[Senate Report 111-127]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 273
111th Congress 
 2d Session                      SENATE                          Report
                                                                111-127
_______________________________________________________________________

    NATIONAL TRANSPORTATION SAFETY BOARD REAUTHORIZATION ACT OF 2009

                               __________

                              R E P O R T

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                S. 2768



                                     

               February 23, 2010.--Ordered to be printed
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                     one hundred eleventh congress
                             second session

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii             KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts         OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota        JOHN ENSIGN, Nevada
BARBARA BOXER, California            JIM DeMINT, South Carolina
BILL NELSON, Florida                 JOHN THUNE, South Dakota
MARIA CANTWELL, Washington           ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey      GEORGE S, LeMIEUX, Florida
MARK PRYOR, Arkansas                 JOHNNY ISAKSON, Georgia
CLAIRE McCASKILL, Missouri           DAVID VITTER, Louisiana
AMY KLOBUCHAR, Minnesota             SAM BROWNBACK, Kansas
TOM UDALL, New Mexico                MIKE JOHANNS, Nebraska
MARK WARNER, Virginia
MARK BEGICH, Alaska
                     Ellen Doneski, Chief of Staff
                   James Reid, Deputy Chief of Staff
                     Bruce Andrews, General Counsel
             Ann Begeman, Acting Republican Staff Director
              Brian Hendricks, Republican General Counsel
                Todd Bertoson, Republican Senior Counsel








                                                       Calendar No. 273
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-127

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



 
    NATIONAL TRANSPORTATION SAFETY BOARD REAUTHORIZATION ACT OF 2009

                                _______
                                

               February 23, 2010.--Ordered to be printed

                                _______
                                

     Mr. Rockefeller, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                                 REPORT

                         [To accompany S. 2768]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 2768) to amend title 49, United 
States Code, to authorize appropriations for the National 
Transportation Safety Board (NTSB or Board) for fiscal years 
2010 through 2014, and for other purposes, having considered 
the same, reports favorably thereon with an amendment (in the 
nature of a substitute) and recommends that the bill (as 
amended) do pass.

                          Purpose of the Bill

  The National Transportation Safety Board Reauthorization Act 
of 2009, S. 2768, as reported, would: (a) reauthorize the NTSB 
through fiscal year (FY) 2014; (b) make several changes 
clarifying the Board's existing authorities; (c) provide the 
NTSB with the authority to investigate commercial space launch 
accidents; and (d) augment assistance plans to family members 
of victims of aviation accidents.

                          Background and Needs

  The NTSB is an independent Federal agency responsible for 
investigating and establishing the facts, circumstances, and 
probable cause of significant transportation accidents and for 
developing recommendations that will prevent future accidents 
or reduce injuries, loss of life, or damage to property. The 
NTSB also conducts safety studies and prepares safety reports 
as part of its overall transportation safety mission.
  The NTSB annually investigates about 1,600 aviation accidents 
and incidents, along with approximately 100 railroad, highway, 
maritime, and pipeline accidents. The NTSB consists of five 
Board Members, who are nominated by the President and confirmed 
by the Senate. No more than three members may be from the same 
political party, and at least three members must be appointed 
on the basis of technical qualifications, professional 
standing, and demonstrated knowledge in accident 
reconstruction, safety engineering, human factors, 
transportation safety, or transportation regulation. All Board 
Members serve a five-year term. The President designates and 
the Senate confirms one of the members to serve as Chairman for 
a two-year term, and the President also designates one board 
member to serve as Vice-Chairman for a two-year term.
  Approximately 400 full-time staff support the Board's 
investigations. However, the NTSB often relies on the resources 
of other organizations in conducting its investigations. The 
NTSB has broad discretionary authority to designate other 
government agencies, corporations, foreign authorities, or 
other pertinent organizations as parties to the Board's 
investigations.
  Since its inception in 1967, the NTSB has issued 
approximately 12,900 safety recommendations. In 2008, the NTSB 
issued 129 recommendations, including 86 aviation, 21 highway, 
14 railroad, and 8 marine recommendations. The NTSB has no 
legislative authority to implement its recommendations, and 
therefore is dependent on Federal, State, and local authorities 
and industry to consider and adopt the Board's recommendations 
based on its reports. The NTSB has officially closed 67 of its 
2008 recommendations as accepted, and the average acceptance 
rate for all of the Board's safety recommendations since its 
inception is just over 82 percent through September 2009.
  The NTSB estimates that the Department of Transportation's 
(DOT) modal agencies take an average of 5 years to successfully 
implement the Board's recommendations, while State agencies 
take over 10 years. To help promote the adoption of its 
recommendations the NTSB issues a ``Most Wanted List'' each 
year that identifies high priority safety recommendations the 
Board has issued, but that have yet to be implemented by the 
appropriate regulatory authority or industry organizations.
  During Congressional hearings, the NTSB testified that one of 
the primary challenges facing the agency is the retirement of a 
substantial portion of its workforce and the associated task of 
recruiting and training new employees. The NTSB experienced an 
11.5 percent reduction in employee staffing levels from 2003 to 
2007, from 427 employees to 378. The NTSB has expressed 
concerns over its ability to recruit and train new employees in 
the technical and specialized skills required. Congressional 
efforts in fiscal years 2008 and 2009 provided appropriations 
to support hiring additional engineers, investigators, 
technicians, and specialists in the areas of highways, 
pipelines, rail, research, and engineering that boosted the 
full-time equivalent employee level to 394 employees. The 
authorized appropriations levels in S. 2768 are intended to 
provide funding for a minimum of 427 employees by 2014, to 
permit the agency to hire personnel in critical areas to best 
contribute to the Board's investigative and safety study 
responsibilities, and to preserve the necessary continuity in 
essential technical and specialty areas of national 
significance within the agency.

                         Summary of Provisions

  The National Transportation Safety Board Reauthorization Act 
of 2009 would reauthorize the agency from FY 2010 through FY 
2014. Authorized appropriations for each year are $100,000,000 
for FY 2010; $105,000,000 for FY 2011; $112,000,000 for FY 
2012; $118,000,000 for FY 2013; and $124,000,000 for FY 2014.
  Key provisions of the bill would:
           Ensure that the jurisdiction of the NTSB extends to 
        investigations of incidents that raise significant 
        safety issues, but do not necessarily result in the 
        loss of life or property damage.
           Clarify that the NTSB has subpoena authority to 
        gather evidence for investigations.
           Protect information obtained in or related to an 
        ongoing investigation from public disclosure under the 
        Freedom of Information Act (FOIA) by the NTSB or any 
        agency receiving information from the Board. The Board 
        would retain the authority to make such records 
        available to the public if it is necessary to promote 
        transportation safety.
           Provide the NTSB with explicit authority to 
        investigate accidents involving commercial space launch 
        vehicles.
           Grant the NTSB explicit authority to access 
        information from any recording devices and recordings 
        on aircraft, vehicle, vessel, or rolling stock involved 
        in accidents, and to obtain the required information 
        from the manufacturer to enable the Board to read and 
        interpret such information.
           Require that airlines augment their family 
        assistance plans to notify, within 60 days, family 
        members of passengers involved in fatal aviation 
        accidents of plans to destroy unclaimed and 
        unassociated personal effects.
  Several changes are also incorporated into the legislation, 
including provisions that would permit the NTSB to conduct 
investigative and safety training courses, collect revenues 
from non-agency personnel that participate in such training 
courses, revise the criteria for investigation of railroad 
accidents, and investigate relevant international accidents or 
incidents when requested by foreign authorities. The NTSB would 
also be required to issue a report on its policies on releasing 
accident investigation information.

                          Legislative History

  Senator Dorgan, along with Senators Rockefeller and 
Lautenberg, introduced S. 2768 on November 10, 2009. The 
Committee held a hearing on October 29, 2009, to consider the 
reauthorization of the NTSB. The Honorable Deborah A.P. 
Hersman, Chairman of the NTSB, and Dr. Gerald Dillingham, 
Director of Physical Infrastructure at the Government 
Accountability Office (GAO), testified. This hearing was 
preceded by a series of hearings on transportation safety held 
by the Committee. On June 10, 2009, a hearing was held entitled 
``Aviation Safety: The Federal Aviation Administration's Role 
in the Oversight of Commercial Air Carriers'' at which 
representatives from the NTSB, the Federal Aviation 
Administration (FAA), the U.S. Department of Transportation 
Inspector General (DOT IG) and the Flight Safety Foundation 
testified. On June 17, 2009, a hearing was held entitled 
``Aviation Safety: The Role and Responsibility of Commercial 
Air Carriers and Employees'' at which representatives from the 
Air Transport Association (ATA), the Regional Airline 
Association (RAA), the Airline Pilots Association (ALPA), and 
families of the victims of Continental Express Flight 3407 
testified. On August 6, 2009, a hearing was held entitled 
``Aviation Safety: The Relationship Between Network Airlines 
and Regional Airlines'' at which representatives from major and 
regional commercial air carriers testified. On September 15, 
2009, a hearing was held entitled ``Aviation Safety: The Hudson 
River Midair Collision and the Safety of Air Operations in 
Congested Airspace'' at which representatives from the NTSB, 
FAA, the National Air Transportation Association (NATA), and 
the National Air Traffic Controllers Association (NATCA) 
testified. On October 28, 2009, a hearing was held entitled 
``Combating Distracted Driving: Managing Behavioral and 
Technological Risks'' at which the Honorable Ray LaHood, DOT 
Secretary, and Julius Genachowski, Chairman of the Federal 
Communications Commission (FCC) testified.
  On November 19, 2009, the Committee met in Executive Session 
during which S. 2768 was considered. The committee adopted one 
amendment that was offered during the Executive Session, which 
would require the NTSB to issue a report on how the Board 
disseminates information on transportation accidents. The bill, 
as amended, was ordered reported by voice vote.

