V. Statutory Considerations

A. Introduction.

OSHA has described the hazards confronted by employees who enter permit spaces and the measures required to protect affected employees from those hazards in Section I, Background, and Section III, Summary and Explanation of the Standard, respectively, earlier in this preamble. The Agency is providing the following discussion of the statutory mandate for OSHA rulemaking activity to explain the legal basis for its determination that the permit space standard, as promulgated, is reasonably necessary to protect affected employees from significant risks of injury and death.

Section 2(b)(3) of the Occupational Safety and Health Act authorizes "the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce", and section 5(a)(2) provides that "[e]ach employer shall comply with occupational safety and health standards promulgated under this Act" (emphasis added). Section 3(8) of the OSH Act (29 U.S.C. section 652(8)) provides that "the term `occupational safety and health standard' means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment."

In two recent cases, reviewing courts have expressed concern that OSHA's interpretation of these provisions of the OSH Act, particularly of section 3(8) as it pertains to safety rulemaking, could lead to overly costly or under-protective safety standards. In International Union, UAW v. OSHA, 938 F.2d 1310 (D.C. Cir. 1991), the District of Columbia Circuit rejected substantive challenges to OSHA's lockout/tagout standard and denied a request that enforcement of that standard be stayed, but it also expressed concern that OSHA's interpretation of the OSH Act could lead to safety standards that are very costly and only minimally protective. In National Grain & Feed Ass'n v. OSHA, 866 F.2d 717 (5th Cir. 1989), the Fifth Circuit concluded that Congress gave OSHA considerable discretion in structuring the costs and benefits of safety standards but, concerned that the grain dust standard might be under-protective, directed OSHA to consider adding a provision that might further reduce significant risk of fire and explosion.

It is, of course, beyond doubt that OSHA rulemakings involve a significant degree of agency expertise and policy-making discretion to which reviewing courts must defer. (See for example, Building & Constr. Trades Dep't, AFL-CIO v. Brock, 838 F.2d 1258, 1266 (D.C. Cir. 1988); Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 655 n. 62 (1980).) At the same time, the agency's technical expertise and policy-making authority must be exercised within discernable parameters. The lockout/tagout and grain handling standard decisions sought from OSHA more clarification on the agency's view of the scope of those parameters. In light of those decisions, OSHA believes it would be useful to include in the preamble to this safety standard a statement of its view of the limits of its safety rulemaking authority and to explain why it is confident that its interpretive views have in the past avoided regulatory extremes and continue to do so in this rule.

Stated briefly, the OSH Act requires that, before promulgating any occupational safety standard, OSHA demonstrate based on substantial evidence in the record as a whole that: (1) the proposed standard will substantially reduce a significant risk of material harm; (2) compliance is technologically feasible in the sense that the protective measures being required already exist, can be brought into existence with available technology, or can be created with technology that can reasonably be developed; (3) compliance is economically feasible in the sense that industry can absorb or pass on the costs without major dislocation or threat of instability; and (4) the standard is cost effective in that it employs the least expensive protective measures capable of reducing or eliminating significant risk. Additionally, proposed safety standards must be compatible with prior agency action, must be responsive to significant comment in the record, and, to the extent allowed by statute, must be consistent with applicable Executive Orders. These elements limit OSHA's regulatory discretion for safety rulemaking and provide a decision-making framework for developing a rule within their parameters.

B. Congress concluded that OSHA regulations are necessary to protect workers from occupational hazards and that employers should be required to reduce or eliminate significant workplace health and safety threats.

At section 2(a) of the OSH Act (29 U.S.C. section 651(a)), Congress announced its determination that occupational injury and illness should be eliminated as much as possible: "The Congress finds that occupational injury and illness arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments." Congress therefore declared "it to be its purpose and policy ... to assure so far as possible every working man and woman in the Nation safe ... working conditions [29 U.S.C. section 651(b)]."

