34076 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Proposed Rules 

TIS or 50,000 RIN, whichever occurs first. 

For purposes of this AD, for every normal 

retraction or extension of the wheeled 

landing gear system, add one RIN. 

(f) Alternative Methods of Compliance 

(AMOCs) 

(1) The Manager, Safety Management 

Section, Rotorcraft Standards Branch, FAA, 

may approve AMOCs for this AD. Send your 

proposal to: Matt Fuller, Senior Aviation 

Safety Engineer, Safety Management Section, 

Rotorcraft Standards Branch, FAA, 10101 

Hillwood Pkwy., Fort Worth, TX 76177; 

telephone (817) 222–5110; email 9-ASWFTW-AMOC-Requests@faa.gov. 

(2) For operations conducted under a 14 

CFR part 119 operating certificate or under 

14 CFR part 91, subpart K, we suggest that 

you notify your principal inspector, or 

lacking a principal inspector, the manager of 

the local flight standards district office or 

certificate holding district office before 

operating any aircraft complying with this 

AD through an AMOC. 

(g) Additional Information 

(1) Bell Helicopter Alert Service Bulletin 

No. 429–15–24, Revision A, dated September 

23, 2015, which is not incorporated by 

reference, contains additional information 

about the subject of this AD. For service 

information identified in this AD, contact 

Bell Helicopter Textron Canada Limited, 

12,800 Rue de l’Avenir, Mirabel, Quebec 

J7J1R4; telephone (450) 437–2862 or (800) 

363–8023; fax (450) 433–0272; or at http://

www.bellcustomer.com/files/. You may 

review the referenced service information at 

the FAA, Office of the Regional Counsel, 

Southwest Region, 10101 Hillwood Pkwy., 

Room 6N–321, Fort Worth, TX 76177. 

(2) The subject of this AD is addressed in 

Transport Canada AD No. CF–2016–07, dated 

March 4, 2016. You may view the Transport 

Canada AD on the internet at http://

www.regulations.gov in the AD Docket. 

(h) Subject 

Joint Aircraft Service Component (JASC) 

Code: 3200 Nose Landing Gear. 

Issued in Fort Worth, Texas, on July 9, 

2018. 

Lance T. Gant, 

Director, Compliance & Airworthiness 

Division, Aircraft Certification Service. 

[FR Doc. 2018–15305 Filed 7–18–18; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Part 573 

[Docket No. FDA–2014–F–2307] 

Humic Product Trade Association; 

Withdrawal of Food Additive Petition 

(Animal Use) 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Notification; withdrawal of 

petition. 

SUMMARY: The Food and Drug 

Administration (FDA) is announcing the 

withdrawal, without prejudice to a 

future filing, of a food additive petition 

(FAP 2290) proposing that the food 

additive regulations be amended to 

provide for the safe use of humate, 

fluvic acid, and humic substances as a 

source of iron in animal feed. 

DATES: The food additive petition 

published on January 6, 2015 (80 FR 

422), was withdrawn on April 19, 2018. 

ADDRESSES: For access to the docket to 

read background documents or 

comments received, go to https://

www.regulations.gov and insert the 

docket number, found in brackets in the 

heading of this document, into the 

‘‘Search’’ box and follow the prompts; 

and/or go to the Dockets Management 

Staff, 5630 Fishers Lane, Rm. 1061, 

Rockville, MD 20852. 

FOR FURTHER INFORMATION CONTACT: 

Carissa Doody, Center for Veterinary 

Medicine (HFV–228), Food and Drug 

Administration, 7519 Standish Pl., 

Rockville, MD 20855, 240–402–6283, 

Carissa.doody@fda.hhs.gov. 

