text:
One Protective Regulation and the Impasse Between the Public and Private Sectors
1. Charles Wolf, Jr., "A Theory of Non-Market Failures," The Public Interest 55 (Spring 1979):114-33. [BACK]
2. James Q. Wilson, The Politics of Regulation (New York: Basic Books, 1980), 373. [BACK]
3. For a description of the policy consensus on certain forms of economic deregulation, see Martha Derthick and Paul J. Quirk, The Politics of Deregulation (Washington, D.C.: Brookings Institution, 1985). [BACK]
4. Robert B. Reich, "Looking Back at Regulation: Business Is Asking for Trouble Again," New York Times, November 22, 1981, sec. 3, p. F2. There recently has been considerable discussion of "reregulation," particularly in airlines and trucking. See, for example, Stuart Reginald, "To Regulate, to Deregulate, or, Now, to Reregulate," New York Times, October 29, 1984, 14; "Rumblings of Reregulation," Fortune, January 10, 1983, 17. [BACK]
5. Wilson, The Politics of Regulation, x. [BACK]
6. An important alternative to command-and-control regulation, frequently touted by economists but outside the scope of this study, is incentives such as taxation and subsidy. See, for example, John Mendeloff, Regulating Safety: A Economic and Political Analysis of Occupational Safety and Health Policy (Cambridge, Mass.: MIT Press, 1979). [BACK]
7. Lester M. Salamon, "Partners in Public Service: The Scope and Theory of Government-Nonprofit Relations," in Walter W. Powell, The Nonprofit Sector (New Haven: Yale University Press, 1987), 100. [BACK]
8. The name change was part of the massive Omnibus Trade and Competitiveness Act, signed into law on August 23, 1988. The new Institute (NIST) retains all of the old functions of NBS, along with several new ones concerning technology transfer. [BACK]
9. Engineers refer to these standards as "M&Ms" because they specify either materials or methods. Many simply set forth definitions, such as the meaning of two-by-four (a piece of lumber that, under the standard, is not actually 2" X 4"). Others facilitate the interchangeability of items such as flashlight batteries and automobile parts. Scores of these private standards are used by government for procurement purposes. [BACK]
10. See, generally, Steven M. Spivak, Implementation of OMB Circular A-119: An Independent Appraisal of Federal Participation in the Development and Use of Voluntary Standards, prepared for the National Bureau of Standards, NBS-GCR-85-495 (Springfield, Va.: National Technical Information Service, 1985). [BACK]
11. See Timothy J. Muris, "Legalization of Standardization Under the Antitrust Laws"; John Boyer, "The Role of Due Process in Avoiding Antitrust Liability"; and Edward T. Buhl, "Antitrust Liability for Standards Developers," all in American National Standards Institute, Standards and the Law (New York: ANSI, 1984). A recent decision of the Supreme Court, in a case involving the National Fire Protection Association, concludes that the immunity granted for influencing legislation, known as Noeer immunity, does not apply equally to private standards-setting; rather, private organizations are bound to unspecified "safeguards" against "bias" and "stacking" (Allied Tube and Conduit Corp. v. Indian Head, 56 U.S.L.W. 4539 [June 13, 1988], 4543). [BACK]
12. A 150-page report prepared for the Administrative Conference of the United States discusses several "horror stories" and presents "impressionistic" evidence from scattered meetings, but it contains no case studies. See Robert W. Hamilton, "The Role of Nongovernmental Standards in the Development of Mandatory Federal Standards Affecting Safety or Health," Texas Law Review 56 (November 1978): 1329, 1446. Similarly, a report on representation of interest groups that was commissioned by NFPA discusses many of the same "horror stories" but contains no detailed information for any single case. See Robert G. Dixon, Jr., Standards Development in the Private Sector: Thoughts on Interest Representation and Procedural Fairness (Quincy, Mass.: National Fire Protection Association, 1978). David Hemenway, author of the only book on industrywide voluntary product standards (Industrywide Voluntary Product Standards [Cambridge, Mass.: Ballinger Publishing, 1978]), confirmed in an interview in 1984 that he knew of no detailed case studies of voluntary standards-writing in this country. The only case study (subsequently located) compares two safety standards for regulating liquefied natural gas facilities: one developed by NFPA, the other promulgated by the Materials Transportation Board of the U.S. Department of Transportation. See John H. Young, "Direct Interest Participation in the Regulatory Decision Process: Lessons Learned from Two LNG Safety Standards" (Staff paper prepared for the Office of Technology Assessment, 1983). [BACK]
13. UL has three kinds of standards: published, proposed, and unpublished. Unpublished standards (also known as "desk" standards) cover hundreds of products. These standards are somewhat controversial and are discussed in more detail in chapter 3. UL also distinguishes between "published" standards and "proposed" standards. "Proposed" standards are, in fact, published; they are a kind of intermediate step between unpublished and officially "published." [BACK]
14. Hemenway, Industrywide Voluntary Product Standards, 78. [BACK]
15. The proposal, Federal Register 49 (June 19, 1984): 25005, was withdrawn unanimously by the FTC in 1985. However, the CPSC chair vowed: "The recognition issue is not dead. I am not deterred in my efforts to find a viable plan ... to promote voluntary standards" (CPSC, "Statement of Terrence M. Scanlon, Chairman," January 16, 1985). [BACK]
16. Albert O. Hirschman, Exit, Voice, and Loyalty (Cambridge: Mass.: Harvard University Press, 1970). [BACK]
17. John E. Chubb and Terry M. Moe, "Politics, Markets, and the Organization of Schools," American Political Science Review 82 (December 1988): 1067. [BACK]
18. Grant McConnell, Private Power and American Democracy (New York: Vintage Books, 1966), 141. [BACK]
19. George Eads and Peter Reuter, Designing Safer Products (Santa Monica, Calif.: RAND Corporation, 1983), 43. [BACK]
20. George S. Stigler, "The Theory of Economic Regulation," Bell Journal of Economics and Management Science 2 (Spring 1971): 3. [BACK]
21. McConnell, Private Power and American Democracy, 127. [BACK]
22. Ibid., 120-26. See also Robert Michels, Political Parties (1915; reprint Glencoe, Ill.: Free Press, 1949). [BACK]
23. Constance Smith and Anne Freedman, Voluntary Associations (Cambridge, Mass.: Harvard University Press, 1972), 54. [BACK]
24. According to the acting director of the FTC's Bureau of Consumer Protection, the "staff recommends that the Commission terminate this proceedings, and continue to pursue a program of case-by-case enforcement against deceptive or anticompetitive practices" (Memorandum to the Federal Trade Commission from Amanda B. Pedersen, August 29, 1985). [BACK]
25. Henry S. Kariel, The Decline of American Pluralism (Stanford: Stanford University Press, 1961), 73-74. These comments were specifically in reference to the National Recovery Act. For an interesting and alternative interpretation of these events, see Donald R. Brand, Corporatism and the Rule of Law: A Study of the National Recovery Administration (Ithaca: Cornell University Press, 1988). [BACK]
26. Mancur Olson, Jr., The Logic of Collective Action (Cambridge, Mass.: Harvard University Press, 1965). [BACK]
27. McConnell, Private Power and American Democracy, 6. [BACK]
28. Theodore Lowi, The End of Liberalism, 2d ed. (New York: W. W. Norton, 1979), 116-19. As mentioned earlier, both the CPSC and OSHA turned to private standards-setters in their early years. OSHA adopted hundreds of ANSI standards wholesale; the CPSC utilized the "offeror process," which allowed outside organizations to propose safety standards for public adoption. Both policies were later rescinded. [BACK]
29. See Samuel P. Huntington, "The Marasmus of the ICC: The Commission, the Railroads, and the Public Interest," Yale Law Journal 61 (April 1952): 467-509; Marver Bernstein, Regulating Business by Independent Commission (Princeton: Princeton University Press, 1955); Stigler, "The Theory of Economic Regulation." [BACK]
30. Kariel, The Decline of American Pluralism, 94. [BACK]
31. See, for example, Nina W. Cornell, Roger G. Noll, and Barry Weingast, "Safety Regulation," in Setting National Priorities (Washington, D.C.: Brookings Institution, 1976). [BACK]
32. Wilson, The Politics of Regulation, 372. [BACK]
33. Underwriters Laboratories v. Internal Revenue Service, 135 F.2d 371, 373 (10th Cir. 1943). UL subsequently regained its tax-exempt status from Congress. [BACK]
34. Eliason Corp. v. National Sanitation Foundation, 614 F.2d 126 (6th Cir. 1980), cert. denied 449 U.S. 826 (1980). [BACK]
35. See Petitioner's brief at pp. 43-47 and Respondent's brief at pp. 41-47 in American Society of Mechanical Engineers v. Hydrolevel Corp., 456 U.S. 556 (1982). [BACK]
36. Alfred E. Kahn, "Cartels and Trade Associations," in International Encyclopedia of the Social Sciences 2:320-25 (standardization is essential if collusively fixed prices are to be truly uniform). [BACK]
37. Peter M. Blau and W. Richard Scott, Formal Organizations (San Francisco: Chandler Publishing, 1962), 42-58. [BACK]
38. Robert Leone, Who Profits (New York: Basic Books, 1986). [BACK]
39. Lowi, The End of Liberalism, 118. [BACK]
40. McConnell, Private Power and American Democracy, 66. [BACK]
41. Brand (Corporatism and the Rule of Law, 307) also concludes that the NRA actually favored small and medium-sized businesses, not large ones as argued by Lowi and others. [BACK]
42. Less than six months after it began operations OSHA incorporated into law over 250 pages of private standards, mostly from ANSI and NFPA (Federal Register 36 [May 29, 1971]: 10466). For a discussion of the problems that ensued, see Phillip Harter, "A View from the OSHA Task Force: Voluntary Standards Used in Regulation," ASTM Standardization News, May 1977. [BACK]
43. Henry Weinstein, "OSHA Will Place New Limits on 402 Toxics," Los Angeles Times, June 8, 1988, 1. [BACK]
44. Bruce W. Owen and Ronald Braeutigam, The Regulation Game: Strategic Use of the Administrative Process (Cambridge, Mass.: Ballinger Publishing, 1978), 12. [BACK]
45. Ibid., 3. [BACK]
46. Lawrence S. Bacow, Bargaining for Job Safety and Health (Cambridge, Mass.: MIT Press, 1980), 45-46. [BACK]
47. Bruce A. Ackerman and William T. Hansler, Clean Coal/Dirty Air (New Haven: Yale University Press, 1981), 113. [BACK]
48. McConnell, Private Power and American Democracy, 120-21. [BACK]
49. As Lipset et al. argue in their landmark study of the International Typographical Union, it is necessary to combine structural and historical analyses to understand the organization (Seymour Martin Lipset, Martin A. Trow, and James C. Coleman, Union Democracy: The Internal Politics of the International Typographical Union [New York: Free Press, 1956], chap. 18). [BACK]
50. Michael S. Hunt, "Trade Associations and Self-Regulation: Major Home Appliances," in Regulating the Product: Quality and Variety, ed. Richard E. Caves and Marc J. Roberts (Cambridge, Mass.: Ballinger Publishing, 1975), 39-56. [BACK]
51. Steven Kelman, Regulating America, Regulating Sweden: A Case Study of Occupational Safety and Health Regulations (Cambridge, Mass.: MIT Press, 1981). [BACK]
52. David A. Garvin, "Can Industry Self-Regulation Work?" California Management Review 25, no. 3 (Summer 1983): 44. [BACK]
53. Wilson, The Politics of Regulation, xi. [BACK]
54. Mary Douglas and Aaron Wildavsky, Risk and Culture (Berkeley and Los Angeles: University of California Press, 1982). [BACK]
55. Lester B. Lave, The Strategy of Social Regulation: Decision Frameworks for Policy (Washington, D.C.: Brookings Institution, 1981), 8-28. [BACK]
Two Background and Research Design
1. National Bureau of Standards, Standards Activities of Organizations in the United States, NBS Special Publication 681, (Washington, D.C.: Government Printing Office, 1984), 1. [BACK]
2. Paul B. W. Miller and Rodney Redding, The FASB: The People, the Process, and the Politics (Homewood, Ill.: Irwin, 1986), 20. [BACK]
3. American National Standards Institute, 1984-85 Catalog of American National Standards for Safety and Health (New York: ANSI, 1984). [BACK]
4. For a description of these organizations, see National Bureau of Standards, Standards Activities of Organizations in the United States, 87-88 (ASAE), 92-93 (ASHRAE), and 93 (ASLE). [BACK]
5. The FTC formally initiated an inquiry into private standards-setting organizations in 1974, two years after the staff recommended regulation to prevent trade restraints and consumer deception (FTC, "Preliminary Staff Study (Precis): Self-Regulation—Product Standardization, Certification, and Seals of Approval" [mimeographed, 1972]). The staff later proposed a rule that would mandate extensive procedural protections, including an appeals procedure, and require standards-setters to meet a substantive "fairness" criterion (FTC, Bureau of Consumer Protection, Standards and Certification: Proposed Rule and Staff Report [Washington, D.C.: Government Printing Office, 1978]). The subsequent proceedings on the proposed rule were controversial and divisive. Over twelve weeks of hearings, the staff heard from over two hundred witnesses. The FTC Improvements Act of 1980 removed Commission authority to issue a rule regarding standards and certification under section 18 of the FTC Act, concerning "unfair and deceptive acts or practices" (15 U.S.C. sec. 57a). The FTC proceeded with the Standards and Certification proceedings under section 6(g) of the FTC Act, the "unfair methods of competition" provision. The staff eventually recommended against a regulation, favoring case-by-case enforcement against unfair methods of competition (FTC, Bureau of Consumer Protection, Standards and Certification: Final Staff Report, [Washington, D.C.: Government Printing Office, 1983]). [BACK]