To that end, Congress instructed the Secretary of Labor to adopt existing federal and consensus standards during the first two years after the OSH Act became effective and, in the event of conflict among any such standards, to "promulgate the standard which assures the greatest protection of the safety or health of the affected employees [29 U.S.C. section 655(a)]." Congress also directed the Secretary to set mandatory occupational safety standards [29 U.S.C. section 651(b)(3)], based on a rulemaking record and substantial evidence [29 U.S.C. section 655(b)(2)], that are "reasonably necessary or appropriate to provide safe ... employment and places of employment." When promulgating permanent safety or health standards that differ from existing national consensus standards, the Secretary must explain "why the rule as adopted will better effectuate the purposes of this Act than the national consensus standard [29 U.S.C. section 655(b)(8)]." Correspondingly, every employer must comply with OSHA standards and, in addition, "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees [29 U.S.C. section 654(a)]."

"Congress understood that the Act would create substantial costs for employers, yet intended to impose such costs when necessary to create a safe and healthful working environment. Congress viewed the costs of health and safety as a cost of doing business.... Indeed, Congress thought that the financial costs of health and safety problems in the workplace were as large as or larger than the financial costs of eliminating these problems [American Textile Mfrs. Inst. Inc. v. Donovan, 452 U.S. 490, 519-522 (1981) (ATMI); emphasis was supplied in original]." "[T]he fundamental objective of the Act [is] to prevent occupational deaths and serious injuries [Whirlpool Corp. v. Marshall, 445 U.S. 1, 11 (1980)]." "We know the costs would be put into consumer goods but that is the price we should pay for the 80 million workers in America [S. Rep. No. 91-1282, 91st Cong., 2d Sess. (1970); H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. (1970), reprinted in Senate Committee on Labor and Public Welfare, Legislative History of the Occupational Safety and Health Act of 1970, (Committee Print 1971) ("Leg. Hist.") at 444 (Senator Yarborough)]." "Of course, it will cost a little more per item to produce a washing machine. Those of us who use washing machines will pay for the increased cost, but it is worth it, to stop the terrible death and injury rate in this country [Id. at 324; see also 510-511, 517]."

[T]he vitality of the Nation's economy will be enhanced by the greater productivity realized through saved lives and useful years of labor.

When one man is injured or disabled by an industrial accident or disease, it is he and his family who suffer the most immediate and personal loss. However, that tragic loss also affects each of us. As a result of occupational accidents and disease, over $1.5 billion in wages is lost each year [1970 dollars], and the annual loss to the gross national product is estimated to be over $8 billion. Vast resources that could be available for productive use are siphoned off to pay workmen's compensation and medical expenses.... Only through a comprehensive approach can we hope to effect a significant reduction in these job death and casualty figures. [Id. at 518-19 (Senator Cranston)]

Congress considered uniform enforcement crucial because it would reduce or eliminate the disadvantage that a conscientious employer might experience where inter-industry or intra-industry competition is present. Moreover, "many employers - particularly smaller ones - simply cannot make the necessary investment in health and safety, and survive competitively, unless all are compelled to do so [Leg. Hist. at 144, 854, 1188, 1201]."

Thus, the statutory text and legislative history make clear that Congress conclusively determined that OSHA regulation is necessary to protect workers from occupational hazards and that employers should be required to reduce or eliminate significant workplace health and safety threats.

C. As construed by the courts and by OSHA, the OSH Act sets a threshold and a ceiling for safety rulemaking that provide clear and reasonable parameters for agency action.

OSHA has long followed the teaching that section 3(8) of the OSH Act requires that, before it promulgates "any permanent health or safety standard, [it must] make a threshold finding 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 [Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 642 (1980) (plurality) (Benzene); emphasis was supplied in original]." When, as frequently happens in safety rulemaking, OSHA promulgates standards that differ from existing national consensus standards, it must explain "why the rule as adopted will better effectuate the purposes of this Act than the national consensus standard [29 U.S.C. section 655(b)(8)]." Thus, national consensus and existing federal standards that Congress instructed OSHA to adopt summarily within two years of the OSH Act's inception provide reference points concerning the least an OSHA standard should achieve (29 U.S.C. section 655(a)).

As a result, OSHA is precluded from regulating insignificant safety risks or from issuing safety standards that do not at least lessen risk in a significant way.

The OSH Act also limits OSHA's discretion to issue overly burdensome rules, as the agency also has long recognized that "any standard that was not economically or technologically feasible would a fortiori not be `reasonably necessary or appropriate' under the Act. See Industrial Union Dep't v. Hodgson, [499 F.2d 467, 478 (D.C. Cir. 1974)] (`Congress does not appear to have intended to protect employees by putting their employers out of business.') [American Textile Mfrs. Inst. Inc., 452 U.S. at 513 n. 31 (a standard is economically feasible even if it portends `disaster for some marginal firms,' but it is economically infeasible if it `threaten[s] massive dislocation to, or imperil[s] the existence of,' the industry)]."

