The Universe of Public Safety Standards

Public standards seem both more visible and more controversial than private ones. In the areas of environment, health, and safety, most of the federal agencies that develop standards are practically household names: EPA, OSHA, FAA, FDA. Other federal agencies, involved in similar missions, have less name recognition, but they are nevertheless well known for what they do. The National Highway Traffic Safety Administration (NHTSA), the Nuclear Regulatory Commission (NRC), and the Consumer Product Safety Commission, for example, all write safety standards in areas where public regulation is widely recognized and generally supported.

These agencies vary considerably in size. It is difficult to compare the number of standards they develop because public standards usually come in packages, rather than individually. Unlike the private sector, where separate committees develop discrete standards on a project-by-project basis, public agencies take a range of actions from the adoption of single standards to the implementation of complex statutes. The Code of Federal Regulations is not divided by individual standards. For example, the safety standards of the NRC comprise 850 pages in one title of the code, which by one count represents approximately 350 standards. In contrast, the subchapter of the code concerning biological products regulated by the FDA accounts for approximately 325 standards.^[9] Lacking a comparable measure of actual standards-setting activity, the relative size of these agencies can roughly be gauged by their budgets and staff (see table 3).

These agencies also vary considerably in age, reflecting the three waves of public regulation this century. The Food and Drug Administration (FDA) and the Federal Trade Commission (FTC) are the oldest, reflecting the Progressive Era, when federal regulation began. The FDA was created in 1906, the FTC in 1914. The Federal Aviation Administration (FAA) evolved from a New Deal agency, the Civil Aeronautics Board (1938), created along with a host of agencies primarily engaged in economic regulation (for example, the Securities and Exchange Commission and the National Labor Relations Board). The most controversial federal agencies are also the youngest. These agencies spearhead the "new social regulation" movement, a grandiose agenda of environment, health, and safety objectives adopted about twenty years ago. The most prominent are the EPA, OSHA, NHTSA, NRC, and CPSC. Although other strategies would be possible, these agencies generally favor

"command and control" regulation, which relies on standards, inspectors, and penalties to achieve social ends. One important feature common to all of them is the Administrative Procedures Act (APA), which describes two kinds of rulemaking, formal and informal. Most agencies favor the latter but implement it in a "hybrid" fashion that incorporates some due process protections beyond those demanded by the APA.^[10]

Agencies concerned with environment, health, and safety regulation account for only a small portion of all federal standards. By one count, the federal government maintains more standards than the private sector. According to the National Bureau of Standards, there were forty-nine thousand standards in 1983.^[11] As in the private sector, however, most of these are not particularly weighty. The overwhelming number are procurement standards adopted by either the Department of Defense (38,000) or the General Services Administration (6,000). The number of federal standards with significant implications for the public interest is minuscule by comparison.

In most areas involving the environment, health, or safety, there are far more private standards than public ones. Take consumer product safety, for example. Hundreds of private standards are developed by UL alone. In contrast, the relevant federal agency, the CPSC, had twenty-one active standards in 1984, many of which were carry-overs from old statutes.^[12] A few others seem absolutely frivolous. Not coincidentally, these standards (matchbooks, swimming pool slides) were overturned in court. This leaves only a handful of safety standards actually devel-

oped by the CPSC—most prominently, standards for lawn mowers, gas-fired space heaters, electrical toys, and citizens band base station antennas.

In most areas that government seeks to regulate there are already so many private standards that interaction between the two sectors is inevitable. Model codes and use codes, including most standards developed by the National Fire Protection Association, contain repeated references to "the authority having jurisdiction." In other words, they are written in anticipation of adoption by government (usually at the local level). The federal agencies that regulate safety issues are also intertwined with the private sector. Many federal agencies rely directly on private standards to accomplish public purposes. The FDA, for example, has adopted over three hundred standards from private organizations such as ASTM, the American Public Health Association, and the Association of Official Analytical Chemists. The National Highway Traffic Safety Administration, by contrast, uses private standards (developed by the Society of Automotive Engineers) for test methods and other largely technical matters, while leaving basic safety questions to the public realm. Most agencies participate in private standards-setting activities. The CPSC, which originally had a procedure for private organizations to "offer" standards for agency adoption, has participated in the development of hundreds of private standards. The Nuclear Regulatory Commission participates on more than 150 private standards committees. Although interaction and coexistence prevail, there remain distinct areas of public regulation.