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65–907 2011

REDUCING FEDERAL AGENCY OVERREACH: MODERNIZING THE REGULATORY FLEXIBILITY ACT 

HEARING 

BEFORE THE

COMMITTEE ON SMALL BUSINESS 

UNITED STATES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

HEARING HELD 

MARCH 30, 2011 

Small Business Committee Document Number 112–007 

Available via the GPO Website: www.fdsys.gov 


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(II) 

HOUSE COMMITTEE ON SMALL BUSINESS 

SAM GRAVES, Missouri, Chairman 

ROSCOE BARTLETT, Maryland 

STEVE CHABOT, Ohio 

STEVE KING, Iowa 

MIKE COFFMAN, Colorado 

MICK MULVANEY, South Carolina 

SCOTT TIPTON, Colorado 

CHUCK FLEISCHMANN, Tennessee 

JEFF LANDRY, Louisiana 

JAIME HERRERA BEUTLER, Washington 

ALLEN WEST, Florida 

RENEE ELLMERS, North Carolina 

JOE WALSH, Illinois 

LOU BARLETTA, Pennsylvania 

RICHARD HANNA, New York 

NYDIA VELA ́ ZQUEZ, New York, Ranking Member 

KURT SCHRADER, Oregon 

MARK CRITZ, Pennsylvania 

JASON ALTMIRE, Pennsylvania 

YVETTE CLARKE, New York 

JUDY CHU, California 

DAVID CICILLINE, Rhode Island 

CEDRIC RICHMOND, Louisiana 

GARY PETERS, Michigan 

BILL OWENS, New York 

BILL KEATING, Massachusetts 

LORI SALLEY, Staff Director 

PAUL SASS, Deputy Staff Director 

BARRY PINELES, General Counsel 

MICHAEL DAY, Minority Staff Director 


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C O N T E N T S 

Page 

Opening Statements: 

Coffman, Hon. Mike ......................................................................................... 1 

Vela ́zquez, Hon. Nydia M. ............................................................................... 2 

WITNESSES 

Mr. Bill Squires, Senior Vice President and General Counsel, Blackfoot Telecommunications Group, Missoula, MT ............................................................... 3 

Mr. David Frulla, Kelley Drye, Washington, DC .................................................. 5 

Mr. Craig Fabian, Vice President of Regulatory Affairs and Assistant General 

Counsel, Aeronautical Repair Station Association, Alexandria, VA ................ 7 

Mr. Rich D. Draper, Chief Executive Officer, The Ice Cream Club, Inc., 

Boynton Beach, FL ............................................................................................... 9 

APPENDIX 

Prepared Statements: 

Mr. Bill Squires, Senior Vice President and General Counsel, Blackfoot 

Telecommunications Group, Missoula, MT ................................................. 17 

Mr. David Frulla, Kelley Drye, Washington, DC ........................................... 27 

Mr. Craig Fabian, Vice President of Regulatory Affairs and Assistant 

General Counsel, Aeronautical Repair Station Association, Alexandria, 

VA ................................................................................................................... 44 

Mr. Rich D. Draper, Chief Executive Officer, The Ice Cream Club, Inc., 

Boynton Beach, FL ....................................................................................... 51 

Statements for the Record: 

Bartlett, Hon. Roscoe ....................................................................................... 56 

Questions for the Record: 

Owens, Hon. Bill ............................................................................................... 58 

Responses for the Record: 

Mr. Bill Squires, Senior Vice President and General Counsel, Blackfoot 

Telecommunications Group, Missoula, MT ................................................. 59 

Mr. David Frulla, Kelley Drye, Washington, DC ........................................... 61 

Mr. Craig Fabian, Vice President of Regulatory Affairs and Assistant 

General Counsel, Aeronautical Repair Station Association, Alexandria, 

VA ................................................................................................................... 70 

Mr. Rich D. Draper, Chief Executive Officer, The Ice Cream Club, Inc., 

Boynton Beach, FL ....................................................................................... 71 


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HEARING ON REDUCING FEDERAL AGENCY 

OVERREACH: MODERNIZING THE REGULATORY FLEXIBILITY ACT 

WEDNESDAY, MARCH 30, 2011 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON SMALL BUSINESS, 

Washington, DC. 

The Committee met, pursuant to call, at 1 p.m., in Room 2360, 

Rayburn House Office Building. Mr. Coffman presiding. 

Present: Representatives Graves, Bartlett, Coffman, Chabot, 

King, Tipton, Fleischmann, West, Ellmers, Vela ́zquez, Altmire, 

Cicilline, Mulvaney, and Herrera Beutler. 

Mr. COFFMAN. The committee on Small Business is called to 

order. 

Good afternoon. Studies have shown that small business must 

spend more per employee to comply with regulations than their 

large competitors. If we are relying on small business to create jobs 

that will create economic growth, America’s entrepreneurs cannot 

be saddled with unnecessary costs. It is just plain common sense 

that federal agencies should see how the rules will affect business, 

business that need scarce capital to hire workers rather than comply with costly and unwieldy dictates of federal bureaucrats. In 

fact, such a statute exists, the Regulatory Flexibility Act [RFA]. 

The act charges all federal agencies with examining the impact of 

their proposed and final rules on small business. If these impacts 

are significant, the agency is required to consider less burdensome 

alternatives. 

Let me give an example. TSA decided that it would be a good 

idea to impose on general aviation security plans and screenings 

similar to that used by commercial airlines. Significant costs would 

have been imposed on the general aviation community without any 

showing that safety to the public would have increased. It is this 

type of nonsensical federal overreaching that hinders job creation 

without providing any benefit to the public that the RFA was designed to stop. Had TSA done what was required under the act 

that agency would not have put forward such a proposal. 

