Full opinion text
POSNER, Circuit Judge. In 1991 the Occupational Safety and Health Administration promulgated a rule on occupational exposure to bloodborne pathogens. 56 Fed.Reg. 64004, 57 Fed.Reg. 29206, 29 C.F.R. § 1910.1030. The rule is designed to protect health care workers from viruses, particularly those causing Hepatitis B and AIDS, that can be transmitted in the blood of patients. Promulgated after a protracted notice-and-comment rulemaking proceeding, the rule and its supporting reasons occupy 178 densely packed pages in the Federal Register. Most employers in the health care industry have accepted the rule, which in essence requires compliance with procedures for health care workers recommended by the Centers for Disease Control (since renamed the Centers for Disease Control and Prevention), the federal agency responsible for the control of contagious diseases. Many of these employers, indeed, had adopted the procedures as soon as the CDC recommended them. Three employer groups, however, challenge the rule — dentists, represented by the American Dental Association, and medical-personnel and home-health employers, both represented by the Home Health Services and Staffing Association. Medical-personnel firms supply health care workers on a temporary basis to hospitals and nursing homes, while home-health firms supply such workers to patients at home. AIDS is caused by a virus (HIV) that can be transmitted, among other means, by introducing the blood of an infected person into the bloodstream of an uninfected one. If blood of a dental or medical patient who is HIV positive spatters on a health care worker’s skin where the skin is cut or abraded, or the worker accidentally sticks himself with a scalpel or hypodermic needle or other medical instrument on which there is fresh blood of an HIV carrier, the worker may become infected — with, so far as anyone knows, invariably fatal results. The AIDS virus is not, however, robust, and is not easily transmitted by the sorts of contact that patients usually have with health care workers. As of 1991, there had been only 24 confirmed cases of U.S. health care workers infected with the AIDS virus by patients since AIDS was first diagnosed in 1981. Hepatitis B is a far more common disease than AIDS, though less scary, publicized, or stigmatized. The Hepatitis B virus (HBV) produces antibodies that fight the virus but at the same time destroy liver cells in which the virus has lodged. Although most infected persons recover uneventfully, about 1 percent die and about 6 to 10 percent of adult (and a much higher percentage of child) victims of Hepatitis B become carriers. The virus is much more virulent than the AIDS virus, and the introduction of a carrier’s blood into another person’s bloodstream is a particularly efficient means of transmission. Unlike the AIDS virus, which cannot survive exposure to air, HBV can survive on the surface of a piece of clothing or other material at room temperature for a week and can thus be spread by dirty laundry. Also unlike the AIDS virus, there is a vaccine against HBV, effective in 85 to 97 percent of healthy adults who receive it. Nonetheless, because of the greater virulence of HBV and the fact that many health care workers are not vaccinated, patient-communicated Hepatitis B kills about 200 health workers in the U.S. per year — roughly 100 times the number of such workers infected by patient-communicated HIV. The precautions against infection of health care workers by the two viruses is similar, except that the vaccine against HBV offers a protection that has no counterpart with regard to HIV, and contaminated laundry poses a danger of spreading HBV that also has no counterpart with regard to HIV. OSHA’s rule reflects the public-health philosophy of “universal precautions,” which means precautions against the blood of every patient, not just the blood of patients known or believed likely to be carriers of HBV or HIV. The precautions are various. They include engineering controls (such as requirements for the location of sinks), work practice controls (such as standards of care in handling contaminated sharp instruments, such as needles), requirements for personal protective equipment such as gloves, masks,' goggles, and gowns, requirements for housekeeping (covering such things as the cleaning of contaminated surfaces and laundry and the disposal of contaminated waste), reporting requirements, and provisions for medical care. The rule requires the employer to offer employees who are at risk of exposure to the blood of patients the Hepatitis B vaccine at the employer’s own expense, though it allows the employees to decline to be vaccinated. An employee who is involved in an “exposure incident,” such as being stuck with a contaminated needle, must be offered at the employer’s expense a confidential blood test for HBV and HIV; that is, only the employee is entitled to the result of the test. In deciding to impose this extensive array of restrictions on the practice of medicine, nursing, and dentistry, OSHA did not (indeed is not authorized to) compare the benefits with the costs and impose the restrictions on finding that the former exceeded the latter. Instead it asked whether the restrictions would materially reduce a significant workplace risk to human health without imperiling the existence of, or threatening massive dislocation to, the health care industry. For this is the applicable legal standard. Occupational Safety & Health Act, § 6(b)(5), 29 U.S.C. § 655(b)(5); Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 642-45, 655-56, 100 S.Ct. 2844, 2864-65, 2870-71, 65 L.Ed.2d 1010 (1980) (the “benzene” case) (plurality opinion); American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490, 509-12, 530-36, 101 S.Ct. 2478, 2490-92, 2500-04, 69 L.Ed.2d 185 (1981) (the “cotton dust” case). The agency focused on HBV rather than on HIV because of the minute number of health care workers who have been infected by the latter virus. It estimated that the rule would eliminate between 113 and 129 annual deaths of health care workers from Hepatitis B, and a somewhat higher figure (187 to 197) if deaths of nonworkers infected by health-care workers who (but for the rule) would be carriers are factored in as well. (In making this additional calculation, OSHA expressed an uncharacteristic, but as it seems to us commendable, concern with the indirect effects of its rule. On the other hand it did not consider the reduction in medical care that might result from the rule’s effect in making the practice of medicine more costly — more on this shortly.) Most of these deaths would be avoided by the vaccine, but by no means all, because the vaccine is not a hundred percent effective and, more important, because many health care workers refuse to be vaccinated. Hence the other parts of the rule would have a positive effect even on Hepatitis B; and there is no vaccine (or cure) for AIDS. OSHA’s evaluation of the effects of the rule, relying as it does on the undoubted expertise of the Centers for Disease Control, cannot seriously be faulted, at least by judges. Hence we cannot say that the rule, viewed as a whole, flunks the test of material reduction of a significant risk to workplace health. As for the impact on the health care industry, OSHA estimated the total cost of compliance with the rule at $813 million a year, clearly