[Federal Register Volume 79, Number 187 (Friday, September 26, 2014)]
[Proposed Rules]
[Pages 57856-57868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-22919]


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

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 223

[Docket No. FR-2012-0103]
RIN 2130-AC43


Safety Glazing Standards

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

ACTION: Notice of proposed rulemaking (NPRM).

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

SUMMARY: FRA proposes to revise and clarify existing regulations 
related to the use of glazing materials in the windows of locomotives, 
passenger cars, and cabooses. This proposed rule would reduce paperwork 
and other economic burdens on the rail industry by removing a 
stenciling requirement for locomotives, passenger cars, and cabooses 
that are required to be equipped with glazing. This proposed rule would 
also clarify the application of the regulations to antiquated equipment 
and to the end locations of all equipment to provide more certainty to 
the rail industry and more narrowly address FRA's safety concerns. FRA 
is also proposing to clarify the definition of passenger car and 
separately to update the rule by removing certain compliance dates that 
are no longer necessary.

DATES: (1) Written comments must be received by November 25, 2014. 
Comments received after that date will

[[Page 57857]]

be considered to the extent possible without incurring additional 
expenses or delays.
    (2) FRA anticipates being able to resolve this rulemaking without a 
public, oral hearing. However, if FRA receives a specific request for a 
public, oral hearing prior to October 27, 2014, one will be scheduled 
and FRA will publish a supplemental notice in the Federal Register to 
inform interested parties of the date, time, and location of any such 
hearing.

ADDRESSES: Comments: Comments related to Docket No. FRA-2012-0103 may 
be submitted by any of the following methods:
     Web site: Federal eRulemaking Portal, http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., W12-140, Washington, DC 
20590.
     Hand Delivery: Room W12-140 on the Ground level of the 
West Building, 1200 New Jersey Avenue SE., W12-140, Washington, DC, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to http://www.regulation.gov including any personal information. 
Please see the Privacy Act heading in the Supplementary Information 
section of this document for Privacy Act information related to any 
submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
Room W12-140 on the Ground level of the West Building, 1200 New Jersey 
Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Steve Zuiderveen, Office of Safety 
Assurance and Compliance, Motive Power & Equipment Division, RRS-14, 
Federal Railroad Administration, 1200 New Jersey Avenue SE., W35-216, 
Washington, DC 20590 (telephone 202-493-6337), or Michael Masci, Trial 
Attorney, Office of Chief Counsel, Federal Railroad Administration, 
1200 New Jersey Avenue SE., W31-115, Washington, DC 20590 (telephone 
202-493-6037).

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

    Beginning on January 18, 2011, the President issued a set of 
Executive Orders (EO) which require Federal agencies to review existing 
regulations and reduce the regulatory burden on industry, when 
appropriate. (See EO 13563 and EO 13610, discussed in more detail in 
section II of this preamble). During FRA's review of FRA's Safety 
Glazing Standards in 49 CFR part 223 \1\ (``part 223''), FRA identified 
potential changes to requirements related to stenciling and 
``antiquated equipment'' as opportunities to reduce paperwork and other 
economic burdens on the rail industry without adversely impacting 
safety. This NPRM proposes to modify these requirements.
---------------------------------------------------------------------------

    \1\ Unless otherwise specified, all references to CFR sections 
and parts in this document refer to Title 49 of the CFR.
---------------------------------------------------------------------------

    Specifically, this NPRM proposes to eliminate as unnecessary the 
requirement to stencil inside walls of locomotive cabs, passenger cars, 
and cabooses to indicate that the equipment contains window glazing 
certified in compliance with FRA's Safety Glazing Standards. Further, 
this NPRM proposes to use a rolling, 50-year calculation to determine 
whether equipment is ``antiquated'' based on its build date--rather 
than a fixed build date of 1945 or earlier--thereby eliminating the 
cost of fitting equipment with compliant glazing for equipment that is 
more than 50 years old and used only for certain purposes. To maintain 
safety in connection with the proposed change to the application of the 
term ``antiquated equipment,'' FRA is proposing to clarify requirements 
for emergency windows in occupied passenger cars operated in intercity 
passenger or commuter trains, as well as clarify requirements for 
locomotives, passengers, and cabooses that are currently equipped with 
compliant glazing.
    Separately, this NPRM proposes changes based on a Railroad Safety 
Advisory Committee (RSAC) recommendation. In 2013, FRA's RSAC 
recommended that FRA clarify the application of the glazing 
requirements in part 223 to address requirements for the next 
generation of high speed trainsets. FRA agrees that aspects of the RSAC 
recommendation are appropriate to adopt generally for all equipment, 
and is therefore proposing to do so in this NPRM. Specifically, FRA 
believes that amending the application of the phrase ``end facing 
glazing location'' in part 223 would reduce the economic burden on the 
rail industry without adversely impacting safety.
    In addition, FRA is proposing to clarify the application of 
requirements related to private cars, and to eliminate compliance 
phase-in dates that are no longer necessary.

Economic Impact

    FRA believes that the proposals in this NPRM are consistent with 
current industry practices and would reduce the current regulatory 
burden on the rail industry.
    The estimated quantified benefits or cost savings of this proposal 
total $993,057. The present value, discounted at 7 percent, of the 
estimated quantified benefits is approximately $747,436. FRA concludes 
that the industry would incur only a minimal cost of approximately 
$6,000 to take advantage of the flexibilities proposed in this rule. 
Therefore, FRA estimates the net benefit (cost savings) of this 
proposed rule is approximately $741,436 (PV, 7 percent).

II. Background and General Overview of the Proposal

    Pursuant to its general statutory rulemaking authority, FRA 
promulgates and enforces rules as part of a comprehensive regulatory 
program to address all areas of railroad safety, including: Railroad 
track, signal systems, communications, rolling stock, operating 
practices, passenger train emergency preparedness, alcohol and drug 
testing, locomotive engineer certification, and workplace safety. See 
49 U.S.C. 20103 and 49 CFR 1.89. In the area of safety glazing 
standards, FRA has issued regulations, generally found at part 223. FRA 
continually reviews its regulations and revises them as needed to 
ensure that the regulatory burden on the rail industry is not 
excessive; to clarify the application of existing requirements and 
remove requirements that are no longer necessary; and to keep pace with 
emerging technology, changing operational realities and safety 
concerns.
    On January 18, 2011, the President issued EO 13563 (Improving 
Regulation and Regulatory Review). EO 13563 requires agencies to 
periodically conduct retrospective analysis of their existing rules to 
identify requirements that may be outmoded, ineffective, insufficient, 
or excessively burdensome. The EO further requires that agencies 
modify, streamline, expand, or repeal any problematic regulatory 
provisions identified during the course of their review. During FRA's 
retrospective analysis of part 223, the agency identified requirements 
related to antiquated equipment in particular as being potentially 
burdensome to the regulated community. The language

