[Congressional Record Volume 140, Number 134 (Thursday, September 22, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: September 22, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
              REGULATORY RELAY LAP NO. 3--ROOFING INDUSTRY

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
February 11, 1994, and June 10, 1994, the gentleman from Texas [Mr. 
Delay] is recognized for 60 minutes as the designee of the minority 
leader.
  Mr. DeLay. Mr. Speaker, I will not take the whole special order. I 
know the staff has worked long and hard today, and they are anxious to 
get home to their families. But I had to come over to the floor to talk 
about something that is really important, and we started another leg 
today of our regulatory relay.
  Mr. Speaker, the importance of small businesses when it comes to 
stimulating job creation and economic growth seems to be pretty well 
understood. Unfortunately, however, the actions of the current 
administration run completely counter to this knowledge, and instead 
are strangling the small businesses in this country. President Clinton 
has not only raised taxes, he also imposed new mandates through the 
Family and Medical Leave Act and has fought for health care package 
that without a doubt would shut down some of these small businesses.
  Furthermore, little has been said about one of the biggest obstacles 
small businesses face to economic growth--the problem of 
overregulation. Over the last 4 years, the regulatory burden has grown 
tremendously, and as a result the private sector has lost nearly 2 
million jobs since early 1990. Federal regulatory costs are estimated--
conservatively--to be about $600 billion annually. This translates into 
$2,500 for every man, woman, and child in America. Much of this cost is 
so hidden that it doesn't show up on any sales or paycheck receipts.
  And regulations don't only cost money--they also cost time. The chief 
paperwork manager at the Interior Department has estimated that 
Americans spend about 12 billion hours a year--48 hours per capita--
simply dealing with Federal forms. Imagine the productivity that is 
lost as a result of this burden.
  As chairman of the Republican Research Committee's Task Force on 
Competitiveness, I have tried to promote an awareness of the problem of 
overregulation. This monrning I held a press conference to run a third 
lap of the Republican Regulatory Relay. Created in 1992 in conjunction 
with President Bush's moratorium on new regulations, the regulatory 
relay was instituted to fight the regulatory bureaucracy and highlight 
the barrages of unnecessary and ill-conceived regulations that are 
forced down the throats of American businesses and American consumers.
  This year the relay has focused on particular industries to highlight 
the regulatory burden carried by that particular trade. The first 
industry featured was the dry cleaning industry in May, and the second 
was the restaurant industry in July. This month we are concentrating on 
the roofing industry; I'd like to commend the National Roofing 
Contractors Association for all of its hard work on regulatory reform 
throughout the years.
  In fact, 2 years ago, the president of NRCA wrote an article for the 
Wall Street Journal entitled ``So You Want to Get Your Roof Fixed,'' 
which details what a typical roofer has to go through to complete a 
simply roof repair. The number of rules and regulations a roofer must 
comply with is staggering. And frighteningly, very little has changed 
since then. If anything, things have gotten worse. I would like to 
submit a copy of that article for the Congressional Record so that 
everyone can get an idea of what roofing entails.
  The article follows:

              [From the Wall Street Journal, Feb. 4, 1992]

                So You Want To Get Your Roof Fixed . . .

                          (By Richard Rosenow)