                            Estimated Costs

  In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

                                                  December 3, 2009.
Hon. John D. Rockefeller IV,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2768, the National 
Transportation Safety Board Reauthorization Act of 2009.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Sarah Puro.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 2768--National Transportation Safety Board Reauthorization Act of 
        2009

    Summary: S. 2768 would authorize the appropriation of $559 
million for the National Transportation Safety Board (NTSB) 
over the 2010-2014 period. Assuming appropriation of the 
specified amounts, CBO estimates that implementing S. 2768 
would cost $536 million over the 2010-2014 period and $23 
million after 2014. Enacting the bill would not affect direct 
spending or revenues.
    The bill contains no intergovernmental mandates as defined 
in the Unfunded Mandates Reform Act (UMRA) and would impose no 
costs on state, local, or tribal governments.
    S. 2768 would impose a private-sector mandate, as defined 
in UMRA, on air carriers, but CBO estimates that the cost of 
complying with the mandate would be minimal and fall below the 
annual threshold established in UMRA for private-sector 
mandates ($139 million in 2009, adjusted annually for 
inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 2768 is shown in the following table. 
The costs of this legislation fall within budget function 400 
(transportation).

----------------------------------------------------------------------------------------------------------------
                                                               By fiscal year, in millions of dollars--
                                                    ------------------------------------------------------------
                                                       2010      2011      2012      2013      2014    2010-2014
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Authorization Level................................       100       105       112       118       124        559
Estimated Outlays..................................        88       103       109       115       121        536
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that S. 
2768 will be enacted early in calendar year 2010 and that the 
authorized amounts will be appropriated each year. Outlay 
estimates are based on historical spending patterns of the 
NTSB.
    The bill would authorize the appropriation of $559 million 
for the NTSB over the 2010-2014 period for the salaries and 
expenses of the NTSB personnel and for the general 
administrative operations of the board. Under the bill and 
under current law, certain fees collected by the NTSB would be 
classified as offsetting collections credited to 
appropriations. Based on information from the NTSB, CBO 
estimates that those offsetting collections would total about 
$2 million each year. The bill also would revise some policies 
and procedures at the NTSB. Assuming appropriation of the 
specified amounts, CBO estimates that implementing S. 2768 
would cost $536 million over the 2010-2014 period.
    Estimated impact on state, local, and tribal governments: 
S. 2768 contains no intergovernmental mandates as defined in 
UMRA and would impose no costs on state, local, or tribal 
governments.
    Estimated impact on the private sector: S. 2768 would 
impose a private-sector mandate, as defined in UMRA, on air 
carriers. After an accident resulting in major loss of life, an 
air carrier would have to make a reasonable attempt to notify 
the family of each passenger within 60 days of any planned 
destruction of unclaimed possessions. According to the NTSB, 
most air carriers already comply with the mandate, and the cost 
for the remaining air carriers to comply would not be 
significant. Consequently, CBO estimates that the aggregate 
cost of complying with the mandate would fall well below the 
annual threshold for private-sector mandates ($139 million in 
2009, adjusted annually for inflation).
    Estimate prepared by: Federal costs: Sarah Puro; Impact on 
state, local, and tribal governments: Ryan Miller; Impact on 
the private sector: Samuel Wice.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                      Regulatory Impact Statement

  In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       NUMBER OF PERSONS COVERED

  The reported bill would reauthorize existing NTSB activities; 
the number of persons covered should thus be consistent with 
the current levels of individuals impacted under existing NTSB 
activities.

                            ECONOMIC IMPACT

  S. 2768 is expected to have a positive impact on the U.S. 
economy. The transportation system is a key component of the 
nation's economy. Provisions in this legislation aim to ensure 
the transportation system continues to operate as safely as 
possible.

                                PRIVACY

  The reported bill is not expected to have any adverse impact 
on the privacy rights of individuals.

                               PAPERWORK

  It is not anticipated that there will be a major increase in 
paperwork burdens resulting from the enactment of S. 2768.

                   Congressionally Directed Spending

  In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides that no 
provisions contained in the bill, as reported, meet the 
definition of congressionally directed spending items under the 
rule.

                      Section-by-Section Analysis


Sec. 1. Short title

  This section provides that the legislation may be cited as 
the National Transportation Safety Board Reauthorization Act of 
2009.

Sec. 2. Authorizations of appropriations

  This section would authorize funds to be appropriated at the 
following amounts for the NTSB:
           $100,000,000 for fiscal year 2010;
           $105,000,000 for fiscal year 2011;
           $112,000,000 for fiscal year 2012;
           $118,000,000 for fiscal year 2013; and
           $124,000,000 for fiscal year 2014.
  The section would also provide authorization for the Board to 
impose and collect fees and provide refunds, reimbursements, 
and advances, as it determines to be appropriate, for 
activities, services, and facilities provided by or through the 
Board. For example, it would permit the Board to collect 
tuition for classes it teaches at its training facility. The 
Board would be required to keep records of these financial 
activities. Such revenues would be classified as offsetting 
collections.

Sec. 3. Technical corrections

  This section would authorize the NTSB to investigate 
transportation incidents the Board believes should be 
investigated for safety purposes, but that do not necessarily 
result in accidents involving injury, fatalities, or property 
damage. Examples include near misses between aircraft and cases 
where unmanned aerial systems (UASs) temporarily lose 
connectivity with their controllers.
  The section would clarify that the Vice Chairman is 
authorized to act as the Chairman when the Chairman is not 
available in person, by telephone, by another means of 
electronic communication, or is unable to serve. It would also 
clarify that the Board has subpoena authority for accident 
investigations.
  This section would protect a broader array of proprietary 
materials from disclosure through the FOIA, consistent with 
FOIA principles. It would also require businesses or persons 
that submit to the Board trade secrets, commercial or financial 
information, or information that could be classified as 
controlled under the International Trade in Arms Regulations to 
appropriately mark such information to indicate the restricted 
nature of the information in order to facilitate proper 
handling of such materials by the Board.
  This section would also protect records it has pertaining to 
foreign investigations from being released prior to conclusion 
of the investigation.
  The section would prevent the Board, or any agency receiving 
information from the Board, from having to publicly disclose 
records related to an ongoing Board investigation, and would 
exempt such records from disclosure under section 552(b)(3) of 
title 5 of the FOIA. The Board, however, would be able to make 
public specific records that are relevant to an ongoing 
investigation if, in the NTSB's judgment, disclosure is 
necessary to promote transportation safety. Such instances may 
include releasing information during a public hearing held by 
the Board on an accident or incident, or if the Board 
determines that substantial portions of the underlying factual 
reports on the accident or incident and supporting evidence 
will be placed in the public docket. Further, disclosure would 
be permitted if the Board determines during an ongoing 
investigation or study that circumstances warrant disclosure of 
specific factual material and that such material need be placed 
in the public docket to facilitate communication with other 
agencies, stakeholders, or Congress.
  This section contains a provision clarifying that the Board 
would not be prevented from referring at any time to evidence 
from an ongoing investigation in making safety recommendations. 
It would also clarify that the term ``ongoing investigation'' 
is defined as the time period beginning when the Board is 
notified of an accident or incident and ending when the Board 
issues a final report or brief, or determines to close an 
investigation without issuing a report or brief.
  This section would permit the Board to prescribe requirements 
for persons reporting accidents and aviation incidents that may 
be investigated by the NTSB, and contains a minor technical 
change to ensure parties to a judicial proceeding may not use 
discovery to obtain a cockpit or surface vehicle recording or 
transcript.

Sec. 4. Authority of the Board

  This section would retain the requirement that the GAO 
conduct evaluations of the NTSB and its activities at the 
direction of Congress, but would eliminate the mandate to issue 
annually such reports.
  This section would clarify and broaden the scope of 
investigative and safety training courses the Board may conduct 
and the people who may attend these classes. The provision 
would also clarify the NTSB's authority to collect revenues 
from non-agency personnel who participate in these training 
courses.
  The section would make a number of modifications to the 
jurisdiction of the NTSB's investigative authority. Consistent 
with other provisions of this bill, this section would clarify 
that the NTSB has the authority to investigate incidents in 
addition to accidents. The section would also revise the 
criteria for investigation of railroad accidents, permit the 
NTSB to investigate relevant international accidents or 
incidents, and permit the NTSB to investigate accidents or 
incidents involving unmanned aerial systems.
  The section would provide the NTSB with explicit authority to 
investigate accidents involving commercial space launch 
vehicles.
  This section would clarify that DOT, FAA, and Coast Guard 
personnel, when delegated authority by the NTSB, have the same 
authority to investigate accidents and incidents as Board 
members.
  This section would also provide the NTSB with explicit 
authority to download or seize any recording device and 
recordings and obtain the required information, including 
proprietary information, from the manufacturer to enable the 
Board to read and interpret any information from the device on 
board the aircraft, vehicle, vessel, or rolling stock involved 
in the accident being investigated by the NTSB.

