Wednesday, July 17, 2013

Nuclear Power and Regulation:

Pulling Rabbits out of Hats

This week, the news carried an item that must have amused most people.  A magician is being harassed by the US Department of Agriculture (USDA) for not having a disaster plan for what to do with his rabbit in case of a natural disaster such as a tornado or flood.

I can hear the groans.  Yet another case of "arbitrary and capricious Federal regulation."  The little guy being harassed by the big, bad government.

All true.  And I think Marty Hahne, the magician in question, could now successfully expand his repertoire, if he wants to, from pulling rabbits out of hats to doing stand-up comedy about magicians battling government agencies.

But if we peel back the layers a little, we can understand both sides of this story. 

The rule was designed to deal with zoos and other institutions that have large numbers of animals, and in some cases, dangerous animals.  And since Washington, DC was only recently stalked by a red panda that escaped from the Washington Zoo, there is ample evidence that plans do need to be in place for the unexpected when it comes to animals under institutional control.

Therefore, most people would likely agree that we need some sort of rule.  In that light, let's examine this rule.

Is the overall rule a "good" rule?  It probably is.  As noted above, we need institutions to do something.  The only way to guarantee that is with a rule.

Is the rule a bad rule for magicians with rabbits?  Absolutely.

Should the USDA officials have thought about the needs of magicians when they wrote the rule?  Ideally, yes, of course, but I'll answer that question with a question of my own:  Would you have thought about magicians?

Should they have thought about bunny rabbits?  Same comment, and same question as above.

Clearly, what this incident shows us is an inherent short-coming of rulemaking.  A rule is made to address a particular need (emergency plans for zoos and other such institutions), and, I might add, sometimes a need identified at a particular point in time.  (More on that later.)

The rulemaking process has a safety valve that is supposed to help the agencies involved identify unanticipated consequences.  One problem in this case:  magicians probably don't review the Federal Register every day!

When the safety valve doesn't work, or when it works imperfectly, rules get put in place that have unintended consequences.  In this case, they create an undue burden on a man who pulls rabbits out of hats.  What is particularly ironic in this case is that he could keep the rabbit without being burdened by the rules if the rabbit was just a pet and was not used in a commercial situation.  Or, as the article points out, he could kill the rabbit and eat it without being bound by any rules.

You might well ask:  What is the message here?  Is this a case where it was wrong to have a rule at all?  I don't think so.  I would think that it is important for zoos and other institutions to have emergency plans in place.

Likewise, most of the regulations in other areas have a fundamental purpose that is valid.  The problem is that the regulators don't think of all the ramifications.  Or, in the case of technology, they write a rule that doesn't anticipate a new development.  Or, the situation changes in some other way.

This is not intended to excuse poor regulation.  It is a reality.  It is not that different from the reality that faces individuals and families and businesses all the time, for reasons big and small.  You plan a dinner party for the maximum number of people you can seat at your dining table, then learn that one of your guests has a significant other you hadn't known about.  You buy a house convenient to your job and then get a better offer--but with a much longer commute.  Your company moves into new quarters with just the right amount of space for the staff, and then gets a big new contract that requires additional staffing.  Trivial examples, perhaps, but some of the same issues are at play. 

So, what is the solution?  Obviously, the solution is that shortcomings in the regulations should be fixed as they are identified.  Of course, that usually turns out to be "easier said than done."  The rulemaking process is slow and cumbersome (for reasons both good and bad).  In the case of the magician's rabbit, the USDA does recognize the problem and is going to look into it, but that is usually a slow process.  The problem will probably eventually be fixed, but no doubt, Marty the magician is going to be saddled with excessive paperwork for a long time.  That is, unless he decides to pull an iguana out of his hat instead (as this particular rule applies only to mammals)--or unless (hint, hint) he can pull a final revised rule out of his hat!

(There is one "magic trick" the government can use, and they possibly will in this case.  That is, they can use a blanket waiver or an exemption for magicians with rabbits.  However, such waivers need to be used judiciously, or else fixing one mistake in a regulation could well end up creating another.  And for readers outside the US, I should note that, while the US uses a common-law system that allows the use of waivers, countries that use a civil law system generally do not allow waivers.)

The real message of this story is that government rules are only as good as the information that informs them.  If the regulators did not think about magicians and rabbits and if no one brought that particular situation to their attention, it is not surprising that the rule missed the mark.  If new technologies emerge and if regulations had no way to anticipate those technologies, it is not surprising that those rules may be fine today, but inadequate a decade from now.

Given this reality, I do not fault the government for rules with flaws.  I must admit, I got a good laugh out of this one, but I can fully understand how it happened.  However, for the same reason, I do fault the government for the slow pace of fixing flawed regulations.  While there is a process that takes some time (for example, to obtain and assess stakeholder views), the total process of making or revising a rule usually takes far longer than the public comment portion requires.  That is an important concern.

The case of magicians and the government is, of course, a special one.  The regulators are clearly at fault, but in reality, one can't have expected them to think of this very special scenario.  For most areas, where the industry watches their regulators closely, it is harder to make this statement.  Certainly, the regulators miss things.  In some cases, and particularly in cases where technology changes over time, the industry may miss things as well.  In other cases, the industry may raise concerns, but the regulators may decide the concerns are not valid, or not important, or are trumped by other considerations.

One reason some rulemakings take a long time is to accommodate the continued dialogue needed to sort out these kinds of issues.  I really don't know how often regulatory changes are made to address issues that were identified during the initial rulemaking process, but clearly, every time this does happen, it represents a failure of the public comment provisions of the rulemaking process to operate as intended. 

All government agencies really need to find ways to improve their rulemaking and to streamline the rulemaking processes, particularly where changes are needed to address shortcomings in existing rules.   Unfortunately, in this era of government cutbacks, I can't see an easy path for such reform.  And there are no magicians in the government!


1 comment:

  1. Maybe we need to think twice before writing any new rules. Taking the zookeeper issue as an example. We have had zoos for well over 100 years and somehow we survived. Do we really need a constant stream of new rules? I don't think so.