       Suppose you own a roofing business, and one morning you get 
     a call from your neighbor, whose garage roof is leaking. He 
     tells you that the roof is asphalt-based, and you agree to 
     send a repair crew to try to fix it. In order to fully comply 
     with federal regulations that are in effect today, you would 
     have to:
       First examine the roof to determine whether asbestos is 
     present. There is a good chance that an asphalt roof will at 
     least include asbestos-containing base flashings and cements; 
     if they do, Environmental Protection Agency regulations will 
     apply, and Occupational Safety and Health Agency regulations 
     may apply.
       It is very likely that you won't know from a visual 
     examination whether asbestos is present. In that case, you 
     will have to cut a sample from the roof, and patch it to 
     avoid leaks at the point of the sample cut. You will then 
     send the sample, after you have bagged it properly, to an 
     accredited laboratory, and delay your repair work until the 
     sample is analyzed. (In some states, only a certified 
     abatement contractor is allowed to make this test cut.)
       If you discover that asbestos is contained in the roof, you 
     must:
       Notify the owner (your neighbor) in writing;
       Notify the EPA Regional Office (10 days prior to beginning 
     work, which will mean your neighbor's roof will continue to 
     leak);
       Be sure that at least one person on your repair crew is 
     trained to satisfy EPA requirements; and
       Conduct air monitoring on the job, once you are able to 
     start work, to determine whether emissions of asbestos will 
     exceed OSHA's action level. You can't do this, of course, 
     until the 10-day EPA notification period has passed.
       Once you begin any repair work, you will have to 
     ``adequately wet'' the materials. EPA defines this as 
     ``thoroughly penetrating'' the asbestos-containing material, 
     which is an interesting concept for a waterproof material 
     like asphalt. EPA also stipulates that there be no ``visible 
     emissions'' on the job, even if you can demonstrate that the 
     emissions contain no asbestos fibers.
       You will then have to vacuum the dust generated by any 
     ``cutting'' that you do, put it in double bags, and take it 
     to an approved landfill.
       You will also be responsible for prohibiting smoking on the 
     job site, and are subject to fine if one of your employees 
     lights up.
       You will probably wonder why your neighbor will be asked to 
     absorb all of the costs associated with these steps, since 
     hundreds of test samples have shown no asbestos exposures 
     above acceptable limits in roofing operations.
       You must ensure that your crew is trained about any 
     hazardous materials that they may encounter. (These will 
     include the gasoline you use to power the pump on your 
     roofing kettle.) You will also have to be sure that copies of 
     the appropriate Material Safety Data Sheets are present at 
     the work site, and that all containers are properly labeled.
       Your crew must also be thoroughly trained in handling these 
     materials. This will be determined not by what steps you have 
     taken to train them, but by what your employees tell the OSHA 
     inspector who asks them what they have been taught.
       Because you are transporting asphalt at a temperature above 
     212 degrees, so that your crew won't have to wait two or 
     three hours at your neighbor's home for the asphalt to heat, 
     you must:
       Mark the side of your roofing kettle with a sticker that 
     says ``HOT'' in capital letters;
       complete shipping papers before the truck leaves your yard;
       have emergency response procedures developed in the event 
     the kettle should turn over en route to your neighbor's home;
       be sure that your driver has been drug-tested, and has a 
     commercial driver's license;
       be sure that the driver completes his log sheets for the 
     day, and stops 25 miles after he leaves your yard to see if 
     the load has shifted;
       be sure that your kettle has a hazardous material placard, 
     in addition to the ``HOT'' sticker mentioned above.
       Because your vehicle is being driven for work-related 
     matters, you must be sure that the driver wears his seat 
     belt, and has received driver training. If he does not wear 
     his seat belt, you, of course, will be fined.
       Assuming you have met other OSHA safety standards, and are 
     satisfied you will be in compliance with local and state 
     regulations, it is now safe for you to begin. Your most 
     dangerous act, however, is yet to come; presenting your 
     neighbor with his bill, and explaining why your costs have 
     increased so dramatically in the three years since these 
     regulations have been promulgated.

  Although regulations are often well-intended, in their application 
too many are overly oppressive, unreasonable, and even irrational. I'd 
like to give you a few examples:
  First, last May, Competition Roofing Inc., of Houston, TX, was 
visited by an OSHA inspector and was cited 23 times for a grand total 
of $13,200 in fines. Its violations? A cut in the outer insulation of 
an extension cord that had been taken out of service racked up three 
citations, while a bent rung on the bottom of a ladder was worth four. 
In addition, a $400 fine was issued for a splintered handle on a broken 
shovel that had been placed in the back of a truck after it had been 
broken.
  Second, in Fresno, CA, Fryer Roofing Co. was cited by the State OSHA 
office for two alleged violations. To quote directly from the president 
of the company:

