[Federal Register Volume 87, Number 221 (Thursday, November 17, 2022)]
[Rules and Regulations]
[Pages 68913-68925]
[FR Doc No: 2022-24469]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 223

[Docket No. FRA-2020-0058; Notice No. 2]
RIN 2130-AC76

Safety Glazing Standards; Codifying Existing Waivers and Adding
Test Flexibility

AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: FRA is amending 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revise outdated section headings.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 changes update and clarify
existing requirements to maintain and, in some cases, enhance safety,
while reducing unnecessary costs. Codification of the waivers is also
consistent with the Infrastructure Investment and Jobs Act and will
enable FRA to use its inspection resources more efficiently.

DATES: This final rule is effective November 17, 2022.

ADDRESSES: 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
III. Discussion of American Public Transportation Association's
(APTA) Comment
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
    A. Executive Order 12866
    B. Regulatory Flexibility Act and Executive Order 13272;
Certification
    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

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 rule
will maintain and, in some cases, enhance safety, while allowing FRA to
make better use of its inspection resources, and reducing unnecessary
costs.
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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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    This rule also responds to the mandate of section 22411 of the
Infrastructure Investment and Jobs Act (IIJA; 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.
The Secretary has delegated authority to implement section 22411 to
FRA.\2\ The notice of proposed rulemaking (NPRM) contained FRA's
analysis of the waivers and FRA has concluded that it is in the public
interest and consistent with railroad safety to incorporate into the
regulations the relevant aspects of the waivers analyzed.
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    \2\ 49 CFR 1.89(a).
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    FRA is adopting this rule as effective on date of publication
consistent with 5 U.S.C. 553(d)(1), as it is ``a substantive rule which
grants or recognizes an exemption or relieves a restriction.''

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 issued an NPRM on April 18, 2022,\3\
proposing to codify long-standing waivers, add a new testing option to
improve consistency of glazing testing, and revise outdated section
headings. APTA submitted the only comment in response to the NPRM.
APTA's comment expressed support for FRA's proposal to incorporate the
identified waivers into the regulations and, generally, for the new
testing option. APTA raised a technical concern, however, about the new
testing option (discussed in more detail in Section III below). After
carefully considering APTA's comment, FRA is issuing this final rule
substantially as proposed, with only minor modifications to FRA's
proposed revisions to appendix A to part 223 (appendix A) to make clear
that the use of any structurally sound cinder block, meeting the
required dimensions of the appendix, is allowable for the large object
impact test.
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    \3\ 87 FR 22847.
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    As proposed in the NPRM, this rule codifies sixty-eight long-
standing waivers \4\ that have provided certain older railroad
equipment relief from FRA's glazing requirements. Specifically, this
final rule excludes 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. Codifying these waivers through this rulemaking proceeding \5\
continues the high level of safety achieved under the waivers. It also
allows FRA additional flexibility to use its inspection resources and
reduces 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.
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    \4\ FRA currently oversees 68 glazing-related waivers issued to
58 different railroads that involve equipment built or rebuilt
before July 1, 1980, that will be codified by this rule. For review,
FRA placed a list of these waivers in the rulemaking docket. FRA
monitors a railroad's compliance with each waiver and every five
years upon the railroad's request, FRA reviews existing waivers for
possible renewal. Table F, Government Administrative Net Benefits by
Year, provides the number of waivers by year that absent this rule
FRA would expect to review from 2021 to 2031 or over a 10-year
period of analysis.
    \5\ Existing waivers could potentially be codified through the
rulemaking process, as here, or they could be codified through
legislation.
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    This rule also adopts the NPRM's proposal to revise appendix A to
allow the use of a steel ball as an alternative to a cinder block for
conducting the large object impact test appendix A requires. As
explained in the NPRM, appendix A contains the performance criteria and
the testing methodology for required glazing materials. Specifically,
appendix A requires glazing materials to be subjected to two tests:
ballistic impact and large object impact. Historically, the large
object impact test in appendix A has required the use of a 24-lb cinder
block of specific dimensions. As noted in the NPRM, in the early 2000s,
FRA became aware that cinder blocks of the weight and dimensions
appendix A requires were

no longer being manufactured and accordingly were becoming harder for
the glazing manufacturing and railroad industries to find. Because, as
discussed in detail in Section III.B of the NPRM's preamble, and in
Section III below, the steel ball test is at least equivalent to the
existing cinder block test appendix A has historically required, safety
will be maintained, and in some respects, enhanced, by the
standardization the steel ball test provides.
    As relevant to the existing cinder block test appendix A has
historically required, in the NPRM FRA proposed to incorporate by
reference two American Society for Testing and Materials \6\ (ASTM)
specifications (ASTM specifications C33/C33M-18 and C90-16a) to ensure
proper cement construction and integrity of the blocks. Upon further
review and consideration, however, FRA recognizes that other concrete
compositions can be used to construct structurally sound cinder blocks.
Accordingly, FRA is not adopting the NPRM's proposal to incorporate by
reference the two ASTM standards, which would have required cinder
blocks to meet those standards to be used for testing under appendix A.
Instead, FRA is revising appendix A to make clear that any structurally
sound cinder blocks may be used to meet the testing requirements of
appendix A and ASTM specifications C33/C33M-18 and C90-16a are merely
examples of compositions known to be structurally sound.
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    \6\ The organization is currently known as ASTM International.
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    Finally, FRA is revising several section headings in part 223 to
replace terms that have become outdated. As noted in the NPRM, 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 amending the section headings to refer
to the relevant compliance dates for each section.

Costs and Benefits of the Regulatory Action

    This final rule will result in three quantifiable benefits. First,
this final rule will eliminate the need for certain railroads to submit
waiver petitions from part 223. Second, this final rule revises
appendix A to allow manufacturers to use a steel ball as an alternative
to a cinder block when conducting the large object impact test. Lastly,
this final rule will result in net benefits to FRA because FRA subject
matter experts no longer need to review renewal glazing standards
waivers made unnecessary by the final rule.
    FRA estimates there are no costs associated with implementing this
final rule. As shown in the following table, FRA's estimates that this
final rule will result in a net benefits of $946,000 (Present Value
(PV), 3%) or $769,000 (PV, 7%).

