[Federal Register Volume 85, Number 179 (Tuesday, September 15, 2020)]
[Rules and Regulations]
[Pages 57109-57122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17179]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

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


Cranes and Derricks in Construction: Railroad Roadway Work

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

ACTION: Final rule.

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SUMMARY: OSHA is revising the standard for cranes and derricks in 
construction to provide specific exemptions and clarifications with 
regard to the application of the standard to cranes and derricks used 
for railroad roadway work. These exemptions and clarifications 
recognize the unique equipment and circumstances in railroad roadway 
work and reflect the preemption of some OSHA requirements by 
regulations promulgated by the Federal Railroad Administration (FRA). 
The revised standard provides a clearer understanding of which 
regulatory requirements are applicable, resulting in a more effective 
regulatory program and ultimately improved safety.

DATES: Effective date: This final rule is effective on November 16, 
2020.

ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), the agency 
designates Edmund C. Baird, Associate Solicitor of Labor for 
Occupational Safety and Health, Office of the Solicitor, Room S-4004, 
U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 
20210, to receive petitions for review of the final rule.
    Docket: To read or download material in the electronic docket for 
this rulemaking, go to http://www.regulations.gov or to the OSHA 
Docket, Room N-3653, OSHA, U.S. Department of Labor, 200 Constitution 
Avenue NW, Washington, DC 20210; telephone: (202) 693-2350, TTY number 
(877) 889-5627. Some information submitted (e.g., copyrighted material) 
is not available publicly to read or download through this website. All 
submissions, including copyrighted material, are available for 
inspection at the OSHA Docket Office. Contact the OSHA Docket Office 
for assistance in locating docket submissions.

FOR FURTHER INFORMATION CONTACT: 
    General information and press inquiries: Mr. Frank Meilinger, OSHA 
Office of Communications; telephone: (202) 693-1999; email: 
Meilinger.Francis2@dol.gov.
    Technical inquiries: Mr. Jens Svenson, OSHA Directorate of 
Construction; telephone: (202) 693-2020; fax: (202) 693-1689; email: 
svenson.jens@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. Background
II. Summary and Explanation of the Final Rule
III. Final Economic Analysis and Final Regulatory Flexibility 
Analysis
IV. Legal Authority
V. Paperwork Reduction Act
VI. Federalism
VII. State Plans
VIII. Unfunded Mandates Reform Act of 1995
IX. Consultation and Coordination with Indian Tribal Governments

I. Background

    OSHA published the Cranes and Derricks in Construction standard on 
August 9, 2010 (29 CFR part 1926, subpart CC, 75 FR 47906). The crane 
standard resulted from years of work by a negotiated rulemaking 
committee that drew from a wide range of stakeholders to include 
industry and labor best practices to draft regulatory requirements to 
prevent crane tip overs, 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, addressing topics such as requirements to ensure safe 
ground conditions underneath equipment, mandatory safety devices, 
distance 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 collectively 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 the standard as it relates to railroads and 
to propose revisions to the regulatory text of the crane standard. The 
settlement followed extensive discussions with AAR and officials from 
FRA and the principal labor organization representing affected 
employees, the Brotherhood of Maintenance of Way Employes Division 
(Teamsters) (BMWED). OSHA also reviewed the settlement with the 
Brotherhood of Railroad Signalmen (BRS). 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

[[Page 57110]]

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 
crane standard. In 2018, OSHA published a notice of proposed rulemaking 
(NPRM) seeking public comment on the proposed regulatory changes for 
the railroad industry that had been included in the settlement 
agreement (83 FR 34076 (July 19, 2018)).
    Subsequent to the settlement agreement executed between AAR and 
OSHA in September 2014, FRA issued a final regulation involving, among 
other issues, safety-related training requirements for the use of 
railroad cranes and railroad roadway maintenance machines (hereafter, 
RMMs will mean [railroad] roadway maintenance machines) equipped with a 
hoisting device.\1\ This regulation also included other revisions to 
FRA regulations addressing the use of RMMs (79 FR 66460, November 7, 
2014).
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    \1\ 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. Railroads also use the equipment to install railroad 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 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, signal, 
communications, or electric traction systems. Roadway maintenance 
machines may have road or rail wheels or may be stationary'' (49 CFR 
214.7). The ``roadway'' referenced in this definition does not refer 
to a road over which cars or trucks would travel; within the 
railroad industry it refers to the area encompassing the tracks, 
track support, and nearby items that could foul the track (see, 
e.g., the definition of ``roadway worker'' in 49 CFR 214.7). 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)).
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    As dictated by Section 4(b)(1) of the Occupational Safety and 
Health (OSH) Act (29 U.S.C. 653), to the extent FRA regulations 
exercise statutory authority to prescribe or enforce standards or 
regulations affecting occupational safety and health, OSHA is preempted 
from applying regulatory requirements of its own to the corresponding 
working conditions addressed. On March 19, 2019, following the 
publication of OSHA's NPRM, FRA provided OSHA further information 
clarifying that FRA intends to preempt the potential applicability of 
most of the OSHA requirements addressed in OSHA's NPRM (see Docket ID: 
OSHA-2015-0012-0015) through FRA regulations. Thus, OSHA concludes that 
those affected parts of the OSHA crane standard do not apply with 
regard to the operation of RMMs.
    Although any exemption from OSHA requirements resulting from the 
preemption of OSHA statutory authority by FRA would apply whether or 
not the OSHA regulations include any specific exemptions, OSHA believes 
it is still appropriate to amend the Code of Federal Regulations (CFR) 
to include the explicit exemptions for RMMs in the OSHA crane standard. 
Having the exemptions specified in the OSHA crane standard will provide 
additional clarity for employers in the railroad industry, including 
contractors, who may be unfamiliar with the legal implications of FRA's 
action. A clearer understanding of which regulatory requirements are 
applicable will ultimately result in a more effective regulatory 
program and improved safety.
    Thus, as explained in this preamble, OSHA is adding certain 
exemptions and clarifications to the crane standard. Some of these 
exemptions recognize the unique equipment and circumstances in railroad 
roadway work, while others reflect the preemption of some OSHA 
requirements by FRA.
    This rule is an E.O. 13771 deregulatory action. Details on the 
estimated costs and cost savings for this rule can be found in the 
final rule's economic analysis in section III of this preamble.
    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
not a ``major rule'' as defined by 5 U.S.C. 804(2).

II. Summary and Explanation of the Final Rule

    The following discussion summarizes and explains each new or 
revised provision in this final rule and the substantive differences 
between the revised and previous version of OSHA's crane operator 
requirements in subpart CC of 29 CFR part 1926.

A. Exemption for Flash-Butt Welding Trucks and Equipment With Similar 
Attachments

    This final rule adds paragraph (c)(18) to Sec.  1926.1400 of the 
crane standard, as proposed, in order to exclude flash-butt welding 
trucks and equipment with similar attachments from the requirements of 
part 1926, subpart CC.
    Flash-butt welding trucks are RMMs with low-hanging workhead 
attachments. These machines are equipped with an attachment designed to 
suspend and move a welding workhead low and close to the rails in order 
to precisely weld two sections of rail together. Other machines that 
fall within this 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 to OSHA prior to publication of the proposed rule (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 believes that equipment in this class does not 
present the types of safety hazards OSHA intended to address in the 
crane standard.
    In response to the proposed rule, OSHA received two public comments 
that addressed this issue directly. One comment was submitted jointly 
by BRS and BMWED (see Docket ID: OSHA-2015-0012-00014). The labor 
organizations stated that they generally support the proposal to revise 
Sec.  1926.1400(c) to expressly exempt flash-butt welding trucks and 
other RMMs equipped only with hoisting devices used to suspend and move 
their workhead assemblies low and close to the rails. The labor 
organizations also noted that the adoption of the proposed exemption 
``does not appear to compromise worker safety.''
    Another comment was received from the AAR (see Docket ID: OSHA-
2015-0012-00011, p. 7). The AAR stated that ``flash-butt welding trucks 
and other roadway maintenance machines with low-hanging workhead 
attachments should be exempted from the requirements of the OSHA Crane 
Standard and so should be added to the equipment specifically exempted 
under [Sec.  1926.1400(c)].''
    OSHA is revising Sec.  1926.1400(c) to expressly exempt flash-butt 
welding trucks and other RMMs equipped only with hoisting devices used 
to suspend and move their workhead assemblies low and close to the 
rails, as proposed.

B. New 29 CFR 1926.1442 To Address Railroad Equipment

    Title 29 CFR 1926.1442, which addresses severability, is currently 
the last section of the crane standard. OSHA

[[Page 57111]]

is redesignating the severability provision currently in 29 CFR 
1926.1442 as Sec.  1926.1443 to enable the addition of a new Sec.  
1926.1442 dedicated to the RMMs addressed in this rulemaking.
    Rather than insert the various new RMM exceptions throughout 
subpart CC, this final rule consolidates them into a single section for 
the convenience of the affected parties and to maintain the 
organizational integrity of subpart CC. Aside from the Sec.  
1926.1400(c)(18) exclusion for flash-butt welding trucks and similar 
equipment, Sec.  1926.1442 will contain all of the new provisions 
addressed through the settlement.
    OSHA received one comment directly addressing this change. The BRS, 
in a joint comment with the BMWED, supported the consolidation 
indicating it would be convenient for all affected parties. (See Docket 
ID: OSHA-2015-0012-0014, p. 2.)
    Thus, OSHA is finalizing the redesignation of this section as 
proposed.

