Federal Register / Vol. 87, No. 74 / Monday, April 18, 2022 / Proposed Rules 22847 

1See, e.g., Executive Order 13610, Identifying and 

Reducing Regulatory Burdens, 77 FR 28469, May 

10, 2012; Executive Order 13563, Improving 

Regulation and Regulatory Review, 76 FR 3821, Jan. 

21, 2011. 

2FRA currently oversees 68 glazing-related 

waivers issued to 58 different railroads and 

involving equipment built or rebuilt before July 1, 

1980. FRA has placed a list of these waivers in the 

docket. FRA monitors a railroad’s compliance with 

each waiver and upon request, FRA reviews 

existing waivers for possible renewal every five 

years. Table D provides the number of waivers that 

will be reviewed for renewal during the next 10 

years. 

3FRA accident and incident data from 1990 to the 

present confirms railroad equipment operating 

under waiver has sustained four acts of vandalism 

over the period with no injuries or casualties and 

the glazing performed satisfactorily. 

4Notably, existing waivers could potentially be 

codified through the rulemaking process, as 

proposed here, or they could be codified through 

legislation. 

(3) The estimated budget by line item 

(e.g., travel and per diem, venue, 

facilitators, meals, equipment, printing, 

access fees, ground transportation); 

(4) A list of USAID employees or PSCs 

attending and a justification for each, 

and the number of other USAID-funded 

participants (e.g., contractor personnel); 

(5) A cost comparison for at least 

three potential venues (including a U.S. 

Government owned or leased facility) 

and a justification if the lowest cost 

facility is not selected; 

(6) If meals will be provided to local 

USAID employees or PSCs (a local 

employee would not be in travel status), 

a statement on whether the meals are a 

necessary expense to support the 

conference objectives; and 

(7) A statement signed by an 

employee of the Contractor with 

authority to bind the Contractor, 

confirming that strict fiscal 

responsibility has been exercised in 

making decisions regarding conference 

expenditures, the proposed costs are 

comprehensive and represent the 

greatest cost advantage to the U.S. 

Government, and that the proposed 

conference representation has been 

limited to the minimum number 

necessary to support the conference 

objectives. 

(End of clause) 

Luis Rivera, 

Acting Senior Procurement Executive, U.S. 

Agency for International Development. 

[FR Doc. 2022–07786 Filed 4–15–22; 8:45 am] 

BILLING CODE 6116–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 223 

[Docket No. FRA–2020–0058; Notice No. 1] 

RIN 2130–AC76 

Safety Glazing Standards; Codifying 

Existing Waivers and Adding Test 

Flexibility 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: FRA proposes to amend its 

Safety Glazing Standards for exterior 

windows on railroad equipment to 

codify long-standing waivers, add a new 

testing option to improve consistency of 

glazing testing, and revise outdated 

section headings. The proposed changes 

would update and clarify existing 

requirements to maintain and, in some 

cases, enhance safety, while reducing 

unnecessary costs. Codification of the 

waivers as proposed is also consistent 

with the Infrastructure Investment and 

Jobs Act, and would enable FRA to more 

efficiently use its inspection resources. 

DATES: Comments on the proposed rule 

must be received by June 17, 2022. 

Comments received after that date will 

be considered to the extent practicable. 

ADDRESSES: 

Comments: Comments related to 

Docket No. FRA–2020–0058 may be 

submitted by going to https://

www.regulations.gov and following the 

online instructions for submitting 

comments. 

Instructions: All submissions must 

include the agency name and docket 

number or Regulatory Identification 

Number (RIN) for this rulemaking. Note 

that all comments received will be 

posted without change to https://

www.regulations.gov; this includes any 

personal information. Please see the 

Privacy Act heading in the 

SUPPLEMENTARY INFORMATION section of 

this document for Privacy Act 

information related to any submitted 

comments or materials. 

Docket: For access to the docket to 

read background documents or 

comments received, go to https://

www.regulations.gov and follow the 

online instructions for accessing the 

docket. 

FOR FURTHER INFORMATION CONTACT: Gary 

Fairbanks, Staff Director, Office of 

Railroad Safety, telephone: 202–493– 

6322, email: gary.fairbanks@dot.gov; or 

Michael Masci, Senior Attorney, Office 

of the Chief Counsel, telephone: 202– 

493–6037, email: michael.masci@

dot.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary 

Information 

I. Executive Summary 

II. Background 

A. Existing Glazing Requirements 

B. FRA Waiver Process and Glazing 

Waivers 

III. Overview and Technical Discussion of 

Proposed Requirements 

A. Proposal To Exclude From Part 223 

Older Equipment Operated at Only Low 

Speeds in Locations With Low Risk of 

Objects Striking Equipment 

B. Proposal To Provide Alternative to 

Existing Large Object Impact Test 

Requiring Use of a Cinder Block 

IV. Section-by-Section Analysis 

V. Regulatory Impact and Notices 

A. Executive Order 12866 

B. Regulatory Flexibility Act and Executive 

Order 13272 

C. Paperwork Reduction Act 

D. Federalism Implications 

E. International Trade Impact Assessment 

F. Environmental Impact 

G. Executive Order 12898 (Environmental 

Justice) 

H. Unfunded Mandates Reform Act of 1995 

I. Energy Impact 

J. Privacy Act Statement 

K. Analysis Under 1 CFR Part 51 

I. Executive Summary 

Purpose of the Regulatory Action 

FRA periodically reviews, and 

proposes amendments to, its regulations 

to identify ways to enhance safety and 

streamline and update regulatory 

requirements. Various Executive orders 

also encourage or require such reviews 

with an emphasis on cost-savings.1 This 

proposed rule would maintain and, in 

some cases, enhance safety, while 

allowing FRA to make better use of its 

inspection resources, and reduce the 

overall regulatory burden on railroads. 

Summary of the Regulatory Action 

The Safety Glazing Standards (or part 

223) contain minimum safety 

requirements for glazing materials in the 

windows of locomotives, passenger cars, 

and cabooses. FRA proposes to codify 

long-standing waivers 2 that have 

provided certain older railroad 

equipment relief from part 223. Through 

the waivers, FRA has generally provided 

relief from part 223’s requirements for 

certain older railroad equipment 

operated at speeds not exceeding 30 

miles per hour (mph) and used only 

where the risk of propelled or fouling 

objects (e.g., cinder blocks or other solid 

objects hanging from bridges, 

overpasses, or like structures) striking 

the equipment is low.3 Codifying these 

waivers through this rulemaking 

proceeding 4 would continue a high 

level of safety and allow FRA better 

flexibility to use its inspection resources 

and reduce the regulatory burden on the 


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22848 Federal Register / Vol. 87, No. 74 / Monday, April 18, 2022 / Proposed Rules 

5 In this document, both total and annualized 

figures have been rounded to improve clarity. 

6See 44 FR 77348, Dec. 31, 1979. 7 Id. 

8 81 FR 6775, Feb. 9, 2016. 49 CFR 223.3(b)(3). 

9FRA estimates the remaining equipment that 

would be affected by this rule is very small as all 

of the equipment is owned and operated by the 58 

railroads currently operating under 68 waivers. 

Some railroads have been granted more than one 

part 223 waiver. 

railroad industry by eliminating the 

need to continue to use the waiver 

process for relief, while providing the 

railroad industry with regulatory 

certainty as to the applicability of part 

223 to certain older equipment. 

Codifying these waivers is also 

consistent with the requirements of 

section 22411 of the Infrastructure 

Investment and Jobs Act (Pub. L. 117– 

58). Section 22411 requires the 

Secretary to review and analyze existing 

waivers issued under 49 U.S.C. 20103 

that have been in continuous effect for 

a 6-year period to determine whether 

issuing a rule consistent with the waiver 

is in the public interest and consistent 

with railroad safety. After conducting 

the appropriate analysis, if the Secretary 

concludes that it would be in the public 

interest and consistent with railroad 

safety to initiate a rulemaking to 

incorporate into the regulations the 

relevant aspects of the waivers 

analyzed, section 22411 specifically 

authorizes the Secretary to initiate such 

a rulemaking. 

Appendix A to part 223 (appendix A) 

contains the performance criteria and 

the testing methodology for the required 

glazing materials. Appendix A requires 

glazing materials in locomotives and 

passenger cars to be subject to two 

specific tests—ballistic impact and large 

object impact testing. The large object 

impact test requires the use of a certainsized cinder block that is no longer 

manufactured and can be difficult to 

recreate accurately. Accordingly, FRA is 

proposing to allow the large object 

impact test to be performed using an 

easily obtainable steel ball. Permitting 

use of a steel ball that can be acquired 

with consistent properties that will not 

deform during testing also makes the 

test more consistent and repeatable, 

which would increase reliability. 

Therefore, the alternative steel ball test 

would allow glazing manufacturers to 

adopt a test that would produce more 

consistent and accurate results to help 

ensure safety. Because, as discussed in 

Section III.B below, the steel ball test is 

at least equivalent to the existing cinder 

block test, safety would be maintained, 

if not enhanced, by the standardization 

of testing the steel ball test provides. 

Finally, FRA proposes to revise 

several section headings in part 223 to 

replace terms that have become 

outdated. Since 1979, when FRA first 

published part 223, use of the terms 

‘‘new’’ and ‘‘existing’’ in various section 

headings has become confusing. 

Accordingly, for clarity, FRA is 

proposing to amend the section 

headings to refer to the relevant 

compliance dates for each section. 

Costs and Benefits of the Proposed 

Regulatory Action 

The proposed rule would eliminate 

the need for railroads to submit waiver 

petitions (and repeated extensions of 

those waivers every 5 years) from part 

223 for certain older railroad 

equipment, eliminate the Federal 

Government’s need to review and 

approve the waiver petitions and 

extension requests, and reduce window 

glazing manufacturers’ window glazing 

certification costs. FRA’s estimates of 

cost savings for the NPRM are shown in 

the table below. FRA estimates there 

will be no costs associated with 

implementing the proposed rule. 

SUMMARY OF TOTAL COST SAVINGS OVER THE 10-YEAR PERIOD

[2020 Dollars] 5

Entity Undiscounted 

Present value Annualized 

3% 7% 3% 7% 

Railroad (Waiver Submissions) ........................................... $44,000 $37,000 $30,000 $4,300 $4,200 

Manufacturer (Steel Ball Option) ......................................... 74,800 63,800 52,500 7,500 7,500 

Government (Review Savings) ............................................ 1,000,200 844,000 685,000 99,000 97,500 

Total Cost Savings ....................................................... 1,119,000 944,800 767,500 110,800 109,300 

II. Background 

A. Existing Glazing Requirements 

In the 1970s, railroads recorded many 

incidents involving propelled or fouling 

objects (e.g., stones, cinder blocks, and 

bullets) striking railroad vehicle 

windows, resulting in injuries to 

railroad employees and passengers.6

Some of the incidents were caused by 

intentional acts of vandalism (e.g., 

thrown rocks and stones); others 

resulted from routine rail operations 

(e.g., ballast or debris kicked-up by 

oncoming trains); and some were 

believed to be accidental (e.g., stray 

bullets from nearby hunting). 

In 1979, FRA issued part 223 to 

protect railroad crew members and 

passengers when train windows are 

struck by propelled or fouling objects. 

Part 223 requires exterior windows in 

locomotives, cabooses, and passenger 

cars to be equipped with glazing that 

meets certain technical specifications 

designed to protect the vehicles’ 

occupants from injury if a window is 

impacted by an object.7 Appendix A 

outlines the criteria for certifying a 

window’s glazing and ensures that 

glazing materials in rail equipment are 

significantly more resistant to impact 

than ordinary window glass or safety 

glass. 

Part 223 requires all equipment built 

or rebuilt after June 31, 1980, to be 

equipped with certified glazing. With 

certain exceptions, part 223 also phases 

in requirements for equipment built or 

rebuilt prior to July 1, 1980. As a result, 

almost the entire railroad fleet is 

equipped with certified glazing. 

The exceptions from part 223 include 

those for some older railroad equipment 

that is still in use today. Specifically, 

FRA’s 2016 amendments to part 223 

exclude equipment under § 223.3(b)(3) 

that is more than 50 years old and, 

except for incidental freight service, 

used only for excursion, educational, 

recreational, or private transportation 

purposes.8 The amount of remaining 

older equipment that was not built or 

rebuilt with certified glazing prior to 

July 1, 1980, and is not excepted under 

§ 223.3(b)(3), is very small.9 As 

discussed below, however, much of this 

older equipment continues to operate 

today subject to individual waivers from 

part 223’s requirements. 