       The first citation was issued for not having a fire 
     extinguisher at the kettle. The foreman explained that on 
     three consecutive days our fire extinguisher had been stolen 
     by transients walking through the alley. Rather than risk 
     losing another, the foreman chose to place the extinguisher 
     at the top of the ladder near the roof's edge, so that it was 
     readily available in case of an emergency.
       The inspector disagreed with the decision and suggested 
     that it should have been hidden from view under paper 
     wrappers (asphalt cartons) beneath the kettle. Obviously, it 
     would have been impossible to reach the extinguisher if the 
     kettle had caught on fire.
       The second citation was for the foreman not wearing a long-
     sleeve shirt. In fact, he was wearing a long-sleeve shirt, 
     but chose to roll it up two cuff widths between his wrist and 
     elbow.

  Third, an OSHA compliance officer visited a job site and happened to 
inspect a pickup truck in the parking lot. Despite the fact that the 
truck was the personal property of an employee on the job, the OSHA 
inspector felt that a search was warranted. He found a small propane 
welding torch in the truck that the employee used for odd jobs on his 
own time. Unfortunately, the label had fallen off of the torch, so 
the inspector cited the employer for failure to properly label the 
torch.

  Fourth, the day after the installation of a new roofing system, two 
workers were doing some detail work at the roof edge to finish a job. 
They were visited by an OSHA compliance officer who, without ever going 
up on the roof, determined that the employer had violated the fall 
prevention standard because there was no warning-line system in place. 
Despite the fact that having a warning-line system would not have made 
any difference in terms of the workers' safety, the OSHA officer issued 
a citation to the employer under the fall prevention standard.
  Fifth, an OSHA inspector was at a site to conduct employee 
interviews, and asked one of the employees, ``Do you have MSDS's?'' The 
employee responded, ``Not me. I'm perfectly healthy.'' Although the 
employer was able to demonstrate that the employee had received 
training on OSHA's Hazard Communication Standard, including training on 
material safety data sheets--forms an employer must fill out describing 
how to handle hazardous substances--the employer was issued a citation 
for failure to conduct appropriate hazard communication training.
  These kinds of situations make me wonder whether the priority for 
regulatory agencies is worker health and safety or to find citations 
and issue fines. To demonstrate how ridiculous some of these 
regulations are, I'd like to read through a list of the National 
Roofing Contractors Association's top 10 favorite roofing regs:

       10. Have repair truck drivers stop to check for shifting 
     loads after driving 25 miles on their way to a job site 30 
     miles away. (DOT Federal Motor Carrier Safety Regulations.) 
     This is vital, especially since roofing repair trucks carry 
     such huge loads of hammers and nails.
       9. Spray water on roof while taking it off. (OSHA Final 
     Asbestos Regulations.) As you can imagine, it is very safe to 
     make a slanted roof slippery while you are standing on it.
       8. Require fire evacuation plan for roofing workers. 
     (General OSHA.) It's important to identify which are the fire 
     exits when you're working on a roof.
       7. Fine employer if roofer smokes on the job. (OSHA 
     Respirator Rules.) That's right, it's the employer's fault if 
     a worker breaks the rules.
       6. Fine employer if roofer refuses to wear a hard hat. 
     (OSHA General Construction Standard.) Again, fining the 
     employer is really going to be an incentive for a worker to 
     follow the rules.
       5. Require prevention plan for AIDS exposure in roofing 
     work. (OSHA Bloodborne Pathogen Standard.) As you all know, 
     working on a roof is up there with drug use on the list of 
     activities most likely to spread AIDS.
       4. Train employees on the hazards of exposure to deadly 
     materials like chalk, lumber and dishwashing detergent. (OSHA 
     Hazard Communication Standard.) No further ridicule needed.
       3. Post sign saying respirators are required even when they 
     are not. (OSHA Final Asbestos Regulations) Useful.
       2. Prohibit gum chewing while roofing. (OSHA Final Asbestos 
     Regulations) Everyone knows that these are mutually exclusive 
     activities.
       1. Label roofing kettles ``Hot.'' (DOT Elevated Temperature 
     Materials Rule) It's not enough that anyone within several 
     feet of a roofing kettle will be able to FEEL the heat 
     emanating from the kettle.