not enough to break the multi-hundred-billion-dollar healthcare industry. The rule’s implicit valuation of a life is high — about $4 million — but not so astronomical, certainly by regulatory standards, Cass R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State 239 (1990) (App. B), as to call the rationality of the rule seriously into question, especially when we consider that neither Hepatitis B nor AIDS is a disease of old people. These diseases are no respecters of youth; they cut off people in their working years, and thus in their prime, and it is natural to set a high value on the lost years. Nor is death the only consequence of these diseases. AIDS causes protracted pain and disability before death, and Hepatitis B causes pain and disability and often permanent liver damage, even when the patient “recovers.” No doubt the agency’s $813 million estimate is an underestimate. It ignores time costs — more precisely, many or most time costs, for the statement accompanying the rule does contain a cost estimate for “work practices.” But apparently it is limited to “handwashing/glove change” and to the added time for using “safety syringes.” Those are not the only time costs, and the rest seem to have been left out. Individually slight, the time costs of suiting up with protective clothing, and of other preparatory activities required by the rule, could be cumulatively significant. Certain efficiency losses were also excluded, of which we give an example later. But the petitioners made no effort in the rulemaking proceeding to quantify these costs or to provide any basis for supposing them to be huge. OSHA also exaggerated the number of lives likely to be saved by the rule by ignoring lives likely to be sacrificed by it, since the increased cost of medical care, to the extent passed on to consumers, will reduce the demand for medical care, and some people may lose their lives as a result. The agency’s consideration of the indirect costs of the rule is thus incomplete. Cf. Competitive Enterprise Institute v. NHTSA, 956 F.2d 321 (D.C.Cir.1992); International Union, UAW v. OSHA, 938 F.2d 1310, 1320 (D.C.Cir.1991). How many lives the rule is likely to sacrifice, however, we do not know; and again the petitioners make no effort to come up with á number. So while $4 million doubtless underestimates the agency’s implicit valuation of each life actually likely to be saved by the rule, we do not know how great the underestimate is and we cannot resolve our doubts against the agency. We add that the $4 million ignores the benefits to workers who will be spared illness — for remember that 99 times as many people get Hepatitis B as die from it. As an original matter we might have been inclined to think that the regulation of the safety of the medical and dental workplace could be left largely to the market, that doctors, dentists, and other health care workers have a stronger incentive than the government to protect themselves from health hazards at reasonable cost, that their employees are compensated in their wages for what is after all a modest risk, and that health care workers who refuse to be vaccinated against Hepatitis B are knowingly assuming the risk and should be left to bear the consequences without government interference. But the occupational safety and health law is constructed on different premises that we are not free to question, and perhaps the infectious character of HIV and HBV warrants even on narrowly economic grounds more regulation than would be necessary in the case of a noncommunicable disease. The petitioners, moreover, do not attempt to blast the entire rule out of the water. They do not argue that its net contribution to the safety of health workers is likely to be trivial, or its net costs crushing. They do not contend that there should be no regulation of bloodborne pathogens. They zero in on the particular features of the rule that pinch their clienteles and argue that the pinch is so tight that we should invalidate the rule insofar as it applies to the industries that they represent. We start with the dentists. Mainly they object that they have been lumped in with medical personnel, such as surgeons, who are far more exposed to patients’ blood than dental workers are and, in other respects as well, work under relevantly different conditions. For example, although the rule is entitled a rule about blood borne pathogens, it requires universal precautions in any dental procedure in which the patient’s saliva may drip or spray or splatter on the dental worker. But it is not quite true that OSHA treated all branches of the health care industry in a lump. It gave separate consideration to every point raised before it by the dental association. It pointed out that the saliva of dental patients frequently contains blood — even in such routine procedures as having one’s teeth cleaned by a dental hygienist — and that it is possible, though far from certain, that even a small quantity of blood, diluted by saliva or some other fluid, can sometimes be infective. This was not some fantasy of OSHA. The Centers for Disease Control, while generally exempting saliva from the list of body fluids to which universal precautions should apply, recommended “special precautions” for dental workers exposed to saliva from patients. Did the CDC mean universal precautions? Its language is unclear, requiring interpretation. OSHA was entitled to adopt an interpretation that leaned “on the side of overprotection rather than underprotection.” Industrial Union Dept., AFL-CIO v. American Petroleum Institute, supra, 448 U.S. at 656, 100 S.Ct. at 2871. What OSHA did not do was attempt to disaggregate the risk industry by industry. While it carefully disaggregated the costs of compliance, to see whether any industry within the health care sector would be imperiled by the rule, it did not attempt to determine separately the risk of HIV or HBV infection in dentistry, in home-health services, in thoracic surgery, in ophthalmology, and so forth. It did not attempt to determine the number of dental employees, say, who have contracted Hepatitis B from their patients; and it inflated the fact that only 1 of the 24 health care workers infected by a patient with AIDS in the U.S. was a dental employee by calling it a “significant percentage” of all occupational HIV infections. Well, 4.16 percent is a significant percentage, but not a meaningful one in this case, given the smallness of the sample. Citing cases like International Union, UAW v. OSHA, 988 F.2d at 1322, the dental association argues that the finding that the benzene opinion requires OSHA to make — “that the workplaces in question are not safe,” 448 U.S. at 642, 100 S.Ct. at 2864—entails a determination of the safety (or riskiness) of, at the least, each type of workplace. OSHA cannot impose onerous requirements on an industry that does not pose substantial hazards to the safety or health of its workers merely because the industry is a part of some larger sector or grouping and the agency has decided to regulate at wholesale. That would be an irrational way to proceed. But neither is the agency required to proceed workplace by workplace, which in the case of bloodborne pathogens would require it to promulgate hundreds of thousands of separate rules. It is not our business to pick the happy medium between these extremes. It is OSHA's business. If