About Me

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I am a consultant and general counsel to International Ride Training LLC as well as a practicing attorney in Avon, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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Monday, August 15, 2016

A Safer Ride? (Pt. 1): Is The Federal Government A Better Regulator Than The States?

To state the obvious (and to understate the matter significantly), this has been an extremely bad week in the amusement industry. The week began with news of the death of 10-year old Caleb Schwab at Schlitterbahn waterpark in Kansas City, Kansas.  Just days later, news broke of an accident at a carnival in Tennessee involving a Ferris wheel and resulting in injury and hospitalization to three guests.  And the week ended with news that a three-year old was thrown from a roller coaster at Idlewild amusement park in Pennsylvania.  As the public has learned more about these incidents, and especially the reportedly gruesome nature of Caleb’s death, the outcry for answers has been immediate and unmistakable.  The media, in particular, has repeatedly focused on the so-called “patchwork” of state regulations in the amusement industry and, more specifically, the fact that there is no federal regulatory body overseeing ride safety in the United States.  

None of these criticisms are particularly new – indeed they arise whenever a tragedy strikes our industry.  But this time, faced with the unbearably tragic death of a young boy at a family-friendly waterpark, these criticisms seem to have gained more traction in the public consciousness.  It is simply impossible to look at a picture of Caleb Schwab and to not feel the greatest empathy for his family and to not want to make changes to ensure that no other family has to ever go through this again.  It is easy to argue, as Jake Tapper recently did on CNN, that the system failed Caleb, and that the answer is federal oversight

But, even after this week, one of the worst I can remember in the nearly 25 years I’ve been involved in the industry, I still maintain that federal ride safety regulation is not the answer.  And I think it’s time, after all these years writing this blog, that I explain exactly why I feel that way.  As I’ve done with other important issues in the industry, I’m going to look at this in three parts:  In this piece, I’m going to look at the question of whether the federal government is somehow inherently “better” than the states at regulating.  The next piece will look at what a potential federal ride safety program might actually look like and, critically, how much it might cost U.S. taxpayers.  The third will look at the question of whether there is any actual evidence that state regulation is not working.  The media has made their case.  It’s time for me to make mine.

Now let me begin by saying that I don’t have any idea what caused any of the events of this week, and I am not going to speculate or comment on unproven possibilities.  These incidents are being investigated and answers will be forthcoming.  I intend to let those investigations progress before wading into commentary on the cause of these accidents (and, even then, I may not).  I don’t know whether any of these incidents were the product of negligence on the manufacturer’s part, the operator’s part, the guest’s part, or were caused by some other issue entirely.  My point in writing this is not to suggest that we should not expend every available resource to investigate and learn from these accidents so that they do not reoccur nor to suggest that there is no room for improvement in any particular state’s regulatory system.  My point is only to address the most frequent, reflexive reaction to such tragedies – the idea that these accidents would not occur (or would occur less frequently) if there was federal ride safety oversight.  So let’s get to it. 

To begin, I think it is worth considering the most basic assumption underlying the push for federal oversight:  that Federal regulation is somehow inherently superior to State regulation.  But is there any real support for that threshold assumption?  If there is, I can’t find it.

Let’s start with whether the federal government is somehow “more powerful” than the state when it comes to regulating.  It isn’t.  States have the power to investigate potential violations of their laws, just as the federal government does.  States have subpoena power to compel regulated parties to produce evidence as part of an investigation, just as the federal government does.  States have the power to impose civil and criminal penalties for violation of its laws, just as the federal government does.  There is simply nothing inherently more powerful about the federal government’s regulatory power as compared to the states that might make it more effective in regulating. 

So if the Federal government is not more powerful in regulating, could it just be more effective.  I don’t think so.  In fact, I believe that the Federal government would likely be less effective when it comes to amusement safety regulation than the states currently are.  Generally speaking, state legislatures and regulators are more capable of addressing, quickly and efficiently, particular issues than is the Federal government.  As both presidential candidates have reminded us on any number of occasions, the Federal government has been largely ineffective in legislating or regulating anything over the last several years.  The phrase “Washington is broken” is not an exaggeration.  Congress has shown itself to be unwilling or unable to respond to even the seemingly most uncontroversial and popular public demands for action.  For example, nearly 90% of the American people favor basic background checks for gun sales, but Congress has ignored this overwhelming public support in favor of doing, essentially, nothing on the issue.  To imagine that amusement ride safety regulation will be the bridge that brings Congress together and forces action, when a classroom of dead children in Sandy Hook couldn’t, is na├»ve.   

These political forces are far less pronounced at the state level, in places like Albany, Sacramento, Topeka, Nashville, or Harrisburg, and thus more can get done more quickly.  Given their limited size, scope, and direct proximity to constituents, state governments are typically much more facile in adapting to changing circumstances to meet the needs and demands of their citizens than the federal government.  If Kansas residents and their lawmakers decide that Kansas’ ride safety laws need to be changed, Kansas does not have to convince legislators from South Dakota or Alabama to support the bill and vote for it.  Kansas lawmakers are singularly focused on the needs of Kansas residents and can respond to those individual needs much more effectively than the federal government.  If Tennessee would prefer to adopt a more stringent amusement safety regime or Montana would prefer to expend its resources on other programs (given the paucity of amusement rides in Montana), those states can act accordingly and, should things not work as intended, retain the flexibility to modify the regulatory regime on their own time frame and without involving other states who may not want to make similar moves.  The system of state regulation, thus, allows a state to tailor its law to its needs.  Something that would be impossible for the Federal government to do.

Now, the legislature is only half the issue.  The other half is the regulatory agencies charged with administering ride safety laws.  Here again, the federal government has proven itself often times ineffective – even as to programs with obvious national importance.  The Veterans Administration is beset with serious problems and, many say, is failing the very men and women that defend our country.  A recent Senate report has found that the Department of Homeland Security, formed to keep us safe from terrorist threats following 9/11, is “not successfully executing any of its five main missions.”   The newly formed Consumer Financial Protection Bureau, formed in the wake of the 2008 economic crisis affecting millions of Americans, has been hugely ineffective in actually benefitting debtors and Congress took two years to even confirm a director for the agency.  And a recent report from the U.S. Transportation Department Office of Inspector General found that the Federal Aviation Administration, the agency charged with overseeing flight safety over American airspace, was ineffective in monitoring and ensuring compliance with regulations covering the transport of hazardous materials by air carriers.   These problems are national imperatives.  The safety of the American people, both physically and financially, depend on these agencies doing their jobs well. But even with so much on the line, the federal government fails.  Is there any reason that we should believe that the federal government would do better with something like amusement ride safety – something with a considerably smaller national focus than terrorism, aircraft safety, or financial regulation?

Of course, this is not to say that states are perfect or are always effective in their regulatory efforts.  They aren’t.  But, as to amusement ride safety, in particular, it is rare to hear that the state did not regulate as it was required under the law.  Sure, in the wake of an accident, it is an oft-sung chorus that the state regulations themselves were somehow lacking, but rarely is the argument made that the regulations are fine, but the regulators just aren’t doing their jobs.  And, in those rare instances where the state is found to have not done its job, as happened a few years ago in Pennsylvania, states have acted quickly to fix the problem.  Far more quickly than would be possible under the best of circumstances in the Federal government.

So, no, I do not believe that the federal government is better at effectively regulating in general or that it is even remotely well situated to take over and effectively implement a national ride safety program.  But, to indulge the idea further, let’s assume that it could or should.  What would such a program need to look like to be effective and how much would it cost?  Is there even any appetite on Capitol Hill (as opposed to in the media) for such a program?  Questions for next time … see you then.

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