[Federal Register Volume 85, Number 179 (Tuesday, September 15, 2020)]
[Rules and Regulations]
[Pages 57109-57122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17179]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1926
[Docket ID OSHA-2015-0012]
RIN 1218-AD07
Cranes and Derricks in Construction: Railroad Roadway Work
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: OSHA is revising the standard for cranes and derricks in
construction to provide specific exemptions and clarifications with
regard to the application of the standard to cranes and derricks used
for railroad roadway work. These exemptions and clarifications
recognize the unique equipment and circumstances in railroad roadway
work and reflect the preemption of some OSHA requirements by
regulations promulgated by the Federal Railroad Administration (FRA).
The revised standard provides a clearer understanding of which
regulatory requirements are applicable, resulting in a more effective
regulatory program and ultimately improved safety.
DATES: Effective date: This final rule is effective on November 16,
2020.
ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), the agency
designates Edmund C. Baird, Associate Solicitor of Labor for
Occupational Safety and Health, Office of the Solicitor, Room S-4004,
U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC
20210, to receive petitions for review of the final rule.
Docket: To read or download material in the electronic docket for
this rulemaking, go to http://www.regulations.gov or to the OSHA
Docket, Room N-3653, OSHA, U.S. Department of Labor, 200 Constitution
Avenue NW, Washington, DC 20210; telephone: (202) 693-2350, TTY number
(877) 889-5627. Some information submitted (e.g., copyrighted material)
is not available publicly to read or download through this website. All
submissions, including copyrighted material, are available for
inspection at the OSHA Docket Office. Contact the OSHA Docket Office
for assistance in locating docket submissions.
FOR FURTHER INFORMATION CONTACT:
General information and press inquiries: Mr. Frank Meilinger, OSHA
Office of Communications; telephone: (202) 693-1999; email:
[email protected].
Technical inquiries: Mr. Jens Svenson, OSHA Directorate of
Construction; telephone: (202) 693-2020; fax: (202) 693-1689; email:
[email protected].
Copies of this Federal Register document and news releases:
Electronic copies of these documents are available at OSHA's web page
at http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Summary and Explanation of the Final Rule
III. Final Economic Analysis and Final Regulatory Flexibility
Analysis
IV. Legal Authority
V. Paperwork Reduction Act
VI. Federalism
VII. State Plans
VIII. Unfunded Mandates Reform Act of 1995
IX. Consultation and Coordination with Indian Tribal Governments
I. Background
OSHA published the Cranes and Derricks in Construction standard on
August 9, 2010 (29 CFR part 1926, subpart CC, 75 FR 47906). The crane
standard resulted from years of work by a negotiated rulemaking
committee that drew from a wide range of stakeholders to include
industry and labor best practices to draft regulatory requirements to
prevent crane tip overs, electrocution from crane contact with power
lines, workers being struck by the equipment or loads, crane collapse
because of improper assembly, and other hazards associated with the
operation of cranes in construction work. The crane standard added many
new provisions, addressing topics such as requirements to ensure safe
ground conditions underneath equipment, mandatory safety devices,
distance from power lines, inspection procedures, workplace area
controls to prevent workers from entering hazardous areas, and new
operator certification requirements.
On October 7, 2010, the Association of American Railroads and a
number of individual railroads (hereafter collectively referred to as
AAR) filed a petition challenging the rule. That petition remains
before the United States Court of Appeals for the District of Columbia
Circuit (Case No. 10-1386), but after AAR provided more background and
additional information about existing practices in the railroad
industry, the parties reached a settlement in which OSHA agreed to
issue an interpretation of the standard as it relates to railroads and
to propose revisions to the regulatory text of the crane standard. The
settlement followed extensive discussions with AAR and officials from
FRA and the principal labor organization representing affected
employees, the Brotherhood of Maintenance of Way Employes Division
(Teamsters) (BMWED). OSHA also reviewed the settlement with the
Brotherhood of Railroad Signalmen (BRS). In deciding to enter into the
settlement, OSHA acknowledged the lack of a record of significant
injuries or fatalities resulting from the use of cranes or derricks for
railroad track construction and maintenance and the
[[Page 57110]]
consensus between labor and management groups that the proposed
exemptions and alternatives would continue practices generally accepted
as safe in the railroad industry. The settlement was narrowly tailored
to address the aspects of the railroad industry that differ
significantly from the more typical construction work covered by the
crane standard. In 2018, OSHA published a notice of proposed rulemaking
(NPRM) seeking public comment on the proposed regulatory changes for
the railroad industry that had been included in the settlement
agreement (83 FR 34076 (July 19, 2018)).
Subsequent to the settlement agreement executed between AAR and
OSHA in September 2014, FRA issued a final regulation involving, among
other issues, safety-related training requirements for the use of
railroad cranes and railroad roadway maintenance machines (hereafter,
RMMs will mean [railroad] roadway maintenance machines) equipped with a
hoisting device.\1\ This regulation also included other revisions to
FRA regulations addressing the use of RMMs (79 FR 66460, November 7,
2014).
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\1\ The railroad industry relies on a number of different pieces
of equipment to deliver and position the ballast rock that supports
the railroad ties, the ties that support the rail, and the rail
itself. Railroads also use the equipment to install railroad signal
posts and to keep the tracks and the areas immediately alongside the
track free from debris and other impediments to trains. The railroad
industry classifies this equipment collectively as ``roadway
maintenance machines,'' which are defined in FRA regulations as
devices ``powered by any means of energy other than hand power . . .
being used on or near railroad track for maintenance, repair,
construction or inspection of track, bridges, roadway, signal,
communications, or electric traction systems. Roadway maintenance
machines may have road or rail wheels or may be stationary'' (49 CFR
214.7). The ``roadway'' referenced in this definition does not refer
to a road over which cars or trucks would travel; within the
railroad industry it refers to the area encompassing the tracks,
track support, and nearby items that could foul the track (see,
e.g., the definition of ``roadway worker'' in 49 CFR 214.7). Most of
this equipment falls within the scope of OSHA's Cranes and Derricks
Standard in subpart CC because it is ``power operated equipment''
and includes some form of hoisting device that allows the equipment
to be used to ``hoist and lower and horizontally move a suspended
load'' (see 29 CFR 1926.1400(a)).
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As dictated by Section 4(b)(1) of the Occupational Safety and
Health (OSH) Act (29 U.S.C. 653), to the extent FRA regulations
exercise statutory authority to prescribe or enforce standards or
regulations affecting occupational safety and health, OSHA is preempted
from applying regulatory requirements of its own to the corresponding
working conditions addressed. On March 19, 2019, following the
publication of OSHA's NPRM, FRA provided OSHA further information
clarifying that FRA intends to preempt the potential applicability of
most of the OSHA requirements addressed in OSHA's NPRM (see Docket ID:
OSHA-2015-0012-0015) through FRA regulations. Thus, OSHA concludes that
those affected parts of the OSHA crane standard do not apply with
regard to the operation of RMMs.
Although any exemption from OSHA requirements resulting from the
preemption of OSHA statutory authority by FRA would apply whether or
not the OSHA regulations include any specific exemptions, OSHA believes
it is still appropriate to amend the Code of Federal Regulations (CFR)
to include the explicit exemptions for RMMs in the OSHA crane standard.
Having the exemptions specified in the OSHA crane standard will provide
additional clarity for employers in the railroad industry, including
contractors, who may be unfamiliar with the legal implications of FRA's
action. A clearer understanding of which regulatory requirements are
applicable will ultimately result in a more effective regulatory
program and improved safety.
Thus, as explained in this preamble, OSHA is adding certain
exemptions and clarifications to the crane standard. Some of these
exemptions recognize the unique equipment and circumstances in railroad
roadway work, while others reflect the preemption of some OSHA
requirements by FRA.
This rule is an E.O. 13771 deregulatory action. Details on the
estimated costs and cost savings for this rule can be found in the
final rule's economic analysis in section III of this preamble.
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
not a ``major rule'' as defined by 5 U.S.C. 804(2).
II. Summary and Explanation of the Final Rule
The following discussion summarizes and explains each new or
revised provision in this final rule and the substantive differences
between the revised and previous version of OSHA's crane operator
requirements in subpart CC of 29 CFR part 1926.
A. Exemption for Flash-Butt Welding Trucks and Equipment With Similar
Attachments
This final rule adds paragraph (c)(18) to Sec. 1926.1400 of the
crane standard, as proposed, in order to exclude flash-butt welding
trucks and equipment with similar attachments from the requirements of
part 1926, subpart CC.
Flash-butt welding trucks are RMMs with low-hanging workhead
attachments. These machines are equipped with an attachment designed to
suspend and move a welding workhead low and close to the rails in order
to precisely weld two sections of rail together. Other machines that
fall within this exemption are similarly designed to suspend and move
specific operation workheads low to the rails. This class of machines
does not have any other hoisting device. AAR provided examples of these
machines to OSHA prior to publication of the proposed rule (see Docket
ID: OSHA-2015-0012-0008).
Because these machines are not capable of raising and suspending
the workhead more than a few feet above the ground or roadbed, and the
weight and structure of the workhead does not appear to present any
danger of equipment tipover at any point during the workhead's full
range of motion, OSHA believes that equipment in this class does not
present the types of safety hazards OSHA intended to address in the
crane standard.
In response to the proposed rule, OSHA received two public comments
that addressed this issue directly. One comment was submitted jointly
by BRS and BMWED (see Docket ID: OSHA-2015-0012-00014). The labor
organizations stated that they generally support the proposal to revise
Sec. 1926.1400(c) to expressly exempt flash-butt welding trucks and
other RMMs equipped only with hoisting devices used to suspend and move
their workhead assemblies low and close to the rails. The labor
organizations also noted that the adoption of the proposed exemption
``does not appear to compromise worker safety.''
Another comment was received from the AAR (see Docket ID: OSHA-
2015-0012-00011, p. 7). The AAR stated that ``flash-butt welding trucks
and other roadway maintenance machines with low-hanging workhead
attachments should be exempted from the requirements of the OSHA Crane
Standard and so should be added to the equipment specifically exempted
under [Sec. 1926.1400(c)].''
OSHA is revising Sec. 1926.1400(c) to expressly exempt flash-butt
welding trucks and other RMMs equipped only with hoisting devices used
to suspend and move their workhead assemblies low and close to the
rails, as proposed.
B. New 29 CFR 1926.1442 To Address Railroad Equipment
Title 29 CFR 1926.1442, which addresses severability, is currently
the last section of the crane standard. OSHA
[[Page 57111]]
is redesignating the severability provision currently in 29 CFR
1926.1442 as Sec. 1926.1443 to enable the addition of a new Sec.
1926.1442 dedicated to the RMMs addressed in this rulemaking.
Rather than insert the various new RMM exceptions throughout
subpart CC, this final rule consolidates them into a single section for
the convenience of the affected parties and to maintain the
organizational integrity of subpart CC. Aside from the Sec.
1926.1400(c)(18) exclusion for flash-butt welding trucks and similar
equipment, Sec. 1926.1442 will contain all of the new provisions
addressed through the settlement.