                        Total Net Benefits, 10-Year Period of Analysis, Rounded to $1,000
                                                 [2020 dollars]
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                                                           Present value                    Annualized
         Type of benefit           Undiscounted  ---------------------------------------------------------------
                                                        3%              7%              3%              7%
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Railroads (Waiver Submissions)..         $43,000         $37,000         $30,000          $4,000          $4,000
Manufacturers (Steel Ball                 77,000          65,000          54,000           8,000           8,000
 Option)........................
Government (FRA Waiver Review)..       1,000,000         844,000         685,000          99,000          98,000
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    Total Net Benefits..........       1,121,000         946,000         769,000         111,000         109,000
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II. Background

    The NPRM discussed in detail the background of FRA's existing
glazing requirements, from FRA's initial issuance of the requirements
in 1979 through amendments made in 2016 to exclude certain equipment
that is more than 50 years old and, except for incidental freight
service, used only for excursion, educational, recreational, or private
transportation purposes. The NPRM also explained in detail FRA's waiver
process and described the scope of existing glazing-related waivers
under which individual railroads currently operate. Since 1998, FRA
granted conditional relief from part 223 to approximately 200 small
railroads that operate older equipment under certain circumstances
(i.e., at low speeds and in geographical locations with no history of
broken windows and low risk of future vandalism to railroad equipment).
As of the date of the NPRM, FRA oversaw 68 glazing-related waivers. In
granting these waivers, the NPRM explained FRA's Railroad Safety Board
(Board) reviewed available records and found 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 broken from propelled or fouling
objects). In addition, as noted in the NPRM, the 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 (87 FR
22848)) to install certified glazing would be cost-prohibitive and of
limited benefit. See the discussion of Executive Order 12866 in Section
V below.
    Given the rail industry's long-term success in safely operating
under these waivers, and considering APTA's comment in support, FRA is
incorporating the regulatory flexibility provided by the waivers into
part 223. This change will 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. Discussion of APTA's Comment

    In its comment, APTA expressed general support for FRA's proposal
to exclude from part 223 older equipment operated at only low speeds in
locations with low risk of objects striking equipment, recognizing the
regulatory relief it will provide for its members. Based on an analysis
of data in FRA's publicly available Railroad Accident/Incident
Reporting System, APTA also

expressed the view that the current 24-lb cinder block test ``appears
to be adequate'' to prevent serious incidents resulting from glazing
being compromised. However, APTA expressed concern that the proposed
steel ball test is more stringent than the cinder block test. APTA
asserted that the ``proposed 12-pound steel sphere test is more
demanding than the current cinder block testing because not all the
kinetic energy is imparted to the glazing sample being tested since the
cinder block itself consumes some of the kinetic energy as it breaks
apart upon contact with the glazing.''
    Given their premise that the steel ball test is more stringent than
the cinder block test, APTA also expressed concern that if a railroad
qualifies glazing using the cinder block test method, instead of the
more stringent steel ball method, a railroad may be held liable for
damages or injuries if the glazing is compromised.
    Additionally, APTA generally asserted that the proposed alternative
steel ball test will require railroad equipment to be re-designed or
retrofitted to potentially accommodate thicker glass to pass the more
stringent steel ball test. Although APTA generally asserted that
equipment will need to be redesigned and retrofitted because a
``thicker piece of glazing may be required,'' APTA's comment did not
provide any evidence or analysis to support this assertion. The comment
did not specify what adjustments to railroad equipment or glazing
material APTA believes would potentially be needed. APTA noted,
however, that it has an industry working group currently working on
establishing a method to scale the kinetic energy for the large object
impact test to account for the kinetic energy that is typically
absorbed by the cinder block when the block impacts the glazing. In
other words, FRA understands that APTA has a working group charged with
researching and developing an equivalent testing method to the cinder
block test.
    Accordingly, for each of the reasons outlined in its comment, APTA
recommended that FRA reconsider its methodology and identify an
alternative test method that provides an equivalent, not more
stringent, level of safety, potentially incorporating results from its
working group.
    As acknowledged in the NPRM, FRA agrees with APTA that the steel
ball test may be more stringent than the cinder block test.\7\ However,
that is not a reason, in itself, to forgo adding the proposed steel
ball test as an alternative testing methodology. FRA's primary purpose
for adding the steel ball test is to ensure safety is not diminished,
and, where possible, to enhance safety. Adding a test option that is
potentially more stringent will ensure the current level of safety is
maintained or enhanced. In addition, FRA finds that adding the proposed
steel ball test provides needed flexibility for manufacturers, and any
others, responsible for testing glazing material, particularly given
that cinder blocks of the weight and dimensions required by part 223
are no longer being manufactured. FRA expects glazing manufacturers may
use the steel ball test because the steel ball is easier to acquire
than a conforming cinder block and the steel ball test will result in
net benefits as compared to the cinder block test. If a glazing
manufacturer decides not to use the steel ball test, because it is too
stringent or for any other reason, the cinder block test will remain in
part 223 as an acceptable means to qualify glazing materials. As such,
while the steel ball test may be more stringent than the cinder block
test, it will not have any significant impact on manufacturing.
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    \7\ 87 FR 22852 (noting that the results of testing by the John
A. Volpe National Transportation Systems Center (Volpe Center)
indicated that the steel ball test is ``potentially a more stringent
test than the cinder block test'').
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    The precise legal nature of APTA's liability concerns is unclear.
FRA's allowance of an alternative testing methodology would not create
a difference in liability based on the use of one test over another.
Part 223 does not provide for a private right of action for damages for
non-compliance.\8\ Additionally, negligence per se is available as a
legal claim only when a regulation is violated.\9\ As proposed in the
NPRM, a manufacturer could comply with part 223 by qualifying glazing
material using either the cinder block or steel ball test. If a
manufacturer chose to comply using the cinder block test, there would
be no violation to support a negligence per se claim. Thus, it is
unclear how using a compliant test would result in undue liability as
APTA alleges in its comments.\10\ However, according to the general
principles of tort law, negligence may be available as a claim if
either test is performed incorrectly, and a resulting injury occurs;
these principles are true regardless of this rule.\11\
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    \8\ See Touche Ross & Co. V. Redington, 442 U.S. 560, 568 (1979)
(finding that a private right of action is not automatically
available following a Federal statutory violation unless the
legislature intended to create such a right); FDIC v. Schuchmann,
235 F.3d 1217, 1223 (10th Cir. 2000) (finding that a statutory
violation could not provide the basis for negligence per se if it is
contrary to legislative intent); Schwartzman, Inc. V. Atchison, T.&
S.F. Ry., 857 F.Supp. 838, 847 (D.N.M. 1994) (listing legislative
intent as a factor used by courts to establish whether a private
right of action like negligence per se may be properly brought).
    \9\ See, e.g., Schwartzman, Inc., 857 F.Supp. at 847 (``The
doctrine of negligence per se dictates that applicable statutes
constitute the governing standard of care, and violation of those
statutes is negligence as a matter of law.'').
    \10\ In fact, although an FRA grant of a waiver petition often
results in two separate Federal standards, FRA is not aware of such
liability concerns adhering to the Federal standard established by
the waiver grant. FRA has authority to waive regulatory requirements
if such waiver is in the public's interest and consistent with
railroad safety (49 U.S.C. 20103). To ensure waivers are consistent
with railroad safety, FRA typically includes conditions to any
granted waiver petition, and these conditions may include
alternative methods for compliance. At times, FRA has waived
regulatory requirements to approve and monitor a test/pilot program
to help establish a safe alternative--the alternative being the
governing Federal standard.
    \11\ See, e.g., Palsgraf v. Long Island R.R. Co., Ct. of App. of
N.Y., 248 N.Y. 339, 162 NE 99 (N.Y. 1928); Greenman v. Yuba Power
Products, Inc., 59 Cal.2d 57 (1963).
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    FRA also determined that APTA's general comment about the need for
the redesign or retrofitting of equipment to accommodate thicker glass
is without merit. APTA's comment does not provide evidence or detailed
analysis to support this assertion. The comment does not specify what
adjustments to railroad equipment would be needed, and APTA does not
provide an estimate for how thick the glass would need to be or
dimensions for railroad equipment designed to secure the glass.
Moreover, as APTA acknowledges in its comment, it is not clear that the
glass would need to be thicker.\12\ Based on the results of the Volpe
Center report referenced in the NPRM, FRA does not expect that any
retrofitting will be required.\13\
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    \12\ APTA comment at page 2 (asserting that a thicker piece of
glazing ``may'' be required as a result of the steel ball test).
    \13\ The Volpe Center report, summarized in the NPRM, shows that
the glazing samples tested that withstood the cinder block test also
withstood the steel ball test when a spall shield was added. The
spall shield was less than a millimeter thick. Based on the Volpe
Center research, if a manufacturer adds a spall shield to glazing
material that passes the cinder block test, it will pass the steel
ball test and have no impact on its installation on railroad
equipment, whether or not it would otherwise require a spall shield
to pass the steel ball test.
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    FRA appreciates and looks forward to the results of APTA's working
group addressing glazing on railroad equipment, but for the reasons
noted above, FRA finds that allowing for the alternative steel ball
testing methodology as proposed in the NPRM is in the best interests of
safety at this time. The alternative testing methodology will provide
industry flexibility needed to continue testing in a standardized and
repeatable way

