Congressional Record, Volume 156 Issue 153 (Monday, November 29, 2010)

[Congressional Record Volume 156, Number 153 (Monday, November 29, 2010)]
[House]
[Pages H7628-H7635]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

THE RULE OF LAW: FEDERAL REGULATIONS

The SPEAKER pro tempore. Under the Speaker's announced policy of
January 6, 2009, the gentleman from Texas (Mr. Carter) is recognized
for 60 minutes as the designee of the minority leader.
Mr. CARTER. Thank you, Madam Speaker.
We've been talking for a couple of years now about the rule of law
and how the rules that we set up for ourselves are rules that glue our
society together. But there are times when there are rules that people
have a misconception about. This happens more and more when you're back
home, somebody will come to you in the business community or even in
their personal life and complain about something or some way that the
government was interfering with their lives.

[[Page H7629]]

There are times when, at least in my office, where people come in
griping about it and unfortunately it's not the Federal Government.
It's rarely not the Federal Government, but sometimes it's not the
Federal Government but it's the State government. But almost always
people presume that the law that is intrusive upon their life, and
these are people that are not in the regular course of dealing with
Washington, those laws were passed by Congress. So, therefore, Congress
did this to you. And, in a way, it's true.
Tonight, I want to talk about Federal regulatory authority. Federal
regulations. We're at a time right now that some would argue is at
least equal to the Great Depression in a time of joblessness and in a
time of economic stagnation. Some would argue we're second to the Great
Depression. Whichever it is, we have literally hundreds of thousands
and millions of people in this country who need a job. They need to
work. They want to work. They want to be out there and be productive
members of society. That's the most important thing in their life.
Feeding your family. People go to great strains to try to make sure
that they can provide for their families. And I think all Americans
feel that way. Nothing hurts more than to realize that whether it's
your fault or the fault of the economy or what, you can't find a job in
the town you live in, or maybe even anyplace within driving distance of
where you live. You hesitate to move all the way across the country to
someplace where you hear there are jobs because it's so disruptive to
your family. The pressure is tremendously bad on people in this country
right now. There are folks that are trying to create jobs, and they
have things that are interfering with their lives.
There's all kinds of reasons why you get stagnation and you get
companies that are fearful to create jobs, that people are, as we hear,
quote, hoarding their profits. One of the reasons we talk about all the
time is uncertainty--``I don't know what's going to happen and until I
know what's going to happen, I'm holding onto my money.'' That might be
actually some pretty good planning in many ways. But there's also that
``I can't explain it'' factor that is in people's lives. ``I can't
explain it; I just don't feel good about things right now.'' I believe
that a lot of the ``I can't explain it, I just don't feel good about
things right now'' feeling that a lot of Americans have, actually you
could go back to what FDR said: ``The only thing we have to fear is
fear itself.'' We can't define what causes us to be afraid in many
instances. But there are things that go on that we create in this
Congress. Through acts of Congress, we create authorities, agencies,
boards, commissions, departments, all kinds of entities that have
career Federal bureaucrats that work for them, and we give them what's
called regulatory authority. Regulatory authority basically gives them
authority to write additional rules to implement the overall plan of
what the Congress perceived to be a need of the country and passed in
the form of a piece of legislation. From that standpoint, I guess all
rules are the resulting fault of the Congress. But in the vast majority
of instances, the regulations are never addressed by the Congress.

Tonight, some of my friends are joining me and I'm really proud to
have them here. We're going to talk about the fact that this is not the
first time this has been recognized as an interference in the ability
to create growth and create jobs in this country. Back in the nineties,
back in, I believe it was right after the 1994 Republican takeover of
the House, the Contract with America, there were a lot of pieces of
legislation passed. Some of the things they tried to do were things
that would get some of the regulators off the backs of small and large
businesses which would prevent the creation of wealth, prevent the
creation of jobs. They passed something called the Congressional Review
Act. It was signed into law by President Clinton. The Congressional
Review Act requires all Federal agencies to submit any new major
regulation--that's what I was telling you about; agencies have
regulatory authority and those regulations are like laws written by
bureaucrats--to Congress for 60 days prior to the enactment of that
regulation, during which time Congress can vote to block the new rules.
With President Obama in the White House and Reid still throttling the
Senate, the CRA, the Congressional Review Act, gives the House the
potential to look at these things and to realize that probably the
largest concentration of regulatory rules that will ever be written in
the history of this country are probably going to be written, or are in
the process of being written on ObamaCare right now.
You hear all these many things that are going on, if you just watch
your television, about the Secretary has come up with a new rule and
has granted a new waiver to rules, a temporary waiver, a permanent
waiver, a 60-day rule; a rule forever. Rules are actually epidemic.
Last year, the Federal Government issued a total of 3,316 new rules and
regulations, an average of 13 rules a day. Seventy-eight of those new
rules were major rules. A major rule is any rule that may result in an
annual effect on the economy of $100 million or more; a major increase
in cost or prices for consumers; or a significant adverse effect on the
economy. We are already seeing that ObamaCare seems to be the mother of
all rules.
The Congressional Research Service reports that ObamaCare gives
Federal agencies substantial responsibility and authority to, quote,
fill in the blanks, fill in the details, for the legislation that was
passed by this Congress and submitted for regulations.