Despite the importance of the RFA to the small business community, federal agencies, as we will hear from today’s witnesses, regularly ignore the requirements of that act. The result reduced competitive capability of small business which in turn prevents them 

from expanding and creating needed jobs. Given the state of the 

American economy, that is not a result we in Congress or the 

American public can afford. 


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I want to thank witnesses for taking the time to provide their insights into the RFA, its benefits to small businesses, and the loopholes that agencies may use to avoid a necessary and sensible examination of the consequences of their actions. 

With that I now recognize the ranking member for her opening 

statement. 

Ms. VELA ́ ZQUEZ. Thank you, Mr. Chairman. Good afternoon. 

Small businesses play a key role in creating new jobs. Today we 

are going to examine how the rising regulatory burden may prevent them from generating these employment gains. As the latest 

studies show, the annual cost of regulation grew over the last decade to $1.75 trillion. This means that if every U.S. household paid 

an equal share of the regulatory burden, each will owe more than 

$15,000. For many small businesses the cost of regulatory compliance has become considerable. Firms with fewer than 20 employees 

pay more than $10,500 per employee in compliance costs, a number 

36 percent higher than their larger counterparts. The result is that 

many entrepreneurs are spending more on regulatory requirements 

than they are on building their businesses. 

To address this issue Congress passed the Regulatory Flexibility 

Act in 1980 giving small businesses greater influence in the regulatory process. The act was designed to ensure that federal agencies consider the impact of its regulations on small entities. Clearly 

RFA is working as regulatory costs were reduced by $15 billion in 

2010 alone according to the SBA’s Office of Advocacy. In the last 

three years the EPA and OSHA convened seven Small Business 

Advocacy review panels providing small firms with greater input 

regarding key environmental and occupational safety regulations. 

Despite this success, it is clear that RFA could be working better. 

One area that needs improvement is the process in which agencies 

can certify that a rule has no significant impact on small businesses. While agencies are required to provide a factual basis for 

such certifications, they often provide only a simple statement 

which dismisses the concerns of small firms. By doing so, small 

firms are often left out of the process with little hope of their voice 

being heard. Agencies also have been slow to review outdated regulations that remain on the books, yet which continue costing small 

businesses money. 

While the RFA requires agencies to periodically review existing 

rules, these requirements are vague and agencies often do not 

apply them consistently. As a result, these reviews have been much 

less effective than they could have been. Given the well documented concerns and the evidence that lies before us, I think the 

question is not if we make improvements to the RFA, but rather 

how do we go about it. 

As we move down this path, the Committee should be cautious 

in two areas. While the SBA’s Office of Advocacy plays an important role, simply giving them additional power is not the answer 

to all that ails the RFA. With only 46 employees, we have to be 

careful about creating a situation where we vest too much new authority on an entity that lacks the budget and manpower to execute 

such an expanded role. In these times of fiscal restraint, I am wary 

of heaping more responsibilities on an agency that is struggling to 

keep up with its existing workloads. Let us first see if Advocacy 


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can handle the new tasks required under Dodd-Frank, which increases by 50 percent the number of agencies covered by the panel 

process. 

In addition, any expansion of the RFA, and in particular the 

panel process, must be scrutinized. I wholeheartedly support efforts 

to reign in agencies that are insensitive to small businesses but we 

cannot do so by simply grinding the regulatory process to a halt. 

With this in mind I look forward to today’s discussion on how 

RFA can be best modernized to meet small businesses’ needs. And 

let me take this opportunity to also thank all the witnesses for 

being here today. 

Since its enactment over 30 years ago, the Regulatory Flexibility 

Act has played a critical role in reducing regulatory burden. We 

need to ensure our system functions properly and correctly as minimizing regulation will enable small businesses to do what they do 

best—innovate, grow, and create the jobs our economy needs to 

move ahead. 

With that I yield back the balance of my time. 

Mr. COFFMAN. I thank the ranking member, Congresswoman 

Vela ́zquez. 

All the witnesses’ written statements will be placed in their entirety into the record of the hearing. 

STATEMENTS OF BILL SQUIRES, SENIOR VP AND GENERAL 

COUNSEL, BLACKFOOT TELECOMMUNICATIONS GROUP, ON 

BEHALF OF THE NATIONAL TELEPHONE COOPERATIVE ASSOCIATION; DAVID FRULLA, KELLEYDRYE; CRAIG FABIAN, 

VP OF REGULATORY AFFAIRS AND ASSISTANT GENERAL 

COUNSEL, AERONAUTICAL REPAIR STATION ASSOCIATION; 

RICH D. DRAPER, CEO OF THE ICE CREAM CLUB, INC., ON 

BEHALF OF THE INTERNATIONAL DAIRY FOODS ASSOCIATION 

The first witness will be Mr. Squires. 

Mr. Squires, Mr. Bill Squires, is the senior vice president and 

general counsel of Blackfoot Telecommunications Group in Missoula, Montana and is testifying on behalf of the National Telephone Cooperative Association. Mr. Squires, you will have five minutes to present your oral testimony. 

STATEMENT OF BILL SQUIRES 

Mr. SQUIRES. Thank you. And thank you for the invitation to 

participate in today’s discussion on controlling the reaches of federal agencies and considering modifications to the RFA. 

For the past 10 years I have served as senior vice president and 

general counsel of Blackfoot Telecommunications Group in Missoula, Montana. Blackfoot is organized as a cooperative, and as 

such our priority is to provide to our customers who are also our 

owners the very best communications and customer service available. We serve only 21,000 customers in western Montana over an 

expanse of about 6,500 square miles, so only a little over three customers per square mile. We have approximately 140 employees, 

and in 2010 had operating revenues of $34 million. So we are a 

small, highly regulated company. 