By stating the test in terms of "threat" and "peril," the Supreme Court made clear in ATMI that economic infeasibility begins short of industry-wide bankruptcy. OSHA itself has placed the line considerably below this level. (See for example, ATMI, 452 U.S. at 527 n. 50; 43 FR 27,360 (June 23, 1978). Proposed 200 ug/m3 PEL for cotton dust did not raise serious possibility of industry-wide bankruptcy, but impact on weaving sector would be severe, possibly requiring reconstruction of 90 percent of all weave rooms. OSHA concluded that the 200 ug/m3 level was not feasible for weaving and that 750 ug/m3 was all that could reasonably be required). See also 54 FR 29, 245-246 (July 11, 1989); American Iron & Steel Institute, 939 F.2d at 1003. OSHA raised engineering control level for lead in small nonferrous foundries to avoid the possibility of bankruptcy for about half of small foundries even though the industry as a whole could have survived the loss of small firms.) Although the cotton dust and lead rulemakings involved health standards, the economic feasibility ceiling established therein applies equally to safety standards. Indeed, because feasibility is a necessary element of a "reasonably necessary or appropriate" standard, this ceiling boundary is the same for health and safety rulemaking since it comes from section 3(8), which governs all permanent OSHA standards.

All OSHA standards must also be cost-effective in the sense that the protective measures being required must be the least expensive measures capable of achieving the desired end (ATMI, at 514 n. 32; Building and Constr. Trades Dep't AFL-CIO v. Brock, 838 F.2d 1258, 1269 (D.C. Cir. 1988)). OSHA gives additional consideration to financial impact in setting the period of time that should be allowed for compliance, allowing as much as ten years for compliance phase-in. (See United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1278 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981).) Additionally, OSHA's enforcement policy takes account of financial hardship on an individualized basis. OSHA's Field Operations Manual provides that, based on an employer's economic situation, OSHA may extend the period within which a violation must be corrected after issuance of a citation (CPL. 2.45B, Chapter III, paragraph E6d(3)(a), Dec. 31, 1990).

To reach the necessary findings and conclusions that a safety standard substantially reduces a significant risk of harm, is both technologically and economically feasible, and is cost effective, OSHA must conduct rulemaking in accord with the requirements of section 6 of the OSH Act. The regulatory proceeding allows it to determine the qualitative and, if possible, the quantitative nature of the risk with and without regulation, the technological feasibility of compliance, the availability of capital to the industry and the extent to which that capital is required for other purposes, the industry's profit history, the industry's ability to absorb costs or pass them on to the consumer, the impact of higher costs on demand, and the impact on competition with substitutes and imports. (See ATMI at 2501-2503; American Iron & Steel Institute generally.) Section 6(f) of the OSH Act further provides that, if the validity of a standard is challenged, OSHA must support its conclusions with "substantial evidence in the record considered as a whole," a standard that courts have determined requires fairly close scrutiny of agency action and the explanation of that action. (See Steelworkers, 647 F.2d at 1206-1207.) OSHA's powers are further circumscribed by the independent Occupational Safety and Health Review Commission, which provides a neutral forum for employer contests of citations issued by OSHA for noncompliance with health and safety standards (29 U.S.C. section 659-661; noted as an additional constraint in Benzene at 652 n. 59). OSHA must also respond rationally to similarities and differences among industries or industry sectors. (See Building and Constr. Trades Dep't, AFL-CIO v. Brock, 838 F.2d 1258, 1272-73 (D.C. Cir. 1988).) Finally, it is axiomatic that significant departures from prior practice must be justified (International Union, UAW v. Pendergrass, 878 F.2d 389, 400 (D.C. 1989)). In the twenty years since enactment of the OSH Act, OSHA has promulgated numerous safety standards - standards that provide benchmarks for judging risks, benefits, and feasibility of compliance in subsequent rulemakings. (OSHA's Hazardous Waste Operations and Emergency Response Standard, for example, required use of existing technology and well accepted safety practices to eliminate at least 32 deaths and 18,700 lost workday injuries at a cost of about $153 million per year (54 FR 9311-9312; March 6, 1989). The Excavation standard also drew on existing technology and recognized safety practices to save 74 lives and over 800 lost workday injuries annually at a cost of about $306 million. (54 FR 45,954; Oct. 31, 1989). OSHA's Grain Handling Facilities standard relied primarily on simple housekeeping measures to save 18 lives and 394 injuries annually, at a total net cost of $5.9 to $33.4 million (52 FR 49,622; Dec. 31, 1991).) OSHA safety rulemaking is thus constrained first by the need to demonstrate that the standard will substantially reduce a significant risk of material harm, and then by the requirement that compliance is technologically capable of being done and not so expensive as to threaten economic instability or dislocation for the industry. Within these parameters, further constraints such as the need to find cost-effective measures and to respond rationally to all meaningful comment militate against regulatory extremes.

