[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



                         REAUTHORIZATION OF THE
                        NATIONAL TRANSPORTATION
                              SAFETY BOARD

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

                                (111-84)

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                                AVIATION

                                 OF THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                            January 27, 2010

                               __________


                       Printed for the use of the
             Committee on Transportation and Infrastructure

                  U.S. GOVERNMENT PRINTING OFFICE
54-636 PDF               WASHINGTON : 2010
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001






             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                             VERNON J. EHLERS, Michigan
JERROLD NADLER, New York             FRANK A. LoBIONDO, New Jersey
CORRINE BROWN, Florida               JERRY MORAN, Kansas
BOB FILNER, California               GARY G. MILLER, California
EDDIE BERNICE JOHNSON, Texas         HENRY E. BROWN, Jr., South 
GENE TAYLOR, Mississippi             Carolina
ELIJAH E. CUMMINGS, Maryland         TIMOTHY V. JOHNSON, Illinois
LEONARD L. BOSWELL, Iowa             TODD RUSSELL PLATTS, Pennsylvania
TIM HOLDEN, Pennsylvania             SAM GRAVES, Missouri
BRIAN BAIRD, Washington              BILL SHUSTER, Pennsylvania
RICK LARSEN, Washington              JOHN BOOZMAN, Arkansas
MICHAEL E. CAPUANO, Massachusetts    SHELLEY MOORE CAPITO, West 
TIMOTHY H. BISHOP, New York          Virginia
MICHAEL H. MICHAUD, Maine            JIM GERLACH, Pennsylvania
RUSS CARNAHAN, Missouri              MARIO DIAZ-BALART, Florida
GRACE F. NAPOLITANO, California      CHARLES W. DENT, Pennsylvania
DANIEL LIPINSKI, Illinois            CONNIE MACK, Florida
MAZIE K. HIRONO, Hawaii              LYNN A WESTMORELAND, Georgia
JASON ALTMIRE, Pennsylvania          JEAN SCHMIDT, Ohio
TIMOTHY J. WALZ, Minnesota           CANDICE S. MILLER, Michigan
HEATH SHULER, North Carolina         MARY FALLIN, Oklahoma
MICHAEL A. ARCURI, New York          VERN BUCHANAN, Florida
HARRY E. MITCHELL, Arizona           ROBERT E. LATTA, Ohio
CHRISTOPHER P. CARNEY, Pennsylvania  BRETT GUTHRIE, Kentucky
JOHN J. HALL, New York               ANH ``JOSEPH'' CAO, Louisiana
STEVE KAGEN, Wisconsin               AARON SCHOCK, Illinois
STEVE COHEN, Tennessee               PETE OLSON, Texas
LAURA A. RICHARDSON, California
ALBIO SIRES, New Jersey
DONNA F. EDWARDS, Maryland
SOLOMON P. ORTIZ, Texas
PHIL HARE, Illinois
JOHN A. BOCCIERI, Ohio
MARK H. SCHAUER, Michigan
BETSY MARKEY, Colorado
PARKER GRIFFITH, Alabama
MICHAEL E. McMAHON, New York
THOMAS S. P. PERRIELLO, Virginia
DINA TITUS, Nevada
HARRY TEAGUE, New Mexico
JOHN GARAMENDI, California
VACANCY

                                  (ii)



                        Subcommittee on Aviation

                 JERRY F. COSTELLO, Illinois, Chairman

RUSS CARNAHAN, Missouri              THOMAS E. PETRI, Wisconsin
MICHAEL E. McMAHON, New York         HOWARD COBLE, North Carolina
PETER A. DeFAZIO, Oregon             JOHN J. DUNCAN, Jr., Tennessee
ELEANOR HOLMES NORTON, District of   VERNON J. EHLERS, Michigan
Columbia                             FRANK A. LoBIONDO, New Jersey
BOB FILNER, California               JERRY MORAN, Kansas
EDDIE BERNICE JOHNSON, Texas         SAM GRAVES, Missouri
LEONARD L. BOSWELL, Iowa             JOHN BOOZMAN, Arkansas
TIM HOLDEN, Pennsylvania             SHELLEY MOORE CAPITO, West 
MICHAEL E. CAPUANO, Massachusetts    Virginia
DANIEL LIPINSKI, Illinois            JIM GERLACH, Pennsylvania
MAZIE K. HIRONO, Hawaii              CHARLES W. DENT, Pennsylvania
HARRY E. MITCHELL, Arizona           CONNIE MACK, Florida
JOHN J. HALL, New York               LYNN A. WESTMORELAND, Georgia
STEVE COHEN, Tennessee               JEAN SCHMIDT, Ohio
LAURA A. RICHARDSON, California      MARY FALLIN, Oklahoma
JOHN A. BOCCIERI, Ohio, Vice Chair   VERN BUCHANAN, Florida
NICK J. RAHALL, II, West Virginia    BRETT GUTHRIE, Kentucky
CORRINE BROWN, Florida
ELIJAH E. CUMMINGS, Maryland
JASON ALTMIRE, Pennsylvania
SOLOMON P. ORTIZ, Texas
MARK H. SCHAUER, Michigan
THOMAS S.P. PERRIELLO, Virginia
JOHN GARAMENDI, California
DINA TITUS, Nevada
JAMES L. OBERSTAR, Minnesota
  (Ex Officio)

                                 (iii)











                                CONTENTS

                                                                   Page

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

                               TESTIMONY

Dillingham, Dr. Gerald, Director, Physical Infrastructure Issues, 
  Government Accountability Office...............................     2
Hersman, Deborah, Chairman, National Transportation Safety Board.     2

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Carnahan, Hon. Russ, of Missouri.................................    31
Costello, Hon. Jerry, of Illinois................................    32
Johnson, Hon. Eddie Bernice, of Texas............................    36
McMahon, Hon. Michael E., of New York............................    41
Mitchell, Hon. Harry E., of Arizona..............................    44
Oberstar, Hon. James L., of Minnesota............................    45
Petri, Hon. Thomas E., of Wisconsin..............................    50
Richardson, Hon. Laura, of California............................    56

               PREPARED STATEMENTS SUBMITTED BY WITNESSES

Dillingham, Dr. Gerald...........................................    60
Hersman, Deborah.................................................    85

                       SUBMISSIONS FOR THE RECORD

Hersman, Deborah, Chairman, National Transportation Safety Board:
      Response to request for information from Rep. Cummings, a 
        Representative from the State of Maryland................    27
      Response to request for information from Rep. Richardson, a 
        Representative in Congress from the State of California..    24
      Responses to questions from Rep. Oberstar, a Representative 
        in Congress from the State of Minnesota..................    93


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



 
      REAUTHORIZATION OF THE NATIONAL TRANSPORTATION SAFETY BOARD

                              ----------                              


                      Wednesday, January 27, 2010

                  House of Representatives,
                          Subcommittee on Aviation,
            Committee on Transportation and Infrastructure,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 10:00 a.m., in 
Room 2167, Rayburn House Office Building, Hon. Jerry F. 
Costello [Chairman of the Subcommittee] presiding.
    Mr. Costello. The Chair will call the Subcommittee to 
order.
    We welcome Chairman Hersman here today and Dr. Dillingham.
    We will be called for a vote right at 11 o'clock--at least 
one vote and maybe more. We have a markup here in this room at 
12:30, and we have to conclude the hearing by 12 o'clock in 
order to set up for the markup.
    So what I intend to do, instead of giving my opening 
statement, I will enter it into the record. Mr. Petri has 
offered to do the same thing so that we can go directly to the 
witnesses to hear their testimony, and it will give us plenty 
of opportunity to ask questions concerning the NTSB 
reauthorization.
    So, with that, I will enter my statement into the record 
and will ask unanimous consent to enter the Ranking Member's 
statement into the record as well.
    Hearing no objection, so ordered.
    Mr. Costello. Before I recognize Mr. Petri for any remarks 
that he may have, I ask unanimous consent to allow 2 weeks for 
all Members to revise and extend their remarks and to permit 
the submission of additional statements and materials by 
Members and witnesses.
    Without objection, so ordered.
    Mr. Costello. The Chair would recognize Mr. Petri for any 
comments he may have.
    Mr. Petri. Yes. Very briefly, I know that the 
reauthorization of the agency is overdue from Congress's point 
of view. There have been requests for changes in expansion of 
authority by the Board, and we intend to review all of that 
very carefully as we proceed with the reauthorization. So we 
look forward to your comments and explanations of any changes.
    Mr. Costello. The Chair thanks the Ranking Member for his 
comments.
    Now the Chair would recognize our two witnesses. We welcome 
you here today. We appreciate your appearing before the 
Subcommittee: the Honorable Deborah Hersman, who is the 
Chairman of the National Transportation Safety Board, and Dr. 
Gerald Dillingham, the Director of Physical Infrastructure 
Issues with the Government Accountability Office, who has 
testified before this Subcommittee many, many times.
    We normally have a 5-minute rule under which we ask 
witnesses to summarize their testimony in 5 minutes. We will 
not adhere strictly to that today since we only have two 
witnesses.
    So, at this time, the Chair will recognize Chairman Hersman 
for her opening statement and any testimony that she has to 
offer to the Subcommittee.

