Seven
Public and Private Conceptions of Safety

In the abstract, public and private standards-setting are easily equated. Both ostensibly involve similar objectives and entail similar tasks, although differences in political dynamics obviously slant outcomes accordingly. In this respect, standards-setting boils down to a question of strictness or, in more economic terms, what balance to strike between probable costs and benefits. The case studies suggest, however, that regulatory philosophy circumscribes the range of possible outcomes in both sectors and that different conceptions of safety regulation prevail in the public and private sectors. Estimating the costs and benefits of possible action is practically the last step in setting safety standards. Several important tasks precede the consideration of any specific proposals. First, the organization must define "the problem" or problems to be addressed. Then it must conceptualize a range of possible solutions.

The case studies indicate that decisionmakers in the public and private sectors view the same "problems" quite differently. The difference is not just in what should be done about a problem, but whether anything should be done at all. Taking a paternalistic view of safety regulation, the public sector is much more likely to favor standards to protect people against their own folly or mistakes. Even when public and private organizations address the same or similar "problems," the range of acceptable solutions can vary considerably. Some solutions, never seriously considered by one sector, are routinely favored by the other. These conceptual preferences are not arrived at in a deliberative

fashion. In fact, they are almost never openly discussed. Rather, these working assumptions are reflections of a shared regulatory philosophy . This chapter describes several manifestations of regulatory philosophy and analyzes how the professional ethics of engineers and lawyers influence the framework for setting standards in the two sectors.

Paternalism and Problem Definition

The first step in writing a safety standard is determining the scope of "the problem" to be addressed. As Charles Lindblom and David Cohen point out, "we do not discover a problem 'out there'; we make a choice about how we want to formulate a problem."^[1] That choice reflects certain values and in turn constrains the realm of possible solutions. Ideally, those defining public "problems" base their analysis on "feelings of distress, or discontent, or annoyance, or unhappiness of some subset of the citizenry."^[2] But the more technical or obscure the issue, the weaker the links to democratic problem definition. Professionalism appears to fill the gap.

Defining "the problem" is a more complicated matter than is often imagined. Deciding, for example, to address safety concerns in grain elevators is only the starting point in defining "the problem." Usually there are many hazards related to a single process or product, only some of which are considered appropriate topics for regulation. In the grain elevator case, OSHA considered housekeeping a much more significant problem than NFPA. With aviation safety, both sectors had similar concerns about fire extinguishers, but only the FAA worried about smoke detectors. Of course, there is a danger that any observations from the case studies are colored by the interaction unique to "paired" cases. In other words, OSHA's definition of the problem might be contingent on NFPA's. As it turns out, OSHA and the FAA acted almost independently of NFPA; but the CPSC acted in response to UL and AGA Labs. (The special issues attendant to standards aimed at complementing or supplementing standards in the other sector are taken up in the next chapter. As explained below, however, these interactive cases seem to accent, rather than distort, the differences in public and private regulatory philosophy.)

Paternalism is one of the distinguishing tenets of the CPSC's regulatory philosophy. Most injuries related to the woodstove and gas space heater should be blamed on the user, not the product. Properly installed woodstoves pose very little risk; so do space heaters that are operated properly. But protecting people against their own mistakes is part of the mission of the CPSC staff. Private standards-setters, by contrast, are loath to recognize such safety "problems." They are also loath to discuss the topic of which hazards are appropriate for regulation. It would be inopportune for UL to state baldly that a significant hazard scenario is "the consumer's fault." As a result, some of the arguments about paternalism are cast in technical terms. GAMA's stated opposition to the CPSC's gas space heater standard concentrated on alleged technical problems with the oxygen detection sensor. None of these problems materialized in the four years after the rule was adopted, suggesting that nontechnical concerns were probably the underlying motivation.