[[Page 57858]]

used in these requirements is broad and not explicitly defined in the 
rule text, and FRA's existing interpretive guidance has the potential 
of imposing a progressively larger burden on a small segment of the 
industry as time passes. This rulemaking proposes to modify the Safety 
Glazing Standards to clarify the application of these requirements and 
reduce their potential economic burden on the rail industry.
    Further, on May 10, 2012, the President issued EO 13610 
(Identifying and Reducing Regulatory Burdens). EO 13610 requires 
agencies to take continuing steps to reassess regulatory requirements, 
and where appropriate, to streamline, improve, or eliminate those 
requirements. EO 13610 emphasizes that agencies should prioritize 
``initiatives that will produce significant quantifiable monetary 
savings or significant quantifiable reductions in paperwork burdens.'' 
In response to these instructions, DOT carried out a Paperwork 
Reduction Act initiative that focused on identifying and eliminating 
paperwork burdens on the rail industry, when appropriate. FRA conducted 
a comprehensive review of its regulations based on the guidance 
provided in EO 13610 and determined that the elimination of the 
stenciling requirement of Sec.  223.17 is an opportunity to reduce the 
paperwork burden on the rail industry without adversely impacting 
safety. (Section 223.17 had also been identified as a candidate for 
elimination by EO 13563). Accordingly, this rule proposes to eliminate 
this stenciling requirement
    In addition to the changes being proposed in response to these EOs, 
FRA is proposing changes based on an RSAC recommendation addressing the 
application of the safety glazing standards for the next generation of 
high speed trainsets. The RSAC is a forum for developing consensus 
recommendations on rulemakings and other safety program issues that was 
established by FRA in March 1996. The RSAC includes representation from 
all of the agency's major stakeholders, including railroads, labor 
organizations, suppliers and manufacturers, and other interested 
parties. When appropriate, FRA assigns a task to the RSAC, and after 
consideration and debate, the RSAC may accept or reject the task. If 
accepted, the RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. A working group may establish one or more 
task forces and task groups to develop facts and options on a 
particular aspect of a given task.
    In March 2013, after the RSAC accepted a task related to high speed 
rail, the Engineering Task Force Tier III Cab Glazing Task Group (Task 
Group) was established to assist the RSAC's Engineering Task Force with 
issues concerning safety glazing. The Task Group discussed glazing 
during four meetings held throughout 2013. During the Task Group's last 
meeting, the Group reached consensus on a recommendation to apply 
safety glazing standards to trainsets operating at speeds up to 220 
miles per hour, including requirements applicable to end facing glazing 
locations that focus on the exposed exterior of the trainsets. On June 
14, 2013, the full RSAC adopted the Task Group's recommendation and 
presented it to FRA for consideration. Based on FRA's experience 
enforcing the requirements related to passenger equipment, FRA believes 
that aspects of the RSAC recommendation are appropriate to adopt 
generally for all equipment, not only high speed trainsets, and is 
therefore proposing to do so in this NPRM. FRA believes it would be 
helpful to clarify for equipment operating at conventional speeds what 
exterior locations are intended to be considered end facing glazing 
locations, so as to reduce the economic burden on the rail industry 
without adversely impacting safety.
    Finally, FRA's review of part 223 identified several compliance 
phase-in dates in the regulation that have passed and are no longer 
necessary. To improve the plain language of these requirements and make 
the regulation more clear and concise, FRA is proposing to remove the 
dates that have passed.

A. Removal of the Requirement To Stencil Certified Glazing Compliance 
on Inside Walls of Locomotive Cabs, Passenger Cars, and Cabooses

    FRA's review of its regulations pursuant to EO 13563 and EO 13610 
identified as a candidate for elimination Sec.  223.17, which requires 
that locomotive cabs, passenger cars, and cabooses be stenciled inside 
on an interior wall with the type of glazing present in the equipment. 
In particular, EO 13610 requires agencies to take continuing steps to 
reassess regulatory requirements and, where appropriate, to streamline, 
improve, or eliminate those requirements. EO 13610 emphasizes that 
agencies should prioritize ``initiatives that will produce significant 
quantifiable monetary savings or significant quantifiable reductions in 
paperwork burdens.'' In 2012, FRA conducted a comprehensive review of 
its regulations based on the guidance provided in EO 13610 and 
determined that the removal of the certified glazing stenciling 
requirement inside of locomotive cabs, passenger cars, and cabooses is 
an opportunity to reduce the paperwork burden on the rail industry 
without adversely impacting safety. The certified glazing stencil was 
originally intended to be an aid for demonstrating compliance. It was 
required as an easily identifiable method for railroads to demonstrate 
compliance with the safety glazing requirements contained in part 223, 
when large numbers of affected equipment were not equipped with part 
223 glazing. However, the need for this requirement has diminished 
since compliance was phased in for equipment existing at the time part 
223 was promulgated. (See the below discussion of the proposal to 
remove compliance phase-in dates from part 223.) Moreover, in practice, 
FRA has found that the stencil is not always accurate, and that each 
window needs to be examined to determine whether proper glazing has 
been applied. An easy and reliable way to determine the compliance of 
each window individually is to read the permanent marking on each 
window panel that is required by appendix A to part 223. Each window 
that is equipped with certified glazing is required to be permanently 
marked by the manufacturer to indicate the type of glazing that has 
been applied, and that marking remains unchanged for each glazing 
panel's service life. Appendix A requires glazing to be tested and then 
marked according to the tests that have been passed as either ``FRA 
Type I'' or ``FRA Type II'' glazing. By considering the location of the 
window and examining the marking, FRA inspectors can apply the 
requirements and determine whether the glazing use is compliant.
    FRA believes that the markings on the windows are more reliable 
than the stenciling located inside the equipment in which they are 
installed, and that the markings provide sufficient information to 
determine compliance with the safety glazing standards. Therefore, FRA 
concludes that the stenciling requirement of Sec.  223.17 is no longer 
necessary, and this rule proposes to eliminate the requirement for a 
certified glazing stencil located inside locomotive cabs, passenger 
cars, and cabooses.

B. Clarification of the Term ``Antiquated Equipment''

    The term ``antiquated equipment'' is used in part 223 to identify 
equipment

[[Page 57859]]

that is excluded from the application of part 223, provide that the 
equipment is operated in only specified types of service (i.e., 
excursion, educational, recreational or private transportation). 
However, the meaning of the term is not clear based on the specific 
language contained in the regulation. Part 223 does not provide a 
definition for the term ``antiquated equipment,'' nor does the context 
in which the term is used in the regulation clearly indicate its 
meaning. During the implementation of part 223, FRA identified the need 
to clarify the term ``antiquated equipment'' to help ensure its 
consistent application. FRA developed guidance interpreting the term in 
1989, and it was provided by FRA's Associate Administrator for Safety 
to the agency's regional safety management. Subsequently, the 
interpretation was made part of a 1990 FRA technical bulletin. For 
purposes of this NPRM, FRA will reference the 1990 FRA technical 
bulletin, which has been included in the public docket for this 
rulemaking proceeding.
    The interpretation indicated that the term ``antiquated 
equipment,'' as used in part 223, means equipment that was built in 
1945 or earlier; however, it does not explain the basis for 
distinguishing between equipment that was built in 1945 or earlier from 
equipment that was built after 1945. FRA believes that the year 1945 
was generally chosen as the cut-off date because it was the end of 
World War II, the date was approaching approximately 50 years prior to 
the date that the guidance was issued, and the approaching 50-year 
difference in time was consistent with FRA's treatment of other 
equipment. Based on FRA's experience, after 50 years certain equipment 
becomes antiquated and justifies distinct treatment due to significant 
changes in technology, including design standards and the materials 
used for construction. For example, this distinction is used in the 
Freight Car Safety Standards that are contained in 49 CFR part 215.
    In part 215, the operation of freight cars that are more than 50 
years old, measured by the date of original construction, is restricted 
unless the operating railroad successfully petitions FRA for continued 
use. This requirement reflects FRA's general belief that after 50 years 
freight equipment is typically outdated and often not in the best 
condition given its years of service. Accordingly, for purposes of 
safety, FRA believes that after 50 years of age, freight equipment 
should not be treated the same as newer equipment when used in certain 
types of service. As an industry practice, cars that are more than 50 
years old are generally used only in limited freight service. However, 
passenger cars that are more than 50 years old have been successfully 
used for commuter service, which to be clear is not the type of service 
that is identified in part 223 as being for an educational, excursion, 
recreational, or private transportation purpose.
    The term ``antiquated equipment'' has been applied in the 
enforcement of part 223 consistent with FRA's 1990 technical bulletin 
without significant opposition, until the recent industry response to 
FRA's efforts to implement section 415 of the Rail Safety Improvement 
Act of 2008 (section 415), Public Law 110-432, Division A. Section 415 
required the Secretary of Transportation \2\ to conduct a study related 
to tourist and historical railroads for compliance with Federal rail 
safety laws. While conducting the section 415 study, FRA utilized the 
year 1945 as a reference point in applying the glazing requirements. 
Because the 1990 technical bulletin did not clearly specify that the 
term ``antiquated equipment'' could be subject to a rolling 50-year 
calculation, an equitable reading of the technical bulletin could 
conclude that the year 1945 was intended to be a fixed date for 
determining whether equipment is antiquated. In other words, a person 
could reasonably understand that all equipment built in 1945 or earlier 
is antiquated, while all built after 1945 is not.
---------------------------------------------------------------------------

