The Evolutionary Perspective
More important than any single institutional feature is how an organization changes over time. Aaron Wildavsky has stressed the importance of "resilient" approaches to safety regulation. Others have emphasized the advantages of "flexibility" and "responsiveness." These concepts place standards-setting in an evolutionary context. What matters is not so much how individual cases are resolved as how results change over time. A regime that generates standards that are considered "too lenient" (at the time of adoption) might actually be more desirable than one that generates standards closer to the social optimum (at the time of adoption) depending on when the respective standards are adopted and how they are adjusted over time .
The case studies suggest that there are significant evolutionary differences between public and private standards-setters, differences that indicate several previously unrecognized advantages of the private sector. In short, private standards-setting is prospective and ongoing, while public efforts are usually corrective and singular. Private standards-setters tend to intervene relatively early in the life cycle of an issue, adjusting the standard subsequently over time. Public standards-setters, by contrast, are likely to get involved later, often after a major disaster, adopting a "one-shot" standard without the benefit of subsequent adjustments. The evolution of standards-setting systems can vary in two important ways: (1) in the timing of interventions and (2) in the nature of any subsequent adjustments.
The Timing of Regulatory Interventions
Turning first to intervention, the case studies suggest a major difference between the public and private sectors. The private sector appears to intervene relatively early in the life cycle of an issue, often in anticipation of problems rather than in direct response to them. Private standards often flow directly from engineering decisions. They are usually written in anticipation rather than in response to accidents. NFPA 408 and 61B were in place long before the first serious in-flight fire or the
well-publicized series of grain elevator explosions in 1977–78. UL and AGA initiate the development of standards as products are submitted for certification, which is almost always before they are marketed. The implications of this difference depend critically on how (and whether) these standards are adjusted over time.
In contrast, government interventions appear to occur relatively late in the life cycle of an issue and are usually reactive. Grain elevator safety was considered a problem by fire prevention engineers and insurance companies in the 1920s. OSHA did not get actively involved in the issue until after the disastrous Christmas of 1977. NFPA formally considered questions about aviation fire extinguishers more than ten years before the FAA first issued its advisory circular, and almost thirty years before it adopted a formal standard on the matter. Government standards also tend to respond to specific problems identified through real-world experience. For every serious airplane accident, there is a new FAA rule. This means that decisions are often made under pressure and with emotion, as in the months following the Air Canada fire. The pressure to "do something" becomes so overhwelming that valid concerns, such as whether household smoke detectors will work reliably on airplanes, too easily get brushed aside. Conversely, once "something" is done, there is little or no pressure to follow up on the action and reassess its wisdom in light of subsequent field experience.
Private standards-setters are also generally more comprehensive in defining "the problem," although the grain elevator case demonstrates that there are certain problems that only the government is likely to address. Private standards are more likely to be conceived as a total package, covering most aspects of the product or process from design and performance to labeling and production. In contrast, both of the CPSC standards addressed a single issue or single solution. So, too, with the FAA. Whether comprehensiveness is an advantage depends on the relationship between private and public standards. If the two were mutually exclusive, the private approach would probably be preferable. "It is generally better to regulate a range of problems satisfactorily than to do one in great detail," admitted a former CPSC commissioner who often favored government regulation.
Adapting Standards over Time
Over time, private standards-setting appears to be more flexible and adaptable than government regulation. Private standards are continu-
ally being revised. Many government standards are one-time interventions. Public standards rarely evolve the way private ones do. The "regulatory ratchet" characterizes some government standards, while the mechanisms for revising standards remain unused in others.
In none of the public sector case studies was standards-setting seen as an evolutionary process. There was little expectation that a standard, once adopted, would be altered in the foreseeable future. To the contrary, attaining closure was an important goal in its own right—one that took OSHA almost nine years in grain elevator safety. The FAA brushed aside technical questions about smoke detectors in order to avoid going through the requirements of "notice and comment" rulemaking all over again. In the gas space heater proceeding, the prospect of "gearing up" for a new rulemaking proceeding seemed so onerous to one CPSC commissioner that when the commission decided to revoke the space heater rule—in light of good evidence that it was no longer needed—she objected strenuously on the grounds that "restoration of the protection previously provided by the mandatory standard would require initiation anew of the entire time-consuming, resource-intensive process" (original emphasis).
Whether or not their perception of the rulemaking process is accurate, government agencies seem to operate on the principle that "it's now or never." As a result, public standards are often confined in scope, and they tend to stay fixed in their original form. The CPSC, for example, had reason to believe that gas space heaters might pose a chronic nitrogen dioxide hazard. But lacking an ongoing process for standards-writing, it saw the choice as either delaying the ODS rule (possibly for years) or not addressing this hazard at all. Revisions are always possible on the public side, but the process is ad hoc and seldom used. Several problems with the woodstove labeling rule have come to light since its adoption, but the idea of amending the rule has not been seriously considered. According to CPSC staff members, the effort required to enact the rule in the first place is the reason amendments are not seriously being contemplated. Instead, the agency has tried to amend the rule informally by working directly with the testing labs. Some of the advantages of a formal adjustment process might be captured through such informal efforts, but on the whole it seems likely that the public sector suffers significantly from the lack of revisions.
The revision process is institutionalized on the private side. NFPA standards are supposed to be reviewed and, if necessary, revised every five years. For product testing labs, the process is continual. There is
some merit in this attribute alone. The ongoing nature of private standards-setting may facilitate the resolution of conflicts by tilting the strategy of participating parties in the cooperative direction. Periodically revising standards is also the only way to keep up with changes in information, technology, and preferences. But whether and how standards-setters take advantage of this opportunity is of paramount importance. The evidence from the case studies is mixed. On the positive side, the "ratchet effect," described by Eugene Bardach and Robert Kagan in their study of government regulation, does not seem to characterize the private sector. Through the adjustment process, private standards are made stricter in some respects and more lenient in others. On the negative side, such flexibility can foster nonchalance. Private standards-writers are often willing, sometimes even anxious, to postpone addressing certain complex or controversial problems until the next time the standard is supposed to be revised. In 1980 the NFPA Agricultural Dusts committee decided that action on several controversial proposals should be postponed "for further study." These proposals were summarily dismissed at a meeting five years later. UL convinced members of the canvass on woodstoves to withdraw their opposition on the assurance, still unfulfilled, that the creosote problem would be handled soon. At AGA Labs, the surface temperature of space heaters has been a "continuing agenda item," without apparent effect, for over twenty years.