under appendix A, and accordingly, this final rule adopts the
alternative steel ball testing methodology as proposed in the NPRM.

IV. Section-by-Section Analysis

    As noted above, with one exception (noted in the analysis of
appendix A below), FRA is adopting the proposals set forth in the NPRM
without change.
    This section-by-section analysis is intended to explain the
rationale for each revised or new provision of the rule. The regulatory
changes are organized by section number and with the exception of the
analysis of appendix A, the analyses below are consistent with those
included in the NPRM.

223.3 Application

    Section 223.3 sets forth the scope and applicability of part 223.
Former paragraph (b) excluded from part 223's applicability certain
types of equipment and operations. For the reasons explained in the
NPRM, this final rule adds 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. 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) provides that risk is presumed low, unless the railroad
operating the equipment has knowledge, or FRA makes a showing, that
specific risk factors exist. As explained in the NPRM, FRA will
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,
and 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.

223.9 Requirements for Equipment Built or Rebuilt After June 30, 1980

    As proposed in the NPRM, this final rule revises the heading of
this section to reflect the requirements of the section more accurately
(i.e., to reflect that the section applies to equipment built or
rebuilt after June 30, 1980).

223.11 Requirements for Locomotives Built or Rebuilt Prior to July 1,
1980

    Similar to the revisions to Sec.  223.9 discussed directly above,
this final rule revises the heading of this section to reflect the
requirements of the section more accurately (i.e., to reflect that the
section applies to locomotives built or rebuilt prior to July 1, 1980).

223.13 Requirements for Cabooses Built or Rebuilt Prior to July 1, 1980

    Similar to the revisions to Sec. Sec.  223.9 and 223.11 discussed
directly above, this final rule revises the heading of this section to
reflect the requirements of the section more accurately (i.e., to
reflect that the section applies to cabooses built or rebuilt prior to
July 1, 1980).

223.15 Requirements for Passenger Cars Built or Rebuilt Prior to July
1, 1980

    Similar to the revisions to Sec. Sec.  223.9, 223.11, and 223.13
discussed directly above, this final rule revises the heading of this
section to reflect the requirements of the section more accurately
(i.e., to reflect that the section applies to passenger cars built or
rebuilt prior to July 1, 1980).

Appendix A to Part 223--Certification of Glazing Materials

    As discussed above, and as proposed in the NPRM, FRA is revising
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. A detailed
analysis of those changes is included in the NPRM document, with the
only difference being the changes to paragraphs b.(10) and (11) adopted
in this final rule.
    In the NPRM, FRA proposed to revise paragraphs b.(10) and (11), to
incorporate by reference ASTM standards C90-16a, ``Standard
Specification for Loadbearing Concrete Masonry Units,'' 2016, and ASTM
C33/33M-18, ``Standard Specification for Concrete Aggregates,'' 2018.
In proposing to incorporate these standards by reference, FRA noted
that both specifications ``provide options for the precise cinder block
makeup used in the large object impact tests.'' After further
consideration, however, FRA recognizes that other concrete compositions
can be used to construct structurally sound cinder blocks. Accordingly,
FRA is not adopting the NPRM's proposal to incorporate by reference
ASTM standards C90-16A and C33/C33M-18. Instead, FRA is revising
paragraphs b.(10) and (11) to make clear that any structurally sound
cinder blocks may be used to meet the testing requirements of appendix
A and to identify the two ASTM standards as examples of compositions
known to be structurally sound.

