[Federal Register Volume 83, Number 139 (Thursday, July 19, 2018)]
[Proposed Rules]
[Pages 34076-34092]
[FR Doc No: 2018-15285]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket ID: OSHA-2015-0012]
RIN 1218-AD07

Cranes and Derricks in Construction: Railroad Roadway Work

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Proposed rulemaking.

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SUMMARY: The Occupational Safety and Health Administration published
its final rule for cranes and derricks in construction on August 9,
2010. The final rule set out new requirements to enhance worker safety
around cranes and derricks. On October 7, 2010, the Association of
American Railroads (``AAR'') filed a petition for review in the United
States Court of Appeals for the District of Columbia challenging
certain requirements affecting railroad roadway work. Subsequently OSHA
and AAR reached a settlement agreement under which OSHA agreed to
undertake rulemaking to propose expanding several exemptions and to
issue clarifications affecting work on or along railroad tracks. These
exemptions and clarifications, which would not apply to bridge work,
would exempt entirely one type of railroad equipment from OSHA's crane
standard; would exempt railroad equipment operators from the
certification requirements in the standard; and would include several
provisions relating to safety devices, work-area controls, out-of-level
work, dragging loads sideways, equipment modifications, and
manufacturer requirements. OSHA believes this proposal, if promulgated,
would maintain safety and health protections for workers while reducing
employers' compliance burdens.

DATES: Submit comments to this proposed rule, public hearing requests,
and other information no later than September 17, 2018. Each submission
must bear a postmark or provide other evidence of the date of
submission.

ADDRESSES: Submit comments, hearing requests, and other materials,
identified with this docket, Docket No. OSHA-2015-0012, using any of
the following methods:
    Electronically: Submit comments and attachments, as well as hearing
requests and other information, electronically via the Federal e-
Rulemaking Portal at http://www.regulations.gov. Follow the

online instructions for making electronic submissions.
    Facsimile: Commenters may fax submissions that are no longer than
10 pages in length, including any attachments, to the OSHA Docket
Office at<PHONE_NUMBER>. These submissions must include Docket No.
OSHA-2015-0012 [RIN: 1218-AD07]. OSHA does not require hard copies of
the faxed comments. Commenters must submit documents longer than 10
pages (e.g., supplemental attachments, comments, research studies, or
journal articles) to the OSHA Docket Office, Technical Data Center,
U.S. Department of Labor, Room N-2625, 200 Constitution Avenue NW,
Washington, DC 20210. These attachments must clearly identify the
commenter's name, and the date, subject (Cranes and Derricks in
Construction: Railroad Roadway Work), and docket number (i.e., OSHA-
2015-0012) of the submission so the Agency can attach them to the
appropriate submission. See also Regular mail, express delivery, hand
delivery, and messenger (courier service) below.
    Regular mail, express mail, hand (courier) delivery, or messenger
service. Submit a copy of comments and any additional material (e.g.,
studies, journal articles) to the OSHA Docket Office, Docket No. OSHA-
2015-0012, Technical Data Center, U.S. Department of Labor, Room N-
3653, 200 Constitution Avenue NW, Washington, DC 20210; telephone:
(202) 693-2350 (TDY number:<PHONE_NUMBER>). Note that security
procedures may result in significant delays in receiving comments and
other written materials by regular mail. Contact the OSHA Docket Office
for information about security procedures concerning delivery of
materials by express mail, hand delivery, or messenger (courier)
service. The hours of operation for the OSHA Docket Office are 10:00
a.m. to 3:00 p.m. ET.
    Information Collection Requirements. OSHA welcomes comments on the
information collection requirements contained in this rule on the same
basis as for any other aspect of the rule. Interested parties may also
submit comments about the information collection requirements directly
to the Office of Information and Regulatory Affairs, Attn: OMB Desk
Officer for DOL-OSHA (RIN 1218-AD07), Office of Management and Budget,
Room 10235, 725 17th Street NW, Washington, DC 20503, Fax: 202-395-
6881, email: [email protected]. See Paperwork Reduction Act
section of this preamble for particular areas of interest.
    Instructions: All submissions must include the Agency's name
(OSHA), the title of the rulemaking (Cranes and Derricks in
Construction: Exemption Expansions for Railroad Roadway Work), and
Docket No. OSHA-2015-0012. OSHA places submissions, comments, and other
materials, including any provided personal information, in the public
record of this docket without revision. Submitted materials will be
available online at http://www.regulations.gov. Therefore, OSHA
cautions commenters about submitting materials that contain personal
information (either about themselves or others) such as Social Security
numbers, birth dates, and medical data.
    OSHA requests comments on all issues related to this proposed rule,
including whether these revisions will have any economic, paperwork, or
other regulatory impacts on the regulated community.
    Docket: To read or download submissions or other materials in the
public record for this docket (including material referenced in the
preamble), go to http://www.regulations.gov or contact the OSHA Docket
Office by telephone or the address listed above. While the Agency lists
all documents for this docket in the http://www.regulations.gov index,
some information (e.g., copyrighted material) is not publicly available
through the website for reading or downloading. All submissions,
including copyrighted material, are available for inspection at the
OSHA Docket Office at the above address. Contact the OSHA Docket Office
for assistance locating submissions.

FOR FURTHER INFORMATION CONTACT:
    Press inquiries: Mr. Frank Meilinger, OSHA Office of
Communications, telephone:<PHONE_NUMBER>; email:
[email protected].
    General and Technical inquiries: Mr. Garvin Branch, Directorate of
Construction, telephone:<PHONE_NUMBER>; email: [email protected].
    Copies of this Federal Register document and news releases:
Electronic copies of these documents are available at OSHA's web page
at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Background
III. Summary and Explanation of the Proposed Rule
IV. Preliminary Economic Analysis and Regulatory Flexibility Act
Analysis
V. Legal Considerations, Authority
VI. Office of Management and Budget Review Under the Paperwork
Reduction Act
VII. Federalism
VIII. State-Plan States
IX. Unfunded Mandates Reform Act of 1995
X. Consultation and Coordination With Indian Tribal Governments
XI. Review by the Advisory Committee for Construction Safety and
Health
XII. Public Participation

I. Executive Summary

    The Occupational Safety and Health Administration (OSHA) and the
Association of American Railroads negotiated a settlement to resolve
litigation following OSHA's issuance of its Cranes and Derricks in
Construction standard in 2010. This rulemaking satisfies part of OSHA's
obligations under that settlement. OSHA proposes to exempt entirely
certain railroad ``roadway maintenance machines'' from the requirements
of that standard, and to create limited exemptions for other equipment
used by railroads for track-related construction activities other than
bridge construction. New section Sec.  1926.1442 would clarify that
operators of the relevant equipment need not comply with the operator
certification requirements in OSHA's standard. OSHA believes that these
limited exemptions will maintain safety protections for workers.
    OSHA has estimated the cost and cost savings for this proposed
rule. At a 3 percent discount rate over 10 years, there are net annual
cost savings of $15.7 million per year, and at a discount rate of 7
percent there are net annual cost savings of $17.0 million per year.
When the Department uses a perpetual time horizon to allow for cost
comparisons under E.O. 13771 (82 FR 9339, February 3, 2017), the
annualized cost savings of the proposed rule is $17.0 million with 7
percent discounting. This proposed rule is accordingly expected to be
an E.O. 13771 deregulatory action. Details on OSHA's cost/cost savings
estimates for this proposed rule can be found in the rule's economic
analysis.

II. Background

    OSHA published its final rule for cranes and derricks in
construction on August 9, 2010 (29 CFR 1926 Subpart CC, 75 FR 47906).
The crane standard resulted from years of work by a negotiated
rulemaking committee that drew from industry best practices to draft
regulatory requirements to prevent crane tipovers, electrocution from
crane contact with power lines, workers being struck by the equipment
or loads, crane collapse because of improper assembly, and other
hazards associated with the operation of cranes in construction work.
The crane standard added many new provisions, such as requirements to
ensure safe ground conditions

underneath the equipment, mandatory safety devices, distance
requirements from power lines, inspection procedures, workplace area
controls to prevent workers from entering hazardous areas, and new
operator certification requirements.
    On October 7, 2010, the Association of American Railroads and a
number of individual railroads (hereafter collective referred to as
``AAR'') filed a petition challenging the rule. That petition remains
before the United States Court of Appeals for the District of Columbia
Circuit (Case No. 10-1386), but after AAR provided more background and
additional information about existing practices in the railroad
industry, the parties reached a settlement in which OSHA agreed to
issue an interpretation of its standard as it relates to ground
conditions for railroads \1\ and to propose the revisions to the
regulatory text of the crane standard included in this proposal (see
Docket ID: OSHA-2015-0012-0002). The settlement followed extensive
discussions with AAR and officials from the Federal Railroad
Administration and the principal labor organization representing
affected employees, the Brotherhood of Maintenance of Way Employees.
OSHA also reviewed the settlement with the Brotherhood of Railroad
Signalmen. In deciding to enter into the settlement, OSHA acknowledged
the lack of a record of significant injuries or fatalities resulting
from the use of cranes or derricks for railroad track construction and
maintenance and the consensus between labor and management groups that
the proposed exemptions and alternatives would continue practices
generally accepted as safe in the railroad industry. The settlement was
narrowly tailored to address the aspects of the railroad industry that
differ significantly from the more typical construction work covered by
the standard.
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    \1\ See Nov. 14, 2014 letter to AAR Counsel Jill Hyman Kaplan,
Esq., available at www.osha.gov.
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    The proposed revisions include two groups of exemptions: One for
certain equipment with low-hanging attachments used to perform track
work, and a second for certain requirements applicable to all railroad
machines used in track construction and covered by OSHA's standard. The
settlement contains draft regulatory language, which forms the basis of
this proposal, but OSHA did not commit to a specific final regulatory
action as part of the settlement and seeks public comment on this
proposal. AAR has agreed to move to dismiss its petition within seven
days of OSHA's publication of a final rule addressing these issues.

III. Summary and Explanation of the Proposed Standard

    OSHA has long classified work performed to place or repair
significant sections of railroad track, ties, and roadbed as
construction activity subject to OSHA's construction standards in 29
CFR part 1926.\2\ The railroad industry relies on a number of different
pieces of equipment to deliver and position the ballast rock that
supports the railroad ties, the ties that support the rail, and the
rail itself. Most of this equipment falls within the scope of OSHA's
Cranes and Derricks Standard in subpart CC because it is ``power
operated equipment'' and includes some form of hoisting device that
allows the equipment to be used to ``hoist and lower and horizontally
move a suspended load'' (see 29 CFR 1926.1400(a)). Railroads also use
the equipment to install railway signal posts and to keep the tracks
and the areas immediately alongside the track free from debris and
other impediments to trains.
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    \2\ See, e.g., Sec'y of Labor v. Consolidated Rail Corp. (May
28, 1981), 9 OSHC Cas. (BNA) 1892, 1981 OSHD (CCH) P 25421, 1981 WL
18909; see also Memorandum for Regional Administrators, Construction
vs. Maintenance, From James W. Stanley (August 11, 1994), available
at www.osha.gov.
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    The railroad industry classifies this equipment collectively as
``roadway maintenance machines,'' which are defined in Federal Railway
Administration (FRA) regulations as devices ``powered by any means of
energy other than hand power . . . being used on or near railroad track
for maintenance, repair, construction or inspection of track, bridges,
roadway,\3\ signal, communications, or electric traction systems.
Roadway maintenance machines may have road or rail wheels or may be
stationary'' (49 CFR 214.7). AAR provided examples of common forms of
this equipment, with photos, in a memorandum to OSHA (see Docket ID:
OSHA-2015-0012-0006).
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    \3\ The ``roadway'' referenced in this definition does not refer
to a road over which cars or trucks would travel; within the
railroad industry it refers to the area encompassing the tracks,
track support, and nearby items that could foul the track (see,
e.g., the definition of ``roadway worker'' in 49 CFR 214.7).
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A. Exemption for Flash-Butt Welding Trucks and Equipment With Similar
Attachments

    Flash-butt welding trucks are roadway maintenance machines with
low-hanging workhead attachments. These machines are equipped with an
attachment designed to suspend and move a welding workhead low and
close to the rails in order to weld precisely two sections of rail
together. Other machines that would fall within this proposed exemption
are similarly designed to suspend and move specific operation workheads
low to the rails. This class of machines does not have any other
hoisting device. AAR provided examples of these machines (see Docket
ID: OSHA-2015-0012-0008).
    Because these machines are not capable of raising and suspending
the workhead more than a few feet above the ground or roadbed, and the
weight and structure of the workhead does not appear to present any
danger of equipment tipover at any point during the workhead's full
range of motion, OSHA preliminarily accepts AAR's assertion that
equipment in this class does not present the types of safety hazards
that OSHA intended to address in its crane standard. Therefore, given
that it does not appear to compromise worker safety, OSHA proposes to
revise Sec.  1926.1400(c) to expressly exempt flash-butt welding trucks
and ``other railroad roadway work machines equipped only with hoisting
devices used to suspend and move their workhead assemblies low and
close to the rails.'' OSHA requests comment on this proposed exemption.