OSHA received one comment directly addressing this change. The BRS,
in a joint comment with the BMWED, supported the consolidation
indicating it would be convenient for all affected parties. (See Docket
ID: OSHA-2015-0012-0014, p. 2.)
Thus, OSHA is finalizing the redesignation of this section as
proposed.
C. Scope of New Sec. 1926.1442
New Sec. 1926.1442(a) sets out the scope of the new exemptions.
The limited exemptions for railroads in the new Sec. 1926.1442 apply
to work on the construction of railroad tracks and supporting
structures, including the railroad ties supporting the tracks, the
ballast and the road bed that support the track and ties, and the poles
and other structures on which railroad signal devices and signage are
mounted.
The exemptions do not apply to other types of construction
activities that may be related to railroads, such as the construction
of buildings, retaining walls, fences, or platforms controlled by
railroads. When the exemptions do not apply, the crane standard
continues to apply to construction activities conducted by employers in
the railroad industry as it does to employers in other industries.\2\
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\2\ The crane standard already incorporates additional
provisions addressing railroad activities. (See, e.g., Sec.
1926.1420(b)(2) (communications near railroads).) Some of those
provisions already exempt railroad employers from certain
requirements, and those exemptions would continue to apply. New
Sec. 1926.1442(a) states that all other ``requirements'' would
continue to apply, but exemptions for railroad activities already in
the crane standard would continue to exempt such activities.
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In the proposed rule, OSHA had proposed to limit the scope of the
exemptions in Sec. 1926.1442 only to construction of railroad tracks
and supporting structures other than bridge construction (83 FR at
34079). In this final rule, OSHA is applying these exemptions to
equipment covered by subpart CC that meets the definition of ``Roadway
Maintenance Machine'' as defined in 49 CFR 214.7, regardless of whether
the equipment is used for railroad bridge construction work or for
other construction work involving railroad tracks and supporting
structures. In its comments in response to the proposed rule, AAR noted
that ``FRA regulations also cover bridge construction work'' and that
accordingly ``the distinction found in proposed Sec. 1926.1442(a) for
bridge construction work is no longer appropriate and not legally
accurate (see Docket ID: OSHA-2015-0012-00011, p. 5).
The scope of these exemptions in the final rule reflects the extent
to which FRA has acted to preempt OSHA regulatory authority in
accordance with section 4(b)(1) of the OSH Act, as discussed earlier.
See 79 FR 66460 and FRA's communication to OSHA in Docket ID: OSHA-
2015-0012-0015. FRA made clear in its 2019 communication to OSHA that
it intended to preempt the relevant provisions of OSHA's standard
without regard to whether they applied to bridge construction or not
(see, e.g., FRA's response to OSHA's first question: ``. . . [FRA
regulations] oust OSHA's similar construction standards, including
standards relating to bridge construction . . .''). The distinction for
bridge construction work in proposed Sec. 1926.1442(a) is no longer
appropriate and therefore was not included in this final rule. To
prevent the removal of the proposed distinction for bridge work from
inadvertently expanding the exemptions beyond activities regulated by
FRA, however, the final rule specifies that the exemptions apply only
to the extent that the RMM activities remain subject to the authority
of FRA. For example, OSHA's exemptions would apply to railroad bridge
construction subject to subpart B of 49 CFR part 214 (Bridge Worker
Safety Standards), but the use of cranes to construct a highway bridge
over railroad track would not be exempt to the extent that FRA lacks
authority to regulate that activity to ensure the safe operation of
that equipment. OSHA's crane standard, including its requirements for
operator training, certification, and evaluation, would apply in full
to the latter class of construction activity.
D. Section 1926.1442(b)(1) Operator Certification, Training, and
Evaluation
This final rule paragraph provides exemptions in accordance with
section 4(b)(1) of the OSH Act, which exempts from the Act the working
conditions of certain employees with respect to which other Federal
agencies exercise statutory authority to prescribe and enforce
occupational safety and health standards.
Following OSHA's promulgation of the crane standard in subpart CC,
FRA promulgated training requirements for operators of RMMs equipped
with hoisting devices. FRA's rule included a clear statement in the
preamble that after the effective date of the new rule, ``FRA
regulations would apply to operators of roadway maintenance machines
equipped with a crane, rather than OSHA's regulation related to crane
operator qualification and certification found at 29 CFR 1926.1427''
(79 FR 66460, 66475 (November 7, 2014)). FRA had previously issued its
proposed rule with a similar statement prior to OSHA's settlement
agreement with AAR, so the draft regulatory language in OSHA's
settlement agreement included a proposed exemption from the operator
certification requirements of Sec. 1926.1427. In the NPRM for this
rulemaking, OSHA went further and stated that it read FRA's final-rule
statement as preempting all OSHA requirements that would apply to the
training, certification, and assessment of operators of RMMs (83 FR at
34079). OSHA therefore proposed to exempt all of the operator
``qualification and certification'' requirements in Sec. 1926.1427, as
well as the operator training requirements in Sec. 1926.1430, and
sought comment on whether any additional provisions should be cited in
the exemption (83 FR at 34080).
OSHA received two comments, both agreeing that FRA's statement
should be read as broadly preempting all of OSHA's operator training,
evaluation, and certification requirements with respect to operators of
RMMs. A joint comment from the labor organizations BRS and BMWED
affirmed that the hazards OSHA had identified when promulgating the
operator certification requirements do exist in the railroad industry
but did not object to OSHA's exemption for certification and training
so long as ``this exemption does not relieve the FRA from its
responsibility to assure that these hazards are addressed.'' (See
Docket ID: OSHA-2015-0012-0014.)
AAR, whose comment was endorsed by several other commenters,
asserted that FRA regulation prohibits OSHA from enforcing requirements
regarding ``all aspects of operator training,'' including ``the
evaluation and assessment of roadway maintenance machine operators.''
(See Docket ID: OSHA-2015-0012-0011, pp. 4-5.) AAR also noted that
OSHA, in a separate rulemaking, had proposed new training and
evaluation requirements for
[[Page 57112]]
operators of three specific categories of cranes for which operator
certification was not required: Sec. Sec. 1926.1436(q) (Qualification
and training for derricks), 1926.1440(a) (Sideboom cranes), and
1926.1441(a) (Equipment with a rated hoisting/lifting capacity of 2,000
pounds or less) (see Cranes and Derricks in Construction: Operator
Qualification, 83 FR 23534, 23568-23569 (May 21, 2018)). AAR
recommended that OSHA expressly exempt operators of RMMs from the
training and evaluation provisions proposed in those sections.
OSHA agrees with AAR and is therefore expanding the exemptions in
final rule Sec. 1926.1442(b)(1). Like the proposed rule, the final
rule includes an explicit exemption from the training, certification,
and evaluation requirements for these operators in Sec. Sec. 1926.1427
and 1926.1430, to provide clear notice to employers in the railroad
industry that might not otherwise be aware of the effect of FRA's rule
on OSHA's standard. The final rule goes further. Although OSHA did not
ultimately include any operator evaluation requirements in Sec.
1926.1436(q), Sec. 1926.1440(a), or Sec. 1926.1441(a),\3\ the
exemption in this final rule also applies to operator qualification
requirements in Sec. Sec. 1926.1436(q), 1926.1440(a), and
1926.1441(a), as AAR requested, based on FRA's statement of intent to
exercise jurisdiction over all aspects of operator training.
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\3\ See explanation in OSHA's final rule for Cranes and Derricks
in Construction: Operator Qualifications, 83 FR 56198, 56209
(November 9, 2018).
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The exemption in Sec. 1926.1442(b)(1) also extends to the
requirements for the assessment and evaluation of crane operators.
Under Sec. 1926.1427, as amended in 2018, employers are required to
evaluate their operators to ensure competency to operate specific
cranes. Although FRA's final rule predated the promulgation of OSHA's
assessment and evaluation requirements, OSHA reads FRA's statements
about replacing OSHA's regulation related to crane operator
qualification and certification found at 29 CFR 1926.1427 as intended
to preempt all OSHA requirements that would apply to the training,
certification, assessment, and evaluation of operators of RMMs.
E. Section 1926.1442(b)(2) Rail Clamps, Rail Stops, and Work-Area
Controls
This final rule paragraph provides exemptions in accordance with
section 4(b)(1) of the OSH Act.
Final rule Sec. 1926.1442(b)(2) exempts employers from three
requirements. Section 1926.1442(b)(2)(i) and (ii) provides exemptions
from subpart CC requirements for using rail stops and rail clamps on
equipment covered by subpart CC. Under Sec. 1926.1442(b)(2)(iii), OSHA
provides an exemption from work area controls specified by Sec.
1926.1424(a)(2) when employers are subject to the on-track safety
program requirements of 49 CFR 214.307(b).
FRA's interpretation of its regulations in its communication to
OSHA stated clearly that it intended the regulations at 49 CFR part 214
(specifically, Sec. Sec. 214.307, 214.341(b), and 214.357(b)) to
preempt all three categories of OSHA's requirements when operating
RMMs: ``FRA regulations ensure employers put in place sufficient
protections to prevent the types of hazards that OSHA intended to
prevent through its work-area control, rail clamp and rail stop
requirements.'' (See Docket ID: OSHA-2015-0012-0015.)
Comments received in response to the proposal were supportive of
the proposed exemptions for rail stops, rail clamps, and work area
controls. (See Docket IDs: OSHA-2015-0012-0011, p. 7-8; OSHA-2015-0012-
0014, p. 2.) In light of FRA's stated intention to preempt OSHA's
provisions in these areas without the limitations OSHA had included in
the proposed rule, the exemptions in this final Sec. 1926.1442(b)(2)
are expanded from the proposal. In the proposed rule, OSHA had included
caveats to these exemptions; in the final rule, the proposed caveats
have been removed, consistent with the extent of FRA's regulatory
requirements.
F. Section 1926.1442(b)(3) Out-of-Level Work
This paragraph provides exemptions in accordance with section
4(b)(1) of the OSH Act.
Section 1926.1442(b)(3) exempts RMMs from restrictions on out-of-
level work. These OSHA restrictions, including the requirements to
comply with out-of-level manufacturer procedures in Sec. 1926.1402(b),
the inspection requirements in Sec. 1926.1412(d)(l)(xi), and the
requirement that machines have out-of-level indicators in Sec.
1926.1415(a)(l), address the risk of equipment tipover and loss of
control of the load.
The record in this rulemaking indicates that out-of-level operation
is a longstanding and necessary practice in the railroad industry.
Industry practices already account for load-chart adjustments and other
standard practices to address out-of-level work. In 2010, OSHA
responded to the unique nature of railroad work conditions with an
exception to the out-of-level work prohibition for railroad equipment
but limited the exception to include only equipment traveling on the
tracks (see Sec. 1926.1402(f)). Following the rulemaking, AAR
explained that many RMMs, like a swing loader crane, often travel next
to the track (as opposed to on it) but frequently must work out-of-
level because the ballast and road bed are sloped. OSHA therefore
proposed an expanded exemption that would have applied to RMMs even
when operated off the track but would have required a registered
professional engineer (RPE) or another qualified person to make
adjustments to the manufacturer-provided load charts that typically
anticipate operation on level ground (83 FR at 34080).
