[Federal Register Volume 83, Number 139 (Thursday, July 19, 2018)]
[Proposed Rules]
[Pages 34076-34092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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

[[Page 34077]]

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 (202) 693-1648. 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: (877) 889-5627). 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: <a href="/cdn-cgi/l/email-protection#155a5c47544a666077787c66667c7a7b557a78773b707a653b727a63"><span class="__cf_email__" data-cfemail="67282e3526381412050a0e14140e080927080a054902081749000811">[email protected]</span></a>. 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: (202) 693-1999; email: 
<a href="/cdn-cgi/l/email-protection#97daf2fefbfef9f0f2e5b9d1e5f6f9f4fee4a5d7f3f8fbb9f0f8e1"><span class="__cf_email__" data-cfemail="b6fbd3dfdadfd8d1d3c498f0c4d7d8d5dfc584f6d2d9da98d1d9c0">[email protected]</span></a>.
    General and Technical inquiries: Mr. Garvin Branch, Directorate of 
Construction, telephone: (202) 693-2020; email: <a href="/cdn-cgi/l/email-protection#83c1f1e2ede0ebadc4e2f1f5eaedc3e7ecefade4ecf5"><span class="__cf_email__" data-cfemail="490b3b28272a21670e283b3f2027092d2625672e263f">[email protected]</span></a>.
    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

[[Page 34078]]

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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[[Page 34079]]

    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

[[Page 34080]]

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

[[Page 34081]]

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

[[Page 34082]]

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

[[Page 34083]]

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.
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    \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

[[Page 34084]]

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

[[Page 34085]]

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

[[Page 34086]]

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).
------------------------------------------------------------------------


[[Page 34087]]

    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.<SUP>18 19</SUP> 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).

[[Page 34088]]

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:
    <bullet> 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;
    <bullet> 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;
    <bullet> Enhance the quality, utility, and clarity of the 
information to be collected; and
    <bullet> 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.

[[Page 34089]]

    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: <a href="/cdn-cgi/l/email-protection#6a2523382b35191f08070319190305042a050708440f051a440d051c"><span class="__cf_email__" data-cfemail="236c6a71627c5056414e4a50504a4c4d634c4e410d464c530d444c55">[email protected]</span></a>. 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

[[Page 34090]]

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: (202) 693-2020; email: <a href="/cdn-cgi/l/email-protection#cb9bb9aeb8bfa4a5e59daeb9a5a4a58bafa4a7e5aca4bd"><span class="__cf_email__" data-cfemail="78280a1d0b0c1716562e1d0a161716381c1714561f170e">[email protected]</span></a>.

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

[[Page 34091]]

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:

[[Page 34092]]

    (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


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