--S.3012--
S.3012
One Hundred First Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday, the twenty-third day
of January,
one thousand nine hundred and ninety
An Act
To amend the Independent Safety Board Act of 1974 to authorize appropriations
for
fiscal years 1991, 1992, and 1993, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SHORT TITLE

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Amendments of 1990'.
AUTHORIZATION OF APPROPRIATIONS

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App. U.S.C. 1907(a)) is amended by adding at the end the following: `There
are authorized to be appropriated for the purposes of this Act not to exceed
$32,000,000 for the fiscal year ending September 30, 1991; $38,600,000 for
the fiscal year ending September 30, 1992; and $38,800,000 for the fiscal year
ending September 30, 1993, such sums to remain available until expended.'.
EXAMINATION AND TESTING

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(49 App. U.S.C. 1903(b)(2)) is amended by inserting `vessel,' immediately
before `vehicle' each place it appears.
(b) Section 304(b)(2) of the Independent Safety Board Act of 1974 (49
App. U.S.C. 1903(b)(2)) is amended by adding at the end the following new
sentences: `The Board shall have sole authority to determine the manner in
which testing will be carried out under this paragraph and under section
701(c) of the Federal Aviation Act of 1958, including determining the persons
who will conduct the test, the type of test which will be conducted, and
the persons who will witness the test. Such determinations are committed
to the discretion of the Board and shall be made on the basis of the needs
of the investigation being conducted by the Board and, where applicable,
the provisions of this paragraph.'.
COCKPIT VOICE RECORDER RECORDINGS AND TRANSCRIPTIONS

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App. U.S.C. 1905) is amended by striking subsection (c) and inserting in
lieu thereof the following:
`(c) PUBLIC DISCLOSURE OF COCKPIT VOICE RECORDER RECORDINGS AND
TRANSCRIPTIONS- (1) Notwithstanding any other provision of law, the Board
shall withhold from public disclosure cockpit voice recorder recordings and
transcriptions, in whole or in part, of oral communications by and between
flight crew members and ground stations, that are associated with accidents
or incidents investigated by the Board.
`(2) Portions of a transcription of oral communications described in
paragraph (1) which the Board determines relevant and pertinent to the
accident or incident under investigation shall be made available to the
public by the Board--
`(A) if the Board conducts a public hearing with respect to such accident
or incident, at the time of such hearing; and
`(B) if the Board does not conduct such a public hearing, at the time when
a majority of other factual reports regarding the accident or incident is
placed in the public docket.
`(3) Nothing in this section shall restrict the Board at any time
from referring to cockpit voice recorder information in making safety
recommendations.
`(d) USE OF COCKPIT VOICE RECORDER RECORDINGS AND TRANSCRIPTIONS IN JUDICIAL
PROCEEDINGS- (1) Except as provided in this subsection, in a judicial
proceeding, there shall not be discovery by a party--
`(A) of portions of cockpit voice recorder transcriptions other than
such portions made available to the public by the Board under subsection
(c)(2); and
`(B) of cockpit voice recorder recordings.
`(2) Subject to paragraph (4), a court may permit discovery of cockpit voice
recorder transcriptions by a party if the court, after an in camera review
of such transcriptions, finds that--
`(A) the portions of the transcriptions made available to the public under
subsection (c) do not provide the party with sufficient information for
the party to receive a fair trial; and
`(B) discovery of additional portions of transcriptions is necessary to
provide the party with sufficient information for the party to receive a
fair trial.
No cockpit voice recorder transcriptions prepared by or under the direction of
the Board, other than portions made available by the Board under subsection
(c), shall be required to be produced for an in camera review, or shall
be subject to discovery, unless the cockpit voice recorder recordings are
not available.
`(3) Subject to paragraph (4), a court may permit discovery of cockpit voice
recorder recordings by a party if the court, after an in camera review of
such recordings, finds that--
`(A) the portions of transcriptions made available to the public under
subsection (c) and to the party through discovery under paragraph (2) do
not provide the party with sufficient information for the party to receive
a fair trial; and
`(B) discovery of cockpit voice recorder recordings is necessary to provide
the party with sufficient information for the party to receive a fair trial.
`(4) If, under paragraph (2) or (3), there is discovery in a judicial
proceeding of a cockpit voice recorder recording or any portion of a cockpit
voice recorder transcription not made available to the public under subsection
(c)(2), the court shall issue a protective order to limit the use of such
recording or portion to the judicial proceeding and to prohibit dissemination
of such recording or portion to any person who does not need access to such
recording or portion for such proceeding.
`(5) A court may permit admission of a cockpit voice recorder recording or any
portion of a cockpit voice recorder transcription not made available to the
public under subsection (c)(2) into evidence in a judicial proceeding, only
if the court places such recording or portion under seal to preclude the use
of such recording or portion for purposes other than for such proceeding.'.
TOXICOLOGICAL TESTING OF TRANSPORTATION DEPARTMENT EMPLOYEES

