Defining the Range of Acceptable Solutions

The case studies suggest that even when public and private organizations address the same or similar "problems," the range of acceptable solutions varies considerably. These differences involve what might be called solution definition, a process analogous to problem definition. Defining the range of acceptable solutions is also a matter of philosophy, beyond the scope of the deliberative process. NFPA does not spurn housekeeping rules for economic or functional reasons. In fact, several firms require in-house what they so strongly oppose in external standards imposed by OSHA or NFPA. The objection is to any industry-

wide standard infringing on what is perceived as management prerogative. The same phenomenon exists with matters of less consequence than housekeeping. UL avoids certain types of warning labels, not because they would be too costly, but because they conflict with its philosophy of regulation. Similarly, most private standards-setters refuse to apply standards retroactively. The logic is predominantly economic. But NFPA's position, stated in the grain elevator proceedings, against making retroactive any provision requiring "even a dime of investment" suggests that more than economics is at issue.

Perhaps the most familiar example of "defining the solution" to a safety problem is deciding whether standards should specify design requirements (such as metal thickness) or performance levels (such as an "action level" for housekeeping).^[6] Another design choice concerns the extent to which standards should (a) modify products or processes or (b) communicate information about risk to the consumer or user. These alternatives are not mutually exclusive, though they are often treated that way. The difference in how public and private standards-setters tend to view these questions is not well understood. Government is often accused of favoring design requirements over performance standards, adopting rigid rules that stifle technological innovation. Business interests, on the other hand, are presumed to favor performance standards. The case studies belie these characterizations. In none of the four cases was the government standard as detailed or lengthy as the private standard. UL and AGA standards are filled with detailed design requirements, and these requirements meet with the general approval of industry. In contrast, OSHA's "action level" for grain elevator housekeeping—a pure performance standard—was strongly opposed by industry.

The case studies suggest many more subtle differences in public and private conceptions of safety regulation. Five examples are detailed below. Some apply exclusively to consumer products, others to industrial processes and practices; a few apply to both. The discussion that follows this description unifies these seemingly disparate examples by considering the common links to professional ethics.

Banning a Product or Process

Perhaps the most fundamental difference in public and private conceptions of safety regulation is that only the government gives serious consideration to prohibition as a regulatory strategy. The private sector

tends to assume that the object of regulation is socially desirable and is (or can become) sufficiently safe to be "acceptable." UL begins with the assumption that a product is not inherently or unreasonably safe. If it is too unsafe, UL will not list it. But the issue rarely comes up. The electronic bucking bronco is the only example that several UL officials could name of a product that UL would not accept for testing. In contrast, public agencies generally assume practically the opposite: that the object of regulation is suspect and may not be sufficiently safe to be socially acceptable. The CPSC space heater rule began as a proposed ban on all space heaters. More recently, the agency proposed a ban on certain all-terrain vehicles.

Participants in private standards-setting, cognizant of the antitrust law, argue that private standards are never intentionally prohibitory. They rarely are—at least explicitly. But all standards of any substance prohibit something. This clouds the distinction between public and private conceptions of safety regulation. Both sectors utilize prohibition in some form. The difference in perspectives is more a matter of degree than a difference in kind. Nevertheless, the distinction is important because the public sector is more likely to favor this strategy.

Private standards-setters prohibit all sorts of specifics through requirements that alter products or processes incrementally. They often prohibit specific product features such as power lawn mowers without an automatic shutoff and foot guard. But they are reluctant to prohibit at a more general level. On rare occasions, however, they prohibit an entire line or type of product. The ANSI/AGA standard for gas space heaters falls somewhere in between: regulating enough specific product features to prohibit a whole type of heater, the small porcelain bathroom model. The prohibition is not direct, however; the porcelain model simply could not meet all of the provisions added to the standard. Although that model has fallen by the wayside, other types of space heaters have taken its place. A representative of the gas appliance manufacturers describes it as a "drop-out ban." Prohibition at a more general level is out of the question.

Forcing Technology

Public and private standards-setters also have fundamentally different conceptions of technology. They disagree about how the state of technology limits the range of possible provisions in safety standards. To the private sector, technology is usually seen as a constraint. It is a given.

Government agencies are far more willing to "force" technology through requirements that are unattainable with technology currently in use.^[7] The private sector, by contrast, seems unwilling to give technology even a gentle nudge. To private standards-setters, the current state of technology refers to what is generally in use, not to what is close at hand or on the so-called cutting edge. Hence, the ANSI/AGA committee was unwilling to require the oxygen depletion sensor on space heaters even after it was marketed by one company. The technology was still considered "speculative" and "unproven," so the committee deemed it an optional portion of the standard. In both of those cases, the government illustrated a willingness to do what the private sector would not. The FAA and the CPSC considered, and later required, solutions that moved beyond the technologies that were widely available. There was a feeling at the FAA, according to one staff member, that "the market would respond to the need for smoke alarms designed especially for aircraft." Similarly, when questions were raised about the feasibility of the largely unproven oxygen depletion sensor, CPSC staffers were equally convinced that the market would adapt.

Work Rules and Other Operational Controls

Safety standards are often thought of as technical in nature, taking the form of either performance or design requirements. But technical provisions are only part of safety regulation. Work rules, maintenance schedules, and other operational controls play an important role, especially in the kind of standards written by NFPA. To be effective, technical standards must work in tandem with operational controls. Sometimes, operational controls can even substitute for engineering solutions.