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Federal Register / Vol. 87, No. 74 / Monday, April 18, 2022 / Proposed Rules 22849 

10 49 U.S.C. 20103 (‘‘The Secretary [of 

Transportation] may waive compliance with any 

part of a regulation prescribed or order issued under 

this chapter if the waiver is in the public interest 

and consistent with railroad safety.’’). The Secretary 

has delegated this authority to FRA, 49 CFR 1.89(a). 

11 49 CFR 211.41(a). 

12 49 CFR 211.41(b). 

13 49 U.S.C. 20103(d). 

14See FN 4. 15 44 FR 77348, Dec. 31, 1979. 

16 In a few instances, FRA has also granted relief 

from part 223 and allowed the subject equipment 

to operate at speeds above 30 mph, but those 

approvals are based on analysis of the unique 

operations involved. 

17Type I glazing is the type of glazing generally 

required to be installed on end facing windows. 

Under part 223, Type II glazing is required to be 

installed on side facing windows. Part 223’s 

requirements for Type I glazing are more stringent 

than those for Type II glazing because of the more 

prominent location of the glazing and to account for 

the more direct effects of longitudinal speed. 

B. FRA Waiver Process and Glazing 

Waivers 

FRA has, in various instances, 

exercised its delegated authority to 

waive compliance with its regulations.10

As noted above, FRA currently oversees 

68 glazing-related waivers. FRA’s 

waiver process is well established. FRA 

implemented this authority by issuing 

the rules under subpart C to 49 CFR part 

211, providing a process for regulated 

entities to submit, and FRA to respond 

to, waiver petitions. Under part 211, 

each properly filed petition for a waiver 

of a safety rule, regulation, or standard 

is referred to FRA’s Railroad Safety 

Board (Safety Board) for decision.11 The 

Safety Board’s decision is typically 

rendered after a notice is published in 

the Federal Register and an opportunity 

for public comment is provided.12 The 

Safety Board may grant a waiver request 

if it finds that doing so is ‘‘consistent 

with railroad safety and in the public 

interest.’’ 13 If the Safety Board grants a 

waiver petition, it may impose 

conditions on the grant of relief to 

ensure safety. 

Activity under a waiver of regulatory 

compliance may generate sufficient data 

and experience to support an expansion 

of its scope, applicability, and duration. 

A waiver’s success and its continued 

expansion may further warrant 

consideration of regulatory codification. 

Codifying a waiver,14 and thereby 

making its exemptions and 

requirements universally applicable, 

results in industry cost-savings larger 

than from the waiver alone. 

Since 1998, FRA has granted 

conditional relief from part 223 to 

approximately 200 small railroads that 

operate older equipment under certain 

circumstances (i.e., low speeds and in 

geographical locations with no history 

of broken windows and low risk of 

future vandalism to railroad 

equipment). Currently 58 railroads 

continue to operate under 68 such 

waivers. Some railroads operate under 

more than one waiver. In granting these 

waivers, the Safety Board’s review of 

available records found that the specific 

railroad operations and operating 

environment of each railroad 

demonstrated no history of injuries 

resulting from windows breaking on 

their equipment and low risk of any 

future injuries (i.e., no or few reported 

incidents of vandalism, no history of 

windows being broken from propelled 

or fouling objects). In addition, the 

Safety Board consistently found that, 

due to rising prices for materials and 

labor, and modifications that are 

necessary to adapt the window frames 

in the older equipment to support the 

increased thickness and weight of 

glazing in modern window designs, 

requiring railroads with older 

equipment and limited operations (such 

as those railroads that are party to the 

existing glazing waivers referenced in 

footnote 9) to install certified glazing 

would be cost-prohibitive and of limited 

benefit. See the discussion of Executive 

Order 12866 in Section IV.A below. 

While monitoring implementation of 

these waivers, FRA reviewed all 

incident reports from railroads 

operating under the waivers and 

identified no injuries that would have 

been prevented or mitigated by part 223 

certified glazing. Given the rail 

industry’s long-term success in safely 

operating under these waivers, FRA is 

proposing to incorporate the regulatory 

flexibility provided by the waivers into 

part 223. This change would eliminate 

the need for further waivers and the 

associated employee hours spent on 

their documentation and renewal every 

five years, as well as remove any 

industry uncertainty as to whether FRA 

would renew the waivers. 

III. Overview and Technical Discussion 

of Proposed Requirements 

A. Proposal To Exclude From Part 223 

Older Equipment Operated at Only Low 

Speeds in Locations With Low Risk of 

Objects Striking Equipment 

FRA has historically granted waivers 

from part 223 on a case-by-case basis, 

finding that locations and operations 

where there is a low risk of propelled or 

fouling objects striking the equipment, 

and the equipment travels at relatively 

slow speeds, could be used as a basis for 

providing the relief.15 When deciding 

individual waiver requests, FRA has 

historically considered the risks along a 

railroad’s particular operating route, 

along with the speed limitations on the 

equipment, to evaluate each individual 

railroad’s request. 

The risk of injury to a railroad 

employee or passenger from objects 

impacting rail vehicle windows is 

diminished at lower speeds, regardless 

of whether the windows are protected 

with certified glazing. As a result, FRA 

has generally limited the speeds at 

which equipment, subject to waivers 

from part 223, may travel to between 10 

and 30 mph, depending on the 

operating conditions of the petitioning 

railroad and the class of track over 

which the equipment is operated.16 FRA 

recognizes that although non-compliant 

glazing may fail at operating speeds of 

30 mph or lower, the lower speeds will 

minimize the risk of injuries occurring. 

Impact testing at 30 mph, for other 

than ballistic impacts, has been the 

benchmark for certified glazing since 

part 223 was established. The large 

object impact test in appendix A 

requires a 24-lb cinder block of specific 

dimensions to move at an impact speed 

of 44 feet per second (fps), which is 

equivalent to 30 mph. To conduct the 

test, appendix A requires a cinder block 

to move dynamically towards a static 

piece of glazing. This scenario 

approximates actual occurrences where 

trains have struck a static cinder block 

hanging from a bridge or overpass. 

In addition to striking cinder blocks 

or other objects fouling the movement of 

a train at the height of its windows, 

there is the potential for vandals to 

throw projectiles (rocks, stones, etc.) at 

oncoming trains or for debris from the 

ground to impact the windows of rail 

vehicles. FRA conducted an analysis to 

determine whether projectiles thrown at 

or flying into Type I glazing 17 could 

present a more significant risk and be 

more damaging than a train window 

striking a static 24-lb cinder block. The 

governing equation for this analysis is 

Equation 1 below: 


khammond on DSKJM1Z7X2PROD with PROPOSALS
22850 Federal Register / Vol. 87, No. 74 / Monday, April 18, 2022 / Proposed Rules 

18Note that a pound (lb) is not technically a unit 

of mass but is sufficient for this calculation. The 

conversion could be made to the International 

System of Units (SI units) to complete the 

calculation; then, the result could be converted 

back to US units. However, for the present 

calculation, the same result is obtained whether or 

not this conversion to SI units is performed. 

Equation 1 sets the kinetic energy of 

a cinder block moving at a given 

velocity to the kinetic energy of a 

projectile moving at a different (and 

greater) velocity than the cinder block. 

In Equation 1, mcinder block is the mass of 

the cinder block; vtrain is the velocity of 

the train; mprojectile is the mass of the 

propelled object, and vprojectile is the 

velocity of the propelled object. Note 

that the velocity of the train is added to 

the velocity of the projectile because the 

train and projectile are travelling in 

opposite directions and, therefore, their 

velocities are additive. 

For this analysis, the velocity of the 

cinder block is assumed to be zero as it 

represents a static cinder block hanging 

from a bridge or similar-type overhang. 

Therefore, Equation 1 reduces to 

Equation 2 below: 

Solving for the projectile velocity 

(vprojectile) results in Equation 3 below: 

The mass of the cinder block (mcinder

block) is 24 lbs.18 In addition, the velocity 

of the train (vtrain) is 30 mph. Plugging 

these values into Equation 3 results in 

Equation 4 below: 

Now a projectile mass (mprojectile) can 

be entered into Equation 3, and the 

result is the projectile velocity (vprojectile) 

needed to throw the projectile at an 

oncoming train travelling at 30 mph to 

impact with the same kinetic energy as 

a train travelling at 30 mph impacting 

a static 24-lb cinder block. Table 1 puts 

forth the mass of different projectiles 

(mprojectile) and the resulting projectile 

velocity (vprojectile). 

TABLE 1 

Projectile 

mass 

(pounds) 

Projectile 

velocity 

(mph) 

Projectile 

velocity 

(fps) 

10 .............. 16.5 24.2 

5 ................ 35.7 52.4 

0.3125 ....... 232.9 341.6 

As Table 1 demonstrates, a 10-lb 

projectile and a 5-lb projectile would 

have to be thrown at 16.5 mph (24.2 fps) 

and 35.7 mph (52.4 fps), respectively, to 

generate the same impact energy as a 

train travelling at 30 mph striking a 

static 24-lb cinder block. 

To give an idea of the arm strength 

required to generate these velocities 

with such objects, the last line in Table 

1 represents a weight of 5 ounces 

(0.3125 pounds), which is equivalent to 

the weight of a baseball. A baseball 

would have to be thrown at 

approximately 232.9 mph (341.6 fps) at 

an oncoming train travelling at 30 mph 

to generate the equivalent energy of a 

train travelling at 30 mph impacting a 

static 24-lb cinder block. Professional 

baseball pitchers have never recorded 

pitches in excess of 110 mph. Therefore, 

FRA concludes that a velocity of 232.9 

mph cannot be attained by a vandal 

using only arm strength. Similarly, it is 

likely that not many people have the 

arm strength necessary to achieve a 

velocity of 35.7 mph (52.4 fps) throwing 

a 5-lb projectile or a velocity of 16.5 

mph (24.2 fps) throwing a 10-lb 

projectile. Based on this analysis, FRA 

has concluded that a projectile thrown 

at an oncoming train travelling at 30 

mph would impact the train with less 

energy than if the train traveling at the 

same speed impacts a static cinder 

block. Therefore, the safety risk for 

equipment traveling at 30 mph or lower 

and struck by a thrown object is 

relatively low. A 30-mph maximum 

allowable speed also correlates with 


khammond on DSKJM1Z7X2PROD with PROPOSALSEP18AP22.030</GPH> EP18AP22.031</GPH> EP18AP22.032</GPH> EP18AP22.033</GPH>

1 2 - 1 ( )2 2mcinder block(Vtrain + Vcinder block) - 2mprojectile Vtrain + Vprojectile 

Equation 1 

1 2 - 1 ( )2 2 mcinder block Vtrain - 2 mpro jectile Vtrain + Vpro jectile 

Equation 2 

Vprojectile 

mcinder block 2 m Vtrain - Vtrain 

projectile 

Equation 3 

Vprojectile = 

24 

----302 -30 

mpro jectile 

Equation 4 
Federal Register / Vol. 87, No. 74 / Monday, April 18, 2022 / Proposed Rules 22851 

19RSAC was established to provide a forum for 

exploring railroad safety issues and developing 

recommendations on rulemakings and other safety 

program issues. It includes representation from all 

FRA’s major stakeholder groups, including 

railroads, labor organizations, suppliers, 

manufacturers, and other interested parties. 

FRA’s maximum allowable speed for 

FRA Class 2 track, as outlined in 49 CFR 

213.9, which makes it consistent with 

the operational realities of many small 

railroad operations. 

For the reasons explained above, in 

this NPRM, FRA proposes to exclude 

from compliance with part 223 all 

locomotives, cabooses, and passenger 

cars built or rebuilt prior to July 1, 1980, 

that are operated at speeds not 

exceeding 30 mph, and are used only 

where the risk of propelled or fouling 

objects striking the equipment is low. 

To implement this rule as proposed, 

FRA believes the railroads are wellsuited to determine whether there is low 

risk in operations, because they should 

know the history in those areas and can 

continuously monitor for incidents and 

potential risks. Currently, during the 

waiver process, FRA investigates to 

determine the risk of propelled or 

fouling objects striking equipment in 

operation. FRA’s investigations 

typically involve physical inspections of 

the route over which the equipment 

operates, talking to railroad officials and 

employees, and in some cases, 

requesting information from local law 

enforcement. FRA expects that if this 

proposed rule is adopted and a railroad 

initially determines its equipment and 

operations meet the proposed exclusion 

from part 223, but subsequently the 

railroad (or FRA) becomes aware of 

incidents of propelled or fouling objects 

striking the windows of railroad 

equipment in operation, the railroad 

will take appropriate action to install 

certified glazing or otherwise mitigate 

the risk of damage to the rail equipment 

windows. 