Although a UL engineer allows that "there are occasional arguments within the organization about how forgiving products should be," the answer is almost always less forgiving than what the CPSC would require. Why should a metal chimney have to tolerate a creosote fire, UL wonders, when the consumer can prevent such an occurrence by cleaning the chimney at proper intervals? Similarly, why should kerosene heaters be tested for "flare up," when the problem stems from the use of improper fuel mixtures?^[3] Surface temperatures are another case in point. The CPSC has long worried about the surface temperatures of products such as gas space heaters, kerosene heaters, furnaces, stoves, and small kitchen appliances (such as toasters). Reluctantly, UL has toughened some of its surface temperature requirements in response to CPSC pressure. In the case of kerosene heaters, however, where the effort would require substantial reengineering, a UL representative candidly testified that "it's going to take a kind of change in our philosophy of approach" to address surface temperatures.^[4]

Private standards-setters are most likely to protect against misuse when it involves children or the elderly. Private testing labs subject many consumer products to an articulate probe test intended to simulate an overly curious finger probing inside protective grates or openings in the appliance casing. The AGA/ANSI standard for space heaters simulates this hazard and the possibility of clothing ignition caused by contact with the heater. AGA Labs disagrees with Consumers Union about test methods the proper fabric to use when testing flammability and the correct shape of the articulate probe but both agree that these mishaps merit some protection.

Nevertheless, significant differences remain in how the two sectors view the responsibility of consumers. UL and AGA usually certify safety under conditions that assume full compliance with both the manufac turer's instructions and any applicable installation codes. AGA assumes, for example, that gas space heaters (1) will not be operated in bedrooms (because that is prohibited by the National Fuel Gas Code) and (2) will always be operated with proper ventilation (in accordance with the manufacturer's instructions). Injuries that might be caused by the failure of an adult to read the instructions or install an appliance with professional guidance are of little concern to AGA. Its regulatory philosophy does not encompass such paternalism. The CPSC, in contrast, takes the responsibility of manufacturers much more seriously than it takes the responsibility of consumers. When the CPSC staff drafted a proposal for the criteria to use "in considering requests for endorsement or recognition" of private standards, one of the only substantive conditions was that "information in the [standard] does not place the burden of safe use of the product onto the consumer in such a manner as to exculpate manufacturers or distributors from any liability associated with their product's use by the consumer."^[5]

These different worldviews were highlighted clearly in the case of gas space heaters. According to a member of the Z21.11.2 committee, carbon monoxide poisoning occurs because "people do not use and maintain the product correctly." The CPSC had a different view. "Consumer misbehavior was not a problem with the unvented heater," a former CPSC commissioner asserts; "it was a dangerous product." The private sector's position is factually correct. No one has ever been poisoned by carbon monoxide while using a space heater correctly. But whether it is desirable to require the ODS depends on your philosophical view of government paternalism and individual responsibility. Thus, in the case of gas space heaters, woodstoves, and many other products, the CPSC sees problems where UL does not.

Defining the Range of Acceptable Solutions

The case studies suggest that even when public and private organizations address the same or similar "problems," the range of acceptable solutions varies considerably. These differences involve what might be called solution definition, a process analogous to problem definition. Defining the range of acceptable solutions is also a matter of philosophy, beyond the scope of the deliberative process. NFPA does not spurn housekeeping rules for economic or functional reasons. In fact, several firms require in-house what they so strongly oppose in external standards imposed by OSHA or NFPA. The objection is to any industrywide standard infringing on what is perceived as management prerogative. The same phenomenon exists with matters of less consequence than housekeeping. UL avoids certain types of warning labels, not because they would be too costly, but because they conflict with its philosophy of regulation. Similarly, most private standards-setters refuse to apply standards retroactively. The logic is predominantly economic. But NFPA's position, stated in the grain elevator proceedings, against making retroactive any provision requiring "even a dime of investment" suggests that more than economics is at issue.

Perhaps the most familiar example of "defining the solution" to a safety problem is deciding whether standards should specify design requirements (such as metal thickness) or performance levels (such as an "action level" for housekeeping).^[6] Another design choice concerns the extent to which standards should (a) modify products or processes or (b) communicate information about risk to the consumer or user. These alternatives are not mutually exclusive, though they are often treated that way. The difference in how public and private standards-setters tend to view these questions is not well understood. Government is often accused of favoring design requirements over performance standards, adopting rigid rules that stifle technological innovation. Business interests, on the other hand, are presumed to favor performance standards. The case studies belie these characterizations. In none of the four cases was the government standard as detailed or lengthy as the private standard. UL and AGA standards are filled with detailed design requirements, and these requirements meet with the general approval of industry. In contrast, OSHA's "action level" for grain elevator housekeeping a pure performance standard was strongly opposed by industry.