it provides a rational explanation for its choice, we are bound. Associated Builders & Contractors, Inc. v. Brock, 862 F.2d 63, 68 (3d Cir.1988). It explained that while the cost of compliance with the precautions that the CDC has recommended (and OSHA has required) against bloodborne pathogens varies in a readily determinable fashion from industry to industry, the risk of infection does not. The risk goes with practices (so protective clothing is required only where being splashed with blood or other infective liquid can-reasonably be anticipated, whether it is a dentist’s office or a hospital operating room) rather than with industries, and the rule is therefore based on practices rather than on industries. The HIV or HBV carrier bears menace with him as he makes the rounds from health care, provider to health care provider. The risk of blood splatters and needlesticks is greater in some medical procedures than in others, but a dental hygienist is as likely to be splattered by blood contained in saliva as js many a worker in a hospital or a doctor’s office. The idea behind requiring universal precautions for health care workers is to protect those workers in any situation in which there .is a nontrivial risk of physical contact with a patient’s blood, and these situations arise in dentists’ offices as well as in doctors’ offices and hospitals. OSHA was required neither to quantify the risk to workers’ health nor to establish the existence of significant risk to a scientific certainty. Industrial Union Dept., AFL-CIO v. American Petroleum Institute, supra, 448 U.S. at 655-56, 100 S.Ct. at 2870-71. It is true that because fewer people have dental than medical insurance, and therefore more people pay for dental care out of their own pockets, the higher price of dentistry that is a likely consequence of the rule will have a greater impact on demand; and inadequate dental care is a source of pain and suffering. But again the dental association made no effort to quantify this impact, though techniques for doing so exist in economics. As to the specific precautions required by the rule, the association makes a number of arguments, of which a representative example is that children may be traumatized by the sight of a dentist wearing goggles. “Traumatized” is putting it too strongly, and the rule does not require goggles — at least for most dental procedures, ordinary glasses with side shields are all that is required. Nonetheless the problem of calming children in the dentist’s chair, without resort to nitrous oxide, is a serious one that the rule may aggravate, but again the dental association makes no effort to estimate the gravity of the harm. And while as we have suggested there is a time cost to decking oneself out in protective clothing which OSHA ignored, so does the dental association. In this example, and others unnecessary to discuss, the association is contesting requirements that, whether wise or not, are within the broad bounds of the reasonable, involving as they do technical issues on which the judgments of the CDC and OSHA are entitled to respect by the nonspecialist, biomedically unsophisticated Article III judiciary, at least in the absence of a more systematic showing of harms than attempted by the dental association. This is true even with regard to the question whether a health worker should be permitted to conceal his awareness of being infected from his employer and the employer’s patients. The problem with nonconfidential medical tests is that the cost of flunking is high — loss of a job, for example — and this deters people from taking the test. A dental worker who knew that if he were infected he would lose his job might simply not report an exposure incident. The dental association does not argue that testing should not be encouraged, or alternatively that all dental workers should be tested regularly without regard to any exposure incidents. It asks us to balance the pros and cons of the confidentiality provision. That is not our job. We add that nothing in the rule forbids a dentist to require his employees to have a periodic HIV or HBV test, with disclosure of the results to him. The rule’s provision on confidentiality is limited to the test that an employer is required to offer a worker after an exposure incident. The dental association complains that the rule goes too far in requiring dentists to “ensure” that their employees comply with the requirements of the rule. They say this imposes strict liability, which OSHA acknowledges it cannot do. Brennan v. OSHRC, 502 F.2d 946, 951 (3d Cir.1974); Brennan v. Butler Lime & Cement Co., 520 F.2d 1011, 1017 (7th Cir.1975); Pennsylvania Power & Light Co. v. OSHRC, 737 F.2d 350, 354 (3d Cir.1984). In so saying they may seem not really to be challenging the rule but rather to be raising an interpretive question — how strictly will OSHA interpret “ensure”? Interpretive questions that cannot be answered until a rule is applied are premature when raised in a challenge to the rule on its face, mounted at the time the rule is promulgated. But here the question is neither unanswerable, nor severable from questions that clearly are ripe, such as whether the costs of compliance with the rule will be so staggering as to imperil the dental industry (in which event the rule would be invalid). The stricter the liability, the more costly the rule. It is reasonably plain, however, that OSHA did not by using the word “ensure” seek to impose strict liability. It explained that the employer’s responsibility doesn’t end with furnishing his employees with protective gear, for example; he must do everything he can reasonably be expected to do to see that they use it. Like an employer made liable for his employees’ conduct not by the principle of respondeat superior (a form of strict liability) but by the negligence principle, Lancaster v. Norfolk & Western Ry., 773 F.2d 807, 818-19 (7th Cir.1985), which requires due care in hiring, training, supervising, monitoring, disciplining, and retaining employees — the kind of employer liability imposed in sexual harassment cases, Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir.1990), in other civil rights cases, Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421-22 (7th Cir.1986), and in cases under the common law’s “fellow servant” doctrine, Pomer v. Schoolman, 875 F.2d 1262, 1266 (7th Cir.1989)—the employer subject to OSHA’s rule on bloodborne pathogens must take all reasonable measures to prevent his employees from violating the rule, but if despite these measures the employee violates the rule, the employer is off the hook. Pennsylvania Power & Light Co. v. OSHRC, supra; Capital Electric Line Builders of Kansas, Inc. v. Marshall, 678 F.2d 128 (10th Cir.1982); Brock v. L.E. Myers Co., 818 F.2d 1270, 1277 (6th Cir.1987). The costs of compliance with OSHA’s rule, once the issue of strict liability for unforeseeable misconduct by employees is laid to one side, can hardly be thought so great as to imperil dentistry. Annualized, these costs are estimated to be equal to less than one-third of one percent of the industry’s annual revenues. This may overstate the actual cost, not to society as a whole (International Union, UAW v. OSHA, supra, 938 F.2d at 1320) but to the industry. When an industry is subjected to a higher cost, it does not simply swallow it; it raises its price and reduces its