B. Proposal To Provide Alternative to 

Existing Large Object Impact Test 

Requiring Use of a Cinder Block 

FRA first became aware in the early 

2000s that cinder blocks of the weight 

and dimensions appendix A requires 

(i.e., cinder blocks weighing a minimum 

of 24 pounds with dimensions of 8 

inches by 8 inches by 16 inches) for the 

large object impact test were no longer 

being manufactured and accordingly 

becoming harder for the glazing 

manufacturing and railroad industries to 

find. These industries therefore began 

relying on cinder blocks originally 

manufactured to non-conforming 

dimensions and weight that then have 

to be customized to the required 

dimensions and weight, and continue to 

do so today. Having to customize nonconforming cinder blocks to part 223’s 

requirements is not only inconvenient 

and costly to glazing manufacturers, it 

also introduces potential 

inconsistencies because different 

manufacturers independently modify 

each cinder block to conform to the 

required test specification. In addition, 

even if conforming cinder blocks were 

widely produced and available, each 

cinder block typically can be used only 

once during testing, because the 

required impact on the corner of the 

block damages it, rendering it nonconforming for further testing. 

To address the growing issue of the 

unavailability of the cinder blocks 

required for testing under appendix A, 

FRA asked the Railroad Safety Advisory 

Committee (RSAC) to evaluate the 

issue.19 RSAC recommended, and FRA 

agreed, that further research should be 

conducted to determine whether a steel 

ball could be a potentially suitable 

alternative test object to use instead of 

the required cinder block. FRA tasked 

the John A. Volpe National 

Transportation Systems Center (Volpe 

Center) to conduct this research. The 

Volpe Center retained Parsons 

Brinckerhoff Quade & Douglas, Inc., in 

association with ETC Laboratories, to 

conduct a testing program for railroad 

vehicle glazing to analyze the use of a 

steel ball for the end facing (Type I) 

glazing large object impact test standard. 

The goal was to determine whether an 

impact test using a steel ball could be 

at least as stringent as the existing 

impact test using a cinder block to 

certify glazing under part 223. 

The main features of the test were the 

use of: (1) A solid 12-lb steel ball as the 

impact object; (2) a minimum impact 

speed of 62.5 fps; and (3) pass-fail 

acceptance criteria defined by no 

penetration of a witness plate, with a 

minimum of 3 out of 4 passes required 

to define a pass. Using the equation for 

kinetic energy, FRA determined that a 

12-lb steel ball traveling at 62.5 fps has 

the same kinetic energy as a 24-lb cinder 

block traveling at 44 fps, as appendix A 

currently requires. 

The 62.5 fps value for the velocity of 

the steel ball was arrived at by using the 

following equation which sets the 

kinetic energy of the cinder block equal 

to the kinetic energy of the steel ball: 

In Equation 5, mcinder block represents 

the mass of the cinder block, vcinder block

represents the velocity of the cinder 

block, msteelball represents the mass of 

the steel ball, and vsteelball represents the 

velocity of the steel ball. Solving for the 

velocity of the steel ball results in the 

following equation: 


khammond on DSKJM1Z7X2PROD with PROPOSALSEP18AP22.034</GPH> EP18AP22.035</GPH>

1 2 - 1 2 2 mcinder block V cinder block - 2 msteelball V steelball 

Equation 5 

Vsteelball 

mcinder block 2 

m V cinder block 

steelball 

Equation 6 
22852 Federal Register / Vol. 87, No. 74 / Monday, April 18, 2022 / Proposed Rules 

20See FN 18. For the present calculation, the 

same result is obtained whether or not a conversion 

to SI units is performed. 

21A spall shield is a film or coating applied over 

the glazing material to provide additional 

protection from spalling (i.e., fragmentation or 

splintering of the glazing material) during impact 

with an object. Part 223 does not require certified 

glazing to be equipped with a spall shield. 

22Parsons Brinckerhoff, ‘‘Railroad Vehicle 

Window Glazing Large Object Impact Test,’’ May 

2006. 

23 49 CFR 238.721, 83 FR 59182 (Nov. 21, 2018). 

24 81 FR 88017 (Dec. 6, 2016). 

25 Id. 

In Equation 6, plugging in 24 lbs for 

the mass of the cinder block, 44 fps for 

the velocity of the cinder block, and 12 

lbs for the mass of the steel ball results 

in a value of approximately 62.5 fps for 

the velocity of the steel ball.20

North American Specialty Glass 

(NASG) provided five different types of 

Type I glazing samples for testing, 

which included two-ply and three-ply 

glazing with and without spall 

shields.21 For each test, the samples 

were mounted in a fixture and a witness 

plate, consisting of an aluminum sheet 

having a 2-millimeter thickness 

mounted in another frame behind the 

samples for gauging the relative 

potential harm of any spall resulting 

from each impact. The study confirmed 

the steel ball impact test, using a 12-lb 

steel ball as the large object impact test 

object and at an impact speed of a 

minimum 62.5 fps, can be practically 

achieved in the laboratory, and as 

proposed in this rulemaking, can be 

used as an equivalent alternative to the 

existing cinder block impact test. 

Further, use of a 12-lb steel-coated shot 

put ball instead of a solid steel ball, was 

also acceptable based on the testing 

criteria used for the solid steel ball. The 

Volpe Center’s complete report of these 

tests and resulting findings is available 

for review in the docket to this 

proceeding.22

Interestingly, the three models/types 

of glazing specimens tested without a 

spall shield were not able to pass the 12- 

lb steel ball test at a speed of 62.5 fps. 

These three types of glass specimens 

were Type I certified, meaning they had 

previously passed the standard 24-lb 

cinder block test. Yet, even though the 

velocity of the 12-lb steel ball is 

adjusted to obtain the same kinetic 

energy as the 24-lb cinder block, there 

are other factors that must be considered 

regarding equivalency of the tests. For 

example, unlike a steel ball, a cinder 

block is not a symmetrical object. 

During a test, the cinder block can hit 

the target glazing on one of its twelve 

edges, or it can hit directly on one of its 

six faces. If the cinder block impacts the 

glazing on one of its faces, there is a 

much larger surface area coming into 

contact with the glazing material, so the 

force per unit area is lower than when 

only the edge of the cinder block 

impacts the glazing. 

A steel ball impact is much more 

uniform due to the inherent symmetry 

of the steel ball. Additionally, the 

contact area created when a steel ball 

impacts the target glazing is likely even 

smaller than the contact area created 

when the edge of a cinder block impacts 

the target glazing. This creates a 

scenario where the contact area is quite 

small and, therefore, the force per unit 

area is high. This small contact area 

created by use of a steel ball differs from 

the variable, but typically larger, contact 

area created when a cinder block 

impacts the target glazing. This likely 

was the cause of the three models/types 

of glazing specimens to pass the steel 

ball test only with spall shields even 

though they passed the cinder block test 

without spall shields when certified as 

FRA Type I glazing. In other words, the 

results indicate the steel ball test is 

potentially a more stringent test than the 

cinder block test. Therefore, safety will 

not be diminished if the steel ball test 

is used as opposed to the existing cinder 

block test. 

Given the more stringent nature of the 

steel ball test, FRA finds that the steel 

ball alternative test option is 

appropriate for both Type I (end facing) 

and Type II (side facing) glazing large 

object impact testing under part 223. 

Accordingly, FRA is proposing to 

amend appendix A to provide the 

option to use a 12-lb steel ball as an 

alternative to a 24-lb cinder block for 

large object impact testing when 

certifying glazing under part 223. As 

noted above, the requirements for Type 

I glazing are more stringent than those 

for Type II glazing, because of the more 

prominent location of the glazing and to 

account for the more direct effects of 

longitudinal speed. Therefore, the Volpe 

Center research, even though it focused 

on Type I glazing, served to validate use 

of the steel ball for Type II glazing large 

object impact testing. Use of Type II 

glazing subject to a comparable steel 

ball testing regimen should be at least as 

safe as use of Type II glazing subject to 

the existing cinder block testing process. 

While FRA is not proposing any 

substantive change to the existing 

cinder block test, it specifically requests 

comments on whether the test should be 

retained, or whether it is now obsolete 

and should be replaced with the steel 

ball test. To preserve either option, this 

NPRM proposes to incorporate by 

reference the ASTM International 

(ASTM) specifications C33/C33M–18 

and C90–16a. The previous versions of 

these specifications are currently 

referenced in appendix A as C33L and 

C90, respectively. The portions of these 

specifications that are relevant to the 

large object impact test have not 

significantly changed and would 

continue to be used to ensure proper 

cement construction and integrity for 

the cinder blocks. 

Use of the steel ball would increase 

consistency, provide flexibility, and 

save cost during large object impact 

testing, leading to more repeatable, 

reliable, and efficient testing. FRA is not 

aware of any other suitable object that 

could be used to establish an impact test 

equivalent to the cinder block test and 

provide the same benefits as the steel 

ball for equipment subject to the 

requirements in appendix A. 

Nonetheless, FRA invites comment 

about alternative objects that could be 

used for such impact testing and 

whether another performance standard 

is feasible. 

FRA notes that, in 2018, FRA 

established impact testing requirements 

for certifying glazing for passenger 

equipment operating at speeds up to 220 

mph in a dedicated right-of-way without 

grade crossings.23 The requirements for 

this Tier III passenger equipment in 49 

CFR part 238 were based on 

recommendations developed for RSAC 

by a subgroup of glazing experts (the 

Tier III Cab Glazing Task Group) 

identified by the Passenger Safety 

Working Group’s Engineering Task 

Force.24 These recommendations were 

developed to address modifications to 

the glazing regulations for very highspeed, Tier III passenger operations. An 

informative aspect of this effort was the 

evolution of surrogates used for large 

object impact testing throughout the 

world. Given the substantial research 

conducted by global standards 

organizations on the topic, it was 

recommended that FRA adopt modified 

criteria based on the relevant elements 

of Euronorm (EN) 15152 and 

International Union of Railways (UIC) 

651, specifically the nature of the 

projectile and its mass, shape, and 

composition, along with other 

specifications for test conditions (e.g., 

impact angle, temperatures, etc.) to 

ensure scientific controls and 

repeatability.25

FRA makes clear that the language 

proposed in this NPRM is appropriate 

for broad application to both freight and 

passenger equipment operated at 

conventional speeds. Nonetheless, FRA 

recognizes that the proposed language 

differs from that adopted in part 238 to 

address concerns associated with very 

high-speed, Tier III rail operations. FRA 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 87, No. 74 / Monday, April 18, 2022 / Proposed Rules 22853 

therefore seeks comment on the 

appropriateness and utility of applying 

part 238’s Tier III glazing requirements 

more broadly to the degree that certain 

aspects of the Tier III glazing 

requirements might be considered for 

application to this rulemaking and, if so, 

which aspects. 

IV. Section-by-Section Analysis 

This section-by-section analysis is 

intended to explain the rationale for 

each revised or new provision of the 

proposed rule. The proposed regulatory 

changes are organized by section 

number. FRA seeks comments on all 

proposals made in this NPRM. 

Section 223.3 Application 

Section 223.3 sets forth the scope and 

applicability of part 223. Existing 

paragraph (b) excludes from part 223’s 

applicability certain types of equipment 

and operations. FRA proposes to add a 

new paragraph (b)(5) to exclude 

locomotives, cabooses, and passenger 

cars built or rebuilt prior to July 1, 1980, 

that are operated at speeds not 

exceeding 30 mph, and used only where 

there is low risk of propelled or fouling 

objects striking the equipment. The July 

1, 1980, date corresponds to the original 

application date of part 223 to thenexisting equipment, as discussed below 

under §§ 223.11 through 223.15, which 

with certain exceptions led to phasing 

in requirements for this equipment. Risk 

factors include reported incidents of 

propelled or fouling objects striking rail 

equipment, or infrastructure conditions 

or other operating environment 

conditions that have led or are likely to 

lead to objects striking rail equipment in 

operation. Paragraph (b)(5) would 

provide that risk is presumed low, 

unless the railroad operating the 

equipment has knowledge, or FRA 

makes a showing, that specific risk 

factors exist. FRA would determine 

whether there is low risk primarily 

based on FRA’s observations during 

routine inspections and from any 

reported incidents of propelled or 

fouling objects striking rail equipment 

in operation. FRA expects the operating 

railroad to inform FRA of any such 

incidents known to the railroad. If FRA 

has reason to believe there have been 

incidents of propelled or fouling objects 

striking equipment in operation, FRA 

may investigate further. As part of its 

investigation, FRA may contact local 

law enforcement for more information, 

in determining the risk level. 

