The Occupational Safety and Health Administration’s (OSHA) Lockout Standard (29 C.F.R. 1910.147) applies today only to “unexpected” startups of machinery. For example, the standard does not apply if alarms give employees such clearly audible and timely warning that any startup would be expected (consider the warnings given at airport baggage carousels). The word “unexpected” also means that the standard would not apply if, for example, a machine were so small and its one switch were so located that any employee servicing it would know of any restart attempt.

Since the standard was adopted in 1989, many thousands of employers, not to mention machine manufacturers, have relied on the word “unexpected” in the Lockout Standard, particularly since the United States Court of Appeals for the Sixth Circuit in Reich v. General Motors Corp., Delco Chassis Div., 89 F.3d 313 (6th Cir. 1996) rejected an OSHA “interpretation” that would have deprived the word of meaning. There, OSHA had argued to the court that the standard applies if “employees could be injured if the equipment is energized . . . during the servicing operation”—an “interpretation” that the court rejected because it “expressly omits the word ‘unexpected.’” Judges of the Occupational Safety and Health Review Commission have also vacated citations that relied on the word “unexpected.”

On October 4, 2016, however, OSHA proposed to remove the word “unexpected” from the Lockout Standard. Inasmuch as OSHA had long attempted to treat the word as if it had no meaning, it is not a surprise that OSHA would propose its removal.

What is very much a surprise is the way that OSHA has done so. It tucked the proposal into a Standards Improvement Project announcement, as if the change were merely technical and of no import to the nation’s employers. Furthermore, OSHA’s economic analysis of the proposed revision reasoned that it would cost employers nothing because it “would not represent any revision in OSHA policy”—not law but “policy,” as if the measure of compliance cost is what OSHA thinks a standard says instead of what it “unambiguously” does say.

By this same semantic sleight of hand, OSHA sought to avoid making findings that must ordinarily accompany OSHA rulemakings—that the servicing operations that the revised standard would cover pose “significant risks of harm” and that the change would be “reasonably necessary or appropriate,” which requires that the change be feasible, a term that according to the Fifth Circuit requires at least a rough balancing of costs and benefits.

These defects in OSHA’s proposal are just the tip of the iceberg. A close analysis of the core reasons for the proposal shows that they are full of technical and logical errors. It is anticipated that rulemaking comments will expose such errors in detail.