it was clear 
that the Board was not functioning as--although it had held 
very important inquiries, investigations, made numerous 
recommendations for improvements--over 10 major accident 
reports, seven public hearings; in just the first year of the 
Board's operation, they had done over 800 general aviation 
accident investigations, 3,000 summary reports. Those they were 
very significant inquiries undertaken by the Board.
    But it is clear to Members of Congress that the Board 
needed greater independence than it could achieve within the 
Department of Transportation. And so before my last year as the 
chief of staff of the Committee, the National Transportation 
Safety Board was established in its current structure. And over 
the years, the Board has achieved status in the world 
community, particularly in aviation investigations, but also in 
other areas; as I have called it "the gold standard for 
accident investigation."
    And the cornerstone of that status is its transparency, the 
clarity of its actions, the skill of the Board's staff, the 
ability of the Board to harness the best talent in the public 
as well as the private sector to conduct investigations, to get 
the best metallurgists to look at metal fatigue, to get the 
best people to understand accidents in all modes of 
transportation. And a very important part of that 
responsibility has been adequacy of staff.
    Now I see that your Board recommendation or request is for 
exactly the number of staff that the administration requested, 
and I am puzzled by that: 399 for 2008; 399 for President's 
budget for 2009, and the Board's request is 399.
    For 2010, you do increase your request for 475 full-time 
equivalents, a 20 percent increase. What caused you to make 
that recommendation?
    Mr. Rosenker. Sir, first of all, thank you for your 
compliments to the Board and its history. You are one of the 
great friends of this Board. You have made tremendous 
contributions in the time that you have served here, both as 
staff, as a Member and as Chairman. So I continue to thank you 
for that history and hope that you will continue to offer that 
great support.
    As it relates to the Board's submission, as I indicated 
earlier, we did put out a request when we do our normal Board 
submissions to both the Congress and to the OMB.
    Sir, when I received back the budget, I recognized and 
understood the various budget constraints that the entire 
United States Federal Government was operating under. And, 
thus, I unfortunately had to come in and suggest that I won't 
be able to get the additional people that we could use.
    Mr. Oberstar. So you made a request for a larger number of 
personnel?
    Mr. Rosenker. Yes, sir. And Congress received that request.
    Mr. Oberstar. In a bill that we will consider on the House 
floor tomorrow, the Coast Guard authorization, we are going to 
give the--and I am quite confident this will pass the House and 
the Senate--we will give the Board authority to hear appeals 
from proceedings of the Coast Guard disciplinary process, their 
certification of seafarers, certification of uniformed 
personnel, as well as civilian personnel, give the Board 
authority to hear appeals to rulings of the Coast Guard, as we 
have done in aviation, to give the Board--do you have any idea, 
have you given it some thought, are you aware of the proceeding 
in the legislative process, given it some thought as to what 
additional personnel that might entail? Or can it be handled 
with the existing staff?
    Mr. Rosenker. Not within our 475, Mr. Chairman, or the 399 
clearly.
    Mr. Oberstar. It will take effect next fiscal year?
    Mr. Rosenker. I think the Committee will have to work very 
hard with our staff to be able to integrate if this legislation 
becomes law. We will accept that mission, of course, and do it 
exceptionally well, as we believe we do with the aviation 
community.
    But appropriations are going to have to come with it, 
because we could not--we could not be able to do it.
    Mr. Oberstar. Do you recall, when we transferred to the 
Board the authority to hear appeals in aviation, whether some 
of the civil appeals, ALJs, were transferred from DOT to NTSB?
    My recollection is, there was some movement of personnel, 
sort of a lateral shift over to NTSB.
    Mr. Rosenker. Mr. Chairman, I don't have that off the top 
of my head. That is way, way, way before my time here. But, 
sir, I will find out and get back to you.
    Mr. Oberstar. Not "way, way before," but before your time.
    In another arena, what are the Board's criteria for holding 
a public hearing?