Section 223.9 Requirements for 

Equipment Built or Rebuilt After June 

30, 1980 

The current heading for this section is 

‘‘Requirements for new or rebuilt 

equipment.’’ FRA is proposing to revise 

the section heading to ‘‘Requirements 

for equipment built or rebuilt after June 

30, 1980’’ to reflect the requirements of 

the section more accurately. When the 

Safety Glazing Standards final rule was 

published in 1979, the date June 30, 

1980, was chosen to identify equipment 

built or rebuilt after that date as fully 

subject to this section’s requirements. 

With the passage of time, referring to 

equipment built after June 30, 1980, as 

‘‘new’’ equipment is potentially 

confusing. FRA therefore proposes to 

amend the section heading for clarity by 

referring to the actual compliance date 

for equipment subject to this section, 

including rebuilt equipment. 

Section 223.11 Requirements for 

Locomotives Built or Rebuilt Prior to 

July 1, 1980 

The current heading for this section is 

‘‘Requirements for existing 

locomotives.’’ FRA is proposing to 

revise the section heading to 

‘‘Requirements for locomotives built or 

rebuilt prior to July 1, 1980’’ to reflect 

the requirements of the section more 

accurately. When the Safety Glazing 

Standards final rule was published in 

1979, the date July 1, 1980, was chosen 

to identify equipment built or rebuilt 

prior to that date as subject to different, 

phased-in requirements. With the 

passage of time, referring to equipment 

built or rebuilt prior to July 1, 1980, as 

‘‘existing’’ equipment is potentially 

confusing. FRA therefore proposes to 

amend the section heading for clarity by 

referring to the actual compliance date 

for equipment subject to this section. 

For the same reason, FRA is also 

proposing to make corresponding 

changes to the similarly worded 

headings for §§ 223.13 and 223.15, 

below, to specify the compliance date 

instead. 

Section 223.13 Requirements for 

Cabooses Built or Rebuilt Prior to July 1, 

1980 

The current heading for this section is 

‘‘Requirements for existing cabooses.’’ 

As noted above, FRA is proposing to 

revise the section heading to 

‘‘Requirements for cabooses built or 

rebuilt prior to July 1, 1980’’ to reflect 

the actual compliance date for 

equipment subject to this section. 

Section 223.15 Requirements for 

Passenger Cars Built or Rebuilt Prior to 

July 1, 1980 

The current heading for this section is 

‘‘Requirements for existing passenger 

cars.’’ As noted above, FRA is proposing 

to revise the section heading to 

‘‘Requirements for passenger cars built 

or rebuilt prior to July 1, 1980’’ to reflect 

the actual compliance date for 

equipment subject to this section. 

Appendix A to Part 223—Certification 

of Glazing Materials 

As discussed above, FRA proposes to 

revise this appendix to provide the 

option to use a 12-lb steel ball as an 

alternative to a 24-lb cinder block for 

large object impact testing when 

certifying glazing under part 223. In 

doing so, FRA is making miscellaneous, 

conforming changes to existing 

requirements. 

In paragraph b.(6), consistent with the 

Volpe report, FRA proposes adjusting 

the width of the witness plate to 

account for the difference in object size 

between the steel ball and the cinder 

block for conducting large object impact 

testing. 

Further, FRA proposes revising 

paragraph b.(10), containing the Type I 

test regimen requirements for end facing 

glazing locations. FRA would add the 

steel ball test option to paragraph 

b.(10)(ii), Large Object Impact, as new 

paragraph b.(10)(ii)(B); the existing 

cinder block test would be in 

redesignated paragraph b.(10)(ii)(A). 

Under paragraph b.(10)(ii)(B), a steel 

ball, including a ball bearing or shot put 

ball, weighing a minimum of 12 lbs 

would impact the glazing surface at an 

impact velocity of 62.5 fps. Since the 

kinetic energy of a 12-lb steel ball 

travelling at 62.5 fps is equivalent to the 

kinetic energy of a 24-lb cinder block 

traveling at 44 fps under the existing 

Type I testing method, proposed 

paragraph b.(10)(ii)(B) would represent 

an alternative but equivalent test option 

to the standard cinder block method for 

Type I testing. 

In paragraphs b.(10) and (11), FRA 

plans to incorporate by reference ASTM 

C90–16a, ‘‘Standard Specification for 

Loadbearing Concrete Masonry Units,’’ 

2016, and ASTM C33/33M–18, 

‘‘Standard Specification for Concrete 

Aggregates,’’ 2018. Both specifications 

provide options for the precise cinder 

block makeup used in the large object 

impact tests. ASTM C90–16a provides 

specifications for loadbearing concrete 

masonry units made from portland 

cement, water, and mineral aggregates 

with or without the inclusion of other 

materials. ASTM C33/33M–18 provides 


khammond on DSKJM1Z7X2PROD with PROPOSALS
22854 Federal Register / Vol. 87, No. 74 / Monday, April 18, 2022 / Proposed Rules 

26 ‘‘Circular A–4: Regulatory Analysis’’ (Sep. 17, 

2003), available at https://obamawhitehouse.

archives.gov/omb/circulars_a004_a-4. See Section 

E(2) Developing a Baseline. 

specifications for grading and quality of 

fine and coarse aggregate (other than 

lightweight or heavyweight aggregate) 

for use in concrete. The existing 

references in appendix A identify the 

ASTM specifications that were current 

when part 223 was issued in 1979, 

ASTM C33L and ASTM C90. Cinder 

blocks conforming to either the current 

specifications, or those from 1979, are 

suitable for the large object impact test. 

Because manufacturers are building 

cinder blocks to the current 

specifications, FRA proposes to 

incorporate the current specifications. 

Both standards proposed for 

incorporation, ASTM C90–16a and C33/ 

C33M–18, are available to all interested 

parties online at https://www.astm.org. 

Further, FRA will maintain copies of 

these standards available for review at 

Federal Railroad Administration, Docket 

Clerk, 1200 New Jersey Avenue SE, 

Washington, DC 20590. 

Similarly, FRA proposes revising 

paragraph b.(11), containing the Type II 

test regimen requirements for side 

facing glazing locations. FRA would add 

the steel ball test option to paragraph 

b.(11)(ii), Large Object Impact, as new 

paragraph b.(11)(ii)(B); the existing 

cinder block test would be in 

redesignated paragraph b.(11)(ii)(A). 

Under paragraph b.(11)(ii)(B), a steel 

ball, including a ball bearing or shot put 

ball, weighing a minimum of 12 lbs 

would impact the glazing surface at an 

impact velocity of 17 fps. The kinetic 

energy of a 12-lb steel ball travelling at 

17 fps is equivalent to the kinetic energy 

of a 24-lb cinder block traveling at 12 

fps under the existing Type II testing 

method. Proposed paragraph 

b.(11)(ii)(B) would therefore represent 

an alternative but equivalent test option 

to the standard cinder block method for 

Type II testing. 

Moreover, FRA proposes to revise 

paragraph b.(13), concerning the 

number of test specimens required for 

large object impact testing. Under 

revised paragraph b.(13), use of the 

alternative steel ball test option in 

paragraphs b.(10)(ii)(B) and b.(11)(ii)(B) 

would require four different test 

specimens to be subjected to each 

impact test—rather than only two 

different test specimens required for the 

existing cinder block impact test. FRA 

proposes this change together with that 

proposed to the pass-fail requirements 

in paragraph b.(15), below, based on the 

Volpe Center’s test regimen used during 

its research into the steel ball 

alternative, discussed above. 

Under proposed paragraph b.(15), use 

of the alternative steel ball test option in 

paragraphs b.(10)(ii)(B) and b.(11)(ii)(B) 

would require three out of the four test 

specimens to pass the test for the 

glazing material to be found acceptable. 

Use of the existing cinder block test 

would continue to require that both 

glazing specimens pass the test for the 

glazing material to be found acceptable. 

The pass-fail requirement for use of the 

alternative steel ball test is intended to 

provide testing flexibility and is based 

on the Volpe Center’s test regimen. 

V. Regulatory Impact and Notices 

A. Executive Orders 12866 

The proposed rule is a nonsignificant 

regulatory action under Executive Order 

12866, ‘‘Regulatory Planning and 

Review.’’ FRA made this determination 

by finding that the economic effects of 

the proposed rulemaking would not 

exceed the $100 million annual 

threshold defined by Executive Order 

12866. FRA estimates this proposed rule 

would result in cost savings for the 

industry over a ten-year period, while 

maintaining and in some cases 

enhancing safety. 

The proposed rulemaking seeks to 

amend part 223 in two substantive 

ways. The proposed rule would codify 

long-standing waivers that exclude old 

rail equipment from certified safety 

window glazing requirements provided 

the railroads that use this equipment 

comply with FRA-required operating 

conditions intended to maintain and, in 

some cases, enhance safety. The 

proposed rule would also add a steel 

ball test option to appendix A. 

FRA complied with Office of 

Management and Budget (OMB) 

Circular A–4 when accounting for 

benefits, costs, and cost savings relative 

to a baseline condition. Typically, a 

baseline represents a best judgement 

about what the world would look like in 

the absence of the regulatory 

intervention.26 Without this proposed 

rule, small railroads operating rail cars 

under waiver equipped with uncertified 

glazing would continually need to apply 

for waivers from part 223. To estimate 

benefits, costs, and cost-savings, this 

analysis assumes a baseline where 

FRA’s approval of these waivers 

resembles historical practice. 

FRA generally reviews two types of 

waivers: (1) Test or pilot waivers and (2) 

ongoing or long-standing waivers. Test 

or pilot waivers require extensive 

technical analysis and investigation by 

stakeholders when applying for and 

renewing them. Long-standing waivers 

cover more familiar and proven 

technology, and have previously 

undergone the renewal process. 

Renewal requests for these waivers 

require less effort for applicants and for 

FRA. For this proposed rule, FRA 

considers waivers that were initially 

granted for equipment for 10 years or 

longer as long-standing waivers; in other 

words, the equipment has operated 

subject to waiver for 10 years or longer. 

A waiver’s benefits, costs, and likely net 

cost savings are based on industry 

application of technologies and 

procedures, which are presumably less 

restrictive than the underlying 

regulation. However, continuation of 

cost savings and associated regulatory 

relief is subject to the uncertainty 

regarding whether the waiver will be 

renewed during its periodic review. 

Currently, only Class III railroads 

operate rail equipment under waiver 

from part 223 that would no longer be 

necessary under this proposed rule. 

Based upon historical records, FRA 

estimates the proposed rule would 

provide cost savings to 58 (8 percent) of 

the 753 Class III railroads. 

These long-standing waivers reflect 

familiar uncertified glazing technologies 

and safe operating conditions for which 

FRA has granted short line railroads 

waiver renewals. The uncertified 

window glazing permitted by waivers 

and the FRA-required operating 

conditions for these waivers have been 

used by members of the industry for a 

long time and are essentially ‘‘built-in’’ 

to their operations. FRA historic 

inspection data indicates that the 

railroads have operated safely with 

these waivers. The continuation of these 

long-standing waivers is a reasonable 

estimation of the world without the 

final rule. Cost savings for these waivers 

are estimated as simply the reduction in 

renewal processing costs for the 

railroads and FRA. 

As discussed above, the Safety Board 

has consistently found that, due to 

rising prices for materials and labor, and 

modifications that are necessary to 

adapt the window frames in the older 

equipment to support the increased 

thickness and weight of glazing in 

modern window designs, mandating 

that railroads with older equipment 

install certified glazing would be costprohibitive due to the need to remove 

the existing window frames and replace 

them with new frames that are 

compatible with compliant glazing. This 

could exceed the value of the 

locomotive itself. FRA expects that even 

if this installation took place, there 

would be limited benefits, which would 

not exceed the expected costs. 

More recent waivers (i.e., those 

approved by FRA less than 10 years ago) 

are subject to more extensive review and 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 87, No. 74 / Monday, April 18, 2022 / Proposed Rules 22855 

27 District inspectors verify safe conditions with 

the police if they find any evidence window glazing 

has been damaged or replaced. 

28Standard operating procedures include 

periodic updates of the FRA Motive Power and 

Equipment Compliance Manual, which would be 

expected with the passage of this rule. 

29 Inputs are based on expertise drawn from 

FRA’s Motive Power and Equipment Division 

unless otherwise noted. 

30The ‘‘burdened’’ wage rate includes fringe and 

overhead benefits. 