{time} 1920

There are more than 40 provisions in the health care overhaul that
require, permit, or contemplate Federal rulemaking. We have this tool
called the CRA. And I've got a board here that tells you a little bit
about it, and I told you some of it. So it passed as part of the Small
Business Regulatory Enforcement Fairness Act of 1996, part of the
Contract for America Advancement Act of 1996. The purpose was to allow
Congress to review every new Federal regulation issued by the
government, government agencies, or passed by a joint resolution and
overrule that regulation.
The way it works is the Federal agencies shall submit to each House
of Congress and to the Comptroller General a comprehensive report on
any major proposed rule. Congress has 60 days to pass a joint
resolution of disapproval of any rule. The Senate must vote on the CRA
resolution of disapproval if this House votes to disapprove the rule.
So that's the way it works. This is a tool that I have a lot of
questions with.
My first job out of law school when I was a young, stupid lawyer and
had a lot to learn was to be drafting legislation for the Texas
Legislative Council. And I didn't learn a lot there, but I learned one
thing: When the word ``shall'' appeared, it meant you do it. If it said
``may,'' you had other options you could take. But if the legislation
says ``shall submit,'' you shall submit it. You shall do it. You have
to do it. But interestingly enough, I don't think that this tells you
what happens if you don't. So there are a lot of questions in this
bill. This bill needs some further work.
A good friend of mine, Representative Geoff Davis, has actually been
looking into putting a little bit more teeth into the Congress' power
to oversee these regulations. So, at this time, I'm going to yield as
much time as he wishes to consume to my friend, Geoff Davis, to tell us
about what he looked at when he started with his REINS Act that he
proposed and tell us about it.
Take the time you need.
Mr. DAVIS of Kentucky. Thank you, Judge. It's good to be with you
tonight working in common cause on this issue. So many of us have seen
not simply in the last 2 years or the last 4 years, but a growth of
government really over the last 50 years that is unprecedented, and
it's increasing every year in size.
The intent behind the Congressional Review Act in 1996 was absolutely
solid. But when it went into law, one of the challenges that happened
was that law didn't really have the teeth in it to force accountability
of the agency community with the Congress. And I'm going to talk a
little bit about some of the things that led up to our introduction of
the REINS Act, H.R. 3765, the Regulations from the Executive In Need of
Scrutiny Act. And it's a long name to really give the analogy of
pulling back on this unbridled growth or

[[Page H7630]]

race to increase the size of the government.
The only time that the Congressional Review Act has been effectively
used to block the implementation of a regulation was the ergonomics
rule from the Clinton administration's Department of Labor that was
going to be implemented in early 2001, and it was struck down by the
incoming Congress and then signed into law by President Bush as one of
his earliest legislative actions in 2001. Since that time of the
Republican administration and a subsequent Democrat administration, we
have seen an explosion of regulations. We can name virtually any agency
in the Federal Government that on account of two reasons--one, a lack
of congressional oversight and enforcement, where an agency can
literally go out and move independent of the clear intent of Congress
because of some of the nebulous language that's allowed to go into
bills to get compromises to get it passed; and the second thing that
happens in that, as well, is that these regulations get promulgated as
a means of an administration in the executive branch to, in effect,
subvert what the desire of the Congress is. We saw it in immigration
policy. We've seen it in environmental policy, and we've seen it in
aspects of defense policy. No Child Left Behind is filled with unfunded
mandates that are placed upon local school systems. And the cumulative
sum of this is a huge amount of the economy.
Compliance with regulation comes with a cost. There's a scoring
system of rules, and what we chose to focus on was major rules, which I
will get to in a minute, but a major rule is one that has a cumulative
economic effect of $100 million a year. That is an awful lot of money.
But when we look at a country of over 300 million people, we can get
there very, very quickly.
Let me give you a personal example. For people who might be watching
this broadcast tonight, I ask you this question: Has your sewer bill
gone up or your water bill gone up in the last 5 years? The majority of
communities in this country have seen a great increase due to a
mandate, an unfunded mandate, from the Environmental Protection Agency
for storm water compliance. Is environmental stewardship relevant?
Absolutely. But here is the bigger question. I'll go to northern
Kentucky, and this became the genesis of the REINS Act.