6. For example, a recent dispute over which trade association had jurisdiction to certify log-splitting equipment had little to do with actual safety. Rather, the dispute, according to several members of the Board of Standards of Review, stemmed from the income that would be generated through this service. [BACK]
7. Barry I. Castleman and Grace E. Ziem, "Corporate Influence on Threshold Limit Values," American Journal of Industrial Medicine 13 (1988): 531. [BACK]
8. ASME subcommittees provide approximately twenty thousand interpretations of the Boiler and Pressure Vessel Code every year. The case, American Society of Mechanical Engineers v. Hydrolevel Corp., 456 U.S. 5556 (1982), involved an unauthorized and blatantly anticompetitive interpretation of the code by two subcommittee members who were direct competitors of Hydrolevel, a valve manufacturer. After an "unofficial" letter on ASME stationery warned that the Hydrolevel valve might be unsafe, the firm lost sales and eventually went bankrupt. For a detailed discussion of the facts in Hydrolevel, see Charles W. Beardsley, "The Hydrolevel Case: A Retrospective," Fire Journal, May 1985. The decision was strongly criticized. See, for example, William J. Curran Ill, "Volunteers ... Not Profiteers: The Hydrolevel Myth," Catholic University Law Review 33 (1983): 147. [BACK]
9. Chap. 21, Code of Federal Regulations, subchap. F. The estimate of the number of actual standards is from National Bureau of Standards, Standards Activities of Organizations in the United States, 451. [BACK]
10. See, generally, Richard B. Stewart, "The Reformation of American Administrative Law," Harvard Law Review 88, no. 8 (June 1975): 1667-1813. [BACK]
11. National Bureau of Standards, Standards Activities of Organizations in the United States, 1. [BACK]
12. For example, the Refrigerator Safety Act, the Flammable Fabrics Act, and the Poison Prevention Packaging Act. [BACK]
13. Eads and Reuter, Designing Safer Products, 2. [BACK]
14. See Udo Staber and Howard Aldrich, "Trade Association Stability and Public Policy" (Paper prepared for the Albany Conference on Organization Theory and Public Policy, SUNY-Albany, April 1-2, 1982). [BACK]
15. See John Bart Sevart and R. Lewis Hull, Power Lawn Mowers: An Unreasonably Dangerous Product (Durham, N.C.: Institute for Product Safety, 1982), and sources cited in the extensive bibliography at 195-207. [BACK]
16. For example, two of the first safety standards developed by the agency were for—of all things—matchbook covers and swimming pool slides. Both standards were overturned in court. See, generally, Theresa M. Schwartz, "The Consumer Product Safety Commission: A Flawed Product of the Consumer Decade," The George Washington Law Review 51, no. 1 (November 1982): 32-95. [BACK]
17. W. Kip Viscusi, Regulating Consumer Product Safety (Washington, D.C.: American Enterprise Institute, 1984), 106-8. [BACK]
18. The article, which was about product testing in general, noted that "without question, UL's efforts have been a major force in preventing electric shocks and fires" but added, on the basis of a few "horror stories," that UL's record is "checkered" (Mark Dowie et al., "The Illusion of Safety," Mother Jones, July 1982, 35). The criticism is mild, particularly for this publication, making UL's response—a staff member referred to it as "disastrous"—as revealing as the article. [BACK]
Three Safety Standards for Grain Elevators
1. See Bernstein, Regulating Business by Independent Commission. For a criticism of the life-cycle theory, see Owen and Braeutigam, The Regulation Game, 11-12. [BACK]
2. See, generally, Paul J. Quirk, Industry Influence in Federal Regulatory Agencies (Princeton: Princeton University Press, 1981). [BACK]
3. Country elevators, estimated to number 10,400, receive grain from farmers for later delivery to terminal elevators or grain processors. Storage capacity ranges from one hundred thousand bushels to over a million, and the average number of workers is approximately four. Inland terminals, numbering 710 by one count, receive grain directly both from farmers and from country elevators, holding it for delivery mostly to export facilities and grain processors. There are approximately eighty export facilities. Inland terminals and export facilities have large capacities, in the millions of bushels, and employ an average of forty to fifty workers each. [BACK]
4. Bulk handling at storage facilities is more hazardous than grain handling at processing facilities (e.g., cereal plants) that have throughput. Feed milling involves a grinding and mixing process whereby grains are blended with protein concentrates, vitamins, drugs, and minerals. The receiving operations in feed mills are almost identical to those in grain elevators. Grain and feed handling is accomplished by bulk conveyors and bucket elevators, like in grain elevators, but the operations tend to be smaller and slower than in most grain elevators, resulting in less dust generation. On the other hand, the grinding and processing creates additional dust. A report prepared for OSHA by Arthur D. Little, Inc., estimates the following distribution of grain-handling facilities by type:
5. Country elevators generally have lower throughput than other facilities, but those acting more as transfer points than as storage areas have unusually high throughput. Differences in elevator technology and design further complicate any assessment of grain elevator safety. Dust-control technology has improved considerably in the past twenty years, so higher throughputs are much safer in facilities with relatively new technology. Basic elevator design has improved as well. Newer facilities are built with a minimum of ledges, rafters, and other features that allow layered dust to accumulate. Some older facilities, retrofitted with faster handling equipment, still lack the benefit of safer building design. Compared to others of equivalent throughput, these facilities are safer in some respects and less safe in others. [BACK]
6. For a discussion of the shortcomings of these data and a defense of the higher estimate, see U.S. Department of Agriculture, Office of the Special Coordinator for Grain Elevator Safety and Security, Prevention of Dust Explosions in Grain Elevators—An Achievable Goal (Washington, D.C.: Government Printing Office, 1980), 28. There are other hazards associated with grain handling as well. Workers have suffocated while inspecting bins, and the Environmental Protection Agency is concerned about outdoor dust emissions and fumigant use. Still, there is a consensus in government and industry that the explosion hazard poses the greatest danger. [BACK]
7. The uneven correlation between production and sales further compounds the difficulty of evaluating injury data over time; for example, 1985 was a banner year for production but a bust for exports and, hence, for grain handling (see William Robbins, "A Barren Prospect for Wheat: As Exports Dry Up, Another Big American Harvest Goes into Storage," New York Times, June 16, 1985, sec. F, p. 4). [BACK]
8. Most primary explosions occur because an ignition source comes in contact with a dense dust cloud. These "explosions" actually entail a rapid combustion in which flames spread through the dust cloud and heat is produced more rapidly than it is dissipated to the surroundings. [BACK]
9. USDA, Prevention of Dust Explosions, appendix C, table 44, p. 110. [BACK]
10. National Academy of Sciences, National Materials Advisory Board, Pneumatic Dust Control in Grain Elevators: Guidelines for Design Operation and Maintenance, NMAB 367-3 (Washington, D.C.: National Academy Press, 1982), 103-8 (Appendix C: "Results of an Experiment to Determine Whether Dust Suspensions in Bucket Elevator Legs Can be Kept Below the Lower Explosive Limit by Pneumatic Means"). [BACK]
11. Much of the uncertainty surrounding pneumatic dust control is due to its checkered past. A lot of ineffective systems have been installed and others have not been properly maintained. The dust control systems in many facilities were designed by the local air conditioning and furnace outfits. Heating and cooling principles do not lend themselves well to this application, leading the NAS to conclude that "contractors who design and install systems often are poorly qualified for the work." [BACK]
12. National Academy of Sciences, National Material Advisory Board, Prevention of Grain Elevator and Mill Explosions, NMAB 367-2 (Washington, D.C.: National Academy Press, 1982), 18. [BACK]
13. See note 6 above. [BACK]
14. Only three of the fourteen major explosions examined in a USDA study occurred in facilities less than fifteen years old. There are no reliable figures on the number of elevators built since 1980, but sources in the grain industry agree that at least 95 percent of all elevators are older. [BACK]
15. National Fire Protection Association, Standard for the Prevention of Fires and Explosions in Grain Elevators and Facilities Handling Bulk Raw Agricultural Commodities, NFPA 61B-1980 (Quincy, Mass.: NFPA, 1980) sec. 6-6.3, p. 20 (the various versions of this document are hereafter referred to as NFPA 61B, followed by the year of publication). [BACK]
16. Ibid., sec. 5-1.5, p. 14. [BACK]
17. See, generally, National Fire Protection Association, Guide for Explosion Venting, NFPA 68 (Quincy, Mass.: NFPA, 1984); NFPA, Standards on Explosion Prevention Systems, NFPA 69 (Quincy, Mass.: NFPA, 1984). [BACK]
18. The specifications for dust-control systems provided by UL in 1926 have long since been deleted from 61B, although it is difficult to ascertain why from the committee minutes. The first edition of what later came to be called NFPA 61B required that air aspiration systems be installed in conformance with the UL Research Bulletin no. 37 on controlling floating dust. See National Fire Protection Association, Regulations of the National Board of Fire Underwriters for the Prevention of Dust Explosions in Terminal Grain Elevators: Recommended by the National Fire Protection Association (Boston: NFPA, 1925), sec. 33, p. 6. [BACK]
19. NFPA 61B-1980, sec. 8-1.1, p. 23. [BACK]
20. See, for example, Secretary of Labor v. Valley Center Farmers' Elevator, Inc., 8 O.S.H.C. 1061 (1979) (violations for hazardous dust accumulations vacated for failure to establish the amount of dust necessary for the creation of an explosion); and Secretary of Labor v. Cargill, 7 O.S.H.C. 2114 (1979) (violations vacated for failure to establish that accumulations of one-eighth to one-fourth inch constitute a "recognized hazard" in the industry). [BACK]
21. Testimony of William Phillips, assistant vice president, loss prevention and security, Continental Grain Co., informal OSHA hearing, In the Matter of Grain Handling (Kansas City, Mo., June 21, 1984, vol. III, transcript), p. 49. [BACK]
22. NFPA 61B-1980, sec. 6-6.6, p. 20. Information on Continental's policy was obtained through interviews. [BACK]
23. Ibid., sec. 7-2.4, p. 22; sec. 2-4.1, p. 10; sec. A-11-6.5, p. 41. [BACK]
24. A one-page "divisional guideline" issued by the Continental Grain Co. states that dust accumulations exceeding one-eighth of an inch over a broad area constitute an unsatisfactory condition requiring "immediate attention." This guideline was not intentionally made public by Continental. It was introduced into evidence at an OSHA hearing, however, and a Continental official acknowledged its authenticity in an often hostile exchange with OSHA officials and a representative of organized labor. See informal OSHA hearing, In the Matter of Grain Handling (Kansas City, Mo., June 21, 1984, vol. III, transcript), pp. 47-59 and Exhibit 38. The one-eighth-inch standard is also incorporated into Canadian standards and a proprietary standard developed by the Factory Mutual Research Corp. See "Deadlock over Explosive Dust," Science, November 4, 1983, 485, 486. [BACK]
25. NFPA 61B-1973, foreword, p. 5. [BACK]
26. The committee's official response was that "a vast majority of elevators' legs require slow down switches [and it] would be difficult to identify those that could be run without such a device." See National Fire Protection Association, Technical Committee Reports: 1986 Fall Meeting (Quincy, Mass.: NFPA, 1986), "Report of Committee on Dust Explosion Hazards," Part I, Comment 61B-27-(5-1.9) (Log #71), 9. [BACK]
27. Cheryl Cook, "AGRI Damages Called Unfair," Council Bluffs Nonpareil, May 29, 1985, 1. [BACK]
28. Major explosions occur only when there is fuel to spread the explosion. A specific requirement of almost any level of stringency would, in all likelihood, form the basis for liability in those cases in which the fuel, for whatever reason, was ignited. [BACK]
29. NFPA 61B-1980, sec. 5-5.2, p. 16. This language was adopted at the July 1985 committee meeting after a proposal to add the italicized language in the following provision: "All bearings shall be properly maintained as prescribed by the bearing manufacturer and/or the lubricating instructions" (see attachment to Memorandum from Max Spencer to NFPA 61B Committee Members, June 20, 1985). The Cargill representative objected to "the bearing manufacturer dictating to the operator." "Put the responsibility on the person who owns it," he argued, "and he will maintain it well if he is running a good shop." The committee did not adopt the proposed change. [BACK]