To more fully understand the distinction between engineering standards and operational controls, consider the example of safety standards for a hydraulic system.^[8] Safety standards could incorporate any of the following four types of controls. First, a technical performance standard might specify that the bursting strength of hydraulic lines be equal to or greater than four times the working pressure. Second, a technical design standard might require that hydraulic lines be equipped with safety valves to prevent loss of system pressure in the event of a ruptured line. Third, behavioral rules could be adopted instead of these technical solutions. For example, the safety standard might include the following operational control: the hydraulic system must be inspected

for leaks after each one hundred hours of operation. Finally, a work rule could be adopted requiring that hydraulic controls be checked every time the machine is started. These technical and behavioral approaches all provide possible solutions to identified hazards. The prevailing conception of safety regulation in the private sector generally excludes the latter two approaches. In response to pressure from business, ANSI formed a Safe Work Practices Task Group aimed at ensuring that "safe work practices are not included in the body of standards."^[9] This philosophy accounts for why the appendix contains important provisions in both NFPA standards studied. It also helps account for the storm of protest over housekeeping. Maintenance procedures (particularly housekeeping practices) clearly have a significant effect on safety, but the prevailing view at NFPA is that housekeeping should be left entirely to managerial discretion. Standards for almost any operational controls, even those intended to complement specific technical requirements, make private standards-setters uncomfortable. We try to avoid "'how to' standards," notes a committee member. The provisions of NFPA 61B that address operating procedures are vague and relegated to the appendix, where all provisions are couched in the disclaimer that "this Appendix is not part of the requirements of this NFPA document but is included for information purposes only." The same is true of NFPA 408 for aviation fire safety. Several committee members agree that training requirements are vitally important to the successful use of Halon extinguishers. The standard even includes a (vague) chapter on flight crew training, something quite unusual for the NFPA. More typical is what was relegated to the appendix: "Although not required by this standard, it is highly recommended that live fire training on representative aircraft fires be conducted for all flight crew members during both initial and recurrent training sessions."^[10] In contrast, public standards-setters embrace operational controls. The FAA tells commercial airlines "how to" do all sorts of operations and routine maintenance. The essence of the OSHA standard for grain elevators, the "action level" for housekeeping, is an operational control. So, too, are provisions on safety training, evacuation drills, and hot work permits.

Information Disclosure and Labels

Public and private standards-setters also appear to have different positions concerning information disclosure and warning labels. Government sometimes relies on warning labels as its major regulatory strat-

egy. The woodstove labeling rule relies exclusively on information disclosure as a regulatory strategy. The agency defended this standard over the private alternatives on the grounds that its provisions had stronger language and were more likely to be effective. Labeling provisions were also a significant part of the gas space heater rule. In both cases the label was intended to change people's behavior. The private sector is less enamored of information disclosure and does not share in the public sector's penchant for trying to change people's behavior. There is a sense among many private standards-writers that warning labels should not even be included in standards. Historically, many of these organizations shied away from warning labels entirely. The labeling and marking requirements for the gas space heater filled less than a page in the 1963 version of Z21.11.2. There are almost five pages in the 1983 version. Warning labels and other instructions have become more prominent in private standards, but they tend to be written by lawyers who do not otherwise participate in the standards-writing process. A representative on AGA's unvented space heater committee takes labeling questions to in-house counsel at his firm before attending meetings. The Standards Department at UL oversees the warning and labeling provisions in all UL standards, but the engineers do everything else. These provisions are added more to provide a defense against lawsuits than to prevent injuries. It is inconceivable that UL would respond to a problem it considered serious by changing the labeling requirements. Only the government seems intent on what a former CPSC commissioner refers to as a fool's errand: trying to change the behavior of millions of consumers.

When Regulations Take Effect

Finally, public and private standards-setters have disparate views about when standards should take effect. This issue was controversial in all four cases. Government tends to favor the earliest possible effective date, being intolerant of industry claims concerning the feasibility of compliance. Like the stereotypical boss, they want it done yesterday. In contrast, it is outside the realm of possibility for private standards-writers to make standards effective immediately. They tend to allow much more lead time than government. "As long as one company has a device," complains a UL official, "the CPSC is inclined to make it an immediate requirement." The problem, in his view, is twofold. First, the device has not always been evaluated by an independent organization,

so its usefulness is in doubt. Second, "other companies may not even have a prototype," meaning that an immediate requirement would grant a temporary monopoly to one firm. UL takes its cues from the market. Until something is widely available, particularly from more than one supplier, UL is reluctant to require it.

Government sometimes even favors the past over the present—making standards retroactively effective. Most private groups have an explicit policy against adopting retroactive standards. This was the most critical difference between the public and private standards for grain elevators: NFPA 61B applies only to facilities built after the standard was adopted, while the OSHA rule applies retroactively. This means that 61B affects, at most, only a few percent of all grain elevators. Changing that provision would probably have greater safety implications than any other single change in the NFPA standard. But the idea of such a change is outside the realm of conceivable solutions and has never been seriously discussed. Even when NFPA made a rare exception, applying its vague housekeeping requirements retroactively, there was opposition on principle. One committee member recalls that he "didn't want to be on record as requiring this even though [he] agreed with it." His rationale: "Let OSHA do it."