Sec. 5. Aviation penalties and family assistance

  This section would require that airlines augment their family 
assistance plans by adding a process to notify family members 
of the victims of fatal aviation accidents of plans to destroy 
any unclaimed possessions of those individuals. The notice must 
be attempted within 60 days of the destruction of unclaimed and 
unassociated personal effects and applies to domestic and 
international accidents.

Sec. 6. Accident-related information release policy report

  This section would require the NTSB to issue a report to the 
Senate Committee on Commerce, Science, and Transportation and 
the House Committee on Transportation and Infrastructure 
describing the policies, procedures, and guidelines used by the 
Board to expedite the release of factual accident-related 
information.

                        Changes in Existing Law

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill, 
as reported, are shown as follows (existing law proposed to be 
omitted is enclosed in black brackets, new material is printed 
in italic, existing law in which no change is proposed is shown 
in roman):

                        TITLE 49. TRANSPORTATION

                 SUBTITLE II. OTHER GOVERNMENT AGENCIES

            CHAPTER 11. NATIONAL TRANSPORTATION SAFETY BOARD

                         SUBCHAPTER I. GENERAL

1101. Definitions

  Section 2101(17a) of title 46 and section 40102(a) of this 
title apply to this chapter. In this chapter, the term 
``accident'' includes damage to or destruction of vehicles in 
surface or air transportation or pipelines, regardless of 
whether the initiating event is accidental or [otherwise.] 
otherwise, and may include incidents not involving destruction 
or damage, but significantly affecting transportation safety, 
as the Board may prescribe or Congress may direct.

           *       *       *       *       *       *       *


             SUBCHAPTER II. ORGANIZATION AND ADMINISTRATIVE

1111. General organization

  (a) Organization.--The National Transportation Safety Board 
is an independent establishment of the United States 
Government.
  (b) Appointment of members.--The Board is composed of 5 
members appointed by the President, by and with the advice and 
consent of the Senate. Not more than 3 members may be appointed 
from the same political party. At least 3 members shall be 
appointed on the basis of technical qualification, professional 
standing, and demonstrated knowledge in accident 
reconstruction, safety engineering, human factors, 
transportation safety, or transportation regulation.
  (c) Terms of office and removal.--The term of office of each 
member is 5 years. An individual appointed to fill a vacancy 
occurring before the expiration of the term for which the 
predecessor of that individual was appointed, is appointed for 
the remainder of that term. When the term of office of a member 
ends, the member may continue to serve until a successor is 
appointed and qualified. The President may remove a member for 
inefficiency, neglect of duty, or malfeasance in office.
  (d) Chairman and Vice Chairman.--The President shall 
designate, by and with the advice and consent of the Senate, a 
Chairman of the Board. The President also shall designate a 
Vice Chairman of the Board. The terms of office of both the 
Chairman and Vice Chairman are 2 years. When the Chairman is 
[absent] unavailable or unable to serve or when the position of 
Chairman is vacant, the Vice Chairman acts as Chairman.
  (e) Duties and powers of Chairman.--The Chairman is the chief 
executive and administrative officer of the Board. Subject to 
the general policies and decisions of the Board, the Chairman 
shall--
          (1) appoint and supervise officers and employees, 
        other than regular and full-time employees in the 
        immediate offices of another member, necessary to carry 
        out this chapter;
          (2) fix the pay of officers and employees necessary 
        to carry out this chapter;
          (3) distribute business among the officers, 
        employees, and administrative units of the Board; and
          (4) supervise the expenditures of the Board.
  (f) Quorum.--Three members of the Board are a quorum in 
carrying out duties and powers of the Board.
  (g) Offices, bureaus, and divisions.--The Board shall 
establish offices necessary to carry out this chapter, 
including an office to investigate and report on the safe 
transportation of hazardous material. The Board shall establish 
distinct and appropriately staffed bureaus, divisions, or 
offices to investigate and report on accidents involving each 
of the following modes of transportation:
          (1) aviation.
          (2) highway and motor vehicle.
          (3) rail and tracked vehicle.
          (4) pipeline.
          (5) marine.
  (h) Chief Financial Officer.--The Chairman shall designate an 
officer or employee of the Board as the Chief Financial 
Officer. The Chief Financial Officer shall--
          (1) report directly to the Chairman on financial 
        management and budget execution;
          (2) direct, manage, and provide policy guidance and 
        oversight on financial management and property and 
        inventory control; and
          (3) review the fees, rents, and other charges imposed 
        by the Board for services and things of value it 
        provides, and suggest appropriate revisions to those 
        charges to reflect costs incurred by the Board in 
        providing those services and things of value.
  (i) Board member staff.--Each member of the Board shall 
select and supervise regular and full-time employees in his or 
her immediate office as long as any such employee has been 
approved for employment by the designated agency ethics 
official under the same guidelines that apply to all employees 
of the Board. Except for the Chairman, the appointment 
authority provided by this subsection is limited to the number 
of full-time equivalent positions, in addition to 1 senior 
professional staff at a level not to exceed the GS 15 level and 
1 administrative staff, allocated to each member through the 
Board's annual budget and allocation process.
  (j) Seal.--The Board shall have a seal that shall be 
judicially recognized.

           *       *       *       *       *       *       *


1113. Administrative

  (a) General authority.--
          (1) The National Transportation Safety Board, and 
        when authorized by it, a member of the Board, an 
        administrative law judge employed by or assigned to the 
        Board, or an officer or employee designated by the 
        Chairman of the Board, may conduct hearings or 
        depositions to carry out this chapter, administer 
        oaths, and require, by subpena or otherwise, necessary 
        witnesses and evidence.
          (2) In the interest of transportation safety, the 
        Board shall have the authority by subpoena to summon 
        witnesses and obtain any and all evidence relevant to 
        an accident investigation conducted under this chapter. 
        A witness or evidence in a hearing under paragraph (1) 
        of this subsection may be summoned or required to be 
        produced from any place in the United States to the 
        designated place of the hearing. A witness summoned 
        under this subsection is entitled to the same fee and 
        mileage the witness would have been paid in a court of 
        the United States.
          (3) A subpoena shall be issued under the signature of 
        the Chairman or the Chairman's delegate but may be 
        served by any person designated by the Chairman.
          (4) If a person disobeys a subpoena, order, or 
        inspection notice of the Board, the Board may bring a 
        civil action in a district court of the United States 
        to enforce the subpoena, order, or notice. An action 
        under this paragraph may be brought in the judicial 
        district in which the person against whom the action is 
        brought resides, is found, or does business. The court 
        may punish a failure to obey an order of the court to 
        comply with the subpoena, order, or notice as a 
        contempt of court.
  (b) Additional powers.--
          (1) The Board may--
                  (A) procure the temporary or intermittent 
                services of experts or consultants under 
                section 3109 of title 5;
                  (B) make agreements and other transactions 
                necessary to carry out this chapter without 
                regard to section 3709 of the Revised Statutes 
                (41 U.S.C. 5);
                  (C) use, when appropriate, available 
                services, equipment, personnel, and facilities 
                of a department, agency, or instrumentality of 
                the United States Government on a reimbursable 
                or other basis;
                  (D) confer with employees and use services, 
                records, and facilities of State and local 
                governmental authorities;
                  (E) appoint advisory committees composed of 
                qualified private citizens and officials of the 
                Government and State and local governments as 
                appropriate;
                  (F) accept voluntary and uncompensated 
                services notwithstanding another law;
                  (G) accept gifts of money and other property;
                  (H) make contracts with nonprofit entities to 
                carry out studies related to duties and powers 
                of the Board; and
                  (I) negotiate and enter into agreements with 
                individuals and private entities and 
                departments, agencies, and instrumentalities of 
                the Government, State and local governments, 
                and governments of foreign countries for the 
                provision of facilities, accident-related and 
                technical services or training in accident 
                investigation theory and techniques, and 
                require that such entities provide appropriate 
                consideration for the reasonable costs of any 
                facilities, goods, services, or training 
                provided by the Board.
          (2) The Board shall deposit in the Treasury amounts 
        received under paragraph (1)(I) of this subsection to 
        be credited as offsetting collections to the 
        appropriation of the Board. The Board shall maintain an 
        annual record of collections received under paragraph 
        (1)(I) of this subsection.
  (c) Submission of certain copies to Congress.--When the Board 
submits to the President or the Director of the Office of 
Management and Budget a budget estimate, budget request, 
supplemental budget estimate, other budget information, a 
legislative recommendation, prepared testimony for 
congressional hearings, or comments on legislation, the Board 
must submit a copy to Congress at the same time. An officer, 
department, agency, or instrumentality of the Government may 
not require the Board to submit the estimate, request, 
information, recommendation, testimony, or comments to another 
officer, department, agency, or instrumentality of the 
Government for approval, comment, or review before being 
submitted to Congress. The Board shall develop and approve a 
process for the Board's review and comment or approval of 
documents submitted to the President, Director of the Office of 
Management and Budget, or Congress under this subsection.
  (d) Liaison committees.--The Chairman may determine the 
number of committees that are appropriate to maintain effective 
liaison with other departments, agencies, and instrumentalities 
of the Government, State and local governmental authorities, 
and independent standard-setting authorities that carry out 
programs and activities related to transportation safety. The 
Board may designate representatives to serve on or assist those 
committees.
  (e) Inquiries.--The Board, or an officer or employee of the 
Board designated by the Chairman, may conduct an inquiry to 
obtain information related to transportation safety after 
publishing notice of the inquiry in the Federal Register. The 
Board or designated officer or employee may require by order a 
department, agency, or instrumentality of the Government, a 
State or local governmental authority, or a person transporting 
individuals or property in commerce to submit to the Board a 
written report and answers to requests and questions related to 
a duty or power of the Board. The Board may prescribe the time 
within which the report and answers must be given to the Board 
or to the designated officer or employee. Copies of the report 
and answers shall be made available for public inspection.
  (f) Regulations.--The Board may prescribe regulations to 
carry out this chapter.
  (g) Overtime pay.--
          (1) In general.--Subject to the requirements of this 
        section and notwithstanding paragraphs (1) and (2) of 
        section 5542(a) of title 5, for an employee of the 
        Board whose basic pay is at a rate which equals or 
        exceeds the minimum rate of basic pay for GS-10 of the 
        General Schedule, the Board may establish an overtime 
        hourly rate of pay for the employee with respect to 
        work performed at the scene of an accident (including 
        travel to or from the scene) and other work that is 
        critical to an accident investigation in an amount 
        equal to one and one-half times the hourly rate of 
        basic pay of the employee. All of such amount shall be 
        considered to be premium pay.
          (2) Limitation on overtime pay to an employee.--An 
        employee of the Board may not receive overtime pay 
        under paragraph (1), for work performed in a calendar 
        year, in an amount that exceeds 15 percent of the 
        annual rate of basic pay of the employee for such 
        calendar year.
          (3) Limitation on total amount of overtime pay.--The 
        Board may not make overtime payments under paragraph 
        (1) for work performed in any fiscal year in a total 
        amount that exceeds 1.5 percent of the amount 
        appropriated to carry out this chapter for that fiscal 
        year.
          (4) Basic pay defined.--In this subsection, the term 
        ``basic pay'' includes any applicable locality-based 
        comparability payment under section 5304 of title 5 (or 
        similar provision of law) and any special rate of pay 
        under section 5305 of title 5 (or similar provision of 
        law).
          (5) Annual report.--Not later than January 31, 2002, 
        and annually thereafter, the Board shall transmit to 
        the Senate Committee on Commerce, Science, and 
        Transportation and the House Transportation and 
        Infrastructure Committee a report identifying the total 
        amount of overtime payments made under this subsection 
        in the preceding fiscal year, and the number of 
        employees whose overtime pay under this subsection was 
        limited in that fiscal year as a result of the 15 
        percent limit established by paragraph (2).
  (h) Investigative officers.--The Board shall maintain at 
least 1 full-time employee in each State located more than 
1,000 miles from the nearest Board regional office to provide 
initial investigative response to accidents the Board is 
empowered to investigate under this chapter that occur in that 
State.

