[Congressional Record Volume 142, Number 134 (Wednesday, September 25, 1996)]
[Senate]
[Pages S11311-S11312]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

       By Mr. INHOFE:
  S. 2129. A bill to provide for the immediate application of certain 
orders relating to the amendment, modification, suspension, or 
revocation of certificates under chapter 447 of title 49, United States 
Code; to the Committee on Commerce, Science, and Transportation.


                    FAA EMERGENCY REVOCATION POWERS

  Mr. INHOFE. For several months now, I have been working with 
representatives of the aviation community, with which I have been a 
part for just under 40 years, on legislation which will address the 
problem with the Federal Aviation Administration's use of their 
emergency revocation powers. In a revocation action, brought on an 
emergency basis, the airman or other certificate holder loses the use 
of the certificate immediately without any intermediary review or by 
any kind of an impartial party. The result is that the airman is 
grounded. In most cases, that is an airman who worked for some airline, 
and that is his or her only method of making a living.
  Simply put, I believe the FAA unfairly uses this emergency power to 
prematurely revoke certificates when the circumstances do not support 
such drastic action. A more reasonable approach where safety is not an 
issue would be to adjudicate the revocation on a nonemergency basis, 
allowing the certificate holder continued use of his certificate.
  Do not misunderstand: In no way do I want to suggest that the FAA 
should not have emergency revocation powers. I believe it is critical 
to safety that the FAA have the ability to ground unsafe airmen. 
However, I also believe that the FAA must be judicious in its use of 
the extraordinary power. A review of recent emergency cases clearly 
demonstrates a pattern whereby the FAA uses their emergency powers as 
standard procedure rather than extraordinary measures. Perhaps the most 
visible case has been that of Bob Hoover.
  Now, Mr. President, I have flown in a lot of air shows over the last 
40 years, and I can tell you right now the one person that you ask 
anyone who has a background like mine, ``Who is the hero within the 
industry,'' it has been Hoover. He is getting up in years but is

[[Page S11312]]

as sharp as he ever was. Something happened to him. He is probably the 
most highly regarded and accomplished aerobatic pilot today. In 1992, 
his medical certificate was revoked based on alleged questions 
regarding his physical condition. After getting a clean bill of health 
from four separate sets of doctors over the continuing objections of 
the Federal air surgeon, who never examined Bob personally, his medical 
certificate was reinstated only after the Administrator, David Hinson, 
intervened.

  I say at this point, I have been a strong supporter of Administrator 
David Hinson. I have often said that he is probably the very best 
appointment that President Clinton has made since he has been 
President. I also say there is not a lot of competition for that title.
  He already has more serious problems coming. His current medical 
certificate expires this coming Monday, September 30, 1996. Unlike most 
airmen, like myself, when mine expires I go down, take a physical that 
lasts approximately 30 minutes, and it is reinstated at that time, 
something that happens every 12 months.
  Bob Hoover's experience is one of many. I have several other examples 
of pilots who had licenses revoked on an emergency basis, such as Ted 
Stewart, who has been an American Airlines pilot--who I know 
personally--has been an American Airlines pilot for 12 years and is 
presently a Boeing 767 captain. Until January 1995, Mr. Stewart had no 
complaints registered against him or his flying. In January 1995, the 
FAA suspended Mr. Stewart's examining authority as part of a larger FAA 
effort to respond to a problem of falsifying records.
  Now, there was never any indication that Mr. Stewart was involved in 
that, but, nonetheless, that was part of the investigation. He was 
exonerated by the full NTSB, National Transportation Safety Board, in 
July 1995. In June 1996, he received a second revocation. One of the 
charges in the second revocation involved falsification of records for 
a flight instructor certificate with a multiengined rating and his air 
transport pilot, ATP, certificate dating back to 1979.
  Like most, I have questioned how an alleged 17\1/2\-year-old 
violation could constitute an emergency, especially since he has not 
been cited for any cause in the intervening years. Nonetheless, the FAA 
vigorously pursued this action. On August 30, 1996, the NTSB issued its 
decision in this second revocation and found in favor of Mr. Stewart.
  A couple of comments in Mr. Stewart's decision bear closer 
examination. First, the board notes that ``the Administrator's loss in 
the earlier case appears to have prompted further investigation of the 
respondent * * *'' I found this rather troubling, that an impartial 
third party appears to be suggesting that the FAA has a vendetta 
against Ted Stewart, which is further emphasized with the footnote in 
which the board notes:

       [We,] of course, [are] not authorized to review the 
     Administrator's exercise of his power to take emergency 
     certificate action . . . We are constrained to register in 
     this matter, however, our opinion that where, as here, no 
     legitimate reason is cited or appears for not 
     consolidating all alleged violations into one proceeding, 
     subjecting an airman in the space of a year to two 
     emergency revocations, and thus to the financial and other 
     burdens associated with an additional 60-day grounding, 
     without prior notice and hearing, constitutes an abuse and 
     unprincipled discharge of an extraordinary power.

  Mr. President, I obviously cannot read the minds of the NTSB, but I 
believe a reasonable person would conclude from these comments that the 
board believes, as I do, that there is an abuse of emergency revocation 
powers by the FAA.
  This is borne out further by the fact that, since 1989, emergency 
cases as a total of all enforcement actions heard by the NTSB have more 
than doubled. In 1989, the NTSB heard 1,107 enforcement cases. Of 
those, 66 were emergency revocation cases, or 5.96 percent. In 1995, 
the NTSB heard 509 total enforcement cases, and of those 160 were 
emergency revocation cases or 31.43 percent. I believe it is clear that 
the FAA has begun to use an exceptional power as a standard practice.
  In response, I am proposing legislation which would establish a 
procedure whereby the FAA must show just cause for bringing an 
emergency revocation action against an airman.
  Not surprisingly, Mr. President, the FAA opposes this language. But 
they also oppose the changes to the civil penalties program where they 
served as judge, jury, and executioner in civil penalty actions against 
airmen. Fortunately, we were able to change that just a couple of years 
ago so that airmen can now appeal a civil penalty case to the NTSB. 
This has worked very well because the NTSB has a clear understanding of 
the issues.
  My proposal allows an airman, within 48 hours of receiving an 
emergency revocation order, to request a hearing before the NTSB on the 
emergency nature of the revocation--not whether or not the revocation 
was justified, but the emergency nature of the revocation. The NTSB 
then has 48 hours to hear the arguments and decide if a true emergency 
exists. During this time, the emergency revocation remains in effect. 
In other words, the airman loses use of his certificate for 4 days. 
However, should the NTSB decide an emergency does not exist, then the 
certificate would be returned to the airman and he could continue to 
use it while the FAA pursued their revocation case against him in a 
normal manner. If the NTSB decides that an emergency does exist, then 
the emergency revocation remains in effect and the airman cannot use 
his certificate until the case is adjudicated.
  This bill is supported by virtually all of the major aviation groups, 
such as the Air Transport Association, the Allied Pilots Association, 
the Aircraft Owners and Pilots Association, the Experimental Aircraft 
Association, the NTSB Bar Association, and many others.
  My intention in introducing this bill today is to get it out so that 
interested groups can look at it and work with me to make changes, if 
that is necessary. I am pleased that Senator McCain, who is the 
chairman of the Aviation Subcommittee of Commerce, has agreed to hold a 
hearing on this in the 105th Congress. In the intervening time, I will 
be working to make sure this issue is fully vetted, and it is my hope 
that we will be able to address this issue very early in the 105th 
Congress.
                                 ______