SUPPLEMENTARY INFORMATION: In a notice 

of petition published in the Federal 

Register on January 6, 2015 (80 FR 422), 

FDA announced that a food additive 

petition (FAP 2290) had been filed by 

Humic Products Trade Assn., P.O. Box 

963, Spring Green, WI 53588. The 

petition proposed to amend part 573 

Food Additives Permitted in Feed and 

Drinking Water of Animals (21 CFR part 

573), to provide for the safe use of 

humate, fluvic acid, and humic 

substances as a source of iron in animal 

feed. Humic Products Trade Assn., has 

now withdrawn the petition without 

prejudice to a future filing in 

accordance with 21 CFR 571.7. 

Dated: July 13, 2018. 

Leslie Kux, 

Associate Commissioner for Policy. 

[FR Doc. 2018–15394 Filed 7–18–18; 8:45 am] 

BILLING CODE 4164–01–P 

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. 

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 


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Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Proposed Rules 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: 

OIRA_submission@omb.eop.gov. 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: 

Meilinger.Francis2@dol.gov. 

General and Technical inquiries: Mr. 

Garvin Branch, Directorate of 

Construction, telephone: (202) 693– 

2020; email: Branch.Garvin@dol.gov. 

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 trackrelated construction activities other than 

bridge construction. New section 

§ 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 


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1See Nov. 14, 2014 letter to AAR Counsel Jill 

Hyman Kaplan, Esq., available at www.osha.gov. 

2See, 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. 

3The ‘‘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). 

4Existing railroad provisions in the crane 

standard include exemptions from ground 

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. 

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. 

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). 

A. Exemption for Flash-Butt Welding 

Trucks and Equipment With Similar 

Attachments 

Flash-butt welding trucks are roadway 

maintenance machines with lowhanging 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 

§ 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 § 1926.1443 to enable the 

addition of a new § 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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condition and inspection requirements as set forth 

in §§ 1926.1400(h), 1926.1402(f), and 

1926.1412(d)(1)(x) and (d)(1)(xiii); restrictions on 

locomotive crane movements in § 1926.1417(z); and 

an exception from the signal transmission 

requirements in 1420(b)(2). 

5Proposed § 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. 

Rather than insert various railroad 

roadway machine exceptions 

throughout Subpart CC, the proposal 

consolidates them into a single section 

(§ 1926.1442) for the convenience of 

affected parties and to maintain the 

organizational integrity of Subpart CC. 

As proposed, aside from the 

§ 1926.1400(c)(18) exclusion for flashbutt welding trucks and similar 

equipment, § 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 § 1926.1442 

OSHA’s proposed limited exemptions 

for railroads in § 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 § 1926.1442 accomplishes 

the limitation in two ways. First, this 

new § 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 § 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 § 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 

§ 1926.1442(b) 5 applies (or one of the 

existing exceptions in other sections 

applies). 

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. § 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 

§ 1926.1442(b)(1) an explicit exemption 

from proposed § 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 

§ 1926.1430 were not explicitly 

mentioned in the FRA’s rule, OSHA has 

included the § 1926.1430 operator 

training requirements in the proposed 

§ 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 

§ 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 

§ 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 


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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. § 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 § 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 nonrailroad 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., §§ 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 § 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. § 1926.1442(b)(2)(iii) 

This section would clarify that the 

requirements of § 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 § 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 workarea 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 

§ 1926.1442(b)(2)(iii) states that 

§ 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 § 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 § 19126.1424(a)(2) 

requirements. 

G. § 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 

§ 1926.1402(b), the inspection 

requirements in § 1926.1412(d)(l)(xi), 

and the requirement that machines have 

out-of-level indicators in 

§ 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 

§ 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 


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representatives acknowledged that outof-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 

§ 1926.1442(b)(3)(i) and (ii) to allow outof-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-oflevel 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 

§§ 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 

§ 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 §§ 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 outof-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 § 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 (§ 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-oflevel 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. § 1926.1442(b)(4) 

Dragging a load sideways. The 

proposed § 1926.1442(b)(4) exemption 

provides relief from the prohibition in 

§ 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. § 1926.1442(b)(5) 

Boom-hoist limiting device. This 

proposed section would clarify existing 

§ 1926.1416(d)(1), which requires 

equipment manufactured after 

December 16, 1969, to have a boomhoist 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 


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equipped cranes and derricks by 

automatically stopping the winding. On 

hydraulic cylinder/piston equipped 

booms, the § 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 

§ 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. § 1926.1442(b)(6) 

Manufacturer guidance for 

modifications covered by § 1926.1434. 