    Mr. Rosenker. Sir, there are a number of criteria. The one 
that we look at the most and probably the easiest one to 
understand is when, in fact, professional investigative staff 
in their action memo present a reason why they should be doing 
it and what they intend to get from it for their investment of 
time and effort.
    By the same token, there will be many times where the 
Board's professional staff will say, we do not believe we have 
enough information at this time to be able to do a thorough 
investigation in a timely way without the additional time and 
effort it would take to do the hearing.
    Mr. Oberstar. Are those the only criteria? What about 
differential between modes? What was the deciding factor in the 
McDonough rail incident to hold the public hearing?
    Mr. Rosenker. I think that was probably an issue of 
hazardous material disposal and other issues, as well.
    Mr. Oberstar. What was the decision to--what would underlie 
the decision to hold a public hearing on the Minot rail 
incident?
    Mr. Rosenker. Clearly, that was a terrible hazmat release.
    Mr. Oberstar. And? And that is it?
    Mr. Rosenker. No, I am sure there were a host of other 
issues that were involved there. Those were decisions that were 
made before my time.
    Mr. Oberstar. What lessons to be learned in that hearing?
    Mr. Rosenker. I believe also there would be a reason to be 
requesting that information from the investigating staff.
    Mr. Oberstar. And the allision of recent note in 
California, where there was an oil spill, there was a public 
hearing. What were the underlying causes of that?
    Mr. Rosenker. The professional staff said they needed more 
information, as they could take a look at oversight issues and 
medical oversight issues and the relationship with the pilots, 
to the operators and the States.
    Mr. Oberstar. And do you include in the determination of 
whether or not to hold a public hearing the opportunity for 
both a teaching experience and a learning experience?
    Mr. Rosenker. That is also an important part of it, Mr. 
Chairman. I totally agree.
    Mr. Oberstar. Now, one of the factors that you have cited 
that I learned only after our phone conversation about the 
subject of the bridge, the I-35W bridge in Minneapolis, was 
that the Board felt that the hearing--the staff felt that the 
hearing would delay publication of the report.
    I am not so concerned about timeliness of a report as I am 
about the substantive nature of the report and the 
inclusiveness and the role of the Board in conducting these 
public meetings which go to the transparency, the clarity, the 
openness of the Board, and the opportunity to learn and to 
teach. And you never can never say that we are not going to 
learn anything from this, because you never know what you are 
not going to learn.
    Mr. Rosenker. Sir, you are right in that occasion that, in 
fact, you never know what you don't know.
    But there are times, and frankly, what we have looked at 
through the history of this organization is--as a matter of 
fact, I wanted to make sure and I wanted to be prepared to be 
able to answer your question on the numbers----
    Mr. Oberstar. You knew I would ask this?
    Mr. Rosenker. Yes, sir I did.
    Mr. Oberstar. You are very clever.
    Mr. Rosenker. We took a look at the number of votes that we 
had from 1975, dealing with whether to have a hearing or not 
have a hearing.
    During that 33-year period, there were 326 notation items, 
votes from the Board over that 33-year period; and only 12 
times out of 326 did the Board members disagree with what 
staff's recommendation was--six that said we are not going to 
have a hearing when, in fact, the staff said we should; and 
when staff said we shouldn't have a hearing, six where we said 
we should have a hearing.
    Mr. Oberstar. Yes. I have looked at those records as well. 
And I have the years, the major accident investigations and the 
public hearings that were held, and what I can't find is 
consistency in the pattern.
    It is not so important whether the Board voted with or 
against the staff, but on what basis and what were the 
substantive issues. And I find no consistency in the basis on 
which public hearings, determination to hold public hearings is 
made or not.
    Mr. Rosenker. I think the vast majority, Mr. Chairman, were 
based on what the professional staff is presenting to us if 
they need additional information.