B. New Section 29 CFR 1926.1442 To Address Railroad Equipment

    Existing section 1926.1442, which addresses severability, is
currently the last section of the crane standard. OSHA proposes to re-
designate the severability provision as Sec.  1926.1443 to enable the
addition of a new Sec.  1926.1442 dedicated to the railroad roadway
maintenance machines addressed in this proposed rulemaking.
    OSHA's crane standard, 1926 Subpart CC, is organized so that
generalized requirements affecting cranes and derricks in construction
come first in the subpart. The bulk of the standard is composed of
these generalized requirements, such as those governing ground
conditions; various assembly/disassembly requirements; safety devices
and operational aids; crane/derrick operations; work area control;
keeping clear of the load; and operator qualification and
certification. Additional sections focus on specific types of
equipment, such as tower cranes and overhead and gantry cranes, and
small equipment with a rated hoisting/lifting capacity of 2,000 pounds
or less. There are also railroad-specific exceptions and requirements
in various sections.\4\
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    \4\ Existing railroad provisions in the crane standard include
exemptions from ground condition and inspection requirements as set
forth in Sec. Sec.  1926.1400(h), 1926.1402(f), and
1926.1412(d)(1)(x) and (d)(1)(xiii); restrictions on locomotive
crane movements in Sec.  1926.1417(z); and an exception from the
signal transmission requirements in 1420(b)(2).

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    Rather than insert various railroad roadway machine exceptions
throughout Subpart CC, the proposal consolidates them into a single
section (Sec.  1926.1442) for the convenience of affected parties and
to maintain the organizational integrity of Subpart CC. As proposed,
aside from the Sec.  1926.1400(c)(18) exclusion for flash-butt welding
trucks and similar equipment, Sec.  1926.1442 would contain all the new
proposed provisions addressed through the settlement, all of which are
provisions with which OSHA preliminarily agrees.

C. Scope of New Sec.  1926.1442

    OSHA's proposed limited exemptions for railroads in Sec.  1926.1442
would apply to work on the construction of railroad tracks and
supporting structures (the railroad ties supporting the tracks, the
ballast and road bed that support the track and ties, and the poles and
other structures on which railroad signal devices and signage are
mounted). AAR explained that these construction activities are
typically performed using equipment created specifically for railway
work or specially modified for that purpose (Docket ID: OSHA-2015-0012-
0007). AAR also explained that this specialized equipment is not
typically used for construction of buildings, retaining walls, fences,
or platforms controlled by railroads, or for other more traditional
types of construction work related to railroads. Rather, those
traditional construction activities are often contracted out to
construction firms and typically involve standard construction
equipment. OSHA is not proposing any new or special treatment for
equipment used to conduct these traditional construction activities
that are not related to track work. OSHA is not aware of any need for
additional exceptions, and OSHA is not aware of any significant
differences in the hazards of using railroad equipment for these
purposes than for similar projects in other industries.
    Proposed Sec.  1926.1442 accomplishes the limitation in two ways.
First, this new Sec.  1926.1442(a) states that it only applies to
equipment meeting the 49 CFR 214.7 definition of ``Roadway Maintenance
Machine,'' which includes a functional component focused on track work
(machines ``being used on or near railroad track for maintenance,
repair, construction or inspection of track, bridges, roadway, signal,
communications, or electric traction systems''). Thus, a crane owned by
a railroad would not meet the definition of a roadway maintenance
machine when engaged in constructing a building or railway platform,
but the same crane could later meet the definition if used to install
railway track.
    Second, proposed Sec.  1926.1442(a) explicitly excludes roadway
maintenance machines engaged in bridge work from the limited exemptions
in that section. The use of cranes and derricks on bridges exposes
workers to the same hazards as in other construction work, and Subpart
CC addresses those hazards without exceptions. Proposed Sec.
1926.1442(a) makes clear that employers engaged in bridge work would
still be required to comply with all of the applicable Subpart CC
requirements for cranes or derricks used during that work even when
using roadway maintenance machines. Worker safety remains paramount.
Bridge construction work encompasses work on bridges supporting track
over features such as gullies, highways, rivers, and walkways, along
with work on bridges built over the track to support things such as
structures, automobile roadways, and pedestrian and livestock walkways.
    Subpart CC would continue to apply to all railroad construction
activities, including construction using roadway maintenance machines,
unless one of the proposed exceptions found at Sec.  1926.1442(b) \5\
applies (or one of the existing exceptions in other sections applies).
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    \5\ Proposed Sec.  1926.1442(b) refers to the seven
subparagraphs that lay out proposed exceptions. In the version of
the draft regulatory text attached to the settlement, paragraph (b)
incorrectly referred to six subparagraphs. With AAR's agreement,
OSHA has referenced the correct number (seven) in the proposed rule.
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    For the remainder of this document, references to the proposed
exceptions for roadway maintenance machines or exempt equipment are
intended to refer only to roadway maintenance machines not used for
bridge work.

D. Sec.  1926.1442(b)(1)

    This proposed section would provide exemptions in accordance with
Section 4(b)(1) of the OSH Act, which exempts from the Act the working
conditions of certain Federal and non-Federal employees with respect to
which other Federal agencies exercise statutory authority to prescribe
and enforce occupational safety and health standards.
    Following OSHA's promulgation of the crane standard in Subpart CC,
the FRA promulgated its own training requirements for operators of
roadway maintenance machines equipped with cranes. This FRA rule
included a clear statement in the preamble that after the effective
date of its new rule, ``FRA regulations would apply to operators of
roadway maintenance machines equipped with a crane, rather than OSHA's
regulation related to crane operator qualification and certification
found at 29 CFR 1926.1427'' (79 FR 66460, 66475 (Nov. 7, 2014)). This
FRA action has the effect of prohibiting OSHA, under section 4(b)(1) of
the OSH Act, from enforcing its operator certification requirements
with respect to operators of roadway maintenance machines (including
roadway maintenance machines used for bridge construction).
    The Agency is therefore including in Sec.  1926.1442(b)(1) an
explicit exemption from proposed Sec.  1926.1427 for these operators,
to provide clear notice to employers in the railroad industry who might
not otherwise be aware of the effect of the FRA's rule on OSHA's
standard. Although OSHA's additional operator training requirements in
Sec.  1926.1430 were not explicitly mentioned in the FRA's rule, OSHA
has included the Sec.  1926.1430 operator training requirements in the
proposed Sec.  1926.1442(b)(1) exemption for roadway maintenance
machine operators based on the FRA's statement of intent to exercise
jurisdiction over all aspects of operator training.
    OSHA will also consider an exemption for roadway maintenance
machine operators from operator assessment requirements that it is
separately considering. OSHA initiated a rulemaking on that issue
following the settlement discussions and the FRA final rule; the
rulemaking would revise Sec.  1926.1427 to require employers to
evaluate their operators to ensure competency to operate specific
cranes (see RIN 1218-AC96 in DOL's Fall 2017 Semiannual Regulatory
Agenda). Although the FRA's final rule predated that rulemaking, OSHA
preliminarily reads FRA's statement about replacing ``OSHA's regulation
related to crane operator qualification and certification found at 29
CFR 1926.1427'' as intended to preempt all OSHA requirements that would
apply to the training, certification, and assessment of operators of
roadway maintenance machines. Thus, if OSHA does revise Sec.  1926.1427
to add new operator assessment requirements, OSHA could take action
through this rulemaking or the other operator assessment rulemaking to
clarify that the new requirement would not apply to

roadway maintenance machine operators. OSHA seeks comment on this
issue, and more generally on whether OSHA should include additional
preamble discussion or changes to regulatory text to address issues
arising from section 4(b)(1) of the OSH Act.

E. Sec.  1926.1442(b)(2)

    This provision would provide an exemption from existing Subpart CC
requirements for using rail stops and rail clamps on all Subpart CC-
covered equipment. Those requirements address hazards posed by
locomotive cranes, which can swing loads at varying radii around the
machine and force the machine to tip or move. AAR has explained,
however, that rail stops are not typically used on railroad tracks and
that many roadway maintenance machines are designed to move
continuously over the tracks, so stops would interfere with the normal
function of the equipment. Clamps are used occasionally, but
manufacturers typically require their use when the clamps are needed
for safety purposes. OSHA has not located any record of injuries that
have resulted from the absence of stops or clamps on railroad equipment
used during track construction and accordingly, because it appears that
worker safety would not be compromised, proposes a partial exemption
from the rail clamp or stop requirement.
    The proposed Sec.  1926.1442(b)(2)(i) and (ii) would exempt
employers using roadway maintenance machines while performing OSHA
regulated construction activities from the requirement for rail stops
while performing construction activities and would mandate the use of
rail clamps only when required by the manufacturer, in accordance with
existing railroad practices. If a machine's manufacturer requires using
rail clamps, then the employer would have two options: (1) Ensure that
the clamps are used; or (2) operate without clamps only if a registered
professional engineer (RPE) determines that the clamps are not
necessary. OSHA includes the proposed RPE requirement to address
concerns raised by AAR that, because railroad equipment often
represents only a small percentage of a crane manufacturer's market and
is often specially modified for railroad use, the manufacturers are
often not responsive to requests for approval of modifications or
exceptions from general requirements developed for non-railroad use. An
option for RPE approval thus could provide an alternative measure of
safety while accommodating that aspect of railroad roadway operations.
RPE approval is required, or allowed as an alternative, in a number of
provisions of OSHA's crane standard (see, e.g., Sec. Sec.  1926.1404(j)
and (m)(1)(i); 1417(b)(3); 1434(a)(2)(i); 1435(f)(3)(ii)).
    OSHA also requests comment on whether the language of the proposed
exception is clear and welcomes suggestions for clarifying it. For
example, would it be clearer if OSHA replaced the ``except/unless''
construct with a more lengthy provision like the following: ``(i) The
requirement for rail clamps in Sec.  1926.1415(a)(6) does not apply
when clamps are not required by the manufacturer. When a manufacturer
requires rail clamps, the employer is not required to use them if a
registered professional engineer determines that rail clamps are
unnecessary''?

