Regulatory Philosophy and Professional Ethics

These observed differences in regulatory philosophy appear to be more institutional than transient. That is, they were not produced by situational bargaining or compromise. Rather, they are working assumptions that are rarely the topic of discussion. The case studies suggest that two institutional features help shape the prevailing regulatory philosophy: professional ethics and organizational self-interest. (Organizational self-interest varies by regulatory environment—the topic of chapter 9.) The remainder of this chapter focuses on the important role of professional ethics in distinguishing public and private conceptions of safety.

In his collection of studies on public regulation, James Q. Wilson maintains that specific types of employees are important in shaping regulatory behavior. One category discussed by Wilson is professionals. Professionals "have distinctive ways of thinking about problems," and they care deeply about "the maintenance of professional esteem."^[11] Of course, no single profession dominates government. Rather, as Frederick Mosher contends, a "very wide variety of professions and profes-

sionals in diverse fields" influence the leadership of government. However, in well-established agencies, Mosher continues, there is often "a single occupational group whose knowledge, skills, and orientation are closely identified with the missions and activities of the agency."^[12]

A recent survey of "risk professionals" involved in environmental issues suggests that diversity reigns in this field, which accounts for a wide array of professionals from lawyers and economists to engineers and toxicologists.^[13] The trends observed by Thomas Dietz and Robert Rycroft provide a solid basis for describing the prevailing ideology in the government agencies examined in the case studies. These risk professionals share an ideology described below as the "enforcement ethic." This ideology emphasizes formal legal rules. It is often associated with lawyers, although many nonlawyers share its premises. But this study did not consider private standards-setting. Rather, it examined professionals housed largely inside the Washington Beltway—in government agencies, law firms, consulting firms, environmental organizations, and trade associations

Beyond the Beltway, where most private standards-setting actually occurs, the patterns of professionalism are distinctly different. Engineers are much more dominant. UL has several hundred engineers and only a handful of lawyers (or nonlawyers fitting the profile of "risk professionals"). Engineers outnumbered all other professions on the technical committees for NFPA 408, 61B, and ANSI Z21.11.2. None of these committees includes a lawyer or an economist. A study for the Administrative Conference makes special note of the "surprising lack of lawyers" in many private standards-setting committees.^[14]

The Engineering Ethic

Engineers have a distinct ethic, and it appears to explain several aspects of the regulatory philosophy observed in the private sector. The contours of the engineering ethic are sketched below, following two caveats about this analysis. First, the forces of professionalism vie with other political and economic influences operating on private standards-setters. Many participants simply register "directed votes" at committee meetings—votes that reflect the economic interest of their employers. Others operate with more independence, however, acting without specific instructions or in arenas where they have no direct stake. The fire protection engineer for a major airline participates not only in NFPA committees for aviation safety but also in those for railroad fire safety.

Obviously, proprietary considerations play no role in the latter. Similarly, there is no commercial link between Factory Mutual and the subject matter of NFPA 408, even though a Factory Mutual employee played a pivotal role in developing the standard. The FAA employee on the committee, although listed with his government affiliation, is actually an individual member who "joined for [his] professional development." A pilot for another major airline remained active on several NFPA committees long after his retirement. Although it is rare that engineers operate with such free rein, the professional influences apparent in such situations probably affect other standards as well.

Second, generalizations about groups as large as the engineering profession are necessarily stereotypes—they are suggestive of general themes but should not be taken too literally. Obviously, engineers do not all share the values discussed below. There are competing ethics in the private sector; but it would take dramatic changes in the structure of standards-setting or the profession of engineering for them to dominate. One competing ethic comes from science. Though the distinction between science and engineering has lessened as engineering schools have become more "scientific," there remains a distinct difference in how engineers and scientists approach standards-setting.^[15] Researchers at the National Bureau of Standards, for example, sometimes take "scientific" positions that the engineers at AGA or UL consider unrealistic. This kind of conflict, which often pits principle against practicality, has been documented in other policy arenas where scientists and engineers interact.^[16]

There are also factional divisions within the engineering profession—a profession more fragmented than is often realized.^[17] The values described in this chapter characterized most of the engineers involved in the four case studies, but a small fraction of the profession espouse a different value system. The prevailing ethic would certainly change if these "human factors engineers" played a more prominent role in the process.^[18] This seems unlikely, however, as the field is looked upon with suspicion by many engineers and rarely works its way into engineering education.

Instead, the prevailing view, seldom discussed but consistently applied, is that safety standards should not be paternalistic, "engineering for" things such as consumer misuse and poor maintenance. There are several reasons why engineers as professionals might take this view. In some cases, they may have a trained incapacity to recognize the problem. It was not until the American Gas Association Labs conducted

some tests with consumers that its engineers realized that the lighting instructions for gas appliances were unclear to almost everyone but the gas appliance engineers who wrote them. The rigors of product testing can cause a similar failure of imagination. UL tests woodstoves under such carefully controlled conditions that its engineers have been unable to create creosote. It is hard for UL's engineers to conceive of a problem they have not been able to recreate. It follows that UL is less concerned about metal chimney tolerances than the National Bureau of Standards, which has not only created creosote but has measured the intensity of subsequent chimney fires.