    Mr. Oberstar. In instant case, for the staff to say it is 
going to delay publication of the report says to me, you don't 
have enough staff and that the staff doesn't have enough 
confidence in, or has a condescending attitude toward, other 
specialists in the field, who might bring information to the 
Board the staff have not seen, have not heard, have not been 
exposed to. And I think this is a critically important matter.
    I am going to tell you, in the Minneapolis-St. Paul area, 
in the greater Minnesota area, there is huge skepticism about 
the objectivity of the Board in conducting this inquiry. And I 
am not asking you, I am telling you that a public hearing will 
dispel--will go a long way to dispel the questions raised and 
the lack of trust in the Board's actions.
    I am constantly asked by citizens, by reporters, by local 
officials, by State legislators, what has happened with the 
Board? Why isn't it doing this hearing? What other motives are 
there?
    And I think you need, as Chairman, and your fellow Board 
members and your staff need, to go back and reconsider that 
decision and to be inclusive of the public and to be respectful 
of the loss of life that occurred and of the unique situation 
of this bridge.
    The allision was one of a kind.
    There have been other hazmat crashes in the rail sector; 
38,000 people were evacuated from Duluth and Superior when a 
benzene spill occurred in a rail crash. The Board didn't hold a 
hearing. I don't quarrel with that; there were no unique 
circumstances.
    But this was one of a class of bridges of which there are 
740, and we haven't had a public hearing on a bridge failure in 
over 20 years. This is an opportunity for a teaching moment and 
a learning moment for the Board and for its staff, and I urge 
you to go back and reconsider it.
    And I don't ask you to make an answer here, but I am just 
telling you that that is what I expect.
    Mr. Rosenker. Mr. Chairman, you are a very persuasive man, 
and I have great respect to you. And I don't enjoy being in 
your dog house, believe me. We have had a wonderful 
relationship--unfortunately, up until just the last month or 
two--and I want to get that relationship back.
    And so I must also tell you, this decision was one of the 
toughest ones--matter of fact, I can tell you as far as my 
career at the NTSB, it was the toughest decision to make, and I 
believe it was the toughest decision for my colleagues to make.
    There are 13,000 steel truss bridges, give or take a few 
hundred, across the United States. There are 50 State DOTs that 
are waiting for resolution of what we find in this 
investigation. We are about ready to complete the finite 
element analysis in the next 45 to 60 days.
    It was the professional staff's belief that these were 
issues of math, mechanics, and computer science that they had 
to be working with. And transparency, I agree, Mr. Chairman, is 
of the utmost importance; we try to do that in everything we 
do, sir.
    We opened up our docket, our public docket, and put it on 
the Web as soon as we made that announcement back in March. We 
are continuing to populate it with pictures and reports, and 
the next series of reports should be in there in the next few 
weeks. These are group chairmen reports which tell us 
everything we have found, and a good deal of evidence is 
factual in nature. No analysis, sir.
    These people that are working with us right now--and I have 
30 investigators, half of which are from our highway 
department; and another 30, these are internal staff, are from 
our research and engineering department, computer people, 
metallurgists, top in their field. They are working hard every 
day to get this resolved.
    We will be doing, Mr. Chairman, an excellent presentation, 
an excellent sunshine presentation, where this will get a 
public airing like nothing we have done before, sir. When this 
is complete, there will be peer review ad nauseam as it relates 
to that; and we will have it done, sir, before this year is 
over.
    They are working hard to achieve that, Mr. Chairman, 
believe me, they are.
    Mr. Oberstar. Thank you, Mr. Chairman, and thank you 
Chairman Costello. You have just made the best argument for an 
open public hearing. Thank you.
    Mr. Costello. The Chair thanks the gentleman and now 
recognizes the Ranking Member of the Full Committee, Mr. Mica.
    Mr. Mica. Thank you and let me continue along these lines.
    First of all, I have the greatest respect for the NTSB. It 
is one of the finest federal agencies I have ever had to deal 
with. I Chaired for 6 years, as you know, Aviation; we had a 
whole host of issues. And I think--one thing that I always 
caution myself was that, as a legislator, is not trying to 
influence the direction of your Board.