30. For example, one commenter suggested a new paragraph "with stronger wording which clarifies that this is an advisory guide not an industry standard." NFPA, Technical Committee Reports: 1986 Fall Meeting, "Report of Committee on Dust Explosion Hazards," Part I, Comment 61B-1-(1-1) (Log #4), 6. For a sample of similar proposals, see ibid., Comment 61B-4-(1-1.4 New) (Log #5) and Comment 61B-9-(1-2.4 New) (Log #12). [BACK]
31. For example, compare NFPA 61B-1973, sec. 3011, p. 10 (explosion venting will "minimize damage to the building or equipment and injury to personnel"), with NFPA 61B-1980, sec. 4-1, p. 13 (explosion venting "so that structural or mechanical damage is minimized.) [BACK]
32. See NFPA 61B-1959, introduction, sec. 1, p. 1.; NFPA 61B-1973, sec. 701, p. 19. [BACK]
33. NFPA 61B-1980, sec. 2-2, p. 9, and sec. A-2-2, p. 36. [BACK]
34. See, for example, Secretary of Labor v. Cargill Inc. (Conrad, Montana), 8 O.S.H.C. 1745, 1747 (1980) (appendix sections concerning tramp metal detectors "wholly advisory" rather than mandatory, and private advisory standard cannot form the basis of a violation). [BACK]
35. Interbin vents reduce the danger of explosive dust clouds forming and igniting during bin loading. They are much cheaper, but less efficient, than attacking the problem through dust collection. The concern, particularly among insurance representatives on the committee, is that interbin vents can help spread a fire or explosion. Basically, punching holes in walls, for whatever reason, violates fundamental principles of fire protection. There are very few bin fires, however. The primary hazard in grain elevators is explosions, and experience indicates that explosions will get through a concrete wall with or without a vent. But the likelihood of explosion may actually be decreased by use of such vents. See NFPA 61B-1980, sec. 3-2.2, p. 12. [BACK]
36. Dust explosions are so powerful that it is difficult, some say impossible, to use venting successfully in most facilities. Ongoing studies of explosion venting funded by the NGFA were slowed down when an experimental silo was unexpectedly destroyed in an explosion. Comments about the practicality of venting a silo roof in accordance with 61B are raised periodically by those arguing that in many designs the roof is too small to provide an adequate vent. "The roof vent [in most cases] will be about as effective as a rifle with a cardboard barrel," notes an NAS panelist. The committee does not take issue with these arguments. It retains the requirements as an "ideal" that admittedly will not be effective in all circumstances. For an example of criticisms of the venting requirements, along with the official committee response, see NFPA, "Technical Committee Reports: 1986 Fall Meeting," Report of Committee on Dust Explosion Hazards," Part I, Comment 61B-22-(4-2) (Log #28), 8. [BACK]
37. NFPA, National Electric Code (ANSI/NFPA-70), Article 500. [BACK]
38. Division 2 is supposed to represent conditions where there are not explosive concentrations of dust in the air but where there could be dangerous accumulations of static dust in electrical equipment. This makes sense for machinery operating in the most active parts of the elevator. "It makes no sense," notes an insurance representative, "for equipment on the third floor of an elevator head house." [BACK]
39. NFPA 61B-1980, sec. 5-1.9, p. 14; sec. 5-2.2, p. 15; sec. 5-6.4, p. 16. [BACK]
40. For an analysis of this provision, see Donald L. Morgan and Mark N. Duvall, "OSHA's General Duty Clause: An Analysis of Its Use and Abuse," Industrial Relations Law Journal 5 (Spring 1983): 283 -321. [BACK]
41. See, generally, National Academy of Sciences, National Material Advisory Board, The Investigation of Grain Elevator Explosions, NMAB 367-1 (Washington, D.C.: National Academic Press, 1980). [BACK]
42. Federal Register 45 (February 15, 1980): 10732 (request for comments and information and notice of informal public meetings). [BACK]
43. NAS, Prevention of Grain Elevator Explosions,40. The panel also noted that collecting information about actual explosions "is difficult because of legal constraints" (35). [BACK]
44. Ibid., 9. [BACK]
45. U.S. House, Agriculture Subcommittee on Wheat, Soybeans, and Feed Grains, Review of Grain Elevator Safety, July 21, 1982 (Washington, D.C.: Government Printing Office, 1982.) [BACK]
46. It included provisions for (1) emergency action plans, (2) employee training, (3) permit systems for hot work, (4) procedures for bin entry, (5) briefing of contractors, (6) housekeeping, (7) grate openings, (8) filter collection specifications, (9) bulk grain driers, (10) grain stream processing equipment, (11) emergency escape requirements, (12) preventative maintenance, (13) inside bucket elevator design, and (14) partially inside bucket elevator design. [BACK]
47. Proponents and critics alike agreed that the housekeeping provision accounted for 70-75 percent of the initial cost of the rule and upward of 95 percent of the recurring costs. [BACK]
48. NAS, Prevention of Grain Elevator Explosions, Appendix D: "Report of the Subpanel on Recommended Standards and Regulations," p. 130. [BACK]
49. "False Sense of Security for Workers Should Not Be Created by Rule, OSHA Told," O.S.H. Rep. (BNA) (March 29,1984), p. 1170. [BACK]
50. National Grain and Feed Association, Petition for a Partial Stay of the Grain Handling Facilities Standard, In the Matter of Grain Handling Facilities Standard, March 14, 1988, 2. [BACK]
51. For example, most industrywide estimates were based on a nonrandom survey of seventeen facilities. And the analysis of pneumatic dust control, according to a grain elevator insurer, was "uninformed and inaccurate." [BACK]
52. Estimating the cost of the "grate opening" requirement, for example, depended on assumptions about (1) the number of facilities that currently have either pit magnets or perpendicular grate bars with appropriate spacing, (2) the percentage of those not in compliance that would choose magnets instead of grates, (3) the average product, installation, and maintenance costs for magnet systems, and (4) similar estimates for constructing metal overgrates. [BACK]
53. On the grate opening requirement, for example, the OSHA study assumed that most facilities would add low-cost overgrates. The NGFA figured that most operators would add more expensive magnets. [BACK]
54. For example, Booz, Allen estimated the total area of country elevators that would have to be swept or vacuumed at 49.4 million square feet. Industry estimated 77.5 million. Since there are not even reliable figures on the exact number of country elevators, both estimates are within a reasonable margin of error given existing data. [BACK]
55. OSHA estimated that 10 percent of existing facilities already complied with the housekeeping requirements. The figure may be higher. Most of those familar with the industry agree that Cargill, for example, maintains comparatively safe facilities. The estimates offered by industry seem unrealistically gloomy in predicting that no facilities are in compliance. [BACK]
56. Booz, Allen & Hamilton, Inc., "Some Impacts of a Proposed OSHA Standard on Grain Handling Facilities" (Report prepared for Office of Regulatory Analysis, OSHA, April 1984), II-4-II-35. [BACK]
57. OMB estimated, for example, that country elevators and small feed mills cause 18.3 percent of the fatalities but would account for 53.1 percent of the compliance costs. See Office of Management and Budget, "OSHA's Proposed Standard for Grain Handling Facilities: April 1984," table 2, p. 27. This thirty-nine-page critique was enclosed with a letter to Francis Lilly, solicitor, Department of Labor, from Christopher DeMuth, OMB administrator for information and regulatory affairs, April 11, 1985. [BACK]
58. Federal Register 49 (January 6, 1984): 996. The alternatives added by OMB are puzzling. They certainly did not add flexibility to the standard. The housekeeping requirements were already stated in performance terms that allowed sweeping, pneumatic dust control, or any other effective method. The "once per shift" proposal, as industry representatives privately admitted, meant almost nothing. All facilities do some sort of housekeeping once per shift. "The language here is so vague that you could sweep with a rake for five minutes and be in compliance," argued an AFL-CIO lobbyist. The pneumatic dust-control alternative was equally puzzling, as nobody argued seriously that all facilities should be required to install such equipment. [BACK]
59. These "worksheets," intended to demonstrate the high cost of the standard, provided simple formulas with which operators could calculate their own compliance costs and send the results to their congressman. [BACK]
60. U.S. Senate, Subcommittee on Labor of the Committee on Labor and Human Resources, Hearing (S. Hrg. 98-946) (Yukon, Okla., July 13, 1984, testimony of Joe Hampton, executive vice president, Oklahoma Grain and Feed Association), 20. [BACK]
61. Joann S. Lublin, "Grain-Elevator Rule Forges Unusual Link as AFL-CIO Backs Labor Agency's Plan," Wall Street Journal, August 24, 1983, 50. [BACK]
62. Federal Register 52 (December 31, 1987): 49592. For a report on Senator Harkin's efforts, see O.S.H. Rep. (BNA) (December 2, 1987), p. 999. [BACK]
63. These areas are (1) floor areas within thirty-five feet of inside bucket elevators, (2) floors of enclosed areas containing grinding equipment, and (3) floors of enclosed areas containing grinding equipment. The standard is not limited to these areas, however. "Priority housekeeping shall include at least [these three areas]" (29 CFR 1910.272 [i] [A]; emphasis in original). [BACK]
64. 29 CFR 1910.272 (p) (7). [BACK]
65. Federal Register 52 (December 31, 1987): 49598. [BACK]
66. Ibid. [BACK]
67. Editorial, Feedstuffs, April 4, 1988. [BACK]
68. National Grain and Feed Association v. OSHA, 858 F.2d 1019 (5th Cir. 1988). The court expressed "no opinion as to whether the agency underestimated the compliance costs of its standard" but agreed with industry challenges that the record was inadequate. Approximately one year later, OSHA "redetermined" that the one-eighth-inch action level is feasible, promulgating the "final rule" again with a "supplemental statement of reasons" (Federal Register 54 [December 4, 1989]: 49971). [BACK]
69. Informal OSHA hearing, In the Matter of Grain Handling (Washington, D.C., June 14, 1984, transcript), 696. [BACK]
Four Standards for Aviation Fire Safety
1. The analysis in this chapter is restricted to commercial airliners. The FAA regulates small commuter airlines and private aircraft separately. [BACK]
2. A few major airlines have safety departments. Several of these airlines conduct occasional safety tests and participate in the development of some nongovernment safety standards. But most airlines do not do any of these things. The explanation of these differences is an important question for future research. [BACK]
3. Federal Aviation Administration, Federal Aviation Regulation (F.A.R.) 121.309(c). See, generally, 14 C.F.R., part 121. [BACK]
4. FAA, "Hand Fire Extinguishers in Transport Category Airplanes and Rotocraft," Advisory Circular 20-42, September 1, 1965. [BACK]
5. National Transportation Safety Board, Recommendation A-73-067 (closed on May 3, 1979, following "acceptable action" by the FAA). [BACK]
6. FAA response (May 2, 1974) to NTSB recommendation A-73-067. [BACK]
7. FAA, Advisory Circular 20-42A, July 29, 1980. [BACK]
8. FAA, General Notice 8000.212, November 29, 1980. [BACK]
9. Letter from W. B. Durlin, vice president, engineering and quality control, Frontier Airlines, to Sheldon King, FAA air carrier maintenance inspector, Aurora, Colo., December 16, 1983. Obtained through Freedom of Information request for correspondence concerning compliance with FAA General Notice 8000.212. [BACK]
10. Boeing apparently concluded that Halon 1211 worked better than water extinguishers in all simulated fire tests but a large newspaper fire. The company did not officially release the results of its tests, but an unofficial account appears in L. M. Krasner, Factory Mutual Research Corporation, Study of Hand-Held Fire Extinguishers Aboard Civil Aviation Aircraft, DOT/ FAA/Ct-82/42 (Springfield, Va.: National Technical Information Service, 1982), 20. [BACK]
11. Hal Quinn, "A Burning Nightmare at 31,000 Feet," MacLean's, June 13, 1983, p. 19. [BACK]
12. The NSTB is an independent agency charged with investigating transportation accidents and recommending regulatory changes. Its reports are often highly influential. NFPA, in cooperation with the U.S. Fire Administration and the National Bureau of Standards, investigates major fires of all sorts for the purpose of improving private standards. [BACK]
13. See, generally, Thomas J. Klem, National Fire Protection Association, "Investigation Report: Air Canada DC-9 Aircraft Fire, Greater Cincinnati Airport, June 2, 1983" (photocopy, n.d.). [BACK]
14. National Transportation Safety Board, Recommendations A-83-71 (thermal discharge extinguishers for lavatories) and A-83-72 (Halon extinguishant), forwarded to J. Lynn Helms, administrator, Federal Aviation Administration, October 31, 1983. [BACK]
15. The three committees were the House Subcommittee on Transportation, Aviation, and Materials; the House Subcommittee on Investigations and Oversight of the Public Works and Transportation Committee; and the Senate Labor and Human Resources Committee. [BACK]
16. U.S. House, Committee on Public Works and Transportation, Legislation to Improve Airline Safety, Hearings, July 26, August 1-2, 1984 (98-59) (Washington, D.C.: Government Printing Office, 1984), 161. [BACK]
17. See, for example, H.R. 3264, 98th Cong., 2d sess. (requiring smoke detectors); H.R. 3793, 98th Cong., 2d sess. (requiring a "comprehensive, manually operated fire extinguishing system"); H.R. 5518, 98th Cong., 2d sess. (requiring high-buoyancy life vests). [BACK]
