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What Is This Thing Called A Safety Regulation?

Introduction

This paper was prepared as a guide for investigators examining the role of a safety regulation in an accident or incident. By understanding the nature of a regulation and its intent, an investigator is able to explore the effectiveness of the regulation and any problems that the data might disclose.

Journal of Safety Research, Vol.14, pp.139-143, 1983 0022-4375/83/ $3.00 + .00
(c) 1984 National Safety Council and Pergamon Press Ltd Printed in the USA

 Guest Editorial

What Is This Thing Called A Safety Regulation?

Ludwig Benner, Jr.[1]

Regulation is generally perceived as an important way to achieve safety. Controversy about enforcing, amending, reforming, reducing, improving, and evaluating safety regulations abounds. Questions about the need for, validity, and effectiveness of safety regulations also continue. This paper explores the nature of a safety regulation, what can be expected of a safety regulation in view of its nature, and what this means to persons affected by safety regulation. The role of regulation in safe task performance is reviewed. Consequences of these findings on regulation promulgation, employee training, and regulatory enforcement programs are discussed. Steps to enhance the effectiveness of safety regulations are suggested.

Usually, the rationale offered to justify safety regulations is prevention of accidents or accidental harm. Hazardous materials transportation, for example, is heavily regulated. Yet during one period (1977-1979) less than 60% of the unintentional releases reported to the U.S. Department of Transportation (DOT) involved probable violations of its regulations[2]. Another review of 15 serious accidents during a 5-year period (1976-1982) disclosed that less than 50% involved deviations from hazardous materials safety regulations, and none of those were directly attributable to a single violation. Department of Transportation officials estimated that over 60% of the accidental hazardous materials releases reported to DOT in 1976 did not involve any violation of its hazardous materials safety regulations. Thus, regulations and compliance with those regulations did not assure accident-free performance.

The above data suggest that regulations do not influence all actions resulting in accidents, nor do they govern all actions affecting safe operation. For example, the safe transportation of hazardous materials requires a great many actions and decisions. At least 28 decisions and actions affect the choice of transportation service. These actions are reflected as entries on a uniform bill of lading for rail or highway transportation. It is interesting to note that less than half of the entries are subject to regulation.

What then is the nature of safety regulation? When one views safety regulations in the context of actions and decisions made by individuals, the nature of a regulation becomes clearer. In this context, a safety regulation is, in effect, a preempted task decision. Stated another way, it is a choice of action by an individual that has been decided by government before the fact. Thus, a safety regulation prescribes how an individual is to act and removes from him or her the discretion to make an alternative decision. In effect, a safety regulation becomes a "previously made" or preempted decision, with each regulatory requirement removing alternative decision choices from the regulated individual.

This interpretation is applicable to both "specification" and "performance" regulations. The applicability to specification regulations is most apparent: They specify how a task is to be done, eliminating individual discretion entirely. Requirements for the thickness of a container wall or the label to use on a shipment are examples of this kind of regulation. Applicability to performance regulations is less obvious: They address certain engineering and design task decisions. A benzene exposure standard is an example of a performance regulation. Accordingly, the principal difference between specification and performance regulations rests in the type of decision covered, i.e., operational vs. engineering or design. Even so, they both preempt task decision choices.

Viewing a regulation as a preempted task decision, it can be recognized that individuals performing "regulated" tasks must:

  1. Be aware that some of their activities are circumscribed by regulations (awareness);
  2. Know what specific actions the regulations have preempted (knowledge);
  3. Understand how, when, and where the regulations require those actions to be taken during the conduct of their daily tasks (skill); and
  4. Appreciate the safety concerns prompting the regulations and the likely consequences of not making the task decision(s) the way the regulations specify (motivation).
Each regulation can thus be seen to be either a decision-making instruction or rule for whoever performs the task addressed by the regulation. This means that to assure proper regulation, the task required to achieve the desired safe outcome must be understood by the regulation writer in terms of:

  1. The safety objective (safe outcome) being sought;
  2. The task(s) required to achieve that safety objective;
  3. How, when, and where that task must be performed to achieve the desired safety objective; and
  4. The overall effects of the task decision being preempted on the safe operation of the entire system, so that new dangers will not be introduced.
In this preempted task decision context, the regulation writer must also understand the "pre-made" decision in terms of who makes it, what action is to be prevented, and how the decision is to be prescribed.