  The good news is that some small businesses are rising up to say ``no 
more.'' Last year, the National Roofing Contractors Association sent 
out a survey to all of its members. Entitled the ``Excessive Government 
Regulation Survey,'' it asked respondents to list ``any government-
required activity that [they found] excessive, overly time-consuming, 
overly complicated, impractical, or poorly conceived.'' The survey 
further asked respondents to provide a rough estimate of their 
company's cost to comply with the requirement, as well as to rate each 
regulation on a scale of 1 to 10, with 10 being the most excessive or 
absurd. The respondents were given blank forms to fill out--they were 
not prompted to give responses on any specific regulations, so their 
comments are entirely of their own making.
  The responses received were honest, poignant, and to the point. 
Simply put, the Government is going too far. Many of the Federal 
regulations that exist today are unreasonable, unnecessary, and even 
unbelievable.
  I would like to focus on some of the issues that were raised by the 
respondents of the roofers' survey by reading directly from a few of 
the surveys. I am sure many of you who are listening right now will 
agree with what they have to say.
  Here is a personal example of the excessive compliance enforcement, 
mining safety, and health. The regulation is, all miners are required 
to participate in a miners' safety program. All persons that set foot 
on a mining property are considered miners, no matter what they do.

       What happened? We were installing a new roof on top of a 
     non-functional building at a non-operational mining facility. 
     The Mining Safety Inspector shut down our job. They required 
     our people to receive three days classroom instruction before 
     resuming work, and fined us for noncompliance. Bear in mind, 
     this was a non-operational facility, our people were in no 
     way connected with mining operations on top of a roof. This 
     little fiasco cost us approximately two weeks production, 
     several thousand dollars in wages and instruction, and caused 
     our project to be carried over another year because the delay 
     prevented completion before winter.

  Another writes in and says, on the materials safety data sheets, why 
they were excessive in their regulations: ``Hazardous materials 
certainly need to be designated as such, however, MSDS sheets for 
steel, roofing gravel''--that is hazardous material--``nails and 
screws, preformed roof expansion joints, wood, fire extinguishers, 
sand, pop rivets, et cetera, are ridiculous. One of our friends 
recently received a $200 fine for not having MSDS sheets for chalk in 
chalk lines.''
  I could go on and on.

                              {time}  1850

  Compiling real-life stories from people who actually have to deal 
with Federal regulations on a day-to-day basis is the best way to gain 
an understanding of the problems that they face. I hope other 
industries and associations will follow the roofers' examples. It is 
high time that some sense be instilled into this regulatory mess. With 
the assistance and determination of groups such as this one, we might 
soon make some headway. It is particularly timely for us to be 
discussing this topic because next week on September 27 all House 
Republican incumbents and candidates will gather on the steps of the 
Capitol to sign their contract with America. This is a signed contract, 
saying if the American people will just give the Republicans the honor 
of being in the majority next year for the first time in 40 years, they 
will bring to a vote within 100 days 10 bills dealing with important 
issues that have not been openly debated in this House. One of those 
bills includes the regulatory reform package which is the result of 
much work on the part of the team of the members that I chair on the 
research task force on competitiveness. Overregulation stifles job 
creation, efficiency, and innovation. It also raises the cost of living 
to Americans. No wonder Americans today are paying 53 percent, and I 
repeat, Americans today are paying 53 percent of their income to 
government in one form or another. If you take all the tax policy and 
add to that the cost of regulation, 53 percent of American families' 
income goes to the cost of government.
  If Americans are to succeed in today's highly competitive economy, we 
have got to break the chokehold of regulations around the neck of every 
budding entrepreneur and allow them to compete freely.
  Mr. EWING. Would the gentleman yield?
  Mr. DeLAY. I would be glad to yield to my good friend from Illinois, 
the gentleman who is a businessman in his own right and has done some 
incredible work on regulatory flexibility and we appreciate the work 
that the gentleman has done.
  Mr. EWING. I congratulate you for this special order and for all the 
work you have done on trying to fight the problem of too much 
regulation. I think any of us that are out there visiting with 
our constituents knows that excessive regulation ranks very, very high 
in the frustration of our constituents.