    \2\ The Secretary delegated the responsibility to carry out this 
mandate to FRA. See 49 CFR 1.89(b).
---------------------------------------------------------------------------

    Following the section 415 study, FRA initiated several enforcement 
actions against owners of equipment in service that was more than 50 
years old, but built after 1945. Many in the rail industry expressed 
surprise at these enforcement actions and, as a result, approximately 
175 petitions for waiver from the relevant requirements contained in 
part 223 were filed with FRA pertaining to equipment built after 1945. 
In addition to requesting relief from part 223, many petitioners argued 
that based on their understanding of the term ``antiquated equipment,'' 
as used in part 223 and based on FRA's enforcement history (i.e., the 
fact that they never before had received notice of non-compliance from 
FRA), they believed that their equipment was antiquated and therefore 
not subject to part 223. Many of the petitioners were represented by 
the American Association of Private Railroad Car Owners (AAPRCO), which 
in 2009 on behalf of its members submitted a letter expressing concern 
over FRA's application of the term ``antiquated equipment.'' FRA 
responded to AAPRCO, explaining that use of the fixed date of 1945 to 
determine whether equipment is antiquated was consistent with FRA's 
interpretive guidance.
    Subsequently, EO 13563 was issued requiring agencies to conduct a 
retrospective analysis of their existing rules. As noted above, the 
analysis was intended to identify requirements that may be outmoded, 
ineffective, insufficient, or excessively burdensome, and lead agencies 
to modify, streamline, expand, or repeal such rules in accordance with 
what has been learned. During FRA's retrospective analysis of the 
Safety Glazing Standards, FRA identified the application of its 
existing interpretation of the rule language related to antiquated 
equipment as potentially creating an unnecessary burden on the 
industry. The cost of retrofitting all non-compliant equipment that was 
built more than 50 years prior to the current date but after 1945 with 
compliant glazing would result in a considerable expense to the rail 
industry, would likely be too costly for some small businesses to 
continue operating, and would provide a nominal safety benefit. Based 
on this information, FRA is proposing to modify the term ``antiquated 
equipment'' to reduce the burden on the rail industry. FRA believes 
that the use of a rolling 50-year calculation to determine whether 
equipment is antiquated would significantly reduce the burden on the 
rail industry by eliminating the cost of fitting equipment with 
compliant glazing for equipment that is older than 50 years and used 
only for certain purposes. In other words, FRA believes that the term 
antiquated equipment, for purposes of part 223, should mean equipment 
that is more than 50 years old, not equipment that was more than 50 
years old as of a certain, fixed date.
    This clarification would also better align the Safety Glazing 
Standards with other Federal rail safety requirements that address 
older equipment. The existing safety glazing requirements distinguish 
between older and newer equipment by use of the term ``antiquated 
equipment,'' but do so in a way that is not necessarily consistent with 
other Federal rail safety requirements. For example, because of its age 
and technology, a caboose that was built in 1960 receives particular 
treatment as older equipment under Sec.  215.203 and must be stenciled 
as required by Sec.  215.303, but that same caboose is essentially 
treated by the Safety Glazing Standards as newer equipment that was 
built in 2014, because it is not considered ``antiquated

[[Page 57860]]

equipment'' in accordance with the interpretation of the term in FRA's 
guidance. This proposal would help classify equipment more consistently 
because of its age.

C. Clarification of the Terms ``Private Car'' and ``Passenger Car''

    Previous amendments to part 223, which revised the definition of 
the term ``passenger car'' for the purpose of clarifying 
contemporaneous revisions to the regulation, may have caused some 
unintentional confusion regarding the application of the glazing 
requirements to ``private cars.'' In 1998 and 1999, FRA issued 
comprehensive regulations for intercity passenger and commuter train 
safety, amending part 223 among other things to add requirements 
related to emergency windows in intercity passenger and commuter 
trains, which part 223 has long required for passenger cars with 
certified glazing to facilitate occupant egress. See 63 FR 24630 (May 
4, 1998 final rule on Passenger Train Emergency Preparedness) and 64 FR 
25540 (May 12, 1999 final rule on Passenger Equipment Safety 
Standards), as amended at 73 FR 6370 (February 1, 2008 final rule on 
Passenger Train Emergency Systems). The amendments to part 223 included 
revising the definition of the term ``passenger car'' by specifically 
excluding from the definition a ``private car.'' 63 FR 24675. This 
revision of the term ``passenger car'' was intended to clarify that 
requirements being established for passenger cars in intercity 
passenger and commuter train service only, such as new requirements in 
former Sec.  223.9(d) for marking emergency windows, did not apply to 
private cars. See 63 FR 24675. It was not intended to change the 
existing application of the rest of part 223 to private cars. Yet, the 
substantive requirements contained in Sec. Sec.  223.9 and 223.15 
specify that they apply to ``passenger cars,'' which by a literal 
reading of the current definition of the term ``passenger car,'' in 
Sec.  223.5, would seemingly exclude private cars.
    However, as evidenced by the ``Application'' section of part 223 
(particularly Sec.  223.3(b)(3)), FRA's intent was to continue to apply 
the glazing requirements of part 223 to private cars as previously 
specified, as no general exclusion was suggested or made. Id. FRA 
believes that the rail industry has the same understanding. The 
application of the glazing requirements with regard to private cars is 
clear, as provided in Sec.  223.3. Section 223.3(a) states that the 
requirements contained in part 223 apply to any railroad rolling 
equipment that is operated on standard gauge track that is a part of 
the general railroad system of transportation. Section 223.3(b) 
excludes equipment that is used for private transportation purposes, 
but only if it is historical or antiquated. Nonetheless, to alleviate 
any confusion, FRA is proposing to amend the definition of the term 
``passenger car,'' contained in Sec.  223.5, by removing the last 
sentence of the existing definition that indicates ``[t]his term does 
not include a private car.''