In addition, individuals must recognize that their tasks are regulated and understand the precise actions they are expected to take. When a regulation ambiguously defines the regulated tasks or the expected actions, the concept that regulations promote safety breaks down, and task decisions are made by individuals in whatever way they think is right. Then, perceiving a regulation as "a solution to a problem" (Jennings, 1971) is not valid or productive.

If safety regulations are viewed as preempted task decisions, it will be seen that a governmental safety regulation is but one of several "regulations" imposed on an employee. Employee task decisions are circumscribed by industry codes and standards, by company or organization procedures, and by the background of the employee as well. In fact, individual employees are confronted with at least three levels of externally imposed regulations that preempt task decisions in the area of safety alone. These are described below:

  1. Governmental safety regulations impose task decisions that, if disregarded, can affect an employee's safety, freedom, or pocketbook.
  2. Industry codes and standards impose task decisions that, if disregarded, can affect an individual's safety, reputation, or organizational survival.
  3. . Organizational procedures impose decisions that, if disregarded, can affect an individual's safety, health, or continued livelihood.
Thus, governmental regulations must compete for an individual's attention with other forms of regulations or preempted decisions and their respective influences on his or her daily functions and welfare.

IMPLICATIONS OF REGULATIONS AS PREEMPTED DECISIONS

At least three aspects of safety regulation could benefit from viewing regulations as preempted task decisions. They include:

  1. Promulgation of safety regulations;
  2. Training of personnel in the awareness, knowledge, and skills to satisfy regulatory requirements; and
  3. Formulation of compliance assurance programs.
They could also have a dramatic effect on the design of safety programs. Each effect is considered below.

Promulgating regulations. The first implication relates to the promulgation of regulations. An early requirement in formulating a regulation is to determine what decisions determine safe performance of a system and whether those decisions should be made in a certain way. To do this adequately requires a detailed understanding of (1) the tasks affecting safety in an operation and (2) the decisions made during performance of those tasks. The issue was articulated in the preamble to a rule-making docket issued by DOT (1978) which stated:

This amendment does not treat exhaustively conditions in the work area. Because of the variety of possible circumstances involved, reliance must be placed on existing local, state and federal laws concerning motor vehicle repair work, and on the sound judgment and experience of those persons performing the work. (emphasis added.)

The reasons for selecting the tasks regulated, while leaving other tasks to the "sound judgment and experience" of individuals, were not stated. Additionally, unless one was aware of and read the preamble to the regulation, one would not know the safety objectives of the regulation and the unregulated tasks that must be otherwise guided to achieve those objectives. Whether the regulated tasks were those that needed to be controlled to achieve the anticipated safety levels most efficiently could not be determined from the rule-making. Thus, this regulation did not reduce the uncertainty about whether compliance would achieve adequate, or even any, safe performance.

Training. A significant problem is how a regulation is perceived by those who must comply with, or train others to comply with, its requirements. Individuals operating under regulation are expected to possess three qualifications. First, they should possess a desire to comply with the regulation. Second, they should know what they are expected to do under the regulations. Third, they must have the ability to act as required.

Present regulations often frustrate all three expectations. For example, the "complexity" of regulations is often attacked by persons operating under regulation. What does complexity mean?

The view of a regulation as a preempted decision sheds some light on this problem. Written in third person, passive voice, regulations are often ambiguous about which decision-maker must comply with the requirements (any person who . . .) and do not identify the expected action In terms of DECISIONS by those persons. Thus, the regulations often require extensive interpretation before specific instructions can be devised and conveyed to individuals in training programs. Most organizations with resources to do so have translated regulations into organizational procedures for individuals or groups doing the regulated work. Many smaller organizations have no such capability. Pre-testing of regulations to determine how they relate to the real world with respect to training and interpretation is almost never undertaken. Instead, an adversary rule-making process is relied on to bring out such problems and determine the validity of a regulation.

Monitoring of the actual performance of regulatory safeguards or decisions by decision-makers under regulations is also inadequate (National Transportation Safety Board, 1978, 1980b, 1981). Conflicting interpretations of expected actions under a regulation by different representatives of the same agency are not unusual. The frequency of changes in some regulations further adds to the confusion about what is expected and compounds the training tasks.