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The entrepreneurial spirit of Blackfoot is represented by approximately 1,100 small rural counterparts in the telecom industry, who 

together serve 50 percent of this nation’s land mass but only 10 

percent of the population. Rural providers are early adopters of 

new technologies and services. Blackfoot currently offers 15 megabit broadband service to 98 percent of that 6,500 square mile service territory. Thanks to rural telecom providers, rural Americans 

are enjoying universal voice services, access to broadband internet, 

and enhanced emergency preparedness. 

To counteract the natural inclination to develop a ‘‘one size fits 

all’’ approach to regulation, the RFA was adopted in 1980. It directs the agencies to balance the societal needs tied to federal regulations with the needs of small businesses. Though the RFA has 

been good for small business, many industry stakeholders believe 

that some agencies in our industry, particularly the FCC, gives little regard to the law and its mandate to thoroughly review the impact of proposed regulatory orders on America’s small business 

community. 

The RFA is supposed to force agencies to be creative with regulatory alternatives. Instead of conducting this analysis, agencies 

often summarily state that alternative regulation was considered 

and rejected. Among the FCC’s rules, for example that have a significant and unnecessarily damaging financial impact on small carriers are things such as truth in billing, bill shocks, slamming, and 

customer proprietary network information rules. These are all 

laudable goals and I do not question those today. However, in the 

instances where final rules have been adopted, the Commission did 

not fully analyze the impact of its rules on small businesses and 

did not fully explain why alternatives were rejected. 

In response to the FCC’s continued disregard of the RFA, the National Telecommunications Cooperative Association actually sued 

that agency in 2004 over its new number portability rules which 

were heavily skewed in favor of very large companies. The court 

forced the FCC to perform the required RFA analysis and NTCA 

members offered suggestions on lessening the burdens that the 

rules would have on small businesses. The FCC rejected and ignored the suggestions of NTCA and NTCA sued again, arguing that 

the analysis was deficient. Amazingly, the court stated that the 

RFA’s requirements are purely procedural. It requires the agency 

to do no more than state and summarize issues. I simply cannot 

believe that it was Congress’s intent in passing the RFA. 

Because the FCC is an independent agency, it is largely not subjected to direct oversight by the OMB’s Office of Information and 

Regulatory Affairs. The OIRA was created by Congress to review 

federal regulations and reduce burdens. Further, the FCC is not required to comply with Executive Order 13272, which specifically 

deals with cooperation with the Small Business Administration’s 

Office of Advocacy, nor is it subject to Executive Order 12866, 

which requires a cost benefit analysis for all significant rules. 

We believe the following legislative actions could go a long way 

toward enhancing small business participation in the dynamic communication sector. 


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Codify the appropriate provisions of the executive orders in 

a manner to make them applicable to independent agencies 

such as the FCC; 

Require all agencies to explain whether and how each rulemaking decision promotes and protects small businesses; 

Amend the RFA to clarify that all agencies must suggest and 

analyze creative alternatives that account for the nature and 

competitive position of small businesses when conducting 

rulemakings; 

Certainly consult with the Small Business Administration’s 

Office of Advocacy well in advance of rules being adopted and 

specifically address any suggested authority; 

Provide the FCC with the responsibility to require agency 

bureaus to coordinate regulatory activities. 

Members of the Committee, we are excited to have your attention 

today and I appreciate the opportunity to be here. We are excited 

to have your leadership to develop policies that will give America’s 

small businesses the confidence to invest and flourish. Thank you 

for the opportunity to be here today and I look forward to answering any questions you may have. 

Mr. COFFMAN. Mr. Squires, thank you so much for your testimony. Mr. David Frulla. Did I pronounce that properly? 

Mr. FRULLA. Yes, you are. Thank you. 

Mr. COFFMAN. Okay. Is a partner in the Washington, D.C. office 

of Kelley Drye. Mr. Frulla, you have five minutes to present your 

testimony. 

STATEMENT OF DAVID FRULLA 

Mr. FRULLA. Thank you very much, Mr. Coffman, Ranking Member Vela ́zquez, and members of the Committee. 

I am David Frulla from Kelley Drye in Washington, D.C. I appear today personally, though I have long helped small businesses 

try to cope with federal rulemaking, including in over about a 

dozen RFA-related court cases, several times successfully. 

It is important testimony here today regarding the Regulatory 

Flexibility Act as Congress seeks to ensure federal regulations do 

not impede economic recovery and job creation. In summary, the 

RFA, along with its watchdog, the SBA’s Office of Advocacy, have 

proven valuable in leveling the regulatory playing field for small 

businesses, nonprofit organizations, and governmental entities over 

the last 30 years. In short, the office does a great job in its role 

as a liaison for small entities to the federal government, and it deserves the resources it needs to fulfill its mission, especially if that 

mission is going to be enhanced. More does need to be done though, 

to ensure federal regulations match the scope and scale of these 

small entities. 

As I will explain, certain RFA weaknesses have emerged since 

the Small Business Regulatory Enforcement Fairness Act 

[SBREFA] provided for judicial review of agency RFA analyses in 

1996. The heart of RFA analyses are agencies’ preparation and 

publication for notice and comment of an initial regulatory flexibility analysis [IRFA] and then the preparation of a final regulatory flexibility analysis [FRFA] at the time a final rule is published. Most importantly, these analyses should explore significant 


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alternatives that reduce adverse impacts on small businesses and 

the FRFA should explain why it rejects less flexible alternatives. 

