[Federal Register Volume 83, Number 139 (Thursday, July 19, 2018)]
  [Proposed Rules]
  [Pages 34076-34092]
  From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
  [FR Doc No: 2018-15285]


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  DEPARTMENT OF LABOR

  Occupational Safety and Health Administration

  29 CFR Part 1926

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


  Cranes and Derricks in Construction: Railroad Roadway Work

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

  ACTION: Proposed rulemaking.

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

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

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



  online instructions for making electronic submissions.
      Facsimile: Commenters may fax submissions that are no longer than
  10 pages in length, including any attachments, to the OSHA Docket
  Office at (202) 693-1648. These submissions must include Docket No.
  OSHA-2015-0012 [RIN: 1218-AD07]. OSHA does not require hard copies of
  the faxed comments. Commenters must submit documents longer than 10
  pages (e.g., supplemental attachments, comments, research studies, or
  journal articles) to the OSHA Docket Office, Technical Data Center,
  U.S. Department of Labor, Room N-2625, 200 Constitution Avenue NW,
  Washington, DC 20210. These attachments must clearly identify the
  commenter's name, and the date, subject (Cranes and Derricks in
  Construction: Railroad Roadway Work), and docket number (i.e., OSHA-
  2015-0012) of the submission so the Agency can attach them to the
  appropriate submission. See also Regular mail, express delivery, hand
  delivery, and messenger (courier service) below.
      Regular mail, express mail, hand (courier) delivery, or messenger
  service. Submit a copy of comments and any additional material (e.g.,
  studies, journal articles) to the OSHA Docket Office, Docket No. OSHA-
  2015-0012, Technical Data Center, U.S. Department of Labor, Room N-
  3653, 200 Constitution Avenue NW, Washington, DC 20210; telephone:
  (202) 693-2350 (TDY number: (877) 889-5627). Note that security
  procedures may result in significant delays in receiving comments and
  other written materials by regular mail. Contact the OSHA Docket Office
  for information about security procedures concerning delivery of
  materials by express mail, hand delivery, or messenger (courier)
  service. The hours of operation for the OSHA Docket Office are 10:00
  a.m. to 3:00 p.m. ET.
      Information Collection Requirements. OSHA welcomes comments on the
  information collection requirements contained in this rule on the same
  basis as for any other aspect of the rule. Interested parties may also
  submit comments about the information collection requirements directly
  to the Office of Information and Regulatory Affairs, Attn: OMB Desk
  Officer for DOL-OSHA (RIN 1218-AD07), Office of Management and Budget,
  Room 10235, 725 17th Street NW, Washington, DC 20503, Fax: 202-395-
  6881, email: OIRA_submission@omb.eop.gov. See Paperwork Reduction Act
  section of this preamble for particular areas of interest.
      Instructions: All submissions must include the Agency's name
  (OSHA), the title of the rulemaking (Cranes and Derricks in
  Construction: Exemption Expansions for Railroad Roadway Work), and
  Docket No. OSHA-2015-0012. OSHA places submissions, comments, and other
  materials, including any provided personal information, in the public
  record of this docket without revision. Submitted materials will be
  available online at http://www.regulations.gov. Therefore, OSHA
  cautions commenters about submitting materials that contain personal
  information (either about themselves or others) such as Social Security
  numbers, birth dates, and medical data.
      OSHA requests comments on all issues related to this proposed rule,
  including whether these revisions will have any economic, paperwork, or
  other regulatory impacts on the regulated community.
      Docket: To read or download submissions or other materials in the
  public record for this docket (including material referenced in the
  preamble), go to http://www.regulations.gov or contact the OSHA Docket
  Office by telephone or the address listed above. While the Agency lists
  all documents for this docket in the http://www.regulations.gov index,
  some information (e.g., copyrighted material) is not publicly available
  through the website for reading or downloading. All submissions,
  including copyrighted material, are available for inspection at the
  OSHA Docket Office at the above address. Contact the OSHA Docket Office
  for assistance locating submissions.

  FOR FURTHER INFORMATION CONTACT:
      Press inquiries: Mr. Frank Meilinger, OSHA Office of
  Communications, telephone: (202) 693-1999; email:
  meilinger.francis2@dol.gov.
      General and Technical inquiries: Mr. Garvin Branch, Directorate of
  Construction, telephone: (202) 693-2020; email: Branch.Garvin@dol.gov.
      Copies of this Federal Register document and news releases:
  Electronic copies of these documents are available at OSHA's web page
  at http://www.osha.gov.