F. Sec.  1926.1442(b)(2)(iii)

    This section would clarify that the requirements of Sec.
1926.1424(a)(2) do not apply to certain employers. These requirements
cover work-area controls to prevent employee injuries from the movement
of the crane, such as the rotation of the crane structure as it moves a
load laterally. Most of the methods of work area control involve
cordoning off a work area to ensure that employees do not enter
hazardous areas during crane operations. In the railroad industry,
however, equipment is often continuously moving down a railroad track,
so physically fixed controls would be difficult to implement. The FRA
also requires employers to file a written safety program that addresses
work-area safety for FRA approval (see 49 CFR 214.307(b)). Thus,
although existing Sec.  1926.1424(a)(2) allows employers to use signage
in combination with special training where it is infeasible to erect a
cordon, it is not clear how that alternative would comport with
existing FRA requirements or what safety benefit it would add. The FRA
already has a mechanism by which it can ensure that employers put in
place protections to prevent the types of hazards that OSHA intended to
prevent through its work-area control requirements. OSHA believes that,
with respect to employers required to submit on-track safety programs
with the FRA, the FRA's program preempts the work-area-control
requirements in OSHA's crane standard based on the preemption
provisions of 4(b)(1) of the OSH Act. Thus, proposed Sec.
1926.1442(b)(2)(iii) states that Sec.  1926.1424(a)(2) does not apply
to any railroad employers that are required to implement an FRA-
approved on-track safety program. OSHA notes that although the proposed
regulatory text only explicitly addresses such employers when they
actually implement such a plan, OSHA expects that it would be preempted
from enforcing its 1926.1424(a)(2) requirements even if the employer
failed to file or implement a program with the FRA because the FRA has
exercised its jurisdiction with respect to those employers. OSHA is
considering adding language in the final rule to clarify that such
employers would also be exempt.
    OSHA's is also proposing to exempt from its Sec.  1926.1424(a)(2)
requirements employers who are not required to implement an FRA-
approved on-track safety program but who are nevertheless implementing
such a protective program, because the FRA program would provide safety
protections for employees. Employers who are not required to implement
a FRA-approved program and are not implementing one would be required
to comply with OSHA's Sec.  19126.1424(a)(2) requirements.

G. Sec.  1926.1442(b)(3)

    This proposed section would exempt roadway maintenance machines
from existing restrictions on out-of-level work. These restrictions,
including the requirements to comply with manufacturer out-of-level
procedures in Sec.  1926.1402(b), the inspection requirements in Sec.
1926.1412(d)(l)(xi), and the requirement that machines have out-of-
level indicators in Sec.  1926.1415(a)(l), address the risk of
equipment tipover and loss of control of the load.
    OSHA has preliminarily determined that the prohibition on out-of-
level work is not practical for railroad roadway track work. In
addition to thousands of miles of straight and level track, much curved
track is banked and many other miles of track are inclined, as are the
structures or road bed supporting the track. In 2010, OSHA responded to
the unique railroad conditions with an exception to the out-of-level
work prohibition for railroad equipment, but limited the exception to
include only equipment traveling on the tracks (see Sec.
1926.1402(f)). Following the rulemaking, AAR explained that many
roadway maintenance machines, like a swing loader crane, often travel
next to the track (as opposed to on it) but frequently must work out-
of-level because the ballast and road bed are sloped. These cranes
typically lift loads, which are well below the crane capacity, only a
few feet off the ground and thus do not present the same type of risks
as more traditional uses of cranes in construction. Both the relevant
labor organizations and FRA

representatives acknowledged that out-of-level operation is
longstanding and necessary practice in the industry. AAR explained that
industry practices already account for load-chart adjustments and other
standard practices to address out-of-level work, and OSHA is proposing
alternative measures to ensure that the work can be performed safely.
    OSHA accordingly proposes in Sec.  1926.1442(b)(3)(i) and (ii) to
allow out-of-level operation when two conditions are met. First, either
the manufacturer must approve or modify the equipment to allow out-of-
level work, or a registered professional engineer qualified with
respect to the particular equipment must approve the out-of-level work
for the equipment. Second, the employer must abide by the limitations
and other requirements specified by the manufacturer or the engineer,
or comply with a load chart modified by a qualified person for the
approved out-of-level work. While OSHA expects the qualified person
generally to follow the requirements established by the manufacturer or
registered professional engineer, given the many unique areas of
railroad work, in some cases a manufacturer or engineer might not have
accounted for a particular activity that would require an additional
adjustment to the load chart. OSHA included the option of allowing a
qualified person to make additional adjustments to the load chart so
that the employer would not need to stop work and locate an RPE every
time an additional adjustment to the load chart is necessary. OSHA
requests comment on whether OSHA should provide additional guidance
about the types of adjustments that a qualified person may make and the
extent to which the manufacturer or RPE must spell out its approval for
out-of-level work.
    OSHA has drafted this exemption to include a parenthetical naming
the particular sections as follows: ``The restrictions on out-of-level
work (including the requirements in Sec. Sec.  1926.1402(b),
1926.1412(d)(l)(xi), and 1926.1415(a)(l)), and the requirements for
crane-level indicators and inspections of those indicators do not apply
when [lists circumstances].'' But OSHA is considering relocating all or
part of the parenthetical to follow ``those indicators'' given that
Sec.  1926.1415(a)(1) addresses requirements for crane-level indicators
and inspections of those indicators, but does not otherwise address
restrictions on out-of-level work. Under this option, the sentence
would read ``The restrictions on out-of-level work, and the
requirements for crane-level indicators and inspections of those
indicators (including the requirements in Sec. Sec.  1926.1402(b),
1926.1412(d)(l)(xi), and 1926.1415(a)(l)), would not apply when . . .
.'' OSHA requests comment on which approach would be clearer.
    In addition to the exemption described above, this proposed section
includes a ``grandfathering'' provision to exempt roadway maintenance
machines from all out-of-level prohibitions if the machines were
purchased before OSHA's crane standard took effect on November 8, 2010.
AAR explained that older machines represent the vast majority of
equipment currently used in the railroad industry and has expressed
concern about the cost of obtaining manufacturer or RPE approval for
out-of-level work for that number of pieces of equipment. Based on the
lack of reported safety incidents involving these machines, OSHA has
preliminarily determined to include an exemption for them. As a result
of this exemption for older equipment, railroad employers would be able
to focus their resources on obtaining manufacturer approval as part of
the process of purchasing new equipment and focusing RPE expertise on
equipment that has not already been as time-tested.
    OSHA is also proposing a ``grandfathering'' provision for the
requirements in Sec.  1926.1415(a)(1) that all covered equipment have a
built-in level or a level available on the equipment and that employers
inspect such level indicator to confirm that it is functioning properly
(Sec.  1926. 1412(d)(1)(xiv)). AAR informed OSHA that most roadway
maintenance machines were manufactured prior to OSHA's promulgation of
the crane standard in 2010, and are not currently equipped with level
indicators. AAR objected to the cost of retrofitting them with such
leveling equipment if such equipment would be allowed to operate out-
of-level because they were grandfathered out of the out-of-level
requirements. OSHA included the requirement for a level to ensure that
the equipment operator would be able to comply with the restrictions on
out-of-level work, so OSHA preliminarily agrees that there would be
little purpose to requiring a level on the equipment if the out-of-
level restrictions do not apply. Therefore, in addition to the
exception for out-of-level work, OSHA is also proposing a
``grandfather'' provision that would relieve railroad employers of the
requirement to include or inspect crane-level indicators on roadway
maintenance machines purchased before the effective date of OSHA's
construction crane standard (November 8, 2010). OSHA expects that
equipment purchased after that date will already be equipped with a
level to comply with OSHA's crane standard.
    OSHA requests comments on its proposed grandfathering exemptions
from out-of-level prohibitions and associated level indicator and
indicator inspection requirements. It also requests comments on whether
used equipment originally purchased before November 8, 2010, but resold
at a later date should be entitled to these grandfathering exceptions.
OSHA also requests comment on whether the ``grandfathering'' provisions
should be conditioned on other factors, such as a certain number of
years of safe use or evidence of regular maintenance on the machine.
The Agency further requests any data on these subjects that could
better inform its decision making.

H. Sec.  1926.1442(b)(4)

    Dragging a load sideways. The proposed Sec.  1926.1442(b)(4)
exemption provides relief from the prohibition in Sec.  1926.1417(q)
against using cranes or derricks to drag a load sideways. AAR informed
OSHA that an existing practice during many track construction projects
for roadway maintenance machines is to drag rail or ties sideways. AAR
explained that the practice of dragging long pieces of rail sideways
off of the ties or to position them on top of the ties is routine and
critical to the process, does not have a ready alternative, does not
involve lifts more than a few feet off of the ground, and the movement
of the load is predictable because the procedure is repeated over and
over with the same materials. OSHA has not located any record of
injuries resulting from the longstanding practice of using railroad
equipment during track construction and accordingly proposes an
exemption from the new prohibition on dragging a load sideways.

I. Sec.  1926.1442(b)(5)

    Boom-hoist limiting device. This proposed section would clarify
existing Sec.  1926.1416(d)(1), which requires equipment manufactured
after December 16, 1969, to have a boom-hoist limiting device.
Traditionally, boom hoists wind wire rope around a revolving drum. They
continue to wind until stopped by the operator, a limiting device, or
by damaging the machine. The process is somewhat analogous to a
fisherman winding line on a rod and reel: If too much winding occurs,
the lure is pulled into the rod tip; more winding bends and breaks the
rod or detaches the lure. The limiting device prevents similar results
on boom hoist

equipped cranes and derricks by automatically stopping the winding. On
hydraulic cylinder/piston equipped booms, the Sec.  1926.1416(d)(1)
requirement for a limiting device is redundant because the stroke or
piston travel is an inherent limit in each cylinder/piston. OSHA
proposes Sec.  1926.1442(b)(5) to clarify that roadway maintenance
machines using a hydraulic piston for raising and lowering the boom do
not need a separate boom-hoist limiting device. The addition of this
provision should not adversely affect worker safety.

J. Sec.  1926.1442(b)(6)

    Manufacturer guidance for modifications covered by Sec.  1926.1434.
The proposed rule would modify the application of Sec.  1926.1434,
which requires employers to obtain and follow equipment manufacturer's
guidance for equipment modifications except in certain circumstances,
for the railroad roadway context. Many roadway maintenance machines are
modified for railroad use. AAR stated that some manufacturers of these
machines no longer exist and others are often reluctant to approve
modifications for a variety of reasons, including liability concerns
arising from their lack of expertise in railroad operations. AAR argued
that employers in the railroad industry are best suited to oversee the
safety of railroad equipment modification based on their long history
of safe operation with modified equipment. OSHA agrees that given the
unique nature of the railroad industry and the equipment used for track
work, it would be appropriate to simplify how a railroad employer may
use modified equipment without involving the manufacturer, but
continuing to include safety assurances. Modifications covered by this
exception would include: Alterations to the physical structure of the
equipment and modifications to the use of the equipment, such as adding
metal wheels for operation on railroad tracks, increasing charted
capacity by shortening and strengthening the lattice boom, or
increasing reach by lengthening the boom and reducing charted capacity.
    According to proposed Sec.  1926.1442(b)(6), an employer may use
modified railroad roadway maintenance equipment regardless of
manufacturer guidance when three conditions are met. First, an RPE
qualified with respect to the equipment must approve the procedure,
modifications, addition, or repair; specify the equipment
configurations described in the approval; and modify applicable
procedures, load charts, manuals, instructions, plates, tags, and
decals. Second, the employer must operate the equipment within the
specifications and limitations set by the engineer. Third, taking into
account the modifications and procedures, the equipment's safety factor
must remain at or above 1.7 for the structural integrity of the boom,
or 1.25 for stability, unless the original safety factors were lower.
The ``safety factor'' of the equipment is a common term used to assess
the strength and stability of cranes, and OSHA derived these safety
factors based on its engineering judgment. OSHA believes that these
safety factors can be readily determined by an engineer based on
documentation and analyses. The language of this exception was based on
the existing provision in Sec.  1926.1431(a)(2) allowing employers to
modify equipment when a manufacturer refuses to review the request. In
some cases, equipment manufacturers specify safety factors less than
1.7 and 1.25. In those cases, the employer could rely on the
manufacturer's specifications. But if the original safety factor of the
equipment is not available or was originally set at or higher than 1.7
or 1.25, the proposed exception would allow equipment modifications
resulting in a safety factor no lower than 1.7 for the structural boom
and 1.25 for stability, subject to the other provisions of the
exception (RPE approval). OSHA requests comments on this proposed
exception, including the safety factors and the proposal to allow
compliance with lower manufacturer-specified values. OSHA also requests
comment on whether the structure of proposed paragraph (b)(6)(i) would
be improved by moving the last clause of subparagraph (A), ``and
specifies the equipment configurations to which that approval
applies;'' to a separate subparagraph (B) to make it clearer that this
is a separate requirement (proposed subparagraph (B) would be re-
designated as subparagraph (C)).