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agencies, conducts post-accident or post-incident toxicological testing of
an employee of the Department, specimen collection shall be accomplished
as soon as practicable after the accident or incident, and the Department
shall endeavor when feasible to complete such collection within four hours
after the accident or incident.
(b) The head of each agency within the Department of Transportation shall
send to the Office of the Secretary of Transportation a report on the
circumstances concerning the amount of time required to complete specimen
collection related to a toxicological test which is conducted on an employee
within that agency who is reasonably associated with the circumstances of an
accident or incident within the investigative jurisdiction of the National
Transportation Safety Board.
(c) Any failure to comply with the requirements of this section may not
be asserted, by the subject of such testing, as a claim, cause of action,
or defense in any administrative or judicial proceeding.
BOARD ACCESS TO TOXICOLOGICAL TESTING RECORDS

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(49 App. U.S.C. 1903(b)), is amended by redesignating paragraph (11)
as paragraph (12) and by inserting immediately after paragraph (10) the
following new paragraph:
`(11)(A) Notwithstanding section 503(e) of the Act entitled `An Act making
supplemental appropriations for the fiscal year ending September 30, 1987,
and for other purposes', approved July 11, 1987 (5 U.S.C. 7301 note),
the Board is authorized to obtain from the Secretary of Transportation,
by written request, and shall be furnished--
`(i) any report of a confirmed positive toxicological test, verified as
positive by a medical review officer, which is conducted on an employee of
the Department of Transportation, including any of its agencies, pursuant
to post-accident, unsafe practice, or reasonable suspicion toxicological
testing requirements of the Department, when that employee is reasonably
associated with the circumstances of an accident or incident within the
investigative jurisdiction of the Board; and
`(ii) any laboratory record providing documentation that such test is
confirmed positive.
`(B) Except as provided in subparagraph (C), the Board shall maintain in
confidence and exempt from public disclosure in accordance with section
552(b)(3) of title 5, United States Code--
`(i) any laboratory record, made available under subparagraph (A), of a
confirmed and verified toxicological test which reveals medical use of a
drug permitted under applicable regulations; and
`(ii) any medical information provided by the tested employee in connection
with such test or in connection with a review of such test.
`(C) The Board may use such a laboratory record for development of any
evidentiary record in an investigation by the Board of an accident or
incident if--
`(i) the fitness of the employee who is the subject of the toxicological
testing is at issue in the investigation; and
`(ii) the use of that record is necessary in the development of such
evidentiary record.'.
ODOMETER MILEAGE DISCLOSURE

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Savings Act (15  U.S.C. 1988(d)(2)(C)) is amended by striking the third
sentence and inserting in lieu thereof the following: `The rule, consistent
with the purposes of this Act and the need to facilitate enforcement thereof,
shall prescribe that the form be issued by the State to the transferee in
accordance with paragraph (2)(A)(i), shall prescribe that the person granted
such power of attorney shall retain a copy of such power of attorney and shall
submit the original back to the State with a copy of the title showing the
restatement of the mileage, and may prescribe that the State retain the power
of attorney and the copy of the title for an appropriate period or that the
State adopt alternative measures consistent with the purposes of this title,
taking into consideration costs to the State. The rule shall not require that
a vehicle be titled in the State in which the power of attorney was issued.'.
(b) The amendment made by subsection (a) shall be effective on the date of
enactment of this Act and the Secretary of Transportation shall implement
the amended section by promulgating a revision of existing regulations
within six months after such effective date. Such rule shall consider the
need to facilitate normal commercial transactions in the sale or exchange
of motor vehicles.
REPORT ON LOW-LEVEL RADIOACTIVE WASTE TRANSPORTATION

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Secretary of Transportation shall conduct and complete a thorough study
of and prepare a report to Congress on the transportation of low-level
radioactive waste, specifically including--
(1) an evaluation of the feasibility of requiring States that transport waste
to a regional disposal facility established and operated under an interstate
compact pursuant to section 4 of the Low-Level Radioactive Waste Policy Act
(42  U.S.C. 2021d) to use, to the maximum extent practicable, routes which are
within the geographic borders of the States that are parties to the compact;
(2) factual information on the volume of low-level radioactive waste being
shipped currently and estimates of such shipments for the calendar years
1991 through 1995;
(3) a list of the routes proposed to be used for shipment of such waste to
the disposal facilities operated under such an interstate compact;
(4) a review of the process for determining and approving such routes;
(5) a review of the processes for resolving any disputes that may arise,
between States and between Commissions created by such interstate compacts,
regarding such routes; and
(6) identification of the public safety risks associated with possible
accidents in transporting such waste and of the response plans to be employed
in the event of a transportation accident.
intercity rail passenger service

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U.S.C. 562(d)(1)) is amended by adding at the end the following new sentence:
`The Corporation may subsequently convey title or other interest in such
property to a third party, if such reconveyance is found by the Commission
to further the purposes of this Act.'.
(b) The amendment made by subsection (a) shall apply to any proceeding
instituted before, on, or after the date of enactment of this Act
(including any such proceeding pending before any Federal court on such
date of enactment).
COMMUTER RAIL SERVICE

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Passenger Corporation shall not discontinue commuter rail service between
Valparaiso, Indiana and Chicago, Illinois, before May 6, 1991.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.

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Independent Safety Board Act Amendments of 1990

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