[Federal Register Volume 87, Number 74 (Monday, April 18, 2022)]
[Proposed Rules]
[Pages 22847-22863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07838]


=======================================================================
-----------------------------------------------------------------------

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revise outdated section headings.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: 
<a href="/cdn-cgi/l/email-protection#781f190a01561e19110a1a1916130b381c170c561f170e"><span class="__cf_email__" data-cfemail="f99e988b80d79f98908b9b9897928ab99d968dd79e968f">[email protected]</span></a>; or Michael Masci, Senior Attorney, Office of 
the Chief Counsel, telephone: 202-493-6037, email: 
<a href="/cdn-cgi/l/email-protection#bbd6d2d8d3daded795d6dac8d8d2fbdfd4cf95dcd4cd"><span class="__cf_email__" data-cfemail="9df0f4fef5fcf8f1b3f0fceefef4ddf9f2e9b3faf2eb">[email protected]</span></a>.

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.
---------------------------------------------------------------------------

    \1\ See, 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.
---------------------------------------------------------------------------

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

[[Page 22848]]

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.
---------------------------------------------------------------------------

    \2\ FRA 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.
    \3\ FRA 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.
    \4\ Notably, existing waivers could potentially be codified 
through the rulemaking process, as proposed here, or they could be 
codified through legislation.
---------------------------------------------------------------------------

    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 certain-sized 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\
----------------------------------------------------------------------------------------------------------------
                                                           Present value                    Annualized
             Entity                Undiscounted  ---------------------------------------------------------------
                                                        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
----------------------------------------------------------------------------------------------------------------

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

    \5\ In this document, both total and annualized figures have 
been rounded to improve clarity.
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    \6\ See 44 FR 77348, Dec. 31, 1979.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \7\ Id.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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.
---------------------------------------------------------------------------

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

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

[[Page 22849]]

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.
---------------------------------------------------------------------------

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

    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.
---------------------------------------------------------------------------

    \14\ See FN 4.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \15\ 44 FR 77348, Dec. 31, 1979.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------

    \17\ Type 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.

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

[[Page 22850]]

[GRAPHIC] [TIFF OMITTED] TP18AP22.030

    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:
[GRAPHIC] [TIFF OMITTED] TP18AP22.031

    Solving for the projectile velocity (vprojectile) results in 
Equation 3 below:
[GRAPHIC] [TIFF OMITTED] TP18AP22.032

    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:
---------------------------------------------------------------------------

    \18\ Note 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.
[GRAPHIC] [TIFF OMITTED] TP18AP22.033

    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      Projectile
        Projectile mass (pounds)          velocity (mph)  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

[[Page 22851]]

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 well-
suited 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 non-conforming 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 non-conforming 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.
---------------------------------------------------------------------------

    \19\ RSAC 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.
---------------------------------------------------------------------------

    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:
[GRAPHIC] [TIFF OMITTED] TP18AP22.034

    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:
[GRAPHIC] [TIFF OMITTED] TP18AP22.035


[[Page 22852]]


    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\
---------------------------------------------------------------------------

    \20\ See FN 18. For the present calculation, the same result is 
obtained whether or not a conversion to SI units is performed.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \21\ A 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.
    \22\ Parsons Brinckerhoff, ``Railroad Vehicle Window Glazing 
Large Object Impact Test,'' May 2006.
---------------------------------------------------------------------------

    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 high-speed, 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\
---------------------------------------------------------------------------

    \23\ 49 CFR 238.721, 83 FR 59182 (Nov. 21, 2018).
    \24\ 81 FR 88017 (Dec. 6, 2016).
    \25\ Id.
---------------------------------------------------------------------------

    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

[[Page 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 then-
existing equipment, as discussed below under Sec. Sec.  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 Sec. Sec.  
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

[[Page 22854]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 cost-prohibitive 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

[[Page 22855]]

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 long-standing 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]
----------------------------------------------------------------------------------------------------------------
                                                           Present value                    Annualized
             Entity                Undiscounted  ---------------------------------------------------------------
                                                        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.
---------------------------------------------------------------------------

    \27\ District inspectors verify safe conditions with the police 
if they find any evidence window glazing has been damaged or 
replaced.
    \28\ Standard operating procedures include periodic updates of 
the FRA Motive Power and Equipment Compliance Manual, which would be 
expected with the passage of this rule.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \29\ Inputs are based on expertise drawn from FRA's Motive Power 
and Equipment Division unless otherwise noted.
---------------------------------------------------------------------------

    <bullet> Railroad administrative burdened \30\ wage rate is $77.47 
per hour.\31\
---------------------------------------------------------------------------

    \30\ The ``burdened'' wage rate includes fringe and overhead 
benefits.
    \31\ Source: Surface Transportation Board, 2019, professional 
and administrative employees, group #200; burdened wage rate = 
$44.27 * 1.75 benefits rate = $77.47.
---------------------------------------------------------------------------

    <bullet> Each railroad waiver submission requires 4 hours of 
railroad administrative labor.
    <bullet> Copying and mailing costs total $10 per waiver.
    <bullet> Total cost per waiver equals $319.88.\32\
---------------------------------------------------------------------------

    \32\ Total costs per waiver = 4 * $77.47 + $10 = $319.88.