V. Regulatory Impact and Notices

A. Executive Order 12866

    This final 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 this final
rule will not exceed the $100 million annual threshold defined by
Executive Order 12866. FRA estimates that over a ten-year period of
analysis this final rule will at least maintain, and possibly enhance,
safety, while also providing net benefits for both the industry and
FRA.
    This final rule amends part 223 in two substantive ways. First,
this final rule codifies long-standing waivers that exclude old rail
equipment from the certified safety window glazing requirements,
provided the railroads that use such equipment comply with FRA-required
operating conditions. Second, this final rule adds a steel ball test
option to appendix A that a manufacturer may use in lieu of the
currently specified cinder block test option.
    FRA complied with Office of Management and Budget (OMB) Circular A-
4 when accounting for benefits, costs, and net benefits relative to a
baseline condition. Typically, a baseline condition represents a best
judgement about what the world would look like in absence of the
regulatory intervention.\14\ Without this final rule, small railroads
that operate under part 223 waiver exemption would every five years
need to apply for a renewal of their part 223 waiver exemption. Also,
without this final rule manufacturers would continue using a customized
cinder block when performing Type I and Type II large object impact
tests to certify that new window glazing materials are part 223
complaint.
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    \14\ ``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.
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Waivers From Part 223
    As discussed above in ``II. Background,'' the Safety Board found
that mandating railroads with older equipment install certified glazing

would be cost-prohibitive. Such costs would include materials and labor
costs, including the costs to remove existing window frames in older
equipment and replace them with new frames that are compatible with
compliant glazing to support the increased thickness and weight of
glazing in modern window designs. The cost to install certified glazing
may exceed the value of the rail equipment itself. Moreover, FRA
expects that even if such installation took place, limited safety-
related benefits would follow, because older equipment generally
operates at low speeds and in areas with low safety risk. For these
reasons, FRA previously granted these part 223 waiver requests.
    When estimating benefits and costs that comes from the final rule,
this analysis assumed a baseline where FRA's approval of part 223
waivers resembles historical practice. Historically, FRA reviews two
types of waivers: (1) ongoing or long-standing waivers \15\ and (2)
test, pilot waivers, or waivers that FRA approved for a period of time
less than 10 years. Long-standing waivers cover more familiar and
proven technology and have previously undergone the renewal process.
Renewal requests for long-standing waivers require less effort for
applicants and FRA, as compared to renewal requests for waivers. For
this economic analysis, FRA defines long-standing waivers as any active
waiver that FRA approved for a period of time of 10 years or longer.
Test or pilot waivers, or waivers that FRA approved for a period of
time less than 10 years, require extensive technical analysis and
investigation by stakeholders during the initial waiver application and
first waiver renewal.
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    \15\ FRA has recently used the term ``long-standing'' waivers in
the rule on ``Miscellaneous Amendments to Brake System Standards and
Codification of Waivers,'' 85 FR 80544 (Dec. 11, 2020). See also the
rule's corresponding regulatory impact analysis (RIA) in
www.regulations.gov, docket no. FRA-2018-0093, notice no. 2,
document ``2130-AC67 final rule RIA to 12-10-2020.''
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    A waiver's benefits and costs are based on industry application of
technologies and procedures, which are presumably less restrictive than
the underlying regulation. However, continuation of a waiver (and the
associated net benefits and regulatory relief) is subject to the
uncertainty regarding whether FRA will approve the waiver renewal
request during the periodic waiver review process. Currently, only
Class III railroads operated rail equipment under waiver from part 223.
Based upon previous requests of waiver from part 223, FRA estimates the
final rule will provide net benefits to 58 of the 733 (8 percent) Class
III railroads.\16\
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    \16\ Based on the railroads that are required to report
accident/incidents to FRA under part 225, as of 2021 FRA estimates
there are approximately 768 Class III railroads, with 733 of them
operating on the general system.
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    Long-standing waivers (i.e., active waivers that FRA initially
approved more than 10 years ago) from part 223 reflect familiar
uncertified glazing technologies and safe operating conditions for
which FRA has granted short line railroads waiver renewals. Because
railroads operated under uncertified window glazing permitted by
waivers under FRA-required operating conditions for a long time, they
have essentially ``built-in'' these waivers into their business
practices. FRA historic inspection data indicates that railroads have
operated safely with these waivers for approximately 25 years, so it is
reasonable to assume that FRA would continue to approve any such waiver
renewal request going forward. In a world without this final rule, or
the baseline condition, the continuation of these long-standing waivers
is a reasonable estimation. Therefore, a net benefit that comes from
this final rule is the reduced burden on Class III railroads to submit
part 223 waiver renewal requests for long-standing waivers and the
reduced burden on FRA to process such waiver renewal requests.
    Costs for railroads to renew more recent waivers (i.e., test, pilot
waivers, or waivers that FRA approved for less than 10 years) are
higher than the costs for renewing long-standing waivers. First, more
recent waivers are subject to more extensive review and analysis. FRA
may also modify conditions of more recent waivers by imposing
restrictions to maintain and in some cases enhance safety. Second, more
recent waiver renewal requests include a degree of uncertainty, because
FRA's renewal of more recent waivers is not assured. Therefore, this
analysis estimates the impact from codifying more recent waivers as the
costs and benefits that result from the waiver application process and
safety procedures in lieu of the regulatory requirements absent this
final rule. This analysis also estimates the reduced burden on FRA
associated with processing waiver renewal requests.
Addition of Steel Ball Test Option in Appendix A
    This final rule revises appendix A to allow manufacturers to use a
steel ball in lieu of a cinder block when conducting Type I and Type II
large object impact tests. This revision will not result in any costs,
because stakeholders may still use a cinder block when complying with
the large object impact test requirements. However, this analysis
determined that after the implementation of this final rule that all
manufacturers will use the steel ball test option, as the steel ball
test option costs less relative to the existing cinder block test
option.
    Overall, this analysis found that the final rule will codify window
glazing waivers, reduce window glazing manufacturers' window glazing
certification costs, and eliminate the Federal Government's requirement
to review and approve these waivers. As shown in Table A, issuing the
final rule will result in net benefits of $946,000 (Present Value (PV),
3%) and $769,000 (PV, 7%).

