[Congressional Record (Bound Edition), Volume 156 (2010), Part 13]
[House]
[Pages 18158-18164]
[From the U.S. 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.
  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. 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

[[Page 18159]]

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 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

[[Page 18160]]

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 
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

[[Page 18161]]

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 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.

[[Page 18162]]

  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 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

[[Page 18163]]

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.
  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

[[Page 18164]]

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.
  I yield back the balance of my time.

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