                                     Table B--Railroad Cost Savings by Year
----------------------------------------------------------------------------------------------------------------
                                                                                   Discount rate
                      Year                           Number of   -----------------------------------------------
                                                      waivers      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

[[Page 22856]]

 
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.
---------------------------------------------------------------------------

    \33\ Assumptions are based on expertise from FRA's Motive Power 
and Equipment Division.
---------------------------------------------------------------------------

    <bullet> Five manufacturers across the globe develop railroad 
vehicle glazing; three are located within the U.S. and two are foreign 
manufacturers.
    <bullet> FRA assumes that all glazing manufacturers will make use 
of the steel ball option.
    <bullet> FRA expects each firm will conduct five tests per year and 
save approximately $500 per test in current 2020 dollars.
    <bullet> The total manufacturing cost savings table below is 
developed for the three U.S. manufacturing firms and assumes 15 tests 
are conducted per year.
    <bullet> 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.
    <bullet> 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.
    <bullet> Materials engineers conduct the certification tests at a 
burdened hourly wage of $82.\34\
---------------------------------------------------------------------------

    \34\ Current materials engineer wage rate = $47.06. Burdened 
rate = 1.75 * $47.06 = $82.36. Source: https://www.bls.gov/oes/current/oes172131.htm.
---------------------------------------------------------------------------

    <bullet> 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.
---------------------------------------------------------------------------

    \35\ Total 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.
    \36\ The 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 C--Manufacturer Cost Savings
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Large object     Labor hours     Labor costs     Total costs    Large object   Labor costs 15    Total costs
                 Expense                  costs per test     per test        per test        per test     costs 15 tests       tests         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.

[[Page 22857]]



                                   Table D--Manufacturer Cost Savings by Year
----------------------------------------------------------------------------------------------------------------
                                                                                           Present value
                      Year                           Number of     Undiscounted  -------------------------------
                                                       tests                            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.
---------------------------------------------------------------------------

    \37\ OPM 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/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2020/DCB_h.pdf; SES from Mid-Level III: https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2020/EX.pdf.
---------------------------------------------------------------------------

    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 *       Hours           Total       Total burden
                                                       1.75)                         unburden
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
                                                                   Burdened wage           Discount rate
                      Year                           Number of         rate      -------------------------------
                                                      waivers      undiscounted         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

[[Page 22858]]

 
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\
---------------------------------------------------------------------------

    \38\ ``Size Eligibility Provisions and Standards,'' 13 CFR part 
121, subpart A.
---------------------------------------------------------------------------

    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

[[Page 22859]]

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.
---------------------------------------------------------------------------

    \39\ 68 FR 24891 (May 9, 2003) (codified at appendix C to 49 CFR 
part 209).
    \40\ The 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/.
    \41\ North 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%20Standards_Effective%20Aug%2019%2C%202019.pdf.
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------

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

----------------------------------------------------------------------------------------------------------------
                                                                                                    Total cost
         CFR section             Respondent      Total annual     Average time     Total annual     equivalent
                                  universe        responses       per response     burden hours   wage rate \43\
                              ...............  (A)............  (B)............  (C) = A * B....       (D) = C *
----------------------------------------------------------------------------------------------------------------
223.3--Application--Locomoti  704 railroads..  400 marked       30 minutes.....  200.00 hours...      $11,978.00
 ves, passenger cars, and                       tools (small
 cabooses built after 1945                      hammers with
 used only for excursion,                       instructions).
 educational, recreational,
 or private transportation
 purposes.
----------------------------------------------------------------------------------------------------------------
223.11(c)--Requirements for   The proposed rule would eliminate the need for railroads to submit waiver
 locomotives built or          petitions (and repeated extensions of those waivers every 5 years) from part 223
 rebuilt prior to July 1,      for certain older railroad equipment, eliminate the Federal Government's need to
 1980, equipped with           review and approve the waiver petitions and extension requests.
 certified glazing in all
 locomotive cab windows (*
 Note: Revised
 requirement.*).
----------------------------------------------------------------------------------------------------------------
--(d)(1) Locomotive placed    704 railroads..  15 stencilings.  3 minutes......  .75 hour.......          $44.92
 in designated service due
 to a damaged or broken cab
 window--Stenciled
 ``Designated Service--DO
 NOT OCCUPY''.
----------------------------------------------------------------------------------------------------------------
--(d)(2) Locomotives removed  Glazing certification for locomotive replacement windows is done at the time of
 from service until broken     manufacturing. Consequently, there is no additional burden associated with this
 or damaged windows are        requirement.
 replaced with certified
 glazing.
----------------------------------------------------------------------------------------------------------------

[[Page 22860]]