D. Emergency Windows for Occupied Passenger Cars That Are More Than 50 
Years Old But Built After 1945 and Operated in an Intercity Passenger 
or Commuter Train

    This rule proposes to clarify the application of the emergency 
window requirements that are contained in part 223 to passenger cars 
that are more than 50 years old but built after 1945 by incorporating 
provisions in waivers granted by FRA's Railroad Safety Board (see, 
e.g., FRA-2010-0080), without changing the existing regulatory 
framework for the emergency window requirements. Both parts 223 and 238 
of this chapter contain requirements related to emergency windows that 
apply to various types of passenger vehicles (see, e.g., Sec. Sec.  
223.8, 223.9, 223.15, and 238.113). For the purposes of emergency 
window and other requirements, part 238 distinguishes between 
categories of passenger vehicles--namely, ``passenger cars'' and 
``passenger equipment.'' A passenger car, as defined by Sec.  238.5, is 
a subset of ``passenger equipment'' and must comply with the emergency 
window exit requirements that are contained in Sec.  238.113. By 
contrast, the part 238 emergency window exit requirements found in 
Sec.  238.113 do not apply to all passenger equipment, as defined by 
Sec.  238.5. Instead, passenger equipment not subject to Sec.  238.113, 
including a private car, is required to be equipped with emergency 
windows as provided for in Sec. Sec.  223.9(c) or 223.15(c), as 
appropriate. In this proposed rule, the application of the emergency 
window requirements to passenger equipment and passenger cars in part 
238 would remain unchanged. However, a change to part 223 is needed to 
incorporate provisions of existing waivers of the requirements of part 
223 that require emergency windows, in light of the proposed change 
concerning ``antiquated equipment,'' discussed above.
    Specifically, in connection with the proposed change to the 
application of the term ``antiquated equipment,'' FRA intends to revise 
the existing rule language contained in Sec.  223.3(b) expressly to 
state that the exclusion provided in Sec.  223.3(b)(3) for ``antiquated 
equipment,'' for purposes of emergency windows, does not apply to 
occupied passenger cars that were built after 1945 when they operate in 
an intercity passenger or commuter train in service covered by part 238 
(``part 238 train''). See 49 CFR 238.3. An occupied private car that is 
operated in a train covered by the requirements of part 238 is not 
required to be equipped with emergency windows under part 238; these 
cars are required to be equipped with emergency windows only under 
Sec. Sec.  223.9(c) or 223.15(c) of part 223, if they are not 
``historical or antiquated equipment'' and used for solely an 
excursion, educational, recreational, or private purpose as applicable 
under Sec.  223.3(b)(3). See, e.g., 73 FR 6378. However, FRA's Railroad 
Safety Board has granted a series of waivers that permit such cars that 
are neither ``historical or antiquated'' to operate in a part 238 train 
without certified glazing, but as a condition to the waivers require 
that the cars be equipped with at least four emergency windows in 
accordance with Sec.  223.9(c) or Sec.  223.15(c). The waivers make 
clear that the minimum of four emergency windows (two on each side) 
must be clearly marked. As specified in Sec.  223.5, an ``emergency 
window'' means a segment of a side facing glazing panel that has been 
designed to permit rapid and easy removal from inside the car during an 
emergency. The waivers further make clear that any tool required to 
remove or break the window must be provided and be clearly marked, and 
legible and understandable instructions must be provided for its use. 
FRA proposes to revise part 223 to be consistent with the conditions of 
the waivers that FRA has granted, in connection with the proposed 
change to the application of the term ``antiquated equipment.''
    FRA notes that passenger cars not in themselves covered by the 
requirements of part 238 that are occupied for an excursion, 
educational, recreational, or private purpose and operate in a 
passenger train covered by the requirements of part 238 will be subject 
to the same conditions as the train to which they are coupled. Such 
cars will be exposed to high speeds over long distances in the same 
manner as the other cars in the passenger train. In addition, the end 
frame doors of such cars may not line up with the end frame doors on 
some passenger cars subject to the requirements of part 238 to which 
they are coupled (e.g., a National Railroad Passenger Corporation 
(Amtrak) Superliner). Consequently,

[[Page 57861]]

during an accident or incident, emergency windows may be required as a 
primary means of egress, due to a lack of end-of-car egress. Yet, 
passenger cars occupied for an excursion, educational, recreational, or 
private purpose that are not equipped with part 223 compliant glazing 
and emergency windows might only be equipped with safety glass that 
cannot easily shatter or otherwise be easily removed without the use of 
a tool or other instrument, and therefore may not permit effective 
egress for occupants during an accident or incident. For such occupied 
cars that are built after 1945 and more than 50 years old that operate 
in a part 238 train, emergency windows are needed to maintain the level 
of safety currently provided.
    Consequently, in clarifying the application of part 223 to 
``antiquated equipment'' by proposing to use a rolling 50-year date, 
rather than a fixed date, FRA believes it necessary to continue 
requiring passenger cars built after 1945 that are more than 50 years 
old to comply with the requirements for emergency windows contained in 
Sec.  223.9(c) or Sec.  223.15(c) if they are occupied and operate in 
an intercity or commuter passenger train subject to part 238. FRA does 
not believe it appropriate to remove the current requirement that such 
cars be equipped with these emergency windows, especially as the number 
of such cars considered ``antiquated'' would be enlarged by this 
rulemaking. However, consistent with the conditions of the waivers that 
FRA has granted, a tool or other instrument may be used to remove or 
break the window if the tool or other instrument is clearly marked and 
legible and understandable instructions are provided for its use.

E. Locomotives, Passenger Cars, and Cabooses That Are More Than 50 
Years Old But Built After 1945 and Equipped With Compliant Glazing

    In connection with the proposed change to the application of the 
term ``antiquated equipment,'' this NPRM proposes that all locomotives, 
passenger cars, and cabooses that are more than 50 years old but built 
after 1945 and equipped with glazing that complies with the glazing 
test standards in appendix A to part 223 must remain in compliance with 
those standards. FRA does not intend to diminish the level of safety 
currently required in broadening the definition of the term 
``antiquated equipment.'' Accordingly, FRA does not intend for windows 
that are currently in compliance with the impact test standards in 
appendix A to part 223 to be replaced with windows that are not. 
Moreover, given that such equipment would already have in place the 
necessary framing arrangements to support part 223-compliant glazing, 
FRA expects the window panels to be replaced with like window glazing. 
Of course, if equipment built after 1945 that is more than 50 years old 
is not already fitted with compliant window glazing, then such window 
panels (along with their supporting, framing arrangements) do not have 
to be installed.