All of the comments addressing this provision supported the
exemption. One commenter supported OSHA and agreed that ``these
proposals, if promulgated, would maintain safety and health protections
while reducing employers' compliance burdens.'' (See Docket ID: OSHA-
2015-0012-0010.) Another commenter also expressed support for the
exemption and stated that it is ``helpful.'' (See Docket ID: OSHA-2015-
0012-0011, p. 8.)
A third commenter suggested that the ``approvals must be in writing
and be included in the `Instructions Document' required under
214.341(b).'' This commenter also suggested that the option of allowing
a qualified person to make additional adjustments should be removed
because ``the equipment manufacturer and an RPE are the only
professionals qualified with the knowledge and expertise necessary to
adjust load charts for railroad operations.'' (See Docket ID: OSHA-
2015-0012-0014, p. 3.)
FRA subsequently communicated to OSHA that it intends its
regulations at 49 CFR part 214, subparts C and D, including Sec. Sec.
214.341 and 214.357, to ``govern the safe operation of roadway
maintenance machines (including those with cranes) such that they oust
OSHA's similar construction standards . . . that would otherwise
require operators of this equipment to comply with crane manufacturer's
procedures.'' (See Docket ID: OSHA-2015-0012-0015.) FRA also stated
that its regulations ``do not directly limit out-of-level work, but
that issue may be indirectly addressed in a manufacturer's instructions
or the instructions established by an employer that replace the
manufacturer's instructions.'' (Id.) OSHA interprets this response as
indicating that OSHA is foreclosed from imposing conditions on out-of-
level work.
[[Page 57113]]
Therefore, OSHA is issuing this exemption in this final rule as a
broad exemption from the prohibition on out-of-level work without any
of the conditions required in the proposal.
G. Section 1926.1442(b)(4) Dragging a Load Sideways
The exemption in Sec. 1926.1442(b)(4) in this final rule provides
relief from the prohibition in Sec. 1926.1417(q) against using cranes
or derricks to drag a load sideways. It has been an existing practice
during many track construction projects for RMMs to drag rail or ties
sideways. The practice of dragging long pieces of rail sideways off the
ties or to position them on top of the ties is routine and critical to
the process of track construction. This practice does not have a ready
alternative, does not involve lifts more than a few feet off the
ground, and the movement of the load is predictable because the
procedure is repeated over and over with the same materials.
None of the commenters opposed this exemption. One comment in
response to the proposed rule expressed general support for ``the
exemptions in the Proposed Rule and the changes made pursuant to the
settlement agreement between OSHA and AAR.'' (See Docket ID: OSHA-2015-
0012-0011, p. 9.) Another comment supported this exemption, stating
that ``the long existing practice of dragging a load sideways in the
rail industry is absolutely crucial for the rail industry to perform.''
(See Docket ID: OSHA-2015-0012-0014, p. 3.)
Therefore, OSHA is including this exemption in the final rule as
proposed.
H. Section 1926.1442(b)(5) Boom-Hoist Limiting Device
Section 1926.1442(b)(5) of this final rule clarifies existing Sec.
1926.1416(d)(1), which requires equipment manufactured after December
16, 1969, to have a boom-hoist limiting device. Traditionally, boom
hoists wind wire rope around a revolving drum. At the other end of the
wire rope is a ball, to which a hook or other device can be attached,
that can be pulled up toward the tip of the boom. The boom hoists
continue to wind until stopped by the operator, a limiting device, or
by damaging the machine. The process is somewhat analogous to a
fisherman winding line on a rod and reel: If too much winding occurs,
the lure is pulled into the rod tip; more winding bends and breaks the
rod or detaches the lure. The limiting device prevents similar results
on boom-hoist equipped cranes and derricks by automatically stopping
winding when the ball is pulled too close to the tip of the boom. On
hydraulic cylinder/piston equipped booms, the Sec. 1926.1416(d)(1)
requirement for a limiting device is redundant because the stroke or
piston travel is an inherent limit in each cylinder/piston. Thus, OSHA
proposed to exempt RMMs using a hydraulic piston for raising and
lowering the boom from the requirement for a boom-hoist limiting device
in Sec. 1926.1416(d)(1) (83 FR at 34081).
Both commenters addressing this provision supported the exemption.
(See Docket ID: OSHA-2015-0012-0011, p. 9 and OSHA-2015-0012-0014, p.
3.) One of the commenters noted that ``the Sec. 1926.1416(d)(1)
requirement for a limiting device is redundant because the stroke or
piston travel is an inherent limit in each cylinder/piston. . . . We
support this proposed section and the clarification it brings'' (see
Docket ID: OSHA-2015-0012-0014, p. 3).
Therefore, OSHA is including this provision in the final rule as
proposed.
I. Section 1926.1442(b)(6) Manufacturer Guidance for Modifications
Covered by Sec. 1926.1434
Section 1926.1442(b)(6) in this final rule provides an exemption
for certain railroad machines from the requirements of Sec. 1926.1434,
which requires employers to obtain and follow the equipment
manufacturer's guidance for equipment modifications. OSHA's proposed
exemption was conditioned on procedural prerequisites such as the
employer obtaining approval from an RPE for equipment modifications not
permitted by the manufacturer (83 FR at 34081). The AAR and the two
labor organizations (BRS and BMWED) addressed the issue and supported
the exemptions, while the latter comment requested that engineer
approval be in writing. (See Docket ID: OSHA-2015-0012-0011, p. 7;
OSHA-2015-0012-0014, p. 3.)
As discussed earlier with respect to out-of-level work, however, in
49 CFR 214.341 and 214.357 FRA has chosen to address the issue of
manufacturer's guidance and how it will allow departure from that
guidance. FRA communicated to OSHA that FRA views its regulations as
preempting OSHA's jurisdiction to require compliance with manufacturer
instructions and guidance. (See Docket ID: OSHA-2015-0012-0015.)
Therefore, to reflect the extent of FRA's preemption, OSHA has included
this exemption in the final rule without the associated procedural
prerequisites proposed in the corresponding paragraph.
J. Section 1926.1442(b)(7) Other Manufacturer Guidance
Section 1926.1442(b)(7) in this final rule provides an exemption
for certain RMMs from the requirements of several other sections of
subpart CC that require employers to follow the manufacturer's
guidance, instructions, procedures, prohibitions, limitations, or
specifications. The requirements are found in Sec. Sec. 1926.1404(j),
(m), and (q); 1926.1417(a), (r), (u), and (aa); 1926.1433(d)(1)(i); and
1926.1441. Under the final rule, these requirements do not apply if the
employer is subject to the requirements of 49 CFR part 214.
As with the exemptions from manufacturer requirements in Sec.
1926.1442(b)(6), OSHA's proposed exemption had also been conditioned on
procedural prerequisites such as obtaining the approval of an RPE (83
FR at 34082). Again, the AAR and the two labor organizations (BRS and
BMWED) provided the only comments specifically addressing the issue and
the comments supported the exemptions while the latter comment
requested that engineer approval be in writing. (See Docket ID: OSHA-
2015-0012-0011, p. 7; OSHA-2015-0012-0014, p. 3.)
FRA's statement that it views the regulations at 49 CFR 214.341 and
214.357 as preempting OSHA requirements to comply with manufacturer
requirements is also applicable to the exemption in Sec.
1926.1442(b)(7). (See Docket ID: OSHA-2015-0012-0015.)
Therefore, to reflect the extent of FRA's preemption, OSHA has
included this exemption in the final rule without the associated
procedural prerequisites proposed in the corresponding paragraph.
III. Final Economic Analysis and Regulatory Flexibility Analysis
Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5
U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C.
1532(a)) require OSHA to estimate the costs, assess the benefits, and
analyze the impacts of certain rules that the agency promulgates.
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, reducing costs, harmonizing rules, and promoting
flexibility.
The estimated cost savings for employers for this final rule are
the difference between the full cost of the 2010 rule and the residual
costs left after the exemptions of this final rule are in place, which
is a savings of $17.1 million per year at a discount rate of 3
[[Page 57114]]
percent.\4\ This final rule is not economically significant within the
meaning of Executive Order 12866, nor is it a major rule under the
Unfunded Mandates Reform Act or Section 804 of the Small Business
Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.). In
addition, this rule complies with Executive Order 13563.
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\4\ At a discount rate of 7 percent, the cost savings are $18.6
million per year. Due to rounding as shown in the text versus the
underlying exact spreadsheet calculations, some text calculations
may vary from the exact presented totals. All dollar amounts in the
text are brought forward to 2018 dollars.
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When it issued the final crane standard in 2010, OSHA prepared a
final economic analysis to ensure compliance with the OSH Act and
Executive Order 12866 (58 FR 51735) (September 30, 1993). OSHA also
published a Final Regulatory Flexibility Analysis as required by the
Regulatory Flexibility Act (5 U.S.C. 601-612). On September 26, 2014,
the agency included additional economic analysis when it published a
final rule extending the employer duty to ensure operator competency
and the deadline for all crane operators to become certified (79 FR
57785). Because OSHA did not have sufficient data at the time, OSHA did
not include in either rulemaking a complete assessment of the economic
impact on the railroad industry.
This final economic analysis (FEA) not only addresses the economic
impact on the railroad industry of the revisions to the crane standard,
but also completes the analysis of the impact of the entire crane
standard on the railroad industry. This analysis relies on the data
used for the proposed rule in the preliminary economic analysis (PEA)
for this rulemaking (83 FR at 34082-87). OSHA requested public comment
on the PEA but did not receive any comments challenging the validity of
the economic estimates provided in the PEA.
The PEA used the same methodology applied to other industries in
the 2010 economic analysis of the crane standard. In conducting the
preliminary analysis, the agency relied mainly on the best available
economic data provided by AAR to the agency as part of the settlement
agreement. The agency provided a list of questions to AAR. To help
answer the questions, AAR decided to send out a survey to its Class I
freight railroad members. It then returned the results, along with
other general responsive information, to OSHA. Those responses
(referenced as AAR 2015), as well as some estimates from the economic
analysis supporting the September 26, 2014, operator certification
deadline extension final rule (79 FR 57785), form the basis of the
original PEA, and hence this FEA. The major changes between this FEA
and the PEA are wages and prices updated to 2018 dollars as well as
decreased costs due to expansion of several of the exemptions.
As noted earlier in this document, in spring 2019 (following the
publication of OSHA's NPRM), FRA provided OSHA additional information
clarifying that FRA intends that its regulations preempt the potential
applicability of a number of the OSHA requirements addressed in OSHA's
NPRM. (See Docket ID: OSHA-2015-0012-0015.) In this final rule, OSHA is
amending the CFR to include these corresponding exemptions. This step
of codifying exemptions was requested by AAR to remove any ambiguity
regarding the application of these provisions of the crane standard to
the railroad industry. In the discussion that follows, OSHA has
identified the reduction in costs that result from employers not being
required to comply with these provisions. For consistency with the
analysis provided in the PEA, OSHA has continued to rely on the same
baseline costs identified in the PEA, which makes it easier to quantify
the cost reductions that result from compliance with fewer provisions
of the crane standard.