1114. Disclosure, availability, and use of information

  (a) General.--
          (1) Except as provided in subsections (b), (c), (d), 
        and (f) of this section, a copy of a record, 
        information, or investigation submitted or received by 
        the National Transportation Safety Board, or a member 
        or employee of the Board, shall be made available to 
        the public on identifiable request and at reasonable 
        cost. This subsection does not require the release of 
        information described by section 552(b) of title 5 or 
        protected from disclosure by another law of the United 
        States.
          (2) The Board shall deposit in the Treasury amounts 
        received under paragraph (1) to be credited to the 
        appropriation of the Board as offsetting collections.
  [(b) Trade secrets.--] (b) Trade Secrets; Commercial or 
Financial Information._(1) The Board may disclose information 
submitted to the Board in the course of a Board investigation 
or study and related to a trade secret referred to in section 
1905 of [title 18] title 18, or commercial or financial 
information, only--
          (A) to another department, agency, or instrumentality 
        of the United States Government when requested for 
        official use;
          (B) to a committee of Congress having jurisdiction 
        over the subject matter to which the information is 
        related, when requested by that committee;
          (C) in a judicial proceeding under a court order that 
        preserves the confidentiality of the information 
        without impairing the proceeding; and
          (D) to the public to protect health and [safety] 
        safety, including through the issuance of reports of 
        accident investigation or safety studies and safety 
        recommendations, after giving notice to any interested 
        person to whom the information is related and an 
        opportunity for that person to comment in writing, or 
        orally in closed session, on the proposed disclosure, 
        if the delay resulting from notice and opportunity for 
        comment would not be detrimental to health and safety.
  (2) Information disclosed under subparagraphs (A) through (C) 
of paragraph (1) of this subsection may be disclosed only in a 
way designed to preserve its confidentiality.
  (3) Protection of voluntary submission of information. 
Notwithstanding any other provision of law, neither the Board, 
nor any agency receiving information from the Board, shall 
disclose voluntarily provided safety-related information if 
that information is not related to the exercise of the Board's 
accident or incident investigation authority under this chapter 
and if the Board finds that the disclosure of the information 
would inhibit the voluntary provision of that type of 
information.
  (4) Each person submitting to the Board trade secrets, 
commercial or financial information, or information that could 
be classified as controlled under the International Traffic in 
Arms Regulations shall appropriately annotate the information 
to indicate the restricted nature of the information in order 
to facilitate proper handling of such materials by the Board
  (c) Cockpit recordings and transcripts.--
          (1) The Board may not disclose publicly any part of a 
        cockpit voice or video recorder recording or transcript 
        of oral communications by and between flight crew 
        members and ground stations related to an accident or 
        incident investigated by the Board. However, the Board 
        shall make public any part of a transcript or any 
        written depiction of visual information the Board 
        decides is relevant to the accident or incident--
                  (A) if the Board holds a public hearing on 
                the accident or incident, at the time of the 
                hearing; or
                  (B) if the Board does not hold a public 
                hearing, at the time a majority of the other 
                factual reports on the accident or incident are 
                placed in the public docket.
          (2) This subsection does not prevent the Board from 
        referring at any time to cockpit voice or video 
        recorder information in making safety recommendations.
  (d) Surface vehicle recordings and transcripts.--
          (1) Confidentiality of recordings.--The Board may not 
        disclose publicly any part of a surface vehicle voice 
        or video recorder recording or transcript of oral 
        communications by or among drivers, train employees, or 
        other operating employees responsible for the movement 
        and direction of the vehicle or vessel, or between such 
        operating employees and company communication centers, 
        related to an accident investigated by the Board. 
        However, the Board shall make public any part of a 
        transcript or any written depiction of visual 
        information that the Board decides is relevant to the 
        accident--
                  (A) if the Board holds a public hearing on 
                the accident, at the time of the hearing; or
                  (B) if the Board does not hold a public 
                hearing, at the time a majority of the other 
                factual reports on the accident are placed in 
                the public docket.
          (2) References to information in making safety 
        recommendations.--This subsection does not prevent the 
        Board from referring at any time to voice or video 
        recorder information in making safety recommendations.
  (e) Drug tests.--
          (1) Notwithstanding section 503(e) of the 
        Supplemental Appropriations Act, 1987 (Public Law 100-
        71, 101 Stat. 471), the Secretary of Transportation 
        shall provide the following information to the Board 
        when requested in writing by the Board:
                  (A) any report of a confirmed positive 
                toxicological test, verified as positive by a 
                medical review officer, conducted on an officer 
                or employee of the Department of Transportation 
                under post-accident, unsafe practice, or 
                reasonable suspicion toxicological testing 
                requirements of the Department, when the 
                officer or employee is reasonably associated 
                with the circumstances of an accident or 
                incident under the investigative jurisdiction 
                of the Board.
                  (B) any laboratory record documenting that 
                the test is confirmed positive.
          (2) Except as provided by paragraph (3) of this 
        subsection, the Board shall maintain the 
        confidentiality of, and exempt from disclosure under 
        section 552(b)(3) of title 5--
                  (A) a laboratory record provided the Board 
                under paragraph (1) of this subsection that 
                reveals medical use of a drug allowed under 
                applicable regulations; and
                  (B) medical information provided by the 
                tested officer or employee related to the test 
                or a review of the test.
          (3) The Board may use a laboratory record made 
        available under paragraph (1) of this subsection to 
        develop an evidentiary record in an investigation of an 
        accident or incident if--
                  (A) the fitness of the tested officer or 
                employee is at issue in the investigation; and
                  (B) the use of that record is necessary to 
                develop the evidentiary record.
  (f) Foreign investigations.--
          (1) In general.--Notwithstanding any other provision 
        of law, neither the Board, nor any agency receiving 
        information from the Board, [shall] may disclose 
        records or information relating to its participation in 
        foreign aircraft accident investigations; except that--
                  (A) the Board shall release records 
                pertaining to such an investigation when the 
                country conducting the investigation issues its 
                final report or 2 years following the date of 
                the accident, whichever occurs first; and
                  (B) the Board may disclose records and 
                information when authorized to do so by the 
                country conducting the investigation.
          (2) Safety recommendations.--Nothing in this 
        subsection shall restrict the Board at any time from 
        referring to foreign accident investigation 
        [information] information, or other relevant 
        information authorized for disclosure under this 
        chapter, in making safety recommendations.
  (g) Ongoing Board Investigations.--(1) Notwithstanding any 
other provision of law, neither the Board, nor any agency 
receiving information from the Board, may publicly disclose 
records related to an ongoing Board investigation, and such 
records shall be exempt from disclosure under section 552(b)(3) 
of title 5. Notwithstanding the preceding sentence, the Board 
may make public specific records relevant to the investigation, 
release of which in the Board's judgment is necessary to 
promote transportation safety--
          (A) if the Board holds a public hearing on the 
        accident or incident, at the time of the hearing;
          (B) if the Board does not hold a public hearing, at 
        the time the Board determines that substantial portions 
        of the underlying factual reports on the accident or 
        incident, and supporting evidence, will be placed in 
        the public docket; or
          (C) if the Board determines during an ongoing 
        investigation or study that circumstances warrant 
        disclosure of specific factual material and that such 
        material need be placed in the public docket to 
        facilitate dialogue with other agencies or 
        instrumentalities, regulatory bodies, industry or 
        industry groups, or Congress.
  (2) This subsection does not prevent the Board from referring 
at any time to evidence from an ongoing investigation in making 
safety recommendations.
  (3) In this subsection, the term ``ongoing investigation'' 
means that period beginning at the time the Board is notified 
of an accident or incident and ending when the Board issues a 
final report or brief, or determines to close an investigation 
without issuing a report or brief.