31Source: Surface Transportation Board, 2019, 

professional and administrative employees, group 

#200; burdened wage rate = $44.27 * 1.75 benefits 

rate = $77.47. 

32Total costs per waiver = 4 * $77.47 + $10 = 

$319.88. 

analysis. FRA may modify conditions of 

the waivers and impose restrictions to 

maintain and in some cases enhance 

safety. Costs for renewing more recent 

waivers are higher than for longstanding waivers, and the railroads must 

incur significant uncertainty during the 

process because renewal is not assured. 

In this analysis, FRA estimates impacts 

due to codifying these recent waivers as 

the costs and cost-savings resulting from 

the underlying glazing waiver 

application process and safety 

procedures and in lieu of what is 

required under existing regulation. 

The proposed rule would, in effect, 

lift the five-year waiver renewal 

requirement from subject small 

railroads, reduce window glazing 

manufacturers’ window glazing 

certification costs, and eliminate the 

Federal Government’s requirement to 

review and approve these waivers. FRA 

estimates all entities would realize total 

cost savings as estimated in Table A. 

FRA estimates there would be no costs 

associated with implementing the 

proposed rule. 

TABLE A—SUMMARY OF TOTAL COST SAVINGS OVER THE 10-YEAR PERIOD

[2020 Dollars] 

Entity Undiscounted 

Present value Annualized 

3% 7% 3% 7% 

Railroad (Waiver Submissions) ........................................... $44,000 $37,000 $30,000 $4,300 $4,200 

Manufacturer (Steel Ball Option) ......................................... 74,800 63,800 52,500 7,500 7,500 

Government (Review Savings) ............................................ 1,000,200 844,000 685,000 99,000 97,500 

Total Cost Savings ....................................................... 1,119,000 944,800 767,500 110,800 109,300 

Railroad Cost Savings 

In 1979, FRA issued part 223 and 

generally established minimum safety 

requirements for glazing materials in the 

windows of locomotives, passenger cars, 

and cabooses. FRA has traditionally 

granted waiver requests to small 

railroads that operate such vehicles in 

existence at the time the regulation was 

promulgated at speeds up to 30 mph on 

rail tracks located in areas where 

railroad reports and FRA observations, 

as well as police records, show little risk 

of objects, such as cinder blocks and 

bullets, striking rail equipment. Once 

initial waiver requests are approved, 

recipients must resubmit waiver 

requests to FRA every five years to 

continue to operate the vehicles. During 

the waiver approval process, FRA field 

inspectors verify safe conditions and 

contact local police if appropriate.27

FRA historical records of the approval 

process confirm that from 1998 to April 

2020 no railroad operating under waiver 

from part 223’s requirements has 

reported any incident resulting from use 

of windows not conforming to part 223’s 

requirements. Based on this 

documented safety history and FRA’s 

standard practice for evaluating waiver 

requests,28 FRA is confident that 

codifying window glazing waivers 

serves the public interest by providing 

small railroads permanent regulatory 

relief while preserving safety on the 

general railroad system of 

transportation. The proposed rule also 

adds a steel ball test option to the 

window glazing certification process. 

FRA expects this amendment would 

reduce glazing certification costs and 

encourage technical innovation among 

manufacturers. 

Currently, Class III railroads operate 

rolling stock under 68 waivers from part 

223. These railroads are required to 

resubmit waivers every year 5 years. 

The number of waivers submitted to 

FRA each year would vary over the next 

10 years. For example, FRA expects 

railroads would submit 8 waivers in 

2021 (4 originated in 2001, 1 originated 

in 2006, and 3 originated in 2011). In 

2022, a total of 11 waivers would be 

submitted, which originated in 2002, 

2007, 2012, and 2017. Each railroad 

operating under waiver would submit 

requests for all waivers granted to them 

twice over the next 10 years so that a 

total of 136 waiver renewals would be 

submitted over the period. 

FRA calculated the railroad cost 

savings in the table below based upon 

the following inputs.29

• Railroad administrative burdened 30

wage rate is $77.47 per hour.31

• Each railroad waiver submission 

requires 4 hours of railroad 

administrative labor. 

• Copying and mailing costs total $10 

per waiver. 

• Total cost per waiver equals 

$319.88.32

TABLE B—RAILROAD COST SAVINGS BY YEAR

Year Number of 

waivers 

Discount rate 

Undiscounted 3% 7% 

2021 ................................................................................................................. 8 $2,559 $2,485 $2,392 

2022 ................................................................................................................. 11 3,519 3,317 3,073 

2023 ................................................................................................................. 14 4,478 4,098 3,656 

2024 ................................................................................................................. 18 5,758 5,116 4,393 

2025 ................................................................................................................. 17 5,438 4,691 3,877 

2026 ................................................................................................................. 8 2,559 2,143 1,705 

2027 ................................................................................................................. 11 3,519 2,861 2,191 


khammond on DSKJM1Z7X2PROD with PROPOSALS
22856 Federal Register / Vol. 87, No. 74 / Monday, April 18, 2022 / Proposed Rules 

33Assumptions are based on expertise from 

FRA’s Motive Power and Equipment Division. 

34Current materials engineer wage rate = $47.06. 

Burdened rate = 1.75 * $47.06 = $82.36. Source: 

https://www.bls.gov/oes/current/oes172131.htm. 

35Total cinder block tests cost per year = 15 * ($6 

+ $823.55) where $6 is the per test cinder block cost 

and $823.55 is the per test labor cost. It is assumed 

the 3 U.S. firms conduct a total of 15 test per year. 

36The steel ball costs per test include only 4 

hours of labor and = 4 * 82.36 or $329.42. Fifteen 

tests per year = 15 * $329.42 = $4,941. 

TABLE B—RAILROAD COST SAVINGS BY YEAR—Continued 

Year Number of 

waivers 

Discount rate 

Undiscounted 3% 7% 

2028 ................................................................................................................. 14 4,478 3,535 2,607 

2029 ................................................................................................................. 18 5,758 4,413 3,132 

2030 ................................................................................................................. 17 5,438 4,046 2,764 

Total .......................................................................................................... 136 43,500 37,000 30,000 

Annualized ....................................................................................................... ........................ ........................ 4,300 4,200 

Based upon these inputs, under the 

proposed rule the 58 small railroads 

operating under 68 glazing-related 

waivers would realize approximately 

$320 in savings per avoided waiver in 

current dollars. 

Manufacturer Cost Savings 

FRA expects the option to use a steel 

ball in lieu of a cinder block in the 

railroad window glazing certification 

process to reduce manufacturers’ 

technical development costs and 

encourage technical innovation. 

Appendix A includes Type I and Type 

II large object impact tests. These tests 

require the rectangular edge of an 8′′ by 

8′′ by 16′′ cinder block weighing 24 lbs 

to strike a glazed window under 

specified conditions without 

penetrating the back side of the glass. 

Partial penetration of the front side of 

the glass does not constitute a failure. 

Cinder blocks meeting part 223 

specified parameters are no longer 

manufactured. Materials engineers must 

customize four currently available 

cinder blocks requiring two hours of 

labor, increasing current glazing 

certification costs beyond what was 

anticipated during the original 

rulemaking. The Volpe Center 

conducted research verifying a 12-lb 

steel ball can achieve the same kinetic 

energy as the cinder block. In addition, 

the steel ball can be used repeatedly due 

to its symmetry and surface tension but 

the cinder block can only be used once 

because its rectangular edge is damaged 

beyond repair during each test use. 

The following assumptions were 

made to estimate the manufacturers’ 

labor and material cost savings due to 

the proposed changes to the railroad 

vehicle glazing certification process.33

FRA requests public comments on the 

assumptions used in this analysis. 

• Five manufacturers across the globe 

develop railroad vehicle glazing; three 

are located within the U.S. and two are 

foreign manufacturers. 

• FRA assumes that all glazing 

manufacturers will make use of the steel 

ball option. 

• FRA expects each firm will conduct 

five tests per year and save 

approximately $500 per test in current 

2020 dollars. 

• The total manufacturing cost 

savings table below is developed for the 

three U.S. manufacturing firms and 

assumes 15 tests are conducted per year. 

• As the cinder block is damaged 

during each pass of the test, two cinder 

blocks are required at a cost of $1.50 

apiece and $6 in total. Each cinder block 

test requires 10 labor hours, e.g., 2 hours 

to customize 4 cinder blocks and 8 

hours to run the cinder block test. Two 

additional cinder blocks were included 

in the analysis to ensure that extra 

cinder blocks were available if the first 

test was failed. 

• Each steel ball costs $75. This 

analysis assumes each U.S. 

manufacturer will purchase one steel 

ball at the beginning of the first year of 

analysis period. These one-time costs 

are subtracted from the 2021 cost 

savings shown in Table D. Steel ball 

costs are not included in Table C per 

test cost savings. FRA assumes the steel 

ball will be used after 2030. 

• Materials engineers conduct the 

certification tests at a burdened hourly 

wage of $82.34

• FRA recognizes the NPRM would 

result in unquantified environmental 

cost savings as glazing manufacturers 

reduce the purchase and landfill 

disposal of cinder blocks. FRA lacks 

sufficient data to quantify these costs 

and asks for public comment. 

TABLE C—MANUFACTURER COST SAVINGS

Expense Large object 

costs per test 

Labor hours 

per test 

Labor costs 

per test 

Total costs 

per test 

Large object 

costs 15 tests 

Labor costs 

15 tests 

Total costs 

per year 

Cinder Block .................................................. $6 10 $824 $830 $90 $12,353 35 $12,443 

Steel Ball After First Year ............................. 0 4 330 330 0 4,941 36 4,941 

Burdened Hourly Wage Rate ........................ 82 ........................ ........................ ........................ ........................ ........................ ........................

Cost Savings per Year .................................. ........................ ........................ ........................ ........................ ........................ ........................ 7,500 

Cost Savings per Test .................................. ........................ ........................ ........................ ........................ ........................ ........................ 500 

In summary, all three U.S. window 

glazing manufacturers and the two 

foreign manufacturers are expected to 

save $500 per test by exercising the steel 

ball option. The following table shows 

the 10-year cost savings for all three 

U.S. manufacturers. 


khammond on DSKJM1Z7X2PROD with PROPOSALS
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37OPM general wage rates are listed here: GS 12 

District Staff from Rest of the US https://

www.opm.gov/policy-data-oversight/pay-leave/

salaries-wages/salary-tables/pdf/2020/RUS_h.pdf; 

GS 12, 13, 15 DOT Headquarters Staff from DC 

Metropolitan Area: https://www.opm.gov/policydata-oversight/pay-leave/salaries-wages/salarytables/pdf/2020/DCB_h.pdf; SES from Mid-Level III: 

https://www.opm.gov/policy-data-oversight/payleave/salaries-wages/salary-tables/pdf/2020/EX.pdf. 

TABLE D—MANUFACTURER COST SAVINGS BY YEAR

Year Number of 

tests Undiscounted 

Present value 

3% 7% 

2021 ................................................................................................................. 15 $7,277 $7,065 $6,801 

2022 ................................................................................................................. 15 7,502 7,071 6,552 

2023 ................................................................................................................. 15 7,502 6,865 6,124 

2024 ................................................................................................................. 15 7,502 6,665 5,723 

2025 ................................................................................................................. 15 7,502 6,471 5,349 

2026 ................................................................................................................. 15 7,502 6,283 4,999 

2027 ................................................................................................................. 15 7,502 6,100 4,672 

2028 ................................................................................................................. 15 7,502 5,922 4,366 

2029 ................................................................................................................. 15 7,502 5,750 4,081 

2030 ................................................................................................................. 15 7,502 5,582 3,814 

Total .......................................................................................................... 150 74,800 63,800 52,500 

Annualized ....................................................................................................... ........................ ........................ 7,500 7,500 

Federal Government Cost Savings 

The tables below estimate the Federal 

Government cost savings expected from 

this proposed rule. FRA would no 

longer receive numerous petitions from 

small railroads requesting waiver from 

compliance with the window glazing 

requirements, which would save time 

and expense FRA previously spent on 

the waiver review and decision process. 

Specifically, as noted above, FRA 

currently oversees 68 glazing-related 

waivers, subject to renewal every five 

years, and as a result, FRA receives 

approximately one glazing waiver 

renewal request every month. As part of 

the waiver process, an FRA inspector 

spends one to two days investigating 

each glazing waiver renewal request and 

reporting the findings. In addition, an 

FRA subject matter expert spends one to 

two days reviewing the inspector’s 

report and drafting a recommendation 

memorandum to the Safety Board and a 

notice to publish in the Federal Register 

for each waiver renewal request. 