The proposed rule would modify the 

application of § 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 

§ 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 

§ 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 redesignated as subparagraph (C)). 

K. § 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 §§ 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 

§ 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 

§ 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 § 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 

§ 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 

§ 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 


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6At 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. 

7See 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. 

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)). 

9From this point forward, this PEA refers to the 

ratio of total track to Class I track (1.46) as ‘‘the 

standard markup’’. 

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. 

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. 

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 × 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. 

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 


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10For 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. 

11The 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. 

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. 

13This is the midpoint of the range in the AAR 

survey of $450 to $700 ($575 = ($450 + $700)/2). 

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 × 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. 

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 × 

1.46) outside the proposed limited 

exceptions and covered by the crane 

standard. 

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 percrane 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). 

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 × $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 × $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 × (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 higherend 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 × $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 × $575). 

OSHA also estimates annual 

replacement costs of $3,741,650 

associated with the clamp requirement 

for the railroad industry. From the (AAR 


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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. 

15As 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. 

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 × 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 × 10% × $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). 

Rail stops are the second type of 

equipment that would no longer be 

required under the proposed exemption. 

For rail stops, OSHA estimates total upfront 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 × (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 × $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 × 

$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 × 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 × .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 × $300). Summed 

together, annual cost savings of railroad 

stops are $1,572,479 ($599,106 + 

$511,049 + $462,324). 

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 costsavings 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 × (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 × .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 workarea 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 § 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 


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34086 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Proposed Rules 

16These 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 underestimate of total revenues, and a slight overestimate 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. 

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 nonoperator 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/amtrakfacts/amtrak-national-facts.html). While 

there is likely to be a skew among nonClass 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). 

OSHA applied AAR’s report of 2012 

operating income (profits) for Class I to 

estimate the average profits of the nonClass 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 × 1.48) 

and $1.0 billion ($704 × 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 × (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 exemption) ........................................................................................................................... 155,068. 


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17U.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-pagefiles/public-sector/pdfs/surveys/2015/GovContractor-Survey.ashx.). 

19For 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-andregulations/rules-and-regulations/technicalappendices/labor-cost-inputs-used-in-ebsa-opr-riaand-pra-burden-calculations-august-2016.pdf. 

The ratio of the proposed rule’s costs 

to revenue for total railroads is .02% 

($24.2m/$113 billion) and for small 

railroads is .04% ($2.5m/$6.3 billion). 

The ratio of the proposed rule’s costs to 

profits for total railroads is .12% 

($24.2m/$19.9 billion) and for small 

railroads it is .22% ($2.5m/$1.1 billion). 

Both easily pass OSHA’s standard 

threshold impacts tests of costs being 

below 1% of revenue and 10% of profits 

(5% of profits for small entities.) The 

proposed exemptions would drastically 

lower those costs, so the thresholds 

would be even easier to meet. These 

estimates are scaling several Class I 

numbers so the results are sensitive to 

whether these (scaled) numbers are 

representative of the rest of the industry. 

The Agency requests comment and 

further information on these issues. 

l. Overhead Cost Adjustment 

The Agency notes that it did not 

include an overhead labor cost in the 

PEA for this rule. It is important to note 

that there is not one broadly accepted 

overhead rate and that the use of 

overhead to estimate the marginal costs 

of labor raises a number of issues that 

should be addressed before applying 

overhead costs to analyze the costs of 

any specific regulation. There are 

several approaches to examine the cost 

elements that fit the definition of 

overhead and there are a range of 

overhead estimates currently used 

within the federal government. For 

example, the Environmental Protection 

Agency has used 17 percent,17 and 

government contractors have been 

reported to use an average of 77 

percent.18 19 Some overhead costs, such 

as advertising and marketing, vary with 

output rather than with labor costs. 

