[Congressional Record Volume 144, Number 128 (Wednesday, September 23, 1998)]
[Senate]
[Pages S10823-S10825]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 WENDELL H. FORD NATIONAL AIR TRANSPORTATION SYSTEM IMPROVEMENT ACT OF 
                                  1998

  The Senate continued with the consideration of the bill.
  Mr. McCAIN. I yield to Senator Roth to offer an amendment.
  The PRESIDING OFFICER. The Senator from Delaware.


                           Amendment No. 3621

   (Purpose: To extend the Airport and Airway Trust Fund expenditure 
                               authority)

  Mr. ROTH. Mr. President, I send an amendment to the desk on behalf of 
Senator Moynihan and myself.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Delaware [Mr. Roth], for himself and Mr. 
     Moynihan, proposes an amendment numbered 3621.

  Mr. ROTH. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       At the end of the bill add the following:

   TITLE IV--EXTENSION OF AIRPORT AND AIRWAY TRUST FUND EXPENDITURE 
                               AUTHORITY

     SEC. 801. EXTENSION OF EXPENDITURE AUTHORITY.

       (a) In General.--Paragraph (1) of section 9502(d) of the 
     Internal Revenue Code of 1986 (relating to expenditures from 
     Airport and Airway Trust Fund) is amended--
       (1) by striking ``October 1, 1998'' and inserting ``October 
     1, 2000''; and
       (2) by inserting before the semicolon at the end of 
     subparagraph (A) the following ``or the Wendell H. Ford 
     National Air Transportation System Improvement Act of 1998''.
       (b) Limitation on Expenditure Authority.--Section 9502 of 
     such Code is amended by adding at the end the following new 
     subsection:
       ``(f) Limitation on Transfers to Trust Fund.--
       ``(1) In general.--Except as provided in paragraph (2), no 
     amount may be appropriated or credited to the Airport and 
     Airway Trust Fund on and after the date of any expenditure 
     from the Airport and Airway Trust Fund which is not permitted 
     by this section. The determination of whether an expenditure 
     is so permitted shall be made without regard to--
       ``(A) any provision of law which is not contained or 
     referenced in this title or in a revenue Act; and
       ``(B) whether such provision of law is a subsequently 
     enacted provision or directly or indirectly seeks to waive 
     the application of this subsection.
       ``(2) Exception for prior obligations.--Paragraph (1) shall 
     not apply to any expenditure to liquidate any contract 
     entered into (or for any amount otherwise obligated) before 
     October 1, 2000, in accordance with the provisions of this 
     section.''.

  Mr. ROTH. Mr. President, this amendment contains the necessary 
conforming changes to the Tax Code required by this reauthorization 
bill. This amendment does not affect Federal revenues. Therefore, this 
bill remains a nonrevenue bill. This amendment will allow expenditures 
from the Airport and Airway Trust Fund to occur as authorized by the 
underlying legislation relating to airport construction, maintenance 
and technology.
  It will also help ensure our air traffic control system continues to 
provide safe and efficient services.
  It is my understanding that this amendment is acceptable to both 
sides of the political aisle. At the appropriate moment, I will urge 
its adoption.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  Mr. McCAIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I thank the distinguished chairman of the 
Finance Committee. As always, he has been extremely cooperative and 
helpful as we have this kind of legislation out of the Commerce 
Committee, which sometimes has tax implications. I am very grateful for 
the continued cooperation and effort to not encroach on the 
jurisdiction of the Finance Committee and also to make sure that their 
views and their authority are well recognized.
  The crucial programs in this legislation are directly dependent upon 
the ability of the FAA to spend moneys out of the aviation trust fund, 
and the trust fund itself is supported by revenues from the aviation 
excise taxes which are paid by all air travelers.
  I thank Senator Roth for his cooperation in our effort to keep 
necessary funds flowing to aviation programs. His amendment will help 
keep the FAA on sound financial footing.
  He and his staff have been very helpful in our efforts on this bill. 
I want to clarify with the chairman that this amendment merely 
authorizes expenditures from the trust fund for 2 years and prevents 
expenditures from the trust fund without an authorization in place?
  Mr. ROTH. Mr. President, I say to my distinguished colleague, that is 
correct; that is the intent of the amendment.
  Mr. McCAIN. Mr. President, I am not aware of any objection. In fact, 
I support the amendment. I will urge adoption of the amendment after 
the Senator from Kentucky speaks.