18. U.S. House, Committee on Public Works and Transportation, Legislation to Improve Airline Safety, 2 (Congressman Mineta). [BACK]
19. James Ott, "Smoke Detectors Start Conflict," Aviation Week and Space Technology, September 24, 1984. [BACK]
20. The first digit in the number represents the number of carbon atoms in the compound molecule; the second digit, the number of flourine atoms; the third digit, the number of chlorine atoms; and the fourth digit, the number of bromine atoms. [BACK]
21. To qualify for a Class A rating from UL, it is necessary to meet minimum performance criteria on an excelsior fire, a wood crib fire, and a wood panel fire. The excelsior fire test, for example, involves six pounds of fuel distributed over a 2'10" x 5'8" test area. The wood crib test involves extinguishment of a crib composed of fifty wood members arranged in ten layers of five members each. Specific details for test construction, arrangement, ignition, and fire attack strategy are contained in UL 711. [BACK]
22. Charles Perrow disagrees, arguing that "we simply do a lot of driving and very little flying, giving us the impression that the risk of the latter is much smaller. In terms of exposure (fatalities per hour) they may be very similar" (Normal Accidents: Living with High-Risk Technologies [New York: Basic Books, 1984], 126). While Perrow is correct that comparing absolute numbers of fatalities may be misleading, he is wrong in attempting to remedy the problem by comparing the number of fatalities per hour. That measure would make sense only if airplanes and automobiles traveled equally fast. An hour of "exposure" to airplane travel is not commensurate in any meaningful sense with an hour of car travel. An hour of airplane travel should be compared with the "exposure" necessary to accomplish the same distance in a car, since that is the choice faced by an individual. Under this measure, commercial airplane travel would have to be considered at least five times safer than car travel. [BACK]
23. Robert J. Johansen, "Using Statistics in Aviation Underwriting," Best's Review (Prop/Casualty), February 1982, 42. [BACK]
24. U.S. House, Committee on Public Works and Transportation, Legislation to Improve Airline Safety, 58. [BACK]
25. See, for example, Executive Order 12291, February 17, 1981. [BACK]
26. For an explanation of the $350,000 value placed on a statistical traveler's life, see FAA, Office of Aviation Policy, Economic Values for Evaluation of Federal Aviation Administration Investment and Regulatory Programs (Springfield, Va.: National Technical Information Service, 1981), 12-27. [BACK]
27. Federal Register 49 (May 17, 1984): 21010 21015 (notice of proposed rulemaking). [BACK]
28. A phenomenon is characterized by a Poisson distribution if the average number of events during a given time period can be estimated from past experience. Further, if the time period is subdivided into much smaller intervals, the probability that an event will occur in such a small interval is extremely low and remains constant for every small interval, and the probability that two or more events can occur within such a small interval is so low that it can be assigned a probability of zero. Finally, the occurrence of an event within any small interval is independent of the occurrence of events in other small intervals and is also independent of when that small interval occurs within the larger time period. [BACK]
29. Thomas Hopkins, "Economics of Safety" (Paper presented to the Flight Safety Foundation Conference on Cabin Safety, Washington, D.C., December 13, 1984), 154. [BACK]
30. The error has been corrected in subsequent FAA analyses. [BACK]
31. The Federal Aviation Regulation on Training States that each crew member must "operate" an extinguisher in training exercises during initial training and every twenty-four months thereafter. According to a report commissioned by the FAA: "Actual practice among the carriers varies broadly from brief discharge of agent on a makeshift fire to passing empty extinguishers around with individuals operating the discharge assembly" (Krasner, "Study of Hand-held Fire Extinguishers Aboard Civil Aviation Aircraft," 44). [BACK]
32. H. M. Hollingsworth, U.S. Coast Guard Research and Development Center, Obstructured Fire Tests on Hand-held Fire Extinguishers for Recreational Boats, CG-D-133-75 (Springfield, Va.: National Technical Information Service, 1975). [BACK]
33. The FAA employees do not both officially "represent" the FAA. NFPA, concerned about the "balance" of its committees, resisted the idea of having two FAA representatives on one committee. Through a compromise, an employee of the Airports Division participates as an individual, not as a representative of the FAA. He attends not so much to influence NFPA standards as to gain technical information and contacts helpful in his job at the FAA. [BACK]
34. One representative was from the FAA's Research Facility. His primary interest was in the arcane dispute (described later) about various Halon extinguishing agents. The other was, as noted, from the Airports Division. He considered NFPA 408 entirely outside his area. "I am only concerned with fire extinguishers if they are inside an airport facility," he explained. [BACK]
35. There are seventeen other NFPA aviation safety standards covering such items as aircraft hangars, airport terminals, loading walkways, and aircraft engine-testing facilities. [BACK]
36. National Fire Protection Association, Aircraft Hand Fire Extinguishers, NFPA 408-1956 (Boston: NFPA, 1956), sec. 110 (scope), p. 6 (the various versions of this document are hereafter referred to as NFPA 408, followed by the year of publication). [BACK]
37. The same engineer describes an intensive battle in the mid 1970s to get Boeing to consider supplying aircraft with Halon fire extinguishers. "For years Boeing was married to dry chemical," so it was not until the airline presented its own test data on the effectiveness of Halon that they made headway with Boeing. [BACK]
38. An amendment to the 1970 version provided an exception to the general rule that extinguishers shall be carbon monoxide or water: "Extinguishers utilizing halgonated extinguishing agents classified by the Underwriter's Laboratories, Inc., as failing in UL Toxicity Group 5 or 6 may be substituted for the carbon dioxide extinguishers if it can be shown that there is sufficient free-air volume within the aircraft cabin space to avoid producing serious irritating effects on the occupants" (NFPA 408-1973, sec. 312, p. 5). [BACK]
39. Sale of publications (primarily standards) accounted for almost $14 million in 1984, close to two-thirds of NFPA's income (NFPA Balance Sheet, Fire Journal, May 1985, 82). [BACK]
40. NFPA 408-1980, sec. 3-1.3, p. 7. [BACK]
41. Ibid., sec. A-2-3-4.1, p. 10. [BACK]
42. For example, as discussed in chapter 4, if NFPA allows only metal chimneys passing the 2100° F fire test, UL will have to change its standard accordingly. [BACK]
43. See, generally, Underwriters Laboratories, UL 711: Standard for Rating and Testing Fire Extinguishers, 3d ed. (approved as ANSU/UL 711-1979) (Northbrook, Ill.: Underwriters Laboratories, 1983). This standard sets forth performance requirements for the four classes now used universally in labeling fire extinguishers: Class A (wood, cloth, paper), Class B (flammable liquids), Class C (electrical equipment), and Class D (combustible metals). Extinguishers are rated by class and capacity. For aviation purposes, for example, NFPA 408 calls for a 5:BC rating, meaning a five-gallon extinguisher capable of extinguishing a UL Class B and Class C fire. [BACK]
44. NFPA 408-1980, sec. A-5-3.3. [BACK]
45. National Fire Protection Association, Technical Committee Documentation: 1984 Annual Meeting (Quincy, Mass.: NFPA, 1984), Comments 408-8-(2-3.3.1 [New]), 408-9-(2-3.6), and 408-10-(table 3-1.1), p. 5. [BACK]
46. See, generally, Yair Aharoni, The No-Risk Society (Chatham, N.J.: Chatham House, 1981). [BACK]
47. "Statement by Congressman Norman Y. Mineta," in Proceedings of Cabin Safety Conference and Workshop: December 11-14, 1984, DOT/FAA/ ASF100-85/01 (Springfield, Va.: National Technical Information Service, 1985), 9. [BACK]
Five Safety Standards and Labeling Requirements for Woodstoves
1. Schwartz, "The Consumer Product Safety Commission," 32, 71-73. [BACK]
2. Sunset Homeowner's Guide to Wood Stoves (Menlo Park, Calif.: Lane Publishing, 1979), 5. [BACK]
3. The Epidemiology Directorate of the CPSC estimates the following losses due to residential solid-fuel beating equipment:
Consumer Product Safety Commission, "FY 1984 Wood and Coal Heating Equipment Report" (transmitted to the Commission by cover memorandum from the Office of Program Management on April 4, 1985), 15. [BACK]
4. For an example of the criticisms lodged against the CPSC's hospital survey information, see Edward Heiden, Allan Pittaway, and Rosalind O' Connor, "Utility of the U.S. Consumer Product Safety Commission's Injury Data System as a Basis for Product Hazard Assessment," Journal of Products Liability Law 5 (1982): 295. [BACK]
5. A trade association representative complains that "there is a big thick volume on how to fill out the NFIRS reports but most of that stuff is ignored and there is a pattern of common answers." He reports that firemen have told members of the trade association that "design deficiency" is "just a buzzword we use" to categorize fires of unknown origin. [BACK]
6. Richard D. Peacock, Center for Fire Research, National Bureau of Standards, A Review of Fire Incidents, Model Building Codes, and Standards Relating to Wood-Burning Appliances, NBSIR 79-1731 (Springfield, Va.: National Technical Information Service, 1979), 5-6. [BACK]
7. A study for the Department of Energy concluded that 10 percent of woodstove fires are attributable to "improper equipment design" and another 4.3 percent to "equipment malfunction." A Massachusetts study, attributed no more than 2 percent of woodstove fires to "defective or unsafe" appliances. The difference is partly definitional. Scenarios that were considered the users' fault in one study were considered design errors in another. [BACK]
8. Underwriters Laboratories v. Commissioner of Internal Revenue, 135 F.2d 371, 373 (10th Cir. 1943). [BACK]
9. Underwriters Laboratories, 1984 Annual Report (n.p., 1985), 1, 9, 18. [BACK]
10. Underwriters Laboratories, UL 1482: Safety Standard for Room Heaters, Solid-Fuel Type, 2d ed. (Northbrook, Ill.: UL, 1983), sect. 5.2, table 5.1, p. 8 (hereafter referred to as UL 1482). [BACK]
11. Ibid., sec. 17.20, p. 35. [BACK]
12. Ibid., sec. 6.7, p. 10. [BACK]
13. The secrecy UL is famous for serves several purposes: it assures manufacturers with trade secrets that they will not be revealed through the product certification process; it facilitates discussion of matters that might involve product liability suits; and it hinders outside review and potential embarassment. [BACK]
14. Similarly, the proposed standard stated that the test structure should be "reasonably free of drafts." The revised version specifies that it is "to be erected within a room having ventilation capable of maintaining the buildup of carbon monoxide to less than 100 parts per million throughout the period of any test." Other revisions added flexibility to the standard, again with no obvious implications for safety. The original proposal specified the use of Type J (iron-constantan) thermocouples—the thermoelectric device for measuring temperature differences. The revised version allows Type K (chromel-alumel) as well. [BACK]
15. For example, the January 1978 proposal included primarily installation instructions, with few operating instructions. The installation instructions did not provide details about floor protection or chimney connectors. There was no reference to creosote buildup and no caution about storage or use of flammable liquids. Underwriters Laboratories, "Report of Meeting of Underwriters Laboratories Industry Advisory Conference for Fireplaces, Fireplace Stoves and Solid Fuel Type Room Heaters and PROPOSED EFFECTIVE DATES" (Memorandum to the Fire Council, manufacturers, and others interested, January 1 8, 1979; capitalization in original), appendix B, B2-B5. [BACK]
16. UL of Canada is unrelated to the UL in this country. There are apparently myriad differences between ULC and UL standards. Whether they reflect differences in testing philosophy or, as a UL spokesman claims, ULC's desire to protect its own turf is a topic for future research. [BACK]
17. Underwriters Laboratories, "Proposed Revisions to Proposed First Edition of the Standard for Solid Fuel Type Room Heaters, UL 1482 and PROPOSED EFFECTIVE DATE" (Memorandum to the Fire Council, manufacturers, and others interested, April 25, 1979; capitalization in original), 1-3. [BACK]
18. The same is true of NFPA. In both instances, ANSI "approval" is routine, and neither UL nor NFPA would be likely to change its standards were it necessary for ANSI approval. One major standards-writer, the American Society for Testing and Materials, stopped sending its standards through ANSI several years ago. [BACK]
19. See, generally, American National Standards Institute, "Procedure for the Development and Coordination of American National Standards (Approved by the ANSI Board of Directors, March 30, 1983)" (typescript, 1983). The procedures for canvass by an accredited sponsor basically involve: (1) developing a list of all interests known to be directly and materially affected by the standard, (2) having ANSI review the list and solicit other interested parties to join the proceeding, (3) transmitting the standard along with a brief history of how it was developed to those on the list, (4) attempting to resolve any objections by those canvassed, and (5) reporting the results to ANSI. Those opposed to the canvass method, including some current members of the ANSI Board of Directors, object that it is a "review process," not a method of developing standards, so, it is argued, the participants play a much less significant role. [BACK]