FRA estimates the cost savings from 

eliminating one railroad window 

glazing waiver review and decision is 

approximately $7,400 at the burdened 

wage rate. FRA cost savings estimates 

are based on the reduction of labor 

hours at the 2020 Office of Personnel 

Management (OPM) pay grade levels as 

shown below.37 Hours were considered 

at the burdened wage rate by 

multiplying the actual wage rate by 175 

percent. 

FRA’s waiver review and decision 

typically require contributions from 

employees earning salaries at General 

Schedule (GS) pay grades 12, 14, and 

15, and employees earning Senior 

Executive Service (SES) salaries. Table E 

shows the hours and wage rates for 

Government employees reviewing and 

issuing decisions for part 223 waiver 

requests. 

TABLE E—FRA WAIVER REVIEW WAGE RATES BY GENERAL SCHEDULE PAY GRADES

Burdened 

wage rate 

(wage * 1.75) 

Hours Total 

unburden Total burden 

GS–12 (RUS) ....................................................................... $41.66 $72.91 12 $500 $875 

GS–12 (DCB) ....................................................................... 46.88 82.04 4 188 328 

GS–14 (DCB) ....................................................................... 65.88 115.29 36 2,372 4,150 

GS–15 (DCB) ....................................................................... 77.49 135.61 8 620 1,085 

SES ...................................................................................... 87.26 152.71 6 524 916 

Total Cost per Waiver ................................................... ........................ ........................ ........................ 4,200 7,400 

Table F provides the yearly cost 

savings of eliminating the Federal 

Government’s burden of reviewing 136 

waivers over the next 10 years. 

TABLE F—GOVERNMENT ADMINISTRATIVE COST SAVINGS BY YEAR

Year Number of 

waivers 

Burdened 

wage rate 

undiscounted 

Discount rate 

3% 7% 

1 ....................................................................................................................... 8 $58,836 $57,123 $54,987 

2 ....................................................................................................................... 11 80,900 76,256 70,661 

3 ....................................................................................................................... 14 102,964 94,226 84,049 

4 ....................................................................................................................... 18 132,382 117,620 100,994 

5 ....................................................................................................................... 17 125,027 107,850 89,143 


khammond on DSKJM1Z7X2PROD with PROPOSALS
22858 Federal Register / Vol. 87, No. 74 / Monday, April 18, 2022 / Proposed Rules 

38 ‘‘Size Eligibility Provisions and Standards,’’ 13 

CFR part 121, subpart A. 

39 68 FR 24891 (May 9, 2003) (codified at 

appendix C to 49 CFR part 209). 

40The Class III railroad revenue threshold is 

$40,384,263 or less, for 2019. (The Class II railroad 

threshold is between $40,384,263 and 

$504,803,294; and the Class I railroad threshold is 

$504,803,294 or more.) See Surface Transportation 

Board Decision, Docket No, EP 748, Indexing the 

Annual Operating Revenues of Railroads, Decided 

June 4, 2020. https://prod.stb.gov/reports-data/ 

economic-data/railroad-revenue-deflator-factors/. 

TABLE F—GOVERNMENT ADMINISTRATIVE COST SAVINGS BY YEAR—Continued 

Year Number of 

waivers 

Burdened 

wage rate 

undiscounted 

Discount rate 

3% 7% 

6 ....................................................................................................................... 8 58,836 49,275 39,205 

7 ....................................................................................................................... 11 80,900 65,779 50,380 

8 ....................................................................................................................... 14 102,964 81,280 59,926 

9 ....................................................................................................................... 18 132,382 101,460 72,007 

10 ..................................................................................................................... 17 125,027 93,032 63,558 

Total .......................................................................................................... 136 1,000,219 844,000 685,000 

Annualized ....................................................................................................... ........................ ........................ 99,000 97,500 

In addition, codifying the active 

glazing waivers would allow FRA 

inspectors to perform other essential 

duties, namely their typical inspection 

duties, rather than dedicating time to 

investigating glazing waiver renewal 

requests, and would also allow 

headquarters staff to spend their time on 

other issues that may have a larger 

impact on maintaining and improving 

safety. 

B. Regulatory Flexibility Act and 

Executive Order 13272 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) and Executive 

Order 13272, ‘‘Proper Consideration of 

Small Entities in Agency Rulemaking’’ 

(67 FR 53461 (Aug. 16, 2002)), require 

agency review of proposed and final 

rules to assess their impacts on small 

entities. An agency must prepare an 

Initial Regulatory Flexibility Analysis 

(IRFA) unless it determines and certifies 

that a rule, if promulgated, would not 

have a significant economic impact on 

a substantial number of small entities. 

FRA has not determined whether this 

proposed rule would have a significant 

economic impact on a substantial 

number of small entities, and has 

therefore prepared this IRFA. FRA seeks 

comment from small entities on the 

economic impacts of this proposed rule. 

1. Reasons for Considering Agency 

Action 

FRA is proposing this rulemaking to 

relieve the burden on the railroad 

industry by codifying waivers from part 

223 for small railroads operating rail 

equipment with uncertified window 

glazing. The proposed rule would also 

add a steel ball option to comply with 

the glazing certification requirements 

for large object impact testing. FRA’s 

proposed changes to part 223 are 

expected to result in cost savings for 

railroads, the Government, and window 

glazing manufacturers. 

Without this proposed rule, railroads 

would continue to submit waiver 

renewal requests from the part 223 

glazing requirements every five years. 

Manufacturers would continue using a 

customized cinder block to certify new 

window glazing materials and not be 

able to reduce production costs by using 

the steel ball option. The alternative, not 

issuing the proposed rule, would 

continue to burden small railroads with 

unnecessarily high glazing certification 

costs and both the small railroads and 

the Federal Government with 

unnecessary administrative costs. 

2. A Succinct Statement of the 

Objectives of, and Legal Basis for, the 

Proposed Rule 

The objective of this proposed rule is 

to reduce the regulatory burden on the 

railroad industry while maintaining and 

in some cases enhancing the existing 

level of safety, by excluding railroads 

operating vehicles at speeds not 

exceeding 30 mph built or rebuilt before 

July 1, 1980, and operated in low risk 

areas, from part 223 certified window 

glazing requirements. The proposed rule 

would also reduce window glazing 

manufacturers’ production costs by 

adding the steel ball large object impact 

test option to certify glazing. In 

addition, FRA expects this rule would 

reduce the regulatory and 

administrative burden on regulated 

entities by eliminating the need to 

renew waivers every five years. 

The Secretary of Transportation has 

broad statutory authority to ‘‘prescribe 

regulations and issue orders for every 

area of railroad safety’’ under 49 U.S.C. 

20103, including window glazing 

regulated in part 223. 

3. A Description of and, Where Feasible, 

an Estimate of the Number of Small 

Entities to Which the Proposed Rule 

Would Apply 

The Regulatory Flexibility Act of 1980 

requires a review of proposed and final 

rules to assess their impact on small 

entities, unless the Secretary certifies 

that the rule would not have a 

significant economic impact on a 

substantial number of small entities. 

‘‘Small entity’’ is defined in 5 U.S.C. 

601 as a small business concern that is 

independently owned and operated and 

is not dominant in its field of operation. 

The U.S. Small Business Administration 

(SBA) has authority to regulate issues 

related to small businesses, and 

stipulates in its size standards that a 

‘‘small entity’’ in the railroad industry 

includes a for-profit ‘‘line-haul railroad’’ 

that has fewer than 1,500 employees 

and a ‘‘short line railroad’’ with fewer 

than 500 employees.38

Federal agencies may adopt their own 

size standards for small entities in 

consultation with SBA and in 

conjunction with public comment. 

Under that authority, FRA has 

published a final statement of agency 

policy that formally establishes ‘‘small 

entities’’ or ‘‘small businesses’’ as 

railroads, contractors, and hazardous 

materials shippers that meet the revenue 

requirements of a Class III railroad as set 

forth in 49 CFR part 1201, General 

Instructions section 1–1, which is $20 

million or less in inflation-adjusted 

annual revenues; and commuter 

railroads or small governmental 

jurisdictions that serve populations of 

50,000 or less.39 The $20 million limit 

is based on the Surface Transportation 

Board’s revenue threshold for a Class III 

railroad carrier. Railroad revenue is 

adjusted for inflation by applying a 

revenue deflator formula in accordance 

with 49 CFR part 1201, General 

Instructions section 1–1. The current 

threshold is $40.4 million.40 FRA is 

using this definition for the proposed 

rule. FRA estimates this proposed rule 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 87, No. 74 / Monday, April 18, 2022 / Proposed Rules 22859 

41North American Industry Classification System 

(NAICS) Code 327211 signifies the Flat Glass and 

Glazing Manufacturing Firms that would be affected 

by this proposal. Per SBA, any firm under NAICS 

code 327211 that employs more than 1,000 

employees cannot qualify as a small business. See 

U.S. Small Business Administration, Table of Small 

Business Size Standards Matched to North 

American Industry Classification Codes, effective 

January 1, 2017. https://www.sba.gov/sites/default/ 

files/2019/08/SBA%20Table%20of%20Size%20

Standards_Effective%20

Aug%2019%2C%202019.pdf. 

42 44 U.S.C. 3501 et seq. 

directly affects the 58 Class III railroads 

currently operating under one or more 

waivers. The proposed rulemaking 

would relieve these railroads of the 

labor costs and the uncertainty 

associated with the waiver submission 

process. FRA estimates three U.S. 

glazing manufacturers would develop 

and test new certifiable glazing 

materials each year during the analysis 

period. FRA expects these 

manufacturers would benefit from lower 

production costs due to the flexibility 

added to the certification test 

requirements. However, each of these 

manufacturers employs more than 1,000 

persons, the SBA 41 benchmark for large 

businesses by defined by the SBA. 

4. A Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the Rule, 

Including an Estimate of the Class of 

Small Entities That Will be Subject to 

the Requirements and the Type of 

Professional Skill Necessary for 

Preparation of the Report or Record 

The proposed rule would eliminate 

the need for certain railroads to follow 

FRA’s waiver process to be excluded 

from part 223 window glazing 

requirements. FRA is confident that all 

railroads currently operating under 

these part 223 waivers are small entities. 

This proposed rule would reduce the 

regulatory costs and hourly burdens on 

these railroads; the proposed changes 

would result in a positive economic 

impact on those railroads. 

To estimate the cost savings for small 

entities, FRA used its historic records to 

identify each of the 58 small entities 

currently operating under one or more 

waivers and their 5-year resubmission 

dates. FRA assumed each waiver cost 

the railroad industry $320 and included 

4 hours of required labor at a burdened 

rate of $77.47 and mailing costs of $10. 

Each of the affected railroads would 

submit 2 waivers over the 10-year 

analysis period or a total 136 waivers. 

Total cost to the industry is estimated at 

approximately $37,000 or $30,000, 

when discounted at rates of 3 and 7 

percent. Each year, the small railroad 

industry would be relieved of $4,300 or 

$4,200 at the same rates. These railroads 

would also be relieved of the 

uncertainty imposed during the renewal 

process. 

5. Identification, to the Extent 

Practicable, of All Relevant Federal 

Rules That May Duplicate, Overlap, or 

Conflict With the Proposed Rule 

FRA is not aware of any relevant 

Federal rule that duplicates, overlaps 

with, or conflicts with the proposed 

rule. 

6. A Description of Significant 

Alternatives to the Rule 

FRA is proposing this rulemaking to 

relieve the burden on industry by 

codifying long-standing window glazing 

waivers and reducing manufacturing 

costs by adding a steel ball large object 

testing option to the glazing certification 

testing requirements. The main 

alternative to this rulemaking would be 

to maintain and, in some cases, enhance 

safety. 

In the absence of this proposed rule, 

affected railroads would continue to 

submit waiver renewals every five years 

under part 223. Manufacturers would 

continue using a customized cinder 

block to certify new window glazing 

materials as they would not be able to 

reduce production costs by using the 

steel ball option. The alternative of not 

issuing the proposed rule would be to 

continue to burden small railroads with 

unnecessarily high glazing certification 

costs and both the small railroads and 

the Federal Government with 

unnecessary administrative costs. 

