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.^[14]

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).^[15]

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.^[16] 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.^[17] 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.^[18] 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.