One of the major impacts of the expanded exemptions is that whereas
the settlement agreement had limited the exemptions to activities other
than bridgework (meaning that the equipment or activities for
bridgework would be subject to the general requirements in OSHA's crane
standard), FRA stated that it was preempting the applicable provisions
in OSHA's proposed rule without regard to whether they related to
bridgework. Thus, PEA costs associated with bridgework are no longer
counted as costs of this final rule.
FRA's preemption interpretation and OSHA's corresponding exemptions
in this final rule relieve the railroad industry of many cost burdens
related to the crane standard. OSHA estimates that the 2010 rule would
have cost the railroad industry $24.7 million annually in 2018 dollars.
The residual total of the 2010 crane rule after the exemptions of this
final rule is $7.6 million in costs for the railroad industry. Thus,
railroad employers will save $17.1 million per year at a discount rate
of 3 percent. At a discount rate of 7 percent, the 2010 rule would have
cost the railroad industry $26.2 million annually, has a residual total
of costs of $7.6 million, and hence has cost savings of $18.6 million.
When the agency uses a perpetual time horizon to allow for cost
comparisons under E.O. 13771, the annualized cost savings are $4.1
million per year in 2016 dollars with 7 percent discounting.\5\ These
cost savings are conservative in that several exemptions, described
below, are not estimated quantitatively (the associated costs were not
estimated in the 2010 rule) but those exemptions could appreciably
increase total cost savings if they could be calculated.
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\5\ This perpetual cost calculation is in 2016 dollars for a
horizon starting in 2020.
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A. Scope of the Exemptions
The railroad industry is typically divided into three ``classes''
of railroads according to a revenue-based classification scheme
developed by the Surface Transportation Board (STB).\6\ Class I
railroads are the largest railroads with the greatest amount of revenue
and primarily comprise seven large freight railroads and the Amtrak
passenger rail service. They operate over the vast majority of track
across the country. Class II and III railroads are smaller freight
railroad companies, various commuter lines, and other specialty lines
that operate over much smaller sections of track or operate on track
owned by the Class I railroads.
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\6\ See 49 CFR part 1201, General Instructions 1-1. Class I
railroads are those with annual carrier operating revenues of more
than $250 million, Class II railroads are those with operating
revenues between $20 million and $250 million, and Class III
railroads have annual operating revenues of less than $20 million.
---------------------------------------------------------------------------
OSHA has imperfect information about the three classes of
railroads. The AAR survey covered only the Class I freight railroads.
AAR was also able to provide additional information it obtained from
Amtrak, but due to incomplete national statistics for the railroad
industry, OSHA has not been able to obtain corresponding data for Class
II and Class III railroads.
Therefore, for this final rule, the agency has followed the same
procedure as it did in the PEA and used indirect estimates to scale up
partial data to create estimates for the industry as a whole. The U.S.
Department of Transportation states that Class I freight railroads
operated 94,400 miles (68%) of the 139,400 total miles in the U.S.
system.\7\ Amtrak stated that it maintains 852 miles of track (Amtrak,
2017). In combination with Class I freight track, the total Class I
track estimate is therefore 95,252 (94,400 miles operated
[[Page 57115]]
by Class I freight + 852 miles operated by Amtrak) out of the total
U.S. track of 139,400. AAR also stated that its members operate 6,935
RMMs that might fall within the scope of OSHA's crane standard (AAR,
2015), and Amtrak stated that it operates 303 RMMs that might fall
within that standard (Amtrak, 2017). Assuming that non Class-I
railroads use RMMs in the same way as Class I railroads, OSHA is able
to estimate the total number of potentially covered RMMs by scaling up
the total number of Class I RMMs by the ratio of total track to Class I
track, or 1.46 (139,400/(94,400 + 852)).\8\ With the total number of
Class I RMMs at 7,238 (6,935 freight + 303 Amtrak), the final estimate
of all RMMs is 10,593 (7,238 x 1.46). To the extent that Class I
railroads perform track work for other segments of the railroad
industry, this markup will be an overestimate. The agency solicited
comment but received none on this issue and so used the same
methodology for this FEA.
---------------------------------------------------------------------------
\7\ ``The United States had almost 140,000 railroad route-miles
in 2014, including about 94,400 miles owned and operated by the
seven Class I freight railroads. Amtrak, local, and regional
railroads operated the remaining 45,000 miles.'' (DOT/BTS, 2016, p.
16 (internal citation omitted)).
\8\ From this point forward, this FEA refers to the ratio of
total track to Class I track (1.46) as ``the standard markup.''
---------------------------------------------------------------------------
Based on information provided by FRA's Office of Safety Analysis,
OSHA estimates that there are a total of 775 railroads (OSHA discussion
with FRA staff, September 9, 2014). AAR reported that in 2012 the total
number of freight railroads, including the 7 Class I freight railroads,
was 574 (AAR, 2014). The remainder of the railroads are passenger and
commuter railroads, plant railroads (that do not operate on the general
railroad system of transportation \9\), freight car manufacturers,
freight car repair facilities or companies that provide specialized
rail services and switching and terminal railroads. The agency assumes
2012 data continue to approximate industry conditions today.
---------------------------------------------------------------------------
\9\ The general railroad system of transportation refers to
``the network of standard gage track over which goods may be
transported throughout the nation and passengers may travel between
cities and within metropolitan and suburban areas.'' 49 CFR part
209, appendix A.
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To account for the cost savings from the final rule exemptions, the
number of RMMs must be broken out into two subcategories. There is a
small group of RMMs that would fit into the full exemption for flash-
butt welding trucks and similar equipment under Sec. 1926.1400(c)(18).
AAR reported that its members had 22 RMMs that would fall within the
exemption (AAR, 2015), while Amtrak indicated that none of its RMMs
would do so (Amtrak, 2017).\10\ Using the same ratio to account for
these exempt RMMs in Class II and III railroads, OSHA estimates that
there is a total of 32 pieces of such exempt RMMs across the entire
railroad industry (1.46 x 22). Therefore, OSHA estimates that 7,216
(7,238-22) Class I RMMs, and an industry total of 10,561 (10,593-32)
RMMs, would fall under at least some provisions of the crane rule.
Again, OSHA did not receive any comment on these estimates, which are
unchanged from the PEA.
---------------------------------------------------------------------------
\10\ For the purposes of this analysis, OSHA has treated all
flash-butt welding trucks and similar equipment as covered by the
standard absent the proposed exemption.
---------------------------------------------------------------------------
B. Non-Operator Base Costs of 2010 Crane Standard for Railroads
When OSHA promulgated the crane standard in 2010, the agency did
not include an economic analysis of the costs imposed by that standard
on the railroad industry. In order to estimate cost savings of this
final rule, the agency must now estimate the costs the railroad
industry would have been subject to if it had been required to comply
with all requirements of the 2010 crane standard. OSHA has now
estimated those costs, first in the PEA and now updated for this FEA.
Table B-9 of the 2010 final rule (75 FR at 48104) shows that railroads
are in the ``Own but Do Not Rent'' sector of the industry profile. The
agency estimated the costs of the 2010 final rule by using the costs
for the ``Own but Do Not Rent'' sector as a proxy for railroad costs,
scaling these aggregate costs by the size of the railroad industry. In
the PEA the agency recognized this proxy may be imperfect and solicited
comment on these estimates but received none, and so has continued to
use them for this FEA (83 FR at 34083).
In the PEA, OSHA noted that costs other than operator certification
would have been incurred by railroad employers using equipment covered
by OSHA's crane standard (id.). Most 2010 rule provisions other than
operator certification and training are not operator specific, so the
agency, as it did in the PEA, estimated the cost of the 2010
requirements by identifying the per-crane non-operator cost of the 2010
final rule and applying that cost (inflated to 2018 dollars using the
GDP deflator) to the number of affected RMMs in the railroad sector.
The ``Own but Do Not Rent'' sector in Table B-9 (75 FR at 48104)
has total operator certification costs of $30,606,452 and overall total
costs of $62,651,984, leaving $32,045,531 in non-certification costs
($62,651,984-$30,606,452).\11\ The ``Own but Do Not Rent'' sector was
listed as having 50,807 cranes and other covered equipment (Table B-11,
75 FR at 48107). Thus, excluding operator certification costs, OSHA's
2010 cost estimates for the ``Own but Do Not Rent'' sector amounted to
$631 per machine ($32,045,531/50,807). Using the 1.15 GDP deflator
factor for 2010-2018, this cost brought forward to 2018 dollars is $724
(Bureau of Economic Analysis (BEA), 2018).
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\11\ In the 2010 rulemaking, OSHA did not include any additional
costs for operator training, other than certification exam
preparation, because operator training was already required under
the previous standard. Therefore, this analysis relies exclusively
on operator certification costs as the costs avoided by the
exemption for railroads from OSHA's operator training and
certification requirements. OSHA promulgated a revision to the crane
standard in 2018 that included some additional costs for evaluating
operators and some additional savings from removing the requirement
for multiple operator certifications for different crane capacities
(see 83 FR 56198, 56236-56239 (Nov. 9, 2018)). The new exemption in
Sec. 1926.1442(b)(1) applies to all crane operator training,
certification, and evaluation requirements. Thus, the exemption in
this railroad rulemaking ensures that there is no economic impact on
the railroad industry from the 2018 final rule.
Costs for operator certification are annualized over 5 years,
reflecting the 5 year length for which a certificate is valid. All
other costs are the same each year and so do not need to be
annualized.
---------------------------------------------------------------------------
Based on this per-machine cost of the 2010 rule and the estimate of
10,593 total pieces of railroad equipment covered by the 2010 rule, the
total annual base non-operator cost of the 2010 rule to the entire
railroad industry would be $7,673,147 (10,593 x $724.38; 2018 dollars).
The exception for flash-butt welding trucks and similar equipment
removes 32 RMMs and lowers the cost in 2018 dollars to $7,649,824
(10,561 x $724.38), which is a savings of $23,323.
These are the base non-operator costs only. There are two pieces of
equipment specific to cranes on rails that would have a special impact
on railroads absent the exemptions: Rail clamps and rail stops. These
were not included in the 2010 rule base costs and are addressed next.
C. Rail Clamps and Rail Stops
Rail clamps are one type of equipment that would no longer be
required in the railroad industry under the exemption in Sec.
1926.1442(b)(2)(i) in this final rule. AAR told OSHA that the railroad
industry does not typically use rail clamps for most operations and
indicated that 5,663 additional rail clamps beyond what the Class I
railroad industry has in stock would need to be purchased to comply
with the existing crane rule (AAR, 2015). Further communication from
AAR stated that Amtrak would need 157 additional clamps (Amtrak, 2017).
These rail clamps would have imposed new up-
[[Page 57116]]
front, maintenance, and replacement costs on the industry.