C. Scope of New Sec.  1926.1442

    New Sec.  1926.1442(a) sets out the scope of the new exemptions. 
The limited exemptions for railroads in the new Sec.  1926.1442 apply 
to work on the construction of railroad tracks and supporting 
structures, including the railroad ties supporting the tracks, the 
ballast and the road bed that support the track and ties, and the poles 
and other structures on which railroad signal devices and signage are 
mounted.
    The exemptions do not apply to other types of construction 
activities that may be related to railroads, such as the construction 
of buildings, retaining walls, fences, or platforms controlled by 
railroads. When the exemptions do not apply, the crane standard 
continues to apply to construction activities conducted by employers in 
the railroad industry as it does to employers in other industries.\2\
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    \2\ The crane standard already incorporates additional 
provisions addressing railroad activities. (See, e.g., Sec.  
1926.1420(b)(2) (communications near railroads).) Some of those 
provisions already exempt railroad employers from certain 
requirements, and those exemptions would continue to apply. New 
Sec.  1926.1442(a) states that all other ``requirements'' would 
continue to apply, but exemptions for railroad activities already in 
the crane standard would continue to exempt such activities.
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    In the proposed rule, OSHA had proposed to limit the scope of the 
exemptions in Sec.  1926.1442 only to construction of railroad tracks 
and supporting structures other than bridge construction (83 FR at 
34079). In this final rule, OSHA is applying these exemptions to 
equipment covered by subpart CC that meets the definition of ``Roadway 
Maintenance Machine'' as defined in 49 CFR 214.7, regardless of whether 
the equipment is used for railroad bridge construction work or for 
other construction work involving railroad tracks and supporting 
structures. In its comments in response to the proposed rule, AAR noted 
that ``FRA regulations also cover bridge construction work'' and that 
accordingly ``the distinction found in proposed Sec.  1926.1442(a) for 
bridge construction work is no longer appropriate and not legally 
accurate (see Docket ID: OSHA-2015-0012-00011, p. 5).
    The scope of these exemptions in the final rule reflects the extent 
to which FRA has acted to preempt OSHA regulatory authority in 
accordance with section 4(b)(1) of the OSH Act, as discussed earlier. 
See 79 FR 66460 and FRA's communication to OSHA in Docket ID: OSHA-
2015-0012-0015. FRA made clear in its 2019 communication to OSHA that 
it intended to preempt the relevant provisions of OSHA's standard 
without regard to whether they applied to bridge construction or not 
(see, e.g., FRA's response to OSHA's first question: ``. . . [FRA 
regulations] oust OSHA's similar construction standards, including 
standards relating to bridge construction . . .''). The distinction for 
bridge construction work in proposed Sec.  1926.1442(a) is no longer 
appropriate and therefore was not included in this final rule. To 
prevent the removal of the proposed distinction for bridge work from 
inadvertently expanding the exemptions beyond activities regulated by 
FRA, however, the final rule specifies that the exemptions apply only 
to the extent that the RMM activities remain subject to the authority 
of FRA. For example, OSHA's exemptions would apply to railroad bridge 
construction subject to subpart B of 49 CFR part 214 (Bridge Worker 
Safety Standards), but the use of cranes to construct a highway bridge 
over railroad track would not be exempt to the extent that FRA lacks 
authority to regulate that activity to ensure the safe operation of 
that equipment. OSHA's crane standard, including its requirements for 
operator training, certification, and evaluation, would apply in full 
to the latter class of construction activity.

D. Section 1926.1442(b)(1) Operator Certification, Training, and 
Evaluation

    This final rule paragraph provides exemptions in accordance with 
section 4(b)(1) of the OSH Act, which exempts from the Act the working 
conditions of certain 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, 
FRA promulgated training requirements for operators of RMMs equipped 
with hoisting devices. FRA's rule included a clear statement in the 
preamble that after the effective date of the 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 (November 7, 2014)). FRA had previously issued its 
proposed rule with a similar statement prior to OSHA's settlement 
agreement with AAR, so the draft regulatory language in OSHA's 
settlement agreement included a proposed exemption from the operator 
certification requirements of Sec.  1926.1427. In the NPRM for this 
rulemaking, OSHA went further and stated that it read FRA's final-rule 
statement as preempting all OSHA requirements that would apply to the 
training, certification, and assessment of operators of RMMs (83 FR at 
34079). OSHA therefore proposed to exempt all of the operator 
``qualification and certification'' requirements in Sec.  1926.1427, as 
well as the operator training requirements in Sec.  1926.1430, and 
sought comment on whether any additional provisions should be cited in 
the exemption (83 FR at 34080).
    OSHA received two comments, both agreeing that FRA's statement 
should be read as broadly preempting all of OSHA's operator training, 
evaluation, and certification requirements with respect to operators of 
RMMs. A joint comment from the labor organizations BRS and BMWED 
affirmed that the hazards OSHA had identified when promulgating the 
operator certification requirements do exist in the railroad industry 
but did not object to OSHA's exemption for certification and training 
so long as ``this exemption does not relieve the FRA from its 
responsibility to assure that these hazards are addressed.'' (See 
Docket ID: OSHA-2015-0012-0014.)
    AAR, whose comment was endorsed by several other commenters, 
asserted that FRA regulation prohibits OSHA from enforcing requirements 
regarding ``all aspects of operator training,'' including ``the 
evaluation and assessment of roadway maintenance machine operators.'' 
(See Docket ID: OSHA-2015-0012-0011, pp. 4-5.) AAR also noted that 
OSHA, in a separate rulemaking, had proposed new training and 
evaluation requirements for

[[Page 57112]]

operators of three specific categories of cranes for which operator 
certification was not required: Sec. Sec.  1926.1436(q) (Qualification 
and training for derricks), 1926.1440(a) (Sideboom cranes), and 
1926.1441(a) (Equipment with a rated hoisting/lifting capacity of 2,000 
pounds or less) (see Cranes and Derricks in Construction: Operator 
Qualification, 83 FR 23534, 23568-23569 (May 21, 2018)). AAR 
recommended that OSHA expressly exempt operators of RMMs from the 
training and evaluation provisions proposed in those sections.
    OSHA agrees with AAR and is therefore expanding the exemptions in 
final rule Sec.  1926.1442(b)(1). Like the proposed rule, the final 
rule includes an explicit exemption from the training, certification, 
and evaluation requirements for these operators in Sec. Sec.  1926.1427 
and 1926.1430, to provide clear notice to employers in the railroad 
industry that might not otherwise be aware of the effect of FRA's rule 
on OSHA's standard. The final rule goes further. Although OSHA did not 
ultimately include any operator evaluation requirements in Sec.  
1926.1436(q), Sec.  1926.1440(a), or Sec.  1926.1441(a),\3\ the 
exemption in this final rule also applies to operator qualification 
requirements in Sec. Sec.  1926.1436(q), 1926.1440(a), and 
1926.1441(a), as AAR requested, based on FRA's statement of intent to 
exercise jurisdiction over all aspects of operator training.
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    \3\ See explanation in OSHA's final rule for Cranes and Derricks 
in Construction: Operator Qualifications, 83 FR 56198, 56209 
(November 9, 2018).
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    The exemption in Sec.  1926.1442(b)(1) also extends to the 
requirements for the assessment and evaluation of crane operators. 
Under Sec.  1926.1427, as amended in 2018, employers are required to 
evaluate their operators to ensure competency to operate specific 
cranes. Although FRA's final rule predated the promulgation of OSHA's 
assessment and evaluation requirements, OSHA reads FRA's statements 
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, assessment, and evaluation of operators of RMMs.

E. Section 1926.1442(b)(2) Rail Clamps, Rail Stops, and Work-Area 
Controls

    This final rule paragraph provides exemptions in accordance with 
section 4(b)(1) of the OSH Act.
    Final rule Sec.  1926.1442(b)(2) exempts employers from three 
requirements. Section 1926.1442(b)(2)(i) and (ii) provides exemptions 
from subpart CC requirements for using rail stops and rail clamps on 
equipment covered by subpart CC. Under Sec.  1926.1442(b)(2)(iii), OSHA 
provides an exemption from work area controls specified by Sec.  
1926.1424(a)(2) when employers are subject to the on-track safety 
program requirements of 49 CFR 214.307(b).
    FRA's interpretation of its regulations in its communication to 
OSHA stated clearly that it intended the regulations at 49 CFR part 214 
(specifically, Sec. Sec.  214.307, 214.341(b), and 214.357(b)) to 
preempt all three categories of OSHA's requirements when operating 
RMMs: ``FRA regulations ensure employers put in place sufficient 
protections to prevent the types of hazards that OSHA intended to 
prevent through its work-area control, rail clamp and rail stop 
requirements.'' (See Docket ID: OSHA-2015-0012-0015.)
    Comments received in response to the proposal were supportive of 
the proposed exemptions for rail stops, rail clamps, and work area 
controls. (See Docket IDs: OSHA-2015-0012-0011, p. 7-8; OSHA-2015-0012-
0014, p. 2.) In light of FRA's stated intention to preempt OSHA's 
provisions in these areas without the limitations OSHA had included in 
the proposed rule, the exemptions in this final Sec.  1926.1442(b)(2) 
are expanded from the proposal. In the proposed rule, OSHA had included 
caveats to these exemptions; in the final rule, the proposed caveats 
have been removed, consistent with the extent of FRA's regulatory 
requirements.