output, and in this way shifts a part of the cost to its consumers and a part to its suppliers (granted, those suppliers may include the firms constituting the industry). This very point is the basis of the dental association’s argument that OSHA’s rule is likely to cause a deterioration in dental care as dental patients flee the higher prices resulting from the industry’s efforts to shift some of the costs of compliance with the rule to its customers. There are some omitted costs, as we have noted, but not enough to make a decisive difference; nor does the association emphasize them. The dental association makes some other jabs at the rule, but they have less merit than those we have discussed so we move on to the objections of the home health and medical personnel industries. These objections have greater force because they are based primarily on the fact, which has no counterpart in dentistry or for that matter in most other branches of the health industry, that the home health and medical personnel industries — we’ll call them the health personnel industry for short — do not control the sites at which their employees work. This does not affect compliance with the parts of the rule relating to HBV vaccination, post-exposure testing and treatment, and recordkeeping, but it does affect the ability of the employer to comply with the requirements for protective clothing and equipment, because his employees do not work in his presence. It especially affects the employer’s ability to comply with site-specific precautions required by the rule, such as ensuring that the work site is maintained in a clean and sanitary condition and that the worker has convenient access to running water in the event of exposure to blood or other potentially infective materials. These problems do not seem serious with regard to the branch of the industry that supplies medical personnel to hospitals, nursing homes, and other facilities that are themselves required to comply with the rule, but they could be serious with regard to the branch of the industry that supplies personnel to homes. Save for allowing the employer to substitute handwashing chemicals for a ready source of running water, the rule gives no recognition to the special problems of the industry although they were brought to OSHA’s attention during the rulemaking proceeding. OSHA’s brief relies on what it calls the “multi-employer worksite defense,” whereby an employer that cannot control a hazard is not liable for the exposure of its employees to the hazard if it took whatever precautionary steps were reasonable in the circumstances (or reasonably lacked the knowledge to recognize a condition as hazardous, but that is not a factor here). In effect OSHA asks us to read the defense into the rule. Is the absence from the rule of any explicit recognition of the acute compliance problem apparently faced by the health personnel industry, and in particular the branch that supplies medical workers to patients’ homes, a fatal omission? Administrative rules and decisions, like statutes, are enacted against a background of existing laws and understandings that do not have to be repeated in every new rule in order to have force. Perhaps the multi-employer worksite defense is so well established in the law of occupational safety and health that it formed part of the implicit background of the bloodborne-pathogens rule, which would explain OSHA’s seeming insouciance in assimilating the home personnel industry to health care industries that control the sites at which the care is provided. Apart from its having been clearly stated by the Occupational Safety and Health Review Commission, which reviews orders of OSHA citing employers for violations of the Occupational Safety and Health Act, and endorsed by every court to consider it, see, e.g., Anning-Johnson Co., 4 O.S.H.C. 1193, 1198-99 (1976); Harvey Workover, Inc., 7 O.S.H.C. 1687, 1689 (1976); D. Harris Masonry Contracting, Inc. v. Dole, 876 F.2d 343 (3d Cir.1989); see also Anning-Johnson Co. v. OSHRC, 516 F.2d 1081, 1089 (7th Cir.1975), the rule or some variant of it is implicit in the principle we have just examined that the Act does not impose strict liability. One problem, however, is that the Review Commission is not OSHA. OSHA is legislator and prosecutor, OSHRC the judge. Martin v. OSHRC, — U.S. -, -, 111 S.Ct. 1171, 1174, 113 L.Ed.2d 117 (1991); see also Cuyahoga Valley Ry. v. United Transportation Union, 474 U.S. 3, 7, 106 S.Ct. 286, 288, 88 L.Ed.2d 2 (1985) (per curiam). By failing to mention the multi-employer worksite defense in the blood-borne-pathogens rule, OSHA may, despite its appellate lawyers’ disclaimer—which the doctrine of SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943), obliges us to ignore — be signifying its disagreement that the defense is part of the law. If so, this could mean that OSHA was planning to enforce the rule as written, that is, without any such defense. If that is the proper interpretation of the rule’s silence, we would have to invalidate the rule (in part), as we think the defense is part of the law. The alternative interpretation of the rule’s silence is that OSHA accepts the defense as something that is to be read into all of its rules; that OSHA has bowed to the Review Commission and the courts. We need not choose between these interpretations. Silence as acquiescence would not be an adequate response by OSHA to the circumstances of this case. The multi-employer worksite defense was developed for the construction industry and has, so far as we are able to discover, rarely been applied outside of it. What contours it should have in so unusual a worksite setting as the health personnel industry presents should not be left to appellate tribunals, whether OSHRC or this court, to decide. OSHA should set the contours in the first instance. Maybe they should be narrower in this industry than in the construction industry, maybe broader, maybe different. So important a question should be settled now, not left to enforcement proceedings. Since we know that the Occupational Safety and Health Act does not impose strict liability on employers, we know that the members of the health personnel industry need make only reasonable efforts to comply with the rule; but what this means at sites that the' employers do not control eludes us. Can the employer take the position that he has no responsibility for the condition of those sites? Or must he inspect each site before he allows his employees to work there? Must he do that even if the site is a private home? Who knows? OSHA had an obligation to consider such questions and the general issue that they present before imposing a medley of restrictions that, so far as appears, the industry cannot comply with. So the rule must be vacated insofar as it applies to sites not controlled either by the employer or by a hospital, nursing home, or other entity that is itself subject to the bloodborne-pathogens rule. The other objections lodged by the health personnel industry against the rule, however, either duplicate those of the dental association or plainly lack merit. So in the main the rule must be upheld. Which is not to say that it is a good rule. It may be unnecessary; it may go too far; its costs may exceed its benefits. Concern with the cost of health care in the United States is growing, and OSHA has received a steady drumbeat of criticisms even from supporters of public regulation of occupational health and safety. E.g., Sunstein, supra (index references to Occupational Safety and Health Act and Occupational Safety and Health Administration). But our duty as a reviewing court of generalist judges is merely to patrol the boundary of reasonableness, and, with the exception we have noted, OSHA’s blood-borne-pathogens rule — accepted as it has been by most health care industries and based as it is on the recommendations of the nation’s, perhaps the world’s, leading repository of knowledge about the control of infectious diseases — does not cross it. The petition to review filed by the American Dental Association is denied. The petition of the Home Health Services and Staffing Association is granted in part and denied in part, as explained above.