In the PEA, OSHA estimated a total initial cost for rail clamps of
$51,104,943, plus an additional $4,897,557 annual cost for
maintenance.\12\ OSHA requested comment but received none and is
therefore incorporating the same costs into this final economic
analysis. OSHA derived these costs first by applying the standard
markup of 1.46 to estimate the total railroad industry-use clamps as
8,517 (1.46 x (5,663 + 157)). OSHA then estimated the up-front cost for
each unit. AAR's survey reported as follows: ``The majority of the
railroads indicated that the unit cost for a rail clamp is $5,000-
$6,000. However, one of the railroads contacted a manufacturer and
obtained a unit cost of $10,000.'' (AAR, 2015 p. 5). OSHA's costs are
estimated to reflect the average costs for most firms, so the agency
selected the higher-end of the typical cost of $6,000 from the AAR
survey. Therefore, the total initial cost for rail clamps would have
been $51,104,943 (8,517 x $6,000). Annualized over 10 years at a
discount rate of 3 percent, the annualized cost would have been
$5,991,058. Annual maintenance costs per clamp are estimated at $575
for a total annual maintenance cost of $4,897,557 (8,517 x $575).\13\
---------------------------------------------------------------------------
\12\ While most costs here are the same each year, both rail
clamps and stops have an initial upfront cost. The agency annualizes
all initial costs over 10 years, its standard procedure. For
replacement costs it also uses a 10 year horizon. All final costs
presented use this 10 year horizon for annualization when needed.
\13\ The estimate of $575 is the midpoint of the range in the
AAR survey of $450 to $700 ($575 = ($450 + $700)/2).
---------------------------------------------------------------------------
Railroads would have also incurred replacement costs as clamps
reach the end of their useful lifespan. From the AAR 2015 survey, the
number of replacement clamps needed over 10 years for Class I freight
railroads would have been 4,223. OSHA did not receive an estimate for
the number of replacement clamps that Amtrak or the Class II and III
railroads would use, so the agency developed an estimate for additional
replacement clamps based on the ratio of Class I freight railroad track
to all other track. The resulting markup factor for purely Class I
freight track as compared to the entire U.S. railroad industry track is
1.48 (139,400 miles of total U.S. track/94,400 miles of Class I freight
track). Applying this freight markup to the total number of replacement
clamps produces an estimate of 6,236 for the entire industry (4,223 x
1.48). If 10 percent of these clamps were replaced each year, then with
the unit cost equal to the purchase price of $6,000, annual replacement
costs would have totaled $3,741,650 (6,236 x 10% x $6,000).\14\ Added
together, the railroad industry will save $14,630,265 annually by
avoiding the costs for rail clamps ($5,991,058 initial annualized cost
+ $4,897,557 maintenance + $3,741,650 replacement clamps).
---------------------------------------------------------------------------
\14\ If the total pool of working clamps is kept constant, as we
assume, then the maintenance costs for the replacement clamps are
already accounted for in the annual maintenance costs for the
original pool.
---------------------------------------------------------------------------
Rail stops are the second type of equipment exempted by Sec.
1926.1442(b)(2)(ii) in this final rule. In order to comply with the
2010 crane standard, AAR indicated that 11,326 additional rail stops
beyond what the Class I freight railroads have in stock would need to
be purchased (AAR, 2015). Amtrak indicated it would need an additional
314 stops (Amtrak, 2017). The standard (track-based) markup derived
earlier in this FEA and applied to the sum of Class I rail stops and
Amtrak rail stops produces an estimated 17,035 additional rail stops
for the entire industry (1.46 x (11,326 + 314)). The unit cost of a
rail stop is $300 each (AAR, 2015); therefore, the total initial cost
of rail stops would have been $5,110,494 (17,035 x $300). Annualized
over 10 years at a discount rate of 3%, the annual cost would have been
$599,106. Annual maintenance costs per stop are $30 (AAR, 2015);
therefore, total maintenance cost would have been $511,049 (17,035 x
$30).
OSHA also estimated annual replacement costs for these additional
rail stops. The number of additional replacement stops for the Class I
freight railroads needed over 10 years is 10,436 (AAR, 2015). OSHA did
not receive information regarding the number of additional replacement
stops required for Amtrak or the Class II and III railroads. OSHA again
uses the markup of the ratio of all U.S. railroad track to Class I
freight railroad track, which is 1.48. The number of additional
replacement stops needed for the whole industry would have been 15,410
(1.48 x 10,436). If 10 percent of the replacement stops will be
introduced each year then 1,541 replacement railroad stops will be
required each year (15,410 x 0.10). The estimate of the annual unit
cost for these replacement stops is the unit cost for buying a new rail
stop of $300.\15\ Hence the total annual cost for additional
replacement rail stops is $462,324 (1,541 x $300). Added together,
annual cost savings to the railroad industry of this exemption from the
2010 crane standard for railroad stops are $1,572,479 ($599,106 initial
annualized cost + $511,049 maintenance + $462,324 replacement stops).
---------------------------------------------------------------------------
\15\ As in the preceding footnote, maintenance costs for these
replacement stops will already be accounted for in the maintenance
costs for the original pool under the assumption of a constant total
pool.
---------------------------------------------------------------------------
The total annual costs savings of both railroad stops and clamps in
2015 dollars is $16,202,744 ($14,630,265 + $1,572,479). In 2018
dollars, the annual cost savings for both railroad stops and clamps is
$17,067,100.\16\
---------------------------------------------------------------------------
\16\ In the PEA, OSHA estimated that 94 percent of equipment
requiring rail clamps and rail stops would be exempted under the
proposal, but some rail clamps and rail stops would still be
required for bridgework (not exempt under the proposal). OSHA
accordingly reduced the cost savings by $1,053,284 (see 83 FR
34085). The final rule, however, recognizes the FRA's preemption of
all of OSHA's requirements for rail clamps and rail stops in the
railroad industry, without any distinction for bridgework. Thus, in
this FEA the savings attributable to rail clamps and rail stops is
slightly higher than in the PEA because there are no rail clamp or
rail stop costs for the railroad industry. The cost savings of
$17,067,100 in 2018 dollars is calculated from the cost savings in
2015 dollars of $16,202,744 times the 2015-2018 GDP deflator markup
of 1.053 (rounded).
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D. Work Area Controls
OSHA estimates no economic impact from the exemption in Sec.
1926.1442(b)(2)(iii) from compliance with the crane standard's work-
area controls requirements. FRA already requires a number of work area
controls to prevent injury to those working on or around railroad
equipment, and FRA has stated its intent that the railroad industry is
now fully exempted from this provision of OSHA's crane standard. OSHA
noted in the PEA that even absent the preemption, OSHA believes that
the railroads could comply with OSHA's requirements without incurring
significant new costs. Therefore, OSHA did not identify a new cost for
this requirement nor treat the final rule as resulting in any cost
saving. OSHA requested comment on this approach but received none.
Therefore, OSHA has maintained the same approach in this FEA.
E. Out-of-Level Work
The 2010 crane rule economic analysis did not estimate any cost
increase due to the prohibition on out-of-level work applicable to RMMs
traveling off of railroad tracks, and in the PEA for this rulemaking,
OSHA did not estimate any cost savings attributable to the
corresponding exemption from this requirement. OSHA requested comment
but received none and therefore does not estimate
[[Page 57117]]
any cost or cost savings in this FEA for the exemption for out-of-level
work.
F. Dragging a Load Sideways
The 2010 crane rule economic analysis estimated no increased cost
due to this provision, and OSHA has likewise included no cost saving
for this exemption in this final rule. It is possible that the
exemption does result in significant cost savings. AAR indicated that
RMMs regularly need to drag long portions of rail sideways during the
process of installing or replacing the rail, ties, or underlying
roadbed. Therefore, AAR asserted that the prohibition on dragging a
load sideways would force railroad employers to substantially change
current practices for track installation and replacement. If such
changes were feasible, they would likely incur significant cost.
However, because OSHA did not previously estimate any increased costs
for this provision, OSHA did not include any cost saving in the PEA.
OSHA solicited comment on this approach but received none and is
therefore not estimating any cost savings in this FEA, even though it
recognizes that the total cost savings of this final rule may therefore
be underestimated.
G. Boom-Hoist Limiting Device
The 2010 crane rule economic analysis estimated that such boom
hoist limiting devices would generally already be in place, where
needed. Therefore, OSHA did not include any new costs for this
requirement in 2010. OSHA did not estimate any cost savings for this
exemption in the PEA and received no comment on that decision, and in
this FEA there are no resulting cost savings from this exemption.
H. Manufacturer Guidance for Modifications Covered by Sec. 1926.1434
The 2010 crane rule economic analysis estimated that there would be
no new costs due to this provision because it was similar enough to the
previous subpart N crane standard. In the PEA, the agency did not
identify any cost savings from the proposed exemption (83 FR at 34085).
OSHA received no comment on that approach and therefore again does not
estimate any cost savings for the exemption, even as expanded in the
final rule.
I. Operator Certification and Assessment
Because FRA explicitly preempted OSHA's operator training and
certification requirements when it issued its own operator training
rules for railroads, in the PEA OSHA did not include any cost or
savings related to operator training or certification. In this final
rule OSHA has expanded its exemption to encompass all of the operator
qualification requirements in the crane standard, including the
evaluation requirements OSHA promulgated in 2018, consistent with the
PEA. None of those changes, however, impact OSHA's economic analysis in
the FEA because they are based on the recognition that FRA's explicit
statement preempting OSHA's operator certification and training
encompassed operator evaluations.
J. Total Annual Cost and Savings
Finally, adding together the rail clamp/stop costs and the base
non-operator costs, the total annual cost of the 2010 rule to the
railroad industry would have been $24,740,247 ($17,067,100 +
7,673,147). The non-operator costs left after excluding the items
addressed in the exemptions, from above, are $7,649,824, a reduction of
$17,090,423 ($24,740,247 - $7,649,824). These calculations are at a
discount rate of 3 percent, using 2018 dollars. At a discount rate of 7
percent, also using 2018 dollars, the reduction is $18,579,485.
K. Economic Impacts and Feasibility
This section investigates the economic impacts of both the 2010
rule and this final rule, whether they are economically feasible for
the railroad industry as a whole, and whether the agency can certify
that both rules will not have a significant economic impact on a
substantial number of small entities. Since the railroad industry will
incur only a fraction of the full costs attributable to the 2010 crane
standard, a finding that the 2010 crane rule would have no significant
economic impact implies the same for this final rule.
In the PEA, OSHA preliminarily determined that the crane rule is
economically feasible for the railroad industry and the agency
certified that the proposed rule would not have a significant impact on
a substantial number of small entities (83 FR at 34086-87). OSHA
requested comment on those determinations but received none. The final
rule does not include any provisions that added any costs not
identified in the PEA, so the agency reaches the same conclusions with
respect to the final rule. These conclusions rest on the same analysis
as the PEA, which is repeated here.
OSHA applies two threshold tests to look at economic feasibility
for firms overall, regardless of size: Whether the rule's costs as a
percentage of revenues for a sector as a whole are below 1 percent, and
whether those costs as a percentage of profits are below 10 percent.
For small entities there are also two threshold tests: Whether the
costs for small entities are 1 percent of their revenues or below, and
whether those costs are 5 percent or less of the small entities'
profits. None of these threshold tests are hard ceilings or
determinative; they are guidelines the agency uses to examine whether
there are any potential economic feasibility issues that require
additional study. As for the overall totals estimated above, the agency
must use indirect estimates since no public firm-by-firm information
exists.