We had just at the peak, the tipping point of economic growth, about
5 years ago, a consent decree was negotiated in a draconian fashion
where we dictated to the water district in northern Kentucky for the
three counties where I live, in Boone, Kenton, and Campbell Counties.
That consent decree to mandate a change in storm water runoff and how
that was going to be handled in our cities in those three counties of
our 24 counties was an $800 million unfunded mandate on three counties
in Kentucky. It overnight doubled everybody's water and sewer bills.
The sewer bills were the first thing that came.
The second thing that we saw, though, because we are one of the more
prosperous parts of the State in terms of having a sustainable tax base
and manufacturing industry, as painful and unpleasant as it was, if it
were, in fact, the correct thing to do, there was a means to cope with
that. But I have towns in my district, particularly in the rural areas
and some of the poorer areas, areas where folks do not have the tax
base, smaller cities that have a diminishing and aging population that
are heavily centered on retirees where the cost of storm water
compliance is actually more than the city budget, and there is
absolutely no relief at all or context to be applied in these
regulations.
I was very concerned about this and had spoken out on it, and a
constituent came and talked to me. And he just asked this question. He
said, How come you all can't vote on these regulations? And we went to
work. We went back and looked at the original intent of the
Congressional Review Act. And the more that our legislative staff and I
studied that, what we began to see was it takes an action of the House
and the Senate overwhelmingly to repeal that regulation.
I thought about this from my time in manufacturing and operations,
learning how to build things. If we can create something the equivalent
of a stoplight that will simply stop the process, that becomes the
basis of this, and that was the genesis of what became the REINS Act.
There was no way for accountability to be given to the American
people. When it's a faceless executive in an agency, when it's a
department, a subdepartment within an agency that issues a regulation,
comments are rarely carried out. As you noted earlier, we very rarely
actually see those regulations briefed. It just comes in a thick
congressional register of thousands of pages.
And here is the thing that came to mind when we looked at that idea
of how to deal with this from a voting perspective. What my friend
shared opened our eyes to do an amendment to the Congressional Review
Act that would change the nature of it from Congress has the option to.
As you know, our good friends in the Senate are somewhat slower than we
are in being able to get things done. There are more abilities to throw
a stumbling block in place. We decided just to take that same idea;
let's create a mandated process that, in fact, will force these
regulations to be vetted so the American people have somebody to hold
accountable.
If the head of the EPA, for example, a regional director of the EPA
came into my district in August and made a statement to the effect of,
If we have to put you all out of business and you have to move to other
parts of the country that have a policy that we think is more
acceptable, then so be it; but there's no ability for them to, in
effect, strike back at the ballot box, to express another opinion. And
these are not people that disagree with the EPA as an agency or any
other agency for that matter. It's a question of constitutional
authority, and it should be vested here. The power of the purse is in
the House of Representatives, and the financial impact of these
regulations should be in the House as well.
And this is what we propose with REINS--to rein in the government
when a regulation of this magnitude is proposed. What would happen is
that at the end of the comment period, instead of being enforced
unilaterally upon the American people or being in endless court or
remediation fights, what would happen, very simply, is those bills or
those regulations would come back here to Capitol Hill. We would have a
stand-alone, up-or-down vote, a no-excuses vote where Members of
Congress of all 435 districts would have to vote and be accountable
back to their citizens for the decision they took. If we're going to
have an $800 million increase in water and sewer bills, they would
vote. If we're going to increase the unfunded mandates on our schools,
there would be Members of Congress and of the Senate who would have had
to take that vote. I think it would have a restraining factor, knowing
that people had an out, that there was accountability.

{time} 1930

This extends into so many areas with EPA rules and the multiple rules
that you mentioned with health care and with the new financial
regulations, I could go on ad nauseam, and the sum of this economically
is devastating to our country and it moves us away from looking at ways
to be more efficient.
I say put the stop in place. This bill will do that. The REINS Act,
H.R. 3765, makes us all accountable to our citizens. The benefits of
this are twofold. The first benefit is that this is nonpartisan. In the
Bush administration, as some of us have talked about, we noticed
regulations that were being brought about and implemented that were
against the better interest of our economy, of our communities in many
parts of the country. There wasn't an open and public debate to be able
to address that. The thing that this would do is it would push power
back to the legislature where it needs to be, stop the unbridled growth
of the executive branch so voters would always have a say.
The second thing it would do, and we saw this with the health care
bill, 2,700 pages, much of it nebulous language that was given to us
midnight Friday before a Sunday vote on that bill, there was no way to
fully vet the consequences of that. I believe what the REINS Act would
do is take those rules and it would lead to more streamlined and crisp
language and eloquent legislative language stated, and avoid the

[[Page H7631]]