C. Paperwork Reduction Act 

FRA is submitting the information 

collection requirements in this proposed 

rule to OMB for approval under the 

Paperwork Reduction Act of 1995.42

Please note that any revised 

requirements, as proposed in this 

NPRM, are marked by asterisks (*) in 

the table below. The sections that 

contain the proposed and current 

information collection requirements 

under OMB Control No. 2130–0525 and 

the estimated time to fulfill each 

requirement are as follows: 

CFR section Respondent 

universe 

Total annual 

responses 

Average time per 

response 

Total annual 

burden hours 

Total cost 

equivalent 

wage rate 43

(A) (B) (C) = A * B (D) = C * 

223.3—Application—Locomotives, passenger cars, and cabooses built after 

1945 used only for excursion, educational, recreational, or private transportation purposes.

704 railroads ......... 400 marked tools 

(small hammers 

with instructions).

30 minutes ............ 200.00 hours ......... $11,978.00 

223.11(c)—Requirements for locomotives built or rebuilt prior to July 1, 

1980, equipped with certified glazing 

in all locomotive cab windows (* Note: 

Revised requirement.*).

The proposed rule would eliminate the need for railroads to submit waiver petitions (and repeated extensions of those waivers every 5 years) from part 223 for certain older railroad equipment, eliminate 

the Federal Government’s need to review and approve the waiver petitions and extension requests. 

—(d)(1) Locomotive placed in designated service due to a damaged or 

broken cab window—Stenciled ‘‘Designated Service—DO NOT OCCUPY’’.

704 railroads ......... 15 stencilings ........ 3 minutes .............. .75 hour ................. $44.92 

—(d)(2) Locomotives removed from 

service until broken or damaged windows are replaced with certified glazing.

Glazing certification for locomotive replacement windows is done at the time of manufacturing. Consequently, there is no additional burden associated with this requirement. 


khammond on DSKJM1Z7X2PROD with PROPOSALS
22860 Federal Register / Vol. 87, No. 74 / Monday, April 18, 2022 / Proposed Rules 

43The dollar equivalent cost is derived from the 

Surface Transportation Board’s 2020 Full Year 

Wage A&B data series using the appropriate 

employee group hourly wage rate that includes a 

75-percent overhead charge. 44 64 FR 43255 (Aug. 10, 1999). 

CFR section Respondent 

universe 

Total annual 

responses 

Average time per 

response 

Total annual 

burden hours 

Total cost 

equivalent 

wage rate 43

(A) (B) (C) = A * B (D) = C * 

223.13(c)—Requirements for cabooses 

built or rebuilt prior to July 1, 1980, 

equipped with certified glazing in all 

windows (* Note: Revised requirement.*).

The proposed rule would eliminate the need for railroads to submit waiver petitions (and repeated extensions of those waivers every 5 years) from part 223 for certain older railroad equipment, eliminate 

the Federal Government’s need to review and approve the waiver petitions and extension requests. 

—(d) Cabooses removed from service 

until broken or damaged windows are 

replaced with certified glazing.

Glazing certification for caboose replacement windows is done at the time of manufacturing. Consequently, there is no additional burden associated with this requirement. 

223.15(c)—Requirements for passenger 

cars built or rebuilt prior to July 1, 

1980, equipped with certified glazing 

in all windows plus four emergency 

windows (* Note: Revised requirement. For those passenger cars operating above Class III speed would 

need still need to submit a waiver. 

For those operating below Class III 

speed the proposed rule would eliminate the need for the passenger railroads to submit waiver petitions.*).

704 railroads ......... 1 renewal waiver ... 4 hours .................. 4.00 hours ............. $460.96 

—(d) Passenger cars removed from 

service until broken/damaged windows are replaced with certified glazing.

Glazing certification for passenger car replacement windows is done at the time of manufacturing. 

Consequently, there is no additional burden associated with this requirement. 

Appendix A—(b)(16)—Certification of 

Glazing Materials—Manufacturers to 

certify in writing that glazing material 

meets the requirements of this section.

5 manufacturers .... 10 certifications ..... 30 minutes ............ 5.00 hours ............. $387.20 

—(c) Identification and marking of each 

unit of glazing material.

5 manufacturers .... 25,000 marked 

pieces.

480 pieces per 

hour.

52.08 hours ........... $3,119.07 

Total ................................................ 704 railroads + 5 

manufacturers.

25,426 responses N/A ........................ 262 hours .............. $15,990 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. Pursuant to 

44 U.S.C. 3506(c)(2)(B), FRA solicits 

comments concerning: Whether these 

information collection requirements are 

necessary for the proper performance of 

the functions of FRA, including whether 

the information has practical utility; the 

accuracy of FRA’s estimates of the 

burden of the information collection 

requirements; the quality, utility, and 

clarity of the information to be 

collected; and whether the burden of 

collection of information on those who 

are to respond, including through the 

use of automated collection techniques 

or other forms of information 

technology, may be minimized. For 

information or a copy of the paperwork 

package submitted to OMB, contact Ms. 

Hodan Wells, Information Collection 

Clearance Officer, at 202–493–0440. 

Organizations and individuals desiring 

to submit comments on the collection of 

information requirements should direct 

them via email to Ms. Wells at 

Hodan.Wells@dot.gov. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this rule 

between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. FRA is not authorized to 

impose a penalty on persons for 

violating information collection 

requirements that do not display a 

current OMB control number, if 

required. FRA intends to obtain current 

OMB control numbers for any new 

information collection requirements 

resulting from this rulemaking action 

prior to the effective date of the final 

rule. The OMB control number, when 

assigned, will be announced by separate 

notice in the Federal Register. 

D. Federalism Implications 

Executive Order 13132, Federalism,44

requires FRA to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ are defined in 

the Executive order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ Under 

Executive Order 13132, the agency may 

not issue a regulation with federalism 


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Federal Register / Vol. 87, No. 74 / Monday, April 18, 2022 / Proposed Rules 22861 

45 40 CFR 1508.4. 

46 23 CFR 771.116(b). 

47See 16 U.S.C. 470. 

48See Department of Transportation Act of 1966, 

as amended (Pub. L. 89–670, 80 Stat. 931); 49 U.S.C. 

303. 

49Available at https://www.transportation.gov/ 

regulations/dot-order-56102b-departmenttransportation-actions-address-environmentaljustice. 

50Public Law 104–4, 2 U.S.C. 1531. 

51 66 FR 28355 (May 22, 2001). 

implications that imposes substantial 

direct compliance costs and that is not 

required by statute, unless the Federal 

Government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments or the agency consults 

with State and local government 

officials early in the process of 

developing the regulation. Where a 

regulation has federalism implications 

and preempts State law, the agency 

seeks to consult with State and local 

officials in the process of developing the 

regulation. 

FRA has analyzed this proposed rule 

in accordance with the principles and 

criteria contained in Executive Order 

13132. FRA has determined that this 

proposed rule has no federalism 

implications, other than the possible 

preemption of State laws under 49 

U.S.C. 20106. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply, 

and preparation of a federalism 

summary impact statement for the 

proposed rule is not required. 

E. International Trade Impact 

Assessment 

The Trade Agreements Act of 1979 

prohibits Federal agencies from 

engaging in any standards or related 

activities that create unnecessary 

obstacles to the foreign commerce of the 

United States. Legitimate domestic 

objectives, such as safety, are not 

considered unnecessary obstacles. The 

statute also requires consideration of 

international standards and, where 

appropriate, that they be the basis for 

U.S. standards. This proposed rule is 

not expected to affect trade 

opportunities for U.S. firms doing 

business overseas or for foreign firms 

doing business in the United States. 

F. Environmental Impact 

FRA has evaluated this proposed rule 

consistent with the National 

Environmental Policy Act (NEPA; 42 

U.S.C. 4321 et seq.), the Council of 

Environmental Quality’s NEPA 

implementing regulations at 40 CFR 

parts 1500–1508, and FRA’s NEPA 

implementing regulations at 23 CFR part 

771 and determined that it is 

categorically excluded from 

environmental review and therefore 

does not require the preparation of an 

environmental assessment (EA) or 

environmental impact statement (EIS). 

Categorical exclusions (CEs) are actions 

identified in an agency’s NEPA 

implementing regulations that do not 

normally have a significant impact on 

the environment and therefore do not 

require either an EA or EIS.45

Specifically, FRA has determined that 

this proposed rule is categorically 

excluded from detailed environmental 

review pursuant to 23 CFR 

771.116(c)(15), ‘‘[p]romulgation of rules, 

the issuance of policy statements, the 

waiver or modification of existing 

regulatory requirements, or 

discretionary approvals that do not 

result in significantly increased 

emissions of air or water pollutants or 

noise.’’ 

The main purpose of this rulemaking 

is to revise FRA’s Safety Glazing 

Standards to maintain and in some 

cases enhance safety, while reducing 

unnecessary costs and provide 

regulatory flexibility while. This rule 

would not directly or indirectly impact 

any environmental resources and would 

not result in significantly increased 

emissions of air or water pollutants or 

noise. In analyzing the applicability of 

a CE, FRA must also consider whether 

unusual circumstances are present that 

would warrant a more detailed 

environmental review.46 FRA has 

concluded that no such unusual 

circumstances exist with respect to this 

proposed rule and it meets the 

requirements for categorical exclusion 

under 23 CFR 771.116(c)(15). 

Pursuant to Section 106 of the 

National Historic Preservation Act and 

its implementing regulations, FRA has 

determined this undertaking has no 

potential to affect historic properties.47

FRA has also determined that this 

rulemaking does not approve a project 

resulting in a use of a resource protected 

by Section 4(f).48

G. Executive Order 12898 

(Environmental Justice) 

Executive Order 12898, ‘‘Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations,’’ and DOT 

Order 5610.2b 49 require DOT agencies 

to achieve environmental justice as part 

of their mission by identifying and 

addressing, as appropriate, 

disproportionately high and adverse 

human health or environmental effects, 

including interrelated social and 

economic effects, of their programs, 

policies, and activities on minority 

populations and low-income 

populations. The DOT Order instructs 

DOT agencies to address compliance 

with Executive Order 12898 and 

requirements within the DOT Order in 

rulemaking activities, as appropriate, 

and also requires consideration of the 

benefits of transportation programs, 

policies, and other activities where 

minority populations and low-income 

populations benefit, at a minimum, to 

the same level as the general population 

as a whole when determining impacts 

on minority and low-income 

populations. FRA has evaluated this 

proposed rule under Executive Order 

12898 and the DOT Order and has 

determined it would not cause 

disproportionately high and adverse 

human health and environmental effects 

on minority populations or low-income 

populations. 

H. Unfunded Mandates Reform Act of 

1995 

Under section 201 of the Unfunded 

Mandates Reform Act of 1995,50 each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in promulgation of any rule that 

includes any Federal mandate that may 

result in the expenditure by State, local, 

and tribal governments, in the aggregate, 

or by the private sector, of $100,000,000 

or more (adjusted annually for inflation) 

in any 1 year, and before promulgating 

any final rule for which a general notice 

of proposed rulemaking was published, 

the agency shall prepare a written 

statement’’ detailing the effect on State, 

local, and tribal governments and the 

private sector. This proposed rule 

would not result in the expenditure, in 

the aggregate, of $100,000,000 or more 

(as adjusted annually for inflation) in 

any one year, and thus preparation of 

such a statement is not required. 

I. Energy Impact 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ requires Federal 

agencies to prepare a Statement of 

Energy Effects for any ‘‘significant 

energy action.’’ 51 FRA evaluated this 

proposed rule under Executive Order 

13211 and determined that this 


khammond on DSKJM1Z7X2PROD with PROPOSALS
22862 Federal Register / Vol. 87, No. 74 / Monday, April 18, 2022 / Proposed Rules 

regulatory action is not a ‘‘significant 

energy action’’ within the meaning of 

Executive Order 13211. 

J. Privacy Act Statement 

In accordance with 5 U.S.C. 553(c), 

DOT solicits comments from the public 

to better inform its rulemaking process. 

DOT posts these comments, without 

edit, to www.regulations.gov, as 

described in the system of records 

notice, DOT/ALL–14 FDMS, accessible 

through www.dot.gov/privacy. To 

facilitate comment tracking and 

response, we encourage commenters to 

provide their name, or the name of their 

organization; however, submission of 

names is completely optional. Whether 

or not commenters identify themselves, 

all timely comments will be fully 

considered. If you wish to provide 

comments containing proprietary or 

confidential information, please contact 

the agency for alternate submission 

instructions. 

K. Analysis Under 1 CFR Part 51 

As required by 1 CFR 51.5, FRA has 

summarized the standards it is 

incorporating by reference in the 

section-by-section analysis in this 

preamble. These standards summarized 

herein are reasonably available to all 

interested parties for inspection. Copies 

can be obtained from the ASTM 

International, 100 Barr Harbor Drive, 

P.O. Box C700, West Conshohocken, 

PA, 19428–2959, https://www.astm.org. 