20. Irwin Benjamin, Fire Safety Division, National Bureau of Standards, argued in a letter of June 27, 1979, to UL (on file in the Standards Department at UL headquarters in Northbrook, Illinois) that the proposed standard "does not include any provisions covering a room heater's tendency toward creosoting." Similar arguments were advanced by John Shultz in one of three letters from an NFPA technical committee. [BACK]
21. C. P. Ramani, of the Open Forum of the ICBO, objected by letter of August 7, 1979, to testing stoves without a grate so long as the manufacturer instructs the consumer accordingly: "We believe that if a conventional grate could be placed in a heater, then it should be tested with one. Use of a cautionary label alone will not insure safe use of the product." Rober Nelson, ASHRAE, objected by letter of June 2, 1979, that "the extent of testing by impact is unreasonable. Six different blows will increase the cost of glass without providing a safer product." [BACK]
22. On file in the Standards Department at UL headquarters in Northbrook, Illinois. [BACK]
23. One of the most outspoken critics of UL's "desk standards" is the author of a newsletter called TMO Update: National and International Developments Concerning Product Certification, Laboratory Accreditation, and Standardization. See, for example, "NEMA and OSHA and Those UL Desk Standards," TMO Update 9, no. 14 (August 15, 1984). For a reply by UL's president, see Jack Bono, "The Role of UL Standards—Published and Unpublished," Standards Engineering, March/April 1985, 46-47. [BACK]
24. Underwriters Laboratories, "Proposed Revisions to Proposed First Edition of UL 1482," 2. [BACK]
25. See for example, David Hemenway, Performance vs. Design Standards, NBS/GCR 80-287 (Springfield, Va.: National Technical Information Service, 1980). [BACK]
26. UL 1482, sec. 16.2, p. 31. [BACK]
27. See, for example, ibid., foreword, sec. A, p. 4. [BACK]
28. Ibid., sec. 15.1, p. 30. [BACK]
29. For a discussion of these standards (UL 1409 and UL 1410), see Al Gengler, "The UL Investigation of Portable Video Recording Systems," [UL] Lab Data 16, no. 1 (1985): 11-15. [BACK]
30. UL 1482, sec. 11.8, p. 25; sec. 12.10, p. 27; sec. 14.7, p. 29. [BACK]
31. An internal memorandum dated September 6, 1979, from C. E. Layman, an associate engineer at UL's Santa Clara, California, office (and on file at the Standards Department at UL headquarters in Northbrook, Illinois), states, "We are unable to comment at this time on the 90 and 117F temperature rise." [BACK]
32. See note 21 above. [BACK]
33. "Return of the Wood Stove," Consumer Reports 46, no. 10 (October 1981): 566, 572. [BACK]
34. A round-robin study by NBS found "real systematic differences" when different labs used UL 1482 to test the same model stove. In one case, the measured temperature in the same test on the same model stove was 430° F at one lab and 809° F at another. These differences were most likely due to allowable variations in test methods (e.g., moisture content of the wood, air circulation in the test structure). See National Voluntary Laboratory Accreditation Program, National Bureau of Standards, "NVLAP Proficiency Testing, Stove LAP: Round 1" (NVLAP Tech Brief, February 1983), table 1 (and cf. Lab C and Lab D on "center rear stove" measurements for the radiant fire test). [BACK]
35. For example, UL 1482 leaves considerable latitude to the testing labs in determining the moisture content of the wood and the amount of air circulation in the test structure—two factors that directly affect performance. A small stove manufacturer, who cannot afford to send an engineer to the testing laboratory for a few days, complains that some decisions are influenced by whether the manufacturer has an engineer present during the tests. "You practically need a lobbyist," as he puts it, "or you take the standard as it is." Interviews with manufacturers at a trade show at which most items were certified by either UL or Factory Mutual support the contention that lab technicians occasionally change their interpretations of test procedures to placate an irritated (and often better educated) engineering representative. The waiting room at UL headquarters in Northbrook frequently houses industry representatives seeking through UL's informal appeals process to receive a more favorable interpretation than they received from the technician. Many are apparently successful. [BACK]
36. The fireplace insert standard is controversial because the safety of the product depends directly on the type of masonry chimney (specifically, the number and location of wooden headers). Not only is there considerable variance in existing chimneys, but most do not comply with the code requirements normally used in product testing—NFPA's. Metal chimneys are controversial because UL, in a very unusual tactic, certifies them to two different standards: UL 103 and UL 103HT. The HT standard requires a higher tolerance than UL 103, one high enough to withstand the damage from a typical chimney fire. The CPSC and many others believe that UL 103 should adopt the HT requirements. [BACK]
37. A small manufacturer complained that "UL lost its credibility when it certified [an inexpensive brand imported from Taiwan]." No one else interviewed in connection with this study, however, including safety advocates at the National Bureau of Standards and in the consulting business, agreed with the assertion that this particular brand is a threat to anything but competition. [BACK]
38. In a letter seeking financial support for a research project to improve various aspects of UL 1482, noted woodstove expert Jay Shelton argued: "In addition to lacking a measure of creosote, UL 1482 may have features which indirectly increase creosote accumulation. Specifically, the temperature limits for flue gas are sometimes difficult to pass. A common design modification is to use an air inlet stop to limit the maximum amount of combustion air which can enter the combustion chamber. The reduced amount of combustion air can increase creosote accumulation" (Letter from Shelton Energy Research to, among others, the National Bureau of Standards, the Society of Fire Protection Engineers, and the Wood Heating Alliance, dated November 13, 1984, p. 2). [BACK]
39. NVLAP, "NVLAP Proficiency Testing for Stoves: Rounds 1 and 2." [BACK]
40. 15 U.S.C. sec. 2056 (d) (1976) (repealed 1981). For a detailed discussion of the offeror process, see Schwartz, "The Consumer Product Safety Commission," 32, 57-72. [BACK]
41. Peacock, A Review of Fire Incidents, 15. [BACK]
42. Statement of Irwin Grief, Office of Program Management, Consumer Product Safety Commission, in Public Hearing before the Consumer Product Safety Commission, Washington, D.C., March 14, 1979. [BACK]
43. The three trade associations were GAMA (the Gas Appliance Manufacturers Association), the Fireplace Institute, and the Wood Energy Institute. GAMA had been in the business the longest, but only as a sidelight to its main activities and a courtesy to gas appliance manufacturers who also made wooodstoves. The other associations were new and between them had a small portion of the market. In 1982 an agreement was reached forming the Wood Heating Alliance in place of these uncoordinated efforts. [BACK]
44. For a discussion of the lawn mower proceedings, see Schwartz, "The Consumer Product Safety Commission," 77-95 (Appendix A: "A Case Study—The Lawn-Mower Standard"). See also W. Kip Viscusi, Regulating Consumer Product Safety (Washington, D.C.: American Enterprise Institute, 1984), 93-96. For a discussion of the chain saw proceedings, see Elaine Thomas, C. E. Benton, and Werne L. Roberts, Safe Chain Saw Design (Durham, N.C.: Institute for Product Safety, 1983). [BACK]
45. "Briefing Paper on Proposed CPSC 27(e) Labeling Rule for Coal and Wood Burning Appliances" (Office of Program Management, CPSC, September 1980), 3. [BACK]
46. Beatrice Harwood and Paul Kluge, "Hazards Associated with the Use of Wood or Coal-Burning Stoves or Free-Standing Fireplaces" (Directorate for Hazard Identification and Analysis, CPSC, February 1980), table 1, p. 11. [BACK]
47. For example, the assumption that all firms would select the lowest-cost testing laboratory. The staff also assumed that increases in the price of woodstoves would not affect industrywide sales. See T. R. Karels, CPSC, memorandum of March 27, 1981, on Coal and Wood Stove Label Rule, p. 2 (located at Tab E of May 1981 briefing package to the commission). [BACK]
48. T. R. Karels, Division of Special Economic Studies, CPSC, "Coal and Woodburning Stoves, Section 27(e) Labeling Rule: Preliminary Economic Impact Analysis," February 1980, 4. [BACK]
49. Federal Register 48 (May 16, 1983): 21898, 21912 (final rule). [BACK]
50. Robert S. Adler and R. David Pittle, "Cajolery or Command: Are Education Campaigns an Adequate Substitute for Regulation?" Yale Journal on Regulation 1, no. 2 (1984): 159-93. [BACK]
51. See note 3 above. [BACK]
52. Stephen E. Taub, technical division chief, Consumers Union, letter of December 19, 1980 to the CPSC (Comment #CC9-80-27). [BACK]
53. Eleanor Perry, CPSC, "Provisions for Labeling and Instruction Manuals in the Underwriters Laboratories Standards for Fireplace Stoves (UL737) and Solid Fuel Room Heaters (UL1482)" (Memorandum to Margaret Neily, program representative, for James Hoebel, Fire and Thermal Burn Program manager, May 25, 1982). [BACK]
54. Federal Register 47 (April 6, 1982): 14711 (deferral of consideration of final rule). [BACK]
55. Elizabeth Gomilla and Eileen Keisler, CPSC, "Report on the Coal and Woodburning Stove Survey Conducted in February 1982" (n.d.; transmitted to the Office of Program Management by memorandum of July 14, 1982). [BACK]
56. Only the CPSC, for example, requires information about venting through a wall or ceiling. [BACK]
57. Eleanor Perry, CPSC, "Provisions for Labeling and Instruction Manuals," 2. [BACK]
58. The Enforcement Directorate reported in 1985 that 31 percent of the three hundred firms responding to the CPSC's request for information were "clearly in violation of the rule." Another 29 percent had "relatively minor violations." If the incidence of violations is larger among those not responding to the CPSC, it is likely that at least 40 or 50 percent of all firms are "clearly in violation." See CPSC, "FY 1984 Wood and Coal Heating Equipment Report," 77. [BACK]
59. Aqua Slide 'n' Dive v. Consumer Product Safety Commission, 569 F.2d 831 (5th Cir. 1978). [BACK]
60. 16 C.F.R. sec. 1406.4(a)(1) ("The appliance shall bear a legible notice containing the following performance and technical data"); 16 C.F.R. sec. 1406.4(a)(3) ("the written information required ... shall be readily visible during normal use"); 16 C.F.R. sec. 1406.4(b)(1) ("This statement shall be conspicuous"). [BACK]
61. CPSC, "FY 1984 Wood and Coal Heating Equipment Report," 78. [BACK]
Six Safety Standards for Unvented Gas-Fired Space Heaters
1. See, generally, Consumer Product Safety Commission, Directorate for Hazard Identification and Analysis, "Unvented Gas Space Heaters: HIA Hazard Analysis Report," July 1978. [BACK]
2. The amount of ventilation depends on the size of the heater and the rate of air infiltration. With a 40,000 BTU heater, for example, the largest allowed under Z21.11.2, a standard-sized window should be opened at least two inches to ensure sufficient ventilation. [BACK]
3. See, for example, "Minutes of Meeting of Subcommittee on Standards for Unvented Gas-fired Space Heating Appliances" (Cleveland, November 10-11, 1970), item 6, p. 6 (cases involving clothing ignition cited in letter forwarded by the secretary of commerce); "Minutes of Meeting of Subcommittee on Approval Requirements for Unvented Gas-fired Heating Appliances" (Cleveland, September 11-12, 1962), item 5, p. 19 (newspaper clipping sent by NFPA about fire incident involving an open-front room heater). [BACK]
4. The CPSC list, now in general disrepute, purported to combine the frequency and severity of reported injuries into a single index. A major criticism, aside from problems with the quality of the data collection, was the failure to factor out injuries that could not possibly be reduced through regulation. Stairs, for example, topped the list for many years. Five of the next seven products were sports-related. [BACK]
5. CPSC, "Unvented Gas Space Heaters: HIA Hazard Analysis Report," p. 12. [BACK]
6. The most likely explanation is that between 1974 and 1975 the CPSC received seventy death certificates "attributed to carbon monoxide emissions from gas space heaters," but these covered an eighteen-month period and did not distinguish between vented and unvented gas space heaters. Based on seven reported fatalities related to unvented heaters, the CPSC estimated a national total of fifty-six in 1977. This extrapolation is subject to the same well-known criticisms of CPSC's NEISS system. [BACK]
7. Max Singer, "The Vitality of Mythical Numbers," The Public Interest 23 (Spring 1971). See also Peter Reuter, "The (Continued) Vitality of Mythical Numbers," The Public Interest 75 (Spring 1984). [BACK]
8. The CABO (Conference of American Building Officials) One and Two Family Dwelling Code provides, for example, that "only unvented fuel burning heaters equipped with oxygen depletion sensors and listed in accordance with ANSI Standard 'Z21.11.1' 1978 shall he permitted." [BACK]