F. Section 1926.1442(b)(3) Out-of-Level Work

    This paragraph provides exemptions in accordance with section 
4(b)(1) of the OSH Act.
    Section 1926.1442(b)(3) exempts RMMs from restrictions on out-of-
level work. These OSHA restrictions, including the requirements to 
comply with out-of-level manufacturer procedures in Sec.  1926.1402(b), 
the inspection requirements in Sec.  1926.1412(d)(l)(xi), and the 
requirement that machines have out-of-level indicators in Sec.  
1926.1415(a)(l), address the risk of equipment tipover and loss of 
control of the load.
    The record in this rulemaking indicates that out-of-level operation 
is a longstanding and necessary practice in the railroad industry. 
Industry practices already account for load-chart adjustments and other 
standard practices to address out-of-level work. In 2010, OSHA 
responded to the unique nature of railroad work conditions with an 
exception to the out-of-level work prohibition for railroad equipment 
but limited the exception to include only equipment traveling on the 
tracks (see Sec.  1926.1402(f)). Following the rulemaking, AAR 
explained that many RMMs, 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. OSHA therefore 
proposed an expanded exemption that would have applied to RMMs even 
when operated off the track but would have required a registered 
professional engineer (RPE) or another qualified person to make 
adjustments to the manufacturer-provided load charts that typically 
anticipate operation on level ground (83 FR at 34080).
    All of the comments addressing this provision supported the 
exemption. One commenter supported OSHA and agreed that ``these 
proposals, if promulgated, would maintain safety and health protections 
while reducing employers' compliance burdens.'' (See Docket ID: OSHA-
2015-0012-0010.) Another commenter also expressed support for the 
exemption and stated that it is ``helpful.'' (See Docket ID: OSHA-2015-
0012-0011, p. 8.)
    A third commenter suggested that the ``approvals must be in writing 
and be included in the `Instructions Document' required under 
214.341(b).'' This commenter also suggested that the option of allowing 
a qualified person to make additional adjustments should be removed 
because ``the equipment manufacturer and an RPE are the only 
professionals qualified with the knowledge and expertise necessary to 
adjust load charts for railroad operations.'' (See Docket ID: OSHA-
2015-0012-0014, p. 3.)
    FRA subsequently communicated to OSHA that it intends its 
regulations at 49 CFR part 214, subparts C and D, including Sec. Sec.  
214.341 and 214.357, to ``govern the safe operation of roadway 
maintenance machines (including those with cranes) such that they oust 
OSHA's similar construction standards . . . that would otherwise 
require operators of this equipment to comply with crane manufacturer's 
procedures.'' (See Docket ID: OSHA-2015-0012-0015.) FRA also stated 
that its regulations ``do not directly limit out-of-level work, but 
that issue may be indirectly addressed in a manufacturer's instructions 
or the instructions established by an employer that replace the 
manufacturer's instructions.'' (Id.) OSHA interprets this response as 
indicating that OSHA is foreclosed from imposing conditions on out-of-
level work.

[[Page 57113]]

    Therefore, OSHA is issuing this exemption in this final rule as a 
broad exemption from the prohibition on out-of-level work without any 
of the conditions required in the proposal.

G. Section 1926.1442(b)(4) Dragging a Load Sideways

    The exemption in Sec.  1926.1442(b)(4) in this final rule provides 
relief from the prohibition in Sec.  1926.1417(q) against using cranes 
or derricks to drag a load sideways. It has been an existing practice 
during many track construction projects for RMMs to drag rail or ties 
sideways. The practice of dragging long pieces of rail sideways off the 
ties or to position them on top of the ties is routine and critical to 
the process of track construction. This practice does not have a ready 
alternative, does not involve lifts more than a few feet off the 
ground, and the movement of the load is predictable because the 
procedure is repeated over and over with the same materials.
    None of the commenters opposed this exemption. One comment in 
response to the proposed rule expressed general support for ``the 
exemptions in the Proposed Rule and the changes made pursuant to the 
settlement agreement between OSHA and AAR.'' (See Docket ID: OSHA-2015-
0012-0011, p. 9.) Another comment supported this exemption, stating 
that ``the long existing practice of dragging a load sideways in the 
rail industry is absolutely crucial for the rail industry to perform.'' 
(See Docket ID: OSHA-2015-0012-0014, p. 3.)
    Therefore, OSHA is including this exemption in the final rule as 
proposed.

H. Section 1926.1442(b)(5) Boom-Hoist Limiting Device

    Section 1926.1442(b)(5) of this final rule clarifies existing Sec.  
1926.1416(d)(1), which requires equipment manufactured after December 
16, 1969, to have a boom-hoist limiting device. Traditionally, boom 
hoists wind wire rope around a revolving drum. At the other end of the 
wire rope is a ball, to which a hook or other device can be attached, 
that can be pulled up toward the tip of the boom. The boom hoists 
continue to wind until stopped by the operator, a limiting device, or 
by damaging the machine. The process is somewhat analogous to a 
fisherman winding line on a rod and reel: If too much winding occurs, 
the lure is pulled into the rod tip; more winding bends and breaks the 
rod or detaches the lure. The limiting device prevents similar results 
on boom-hoist equipped cranes and derricks by automatically stopping 
winding when the ball is pulled too close to the tip of the boom. On 
hydraulic cylinder/piston equipped booms, the Sec.  1926.1416(d)(1) 
requirement for a limiting device is redundant because the stroke or 
piston travel is an inherent limit in each cylinder/piston. Thus, OSHA 
proposed to exempt RMMs using a hydraulic piston for raising and 
lowering the boom from the requirement for a boom-hoist limiting device 
in Sec.  1926.1416(d)(1) (83 FR at 34081).
    Both commenters addressing this provision supported the exemption. 
(See Docket ID: OSHA-2015-0012-0011, p. 9 and OSHA-2015-0012-0014, p. 
3.) One of the commenters noted that ``the Sec. 1926.1416(d)(1) 
requirement for a limiting device is redundant because the stroke or 
piston travel is an inherent limit in each cylinder/piston. . . . We 
support this proposed section and the clarification it brings'' (see 
Docket ID: OSHA-2015-0012-0014, p. 3).
    Therefore, OSHA is including this provision in the final rule as 
proposed.

I. Section 1926.1442(b)(6) Manufacturer Guidance for Modifications 
Covered by Sec.  1926.1434

    Section 1926.1442(b)(6) in this final rule provides an exemption 
for certain railroad machines from the requirements of Sec.  1926.1434, 
which requires employers to obtain and follow the equipment 
manufacturer's guidance for equipment modifications. OSHA's proposed 
exemption was conditioned on procedural prerequisites such as the 
employer obtaining approval from an RPE for equipment modifications not 
permitted by the manufacturer (83 FR at 34081). The AAR and the two 
labor organizations (BRS and BMWED) addressed the issue and supported 
the exemptions, while the latter comment requested that engineer 
approval be in writing. (See Docket ID: OSHA-2015-0012-0011, p. 7; 
OSHA-2015-0012-0014, p. 3.)
    As discussed earlier with respect to out-of-level work, however, in 
49 CFR 214.341 and 214.357 FRA has chosen to address the issue of 
manufacturer's guidance and how it will allow departure from that 
guidance. FRA communicated to OSHA that FRA views its regulations as 
preempting OSHA's jurisdiction to require compliance with manufacturer 
instructions and guidance. (See Docket ID: OSHA-2015-0012-0015.) 
Therefore, to reflect the extent of FRA's preemption, OSHA has included 
this exemption in the final rule without the associated procedural 
prerequisites proposed in the corresponding paragraph.

J. Section 1926.1442(b)(7) Other Manufacturer Guidance

    Section 1926.1442(b)(7) in this final rule provides an exemption 
for certain RMMs from the requirements of several other sections of 
subpart CC that require employers to follow the manufacturer's 
guidance, instructions, procedures, prohibitions, limitations, or 
specifications. The requirements are found in Sec. Sec.  1926.1404(j), 
(m), and (q); 1926.1417(a), (r), (u), and (aa); 1926.1433(d)(1)(i); and 
1926.1441. Under the final rule, these requirements do not apply if the 
employer is subject to the requirements of 49 CFR part 214.
    As with the exemptions from manufacturer requirements in Sec.  
1926.1442(b)(6), OSHA's proposed exemption had also been conditioned on 
procedural prerequisites such as obtaining the approval of an RPE (83 
FR at 34082). Again, the AAR and the two labor organizations (BRS and 
BMWED) provided the only comments specifically addressing the issue and 
the comments supported the exemptions while the latter comment 
requested that engineer approval be in writing. (See Docket ID: OSHA-
2015-0012-0011, p. 7; OSHA-2015-0012-0014, p. 3.)
    FRA's statement that it views the regulations at 49 CFR 214.341 and 
214.357 as preempting OSHA requirements to comply with manufacturer 
requirements is also applicable to the exemption in Sec.  
1926.1442(b)(7). (See Docket ID: OSHA-2015-0012-0015.)
    Therefore, to reflect the extent of FRA's preemption, OSHA has 
included this exemption in the final rule without the associated 
procedural prerequisites proposed in the corresponding paragraph.