       STATEMENTS OF DEBORAH HERSMAN, CHAIRMAN, NATIONAL 
 TRANSPORTATION SAFETY BOARD; AND GERALD DILLINGHAM, DIRECTOR, 
   PHYSICAL INFRASTRUCTURE ISSUES, GOVERNMENT ACCOUNTABILITY 
                             OFFICE

    Ms. Hersman. Thank you, Mr. Chairman, Mr. Petri, and 
Members of the Committee. Thank you for inviting me to be here 
this morning.
    Before I begin, I want to introduce one of my colleagues 
from the Board who is here with me, Board Member Robert 
Sumwalt.
    Thank you for making the Safety Board's reauthorization one 
of the top priorities on the Committee's agenda this year. 
While much has changed in the transportation world since 1967 
when we were created, our core mission remains the same: 
investigate transportation accidents to determine what 
happened, why it happened, and make recommendations to prevent 
it from happening again.
    In the last week, the Board has initiated activities in 
aviation, marine, and rail investigations. We do not often get 
to be the bearer of good news, so let me begin by telling you 
that we have recovered recorders from an incident that occurred 
last week in Charleston, West Virginia. A regional jet aborted 
takeoff and went into an engineered materials arresting system 
at the end of the runway. Preventing runway overruns has been 
on our Most Wanted List of Safety Improvements for many years. 
Something like EMAS has the potential to save lives. The Board 
has been advocating these improvements for years, so it is a 
good opportunity to share a success story with you.
    Over the weekend, a tanker collided with a towboat and two 
barges near Port Arthur, Texas. Approximately 462,000 gallons 
of fuel were released into the water. An NTSB team was sent to 
assist the Coast Guard.
    On Monday, we sent an accredited representative to assist 
the country of Lebanon in its investigation of the crash of an 
Ethiopian Airlines 737 into the Mediterranean. The Lebanese 
Government is conducting this investigation, but they have 
requested the assistance of the NTSB.
    Yesterday, we dispatched a team to Rockville, Maryland, 
where two Metro track workers were killed while performing 
maintenance, which resulted in closures of portions of the Red 
Line during the Tuesday morning rush hour. As you know, we are 
also conducting an investigation into the June, 2009, fatal 
collision of two trains on the Red Line, and we will hold a 
multi-day public hearing, chaired by Member Sumwalt, in 
February.
    Just last week, the Board approved the report on the 
September, 2008, Metrolink collision with a UP freight train 
that resulted in 25 fatalities in southern California, 
involving an engineer who was texting.
    Next week, the Board will meet to consider the report on 
the Colgan Air crash in Buffalo, New York. As you recall, that 
accident occurred on February 12, 2009, so we are completing 
this investigation within a year of the accident. This is a 
testament to the hard work and determination of our staff, who 
also conducted an early public hearing on this accident last 
May. We promised the families that we would be aggressive in 
our investigation, and we are holding ourselves accountable to 
complete the investigation in a timely manner.
    Like every other Federal agency, the Safety Board is called 
upon to do more with less. In fact, today, we have 33 fewer 
employees than we did in 2003. For a small agency like the 
Safety Board, this is significant. It is about 8 percent fewer 
employees. We accomplish a great deal because we have an 
incredibly dedicated and professional staff. I and the other 
members of the Board are proud to work with these men and women 
every day. They are smart, curious, and have an unparalleled 
passion for transportation safety.
    Compounding our staffing challenges, we are facing 
impending retirements of senior career employees, but we also 
recognize that this is an opportunity to recruit new talent to 
the Safety Board. I am very aware that parts of our 
organization, especially at the senior executive level, are 
fairly homogenous. That is why I created a diversity task force 
to look at recruitment, retention, and training. The task force 
is being led by Vice Chairman Hart and the Board's Executive 
Officer, and I have asked them to report to me by March of this 
year on initial recommendations to create a more diverse 
workforce.
    When I became Chairman of the Safety Board last year, I 
spoke about three things that I wanted to emphasize during my 
tenure: transparency, accountability, and integrity. We have 
taken a number of steps to improve the public availability of 
Board materials. We are working to open the dockets of our 
investigations much sooner and making that information 
available on the Internet. Whenever possible, we are having 
more public hearings on our investigations, again, providing a 
window for the public to see and hear the Board at work. These 
are the first of some important steps taken by the Board to 
further strengthen the integrity of our investigations and 
reports.
    Thank you very much for your support of our mission. We 
look forward to working with you and your staffs for an 
expeditious consideration of our reauthorization.
    Mr. Costello. The Chair thanks you, Chairman Hersman.
    Let me say that everyone recognizes, I think, that the NTSB 
is the premier investigative agency, and I want to commend you 
personally and the board members and your staff. I would agree 
with your comments about they are professionals and they are 
dedicated, and it is our responsibility in the Congress to make 
certain that you have adequate funding to meet your mission, 
and it is one of the reasons why we are holding this hearing, 
to ask some questions about additional funding that you are 
requesting, additional staff, and some statutory changes as 
well. So we will get into those questions after we hear Dr. 
Dillingham's testimony.
    Dr. Dillingham, we thank you again for being here this 
morning. As I said, you have testified before the Subcommittee 
many times, and we look forward to hearing your testimony now. 
Thank you.
    Mr. Dillingham. Thank you, Mr. Chairman, for inviting me 
back again, Mr. Petri, and Members of the Subcommittee.
    In NTSB's last reauthorization, GAO was mandated to 
annually review issues related to the agency. My testimony this 
morning focuses on the results of recent reviews of key 
management issues at NTSB and our observations on the agency's 
2010 reauthorization proposal.
    As a result of our mandated reviews, we made 21 
recommendations to improve NTSB's organizational management and 
operations. Our reviews focused on two areas. First, we 
compared NTSB's management practices with leading practices in 
selected areas, such as strategic planning, human capital 
issues, and financial management. Second, we analyzed how NTSB 
is using its Ashburn, Virginia, training center.
    Overall, NTSB has been very proactive and responsive to our 
recommendations and has fully implemented or made significant 
progress in implementing all of them. Nonetheless, a few issues 
remain.
    With regard to the management areas, although NTSB has 
shown significant progress in its human capital planning and 
has undertaken several initiatives to improve the diversity 
profile of its management and staff, these efforts have not 
resulted in significant changes. Currently, NTSB's workforce 
includes smaller percentages of women and minority group 
members than the overall Federal workforce. Additionally, 
minority group members hold about 8 percent of NTSB's 
supervisory or managerial positions, and women hold about 25 
percent.
    At the career SES level, there are no minority group 
representations. This circumstance is especially important 
because the SES core generally represents the most experienced 
segment of the Federal workforce, and it provides policy 
leadership. Research has shown that a diverse SES core can 
strengthen an organization by bringing a wide variety of 
perspectives and approaches to policy development and decision-
making.
    We agree with the Chairman's remarks that during this 
reauthorization period NTSB has an increased opportunity to 
improve its management diversity profile. Within the next 3 
years, more than 50 percent of NTSB's current supervisors and 
managers will be eligible to retire and slightly over 70 
percent of those filling critical leadership positions are at 
least 50 years of age.
    With regard to the NTSB Training Center, NTSB has increased 
the use of the Center's classroom space from 10 percent in 
fiscal year 2006 to 80 percent in fiscal year 2009. During the 
same period, NTSB also reduced the Training Center's annual 
deficit by 50 percent, from $4 million to about $2 million 
annually. Given the increasing demands on Federal resources, 
efforts to reduce the Training Center's annual $2 million 
deficit should also be a focus of this reauthorization period.
    Turning to our observations on NTSB's 2010 reauthorization 
proposal, NTSB has proposed changes to its existing authorizing 
legislation that would reduce required accident investigations 
and would provide statutory authority to investigate incidents. 
A key effect of some of these requested changes would be to 
grant NTSB increased investigatory discretion. These changes 
are clearly policy decisions for the Congress.
    The changes would allow the NTSB to use its professional 
judgment to determine which investigations would have the 
greatest potential to improve safety and to make the most 
effective use of its resources. At the same time, we believe 
that it is important that NTSB be transparent by providing 
information on the criteria it will use to select the 
investigations that it will undertake.
    Additionally, NTSB should also consider its existing 
interagency agreements and legal frameworks as well as the 
views of all agencies that might be affected by the proposed 
changes. Striking the right balance between agency discretion 
and agreed-upon criteria could help assure the Congress and the 
public that the agency's limited resources are being used to 
address the highest safety priorities.
    Mr. Chairman, this concludes my prepared statement. I would 
be happy to respond to any questions from you or from Members 
of the Subcommittee.
    Mr. Costello. Dr. Dillingham, thank you very much for your 
thoughtful testimony.
    Chairman Hersman, of course, the NTSB testified before this 
Subcommittee in a similar hearing in April of 2008 and 
requested similar changes in statutory authority and requested 
additional funding for personnel, and I am going to get into 
that in a second.
    You indicate in your testimony that providing the Board 
with specific statutory authority to investigate incidents as 