K. Sec.  1926.1442(b)(7)

    Other manufacturer guidance. This proposed exception would apply to
several other sections of Subpart CC that require employers to follow
manufacturer's guidance, instructions, procedures, prohibitions,
limitations, or specifications. The restrictions are found in
Sec. Sec.  1926.1404(j), (m), or (q); 1926.1417(a), (r), (u), or (aa);
1926.1433(d)(l)(i); and in 1926.1441. The proposed exemptions in Sec.
1926.1442(b)(7) would allow employers to use roadway maintenance
machines without regard for the manufacturer's listed restrictions if
the following conditions are met: (1) An RPE familiar with the
equipment provides a written determination of the appropriate
limitations for equipment use; and (2) the employer does not exceed
those limitations. Like the exemption in proposed Sec.  1926.1442(b)(6)
above, this proposed exemption responds to practices in the railroad
industry of modifying equipment from manager specifications for the
unique needs of railway maintenance. This exemption is intended to
preserve existing use practices in the railroad industry while relying
on the expertise of an RPE familiar with the equipment to ensure the
safety of the equipment for departures from manufacturer guidance. The
exemption also provides employers a means to operate safely in cases
where obtaining manufacturer's approval is impossible, such as when the
manufacturer no longer exists.
    OSHA requests comments on all of the proposed exemptions and their
explanations provided in this document.

L. Requirement for RPE Determinations To Be in Writing

    The agency notes that there is some inconsistency between different
proposed exemptions as to whether required determinations by RPEs or
others must be in writing. For example, proposed Sec.
1926.1442(b)(2)(i) conditions part of the exemption on an RPE
determination that rail clamps are not necessary, but does not
explicitly require that determination to be in writing. Likewise,
proposed Sec.  1926.1442(b)(3)(i) requires RPE approval of out-of-level
work but does not specify that the approval be in writing. However,
proposed Sec.  1926.1442(b)(7)(i) would require written approval from
an RPE for modifications not approved by a manufacturer. OSHA requests
comment on whether it should require all of the determinations and
approvals to be in writing to ensure accurate communication and
facilitate enforcement.

IV. Preliminary Economic Analysis and Regulatory Flexibility Act
Analysis

    Executive Orders 12866 and 13563 require OSHA estimate the
benefits, costs, and net benefits of regulations. Executive Orders
12866 and 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and
the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1532(a)) also require
OSHA to estimate the costs, assess the benefits, and analyze the
impacts of certain rules that the Agency promulgates. Executive Order
13563

emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility.
    The cost savings for employers for this proposed rule are the
difference between the 2010 rule and the residual costs, which is a
savings of $15.7 million per year at a discount rate of 3 percent.\6\
This proposal is not economically significant within the meaning of
Executive Order 12866, nor is it a major rule under the Unfunded
Mandates Reform Act or Section 804 of the Small Business Regulatory
Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.). In addition,
this rule complies with Executive Order 13563.
---------------------------------------------------------------------------

    \6\ At a discount rate of 7 percent the cost savings are $17.0
million per year. Estimates in this economic analysis are derived
from OSHA's economic analysis of the 2010 rule, other public
sources, and a survey performed by AAR of its members and provided
to OSHA under the settlement agreement for use in this analysis
(AAR, 2015). Due to rounding as shown in the text versus the
underlying exact spreadsheet calculations, some text calculations
may vary from the exact presented totals. All dollar amounts in the
text are brought forward to 2017 dollars.
---------------------------------------------------------------------------

    When it issued the final crane standard in 2010, OSHA prepared a
final economic analysis (FEA) to ensure compliance with the OSH Act and
Executive Order 12866 (58 FR 51735) (Sept. 30, 1993). OSHA also
published a Final Regulatory Flexibility Analysis as required by the
Regulatory Flexibility Act (5 U.S.C. 601-612). On September 26, 2014,
the Agency included additional economic analysis when it published a
final rule extending the employer duty to ensure operator competency
and the deadline for all crane operators to become certified (79 FR
57785.) Because OSHA did not have sufficient data at the time, OSHA did
not include in either rulemaking a complete assessment of the economic
impact on the railroad industry.
    This preliminary economic analysis (PEA) not only addresses the
economic impact of the proposed revisions to the crane standard, but
also completes the analysis of the impact of the entire crane standard
on the railroad industry. This analysis relies primarily on the same
methodology applied to other industries in the 2010 economic analysis
of the crane standard. In conducting that analysis, the Agency relies
mainly on the best available economic data provided by AAR to the
Agency as part of its settlement agreement. The Agency provided a list
of questions to AAR, which then surveyed Class I freight railroad
members and returned the results, along with other general responsive
information, to OSHA. Those responses (referenced as AAR 2015) as well
as some estimates from the economic analysis supporting the September
26, 2014, operator certification deadline extension final rule form the
basis of this PEA.
    The proposed exemptions would relieve the railroad industry of
several cost burdens related to the crane standard. OSHA estimates that
the 2010 rule would have cost the railroad industry $24.2 million
annually. The residual costs the industry would still face after
factoring in the exemptions in this proposed rule would be $8.5 million
per year. Finally, the cost savings for employers for this proposed
rule are the difference between the 2010 rule and the residual costs,
which is a savings of $15.7 million per year. These estimates are at a
discount rate of 3 percent. At a discount rate of 7 percent the
economic analysis of the 2010 rule would have costs of $25.6 million
annually. The residual costs the industry would still face with the
regulatory changes in this proposed rule would be $8.6 million per
year. Finally, the cost savings for employers for this proposed rule
are the difference between the 2010 rule and the residual costs, which
is a savings of $17.0 million per year. When the Department uses a
perpetual time horizon to allow for cost comparisons under E.O. 13771,
the annualized cost-savings of this proposed rule is the same: $17.0
million with 7 percent discounting.

a. Scope of the Exemption

    The railroad industry is typically divided into three ``classes''
of railroads according to a revenue-based classification scheme
developed by the Surface Transportation Board (STB).\7\ Class I
railroads are the largest railroads with the greatest amount of revenue
and primarily comprise seven large freight railroads and the Amtrak
passenger train service. They operate the vast majority of track across
the country. Class II and III railroads are smaller freight railroad
companies, various commuter lines, and other specialty lines that
operate much smaller sections of track or operate on track owned by the
larger railroads.
---------------------------------------------------------------------------

    \7\ See 49 CFR 1201, General Instructions 1-1. Class I railroads
are those with annual carrier operating revenues of more than $250
million, Class II railroads are those with operating revenues
between $20 million and $250 million, and Class III railroads have
annual revenues less than $20 million.
---------------------------------------------------------------------------

    OSHA has imperfect information about the three classes of
railroads. The AAR survey only covered the Class I freight railroads.
AAR was also able to provide some additional information it obtained
from Amtrak, but due to the patchy nature of national statistics for
the railroad industry, OSHA has not been able to obtain corresponding
data for Class II and Class III railroads.
    Therefore, for this NPRM, the Agency has used indirect estimates to
scale up partial data to create estimates for the industry as a whole.
The U.S. Department of Transportation states that Class I freight
railroads operated 94,400 miles (68%) of the 139,400 total miles in the
U.S. system.\8\ Amtrak stated that it maintains 852 miles of track
(Amtrak, 2017). In combination with Class I freight track, the total
Class I track estimate is therefore 95,252 (94,400 miles operated by
Class I freight + 852 miles operated by Amtrak) out of the total U.S.
track of 139,400. AAR also stated that its members operate 6,935
machines that might fall within the scope of OSHA's crane standard
(AAR, 2015), and Amtrak stated that it operates 303 machines that might
fall within that standard (Amtrak, 2017). Assuming that non Class-I
railroads use machines in the same way as Class I, OSHA is able to
estimate the total number of potentially covered equipment by scaling
up the total number of Class I machines by the ratio of total track to
Class I track, or 1.46 (139,400/(94,400 + 852)).\9\ With the total
number of Class I machines at 7,238 (6,935 freight + 303 Amtrak), the
final estimate of all railroad industry machines is 10,593 (7,238 x
1.46). To the extent that Class I railroads perform track work for
other segments of the railroad industry, this markup will be an
overestimate. The Agency solicits comment and any further data on this
issue.
---------------------------------------------------------------------------

    \8\ ``The United States had almost 140,000 railroad route-miles
in 2014, including about 94,400 miles owned and operated by the
seven Class I freight railroads. Amtrak, local, and regional
railroads operated the remaining 45,000 miles.'' (DOT/BTS, 2016, p.
16 (internal citation omitted)).
    \9\ From this point forward, this PEA refers to the ratio of
total track to Class I track (1.46) as ``the standard markup''.
---------------------------------------------------------------------------

    Based on information provided by FRA staff from its Office of
Safety Analysis, OSHA estimates that there are a total of 775 railroads
(OSHA discussion with FRA staff, September 9, 2014). AAR reported that
in 2012 the total number of freight railroads, including the 7 Class I
freight railroads, was 574 (AAR, 2014). The remainder of the railroads
are passenger and commuter railroads, intra-plant railroads (that do
not operate on the national freight system), freight car manufacturers,
freight car repair facilities or companies that provide specialized
rail services, and switching and terminal railroads. The Agency

assumes 2012 data continue to approximate industry conditions today.
    To estimate the cost savings from the NPRM exemptions, the number
of machines must be broken out into subcategories. First there is a
small group of Class I machines that would fit into the proposed full
exemption for flash-butt welding trucks and similar equipment under
proposed 1400(c)(18). AAR reported that its members had 22 machines
that would fall within the proposed exemption, (AAR, 2015),\10\ while
Amtrak indicated that none of its equipment would (Amtrak, 2017). Using
the same ratio to account for this exempt equipment in Class II and III
railroads, OSHA estimates that there is a total of 32 pieces of such
exempt equipment across the entire railroad industry (1.46 x 22). Thus,
OSHA estimates that 7,216 (7,238-22) Class I machines, and an industry
total of 10,561 (10,593-32) machines, would fall under at least some
provisions of the crane rule and would not, even upon finalization of
this proposed rule, be completely exempt from the crane standard.
---------------------------------------------------------------------------

    \10\ For the purposes of this analysis, OSHA has treated all
flash-butt welding trucks and similar equipment as covered by the
standard absent the proposed exemption.
---------------------------------------------------------------------------

    Second, OSHA estimates that there are 186 Class I machines
exclusively engaged in bridge work, and a further 269 Class I machines,
including 2 Amtrak machines, used to do both track and bridge work, all
of which would be covered to some extent by the OSHA construction crane
standard (the proposed exemptions do not apply to bridgework). Because
some costs will need to be taken into account if any bridge work at all
is performed by a machine, the Agency took the conservative approach of
lumping together those doing some bridge work with those doing bridge
work exclusively.\11\ OSHA only estimates cost savings for machines
used exclusively for non-bridge work. Thus, the number of Class I
machines that will still need to comply with all of the provisions in
the crane standard (other than the operator training and certification
provisions) is 455 (186 + 269), with an industry total of 666 machines
(455 x 1.46) outside the proposed limited exceptions and covered by the
crane standard.
---------------------------------------------------------------------------