1115. Training

  (a) Definition.--In this section, ``Institute'' means the 
Transportation Safety Institute of the Department of 
Transportation and any successor organization of the Institute.
  (b) Use of Institute services.--The National Transportation 
Safety Board may use, on a reimbursable basis, the services of 
the Institute. The Secretary of Transportation shall make the 
Institute available to--
          (1) the Board for safety training of employees of the 
        Board in carrying out their duties and powers; and
          (2) other safety personnel of the United States 
        Government, State and local governments, governments of 
        foreign countries, interstate authorities, and private 
        organizations the Board designates in consultation with 
        the Secretary.
  (c) Fees.--
          (1) Training at the Institute for safety personnel 
        (except employees of the Government) shall be provided 
        at a reasonable fee established periodically by the 
        Board in consultation with the Secretary. The fee shall 
        be paid directly to the Secretary, and the Secretary 
        shall deposit the fee in the Treasury. The amount of 
        the fee--
                  (A) shall be credited to the appropriate 
                appropriation (subject to the requirements of 
                any annual appropriation); and
                  (B) is an offset against any annual 
                reimbursement agreement between the Board and 
                the Secretary to cover all reasonable costs of 
                providing training under this subsection that 
                the Secretary incurs in operating the 
                Institute.
          (2) The Board shall maintain an annual record of 
        offsets under paragraph (1)(B) of this subsection.
  (d) Training of Board employees and others.--The Board may 
conduct training of its employees in those subjects necessary 
for the proper performance of accident [investigation.] 
investigation, including investigation theory and techniques 
and transportation safety, to advance Board safety 
recommendations. The Board may also authorize attendance at 
courses given under this subsection by other government 
personnel, personnel of foreign governments, and personnel from 
industry or otherwise who have a requirement for accident 
investigation [training.] training or who influence 
transportation safety through support or adoption of Board 
safety recommendations. The Board may require non-Board 
personnel to reimburse some or all of the training costs, and 
amounts so reimbursed shall be credited to the appropriation of 
the Board as offsetting [collections.] collections under the 
provisions of section 1118 of this chapter.

1116. Reports and studies

  (a) Periodic reports.--The National Transportation Safety 
Board shall report periodically to Congress, departments, 
agencies, and instrumentalities of the United States Government 
and State and local governmental authorities concerned with 
transportation safety, and other interested persons. The report 
shall--
          (1) advocate meaningful responses to reduce the 
        likelihood of transportation accidents similar to those 
        investigated by the Board; and
          (2) propose corrective action to make the 
        transportation of individuals as safe and free from 
        risk of injury as possible, including action to 
        minimize personal injuries that occur in transportation 
        accidents.
  (b) Studies, investigations, and other reports.--The Board 
also shall--
          (1) [carry out] conduct special studies and 
        investigations about transportation safety, including 
        avoiding personal injury;
          (2) examine techniques and methods of accident 
        investigation and periodically publish recommended 
        procedures for accident investigations;
          [(3) prescribe requirements for persons reporting 
        accidents and aviation incidents that--
                  [(A) may be investigated by the Board under 
                this chapter; or
                  [(B) involve public aircraft (except aircraft 
                of the armed forces and the intelligence 
                agencies);]
          (3) prescribe requirements for persons reporting 
        accidents and incidents that may be investigated by the 
        Board under this chapter;
          (4) evaluate, examine the effectiveness of, and 
        publish the findings of the Board about the 
        transportation safety consciousness of other 
        departments, agencies, and instrumentalities of the 
        Government and their effectiveness in preventing 
        accidents; and
          (5) evaluate the adequacy of safeguards and 
        procedures for the transportation of hazardous material 
        and the performance of other departments, agencies, and 
        instrumentalities of the Government responsible for the 
        safe transportation of that material.

1118. Authorization of appropriations

  [(a) In general.--There are authorized to be appropriated for 
the purposes of this chapter $57,000,000 for fiscal year 2000, 
$65,000,000 for fiscal year 2001, $72,000,000 for fiscal year 
2002, $73,325,000 for fiscal year 2003, $78,757,000 for fiscal 
year 2004, $83,011,000 for fiscal year 2005, $87,539,000 for 
fiscal year 2006, $81,594,000 for fiscal year 2007, and 
$92,625,000 for fiscal year 2008. Such sums shall remain 
available until expended.]
  (a) In General.--There are authorized to be appropriated for 
the purposes of this chapter $100,000,000 for fiscal year 2010, 
$105,000,000 for fiscal year 2011, $112,000,000 for fiscal year 
2012, $118,000,000 for fiscal year 2013, and $124,000,000 for 
fiscal year 2014. Such sums shall remain available until 
expended.
  (b) Emergency fund.--The Board has an emergency fund of 
$2,000,000 available for necessary expenses of the Board, not 
otherwise provided for, for accident investigations. In 
addition, there are authorized to be appropriated such sums as 
may be necessary to increase the fund to, and maintain the fund 
at, a level not to exceed $4,000,000.
  [(c) Fees, refunds, and reimbursements.--
          [(1) In general.--The Board may impose and collect 
        such fees, refunds, and reimbursements as it determines 
        to be appropriate for services provided by or through 
        the Board.
          [(2) Receipts credited as offsetting collections.--
        Notwithstanding section 3302 of title 31, any fee, 
        refund, or reimbursement collected under this 
        subsection--
                  [(A) shall be credited as offsetting 
                collections to the account that finances the 
                activities and services for which the fee is 
                imposed or with which the refund or 
                reimbursement is associated;
                  [(B) shall be available for expenditure only 
                to pay the costs of activities and services for 
                which the fee is imposed or with which the 
                refund or reimbursement is associated; and
                  [(C) shall remain available until expended.
          [(3) Refunds.--The Board may refund any fee paid by 
        mistake or any amount paid in excess of that required.]
  (c) Fees, Refunds, Reimbursements, and Advances.--
          (1) In general.--The Board may impose and collect 
        such fees, refunds, reimbursements, and advances as it 
        determines to be appropriate for activities, services, 
        and facilities provided by or through the Board.
          (2) Receipts credited as offsetting collections.--
        Notwithstanding section 3302 of title 31, any fee, 
        refund, reimbursement, or advance collected under this 
        subsection--
                  (A) shall be credited as offsetting 
                collections to the account that finances the 
                activities, services, or facilities for which 
                the fee, refund, reimbursement, or advance is 
                associated;
                  (B) shall be available for expenditure only 
                to pay the costs of activities, services, or 
                facilities for which the fee, refund, 
                reimbursement, or advance is associated; and
                  (C) shall remain available until expended.
          (3) Record.--The Board shall maintain an annual 
        record of collections received under paragraph (2).
          (4) Refunds.--The Board may refund any fee or advance 
        paid by mistake or any amount paid in excess of that 
        required.