In general, an agency can only avoid the RFA if it certifies the 

rule is not likely to have a significant impact on a substantial number of small entities. These § 605[b] certifications have proved to be 

controversial. 

Importantly, courts have interpreted the RFA to be strictly procedural and that limits its utility. A very deferential Administrative 

Procedure Act standard of review applies. It is an open question 

how much deference the expert SBA Office of Advocacy is entitled 

to when it disagrees, as it sometimes does, with agencies’ analyses. 

And agencies have often been able to create their own ad hoc RFA 

standards that are contrary to SBA guidance and informed public 

input. 

Perhaps most significantly, an agency is not required to adopt 

any more flexible regulatory alternative, and courts generally defer. 

Whatever the cause, that outcome is not acceptable. Further, there 

is an ever growing line of cases that find an agency need not comply with the RFA if the rule does not directly impact a universe 

of small entities. The origins of this construction are both sketchy 

and nonstatutory. Also, there have been difficulties with § 610 regulatory review. An extensive empirical analysis has shown that 

these large scale regulatory reviews have not succeeded and may 

even have been counterproductive. This is particularly discouraging 

given the current legislative focus on retrospective reg review. 

The RFA also included the panel requirement that the ranking 

member discussed. These panels have helped avoid ‘‘ready, fire, 

aim’’ regulatory outcomes. 

Fortunately, there are good ideas in play to amend the RFA, and 

I actually have one or two more of my own that I am going to bring 

forward. It is important to give the Chief Counsel of the Office of 

Advocacy the authority to draft uniform implementing regulations 

for agencies to follow. For instance, EPA should not be able to, as 

it illogically does, assess the impact of a rule based on its impact 

on small business revenue without considering the profits needed 

to fund the change. H.R. 527 would provide for this more formal 

SBA rule. 

Small entity outreach should be expanded during the proposed 

rule stage, along with increased use of SBREFA-type panels. President Obama himself has emphasized such proactive outreach. Include indirect effects, when for instance, states merely act as regulatory intermediaries. There is no reason an agency cannot assess 

the rule’s impact on the small businesses that will ultimately have 

to comply. H.R. 527’s foreseeable concept is on target. 

Regulatory review. Your proposed bill also enhances the 610 reg 

review process. And that should be strengthened, consistent with 

other legislative efforts to enhance retrospective reg review being 

considered in this Congress. The bill also understands the need for 

better understanding and minimization of cumulative regulatory 

impacts. 

You need to add teeth to the regulatory alternatives development 

process. Courts and agencies have both lost sight of the admonition 

in the RFA’s legislative history that the law should be liberally construed to fulfill its purposes. It is not an easy legislative issue. 


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And if you would permit just one more minute so I can finish up. 

Thank you. 

Here is what Congress can do. It can mandate the use of the best 

scientific, economic, and social information available in these analyses, and let the SBA define what those terms mean. And it can 

provide for peer review in appropriate instances. Congress should 

consider development a process where small entities could petition 

the Office of Advocacy to convene a peer review of an agency’s RFA 

analyses, especially as they relate to alternatives. They should not 

be automatic, but let the SBA take a look at that and decide where 

it is appropriate. And then these peer review results could be accorded judicial deference equal to the agency’s own RFA analysis. 

Then you get a better playing field at the courts. 

And finally, opportunities for judicial review should be enhanced 

so they are effective. On the substantive matter, we just talked 

about the issue of deference. But also, small business should not 

have to wait, as one of our clients did, four years for a court to conclude that the agency should have conducted an RFA analysis in 

the first place. Congress also needs to consider the heavy cost of 

federal litigation on small business. 

Thank you very much. I look forward to answering any questions 

you may have. 

Mr. COFFMAN. Thank you, Mr. Frulla. The chair recognizes ranking member Congresswoman Vela ́zquez. 

Ms. VELA ́ ZQUEZ. Thank you, Mr. Chairman. It is my pleasure to 

introduce Craig Fabian. He is the vice president of regulatory affairs and assistant general counsel to the Aeronautical Repair Station Association [ARSA]. He is also a practicing aviation attorney 

and has over 20 years of experience in the aviation industry. He 

began his career as an aircraft mechanic technician with Northwest Airlines, worked as a maintenance controller for U.S. Airways 

and is the former director of technical operation for the Air Transfer Association. Welcome. 

STATEMENT OF CRAIG FABIAN 

Mr. FABIAN. Thank you, Ranking Member Vela ́zquez and members of the Committee. Thank you for the invitation to testify this 

afternoon. 

For those of you not familiar with the Aeronautical Repair Association, known as ARSA, it is the premier association for the international aviation maintenance industry. ARSA’s certificate repair 

station members facilitate the safe operation of aircraft worldwide. 

From an economic perspective, the aviation maintenance industry 

generates over $39.1 billion of economic activity in the United 

States and employs more than 274,000 workers in all 50 states. A 

snapshot of our economic and employment footprint is attached to 

my written testimony. 

On a global scale, North America is a net exporter of aviation 

maintenance services, enjoying a $2.4 billion positive balance of 

trade. Although ARSA members represent a wide cross section of 

the aviation industry, the vast majority of these companies are 

small businesses. As a result, the protections afforded by the Regulatory Flexibility Act, which I will refer to as the RFA, are particularly meaningful to our members. 


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Today I will discuss ARSA’s experience in challenging an agency 

rule under the RFA. That experience began with the decision by 

the Federal Aviation Administration [FAA] to dramatically expand 

the scope of its drug and alcohol testing requirements. The changed 

rule impacted many traditional small businesses that certificated 

repair stations rely on for ancillary services, such as welding shops, 

metal finishers, and machine shops. Those small businesses were 

faced with a difficult choice, either implement a full blown FAA 

drug and alcohol testing program or simply stop serving repair station customers. 