OSHA relies on the Small Business Administration's (SBA) size
standards to classify a company as ``small.'' The SBA size standard for
a small entity in the railroad industry is employment of 1,500 or less
(SBA, 2017). The seven Class I freight railroads employ a total of
162,819 employees, or an average of 23,260 employees per firm (162,819/
7) (AAR, 2014). The agency estimates that all 7 freight railroads will
be above the 1,500-employee SBA size standard. Non-Class I freight
railroads employ 18,445, and with 574 firms their average number of
employees is 33 (18,445/574). Put together, total freight employment is
181,264 employees (162,819 + 18,445). Amtrak has more than 20,000
employees and is also well above the small entity threshold.\17\ While
there is likely to be a skew among non-Class I railroads, and some of
these railroads may actually exceed the threshold for small businesses,
for the purposes of this analysis the agency treats all 767 non-Class I
firms (775 railroads-8 Class I railroads) as below the SBA size
standard of 1,500 employees.
---------------------------------------------------------------------------
\17\ While the number of Amtrak employees is not changed from
the PEA, the source has been updated to reflect a 2018 publication.
See Amtrak's FY 2018 Company Profile, p. 2, available at https://www.amtrak.com/content/dam/projects/dotcom/english/public/documents/corporate/nationalfactsheets/Amtrak-Corporate-Profile-FY2018-0319.pdf.
---------------------------------------------------------------------------
According to AAR, the Class I freight railroads in 2012 had revenue
of $67.6 billion out of the total of $71.6 billion for the entire
freight industry, so the share of Class I freight revenues is 94
percent (67.6/71.6), while $4 billion (71.6-67.6) are the revenues for
small freight railroads (AAR, 2014). OSHA did not receive revenue
estimates regarding non-freight railroads, so applying the standard
freight-only markup to those totals to account for passenger rail and
other included entities, OSHA estimates $105.7 billion ($71.6b x 1.48)
and $5.9 billion ($4b x 1.48), respectively, for total railroad and
small railroad revenue. Using the GDP deflator to convert these amounts
to 2018 dollars
[[Page 57118]]
results in $116.7 billion and $6.5 billion in revenue, respectively.
OSHA applied AAR's report of 2012 operating income (profits) for
Class I railroads to estimate the average profits of non-Class I
railroads. Class I freight railroads' net income was $11.9 billion
(AAR, 2014), and assuming that the Class I net income share was the
same as its operating revenue share, OSHA derives a total freight
industry net income of $12.6 billion ($11.9b/.94) in 2012, and hence
small freight railroad total net income of $704 million ($12.6b-$11.9b)
in 2012. OSHA did not receive income estimates regarding non-freight
railroads, so applying the standard freight-only markup to those totals
to account for passenger rail and other included entities, OSHA
estimates $18.6 billion ($12.6b x 1.48) and $1.0 billion ($704b x
1.48), respectively, for total railroad and small railroad net income.
Using the GDP deflator to convert these amounts to 2018 dollars results
in $20.4 billion and $1.1 billion in net income, respectively.
Finally, OSHA allocates costs to the small railroads. The share of
employment, rather than revenue, was judged to be a better proxy to
estimate the costs of the 2010 crane rule for small railroads. From the
information provided earlier, Class I freight employment is about 90
percent of total freight railroad employment (162,819/181,264). With
total railroad industry costs of $24.7 million, and, as usual, assuming
the same ratio applies to non-freight railroads, total small railroad
industry costs are $2.5 million ($24.7 million x (1-.90)). The
revenues, profits, and costs are set out in Table 1.
Table 1--Total and Small Railroad Industry Estimated Financial
Statistics
------------------------------------------------------------------------
Description 2018 dollars
------------------------------------------------------------------------
Revenue:
Total Revenue........................ $117 billion.
Small Entity Revenue................. $6.5 billion.
Profit:
Total Profit......................... $20.4 billion.
Small Entity Profit.................. $1.1 billion.
Cost:
Total Cost........................... $24.7 million.
Small Entity Cost.................... $2.5 million.
------------------------------------------------------------------------
The ratio of the 2010 crane rule's costs to revenue for all
railroads is 0.02 percent ($24.7m/$117 billion) and for small railroads
is 0.04 percent ($2.5m/$6.5 billion). The ratio of the 2010 crane
rule's costs to profits for all railroads is 0.12 percent ($24.7m/$20.4
billion) and for small railroads it is 0.23 percent ($2.5m/$1.1
billion). Both easily pass OSHA's standard threshold impacts tests of
costs being below 1 percent of revenue and 10 percent of profits (5
percent of profits for small entities).
For this final rule, from the above, the total residual costs for
the railroad industry as a whole are $7,649,824. Using the same 10
percent share for small railroads gives total costs for small railroads
of $778,428. The ratio of this final rule's costs to revenue for all
railroads is 0.01 percent ($7.6m/$117 billion) and for small railroads
is 0.01 percent ($0.8m/$6.5 billion). The ratio of this final rule's
costs to profits for all railroads is 0.04 percent ($7.6m/$20.4
billion) and for small railroads it is 0.07 percent ($0.8m/$1.1
billion). These also easily pass OSHA's standard threshold impacts
tests of costs being below 1 percent of revenue and 10 percent of
profits (5 percent of profits for small entities).
This analysis at a few places has noted the possibility of some
underestimation of the costs in previous analyses of the 2010 crane
standard for the railroad industry, and thus cost savings attributable
to this final rule. Even a doubling of costs for the railroad industry
would still result in estimated impacts far below threshold limits and
so would not affect feasibility findings even if all of the provisions
of the 2010 rule had been applied to the railroad industry.
OSHA found that the 2010 crane standard is economically feasible
for all affected industries because the ``[c]osts of 0.2 percent of
revenues and 4% of profits will not threaten the existence of the
construction industry, affected general industry sectors, or the use of
cranes in affected industry sectors,'' and no change in the competitive
structure of those industries was expected (75 FR at 48112). The
analysis here shows that the costs of the 2010 rule on railroads are
negligible compared to revenues and profits. Even more so for the
residual costs of this final rule. This supports both OSHA's finding
that the 2010 final rule is economically feasible for all affected
industries (including railroads) and a finding that the residual costs
left after the exemptions in this OSHA final rule are also economically
feasible.
When OSHA determined in 2010 that the crane standard would not have
a significant impact on a substantial number of small entities, OSHA
found that in no case would a small entity have to increase prices more
than 0.18 percent or, if costs could not be passed on, absorb costs
comprising more than 5.0 percent of profits (75 FR at 47913, 48115). As
discussed above, as applied to small railroads, the 2010 rule would be
just 0.12 percent of revenues and 0.23 percent of costs, which shows
that the 2010 final rule finding of no significant impact on a
substantial number of small entities still holds true when railroads
are included. The residual costs for this final rule for small
railroads are even smaller, so the agency certifies that this final
rule will have not have a significant impact on a substantial number of
small entities.
L. Overhead Cost Adjustment
The agency notes that it did not include an overhead labor cost
when it calculated the costs of the crane rule in 2010 and did not add
overhead costs solely for the railroad industry in the PEA accompanying
this rulemaking. OSHA did not receive any comments opposing that
decision, and the agency is not including any such costs in this FEA.
OSHA noted in the PEA that there is not one broadly accepted overhead
rate and that the use of overhead to estimate the marginal costs of
labor raises a number of issues that should be addressed before
applying overhead costs to analyze the costs of any specific
regulation. There are several approaches to examine the cost elements
that fit the definition of ``overhead'' and there are a range of
overhead estimates currently used within the Federal Government. For
example,\18\ the Environmental Protection Agency has used 17
percent,\19\ and Government contractors have been reported to use an
average of 77 percent.\20\ Some overhead costs, such as advertising and
marketing, vary with output rather than with labor costs. Other
overhead costs vary with the number of new employees. Rent or payroll
processing costs may change little with the addition of 1 employee in a
500-employee firm, but those costs may change substantially with the
addition of 100 employees. If an employer is able to rearrange current
employees' duties to implement a rule, then the marginal share of
overhead costs such as rent, insurance, and major office equipment
(e.g., computers, printers, copiers) would be small and very difficult
to measure with accuracy (e.g., computer use costs associated with
[[Page 57119]]
2 hours for rule familiarization by an existing employee).
---------------------------------------------------------------------------
\18\ For a further example of overhead cost estimates, please
see the Employee Benefits Security Administration's guidance at
https://www.dol.gov/sites/default/files/ebsa/laws-and-regulations/rules-and-regulations/technical-appendices/labor-cost-inputs-used-in-ebsa-opr-ria-and-pra-burden-calculations-august-2016.pdf.
\19\ U.S. Environmental Protection Agency, ``Wage Rates for
Economic Analyses of the Toxics Release Inventory Program,'' June
10, 2002.
\20\ Grant Thornton LLP, 2015 Government Contractor Survey.
(https://www.grantthornton. com/~/media/content-page-files/public-
sector/pdfs/surveys/2015/Gov-Contractor-Survey.ashx).
---------------------------------------------------------------------------
If OSHA had included an overhead rate when estimating the marginal
cost of labor, without further analyzing an appropriate quantitative
adjustment, and had adopted an overhead rate of 17 percent on base
wages, as was done in a sensitivity analysis in the FEA in support of
OSHA's 2016 final rule on Occupational Exposure to Respirable
Crystalline Silica, such a rate would have only affected the non-
operator certification costs estimated from the 2010 rule. Because
labor costs were only part of those costs, including this overhead
adjustment would have increased the average cost per machine from $631
to $684, an 8 percent increase. Using this larger per-machine cost in
the rest of the analysis would increase the final cost savings of this
final rule from $17.090 million to $17.092 million at a discount rate
of 3 percent, an increase of 0.01 percent. It would also have increased
cost savings from $18.579 million to $18.581 million at a discount rate
of 7 percent, also an increase of 0.01 percent. The agency presented a
similar calculation in the PEA and received no comment.
M. Technological Feasibility
A safety standard must be technologically feasible. See UAW v.
OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994). A standard is technologically
feasible when the protective measures it requires already exist, when
available technology can bring the protective measures into existence,
or when that technology is reasonably likely to develop (see Am.
Textile Mfrs. Inst. v. OSHA, 452 U.S. 490, 513 (1981); Am. Iron & Steel
Inst. v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991)). All requirements of
the final rule applicable to the railroad industry have now been in
place since the promulgation of the crane standard in 2010, and the
only feasibility issues for the railroad industry raised with OSHA were
addressed through the settlement with AAR and reflected in the
exemptions in this final rule. For example, AAR raised concerns that it
would not be feasible for railroads to avoid dragging rails sideways,
and OSHA is now exempting railroads from the prohibition on dragging
loads sideways. Beyond the issues raised by AAR and addressed in the
settlement, the agency is not aware of any special infeasibility issues
that are unique to the railroad industry. The 2010 technological
feasibility analysis is equally applicable to the railroad industry, so
OSHA finds that the crane standard is technologically feasible for the
railroad industry.
