Organizational Forms of Private Standards-Setting

Trade associations are probably the best known and the least trusted form of private standards-setting. Since trade associations are created to advance the interests of their (usually homogeneous) memberships, it is widely assumed that their standards will be anticompetitive or otherwise against the public interest. But only some trade association standards have significant implications for the public interest. Most facilitate commerce in a rather mundane fashion. The Diamond Walnut Growers, for example, develop standards for the size, color, and grade defects for in-shell walnuts. Other trade associations develop a full array of such relatively innocuous standards. The American Petroleum Institute, for example, maintains 350 standards concerning the transportation, refining, production, measurement, and marketing of petroleum products. Trade association standards are usually financed directly by the membership, reinforcing the concern that narrow private interests will capture the process. But trade associations account for only a small portion of ANSI-certified health and safety standards.

Professional societies and general membership organizations bring together a broader spectrum of participants than trade associations. Rather than being tied to one economic interest, the memberships of these organizations are diverse. There are numerous professional societies organized around the specialties of engineering. For example, the Society of Automotive Engineers (forty-four thousand members) maintains over a thousand standards for ground vehicles and several thousand more for aerospace applications. Similar organizations include the

American Society of Agricultural Engineers (167 standards), the American Society of Heating, Refrigeration, and Air-Conditioning Engineers (60 standards), and American Society of Lubrication Engineers (22 standards).^[4] These organizations generally develop technical standards (for example, definitions, specifications, and tolerances), few of which are very controversial or significant to the public interest.

Membership organizations are broader in constituency, but not necessarily in purpose. They are more open than trade associations, often including participants from various professions and competing aspects of industry. The American Society for Testing and Materials, often called "the world's largest source of voluntary consensus standards," has almost thirty thousand members and seven thousand standards. Most of its standards resemble those of an engineering society. In other words, very few have significant implications for public policy. The National Fire Protection Association (NFPA), by contrast, has a similar number of members and about one-thirtieth the number of standards (approximately 250), but all NFPA standards concern public safety. One important feature that membership organizations have in common is loose reliance on the market demand for their standards: 77 percent of ASTM's budget comes from publication sales; NFPA derives two-thirds of its income from the sale of standards.

The final form of private standards-setting is so different from the others that it is often given a separate name: certification.^[5] "Third-party certifiers" test products against standards. They collect a fee for certifying compliance, which is usually signified by affixing a label or seal to the product. While some testing laboratories rely on standards developed by other organizations, the most significant product certifiers are also standards-setters. The most prominent of these organizations is Underwriters Laboratories, a nonprofit organization with the motto Testing for Public Safety. In-house engineers develop UL's standards. Less well known organizations engaged in third-party certification include the National Sanitation Foundation (which certifies restaurant equipment) and the International Association of Plumbing and Mechanical Officials (a model building code organization that certifies compliance of various products with the code). Some trade associations, such as the Association of Home Appliance Manufacturers and the Snowmobile Safety and Certification Committee, provide specialized certification services, which can generate significant income for them.^[6]

A few administrative procedures characterize almost all of these organizations. One is "consensus" decisionmaking. The other, surpris-

ingly, is due process. These tenets form the basis for ANSI certification of private standards and are incorporated into the by-laws of many private standards-setting organizations. Although the extent of due process protections varies by organization, and the real-world implications of "consensus" decisionmaking are not clear, these concepts obviously play an important role in how these organizations define themselves.

Profiles of Prominent Private Standards-Setters

Lacking a more detailed description of the universe of private safety standards, perhaps the best way to understand this territory is through its major landmarks. Some of the most prominent private standards-setters in the field of public safety are described briefly below. These organizations vary significantly in age and size (see table 2). Four of them—ANSI, AGA Labs, NFPA, and UL—are examined in detail in later chapters.

ANSI . The American National Standards Institute is unique among these groups, acting as an overall coordinator and certifier of the so-called voluntary national standards system. It is the trade association of the standards-writing industry. ANSI does not write standards. Other organizations, including ANSI committees—groups "accredited" by ANSI—submit their standards for approval as American National Standards. There are approximately 8,500 ANSI-approved standards (1,000 of which were developed by ANSI committees). The requirements for ANSI certification, discussed later in this chapter, are essentially procedural, not substantive. The Board of Standards Review hears complaints from anyone who objects to certification of a "national consensus standard." Appeals are infrequent, except in the area of "health and safety." Approximately 900 ANSI-certified standards are in this category. ANSI's membership consists of industry representatives and standards-setting organizations (including professional and technical societies, trade associations, and government agencies).