ARSA challenged the rule in court, and in 2007, the U.S. Court 

of Appeals for the D.C. Circuit found that the FAA had violated the 

RFA when it decided that a full analysis was unnecessary. The 

FAA was then instructed to perform an analysis to comply with the 

RFA. Despite the court’s mandate, over three years passed and the 

FAA made no effort to perform the required analysis. As a result, 

on February 17th of this year, ARSA filed a petition for writ of 

mandamus with the same court to compel the FAA’s compliance. 

Several weeks later, the FAA was ordered to show cause and explain why ARSA’s petition should not be granted. As a basis for its 

response to the court, the FAA posted what it characterized as a 

supplemental regulatory flexibility determination, restating its conclusion that a full and complete RFA analysis is not required. 

To put it briefly, despite the passage of time, over five years 

since the final rule became effective and over three years since the 

court’s mandate the issue is far from over. ARSA’s experience in 

dealing with federal agencies reveals that the RFA is treated as an 

annoying burden to the rulemaking process. The agency’s objective 

seems to be finding a way to avoid engaging in the difficult task 

of compiling the economic data and considering alternatives to a 

proposed rule. Indeed, even when specifically commanded by a 

court of law to carry out an analysis, federal agencies are prone to 

engage in foot dragging with the apparent hope that the requirement will just go away. 

We believe the following suggestions will help. Congress should 

allow small businesses and nonprofit associations that successfully 

mount RFA challenges to recover court costs and legal fees. The 

RFA could be amended to require that agencies assess direct and 

indirect costs for small businesses. The RFA could be amended to 

prevent agencies from reversing determinations made during its 

threshold analysis as to what entities are affected by a proposed 

rule. Congress could ensure that any legislation it passes contains 

language, either in the bill itself or in legislative history, clearly 

stating that it does not intend the law to have adverse effects on 

small businesses. 

Congress could empower the Small Business Administration’s Office of Advocacy to make small business determinations for agencies. Congress could also refrain from setting strict timelines that 

agencies must meet to complete the rulemaking process. 

Small businesses are a critical part of the aviation industry and 

the U.S. economy. When it enacted the RFA, Congress created an 

important mechanism to protect small businesses from unnecessarily restrictive and intrusive federal regulations; however, the 


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small businesses in your districts will only benefit from the protections of the RFA if federal agencies obey the law. 

Thank you for your time, for holding this hearing, and for inviting ARSA to be part of it. I would be happy to answer any questions. 

Mr. COFFMAN. Thank you for your testimony. 

And now for the most important part, the dessert portion of the 

hearing, I would like to welcome Mr. Rich Draper, CEO of the Ice 

Cream Club, Boynton Beach, Florida, testifying on behalf of the 

International Dairy Food Association. Mr. Draper, you will have 

five minutes to present your oral testimony. Thank you. 

STATEMENT OF RICH DRAPER 

Mr. DRAPER. Thank you, Member Vela ́zquez, members of the 

Committee, and specially my congressman, Alan West, from Florida’s 22nd District, who is so committed to small business. Sorry 

I did not bring any samples today. If I am invited back, I will. 

I also want to recognize International Dairy Foods Association, 

the leading voice of the dairy industry, for their help with today’s 

hearing. And I would be remiss if I did not mention my wife and 

business partner, Heather, who is with me today. Just briefly, 

Heather and I have been married recently, two and a half years 

ago, first marriage for both of us. She is a former executive in the 

banking industry. So I feel I have done my part to move the economy forward by adding her tremendous talents to the manufacturing industry and also removing one from the banking industry. 

A brief description of my company, the Ice Cream Club. In 1982, 

a buddy of mine, Tom Jackson and myself opened up an ice cream 

shop in a little town called Manalapan in South Florida near Palm 

Beach. Those were the good old days when you could just come 

across an opportunity and pack up and go. 

We started making ice cream in the back of the store and shortly 

thereafter began wholesaling. Today we produce over 120 award 

winning flavors and are known for our crazy mouthwatering varieties. But we only produce in three-gallon tubs so we are not available in grocery stores. 

We supply 500 food service accounts throughout the southeast 

and Caribbean. About seven percent of our business is export and 

that percentage is growing. 

We now employ over 50 people and operate from an 18,000 

square foot factory and we continue to grow. In fact, this year we 

have hired seven new staff members. We still have our original 

store, and my partner, Tom, is still with the company. We deal 

with regulations with local, state, and federal levels by multiple 

agencies, so we are very interested in today’s hearing topic. We 

fully support the efforts of this Committee to ensure that federal 

agencies make regulations as efficient and as least burdensome as 

possible for small business. 

Let me touch briefly on some items of concern for the Ice Cream 

Club. There is nothing more important to the success of our business than the confidence our customers have in the safety and 

quality of our products. We welcome government regulation and inspection when it is utilized as a partnership between industry and 

government to further enhance the safety of food production. HowVerDate Mar 15 2010 01:29 Apr 30, 2011 Jkt 065907 PO 00000 Frm 00013 Fmt 6633 Sfmt 6602 E:\HR\OC\A907.XXX A907

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ever, we are worried about duplicative regulatory agencies at various levels of government. For example, we are inspected regularly 

by the Florida Department of Agriculture, part of the USDA. Also, 

we are inspected by the FDA. We have four major inspections by 

the Florida Department of Agriculture each year, as well as numerous other visits to collect samples and calibrate equipment. 