References
AAR, 2014. Association of American Railroads. ``Class I Railroad
Statistics,'' July 15, 2014. (Docket ID: OSHA-2015-0012-0016)
AAR, 2015. Association of American Railroads. ``AAR's Response to
OSHA Economic Questions,'' memo from AAR to OSHA, June 22, 2015.
(Docket ID: OSHA-2015-0012-0005)
Amtrak, 2017. Amtrak. ``Amtrak Response to OSHA Economic
Questions,'' via email from AAR (August 8, 2017, and November 2,
2017). (Docket ID: OSHA-2015-0012-0009)
BEA, 2018. Bureau of Economic Analysis, Table 1.1.4. Price Indexes
for Gross Domestic Product. Available at https://apps.bea.gov/iTable/iTable.cfm?reqid=19&step=2#reqid=19&step=2&isuri=1&1921=survey
. (See Section 1 Domestic Product and Income. Accessed April 1,
2018.)
OSHA, 2016. Occupational Safety and Health Administration, Operator
Certification Notice of Proposed Rulemaking, Summary and Economic
Analysis.
SBA, 2017. Small Business Administration. ``Table of Small Business
Size Standards Matched to North American Industry Classification
System Codes,'' January 2017.
USDOT/BTS, 2016. U.S. Department of Transportation, Bureau of
Transportation Statistics. ``Transportation Statistics Annual Report
2016,'' Washington, DC: 2016. Available at https://www.bts.gov/sites/bts.dot.gov/files/docs/TSAR_2016.pdf.
IV. Legal Authority
The purpose of the OSH Act, 29 U.S.C. 651 et seq., is ``to assure
so far as possible every working man and woman in the Nation safe and
healthful working conditions and to preserve our human resources.'' 29
U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary
of Labor to promulgate and enforce occupational safety and health
standards. 29 U.S.C. 654, 655(b), and 658. A safety or health standard
``requires conditions, or the adoption or use of one or more practices,
means, methods, operations, or processes, reasonably necessary or
appropriate to provide safe or healthful employment and places of
employment.'' 29 U.S.C. 652(8). A standard is reasonably necessary or
appropriate within the meaning of Section 652(8) when a significant
risk of material harm exists in the workplace and the standard would
substantially reduce or eliminate that workplace risk. See Indus. Union
Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980). In the 2010
crane rulemaking, OSHA made such a determination with respect to the
use of all cranes and derricks in construction, including cranes used
in the railroad industry (75 FR at 47913, 47921-22). This rule includes
a number of exemptions and does not impose any new requirements on
employers. Therefore, it does not require an additional significant-
risk finding (see Edison Elec. Inst. v. OSHA, 849 F.2d 611, 620 (D.C.
Cir. 1988)).
OSHA standards must also be economically and technologically
feasible, as discussed earlier in section III.M. of this document. In
that section, OSHA finds that the crane standard, as amended by this
rulemaking, is both economically and technologically feasible for the
railroad industry.
This final rule includes a number of exemptions and does not impose
any new requirements on employers. OSHA has the authority to promulgate
these exemptions because the Act authorizes the Secretary to ``modify''
or ``revoke'' any occupational safety or health standard. 29 U.S.C.
655(b). The Supreme Court has acknowledged that regulatory agencies do
not establish rules of conduct to last forever, and agencies may revise
their rules if supported by a reasoned analysis for the change. See
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 42 (1983). As explained earlier in this preamble, OSHA is
exercising this authority as part of a settlement agreement. The
settlement was narrowly tailored to address the aspects of the railroad
industry that differ significantly from the more typical construction
work covered by the crane standard, and there is consensus between
labor and management groups that the exemptions and alternatives would
continue practices generally accepted as safe in the railroad industry.
V. Paperwork Reduction Act
A. Overview
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et. seq.)
and implementing regulations (5 CFR part 1320) require agencies to
consider the impact of paperwork and other information collection
burdens imposed on the public.\21\ A Federal agency generally cannot
conduct or sponsor a collection of information, and the public is
generally not required to respond to an information collection, unless
it is approved by the Office of Management and Budget (OMB) under the
PRA and displays a valid OMB Control Number. In addition,
notwithstanding any other provisions of law, no person may generally be
subject to penalty for
[[Page 57120]]
failing to comply with a collection of information that does not
display a valid OMB Control Number. See 5 CFR 1320.5(a) and 1320.6.
---------------------------------------------------------------------------
\21\ The PRA defines ``collection of information'' as ``the
obtaining, causing to be obtained, soliciting, or requiring the
disclosure to third parties or the public, of facts or opinions by
or for an agency, regardless of form or format'' (44 U.S.C.
3502(3)(A)).
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B. Solicitation of Comments
On July 19, 2018, OSHA published a Federal Register proposed rule
that allowed the public an opportunity to comment on the proposed
Information Collection Request (ICR) containing the information
collection requirements in the proposed rule, as required by 44 U.S.C.
3507. Concurrent with the proposed rule, OSHA submitted the ICR (ICR
Reference Number 201707-1218-005) to OMB for review in accordance with
44 U.S.C. 3507(d).
On August 24, 2018, OMB issued a Notice of Action (NOA) indicating
that the terms of the previous clearance for the Cranes and Derricks
ICR approved under OMB Control Number 1218-0261 would remain in effect
and it was withholding approval for the ICR submission associated with
the NPRM. OMB requested that ``[p]rior to publication of the final
rule, the agency should provide a summary of any comments related to
the information collection and their response, including any changes
made to the ICR as a result of comments. In addition, the agency must
enter the correct burden estimates.''
The proposed rule invited the public to submit comments to OMB, in
addition to OSHA, on the proposed information collection requirements
with regard to the following:
Whether the proposed information collection requirements
are necessary for the proper performance of the agency's functions,
including whether the information is useful;
The accuracy of OSHA's estimate of the burden (time and
cost) of the information collection requirements, including the
validity of the methodology and assumptions used;
The quality, utility, and clarity of the information
collected; and
Ways to minimize the compliance burden on employers, for
example, by using automation or other technologies for collecting and
transmitting information.
OSHA received no public comments directly addressing the proposed
ICR. However, OSHA did receive several comments that, while expressing
support for the various proposed exemptions requiring approvals from
RPEs, recommended those approvals be in writing. (See Docket ID: OSHA-
2015-0012-0011, p. 7; OSHA-2015-0012-0014, p. 3.) OSHA also received a
number of comments, described earlier in this preamble, in response to
provisions of the proposed rule that contained information collection
requirements in the proposed exemptions (see, e.g., proposed Sec.
1926.1442(b)(2)(i) and (iii)). For the reasons explained earlier in
this preamble, OSHA did not include any of the proposed information
collection in the final rule. OSHA did, however, consider the comments
when it developed the revised ICR associated with the final rule.
Summaries of these comments and OSHA's responses are found above in
Section III, Summary and Explanation of the Proposed Amendments to
subpart CC, and in the agency's final ICR analysis.
Concurrent with publication of this final rule, the Department of
Labor submitted the final ICR, containing the full analysis and
description of the burden hours and costs associated with the final
rule, to OMB for approval. A copy of this ICR will be available at
https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201906-1218-001 on
the day following publication of the final rule. OSHA will publish a
separate notice in the Federal Register that will announce the results
of OMB's review. The agency will ensure that the OMB control number for
the standard is codified in Sec. 1926.5, which is the central section
in which OSHA displays any approved collection under the Paperwork
Reduction Act.
C. Summary of Information Collection Requirements
When OSHA published the crane standard in 2010, the agency did not
clearly identify any railroad respondents to the information collection
requirements in that standard. The agency is now requesting OMB
approval to add railroad respondents to a number of existing
information collection requirements that are subject to review by OMB
under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et.
seq.) and the implementing regulations (5 CFR part 1320).
The final rule does not revise the regulatory text of any existing
information collection requirements in the Cranes and Derricks in
Construction Standard (29 CFR part 1926, subpart CC) Information
Collection (IC) previously approved by OMB. It does, however, modify
the number of respondents affected by information collection
requirements in the IC. This results in changes to the previous burden
hour and/or cost estimates associated with the current OMB-approved
information collection requirements contained in the IC.
The summary below is a brief description of the significant changes
between the proposal's information collection requirements and the
final rule. As discussed earlier in the preamble, on March 19, 2019,
following the publication of OSHA's NPRM, FRA provided OSHA further
information clarifying that FRA intends for its regulations to preempt
most of the OSHA requirements addressed in OSHA's NPRM (see Docket ID:
OSHA-2015-0012-0015). Therefore, OSHA in this final rule expanded some
of the exemptions from the proposed rule by removing conditions
restricting the availability of those exemptions in response to FRA's
2019 communication. Almost all of the changes between the proposed rule
and the final rule result from this removal of conditions on the
exemptions.
These differences are discussed in more specific detail in Section
III, Summary and Explanation of the Amendments to subpart CC. The
impact on information collection requirements is also discussed in more
detail in Item 8 of the ICR. This summary does not address the
provisions that are unchanged from the current, OMB-approved
information collection requirements. Discussion and justification of
these provisions can be found in the preamble to the final 2010 crane
rule (75 FR at 48017) and also in the Supporting Statements for this
final rule, as well as in the approved Information Collection. Due to
the agency's preemption determinations, none of the proposed
information collection requirements that OSHA identified in the
proposal (portions of proposed Sec. 1926.1442(b)(2)(i) and (iii),
(b)(3), (b)(6), (b)(6)(i)(A) and (B), (b)(7) introductory text, and
(b)(7)(i)) are included in the final rule, as briefly explained below
and in more detail above in Section III.
Rail Clamps and Work-Area Controls Exemptions
Section 1926.1442(b)(2)(i) of this final rule exempts the railroad
equipment from the requirement in Sec. 1926.1415(a)(6) for rail clamps
when the manufacturer does not require them. When the manufacturer does
require the clamps, the proposal would have allowed the employer to
seek an exemption by obtaining an RPE's determination that rail clamps
are not necessary, which OSHA had identified as creating a collection
of information. The final rule does not contain the proposed
requirement for an RPE's determination. Therefore, the final provision
contains no information collection requirement.
[[Page 57121]]
Final Sec. 1926.1442(b)(2)(iii) provides that the work-area
controls specified by Sec. 1926.1424(a)(2) do not apply when employers
are subject to the on-track safety program requirements of 49 CFR
214.307(b), regardless of whether they have implemented the controls as
required in the proposal. In the proposal, the potential for
information collection could have come from the implementation of some
controls. The agency does not consider this expanded exemption in this
final rule to require any information collection.
Out-of-Level Work Restriction Exemptions
OSHA's crane standard generally prohibits out-of-level operation of
cranes unless approved by the manufacturer. Proposed Sec.
1926.1442(b)(3) would have allowed out-of-level operation for certain
railroad equipment purchased after November 8, 2010, under conditions
that contained information collection requirements applicable in some
scenarios: Manufacturer approval or modification or approval from an
RPE or a qualified person.
The final rule provision Sec. 1926.1442(b)(3) no longer requires
any conditions on the exemption for out-of-level work for RMMs.
