[Federal Register Volume 87, Number 221 (Thursday, November 17, 2022)]
[Rules and Regulations]
[Pages 68913-68925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24469]



[[Page 68913]]

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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revise outdated section headings.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: 202-493-6322, email: 
[email protected]; or Michael Masci, Senior Attorney, Office of 
the Chief Counsel, telephone: 202-493-6037, 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

[[Page 68914]]

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

[[Page 68915]]

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

[[Page 68916]]

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

[[Page 68917]]

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


[[Page 68918]]

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


[[Page 68919]]

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

[[Page 68920]]

 
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.

[[Page 68921]]



                      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

[[Page 68922]]

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.*).

[[Page 68923]]

 
--(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 202-868-9412, 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

[[Page 68924]]

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.

* * * * *

[[Page 68925]]


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