III. Final Economic Analysis and Regulatory Flexibility Analysis

    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)) require OSHA to estimate the costs, assess the benefits, and 
analyze the impacts of certain rules that the agency promulgates. 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, reducing costs, harmonizing rules, and promoting 
flexibility.
    The estimated cost savings for employers for this final rule are 
the difference between the full cost of the 2010 rule and the residual 
costs left after the exemptions of this final rule are in place, which 
is a savings of $17.1 million per year at a discount rate of 3

[[Page 57114]]

percent.\4\ This final rule 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.
---------------------------------------------------------------------------

    \4\ At a discount rate of 7 percent, the cost savings are $18.6 
million per year. 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 2018 dollars.
---------------------------------------------------------------------------

    When it issued the final crane standard in 2010, OSHA prepared a 
final economic analysis to ensure compliance with the OSH Act and 
Executive Order 12866 (58 FR 51735) (September 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 final economic analysis (FEA) not only addresses the economic 
impact on the railroad industry of the 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 on the data 
used for the proposed rule in the preliminary economic analysis (PEA) 
for this rulemaking (83 FR at 34082-87). OSHA requested public comment 
on the PEA but did not receive any comments challenging the validity of 
the economic estimates provided in the PEA.
    The PEA used the same methodology applied to other industries in 
the 2010 economic analysis of the crane standard. In conducting the 
preliminary analysis, the agency relied mainly on the best available 
economic data provided by AAR to the agency as part of the settlement 
agreement. The agency provided a list of questions to AAR. To help 
answer the questions, AAR decided to send out a survey to its Class I 
freight railroad members. It then 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 (79 FR 57785), form the basis of the 
original PEA, and hence this FEA. The major changes between this FEA 
and the PEA are wages and prices updated to 2018 dollars as well as 
decreased costs due to expansion of several of the exemptions.
    As noted earlier in this document, in spring 2019 (following the 
publication of OSHA's NPRM), FRA provided OSHA additional information 
clarifying that FRA intends that its regulations preempt the potential 
applicability of a number of the OSHA requirements addressed in OSHA's 
NPRM. (See Docket ID: OSHA-2015-0012-0015.) In this final rule, OSHA is 
amending the CFR to include these corresponding exemptions. This step 
of codifying exemptions was requested by AAR to remove any ambiguity 
regarding the application of these provisions of the crane standard to 
the railroad industry. In the discussion that follows, OSHA has 
identified the reduction in costs that result from employers not being 
required to comply with these provisions. For consistency with the 
analysis provided in the PEA, OSHA has continued to rely on the same 
baseline costs identified in the PEA, which makes it easier to quantify 
the cost reductions that result from compliance with fewer provisions 
of the crane standard.
    One of the major impacts of the expanded exemptions is that whereas 
the settlement agreement had limited the exemptions to activities other 
than bridgework (meaning that the equipment or activities for 
bridgework would be subject to the general requirements in OSHA's crane 
standard), FRA stated that it was preempting the applicable provisions 
in OSHA's proposed rule without regard to whether they related to 
bridgework. Thus, PEA costs associated with bridgework are no longer 
counted as costs of this final rule.
    FRA's preemption interpretation and OSHA's corresponding exemptions 
in this final rule relieve the railroad industry of many cost burdens 
related to the crane standard. OSHA estimates that the 2010 rule would 
have cost the railroad industry $24.7 million annually in 2018 dollars. 
The residual total of the 2010 crane rule after the exemptions of this 
final rule is $7.6 million in costs for the railroad industry. Thus, 
railroad employers will save $17.1 million per year at a discount rate 
of 3 percent. At a discount rate of 7 percent, the 2010 rule would have 
cost the railroad industry $26.2 million annually, has a residual total 
of costs of $7.6 million, and hence has cost savings of $18.6 million. 
When the agency uses a perpetual time horizon to allow for cost 
comparisons under E.O. 13771, the annualized cost savings are $4.1 
million per year in 2016 dollars with 7 percent discounting.\5\ These 
cost savings are conservative in that several exemptions, described 
below, are not estimated quantitatively (the associated costs were not 
estimated in the 2010 rule) but those exemptions could appreciably 
increase total cost savings if they could be calculated.
---------------------------------------------------------------------------

    \5\ This perpetual cost calculation is in 2016 dollars for a 
horizon starting in 2020.
---------------------------------------------------------------------------

A. Scope of the Exemptions

    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).\6\ Class I 
railroads are the largest railroads with the greatest amount of revenue 
and primarily comprise seven large freight railroads and the Amtrak 
passenger rail service. They operate over 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 over much smaller sections of track or operate on track 
owned by the Class I railroads.
---------------------------------------------------------------------------

    \6\ See 49 CFR part 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 operating revenues of less than $20 million.
---------------------------------------------------------------------------

    OSHA has imperfect information about the three classes of 
railroads. The AAR survey covered only the Class I freight railroads. 
AAR was also able to provide additional information it obtained from 
Amtrak, but due to incomplete 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 final rule, the agency has followed the same 
procedure as it did in the PEA and 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.\7\ 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

[[Page 57115]]

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 
RMMs that might fall within the scope of OSHA's crane standard (AAR, 
2015), and Amtrak stated that it operates 303 RMMs that might fall 
within that standard (Amtrak, 2017). Assuming that non Class-I 
railroads use RMMs in the same way as Class I railroads, OSHA is able 
to estimate the total number of potentially covered RMMs by scaling up 
the total number of Class I RMMs by the ratio of total track to Class I 
track, or 1.46 (139,400/(94,400 + 852)).\8\ With the total number of 
Class I RMMs at 7,238 (6,935 freight + 303 Amtrak), the final estimate 
of all RMMs is 10,593 (7,238 x 1.46). To the extent that Class I 
railroads perform track work for other segments of the railroad 
industry, this markup will be an overestimate. The agency solicited 
comment but received none on this issue and so used the same 
methodology for this FEA.
---------------------------------------------------------------------------

    \7\ ``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)).
    \8\ From this point forward, this FEA refers to the ratio of 
total track to Class I track (1.46) as ``the standard markup.''
---------------------------------------------------------------------------

    Based on information provided by FRA's 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, plant railroads (that do not operate on the general 
railroad system of transportation \9\), freight car manufacturers, 
freight car repair facilities or companies that provide specialized 
rail services and switching and terminal railroads. The agency assumes 
2012 data continue to approximate industry conditions today.
---------------------------------------------------------------------------

    \9\ The general railroad system of transportation refers to 
``the network of standard gage track over which goods may be 
transported throughout the nation and passengers may travel between 
cities and within metropolitan and suburban areas.'' 49 CFR part 
209, appendix A.
---------------------------------------------------------------------------

    To account for the cost savings from the final rule exemptions, the 
number of RMMs must be broken out into two subcategories. There is a 
small group of RMMs that would fit into the full exemption for flash-
butt welding trucks and similar equipment under Sec.  1926.1400(c)(18). 
AAR reported that its members had 22 RMMs that would fall within the 
exemption (AAR, 2015), while Amtrak indicated that none of its RMMs 
would do so (Amtrak, 2017).\10\ Using the same ratio to account for 
these exempt RMMs in Class II and III railroads, OSHA estimates that 
there is a total of 32 pieces of such exempt RMMs across the entire 
railroad industry (1.46 x 22). Therefore, OSHA estimates that 7,216 
(7,238-22) Class I RMMs, and an industry total of 10,561 (10,593-32) 
RMMs, would fall under at least some provisions of the crane rule. 
Again, OSHA did not receive any comment on these estimates, which are 
unchanged from the PEA.
---------------------------------------------------------------------------

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

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

    When OSHA promulgated the crane standard in 2010, the agency did 
not include an economic analysis of the costs imposed by that standard 
on the railroad industry. In order to estimate cost savings of this 
final rule, the agency must now estimate the costs the railroad 
industry would have been subject to if it had been required to comply 
with all requirements of the 2010 crane standard. OSHA has now 
estimated those costs, first in the PEA and now updated for this FEA. 
Table B-9 of the 2010 final rule (75 FR at 48104) shows that railroads 
are in the ``Own but Do Not Rent'' sector of the industry profile. The 
agency estimated the costs of the 2010 final 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. In 
the PEA the agency recognized this proxy may be imperfect and solicited 
comment on these estimates but received none, and so has continued to 
use them for this FEA (83 FR at 34083).
    In the PEA, OSHA noted that costs other than operator certification 
would have been incurred by railroad employers using equipment covered 
by OSHA's crane standard (id.). Most 2010 rule provisions other than 
operator certification and training are not operator specific, so the 
agency, as it did in the PEA, estimated the cost of the 2010 
requirements by identifying the per-crane non-operator cost of the 2010 
final rule and applying that cost (inflated to 2018 dollars using the 
GDP deflator) to the number of affected RMMs in the railroad sector.
    The ``Own but Do Not Rent'' sector in Table B-9 (75 FR at 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).\11\ The ``Own but Do Not Rent'' sector was 
listed as having 50,807 cranes and other covered equipment (Table B-11, 
75 FR at 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 1.15 GDP deflator 
factor for 2010-2018, this cost brought forward to 2018 dollars is $724 
(Bureau of Economic Analysis (BEA), 2018).
---------------------------------------------------------------------------

    \11\ 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. Therefore, 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. OSHA promulgated a revision to the crane 
standard in 2018 that included some additional costs for evaluating 
operators and some additional savings from removing the requirement 
for multiple operator certifications for different crane capacities 
(see 83 FR 56198, 56236-56239 (Nov. 9, 2018)). The new exemption in 
Sec.  1926.1442(b)(1) applies to all crane operator training, 
certification, and evaluation requirements. Thus, the exemption in 
this railroad rulemaking ensures that there is no economic impact on 
the railroad industry from the 2018 final rule.
    Costs for operator certification are annualized over 5 years, 
reflecting the 5 year length for which a certificate is valid. All 
other costs are the same each year and so do not need to be 
annualized.
---------------------------------------------------------------------------