The new food safety law passed by Congress last year calls for 

even more inspections for food manufacturers, so it will be particularly important that the FDA utilize existing inspections in the 

dairy industry as much as possible. We are concerned that instead 

of targeting increased inspection in high risk areas, FDA will take 

a ‘‘one size fits all’’ approach over the entire food sector. We hope 

that there is not an adversarial gotcha approach coming down the 

pike. Our view is that the vast majority of food producers adhere 

to strict food safety procedures and are working very hard to provide safe, quality, consistent products to the public. 

Recently, the FDA began targeting certain segments of the dairy 

industry for extra environmental testing. The FDA’s process can 

take anywhere from a few days to more than a month to get test 

results back. During that time, businesses have to hold product in 

inventory and production lines may have to be slowed down until 

FDA results confirm the products are safe to be shipped. These additional inspections are slow in response and FDA makes the cost 

of doing business higher for small business and the FDA should be 

required to determine if these extra costs can be avoided. 

Another example of ‘‘one size does not fit all’’ is when we try to 

sell to the government. For example, if we wanted to sell to a VA 

Hospital we have several roadblocks potentially in our way. One is 

the size of the bid. They may require all fluid, including ice cream 

and milk; we only do ice cream. It could be a geographical boundary, say the entire eastern United States; we only supply the 

southeast. That also goes against the buy local movement, which 

has benefits. Plus, we would be subjected to additional USDA inspections. We make over 20 flavors of no-sugar-added ice cream. I 

am not aware of any other company that does. I think that would 

be a great addition to a VA Hospital. We would just like the opportunity to be able to go in and say we are meeting all other regulations. Let us have a shot. 

Since milk is the primary—I will go ahead in just a second. 

Finally, I would like to suggest more involvement by small business at the inception of regulations. This could be accomplished by 

a small committee of business people, such as myself, that could 

offer input not as a way to get a competitive advantage or take 

shortcuts, just smart input from people on the frontline. 

In conclusion, I want to say that I feel very fortunate that we are 

operating in a country that allows us to grow our business. Much 

of the world’s population is under an oppressive regime of some 

sort so we cannot complain too much, so we will take reasonable 

regulations over the alternative. 

Thank you very much. 

Mr. COFFMAN. Thank you, Mr. Draper. I think we are going to 

go ahead and vote right now. I appreciate your testimony and then 

we will return for questioning. 

[Recess.] 


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Chairman GRAVES. We will go ahead and call the hearing back 

to order. I apologize to everyone for missing the first part of it. I 

had a speaking engagement I had to be at and then, of course, we 

had votes. But with that we are ready to start questions. And I appreciate again all of you being here. Some of you traveled a ways 

and we always appreciate that here at the Committee. 

But my specific question to you all when it pertains to the Regulatory Flexibility Act, on January 19th, the President reaffirmed 

the need for federal agencies to comply with the act. And my question to you is have you seen any improvement in agency assessment when it comes to small businesses and as it pertains to the 

Regulatory Flexibility Act? And I would also be interested in any 

specific things that have happened in the last year that frustrate 

you for the administration when it comes to the Regulatory Flexibility Act, specific items that have happened to you. 

We will start with Mr. Squires. 

Mr. SQUIRES. Thank you, Mr. Chairman. 

To answer the first question, the agency, of course, that we deal 

primarily with is the Federal Communications Commission [FCC]. 

And as an independent agency they are exempt from some of the 

executive orders that control federal agency responses. And so we 

have not seen, since January, great improvement in at least the 

FCC’s compliance with the RFA. As an example, and this addresses, I believe, your second question for frustration at least on my 

part is a recent Notice of Proposed Rulemaking currently pending 

in the FCC, which is sweeping regulatory change to our industry, 

pays very scant attention to the initial regulatory flexibility analysis that is required under the RFA. There is just a few paragraphs 

in, I believe, appendix H of that Notice of Proposed Rulemaking, 

that essentially asks all of us, the small businesses, well, you tell 

us what maybe are some ideas to reduce the burden of regulation 

on you. And it is my belief that the RFA really places the burden, 

and rightfully places the burden on the agency itself to come up 

with those creative alternatives, not simply punt in a few paragraphs of a 300 page order the burden to small businesses such as 

ours to come up with those alternatives. 

Chairman GRAVES. Mr. Frulla. 

Mr. FRULLA. Thank you, Mr. Chairman. I have seen some slowdown of, agency rules, maybe for a little bit more deliberation. The 

EPA has done some of that. It has not seemed to me to be small 

business focused. It has been more on the general policy, rather 

than on the presidential memorandum relating to reg flex and 

small business. 

In terms of what has been maddening for everybody on the 

panel, is the easy way now for an agency to handle the Regulatory 

Flexibility Act. It is to say, okay. And we run into this fairly constantly. Yeah, we got it. You are going to get creamed. But we have 

to. We do not have any alternative. And that is the sophisticated 

approach. It has sort of evolved from there is no impact on you, to 

you are going to get creamed. We cannot do anything about it. And, 

they go to court and the court defers to the agency’s rather superficial analysis. 

Chairman GRAVES. Mr. Fabian. 

Mr. FABIAN. Thank you, Mr. Chairman. 


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I would point out a very recent example, this month as a matter 

of fact, and I mentioned in my written and oral testimony the 

FAA’s recent posting of a regulatory flexibility analysis as a result 

of a petition for writ of mandamus that ARSA filed back in 2007 

regarding their drug and alcohol rules and their noncompliance 

with the RFA. Just recently in response to the court’s order to 

show cause why the writ should not issue, the FAA basically once 

again just stated that the rule will not have a significant impact 

on a significant number of small businesses and therefore, we certify that an analysis will not be required. So I think that is no 

change in the behavior of agencies in our opinion. 