  SUPPLEMENTARY INFORMATION:

  Table of Contents

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

  I. Executive Summary

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

  II. Background

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



  underneath the equipment, mandatory safety devices, distance
  requirements from power lines, inspection procedures, workplace area
  controls to prevent workers from entering hazardous areas, and new
  operator certification requirements.
      On October 7, 2010, the Association of American Railroads and a
  number of individual railroads (hereafter collective referred to as
  ``AAR'') filed a petition challenging the rule. That petition remains
  before the United States Court of Appeals for the District of Columbia
  Circuit (Case No. 10-1386), but after AAR provided more background and
  additional information about existing practices in the railroad
  industry, the parties reached a settlement in which OSHA agreed to
  issue an interpretation of its standard as it relates to ground
  conditions for railroads \1\ and to propose the revisions to the
  regulatory text of the crane standard included in this proposal (see
  Docket ID: OSHA-2015-0012-0002). The settlement followed extensive
  discussions with AAR and officials from the Federal Railroad
  Administration and the principal labor organization representing
  affected employees, the Brotherhood of Maintenance of Way Employees.
  OSHA also reviewed the settlement with the Brotherhood of Railroad
  Signalmen. In deciding to enter into the settlement, OSHA acknowledged
  the lack of a record of significant injuries or fatalities resulting
  from the use of cranes or derricks for railroad track construction and
  maintenance and the consensus between labor and management groups that
  the proposed exemptions and alternatives would continue practices
  generally accepted as safe in the railroad industry. The settlement was
  narrowly tailored to address the aspects of the railroad industry that
  differ significantly from the more typical construction work covered by
  the standard.
  ---------------------------------------------------------------------------

      \1\ See Nov. 14, 2014 letter to AAR Counsel Jill Hyman Kaplan,
  Esq., available at www.osha.gov.
  ---------------------------------------------------------------------------

      The proposed revisions include two groups of exemptions: One for
  certain equipment with low-hanging attachments used to perform track
  work, and a second for certain requirements applicable to all railroad
  machines used in track construction and covered by OSHA's standard. The
  settlement contains draft regulatory language, which forms the basis of
  this proposal, but OSHA did not commit to a specific final regulatory
  action as part of the settlement and seeks public comment on this
  proposal. AAR has agreed to move to dismiss its petition within seven
  days of OSHA's publication of a final rule addressing these issues.

  III. Summary and Explanation of the Proposed Standard

      OSHA has long classified work performed to place or repair
  significant sections of railroad track, ties, and roadbed as
  construction activity subject to OSHA's construction standards in 29
  CFR part 1926.\2\ The railroad industry relies on a number of different
  pieces of equipment to deliver and position the ballast rock that
  supports the railroad ties, the ties that support the rail, and the
  rail itself. Most of this equipment falls within the scope of OSHA's
  Cranes and Derricks Standard in subpart CC because it is ``power
  operated equipment'' and includes some form of hoisting device that
  allows the equipment to be used to ``hoist and lower and horizontally
  move a suspended load'' (see 29 CFR 1926.1400(a)). Railroads also use
  the equipment to install railway signal posts and to keep the tracks
  and the areas immediately alongside the track free from debris and
  other impediments to trains.
  ---------------------------------------------------------------------------

      \2\ See, e.g., Sec'y of Labor v. Consolidated Rail Corp. (May
  28, 1981), 9 OSHC Cas. (BNA) 1892, 1981 OSHD (CCH) P 25421, 1981 WL
  18909; see also Memorandum for Regional Administrators, Construction
  vs. Maintenance, From James W. Stanley (August 11, 1994), available
  at www.osha.gov.
  ---------------------------------------------------------------------------

      The railroad industry classifies this equipment collectively as
  ``roadway maintenance machines,'' which are defined in Federal Railway
  Administration (FRA) regulations as devices ``powered by any means of
  energy other than hand power . . . being used on or near railroad track
  for maintenance, repair, construction or inspection of track, bridges,
  roadway,\3\ signal, communications, or electric traction systems.
  Roadway maintenance machines may have road or rail wheels or may be
  stationary'' (49 CFR 214.7). AAR provided examples of common forms of
  this equipment, with photos, in a memorandum to OSHA (see Docket ID:
  OSHA-2015-0012-0006).
  ---------------------------------------------------------------------------