D. The Permit-Required Confined Space standard complies with the statutory criteria described above and is not subject to the additional constraints applicable to section 6(b)(5) standards.

As explained in Section I, Background, and Section III, Summary and Explanation of the Standard, earlier in this preamble, and in Section VI, Summary of the Final Regulatory Impact Analysis and Regulatory Flexibility Analysis, later in this preamble, OSHA has determined that permit spaces pose significant risks to employees (62 fatalities and 12,643 injuries and illnesses annually) and estimates that compliance with the Permit-Required Confined Space standard will reduce the risk of permit space hazards by 85 percent (preventing 53 fatalities and 10,746 injuries and illnesses annually). This constitutes a substantial reduction of significant risk of material harm. The Agency believes that compliance is technologically feasible because the rulemaking record indicates that the hazard control measures required by the standard have already been implemented, to some extent, at all the types of spaces covered by the standard. Additionally, OSHA believes that compliance is economically feasible, because, as documented by the Regulatory Impact Analysis, all regulated sectors can readily absorb or pass on compliance costs during the standard's first five years, and economic benefits will exceed compliance costs thereafter.

The standard's costs, benefits, and compliance requirements are reasonable, amounting to approximately $202.4 million annually, preventing 53 fatalities and 10,746 injuries and illnesses per year. These amounts are consistent with those of other OSHA safety standards. OSHA considered and responded to all substantive comments regarding the proposed rule on their merits. In particular, OSHA evaluated all suggested changes in terms of their impact on worker safety, their feasibility, their cost effectiveness, and their consonance with the OSH Act.

Further, the additional constraint found in section 6(b)(5) of the OSH Act, that standards dealing with employee exposure to "toxic materials or harmful physical agents" must also assure, "to the extent feasible ... that no employee will suffer material impairment of health or functional capacity even if [he is exposed] to the hazard dealt with by the standard for the period of his working life," does not apply to this rule. Standards subject to section 6(b)(5), which regulate insidious hazards that are frequently undetectable because they are subtle or develop slowly or after long latency periods, are frequently referred to as "health" standards, while those that regulate hazards, like explosions or electrocution, that cause immediately noticeable physical harm, are called "safety" standards. (See National Grain & Feed Ass'n v. OSHA (NGFA II), 866 F.2d 717, 731, 733 (5th Cir. 1989). Section 6(b)(5) applies only to substances that take their toll over time or "whose deleterious effect is not readily apparent, such as a carcinogen or a harmful physical agent such as noise," not to "hazards such as explosives, that are every bit as lethal but whose impact is immediate").

The OSH Act and its legislative history clearly indicate that Congress intended this distinction between safety standards and health standards. For example in section 2(b)(6) of the OSH Act, Congress declared that the goal of assuring safe and healthful working conditions and preserving human resources would be achieved, in part:

... by exploring ways to discover latent diseases, establishing causal connections between diseases and work in environmental conditions, and conducting other research relating to health problems, in recognition of the fact that occupational health standards present problems often different from those involved in occupational safety.