well as accidents is consistent with a worldwide push by ICAO 
member nations. Do you want to explain that?
    Ms. Hersman. Yes, sir.
    ICAO has made some recommendations to member nations, and I 
think the focus really is the same focus that we have, to 
improve safety in aviation. That is ICAO's focus, and it is our 
focus as well. I think that we do have the ability to do that 
by selecting the right accidents.
    Sometimes we can learn a lot from an incident. We do not 
necessarily need to have a body count in order to learn 
lessons, and so I think that one of the reasons why we want to 
look at incidents is because there is a lot to learn. If we 
have an aircraft landing on a taxiway but it does not result in 
a runway collision or in a collision on the surface of the 
airport, we want to understand why that happened and how to 
prevent that from happening in the future.
    It was just really by chance that there were not other 
aircraft that might have been on a taxiway when that aircraft 
landed. I am referring to an incident that occurred involving 
Delta Airlines at Atlanta Hartsfield, the busiest airport in 
the country.
    So there are concerns that we have that we think looking at 
incidents could address. It is something that we already do. We 
do not believe that we are asking for more than what we already 
do. We do investigate incidents, and incidents are referred to 
in our statutes already in certain places. We just want to make 
sure that the intent is clear and that it is codified and that 
we have good direction from Congress to do it.
    Mr. Costello. You indicate in your testimony that the 
request for fiscal year 2011 through 2014 reauthorization 
levels are based on 477 full-time equivalent employees. Would 
you like to, for the record, state why you need that number of 
employees, 477 full-time equivalent, and how many full-time 
equivalent employees does the agency have today?
    Ms. Hersman. The agency has approximately 390 full-time 
equivalent employees today. This is down from 427 employees in 
2003. So our agency has actually seen a real reduction in the 
number of FTEs.
    Calculations were used to determine the needs of the 
agency, what we have, and how to comply with recently enacted 
statutory mandates. For example, this Committee approved 
legislation that would require us to provide disaster 
assistance in rail accidents. That new responsibility requires 
two additional FTEs to perform that function. We do not have 
the ability to hire those individuals at this time. We do not 
have the funds to do it.
    Over the last 10 years, we have seen an actual reduction in 
the number of investigators. We currently have about 35 fewer 
investigators than we had in the past, and so those numbers to 
us represent real challenges in terms of accomplishing our 
mission. The 477 number is what we would really like to have if 
we had all of the experts on board that we would like. But we 
really would at least like to get back to where we were a few 
years ago and at least make us whole.
    Mr. Costello. You heard Dr. Dillingham's testimony 
concerning the percentage of women and minorities, especially 
at the managerial and senior executive levels, are lower than 
those in the Federal Government. Is it your opinion that the 
NTSB is attempting to address this issue? If so, how?
    Ms. Hersman. In the fall, I created a diversity task force, 
and that is being headed up by our vice chairman and executive 
officer. They are charged with coming up with a charter and 
reporting back to me in March with recommendations about 
increasing our outreach, our potential recruitment, our 
retention, our training, and advancement for all of the 
employees at the Safety Board. I think this is a good step. It 
is an important step.
    We are also being faced right now with several hiring 
decisions in some of the senior executive ranks. We are making 
every effort to reach out to diverse sources in our 
recruitments, and we have even held open some of those 
positions in order to solicit additional applicants.
    Mr. Costello. Very good. Thank you.
    The Chair now recognizes the Ranking Member, Mr. Petri.
    Mr. Petri. Thank you.
    One of the most effective and somewhat controversial 
bureaucrats in this town was J. Edgar Hoover, who, I 
understand, over his very long career as head of the FBI spent 
a lot of time lobbying or working with Congress to limit the 
scope of his agency and reduce or fight adding more and more 
statutes to the scope that the FBI was supposed to follow up on 
because he was afraid it would end up, you know, being jack of 
all trades and master of none and lose the focus of the agency.
    I just mention that because it can be a worry. We focus on 
one issue after another around here and dump it on the 
bureaucracy, and they are stuck losing focus and effectiveness 
over time. We cannot allow that to happen with this agency, 
because people's lives are at stake.
    Now, in that connection, the ICAO language talks about 
serious incidents, and I guess they define that. You just talk 
about incidents. Maybe that is a difference without a--a 
distinction without a difference, but it could lead to mission 
creep because there are incidents on every flight of one kind 
or another, probably. So could you define that a little bit for 
us or give your thinking on is this incidents important or 
serious incidents? How would we--why would we want to just use 
incidents?
    Ms. Hersman. I think it was clear that the Congress 
envisioned us looking at incidents, and we have done so for 
many years. In fact, on our Most Wanted List of Safety 
Improvements, the issue of runway safety exists.
    We have looked at runaway incursions. Many times, 
incursions do not result in any fatalities or damages so they 
wouldn't trigger an accident threshold for us. But when you 
have two aircraft that come dangerously close to each other and 
somehow manage to avoid a collision and, potentially, the loss 
of hundreds of lives, we think that that is important. We want 
to look at those incidents in order to understand why they 
occur.
    There are many incidents that occur where there might be 
turbulence or other things. We want to understand not just what 
is going on with the crews but also the equipment and the 
aircraft. We think that looking at incidents can give us a very 
good bang for our safety buck. We do not need to lose lives to 
learn something from an event. If we can look at an incident 
and learn a lesson and thus prevent an accident from occurring, 
that is important.
    So I think we are happy to be able to select the type of 
accidents we investigate. In the transportation world, things 
are very dynamic; we do not always know what the next problem 
is going to be until it occurs. I would worry about creating a 
very specific list of events that we can investigate.
    Many years ago, we might not have put on our list the 
collapse of an interstate bridge, because that is not something 
that we would have thought to put on our list, but it happened. 
We do not know what might happen until it occurs. If we could 
have some flexibility we would appreciate that, but we would 
certainly be happy to receive some guidance from the Congress 
on this subject.
    Mr. Petri. Very good.
    Well, I have a couple of other questions, but that is a 
thought-provoking thing. There are sort of systemic risks and 
then there are incidents, and the industry of designing 
aircraft and building things tries to prevent these sorts of 
general risks by building safety, but that is different than, 
sometimes, than an incident, which----
    But, in any event, you talk about expanding this subpoena 
power of the agency, and our understanding is that the current 
authority is enforceable in Federal courts. Are there problems 
with that or could you expand on why that request is being 
made?
    Ms. Hersman. Sure. The Safety Board has had subpoena 
authority. One of our concerns is that some attorneys might 
counter that we only have this authority with respect to our 
public hearings. We believe that we do have this authority. But 
with recent legislation, whether it is HIPAA or other types of 
financial protections, we believe that there might be some who 
would challenge our subpoena authority. We want to make sure 
that it is very clear that we do not want expansive authority; 
we want limited focus on information that would support an 
investigation.
    We would not want to get into a situation where we need a 
subpoena. We do not have the support, and we are challenged in 
the courts.
    Mr. Petri. If I could, one quick other question.
    You ask for or discuss the idea of putting cameras on 
commuter trains and also on aircraft. This is something that 
has come up at further hearings. It is something that has 
raised real concerns because of the way it has been handled in 
some other countries, and we do not want to get into the 
position where we are sort of Big Brother spying on every 
aspect of people's lives and how we can assure the personnel 
involved that this is not going to be unfair and intrusive and 
cause them to take evasive actions that neutralizes the whole 
thing or whatever.
    It is something we really need to spend some time on so 
there are clear guidelines. Otherwise, we are going to get big 
push-back from pilots' unions or from other representatives of 
the organizations. They are obviously worried about their 
members' safety, too, but they are also worried about their 
just being human beings and talking to each other and, God 
knows, to be taped and filmed and how it could be used.
    So are you giving thought to that? This is an area where we 
need to give some real thought so as to how to achieve the 
objective and use the technology without creating other 
problems.
    Ms. Hersman. Last week, the Safety Board considered the 
report on the Chatsworth accident. That was the 25 fatal 
freight train collision with a passenger train in southern 
California.
    In that accident, the Safety Board found that the engineer 
who was operating the Metrolink train had a long and sustained 
history of texting and using his cell phone while he was on the 
job. We looked back in the week preceding the accident. He 
averaged about 100 text messages per day. On the day of the 
accident, he sent 75 text messages, 41 of those while he was on 
duty, and he made a number of outgoing cell phone calls. The 
last text message that was incoming and that he sent out was 22 
seconds before the collision while he was passing a red signal.
    This is not the first time that the Safety Board has looked 
at this issue in an accident. Back in 2002, we investigated a 