Copies are also available for inspection 

at the Federal Railroad Administration, 

Docket Clerk, 1200 New Jersey Avenue 

SE, Washington, DC 20590. 

List of Subjects in 49 CFR Part 223 

Glazing standards, Penalties, 

Incorporation by reference, Railroad 

safety, Reporting and recordkeeping 

requirements. 

The Proposed Rule 

For the reasons discussed in the 

preamble, FRA proposes to amend part 

223 of title 49, Code of Federal 

Regulations, as follows: 

PART 223—SAFETY GLAZNG 

STANDARDS—LOCOMOTIVES, 

PASSENGER CARS AND CABOOSES 

■ 1. The authority citation for part 223 

continues to read as follows: 

Authority: 49 U.S.C. 20102–20103, 20133, 

20701–20702, 21301–21302, 21304; 28 U.S.C. 

2461 note; and 49 CFR 1.89. 

■ 2. Amend § 223.3 by: 

■ a. Removing the semicolon at the end 

of paragraph (b)(1) and adding a period 

in its place. 

■ b. Adding paragraph (b)(5). 

The addition reads as follows: 

§ 223.3 Application. 

* * * * * 

(b) * * * 

(5) Locomotives, cabooses, and 

passenger cars built or rebuilt prior to 

July 1, 1980, that are operated at speeds 

not exceeding 30 mph, and used only 

where the risk of propelled or fouling 

objects striking the equipment is low. 

Risk is presumed low, unless the 

railroad operating the equipment has 

knowledge, or FRA makes a showing, 

that specific risk factors exist. Risk 

factors include reported incidents of 

propelled or fouling objects striking rail 

equipment, or infrastructure conditions 

or other operating environment 

conditions that have led or are likely to 

lead to objects striking rail equipment in 

operation. 

* * * * * 

■ 3. Amend § 223.9 by revising the 

section heading to read as follows: 

§ 223.9 Requirements for equipment built 

or rebuilt after June 30, 1980. 

* * * * * 

■ 4. Amend § 223.11 by revising the 

section heading to read as follows: 

§ 223.11 Requirements for locomotives 

built or rebuilt prior to July 1, 1980. 

* * * * * 

■ 5. Amend § 223.13 by revising the 

section heading to read as follows: 

§ 223.13 Requirements for cabooses built 

or rebuilt prior to July 1, 1980. 

* * * * * 

■ 6. Amend § 223.15 by revising the 

section heading to read as follows: 

§ 223.15 Requirements for passenger cars 

built or rebuilt prior to July 1, 1980. 

* * * * * 

■ 7. Amend appendix A to part 223 by 

revising paragraphs b.(6), (10), (11), (13), 

and (15) and adding paragraph d. to 

read as follows: 

Appendix A to Part 223—Certification 

of Glazing Materials 

* * * * * 

b. * * * 

(6) The Witness Plate shall be an unbacked 

sheet of maximum 0.006 inch, alloy 1100 

temper O, aluminum stretched within the 

perimeter of a suitable frame to provide a taut 

surface. If a steel ball is used for Large Object 

Impact testing, the Witness Plate shall be an 

unbacked sheet of maximum 0.002 inch, 

alloy 1145 temper H19 or equivalent, 

aluminum stretched within the perimeter of 

a suitable frame to provide a taut surface. 

* * * * * 

(10) The Test Specimen for glazing 

material that is intended for use in end facing 

glazing locations shall be subjected to a Type 

I test regimen consisting of the following 

tests: 

(i) Ballistic Impact: A standard 22 caliber 

long rifle lead bullet of 40 grains in weight 

impacts at a minimum velocity of 960 feet 

per second. 

(ii) Large Object Impact: 

(A) A cinder block weighing a minimum of 

24 lbs with dimensions of 8 inches by 8 

inches by 16 inches nominally impacts the 

glazing surface at the corner of the block at 

a minimum velocity of 44 feet per second. 

The cinder block must be of composition 

referenced in American Society for Testing 

and Materials (ASTM) Specification C33/ 

C33M–18 or ASTM C90–16a; or 

(B) A steel ball (e.g., ball bearing or shot 

put) weighing a minimum of 12 lbs impacts 

the glazing surface at a minimum velocity of 

62.5 feet per second. 

(11) The Test Specimen for glazing 

material that is intended for use only in side 

facing glazing locations shall be subjected to 

a Type II test regimen consisting of the 

following tests: 

(i) Ballistic Impact: A standard 22 caliber 

long rifle lead bullet of 40 grains in weight 

impacts at a minimum velocity of 960 feet 

per second. 

(ii) Large Object Impact: 

(A) A cinder block weighting a minimum 

of 24 lbs with dimensions of 8 inches by 8 

inches by 16 inches nominally impacts the 

glazing surface at the corner of the block at 

a minimum velocity of 12 feet per second. 

The cinder block must be of the composition 

referenced in ASTM C33/C33M–18 or ASTM 

C90–16a; or 

(B) A solid steel ball (e.g., ball bearing or 

shot put) weighing a minimum of 12 lbs 

impacts the glazing surface at a minimum 

velocity of 17 feet per second. 

* * * * * 

(13) Except as provided in paragraphs 

b.(10)(ii)(B) and b.(11)(ii)(B) of this appendix, 

two different test specimens must be 

subjected to the large object impact portion 

of the tests. For purposes of paragraphs 

b.(10)(ii)(B) and b.(11)(ii)(B), four different 

test specimens shall be subjected to each 

impact test. 

* * * * * 

(15) Except as provided in paragraphs 

b.(10)(ii)(B) and b.(11)(ii)(B) of this appendix, 

test specimens must consecutively pass the 

required number of tests at the required 

minimum velocities. Individual tests 

resulting in failures at greater than the 

required minimum velocities may be 

repeated but a failure of an individual test at 

less than the minimum velocity shall result 

in termination of the total test and failure of 

the material. For purposes of paragraphs 

b.(10)(ii)(B) and b.(11)(ii)(B), three out of four 

test specimens must pass the test for the 

glazing material to be acceptable. Individual 

tests resulting in a failure at velocities above 

the prescribed range may be repeated. 

* * * * * 

d. Incorporation by Reference 

Certain material is incorporated by 

reference into this appendix with the 

approval of the Director of the Federal 

Register under 5 U.S.C. 552(a) and 1 CFR part 

51. All approved material is available for 

inspection at the FRA and the National 

Archives and Records Administration 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 87, No. 74 / Monday, April 18, 2022 / Proposed Rules 22863 

(NARA). Contact FRA at: Federal Railroad 

Administration, Docket Clerk, 1200 New 

Jersey Avenue SE, Washington, DC 20590; 

phone: (202) 493–6052; email: FRALegal@

dot.gov. For information on the availability of 

this material at NARA, email fr.inspection@

nara.gov or go to www.archives.gov/federalregister/cfr/ibr-locations.html. The material 

may be obtained from the following source(s) 

in this paragraph d. 

(1) ASTM International, 100 Barr Harbor 

Drive, P.O. Box C700, West Conshohocken, 

PA 19428–2959 phone: (610) 832–9585; 

www.astm.org. 

(i) ASTM C90–16a, ‘‘Standard 

Specification for Loadbearing Concrete 

Masonry Units,’’ 2016. 

(ii) ASTM C33/C33M–18, ‘‘Standard 

Specification for Concrete Aggregates,’’ 2018. 

(2) [Reserved] 

Issued in Washington, DC. 

Amitabha Bose, 

Administrator. 

[FR Doc. 2022–07838 Filed 4–15–22; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 220411–0091] 

RIN 0648–BL20 

Fisheries of the Northeastern United 

States; Recreational Management 

Measures for the Summer Flounder, 

Scup, and Black Sea Bass Fisheries; 

Fishing Year 2022 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes management 

measures for the 2022 summer flounder, 

scup, and black sea bass recreational 

fisheries. The implementing regulations 

for this fishery require NMFS to publish 

recreational measures for the fishing 

year and to provide an opportunity for 

public comment. The intent of this 

action is to set management measures 

that allow the recreational fisheries to 

achieve, but not exceed, the recreational 

harvest limits and thereby prevent 

overfishing of the summer flounder, 

scup, and black sea bass stocks. 

DATES: Comments must be received by 

May 3, 2022. 

ADDRESSES: You may submit comments 

on this document, identified by NOAA– 

NMFS–2022–0042, by the following 

method: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

https://www.regulations.gov and enter 

NOAA–NMFS–2022–0042 in the Search 

box. Click on the ‘‘Comment’’ icon, 

complete the required fields, and enter 

or attach your comments. 

Instructions: Comments sent by any 

other method, to any other address or 

individual or received after the end of 

the comment period, may not be 

considered by NMFS. All comments 

received are a part of the public record 

and will generally be posted for public 

viewing on www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address, etc.), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments (enter ‘‘N/ 

A’’ in the required fields if you wish to 

remain anonymous). 

FOR FURTHER INFORMATION CONTACT: 

Emily Keiley, Fishery Policy Analyst, 

(978) 281–9116. 

SUPPLEMENTARY INFORMATION: 

Background 

The Mid-Atlantic Fishery 

Management Council and the Atlantic 

States Marine Fisheries Commission 

cooperatively manage summer flounder, 

scup, and black sea bass. The Council 

and the Commission’s Management 

Boards meet jointly each year to 

recommend recreational management 

measures. Recreational management 

measures are required to be set so that 

recreational harvest achieves, but does 

not exceed, the recreational harvest 

limit (RHL). For summer flounder and 

black sea bass, we must implement 

coastwide measures or approve 

conservation-equivalent measures per 

50 CFR 648.102(d) and 648.142(d), as 

soon as possible following the Council 

and Commission’s recommendation. 

This action proposes establishing 

conservation equivalency for both 

species in 2022. For scup, the 

regulations require us to propose 

additional management measures if the 

measures recommended by the Council 

and Commission alone will not 

constrain harvest as needed. As such, 

we are proposing a Federal recreational 

closure because harvest is expected to 

exceed the 2022 RHL and the 

adjustments recommended by the 

Council and Commission alone will not 

achieve the necessary reduction. 

Recreational Management Measures 

Process 

The Summer Flounder, Scup, and 

Black Sea Bass Fishery Management 

Plan (FMP) establishes a Monitoring 

Committee consisting of representatives 

from the Commission, the Council, state 

marine fishery agencies from 

Massachusetts to North Carolina, and 

NMFS. The FMP’s implementing 

regulations require the Monitoring 

Committee to review scientific and 

other relevant information annually. 

The objective of this review is to 

recommend management measures to 

the Council that will constrain landings 

within the RHL for the upcoming 

fishing year. The FMP restricts the 

options for managements measures to 

minimum and maximum fish size 

limits, per angler possession limits, and 

timing of the fishing season. 

The Council and the Board then 

consider the Monitoring Committee’s 

recommendations and any public 

comment in making their 

recommendations. The Council 

forwards its recommendations to NMFS 

for review. The Commission similarly 

adopts recommendations for the states. 

NMFS is required to review the 

Council’s recommendations to ensure 

that they are consistent with the targets 

specified for summer flounder, scup, 

and black sea bass in the FMP and all 

applicable laws and Executive Orders 

before ultimately implementing 

measures for Federal waters. 

Commission measures are final at the 

time they are adopted. 

2022 Scup Recreational Management 

Measures 

The current Federal recreational scup 

management measures are a 9-inch 

(22.86-cm) minimum fish size, a 50-fish 

per person possession limit, and a yearround open season. State measures are 

similar but vary slightly due to 

differences in scup availability. 

Recreational landings in 2020 were 

12.91 million lb (5,855 mt), which was 

nearly twice the 2020 RHL of 6.51 

million lb (2,952 mt). The 2022 RHL is 

6.08 million lb (2,757 mt), and harvest 

projections indicate that a 56-percent 

reduction in catch would be needed to 

constrain harvest to the 2022 RHL. 

The Council and Board proposed a 1- 

inch (2.54-cm) increase to the scup 

recreational minimum size in state and 

Federal waters for 2022. In Federal 

waters, this results in a 10-inch total 

length minimum size. Collectively, this 

change in both state and Federal waters 

is expected to achieve an approximate 

33-percent reduction in harvest. This is 

less than the estimated 56-percent 

reduction in harvest needed to constrain 

recreational harvest to the 2022 RHL. 

Because the action proposed by the 

Council and Board would not 

sufficiently reduce scup harvest as 


khammond on DSKJM1Z7X2PROD with PROPOSALS