    I admire your staff. I admire you for the positions you 
take, and I think it is important that you continue that 
independence no matter what slings and arrows are tossed at you 
when we call on you to independently evaluate the causes of 
accidents and incidents.
    I read through the memo that the staff prepared to the 
Board in January of 2008. It lays it out pretty clearly. Let me 
read from this.
    It says, "Immediately after the"--and this is a staff 
report to you. "Immediately after the collapse, congressional 
interest focused on aging infrastructure, with the suspicion 
that this bridge collapsed as a result of its deteriorating 
condition over time. The FHWA's National Bridge Inspection 
Standards program, which must be used by every State, is 
designed to address infrastructure aging by finding evidence of 
fatigue cracking or corrosion that could lead to diminished 
bridge safety capacity. Staff finds no basis for attributing 
the collapse to fatigue cracking or corrosion." Basically, 
again, they have a pretty good idea of what happened. Let me go 
on and read here.
    "Staff Recommendation: Staff believes that the issues 
associated with the accident's probable cause can most 
effectively and efficiently be addressed through the ongoing 
efforts of the existing investigative groups. Taking resources 
away from this activity to conduct a hearing will lengthen the 
time necessary to complete the investigation and quite probably 
cause various parties to the investigation to proceed with 
their independent activities, potentially even separating their 
activities from the Board's. Therefore, staff recommends that a 
public hearing not be convened in connection with this 
accident."
    So I think that to prolong this would also do damage in 
trying to get information out. This appears pretty much to be a 
design flaw. I don't know if you are prepared to say that, but 
there were design errors.
    There is something in the NBIS standards that did not take 
into consideration looking for that kind of defect that, in 
fact, we have commentary from 1998, we have pictures from 2002, 
we can see what was happening.
    Wasn't it your best judgment to get out to--how many 
bridges are of a similar design?
    Mr. Rosenker. That particular design was, as Chairman 
Oberstar said, we are talking about between 400-some or 700-
some.
    But there are 13,000 steel truss bridges, approximately, 
yes, sir.
    Mr. Mica. But knowing what you know and knowing that we 
have again a load stress factor on a bridge under construction, 
the thing collapsed and you have enough evidence to warn others 
and conclude this investigation and warn others, one, to look 
for and how to proceed in the future to keep this from 
reoccurring.
    Is that an oversimplification?
    Mr. Rosenker. Mr. Mica, I appreciate your interest in this 
case, and obviously, you are supportive of the staff's 
position.
    I want to make sure, because I have been sensitized by 
Chairman Oberstar, and I don't want to do this again, but I am 
not going to be telling you what happened to that bridge yet.
    Mr. Mica. I read the report. This is pretty clear. And, 
again, the worst thing we can do, as legislators--I have been 
through this; I have been through with the previous Chair, and 
I saw the pressure that is put on you all to do certain things 
in certain time frames, or in a certain manner. That, I think, 
is highly inappropriate.
    I think it is highly inappropriate, and I demand just as 
much as anybody; I demand that you retain your independence and 
you proceed in this investigation as you feel best would 
benefit the general public interest. And the general public 
interest in what I see is, you have--we have--your 
investigators have identified the reason for the collapse of 
this bridge. We need to get that information to people as soon 
as possible without delaying the process, without having the 
investigation go out. And they cite right here what can happen 
or what would happen in delaying that.
    So I see no immediate need for a hearing. I see no need to 
try to--you know, people are trying to justify, well, I thought 
it was aging and I said it was aging, but it really didn't turn 
out to be aging. But maybe we should look at aging, even if 
they don't want to look at aging.
    And we could spend more time looking at a factor that isn't 
a factor, but maybe we can make it look like it was a factor, 
so we don't make it look as bad as we did because we said 
something that might occur. But we could put pressure on NTSB 
to do something that it probably shouldn't be doing.