           *       *       *       *       *       *       *


                       SUBCHAPTER III. AUTHORITY

1131. General authority

  (a) General.--(1) The National Transportation Safety Board 
shall investigate or have investigated (in detail the Board 
prescribes) and establish the facts, circumstances, and cause 
or probable cause of--
          (A) an aircraft accident the Board has authority to 
        investigate under section 1132 of this title or an 
        aircraft accident involving a public aircraft as 
        defined by section 40102(a)(37) of this title other 
        than an aircraft operated by the Armed Forces or by an 
        intelligence agency of the United States;
          (B) a highway accident, including a railroad grade 
        crossing accident, the Board selects in cooperation 
        with a State;
          [(C) a railroad accident in which there is a fatality 
        or substantial property damage, or that involves a 
        passenger train;]
          (C) a freight or passenger railroad accident in which 
        there is a fatality (other than a fatality involving a 
        trespasser), substantial property damage, or 
        significant injury to the environment;
          (D) a pipeline accident in which there is a fatality, 
        substantial property damage, or significant injury to 
        the environment;
          (E) a major marine casualty (except a casualty 
        involving only public vessels) occurring on or under 
        the navigable waters, internal waters, or the 
        territorial sea of the United States as described in 
        Presidential Proclamation No. 5928 of December 27, 
        1988, or involving a vessel of the United States (as 
        defined in section 2101(46) of title 46), under 
        regulations prescribed jointly by the Board and the 
        head of the department in which the Coast Guard is 
        operating; [and]
          (F) any other accident or incident related to the 
        transportation of individuals or property when the 
        Board decides--
                  (i) the accident or incident is catastrophic;
                  (ii) the accident or incident involves 
                problems of a recurring character; or
                  (iii) the investigation of the accident or 
                incident would carry out this [chapter.] 
                chapter;
          (G) an accident or incident in response to an 
        international request and delegation under appropriate 
        international conventions, coordinated through the 
        Department of State and accepted by the Board; and
          (H) an incident or incidents significantly affecting 
        transportation safety, as defined by the Board, under 
        rules and in such detail as the Board may prescribe.
  (2)(A) Subject to the requirements of this paragraph, an 
investigation by the Board under [paragraph (1)(A)-(D) or (F)] 
any of subparagraphs (A) through (F) of paragraph (1) of this 
subsection has priority over any investigation by another 
department, agency, or instrumentality of the United States 
Government. The Board shall provide for appropriate 
participation by other departments, agencies, or 
instrumentalities in the investigation. However, those 
departments, agencies, or instrumentalities may not participate 
in the decision of the Board about the probable cause of the 
accident.
  (B) If the Attorney General, in consultation with the 
Chairman of the Board, determines and notifies the Board that 
circumstances reasonably indicate that the accident may have 
been caused by an intentional criminal act, the Board shall 
relinquish investigative priority to the Federal Bureau of 
Investigation. The relinquishment of investigative priority by 
the Board shall not otherwise affect the authority of the Board 
to continue its investigation under this section.
  (C) If a Federal law enforcement agency suspects and notifies 
the Board that an accident being investigated by the Board 
under subparagraph (A), (B), (C), or (D) of paragraph (1) may 
have been caused by an intentional criminal act, the Board, in 
consultation with the law enforcement agency, shall take 
necessary actions to ensure that evidence of the criminal act 
is preserved.
  (3) This section and sections 1113, 1116(b), 1133, and 
1134(a) and (c)-(e) of this title do not affect the authority 
of another department, agency, or instrumentality of the 
Government to investigate an accident or incident under 
applicable law or to obtain information directly from the 
parties involved in, and witnesses to, the accident or 
incident. The Board and other departments, agencies, and 
instrumentalities shall ensure that appropriate information 
developed about or relevant to the accident is exchanged in a 
timely manner.
  (b) Accidents involving public vessels.--(1) The Board or the 
head of the department in which the Coast Guard is operating 
shall investigate and establish the facts, circumstances, and 
cause or probable cause of a marine accident involving a public 
vessel and any other vessel. The results of the investigation 
shall be made available to the public.
  (2) Paragraph (1) of this subsection and subsection (a)(1)(E) 
of this section do not affect the responsibility, under another 
law of the United States, of the head of the department in 
which the Coast Guard is operating.
  (c) Accidents not involving government misfeasance or 
nonfeasance.--(1) When asked by the Board, the Secretary of 
Transportation or the Secretary of the department in which the 
Coast Guard is operating may--
          (A) investigate an accident described under 
        subsection (a) or (b) of this section in which 
        misfeasance or nonfeasance by the Government has not 
        been alleged; and
          (B) report the facts and circumstances of the 
        accident to the Board.
  (2) The Board shall use the report in establishing cause or 
probable cause of an accident described under subsection (a) or 
(b) of this section.
  (d) Accidents involving public aircraft.--The Board, in 
furtherance of its investigative duties with respect to public 
aircraft accidents under subsection (a)(1)(A) of this section, 
shall have the same duties and powers as are specified for 
civil aircraft accidents under sections 1132(a), 1132(b), and 
1134(a), (b), (d), and (f) of this title.
  (e) Accident and Incident reports.--The Board shall report on 
the facts and circumstances of each accident or incident 
investigated by it under subsection (a) or (b) of this section. 
The Board shall make each report available to the public at 
reasonable cost.

[1132. Civil aircraft accident investigations]

1132. Civil aircraft and maritime accident investigations

  (a) General authority.--
          (1) The National Transportation Safety Board shall 
        investigate or have investigated--
                  (A) each accident involving civil [aircraft;] 
                aircraft or a commercial space launch vehicle; 
                and
                  (B) with the participation of appropriate 
                military authorities, each accident involving 
                both military and civil aircraft.
          (2) A person employed under section 1113(b)(1) of 
        this title that is conducting an investigation or 
        hearing about an aircraft accident has the same 
        authority to conduct the investigation or hearing as 
        the Board.
  (b) Notification and reporting.--The Board shall prescribe 
regulations governing the notification and reporting of 
accidents involving civil aircraft.
  (c) Participation of Secretary.--The Board shall provide for 
the participation of the Secretary of Transportation in the 
investigation of an aircraft accident under this chapter when 
participation is necessary to carry out the duties and powers 
of the Secretary. However, the Secretary may not participate in 
establishing probable cause.
  (d) Accidents involving only military aircraft.--If an 
accident involves only military aircraft and a duty of the 
Secretary is or may be involved, the military authorities shall 
provide for the participation of the Secretary. In any other 
accident involving only military aircraft, the military 
authorities shall give the Board or Secretary information the 
military authorities decide would contribute to the promotion 
of air safety.
  (e) Authority of Board Representative.--The Board may, with 
the consent of the Secretary, delegate to the Department of 
Transportation full authority to obtain the facts of any 
aviation accident or incident the Board shall investigate, and 
the on-scene representative of the Secretary shall have the 
full authority of the Board to, on display of appropriate 
credentials and written notice of inspection authority, enter 
property where an aviation accident has occurred or wreckage 
from the accident is located and do anything necessary to 
gather evidence in support of a Board investigation, in 
accordance with such rules as the Board may prescribe.
  (f) Maritime accident investigations.--The Board may, with 
the consent of the Secretary of the department in which the 
Coast Guard is operating, delegate to the Coast Guard full 
authority to obtain the facts of any maritime accident or 
incident the Board shall investigate, and the on-scene 
representative of the Commandant of the Coast Guard shall have 
the full authority of the Board to, on display of appropriate 
credentials and written notice of inspection authority, enter 
property where a maritime accident has occurred or wreckage 
from the accident is located and do anything necessary to 
gather evidence in support of a Board investigation, in 
accordance with such rules as the Board may prescribe.

           *       *       *       *       *       *       *


1134. Inspections and autopsies

  (a) Entry and inspection.--An [officer or employee of the 
National Transportation Safety Board--] officer, employee, or 
designee of the National Transportation Safety Board in the 
conduct of any accident or incident investigation or study--
          (1) on display of appropriate credentials and written 
        notice of inspection authority, may enter property 
        where a transportation accident has occurred or 
        wreckage from the accident is located and do anything 
        necessary to conduct an investigation; and
          (2) during reasonable hours, may inspect any record, 
        process, control, or facility related to an accident 
        investigation under this chapter.
  (b) Inspection, testing, preservation, and moving of aircraft 
and parts.--
          (1) In investigating an aircraft accident under this 
        chapter, the Board may inspect and test, to the extent 
        necessary, any civil aircraft, aircraft engine, 
        propeller, appliance, or property on an aircraft 
        involved in an accident in air commerce. The Board may 
        download or seize any recording device and recordings 
        and may require specific information only available 
        from the manufacturer to enable the Board to read and 
        interpret any flight parameter or navigation storage 
        device or media on board the accident aircraft. The 
        provisions of section 1114(b) of this chapter shall 
        apply to matters properly identified as trade secrets 
        or commercial or financial information.
          (2) Any civil aircraft, aircraft engine, propeller, 
        appliance, or property on an aircraft involved in an 
        accident in air commerce shall be preserved, and may be 
        moved, only as provided by regulations of the Board.
  (c) Avoiding unnecessary interference and preserving 
evidence.--In carrying out subsection (a)(1) of this section, 
an officer or employee may examine or test any vehicle, vessel, 
rolling stock, track, or pipeline component. The officer or 
employee may download or seize any recording device and 
recordings, and may require the production of specific 
information only available from the manufacturer to enable the 
Board to read and interpret any operational parameter or 
navigation storage device or media on board the accident 
vehicle, vessel, or rolling stock. The provisions of section 
1114(b) of this chapter shall apply to matters properly 
identified as trade secrets or commercial or financial 
information. The examination or test shall be conducted in a 
way that--
          (1) does not interfere unnecessarily with 
        transportation services provided by the owner or 
        operator of the vehicle, vessel, rolling stock, track, 
        or pipeline component; and
          (2) to the maximum extent feasible, preserves 
        evidence related to the accident, consistent with the 
        needs of the investigation and with the cooperation of 
        that owner or operator.
  (d) Exclusive authority of Board.--Only the Board has the 
authority to decide on the way in which testing under this 
section will be conducted, including decisions on the person 
that will conduct the test, the type of test that will be 
conducted, and any individual who will witness the test. Those 
decisions are committed to the discretion of the Board. The 
Board shall make any of those decisions based on the needs of 
the investigation being conducted and, when applicable, 
subsections (a), (c), and (e) of this section.
  (e) Promptness of tests and availability of results.--An 
inspection, examination, or test under subsection (a) or (c) of 
this section shall be started and completed promptly, and the 
results shall be made available.
  (f) Autopsies.--
          (1) The Board may order an autopsy to be performed 
        and have other tests made when necessary to investigate 
        an accident under this chapter. However, local law 
        protecting religious beliefs related to autopsies shall 
        be observed to the extent consistent with the needs of 
        the accident investigation.
          (2) With or without reimbursement, the Board may 
        obtain a copy of an autopsy report performed by a State 
        or local official on an individual who died because of 
        a transportation accident investigated by the Board 
        under this chapter.