[[Page S10824]]

  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. FORD. I thank the Chair. There is no objection to the 
distinguished Senator's amendment on this side.
  Mr. ROTH. I urge adoption of the amendment.
  The PRESIDING OFFICER. Is there objection? Without objection, the 
amendment is agreed to.
  The amendment (No. 3621) was agreed to.
  Mr. McCAIN. Mr. President, I move to reconsider the vote by which the 
amendment was agreed to.
  Mr. ROTH. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                         Privilege of the Floor

  Mr. FORD. Mr. President, I ask unanimous consent that Dan Alpert and 
Walter Dunn, fellows in the office of Senator Bingaman, be granted the 
privilege of the floor during consideration of S. 2279.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. INHOFE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Oklahoma.


                           Amendment No. 3620

 (Purpose: 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)

  Mr. INHOFE. Mr. President, I have an amendment at the desk, and I ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Oklahoma [Mr. Inhofe] proposes an 
     amendment numbered 3620.

  Mr. INHOFE. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       At the appropriate place, insert the following:

     SEC. __. AMENDMENTS, MODIFICATIONS, SUSPENSIONS, AND 
                   REVOCATIONS OF CERTIFICATES.

       Section 44709 of title 49, United States Code, is amended--
       (1) in subsection (e)--
       (A) by striking ``When'' and inserting ``(1) Except as 
     provided in paragraph (2), if''; and
       (B) by striking ``However, if'' and all that follows 
     through the end of the subsection and inserting the 
     following:
       ``(2) If the Administrator determines, in the order, that 
     an emergency exists and safety in air commerce or air 
     transportation requires the order to be effective 
     immediately--
       ``(A) subject to subparagraph (B), the order shall be in 
     effect unless the Administrator is not able to prove to the 
     Board, upon an inquiry of the Board, the existence of an 
     emergency that requires the immediate application of the 
     order in the interest of safety in air commerce and air 
     transportation; and
       ``(B) the Board shall--
       ``(i) not later than 5 days after the filing of an appeal 
     under paragraph (1), make a disposition concerning the issues 
     of the appeal that are related to the existence of an 
     emergency referred to in subparagraph (A); and
       ``(ii) not later than 60 days after the filing of an appeal 
     under paragraph (1), make a final disposition of the appeal.
       ``(3) If the Administrator determines, in the order, the 
     existence of an emergency described in paragraph (2)(A), the 
     appellant may request a hearing by the Board on the issues of 
     the appeal that are related to the existence of the 
     emergency. Such request shall be made not later than 48 hours 
     after the issuance of the order. If an appellant requests a 
     hearing under this paragraph, The Board shall hold the 
     hearing not later than 48 hours after receiving that 
     request.''; and
       (2) in subsection (f), by inserting ``by further order'' 
     after ``the Administrator decides''.

  Mr. INHOFE. Mr. President, this amendment is one that should not be 
controversial. I can recall as recently as the Oshkosh meeting this 
last August where they voted--and we are talking about 250,000 people 
who were involved--to say this is the No. 1 issue for general aviation 
in America this entire year and perhaps for several years.
  It has to do with a process that is very similar to something we went 
through a few years ago. When the FAA exercises its power to invoke an 
emergency revocation of a license, they can do so for an indefinite 
period of time and that person will lose that license. In many cases, 
it may be this person's only way of making a living.
  We have worked for several years to come up with some type of a 
compromise that will allow an individual to recover his license in the 
event that it is shown there is nothing dangerous in the way that 
individual had been flying. It is very unfortunate that in any 
bureaucracy, there are a few people who will occasionally do something 
that is not justified.
  I share with you, Mr. President, a case of an individual named Ted 
Stewart who had been employed by American Airlines as a pilot for more 
than 12 years and presently serves as a Boeing 767 captain. No 
complaints had ever been registered against him or his flying.
  In January of 1995, the FAA suspended Mr. Stewart's examining 
authority. And the reason? Possibly improper issuing of ratings. He 
complied with the FAA request that he provide log books and/or other 
reliable records for inspections. On May 16, 1995, an emergency 
revocation was issued, and he lost his airman certificates.
  June 19, 1995, the National Transportation Safety Board 
Administrative Law Judge Mullins ruled in Mr. Stewart's favor on all 
counts. In July of 1995, the full NTSB upheld Judge Mullins' initial 
decision. All pilot certificates were returned. I point out, this is 
almost 2 months after the revocation. In January of 1996, he was 
awarded approximately 60 percent of the money spent to defend himself. 
The FAA appealed the ruling and it is still pending before the full 
NTSB.
  What I am getting at is, we have case after case where individuals 
have lost their ability to make their living for their families when 
there was not any type of an emergency, there was not any type of a 
hazard in their performance in terms of their acting as a pilot.
  What we are trying to do is similar to what we did successfully a few 
years ago under the civil penalties provision, and that is, insert into 
the process an unbiased source that will be able to participate in the 
process. In the case of civil penalties, we had the NTSB to hear the 
cases after they have been ruled on by the FAA. This has been working 
very well since that time.
  My amendment, as far as it addresses the emergency revocation, 
addresses the problem prudently by providing an airman--that is the 
pilot--48 hours after receiving an emergency revocation order the 
opportunity to request a hearing before the NTSB on the emergency 
nature of the revocation. This is not on the offense, this is on the 
emergency nature as to whether or not this would be an emergency. The 
NTSB then has 48 hours to hear the arguments. Within 5 days of the 
initial request, the NTSB must decide if a true emergency exists. 
During this time, the emergency revocation remains in effect.
  In other words, the certificate holder loses use of his certificate 
for a maximum of 7 days. However, should the NTSB decide an emergency 
does not exist, then the certificate will be returned to the 
certificate holder, and he can continue to use it while the FAA pursues 
their revocation case against him.
  Keep in mind, no emergency exists, nothing is done to impose a hazard 
on himself or the public.
  If the NTSB decides that an emergency does exist, then emergency 
revocation remains in effect and the certificate holder cannot use his 
certificate while the case is adjudicated. That would revert back to 
the way the law is today. That individual would not be able to fly. So 
all we are talking about is whether or not there is an emergency nature 
in this case.
  Please 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 can ground unsafe airmen or other 
certificate holders. However, I also believe that the FAA must be 
judicious in its use of the extraordinary power.
  The FAA will argue that because emergency certificate actions are 
only a small percentage of overall certificate actions, there is no 
reason for this concern. However, review of recent emergency cases 
clearly demonstrates a pattern by which the FAA uses their emergency 
powers far more frequently than the circumstances warrant.
  For instance, of the emergency revocation orders issued during fiscal 
year 1990 through 1997, 50 percent occurred 4 months to 2 years after 
the violation occurred. In only 4 percent of the cases was the 
emergency revocation issued