    So I don't want you to do that. I feel just as strongly. 
This is very important, and if you do that, you set a bad 
precedent for the future. You won't be there, but someone else 
will be there; and the same pressure is going to come from this 
dais--and people maybe a lot more powerful than myself and Mr. 
Oberstar--to do something else other than the right thing and 
what you were set to do.
    So I am telling you that I don't want that done unless you 
think that it is the right thing to do. And if you want to 
reverse what your staff has said and what you said, you are 
free to do that. But, again, I want to lay this out in clear 
terms.
    And I have been through it again with the Board, and I have 
seen the pressure on previous chairmen and Board members to 
look this way, look that way, to do this, do that. And I tell 
you, as long as I have been here, I have never seen that to be 
the case. And I have the highest respect for every one of the 
Board members, and I don't want that to be the case.
    Mr. Oberstar. Would the gentleman yield?
    Mr. Mica. Yes.
    Mr. Oberstar. I disagree fundamentally with the gentleman's 
line of argumentation.
    The purpose of holding a public hearing is not to determine 
an outcome, but to spread upon the record the information and 
to receive information from others with expertise in the 
subject matter.
    The Board decides who testifies at those hearings. The 
Board determines whom they will invite to those hearings. And 
the document from which the gentleman is quoting, I asked the 
Chairman of the Board for that document when he called. He 
said, "It is not available."
    It was subsequently made available. I did not see this 
information until long after I had the conversation with the 
Chairman of the Board. And having seen the document, there is a 
misstatement, a misunderstanding: ``congressional interest 
focused on aging infrastructure, with the suspicion that this 
bridge collapsed as a result of its deteriorating condition_.''
    The purpose of the proposal I set forth before this 
Committee was not a bill; it was a proposal to strengthen the 
standards, upgrade the standards by which bridge safety is 
determined, by which bridges are designed, and to improve the 
quality of inspections and inspectors. It had nothing to do 
with this sentence.
    And, again, I disagree with the gentleman completely. An 
open, investigative--an open hearing on an investigation is a 
teaching moment for the Board and a learning moment for the 
public.
    Mr. Mica. Reclaiming my time, again I will read from the 
staff recommendation, not from any Board member or the 
Chairman's recommendation, "Taking resources away from this 
activity to conduct a hearing will lengthen the time necessary 
to complete the investigation and quite probably cause various 
parties to the investigation to proceed with their independent 
activities, potentially even separating the activities from the 
Board." It goes on.
    But, again, I am not taking what he has said; I am taking 
what the staff and the professionals have recommended. And they 
have taken that, in most instances in the past they have taken 
that; in here they have taken it and are proceeding with that. 
And I am willing to accept that. And I don't think we should be 
pressuring them to go back and reverse all this on some hunt 
that will, according to what is said by their professionals, 
detract from what we are trying to achieve.
    Mr. Oberstar. I simply observe that it was not a unanimous 
vote by the Board, which I was led to believe, and that there 
is a dissenting view on the Board.
    But I still feel that open public hearings on categories of 
issues are vital for the public interest without determining 
what the outcome should be or what the probable cause should 
be, but rather to hold that public hearing and engage the 
public.
    Mr. Mica. Again, I have to go----
    Mr. Oberstar. We have a disagreement on that.
    Mr. Mica. We have a disagreement on that, but we have an 
agreement, Mr. Chairman, that we both want to correct the 
situation. That is what is most fundamental. We want to make 
certain this doesn't happen again.
    We have identified hundreds of bridges that have the same 
condition. We need to make certain that something is done, 
directives are done. And I think you have already taken some 
steps--and you sent out a memo in January, I was told--because 
that was my first consideration. My God, we know pretty good 
that--and, again, I am concluding that it was design--that 
there are bridges like this.