    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 $7,673,147 (10,593 x $724.38; 2018 dollars). 
The exception for flash-butt welding trucks and similar equipment 
removes 32 RMMs and lowers the cost in 2018 dollars to $7,649,824 
(10,561 x $724.38), which is a savings of $23,323.
    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 exemptions: Rail clamps and rail stops. These 
were not included in the 2010 rule 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 in the railroad industry under the exemption in Sec.  
1926.1442(b)(2)(i) in this final rule. 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 has in stock would need to be purchased to comply 
with the existing crane rule (AAR, 2015). Further communication from 
AAR stated that Amtrak would need 157 additional clamps (Amtrak, 2017). 
These rail clamps would have imposed new up-

[[Page 57116]]

front, maintenance, and replacement costs on the industry.
    In the PEA, OSHA estimated a total initial cost for rail clamps of 
$51,104,943, plus an additional $4,897,557 annual cost for 
maintenance.\12\ OSHA requested comment but received none and is 
therefore incorporating the same costs into this final economic 
analysis. OSHA derived these costs first by applying the standard 
markup of 1.46 to estimate the total railroad industry-use clamps as 
8,517 (1.46 x (5,663 + 157)). OSHA then estimated 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 
selected the higher-end of the typical cost of $6,000 from the AAR 
survey. Therefore, the total initial cost for rail clamps would have 
been $51,104,943 (8,517 x $6,000). Annualized over 10 years at a 
discount rate of 3 percent, the annualized cost would have been 
$5,991,058. Annual maintenance costs per clamp are estimated at $575 
for a total annual maintenance cost of $4,897,557 (8,517 x $575).\13\
---------------------------------------------------------------------------

    \12\ While most costs here are the same each year, both rail 
clamps and stops have an initial upfront cost. The agency annualizes 
all initial costs over 10 years, its standard procedure. For 
replacement costs it also uses a 10 year horizon. All final costs 
presented use this 10 year horizon for annualization when needed.
    \13\ The estimate of $575 is the midpoint of the range in the 
AAR survey of $450 to $700 ($575 = ($450 + $700)/2).
---------------------------------------------------------------------------

    Railroads would have also incurred replacement costs as clamps 
reach the end of their useful lifespan. From the AAR 2015 survey, the 
number of replacement clamps needed over 10 years for Class I freight 
railroads would have been 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 developed an estimate for additional 
replacement clamps based on the ratio of Class I freight railroad track 
to all other track. The resulting markup factor for purely Class I 
freight track as compared to the entire U.S. railroad industry track is 
1.48 (139,400 miles of total U.S. track/94,400 miles of Class I freight 
track). Applying this freight markup to the total number of replacement 
clamps produces an estimate of 6,236 for the entire industry (4,223 x 
1.48). If 10 percent of these clamps were replaced each year, then with 
the unit cost equal to the purchase price of $6,000, annual replacement 
costs would have totaled $3,741,650 (6,236 x 10% x $6,000).\14\ Added 
together, the railroad industry will save $14,630,265 annually by 
avoiding the costs for rail clamps ($5,991,058 initial annualized cost 
+ $4,897,557 maintenance + $3,741,650 replacement clamps).
---------------------------------------------------------------------------

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

    Rail stops are the second type of equipment exempted by Sec.  
1926.1442(b)(2)(ii) in this final rule. In order to comply with the 
2010 crane standard, AAR indicated that 11,326 additional rail stops 
beyond what the Class I freight railroads 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 FEA and applied to the sum of Class I rail stops and 
Amtrak rail stops produces an estimated 17,035 additional rail stops 
for the entire industry (1.46 x (11,326 + 314)). The unit cost of a 
rail stop is $300 each (AAR, 2015); therefore, the total initial cost 
of rail stops would have been $5,110,494 (17,035 x $300). Annualized 
over 10 years at a discount rate of 3%, the annual cost would have been 
$599,106. Annual maintenance costs per stop are $30 (AAR, 2015); 
therefore, total maintenance cost would have been $511,049 (17,035 x 
$30).
    OSHA also estimated annual replacement costs for these additional 
rail stops. The number of additional 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 additional replacement 
stops required for Amtrak or the Class II and III railroads. OSHA again 
uses the markup of the ratio of all U.S. railroad track to Class I 
freight railroad track, which is 1.48. The number of additional 
replacement stops needed for the whole industry would have been 15,410 
(1.48 x 10,436). If 10 percent of the replacement stops will be 
introduced each year then 1,541 replacement railroad stops will be 
required each year (15,410 x 0.10). 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 additional 
replacement rail stops is $462,324 (1,541 x $300). Added together, 
annual cost savings to the railroad industry of this exemption from the 
2010 crane standard for railroad stops are $1,572,479 ($599,106 initial 
annualized cost + $511,049 maintenance + $462,324 replacement stops).
---------------------------------------------------------------------------

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

    The total annual costs savings of both railroad stops and clamps in 
2015 dollars is $16,202,744 ($14,630,265 + $1,572,479). In 2018 
dollars, the annual cost savings for both railroad stops and clamps is 
$17,067,100.\16\
---------------------------------------------------------------------------

    \16\ In the PEA, OSHA estimated that 94 percent of equipment 
requiring rail clamps and rail stops would be exempted under the 
proposal, but some rail clamps and rail stops would still be 
required for bridgework (not exempt under the proposal). OSHA 
accordingly reduced the cost savings by $1,053,284 (see 83 FR 
34085). The final rule, however, recognizes the FRA's preemption of 
all of OSHA's requirements for rail clamps and rail stops in the 
railroad industry, without any distinction for bridgework. Thus, in 
this FEA the savings attributable to rail clamps and rail stops is 
slightly higher than in the PEA because there are no rail clamp or 
rail stop costs for the railroad industry. The cost savings of 
$17,067,100 in 2018 dollars is calculated from the cost savings in 
2015 dollars of $16,202,744 times the 2015-2018 GDP deflator markup 
of 1.053 (rounded).
---------------------------------------------------------------------------

D. Work Area Controls

    OSHA estimates no economic impact from the exemption in Sec.  
1926.1442(b)(2)(iii) 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 FRA has stated its intent that the railroad industry is 
now fully exempted from this provision of OSHA's crane standard. OSHA 
noted in the PEA that even absent the preemption, OSHA believes that 
the railroads could comply with OSHA's requirements without incurring 
significant new costs. Therefore, OSHA did not identify a new cost for 
this requirement nor treat the final rule as resulting in any cost 
saving. OSHA requested comment on this approach but received none. 
Therefore, OSHA has maintained the same approach in this FEA.

E. Out-of-Level Work

    The 2010 crane rule economic analysis did not estimate any cost 
increase due to the prohibition on out-of-level work applicable to RMMs 
traveling off of railroad tracks, and in the PEA for this rulemaking, 
OSHA did not estimate any cost savings attributable to the 
corresponding exemption from this requirement. OSHA requested comment 
but received none and therefore does not estimate

[[Page 57117]]

any cost or cost savings in this FEA for the exemption for out-of-level 
work.

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 
for this exemption in this final rule. It is possible that the 
exemption does result in significant cost savings. AAR indicated that 
RMMs regularly need to drag long portions of rail sideways during the 
process of installing or replacing the rail, ties, or underlying 
roadbed. 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 did not include any cost saving in the PEA. 
OSHA solicited comment on this approach but received none and is 
therefore not estimating any cost savings in this FEA, even though it 
recognizes that the total cost savings of this final rule may therefore 
be underestimated.

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. Therefore, OSHA did not include any new costs for this 
requirement in 2010. OSHA did not estimate any cost savings for this 
exemption in the PEA and received no comment on that decision, and in 
this FEA there are no resulting cost savings from this exemption.

H. Manufacturer Guidance for Modifications Covered by Sec.  1926.1434

    The 2010 crane rule economic analysis estimated that there would be 
no new costs due to this provision because it was similar enough to the 
previous subpart N crane standard. In the PEA, the agency did not 
identify any cost savings from the proposed exemption (83 FR at 34085). 
OSHA received no comment on that approach and therefore again does not 
estimate any cost savings for the exemption, even as expanded in the 
final rule.

I. Operator Certification and Assessment

    Because FRA explicitly preempted OSHA's operator training and 
certification requirements when it issued its own operator training 
rules for railroads, in the PEA OSHA did not include any cost or 
savings related to operator training or certification. In this final 
rule OSHA has expanded its exemption to encompass all of the operator 
qualification requirements in the crane standard, including the 
evaluation requirements OSHA promulgated in 2018, consistent with the 
PEA. None of those changes, however, impact OSHA's economic analysis in 
the FEA because they are based on the recognition that FRA's explicit 
statement preempting OSHA's operator certification and training 
encompassed operator evaluations.

J. Total Annual Cost and Savings

    Finally, adding together the rail clamp/stop costs and the base 
non-operator costs, the total annual cost of the 2010 rule to the 
railroad industry would have been $24,740,247 ($17,067,100 + 
7,673,147). The non-operator costs left after excluding the items 
addressed in the exemptions, from above, are $7,649,824, a reduction of 
$17,090,423 ($24,740,247 - $7,649,824). These calculations are at a 
discount rate of 3 percent, using 2018 dollars. At a discount rate of 7 
percent, also using 2018 dollars, the reduction is $18,579,485.