Other overhead costs vary with the 

number of new employees. Rent or 

payroll processing costs may change 

little with the addition of 1 employee in 

a 500-employee firm, but those costs 

may change substantially with the 

addition of 100 employees. If an 

employer is able to rearrange current 

employees’ duties to implement a rule, 

then the marginal share of overhead 

costs such as rent, insurance, and major 

office equipment (e.g., computers, 

printers, copiers) would be very difficult 

to measure with accuracy (e.g., 

computer use costs associated with 2 

hours for rule familiarization by an 

existing employee). 

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). 


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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 OMBapproved 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 informationcollection 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 collectionrequirements to OMB for review under 

control number 1218–0261. When and if 

the final rule is published, OSHA will 

submit a revised ICR for the final Cranes 

and Derricks in Construction Standard 

that will include railroad roadway work 

to OMB for approval. Pursuant to the 

PRA, the public may comment directly 

to OMB on the information-collection 

(paperwork) requirements during a 30- 

day period following the submission of 

the document to OMB. This comment 

period is in addition to the opportunity 

for the public to provide comments 

directly to the agency. 

The Agency and OMB solicit 

comments on the Cranes and Derricks 

Standard information-collection 

requirements as they would be 

established or revised by this rule. In 

particular, comments are sought that: 

• Evaluate whether the proposed 

information-collection requirements are 

necessary for the proper performance of 

the Agency’s functions, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of OSHA’s 

estimate of the time and cost burden of 

the proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 


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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 informationcollection 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 § 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 

§ 1926.1424(a)(2) do not apply when 

employers have implemented an ontrack 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 workarea 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 § 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 § 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 § 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 

§ 1926.1442(b)(6)(i)(A) and 

§ 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 

§ 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 §§ 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 § 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 § 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: 

OIRA_submission@omb.eop.gov. 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 


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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: Preston.Vernon@dol.gov. 

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 


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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/meeting

minutes/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 

■ 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. 

■ 2. Amend § 1926.1400 by adding 

paragraph (c)(18) to read as follows: 

§ 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. 

* * * * * 

■ 3. Redesignate § 1926.1442 as new 

§ 1926.1443. 

■ 4. Add a new § 1926.1442 to read as 

follows: 

§ 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 §§ 1926 .1427 

(Operator qualification and certification) 

and 1926.1430 (Training) do not apply. 

(2) Rail clamps, rail stops, and workarea controls. (i) The requirement for 

rail clamps in § 1926.1415(a)(6) does not 

apply; except § 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 

§ 1926.1415(a)(6) does not apply; and 

(iii) The work-area controls specified 

by § 1926.1424(a)(2) do not apply when 

employers have implemented an ontrack 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 §§ 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 § 1926.1417(q) on 

dragging a load sideways does not 

apply. 

(5) Boom-hoist limiting device. The 

requirement in § 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 § 1926.1434. 

The requirements to follow the 

manufacturer’s guidance set forth in 

§ 1926.1434 do not apply when 

employers meet all of the following 

conditions: 


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34092 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Proposed Rules 

(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 

§§ 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 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2018–0619] 

RIN 1625–AA00 

Safety Zone; Lower Mississippi River, 

Mile Markers 94 to 95 Above Head of 

Passes, New Orleans, LA 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Coast Guard proposes to 

establish a temporary safety zone for 

certain navigable waters of the Lower 

Mississippi River. This action is 

necessary to provide for the safety of 

persons, vessels, and the marine 

environment on these navigable waters 

near New Orleans, LA, during a 

fireworks display on October 6, 2018. 

This proposed rulemaking would 

prohibit persons and vessels from being 

in the safety zone unless authorized by 

the Captain of the Port Sector New 

Orleans or a designated representative. 

We invite your comments on this 

proposed rulemaking. 

DATES: Comments and related material 

must be received by the Coast Guard on 

or before August 20, 2018. 