ACGIH . The American Conference of Government Industrial Hygienists publishes an annual compilation of Threshold Limit Values—recommendations on airborne contaminants and physical agents in workplaces—for approximately six hundred chemical substances. These values influence industrial practice in the United States and in a host of countries abroad. Despite the implication of its name, ACGIH is a private organization with no formal links to the public sector. The organization was founded in 1938 by federal, state, and local health officials. Its committees now include academics and industry representatives. A recent study of "Corporate Influence on Threshold Limit Values" concludes that there are "104 substances for which important or total reliance was placed on unpublished corporate communications."^[7]

AGA Labs . The American Gas Association Laboratories, a division of the larger trade association, is sometimes referred to as "the UL for gas appliances." Founded in 1918, AGA Labs provides third-party certification for all gas appliances. It currently maintains sixty-five standards. Unlike UL's, these standards are not developed by in-house engineers. They are developed by ANSI-sponsored committees consisting of various representatives, largely from industry.

ASME . The American Society of Mechanical Engineers is a nonprofit educational and technical organization with 110,000 members

and nearly six hundred active standards. ASME's reputation is based almost entirely on one standard: the Boiler and Pressure Vessel Code, a compilation of safety and performance requirements for power and heating boilers, nuclear reactors and power plants, and pressure vessels, which is widely incorporated into law throughout the United States and Canada. ASME's image was tarnished in 1983 when, after it refused to settle an antitrust case involving a blatantly anticompetitive interpretation of the Boiler and Pressure Vessel Code, the Supreme Court upheld a $9.5 million judgment against the organization. ASME argued that it should not be responsible for the acts of volunteers acting in bad faith.^[8]

ASTM . The American Society for Testing and Materials, founded in 1898, is a nonprofit organization "to develop standards on characteristics and performance of materials, products, systems, and services." A staff of two hundred oversees the maintenance of 7,218 standards, most of them standards for uniformity. A few committees act in a more overtly regulatory fashion. The F-15 Committee (consumer products) has developed a dozen standards for products such as high chairs, cigarette lighters, and bathtub grab bars. ASTM standards are written by "volunteer" committees and subject to the approval of ASTM's thirty thousand members. ANSI has long been an organizational rival of ASTM'S. The organizations trade allegations of "turf grabbing," and ASTM no longer submits its standards for certification as American National Standards.

Building Code Organizations: ICBO, BOCA, SBCCI . Building codes, enforced by local building inspectors, are one of the most visible forms of government safety regulation. They are largely written, however, by a complicated web of overlapping private standards-setters. Four model code organizations dominate the field. The International Conference of Building Officials (ICBO) promulgates fourteen comprehensive codes covering various aspects of construction. These codes make reference to nearly one thousand ASTM, UL, NFPA, and ANSI standards. The best known, the Uniform Building Code, is enforced in jurisdictions from Michigan and Indiana to Alaska and Hawaii. The Southern Building Code Congress International (SBCCI) and the Building Officials and Code Administrators International (BOCA) each promulgate similar sets of building, plumbing, mechanical, gas, fire, and housing codes. The SBCCI codes have been adopted in over 1,600 communities in the Southwest, South, and Southeast; the BOCA codes

cover fourteen states and 3,000 local governments in the East and Midwest. Finally, the Council of American Building Code Officials (CABO), created by the three major building code organizations, attempts to coordinate activities, particularly with regard to product certification. There are myriad other actors in the field of building codes, many providing specialized standards that are incorporated into building codes. The CABO One-and-Two Family Dwelling Code, for example, mandates, among other things, compliance with ANSI Z21.11.2 (the private safety standard for unvented gas space heaters, examined in chapter 6). The International Association of Plumbing and Mechanical Officials, author of fifty-seven product and installation standards, develops the Uniform Plumbing Code, adopted in the building codes of over 2,500 jurisdictions.

NFPA . The National Fire Protection Association is a membership organization similar to ASTM. "Volunteer" committees write the 260 NFPA codes and standards, and the membership votes en masse at semiannual conventions. NFPA has over thirty-two thousand members, including architects, engineers, firemen, manufacturers, and representatives of insurance interests, labor, and government. NFPA standards are published as the National Fire Codes in a multivolume set consisting of over twelve thousand pages. Various NFPA standards are referenced by OSHA, the Coast Guard, the Veterans Administration, and the Department of Housing and Urban Development. Its best-known codes, the National Electric Code and the Life Safety Code, have the force of law in most jurisdictions. Other standards cover the fire risks at nuclear power plants, airports, storage tanks, and grain elevators.

UL . The primary business of Underwriters Laboratories is product safety certification. UL evaluates products and monitors the quality control of their production. Manufacturers pay for the service, and if their products comply, they are entitled to display the UL label. There are other testing laboratories—most prominently, the American Gas Association Laboratories in the field of gas appliances—but many simply certify compliance to UL standards. The most important feature of UL is that it writes the standards it uses in testing. There are over five hundred published UL standards, covering such diverse products as microwave ovens, life preservers, kerosene heaters, fire extinguishers, and automated teller systems. UL maintains membership in five hundred committees of other private standards-setting organizations.