All Commentary
Wednesday, August 1, 2001

Do Regulators Know What They’re Doing?

Next Time You See a Code, Take a Closer Look

Society gives great power to the regulators who set standards for the rest of us, but—strangely—it does not set standards for the regulators themselves. The laws that establish regulatory systems do not require that those who write regulations on health, safety, commerce, transportation, and so on have any definite ability or qualifications. Prospective regulators do not have to pass IQ tests. They do not have to demonstrate that they have analytical minds. They do not have to prove that they have a command of any important body of medicine, science, or engineering. They do not have to demonstrate proficiency in cost-benefit analysis. In most cases, you become a regulation-writer simply by walking off the street and getting a job in a bureaucracy. Fire codes, plumbing codes, electrical codes, building codes, zoning codes, health and safety codes: these regulations are, in almost all cases, drawn up by ordinary people who are guided by little more than their own opinions and prevailing prejudice.

We recently had a case of regulation writing here in northern Idaho that illustrates how shallow this process of rule-making can be.

Last summer an “Environmental Specialist” of the Panhandle Health District announced new proposed regulations for daycare establishments. The aim, Mrs. Jean Hughes told the local newspaper, was to “catch a lot of the smaller daycare centers” and bring them under the jurisdiction of her office. The new rules would require those who care for as few as two children to be licensed. To make sure daycare providers were doing the right thing, Mrs. Hughes drafted 15 pages of regulations, which contained over 680 requirements, covering everything from posting an “emergency evacuation plan” to keeping hot foods above 145 degrees.

According to Mrs. Hughes, these regulations were just the beginning, the “foundation” of a still more comprehensive plan of daycare regulation incorporating the wish lists of “child care advocates.” What made the prospect of this regulatory empire so disturbing was that it appeared to have no basis in science, medicine, or economics. To confirm this suspicion, I went to the Health District and requested a copy of the justification for the regulations. I was told that there was no such document. So I wrote Mrs. Hughes, challenging her to provide the rationale for her regulations. She did not reply.
To motivate a response, I made my letter public by having it published in the local newspaper. It ran as follows:

Dear Mrs. Hughes:
I’m sorry you are not responding to my requests for information about the new daycare regulations you are elaborating on behalf of the State of Idaho. Since these regulations will have the force of law, and will be backed by police power, it seems to me you have an obligation to be forthcoming about your rationale for imposing them.
Thus far, your office has produced only the proposed regulations, and not one word of justification. Here are some of the questions you need to answer:

1. How many of these “micro” daycare establishments that you propose to regulate are there? How many children are in these establishments? (This data is obviously a prerequisite for gauging any effects of regulation.)

2. What has been the illness/injury rate of children in the unregulated micro daycare establishments compared to the illness/injury rate of children in regulated daycare? (In other words, how do you know the regulation is necessary?)

3. What scientific evidence exists to show that any of the proposed regulations would actually lower the illness/injury rate in daycare establishments? (For example, is there a scientific study that shows that if a daycare’s hot water has a temperature of, say, 75 degrees—10 degrees less than the proposed regulation—there is more illness in that establishment?)

4. What will be the cost to daycare operators of implementing the proposed regulations?

5. What will be the effect of the increase in costs and red tape on (a) daycare costs to parents and (b) closure of daycare establishments, and hence the supply of day care?

6. To what extent will the regulation and forced closure of micro daycare establishments result in a decline in loving environments for children?

Rational regulation would require clear, documented answers to all of the above questions. Otherwise, you run the risk of implementing regulations that do nothing to enhance the safety, health, or happiness of children in day care, while adding to costs, adding to taxes, and taking away freedom.

I eagerly await your answers.

Sincerely yours,
James L. Payne

There’s not much more to tell. The public embarrassment finally motivated Mrs. Hughes to send me a letter. Not surprisingly, it was a brief, evasive reply that ignored all my questions. In an abrupt reversal, she denied that she had any intention to put forth daycare regulations. All she was doing, she said, was “gathering information and input from the public on what the perceived needs and requested areas of enhanced regulations are.” In other words, simply demanding that a regulator give sound scientific and economic justifications for her regulations caused her to tear them up and pretend they never existed!

Next time you see a fire code, or a sanitary code, or a building code, take a closer look. You will see requirements not backed by scientific research and which have not passed any objective test that demonstrates that they do more good than harm. They merely reflect the opinions of the people who wrote them. Sadly, no one stopped to ask them if they knew what they were doing.