Therefore, the final provision contains no information collection
requirement.
Manufacturer Guidance for Modifications Covered by Sec. 1926.1434
Exemptions
Current Sec. 1926.1434 requires employers to obtain and follow the
equipment manufacturer's guidance for equipment modifications except in
certain circumstances. OSHA proposed an exception to simplify how a
railroad employer may have used modified equipment without involving
the manufacturer but continuing to include safety assurances. According
to proposed Sec. 1926.1442(b)(6), an employer may have used modified
railroad roadway maintenance equipment regardless of manufacturer
guidance when approved by a qualified RPE.
The final rule provisions Sec. 1926.1442(b)(6)(i)(A) and (B) no
longer contain any requirements related to an employer's need to seek
the approval of a qualified RPE. Therefore, the final provision
contains no information collection requirement.
Other Manufacturer Guidance Exemption
Several other sections of subpart CC require employers to follow
the manufacturer's guidance, instructions, procedures, prohibitions,
limitations, or specifications. The proposed exemptions in Sec.
1926.1442(b)(7) would have allowed employers to use RMMs without regard
for the manufacturer's listed restrictions if approved in writing by an
RPE familiar with the equipment. The final rule provision does not
contain the conditions of proposed Sec. 1926.1442(b)(7). Therefore,
the final provision contains no information collection requirement.
As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the
following paragraphs provide information about the ICR that OSHA
prepared in conjunction with this rulemaking. Through this rulemaking,
OSHA is updating the ICR to include all information collections for
subpart CC of 29 CFR part 1926 (OSHA's Cranes and Derricks in
Construction standard), as amended by OSHA's 2018 Operator
Qualification rulemaking and this rulemaking.
Title of Collection: Cranes and Derricks in Construction.
OMB Control Number: 1218-0261.
Affected Public: Private Sector--businesses or other for-profits.
Estimated Number of Respondents (Railroad Industry Only): 775
railroad industry employers.
Estimated Number of Responses (Railroad Industry Only): 252,714.
Estimated Annual Time Burden Hours (Railroad Industry Only):
40,395.
Estimated Annual Other Costs (capital, operation and maintenance)
(Railroad Industry Only): $260,562.
Total Estimated Number of Respondents: 213,400 (212,625 existing
employers + 775 railroad industry employers).
Total Estimated Number of Responses: 3,009,167.
Total Estimated Annual Time Burden Hours: 429,478.
Total Estimated Annual Other Costs (capital, operation and
maintenance): $2,547,063.
VI. Federalism
OSHA reviewed the revisions to the crane standard in accordance
with the Executive order on Federalism (Executive Order 13132, 64 FR
43255, August 10, 1999), which requires that Federal agencies, to the
extent possible, refrain from limiting state policy options, consult
with states prior to taking any actions that would restrict state
policy options, and take such actions only when clear constitutional
and statutory authority exists and the problem is national in scope.
Executive Order 13132 provides for preemption of state law only with
the expressed consent of Congress. Federal agencies must limit any such
preemption to the extent possible.
Under Section 18 of the OSH Act, Congress expressly provides that
states and U.S. territories may adopt, with Federal approval, a plan
for the development and enforcement of occupational safety and health
standards. OSHA refers to such states and territories as ``State Plan
States.'' Occupational safety and health standards developed by State
Plan States must be at least as effective in providing safe and
healthful employment and places of employment as the Federal standards
(29 U.S.C. 667).
OSHA previously concluded from the analysis for the 2010 final rule
that promulgation of subpart CC complies with Executive Order 13132
(see 75 FR at 48128-29). The revisions in this final rule do not change
that conclusion.
VII. State Plans
When Federal OSHA promulgates a new standard or a more stringent
amendment to an existing standard, State Plans must either amend their
standards to be identical or ``at least as effective as'' the new
standard or amendment, or show that an existing state standard covering
this area is already ``at least as effective'' as the new Federal
standard or amendment (29 CFR 1953.5(a)). State Plan adoption must be
completed within six months of the promulgation date of the final
Federal rule. When OSHA promulgates a new standard or amendment that
does not impose additional or more stringent requirements than an
existing standard, State Plans do not have to amend their standards,
although OSHA may encourage them to do so.
The provisions in this final rule are exemptions from existing OSHA
requirements and will reduce compliance burdens on employers, and as
such OSHA does not view any of the provisions as more stringent than
the existing standard. Therefore, State Plans are encouraged to adopt
comparable amendments to their standards but are not required to do so.
In addition, OSHA notes that the FRA's exercise of its authority that
preempted some provisions of OSHA's cranes standard with respect to
railroads may also serve to preempt similar State rules, either
pursuant to a state equivalent of section 4(b)(1) of the OSH Act or as
the legal consequence of general Federal preemption of state laws.
The 28 states and territories with OSHA-approved State Plans are
Alaska, Arizona, California, Connecticut, Hawaii, Illinois, Indiana,
Iowa, Kentucky, Maine, Maryland, Michigan, Minnesota, Nevada, New
Mexico, New
[[Page 57122]]
Jersey, New York, North Carolina, Oregon, Puerto Rico, South Carolina,
Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and
Wyoming. Connecticut, Illinois, New Jersey, New York, Maine, and the
Virgin Islands have OSHA-approved State Plans that apply to state and
local government employees only.
VIII. Unfunded Mandates Reform Act of 1995
OSHA reviewed this final rule in accordance with the Unfunded
Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et seq.) and Executive
Order 13132 (64 FR 43255). OSHA determined that this rule does not add
new costs because the regulatory changes are exemptions.
OSHA's standards do not impose any duties on state and local
governments except in states that elect voluntarily to adopt a State
Plan approved by the agency. OSHA is not aware of any tribal
governments that operate railroads using equipment that would be
subject to this rulemaking, and the regulatory changes create
exceptions to the rule, not new duties. Consequently, this rule does
not meet the definition of a ``Federal intergovernmental mandate'' (see
Section 421(5) of the UMRA (2 U.S.C. 658(5)).
Therefore, for the purposes of the UMRA, the agency certifies that
this final rule does not mandate that state, local, or tribal
governments adopt new, unfunded regulatory obligations, or increase
expenditures by the private sector of more than $100 million in any
year.
IX. Consultation and Coordination With Indian Tribal Governments
OSHA reviewed this final rule in accordance with Executive Order
13175 (65 FR 67249 (November 9, 2000)) and determined that it does not
have ``tribal implications'' as defined in that order. The final rule
does not have substantial direct effects on one or more Indian tribes,
on the relationship between the Federal Government and Indian tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian tribes.
List of Subjects in 29 CFR Part 1926
Construction industry, Cranes, Derricks, Occupational safety and
health, Railroad roadway work.
Authority and Signature
This document was prepared under the direction of Loren Sweatt,
Principal Deputy Assistant Secretary of Labor for Occupational Safety
and Health, U.S. Department of Labor, Washington, DC 20210.
The agency issues the sections under the following authorities: 29
U.S.C. 653, 655, 657; 40 U.S.C. 3704; 33 U.S.C. 941; Secretary of
Labor's Order 1-2012 (77 FR 3912 (1/25/2012)); and 29 CFR part 1911.
Signed at Washington, DC, on August 3, 2020.
Loren Sweatt,
Principal Deputy Assistant Secretary of Labor for Occupational Safety
and Health.
For the reasons stated in the preamble of this final rule, OSHA is
amending 29 CFR part 1926 as follows:
PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION
Subpart CC--Cranes and Derricks in Construction
0
1. The authority citation for subpart CC of 29 CFR part 1926 continues
to read as follows:
Authority: 40 U.S.C. 3701 et seq.; 29 U.S.C. 653, 655, 657;
Secretary of Labor's Order No. 5-2007 (72 FR 31159) or 1-2012 (77 FR
3912), as applicable; and 29 CFR part 1911.
0
2. Amend Sec. 1926.1400 by adding paragraph (c)(18) to read as
follows:
Sec. 1926.1400 Scope.
* * * * *
(c) * * *
(18) Flash-butt welding trucks. Flash-butt welding trucks or other
roadway maintenance machines not equipped with any hoisting device
other than that used to suspend and move a welding device or workhead
assembly. For purposes of this paragraph (c)(18), the terms flash-butt
welding truck and roadway maintenance machine refer to railroad
equipment that meets the definition of ``roadway maintenance machine''
in 49 CFR 214.7 and is used only for railroad track work.
* * * * *
Sec. 1926.1442 [Redesignated as Sec. 1926.1443]
0
3. Redesignate Sec. 1926.1442 as Sec. 1926.1443.
0
4. Add a new Sec. 1926.1442 to read as follows:
Sec. 1926.1442 Railroad roadway maintenance machines.
(a) General rule. Employers using equipment covered by this subpart
that meets the definition of ``roadway maintenance machine,'' as
defined in 49 CFR 214.7, must comply with the requirements in this
subpart, except as provided in paragraphs (b)(1) through (7) of this
section when subject to the authority of the Federal Railroad
Administration.
(b) Exceptions--(1) Operator certification, training, and
evaluation. The requirements in Sec. Sec. 1926.1427 (Operator
qualification and certification) and 1926.1430 (Training) do not apply.
The qualification and training requirements contained in Sec. Sec.
1926.1436(q) (Qualification and training for derricks), 1926.1440(a)
(Sideboom cranes), and 1926.1441(a) (Equipment with a rated hoisting/
lifting capacity of 2,000 pounds or less) do not apply.
(2) Rail clamps, rail stops, and work-area controls. (i) The
requirement for rail clamps in Sec. 1926.1415(a)(6) does not apply;
(ii) The requirement for rail stops in Sec. 1926.1415(a)(6) does
not apply; and
(iii) The work-area controls specified by Sec. 1926.1424(a)(2) do
not apply.
(3) Out-of-level work. The restrictions on out-of-level work, and
the requirements for crane-level indicators and inspections of those
indicators (including the requirements in Sec. Sec. 1926.1402(b),
1926.1412(d)(1)(xi), and 1926.1415(a)(1)), do not apply.
(4) Dragging a load sideways. The prohibition in Sec. 1926.1417(q)
on dragging a load sideways does not apply.
(5) Boom-hoist limiting device. The requirement in Sec.
1926.1416(d)(1) for a boom-hoist limiting device does not apply to
roadway maintenance machines when the cranes use hydraulic cylinders to
raise the booms.
(6) Manufacturer guidance for modifications covered by Sec.
1926.1434. The requirements to follow the manufacturer's guidance set
forth in Sec. 1926.1434 do not apply if the employer is subject to the
requirements of 49 CFR part 214.
(7) Other manufacturer guidance. The requirements to follow the
manufacturer's guidance, instructions, procedures, prohibitions,
limitations, or specifications, set forth in Sec. 1926.1404(j), (m),
or (q); Sec. 1926.1415(a)(6); Sec. 1926.1417(a), (r), (u), or (aa);
Sec. 1926.1433(d)(1)(i); or Sec. 1926.1441 do not apply if the
employer is subject to the requirements of 49 CFR part 214.
[FR Doc. 2020-17179 Filed 9-14-20; 8:45 am]
BILLING CODE 4510-26-P