freight accident was on a cell phone and was distracted. It 
resulted in a collision.
    We made a recommendation back in 2003 for the FRA to 
control the use of wireless devices. They did not do anything 
on that until 1 month after the Chatsworth accident. The 
concern that we had in this case was the locomotive engineer on 
the Metrolink train had been disciplined twice before by 
management for using his cell phone; he was even turned in by 
one of his colleagues--a conductor on the train at one point--
for his use of the cell phone. We are concerned that this 
engineer was not doing the right thing when no one was watching 
him. He brought underage youth into the locomotive with him in 
violation of company procedures, and even allowed a minor to 
operate the train. These were very serious issues, and we 
really struggled with how to address it.
    In that accident, we looked at the records of the other 
train that was struck. The conductor on the other train was 
using his wireless device at the same time. This is not just a 
one-off situation. It was not one person for the first time 
using his cell phone or texting and he happened to get caught. 
It was something that was going on frequently and across the 
board.
    Last May, I launched to an accident in Boston, 
Massachusetts. There were two trollies that collided. The 
driver of the striking trolly admitted to local authorities 
that he was texting his girlfriend when he struck the train.
    This is a challenge. The Safety Board does not come to this 
lightly. Our job is to make recommendations to improve 
transportation safety. The company's enforcement policy is not 
working. People are still violating the rules.
    We have made this recommendation; and, yes, we recognize 
that some may consider it an intrusion, some may consider it 
something that is a violation of their privacy, but this agency 
and the Congress has a long history of intervening when they 
think that the public interest is at stake.
    The same happened with drug and alcohol testing some 20 or 
30 years ago. For many years, the Safety Board made 
recommendations about drug and alcohol testing. People 
considered it a violation of privacy at the time. It was not 
until we investigated an accident on New York City Transit 
where the driver of the train had a blood alcohol content of 
.21, 13 hours after the accident, that people started paying 
attention. Then we had Chase, Maryland, where we had two people 
on that locomotive who were high on marijuana. Congress passed 
requirements for drug and alcohol testing, both random and post 
accident, following those accidents. Now we have drug and 
alcohol testing, and people have accepted it.
    We hope that, by raising this dialogue, it will raise the 
bar on safety. People need to look at other ways to deal with 
these distractions before something else catastrophic happens.
    So I am sorry for my long answer. It is an important issue 
to me. I wanted to make sure I explained it to you.
    Mr. Costello. The Chair thanks you and now recognizes the 
gentleman from Missouri, Mr. Carnahan.
    Mr. Carnahan. Thank you, Mr. Chairman and Ranking Member, 
for really leading this hearing and for the panel for being 
here. I appreciate the work that you do.
    The NTSB, I think, has a good and well-deserved reputation. 
I think they have generally been open to continuous 
improvements in processes and technology. So I think that is an 
important reason that that reputation is continued.
    I guess I bring to this--and I just want to say up front--a 
unique perspective having lost two family members in an 
aviation accident a few years back. I share your concern about 
some of your reduction in investigators that you mentioned. I 
think it is a very important part of your capabilities to have 
those investigators and that capability in-house.
    I want to refer back to the RAND Corporation's 2000 report 
to the NTSB. It was entitled, Safety in the Skies: Personnel 
and Parties in NTSB Aviation Accident Investigations.
    It stated that Safety Board investigators and other party 
participants report that a productive synergy exists among 
party participants during the first few days of an 
investigation but then rapidly dissipates once the parties' 
defendants and legal departments get cranked up. Do you believe 
this kind of behavior, either actually or in perception, can 
undercut the, really, core mission of the investigative process 
when it begins to get overlapped and potentially compromised by 
the legal processes that often follow investigations?
    Ms. Hersman. Congressman Carnahan, I think the RAND report 
outlines some of the many challenges we have with our party 
system. It also noted that we need the party system to 
effectively accomplish our investigations in many cases. We 
rely on the parties to establish factual information for our 
investigations, and we include people as parties to our 
investigation. We statutorily have to include the FAA as a 
party, but the other parties to the investigation are chosen at 
our discretion; we make the decisions about how people 
participate in our investigations.
    That being said, they do participate in our investigations 
but only in the factual portion. When it comes to performing 
the analysis and determining probable cause and making 
recommendations, that is solely within the purview of the 
Safety Board and our staff.
    I think that a productive synergy does exist most of the 
time on our accident sites. I have been to 17 major accident 
launches with our teams. I have seen the party process work 
very well. I think there are occasions where we do have 
challenges, and so we want to be honest about that, but I think 
we do try to address those in a straightforward way, and if 
there are any concerns that we have we would certainly come to 
the Congress.
    Mr. Carnahan. In terms of having that wall between the 
investigative process and the legal process, the instructions 
that are given to parties and then the actual following of 
those instructions, I guess what is your take on how that is 
working in the field?
    Ms. Hersman. At our organizational meetings, we generally 
read a statement, and the party representatives have to sign 
that statement. And I know that, Congressman, you have an 
interest in making sure that we have strong statements 
regarding party participation and what information can be 
released internally to those organizations' home offices, so to 
speak; and so we share that concern.
    We do not want our investigations to result in anything but 
a level playing field for everyone who is involved, whether it 
is families, party participants or the public; and so we hope 
that we can be an equalizer there and make sure that everything 
is done fairly and appropriately. But we are happy to consider 
modifications to that agreement, and we are working internally 
to make it consistent across modes, and so we look forward to 
working with the Committee on this issue moving forward.
    Mr. Carnahan. I appreciate that.
    Also, you mentioned the NTSB and that, you know, resources 
are a factor in terms of how you process investigations. Do you 
need greater access or fewer restrictions on the use of 
emergency funds?
    Ms. Hersman. We presently have an emergency fund. It is 
about $2 million. We use this emergency fund in cases where we 
have an unexpected or high expenses, such as a water recovery, 
if we had an aircraft to go down in the water. The last time we 
had to use the emergency fund was in 2001 when we had to do 
some very specific research on composites following the 
American Airlines 587 accident in New York.
    Mr. Carnahan. So you feel like your access to those funds 
is adequate?
    Ms. Hersman. We do.
    I have to say that, if we had another event, another water 
recovery type of operation, we might have to come back to the 
Congress, which we have done in the past, and ask for a 
supplemental appropriation. In TWA 800, we did have to come 
back and ask for a supplemental appropriation, which virtually 
doubled our budget, our annual budget, because the recovery was 
so expensive.
    Mr. Carnahan. In terms of post-accident access by insurance 
representatives, this was also that was brought up in the RAND 
report: Senior NTSB investigators admit that, despite NTSB 
regulations, they are happy to have insurance show up because 
they, quote, offset costs and provide necessary support for the 
investigation, including heavy machinery, communications 
equipment, computers, and accommodations. The insurers, their 
investigators, and their lawyers immediately develop theories 
of causation upon which they base a preliminary funding 
agreement to allocate payment of compensation to victims.
    Is there any compensation, reimbursement for cost that is 
incurred by those who are being investigated?
    Ms. Hersman. Are you talking about insurers for the 
airlines?
    Mr. Carnahan. Yes.
    Ms. Hersman. Oftentimes, we do rely on the insurance 
companies to secure a location to store the equipment. They do 
get access in the early stages of the investigation, but it is 
simply to photograph and document and make an assessment of 
what the damage is, because they are the insurer of the 
equipment. They do not participate in our investigation. They 
are not involved as a party, and they do not participate in the 
factual or any other part of the investigation.
    But I can give you a recent example. I was in New York last 
August following a midair collision involving a private 
aircraft and a helicopter. We were working on a recovery of 
that out of the Hudson River, and the insurance company was 
there. They were involved was because to be made concerning a 
determination needed where to put the wreckage once it came out 
of the water. The local city didn't want it on city property in 
case their pier was damaged, and they wanted us to pay if their 
pier was damaged. And we said, no, you need to talk to the 
insurance company about where to put the wreckage and who is 
going to pay for any damage.
    So the insurance company was not involved in our 
organizational meetings, nor in our progress meetings. In fact, 
I never saw them, but I know that we told the company who was 
pulling the wreckage out of the water that the insurance 
company would identify a place to put the wreckage and to pay 
for any damages.
    Mr. Carnahan. I guess, finally, I will close with a 
question. Is there anything that can be done or that you 
believe should be done to ensure greater access for family 
members or their representatives in the course of an 
investigation?
    Ms. Hersman. One of the things that I did when I first 
became chairman was to meet with many of the family groups 
about a month after the accident to solicit their ideas on how 