    We also found--and the staff confirms, too--that the 
criteria by which the National Bridge Inspection Standards 
program is conducted doesn't take into consideration the 
factors that we should be taking in like design that could 
contribute to something like this. So we should be changing our 
criteria, what you are asking for, and increasing our bridge 
inspection and take in the criteria to look for the things that 
cause bridges like this to collapse.
    So I think we want to same goal.
    But my concern, too, is this Board, its independence. For 
them to reverse now and go back, it is going to look like 
congressional pressure made them do something--that we expand 
this hearing time, that the investigation go in different 
directions, and that we don't, as the staff recommend, conclude 
this.
    It was a 3-2 vote. But that is the way things are done, so 
we go on.
    But the integrity of this process, NTSB and your 
credibility, I believe the credibility is at stake when we step 
over that boundary.
    I yield back. Thank you.
    Mr. Costello. The Chair now recognizes the gentlelady from 
California, Ms. Richardson.
    Ms. Richardson. Thank you, Mr. Chairman.
    According to the background information that we have, part 
of your objective is not only to evaluate accidents but to 
evaluate the effectiveness of other Government agency programs 
for preventing transportation accidents.
    How much time and effort and resources are used focusing on 
that area?
    Mr. Rosenker. We have a large advocacy program that does 
enable us to move our recommendations to implementation. Most 
of what we look at is based on accident investigation. That is 
the facts and the science that we must deal with. So, as it 
relates to making audits on other Government agencies, we 
really do not do that.
    Ms. Richardson. Okay. My second question is: Under your 
leadership, what safety improvements would you most like to see 
adopted by the aviation industry?
    Mr. Rosenker. Well, I just so happen to have, 
Congresswoman, a copy of my most-wanted list.
    Ms. Richardson. I was just asking staff for that.
    Mr. Rosenker. I happen to have it.
    Ms. Richardson. Okay.
    Mr. Rosenker. If you would like a copy, I would be 
delighted to get you a copy and a copy for anyone on the 
Committee who would also like it. I am trying to save money. 
That is why I only brought one with me.
    As far as aviation is concerned----
    Ms. Richardson. Oh, I suggest you try and save money in 
another area than that.
    Mr. Rosenker. Okay. Runway incursions is probably the 
biggest thing that keeps me up.
    Ms. Richardson. Okay.
    Out of respect for the Chairman, I am going to stop there 
so other Members can ask their questions before our vote time.
    Thank you. I would like that copy.
    Mr. Rosenker. Yes, ma'am. Would you like it now?
    Mr. Costello. The Chair thanks the gentlelady and 
recognizes the gentleman from Oregon, Mr. DeFazio.
    Mr. DeFazio. Thank you, Mr. Chairman.
    Chairman Rosenker, with regard to the staff memo which 
triggers the vote of the Board on whether or not to hold a 
public hearing, why is that confidential?
    Mr. Rosenker. Sir, sometimes there are things in that that 
are sensitive.
    Mr. DeFazio. But, I mean, you can understand the Chairman's 
concern and, I think, mine. I have to disagree with Mr. Mica. 
This is how conspiracy theories get born, you know? Your staff 
secretly makes a recommendation. You have a split vote, three 
to two. You decide not to hold a public hearing. I understand 
what you say the end-point disclosure is going to be, but that 
is going to be the point at which you have made conclusions.
    I also do not understand--you know, I understand there is a 
fair amount of work that goes into holding a good hearing, but 
I do not see why it would cause a 4-month delay in the process 
unless you are saying that, you know, something might come up 
at the hearing that would trigger further investigation or a 
different direction in the investigation.
    Mr. Rosenker. Mr. DeFazio, the history and the only thing I 
can go on, sir--I have been here 5 years. We have looked at the 
entire history, and the statistics show it adds anywhere 
between 2 and 4 months to the conclusion of an investigation. 
As it relates to the----
    Mr. DeFazio. That is just by the mere fact of holding a 
hearing because you have to respond to issues raised in the 
hearing. Is that it?
    Mr. Rosenker. No.