9. UL, which began by testing electric appliances, now has six departments: Electrical; Burglary Protection and Signaling; Casualty and Chemical Hazards; Fire Protection; Heating, Air Conditioning, and Refrigeration; and Marine. A few of UL's standards cover gas appliances, overlapping directly with some of AGA's standards. This can create a serious problem if the competition is not just in price, as is the case when smaller labs offer to certify products to UL standards. In these rare instances, the laboratories "compete" on safety as well. Such competition tends to reduce safety requirements. [BACK]
10. Because of the extensive review and comment procedures utilized by AGA, most standards are submitted to ANSI as "uncontested cases." For example, Z21.11.2 was approved by the Board of Standards review on October 12, 1984, without discussion. [BACK]
11. American Gas Association, "Procedures for Accredited Standards Committee Z21 on Performance and Installation of Gas Burning Appliances and Related Accessories" (approved by ANSI on July 18, 1984; mimeographed, n.d.). [BACK]
12. See, for example, "A Resume of the Voluntary Standards Development Procedures for Z21, Z83, and Z223 Standards" (AGA Labs, July 1981; mimeographed), 5. [BACK]
13. American Gas Association, American Standard Approval Requirements for Gas-fired Room Heaters. Volume II, Unvented Room Heaters, 14th ed. (New York: American Gas Association, 1962), sec. 1.5.4, p. 3 (ANSI Z21.11.2-1962; UDC 644.1:696.2). [BACK]
14. Ibid., sec. 1.6.3. [BACK]
15. Ibid., sec. 1.7.8, p. 4. [BACK]
16. Ibid., sec. 1.9.4. [BACK]
17. AGA Labs, "Minutes of Meeting of Subcommittee on Approval Requirements for Unvented Gas-fired Heating Appliances" (Cleveland, December 8, 1964), item 5, p. 3. [BACK]
18. AGA, Unvented Room Heaters, sec. 2.15, p. 15. [BACK]
19. AGA Labs, "Minutes of Meeting of Subcommittee on Approval Requirements for Unvented Gas-fired Heating Appliances" (Cleveland, January 11, 1962), item 8, pp. 6-7. [BACK]
20. For information about the proposal to eliminate these standards, see John Herbers, "U.S. Plans to End Nationwide Code for Construction," New York Times, August 18, 1985, 1. [BACK]
21. Philadelphia Electric Gas System, "Unvented Room Heater and Decorative Indoor Appliance Installation Standard: Final Report" (photocopy, n.d.; attached as appendix to American Gas Association Labs, "Compilation of Comments Received on Proposed Revisions to American National Standard for Gas-fired Room Heaters, Volume II, Unvented Room Heaters," December 1975), 3. [BACK]
22. American Gas Association, American National Standard for Gas-fired Room Heaters. Volume II, Unvented Room Heaters, 19th ed. (Cleveland: American Gas Association Laboratories, 1983), preface, p. i (ANSI Z21.11.2-1983). [BACK]
23. Other examples from the case studies of the unusual interaction between installation codes and product standards include wall pass-through systems for woodstoves and flexible nozzles for aviation fire extinguishers. [BACK]
24. American Gas Association Laboratories, "Compilation of Comments Received on Proposed Revisions to American National Standard for Gas-fired Room Heaters," September 1979, p. 2 (R. C. Swangler, The Peoples Natural Gas Company). [BACK]
25. The severity of burn injuries is a function of both the surface temperature and the time of exposure (or the "response time" before ending the exposure). According to a report prepared for the CPSC, contact with a bare metal surface 140° hotter than room temperature will not produce a third-degree burn unless contact is maintained for at least twenty seconds. Therefore, by lowering surface temperatures, a longer response time is necessary for the same type of injury to result from contact with the heater. [BACK]
26. Bond paper is nonporous and, therefore, unlikely to ignite under the old test method, even though a similar exposure might actually ignite clothing. Minutes of the subcommittee indicate that someone argued as early as 1963 that "it would be desirable to use a material of greater porosity than bond paper so that oxygen could get to the charring surface." Selecting an appropriate level of porosity for test materials is one of those seemingly "technical" decisions that has significant real-world effects and often cannot be answered scientifically. Porosity is really a correlate of safety. Bond paper, for example, lacks the porosity to reflect the hazards of clothing ignition. Cheesecloth, on the other hand, may be too porous. "The air goes right through it," argues a representative of Consumers Union. By using muslin instead of cheesecloth, CU concluded that an electric space heater approved by UL (using cheesecloth) was unsafe. [BACK]
27. Z21.11.2 did not ban the model by name, but by features—that is, by requiring such features as automatic ignition. [BACK]
28. Federal Register 40 (September 5, 1975): 4112. [BACK]
29. In industry's eyes, an unvented heater must be so by design; "vented" heaters installed without venting are nevertheless "vented." The CPSC wasn't sure. Injury data often do not include reliable information on venting, causing considerable disagreements in data interpretation. In a study of 533 death certificates related to gas-fired heaters, for example, the CPSC classified 72 as unvented, 82 as vented, 64 as "judged to be unvented," and 277 as "venting condition not specified." The remaining 38 were located in campers, vans, or trailers. See CPSC, "Unvented Gas Space Heaters: HIA Hazard Analysis Report," 15. A trade association representative familiar with the CPSC "in-depth investigations" claims that many of the injuries categorized as "unvented" heater cases actually involved vented heaters that were not properly vented. [BACK]
30. One reason is the limited background and training of CPSC personnel in accident investigation. The agency has since improved its training program and increased its use of expert consultant to conduct investigations. [BACK]
31. Federal Register 42 (September 14, 1977): 46072 (notice that it is not necessary at this time to address any hazards that may be associated with vented gas-fired space heaters); Federal Register 42 (February 14, 1978): 6253 (proposed ban on unvented gas-fired space heaters). [BACK]
32. The unvented heater was one of sixteen products identified by the National Commission on Product Safety as warranting federal standards. Naturally, this created an impression among many in industry that the CPSC was predisposed to regulate the gas heater. See National Commission on Product Safety, Final Report Presented to the President and Congress (Washington, D.C.: Government Printing Office, 1970), 12-34. [BACK]
33. For a detailed description of the devices, see Charles S. Lamar, "Oxygen Depletion Sensor Improves Safety of Gas-fired Heating Equipment," Appliance Engineer 5, no. 1 (1971): 21-28. [BACK]
34. AGA Labs, "Minutes of Meeting of Subcommittee for Unvented Gas-fired Heating Appliances," Cleveland, January 20, 1972, item 6, p. 2. [BACK]
35. Consumer Product Safety Commission, "Briefing Paper: Proposal to Ban Unvented Gas-fired Space Heaters" (prepared by the Fire and Thermal Burns Program Staff, CPSC, December 21, 1977), p. 3. [BACK]
36. Firms are so worried about grading safety that they generally refuse to have their gas appliances tested for efficiency—something required by other laws—at the same laboratories that test their products for safety, even though doing so would certainly be less expensive. [BACK]
37. Esher Kweller, National Bureau of Standards, "Response to Request for Support: Unvented Space Heater Project" (Memorandum for Walter Leight, through Andrew Fowell, dated January 16, 1979), 2-5. [BACK]
38. Letter from Esher Kweller, National Bureau of Standards, to Stanley Blachman, chief methods engineer, American Gas Association Laboratories, March 16, 1979, attachment F, an excerpt from American Conference of Government Industrial Hygienists, Documentation of the Treshold Limit Values for Substances in Work Room Air, 3d ed., 1971. [BACK]
39. Memorandum from Leo T. Duffy, M.D., to George Anikis, Office of Program Management, CPSC, October 3, 1977. [BACK]
40. Memorandum from Dr. Peter Preuss to Bert Simson, Office of Program Management, CPSC, July 3, 1979, p. 2. Concern for health effects prompted Esher Kweller of the Product Performance Engineering Division of the National Bureau of Standards to argue for a 19 percent shutoff level. (As explained earlier, a higher shutoff level for oxygen means that the heater will shut off at a lower carbon monoxide level.) See Kweller, letter to Blachman, March 16, 1979, p. 2. [BACK]
41. Letter from Frank E. Hodgon, AGA senior vice president for consumer affairs and safety, to George Anikis, Office of Program Management, CPSC, July 26, 1978, p. 3. [BACK]
42. American Gas Association Laboratories, "Notice to Manufacturers of Unvented Room Heaters," August 9, 1979. [BACK]
43. Federal Register 45 (January 18, 1980): 3762 (proposed rule). [BACK]
44. CPSC, "Briefing Paper: Proposal to Ban Unvented Gas-Fired Space Heaters," 3. [BACK]
45. See, for example, the following discussion of labeling in the CPSC's Federal Register notice: "Several commenters still prefer the ANSI label wording which specifies a minimum 'fresh air opening' depending on the output size of the heater rather than the proposed label's suggestion to 'open a window an inch or two for fresh air.' ... The Commission considers that the proposed label's wording ... is clearer and more readily understood than the ANSI label" (Federal Register 45 [September 17, 1980]: 61918). [BACK]
46. Petition for Exemption, in the Matter of Petition of City of Victorville, State of California, for Exemption for 15 U.S.C. 2075(a) as It Applies to Commission Safety Standards Requiring Oxygen Depletion Safety Shutoff Systems (ODS) for Unvented Space Heaters (16 CFR Part 1212), April 16, 1982, p. 4 (CPSC Application no. SH 82-12). [BACK]
47. The CPSC staff disagreed about whether the standard even had preemptive effect in the first place. See "Briefing Package on Petition SH 82-1 through SH 82-23: Requesting Exemption from Preemption by the Safety Standard Requiring Oxygen Depletion Safety Shutoff Systems (ODS) for Unvented Gas-fired Space Heaters; 16 C.F.R. Part 1212" (transmitted to the commission by memorandum from Douglas Noble, Office of Program Management, January 19, 1983). [BACK]
48. Letter from Joe Beck, Kilpatrick & Cody, representing Atlanta Stove Works, to Nancy Steorts, CPSC chair, April 22, 1983. [BACK]
49. Dissenting Opinion of Vice Chairman Saundra Brown Armstrong, in the Matter of Revocation of the Mandatory Standard for Unvented Gas-fired Space Heaters, 16 CFR 1212. [BACK]
50. In his critical examination of five CPSC regulations, W. Kip Viscusi concluded that "more than any other standard ... the standard for unvented gas-fired space heaters may be desirable (Regulating Consumer Product Safety, 99). [BACK]
51. The clear trend in legal decisions affecting consumer products is toward strict liability, minimizing the role of any negligence on the part of the consumer. But that depends on the product being considered unreasonably dangerous. Unless the gas space heater was considered defective for failing to have an ODS device—a line of argument that has been tried unsuccessfully with cars not equipped with airbags—then fatalities caused by carbon monoxide would not be considered the manufacturer's fault. [BACK]
52. Space heaters equipped with an ODS would have to be considered "unreasonably dangerous" in order for liability to attach. Since this phrase has been stretched to include a variety of "reasonably foreseeable" mishaps and failures, however, the fear is not misplaced. [BACK]
Seven Public and Private Conceptions of Safety
1. Charles E. Lindblom and David K. Cohen, Usable Knowledge: Social Science and Social Problem Solving (New Haven, Conn.: Yale University Press, 1979), 50. [BACK]
2. Eugene Bardach, "Problems of Problem Definition in Policy Analysis," Research in Public Policy Analysis and Management 1 (1981): 161, 163. [BACK]
3. UL tests kerosene heaters, for example, using certified K-1 kerosene fuel as specified in the manufacturer's instructions. Testing for "flare up" would require the addition of at least trace amounts of gasoline to the fuel. [BACK]
4. Henry E. Collins, UL vice president, government relations, Hearing Before the Consumer Product Safety Commission, Washington, D.C., October 27, 1982 (transcript), 261. [BACK]
5. CPSC, "Memorandum to the Commission from the Office of Program Management on Criteria for Endorsement of Publications Developed by Outside Organizations," August 22, 1984. [BACK]
6. See, for example, Hemenway, Performance vs. Design Standards. [BACK]
7. For a survey of programs utilizing "technology-forcing," see Richard B. Stewart, "Regulation, Innovation, and Administrative Law: A Conceptual Framework," California Law Review 69, no. 5 (September 1981): 1256, 1296-1306. [BACK]
8. This example is set forth in a letter dated June 11, 1979, from R. J. Finegan, Liberty Mutual Insurance Company, to Sava Sherr, ANSI, included in a preliminary report of the ANSI Safe Work Practices Task Group, June 1985. [BACK]
9. Ibid. [BACK]
10. NFPA 408-1980, sec. A-5-3.3. [BACK]
11. The other categories—careerists and politicians—have less application in the private sector. Other than at UL, there are few careerist standards-setters. Participants "volunteer" for standards-setting but make their careers elsewhere. At UL, professional influences are dominant among most careerists. Finally, there are few, if any, politicians, in the sense of employees "who see themselves as having a future in elective or appointive office outside the agency" (Wilson, The Politics of Regulation, 374-82). [BACK]