    \11\ The AAR survey asked what percentage of time these dual use
machines and operators were doing track work and the response was
90-95%. Hence for certain costs this allocation of assuming all
their work is on bridges will underestimate cost savings.
---------------------------------------------------------------------------

b. Non-Operator Base Costs of 2010 Crane Standard for Railroads

    Railroads are subject to all requirements of the 2010 crane
standard (unless previously exempted in the 2010 rule or, upon
finalization, specifically exempted through this rulemaking). An
economic analysis of the costs imposed by that standard on the industry
was not presented in the 2010 final rule and is, therefore, presented
here. Table B-9 of the final rule (75 FR 48104) shows that railroads
are in the ``Own but Do Not Rent'' sector of the industry profile. The
Agency estimates the costs of the 2010 rule by using the costs for the
``Own but Do Not Rent'' sector as a proxy for railroad costs, scaling
these aggregate costs by the size of the railroad industry as presented
above. The Agency recognizes this proxy may be imperfect and solicits
comment and additional information regarding these estimates.
    Costs other than certification will be incurred by railroad
employers using equipment covered by OSHA's crane standard. Most 2010
rule provisions other than operator certification and training are not
operator specific, so the Agency estimates the cost of the existing
requirements by identifying the per-crane non-operator cost of the 2010
final rule and applying that cost (inflated to 2017 dollars) to the
number of affected machines in the Railroad sector. Then OSHA
identifies the costs that would be avoided if the proposed exemptions
are adopted.
    The ``Own but Do Not Rent'' sector in Table B-9 (75 FR 48104) has
total operator certification costs of $30,606,452 and overall total
costs of $62,651,984, leaving $32,045,531 in non-certification costs
($62,651,984-$30,606,452).\12\ The ``Own but Do Not Rent'' sector was
listed as having 50,807 cranes and other covered equipment (Table B-11,
75 FR 48107). Thus, excluding operator certification costs, OSHA's 2010
cost estimates for the ``Own but Do Not Rent'' sector amounted to $631
per machine ($32,045,531/50,807). Using the 1.12 GDP deflator factor
this cost brought forward to 2017 dollars is $707 (BEA, 2017).
---------------------------------------------------------------------------

    \12\ In the 2010 rulemaking, OSHA did not include any additional
costs for operator training, other than certification exam
preparation, because operator training was already required under
the previous standard. Thus, this analysis relies exclusively on
operator certification costs as the costs avoided by the exemption
for railroads from OSHA's operator training and certification
requirements.
---------------------------------------------------------------------------

    Based on this per-machine cost of the 2010 rule and the estimate of
10,593 total pieces of railroad equipment covered by the 2010 rule, the
total annual base non-operator cost of the 2010 rule to the entire
railroad industry would be $7,486,362 (10,593 x $706.75; 2017 dollars).
The proposed exception for flash-butt welding trucks and similar
equipment would remove 32 machines and lower the cost in 2017 dollars
to $7,463,607 (10,561 x $706.75), which is a savings of $22,755.
    These are the base non-operator costs only. There are two pieces of
equipment specific to cranes on rails that would have a special impact
on railroads absent the proposed exemptions: Rail clamps and rail
stops. These were not included in the base costs and are addressed
next.

c. Rail Clamps and Rail Stops

    Rail clamps are one type of equipment that would no longer be
required under the proposed exemption. AAR told OSHA that the railroad
industry does not typically use rail clamps for most operations and
indicated that 5,663 additional rail clamps beyond what the Class I
railroad industry currently has in stock would need to be purchased to
comply with the existing rule (AAR, 2015). Further communication from
AAR stated that Amtrak would need 157 additional clamps (Amtrak, 2017).
These rail claims would impose new up-front, maintenance, and
replacement costs on the industry.
    OSHA estimates a total cost for rail clamps of $51,104,943, plus an
additional $4,897,557 for maintenance. OSHA derives these costs first
by applying the standard markup of 1.46 to estimate non-Class I
railroad use clamps as 8,517 (1.46 x (5,663 + 157)). OSHA then
estimates the up-front cost for each unit. AAR's survey reported as
follows: ``The majority of the railroads indicated that the unit cost
for a rail clamp is $5,000-$6,000. However, one of the railroads
contacted a manufacturer and obtained a unit cost of $10,000.'' (AAR,
2015 p. 5). OSHA's costs are estimated to reflect the average costs for
most firms, so the Agency selects the higher-end of the typical cost of
$6,000 from the AAR survey. Therefore, the total cost for rail clamps
would be $51,104,943 (8,517 x $6,000). Annualized over 10 years at a
discount rate of 3%, the annualized cost is $5,991,058. Annual
maintenance costs per clamp are estimated at $575 \13\ for a total
annual maintenance cost of $4,897,557 (8,517 x $575).
---------------------------------------------------------------------------

    \13\ This is the midpoint of the range in the AAR survey of $450
to $700 ($575 = ($450 + $700)/2).
---------------------------------------------------------------------------

    OSHA also estimates annual replacement costs of $3,741,650
associated with the clamp requirement for the railroad industry. From
the (AAR

2015) survey, the number of replacement clamps needed over 10 years for
Class I freight is 4,223. OSHA did not receive an estimate for the
number of replacement clamps that Amtrak or the Class II and III
railroads would use, so the Agency has developed an estimate for
additional replacement clamps based on the ratio of Class I freight
railroad track to all other track. The resulting markup factor for
purely Class I freight track as compared to the entire U.S. railroad
industry track is 1.48 (139,400 miles of total U.S. track/94,400 miles
of Class I freight track). Applying this freight markup to the total
number of replacement clamps produces an estimate of 6,236 for the
entire industry (4,223 x 1.48). If 10% of these clamps are replaced
each year, then with the unit cost equal to the purchase price of
$6,000, annual replacement costs will total $3,741,650 (6,236 x 10% x
$6,000).\14\ Summed together, the annual cost savings for rail clamps
for the railroad industry are $14,630,265 ($5,991,058 initial cost +
$4,897,557 maintenance + $3,741,650 replacement clamps).
---------------------------------------------------------------------------

    \14\ If the total pool of working clamps is kept constant, as we
assume, then the maintenance costs for the replacement clamps are
already accounted for in the annual maintenance costs for the
original pool.
---------------------------------------------------------------------------

    Rail stops are the second type of equipment that would no longer be
required under the proposed exemption. For rail stops, OSHA estimates
total up-front costs of $5,110,494 and maintenance costs of $511,049.
AAR indicated that 11,326 additional rail stops beyond what the Class I
freight railroads currently have in stock would need to be purchased
(AAR, 2015). Amtrak indicated it would need an additional 314 stops
(Amtrak, 2017). The standard (track-based) markup derived earlier in
this PEA and applied to the sum of Class I rail stops and Amtrak rail
stops produces an estimated 17,035 additional rail stops for the entire
industry (1.46 x (11,326 + 314)). The unit cost of a rail stop is $300
each (AAR, 2015); therefore, the total cost of rail stops is $5,110,494
(17,035 x $300). Annualized over 10 years at a discount rate of 3%, the
annual cost is $599,106. Annual maintenance costs per stop are $30
(AAR, 2015); therefore, total maintenance cost is $511,049 (17,035 x
$30).
    OSHA also estimates annual replacement costs of $462,324 associated
with the rail stop requirement for the railroad industry. The number of
replacement stops for the Class I freight railroads needed over 10
years is 10,436 (AAR, 2015). OSHA did not receive information regarding
the number of replacement stops required for Amtrak or the Class II and
III railroads. OSHA again focuses on the ratio of all U.S. railroad
track to Class I freight railroad track, which is 1.48. The number of
replacement stops needed for the whole industry is 15,410 (1.48 x
10,436). If 10% of the replacement stops will be introduced each year
then 1,541 replacement railroad stops will be required each year
(15,410 x .10). The estimate of the annual unit cost for these
replacement stops is the unit cost for buying a new rail stop of
$300.\15\ Hence the total annual cost for replacement rail stops is
$462,324 (1,541 x $300). Summed together, annual cost savings of
railroad stops are $1,572,479 ($599,106 + $511,049 + $462,324).
---------------------------------------------------------------------------

    \15\ As in the preceding footnote, maintenance costs for these
replacement stops will already be accounted for in the maintenance
costs for the original pool under the assumption of a constant total
pool.
---------------------------------------------------------------------------

    Adding the total costs savings of both railroad stops and clamps in
2016 dollars gives $16,202,744 ($14,630,265 + $1,572,479). In year 2017
dollars, the cost savings for both railroad stops and clamps is
$16,704,394.
    The Agency has adjusted these cost-savings estimates to account for
the costs that the railroad industry will incur for rail clamps and
stops related to bridgework because the proposed exemption does not
cover rail clamps and stops used in bridge construction activity. To
adjust for these costs, the Agency proxies rail clamp use on bridges by
AAR's survey responses for such use by machines. Based on the estimates
identified earlier, there are a total of 666 machines engaged in
bridgework out of 10,561 total machines (assuming that flash-butt
machines as not engaged in any bridge work). Hence the estimate of the
share of rail clamps that will be exempted is 94% (10,561-666)/10,561).
The total cost for bridge work for clamps and stops is $1,053,284
($16,704,394 x (1-.94)). That cost will remain for the industry even if
the proposed exemptions are ultimately finalized, but the remaining
rail clamp and rail stop costs would be avoided. The cost savings due
to the proposed exemption for clamps/stops is $15,651,110 ($16,704,394
x .94) in 2017 dollars.

d. Work Area Controls

    OSHA estimates no economic impact from the proposed exemption from
compliance with the crane standard's work-area controls requirements.
FRA already requires a number of work area controls to prevent injury
to those working on or around railroad equipment and OSHA believes that
even if the proposed exemption from work-area controls is not
finalized, the railroads could comply with OSHA's requirements without
incurring significant new costs. Therefore, OSHA is neither identifying
a new cost for this requirement nor treating the proposed exemption as
resulting in any cost saving.

e. Out-of-Level Work

    The 2010 crane rule economic analysis did not estimate any cost
increase due to this provision. Thus, there would be no resulting
savings from this exemption.

f. Dragging a Load Sideways

    The 2010 crane rule economic analysis estimated no increased cost
due to this provision, and OSHA has likewise included no cost saving
from the exemption from it. It is possible that the exemption does
result in significant cost savings: AAR indicated that railroad
equipment regularly needs to drag long portions of rail sideways during
the process of installing or replacing the rail, ties, or underlying
road bed. Therefore AAR asserted that the prohibition on dragging a
load sideways would force railroad employers to substantially change
current practices for track installation and replacement. If such
changes were feasible, they would likely incur significant cost.
However, because OSHA did not previously estimate any increased costs
for this provision, OSHA has not included any cost saving as part of
this rulemaking.

g. Boom-Hoist Limiting Device

    The 2010 crane rule economic analysis estimated that such boom
hoist limiting devices would generally already be in place, where
needed. Hence OSHA did not include any new costs for this requirement
in 2010, so there would be no resulting savings from this exemption.

h. Manufacturer Guidance for Modifications Covered by Sec.  1926.1434

    The 2010 crane rule economic analysis estimated that there would be
no new costs due to this provision because it was similar enough to the
previous Subpart N crane standard. Hence this exemption would produce
no cost savings.

i. Operator Certification and Assessment

    Because the FRA specifically preempted OSHA's operator training and
certification requirements when it issued its own operator training
rules for railroads, the costs of this standard

for operator training and certification do not apply to railroads and
thus the proposed rule would not result in any cost savings. As
discussed in the preamble of this proposed rule, OSHA is also
considering a separate rulemaking that would specify additional
operator assessment responsibilities for each employer. OSHA expects
that FRA's training rule would also preclude the OSHA's assessment
requirements, if promulgated, from impacting railroad employers. At
this juncture, OSHA does not anticipate any cost to railroad employers
as a result of OSHA's requirements for employer assessment of
operators, whether or not OSHA modifies the assessment requirements.

j. Total Cost and Savings From Proposal

    Finally, adding together the rail clamp/stop costs and the base
non-operator costs, the total cost of the 2010 rule is $24,190,756
($16,704,394 + 7,486,362). Factoring in the proposed exemptions, the
total costs that will still be incurred by the industry are $8,516,891
($1,053,284 clamps and stops + $7,463,607 base non-operator costs).
Cost savings of the proposal are $15,673,865 ($24,190,756-$8,516,891).
These calculations are at a discount rate of 3%, using 2017 dollars. At
a discount rate of 7%, the costs would be as follows: Total costs of
$25,648,173, total ongoing costs of $8,608,788, and cost savings of
$17,039,385.

