OSHA Drops Proposed Rule Change to Lockout/Tagout Standard

OSHA announced it will not be moving forward with proposed changes to the lockout/tagout standard in the final rule of its most recent phase of the Standards Improvement Project (SIP). 

Changes to lockout/tagout were among the 18 proposed standard revisions published in an Oct. 4, 2016, Notice of Proposed Rulemaking under Phase IV of the SIP, but the May 13 final rule dropped lockout/tagout from the list.

Removal of the word “unexpected” from the standard (29 CFR 1910.147) caused some controversy, with OSHA receiving 155 comments against the proposed lockout/tagout changes during the SIP’s 90-day public comment period, according to the final rule.

The agency received only seven comments in favor of the revision, so it made the standard one of four it decided to drop from the final version of the SIP.

Those who opposed the removal of the word called for a hearing regarding the standard, but because “OSHA is not in a position at this time to make a final decision on this issue” and is not moving forward with the changes, the agency determined a hearing wasn’t required.

The current standard states that it applies to servicing and maintenance operations “in which the unexpected energization or startup of the machines or equipment, or the release of stored energy could cause injury to employees.”

Court decisions led to proposed change

OSHA proposed to remove “unexpected” from several places in the standard after a ruling made by the Occupational Safety and Health Review Commission (OSHRC), which upheld an appeals court ruling in the Secretary of Labor v. General Motors Corp., Delco Chassis Div. case.

Those decisions found the lockout/tagout standard didn’t apply where a machine’s startup procedure provided a warning to workers servicing it that it was about to start.

The General Motors Corp. case involved workers servicing machines that used an eight-to-twelve-step startup procedure which included time delays and audio or visual warnings.

An appeals court, and later the OSHRC, found that, because the procedure would warn the employees the machine was about to start, the startup would not be unexpected.

OSHA felt the language of the lockout/tagout standard was misconstrued in the General Motors Corp.case, allowing employers to use warning and delay systems as alternatives to following the standard’s requirements, so it sought to remove the word as part of Phase IV of the SIP.

Revision would add ‘only confusion’

However, many employers were against the proposed revisions.

Davies Molding LLC, an employer that engaged in a mass-mailing campaign against the lockout/tagout changes, told OSHA the “proposed rule would adversely impact a company’s ability to utilize certain advances in technology such as automated controls that can eliminate the potential for unexpected energization and therefore eliminate the need for lockout/tagout.”

Manufacturing company Apogee Designs said, “Removing ‘unexpected’ from the term ‘unexpected energization’ broadens the scope of the rule adding only confusion to what is already understood and implemented.”

The American National Standards Institute (ANSI) Committee for the Control of Hazardous Energy – Lockout, Tagout and Alternative Methods also opposed the revisions, saying removal of “unexpected” would be inconsistent with its ANSI/ASSE Z244.1 standard.

A comment from the AFL-CIO in favor of the changes indicated OSHA should include a definition of the word in the final version of the rule “similar to the definition that is included in the OSHA Lockout-Tagout compliance directive” which states “the term unexpected refers to any energization or start-up that is not sanctioned (through the removal of personal lockout/tagout devices) by each authorized employee engaged in the servicing and maintenance activity.”

In response to the comments, OSHA acknowledged the “overwhelming opposition” to the revisions and agreed there are complications due to technological advancements.

However, the agency continues to believe the court decisions misconstrued the standard’s language and feels the AFL-CIO comment provides “a path OSHA could follow to uphold the rigor of the proposed rule.”

Because of the opposition and the AFL-CIO comment, OSHA is no longer in a position to make a final decision on the issue and dropped the proposed revision from the SIP final rule, saying it will “further consider this issue in light of the overall standard.”