K. Economic Impacts and Feasibility

    This section investigates the economic impacts of both the 2010 
rule and this final rule, whether they are economically feasible for 
the railroad industry as a whole, and whether the agency can certify 
that both rules will not have a significant economic impact on a 
substantial number of small entities. Since the railroad industry will 
incur only a fraction of the full costs attributable to the 2010 crane 
standard, a finding that the 2010 crane rule would have no significant 
economic impact implies the same for this final rule.
    In the PEA, OSHA preliminarily determined that the crane rule is 
economically feasible for the railroad industry and the agency 
certified that the proposed rule would not have a significant impact on 
a substantial number of small entities (83 FR at 34086-87). OSHA 
requested comment on those determinations but received none. The final 
rule does not include any provisions that added any costs not 
identified in the PEA, so the agency reaches the same conclusions with 
respect to the final rule. These conclusions rest on the same analysis 
as the PEA, which is repeated here.
    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 percent 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.
    OSHA relies on the Small Business Administration's (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, 2017). 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) (AAR, 2014). The agency estimates that all 7 freight railroads will 
be above the 1,500-employee SBA size standard. Non-Class I freight 
railroads employ 18,445, and with 574 firms their average number of 
employees is 33 (18,445/574). Put together, total freight employment is 
181,264 employees (162,819 + 18,445). Amtrak has more than 20,000 
employees and is also well above the small entity threshold.\17\ While 
there is likely to be a skew among non-Class I railroads, and some of 
these 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.
---------------------------------------------------------------------------

    \17\ While the number of Amtrak employees is not changed from 
the PEA, the source has been updated to reflect a 2018 publication. 
See Amtrak's FY 2018 Company Profile, p. 2, available at https://www.amtrak.com/content/dam/projects/dotcom/english/public/documents/corporate/nationalfactsheets/Amtrak-Corporate-Profile-FY2018-0319.pdf.
---------------------------------------------------------------------------

    According to AAR, the Class I freight railroads in 2012 had revenue 
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 did not receive revenue 
estimates regarding non-freight railroads, so applying the standard 
freight-only markup to those totals to account for passenger rail and 
other included entities, OSHA estimates $105.7 billion ($71.6b x 1.48) 
and $5.9 billion ($4b x 1.48), respectively, for total railroad and 
small railroad revenue. Using the GDP deflator to convert these amounts 
to 2018 dollars

[[Page 57118]]

results in $116.7 billion and $6.5 billion in revenue, respectively.
    OSHA applied AAR's report of 2012 operating income (profits) for 
Class I railroads to estimate the average profits of non-Class I 
railroads. Class I freight railroads' net income was $11.9 billion 
(AAR, 2014), and assuming that the Class I net income share was the 
same as its operating revenue share, OSHA derives a total freight 
industry net income of $12.6 billion ($11.9b/.94) in 2012, and hence 
small freight railroad total net income of $704 million ($12.6b-$11.9b) 
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 and other included entities, OSHA 
estimates $18.6 billion ($12.6b x 1.48) and $1.0 billion ($704b x 
1.48), respectively, for total railroad and small railroad net income. 
Using the GDP deflator to convert these amounts to 2018 dollars results 
in $20.4 billion and $1.1 billion in net income, respectively.
    Finally, OSHA allocates costs to the small railroads. The share of 
employment, rather than revenue, was judged to be a better proxy to 
estimate the costs of the 2010 crane rule for small railroads. From the 
information provided earlier, Class I freight employment is about 90 
percent of total freight railroad employment (162,819/181,264). With 
total railroad industry costs of $24.7 million, and, as usual, assuming 
the same ratio applies to non-freight railroads, total small railroad 
industry costs are $2.5 million ($24.7 million x (1-.90)). The 
revenues, profits, and costs are set out in Table 1.

     Table 1--Total and Small Railroad Industry Estimated Financial
                               Statistics
------------------------------------------------------------------------
              Description                          2018 dollars
------------------------------------------------------------------------
Revenue:
  Total Revenue........................  $117 billion.
  Small Entity Revenue.................  $6.5 billion.
Profit:
  Total Profit.........................  $20.4 billion.
  Small Entity Profit..................  $1.1 billion.
Cost:
  Total Cost...........................  $24.7 million.
  Small Entity Cost....................  $2.5 million.
------------------------------------------------------------------------

    The ratio of the 2010 crane rule's costs to revenue for all 
railroads is 0.02 percent ($24.7m/$117 billion) and for small railroads 
is 0.04 percent ($2.5m/$6.5 billion). The ratio of the 2010 crane 
rule's costs to profits for all railroads is 0.12 percent ($24.7m/$20.4 
billion) and for small railroads it is 0.23 percent ($2.5m/$1.1 
billion). Both easily pass OSHA's standard threshold impacts tests of 
costs being below 1 percent of revenue and 10 percent of profits (5 
percent of profits for small entities).
    For this final rule, from the above, the total residual costs for 
the railroad industry as a whole are $7,649,824. Using the same 10 
percent share for small railroads gives total costs for small railroads 
of $778,428. The ratio of this final rule's costs to revenue for all 
railroads is 0.01 percent ($7.6m/$117 billion) and for small railroads 
is 0.01 percent ($0.8m/$6.5 billion). The ratio of this final rule's 
costs to profits for all railroads is 0.04 percent ($7.6m/$20.4 
billion) and for small railroads it is 0.07 percent ($0.8m/$1.1 
billion). These also easily pass OSHA's standard threshold impacts 
tests of costs being below 1 percent of revenue and 10 percent of 
profits (5 percent of profits for small entities).
    This analysis at a few places has noted the possibility of some 
underestimation of the costs in previous analyses of the 2010 crane 
standard for the railroad industry, and thus cost savings attributable 
to this final rule. Even a doubling of costs for the railroad industry 
would still result in estimated impacts far below threshold limits and 
so would not affect feasibility findings even if all of the provisions 
of the 2010 rule had been applied to the railroad industry.
    OSHA found that the 2010 crane standard is economically 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 at 48112). The 
analysis here shows that the costs of the 2010 rule on railroads are 
negligible compared to revenues and profits. Even more so for the 
residual costs of this final rule. This supports both OSHA's finding 
that the 2010 final rule is economically feasible for all affected 
industries (including railroads) and a finding that the residual costs 
left after the exemptions in this OSHA final rule are also economically 
feasible.
    When OSHA determined in 2010 that the crane standard 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 at 47913, 48115). As 
discussed above, as applied to small railroads, the 2010 rule would be 
just 0.12 percent of revenues and 0.23 percent of costs, which shows 
that the 2010 final rule finding of no significant impact on a 
substantial number of small entities still holds true when railroads 
are included. The residual costs for this final rule for small 
railroads are even smaller, so the agency certifies that this final 
rule will have not have a significant impact on a substantial number of 
small entities.

L. Overhead Cost Adjustment

    The agency notes that it did not include an overhead labor cost 
when it calculated the costs of the crane rule in 2010 and did not add 
overhead costs solely for the railroad industry in the PEA accompanying 
this rulemaking. OSHA did not receive any comments opposing that 
decision, and the agency is not including any such costs in this FEA. 
OSHA noted in the PEA 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,\18\ the Environmental Protection Agency has used 17 
percent,\19\ and Government contractors have been reported to use an 
average of 77 percent.\20\ 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 small and very difficult 
to measure with accuracy (e.g., computer use costs associated with

[[Page 57119]]

2 hours for rule familiarization by an existing employee).
---------------------------------------------------------------------------

    \18\ For a further example of overhead cost estimates, please 
see the Employee Benefits Security Administration's guidance at 
https://www.dol.gov/sites/default/files/ebsa/laws-and-regulations/rules-and-regulations/technical-appendices/labor-cost-inputs-used-in-ebsa-opr-ria-and-pra-burden-calculations-august-2016.pdf.
    \19\ U.S. Environmental Protection Agency, ``Wage Rates for 
Economic Analyses of the Toxics Release Inventory Program,'' June 
10, 2002.
    \20\ Grant Thornton LLP, 2015 Government Contractor Survey. 
(https://www.grantthornton. com/~/media/content-page-files/public-
sector/pdfs/surveys/2015/Gov-Contractor-Survey.ashx).
---------------------------------------------------------------------------

    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 a 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, an 8 percent increase. Using this larger per-machine cost in 
the rest of the analysis would increase the final cost savings of this 
final rule from $17.090 million to $17.092 million at a discount rate 
of 3 percent, an increase of 0.01 percent. It would also have increased 
cost savings from $18.579 million to $18.581 million at a discount rate 
of 7 percent, also an increase of 0.01 percent. The agency presented a 
similar calculation in the PEA and received no comment.

M. Technological Feasibility

    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)). All requirements of 
the final rule applicable to the railroad industry 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 the settlement with AAR and reflected in the 
exemptions in this final rule. For example, AAR raised concerns that it 
would not be feasible for railroads to avoid dragging rails sideways, 
and OSHA is now exempting railroads from the prohibition on dragging 
loads sideways. 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. The 2010 technological 
feasibility analysis is equally applicable to the railroad industry, so 
OSHA finds that the crane standard is technologically feasible for the 
railroad industry.