    Mr. DeFazio. So this, perhaps, goes back to the point you 
made. We will not be able to get the additional people we could 
use, and critical work will be delayed or will go undone. So, 
if you had gotten those additional staff, could you have held 
the hearing and then not have had a 4-month or a 2-month delay?
    Mr. Rosenker. In this particular case, we have some 
specialists who have some unique skills and capabilities and 
knowledge that would be the appropriate people if we were going 
to do a substantive hearing. They would be taken away and would 
be drawn into doing the work of getting the witnesses, of 
coming up with the appropriate agenda, of dealing with the 
questions, of doing the research.
    When that happens, because we are not two- and three- and 
four-deep, the work that they are doing stops.
    Mr. DeFazio. Well, I was just going to say that I do not 
find the 2 to 4 months credible. A week, 2 weeks. And, also, I 
think that you live in the process. You close, preclude--how 
about Comair?
    How come you did not hold a hearing on Comair? Is it 
because of a secret staff recommendation.
    Mr. Rosenker. No, sir. That was unanimous, and the 
professional staff said they did not need it to conclude the 
investigation.
    Mr. DeFazio. But you do not think, in a case like that, 
where you have, you know, parties, a large number of families 
who have lost loved ones, that holding a hearing would 
contribute to the public process and also, perhaps, bring some 
additional pressure to bear on the airline, itself?
    You know, I mean, part of your job is to push for safety. 
You have all of these recommendations that have not been 
responded to, but part of triggering that is public pressure. 
So, if you do not hold the hearing, those people are all 
isolated in their grief, and they do not get to come together; 
they do not get the coverage; you do not hold the hearing, and 
there is not additional pressure put on the airline or 
airlines.
    Mr. Rosenker. Mr. DeFazio, that case was completed in 11 
months. It was done. When we finished it, we brought the 
families that wished to come to Washington. There were others 
who did it in--I believe we did this through a video capability 
in Lexington, Kentucky. All of our Board meetings are done in 
the sunshine through the Web cast. In 11 months, all of the 
families----
    Mr. DeFazio. Except the staff recommendations?
    Mr. Rosenker. Sir?
    Mr. DeFazio. The staff recommendations, though, are not 
done in the sunshine on whether or not to hold hearings.
    Mr. Rosenker. It is a notation process, but the 
documentation, at least the history, according to what I have 
asked my staff, both counsel and managing director, that these 
are not released.
    Mr. Oberstar. Would the gentleman yield? 
    Mr. DeFazio. I would yield, although I have another line of 
questioning.
    Mr. Oberstar. Just briefly on this, our Committee last 
year, held 97 hearings. We heard from 705 witnesses, 310 hours 
of hearings. If your Board staff cannot conduct a hearing on 
one issue, then they need to come and take lessons from ours.
    I think that this judgment that was made--and the staff, in 
my recollection, rarely, if ever, recommends a public hearing. 
It is the Board members who make a decision. That is why you 
are there, to take into account the public interest and the 
learning opportunity, the learning experience, from, in this 
case, an issue that reflects upon a whole category of bridge 
failures or potential failures.
    Mr. DeFazio. Thank you, Mr. Chairman.
    I would like to turn to a different subject, though, your 
safety recommendations.
    Now, my understanding--and there is, sort of, a new 
emphasis on closing out safety recommendations, more so than in 
the past. Are you closing out some that have not been acted on?
    Mr. Rosenker. Mr. DeFazio, that is a different 
administration, as far as Chairman, in taking a different way 
of closing. We have gone back--as a matter of fact, this Board 
that we have right now is much tougher in closing 
recommendations.
    Mr. DeFazio. Okay. All right.
    Mr. Rosenker. So, no, sir.
    Mr. DeFazio. All right. The last time we reauthorized NTSB, 
I got the law changed a little bit to require a more--rather 
than the black hole downtown, but to get a response from the 
Secretary when you make an initial recommendation.
    Have they followed through on their obligations in all 
cases?