  The gentleman has pointed out some excellent examples of regulations 
that do not work. Do you know why we have those?
  Mr. DeLAY. No.
  Mr. EWING. I happen to believe a lot of it is because the bureaucrats 
have no experience in the real world. As you know, I have been working 
on trying to improve the regulatory climate for small business 
particularly with my Reg Flex Act. People that are making these 
regulations have no idea how small business operates. They think that 
every small businessman reads the Federal Register or has somebody 
hired to read the Federal Register so they know these regulations are 
coming up and they can put their testimony into the comment period.
  Does that happen?
  Mr. DeLAY. Not very often. It certainly did not happen in my small 
business. I could not afford even a lawyer to read the Federal Register 
for me, much less read it myself.
  Mr. EWING. You afford a lawyer when they come knocking on your door 
and tell you that you have got a big fine coming or they are going to 
close you down or whatever the reason is because you did not follow a 
regulation you did not know existed.
  I really believe that regulators are good people but I think they are 
totally misguided and they sit in the ivory tours in Washington and 
they make regulations that are supposed to cover businesses in Texas, 
California, Minnesota, Illinois, Rhode Island, across the country. It 
does not work. It does not work at all.
  Mr. DeLAY. It cannot work.
  Mr. EWING. It cannot work. We have to get at that.
  Mr. DeLAY. Tell me, I think the gentleman ought to explain what he is 
attempting to do and has included in the regulatory reform bill that 
will be presented as part of the Contract with America that relates to 
regulatory flexibility. It is a commonsense approach to try to get 
accountability in the regulatory bureaucracy.
  Mr. EWING. Let me explain the background. During the Carter 
administration in 1980, this problem was serious enough that the 
Congress acted. The President signed the law. It was called the 
Regulatory Flexibility Act, designed mostly for small businesses, not 
the multinational corporations that have big staffs, but small 
businesses and local governments, which are also adversely affected by 
regulation. This provided a certain analysis that was to be done on 
every regulation and to see if it was very expensive and very difficult 
for a small business to handle. If it was, they were supposed to look 
for another way to achieve their goal, the regulation. But it said if 
you find there is no adverse effect, this will just disregard this law.
  Well, there was no teeth in the law. As a small businessperson, if 
they put a regulation on me that put me out of business, there was no 
way I could challenge them if they had found that it had no adverse 
effect. So consequently, since 1980, and here we are in 1994, we have a 
bill that looks good but is absolutely worthless.
  Do you know in that bill, there is a provision that every regulation 
must be reviewed at the end of 10 years? We have so many that are 
outdated or should never have been in it. Do you know how many have 
been affected by that part of the law?
  Mr. DeLAY. No. How many?
  Mr. EWING. None.
  Mr. DeLAY. Zero?
  Mr. EWING. Zero.
  Mr. DeLAY. Not one has ever been taken off the books?
  Mr. EWING. It has not been applied. Because there is no way for a 
business or a group of businesses or an association to make the Federal 
Government do it. So very simply, we said that small business will have 
a right to challenge in court the regulators if they do not follow the 
law. Because the original Regulatory Flexibility Act said there shall 
be no judicial review of this. Well, that is like turning the fox loose 
in the chicken house. There is no one to control it.
  Unfortunately, we are at the point now where 250 Members of this body 
signed onto that bill. Even the President and the Vice President have 
said, ``This is important.'' It has been put on a bill in the Senate by 
Senator Wallop. But unfortunately, the bureaucrats have so much power 
that they keep coming to us, ``Would you accept this modifying 
language, this restricting language?'' They are afraid to give American 
business the right to challenge them.
  Senator Wallop and I have both said, ``No.'' We want regulatory 
flexibility with judicial review, nothing less, nothing for the 
bureaucrats to hide behind, no way for them to get out of it and say, 
``You can't challenge us. You didn't file a paper with us during the 
hearing period.''
  Mr. DeLAY. Let us look at that. What the bureaucrats are saying, you 
cannot exercise your rights as a free American to go to the courts, to 
address a grievance because the bureaucrats say that during the 
promulgation of the regulations, you did not as a small businessperson 
come up here or write up here during the comment period, right? Is that 
not what you are saying?
  Mr. EWING. That is right.
  Mr. DeLAY. So if a regulation, and most of us do not know about 
regulations unless you read the Federal Register every day of what is 
going on, it comes a year or so later after it has already been 
implemented, you find out that it has adversely affected you, if you 
did not a year or so before write a letter or come testify, come to 
Washington to testify during the comment period, then you have no 
standing in court?
  Mr. EWING. That is right.
  Congressman DeLay, you have been good enough to visit my hometown, 
which is just a real quiet, county seat town, Pontiac, IL, in rural 
Illinois, surrounded by beautiful farms and small businesspeople.
  Do you think that they have any fathom about the rulemaking process 
in Washington DC? Of course they do not. They just do not. And they 
have no way and no staff to do that for them.
  Mr. DeLAY. I heard there was another proviso that they wanted. They 
wanted you to accept, and I cannot remember the days, and maybe you can 
refresh my memory. If you wanted to bring a grievance to court, you had 
to do it within 60 days after the regulation? Was it 60 days?
  Mr. EWING. Sixty days.
  Mr. DeLAY. Sixty days after the regulation had finally been passed?
  Mr. EWING. Yes. Or after the close of the comment period. You would 
not even know about it yet.
  Mr. DeLAY. You would not even know about the regulation?
  Mr. EWING. No.
  Mr. DeLAY. You probably would not even have received a memo from your 
trade association if you belonged to a trade association or your 
industry.

