[Federal Register Volume 87, Number 74 (Monday, April 18, 2022)]
[Proposed Rules]
[Pages 22847-22863]
[FR Doc No: 2022-07838]

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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).

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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revise outdated section headings.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:<PHONE_NUMBER>, email:
[email protected]; or Michael Masci, Senior Attorney, Office of
the Chief Counsel, telephone:<PHONE_NUMBER>, email:
[email protected].

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.
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    \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.
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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

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.
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    \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.
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    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\
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                                                           Present value                    Annualized
             Entity                Undiscounted  ---------------------------------------------------------------
                                                        3%              7%              3%              7%
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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
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    Total Cost Savings..........       1,119,000         944,800         767,500         110,800         109,300
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    \5\ In this document, both total and annualized figures have
been rounded to improve clarity.
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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).
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    \6\ See 44 FR 77348, Dec. 31, 1979.
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    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.
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    \7\ Id.
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    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.
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    \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.

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

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[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:
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    \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)
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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

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.
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    \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.
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    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

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

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

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

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

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

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

    \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

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

     Five manufacturers across the globe develop railroad
vehicle glazing; three are located within the U.S. and two are foreign
manufacturers.
     FRA assumes that all glazing manufacturers will make use
of the steel ball option.
     FRA expects each firm will conduct five tests per year and
save approximately $500 per test in current 2020 dollars.
     The total manufacturing cost savings table below is
developed for the three U.S. manufacturing firms and assumes 15 tests
are conducted per year.
     As the cinder block is damaged during each pass of the
test, two cinder blocks are required at a cost of $1.50 apiece and $6
in total. Each cinder block test requires 10 labor hours, e.g., 2 hours
to customize 4 cinder blocks and 8 hours to run the cinder block test.
Two additional cinder blocks were included in the analysis to ensure
that extra cinder blocks were available if the first test was failed.
     Each steel ball costs $75. This analysis assumes each U.S.
manufacturer will purchase one steel ball at the beginning of the first
year of analysis period. These one-time costs are subtracted from the
2021 cost savings shown in Table D. Steel ball costs are not included
in Table C per test cost savings. FRA assumes the steel ball will be
used after 2030.
     Materials engineers conduct the certification tests at a
burdened hourly wage of $82.\34\
---------------------------------------------------------------------------

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

     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.

                                   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

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

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

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<PHONE_NUMBER>.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them via email to
Ms. Wells at [email protected].
---------------------------------------------------------------------------

    \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

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

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

(NARA). Contact FRA at: Federal Railroad Administration, Docket
Clerk, 1200 New Jersey Avenue SE, Washington, DC 20590; phone: (202)
493-6052; email: [email protected]. For information on the
availability of this material at NARA, email [email protected]
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:<PHONE_NUMBER>;
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