ability of any outstanding agency to subvert the will of Congress.
I appreciate being part of this discussion tonight.
Mr. CARTER. I thank the gentleman. My good friend, the gentleman from
Georgia (Mr. Westmoreland) is here, and I want to let him make the
comments he wishes to make.
Mr. WESTMORELAND. I want to thank my friend from Texas and also my
friend from Kentucky for introducing the REINS Act, and especially the
gentleman from Texas for your work in this body late at night like
this, talking about things that we need to do and what the public
expects us to do as far as ethics and as far as reining in some of the
government that we have. You know, I think what a lot of people don't
understand is that this new TSA ruling, this is something that did not
come out of Congress.
Mr. CARTER. That is right.
Mr. WESTMORELAND. This came out of the Department of Homeland
Security making their own rules. The ObamaCare bill that was passed out
of here, I believe there are 111 agencies, boards and commissions that
are to be formed by that bill. Each one of those will write their own
rules and regs. For CBO or anybody else to try to tell us how much
money this is going to cost, it is impossible because we don't know
what type of rules and regs these agencies, boards and commissions are
going to come up with.
We had a hearing in the Small Business Committee, and we had somebody
there from the GAO. We asked them: When these agencies get this
legislation, do they ever go back and talk to the Member that offered
the legislation or the committee that it came back through?
No, not that we know of. It is not a rule. It is not a practice.
So while this body might pass something with a certain legislative
intent, by the time it gets to that agency, they write rules and regs
that go way beyond where this body wanted it to go perhaps, or maybe
not as far as they wanted it to go. As the gentleman from Kentucky
mentioned with the water bill, the Clean Air Act, the Clean Water Act,
it has gone way beyond what the intention of this body was with the EPA
and the Fish and Wildlife and the other agencies that got hold of that
bill.
The REINS Act talks about the Portland cement, the new regulations
that the EPA is trying to put on that. A lot of people don't know this,
but if you live on a dirt road with the new dust requirements that the
EPA may come out with, you are not going to be able to drive down that
dirt road and create dust. Well, I live on a dirt road and I am going
to tell you, I don't know how to keep it from having dust unless you
have a rainstorm, and then you are going to get mud.
Mr. CARTER. You will need to have a water truck in front of you to
get to your house.
Mr. WESTMORELAND. That's right. And we have people come up to us all
of the time and say, you know, why did you all pass this law that says,
you know, that you can't have dust or you can't have spray that blows
if you are spraying your pastures or your fields or your bushes. You
go, you know, that wasn't in the law. That is not something that we
had; that's something that the EPA did or that is something that the
IRS did or that's something that Homeland Security did on their own.
And so I just think this is a great piece of legislation. I appreciate
you opening up the debate to it.
Mr. CARTER. Recapturing a little bit of my time here, talking about
the Portland cement issue, when I started looking into this, and first
off to make this very clear, we are not talking about company called
Portland Cement, we are talking about a process for making cement. It
is kind of interesting. Cement is the second most consumed product
globally in the world. The first is water. So honestly, just about
everything that is constructed, buildings and roadways, has something
to do with cement. And the projections on what this is going to do to
the Portland cement industry, the people who make the concrete that we
depend on, you know probably 90 percent of the skyscrapers of the world
use some form of pre-stressed concrete to build a skyscraper. It is a
major building material for a thriving economy. What they are telling
us now is that construction spending amounts to about a trillion
dollars annually, and that is about a fourth of the gross domestic
product. The cement industry has declined in relation to the national
economic downturn, and so has the construction industry.

If they do this, this could cost us around 153,000 jobs nationwide.
That is lost jobs. We are trying to figure out a way to create jobs in
this Congress; that is lost jobs. The cement industry generates $7.5
billion annually in wages and benefits. According to the Minnesota
Plan, about $27.5 billion of America's economic activity, gross output,
occurred in the cement manufacturing industry, and almost $931 million
in indirect tax revenues were generated for State and local
governments. The economic footprint for the cement industry is a
trillion dollars. It is very important.
Now what can happen. According to a study done by SMU, which happens
to be in the great State of Texas, they have looked at what this
regulation that is being proposed by the regulators, and when we say
regulators, remember, nobody elected these people to this job. Most of
them work under the civil service idea that once they are here, unless
they commit armed robbery, you can't get them out of their job. So they
are employees for life. They sit around in little offices and come up
with all of these new ideas, and they expand upon the thoughts that
Congress had when we created these agencies. And I would argue that EPA
has expanded beyond anybody's imagination the things that they can do.
And they don't think about the fact, like blowing when you are crop
dusting or spraying your roses in your yard if the wind is blowing,
you're in violation of the EPA regulation they are proposing. They
don't realize what the impact is on human beings.
What will happen to us on the Portland cement industry is right now
our major competition is overseas anyway. I mean, China and Japan are
importing, mainly China now, are importing tons of concrete into the
United States every year. If we put our manufacturers out of business
because of this extremely expensive regulation that would cause them to
be noncompetitive in the world market. Even if they tried to compete,
their increased costs would be such that they would be put out of
business from a market standpoint. Other people would just have a
better price. Even with shipping costs, they would have a better price.
But more so, you lose all of the jobs that are created around here for
the cement industry if you pass these regulations.
These are the kinds of things that Congress ought to be looking at
because we are responsible to the people of the United States. This
House is called the People's House because every 2 years we have to
look our neighbors in the face and answer those questions that your
neighbors ask you about why in the world did you guys do this?