COFFEY, Circuit Judge, concurring in part, dissenting in part. Section 3(8) of the Occupational Safety and Health Act defines “occupational safety and health standard” as a standard which requires the adoption of practices “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 U.S.C. § 652(8) (emphasis added). Section 6(b)(5) of the Occupational Safety and Health Act states: “The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.” 29 U.S.C. § 655(b)(5) (emphasis added). The dental profession, and the employees in the home health care and temporary medical services fields, argue convincingly that it is improper for the Occupational Safety and Health Administration’s final bloodborne pathogens standard to be applied uniformly to their respective fields since the levels of exposure to bloodborne pathogens are vastly different among the various disciplines. The rule adopted can best be classified as an attempt to try to kill a fly with a sledgehammer. The rule was drafted partially in response to the public hysteria surrounding AIDS created by the media’s failure to balance their reporting with scientific data on transmission. The rule was not drafted in response to an established significant risk of harm to employees. The dangers of transmitting the blood-borne pathogen hepatitis B have been well-established for years yet for reasons unexplained OSHA did not concern itself with that risk in the workplace prior to November 1987. Based on the record, I am forced to assume that because of the excessive media coverage regarding the AIDS virus, fueled by one single episode involving Kimberly Bergalis in Florida contracting AIDS from her dentist, OSHA decided to promulgate this over-expansive rule (combining the AIDS virus with hepatitis B) in the health care field. The rule unduly burdens health care employers, including but not limited to dentists, doctors and hospitals, while offering but minimal benefit to their employees, and furthermore it is estimated that it will increase health care costs some $817 million annually. Additionally, the rule duplicates the scientifically based and well-reasoned guidelines of the Centers for Disease Control and Prevention (CDC) a governmental agency medically and scientifically qualified to determine and evaluate if there is in fact a significant risk in the health care area and, if so, propose reasonable, efficient guidelines. The petitioners (American Dental Association and Home Health Services and Staffing Association) base their challenges on four theories: 1) OSHA failed to establish a significant risk within their individual respective disciplines, and thus, no basis exists for OSHA to regulate; 2) OSHA has failed to establish that the final rule will result in substantial benefit to health care workers, much less that the guidelines and regulations of the CDC and the respective states are inadequate; 3) the rule is aimed at protecting employees only and thus lacks concern for and fails to protect the consumer (dental patients and home health care patients) by increasing health care costs and at the same time denying the consumer access to essential information necessary to the granting of informed consent; and 4) there are flaws in the feasibility analysis. I concur with the majority holding concerning the failure of the rule to make an exception for employers who have no control over the work site (home health and temporary medical services) op. at 830-31. I suggest that the United States Congress must address the question of whether there is a need to duplicate the education, investigation and prevention efforts of the CDC and state health agencies, thus increasing health care costs, and whether OSHA is the proper agency to regulate health care given their lack of experience, knowledge and expertise in comparison to the CDC and state health agencies. In the alternative, the entire rule should be remanded to OSHA for the reasons detailed in this opinion. I. SIGNIFICANT RISK In Industrial Union Dep’t v. American Petroleum Inst., 448 U.S. 607, 642-44, 100 S.Ct. 2844, 2864-65, 65 L.Ed.2d 1010 (1980) (the Benzene case), the Supreme Court required that OSHA determine whether a “significant risk” exists before it can promulgate a rule. The Court’s mandating this analysis demonstrated concern that an insignificant risk must not be allowed to “justify pervasive regulation limited only by the constraint of feasibility” and to restrain OSHA’s “power to impose enormous costs that might produce little, if any, discernible benefit.” Benzene, 448 U.S. at 645, 100 S.Ct. at 2865. For regulations under § 6(b)(5), such as the bloodborne pathogens standard, “the logic of Benzene thus calls for a fairly high standard of significance.” International Union, UAW v. OSHA, 938 F.2d 1310, 1322 (D.C.Cir.1991). The Benzene case places the burden of proof on OSHA to demonstrate that a significant risk of harm to employees exists. Benzene, 448 U.S. at 653, 100 S.Ct. at 2869. Additionally, § 6(b)(5) of the Occupational Safety and Health Act mandates that OSHA standards satisfy the “best available evidence” and feasibility requirements. 29 U.S.C. § 655(b)(5). OSHA states that in an attempt to satisfy the best available evidence requirement concerning the risk of bloodborne pathogens it conducted a number of hearings and received a myriad of comments prior to the adoption of the final rule. Further, OSHA sets forth that it reviewed nationwide statistical sample surveys from health care disciplines to determine the possibility of exposure to blood or other potentially infectious materials in twenty-four (24) industry sectors. 56 Fed. Reg. 64041-64043. Even though the U.S. Supreme Court held in American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981) (the Cotton Dust case), that OSHA is not required to conduct a cost benefit analysis when promulgating a rule under § 6(b)(5), the Supreme Court explained the propriety of OSHA adopting the most cost-effective regulation: “In addition, if [1] the use of one respirator would achieve the same reduction in health risk as the use of five, [2] the use of five respirators was ‘technologically and economically feasible,’ and [3] OSHA thus insisted on the use of five, then the ‘reasonably necessary or appropriate’ limitation might come into play as an additional restriction on OSHA to choose the one-respirator standard. In this case we need not decide all the applications that § 3(8) might have, either alone or together with § 6(b)(5).” 