F. Clarification of the Term ``End Facing Glazing Location''

    Consistent with the RSAC Task Group's recommendation and to ensure 
consistent application of the relevant requirements, FRA proposes to 
revise the definition of ``end facing glazing location'' to make clear 
that the location means an ``exterior'' location and by expressly 
identifying locations that are not to be considered ``end facing 
glazing location[s]''--namely, the coupled ends of multiple-unit (MU) 
locomotives or other equipment that is semi-permanently connected to 
each other in a train consist; and end doors at locations other than 
the cab end of a cab car of MU locomotive.
    The existing definition of ``end facing glazing location'' in Sec.  
223.5 does not specify that ``end facing'' is intended to mean only a 
location at the exterior of a piece of equipment. As a result, the 
proposed rule would clarify that FRA does not consider windows that 
face an open end of a car but are located in the interior of the car to 
be end facing: They would not require Type I glazing. For example, a 
vestibule door that is set back from the end frame and corner structure 
of a passenger car and contains a window would not require Type I 
glazing for the window. In this example, even if the vestibule window 
is exposed to the outside of the car, Type I glazing is not required. 
Type I glazing is not needed because the angularity of attack from a 
projectile to that window is significantly reduced by the presence of 
the structures at the end of the car located ahead of the plane of the 
glazing material, as compared to a window aligned with the end frame of 
the car; therefore, the likelihood of projectile contact is minimized.
    Further, the existing definition of ``end facing glazing location'' 
contains no qualification with respect to the forward or rear end or 
the direction of travel of the equipment. In other words, all forward 
and all rearward facing windows could be considered end facing. This 
application of the term may have resulted in some confusion related to 
FRA's enforcement of relevant glazing requirements, which FRA intends 
to clarify in this NPRM. Accordingly, FRA proposes to revise the 
definition to make clear that the term ``end facing glazing location'' 
does not apply to the coupled ends of MU locomotives or other equipment 
that is semi-permanently connected to each other in a train consist, 
nor does it apply to end doors at locations other than the cab end of a 
cab car or MU locomotive. The most notable example of an end door at a 
location other than the cab end of a cab car or MU locomotive is an end 
frame door on an Amfleet passenger car; the rule proposes to make clear 
that windows in such doors do not require Type I glazing.
    At the same time, FRA is also proposing to revise the existing 
definition of ``side facing glazing location'' to clarify that the 
locations that would be clearly excluded from the definition of ``end 
facing glazing location'' would require Type II glazing. The existing 
safety glazing standards require that all side facing glazing locations 
be equipped with Type II glazing. See appendix A to part 223. Because 
the coupled ends of MU locomotives or other equipment that is semi-
permanently connected to each other in a train consist, and end doors 
at locations other than the cab end of a cab car or MU locomotive would 
be specifically excluded from the definition of ``end facing glazing 
location,'' those locations would not require Type I glazing. By 
specifically including them in the definition for ``side facing glazing 
location,'' the rule would make clear that those locations require Type 
II glazing at a minimum. In this regard, for example, locomotives, 
cabooses, and passenger cars built or rebuilt after June 30, 1980, must 
be equipped with certified glazing in all windows, as required by Sec.  
223.9. The term ``certified glazing'' refers to Type I and Type II 
glazing, as specified in appendix A to part 223. Accordingly, for such 
equipment locations where certified glazing is required, either Type I 
or Type II glazing must be present.

G. Removal of Compliance Phase-In Dates That Have Passed and Are No 
Longer Applicable

    This NPRM proposes to remove outdated, compliance phase-in dates 
and related language to make the regulation clearer. When the Safety 
Glazing Standards were published on December 31, 1979, the regulation 
included compliance dates to phase-in its requirements for equipment in 
existence at the time, in addition to requirements for new equipment. 
See 44 FR 77328, 77353-77354. As amended by final rule on December 27, 
1983, the

[[Page 57862]]

regulation still includes these compliance dates. See 48 FR 56955-
56955. For example in Sec.  223.15, ``Requirements for existing 
passenger cars,'' the regulation provides that certain passenger cars 
have until June 30, 1984, to comply with the requirements for certified 
glazing and emergency windows. Now that the compliance phase-in period 
has long passed, the phase-in dates can be removed without changing the 
substantive effect of the requirements. To make the requirements easier 
to understand, FRA proposes to remove such dates and related language 
from part 223.

III. Section-by-Section Analysis

    This section-by-section analysis of the proposed rule is intended 
to explain the rationale for each section of the proposed rule, 
together with the discussion in section II of this proposed rule. The 
proposed regulatory changes are organized by section number. FRA seeks 
comments on all proposals made in this NPRM.

A. Proposed Amendments to Part 223

Section 223.3 Application
    As discussed in section II.B. of this NPRM, proposed paragraph 
(b)(3) would clarify the meaning of ``antiquated equipment'' by 
replacing the term ``antiquated'' with the phrase ``more than 50 years 
old.'' This change would clarify that the exclusion provided in this 
section from the application of the rule for ``antiquated equipment'' 
is available for equipment that is more than 50 years old, measured 
from the time of original construction. This is intended to be a 
rolling, 50-year calculation, and no longer the fixed date of 1945 or 
earlier. As such, some of the equipment that is subject to the full 
requirements of part 223 today (because it is not yet more than 50 
years old) would be subject to exclusion from certain requirements when 
the equipment ages sufficiently and becomes more than 50 years old. To 
qualify for the available exclusion when the equipment becomes more 
than 50 years old, the rule would continue to require that the 
equipment be used only for excursion, educational, recreational, or 
private transportation purposes. Please note that paragraph (c), 
discussed below, qualifies the exclusion available under this paragraph 
(b)(3); both paragraphs must be read together.
    In addition, paragraph (b)(4) would be revised to correct the 
reference to Sec.  223.5. Paragraph (b)(4) currently contains an 
exclusion for ``[l]ocomotives that are used exclusively in designated 
service as defined in Sec.  223.5(m).'' The reference to Sec.  223.5(m) 
is outdated, as paragraph lettering was removed from Sec.  223.5, 
Definitions, when that section was reorganized and revised by the May 
4, 1998 Passenger Train Emergency Preparedness final rule. See 63 FR 
24630, 24642. Removing the reference to paragraph (m) of Sec.  223.5 
for internal consistency would have no substantive effect on the 
application of the rule, as the definition of ``designated service'' in 
Sec.  223.5 would remain unchanged. Accordingly, FRA is proposing to 
remove the reference to paragraph (m) of Sec.  223.5 so that paragraph 
(b)(4) would instead refer to Sec.  223.5 generally.
    Proposed paragraph (c) would be added to clarify the requirements 
that are applicable to equipment that would otherwise be subject to the 
exclusion in paragraph (b)(3) of this section for ``antiquated 
equipment,'' to maintain safety in connection with the proposed change 
to the application of this term for equipment built after 1945 but more 
than 50 years old. As discussed in sections II.D. and II.E. of this 
NPRM, FRA is proposing to clarify requirements for emergency windows in 
occupied passenger cars operated in intercity passenger or commuter 
trains, as well as clarify requirements for locomotives, passenger 
cars, and cabooses that are currently equipped with compliant glazing. 
Proposed paragraph (c) applies, as specified, to each locomotive, 
passenger car, and caboose built after 1945 that is more than 50 years 
old and is used only for excursion, educational, recreational, or 
private transportation purposes. Specifically, proposed paragraph 
(c)(1) would require each such passenger car to comply with the 
emergency window requirements contained in Sec.  223.9(c) or Sec.  
223.15(c), as appropriate, when it is occupied and operates in an 
intercity passenger or commuter train subject to part 238 of this 
chapter. A tool or other instrument may be used to remove or break an 
emergency window if the tool or other instrument is clearly marked and 
legible and understandable instructions are provided for its use. 
Proposed paragraph (c)(2) would require each such locomotive, passenger 
car, and caboose that is equipped with glazing that complies with the 
glazing requirements contained in appendix A to this part as of [DATE 
OF PUBLICATION OF FINAL RULE IN Federal Register], to remain in 
compliance with those requirements. Accordingly, the level of safety 
currently provided by the regulation would not be diminished.
Section 223.5 Definitions.
    FRA is proposing to revise three terms in this section: ``end 
facing glazing location,'' ``passenger car,'' and ``side facing glazing 
location.''
    Specifically, FRA would revise the existing definition of ``end 
facing glazing location'' by making clear that the location means an 
``exterior'' location and by expressly identifying locations that are 
not to be considered ``end facing glazing location[s]''--namely, the 
coupled ends of MU locomotives or other equipment that is semi-
permanently connected to each other in a train consist; and end doors 
at locations other than the cab end of a cab car of MU locomotive. FRA 
is also proposing to make clear that dome and observation cars are 
included in the category of cars subject to the application of this 
definition. Please see section II.F. of this NPRM for a fuller 
discussion of the proposed change to the definition of ``end facing 
glazing location.''
    In addition, this rule would revise the existing definition of 
``side facing glazing location'' by including the following within the 
definition: The coupled ends of MU locomotives or other equipment that 
is semi-permanently connected to each other in a train consist; and end 
doors at locations other than the cab end of a cab car or MU 
locomotive. Instead of considering such locations to be end facing 
glazing locations requiring Type I glazing, FRA is proposing that these 
locations be considered side facing glazing locations requiring only 
Type II glazing, due to the generally lower risk of an exterior 
projectile impacting the window surface.
    This rule would also revise the existing definition of ``passenger 
car'' by removing the last sentence, which states that ``[t]his term 
does not include a private car.'' The proposed revision would clarify 
that a private car can be considered a passenger car. Please see 
section II.C. of this NPRM for a full discussion of this proposal.
Section 223.11 Requirements for Existing Locomotives
    As discussed in section II.G. of this NPRM, the proposed amendments 
to this section would remove the compliance phase-in dates and related 
language from the glazing requirements for existing locomotives. As 
originally promulgated in 1979 and amended in 1983, part 223 phased in 
requirements for glazing standards by generally allowing the rail 
industry until June 30, 1984, to fit their existing locomotives with 
compliant glazing. The rule

