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.