452 U.S. at 514 n. 32, 101 S.Ct. at 2493 n. 32. Thus it is reasonable to expect OSHA not only establish that a significant risk exists but also that the regulation adopted is the most cost-effective procedure. While I agree with the majority that “we are not free to question” Congress’ intentions in granting OSHA the power to regulate the workplace, op. at 826, I do not believe that Congress ever intended that OSHA regulate the highly technical health care field. Congress was in no position in the year 1970 to foresee the dramatic advancements in the field of medical technology, such as heart catheterization and angioplasty procedures, heart bypass surgery, organ transplants, microscopic surgery, and the developments in nucléar medicine among others. Nor do I think Congress intended for OSHA to invade the privileged relationship between medical professionals and their patients. Accordingly, Congress may wish to revisit this matter to determine whether. OSHA is the most qualified agency to regulate health care as we move into the 21st century. II. DISAGGREGATING INDUSTRIES WHEN PERFORMING SIGNIFICANT RISK ANALYSIS The majority acknowledges that “OSHA cannot impose onerous requirements on an industry that does not pose substantial hazards to the safety or health of its workers merely because the industry is a part of some larger sector or grouping and the agency has decided to regulate at wholesale.” Op. at 827. In order to achieve its desired result of regulation, OSHA made a hodgepodge of findings (estimating the number of health care workers infected with hepatitis B, and combining the risk of exposure to all bloodborne pathogens in the various fields of medical and dental endeav- or) resulting in nothing but a generalized determination of significant risk applicable to the twenty-four industry sectors noted above. It would have been more scientifically acceptable had OSHA disaggregated the twenty-four sectors (even those with as few as 8,000 employees, see infra note 8) to determine if in fact a scientifically established risk existed in a specific field of health services as opposed to a hypothesized risk. Although I realize OSHA need not “establish the existence of significant risk to a scientific certainty,” op. at 827-28, OSHA must do more than rely on estimates of risk. OSHA’s application of the law in that manner is directly contrary to the D.C. Circuit’s recent decision in International Union, UAW v. OSHA, which states: “OSHA nowhere explains its logic. Just because paper mill equipment (which was already subject to a lockout requirement) poses a significant hazard does not mean that sewing machines do. While we have recognized OSHA’s need to avoid' “minuscule industry subcategories” for administrative convenience, ... there are no obvious barriers to disaggregation here. In fact, OSHA has in past years promulgated a wide variety of industry and equipment-specific lockout standards. As we have insisted that OSHA explain its refusal to disaggregate at the behest of unions claiming that reliance on overbroad categories denied them adequate protection, ... we similarly remand for it to explain how its aggregated approach here conforms to its interpretation of the act.” 938 F.2d at 1322 (emphasis added) (citations omitted). Certainly OSHA can neither logically nor reasonably claim that the dental, home health and temporary medical personnel sectors are “minuscule industry] subcategories” when one considers that there are some 316,000 affected dental employees, 212,246 affected home health employees and 163,477 affected temporary medical personnel. 56 Fed.Reg. 64055. An example of OSHA’s hodgepodge of findings is the method it used in determining whether a • significant risk of infection exists. OSHA combined the risk of infection during surgical procedures in large metropolitan area public hospitals with the risk in a single chair dental practice and in a home health care environment (private residence care). As established in this opinion, OSHA has failed in the record to accurately or scientifically analyze the risk of exposure to bloodborne pathogens. This is most evident from OSHA’s decision to combine the risks of the individual sectors in the health care area and then conclude that its self-generated, artificial risk level exists in each respective health care area. It is interesting to note that this commingling of diverse groups is contrary to OSHA’s prior practice of disaggregating industries in rule making proceedings for purposes of analyzing significant risk when promulgating a rule governing exposure to toxic substances. See 29 C.F.R. at 1910.1043(a)(2) (OSHA’s final Cotton Dust standard); Texas Independent Ginners Ass’n v. Marshall, 630 F.2d 398, 403 (5th Cir.1980). OSHA properly excluded the cotton ginning industry from the airborne concentration of cotton dust standard because “gin employees are only exposed to cotton dust for a short season, ... the proper maximum level is not known for such seasonal exposure and ... the emission controls are infeasible_” Id. at 403. The court added that imposing emission controls on the cotton ginning industry would “increase the construction cost of the average gin by sixty-five percent and would increase the farmer’s costs by fifty percent.” Id. Certainly, if OSHA is able to create an industry-specific feasibility analysis for the cotton ginning industry of 58,000 employees and other industries (see supra footnote 8), it can and should in fairness to the dental profession, consisting of over 316,-000 employees, be required to create an individual industry specific significant risk analysis. 56 Fed.Reg. 64055. Apparently OSHA realized it was unable to establish a significant risk in the appellants’ respective fields and/or for the sake of convenience chose to combine the risk present in the entire health care area. Furthermore, based on the record it is evident that OSHA failed to consider the unique, separate and distinct risks of occupational exposure to the HBV and HIV viruses when it determined that there is a “significant risk” in the health care profession. For instance, of the twenty-five cases studied of health care workers infected with HIV through occupational exposure not one home health care employee and only one dentist (of the 100,000 practicing dentists in the United States) tested positive. 56 Fed.Reg. 64017-19 (listing the cases worldwide where occupational exposure to HIV infected blood was the suspected cause of a health care worker’s positive HIV test). Certainly one suspected case of- occupational transmission of HIV falls far short of establishing a significant risk to the dental field of over 100,000 practicing dentists and thus fails to warrant much less justify OSHA’s all-protective and all-encompassing rule. OSHA, in its questionable quantitative risk assessment, perhaps in an attempt to enlarge its sphere of influence or as a result of responding to well-organized political pressure, failed to analyze and weigh the varying risk levels among respective disciplines (dentists, home health, surgeons, etc.) when determining significant risks for HBV infection due to the lack of epidemiological data relating to the individual disciplines. 