{time} 1940

Well, we're getting blamed for it anyway. We ought to at least look
into it, and if we can do something about it, we ought to do something
about it.
I see Congressman Davis is back. I'm glad to see you. We're talking
about what this Portland Cement case is going to do to the cement
industry. Quite honestly, it's disastrous.
Mr. DAVIS of Kentucky. I would agree wholeheartedly with you. In
fact, we can extend that almost into every area of small business. For
those who have experience in manufacturing and in any number of
business areas or construction that deal with the use of various
chemicals, resins and compounds, there is a compliance requirement
called Material Safety Data Sheets, MSDS compliance, which requires a
very large amount of documentation in a business. We look at Portland
cements, which are very large businesses that have these burdens placed
upon them that are very high, but it's even in very small businesses.
In working with many manufacturing companies in my time before coming
to Congress, in the 12 years before my coming to Congress, after I had
left the Service, I saw that these regulations created an undue hidden
tax on America's ability to compete. It's not the idea of being
antiregulation. I think standards can be very good and

[[Page H7632]]

very helpful, but it's the point at which that compliance is mandated
and the context of that.
A case in point, I think, that I saw that typified this more than
anything else was the case with my dry cleaners that I had used for
years before I ended up running for office. It's called Braxton's
Cleaners. It was started by a couple of entrepreneurs who wanted to
build this business. They built it. It grew. They had very high quality
customer service. Like all of us who have started small businesses,
we've encountered the issue of how to deal with all of the hidden costs
that come with just running any kind of small business.
Well, they hit a point where they were doing so much business--they
were starting some satellite operations--that the owner decided that he
would install another dry cleaning machine. He suddenly found out that,
by wanting to do that, he had an EPA mandate through the State
environmental cabinet of the Commonwealth of Kentucky that he had to
have boreholes drilled through his floor to see if dry cleaning fluid
in any capacity had gotten into the groundwater.
The standard that had been levied by the Environmental Protection
Agency--and this is going back to actually 1999--for the amount of
particulate matter of dry cleaning fluid--and essentially you and I
could drink it. It would be awful stuff and probably make us sick, but
it's not going to kill us--has been listed with many other chemicals as
a possible carcinogen. You would have to pump this into somebody's body
to create a real health issue, but it was so few parts per million that
it was actually a higher standard than drinking water is in our county,
which is maintained at a very high standard.
When this was found--and they found one teaspoon of water under the
concrete pad at Braxton's Cleaners in Burlington, Kentucky--the
inspector said, Well, you're going to have to remediate this.
His response was, Well, I don't have the money to do that.
Then the inspector said, You don't understand. We're going to shut
you down if you don't do this.
So he spent over $50,000, in effect, to tear up the floor and to
clean up one teaspoon of water.
The context issue here is that this is not Dow Chemical pumping out
millions and millions of gallons of highly toxic chemicals. This is the
local dry cleaner. I've had friends who were auto mechanics, running
small garages, who built businesses, and who were successful
entrepreneurs--taxpayers--creating jobs and growing. They've run into
the same kinds of issues that lose context when they're complying and
seeking to fulfill the intent of the law.
Before I yield back, I'll mention one other. I see the egregious
example of regulatory intrusion. The purpose, for example, of the
Transportation Security Administration is to provide security for the
traveling public. That's the premise. I sat in here on October 31,
2001, as a candidate for Congress, during the anthrax scare, and I
watched Norman Mineta--former Clinton administration Secretary of
Transportation, who stayed over into the Bush administration--pleading
as the father of two airline pilots not to implement the processes the
way the TSA was going to. He said it would create an onerous cost, that
it would create an excessive economic burden on the airline industry
and that it wouldn't materially change the outcome of security. He
advocated the use of a much more principle-based and systemic method
used by the Israelis, which involves questioning and which gets the
bags before they ever go into the airport.
Now we find a situation where I believe, personally, we're getting
into some Fourth Amendment grounds, not as an attorney because I'm not
one, but by questioning the need for these intrusive searches of
everybody within the traveling public when, in fact, threats have
already penetrated a secure area. The bigger question when I see the
nun here and when I saw the video of the----
Mr. CARTER. Reclaiming my time for a minute, it is very clear from
the cameras that this is basically a TSA employee doing a leg search of
a nun.
Go ahead.
Mr. DAVIS of Kentucky. With that visual, keep in mind I've spent the
last 26 years of my life traveling in and out of the Middle East in
various capacities--serving there in the military and being in and out
of the region, traveling on business, and now as a Member of Congress.
I've had a chance to watch a system that is virtually flawless, and
it's based on a series of questions that is not intrusive. It's a free
society. They've maintained their civil liberties with a dramatically
higher threat to terrorism.
Yet what we have done, if we look at this, is create the
bureaucratization of security. We're not going to deal with the root
cause issues; we're going to treat the symptoms. Nobody will ever take
down an airplane with a box cutter or a pocketknife the way the
hijackers did on 9/11. Now that citizens who are flying know, there
have been multiple instances in flight where people have had erratic
behavior, mainly trying to get to the lavatory, and they were tackled
by passengers out of concern for this. Americans will fight back.