k. Economic Impacts

    This section investigates the economic impacts of this proposal,
whether the proposed rule is economically feasible for the industry as
a whole, and whether the Agency can certify that the proposed rule will
not have a significant economic impact on a substantial number of small
entities. OSHA applies two threshold tests to look at economic
feasibility for firms overall, regardless of size: Whether the rule's
costs as a percentage of revenues for a sector as a whole are below 1
percent, and whether those costs as a percentage of profits are below
10 percent. For small entities there are also two threshold tests:
Whether the costs for small entities are 1 percentage of their revenues
or below, and whether those costs are 5 percent or less of the small
entities' profits. None of these threshold tests are hard ceilings or
determinative; they are guidelines the Agency uses to examine whether
there are any potential economic feasibility issues that require
additional study. As for the overall totals estimated above, the Agency
must use indirect estimates since no public firm-by-firm information
exists.
    The Agency relies on SBA size standards to classify a company as
``small.'' The SBA size standard for a small entity in the railroad
industry is employment of 1,500 or less (SBA, 2016). The seven Class I
freight railroads employ a total of 162,819 employees, or an average of
23,260 employees per firm (162,819/7). The Agency estimates that all 7
freight railroads will be above the 1,500-employee SBA size standard.
Amtrak has more than 20,000 employees, and will also be well above the
small entity threshold (https://www.amtrak.com/about-amtrak/amtrak-facts/amtrak-national-facts.html). While there is likely to be a skew
among non-Class I railroads and some of these freight railroads may
actually exceed the threshold for small businesses, for the purposes of
this analysis the Agency treats all 767 non-Class I firms (775
railroads-8 Class I railroads) as below the SBA size standard of 1,500
employees.
    According to AAR, the Class I freight railroads in 2012 had revenue
\16\ of $67.6 billion out of the total of $71.6 billion for the entire
freight industry, so the share of Class I freight revenues is 94
percent (67.6/71.6), while $4 billion (71.6-67.6) are the revenues for
small freight railroads (AAR, 2014).
---------------------------------------------------------------------------

    \16\ These are freight revenues rather than total revenue. (AAR
2014) only reports freight, rather than total, revenue for non-Class
I railroads. In 2013, Class I freight revenue was 70.5 billion while
total revenue was 72.9 billion, or 97% (70.5/72.9). Using only
freight revenue will give a slight under-estimate of total revenues,
and a slight over-estimate of the final ratio wanted: (costs/
revenue). Because these ratios turn out to be very small, we do not
include any correction for using freight rather than total revenues.
---------------------------------------------------------------------------

    OSHA applied AAR's report of 2012 operating income (profits) for
Class I to estimate the average profits of the non-Class I railroads.
Class I freight railroads' net income was $11.9 billion (AAR, 2014),
and assuming that the Class I net income share was the same as its
operating revenue share, OSHA derives a total freight industry net
income of $12.6 billion ($11.9/.94) in 2012, and hence small freight
railroad total net income of $704 million ($12.6 - $11.9) in 2012. OSHA
did not receive income estimates regarding non-freight railroads, so
applying the standard freight-only markup to those totals to account
for passenger rail, OSHA estimates $18.6 billion ($12.6 x 1.48) and
$1.0 billion ($704 x 1.48), respectively, for total railroad (including
passenger rail) and small railroad net income (including passenger
rail). Using the GDP deflator to convert these amounts to 2017 dollars
results in $19.9 billion and $1.1 billion, respectively.
    Finally, OSHA allocates costs to the small railroads. The share of
employment, rather than revenue, was judged to be the better proxy to
estimate the costs of small railroads. From the information provided
earlier, Class I freight employment is 90% of total freight railroad
employment and the total railroad industry freight costs are $24.1
million, so total small railroad industry costs are $2.4 million ($24.1
million x (1 - .90)). The revenues, profits, and costs are set out in
Table 1.

Table 1 Total and Small Railroad Industry Estimated Financial Statistics
------------------------------------------------------------------------
                 Description                          2017 Dollars
------------------------------------------------------------------------
Revenue:
    Total Revenue............................  $113 billion.
    Small Entity Revenue.....................  6.3 billion.
Profit:
    Total Profit.............................  19.9 billion.
    Small Entity Profit......................  1.1 billion.
Cost:
    Total Cost (existing)....................  24.2 million.
    Total Cost (with proposed exemption).....  8.5 million.
    Small Entity Cost (existing).............  2.5 million.
    Small Entity Cost (with proposed           155,068.
     exemption).
------------------------------------------------------------------------

    The ratio of the proposed rule's costs to revenue for total
railroads is .02% ($24.2m/$113 billion) and for small railroads is .04%
($2.5m/$6.3 billion). The ratio of the proposed rule's costs to profits
for total railroads is .12% ($24.2m/$19.9 billion) and for small
railroads it is .22% ($2.5m/$1.1 billion). Both easily pass OSHA's
standard threshold impacts tests of costs being below 1% of revenue and
10% of profits (5% of profits for small entities.) The proposed
exemptions would drastically lower those costs, so the thresholds would
be even easier to meet. These estimates are scaling several Class I
numbers so the results are sensitive to whether these (scaled) numbers
are representative of the rest of the industry. The Agency requests
comment and further information on these issues.

l. Overhead Cost Adjustment

    The Agency notes that it did not include an overhead labor cost in
the PEA for this rule. It is important to note that there is not one
broadly accepted overhead rate and that the use of overhead to estimate
the marginal costs of labor raises a number of issues that should be
addressed before applying overhead costs to analyze the costs of any
specific regulation. There are several approaches to examine the cost
elements that fit the definition of overhead and there are a range of
overhead estimates currently used within the federal government. For
example, the Environmental Protection Agency has used 17 percent,\17\
and government contractors have been reported to use an average of 77
percent.18 19 Some overhead costs, such as advertising and
marketing, vary with output rather than with labor costs. Other
overhead costs vary with the number of new employees. Rent or payroll
processing costs may change little with the addition of 1 employee in a
500-employee firm, but those costs may change substantially with the
addition of 100 employees. If an employer is able to rearrange current
employees' duties to implement a rule, then the marginal share of
overhead costs such as rent, insurance, and major office equipment
(e.g., computers, printers, copiers) would be very difficult to measure
with accuracy (e.g., computer use costs associated with 2 hours for
rule familiarization by an existing employee).
---------------------------------------------------------------------------

    \17\ U.S. Environmental Protection Agency, ``Wage Rates for
Economic Analyses of the Toxics Release Inventory Program,'' June
10, 2002.
    \18\ Grant Thornton LLP, 2015 Government Contractor Survey.
(https://www.grantthornton.com/~/media/content-page-files/public-
sector/pdfs/surveys/2015/Gov-Contractor-Survey.ashx.).
    \19\ For a further example of overhead cost estimates, please
see the Employee Benefits Security Administration's guidance at
https://www.dol.gov/sites/default/files/ebsa/laws-and-regulations/rules-and-regulations/technical-appendices/labor-cost-inputs-used-in-ebsa-opr-ria-and-pra-burden-calculations-august-2016.pdf.
---------------------------------------------------------------------------

    If OSHA had included an overhead rate when estimating the marginal
cost of labor, without further analyzing an appropriate quantitative
adjustment, and had adopted an overhead rate of 17 percent on base
wages, as was done in a sensitivity analysis in the FEA in support of
OSHA's 2016 final rule on Occupational Exposure to Respirable
Crystalline Silica, such rate would have only affected the non-operator
certification costs estimated from the 2010 rule. Because labor costs
were only part of those costs, including this overhead adjustment would
have increased the average cost per machine from $631 to $684, a 9
percent increase. Using this larger per machine cost in the rest of the
analysis would increase the final cost savings of this proposal from
$15.674 million to $15.676 million at a discount rate of 3 percent, an
increase of .01 percent. It would also have increased cost savings from
$17.039 million to $17.041 million at a discount rate of 7 percent, an
increase of .01 percent.

m. Economic and Technological Feasibility

    All requirements of the proposed rule have now been in place since
the promulgation of the crane standard in 2010, and the only
feasibility issues for the railroad industry raised with OSHA were
addressed through its settlement with AAR. For example, AAR raised
concerns that it would not be feasible for railroads to avoid dragging
rails sideways because this activity is an essential component of
railroad construction. OSHA is now proposing to exempt railroads from
this prohibition in the 2010 crane standard on dragging loads sideways.
The Agency does not have sufficient information to estimate the costs
to the railroad industry of this prohibition. It also does not have
enough data to estimate the cost savings that could result from the
proposed exemption but they could be significant. OSHA requests
information to help it better estimate the cost-saving implications of
this proposed exemption. Beyond the issues raised by AAR and addressed
in the settlement, the Agency is not aware of any special infeasibility
issues that are unique to the railroad industry and the 2010
technological feasibility analysis is equally applicable to the
railroad industry.
    OSHA found that the 2010 final crane standard is feasible for all
affected industries because the ``[c]osts of 0.2 percent of revenues
and 4% of profits will not threaten the existence of the construction
industry, affected general industry sectors, or the use of cranes in
affected industry sectors,'' and no change in the competitive structure
of those industries was expected (75 FR 48112). The above analysis
shows that the cost of the 2010 rule on railroads is 0.02 percent of
revenues and 0.13 percent of profits, and the proposed rule, which
would exempt railroads from many of the requirements of the 2010 rule
would be still less costly. This supports OSHA's finding that the 2010
final rule is economically feasible for all affected industries
(including railroads) and a finding that the OSHA proposal is also
economically feasible. The Agency preliminarily concludes that the
proposed rule is both economically and technologically feasible for the
railroad industry.

n. Certification of No Significant Impact on a Substantial Number of
Small Entities

    In determining that the 2010 final rule would not have a
significant impact on a substantial number of small entities, OSHA
found that in no case would a small entity have to increase prices more
than 0.18 percent or, if costs could not be passed on, absorb costs
comprising more than 5.0 percent of profits (75 FR 47913, 48115). As
discussed above, as applied to small railroads, the 2010 rule would be
just 0.04 percent of revenues and 0.24 percent of costs, which supports
OSHA's 2010 determination as applied to railroads. Because the proposed
rule would exempt railroads from several of the requirements of the
2010 rule, the proposed rule would reduce the cost impact on small
entities. Thus, the Agency certifies that the proposed rule will have
not have a significant impact on a substantial number of small
entities.

References

AAR, 2014. Association of American Railroads, ``Class I Railroad
Statistics,'' July 15, 2014. Available at: https://www.aar.org/StatisticsAndPublications/Documents/AAR-Stats.pdf. (Accessed 12/6/
2017.)
AAR, 2015. Association of American Railroads. ``AAR's Response to
OSHA Economic Questions,'' memo from AAR to OSHA, June 22, 2015.
Amtrak, 2017. Amtrak. ``Amtrak Response to OSHA Economic
Questions,'' via email from AAR (August 8, 2017, and November 2,
2017).

BEA, 2017. Bureau of Economic Analysis, Table 1.1.9. Implicit Price
Deflators for Gross Domestic Product. Available at http://www.bea.gov/iTable/iTable.cfm?ReqID=9&step=1#reqid=9&step=3&isuri=1&904=1995&903=13&906=a&905=2016&910=x&911=1. (Accessed March 23, 2017.)

USDOT/BTS 2016. U.S. Department of Transportation, Bureau of
Transportation Statistics, ``Transportation Statistics Annual Report
2016,'' Washington, DC: 2016. Available at https://www.bts.gov/sites/bts.dot.gov/files/docs/TSAR_2016.pdf.
OSHA, 2016. Occupational Safety and Health Administration, Operator
Certification Notice of Proposed Rulemaking, Summary and Economic
Analysis.
SBA, 2016. Small Business Administration, ``Table of Small Business
Size Standards Matched to North American Industry Classification
System Codes,'' February 2016.