The legislative history makes this distinction even clearer:

[The Secretary] should take into account that anyone working in toxic agents and physical agents which might be harmful may be subjected to such conditions for the rest of his working life, so that we can get at something which might not be toxic now, if he works in it a short time, but if he works in it the rest of his life might be very dangerous; and we want to make sure that such things are taken into consideration in establishing standards. [Leg. Hist. at 502-503 (Sen. Dominick), quoted in Benzene at 648-49]

Additionally, Representative Daniels distinguished between "insidious `silent killers' such as toxic fumes, bases, acids, and chemicals" and "violent physical injury causing immediate visible physical harm" (Leg. Hist. at 1003), and Representative Udall contrasted insidious hazards like carcinogens with "the more visible and well-known question of industrial accidents and on-the-job injury" (Leg. Hist. at 1004). (See also, for example, S.Rep. No. 1282, 91st Cong., 2d Sess 2-3 (1970), U.S. Code Cong. & Admin. News 1970, pp. 5177, 5179, reprinted in Leg. Hist. at 142-43, discussing 1967 Surgeon General study that found that 65 percent of employees in industrial plants "were potentially exposed to harmful physical agents, such as severe noise or vibration, or to toxic materials"; Leg. Hist at 412; id. at 446; id. at 516; id. at 845; International Union, UAW at 1315.) Congress addressed this concern that insidious, long term hazards might not receive sufficient protection through section 6(b)(5), which requires OSHA to set "the most protective standard consistent with feasibility" (Benzene at 643 n. 48). As Justice Stevens observed:

The reason that Congress drafted a special section for these substances ... was because Congress recognized that there were special problems in regulating health risks as opposed to safety risks. In the latter case, the risks are generally immediate and obvious, while in the former, the risks may not be evident until a worker has been exposed for long periods of time to particular substances. [Benzene, at 649 n. 54.]

The permit space standard addresses hazards, such as asphyxiation, explosion, and engulfment, that are immediately dangerous to life or health, not the longer term, less obvious hazards subject to section 6(b)(5). The definition of "immediately dangerous to life or health" in paragraph (b) of the final rule covers conditions that pose immediate or delayed threats to life, would cause irreversible adverse health effects or would interfere with an individual's ability to escape unaided from a permit space. The definition contemplates that any "delayed" health effects would arise within 72 hours of exposure to a permit space hazard. Accordingly, the mention of delayed effects simply reflects OSHA's recognition that some acute health effects may not manifest themselves at the very same time as the permit space incidents which trigger them. While some of the materials, particularly the air contaminants, that have been detected in permit spaces could also have long-term adverse effects on employees, those long-term effects are not addressed by the permit space standard.

Challenges to the grain dust and lockout/tagout standards included assertions that grain dust in explosive quantities and uncontrolled energy releases that could expose employees to crushing, cutting burning or explosion hazards were harmful physical agents so that OSHA was required to apply the criteria of section 6(b)(5) when determining how to protect employees from those hazards. Reviewing courts have uniformly rejected such assertions. For example, the Court in International Union, UAW v. OSHA, 938 F.2d 1310 (D.C. Cir. 1991) rejected the view that section 6(b)(5) provided the statutory criteria for regulation of uncontrolled energy, holding that such a "reading would obliterate a distinction that Congress drew between `health' and `safety' risks." The Court also noted that the language of the OSH Act and the legislative history supported the OSHA position (International Union, UAW at 1314). Additionally, the Court stated: "We accord considerable weight to an agency's construction of a statutory scheme it is entrusted to administer, rejecting it only if unreasonable" (International Union, UAW at 1313, citing Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843 (1984)).

The Court reviewing the grain dust standard also deferred to OSHA's reasonable view that the Agency was not subject to the feasibility mandate of section 6(b)(5) in regulating explosive quantities of grain dust (National Grain & Feed Association v. OSHA (NGFA II), 866 F.2d 717, 733 (5th Cir. 1989)). It therefore applied the criteria of section 3(8), requiring the Agency to establish that the standard is "reasonably necessary or appropriate" to protect employee safety.

OSHA has determined that the permit space standard, like other safety standards, is subject to the constraints of section 3(8) of the OSH Act, that it be "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." But the standard is not subject to the section 6(b)(5) requirement that it limit significant risk "to the extent feasible."

The Agency believes that permit spaces pose significant risks and that the provisions of the final rule are reasonably necessary to protect affected employees from those risks. It has also determined that compliance with the permit space standard is technologically feasible because the rulemaking record indicates that the hazard control measures required by the standard have already been implemented, to some extent, at all the types of spaces covered by the standard. In addition, OSHA believes that compliance is economically feasible, because, as documented by the "Final Regulatory Impact Analysis and Regulatory Flexibility Analysis of the Final Permit-Required Confined Space Standard"(34), all regulated sectors can readily absorb or pass on compliance costs during the standard's first five years, and economic benefits will exceed compliance costs thereafter. In particular, the Agency believes that compliance with the permit space standard will result in substantial cost savings and productivity gains at manufacturing facilities that might otherwise be disrupted by permit space incidents.