56 Fed.Reg. at 64023-64032. To fill this void, OSHA chose to rely on those CDC statistics that it deemed helpful in determining the annual and lifetime risk levels for HBV infection in the health care field as a whole. Id. at 64026 (“Of the 280,000 HBV infections each year (based on 1988 Hepatitis Surveillance data), CDC estimates that 8,700 cases occur in health care workers with occupational ex-posure_”). OSHA’s use of the HBV statistics is highly suspect in that they merely relied on an estimate of the number of infected health care employees rather than determining the number through a scientific survey. Without the use of these speculative statistics, OSHA would in all probability have been unable to establish compelling results to satisfy the significant risk requirement in either the dental or the home health disciplines. OSHA’s decision to ignore varying risk levels in the respective health care disciplines appears to be nothing but a scheme to achieve a desired result for the sake of “administrative convenience.” See International Union, 938 F.2d at 1322. The failure to analyze, quantify, and document the data on the particular risk factors the dental, home health, and temporary medical services individually might incur vis-a-vis the other identified health care sectors results in a quagmire of highly suspect estimates of the risk of HBV infection in the appellants’ disciplines. OSHA, as have others before, demonstrated the truth of the well-known saying that people can use statistics to make any point they want. Above all, this type of “reliance on over-broad categories denie[s] [industries] adequate protection” from overreaching regulation. See id. OSHA conceded the effect of International Union when it stated, “[that case] stands only for the proposition that OSHA must consider any record evidence that shows a wide variation in incident rates among industries in deciding whether to regulate on an aggregated basis.” OSHA Brief at 17. Because of the established “wide variation in incident rates” of exposure to bloodborne pathogens, OSHA, if it was in fact attempting to achieve accuracy, should have disaggregated the individual disciplines in determining the existence of a significant risk. The professional training the vast majority of health care workers undergo in infectious disease prevention, in addition to complying with the CDC Guidelines, and the respective state and professional regulations are more than an adequate safeguard to combat the minimal risk of infection existing in a dental office or home health care place of employment. On October 28, 1991, Congress enacted a law requiring that states adopt and enforce the 1991 CDC guidelines. See Pub.L. No. 102-141, 105 Stat. 876, § 633 (1991). Because of the Supreme Court’s ruling in Gade v. National Solid Wastes Management Ass’n, — U.S. -, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992), the OSHA regulations preempt any comparable state regulations, i.e., the 1991 CDC guidelines. Interestingly, the CDC guidelines are patient oriented as contrasted with the OSHA rule which is employee oriented. The OSHA rule leaves much question in light of the fact that the dentists and their support staff are well-trained during their respective dental educational programs as well as their continuing professional dental seminars in how to prevent and control exposure to infection but at the same time the consumer-patient is not as fortunate and is thus uninformed as to both the risk and the techniques or methods of prevention. Rather than having the CDC and OSHA rules conflict with one another, resulting in confusion as well as government waste from duplication of effort, one governmental organization should be drafting and be responsible for enforcing a logical, scientifically acceptable, cost-conscious rule which would in turn protect not only the medical and dental personnel but the consumer-patient as well. I understand that OSHA did consider some of the Dental Association’s concerns, see, e.g., 56 Fed.Reg. at 64103 (addressing the ADA’s argument that saliva should not be included in the .standard), but in large part this pro forma treatment of challenges to the standard was inadequate. OSHA did not specifically find that dentists and home health workers were exposed to risk anywhere near a level that could be labeled significant. III. SIGNIFICANT BENEFITS Benzene states “that Congress intended, at a bare minimum, that [OSHA] find a significant risk of harm and therefore a probability of significant benefits before establishing a new standard” and requires that the Occupational Safety and Health Administration find that “a place of employment is unsafe — in the sense that significant risks are present and can be eliminated or lessened by a change in practices.” Benzene, 448 U.S. at 642, 645, 100 S.Ct. at 2864-65. The starting point for this significant risk analysis should be the current state of regulation and the risks present thereunder based on recognized and accepted empirical data. OSHA admittedly did not consider the present state of regulation including the CDC Guidelines adopted by the states, other individual state and professional regulations, and the increased use of HBV vaccinations in the dental profession (71% of the nation’s roughly 100,000 dentists are vaccinated; while 41% of the nearly 5 million health care workers in the entire health care profession are vaccinated, 56 Fed.Reg. 64027, 64092). OSHA Brief at 20. OSHA acknowledges that the HBV vaccination is 96 percent effective, id. at 64027, and “[t]he risk of HBV infection is most efficiently and dramatically reduced by vaccinating all workers exposed to blood and other potentially infectious materials.” Id. at 64036. Therefore, mandating HBV vaccination for all health care personnel insures far greater reduction of risk at a minimum of expense than do the requirements of wearing shoe covers or thirty-year record keeping, etc. I certainly do not oppose the reasonable recognized safeguards including but not limited to the use of goggles, gloves, masks, sterilization and waste disposal in a hospital setting. However, I fail to understand the need for separate and distinct governmental agencies to regulate the same subject matter particularly when the CDC is so eminently qualified through its knowledge, expertise, professional personnel, and continued research combined with its experience. The Supreme Court has held that a "rule is arbitrary and capricious if the agency ... entirely failed to consider an important aspect of the problem.” Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983). In my opinion, the failure of OSHA to take cognizance of the effectiveness and implementation of current state and federal (CDC) regulation and guidelines (including HBV vaccination statistics) leads to but one con-elusion, that the final rule can and must be classified as arbitrary and capricious. Above all, regulation of this type is just one more example' of governmental waste. The much maligned health care field and its insurance systems are struggling and almost bankrupt partially because of excessive and unnecessary regulations of this nature that are not only duplicative but are also less than cost efficient. OSHA further exacerbates the health care crisis when it enters into the fields of medicine, and dentistry, and related support staff, where it falls short of being either qualified or experienced to exercise regulatory oversight. My concerns about the inefficiency of having another federal agency regulate dentists and home health employees applies with equal force to the other health care disciplines covered by the rule though they are not party to this suit. OSHA’s regulation of doctors’ offices (at a cost of $144 million annually) and hospitals ($322 million) will merely duplicate the educational, investigative and research efforts of the CDC, state health agencies, hospital associations and professional organizations. This regulation upon regulation only serves to exacerbate the skyrocketing costs of health care in America. I disagree with my two colleagues, who are both properly recognized and respected as experts in the field of economics as well as law, but who have overlooked the lack of marginal benefit in the final rule. The majority maintains that OSHA “is not authorized to ... compare the benefits with the costs and impose the restrictions [the Bloodborne Pathogens Standard] on finding that the former exceeded the latter.” Op. at 825 (citing 29 U.S.C. § 655(b)(5); Benzene, 448 U.S. at 642-45, 655-56, 100 S.Ct. at 2864-65, 2870-71; Cotton Dust, 452 U.S. at 509, 530-36, 101 S.Ct. at 2490, 2500-04). Accordingly, OSHA only examined “whether the restrictions would materially reduce a significant workplace risk to human health without imperiling the existence of, or threatening massive dislocation to,-the health care industry.” Op. at 825. As I have previously mentioned {see supra at 833), the Supreme Court has recommended that OSHA pursuant to § 3(8) of the Act, consider drafting the less costly of two equally effective proposals: “the ‘reasonably necessary or appropriate’ limitation might come into play as an additional restriction on OSHA to chooge the [least costly regúlation].” Cotton Dust, 452 U.S. at 514 n. 32, 101 S.Ct. at 2493 n. 32. Moreover, I am aware of no rule barring OSHA’s applying reasonable judgment and fiscal responsibility. OSHA should have taken into consideration that a qualified governmental agency with a wealth of medical and scientific expertise was already responsible for the health care profession and thus OSHA could not hope to accomplish anything that the CDC was unable to achieve more effectively. (Perhaps this could be achieved by congressional action giving the CDC the same inspection and enforcement powers as OSHA). Furthermore, had OSHA considered and analyzed the marginal costs and benefits of its regulations as applied to the dental, home health care and personnel services professions, they would have foregone promulgation of the rule, because less costly, less intrusive regulations are available and have effectively reduced the risk of exposure to bloodborne pathogens. In OSHA’s explanation of why the regulation is warranted, it admits: “The risk of HBV infection is most efficiently and dramatically reduced by vaccinating all workers exposed to blood and other potentially infectious materials.” 56 Fed.Reg. 64036. Yet, in spite of the finding that vaccination is the most efficient preventative measure, rather than making vaccination mandatory, the government, through OSHA, proceeded to create the present bureaucratic rule which will magnify the costs of health care by over $800 million annually to consumers based upon the weak excuse that “not everyone is willing to accept the vaccine.” Id. at 64037. The majority maintains that “the vaccine is not a hundred percent effective and, more important, ... many health care workers refuse to be vaccinated.” Op. at 825-26. While there are a certain number of people who refuse to be vaccinated, this certainly is not a valid reason to reject mandatory vaccination of health care workers. Thus, this argument can best be classified as a red herring. To realize that vaccinations are a reality in this day and age, one need only look to the infant children who must and do receive vaccinations before entering school and when not vaccinated are refused admission to attend classes. Other examples of compliance with mandatory vaccination programs include those traveling abroad who are denied visas or entry into certain foreign countries and the over two million men and women in the armed services. The vast majority of dental schools are requiring proof of vaccination before accepting incoming students as is evidenced by the increase in the percentage of incoming dental students who have received HBV vaccination from fifty-one percent in 1986 to eighty-six percent in 1988, and among dental hygiene students from sixty percent in 1986 to eighty-five percent in 1988. Appendix to OSHA Brief at 44 (citing V. Merchant & J. Molinari, The Current Status of Infection Control in North American Dental Schools 9 (Mar. 14, 1989)). For reasons unknown and contrary to sound medical judgment and research, OSHA concluded that even though vaccinations would reduce almost all risk of health care professionals becoming infected by HBV, the additional, far more expansive, impractical and cost inefficient precautions were necessary. Id. at 64036-38. In part, OSHA justified the need for the entire bloodborne pathogens standard because it “will also re-dúcete] the risk of infection to HIV.” Id. at 64038. This rationale is neither scientifically nor medically established and is thus arbitrary and capricious and falls far short of being supported with substantial evidence because OSHA itself concedes “there are no sufficient data on HIV to quantify the occupational risk of infection.” Id. (emphasis added). OSHA should not be allowed to impose on the health care industry, during these times crying for fiscal responsibility, a rule whose benefits and safeguards could be achieved through a far more cost effective and efficient means (mandatory vaccination) both to the consumer and the government alike. See Cotton Dust, 452 U.S. at 514, n. 32, 101 S.Ct. at 2493, n. 32 (suggesting that the “reasonably necessary or appropriate” language of § 3(8) might require OSHA to select the less expensive of two equally effective measures). OSHA’s fatal error, in my opinion, occurred when it failed to recognize and consider the varying risk of occupational exposure in the respective appellants’ professions. “Infected [health care workers] who adhere to universal precautions and who do not perform invasive procedures pose no risk for transmitting HIV and HBV to patients.” Centers for Disease Control, 40 MMWR 1, (July 12,1991) (emphasis added). Dentists, for example, are not exposed to the same level of risk as other health care workers such as surgeons, nurses or other medical personnel in large metropolitan hospital’s emergency or operating rooms, just as cotton gin workers are not exposed to the same risk as are other cotton industry employees. A large number of dentists both in general practice and in a number of specialties, unlike surgeons in hospital settings, have little exposure to blood. See ADA Brief at 10. Despite the testimony of over 400 witnesses and an additional 3000 written comments, before this court, OSHA relies on but one single 1988 article (Infection control recommendations for the dental office and the dental laboratory, 116 J.A.D.A. 241 (Feb.1988)) to support its claim that dental workers are at risk of acquiring HBV. OSHA Brief at 18. The article fails to take into account the most recent safeguard innovations such as the increased use of the HBV vaccine by the dental and medical professionals, and the implementation of recent CDC Guidelines. OSHA argues that having to conduct a significant risk analysis for each industry would hamper its ability to reg