The situation has changed, and in effect, we're fighting the last
battle; we're fighting the last terrorist attack as opposed to
something like the Israeli system, which really incurs virtually no
cost and manages to keep a very robust flying public that's very safe,
and it all begins with asking questions.
People bring up the argument, Oh, well, you can't do that because
that's profiling.
I would disagree with the misuse and misunderstanding of that term
related to the cost. We are driving people away from traveling right
now because of these intrusions. It's creating a huge burden on the
flying public, and it's entirely unnecessary because it's checking
innocent people, and 99 percent of our capacity is devoted to checking
people for a threat that any trained security inspector would know is
not even there. That's a poor use of assets.
I'll go back to the Israeli system. I was traveling out of Israel,
alone, with a backpack, 17 years ago, on a short trip that I had had to
make into Jerusalem. At the time, because of what I did and because of
where I had been in the military, I had had lots of stamps from
countries all over that area--some areas which weren't particularly
friendly to Israel. I was asked questions--a blue-eyed, Caucasian male,
from the United States, who spoke with an Ohio Valley accent. They
began asking me a series of questions.
They looked at the passport stamps and moved me over and said, We'd
like you to talk to this person over here.
The other 200-plus people who were going on that L-1011 Delta flight,
in fact, were moved right on through. I was asked questions for over an
hour and a half. There was no cost to those other people. The airline
was able to do what they did, and they were able to very quickly verify
that I was, A, no threat and a legitimate customer. That system works,
and it works today, and it's almost impossible for somebody to fool
that system.
The other thing that's important is we don't need these billions of
dollars spent on these scanners that are being overused. Again, it
comes down to situation awareness. We can address this issue with a
lower cost by stepping back and applying what you and Congressman
Westmoreland have been talking about tonight, which is just bringing
some common sense to this.
What is the problem we really want to solve? Give us the most
flexibility and the most options to deal with this after the fact.
Again, before regulations like this should be implemented, I believe
we need to have a vote of Congress. Let the will of the people be made
known in this rather than just simply giving away another set of our
liberties without asking that question when, in fact, it comes at a
significant cost. I think if our taxpayers who don't travel regularly
understood the amount of money that we spend on hardware, which can
still be penetrated by some type of a serious threat that was just
outside that set of assumptions in TSA, we'd be in a different world.
This doesn't impugn the motivation of the folks in the Transportation
Security Agency. I know there is an ongoing argument below the senior
management levels of what works and what doesn't work, and it is by
those who have lived in that world. They've lived in a high-threat
environment and have been able to thrive.
I believe we can do that; but again, let's come back to these
constitutional

[[Page H7633]]

underpinnings that regulations and rules that are going to govern the
lives, the comings and goings and the commerce of all Americans should
be decided here in House of Representatives, over in the Senate, and
then signed by the President and not brought into being on the
unilateral decision of one individual.
Mr. CARTER. Reclaiming my time for a moment, this morning, in an
airport, as I was coming to Washington, I was on one of the earliest
flights going out of Austin, Texas. We're a midsized city, and I've
never seen so many lines in my life. I mean, they were a good half mile
long. They were back and forth and back and forth. All I could think
was that I got there early enough that, by the time I got through, I
could just sit and watch the rest of those lines build up. They built
up, built up, built up. It was unbelievable.

{time} 1950

A guy sitting next to me said, well, there are going to be a lot of
people missing their flights today, they're not going to make it--
because these were all the people, I guess, who were coming back from
Thanksgiving and instead of flying on Sunday when the cost was more
they waited until Monday to get a cheaper flight. Well, what is that
going to do to the airline industry? They are going to have planes
flying empty. They are going to have people demanding refunds. It's
going to hurt the airline industry. Before we turn around, we're going
to have somebody coming in here and saying, holy cow, TSA put together
this regulation, and now we're causing all these airlines to get in
serious financial problems and we're going to have to buy the airline
industry like we bought the automobile industry. I think we should get
out of that business. That's why this Congress, or somebody who must
respond to the American people, needs to be involved. That is why I
think putting teeth in the Congressional Review Act through the REINS
Act is good.
I will yield as much time as Mr. Westmoreland needs.
Mr. WESTMORELAND. I thank the gentleman for yielding.
I wanted to go back to the cement.
Mr. CARTER. All right, let's go back to it.
Mr. WESTMORELAND. Being an old builder that really spent my whole
life in construction, there is a byproduct that comes from power plants
that's called fly ash. Fly ash is a byproduct that comes out of the
coal-burning plants and it is used in concrete. It keeps it from
setting up so rapidly to allow the people to work with it, to get a
good finish on it. It takes it longer to set up. In the winter, you can
either put calcium in the concrete to make it dry harder--or to at
least make it dry if it's cold outside--or you can leave the fly ash
out of it and use a bag mix, which makes the concrete more expensive.
The EPA came out with a rule--or they are looking at a rule that
would make this fly ash a toxin. And so the cement industry, the
concrete industry went to them and said, look, we are mixing this stuff
with concrete. Once the concrete is poured, it's encased, it's part of
the mix, it's concrete. So the EPA said, yeah, that makes sense, it's
not there. But we are still having hearings--or at least from people
that are trying to help with the rulemaking--about burying this because
right now a lot of that fly ash or the stuff that has been taken out of
the TVA where those power plants ran have been taken to Alabama and put
in the ground and other sites, and they are trying to make a rule to
make that a toxic material. Well, the concrete industry thought they
had it all settled until the EPA came back and said, you know what? I
wonder if you recycle that concrete--because right now everything is
being recycled, I mean, we recycle asphalt, we recycle concrete, we
even recycle dirt, we clean the dirt--and so they said if you recycle
this concrete, then it's going to put the fly ash back in the air. So
what are you going to do with it? I mean, are you going to just bury it
all now and put it in the ground or are you going to use it in
concrete? And if you recycle it, you are actually putting it to better
use because you're putting it back in concrete. And so this is just
another part of those stupid regulations.
I come from the construction business, and I know that we, as the new
majority that comes in in January, are going to do everything we can do
to create jobs and we are going to work hard at it, but until we get
the construction industry back on its feet, this economy is going to be
very slow to turn around. We have got to put the building industry back
on its feet. And doing things that the EPA is doing right now--and not
only the EPA, but the Department of Labor with the new OSHA rules that
are coming out, it is just all different types of things that are
slowing down that building industry and slowing down our productivity
that we have. Until that gets fixed, this economy is not going to
recover like it can.
So I just hope that we can get something done about this where these
rules and these regs have to come back in front of us. Let us have
hearings on them. At least let us give them an idea of what the
legislative intent was and also allow us to look at what these are and
to vote on them because if we're going to get blamed for it, like you
said, we might as well at least have a vote on it.
But when the EPA itself says that these regulations could cost the
cement industry $340 million a year and decrease the production in this
country by 10 percent, in 2007 I guess it was, or whenever we had
Katrina, we had a shortage of concrete, we had a shortage of cement. We
actually couldn't import, there was a large import fee on it. We
reduced that and started importing cement from Mexico just to make up
for the difference because we had a shortage. And now, if they continue
with the regulations they're continuing with, in 5 years we wouldn't
have any more domestic cement, it would all be coming from foreign
countries. And what does that do? They produce it without the same
environmental regulations that we have. So the EPA is just defeating
its purpose of trying to clean the air up when we're having to import
all of our cement.