[[Page S10825]]

within 10 days or less of the actual violation. In fact, the median 
time lapse between the violation and the emergency order was a little 
over 4 months. That is 132 days, Mr. President. I suggest to you, how 
can that be considered an emergency if nothing happened until 132 days 
after the alleged violation?
  I think clearly at issue is what constitutes an emergency. Simply 
defined, an emergency is ``an unexpected situation or sudden occurrence 
of a serious and urgent nature that demands immediate action.'' Yet, as 
discussed above, the ``urgent nature'' of the revocation which 
``demands immediate action'' has more often than not occurred several 
months previously.
  There are far too many cases where the FAA unfairly uses this 
necessary power to prematurely revoke certificates when the 
circumstances do not support such drastic action.
  Mr. President, I have other cases that I could drag out here and talk 
about, such as the case of Bob Hoover. I have had the privilege of 
flying in airshows with Bob Hoover for over 30 years. Bob Hoover--
probably if you were to ask anyone in the aviation community who the 
best pilot in America is, they would probably say Bob Hoover. Yet he 
was the victim of the emergency revocation. We had to go to bat for 
him, and we had literally thousands of letters from all over America 
coming to the aid of Bob Hoover because everybody knew there is nothing 
wrong and nothing of an emergency nature to the revocation of his 
ability to fly.
  So, Mr. President, I feel that this being the No. 1 concern and issue 
of general aviation today--it is a sense of fairness issue, something 
that has worked very well in the case of civil penalties--it is one 
that I feel should be changed in the FAA regulations.
  Mr. President, I yield the floor.
  Mr. GRAMS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. GRAMS. Mr. President, I ask unanimous consent I be allowed to 
speak as in morning business for up to 5 minutes.
  The PRESIDING OFFICER. Is there objection?
  Mr. FORD. Mr. President, I do not mean to end this, but we are 
getting to the point where we have amendments up. And apparently no one 
wants to vote tonight, but we would like to get our amendments up. And 
Senator Akaka has remarks as it relates to the legislation itself. I do 
not want to prevent----
  Mr. GRAMS. This will be very brief.
  Mr. FORD. Fine.
  Mr. GRAMS. I thank the Senator from Hawaii. I did talk to him and ask 
if it was all right.
  Mr. FORD. We are trying to move this legislation forward. And I did 
not want to cut the Senator from Oklahoma off either.
  The PRESIDING OFFICER. Without objection, the Senator from Minnesota 
is recognized as in morning business.
  Mr. GRAMS. Thank you, and I again thank the Senator from Hawaii for 
allowing me to make a brief statement.

                          ____________________