    Mr. Rosenker. Sir, I do not have a report in front of me 
yet, but I appreciate that legislative change that you made to 
help, in fact, their having to respond to us and Congress about 
where they are in their process.
    Mr. DeFazio. Well, there are two. There is the initial 
filing of your recommendation and a response period for that, 
with a "we will take action/we are not going to take action/we 
are going to take partial action."
    But then there is a second provision, which is an annual 
report of your outstanding recommendations, and the Secretary 
is supposed to report to the Board by March 1st. And if you do 
not receive that report by March 1st, you are supposed to 
notify us.
    So did you get a report this year on March 1st?
    Mr. Rosenker. We did not, sir.
    Mr. DeFazio. So you should have reported to us that you did 
not receive the report. Did you do that?
    Mr. Rosenker. I do not believe that has been reported yet, 
sir.
    Mr. DeFazio. Okay. So we are getting the report now, but--
--
    Mr. Rosenker. I will get that report for you before this 
week is over, at least our response that we have not gotten 
anything yet.
    Mr. DeFazio. Okay. So did they comply last year?
    Dr. Dillingham, are you familiar with any of this? Have you 
been following this?
    Mr. Dillingham. No, sir, we have not.
    Mr. DeFazio. Okay. Would you be interested in this?
    Mr. Dillingham. Well, yes. We have a request in-house to 
examine the NTSB recommendation, its closure, its rate, and the 
principal agencies that it gives its recommendations to. We 
just have not staffed that request yet.
    Mr. DeFazio. Okay. If you would, look at particularly these 
new requirements and the new responsiveness that we require to 
the Secretary. Because we got tired of the fact that they would 
make major recommendations, then they would disappear in the 
FAA or wherever, and you would not hear from them for years. 
Now there is supposed to be an initial and a follow-up, and we 
seem to be out of compliance, from what the Chairman is telling 
me here.
    Mr. Dillingham. Yes, sir. Will do.
    Mr. Rosenker. Sir, I will research that and guarantee you 
will have an answer.
    Mr. DeFazio. Thank you.
    Mr. Costello. The Chair will announce to Members that we 
have a little over 4 minutes to vote. I understand Mr. Carnahan 
has one question, and we would like a brief answer.
    Mr. Carnahan. I have so many questions, but I guess I am 
going to choose the one level of safety issue for commuter air 
carriers in terms of operating under the same rules as the 
larger aircraft.
    Given the number of fatal accidents since 2003 in the 
commuter area, in the under-50-seat aircraft, two of those 
incidents were in the State of Missouri, I think totaling 85 
fatalities in all, I would like your opinion on whether we have 
achieved that one level of safety for commercial flight.
    Aren't these statistics a wake-up call in terms of those 
disparities? What are we doing to attack that?
    Mr. Rosenker. Mr. Carnahan, we agree with that. One level 
of safety, certainly at the 121, needs to be, when you pay for 
a ticket, no matter how big that airplane is or no matter how 
small that airplane is, you ought to be entitled to know that 
it is a safe ride that will get you there in a manner in which 
you are entitled, efficiently and safely.
    We are not seeing--as a matter of fact, we have done a 
number of investigations that deal with commuter-type 
operations, and some of those operations have shown a deep 
concern to us.
    Mr. Costello. The Chair would ask the gentleman, if that 
answer is not adequate, to contact the Chairman of the NTSB and 
follow up.
    Mr. Carnahan. Mr. Chairman, I have some other questions 
that I could not get to, and I would like to submit those for 
the agency.
    And I would appreciate your response.
    Mr. Rosenker. We will take those questions and respond as 
quickly as we can, sir.
    Mr. Costello. Without objection.
    And the Chair thanks the witnesses for testifying here at 
the Subcommittee hearing today.
    And that concludes our hearing.
    Mr. Rosenker. Thank you, Mr. Chairman.
    [Whereupon, at 3:13 p.m., the Subcommittee was adjourned.]

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