we could better serve them and the families involved in future 
accidents.
    One of the things that we have done to assist family 
members began last summer when we initiated the practice of 
putting all of our accident dockets on our Web site. We have 
got investigative material from over 1,000 accidents now where 
everything going forward is going to be posted on our Web site 
and hopefully posted earlier; and we are working on archiving 
the older investigations, also.
    This means keeping in touch with the families not only 
while we are on site but as the investigation proceeds. We 
already do that, by notifying them of public hearings and by 
keeping them involved.
    We expect about 50 family members to be in attendance at 
our board meeting next week on Colgan. We very much appreciate 
the family members who are involved and who do care about our 
work and our investigation. So we see them as an integral part 
of what we do, and we want to make every effort to make sure 
that the playing field is level for everyone and that our 
investigations proceed in an independent and thorough way.
    Mr. Carnahan. Thank you for your work and thank you for 
being here.
    Mr. Costello. The Chair thanks the gentleman and now 
recognizes the gentleman from Kentucky, Mr. Guthrie.
    Mr. Guthrie. Thank you, Mr. Chairman.
    Mr. Carnahan, if you need another minute, I would yield a 
minute to you if you want to finish up.
    But you are fine. Okay. Thanks.
    I am Brett Guthrie from Kentucky, and I hate to ask you 
something specific if you are not prepared for that, but you 
know we had the accident in Kentucky a few years back on the 
wrong runway. I see on your NTSB most wanted list "runway 
safety and runway improvements" one specifically listed is 
taxiing down the wrong runway.
    For those on the Committee, there are two runways at the 
Blue Grass Airport in Lexington, Kentucky, which is actually in 
Congressman Chandler's district, but it concerns us all. The 
pilot took off on the short runway, which actually had some 
construction going on, and they had a fatal crash. I think all 
but one or two on the entire plane were killed.
    So would you comment on runway safety? That is obviously 
important in Kentucky. I do not know if you have any specifics 
on that event, and I do not want to put you on the spot on 
that, but just in general your plan for runway safety on your 
most wanted list here. Thank you.
    Ms. Hersman. Thank you.
    I will say that Member Sumwalt is from South Carolina, and 
so my husband and I were quite disappointed to see that the 
Wildcats lost to the Gamecocks last night. My husband's family 
is from Kentucky.
    I actually was the member on scene for the Comair wrong 
runway takeoff in Lexington at Blue Grass. We are working very 
hard to address the issue of runway safety. That issue area was 
actually expanded from just runway incursions to runway safety 
after the Lexington accident. Because it is not just two 
aircraft that might collide with each other on the surface of 
the airport that is a problem. It can involve wrong runway 
takeoffs, taxiway landings, being in the wrong place at the 
wrong time. We made recommendations about the use of things 
like electronic flight bags to help the crew have better 
situational awareness when they are on the surface of the 
airport.
    We have seen crews get lost in airports in bad weather 
where visibility is low. Busy airports like LaGuardia in New 
York, where they are on the wrong taxiway, they are not aware 
of where they are, they are trying to get direction from air 
traffic controllers, and they are on an active runway rather 
than a taxiway.
    So we think it is important for the pilots, whether it is 
at Blue Grass or LaGuardia, to have good situational awareness. 
They need to know where they are at all times. Devices like 
electronic flight bags can be helpful.
    We made a number of recommendations after Lexington to 
improve signage and markings on taxiways and runways at 
airports. Blue Grass did implement some of those voluntarily, 
but we asked the FAA to look system-wide. We made 
recommendations to make sure that the flight crews had up-to-
date and current maps, because we found that there was an issue 
there. We made many recommendations coming from Lexington.
    Unfortunately, in many accidents, we see old issues 
resurface, and sometimes we see them over and over again, 
things like sterile cockpit. That was where the crew was 
carrying on some non-pertinent conversation while they were 
taxiing. We were trying to determine: Why didn't they pay 
attention? Why didn't they know where they were? Why didn't 
they realize they were on the wrong runway?
    So the human factors issues are a challenge for us, and we 
continue to work on those. But I think that that accident was 
very important. That is why some of those issues are on our 
Most Wanted List, and we will be having a board meeting to 
consider our 2010 Federal Most Wanted List. You will note the 
one that you have says 2009 on February 18.
    Mr. Guthrie. Right.
    Ms. Hersman. So, next month, we will have another 
opportunity to hold peoples' feet to the fire to say what have 
you done on these recommendations in the last year and have 
these changed? If they have, we will say, good job, and close 
them; but if they have not, we are going to try to put some 
more pressure on them to say, get it done.
    Mr. Guthrie. Thanks for that update.
    You talked earlier about incursions versus incidents, and 
you did talk about sterile conversations in the cockpit leading 
to an incident that actually cost lives.
    Would you investigate like the issue just recently where 
the crew overshot, I guess it was, Minneapolis airport? Is that 
something that NTSB would get into? Or since nothing happened, 
they just went 30 minutes out of the way and came back, which 
they said was a sterile conversation that caused that. I have 
only got a few seconds left. Is that something that NTSB gets 
involved in, or is that a different group?
    Ms. Hersman. I think that is exactly the kind of thing that 
we are thinking about; and I think that Congress would probably 
agree that that was a serious incident--a crew not realizing 
where they were. They were out of contact with air traffic 
control for a significant period of time. They overshot their 
destination. Those are things that are of concern to us. We 
investigated that incident. The investigation is ongoing.
    Our public docket was opened in December. We have hundreds 
of pages of information, including interviews with the crew. We 
hope to publish our probable cause determination soon. If there 
are any recommendations that we think need to be made to 
prevent something like this from happening again, we will make 
those.
    Mr. Guthrie. Thank you.
    I yield back.
    Mr. Costello. The Chair thanks the gentleman and now 
recognizes the distinguished Chairman of the Full Committee, 
Chairman Oberstar.
    Mr. Oberstar. Thank you very much, Mr. Chairman. I 
appreciate very much your diligent pursuit of all the 
responsibilities of the Subcommittee on Aviation and your 
mastery of the issue. Mr. Petri is a splendid partner in this 
process.
    I particularly want to welcome Chairman Hersman to the 
Committee. She started out here 100 years ago, it seems. We 
have aged, and she has not.
    It is also good to have Dr. Dillingham with us. Thank you 
for your splendid commentary on the work of the NTSB and the 
recommendations that GAO has made over many years.
    I have a particular affection for the National 
Transportation Safety Board going back to when the Committee on 
Public Works was asked by--well, the Committee on Government 
Operations was asked by President Johnson to create a 
Department of Transportation. My predecessor, for whom I was 
administrative assistant, John Blatnik, was also Chair of the 
Subcommittee on Legislative and Executive Reorganization.
    So I played a hand of some considerable time in the shaping 
of the Department, bringing 34 government agencies into one 
Department of government. We started in January and had a bill 
on the President's desk in October, working closely with 
Senator Magnuson and the other body.
    One of the ideas that occurred to us during the course of 
this crafting of the Department was to have an independent 
investigative agency within the Department that would oversee 
all the modes of transportation that we were bringing together 
under one roof, which had actually started in 1926 by then a 
little-known and under-appreciated Assistant Secretary of 
Commerce named Herbert Hoover. He was interested in aviation 
safety not so much, as the record shows, because he wanted 
airplanes to be safer but because engines had a bad habit of 
falling out of aircraft in the sky and wings falling off 
airplanes, and it was very bad for commercial aviation.
    He recommended and pursued an investigative unit to help 
industry in the dawn years of civil aviation and commercial 
aviation with the airmail pilots to assure that mail would be 
delivered and that aviation would continue to attract 
investment.
    Well, it sort of took a back seat over many years, and we 
thought that this would be important. We thought it would be a 
good addition to the Department of Transportation. That was 
1966. Nine years later, we realized that an agency cannot be 
independent within a department. In my first term in Congress, 
I supported the separation of the independent Safety Board from 
the Department to the National Transportation Safety Board. 
That single initiative has created the gold standard for 
aviation safety investigation.
    Other countries that did not have such an investigative 
unit patterned theirs after the NTSB. I remember Bob Francis, 
as Vice Chair of the Board, traveling to several countries to 
guide them in establishing a Safety Board. The Bureau 
d'Enquetes of France is patterned after our National 
Transportation Safety Board.
    I was very impressed with your testimony this morning, with 
your grasp of the facts, with your ready recall of incidents 
and accidents, and with your ability to distinguish among the 
categories and to do it so readily and so deftly. It is a great 
compliment to the time and effort you have invested in your 
chairmanship and previously in your service on the Board as a 
member.
    You rightly made a distinction between accidents and 
incidents, but incidents are no less important than accidents, 
except that an incident does not have fatalities or injuries. 
But incidents progress into accidents, and I think it is 
vitally important. If the Board had not taken action and done 
serious reporting in 1984 and 1985 about near midairs, our 