[[Page 57863]]

included an exception for locomotives that had their windows damaged by 
vandalism. Windows that were damaged due to vandalism were required to 
be replaced with compliant glazing sooner than the 1984 compliance 
phase-in date.
    Proposed paragraph (c) would remove the compliance phase-in date, 
June 30, 1984. This date is no longer needed now that it has long 
passed. Proposed paragraph (d) would remove the language that requires 
windows that are damaged by vandalism to be replaced with compliant 
glazing sooner than the 1984 compliance phase-in date. This requirement 
is no longer needed now that the compliance phase-in period has long 
passed and all locomotives, other than yard locomotives excluded by 
this section or locomotives that satisfy the limited exclusions 
provided in Sec.  223.3, are required to be equipped with compliant 
glazing.
Section 223.13 Requirements for Existing Cabooses
    As discussed in section II.G. of this NPRM, the proposed amendments 
to this section would remove the compliance phase-in dates and related 
language from the existing requirements related to cabooses. As noted 
above, the existing rule established glazing standards, but also 
generally allowed the rail industry until June 30, 1984, to fit their 
existing cabooses with compliant glazing. The rule included an 
exception for cabooses that had their windows damaged by vandalism. 
Windows that were damaged due to vandalism were required to be replaced 
with compliant glazing sooner than the 1984 compliance phase-in date.
    Proposed paragraph (c) would remove the compliance phase-in date, 
June 30, 1984. This date is no longer needed now that it has long 
passed. Proposed paragraph (d) would remove the language that requires 
windows that are damaged by vandalism to be replaced with compliant 
glazing sooner than the 1984 compliance phase-in date. This requirement 
is no longer needed now that the compliance phase-in period has long 
passed and all cabooses, other than those that satisfy the limited 
exclusions provided in Sec.  223.3, are required to be equipped with 
compliant glazing. In this regard, FRA invites comment whether this 
section needs to be retained in the final rule and specifically whether 
its requirements could be consolidated with those for new cabooses in 
Sec.  223.9(b) in a revised or new section.
Section 223.15 Requirements for Existing Passenger Cars
    As discussed in section II.G. of this NPRM, the proposed amendments 
to this section would remove the compliance phase-in dates and related 
language from the existing requirements related to passenger cars. As 
noted above, the existing rule generally allowed the rail industry 
until June 30, 1984, to fit their passenger cars with compliant 
glazing. Windows that were damaged due to vandalism were required to be 
replaced with compliant glazing sooner than the 1984 compliance phase-
in date.
    Proposed paragraph (c) would remove the compliance phase-in date, 
June 30, 1984. This date is no longer needed now that it has long 
passed. Proposed paragraph (d) would remove the language that requires 
windows that are damaged by vandalism to be replaced with compliant 
glazing sooner than the 1984 compliance phase-in date. This requirement 
is no longer needed now that the compliance phase-in period has long 
passed and all passenger cars, other than those that satisfy the 
limited exclusions provided in Sec.  223.3, are required to be equipped 
with compliant glazing. In this regard, FRA invites comment whether 
this section needs to be retained in the final rule and specifically 
whether its requirements could be consolidated with those for new 
passenger cars in Sec.  223.9(c) in a revised or new section.
Section 223.17 Identification of Equipped Locomotives, Passenger Cars 
and Cabooses
    Section Sec.  223.17 currently requires stenciling on the interior 
wall of each locomotive cab, passenger car, and caboose to identify 
that the equipment is fully equipped with glazing material that 
complies with the requirements of part 223. This requirement is no 
longer necessary, and the proposed rule would remove this entire 
section. As a result, this type of stenciling would no longer be 
required. For a full discussion of this proposal, please see section 
II.A. of this NPRM.
Appendix B to Part 223--Schedule of Civil Penalties
    Appendix B to part 223 contains a schedule of civil penalties for 
use in connection with this part. FRA intends to revise the schedule of 
civil penalties in issuing the final rule to reflect revisions made to 
part 223. Because such penalty schedules are statements of agency 
policy, notice and comment are not required prior to their issuance. 
See 5 U.S.C. 553(b)(3)(A). Nevertheless, FRA invites comments.

IV. Regulatory Impact and Notices

Executive Orders 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures, and determined to be non-significant under 
both Executive Orders 12866 and 13563 and DOT policies and procedures 
(44 FR 11034; February 26, 1979). FRA has prepared and placed in the 
docket a regulatory analysis addressing the economic impact of this 
proposed rule.
    The analysis includes a quantitative evaluation of the benefits of 
this proposed rule. For entities choosing to take advantage of the new 
flexibilities and cost savings proposed, FRA estimates that there may 
be a minimal cost burden associated with this proposed rule. 
Specifically, small hammers or other tools may need to be purchased for 
occupants to use to break windows for emergency egress in passenger 
cars now considered ``antiquated equipment'' in that they are built 
after 1945 but are more than 50 years old, when these passenger cars 
are operated in intercity passenger or commuter trains. Additionally, 
railroads would probably modify existing specifications for new 
equipment orders to remove the requirement to stencil interior walls of 
the equipment as containing window glazing in full compliance with part 
223. The present value of total voluntary costs affected entities may 
incur is estimated to be approximately $6,000 over a 10-year period.
    Overall, the benefits of this rule would greatly outweigh any costs 
that may be incurred. The revisions specified in this proposed rule 
would eliminate the cost of stenciling, reduce the cost of certain new 
passenger cars, and reduce the number of waivers requested by the 
railroad industry. Over a 10-year period, this analysis finds that 
$993,057 in cost savings would accrue due to the proposed changes. The 
present value of this amount is $747,436 (discounted at 7 percent). 
Therefore, accounting for the $6,000 in voluntarily incurred costs to 
take advantage of the flexibilities proposed in this rule, the net 
savings of this rule would be approximately $741,436.
    FRA is proposing to eliminate the requirement to stencil the inside 
walls of locomotives, passenger cars, and cabooses as fully equipped 
with compliant glazing. This requirement was particularly necessary 
during the implementation phase-in period of part