 
223.13(c)--Requirements for   The proposed rule would eliminate the need for railroads to submit waiver
 cabooses built or rebuilt     petitions (and repeated extensions of those waivers every 5 years) from part 223
 prior to July 1, 1980,        for certain older railroad equipment, eliminate the Federal Government's need to
 equipped with certified       review and approve the waiver petitions and extension requests.
 glazing in all windows (*
 Note: Revised
 requirement.*).
----------------------------------------------------------------------------------------------------------------
--(d) Cabooses removed from   Glazing certification for caboose replacement windows is done at the time of
 service until broken or       manufacturing. Consequently, there is no additional burden associated with this
 damaged windows are           requirement.
 replaced with certified
 glazing.
----------------------------------------------------------------------------------------------------------------
223.15(c)--Requirements for   704 railroads..  1 renewal        4 hours........  4.00 hours.....         $460.96
 passenger cars built or                        waiver.
 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.*).
----------------------------------------------------------------------------------------------------------------
--(d) Passenger cars removed  Glazing certification for passenger car replacement windows is done at the time of
 from service until broken/    manufacturing. Consequently, there is no additional burden associated with this
 damaged windows are           requirement.
 replaced with certified
 glazing.
----------------------------------------------------------------------------------------------------------------
Appendix A--(b)(16)--         5 manufacturers  10               30 minutes.....  5.00 hours.....         $387.20
 Certification of Glazing                       certifications.
 Materials--Manufacturers to
 certify in writing that
 glazing material meets the
 requirements of this
 section.
----------------------------------------------------------------------------------------------------------------
--(c) Identification and      5 manufacturers  25,000 marked    480 pieces per   52.08 hours....       $3,119.07
 marking of each unit of                        pieces.          hour.
 glazing material.
----------------------------------------------------------------------------------------------------------------
    Total...................  704 railroads +  25,426           N/A............  262 hours......         $15,990
                               5                responses.
                               manufacturers.
----------------------------------------------------------------------------------------------------------------

    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 <a href="/cdn-cgi/l/email-protection#e7af88838689c9b0828b8b94a7838893c9808891"><span class="__cf_email__" data-cfemail="652d0a01040b4b320009091625010a114b020a13">[email protected]</span></a>.
---------------------------------------------------------------------------

    \43\ The 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.
---------------------------------------------------------------------------

    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

[[Page 22861]]

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.
---------------------------------------------------------------------------

    \44\ 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------

    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.''
---------------------------------------------------------------------------

    \45\ 40 CFR 1508.4.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \46\ 23 CFR 771.116(b).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \47\ See 16 U.S.C. 470.
    \48\ See Department of Transportation Act of 1966, as amended 
(Pub. L. 89-670, 80 Stat. 931); 49 U.S.C. 303.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \49\ Available at https://www.transportation.gov/regulations/dot-order-56102b-department-transportation-actions-address-environmental-justice.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \50\ Public Law 104-4, 2 U.S.C. 1531.
---------------------------------------------------------------------------

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

[[Page 22862]]

regulatory action is not a ``significant energy action'' within the 
meaning of Executive Order 13211.
---------------------------------------------------------------------------

    \51\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------

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

0
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.

0
2. Amend Sec.  223.3 by:
0
a. Removing the semicolon at the end of paragraph (b)(1) and adding a 
period in its place.
0
b. Adding paragraph (b)(5).
    The addition reads as follows:


Sec.  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.
* * * * *
0
3. Amend Sec.  223.9 by revising the section heading to read as 
follows:


Sec.  223.9   Requirements for equipment built or rebuilt after June 
30, 1980.

* * * * *
0
4. Amend Sec.  223.11 by revising the section heading to read as 
follows:


Sec.  223.11   Requirements for locomotives built or rebuilt prior to 
July 1, 1980.

* * * * *
0
5. Amend Sec.  223.13 by revising the section heading to read as 
follows:


Sec.  223.13   Requirements for cabooses built or rebuilt prior to July 
1, 1980.

* * * * *
0
6. Amend Sec.  223.15 by revising the section heading to read as 
follows:


Sec.  223.15   Requirements for passenger cars built or rebuilt prior 
to July 1, 1980.

* * * * *
0
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

[[Page 22863]]

(NARA). Contact FRA at: Federal Railroad Administration, Docket 
Clerk, 1200 New Jersey Avenue SE, Washington, DC 20590; phone: (202) 
493-6052; email: <a href="/cdn-cgi/l/email-protection#5d1b0f1c11383a3c311d393229733a322b"><span class="__cf_email__" data-cfemail="1e584c5f527b797f725e7a716a30797168">[email protected]</span></a>. For information on the 
availability of this material at NARA, email <a href="/cdn-cgi/l/email-protection#3355411d5a5d40435650475a5c5d735d5241521d545c45"><span class="__cf_email__" data-cfemail="91f7e3bff8ffe2e1f4f2e5f8feffd1fff0e3f0bff6fee7">[email protected]</span></a> 
or go to www.archives.gov/federal-register/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


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>