12. Frederick C. Mosher, Democracy and the Public Service (New York: Oxford University Press, 1982), 113, 122. [BACK]
13. Thomas M. Deitz and Robert W. Rycroft, The Risk Professionals (New York: Russell Sage Foundation, 1987). [BACK]
14. Hamilton, "The Role of Nongovernmental Standards," 1350. [BACK]
15. Earl F. Cheit, The Useful Arts and the Liberal Tradition (New York: McGraw-Hill, 1975), 57-82. [BACK]
16. See, for example, Richard L. Meehan, The Atom and the Fault: Experts, Earthquakes, and Nuclear Power (Cambridge, Mass.: MIT Press, 1984) (geologists versus structural engineers). [BACK]
17. Unlike in medicine, law, and many other professions, there is no centralized professional engineering organization. Engineering societies are organized around the special fields of engineering: civil, chemical, electrical, and nuclear, for example. Fire protection engineering is another specialty with its own professional society. Fire protection engineers also constitute a significant percentage of the NFPA membership. [BACK]
18. Human factors engineering, a relatively new specialty with roots in psychology, attempts to "fit the machine to the person." In the 1950s, through applied research on human responses to various aircraft instrumentation, human factors engineers assisted the Air Force in improving the safety of airplanes. When applied to questions about motor capability, ergonomics, or human reflex, the field is well accepted. See, generally, Ernest McCormick, Human Factors Engineering, 2d ed. (New York: McGraw-Hill, 1955). A few engineers purport to apply this field to a broader gamut of human behavior, often in a manner that directly challenges existing notions of fault and responsibility. See, for example, R. Matthiew Seiden's discussion of "error-provocative" product designs; those that, in his words, "provoke, seduce, invite, mislead, or otherwise trap a user into making a mistake" (Product Safety Engineering for Managers [Englewood Cliffs, N.J.: Prentice-Hall, 1984], 114). This philosophy is widely rejected by most engineers and may account for the skeptical view many have of human factors engineering. [BACK]
19. Samuel C. Florman, The Existential Pleasures of Engineering (New York: St. Martin's Press, 1976), 26. Florman is one of the few outspoken critics of the revolution in professional engineering ethics. He opposes the notion, now expressed in slightly different terms in several professional codes, that an engineer owes a special duty to protect public health and safety. Codes enacted at the turn of the century provided that an engineer's sole responsibility was to the employer. See also Edwin T. Layton, Revolt of the Engineers: Social Responsibility and the Engineering Profession (Cleveland: Case Western Reserve University Press, 1971). [BACK]
20. Florman, The Existential Pleasures of Engineering, 26. The distinction, by no means a clear one, is suggested by Florman's discussion of the engineer's role of "creator" and "guardian." He advocates a "balance" between the two, but clearly favors erring on the side of the former. [BACK]
21. In the gas space heater proceedings, for example, an NBS engineeer informed the CPSC that "there is no apparent reason why a separate ODS pilot cannot be used in addition to the current pilot (except economics)" (Esher Kweller, NBS, memorandum of January 16, 1979). [BACK]
Eight Regulatory Decisionmaking: Public and Private Standards in Action
1. Leland L. Johnson, Cost-Benefit Analysis and Voluntary Safety Standards for Consumer Products (Santa Monica, Calif.: RAND Corporation, 1982), 32-35. [BACK]
2. Unfortunately, the language of safety debates often clouds the real issues. It would be inopportune for UL to say that a significant hazard scenario is "the consumer's fault." Similarly, few people outside of the economics profession are comfortable arguing that a proposed safety measure might be effective but still not worth the cost. As a result, many arguments are cloaked in technical terms. Stated opposition to the CPSC's gas space heater standard, for example, concentrated on alleged technical problems with the oxygen depletion sensor. That none of the predicted problems have come to the attention of the Gas Appliance Manufacturers Association in the four years since this rule was adopted suggests that unvoiced concerns were probably most significant. Other arguments are cloaked under the ambiguous rubric of "a false sense of security." This argument manages to come up on both sides of many safety arguments. Opponents asserted that each of the four public sector standards in this study would lead to "a false sense of security." This is an interesting rhetorical device for arguing from a pro-safety point of view against proposed improvements in safety standards. The argument, in my view, is really directed at the philosophy (or "sense")of safety (or "security") that underlies the standard, not the perceptions that consumers might have. [BACK]
3. The five-page "worksheets" provided by the NGFA to allow operators to "better understand the financial impact of the standard" included various assumptions that inflated the results. For example, under housekeeping—the most expensive category—the worksheet combined the estimated cost of pneumatic dust control and manual dust removal, even though the rule would require only one. See National Grain and Feed Association, "The OSHA Grain Handling Safety Standard: Understanding the Financial Impact on Your Operations" (mimeographed, n.d.). [BACK]
4. Viscusi, Regulating Consumer Product Safety, 96-99. [BACK]
Nine Explaining Regulatory Behavior
1. Wilson, The Politics of Regulation, 374. [BACK]
2. Of course, there are various degrees of self-regulation ranging from industrywide to intraorganizational. See Ian Maitland, "The Limits of Business Self-Regulation," California Management Review 27, no. 3 (Spring 1985): 132-47. [BACK]
3. Eads and Reuter, Designing Safer Products, 43. [BACK]
4. This will obviously depend on, among other things, the elasticity of demand for the product and the availability of substitutes. [BACK]
5. UL often points to its "Consumer Advisory Council," for example. Yet the CAC meets once every two years, and several committee members describe the group as a "public relations gimmick." [BACK]
6. These organizational problems are well understood. See, for example, Olson, The Logic of Collective Action. Lack of interest, a much less popular explanation, also accounts for the minimal participation of various groups in private standards-setting. "You don't capture anyone's imagination with fire extinguishers," explains a lobbyist for the Association of Flight Attendants. The issue is both too specific and too technical. UL had a similar problem with television receivers, finding that some consumers lost interest in the technical discussions (see S. David Hoffman and Janis C. Farr, "Developing a Proposed CPSC Standard for Television Receivers: The UL Experience," ASTM Standardization News, May 1977). [BACK]
7. UL developed the HT (high-tolerance) metal chimney standard largely because the Reinsurance Association of Minnesota, which reinsures most homeowner policies in the state, decided not to insure homes with woodstoves without high-tolerance metal chimneys. [BACK]
8. Royal Edwards, representative of the National Chimney Sweeps Guild, convinced the Technical Committee for NFPA 211 to prohibit stoves requiring more than a thirty-six-inch clearance. A trade association representative complained that the guild "was on a bit of a do-good crusade" in this respect. The action was eventually overturned by the Standards Council. [BACK]
9. Robert W. Grant, president, NFPA, "President's Report" (Speech delivered at the NFPA 89th Annual Meeting, Chicago, May 13, 1985). [BACK]
10. The AGA at large is more concerned with the overall sales and marketing of gas than is AGA Labs. Accordingly, AGA was more concerned that banning the unvented heater would result in the substitution of electric heat in many homes. [BACK]
11. Hunt, "Trade Associations and Self-Regulation." [BACK]
12. Garvin, "Can Industry Self-Regulation Work?" 43. [BACK]
13. UL claims to do some standards on a pro bono basis. The only standard that UL officials could point to, however, is the standard for septic tanks. [BACK]
14. Thomas P. Grumbly, "Self-Regulation: Private Vice and Public Virtue Revisited," in Social Regulation: Strategies for Reform, ed. Eugene Bardach and Robert Kagan (San Francisco: Institute for Contemporary Studies, 1982), 97. [BACK]
15. See, for example, Louis Lasagna, "Who Will Adopt the Orphan Drugs?" Regulation, November/December 1979, 27-32. [BACK]
16. The creosote tests conducted by the National Bureau of Standards were done over a period of several months in order to most closely replicate creosote production during a typical heating season. Obviously, in order to be economically practical a commercial creosote test would have to be accelerated or the results would have to be extrapolated. Either way, there would likely be criticisms that the accelerated test method is not realistic. [BACK]
17. Interview data from members of UL's Consumer Advisory Council. [BACK]
18. Anthony Downs, Inside Bureaucracy (Boston: Little, Brown, 1967), 7. [BACK]
19. American National Standards Institute, 1984 Progress Report (New York: ANSI, 1984), 9. [BACK]
20. "National Fire Protection Association Statement of Revenues and Expenses, 1984," Fire Journal, May 1985, 82. [BACK]
21. Staber and Aldrich, "Trade Association Stability and Public Policy," 4. [BACK]
22. This embarrassing incident prompted criticism and review of NFPA's rules for adopting standards and eventually resulted in changes granting the Standards Council the formal authority for ratifying standards approved by the membership (see NFPA, "Regulation Governing Committee Projects," sec. 13-5). The power does not go unused. The Standards Council recently rejected an amendment to NFPA 211 (Venting for Woodstoves) that was adopted by the general membership over the objection of the sponsoring committee. (The provision would have essentially banned stoves requiring a clearance of more than thirty-six inches.) [BACK]
23. Wilson, The Politics of Regulation, 371. [BACK]
24. Maitland, "The Limits of Business Self-Regulation," 136-37. [BACK]
25. See, for example, Milk and Ice Cream Can Institute v. F.T.C., 152 F.2d 478 (7th. Cir. 1946); United States v. Institute of Carpet Manufacturers, CCH Trade Reg. Service (9th ed.), par. 52,517 (S.D.N.Y.); Bond Crown and Cork Co. v. F.T.C., 176 F.2d 974 (4th. Cir. 1949). [BACK]
26. Radiant Burners v. Peoples Gas Co., 364 U.S. 656 (1961). [BACK]
27. Kahn, "Cartels and Trade Associations." [BACK]
28. American Society of Mechanical Engineers v. Hydrolevel Corp. [BACK]
29. Floor votes still occur, but standards cannot be adopted in final form by the membership at large. The Standards Council has the ultimate authority to issue standards. It acts as a check on "political" floor votes. Moreover, objections from the floor usually result in a remand of the issue to committee. [BACK]
30. See, for example, Structural Laminates Inc. v. Douglas Fir Plywood Assoc., 261 F. Supp. 154 (D.Or. 1966), aff'd 399 F.2d 155 (9th Cir. 1968), cert. denied 393 U.S. 1094 (1969). [BACK]
31. Muris, in ANSI, Standards and the Law, 7. [BACK]
32. Roofire Alarm Co. v. Royal Indemnity Co., 202 F.Supp. 166 (E.D.Tenn. 1962), aff'd, 313 F.2d 635 (6th Cir. 1963), cert. denied 373 U.S. 949. See also Roofire Alarm Co. v. Underwriters Laboratories, 188 F.Supp. 753 (E.D.Tenn.), aff'd per curiam, 284 F.2d 360 (6th Cir. 1960). [BACK]
33. Interview data from three sources at UL. [BACK]
34. Interview data from a member of the NFPA Standards Council. [BACK]
35. "Misuse" has been interpreted rather narrowly in many jurisdictions. In Illinois, for example, "misuse" is a defense only if the product was used "for a purpose neither intended nor foreseeable (objectively reasonable) by the defendant" (Williams v. Brown Mfg. Co., 45 Ill.2d 418, 425, 261 N.E.2d 305, 309 [1970]). See also Restatement (Second) of Torts, sec. 402A, comment n (1965) (seller not liable where injury results from "abnormal use"). [BACK]
36. Several members of the Z21.11.2 committee mentioned this concern privately, but none wanted to be quoted. [BACK]
37. Schwartz, "The Consumer Product Safety Commission," 73. [BACK]
38. Aqua Slide 'n' Dive v. Consumer Product Safety Commission, 569 F.2d 831 (5th Cir. 1978). [BACK]
39. D. D. Bean & Sons v. Consumer Product Safety Commission, 574 F.2d 643 (1st Cir. 1978). [BACK]
Ten Comparative Institutional Advantages
1. Lave, The Strategy of Social Regulation, 26-27. [BACK]
2. For example, AGA Labs is trying to cut the cost of standards-writing by calling fewer meetings. The result will be cheaper standards that are longer in the making. [BACK]
3. The one time that UL engaged in cost-benefit analysis—as an "offeror" to the CPSC on television receivers—it spent over $300,000 on the standard. Even though some considered the effort a public relations ploy, it demonstrated that an extraordinarily expensive standard by UL's own standards would still be an inexpensive one to OSHA. [BACK]
4. Compliance costs, as distinguished from the cost of developing a standard, are often much higher in the private sector because manufacturers must pay to have their products tested. The certification process assures higher compliance, but at a significant cost. In the case of woodstoves, for example, one manufacturer reports paying $70,000 a year for UL labels. With total industry production of several hundred thousand units annually, this adds a considerable private cost to UL 1482. In some cases, particularly for large firms that have engineering departments and conduct their own testing, this cost may be unreasonable. It is most justified for products that vary in the production process in ways that directly affect safety. In the case of woodstoves, however, the private sector, surprisingly, imposes compliance costs far in excess of the most stringent government inspection system. [BACK]