V. Legal Considerations

    The purpose of the Occupational Safety and Health Act of 1970 (29
U.S.C. 651 et seq.) is ``to assure so far as possible every working man
and woman in the nation safe and healthful working conditions and to
preserve our human resources.'' 29 U.S.C. 651(b). To achieve this goal,
Congress authorized the Secretary of Labor to promulgate and enforce
occupational safety and health standards. 29 U.S.C. 654(b), 655(b). A
safety or health standard ``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 or places of employment.'' 29 U.S.C. 652(8). A standard is
reasonably necessary or appropriate within the meaning of Section
652(8) when a significant risk of material harm exists in the workplace
and the standard would substantially reduce or eliminate that workplace
risk. See Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S.
607 (1980). In the 2010 crane rulemaking, OSHA made such a
determination with respect to the use of all cranes and derricks in
construction, including cranes used in the railroad industry (75 FR
47913, 47920-21). This proposed rule includes a number of exemptions
and does not impose any new requirements on employers. Therefore it
does not require an additional significant-risk finding (see Edison
Elec. Inst. v. OSHA, 849 F.2d 611, 620 (D.C. Cir. 1988)).
    In addition to materially reducing a significant risk, a safety
standard must be technologically feasible. See UAW v. OSHA, 37 F.3d
665, 668 (D.C. Cir. 1994). A standard is technologically feasible when
the protective measures it requires already exist, when available
technology can bring the protective measures into existence, or when
that technology is reasonably likely to develop (see Am. Textile Mfrs.
Inst. v. OSHA, 452 U.S. 490, 513 (1981); Am. Iron & Steel Inst. v.
OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991)). In the 2010 Final Economic
Analysis for the crane standard, OSHA found the standard to be
technologically feasible (75 FR 48079). Also, this proposed rule is
technologically feasible because it would not require employers to
implement any additional protective measures. Instead, it would offer
employers new compliance alternatives and exemptions.

VI. Office of Management and Budget Review Under the Paperwork
Reduction Act

A. Overview

    The purposes of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
et seq., include enhancing the quality and utility of information the
Federal government requires and minimizing the paperwork and reporting
burden on affected entities. The PRA requires certain actions before an
agency can adopt or revise a collection of information (also referred
to as a ``paperwork'' requirement), including publishing a summary of
the collection of information and a brief description of the need for,
and proposed use of, the information. The PRA defines ``collection of
information'' as ``the obtaining, causing to be obtained, soliciting,
or requiring the disclosure to third parties or the public, of facts or
opinions by or for an agency, regardless of form or format'' (44 U.S.C.
3502(3)(A)). Under the PRA, a Federal agency may not conduct or sponsor
a collection of information unless it is approved by the Office of
Management and Budget (OMB) and displays a currently valid OMB control
number, and the public is not required to respond to a collection of
information unless it displays a currently valid OMB control number (44
U.S.C. 3507). Also, notwithstanding any other provisions of law, no
person shall be subject to penalty for failing to comply with a
collection of information if the collection of information does not
display a currently valid OMB control number (44 U.S.C. 3512).

B. Solicitation of Comments

    The ``Cranes and Derricks in Construction: Railroad Roadway Work''
proposal would establish new information-collection requirements. The
proposal would also modify a number of information-collection
requirements in the existing Cranes and Derricks in Construction
Standard (29 CFR part 1926, subpart CC) Information Collection (IC)
approved by OMB.
    Some of these revisions, if adopted, would result in changes to the
existing burden-hour and/or cost estimates associated with the
currently OMB-approved information-collection requirements contained in
the Cranes and Derricks in Construction Standard Information
Collection. The proposed rule would also revise existing standard
provisions that are not information-collection requirements. Those
revisions are not addressed in this preamble section.
    Concurrent with publication of this proposed rule, OSHA prepared
and submitted a revised Cranes and Derricks in Construction Standard
(29 CFR part 1926, subpart CC) Information Collection Request (ICR)
reflecting the NPRM's new information collection-requirements to OMB
for review under control number 1218-0261. When and if the final rule
is published, OSHA will submit a revised ICR for the final Cranes and
Derricks in Construction Standard that will include railroad roadway
work to OMB for approval. Pursuant to the PRA, the public may comment
directly to OMB on the information-collection (paperwork) requirements
during a 30-day period following the submission of the document to OMB.
This comment period is in addition to the opportunity for the public to
provide comments directly to the agency.
    The Agency and OMB solicit comments on the Cranes and Derricks
Standard information-collection requirements as they would be
established or revised by this rule. In particular, comments are sought
that:
     Evaluate whether the proposed information-collection
requirements are necessary for the proper performance of the Agency's
functions, including whether the information will have practical
utility;
     Evaluate the accuracy of OSHA's estimate of the time and
cost burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
     Enhance the quality, utility, and clarity of the
information to be collected; and
     Minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.

    A copy of the ICR for this proposal with applicable supporting
documentation, including a description of the likely respondents,
estimated frequency of response, and estimated total burden, may be
obtained free of charge from the RegInfo.gov website at: http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201710-1218-003 (this link
will only become active on the day following publication of this
document).

C. Proposed Revisions to the Information Collection Requirements

    As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(1), OSHA is
providing the following summary information about the information-
collection requirements identified in the proposal.
    1. Title: Cranes and Derricks in Construction (29 CFR part 1926
subpart CC)
    2. Description of the ICR. The proposal creates new information-
collection requirements associated with the existing ``Cranes and
Derricks in Construction Standard'' Information Collection. These
information-collection requirements are discussed below and in more
specific detail in Section III: Summary and Explanation of the Proposed
Amendments to Subpart CC.
Sections 1926.1442(b)(2)(i) and (b)(2)(iii)--Rail Clamps and Work-Area
Controls Exemptions
    Section 1926.1442(b)(2)(i) exempts the railroad equipment from the
requirement in Sec.  1926.1415(a)(6) for rail clamps when the
manufacturer does not require them. When the manufacturer does require
the clamps, the proposal allows the employer to seek an exemption by
obtaining an RPE's determination that rail clamps are not necessary.
    Section 1926.1442(b)(2)(iii) provides that the work-area controls
specified by Sec.  1926.1424(a)(2) do not apply when employers have
implemented an on-track safety program that addresses work-area safety
for the equipment, and the FRA approved the on-track safety program in
accordance with 49 CFR 214.307(b). The FRA already has a mechanism by
which it can ensure that employers put in place sufficient protections
to prevent the types of hazards that OSHA intended to prevent through
its work-area control requirements. OSHA expects that all covered
railroad equipment will comply with the FRA requirements and therefore
be exempt from OSHA's work-area requirements.
Sections 1926.1442(b)(3)(i) and (ii)--Out-of-Level Work Restriction
Exemptions
    OSHA's crane standard generally prohibits out-of-level operation of
cranes unless approved by the manufacturer. When the manufacturer has
not already authorized out-of-level work, proposed Sec.
1926.1442(b)(3) would allow out-of-level operation for all railroad
equipment purchased before November 8, 2010, and for all other
equipment under two conditions that would contain information
collection requirements in some scenarios: (i) The manufacturer must
approve or modify the equipment to allow out-of-level work, or an RPE
qualified with respect to the particular equipment must approve the
out-of-level work for the equipment; and (ii) the employer must abide
by the limitations and other requirements specified by the manufacturer
or the engineer, or by a load chart modified by a qualified person for
the approved out-of-level work. Given the many unique areas of railroad
work, in some cases a manufacturer or engineer might not have accounted
for a particular activity that would require an additional adjustment
to the load chart. OSHA included the option of allowing a qualified
person to make additional adjustments to the load chart so that the
employer would not need to stop work and locate an RPE every time an
additional adjustment is necessary.
Section 1926.1442(b)(6)(i)(A) and (b)(6)(i)(B)--Manufacturer Guidance
for Modifications Covered by Sec.  1926.1434 Exemptions
    Current section 1926.1434 requires employers to obtain and follow
equipment manufacturer's guidance for equipment modifications except in
certain circumstances. OSHA is proposing an exception that would
simplify how a railroad employer may use modified equipment without
involving the manufacturer but continuing to include safety assurances.
Under proposed Sec.  1926.1442(b)(6), an employer would be able to use
modified railroad roadway maintenance equipment regardless of
manufacturer guidance when several conditions are met. Specifically,
under proposed Sec.  1926.1442(b)(6)(i)(A) and Sec.
1926.1442(b)(6)(i)(B), an RPE qualified with respect to the equipment
must approve the procedure, modifications, addition, or repair; specify
the equipment configurations described in the approval; and modify
applicable procedures, load charts, manuals, instructions, plates,
tags, and decals.
Section 1926.1442(b)(7)--Other Manufacturer Guidance Exemption
    The proposed exemption in Sec.  1926.1442(b)(7) would apply to
several other sections of Subpart CC that require employers to follow
manufacturer's guidance, instructions, procedures, prohibitions,
limitations, or specifications. Those restrictions are found in
Sec. Sec.  1926.1404(j), (m), or (q); 1926.1417(a), (r), (u), or (aa);
1926.1433(d)(l)(i); and in 1926.1441. Under the proposed exemption,
employers would be allowed to use roadway maintenance machines without
regard for the manufacturer's listed restrictions if certain conditions
are met. A number of these conditions contain information collection
requirements. Proposed Sec.  1926.1442(b)(7)(1) provides that an RPE
familiar with the equipment must provide a written determination of the
appropriate limitations for equipment use. Like the exemption in
proposed Sec.  1926.1442(b)(6) above, this exemption is intended to
preserve existing use practices in the railroad industry while relying
on the expertise of an RPE familiar with the equipment to ensure the
safety of the equipment for departures from manufacturer guidance. The
exemption also provides employers a means to operate safely in cases
where obtaining manufacturer's approval is impossible, such as when the
manufacturer no longer exists.
    3. Number of respondents: 210,626 (including 775 railroad
establishments).
    4. Frequency of responses: Various.
    5. Number of responses: 3,045,098.
    6. Average time per response: Various.
    7. Estimated total burden hours: 436,701.
    8. Estimated cost (capital-operation and maintenance): $2,622.994.

D. Submitting Comments

    In addition to submitting comments directly to the Agency, members
of the public who wish to comment on the Agency's information-
collection requirements in this proposal may send written comments to
the Office of Information and Regulatory Affairs, Attn: OMB Desk
Officer for the DOL-OSHA (RIN-1218-AD07), Office of Management and
Budget, Room 10235, Washington, DC 20503. You may also submit comments
to OMB by email at: [email protected]. Please reference
control number 1218-0261 in order to help ensure proper consideration.
The Agency encourages commenters also to submit their comments related
to the Agency's clarification of the information collection
requirements to the rulemaking docket (Docket Number

OSHA-2015-0012), along with their comments on other parts of the
proposed rule. For instructions on submitting these comments to the
rulemaking docket, see the sections of this Federal Register document
titled DATES and ADDRESSES.
    A copy of the ICR for this proposal, with applicable supporting
documentation: Including a description of the likely respondents,
estimated frequency of response, and estimated total burden may be
obtained free of charge from the RegInfo.gov website at: http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201710-1218-003 (this link
will only become active on the day following publication of this
document). Copies of these documents may also be obtained by contacting
Mr. Vernon Preston, Directorate of Construction, OSHA, Room N-3427,
U.S. Department of Labor, 200 Constitution Avenue NW, Washington DC
20210; telephone:<PHONE_NUMBER>; email: [email protected].