The case studies suggest many more subtle differences in public and private conceptions of safety regulation. Five examples are detailed below. Some apply exclusively to consumer products, others to industrial processes and practices; a few apply to both. The discussion that follows this description unifies these seemingly disparate examples by considering the common links to professional ethics.

Banning a Product or Process

Perhaps the most fundamental difference in public and private conceptions of safety regulation is that only the government gives serious consideration to prohibition as a regulatory strategy. The private sector tends to assume that the object of regulation is socially desirable and is (or can become) sufficiently safe to be "acceptable." UL begins with the assumption that a product is not inherently or unreasonably safe. If it is too unsafe, UL will not list it. But the issue rarely comes up. The electronic bucking bronco is the only example that several UL officials could name of a product that UL would not accept for testing. In contrast, public agencies generally assume practically the opposite: that the object of regulation is suspect and may not be sufficiently safe to be socially acceptable. The CPSC space heater rule began as a proposed ban on all space heaters. More recently, the agency proposed a ban on certain all-terrain vehicles.

Participants in private standards-setting, cognizant of the antitrust law, argue that private standards are never intentionally prohibitory. They rarely are at least explicitly. But all standards of any substance prohibit something. This clouds the distinction between public and private conceptions of safety regulation. Both sectors utilize prohibition in some form. The difference in perspectives is more a matter of degree than a difference in kind. Nevertheless, the distinction is important because the public sector is more likely to favor this strategy.

Private standards-setters prohibit all sorts of specifics through requirements that alter products or processes incrementally. They often prohibit specific product features such as power lawn mowers without an automatic shutoff and foot guard. But they are reluctant to prohibit at a more general level. On rare occasions, however, they prohibit an entire line or type of product. The ANSI/AGA standard for gas space heaters falls somewhere in between: regulating enough specific product features to prohibit a whole type of heater, the small porcelain bathroom model. The prohibition is not direct, however; the porcelain model simply could not meet all of the provisions added to the standard. Although that model has fallen by the wayside, other types of space heaters have taken its place. A representative of the gas appliance manufacturers describes it as a "drop-out ban." Prohibition at a more general level is out of the question.

Forcing Technology

Public and private standards-setters also have fundamentally different conceptions of technology. They disagree about how the state of technology limits the range of possible provisions in safety standards. To the private sector, technology is usually seen as a constraint. It is a given.

 

Government agencies are far more willing to "force" technology through requirements that are unattainable with technology currently in use.^[7] The private sector, by contrast, seems unwilling to give technology even a gentle nudge. To private standards-setters, the current state of technology refers to what is generally in use, not to what is close at hand or on the so-called cutting edge. Hence, the ANSI/AGA committee was unwilling to require the oxygen depletion sensor on space heaters even after it was marketed by one company. The technology was still considered "speculative" and "unproven," so the committee deemed it an optional portion of the standard. In both of those cases, the government illustrated a willingness to do what the private sector would not. The FAA and the CPSC considered, and later required, solutions that moved beyond the technologies that were widely available. There was a feeling at the FAA, according to one staff member, that "the market would respond to the need for smoke alarms designed especially for aircraft." Similarly, when questions were raised about the feasibility of the largely unproven oxygen depletion sensor, CPSC staffers were equally convinced that the market would adapt.

Work Rules and Other Operational Controls

Safety standards are often thought of as technical in nature, taking the form of either performance or design requirements. But technical provisions are only part of safety regulation. Work rules, maintenance schedules, and other operational controls play an important role, especially in the kind of standards written by NFPA. To be effective, technical standards must work in tandem with operational controls. Sometimes, operational controls can even substitute for engineering solutions.