5. Harold L. Wilensky, Organizational Intelligence: Knowledge and Policy in Government and Industry (New York: Basic Books, 1967). [BACK]
6. Injury data often do not include reliable information on venting, causing considerable disagreements in data interpretation. See chapter 6, note 29. [BACK]
7. The program was officially called the National Field Observation Program (or NFOP). [BACK]
8. Eads and Reuter, Designing Safer Products, 42 n. 52. [BACK]
9. For an example of the criticisms lodged against the CPSC's hospital survey information, see Edward Heiden, Allan Pittaway, and Rosalind O'Connor, "Utility of the U.S. Consumer Product Safety Commission's Injury Data System as a Basis for Product Hazard Assessment," Journal of Products Liability 5 (1982): 295. [BACK]
10. For a fifteen-page memo detailing the issues and evidence on this point, see S. L. Blachman, interoffice memorandum (AGA Labs) to D. T. King, November 2, 1979. [BACK]
11. Edwin I. Colodny, chairman and president, USAir Group Inc., in "Proceedings of Cabin Safety Conference," p. 165. [BACK]
12. Douglas and Wildavsky, Risk and Culture, 196-97. [BACK]
13. Lave, The Strategy of Social Regulation, 8-28. [BACK]
14. Eugene Bardach and Robert A. Kagan, Going by the Book: The Problem of Regulatory Unreasonableness (Philadelphia: Temple University Press, 1982), 184-213. [BACK]
15. Dissenting Opinion of Vice Chairman Saundra Brown Armstrong, in the Matter of Revocation of the Mandatory Standard for Unvented Gas-fired Space Heaters, 2 n. 2. [BACK]
16. The Enforcement Directorate sought to obtain an informal agreement among all testing laboratories to require certain detailed information not specifically required by the CPSC rule. Ironically, the Enforcement Directorate used as a "model" an instruction booklet already used by a major UL client. In other words, even in this effort the CPSC was deferring to the private sector. [BACK]
17. Bardach and Kagan, Going by the Book, 184-213. [BACK]
18. For example, the dust-control and housekeeping recommendations offered in 1980 by representatives of USDA and OSHA were held over "for further study" and rejected without discussion in 1985. NFPA, Technical Committee Reports: 1986 Fall Meeting, Comment 61B-61-Chapter 8 (Log #72), 12. [BACK]
Eleven Reforming Standards-Setting: The Procedural Perspective
1. See, for example, Ackerman and Hassler, Clean Coal/Dirty Air; Stewart, "The Reformation of American Administrative Law." [BACK]
2. 5 U.S.C. secs. 551-59 (1976). [BACK]
3. Administrative Conference of the United States, Recommendation 78-4 (adopted December 14-15, 1978), 7. [BACK]
4. For example, Executive Order 12291, 1981. [BACK]
5. This prescription, common on the public side, has recently been applied to the private sector as well. See Johnson, Cost-Benefit Analysis and Voluntary Safety Standards, sec. 4. [BACK]
6. Stewart, "The Reformation of American Administrative Law." [BACK]
7. For the traditional "capture" theory, see Bernstein, Regulating Business by Independent Commission. For the revised theory that includes capture by environmental groups, see R. Shep Melnick, Regulation and the Courts: The Case of the Clean Air Act (Washington, D.C.: Brookings Institution, 1983). [BACK]
8. Stewart, "The Reformation of American Administrative Law," 1807. [BACK]
9. Herbert Simon, "Rationality as Process and Product of Thought" (Richard T. Ely Lecture to the American Economics Association), Proceedings of the American Economics Association, May 1978, 14. [BACK]
10. S. John Byington, CPSC chairman, "Transcript of Public Meeting on Unvented Gas-fired Space Heaters, March 6, 1978, Washington, D.C.," 68. [BACK]
11. In March 1982, for example, draft revisions of Z21.11.2 were sent by AGA Labs to 416 potentially interested parties for comment, including 11 manufacturers, 185 gas companies, and 220 other groups, primarily state and local jurisdictions. [BACK]
12. The FAA received hundreds of postcards and letters supporting a rule it already planned to adopt. OSHA, on the other hand, received thousands of objections from farmers it knew were opposed to the rule, but the agency remained committed to it. [BACK]
13. See chapter 8, especially pp. 177-78. [BACK]
14. They might still be influenced, of course, by the knowledge that a "balanced" committee will review their work. Based on the attitudes of those interviewed for this study, however, this does not seem likely. Technical committee members openly refer to the Z21 committee as a "rubber stamp." It is hard to imagine how this committee, meeting only once a year, could exercise meaningful review over the forty-seven standards under its jurisdiction. Those canvassed about UL's standards carry even less clout, since UL admits that it submits its standards to ANSI only as a courtesy. If that "reviewing" body rejected a UL standard, the organization would simply publish it without the ANSI imprimatur. Only the review processes at NFPA appears likely to affect technical committee decisionmaking. [BACK]
15. The standard, Hydraulic Institute 100, was challenged by ASME at the ANSI Board of Standards Review meeting of November 15, 1984. [BACK]
16. Robert Lacey, Ford: The Man and the Machine (Boston: Little, Brown, 1986), 579. [BACK]
17. 5 U.S. C. see. 553 (1976). [BACK]
18. John H. Young, "Direct Interest Participation in the Regulatory Decision Process" (Staff paper prepared for the Office of Technology Development, May 5, 1983), 12. [BACK]
19. Membership on UL's Industry Advisory Conferences (IAC) is limited "to employees of manufacturers who are subscribers to UL's Follow-up Service in the product category." At a two-day gathering in November 1978, for example, UL engineers met with representatives of ten woodstove manufacturers and seven "invited guests," either trade association representatives or manufacturers of related products such as fireplace inserts and venting equipment. [BACK]
20. American National Standards Institute, "Procedures for the Development and Coordination of American National Standards," April 1983, appendix A, sec. A7, p. 14. [BACK]
21. Basically, critics complain that outside participation comes too late in the UL process. First, there is no outside participation in the drafting of informal "desk standards." Second, the canvass process takes place after there have been give-and-take sessions between UL and industry interests. The latter do not shape the standard nearly so much as the former. [BACK]
22. On the creosote issue, UL told concerned commenters that it expected current research "within the scientific and technical community [to] provide a data base upon which a [creosote] test might be developed" (UL letter of November 26, 1979, to John Schulz, NFPA Technical Committee member). In fact, UL did not (and does not) intend to develop a creosote test, even though a test method has been developed by a woodstove consultant who operates a testing lab. [BACK]
23. See chapter 10, note 18. [BACK]
24. John H. Young, "Direct Interest Participation in the Regulatory Decision Process," 69. [BACK]
25. David Braybrooke and Charles E. Lindblom, A Strategy of Decision: Policy Evaluation as a Social Process (New York: Free Press, 1970). [BACK]
26. Johnson, Cost-Benefit Analysis and Voluntary Safety Standards, 37-51. [BACK]
27. Actually, UL did it once, when it acted as an "offeror" in the CPSC's proceedings on television receivers. UL spent several hundred thousand dollars on that standard, conducting a full-blown cost-benefit analysis and trying to encourage consumers to participate. By most accounts, the venture failed. The CPSC never adopted the standard prepared by UL. The proceedings were marked by hostile exchanges between UL and the CPSC, leading some observers to conclude that UL set out with the intention to demonstrate that this technique of standards-setting would not work. A UL engineer, citing the case of television receiver, says that UL should "never again do cost-benefit analysis." [BACK]
28. The "Report of the NFPA Systems Concepts Committee on Cost/Benefit Statements" was circulated to all Technical Committee members by order of the Standards Council in July 1985 (NFPA Standards Council Meeting Minutes, Item 84-20, reprinted in Fire Journal, January 1986, 77). [BACK]
29. See, generally, Serge Taylor, Making Bureaucracies Think: The Environmental Impact Statement Strategy of Administrative Reform, (Palo Alto: Stanford University Press, 1984). [BACK]
30. Breyer, Regulation and Its Reform, 98. [BACK]
31. McConnell, Private Power and American Democracy, 138. [BACK]
Twelve Interactive Strategies and Alternative Policy Instruments
1. The CPSC's official policy on employee membership and participation in voluntary standards is published in 16 C.F.R., Part 1031. The commission debated a proposal in 1985 to "acknowledge" private standards and allow for "formal voting" by CPSC participants. [BACK]
2. Young, "Direct Interest Participation in the Regulatory Process." [BACK]
3. Timothy J. O'Neill makes a related and fascinating argument, in an entirely different context, about the educational value of amicus briefs and the "classroom of litigation" (Bakke and the Politics of Equality: Friends and Foes in the Classroom of Litigation [Middletown, Conn.: Wesleyan University Press, 1985]), introduction. [BACK]
4. OMB Circular no. A-199, sec. 6(a) (October 26, 1982). [BACK]
5. 15 U.S.C. sec. 2056(b). [BACK]
6. Steven M. Spivak,Implementation of OMB Circular A-1 19, U.S. Department of Commerce, National Bureau of Standards, Office of Product Standards Policy, March 1985, 2. [BACK]
7. As Thomas Dietz and Robert Rycroft (Risk Professionals, 112) explain: "The risk policy system is clearly a 'transcientific' domain. The term was first coined by Alvin Weinberg to describe problems characterized by great uncertainty for which adequate solutions could not be supplied by science alone, and it has been applied to environmental problems for some time." [BACK]
8. For an interesting, but tentative, effort, see Susan Bartlett Foote, "Beyond the Politics of Federalism: An Alternative Model," Yale Journal on Regulation 1, no. 2 (1984): 217-25. See also Advisory Commission on Inter-governmental Relations, Regulatory Federalism: Policy, Process, Impact, and Reform (Washington D.C.: ACIR, 1984). [BACK]
9. For example, the "stringency" of UL's warning label and the overall level of compliance with UL standards. [BACK]
10. See Lasagna, "Who Will Adopt the Orphan Drugs?" [BACK]
11. See, for example, Cornell, Noll, and Weingast, "Safety Regulations," in Setting National Priorities, 457-503. [BACK]
12. John H. Shenefield, "Standards for Standards-Makers" (Remarks before the American National Standards Institute, Washington, D.C., March 29, 1978), 7. [BACK]
13. The major firms "complied" with the FDA's request for voluntary rating, but different companies used different systems for rating! ("Are Tampons Safer Now?" Consumer Reports, May 1986, 333). Three years later, prompted by a lawsuit, the FDA promulgated a mandatory federal rule ("Judge Orders U.S. to Require Tampon Absorbency Labels," New York Times, August 31, 1989, B8; Warren E. Leary, "Tampons to Get Standard Labels," New York Times, October 27, 1989, A12). [BACK]
14. Philip J. Harter and George C. Eads, "Policy Instruments, Institutions, and Objectives: An Analytical Framework for Assessing 'Alternatives' to Regulation," Administrative Law Review 37, no. 3 (Summer 1985): 221-58. [BACK]
15. Ibid., 223 [BACK]
16. See, for example, Peter Huber, "Safety and the Second Best: The Hazards of Public Risk Management in the Courts," Columbia Law Review 85, no. 2 (March 1985): 277-337. [BACK]
17. S. David Hoffman and Mathew E. Hoffman, "Use of Standards in Products Liability Litigation Revisited—Déjà Vu, but Even More So" (mimeographed, 1985). [BACK]
18. See, for example, Peter Huber, "The Old-New Division in Risk Regulation," Virginia Law Review 69, no. 6 (September 1983): 1025-1107. [BACK]
19. Allied Tube and Conduit Corp. v. Indian Head, 56 U.S.L.W. 4539 (June 13, 1988), 4545 (Justice White dissenting with Justice O'Connor). [BACK]
20. For example, the majority in Indian Head decided that this case differed from other cases involving governmental immunity because "the context and nature of [NFPA's] activity make it the type of commercial activity that has traditionally had its validity determined by the antitrust laws themselves" (ibid., 4542). [BACK]
21. Maitland, "The Limits of Business Self-Regulation." [BACK]
22. Perrow, Normal Accidents, 166. [BACK]
23. Edwin T. Layton, Jr., "Engineering Needs a Loyal Opposition: An Essay Review," Business and Professional Ethics Journal (1985): 51-59. [BACK]
24. The agency's total budget in 1986 was $124 million ("Bureau of Standards Is Pinched Too," New York Times, April 28, 1986). [BACK]
25. See, generally, George S. Emmerson, Engineering Education: A Social History (New York: Crane Russak, 1973). For a description of recent changes aimed at addressing the problem, see Edward Fiske, "M.I.T. Widens Engineer Training," New York Times, June 1, 1987, 1. [BACK]
26. These possibilities include improved state regulation, changes in the agent reward system, and the promotion of purchasing groups. See David Hemenway, "Private Insurance as an Alternative to Protective Regulation: The Market for Residential Fire Insurance," Policy Studies Journal 15, no. 3 (March 1987): 433. [BACK]
27. Ibid. [BACK]