With this lack of clear understanding about the nature of a regulation, and the resultant dichotomy between regulatory practices and needs, is it any wonder that individuals - even those with a strong desire to comply - are often overwhelmed and just do the best they can? Or that training in regulations is complex, detailed, and lacking safety relevance? Non-governmental standards and procedures seem more stable than governmental regulations; nevertheless, they must also change frequently when government regulations are amended.

Formulation of compliance assurance programs. The impact of the preempted decision approach on compliance assurance programs is in linking supervisory functions to regulated tasks. The foremost need of line operating supervisors is to have information about tasks and decisions In their operations that can lead to accidents. This could be facilitated by regulations that specify safety objectives, tasks, and decisions in a way that supervisors could recognize in their work. Statements of the safety objective(s) that the regulation is designed to accomplish would provide useful guidance when the application of a regulation is unclear.

One additional function that a body of regulations performs is to provide a "societal memory" of safety problems. By stating the regulations in the current format, however, only solutions rather than objectives are passed along to future users. The safety problem statement, which would be reflected by a statement of the regulation's objective, usually disappears. Can performance standards, stated as drop tests or engineering standards, be much of an improvement if their safety objective is not stated? The answer depends on how a regulation is viewed.

Formulation of a compliance assurance program could be enhanced by the same pre-analysis that should go into formulating a safety regulation. Properly identified through analysis, the decisions that must be controlled to produce safe operations could be communicated by flow charts or other process models to enable employees to see how the safety of others depends on their decisions. Thorough pre-analysis in building compliance assurance programs would assist regulatory development work in the future. Analytic models would be already available to assist regulation developers to accomplish these tasks more efficiently than is now the case.

RECOMMENDATIONS

Based on the foregoing, several constructive steps might be possible to enhance the effectiveness of safety "regulations" at all levels:

  1. Stop writing regulations in the passive voice.
  2. Define and specify the safety objective of each regulation and analyze the work processes and tasks that are regulated. This must be done in ways that permit predictive estimation of a regulation's safety effectiveness -(National Transportation Safety Board, 1980a). This step would provide regulated entities with information about the safety concern that necessitated the regulation and thus offer a basis for identifying alternative precautions if a regulation can not be followed exactly for some legitimate reason.
  3. State regulations in terms of task decisions or decision rules that can be interpreted by individuals as preempted task decisions.
  4. Pretest proposed regulations (standards, codes, and procedures) to determine whether they are compatible with actual field practices and will produce the stated safety objectives. This step should be mandatory for all governmental bodies with the power to issue sanctions for violations.
  5. Document interpretations by regulators to assure that currently insufficient regulations are actually converted into improved regulations compatible with task decision needs.
  6. Reduce the number of specific task decisions preempted by governmental regulation, focusing instead on safety objectives to be achieved - and releasing the creative energies of individuals in a way that is not detrimental to safety.
  7. Pool research on safety regulations across governmental agency lines. This should be done as promptly as possible to assure that all agencies benefit from the work performed by one and that the research is available to the private sector in a timely useful way.
  8. Identify organizations with superior safety records, as well as compliance assurance programs that might be worth emulating in comparable organizations.

If the nature and objective of regulations are clarified, many new avenues to improve safety performance begin to emerge. The approach seems to be worth further attention.

REFERENCES

Jennings, W. C. The regulator's handbook. Arlington, VA: Author, 1971.

 Materials Transportation Bureau. Docket HM 110, Amendment 177-42, September 12, 1978.

 National Transportation Safety Board. An overview of a bulk gasoline delivery fire and explosion (Report HZM 78-1). Washington, DC: Author, 1978.

 National Transportation Safety Board, The accident performance of tank car safeguards (Report HZM 80-1). Washington, DC: Author, 1980. (a)

 National Transportation Safety Board. Survival in hazardous materials transportation accidents (Report HZM 79-4). Washington, DC: Author, 1980. (b)

 National Transportation Safety Board. Federal and state enforcement efforts In hazardous transportation by truck (Report SEE 81-2). Washington, DC: Author, 1981.

 

[1] Ludwig Benner, Jr., is with the Institute of Safety and Systems Management, University of Southern California, Eastern Region, 12101 Toreador Lane, Oakton, VA 22124.

[2] This finding is from the Materials Transportation Bureau's computerized records of reported hazardous materials releases - "probably violations" attribute, summarized for the relevant years