To more fully understand the distinction between engineering standards and operational controls, consider the example of safety standards for a hydraulic system.^[8] Safety standards could incorporate any of the following four types of controls. First, a technical performance standard might specify that the bursting strength of hydraulic lines be equal to or greater than four times the working pressure. Second, a technical design standard might require that hydraulic lines be equipped with safety valves to prevent loss of system pressure in the event of a ruptured line. Third, behavioral rules could be adopted instead of these technical solutions. For example, the safety standard might include the following operational control: the hydraulic system must be inspected

  

for leaks after each one hundred hours of operation. Finally, a work rule could be adopted requiring that hydraulic controls be checked every time the machine is started. These technical and behavioral approaches all provide possible solutions to identified hazards. The prevailing conception of safety regulation in the private sector generally excludes the latter two approaches. In response to pressure from business, ANSI formed a Safe Work Practices Task Group aimed at ensuring that "safe work practices are not included in the body of standards."^[9] This philosophy accounts for why the appendix contains important provisions in both NFPA standards studied. It also helps account for the storm of protest over housekeeping. Maintenance procedures (particularly housekeeping practices) clearly have a significant effect on safety, but the prevailing view at NFPA is that housekeeping should be left entirely to managerial discretion. Standards for almost any operational controls, even those intended to complement specific technical requirements, make private standards-setters uncomfortable. We try to avoid "'how to' standards," notes a committee member. The provisions of NFPA 61B that address operating procedures are vague and relegated to the appendix, where all provisions are couched in the disclaimer that "this Appendix is not part of the requirements of this NFPA document but is included for information purposes only." The same is true of NFPA 408 for aviation fire safety. Several committee members agree that training requirements are vitally important to the successful use of Halon extinguishers. The standard even includes a (vague) chapter on flight crew training, something quite unusual for the NFPA. More typical is what was relegated to the appendix: "Although not required by this standard, it is highly recommended that live fire training on representative aircraft fires be conducted for all flight crew members during both initial and recurrent training sessions."^[10] In contrast, public standards-setters embrace operational controls. The FAA tells commercial airlines "how to" do all sorts of operations and routine maintenance. The essence of the OSHA standard for grain elevators, the "action level" for housekeeping, is an operational control. So, too, are provisions on safety training, evacuation drills, and hot work permits.

Information Disclosure and Labels

Public and private standards-setters also appear to have different positions concerning information disclosure and warning labels. Government sometimes relies on warning labels as its major regulatory strategy. The woodstove labeling rule relies exclusively on information disclosure as a regulatory strategy. The agency defended this standard over the private alternatives on the grounds that its provisions had stronger language and were more likely to be effective. Labeling provisions were also a significant part of the gas space heater rule. In both cases the label was intended to change people's behavior. The private sector is less enamored of information disclosure and does not share in the public sector's penchant for trying to change people's behavior. There is a sense among many private standards-writers that warning labels should not even be included in standards. Historically, many of these organizations shied away from warning labels entirely. The labeling and marking requirements for the gas space heater filled less than a page in the 1963 version of Z21.11.2. There are almost five pages in the 1983 version. Warning labels and other instructions have become more prominent in private standards, but they tend to be written by lawyers who do not otherwise participate in the standards-writing process. A representative on AGA's unvented space heater committee takes labeling questions to in-house counsel at his firm before attending meetings. The Standards Department at UL oversees the warning and labeling provisions in all UL standards, but the engineers do everything else. These provisions are added more to provide a defense against lawsuits than to prevent injuries. It is inconceivable that UL would respond to a problem it considered serious by changing the labeling requirements. Only the government seems intent on what a former CPSC commissioner refers to as a fool's errand: trying to change the behavior of millions of consumers.

When Regulations Take Effect

Finally, public and private standards-setters have disparate views about when standards should take effect. This issue was controversial in all four cases. Government tends to favor the earliest possible effective date, being intolerant of industry claims concerning the feasibility of compliance. Like the stereotypical boss, they want it done yesterday. In contrast, it is outside the realm of possibility for private standards-writers to make standards effective immediately. They tend to allow much more lead time than government. "As long as one company has a device," complains a UL official, "the CPSC is inclined to make it an immediate requirement." The problem, in his view, is twofold. First, the device has not always been evaluated by an independent organization, so its usefulness is in doubt. Second, "other companies may not even have a prototype," meaning that an immediate requirement would grant a temporary monopoly to one firm. UL takes its cues from the market. Until something is widely available, particularly from more than one supplier, UL is reluctant to require it.