Subcommittee on Investigations and Oversight, which I chaired 
at the time, would not have had vital information on which to 
proceed to hold hearings and to call to FAA's attention that 
these near midairs were coming so close that people could 
almost read a newspaper in the other aircraft. That is 
unacceptable, and that caused the NTSB to get hard on FAA and 
the FAA on the airlines and eventually establish standards for 
the separation of aircraft.
    So, time and again, there has been work on incidents and 
investigating them. Landing on a taxiway, as you pointed out a 
little bit ago, only by sheer chance, by sheer good fortune, 
did not result in a fatality. That is not good enough. We have 
to have procedures in place to ensure safety.
    Mr. Petri's question elicited stunning, gripping, shocking 
statistics on texting while managing equipment. Your recall of 
those numbers was just compelling.
    We do have voice recorders in the flight deck of aircraft. 
We do not necessarily have them in light rail and in streetcars 
and in commuter rail and in subway systems. We do not have 
onboard voice recorders in the cabs of railroad locomotives or 
in the wheelhouse of emergent vessels.
    We had some hearings years ago in this Committee about 
cameras at intersections to track drivers running red lights; 
and I remember several Members of Congress testifying in 
opposition to red light running cameras, saying that it is an 
invasion of privacy. How can it be an invasion of privacy if it 
saves lives?
    France installed cameras at intersections throughout the 
country. They imposed a 100 Euro fine, which was about $150 at 
the time, for running red lights. Within a year, the incident 
of red light running dropped 80 percent, and fatalities dropped 
50 percent at intersections. The French are pretty good about 
their privacy and about their individual rights, but they are 
also very strong about saving lives.
    It seems to me that some means of tracking inappropriate 
action, whether it is the flight deck of aircraft or in the 
cabs of locomotives or in the steering compartments of light 
rail or commuter railcars, is also an advancement in safety.
    I think Mr. Petri rightly pointed out the pilot unions 
would not like this. Well, the passengers, sure as the dickens, 
did not like going 100 miles out of their way when they did not 
know it on that Northwest Airlines aircraft. You have all the 
data, but it appears that they were deeply engaged in 
discussing the transfer from Northwest policies to Delta 
policies and which rules governed which actions and on crew 
makeup and context. That should be done on the ground. They 
have no right to be doing that in the flight deck of the 
aircraft, and that needs to be recorded.
    Lufthansa, probably 20 years ago, conducted an experiment 
of putting cameras in the flight deck with the cooperation of 
their pilots, saying that the information would be used for 
training and not for enforcement, not for punishment. They had 
great cooperation of the crews; and the crews found that, when 
they reviewed the tapes, when they did a call-out about 
throwing a switch that all too frequently they actually did not 
reach up and throw that switch. It was very helpful in 
improving crew effectiveness and performance.
    So I think we--this Committee, the Board, the pilot 
community, the airline community--all need to get together and 
have some serious discussions about it.
    I think, Mr. Costello, it would be a very good initiative 
among the many that you have undertaken in these seminars, for 
want of a better term, to have a roundtable discussion. We will 
bring people together, and let's have a preliminary discussion 
prior to the hearing about onboard recorders and video cameras 
in the flight deck.
    This is the next frontier of safety that we must not put 
off. I am stunned by your recitation of the amount of texting 
going on in locomotives, in light rail, commuter rail.
    The European community has taken a strong stand against 
texting; and it has banned it in private automobiles, passenger 
cars, and in government-owned operations and on their high-
speed rail. If you are traveling 200 miles an hour and if you 
look away for 5 seconds, you have covered a football field. 
That is reckless. That is reckless not to be attentive.
    The Government of Portugal has made it a crime, a primary 
action. You do not have to stop a vehicle for some other 
purpose to bring an action against the driver for texting or 
for cell phone use. That is a primary action, cause of action 
and criminal action. Cell phone use while driving in Portugal 
has dropped 90 percent, and they are saving lives.
    We have given the Board new authorities over many years. 
One of those is certificate action on mariner credentials, an 
appeal from decisions by the Coast Guard to the NTSB. Have you 
had an increase in workload because of that new authority?
    Ms. Hersman. The Safety Board has historically looked at 
appeals from mariners and airmen, FAA enforcement appeals and 
Coast Guard enforcement appeals. There was a discussion last 
year about transferring some additional workload to us through 
the Coast Guard bill, but that did not come to pass.
    Mr. Oberstar. It has not been enacted yet.
    Ms. Hersman. No, thankfully.
    We still look at appeals that come from the Coast Guard. We 
do not have responsibility for their ALJs, and I can get you 
the numbers to see if our appeal numbers from the Coast Guard 
have risen in the last couple of years.
    Mr. Oberstar. Well, the increase in workload on all these 
new responsibilities we have given to the NTSB and the 
concurrent drop in investigators, I am just reading from my 
notes and your testimony. Thirty-five fewer investigators than 
6 years ago. That is shocking, that is terrible. We need an 
increase in funding.
    One question you may not want to comment and I certainly 
don't fault you for that, but do you think that there ought to 
be a fixed term for the Chair of the National Transportation 
Safety Board? We did that for aviation after years of vacancies 
and short-term tenure of the administrator of FAA. I first 
introduced a bill for a 7-year term for the administrator of 
FAA in 1987, Senator Lautenberg did the same in the other body 
and we eventually came to a 5-year term. Our idea was that it 
should lap over administration so there is continuity at the 
helm of the board. You can withhold if you wish.
    Ms. Hersman. Chairman Oberstar, the term of Chairmanship is 
the same as your term as a Congressman. I have a 2-year term as 
chairman, and I suspect we would all rather have a longer 
period to get the things that we want to get done accomplished; 
2 years is a short time. But I do have a 5-year term as a Board 
member and I have to be reconfirmed by the Senate if the 
President chooses to appoint me for another term. We have seen 
in the last 10 years--since 2000--a number of chairmen and 
acting chairmen. Continuity would probably be good, but I think 
I am probably not the best person to make that recommendation. 
At this point you might want to talk to people who were former 
chairmen of the NTSB and see what they have to say.
    Mr. Oberstar. So Dr. Dillingham, what do you think.
    Mr. Dillingham. Chairman since the law was passed to make 
the FAA administrator 5 years, it has, in fact, given the 
administrator ample time to complete some actions that when we 
are getting them every 18 months over the last 15 years. It 
wasn't happening that way, so there is value to continuity. And 
as you know, the GAO, the head of GAO has a 15-year term for 
those very same reasons.
    Mr. Oberstar. That is the job I would like. That is a very 
good deal, 15 years. But it was Roger Sherman in the 
Constitutional Convention in 1787 who proposed 1-year term for 
House Members, saying frequent elections are necessary for the 
good behavior of rulers. Someone else in that convention 
proposed a life term for Senators and some of them think they 
have it. Unfortunately they didn't get theirs and we didn't get 
a 1-year term, but 2 years is good. But I think for management 
entities a longer term of sustainable continuity is important. 
I am not going to propose that in this authorization, but I 
think it is something we need, the whole community needs to 
think about. Thank you, Mr. Chairman.
    Mr. Costello. The Chair thanks you and now recognizes the 
gentlelady from Hawaii, Mrs. Hirono.
    Ms. Hirono. Thank you, Mr. Chairman. NTSB does very 
critical work and has a fine reputation. We have had of course 
numerous incidents and accidents in Hawaii and I thank you for 
your work.
    I am curious to know why NTSB does not have substantive--
the authority to issue regulations because one of the functions 
of promulgating regulations I would think would be to be 
proactive in setting out behaviors and activities so that you 
can--people will know what they are supposed to be doing. So is 
there some reason that you don't have this authority to 
promulgate regulations?
    Ms. Hersman. Well, hearing----
    Ms. Hirono. And would you like to have that authority?
    Ms. Hersman. Hearing Chairman Oberstar's recitation of our 
history, I will say that probably some other people can tell 
you why we don't have regulatory authority, but I think 
ultimately when they created NTSB, it was a wise decision not 
to give us regulatory authority because we are supposed to make 
recommendations about what we think is in the best interest of 
public safety. And if we were to have regulatory authority, we 
would be like one of the other modal administrations. We 
already have an FAA and an FRA, and an FHWA. It is their job to 
promulgate those regulations.
    We have the ability to say what we think is in the best 
interest of public safety. We are not constrained by doing a 
cost-benefit analysis, we don't have to have a negotiated rule 
making. We can come to a determination and say this is what we 
think is the best from a safety standpoint. And sometimes we 
make recommendations that are really hard; they may be 
technically difficult, challenging, expensive, they may take a 
long time or require some political will to implement. Positive 
train control is one example.
    The Safety Board for about 30 years has made 
recommendations about positive train control. PTC would 
automatically stop trains before they collide, run a red 
signal, or something like that. And it wasn't until multiple 
accidents and an act of Congress that PTC was mandated. For 
many years, people told us they couldn't do it: the 
interoperability is a challenge, it is to technologically 
difficult, and too expensive, it is going to bankrupt us, we 
can't do this. Ultimately, the Congress said, no, you can do 