      \3\ The ``roadway'' referenced in this definition does not refer
  to a road over which cars or trucks would travel; within the
  railroad industry it refers to the area encompassing the tracks,
  track support, and nearby items that could foul the track (see,
  e.g., the definition of ``roadway worker'' in 49 CFR 214.7).
  ---------------------------------------------------------------------------

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

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

  B. New Section 29 CFR 1926.1442 To Address Railroad Equipment

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

  ---------------------------------------------------------------------------



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

  C. Scope of New Sec.  1926.1442

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

      \5\ Proposed Sec.  1926.1442(b) refers to the seven
  subparagraphs that lay out proposed exceptions. In the version of
  the draft regulatory text attached to the settlement, paragraph (b)
  incorrectly referred to six subparagraphs. With AAR's agreement,
  OSHA has referenced the correct number (seven) in the proposed rule.
  ---------------------------------------------------------------------------

      For the remainder of this document, references to the proposed
  exceptions for roadway maintenance machines or exempt equipment are
  intended to refer only to roadway maintenance machines not used for
  bridge work.

  D. Sec.  1926.1442(b)(1)

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



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

  E. Sec.  1926.1442(b)(2)

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

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

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

  G. Sec.  1926.1442(b)(3)

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



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

  H. Sec.  1926.1442(b)(4)

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

  I. Sec.  1926.1442(b)(5)

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



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

  J. Sec.  1926.1442(b)(6)

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

  K. Sec.  1926.1442(b)(7)

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

  L. Requirement for RPE Determinations To Be in Writing

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

  IV. Preliminary Economic Analysis and Regulatory Flexibility Act
  Analysis

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



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

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

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

  a. Scope of the Exemption

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

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

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

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

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



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

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

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

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

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

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

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

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

  c. Rail Clamps and Rail Stops

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

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

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



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

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

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

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

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

  d. Work Area Controls

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

  e. Out-of-Level Work

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

  f. Dragging a Load Sideways

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

  g. Boom-Hoist Limiting Device

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

  h. Manufacturer Guidance for Modifications Covered by Sec.  1926.1434

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

  i. Operator Certification and Assessment

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



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

  j. Total Cost and Savings From Proposal

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

  k. Economic Impacts

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

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

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

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




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

  l. Overhead Cost Adjustment

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

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

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

  m. Economic and Technological Feasibility

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

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

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

  References

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



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

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

  V. Legal Considerations

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

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

  A. Overview

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

  B. Solicitation of Comments

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



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

  C. Proposed Revisions to the Information Collection Requirements

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

  D. Submitting Comments

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



  OSHA-2015-0012), along with their comments on other parts of the
  proposed rule. For instructions on submitting these comments to the
  rulemaking docket, see the sections of this Federal Register document
  titled DATES and ADDRESSES.
      A copy of the ICR for this proposal, with applicable supporting
  documentation: Including a description of the likely respondents,
  estimated frequency of response, and estimated total burden may be
  obtained free of charge from the RegInfo.gov website at: http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201710-1218-003 (this link
  will only become active on the day following publication of this
  document). Copies of these documents may also be obtained by contacting
  Mr. Vernon Preston, Directorate of Construction, OSHA, Room N-3427,
  U.S. Department of Labor, 200 Constitution Avenue NW, Washington DC
  20210; telephone: (202) 693-2020; email: Preston.Vernon@dol.gov.

  VII. Federalism

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

  VIII. State-Plan States

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

  IX. Unfunded Mandates Reform Act of 1995

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

  X. Consultation and Coordination With Indian Tribal Governments

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

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

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



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

  XII. Public Participation

  A. Submission of Comments and Access to the Docket

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

  B. Requests for an Informal Public Hearing

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

  List of Subjects in 29 CFR Part 1926

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

  Authority and Signature

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

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

  Proposed Amendments to Standards

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

  PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION

  Subpart CC--Cranes and Derricks in Construction

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

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

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


  Sec.  1926.1400  Scope.

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


  Sec.  1926.1442  Railroad roadway maintenance machines.

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



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

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