Promoting "Public" Values

All the attention paid to enforcement and compliance issues obscures a more basic reason for government to intervene in the world of private standards. There are some things the private sector simply does not want to do. These lines between public and private are not readily obvious, but their contours are suggested by the regulatory philosophies sketched in chapter 7. Certain approaches to safety regulation are favored almost exclusively by the public sector. The government may call them protective; the private sector considers them overzealous or paternalistic. In either case, government should not waste time waiting for private standards-setters to implement this part of the public agenda. Rather, public agencies should identify and pursue the strategies and goals that set them apart from the private sector. Paternalistic regulation and "technology-forcing" stand out from the case studies. Concerns about consumer misuse distinguish the CPSC from both UL and AGA Labs. A willingness to engage in technology-forcing distinguishes the public standards for space heaters and aircraft smoke detectors from

the private ones. And both NFPA standards underscore the reluctance of the private sector to regulate operating procedures, maintenance schedules, training routines, and other "managerial" issues.

Government should proceed with caution, however, since the case studies also suggest that some strategies disfavored by the private sector do not always work well in practice. Paternalistic regulation can be self-defeating or ineffective. To have been worth the effort, the CPSC woodstove rule would have had to have been dramatically more effective than any previously studied information strategy. Similarly, the desirability of operational controls depends on the quality of enforcement. It remains to be seen whether OSHA inspectors will apply the "action level" for housekeeping in a flexible but firm fashion. The agency certainly has a reputation for unreasonable enforcement.

The verdict on technology-forcing is at least partially in the government's favor. The CPSC apparently advanced the introduction of safer technology for gas space heaters. A trade association representative familiar with gas appliances admits that there is no evidence of the technological problems industry predicted while refusing to adopt the "unproven" technology. The jury is still out on smoke detectors for the passenger compartments of commercial aircraft. Whether the FAA rule will spur the development of better detectors remains to be seen. The FAA rule was written in ignorance of several matters of importance, however, and the gas space heater was successful primarily because the CPSC had the support of the National Bureau of Standards. This suggests that technology-forcing should only be undertaken when an agency has strong technical support.

Whether government should engage in either of these strategies is ultimately a question of values. Whatever the answer, it would be an improvement if these matters were highlighted and debated rather than concentration being put on contrived issues such as those raised in the woodstove proceedings.^[9] The CPSC has never given any real content to its mandate to protect against "unreasonable risk of injury." As with most administrative agencies with broad mandates, the agency has left its regulatory mission rather vague. The issue of public policy toward private standards provides an ideal opportunity for facing these value questions directly.