                 Table A--Summary of Total Net Benefits Over the 10-Year Period, Rounded $1,000
                                                 [2020 dollars]
----------------------------------------------------------------------------------------------------------------
                                                           Present value                    Annualized
         Type of benefit           Undiscounted  ---------------------------------------------------------------
                                                        3%              7%              3%              7%
----------------------------------------------------------------------------------------------------------------
Railroads (Waiver Submissions)..         $43,000         $37,000         $30,000          $4,000          $4,000
Manufacturers (Steel Ball                 77,000          65,000          54,000           8,000           8,000
 Option)........................
Government (FRA Waiver Review)..       1,000,000         844,000         685,000          99,000          98,000
                                 -------------------------------------------------------------------------------
    Total Net Benefits..........       1,121,000         946,000         769,000         111,000         109,000
----------------------------------------------------------------------------------------------------------------

Railroad Net Benefits
    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 such
vehicles. During the waiver approval process, FRA field inspectors
verify safe conditions and contact local police, if appropriate.\17\
FRA historical records of the part 223 waiver approval process confirm
that, from 1998 to April 2020, no railroad operating under waiver from
part 223's requirements 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,\18\ 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. The final rule also adds a steel ball test option to
the window glazing certification process. FRA expects this amendment
will reduce glazing certification costs.
---------------------------------------------------------------------------

    \17\ District inspectors verify safe conditions with the police
if they find any evidence window glazing has been damaged or
replaced.
    \18\ Standard operating procedures include periodic updates of
the FRA Motive Power and Equipment Compliance Manual, which will be
expected with the issuance of this rule.
---------------------------------------------------------------------------

    Immediately prior to this final rule, 58 railroads operated rolling
stock under 68 waivers from part 223. Absent this final rule, in order
to continue to operate under waiver to part 223, these railroads had to
resubmit waiver applications every 5 years. Based on historical waiver
application submissions, FRA expects the annual number of part 223
waiver submission would vary over a 10-year period of analysis. For
example, there were 8 waiver submissions in 2021 (originated in 2001,
2006, and 2011) and FRA expects that railroads would submit 11 waiver
renewal requests in 2022 (originated in 2002, 2007, 2012, and 2017).
Over the next 10 years, this analysis estimates that railroads would
submit two waiver renewal requests for each active part 223 waiver, or
136 waiver renewal requests over the 10-year period of analysis.\19\
For the purpose of estimating net benefits that would come from
codifying part 223 waivers, this analysis assumes that year 1 net
benefits would follow from the observed number of waiver renewal
applications in calendar year 2021. Continuing, this analysis assumes
that year 2 net benefits related to codifying part 223 waivers would
follow from the anticipated reduction in wavier renewal applications
expected to occur in calendar year 2022. In Table B, FRA presents the
railroad industry's net benefits based upon the following inputs.\20\
---------------------------------------------------------------------------

    \19\ Total number of waiver renewals: 10-year period = Number of
existing waivers (68) * number of waiver renewal requests per waiver
(2) = 136.
    \20\ Inputs are based on expertise drawn from FRA's Motive Power
and Equipment Division, unless otherwise noted.
---------------------------------------------------------------------------

     There are 68 active waiver exemptions to the glazing
standards.
     Over the 10-year period of analysis, railroads will submit
two waiver exemption requests for each active waiver exemption to the
glazing standards.
     This analysis assumes that Class III railroad
administrative burden follows similarly to Class I railroad
administrative burden. As such, this analysis used Surface
Transportation Board (STB) wage data to estimate the railroad
administrative burdened \21\ wage rate of $77.44 per hour.\22\
---------------------------------------------------------------------------

    \21\ The ``burdened'' wage rate multiplies the STB wage rate by
a factor of 1.75 to account for fringe and overhead benefits.
    \22\ Source: STB, 2020, professional and administrative
employees, group #200; burdened wage rate = $44.25 * 1.75 benefits
rate = $77.44, https://www.stb.gov/reports-data/economic-data/quarterly-wage-ab-data/.
---------------------------------------------------------------------------

     Each railroad waiver submission requires 4 hours of
railroad administrative labor.
     The copying and mailing cost for a waiver renewal
submission is $10 per waiver renewal submission.
     Total cost per waiver equals $319.75.\23\
---------------------------------------------------------------------------

    \23\ Total costs per waiver renewal submission = 4 (labor hours
per waiver) * $77.44 (hourly labor burdened wage rate) + $10
(mailing costs) = $319.75.
---------------------------------------------------------------------------

    Over the 10-year period of analysis, these Class III railroads will
realize a net benefit of about $37,000 (PV, 3%) and $30,000 (PV, 7%).

                                     Table B--Railroad Net Benefits by Year
                                                 [2020 dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                Discount rate
                      Year                           Number of     Undiscounted  -------------------------------
                                                      waivers                           3%              7%
----------------------------------------------------------------------------------------------------------------
Year 1..........................................               8          $2,558          $2,483          $2,391
Year 2..........................................              11           3,517           3,315           3,072
Year 3..........................................              14           4,477           4,097           3,654
Year 4..........................................              18           5,756           5,114           4,391
Year 5..........................................              17           5,436           4,689           3,876
Year 6..........................................               8           2,558           2,142           1,705
Year 7..........................................              11           3,517           2,860           2,190
Year 8..........................................              14           4,477           3,534           2,605
Year 9..........................................              18           5,756           4,411           3,131
Year 10.........................................              17           5,436           4,045           2,763
                                                 ---------------------------------------------------------------
    Total.......................................             136          44,000          37,000          30,000
                                                 ---------------------------------------------------------------
    Annualized..................................  ..............  ..............           4,300           4,200
----------------------------------------------------------------------------------------------------------------

Manufacturer Net Benefits
    This analysis concluded that the amendment of appendix A that
allows manufacturers to use a steel ball when conducting Type I and
Type II large object impact tests will reduce manufacturers' testing
costs and technical development costs. Previously, these tests required
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. Cinder blocks meeting these
part 223 specification parameters are no longer manufactured.
Therefore, in order to perform the large impact tests using a cinder
block, materials engineers need to customize currently available cinder
blocks. This additional customization step increases the testing labor
burden by two hours, and increases the testing burden beyond what was
anticipated when part 223 was promulgated.
    The Volpe Center report discussed in the NPRM,\24\ verified that a
12-lb steel ball can achieve the same kinetic energy as the cinder
block. In addition, manufacturers may use the same steel ball for all
glazing certification tests that they perform, while they must replace
each cinder block after one glazing certification test because a cinder
block's rectangular edge becomes damaged beyond repair during each Type
I and Type II large object impact test. When estimating the
manufacturers' labor and material net benefits that come from amending
appendix A to allow for the steel ball test option, this analysis made
the following assumptions: \25\
---------------------------------------------------------------------------