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Footnote(34) This document is available for inspection and copying in Docket S-019 in the Docket Office, Rm. N2634, U.S. Department of Labor, Occupational Safety and Health Administration, 200 Constitution Ave., NW, Washington, DC 20210; telephone 202-219-7894

As detailed in Section VI, Summary of the Final Regulatory Impact Analysis and Regulatory Flexibility Analysis, later in this preamble, the standard's costs, benefits, and compliance requirements are consistent with those of other OSHA safety standards. For example, the Hazardous Waste Operations and Emergency Response standard (29 CFR 1910.120) requires the use of existing technology and well accepted safety practices to eliminate at least 32 deaths and 18,700 lost workday injuries at a cost of about $153 million per year (54 FR 9311-9312; March 6, 1989). The Excavations standard (29 CFR 1926, Subpart P) also drew on existing technology and recognized safety practices to save 74 lives and over 800 lost workday injuries annually at a cost of about $306 million (54 FR 45,954; Oct. 31, 1989). Additionally, the Grain Handling Facilities standard (29 CFR 1910.272) relied primarily on simple housekeeping measures to save 18 lives and 394 injuries annually, at a total net cost of between $5.9 million and $33.4 million (52 FR 49,622; Dec. 31, 1987). Also, compliance with the planning, work practice, and training provisions of the Process Safety Management standard (29 CFR 1910.119) will reduce the risk of catastrophic fire and explosion (330 fatalities and 1917 injuries and illnesses annually) by 80 percent, at an annualized cost of $888.7 million in the first five years and at an annualized cost of $470.8 million in the following five years.

OSHA has considered and responded to all substantive comments regarding the proposed permit space standard on their merits in the Section III, Summary and Explanation of the Standard, earlier in this preamble. In particular, OSHA evaluated all suggested changes to the proposed rule in terms of their impact on worker safety, their feasibility, their cost effectiveness, and their consonance with the OSH Act.

E. The permit space standard is necessary to address the significant risks of material harm posed by permit spaces.

OSHA believes that Section I, Background, Section II, Hazards, and Section III, Summary and Explanation of the Standard, earlier in this preamble have clearly and comprehensively set out the Agency's bases for concluding that permit spaces pose significant risks and that the provisions of the final rule are reasonably necessary to protect affected employees from those risks. In particular, as detailed in Section VI, Summary of the Final Regulatory Impact Analysis and Regulatory Flexibility Analysis, later in this preamble, OSHA estimates that exposure to permit spaces hazards causes at least 62 fatalities and 12,643 injuries and illnesses annually and that compliance with the Permit-Required Confined Space standard will reduce the risk of permit space hazards by 85 percent (preventing 53 fatalities and 10,746 injuries and illnesses annually). This constitutes a substantial reduction of a significant risk of material harm to the exposed population of approximately 1,629,000 permit space entrants.

OSHA emphasizes that its risk assessment is based on employee exposure to the particular hazard of permit-required confined spaces, a hazard that exists in a large range of industries. Although Section VI, Summary of the Final Regulatory Impact Analysis and Regulatory Flexibility Analysis, later in this preamble, presents OSHA's estimate of the costs and benefits of the permit space standard in terms of the Standard Industrial Classification (SIC) codes for the industries regulated, OSHA does not believe that the risk associated with this hazard varies according to what SIC code a particular space may be found in. Thus, some of the industry categories within the scope of the final rule which will have compliance costs have had few or no documented permit space-related injuries or fatalities during the period covered by the RIA. In this case, OSHA has defined the scope of the rule to cover those situations it has determined to be hazardous. As explained more fully below, OSHA has determined that the lack of prior documented injuries and deaths in some SIC Codes does not indicate that the employees in those industries are not exposed to significant risks from permit spaces and permit space entry.