           *       *       *       *       *       *       *


1138. Evaluation and audit of National Transportation Safety Board

  (a) In general.--To promote economy, efficiency, and 
effectiveness in the administration of the programs, 
operations, and activities of the National Transportation 
Safety Board, the Comptroller General of the United States 
shall evaluate and audit the programs and expenditures of the 
National Transportation Safety Board. Such evaluation and audit 
shall be [conducted at least annually, but may be] conducted as 
determined necessary by the Comptroller General or the 
appropriate congressional committees.
  (b) Responsibility of Comptroller General.--The Comptroller 
General shall evaluate and audit Board programs, operations, 
and activities, including--
          (1) information management and security, including 
        privacy protection of personally identifiable 
        information;
          (2) resource management;
          (3) workforce development;
          (4) procurement and contracting planning, practices 
        and policies;
          (5) the extent to which the Board follows leading 
        practices in selected management areas; and
          (6) the extent to which the Board addresses 
        management challenges in completing accident 
        investigations.
  (c) Appropriate congressional committees.--For purposes of 
this section the term ``appropriate congressional committees'' 
means the Committee on Commerce, Science and Transportation of 
the Senate and the Committee on Transportation and 
Infrastructure of the House of Representatives.

           *       *       *       *       *       *       *


                SUBCHAPTER IV. ENFORCEMENT AND PENALTIES

1154. Discovery and use of cockpit and surface vehicle recordings and 
                    transcripts

  (a) Transcripts and recordings.--
          (1) Except as provided by this subsection, a party in 
        a judicial proceeding may not use discovery to obtain--
                  (A) any part of a cockpit or surface vehicle 
                recorder transcript that the National 
                Transportation Safety Board has not made 
                available to the public under section 1114(c) 
                or 1114(d) of this title; [and] or
                  (B) a cockpit or surface vehicle recorder 
                recording.
          (2)(A) Except as provided in paragraph (4)(A) of this 
        subsection, a court may allow discovery by a party of a 
        cockpit or surface vehicle recorder transcript if, 
        after an in camera review of the transcript, the court 
        decides that--
                  (i) the part of the transcript made available 
                to the public under section 1114(c) or 1114(d) 
                of this title does not provide the party with 
                sufficient information for the party to receive 
                a fair trial; and
                  (ii) discovery of additional parts of the 
                transcript is necessary to provide the party 
                with sufficient information for the party to 
                receive a fair trial.
          (B) A court may allow discovery, or require 
        production for an in camera review, of a cockpit or 
        surface vehicle recorder transcript that the Board has 
        not made available under section 1114(c) or 1114(d) of 
        this title only if the cockpit or surface vehicle 
        recorder recording is not available.
          (3) Except as provided in paragraph (4)(A) of this 
        subsection, a court may allow discovery by a party of a 
        cockpit or surface vehicle recorder recording if, after 
        an in camera review of the recording, the court decides 
        that--
                  (A) the parts of the transcript made 
                available to the public under section 1114(c) 
                or 1114(d) of this title and to the party 
                through discovery under paragraph (2) of this 
                subsection do not provide the party with 
                sufficient information for the party to receive 
                a fair trial; and
                  (B) discovery of the cockpit or surface 
                vehicle recorder recording is necessary to 
                provide the party with sufficient information 
                for the party to receive a fair trial.
          (4)(A) When a court allows discovery in a judicial 
        proceeding of a part of a cockpit or surface vehicle 
        recorder transcript not made available to the public 
        under section 1114(c) or 1114(d) of this title or a 
        cockpit or surface vehicle recorder recording, the 
        court shall issue a protective order--
                  (i) to limit the use of the part of the 
                transcript or the recording to the judicial 
                proceeding; and
                  (ii) to prohibit dissemination of the part of 
                the transcript or the recording to any person 
                that does not need access to the part of the 
                transcript or the recording for the proceeding.
                  (B) A court may allow a part of a cockpit or 
                surface vehicle recorder transcript not made 
                available to the public under section 1114(c) 
                or 1114(d) of this title or a cockpit or 
                surface vehicle recorder recording to be 
                admitted into evidence in a judicial 
                proceeding, only if the court places the part 
                of the transcript or the recording under seal 
                to prevent the use of the part of the 
                transcript or the recording for purposes other 
                than for the proceeding.
          (5) This subsection does not prevent the Board from 
        referring at any time to cockpit or surface vehicle 
        recorder information in making safety recommendations.
          (6) In this subsection:
                  (A) Recorder.--The term ``recorder'' means a 
                voice or video recorder.
                  (B) Transcript.--The term ``transcript'' 
                includes any written depiction of visual 
                information obtained from a video recorder.
  (b) Reports.--No part of a report of the Board, related to an 
accident or an investigation of an accident, may be admitted 
into evidence or used in a civil action for damages resulting 
from a matter mentioned in the report.

           *       *       *       *       *       *       *


                    SUBTITLE VII. AVIATION PROGRAMS

                    PART A. AIR COMMERCE AND SAFETY

                    SUBPART II. ECONOMIC REGULATION

                 CHAPTER 411. AIR CARRIER CERTIFICATES

41113. Plans to address needs of families of passengers involved in 
                    aircraft accidents

  (a) Submission of plans.--Each air carrier holding a 
certificate of public convenience and necessity under section 
41102 of this title shall submit to the Secretary and the 
Chairman of the National Transportation Safety Board a plan for 
addressing the needs of the families of passengers involved in 
any aircraft accident involving an aircraft of the air carrier 
and resulting in a major loss of life.
  (b) Contents of plans.--A plan to be submitted by an air 
carrier under subsection (a) shall include, at a minimum, the 
following:
          (1) A plan for publicizing a reliable, toll-free 
        telephone number, and for providing staff, to handle 
        calls from the families of the passengers.
          (2) A process for notifying the families of the 
        passengers, before providing any public notice of the 
        names of the passengers, either by utilizing the 
        services of the organization designated for the 
        accident under section 1136(a)(2) of this title or the 
        services of other suitably trained individuals.
          (3) An assurance that the notice described in 
        paragraph (2) will be provided to the family of a 
        passenger as soon as the air carrier has verified that 
        the passenger was aboard the aircraft (whether or not 
        the names of all of the passengers have been verified) 
        and, to the extent practicable, in person.
          (4) An assurance that the air carrier will provide to 
        the director of family support services designated for 
        the accident under section 1136(a)(1) of this title, 
        and to the organization designated for the accident 
        under section 1136(a)(2) of this title, immediately 
        upon request, a list (which is based on the best 
        available information at the time of the request) of 
        the names of the passengers aboard the aircraft 
        (whether or not such names have been verified), and 
        will periodically update the list.
          (5) An assurance that the family of each passenger 
        will be consulted about the disposition of all remains 
        and personal effects of the passenger within the 
        control of the air carrier.
          (6) An assurance that if requested by the family of a 
        passenger, any possession of the passenger within the 
        control of the air carrier (regardless of its 
        condition) will be returned to the family unless the 
        possession is needed for the accident investigation or 
        any criminal investigation.
          (7) An assurance that any unclaimed possession of a 
        passenger within the control of the air carrier will be 
        retained by the air carrier for at least 18 [months.] 
        months and that, prior to destruction of unclaimed 
        possessions, a reasonable attempt will be made to 
        notify the family of each passenger within 60 days of 
        any planned destruction date.
          (8) An assurance that the family of each passenger 
        will be consulted about construction by the air carrier 
        of any monument to the passengers, including any 
        inscription on the monument.
          (9) An assurance that the treatment of the families 
        of nonrevenue passengers (and any other victim of the 
        accident) will be the same as the treatment of the 
        families of revenue passengers.
          (10) An assurance that the air carrier will work with 
        any organization designated under section 1136(a)(2) of 
        this title on an ongoing basis to ensure that families 
        of passengers receive an appropriate level of services 
        and assistance following each accident.
          (11) An assurance that the air carrier will provide 
        reasonable compensation to any organization designated 
        under section 1136(a)(2) of this title for services 
        provided by the organization.
          (12) An assurance that the air carrier will assist 
        the family of a passenger in traveling to the location 
        of the accident and provide for the physical care of 
        the family while the family is staying at such 
        location.
          (13) An assurance that the air carrier will commit 
        sufficient resources to carry out the plan.
          (14) An assurance that, upon request of the family of 
        a passenger, the air carrier will inform the family of 
        whether the passenger's name appeared on a preliminary 
        passenger manifest for the flight involved in the 
        accident.
          (15) An assurance that the air carrier will provide 
        adequate training to the employees and agents of the 
        carrier to meet the needs of survivors and family 
        members following an accident.
          (16) An assurance that the air carrier, in the event 
        that the air carrier volunteers assistance to United 
        States citizens within the United States with respect 
        to an aircraft accident outside the United States 
        involving major loss of life, will consult with the 
        Board and the Department of State on the provision of 
        the assistance.
          (17)(A) An assurance that, in the case of an accident 
        that results in significant damage to a manmade 
        structure or other property on the ground that is not 
        government-owned, the air carrier will promptly provide 
        notice, in writing, to the extent practicable, directly 
        to the owner of the structure or other property about 
        liability for any property damage and means for 
        obtaining compensation.
          (B) At a minimum, the written notice shall advise an 
        owner (i) to contact the insurer of the property as the 
        authoritative source for information about coverage and 
        compensation; (ii) to not rely on unofficial 
        information offered by air carrier representatives 
        about compensation by the air carrier for accident-site 
        property damage; and (iii) to obtain photographic or 
        other detailed evidence of property damage as soon as 
        possible after the accident, consistent with 
        restrictions on access to the accident site.
          (18) An assurance that, in the case of an accident in 
        which the National Transportation Safety Board conducts 
        a public hearing or comparable proceeding at a location 
        greater than 80 miles from the accident site, the air 
        carrier will ensure that the proceeding is made 
        available simultaneously by electronic means at a 
        location open to the public at both the origin city and 
        destination city of the air carrier's flight if that 
        city is located in the United States.
  (c) Certificate requirement.--The Secretary may not approve 
an application for a certificate of public convenience and 
necessity under section 41102 of this title unless the 
applicant has included as part of such application a plan that 
meets the requirements of subsection (b).
  (d) Limitation on liability.--An air carrier shall not be 
liable for damages in any action brought in a Federal or State 
court arising out of the performance of the air carrier in 
preparing or providing a passenger list, or in providing 
information concerning a preliminary passenger manifest, 
pursuant to a plan submitted by the air carrier under 
subsection (b), unless such liability was caused by conduct of 
the air carrier which was grossly negligent or which 
constituted intentional misconduct.
  (e) Aircraft accident and passenger defined.--In this 
section, the terms ``aircraft accident'' and ``passenger'' have 
the meanings such terms have in section 1136 of this title.
  (f) Statutory construction.--Nothing in this section may be 
construed as limiting the actions that an air carrier may take, 
or the obligations that an air carrier may have, in providing 
assistance to the families of passengers involved in an 
aircraft accident.