    \24\ 87 FR 22852.
    \25\ Assumptions are based on expertise from FRA's Motive Power
and Equipment Division.
---------------------------------------------------------------------------

     Worldwide there are five railroad vehicle glazing
manufacturers; three domestic and two foreign manufacturers.\26\
---------------------------------------------------------------------------

    \26\ This analysis does not consider the impact on foreign
manufacturers.
---------------------------------------------------------------------------

     Each domestic manufacturer will conduct five tests per
year and will save approximately $500 per test. In total, the 3
domestic manufacturers will conduct 15 tests per year and save
approximately $7,500 per year.
     Each cinder block is damaged and rendered unusable after
each Type I and Type II large object impact test.
     Manufacturers will purchase and prepare four cinder blocks
per test pass. Two cinder blocks per test pass are required; one cinder
block for the Type I test and one cinder block for the Type II test.
However, this analysis included two additional cinder blocks per test
to ensure that manufacturers had extra cinder blocks on hand in case
issues arose with the initial test pass.
     The cost of a cinder block is $1.50 or $6 for four cinder
blocks.
     Each cinder block test requires 10 labor hours, e.g., 2
hours to customize the cinder block and 8 hours to run the cinder block
test.
     After FRA implements this final rule, when conducting the
Type I and Type II large object impact tests, all glazing manufacturers
will use the steel ball option.
     Each steel ball costs $75. This analysis assumes each of
the three domestic manufacturers will purchase one steel ball at the
beginning of the first year of the analysis for a combined cost of
$225. These one-time costs are subtracted from the year 1 net benefits
shown in Table D. Steel ball costs are not included in Table C per test
net benefits. FRA assumes that manufacturers will continue to use the
steel ball test option after year 10, but this analysis does not assign
any residual value to the steel ball after the 10-year period of
analysis.
     Materials engineers conduct the certification tests at a
burdened hourly wage of $84.60.\27\
---------------------------------------------------------------------------

    \27\ United States Bureau of Labor Statistics, Occupational
Employment and Wages, May 2020, 17-2131 Materials Engineer,
Materials engineer wage rate = $48.34. Materials engineer burdened
rate = 1.75 * $48.34 = $84.60. Source: https://www.bls.gov/oes/2020/may/oes_nat.htm.
---------------------------------------------------------------------------

    As shown in Table C, this analysis expects that each domestic
window glazing manufacturer will save approximately $500 per test by
using the steel ball test option in lieu of the existing cinder block
test. Over the 10-year period of analysis, the three domestic
manufacturers will realize a net benefit of about $65,000 (PV, 3%) or
$54,000 (PV, 7%). The final rule will also result in unquantified
environmental benefits as glazing manufacturers reduce the purchase and
landfill disposal of cinder blocks, yet FRA lacks sufficient data to
quantify these environmental benefits.
---------------------------------------------------------------------------

    \28\ Total cinder block tests cost per year = 15 * ($6 + $847) =
$12,790, where $6.00 is the per test cinder block cost and $847 is
the per test labor cost.
    \29\ The steel ball costs per test include 4 hours of labor.
Four labor hours * $84.60 = $339. There are 15 tests per year. Labor
cost of steel ball tests per year = 15 tests * $339 = $5,080.

                                                           Table C--Manufacturer Net Benefits
                                                                     [2020 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           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            $847            $853             $90         $12,700    \28\ $12,790
Steel Ball after first year.............               0               4             339             339               0           5,080      \29\ 5,080
                                         ---------------------------------------------------------------------------------------------------------------
    Annual net benefits.................  ..............  ..............  ..............  ..............  ..............  ..............           7,710
    Net benefits per test...............  ..............  ..............  ..............  ..............  ..............  ..............             514
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                   Table D--Manufacturer Net Benefits by Year
                                                 [2020 dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                Present value
                      Year                           Number of     Undiscounted  -------------------------------
                                                       tests                            3%              7%
----------------------------------------------------------------------------------------------------------------
Year 1..........................................              15          $7,474          $7,256          $6,985
Year 2..........................................              15           7,699           7,257           6,725
Year 3..........................................              15           7,699           7,046           6,285

Year 4..........................................              15           7,699           6,841           5,874
Year 5..........................................              15           7,699           6,641           5,489
Year 6..........................................              15           7,699           6,448           5,130
Year 7..........................................              15           7,699           6,260           4,795
Year 8..........................................              15           7,699           6,078           4,481
Year 9..........................................              15           7,699           5,901           4,188
Year 10.........................................              15           7,699           5,729           3,914
                                                 ---------------------------------------------------------------
    Total.......................................             150          76,766          65,456          53,865
----------------------------------------------------------------------------------------------------------------

Potential Industry Cost Due to Legal Liability and Equipment Redesign
or Retrofitting

    FRA received one public comment about the economic impact that the
proposed rule may have on the industry. APTA's comment expressed
support for FRA's proposal to incorporate the identified waivers into
the regulations and generally for the new steel ball testing option.
However, APTA also expressed concern that the proposed steel ball test
is more stringent than the existing cinder block test method. APTA
asserted that, in order to pass the more stringent steel ball test, an
entity may need to re-design or retrofit its railroad equipment in
order to accommodate a thicker piece of glazing material. APTA's
comment did not provide any evidence or analysis to support this
assertion, nor did it specify the type of adjustments that an entity
would need to make to railroad equipment or glazing material. Based on
input from FRA subject matter experts, this analysis concluded that
APTA's general comment about the need to redesign or retrofit equipment
to accommodate thicker glass is without merit.