The gentleman from Texas knows, we put our steel mills out of
business, it cost thousands and thousands of jobs and money. If we put
ourselves out of business in the cement industry, we are going to be
totally reliant on our steel and our cement, two of the biggest
components that we use in the construction of all of our facilities
today.
Mr. CARTER. Reclaiming my time, what you just described is part of
the American frustration factor that is part of what has got Americans
frustrated in this economy right now. It is the unknown. It is the what
is the government going to do to me next that's out there that has got
businessmen, job creators standing around, scratching their heads, then
they hear this story.
I want to tell you a story from my youth. I was working for the
legislative counsel, and then when I left that job, I got hired as the
attorney for the Ag Committee of the Texas House of Representatives. I
will make this short, but it is a great story. The Federal Government
passed a new meat-cutting law, and it was going to affect all these mom
and pop sausage makers all over the State of Texas--at that time we had
literally thousands of them. We were having hearings from these people
complaining about what these new regulations were doing to them, and in
comes two people from the Department of Corrections with a guy in a
prison uniform. They put him on the stand in the Ag Committee and said,
what are you here to testify about? And he said, me and my brother were
the best sausage makers in east Texas, we were the best. And this
fellow comes in our door one day and says, I'm from the Federal
Government, I've got some new regulations. You're going to have to tear
out all your equipment and buy new equipment. He said we went to the
bank and we borrowed $25,000 because he said we made the best sausage
in east Texas and we put it all in. Six months later that same fellow
came through our door and said we've got new regulations, you've got to
have a drain and a cement floor and you've got to have all stainless
steel, so all that stuff has got to go. He said, me and my brother, we
went down and borrowed another $50,000 from the bank and we redid all
that. He said, about 1 year later that same fellow walked in the door
and said, I've got bad news for you, so I shot the guy, and now I'm in
prison for attempted manslaughter. That is a true story.
Mr. WESTMORELAND. Now he's making sausage for the State of Texas.

[[Page H7634]]

Mr. CARTER. That is how frustrating regulations can be.
I yield to my friend, Mr. Davis.
Mr. DAVIS of Kentucky. There are so many stories that we can think
of, and it comes back to this issue of having context.
A very successful entrepreneur who actually started working in a coal
mine at the age of 15, who is a very successful industry executive,
made a comment to me when I first got elected to Congress that he
wished that no person could run a Federal agency or serve in the House
or the Senate unless they created one job so that they would know what
it was like to deal with the consequences of regulations.