Although this may explain differences in recognizing problems, it says little about those situations in which a problem has been recognized (or placed on the public agenda) but remains unaddressed by the private sector. UL may not appreciate why people have chimney fires, but it certainly knows that it happens frequently. Here, too, professional norms may explain why some of these issues go unaddressed. UL's engineers have a very different sense of professional duty and responsibility than the lawyers and other standards-writers in government agencies. Engineering to prevent misuse, at least at some point, is abhorrent to the professional engineer. Samuel Florman, an engineer and author, deplores those "who seek salvation for society through the moral conversion of the engineer."^[19] "Why design a toaster that cannot burn you," asks a UL engineer, "when you can achieve the same result by not touching it when it is hot?" Expecting a "certain amount of prudence" by people, as another UL engineer puts it, is part of the engineering ethic.

Engineers generally consider issues such as warning labels or standards to battle product misuse as "political." As such, they fall outside the "technical" arena in which engineers operate most comfortably.^[20] Engineers involved with grain elevator safety have a similar view: regulating safety devices is their job, but housekeeping is a "management" issue. The prevailing professional norm is to leave politics to the politicians (who are, quite frequently, lawyers) and management to the managers. Lawyers may mandate housekeeping or add warnings to products, but engineers are not in the business of trying to change people's behavior.

The engineering ethic also affects how private standards-setters define the range of acceptable solutions. Engineers appreciate the benefits of technology but, contrary to popular opinion, are often humble about its prospects. New technologies must be proven to be accepted by en-

gineers. Smoke detectors for airplanes might, be a good idea, but engineers want proof. They are all too aware of the factors that could cause malfunctions in the aviation environment. Accordingly, private standards-setters are slower to adopt certain safety measures. It takes more than a prototype or a good analogy to change a private standard. Caution does not necessarily mean restraint. Although engineers may be slower than others to endorse new technology, they are often less restrained when safety issues are cast in economic terms. To many engineers, "feasible" has only a technical meaning, not an economic one.^[21] "There are those of us who go overboard," admits a professional safety engineer who sits on several NFPA committees. "It is easy to do in the name of safety." This is apparently why NFPA 408 is more demanding than the FAA standard for hand-held fire extinguishers. When deciding the appropriate number and type of extinguishers, the engineers who drafted NFPA 408 turned only to professional norms. The additional cost of Halon extinguishers was not an issue; neither was the marginal benefit of adding more extinguishers, Halon or otherwise.

The Enforcement Ethic

The engineering ethic does not pervade the public sector. With the exception of OSHA, where a fire protection engineer was in charge of the grain elevator rule, none of the key rulemaking personnel or official decisionmakers were engineers. Lawyers played an important role at the CPSC and OSHA. Their influence was less great at the FAA, where the Office of General Counsel reviewed the rule but did not influence the content. The prevalence of lawyers does not of itself denote a commonality of values like that which prevails in the engineering profession. Encompassing both the plaintiffs' and the defendants' bar—ardent adversaries in litigation concerning public safety—the profession is too fragmented to have common values on questions such as how to divide responsibility between consumers and manufacturers. There appear to be common values among most public standards-setters, however, and that regulatory ethos is described below as the "enforcement ethic." This ethic appears to infuse the hearts and minds of many government lawyers and other rulemaking personnel in the public sector. The enforcement ethic seeks to eliminate harm wherever possible; it tolerates few excuses, and demands near-total compliance.

The enforcement ethic is legalistic. It favors rules as a response to problems. Just as personal injury lawyers seek a remedy for every in-

jury, some agencies propose a standard for every identified hazard. The process is routinized at the FAA, where accidents beget regulations. National injury estimates drive the CPSC. The magnitude of the hazard matters more than the cause. Fault and responsibility on the part of the consumer do not play an important role in this value system. Public agencies seek to prevent injuries, whether caused by misuse, poor management, or product design.

The enforcement ethic also tolerates few excuses, and business concerns are generally not among them. Some CPSC commissioners seek to determine whether issues are "technical" or "economic." Technical arguments can forestall action; economic arguments rarely do. The CPSC staff had little patience for industry arguments concerning the effective date of the woodstove and space heater rules. In both cases, industry was concerned about disposing of existing inventories before the rule took effect. Privately, CPSC staff members admit that they did not consider the concern a valid one. The FAA summarily dismissed the argument that false alarms from smoke detectors might panic passengers. "That is not a safety issue," according to an FAA staff member.

Finally, the enforcement ethic stresses compliance at all costs. Total compliance is often an end rather than a means. The CPSC staff was inclined to go ahead with a woodstove labeling rule so long as there was anything short of total compliance on the private side. "I don't buy the argument about 85 percent compliance [with the UL standard]," commented one staff member, "because it says nothing about the other 15 percent." Undue emphasis on total compliance led the CPSC to adopt a woodstove labeling rule that had doubtful marginal benefits and a minuscule chance of actually improving compliance. Similarly, for the rulemaking staff at OSHA it mattered not that the cost of proposed safety measures would be highest at those facilities where the benefits would be lowest—country elevators. To exempt smaller facilities from housekeeping requirements would have gone against the enforcement ethic, and the idea of doing so was never seriously entertained by the OSHA staff.