Proposal to Incorporate by Reference Two American Society for Testing
and Materials Specifications

    As relevant to the existing cinder block test in appendix A that
FRA has historically required, in the proposed rule FRA planned to
incorporate by reference two ASTM specifications (ASTM specifications
C33/C33M-18 and C90-16a) to ensure proper cement construction and
integrity of the blocks. Had FRA required manufacturers to comply with
ASTM specification standards, manufacturers may have had a de minimis
cost associated with purchasing the aforementioned ASTM standards, if
the manufacturers did not currently subscribe to ASTM's standards
subscription service. Upon further review and consideration, however,
FRA recognizes that other concrete compositions can be used to
construct structurally sound cinder blocks. Accordingly, FRA is not
adopting the NPRM's proposal to incorporate by reference the two ASTM
standards so that only cinder blocks meeting those standards could be
used under appendix A. Rather, FRA is revising appendix A to make clear
that any structurally sound cinder blocks may be used to meet the
testing requirements of appendix A. Therefore, ASTM specifications C33/
C33M-18 and C90-16a are merely examples of compositions known to be
structurally sound. Because this change from the NPRM to the final rule
removes the proposed incorporation by reference of specific ASTM
standards, there is no related cost. Also, the removal of the proposed
incorporation by reference adds an unquantified benefit of additional
flexibility to manufacturers with regard to where they may source
cinder blocks.

Federal Government Net Benefits

    Table E and Table F, below, estimate the Federal Government net
benefits expected from this final rule. FRA will no longer receive
numerous petitions from railroads requesting waiver from compliance
with the window glazing requirements, which will 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. As part of the waiver
process, an FRA inspector spends one to two days investigating each
glazing waiver renewal request and reporting the findings.
Additionally, 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 net benefit from eliminating one railroad window
glazing waiver review and decision is approximately $7,400 at the
burdened wage rate. FRA net benefits estimates are based on the
reduction of labor hours at the 2020 Office of Personnel Management
(OPM) pay grade levels as shown below.\30\ Hours were considered at the
burdened wage rate by multiplying the actual wage rate by 175 percent.
---------------------------------------------------------------------------

    \30\ U.S. Office of Personnel Management (OPM), 2020 Salaries &
Wages. OPM general wage rates are listed here: GS 12 District Staff
from Rest of the US (RUS) 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 (DCB):
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 net benefits of eliminating the Federal
Government's burden of reviewing 136 waivers over the next 10 years.
Codifying the active glazing waivers will allow FRA inspectors to
perform other essential inspection duties and will also allow
headquarters staff to spend their time on other issues that may have a
larger impact on maintaining and improving safety on the general
railroad system.

                             Table F--Government Administrative Net Benefits by Year
----------------------------------------------------------------------------------------------------------------
                                                                   Burdened wage           Discount rate
                      Year                           Number of         rate      -------------------------------
                                                      waivers      undiscounted         3%              7%
----------------------------------------------------------------------------------------------------------------
Year 1..........................................               8         $58,836         $57,123         $54,987
Year 2..........................................              11          80,900          76,256          70,661
Year 3..........................................              14         102,964          94,226          84,049
Year 4..........................................              18         132,382         117,620         100,994
Year 5..........................................              17         125,027         107,850          89,143
Year 6..........................................               8          58,836          49,275          39,205
Year 7..........................................              11          80,900          65,779          50,380
Year 8..........................................              14         102,964          81,280          59,926
Year 9..........................................              18         132,382         101,460          72,007
Year 10.........................................              17         125,027          93,032          63,558
                                                 ---------------------------------------------------------------
    Total.......................................             136       1,000,219         844,000         685,000
                                                 ---------------------------------------------------------------
    Annualized..................................  ..............  ..............          99,000          97,500
----------------------------------------------------------------------------------------------------------------

    Over the 10-year period of analysis, the final rule will codify
window glazing waivers, reduce window glazing manufacturers' window
glazing certification costs, and eliminate the Federal Government's
requirement to review and approve these waivers. The final rule will
result in net benefits of $946,000 (PV, 3%) or $769,000 (PV, 7%).

                 Table G--Summary of Total Net Benefits Over the 10-Year Period, Rounded $1,000
                                                 [2020 dollars]
----------------------------------------------------------------------------------------------------------------
                                                           Present value                    Annualized
         Type of benefit           Undiscounted  ---------------------------------------------------------------
                                                        3%              7%              3%              7%
----------------------------------------------------------------------------------------------------------------
Railroads (Waiver Submissions)..         $43,000         $37,000         $30,000          $4,000          $4,000
Manufacturers (Steel Ball                 77,000          65,000          54,000           8,000           8,000
 Option)........................
Government (FRA Waiver Review)..       1,000,000         844,000         685,000          99,000          98,000
                                 -------------------------------------------------------------------------------
    Total Net Benefits..........       1,121,000         946,000         769,000         111,000         109,000
----------------------------------------------------------------------------------------------------------------

B. Regulatory Flexibility Act and Executive Order 13272; Certification

    The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et seq.)
and Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency
review of proposed and final rules to assess their impacts on small
entities. When an agency issues a rulemaking proposal, the RFA requires
the agency to ``prepare and make available for public comment an
initial regulatory flexibility analysis'' which will ``describe the
impact of the proposed rule on small entities.'' \31\ Section 605 of
the RFA allows an agency to certify a rule, in lieu of preparing an
analysis, if the proposed rulemaking is not expected to have a
significant economic impact on a substantial number of small entities.
Out of an abundance of caution, FRA prepared an initial regulatory
flexibility analysis (IRFA) to accompany the NPRM, which noted no
expected significant economic impact on a substantial number of small
entities. FRA made the IRFA available for public comment and did not
receive any comments that related to small entities.
---------------------------------------------------------------------------

    \31\ 5 U.S.C. 603(a).
---------------------------------------------------------------------------

    This final rule is amending Safety Glazing Standards for exterior
windows

on railroad equipment to codify long-standing waivers and add a new
testing option to improve consistency of glazing testing. This final
rule will apply to 58 of the 733 (8 percent) Class III railroads that
are small entities and three manufacturers that are not small
entities.\32\ As enumerated in the IRFA and in the full Regulatory
Impact and Notices section of this final rule, over the 10-year period
of analysis, issuing this final rule will result in 136 fewer waiver
requests by Class III railroads. The net benefit from this final rule
that comes to Class III railroads is $30,000 (PV, 7%). Per year on
average, this final rule will result in a net benefit of $51 for each
affected Class III railroad. The final rule also includes a steel ball
test method that manufacturers may use instead of the existing cinder
block test method. However, the three domestic manufacturers impacted
by this final rule are not small businesses.\33\
---------------------------------------------------------------------------

    \32\ Based on the railroads that are required to report
accident/incidents to FRA under part 225, FRA estimates there are
approximately 768 Class III railroads, with 733 of them operating on
the general system.
    \33\ 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.
---------------------------------------------------------------------------