{time} 2000

We come back and qualify this. The overall intent of the founding of
some of these agencies was a very good thing, but let's step away from
the EPA for a moment--we'll come back there in just a second--but move
over to education.
We have some outstanding schools, blue ribbon schools in our region,
and their increases in performance are not due to the mandates inside
of the No Child Left Behind bill. In fact, I brought the Secretary of
Education from the Bush administration, Dr. Margaret Spellings, to
Kentucky in 2008. It took almost 9 months to get her there. Because I
wanted her to be able to see as an educator--I'm the husband of a
teacher and the father of a current school teacher--that the real key
to success in education is not a regulatory mandate; it's again coming
back to that context on the front lines.
In this case, I took her to two schools, one urban school and one
rural school that had gone through dramatic turnarounds and that were
both near the top of their state in their performance. And in each case
it was a Back to the Future story. Reestablishing parental visitation,
empowering teachers to bring families that might have some challenges
literally into the community. Packing food backpacks for the weekend to
make sure that kids in tough circumstances--having been a kid in a
tough circumstance growing up, I appreciate what teachers did for me at
the time.
And then we get down to the numbers. If we look at the impact of some
of these regulations, when you have got an adequate performing or
exceptionally well performing school system and then impose on that a
mandate that requires a huge amount of paperwork and consumes hours of
time, it detracts from the classroom. And then the promises under the
Individuals with Disabilities in Education Act, which--the intent of
the law is good but the implementation is awful because the promise of
40 percent funding on an unfunded mandate in already strapped school
systems, and the best--the average funding in Kentucky runs between 11
and 13 percent of that 40 percent.
So again, it's a tax by regulation that's imposed on local
communities on an issue frankly I think should be controlled by the
States and local communities.
I'll give you another case in our district of a very successful young
man from Lewis County, Kentucky. He ran in the current wave of activism
of people wanting to make a difference. To get elected county judge
executive of Lewis County, Kentucky. They are in tough economic times.
His name is Tom Massie. He was a stellar student at Lewis County High
School. He went to MIT. Got a graduate degree. He invented some
remarkable robotics technologies. Was very successful in business, and
came back home to invest in his county--not monetarily but to make a
difference and turn it around.
Energy is an issue not only in Texas and Kentucky. We're energy-
producing states. We help to run--in effect our States are part of the
engine of this Nation to help lay that foundation in the base of the
economy.
Tom Massie came up with a brilliant idea that didn't involve coal or
oil or nuclear power--all of which we should use and let the market
work in this area--but he came up with an idea that would leverage the
resources available in Lewis County because it has one of the longest
stretches of the Ohio River of any county in Kentucky. We also have a
lot of hills. You might call them mountains in Texas where you live. We
call them hills and hollers where we're from.
And this MIT-trained engineer had a brilliant idea. And he took the
equivalent of a dual-faced pump--and he had seen some examples done in
other parts of the world--that would create a system of two lakes, and
we have the Ohio River flowing in the front of this, one of the largest
rivers in the country. And all it would take is channeling water,
pumping it up to a lake on the top of the hill and creating in effect a
self-replenishing hydroelectric generating system that would meet the
hydroelectric needs for a good part of that multicounty area in
addition to the current base.
It would create jobs. It would provide low-cost utilities so working
families and the elderly and the poor would have access to electricity.
It would be cheap. It would be an incentive for businesses to grow and
for manufacturing to come into these areas because we wouldn't just do
it there, we would do it all through the river basins of our Nation.
He found something out in his first impact with the regulatory
framework that was done out of context. This brilliant idea that would
have saved jobs and created jobs in Lewis County, Kentucky. He found
out if they take water out of the Ohio River--which I must say is not
one of the more pristine rivers of the country in terms of all of its
accumulated detritus coming from the Allegheny and Monongahela, coming
down from Pittsburgh to Cairo, Illinois--the water, it would be
considered dirty by our standards. But if he takes water out of the
river if they have overflow from rain and wants to put it back in, the
whole project was killed on one basis: That any water put back into the
river had to be cleaner than drinking water under the current EPA
standards.
This affects the energy industry. Coal produces almost 60 percent of
power in this country. One of the issues is with stream mitigation and
slurry runoff, which is a problem, but the operators of the coal mine
who want to comply--and most do; they want to do the right thing. They
also create jobs, and they create jobs that have an impact not simply
in West Virginia, Kentucky, southern Ohio, in my part of the world.
They also support jobs and manufacturing in New York and New Jersey and
Pennsylvania because that electricity goes by wire to other parts of
the country.
That basically creates the same standpoint. If an operator wants to
clean part of the creek, the standard actually is for water that's
cleaner than the water that already exists with the wildlife population
that already might be there. It creates kind of an impossible
situation--a double bind for anybody who wants to do business.
My request is, let's step back. Regulations like that need to be
brought into context. And the place to do that is here. And I just
appreciate you investing the time to make this difference, to bring
this issue before the American people because it's a question of the--
the one saying I heard over and over through our election is we want to
take back America. What's the taking back?

Really what we're talking about is restoring a constitutional balance
that will allow and assure that the elected representatives and
senators of the people will ultimately be accountable for any decisions
made by the executive branch.
I appreciate a chance to participate in this debate and thank you for
advocating so fiercely on this issue.
Mr. CARTER. I'm glad you're here with me, and I hope you'll join me
again because we're going to be talking about this a lot this year
because it's something that matters to the American people. I encourage
them to contact us if there are regulations that are of their lives
that are driving them crazy because we want to talk about these things.
And we need to get to work getting the teeth put in the previous act so
we can actually get this accomplished and start fleecing out these, I
would say, intrusive regulations that are costing us jobs when our job
here today and every day until this country is back on its feet is to
create jobs, not cost jobs.
I think it's time for me to call it a night tonight. So we're going
to rein this thing in. And I thank you for joining me tonight, Mr.
Davis, and we will visit some more.

[[Page H7635]]

I yield back the balance of my time.

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