References

AAR, 2014. Association of American Railroads. ``Class I Railroad 
Statistics,'' July 15, 2014. (Docket ID: OSHA-2015-0012-0016)
AAR, 2015. Association of American Railroads. ``AAR's Response to 
OSHA Economic Questions,'' memo from AAR to OSHA, June 22, 2015. 
(Docket ID: OSHA-2015-0012-0005)
Amtrak, 2017. Amtrak. ``Amtrak Response to OSHA Economic 
Questions,'' via email from AAR (August 8, 2017, and November 2, 
2017). (Docket ID: OSHA-2015-0012-0009)
BEA, 2018. Bureau of Economic Analysis, Table 1.1.4. Price Indexes 
for Gross Domestic Product. Available at https://apps.bea.gov/iTable/iTable.cfm?reqid=19&step=2#reqid=19&step=2&isuri=1&1921=survey
. (See Section 1 Domestic Product and Income. Accessed April 1, 
2018.)
OSHA, 2016. Occupational Safety and Health Administration, Operator 
Certification Notice of Proposed Rulemaking, Summary and Economic 
Analysis.
SBA, 2017. Small Business Administration. ``Table of Small Business 
Size Standards Matched to North American Industry Classification 
System Codes,'' January 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.

IV. Legal Authority

    The purpose of the OSH Act, 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, 655(b), and 658. 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 and 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 at 47913, 47921-22). This 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)).
    OSHA standards must also be economically and technologically 
feasible, as discussed earlier in section III.M. of this document. In 
that section, OSHA finds that the crane standard, as amended by this 
rulemaking, is both economically and technologically feasible for the 
railroad industry.
    This final rule includes a number of exemptions and does not impose 
any new requirements on employers. OSHA has the authority to promulgate 
these exemptions because the Act authorizes the Secretary to ``modify'' 
or ``revoke'' any occupational safety or health standard. 29 U.S.C. 
655(b). The Supreme Court has acknowledged that regulatory agencies do 
not establish rules of conduct to last forever, and agencies may revise 
their rules if supported by a reasoned analysis for the change. See 
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 
29, 42 (1983). As explained earlier in this preamble, OSHA is 
exercising this authority as part of a settlement agreement. 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 crane standard, and there is consensus between 
labor and management groups that the exemptions and alternatives would 
continue practices generally accepted as safe in the railroad industry.

V. Paperwork Reduction Act

A. Overview

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et. seq.) 
and implementing regulations (5 CFR part 1320) require agencies to 
consider the impact of paperwork and other information collection 
burdens imposed on the public.\21\ A Federal agency generally cannot 
conduct or sponsor a collection of information, and the public is 
generally not required to respond to an information collection, unless 
it is approved by the Office of Management and Budget (OMB) under the 
PRA and displays a valid OMB Control Number. In addition, 
notwithstanding any other provisions of law, no person may generally be 
subject to penalty for

[[Page 57120]]

failing to comply with a collection of information that does not 
display a valid OMB Control Number. See 5 CFR 1320.5(a) and 1320.6.
---------------------------------------------------------------------------

    \21\ 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)).
---------------------------------------------------------------------------

B. Solicitation of Comments

    On July 19, 2018, OSHA published a Federal Register proposed rule 
that allowed the public an opportunity to comment on the proposed 
Information Collection Request (ICR) containing the information 
collection requirements in the proposed rule, as required by 44 U.S.C. 
3507. Concurrent with the proposed rule, OSHA submitted the ICR (ICR 
Reference Number 201707-1218-005) to OMB for review in accordance with 
44 U.S.C. 3507(d).
    On August 24, 2018, OMB issued a Notice of Action (NOA) indicating 
that the terms of the previous clearance for the Cranes and Derricks 
ICR approved under OMB Control Number 1218-0261 would remain in effect 
and it was withholding approval for the ICR submission associated with 
the NPRM. OMB requested that ``[p]rior to publication of the final 
rule, the agency should provide a summary of any comments related to 
the information collection and their response, including any changes 
made to the ICR as a result of comments. In addition, the agency must 
enter the correct burden estimates.''
    The proposed rule invited the public to submit comments to OMB, in 
addition to OSHA, on the proposed information collection requirements 
with regard to the following:
     Whether the proposed information collection requirements 
are necessary for the proper performance of the agency's functions, 
including whether the information is useful;
     The accuracy of OSHA's estimate of the burden (time and 
cost) of the information collection requirements, including the 
validity of the methodology and assumptions used;
     The quality, utility, and clarity of the information 
collected; and
     Ways to minimize the compliance burden on employers, for 
example, by using automation or other technologies for collecting and 
transmitting information.
    OSHA received no public comments directly addressing the proposed 
ICR. However, OSHA did receive several comments that, while expressing 
support for the various proposed exemptions requiring approvals from 
RPEs, recommended those approvals be in writing. (See Docket ID: OSHA-
2015-0012-0011, p. 7; OSHA-2015-0012-0014, p. 3.) OSHA also received a 
number of comments, described earlier in this preamble, in response to 
provisions of the proposed rule that contained information collection 
requirements in the proposed exemptions (see, e.g., proposed Sec.  
1926.1442(b)(2)(i) and (iii)). For the reasons explained earlier in 
this preamble, OSHA did not include any of the proposed information 
collection in the final rule. OSHA did, however, consider the comments 
when it developed the revised ICR associated with the final rule. 
Summaries of these comments and OSHA's responses are found above in 
Section III, Summary and Explanation of the Proposed Amendments to 
subpart CC, and in the agency's final ICR analysis.
    Concurrent with publication of this final rule, the Department of 
Labor submitted the final ICR, containing the full analysis and 
description of the burden hours and costs associated with the final 
rule, to OMB for approval. A copy of this ICR will be available at 
https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201906-1218-001 on 
the day following publication of the final rule. OSHA will publish a 
separate notice in the Federal Register that will announce the results 
of OMB's review. The agency will ensure that the OMB control number for 
the standard is codified in Sec.  1926.5, which is the central section 
in which OSHA displays any approved collection under the Paperwork 
Reduction Act.

C. Summary of Information Collection Requirements

    When OSHA published the crane standard in 2010, the agency did not 
clearly identify any railroad respondents to the information collection 
requirements in that standard. The agency is now requesting OMB 
approval to add railroad respondents to a number of existing 
information collection requirements that are subject to review by OMB 
under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et. 
seq.) and the implementing regulations (5 CFR part 1320).
    The final rule does not revise the regulatory text of any existing 
information collection requirements in the Cranes and Derricks in 
Construction Standard (29 CFR part 1926, subpart CC) Information 
Collection (IC) previously approved by OMB. It does, however, modify 
the number of respondents affected by information collection 
requirements in the IC. This results in changes to the previous burden 
hour and/or cost estimates associated with the current OMB-approved 
information collection requirements contained in the IC.
    The summary below is a brief description of the significant changes 
between the proposal's information collection requirements and the 
final rule. As discussed earlier in the preamble, on March 19, 2019, 
following the publication of OSHA's NPRM, FRA provided OSHA further 
information clarifying that FRA intends for its regulations to preempt 
most of the OSHA requirements addressed in OSHA's NPRM (see Docket ID: 
OSHA-2015-0012-0015). Therefore, OSHA in this final rule expanded some 
of the exemptions from the proposed rule by removing conditions 
restricting the availability of those exemptions in response to FRA's 
2019 communication. Almost all of the changes between the proposed rule 
and the final rule result from this removal of conditions on the 
exemptions.
    These differences are discussed in more specific detail in Section 
III, Summary and Explanation of the Amendments to subpart CC. The 
impact on information collection requirements is also discussed in more 
detail in Item 8 of the ICR. This summary does not address the 
provisions that are unchanged from the current, OMB-approved 
information collection requirements. Discussion and justification of 
these provisions can be found in the preamble to the final 2010 crane 
rule (75 FR at 48017) and also in the Supporting Statements for this 
final rule, as well as in the approved Information Collection. Due to 
the agency's preemption determinations, none of the proposed 
information collection requirements that OSHA identified in the 
proposal (portions of proposed Sec.  1926.1442(b)(2)(i) and (iii), 
(b)(3), (b)(6), (b)(6)(i)(A) and (B), (b)(7) introductory text, and 
(b)(7)(i)) are included in the final rule, as briefly explained below 
and in more detail above in Section III.
Rail Clamps and Work-Area Controls Exemptions
    Section 1926.1442(b)(2)(i) of this final rule exempts the railroad 
equipment from the requirement in Sec.  1926.1415(a)(6) for rail clamps 
when the manufacturer does not require them. When the manufacturer does 
require the clamps, the proposal would have allowed the employer to 
seek an exemption by obtaining an RPE's determination that rail clamps 
are not necessary, which OSHA had identified as creating a collection 
of information. The final rule does not contain the proposed 
requirement for an RPE's determination. Therefore, the final provision 
contains no information collection requirement.