it, and you will do it. For many years, the Safety Board had 
recommended PTC, and made people talk about it, and made them 
think about it. I think if we had to do cost-benefit analyses 
or negotiate with industry stakeholders, we wouldn't have come 
up with that recommendation. Our charge is, what is in the best 
interest of safety. I think it is great that we are not 
constrained to make those tough analyses and negotiations.
    I am thinking of another incident in which I believe the 
Committee would be interested. It occurred several years ago 
near Hilo, Hawaii, and it was also an overflight that we 
investigated in which both of the pilots fell asleep. We 
determined there were some fatigue issues and sleep apnea, but 
that was an incident.
    They woke up and they contacted ATC who had been trying to 
hail them for 17 minutes unsuccessfully. They flew back, and 
they made a landing that was safe. That was a great result, but 
there was a lot of learning that went on in that investigation, 
and from it, we made recommendations about diagnosing and 
addressing sleep apnea in pilots. I share that with you because 
I know there are a lot of flights to and from Hawaii, a state 
very dependent on aviation.
    Ms. Hirono. Thank you for that explanation. So lets say 
NTSB does an investigation and it comes up with various 
recommendations, is there anything that would prevent FAA or 
some other agency that has the power to regulate or to 
promulgate regulations to do a rulemaking on a particular 
recommendation that seems to really make a lot of sense and has 
that happened?
    Ms. Hersman. If you look at the FAA, I would say right now 
we have about 500 open recommendations to the FAA. And so one 
of their challenges is clearly going to be one of 
prioritization, how do they determine which issues that they 
want to take on. And so sometimes we help them with that 
prioritization with our most wanted list. We say these are 
things we really think you should be looking at. Sometimes the 
Congress helps them with that prioritization. I think FAA has 
challenges about how they do it, and you could probably ask 
them about what they need to do. But we would like to see all 
our recommendations implemented, and the Most Wanted List 
serves as the top ten.
    Ms. Hirono. Thank you. Thank you, Mr. Chairman.
    Mr. Costello. The Chair thanks the gentlelady. And now 
recognizes the gentleman from Ohio, Mr. Boccieri.
    Mr. Boccieri. Thank you Mr. Chairman. And thank you, 
Chairwoman Hersman, for coming today. Two questions that I want 
to ask you. The first is after this Committee did its hearing 
on the crash in Buffalo, we learned that there were 
recommendations that were proposed and promulgated by the NTSB 
board that had not been followed through by the FAA. Namely 
since 1973 the NTSB has been requesting that the FAA promote 
some sort of program or training program that allows for upset 
recovery, stall recovery recognition that is not only tabletop 
in curriculum but also in simulation. The FAA to date has not 
undertaken this.
    We moved and passed a bill out of the House that added that 
language that they will be forced to require aviation related 
industries to have this sort of appropriate training, because 
we learned that the Buffalo crash the folks were not even 
taught recovery procedures, it wasn't part of their curriculum 
with the safety equipment that was on the aircraft. My question 
to you is what do you think Congress should do or what actions 
do you think Congress should take to help you implement the 
recommendations that you make for the FAA and other related 
safety?
    Ms. Hersman. I think I should first say thank you. The 
Congress does help us implement our recommendations. Some of 
the toughest recommendations that we have made over the years 
that do not get implemented a lot of times fall back to the 
Congress. I think that goes back to my comment about you all 
setting the priorities for some of the modal administrations. 
And so we very much appreciate your consideration of our 
reports and the recommendations that we make. It is 
disappointing to us many years later to see an accident or a 
situation repeated that, had our recommendation been addressed 
might have been prevented.
    I think that the tombstone mentality is something that 
concerns us. We don't want to have to reiterate recommendations 
over and over again. We would like to see them get done right 
the first time.
    Mr. Boccieri. Do you think that Congress should give the 
NTSB fast track authority to implement these throughout 
interagencies.
    Ms. Hersman. I think that that might disrupt the balance 
that we have. I think we have the ability to really reach and 
make good recommendations, tough recommendations. But sometimes 
we don't always have the perfect solution. Sometimes it 
requires additional research. And so we want to be able to ask 
people to do that. Also, we want to be able to accept when 
someone comes back to us with an alternative solution that 
might work, too. We don't have the resources to conduct the 
engineering, the crash testing, the simulations and all the 
models that might need to be done; other people might have to 
do that.
    And so I think the balance we have now is probably the 
right balance. But I think that the Congress helped by looking 
over our shoulder. You have made the modal agencies 
accountable. They have had to reply to us on our Most Wanted 
List recommendations every year and give us a status on them. I 
think that pressure from you helps; I can tell you they feel 
the pressure.
    Mr. Boccieri. Well it was absolutely disappointing and 
maybe even shameful to this degree to understand that when 
learning that this particular airline, when pressed and asked 
why they did not have part of their curriculum, the safety 
features that were on the airplane, they said that the FAA 
didn't require us to do it. And that is extremely disappointing 
and maybe even bordering on shameful.
    To your point about not having the resources to adequately 
determine whether they should be fully implemented your 
recommendations: Point 8, you talk about commercial space 
accident investigations requiring authorization. Do you think 
that you need to team up with NASA personnel, do you have the 
resources to fully implement something to that level?
    Ms. Hersman. We have actually coordinated with NASA on 
other investigations. In the past, they have supported our 
investigations and we have supported theirs as in the case of 
their investigation of the Columbia: we supported them on that. 
I think that our request is to make sure, as we head in to a 
new frontier of more paid flights in space, that the NTSB has 
the authority to investigate accidents involving passenger 
flights in space. We want to make sure that our authorization 
to do that is clear, the statutory language is there.
    Mr. Boccieri. One last question, I am running close to my 
time here, so please be quick. You ask in your--you have to 
convince me of this one because I am not sold on this request, 
you are requesting explicit authority to subpoena financial 
records as law enforcement agencies do. NTSB is not a law 
enforcement agency, is that correct?
    Ms. Hersman. That is correct.
    Mr. Boccieri. So why are you requesting financial records 
to go back and see if pilots used their charge cards to check 
into a hotel? How is that going to aid or help any 
investigation with respect to whether they rested or not?
    Ms. Hersman. It is very important to look back 72 hours 
before any accident. We do this in every investigation, 
sometimes we look back even further. We are trying to determine 
what their work and rest schedules were like when they were on 
duty, how much sleep they got, where they might have gotten 
that sleep and so on.
    Mr. Boccieri. Why can't you ask the hotel workers?
    Ms. Hersman. We can certainly do that but I think peoples' 
memories and their recall are fallible, but the financial 
transactions are not. These transactions will tell us if they 
were in a restaurant or a bar the night before, what they were 
doing. I think this is very helpful and it is important for our 
investigations, for us to get the facts right. We can't be 
challenged because there was hearsay from some hotel worker. We 
want to make sure we know the crew checked in at this point, 
they entered their room, they went to the hotel restaurant and 
had dinner. We need to note that information and be able to 
provide it so that our investigations are thorough and 
complete.
    Mr. Boccieri. I might take more convincing on this one so I 
look forward to us being engaged in this if we have further 
hearings. Thank you, Mr. Chairman.
    Mr. Costello. The Chair thanks the gentleman and now 
recognizes the gentlelady from California, Ms. Richardson.
    Ms. Richardson. Thank you, Mr. Chairman. My first question 
is for Mr. Dillingham, it is good to see you again. You 
mentioned in your report that some of the changes the NTSB is 
proposing with regard to the Coast Guard could affect existing 
agreements, the government framework and the agencies involved. 
Could you be more specific as to the effects these changes 
would have?
    Mr. Dillingham. Thank you, Ms. Richardson. We were in 
reference to some of the existing memorandums of understanding 
that exist between NTSB and the Coast Guard and whose 
responsible for different kinds of accident investigations. Our 
caution was that if the Congress decides to accept NTSB's 
request for change of authorization that these existing MOUs 
and other legal frameworks be taken into account if there are 
no gaps and there is clarity in terms of who is responsible for 
what kind of investigations.
    Ms. Richardson. And have you provided that information to 
the appropriate folks, the specific details that you were 
concerned about or do you just mean in general the agreement?
    Mr. Dillingham. In general, the agreements.
    Ms. Richardson. Thank you. Ms. Hersman, what do you believe 
are the reasons that several of your safety recommendations 
have not been implemented by the regulatory and transportation 
communities? And what are the most important recommendations 
that you believe deserve immediate attention?
    Ms. Hersman. We have over 800 open recommendations now. 
There are many, and they are to diverse recipients. Our Most 
Wanted List actually serves as an aid in prioritizing our 
recommendations. In the other Most Wanted List on the inside of 
the pamphlet, we have recommendations to the Federal agencies 
and we have sorted them by mode. On the back of the brochure, 
we have recommendations to the States. This is our way of 
trying to help others understand, of those 800 recommendations, 