                              {time}  1900

  But you got a 60-day window and you have to sue within that window or 
you have lost your standing in the courts and lost your freedom as an 
American businessperson.
  Mr. EWING. That is right. And we want to restore that. If we do not 
do that this year, and I think we can still do it this year if this 
Congress will take hold of it, and if they will quit trying to limit it 
through the bureaucracy and let the tail that is down there in those 
beautiful glass and marble buildings along the Mall wag the tail of 
this Congress, we can still give them judicial review. It has been the 
top item at all of the President's small business conferences around 
the country.
  Mr. DeLAY. The gentleman has done incredible work in trying to bring 
some sense to this whole regulation process. Of course, in your 
regulatory reform process we have risk assessment, cost-benefit 
analysis. It only makes common sense if you are going to promulgate a 
regulation you ought to look at what it is going to cost society and 
what kind of benefits you are going to get from that cost.
  We also have a regulatory budget in that bill where we set limits of 
the numbers of regulations that can be issued by the Federal 
Government. Then we start working to take them off, enforce the review 
that the gentleman was talking about, and we have a regulatory bill of 
rights. American citizens should be free from the oppression of a 
Gestapo-like inspector coming, busting into their business, and 
usurping power and abusing you. You have certain rights, and we 
reaffirm those rights in that regulatory reform bill.
  Mr. EWING. I am just operating on such a small part of this, but 
everything the gentleman says is correct. Risk assessment is so 
important. The regulators are so hard up for enforcement that it may be 
2 or 3 years before anybody gets to your door. By that time your fine 
is so high that you might as well just can it.
  But they are also trying to get people to turn in their neighbors. We 
do not want a society where regulations are enforced because the EPA or 
some other agency does not feel like they have the staff by having a 
neighbor turn in a neighbor. We have enough problems in our society 
without that.
  Mr. DeLAY. That is true. Does the gentleman have any more to add, 
because I am going to have to close this special order.
  Mr. EWING. No. I just want to thank the gentleman for allowing me to 
participate. The gentleman is doing a great job on the regulatory 
reform, and I look forward to working with the gentleman.
  Mr. DeLAY. I thank the gentleman for taking his valuable time. It is 
7 o'clock in the evening, and it shows that the gentleman from Illinois 
[Mr. Ewing] is a hard-working Congressman and a hard-working Member of 
this body, and we appreciate the effort that he is putting in, not only 
on this issue but many other issues, trying to bring a little sense to 
a Government that is too big, spends too much, and is too intrusive in 
our lives.

                          ____________________