[[Page 57121]]

    Final Sec.  1926.1442(b)(2)(iii) provides that the work-area 
controls specified by Sec.  1926.1424(a)(2) do not apply when employers 
are subject to the on-track safety program requirements of 49 CFR 
214.307(b), regardless of whether they have implemented the controls as 
required in the proposal. In the proposal, the potential for 
information collection could have come from the implementation of some 
controls. The agency does not consider this expanded exemption in this 
final rule to require any information collection.
Out-of-Level Work Restriction Exemptions
    OSHA's crane standard generally prohibits out-of-level operation of 
cranes unless approved by the manufacturer. Proposed Sec.  
1926.1442(b)(3) would have allowed out-of-level operation for certain 
railroad equipment purchased after November 8, 2010, under conditions 
that contained information collection requirements applicable in some 
scenarios: Manufacturer approval or modification or approval from an 
RPE or a qualified person.
    The final rule provision Sec.  1926.1442(b)(3) no longer requires 
any conditions on the exemption for out-of-level work for RMMs. 
Therefore, the final provision contains no information collection 
requirement.
Manufacturer Guidance for Modifications Covered by Sec.  1926.1434 
Exemptions
    Current Sec.  1926.1434 requires employers to obtain and follow the 
equipment manufacturer's guidance for equipment modifications except in 
certain circumstances. OSHA proposed an exception to simplify how a 
railroad employer may have used modified equipment without involving 
the manufacturer but continuing to include safety assurances. According 
to proposed Sec.  1926.1442(b)(6), an employer may have used modified 
railroad roadway maintenance equipment regardless of manufacturer 
guidance when approved by a qualified RPE.
    The final rule provisions Sec.  1926.1442(b)(6)(i)(A) and (B) no 
longer contain any requirements related to an employer's need to seek 
the approval of a qualified RPE. Therefore, the final provision 
contains no information collection requirement.
Other Manufacturer Guidance Exemption
    Several other sections of subpart CC require employers to follow 
the manufacturer's guidance, instructions, procedures, prohibitions, 
limitations, or specifications. The proposed exemptions in Sec.  
1926.1442(b)(7) would have allowed employers to use RMMs without regard 
for the manufacturer's listed restrictions if approved in writing by an 
RPE familiar with the equipment. The final rule provision does not 
contain the conditions of proposed Sec.  1926.1442(b)(7). Therefore, 
the final provision contains no information collection requirement.
    As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the 
following paragraphs provide information about the ICR that OSHA 
prepared in conjunction with this rulemaking. Through this rulemaking, 
OSHA is updating the ICR to include all information collections for 
subpart CC of 29 CFR part 1926 (OSHA's Cranes and Derricks in 
Construction standard), as amended by OSHA's 2018 Operator 
Qualification rulemaking and this rulemaking.
    Title of Collection: Cranes and Derricks in Construction.
    OMB Control Number: 1218-0261.
    Affected Public: Private Sector--businesses or other for-profits.
    Estimated Number of Respondents (Railroad Industry Only): 775 
railroad industry employers.
    Estimated Number of Responses (Railroad Industry Only): 252,714.
    Estimated Annual Time Burden Hours (Railroad Industry Only): 
40,395.
    Estimated Annual Other Costs (capital, operation and maintenance) 
(Railroad Industry Only): $260,562.
    Total Estimated Number of Respondents: 213,400 (212,625 existing 
employers + 775 railroad industry employers).
    Total Estimated Number of Responses: 3,009,167.
    Total Estimated Annual Time Burden Hours: 429,478.
    Total Estimated Annual Other Costs (capital, operation and 
maintenance): $2,547,063.

VI. Federalism

    OSHA reviewed the revisions to the crane standard 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 
and statutory authority exists and the problem is national in scope. 
Executive Order 13132 provides for preemption of state law only with 
the expressed consent of Congress. Federal agencies must limit any such 
preemption to the extent possible.
    Under Section 18 of the OSH Act, Congress expressly provides that 
states and U.S. territories may adopt, with Federal approval, a plan 
for the development and enforcement of occupational safety and health 
standards. OSHA refers to such states and territories as ``State Plan 
States.'' 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 
(29 U.S.C. 667).
    OSHA previously concluded from the analysis for the 2010 final rule 
that promulgation of subpart CC complies with Executive Order 13132 
(see 75 FR at 48128-29). The revisions in this final rule do not change 
that conclusion.

VII. State Plans

    When Federal OSHA promulgates a new standard or a more stringent 
amendment to an existing standard, State Plans must either amend their 
standards to be identical or ``at least as effective as'' the new 
standard or amendment, or show that 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)). State Plan adoption must be 
completed within six months of the promulgation date of the final 
Federal rule. When OSHA promulgates a new standard or amendment that 
does not impose additional or more stringent requirements than an 
existing standard, State Plans do not have to amend their standards, 
although OSHA may encourage them to do so.
    The provisions in this final rule are exemptions from existing OSHA 
requirements and will reduce compliance burdens on employers, and as 
such OSHA does not view any of the provisions as more stringent than 
the existing standard. Therefore, State Plans are encouraged to adopt 
comparable amendments to their standards but are not required to do so. 
In addition, OSHA notes that the FRA's exercise of its authority that 
preempted some provisions of OSHA's cranes standard with respect to 
railroads may also serve to preempt similar State rules, either 
pursuant to a state equivalent of section 4(b)(1) of the OSH Act or as 
the legal consequence of general Federal preemption of state laws.
    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

[[Page 57122]]

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.

VIII. Unfunded Mandates Reform Act of 1995

    OSHA reviewed this final rule in accordance with the Unfunded 
Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et seq.) and Executive 
Order 13132 (64 FR 43255). OSHA determined that this rule does not add 
new costs because the regulatory changes are exemptions.
    OSHA'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 regulatory changes create 
exceptions to the rule, not new duties. Consequently, this 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 final 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.

IX. Consultation and Coordination With Indian Tribal Governments

    OSHA reviewed this final rule in accordance with Executive Order 
13175 (65 FR 67249 (November 9, 2000)) and determined that it does not 
have ``tribal implications'' as defined in that order. The final rule 
does 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.

List of Subjects in 29 CFR Part 1926

    Construction industry, Cranes, Derricks, Occupational safety and 
health, Railroad roadway work.

Authority and Signature

    This document was prepared under the direction of Loren Sweatt, 
Principal Deputy Assistant Secretary of Labor for Occupational Safety 
and Health, U.S. Department of Labor, Washington, DC 20210.
    The agency issues the sections under the following authorities: 29 
U.S.C. 653, 655, 657; 40 U.S.C. 3704; 33 U.S.C. 941; Secretary of 
Labor's Order 1-2012 (77 FR 3912 (1/25/2012)); and 29 CFR part 1911.

    Signed at Washington, DC, on August 3, 2020.
Loren Sweatt,
Principal Deputy Assistant Secretary of Labor for Occupational Safety 
and Health.

    For the reasons stated in the preamble of this final rule, OSHA is 
amending 29 CFR part 1926 as follows:

PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION

Subpart CC--Cranes and Derricks in Construction

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

    Authority:  40 U.S.C. 3701 et seq.; 29 U.S.C. 653, 655, 657; 
Secretary of Labor's Order No. 5-2007 (72 FR 31159) or 1-2012 (77 FR 
3912), as applicable; and 29 CFR part 1911.


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


Sec.  1926.1400   Scope.

* * * * *
    (c) * * *
    (18) Flash-butt welding trucks. Flash-butt welding trucks or other 
roadway maintenance machines not equipped with any hoisting device 
other than that used to suspend and move a welding device or workhead 
assembly. For purposes of this paragraph (c)(18), 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.
* * * * *


Sec.  1926.1442   [Redesignated as Sec.  1926.1443]

0
3. Redesignate Sec.  1926.1442 as Sec.  1926.1443.

0
4. Add a new Sec.  1926.1442 to read as follows:


Sec.  1926.1442   Railroad roadway maintenance machines.

    (a) General rule. Employers using equipment covered by this subpart 
that meets the definition of ``roadway maintenance machine,'' as 
defined in 49 CFR 214.7, must comply with the requirements in this 
subpart, except as provided in paragraphs (b)(1) through (7) of this 
section when subject to the authority of the Federal Railroad 
Administration.
    (b) Exceptions--(1) Operator certification, training, and 
evaluation. The requirements in Sec. Sec.  1926.1427 (Operator 
qualification and certification) and 1926.1430 (Training) do not apply. 
The qualification and training requirements contained in Sec. Sec.  
1926.1436(q) (Qualification and training for derricks), 1926.1440(a) 
(Sideboom cranes), and 1926.1441(a) (Equipment with a rated hoisting/
lifting capacity of 2,000 pounds or less) do not apply.
    (2) Rail clamps, rail stops, and work-area controls. (i) The 
requirement for rail clamps in Sec.  1926.1415(a)(6) does not apply;
    (ii) The requirement for rail stops in Sec.  1926.1415(a)(6) does 
not apply; and
    (iii) The work-area controls specified by Sec.  1926.1424(a)(2) do 
not apply.
    (3) Out-of-level work. The restrictions on out-of-level work, and 
the requirements for crane-level indicators and inspections of those 
indicators (including the requirements in Sec. Sec.  1926.1402(b), 
1926.1412(d)(1)(xi), and 1926.1415(a)(1)), do not apply.
    (4) Dragging a load sideways. The prohibition in Sec.  1926.1417(q) 
on dragging a load sideways does not apply.
    (5) Boom-hoist limiting device. The requirement in Sec.  
1926.1416(d)(1) for a boom-hoist limiting device does not apply to 
roadway maintenance machines when the cranes use hydraulic cylinders to 
raise the booms.
    (6) Manufacturer guidance for modifications covered by Sec.  
1926.1434. The requirements to follow the manufacturer's guidance set 
forth in Sec.  1926.1434 do not apply if the employer is subject to the 
requirements of 49 CFR part 214.
    (7) Other manufacturer guidance. The requirements to follow the 
manufacturer's guidance, instructions, procedures, prohibitions, 
limitations, or specifications, set forth in Sec.  1926.1404(j), (m), 
or (q); Sec.  1926.1415(a)(6); Sec.  1926.1417(a), (r), (u), or (aa); 
Sec.  1926.1433(d)(1)(i); or Sec.  1926.1441 do not apply if the 
employer is subject to the requirements of 49 CFR part 214.

[FR Doc. 2020-17179 Filed 9-14-20; 8:45 am]
BILLING CODE 4510-26-P