Chairman GRAVES. Mr. Draper. 

Mr. DRAPER. From the food manufacturing standpoint, we are 

gearing up for the new FDA regulations that affect businesses like 

ours. So no real surprise that it is coming. We just want to make 

sure that we have everything ready, so that is anticipated additional regulation. Not that it is bad regulation but we are just making sure we are prepared. 

Chairman GRAVES. We have got a little bit of a time crunch so 

I am going to turn to Ranking Member Vela ́zquez for her questions. 

Ms. VELA ́ ZQUEZ. Thank you. 

Mr. Fabian, you suggest that agencies should account for the indirect costs of regulations. And I believe that your experience with 

the FAA makes a clear case for this. However, implementing this 

change is a different matter. How should indirect costs or indirect 

be defined, and how far should agencies be required to go in determining the indirect cost of the regulation? 

Mr. FABIAN. Thank you, Ranking Member Vela ́zquez. 

In my opinion, it should be the population of small businesses 

that will be affected by the rule. In our case it was the FAA stated 

that while the drug and alcohol rules apply to air carriers, so therefore we only have to consider the direct cost of that group of businesses, not at any tier down the line that is more indirect and I 

think there is no bright line for determining where the line would 

be drawn for the indirect costs. However, anyone that would have 

to be compliant with the rule I think should be considered. 

Ms. VELA ́ ZQUEZ. Sure. 

Mr. Frulla, in discussion concerning RFA, some observers have 

suggested that the SBA’s Office of Advocacy be given an expanded 

role. For instance, you recommend that Advocacy be given the authority to write rules implementing RFA. What would be the result 

if Advocacy is given new rulemaking authority for RFA? 

Mr. FRULLA. What I think could happen that would be constructive, because the SBA produces guidance anyway on RFA compliance, is the creation of a standardized set of guidelines about how 

reg flex analyses should be conducted because if there is an expert 

on how to do an RFA analysis, it is that agency, and that is where 

the deference would come from. 

I gave one example in my testimony where we had a case for the 

National Federation of Independent Business where EPA had 

based economic impacts analysis on changes to revenues without 

looking at profit. And it is pretty clear you pay for changes out of 

your profit, not out of your revenue. And the Federal District Court 


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here in D.C. deferred to that decision by EPA, even over SBA’s objection. I mean, that is a clear situation, I think, where centralized—— 

Ms. VELA ́ ZQUEZ. And if you were to prioritize, what do you think 

is more important—giving Advocacy the right—the authority to 

write rules or giving them Chevron deference? 

Mr. FRULLA. I think they go together because by writing the 

rules and being tasked as the expert to write the rules, the deference should follow. 

Ms. VELA ́ ZQUEZ. But if I asked you which one, prioritize one or 

the other, which one would come first? 

Mr. FRULLA. I think they are of a piece. I think the reg writing 

authority would get you to the deference, and the deference would 

be the place to look, at least in terms of the reg writing. I mean, 

there are other issues relating to alternatives which I raised. It is 

trickier. 

Ms. VELA ́ ZQUEZ. Among the witnesses today there have been 

many proposals about reforming the RFA, and this includes expanding the panel process to all federal agencies giving SBA’s Office of Advocacy rulemaking authority, strengthening outreach to 

small businesses, and making the analysis required by RFA more 

specific. So if we count the different proposals close to 10 outlined 

in your testimony, would Advocacy’s proposed fiscal year 2012, 

budget with a staff level of 46, and nine million dollars be enough 

to implement all these proposals? 

Mr. FRULLA. What I have said in my testimony is, I mean, there 

may be reason to be judicious about expanding the panel process. 

You are looking at major rules, not every rule. And I think the 

SBA, they need more budget to do this. If Congress is going to say 

small business is the engine of job creation and growth and we 

have this agency—— 

Ms. VELA ́ ZQUEZ. You know we are in the midst of CR negotiations and so people are asking to cut the budget, not to increase 

the budget for any agencies. 

Mr. FRULLA. I understand. 

Ms. VELA ́ ZQUEZ. If you have to guess how many more employees 

and how much more funding Advocacy would need, do you have an 

estimate? 

Mr. FRULLA. I think I would have to defer to them on that. It 

would probably depend upon the—you could write the regs with 

probably whatever force you have. A lot of that information is already contained in their guides in terms of—— 

Ms. VELA ́ ZQUEZ. Remember that Dodd-Frank, regulatory reform, 

will cover all the agencies and SBA’s Office of Advocacy will have 

to be part of that. 

Mr. Draper, you mentioned that you are worried about duplicative regulation, particularly regarding food safety inspection of 

which you are already subject to by the state of Florida. Can you 

discuss how these inspections impact your business and your annual costs? 

Mr. DRAPER. Our regular inspector, as I mentioned, is the Florida Department of Agriculture through the USDA. Additional inspections require significant time, mainly my time. We are not of 

a size—I do have a full-time quality control director but when we 


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have inspectors come in there are times when they are not really 

familiar with dairy but they will command our time and rightfully 

so, but we feel that their existing inspectors are doing almost everything the FDA does. The FDA tends to focus more on labeling, 

paperwork, things like that, recordkeeping, whereas the FDA is 

more—the Florida Department of Agriculture is more involved with 

our actual processes, pasteurization, things like that. So it struck 

us that that may be something that could be more efficient. The 

FDA certainly has a role but our experience has been the dairy 

part of their inspection is not at the level that the Florida Department of Agriculture is. 

Ms. VELA ́ ZQUEZ. Mr. Squires, do you have a recommendation as 

to how can we close the loophole that would allow for agencies to 

certify that they have conducted the required impact analysis? 