Government sometimes even favors the past over the present making standards retroactively effective. Most private groups have an explicit policy against adopting retroactive standards. This was the most critical difference between the public and private standards for grain elevators: NFPA 61B applies only to facilities built after the standard was adopted, while the OSHA rule applies retroactively. This means that 61B affects, at most, only a few percent of all grain elevators. Changing that provision would probably have greater safety implications than any other single change in the NFPA standard. But the idea of such a change is outside the realm of conceivable solutions and has never been seriously discussed. Even when NFPA made a rare exception, applying its vague housekeeping requirements retroactively, there was opposition on principle. One committee member recalls that he "didn't want to be on record as requiring this even though [he] agreed with it." His rationale: "Let OSHA do it."

Regulatory Philosophy and Professional Ethics

These observed differences in regulatory philosophy appear to be more institutional than transient. That is, they were not produced by situational bargaining or compromise. Rather, they are working assumptions that are rarely the topic of discussion. The case studies suggest that two institutional features help shape the prevailing regulatory philosophy: professional ethics and organizational self-interest. (Organizational self-interest varies by regulatory environment the topic of chapter 9.) The remainder of this chapter focuses on the important role of professional ethics in distinguishing public and private conceptions of safety.

In his collection of studies on public regulation, James Q. Wilson maintains that specific types of employees are important in shaping regulatory behavior. One category discussed by Wilson is professionals. Professionals "have distinctive ways of thinking about problems," and they care deeply about "the maintenance of professional esteem."^[11] Of course, no single profession dominates government. Rather, as Frederick Mosher contends, a "very wide variety of professions and professionals in diverse fields" influence the leadership of government. However, in well-established agencies, Mosher continues, there is often "a single occupational group whose knowledge, skills, and orientation are closely identified with the missions and activities of the agency."^[12]

A recent survey of "risk professionals" involved in environmental issues suggests that diversity reigns in this field, which accounts for a wide array of professionals from lawyers and economists to engineers and toxicologists.^[13] The trends observed by Thomas Dietz and Robert Rycroft provide a solid basis for describing the prevailing ideology in the government agencies examined in the case studies. These risk professionals share an ideology described below as the "enforcement ethic." This ideology emphasizes formal legal rules. It is often associated with lawyers, although many nonlawyers share its premises. But this study did not consider private standards-setting. Rather, it examined professionals housed largely inside the Washington Beltway in government agencies, law firms, consulting firms, environmental organizations, and trade associations

Beyond the Beltway, where most private standards-setting actually occurs, the patterns of professionalism are distinctly different. Engineers are much more dominant. UL has several hundred engineers and only a handful of lawyers (or nonlawyers fitting the profile of "risk professionals"). Engineers outnumbered all other professions on the technical committees for NFPA 408, 61B, and ANSI Z21.11.2. None of these committees includes a lawyer or an economist. A study for the Administrative Conference makes special note of the "surprising lack of lawyers" in many private standards-setting committees.^[14]

The Engineering Ethic

Engineers have a distinct ethic, and it appears to explain several aspects of the regulatory philosophy observed in the private sector. The contours of the engineering ethic are sketched below, following two caveats about this analysis. First, the forces of professionalism vie with other political and economic influences operating on private standards-setters. Many participants simply register "directed votes" at committee meetings votes that reflect the economic interest of their employers. Others operate with more independence, however, acting without specific instructions or in arenas where they have no direct stake. The fire protection engineer for a major airline participates not only in NFPA committees for aviation safety but also in those for railroad fire safety.

  

Obviously, proprietary considerations play no role in the latter. Similarly, there is no commercial link between Factory Mutual and the subject matter of NFPA 408, even though a Factory Mutual employee played a pivotal role in developing the standard. The FAA employee on the committee, although listed with his government affiliation, is actually an individual member who "joined for [his] professional development." A pilot for another major airline remained active on several NFPA committees long after his retirement. Although it is rare that engineers operate with such free rein, the professional influences apparent in such situations probably affect other standards as well.