As the summary of the RIA explains in detail, OSHA has determined that it is appropriate to include those industries within the scope of the permit space standard because employees in those industries are exposed to the same kinds of hazards as employees in industries for which there are reported injuries and fatalities. For example, employers classified in SIC 391 (Jewelry, Silverware and Plated Ware) and in SIC 3949 (Sporting and Athletic Goods) have employees enter tanks, pits, and dust collectors that meet the permit space definition, but that have not caused any documented injuries or fatalities during the 5-year time period covered by the RIA tables. The Agency has found, however, that the permit spaces identified in SIC 391 and SIC 3949 are closely analogous, and in many cases virtually identical, to permit spaces in other SIC categories (such as SIC 28, Chemicals & Allied Products) where OSHA has documented injuries and fatalities.

As regards the other SICs for which injury and fatality data are not available, OSHA has set out the bases for concluding that permit spaces in those SICs pose significant risk of material harm in Table III-5 and the accompanying text of Chapter III of the "Final Regulatory Impact Analysis and Regulatory Flexibility Analysis of the Final Permit-Required Confined Space Standard". Even in industry sectors in which no injuries or fatalities have been reported, the Agency believes there is sufficient information for OSHA to determine that employees who enter permit spaces in those sectors face significant risks, based on analysis of the elements of the hazards identified and based on the similarity of hazard elements between industry sectors. Therefore, the Agency has determined that all employees who enter permit spaces face a significant risk of material harm and that compliance with the permit space standard is reasonably necessary to protect affected employees from that risk, regardless of the number of permit space incidents reported for the SIC code to which the employer has been assigned.

Also, because of the difficulties the Agency has experienced in compiling a database for permit space incidents, injuries or fatalities may have occurred in industries, including those for which no incidents have been documented, without being recorded. For example, as noted in Table I-7 of the "Final Regulatory Impact Analysis and Regulatory Flexibility Analysis of the Final Permit-Required Confined Space Standard", 7 of the 53 permit space fatalities (nearly 15 percent) OSHA believes will be prevented each year through compliance with the permit space standard could not be classified with a particular 2-digit SIC classification. The frequent use of contractors for permit space entry operations raises further questions regarding the reliability of incident data organized according to SIC code, because a fatality report will usually include the SIC code for the employer whose employee was killed but not necessarily the SIC code for the workplace where the permit space fatality occurred.

In addition, the SIC code-based organization of incident data may mask actual or potential permit space hazards because, while a business is classified for SIC purposes according to its principal activity, the workplace may also contain permit spaces, entered for "secondary" purposes, that have caused permit space-related injuries or fatalities. For example, a permit space incident in the utility room boiler at a new car dealer would be classified under the new car dealer SIC, even though the hazard and the incident had nothing to do with selling new cars. Therefore, OSHA believes, based on the limitations of the incident data and the circumstantial nature of many permit space incidents, that it is appropriate to require that employers protect affected employees from permit space hazards in all workplaces where permit spaces have been identified, rather than to characterize workplaces according to the injury or fatality experience of the SIC codes in which they have been classified.

The Agency also notes that, as discussed in the NPRM (54 FR 24082, 24086), permit space injuries and "near misses" are underreported, because the data collection system has focused on documenting fatalities and because the employees often "recover" without hospitalization or seeking medical attention. Based on these considerations, OSHA believes it is reasonable to conclude that permit space injuries and some of the unclassified permit space fatalities occurred in SIC categories that have no documented permit space injuries or fatalities.

Finally, it is well established in the OSH Act enforcement context that the lack of injuries or deaths to a particular employer's employees does not establish that the employees are not exposed to a hazard. In a frequently quoted passage, the Fifth Circuit long ago observed that "the goal of the Act is to prevent the first accident, not to serve as a source of consolation for the first victim or his survivors" (Mineral Industries & Heavy Construction Group v. OSHRC, 639 F.2d 1289, 1294 (5th Cir. 1981)). This principle applies to regulatory actions as well. Once the agency determines that exposure to a particular condition constitutes a significant risk, it need not repeat that analysis for every situation or type of workplace in which the condition is found.

For all of the foregoing reasons, OSHA has determined that it is inappropriate to exclude any of the SICs merely because they have not recently had documented permit space injuries or fatalities, insofar as those SICs contain confined spaces which meet the configuration and hazard criteria to qualify as permit spaces.

[58 FR 4462, Jan. 14, 1993; 59 FR 55208, Nov. 4, 1994]