ADDRESSES: You may submit comments 

identified by docket number USCG– 

2018–0619 using the Federal 

eRulemaking Portal at http://

www.regulations.gov. See the ‘‘Public 

Participation and Request for 

Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section for 

further instructions on submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this proposed 

rulemaking, call or email Lieutenant 

Commander Benjamin Morgan, Sector 

New Orleans, U.S. Coast Guard; 

telephone 504–365–2281, email 

Benjamin.P.Morgan@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

COTP Captain of the Port Sector New 

Orleans 

DHS Department of Homeland Security 

FR Federal Register 

MM Mile marker 

NPRM Notice of proposed rulemaking 

§ Section 

U.S.C. United States Code 

II. Background, Purpose, and Legal 

Basis 

On May 9, 2018, Zito Company, LLC 

notified the Coast Guard that it would 

be conducting a fireworks display from 

9 p.m. through 10 p.m. on October 6, 

2018. The fireworks are to be launched 

from a barge on the Lower Mississippi 

River at approximate mile marker (MM) 

94.5, above Head of Passes, off Algiers 

Point, New Orleans, LA. Hazards from 

firework displays include discharge of 

fireworks, dangerous projectiles, and 

falling hot embers or other debris. The 

Captain of the Port Sector New Orleans 

(COTP) has determined that potential 

hazards associated with the fireworks 

display would be a safety concern for 

anyone within a one-mile stretch of the 

river. 

The purpose of this rulemaking is to 

ensure the safety of persons, vessels, 

and the marine environment on the 

navigable waters within a one-mile 

stretch around the fireworks barge 

before, during, and after the scheduled 

fireworks display. The Coast Guard 

proposes this rulemaking under 

authority in 33 U.S.C. 1231. 

III. Discussion of Proposed Rule 

The COTP proposes to establish a 

temporary safety zone from 9 p.m. 

through 10 p.m. on October 6, 2018. The 

safety zone would cover all navigable 

waters of the Lower Mississippi River 

between MM 94 and MM 95, above 

Head of Passes. The duration of the zone 

is intended to ensure the safety of 

persons, vessels, and the marine 

environment on these navigable waters 

before, during, and after the scheduled 

fireworks display. 

No vessel or person would be 

permitted to enter the safety zone 

without obtaining permission from the 

COTP or a designated representative. A 

designated representative is a 

commissioned, warrant, or petty officer 

of the U.S. Coast Guard assigned to 

units under the operational control of 

USCG Sector New Orleans. Vessels 

requiring entry into this safety zone 

must request permission from the COTP 

or a designated representative. They 

may be contacted on VHF–FM Channel 

16 or 67. Persons and vessels permitted 

to enter this safety zone must transit at 

their slowest safe speed and comply 

with all lawful directions issued by the 

COTP or the designated representative. 

The COTP or a designated 

representative would inform the public 

of the enforcement times and date for 

this safety zone through Broadcast 

Notices to Mariners (BNMs), Local 

Notices to Mariners (LNMs), and/or 

Marine Safety Information Broadcasts 

(MSIBs) as appropriate. The regulatory 

text we are proposing appears at the end 

of this document. 

IV. Regulatory Analyses 

We developed this proposed rule after 

considering numerous statutes and 

Executive orders related to rulemaking. 

Below we summarize our analyses 

based on a number of these statutes and 

Executive orders and we discuss First 

Amendment rights of protestors. 

A. Regulatory Planning and Review 

Executive Orders 12866 and 13563 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits. 

Executive Order 13771 directs agencies 

to control regulatory costs through a 

budgeting process. This NPRM has not 

been designated a ‘‘significant 

regulatory action,’’ under Executive 

Order 12866. Accordingly, the NPRM 

has not been reviewed by the Office of 

Management and Budget (OMB), and 

pursuant to OMB guidance it is exempt 

from the requirements of Executive 

Order 13771. 

This regulatory action determination 

is based on the size and short duration 

of the safety zone, which would impact 

a one-mile stretch of the Lower 


sradovich on DSK3GMQ082PROD with PROPOSALS