[[Page 57864]]

223 (in the 1980s), when large numbers of affected equipment were not 
equipped with glazing required by part 223. However, the phase-in 
period for fitting equipment with certified glazing under part 223 has 
already passed and reliable information as to the window glazing's 
compliance with part 223 is independently required to be marked on each 
window panel that is installed. The total annual cost for all affected 
entities to comply with the current stenciling requirement is between 
$74,170 and $80,820 per year (non-discounted). This variability is due 
to the increase in real wages as discussed in section 6 of the 
accompanying analysis in the docket for this rulemaking. Over a 10-year 
period, the analysis finds that $773,841 in cost savings would accrue 
through the elimination of this requirement. The present value of this 
amount is $578,494 (discounted at 7 percent).
    Definitions changed by this rule would help provide clarity for the 
rail industry and also greater consistency with other FRA regulations. 
Antiquated equipment would now be defined as equipment that is more 
than 50 years old. This would significantly reduce the number of waiver 
petitions submitted to exclude from the glazing requirements equipment 
that is more than 50 years old but built after 1945 and operated in a 
train for an excursion, educational, recreational, or private 
transportation purpose. FRA estimates that it would receive 
approximately 125 initial waiver requests over the next five years (25 
per year) if this rule is not enacted. FRA assumes that any entity that 
was considering applying for a waiver would do so within the first five 
years, in order to avoid installing certified glazing. Therefore, no 
additional waiver applications are expected to be submitted after the 
fifth year. In years when the initial waiver petitions would have been 
submitted, the total annual cost for all affected entities would have 
been from $14,738 to $15,108 (non-discounted). Accordingly, $74,610 in 
cost savings would accrue due to the reduction of initial waiver 
requests. The present value of this amount is $65,411 (discounted at 7 
percent).
    FRA has approved approximately 175 waivers of glazing requirements 
for equipment more than 50 years old but manufactured after 1945 and 
operated in a train for an excursion, educational, recreational, or 
private transportation purpose. If the proposed rule is not enacted, 
renewal waivers would be required to be submitted every five years to 
continue operations. Under this proposal, these waivers would no longer 
be necessary, saving the labor cost of preparing and submitting each 
waiver renewal request. The total annual cost for all affected entities 
to submit renewal waiver petitions would have increased from $10,317 to 
$18,711 (non-discounted). This increase would be due to the rise in 
real wages as discussed in section 6 of the accompanying analysis in 
the docket for this rulemaking. Over a 10-year period, $144,606 in cost 
savings would accrue due to the reduction of renewal waivers. The 
present value of this amount is $103,531 (discounted at 7 percent).
    FRA is also proposing to revise the definition of the term ``end 
facing glazing location'' to clarify that the location means an 
``exterior'' location and by expressly identifying locations that are 
not to be considered ``end facing glazing location[s]''--namely, the 
coupled ends of MU locomotives or other equipment that is semi-
permanently connected to each other in a train consist; and end doors 
at locations other than the cab end of a cab car of MU locomotive. 
However, FRA has not specifically evaluated the amount of any cost 
savings from this clarification.
    FRA requests comments on all aspects of the regulatory evaluation 
and its conclusions.

Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act (RFA), Public Law 96-354, as 
amended, and codified as amended at 5 U.S.C. 601-612, and Executive 
Order 13272 (Proper Consideration of Small Entities in Agency 
Rulemaking), 67 FR 53461 (Aug. 16, 2002), require agency review of 
proposed and final rules to assess their impact on ``small entities'' 
for purposes of the RFA. An agency must prepare a regulatory 
flexibility analysis unless it determines and certifies that a rule is 
not expected to have a significant economic impact on a substantial 
number of small entities. Pursuant to the RFA, 5 U.S.C. 605(b), the 
Administrator of FRA certifies that this proposed rule would not have a 
significant economic impact on a substantial number of small entities. 
This rule would affect small entities. However, the effect on these 
entities would be purely beneficial other than for a nominal cost 
savings offset, as it would reduce their costs and labor burden 
particularly by narrowing the class of equipment subject to the full 
requirements of the Safety Glazing Standards regulation.
    The term ``small entity'' is defined in 5 U.S.C. 601 (section 601). 
Section 601(6) defines ``small entity'' as having the same meaning as 
``the terms `small business', `small organization' and `small 
governmental jurisdiction' defined in paragraphs (3), (4), and (5) of 
this section.'' In turn, section 601(3) defines a ``small business'' as 
generally having the same meaning as ``small business concern'' under 
section 3 of the Small Business Act. This includes any small business 
concern that is independently owned and operated, and is not dominant 
in its field of operation. Next, section 601(4) defines ``small 
organization'' as generally meaning any not-for-profit enterprise that 
is independently owned and operated, and not dominant in its field of 
operations. Additionally, section 601(5) defines ``small governmental 
jurisdiction'' in general to include governments of cities, counties, 
towns, townships, villages, school districts, or special districts with 
populations less than 50,000.
    The U.S. Small Business Administration (SBA) stipulates ``size 
standards'' for small entities. It provides that the largest that a 
for-profit railroad business firm may be (and still be classified as a 
``small entity'') is 1,500 employees for ``Line-Haul Operating'' 
railroads, and 500 employees for ``Short-Line Operating'' railroads. 
See ``Size Eligibility Provisions and Standards,'' 13 CFR part 121, 
subpart A.
    Under exceptions provided in section 601, Federal agencies may 
adopt their own size standards for small entities in consultation with 
SBA, and in conjunction with public comment. Pursuant to the authority 
provided to it by SBA, FRA has published a ``Final Policy Statement 
Concerning Small Entities Subject to the Railroad Safety Laws,'' which 
formally establishes small entities as including, among others, the 
following: (1) The railroads classified by the Surface Transportation 
Board as Class III; and (2) commuter railroads ``that serve populations 
of 50,000 or less.'' \3\ See 68 FR 24891 (May 9, 2003) codified at 
appendix C to 49 CFR part 209. Currently, the revenue requirements are 
$20 million or less in

[[Page 57865]]

annual operating revenue, adjusted annually for inflation. The $20 
million limit (adjusted annually for inflation) is based on the Surface 
Transportation Board's threshold of a Class III railroad, which is 
adjusted by applying the railroad revenue deflator adjustment.\4\ For 
further information on the calculation of the specific dollar limit, 
please see 49 CFR part 1201. FRA is using this definition of ``small 
entity'' for this NPRM.
---------------------------------------------------------------------------