    When developing the final rule, FRA considered the impact that the
final rule would have on small entities. To provide flexibility in
cinder block method testing, FRA made a change from the NPRM to the
final rule. In appendix A, FRA removed the proposed incorporation by
reference of specific ASTM standards and made it clear that the use of
any structurally sound cinder block meeting the required dimensions of
appendix A is allowable for the large object impact test. This change
provides additional flexibility in the sourcing of cinder blocks and
also reduces the burden of manufacturers to obtain the stated ASTM
specifications standard.
    FRA received one public comment from APTA that relates to the
impact that the NPRM may have on small entities. As stated above, FRA
did not make any changes from the NPRM stage to the final rule stage in
response to APTA's comment because APTA did not provide sufficient
support for its claim that window frames would require retrofitting or
redesigning as a result of this rule. Additionally, with regard to
concerns about legal liability that APTA raised in its comment, FRA
notes that a manufacturer may comply with the glazing test by using
either the cinder block or steel ball.
    Consistent with the findings of the IRFA, and a determination that
the economic impact of the rule will not be significant, the FRA
Administrator hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities.
    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).

C. Paperwork Reduction Act

    FRA submitted the information collection requirements in this rule
to OMB for approval under the Paperwork Reduction Act of 1995.\34\
Please note that any revised requirements, as specified in this rule,
are marked by asterisks (*) in the table below. The sections that
contain the new and former information collection requirements under
OMB Control No. 2130-0525 and the estimated time to fulfill each
requirement are as follows:
---------------------------------------------------------------------------

    \34\ 44 U.S.C. 3501 et seq.
    \35\ The dollar equivalent cost is derived from the STB's 2020
Full Year Wage A&B data series using the appropriate employee group
hourly wage rate that includes a 75-percent overhead charge.

----------------------------------------------------------------------------------------------------------------
                                 Respondent      Total annual     Average time     Total annual     Total cost
         CFR section              universe        responses       per response     burden hours     equivalent
                              ...............  (A)............  (B)............  (C) = A * B....  (D) = C * wage
                                                                                rate \35\
----------------------------------------------------------------------------------------------------------------
223.3--Application--Locomoti  733 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 rule will eliminate the need for railroads to submit waiver petitions (and
 locomotives built or            repeated extensions of those waivers every 5 years) from part 223 for certain
 rebuilt prior to July 1,        older railroad equipment and eliminate the Federal Government's need to review
 1980, equipped with                        and approve the waiver petitions and extension requests.
 certified glazing in all
 locomotive cab windows
 (*Note: Revised
 requirement.*).
                             -----------------------------------------------------------------------------------
--(d)(1) Locomotive placed    733 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 rule will eliminate the need for railroads to submit waiver petitions (and
 cabooses built or rebuilt       repeated extensions of those waivers every 5 years) from part 223 for certain
 prior to July 1, 1980,          older railroad equipment and eliminate the Federal Government's need to review
 equipped with certified                    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   733 railroads..  1 renewal        4 hours........  4.00 hours.....         $309.76
 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. Those
 passenger cars operating at
 Class 3 speeds (or higher)
 will need still need to
 submit a waiver; for those
 operating below Class 3
 speeds, the rule will
 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)--         3 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      3 manufacturers  25,000 marked    480 pieces per   52.08 hours....       $3,119.07
 marking of each unit of                        pieces.          hour.
 glazing material.
                             -----------------------------------------------------------------------------------
    Total...................  733 railroads +  25,426           N/A............  262 hours......         $15,839
                               3                responses.
                               manufacturers.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. For information or a copy of the
paperwork package submitted to OMB, contact Ms. Hodan Wells,
Information Collection Clearance Officer, at<PHONE_NUMBER>, or at
[email protected].
    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. The current OMB control number is 2130-
0525.

D. Federalism Implications

    Executive Order 13132, Federalism,\36\ 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.
---------------------------------------------------------------------------

    \36\ 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------

    FRA has analyzed this rule in accordance with the principles and
criteria contained in Executive Order 13132. FRA has determined that
this 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
this final 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 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 rule consistent with the National
Environmental Policy

Act (NEPA; 42 U.S.C. 4321 et seq.), the Council on 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.\37\ Specifically, FRA has determined that this 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.''
---------------------------------------------------------------------------

    \37\ 40 CFR 1508.4.
---------------------------------------------------------------------------

    The main purpose of this rule is to revise FRA's Safety Glazing
Standards to maintain and in some cases enhance safety, while reducing
unnecessary costs and providing regulatory flexibility. This rule will
not directly or indirectly impact any environmental resources and will
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.\38\ FRA has concluded
that no such unusual circumstances exist with respect to this rule, and
it meets the requirements for categorical exclusion under 23 CFR
771.116(c)(15).
---------------------------------------------------------------------------

    \38\ 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.\39\ FRA has also
determined that this rule does not approve a project resulting in a use
of a resource protected by Section 4(f).\40\
---------------------------------------------------------------------------

    \39\ See 54 U.S.C. 306108.
    \40\ 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 5610.2C 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 rule under Executive Order 12898 and the DOT
Order and has determined it will not cause disproportionately high and
adverse human health and environmental effects on minority populations
or low-income populations.

H. Unfunded Mandates Reform Act of 1995

    Under section 201 of the Unfunded Mandates Reform Act of 1995,\41\
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 rule will 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.
---------------------------------------------------------------------------

    \41\ 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.'' \42\ FRA evaluated this rule under
Executive Order 13211 and determined that this regulatory action is not
a ``significant energy action'' within the meaning of Executive Order
13211.
---------------------------------------------------------------------------

    \42\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------

List of Subjects in 49 CFR Part 223

    Glazing standards, Penalties, Railroad safety, Reporting and
recordkeeping requirements.

The Final Rule

    For the reasons discussed in the preamble, FRA is amending part 223
of title 49, Code of Federal Regulations, as follows:

PART 223--SAFETY GLAZING 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; and
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) 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 making it
structurally sound, such as referenced in ASTM, International (ASTM)
Specification C33 or ASTM C90; 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 sidefacing 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 composition making it
structurally sound, such as referenced in ASTM C33-18 or ASTM C90;
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.
* * * * *

    Issued in Washington, DC.
Amitabha Bose,
Administrator.
[FR Doc. 2022-24469 Filed 11-16-22; 8:45 am]
BILLING CODE 4910-06-P