Second, generalizations about groups as large as the engineering profession are necessarily stereotypes they are suggestive of general themes but should not be taken too literally. Obviously, engineers do not all share the values discussed below. There are competing ethics in the private sector; but it would take dramatic changes in the structure of standards-setting or the profession of engineering for them to dominate. One competing ethic comes from science. Though the distinction between science and engineering has lessened as engineering schools have become more "scientific," there remains a distinct difference in how engineers and scientists approach standards-setting.^[15] Researchers at the National Bureau of Standards, for example, sometimes take "scientific" positions that the engineers at AGA or UL consider unrealistic. This kind of conflict, which often pits principle against practicality, has been documented in other policy arenas where scientists and engineers interact.^[16]

There are also factional divisions within the engineering profession a profession more fragmented than is often realized.^[17] The values described in this chapter characterized most of the engineers involved in the four case studies, but a small fraction of the profession espouse a different value system. The prevailing ethic would certainly change if these "human factors engineers" played a more prominent role in the process.^[18] This seems unlikely, however, as the field is looked upon with suspicion by many engineers and rarely works its way into engineering education.

Instead, the prevailing view, seldom discussed but consistently applied, is that safety standards should not be paternalistic, "engineering for" things such as consumer misuse and poor maintenance. There are several reasons why engineers as professionals might take this view. In some cases, they may have a trained incapacity to recognize the problem. It was not until the American Gas Association Labs conducted some tests with consumers that its engineers realized that the lighting instructions for gas appliances were unclear to almost everyone but the gas appliance engineers who wrote them. The rigors of product testing can cause a similar failure of imagination. UL tests woodstoves under such carefully controlled conditions that its engineers have been unable to create creosote. It is hard for UL's engineers to conceive of a problem they have not been able to recreate. It follows that UL is less concerned about metal chimney tolerances than the National Bureau of Standards, which has not only created creosote but has measured the intensity of subsequent chimney fires.

Although this may explain differences in recognizing problems, it says little about those situations in which a problem has been recognized (or placed on the public agenda) but remains unaddressed by the private sector. UL may not appreciate why people have chimney fires, but it certainly knows that it happens frequently. Here, too, professional norms may explain why some of these issues go unaddressed. UL's engineers have a very different sense of professional duty and responsibility than the lawyers and other standards-writers in government agencies. Engineering to prevent misuse, at least at some point, is abhorrent to the professional engineer. Samuel Florman, an engineer and author, deplores those "who seek salvation for society through the moral conversion of the engineer."^[19] "Why design a toaster that cannot burn you," asks a UL engineer, "when you can achieve the same result by not touching it when it is hot?" Expecting a "certain amount of prudence" by people, as another UL engineer puts it, is part of the engineering ethic.

Engineers generally consider issues such as warning labels or standards to battle product misuse as "political." As such, they fall outside the "technical" arena in which engineers operate most comfortably.^[20] Engineers involved with grain elevator safety have a similar view: regulating safety devices is their job, but housekeeping is a "management" issue. The prevailing professional norm is to leave politics to the politicians (who are, quite frequently, lawyers) and management to the managers. Lawyers may mandate housekeeping or add warnings to products, but engineers are not in the business of trying to change people's behavior.

The engineering ethic also affects how private standards-setters define the range of acceptable solutions. Engineers appreciate the benefits of technology but, contrary to popular opinion, are often humble about its prospects. New technologies must be proven to be accepted by engineers. Smoke detectors for airplanes might, be a good idea, but engineers want proof. They are all too aware of the factors that could cause malfunctions in the aviation environment. Accordingly, private standards-setters are slower to adopt certain safety measures. It takes more than a prototype or a good analogy to change a private standard. Caution does not necessarily mean restraint. Although engineers may be slower than others to endorse new technology, they are often less restrained when safety issues are cast in economic terms. To many engineers, "feasible" has only a technical meaning, not an economic one.^[21] "There are those of us who go overboard," admits a professional safety engineer who sits on several NFPA committees. "It is easy to do in the name of safety." This is apparently why NFPA 408 is more demanding than the FAA standard for hand-held fire extinguishers. When deciding the appropriate number and type of extinguishers, the engineers who drafted NFPA 408 turned only to professional norms. The additional cost of Halon extinguishers was not an issue; neither was the marginal benefit of adding more extinguishers, Halon or otherwise.

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' barardent 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.