which ones we would like to see action on immediately. These 
are our top 10 lists.
    Ms. Richardson. But Ms. Hersman, my question was several of 
them have not been implemented and you have obviously run into 
a roadblock. Are there any on here that you would need our 
particular assistance with that some agency or whoever is just 
blocking you or doesn't want it for whatever reason, is there 
anything we could particularly assist you on to get something 
implemented?
    Ms. Hersman. We would very much appreciate your assistance. 
When you all reauthorize the modal agencies, you have an 
opportunity to give them direction as you did last year. You 
will note on the Most Wanted List on the inside of the brochure 
there aren't any recommendations on the rail most wanted list. 
And I will tell you that is because the Congress, through 
statute, addressed revision of hours of service for rail 
employees and the requirements to implement positive train 
control in passenger and certain HAZMAT routes by 2015. You all 
did that. Those were on our Most Wanted List for years. FRA 
told us that they did not have the authority to revise hours of 
service rules for railroad employees. You gave them that 
requirement and the authority to do that.
    Ms. Richardson. Thank you. And then finally, Ms. Hersman, 
in the report one of the recommendations of the GAO was to 
expand the diversity of the senior management team. The report 
noted that is one of the areas where the improvement is very 
needed. Can you tell the Committee your efforts specifically in 
terms of diversifying the NTSB specifically with regard to 
leadership. And if you already provided that information I 
apologize, I was in another Committee prior to this one.
    Ms. Hersman. Sure. Last fall, I convened a group diversity 
task force. The task force is headed up by our vice Chairman 
and our executive officer. They are to report back to me by 
March on some initiatives to enhance our recruitment, retention 
and training and to create a more diverse workforce. We have 
several more openings in our senior executive ranks right now, 
and some of those are being advertised. We have made efforts to 
do some outreach to historically black colleges, universities 
and other organizations to attract a diverse applicant pool. 
Some of those application periods have actually been held open 
to attract more applicants to try to get a broader applicant 
pool. We are working very hard to address this issue. We 
recognize that it is an area where we need to improvement is 
needed.
    Ms. Richardson. Okay. If you could please submit to the 
Committee in March when you receive the report, we would like 
to see it. Also if you have the list of those groups that you 
are outreaching to, it would be helpful to see that now since 
you obviously already started. Although I am a big supporter of 
HBCUs, I will tell you also you mentioned other universities, 
many universities will have their other groups and there are 
many associations as well and I hope that those will be on your 
list.
    Ms. Hersman. Thank you, and we certainly appreciate any 
guidance if there are other areas where we ought to be doing 
outreach.
    Ms. Richardson. I look forward to the list and will provide 
the feedback.
    [Information follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Costello. The Chair thanks the gentlelady and I 
recognize the gentleman from Maryland, Chairman Cummings.
    Mr. Cummings. Thank you very much. Ms. Hersman, I just want 
to ask you some questions in my capacity as the Chairman of the 
Subcommittee on the Coast Guard and maritime transportation. On 
September 12, 2002, the Chairman of the NTSB and the commandant 
of the Coast Guard signed a memorandum of understanding 
regarding the coordination of Marine accident investigations. 
To enable an assessment to be made of whether issues related to 
Coast Guard safety regulatory functions were potential factors 
and a casualty and might warrant an independent investigation 
by NTSB, the MOU included a bright line test that assigned 
points for specific criteria and incidents. If the score for a 
casualty totaled more than 100, NTSB had the option to conduct 
a third-party review and lead the investigation, with the Coast 
Guard acting as a party.
    On May 20th, 2008, the Subcommittee on the Coast Guard 
maritime transportation conducted a hearing to examine how the 
existing MOU between the Coast Guard and NTSB was working. 
Following that hearing on December 19th, 2008, the commandant 
of the Coast Guard and the chairman of the NTSB signed their 
updated MOU which replaced the September 2002 MOU. The 2008 MOU 
removed the bright line test from the MOU. Why was that done, 
do you know?
    Ms. Hersman. I don't know the specifics because I wasn't 
involved in that negotiation, but I can tell you that since I 
have become chairman the MOU has worked well. I have met with 
the Commandant on several occasions, and we continue to work 
together. As I mentioned in my oral statement, we launched to 
the collision in the Houston ship channel this past week end 
with the Coast Guard, and we have also investigated a number of 
accidents including 1 that occurred right before Christmas 
involving a Coast Guard vessel in San Diego. So the MOU is 
working well, I think it is important to have the opportunity 
to review periodically the MOU and update as necessary and make 
changes. But I believe it is working well right now.
    Mr. Cummings. And how is it decided who takes the lead in 
those instances?
    Ms. Hersman. There are provisions in the MOU that specify 
the number of fatalities involved and who would lead the 
investigation, but in general we are working together. In some 
investigations the Coast Guard leads and in some investigations 
it is clear that it would probably be better for the Safety 
Board to lead, especially in accidents involving Coast Guard 
vessels. We have investigated two in the last 6 months, one in 
South Carolina and one out in San Diego.
    Mr. Cummings. And does the NTSB currently have the 
resources it needs to investigate the number of major Marine 
casualties that occur each year; if not, what additional 
resources do you need?
    Ms. Hersman. We have lost investigators in each of the 
modal offices, that is true for Marine also. Probably not to 
the extent as in some of our other modes, but we could use more 
resources. With more resources we could do more. We have worked 
very hard on a number of investigations. Taking the lessons 
that we learned from those investigations, such as the Ethan 
Allen capsizing in Lake George, New York, to make sure that 
state responsibilities were clear, not just Coast Guard 
responsibilities for waterways, but in areas where the Coast 
Guard didn't have responsibilities that States understood. In 
the accident where there were 22 fatalities because the vessel 
was overloaded and capsized, we wanted to make sure that States 
understood that they need to be paying attention in their 
waterways.
    We held a course and a summit to educate people working 
with the Coast Guard to do that. There is a lot we could do if 
we had the resources to do it.
    Mr. Cummings. Finally, I want to follow up on something 
that Ms. Richardson was asking about, diversity. I think in 
this day and age, diversity should not be an issue, but it is. 
We find it in the Coast Guard and we find it in a number of 
places. And I hope that you will continue your efforts to bring 
about that diversity. There are so many young people, 
minorities who, first of all, don't even know about the 
opportunities and don't know about these options. And sometimes 
we have to reach out to them and I would love to see the 
institutions that you will are reaching out to, the HBCUs and 
his Spanish serving colleges and universities and others, 
because again, if sometimes you don't reach out to them, 
they'll never know about it. With that, Mr. Chairman, I see my 
time is up.
    [Information follows:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Costello. The Chair thanks the gentleman, and now 
recognizes the Ranking Member, Mr. Petri.
    Mr. Petri. Thank you very much, Mr. Chairman. I have one 
area I want to explore with Dr. Dillingham briefly, that is, to 
get his comments on the safety board's request. When they are 
asking the language to be changed to incidents, is that an 
expansion of authority for the agency first? And secondly, what 
about overlapping jurisdiction between this particular agency 
and agencies with similar responsibility and maritime and other 
areas?
    Mr. Dillingham. Mr. Petri, we agree with the Chairman that 
incidents are very important. It is argued that incidents are 
precursors to accidents. And if you can begin to recognize 
potential issues early on, then you can save lives. Our 
question or our concern is that there be some kind of criteria 
by which the incidents are, in fact, selected, that whether it 
is risk based as it is in some of the other selections 
situations that NTSB has or some other criteria, just so that 
it is clear for the Congress as well the public on what basis 
one incident is being investigated, and another incident is not 
being investigated.
    With regard to the overlap, one of the points that we try 
to make in our testimony is that in the course of a Congress 
granting this new authority or expanded authority that some of 
the unintended consequences that need to be looked into is to 
what extent there is overlapping or even gaps with extending 
this authority, because each of the modal administrations have 
some capabilities to do some investigations as well.
    Mr. Costello. The Chair thanks the Ranking Member and would 
ask Members if they have additional questions? If there are no 
additional questions, let me thank both of our witnesses for 
being here, and in particular, Chairman Hersman, thank you for 
not only you and your board and professional staff and everyone 
at the NTSB for doing the job that you do. As I think Chairman 
Oberstar and others have said, you are recognized for being a 
professional agency that does an excellent job. And I think the 
reputation is well deserved and earned.
    Dr. Dillingham, thank you for your testimony. You offer 
invaluable service to this Subcommittee and have again today. 
We look forward to putting together the reauthorization so that 
we can move it from this Committee to the floor of the House so 
we can get the reauthorization for the NTSB not only on the 
schedule but to pass it out of the House and move it over to 
the other body.
    Again which thank you and the Subcommittee stands 
adjourned.
    [Whereupon, at 11:30 a.m., the Subcommittee was adjourned.]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