Mr. SQUIRES. Yes, I believe my recommendation, Ranking Member Vela ́zquez, would be to just clarify the RFA to make sure that 

the agencies have the directive from Congress to properly offer alternatives for small business. Again, I fall back on our recent experience with the FCC. One of the things that small companies, small 

rural telecom providers such as mine is criticized by the FCC for 

is our corporate operations expense, the size of those expenses in 

comparison to our overall operating expenses. But we only have 

those expenses because of the degree of regulation that is impressed on us by the FCC. So it is a real tough situation for us. 

So I believe that this body can clarify for federal agencies that they 

need to come up with alternatives. 

Ms. VELA ́ ZQUEZ. Thank you. Thank you, Mr. Chairman. 

Chairman GRAVES. Mr. West. 

Mr. WEST. Thank you, Mr. Chairman. Madam ranking member. 

In a previous career, you know, I had a pretty simple life. When 

you sit on an airplane and you have a parachute on, the light is 

red, you do not jump. When the light is green you do jump. So 

what I am sitting here and listening to is that we saw that there 

was a problem with burdensome regulation back in the ’70s. We 

created an agency or this act, the Regulatory Flexibility Act. Now 

we come along and we have federal agencies that are not adhering 

to the analysis that defines what have you of this RFA. So my 

question is in the simple world, what do you think is driving the 

federal agencies not to adhere to the RFA? I mean, is it belligerence? Is it the fact that they think they are untouchable? I mean, 

what are the things you believe is causing this rub, this recalcitrance? 

Mr. DRAPER. I can start out. I will just mention from our world 

again, the food processing world, kind of what I mentioned to 

Ranking Member Vela ́zquez that certain agencies have a focus on 

what they have done well, and then they might also pick up other 

industries as part of it. Dairy, our world is specific and we have 

specific inspectors now that are in a lot of cases former dairy people with good knowledge. They come in and they share the knowledge, which is appreciated. Sometimes we have other agencies that 

come in, not just the FDA but anyone else that might come in to 

inspect, maybe they have to, they have us wrapped up because we 

are food. Maybe it should be more industry specific. And the people 


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that do inspect those businesses would have the industry experience. 

Chairman GRAVES. Open to the full panel. 

Mr. FABIAN. Congressman, I think that the, as I stated in my 

oral and also in my written testimony, is the fact that it is easy 

for the agencies to circumvent the RFA and just certify that it is 

inapplicable and really without repercussion. I think it is, at least 

our case proves the RFA does not today have real teeth and if the 

RFA is viewed as a burden and something to avoid it can be accomplished rather easily. 

Mr. FRULLA. I would agree with that. We had some early cases, 

for instance, where a federal court in Florida had designated a special master to look at the agency’s good faith—an agency’s good 

faith in complying with the RFA. That kind of thing, if you can get 

to that point, can get you some attention. But that is not an everyday occurrence in litigation. 

I think there are two ways this happens. One is agencies just do 

not get it. They really do not get and understand the impacts that 

their regulations have on small businesses. And so they just proceed. Others have their mission and they do not care; they want 

to proceed. So you have those two as the animating factors I think 

we most often see. 

Mr. SQUIRES. I do not believe that it is belligerence. At least I 

hope that it is not in the cases that we have had but I do believe 

that it is complete indifference because the courts have said that 

the act itself is procedural only. And so why would an agency devote a lot of resources and time to an RFA analysis? I believe congressional mandate to put some teeth into the act would go a long 

way. 

Mr. WEST. And one final question if I can. If you look at the time 

period when you first started your business, and if you were to try 

to go into that endeavor today, do you think that it has become 

easier or do you think there are more obstacles out there for you 

to try to create the exact same business that you did 20 or however 

many years ago? 

Mr. SQUIRES. Clearly for us, Mr. West, it would be almost impossible to start our business today. We began in 1954 as a rural telephone cooperative with a handful of farmers and ranchers throwing 

50 bucks into the kitty to string wires on the poles, largely unregulated. And today we have a full finance department and kind of a 

mini accounting firm in our own small company. We have lawyers 

and economists, a much more complicated industry now, probably 

impossible to start. 

Mr. FRULLA. I think I will demur. But I will note there are a lot 

more lawyers now than there were in 1987 when I started. 

Mr. DRAPER. I will mention we would probably look at opening 

up a store but taking the leap into the manufacturing, now there 

are so many new things over the past 30 years and when we started allergens weren’t really on the radar screen. Now it is a huge 

part of our industry and our whole production process. And the regulations that we are following now, it would be a daunting task but 

in our case starting small we took one step at a time and we will 

keep doing that. But there are more challenges now but we hope 

to, as evidenced by our membership in International National 


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Dairy Foods and just trying to be fully educated, having a quality 

control director so we can meet all of the current regulations, but 

it is a task. 

Mr. WEST. Thank you, Mr. Chairman. I yield back. 

Chairman GRAVES. No more questions? 

I want to thank the witnesses for being here. I apologize. We are 

going to have to end just a little early. We have a briefing on Libya 

that we definitely want to be at, but again, I appreciate your testimony and for coming in. I apologize for the votes but the Committee is going to be examining legislation when it comes to the 

RFA so that businesses, you know, obviously can create jobs and 

do not have to continue to comply with some of the ridiculous regs 

that are coming out that have not taken into account how much it 

is going to harm business and how much affect it is going to have 

on job creation. But with that, again, I appreciate you being here 

and we will say the hearing is closed. Thanks. 

[Whereupon, at 2:31 p.m., the Committee was adjourned.] 


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