VII. Federalism

    OSHA reviewed this proposed rule in accordance with the Executive
Order on Federalism (Executive Order 13132, 64 FR 43255, August 10,
1999), which requires that Federal agencies, to the extent possible,
refrain from limiting State policy options, consult with States prior
to taking any actions that would restrict State policy options, and
take such actions only when clear constitutional authority exists and
the problem is national in scope. Generally, Executive Order 13132
allows preemption of State law only with the expressed consent of
Congress. Agencies must limit any such preemption to the extent
possible.
    As discussed in more detail in the following section addressing
State Plan States, under Section 18 of the OSH Act, Congress expressly
provides that States may adopt, with Federal approval, a plan for the
development and enforcement of occupational safety and health
standards; States that obtain Federal approval for such a plan are
referred to as ``State Plan States.'' (29 U.S.C. 667). Occupational
safety and health standards developed by State Plan States must be at
least as effective in providing safe and healthful employment and
places of employment as the Federal standards.
    This proposed rule complies with Executive Order 13132. In States
without OSHA-approved State Plans, any standard developed from this
proposed rule would limit State policy options in the same manner as
every standard promulgated by OSHA. In States with OSHA-approved State
Plans, this rulemaking would not significantly limit State policy
options.

VIII. State-Plan States

    When Federal OSHA promulgates a new standard or a more stringent
amendment to an existing standard, the 28 States and U.S. Territories
with their own OSHA-approved occupational safety and health plans
(State-Plan States) must amend their standards to reflect the new
standard or amendment, or show OSHA why such action is unnecessary
(e.g., because an existing State standard covering this area is already
``at least as effective'' as the new Federal standard or amendment. (29
CFR 1953.5(a)). The State standard must be at least as effective as the
final Federal rule and the State must complete the standard within six
months after the publication date of the final Federal rule. When OSHA
promulgates a new standard or amendment that does not impose additional
or more stringent requirements than the existing standard, State-Plan
States are not required to amend their standards. The provisions in
this proposal are exemptions from existing OSHA requirements and will
reduce compliance burdens on employers, and as such OSHA does not view
any of the proposed provisions as more stringent than the existing
standard. Therefore, States and Territories with approved State Plans
may adopt comparable amendments to their standards but are not required
to do so. OSHA seeks comment on this assessment of its proposal.
    The 28 States and territories with OSHA-approved State Plans are:
Alaska, Arizona, California, Connecticut, Hawaii, Illinois, Indiana,
Iowa, Kentucky, Maine, Maryland, Michigan, Minnesota, Nevada, New
Mexico, New Jersey, New York, North Carolina, Oregon, Puerto Rico,
South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands,
Washington, and Wyoming. Connecticut, Illinois, New Jersey, New York,
Maine, and the Virgin Islands have OSHA-approved State Plans that apply
to State and local government employees only.

IX. Unfunded Mandates Reform Act of 1995

    OSHA reviewed this proposed rule in accordance with the Unfunded
Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et seq.) and Executive
Order 12875 (56 FR 58093). As discussed in section IV (``Preliminary
Economic Analysis and Regulatory Flexibility Act Certification'') of
this proposed rule, the Agency determined that this proposed rule does
not add new costs because the proposed changes are exemptions. However,
because OSHA did not identify the cost to the railroad industry of the
Cranes and Derricks in Construction standard, OSHA is identifying that
cost now as part of this rulemaking. As OSHA explained in 2010, the
total costs of the crane standard exceeded the threshold of $100
million per year and required additional analysis under the UMRA, which
OSHA performed in 2010 (see 75 FR 48130). The $8.5 million in residual
costs attributed to the railroad industry does not significantly impact
the Agency's previous analysis, and the PEA for this rulemaking
includes an additional analysis of the economic impact of the crane
standard on the railroad industry.
    As noted under section VIII (``State Plans'') of this proposed
rule, the Agency's standards do not impose any duties on State and
local governments except in States that elect voluntarily to adopt a
State Plan approved by the Agency. OSHA is not aware of any tribal
governments that operate railroads using equipment that would be
subject to this rulemaking, and the proposed changes create exceptions
to the rule, not new duties. Consequently, this proposed rule does not
meet the definition of a ``Federal intergovernmental mandate'' (see
Section 421(5) of the UMRA (2 U.S.C. 658(5)). Therefore, for the
purposes of the UMRA, the Agency certifies that this proposed rule does
not mandate that State, local, or tribal governments adopt new,
unfunded regulatory obligations, or increase expenditures by the
private sector of more than $100 million in any year.

X. Consultation and Coordination With Indian Tribal Governments

    OSHA reviewed this proposed rule in accordance with Executive Order
13175 (65 FR 67249 (Nov. 9, 2000)) and determined that it does not have
``tribal implications'' as defined in that order. The final rule, if
promulgated as proposed, would not have substantial direct effects on
one or more Indian tribes, on the relationship between the Federal
government and Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian tribes.

XI. Review by the Advisory Committee for Construction Safety and Health

    OSHA must consult with the ACCSH whenever the Agency proposes a
rulemaking that involves the occupational safety and health of
construction employees (29 CFR 1911.10, 1912.3). Accordingly, before

the meeting date below, OSHA gave the ACCSH members a copy of the
proposed revisions in this rulemaking as well as a brief summary and
explanation of them. On December 1, 2016, ACCSH unanimously recommended
that OSHA publish the proposal (see https://www.osha.gov/doc/accsh/meetingminutes/accsh_20161201.pdf).

XII. Public Participation

A. Submission of Comments and Access to the Docket

    OSHA invites comments on the proposed revisions described, and the
specific issues raised, in this proposed rule. These comments should
include supporting information and data. OSHA will carefully review and
evaluate these comments, information, and data, as well as any other
information in the rulemaking record, to determine how to proceed.
    When submitting comments, parties must follow the procedures
specified in the previous sections titled DATES and ADDRESSES. The
comments must provide the name of the commenter and docket number. The
comments also should identify clearly the provision of the proposal
each comment is addressing, the position taken with respect to the
proposed provision or issue, and the basis for that position. Comments,
along with supporting data and references, submitted on or before the
end of the specified comment period will become part of the proceedings
record, and will be available for public inspection and copying at
http://www.regulations.gov.

B. Requests for an Informal Public Hearing

    In accordance with section 6(b)(3) of the OSH Act and 29 CFR
1911.11, members of the public may request an informal public hearing
by following the instructions under the section of this Federal
Register document titled ADDRESSES. Hearing requests must include the
name and address of the party requesting the hearing, and submitted
(e.g., postmarked, transmitted, sent) on or before September 17, 2018.
All submissions must bear a postmark or provide other evidence of the
submission date.

List of Subjects in 29 CFR Part 1926

    Construction industry, Occupational safety and health, Railroad
safety, Safety.

Authority and Signature

    Loren Sweatt, Deputy Assistant Secretary of Labor for Occupational
Safety and Health, U.S. Department of Labor, authorized the preparation
of this document pursuant to Sections 4, 6, and 8 of the Occupational
Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), 29 CFR part
1911, and Secretary's Order 1-2012 (77 FR 3912).

    Signed at Washington, DC, on July 12, 2018.
Loren Sweatt,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.

Proposed Amendments to Standards

    For the reasons stated in the preamble above, OSHA proposes to
amend 29 CFR part 1926 to read as follows:

PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION

Subpart CC--Cranes and Derricks in Construction

0
1. The authority citation for Subpart CC of 29 CFR part 1926 continues
to read as follows:

    Authority:  40 U.S.C. 3701 et seq.; 29 U.S.C. 653, 655, 657; and
Secretary of Labor's Orders 5-2007 (72 FR 31159) or 1-2012 (77 FR
3912), as applicable; and 29 CFR part 1911.

0
2. Amend Sec.  1926.1400 by adding paragraph (c)(18) to read as
follows:

Sec.  1926.1400  Scope.

* * * * *
    (c) * * *
    (18) Flash-butt welding trucks or other roadway maintenance
machines which are not equipped with any hoisting device other than
that used to suspend and move a welding device or workhead assembly.
For purposes of this exclusion, the terms flash-butt welding truck and
roadway maintenance machine refer to railroad equipment that meets the
definition of ``Roadway Maintenance Machine'' in 49 CFR 214.7 and is
used only for railroad track work.
* * * * *
0
3. Redesignate Sec.  1926.1442 as new Sec.  1926.1443.
0
4. Add a new Sec.  1926.1442 to read as follows:

Sec.  1926.1442  Railroad roadway maintenance machines.

    (a) For bridge construction work, employers using equipment covered
by this Subpart CC of this part that meets the definition of ``Roadway
Maintenance Machine,'' as defined in 49 CFR 214.7, must comply with all
of the requirements in this Subpart CC of this part.
    (b) For construction work other than bridge construction, employers
using equipment covered by Subpart CC of this part that meets the
definition of ``Roadway Maintenance Machine'' must comply with the
requirements in Subpart CC of this part, except as provided in
paragraphs (b)(1) through (7) of this section:
    (1) Operator certification and training. The requirements in
Sec. Sec.  1926 .1427 (Operator qualification and certification) and
1926.1430 (Training) do not apply.
    (2) Rail clamps, rail stops, and work-area controls. (i) The
requirement for rail clamps in Sec.  1926.1415(a)(6) does not apply;
except Sec.  1926.1415(a)(6) applies when a manufacturer requires rail
clamps, unless a registered professional engineer determines that rail
clamps are not necessary;
    (ii) The requirement for rail stops in Sec.  1926.1415(a)(6) does
not apply; and
    (iii) The work-area controls specified by Sec.  1926.1424(a)(2) do
not apply when employers have implemented an on-track safety program
that addresses work-area safety for the equipment and the Federal
Railroad Administration approved the on-track safety program in
accordance with 49 CFR 214.307(b).
    (3) Out-of-level work. The restrictions on out-of-level work
(including the requirements in Sec. Sec.  1926.1402(b),
1926.1412(d)(l)(xi), and 1926.1415(a)(l)), and the requirements for
crane-level indicators and inspections of those indicators, do not
apply when the employer uses equipment purchased before November 8,
2010, or when:
    (i) The manufacturer approves or modifies the equipment for out-of-
level operation, or a registered professional engineer who is a
qualified person with respect to the equipment involved approves such
out-of-level work; and
    (ii) The employer uses the equipment within limitations specified
by the manufacturer or the registered professional engineer, or a
qualified person modifies the load chart for such approved out-of-level
work and the employer uses the equipment in accordance with that load
chart.
    (4) Dragging a load sideways. The prohibition in Sec.  1926.1417(q)
on dragging a load sideways does not apply.
    (5) Boom-hoist limiting device. The requirement in Sec.
1926.1416(d)(1) for a boom-hoist limiting device does not apply to
Roadway Maintenance Machines when the cranes use hydraulic cylinders to
raise the booms.
    (6) Manufacturer guidance for modifications covered by Sec.
1926.1434. The requirements to follow the manufacturer's guidance set
forth in Sec.  1926.1434 do not apply when employers meet all of the
following conditions:

    (i) A registered professional engineer who is a qualified person
with respect to the equipment:
    (A) Approves the procedure, modification, addition, or repair, and
specifies the equipment configurations to which that approval applies;
and
    (B) Modifies load charts, procedures, instruction manuals, and
instruction plates, tags, and decals, as appropriate.
    (ii) The employer uses the equipment in accordance with all of the
engineer's specifications and modifications.
    (iii) The original safety factor of the equipment is not reduced
below 1.7 for the structural boom, and 1.25 for stability, unless the
original safety factor is lower.
    (7) Other manufacturer guidance. The requirements to follow the
manufacturer's guidance, instructions, procedures, prohibitions,
limitations, or specifications, set forth in Sec. Sec.  1926.1404(j),
(m), or (q); 1926.1417(a), (r), (u), or (aa); 1926.1433(d)(l)(i); or
1926.1441 do not apply when:
    (i) A registered professional engineer familiar with the type of
equipment involved determines the appropriate limitations on the
equipment in writing; and
    (ii) The employer does not exceed those limitations.

[FR Doc. 2018-15285 Filed 7-18-18; 8:45 am]
 BILLING CODE 4510-26-P