Regulatory Groundhog Days
Phil: What would you do if you were stuck in one place and every day was exactly the same, and nothing that you did mattered?
Ralph: That about sums it up for me.
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Every day, 275,000 federal regulators wake up and follow the same script:
Identify, Regulate, Inspect, Repeat
Identify, Regulate, Inspect, Repeat
They identify problems that must be solved by federal regulation; they regulate in thick, dense books (Federal Register) that is published every day at 6 a.m. Monday through Friday; they inspect every corner of American life for compliance with their regulations, and then repeat the next day.
This is what they do to produce an average of about 4,000 new, final rules dictating what manufacturers can make, how they make it, their working conditions, and the information they must provide to consumers and workers in virtually every aspect of American life.
Those 4,000 new regulations don’t replace old ones, they are just added to all of the regulations that came before. That’s nearly 11 new regulations every single day. Two regulatory scholars find that “…as of January 3, 2020, the Code of Federal Regulations, the books that contain all regulations created since 1887, contains over 103 million words of rules promulgated by more than 100 agencies.”
All regulations don’t apply to everyone. But, that’s part of the challenge. Manufacturers, particularly those that have a full-time job just trying to run a small business, must figure out which ones apply to their business. Small businesses must feel like they are suffocating in a swamp of wet blankets.
That’s not to say that all regulations are bad. Many have brought huge benefits to the American public such as EPA’s lead abatement program and FDA’s trans fatty acid labeling and removal of GRAS (generally recognized as safe) status.
But far too many don’t really do anything. Some of them are just weird. For example:
It’s a federal crime to:
Sell anti-flatulent drugs without noting that flatulence is “referred to as gas.”
Make an attempt to change the weather without telling the Secretary of Commerce.
Say something that makes someone so mad that it makes them want to hit you in a national forest.
Willfully make an unreasonable noise at the Pentagon.
Skateboard at the National Institutes of Health
Take a plant from a national wildlife refuge
Circle a boat in a clockwise circle when pulling a water skier
There are others that address phantom risks, i.e., not real risks at all. Here are two that should leave you with that WTF feeling:
DOE energy conservation for microwave clocks (The rule will save consumers $1.20 per year).
FDA having to apologize for banning food additives based on a questionable methodology for testing saccharin on rats.
Some may have a small effect, but the reason for them is to have government guarantee profits:
Calling used engine oil “hazardous waste” to guarantee additional business for firmsthat treat hazardous waste.
Every single day, hundreds of thousands of federal regulators wake up and think, what can we regulate today? It doesn’t have to solve any problems, it doesn’t have to address any significant risks, it can be foolish but, no matter what, they must keep filling the Federal Register.
When I worked at FDA, our successes were measured by both the number and the size of the regulations we put out. I suspect that is true for the 100 or so other agencies.
Since the very first regulatory agency, the Interstate Commerce Commission, started 135 years ago, every day is the same for regulators.
Identify, Regulate, Inspect, Repeat
Identify, Regulate, Inspect, Repeat……… which leaves us with a question…
When can they stop?