                CHAPTER 413. FOREIGN AIR TRANSPORTATION

41313. Plans to address needs of families of passengers involved in 
                    foreign air carrier accidents

  (a) Definitions.--In this section, the following definitions 
apply:
          (1) Aircraft accident.--The term ``aircraft 
        accident'' means any aviation disaster, regardless of 
        its cause or suspected cause, that occurs within the 
        United States; and
          (2) Passenger.--The term ``passenger'' has the 
        meaning given such term by section 1136.
  (b) Submission of plans.--A foreign air carrier providing 
foreign air transportation under this chapter shall transmit to 
the Secretary of Transportation and the Chairman of the 
National Transportation Safety Board a plan for addressing the 
needs of the families of passengers involved in an aircraft 
accident that involves an aircraft under the control of the 
foreign air carrier and results in a major loss of life.
  (c) Contents of plans.--To the extent permitted by foreign 
law which was in effect on the date of the enactment of this 
section, a plan submitted by a foreign air carrier under 
subsection (b) shall include the following:
          (1) Telephone number.--A plan for publicizing a 
        reliable, toll-free telephone number and staff to take 
        calls to such number from families of passengers 
        involved in an aircraft accident that involves an 
        aircraft under the control of the foreign air carrier 
        and results in a significant loss of life.
          (2) Notification of families.--A process for 
        notifying, in person to the extent practicable, the 
        families of passengers involved in an aircraft accident 
        that involves an aircraft under the control of the 
        foreign air carrier and results in a significant loss 
        of life before providing any public notice of the names 
        of such passengers. Such notice shall be provided by 
        using the services of--
                  (A) the organization designated for the 
                accident under section 1136(a)(2); or
                  (B) other suitably trained individuals.
          (3) Notice provided as soon as possible.--An 
        assurance that the notice required by paragraph (2) 
        shall be provided as soon as practicable after the 
        foreign air carrier has verified the identity of a 
        passenger on the foreign aircraft, whether or not the 
        names of all of the passengers have been verified.
          (4) List of passengers.--An assurance that the 
        foreign air carrier shall provide, immediately upon 
        request, and update a list (based on the best available 
        information at the time of the request) of the names of 
        the passengers aboard the aircraft (whether or not such 
        names have been verified), to--
                  (A) the director of family support services 
                designated for the accident under section 
                1136(a)(1); and
                  (B) the organization designated for the 
                accident under section 1136(a)(2).
          (5) Consultation regarding disposition of remains and 
        effects.--An assurance that the family of each 
        passenger will be consulted about the disposition of 
        any remains and personal effects of the passenger that 
        are within the control of the foreign air carrier.
          (6) Return of possessions.--An assurance that, if 
        requested by the family of a passenger, any possession 
        (regardless of its condition) of that passenger that is 
        within the control of the foreign air carrier will be 
        returned to the family unless the possession is needed 
        for the accident investigation or a criminal 
        investigation.
          (7) Unclaimed possessions retained.--An assurance 
        that any unclaimed possession of a passenger within the 
        control of the foreign air carrier will be retained by 
        the foreign air carrier for not less than 18 months 
        after the date of the [accident.] accident and that, 
        prior to destruction of unclaimed possessions, a 
        reasonable attempt will be made to notify the family of 
        each passenger within 60 days of any planned 
        destruction date.
          (8) Monuments.--An assurance that the family of each 
        passenger will be consulted about construction by the 
        foreign air carrier of any monument to the passengers 
        built in the United States, including any inscription 
        on the monument.
          (9) Equal treatment of passengers.--An assurance that 
        the treatment of the families of nonrevenue passengers 
        will be the same as the treatment of the families of 
        revenue passengers.
          (10) Service and assistance to families of 
        passengers.--An assurance that the foreign air carrier 
        will work with any organization designated under 
        section 1136(a)(2) on an ongoing basis to ensure that 
        families of passengers receive an appropriate level of 
        services and assistance following an accident.
          (11) Compensation to service organizations.--An 
        assurance that the foreign air carrier will provide 
        reasonable compensation to any organization designated 
        under section 1136(a)(2) for services and assistance 
        provided by the organization.
          (12) Travel and care expenses.--An assurance that the 
        foreign air carrier will assist the family of any 
        passenger in traveling to the location of the accident 
        and provide for the physical care of the family while 
        the family is staying at such location.
          (13) Resources for plan.--An assurance that the 
        foreign air carrier will commit sufficient resources to 
        carry out the plan.
          (14) Substitute measures.--If a foreign air carrier 
        does not wish to comply with paragraph (10), (11), or 
        (12), a description of proposed adequate substitute 
        measures for the requirements of each paragraph with 
        which the foreign air carrier does not wish to comply.
          (15) Training of employees and agents.--An assurance 
        that the foreign air carrier will provide adequate 
        training to the employees and agents of the carrier to 
        meet the needs of survivors and family members 
        following an accident.
          (16) Consultation on carrier response not covered by 
        plan.--An assurance that the foreign air carrier, in 
        the event that the foreign air carrier volunteers 
        assistance to United States citizens within the United 
        States with respect to an aircraft accident outside the 
        United States involving major loss of life, the foreign 
        air carrier will consult with the Board and the 
        Department of State on the provision of the assistance.
          (17) Notice concerning liability for manmade 
        structures.--
                  (A) In general.--An assurance that, in the 
                case of an accident that results in significant 
                damage to a manmade structure or other property 
                on the ground that is not government-owned, the 
                foreign air carrier will promptly provide 
                notice, in writing, to the extent practicable, 
                directly to the owner of the structure or other 
                property about liability for any property 
                damage and means for obtaining compensation.
                  (B) Minimum contents.--At a minimum, the 
                written notice shall advise an owner (i) to 
                contact the insurer of the property as the 
                authoritative source for information about 
                coverage and compensation; (ii) to not rely on 
                unofficial information offered by foreign air 
                carrier representatives about compensation by 
                the foreign air carrier for accident-site 
                property damage; and (iii) to obtain 
                photographic or other detailed evidence of 
                property damage as soon as possible after the 
                accident, consistent with restrictions on 
                access to the accident site.
          (18) Simultaneous electronic transmission of NTSB 
        hearing.--An assurance that, in the case of an accident 
        in which the National Transportation Safety Board 
        conducts a public hearing or comparable proceeding at a 
        location greater than 80 miles from the accident site, 
        the foreign air carrier will ensure that the proceeding 
        is made available simultaneously by electronic means at 
        a location open to the public at both the origin city 
        and destination city of the foreign air carrier's 
        flight if that city is located in the United States.
  (d) Permit and exemption requirement.--The Secretary shall 
not approve an application for a permit under section 41302 
unless the applicant has included as part of the application or 
request for exemption a plan that meets the requirements of 
subsection (c).
  (e) Limitation on liability.--A foreign air carrier shall not 
be liable for damages in any action brought in a Federal or 
State court arising out of the performance of the foreign air 
carrier in preparing or providing a passenger list pursuant to 
a plan submitted by the foreign air carrier under subsection 
(c), unless the liability was caused by conduct of the foreign 
air carrier which was grossly negligent or which constituted 
intentional misconduct.