    \3\ ``In the Interim Policy Statement [62 FR 43024 (Aug. 11, 
1997)], FRA defined `small entity,' for the purpose of communication 
and enforcement policies, the Regulatory Flexibility Act, 5 U.S.C. 
601 et seq., and the Equal Access for Justice Act 5 U.S.C. 501 et 
seq., to include only railroads which are classified as Class III. 
FRA further clarified the definition to include, in addition to 
Class III railroads, hazardous materials shippers that meet the 
income level established for Class III railroads (those with annual 
operating revenues of $20 million per year or less, as set forth in 
49 CFR 1201.1-1); railroad contractors that meet the income level 
established for Class III railroads; and those commuter railroads or 
small governmental jurisdictions that serve populations of 50,000 or 
less.'' 68 FR 24892 (May 9, 2003). ``The Final Policy Statement 
issued today is substantially the same as the Interim Policy 
Statement.'' 68 FR 24894.
    \4\ In general, under 49 CFR 1201.1-1, the class into which a 
railroad carrier falls is determined by comparing the carrier's 
annual inflation-adjusted operating revenues for three consecutive 
years to the following scale after the dollar figures in the scale 
are adjusted by applying the railroad revenue deflator formula:
    Class I--$250 million or more;
    Class II--more than $20 million, but less than $250 million; and
    Class III--$20 million or less.
    49 CFR 1201.1-1(a), (b)(1). STB's General Instructions at 1-1 
state that carriers are grouped into three classes for purposes of 
accounting and reporting. The three classes are as follows:
    Class I: These carriers have annual carrier operating revenues 
of $250 million or more after applying STB's railroad revenue 
deflator formula.
    Class II: These carriers have annual carrier operating revenues 
of less than $250 million but in excess of $20 million after 
applying STB's railroad revenue deflator formula.
    Class III: These carriers have annual carrier operating revenues 
of $20 million or less after applying STB's railroad revenue 
deflator formula.
    See also 78 FR 21007 (Apr. 8, 2013). It should be noted that 
there are some exceptions to this general definition of the three 
classes of carriers. As one important example, STB treats families 
of railroads as a single carrier for classification purposes when 
those families operate within the United States as a single, 
integrated rail system. 49 CFR 1201-1.1(b)(1). As another example, 
STB considers all switching and terminal companies to be Class III 
carriers, regardless of their operating revenues. 49 CFR 1201-
1.1(d).
---------------------------------------------------------------------------

    FRA estimates that there are 717 railroads that operate on standard 
gage track that is part of the general railroad system of 
transportation and that are, therefore, subject to part 223, see 49 CFR 
223.3. Of these railroads, 45 are Class I freight railroads, Class II 
freight railroads, commuter railroads serving populations of 50,000 or 
more, or intercity passenger railroads (i.e., Amtrak, a Class I 
railroad, and the Alaska Railroad, a Class II railroad). The remaining 
672 railroads are therefore assumed to be small railroads for the 
purpose of this assessment. However, most of these railroads would not 
be impacted by this proposed rule. For instance, locomotives acquired 
by small railroads are typically older Class I locomotives that would 
already be equipped with compliant glazing and stenciling; 
consequently, such small railroads would not be affected by the costs 
savings from eliminating the requirement to stencil locomotives as 
being equipped with compliant glazing in cab windows. Similarly, any 
passenger cars acquired by small railroads from intercity passenger or 
commuter railroads would already be equipped with compliant glazing and 
stenciling and, consequently, no cost savings from eliminating the 
stenciling requirement would accrue.
    Small railroads and private car owners would likely be affected by 
the clarification that certain equipment that is more than 50 years old 
is considered to be antiquated and thereby subject to exclusion from 
the requirements of part 223 when operated in specified service. As a 
result of this change, the economic burden of preparing and submitting 
waiver petitions would be reduced on railroads and private car owners 
for equipment that is more than 50 years old but built after 1945 and 
operated in a train for an excursion, educational, recreational, or 
private transportation purpose. As noted above, FRA estimates that it 
would receive approximately 125 initial requests for waiver of the 
glazing requirements over the next five years (25 per year) if this 
change is not made, and the approximately 175 approved waivers of 
glazing requirements would have to be renewed every five years if this 
change is not made. When including the avoided cost of renewing the 
additional 125 initial waiver requests by making this change--a total 
of approximately 600 \5\ avoided waiver petitions--the total cost 
savings is $168,942 over 10 years, discounted at 7 percent. Of course, 
the individually allocated savings to each affected railroad or private 
car owner would be a comparatively smaller portion of the total cost 
savings.
---------------------------------------------------------------------------

    \5\ A total of approximately 600 waiver petitions would be 
avoided: 125 initial petitions in the first five years + 125 initial 
petitions renewed in the next five years + 175 approved waiver 
petitions renewed in the first five years + 175 approved waiver 
petitions renewed in the next five years.
---------------------------------------------------------------------------

    Further, for entities choosing to take advantage of the regulatory 
relief permitted by this change to the definition of ``antiquated 
equipment,'' FRA estimates that there may be a minimal cost burden 
associated with operation of such passenger cars in intercity passenger 
or commuter service, which will continue to be required to have 
emergency windows. Some affected entities may choose to install small 
hammers or other small tools or implements to allow for emergency 
egress from passenger car windows when operated in an intercity 
passenger or commuter train. Hammers would be used to break windows in 
case of an emergency. The population of private cars that operate in 
Amtrak trains is approximately 125 cars. FRA estimates that 80 percent 
of these cars would not have hammers or other tools already on board 
for emergency egress through windows. Therefore, for 100 of those 
private cars, car owners would have to purchase four hammers or other 
tools per car. That total cost would be approximately $5,000. 
Additionally, a minimal cost to copy and laminate instructions for use 
of the hammers or other tools would also be incurred. FRA estimates 
this total cost to be $1,000 (approximately $10 per car). All of these 
costs would be incurred during the first year. Therefore, the present 
value of all total costs is approximately $6,000. This $6,000 cost 
would easily be offset by the total cost savings of $168,942 by the 
definitional change to ``antiquated equipment,'' which itself is shared 
among all small entities. Consequently, FRA concludes that this 
proposed rule would not have a significant economic impact on a 
substantial number of small entities.
    FRA certifies that this proposed rule is not expected to have a 
significant economic impact on a substantial number of small entities 
under the RFA or Executive Order 13272. Although a substantial number 
of small entities would be affected by this rule, none of these 
entities would be significantly impacted. In order to determine the 
significance of the economic impact for the final rule's RFA 
requirements, FRA invites comments from all interested parties 
concerning the potential economic impact on small entities resulting 
from this proposed rule. FRA will consider the comments and data it 
receives in making a decision on the small entity impact for the final 
rule.

Paperwork Reduction Act

    The information collection requirements in this proposed rule are 
being submitted for review and approval to the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 
et seq. The sections that contain the information collection 
requirements as proposed to be revised, along with the current 
information collection requirements, and the estimated time to fulfill 
each requirement are as follows:

[[Page 57866]]



----------------------------------------------------------------------------------------------------------------
                                      Respondent         Total annual      Average time per      Total annual
           CFR Section                 universe            responses           response          burden hours
----------------------------------------------------------------------------------------------------------------
223.3(c)--Application: Passenger  672 railroads (100  400 marked tools    30 minutes........  200 hours.
 car emergency windows--marked     passenger cars      with legible &
 tools with legible and            with minimum of 4   clear
 understandable instructions       emergency           instructions.
 near them to remove/break         windows).
 window for passenger cars built
 after 1945 that are more than
 50 years old and operated in
 intercity passenger or commuter
 train (new requirement).
223.11--Existing Locomotives:     672 railroads.....  Already compliant/  N/A...............  N/A.
 Built or rebuilt prior to July                        Already have FRA
 1, 1980, equipped with                                approved waivers.
 certified glazing in all
 locomotive cab windows (revised
 requirement).
    --Locomotives with cab        672 railroads.....  15 designations...  30 seconds........  0.125 hour.
     windows broken or damaged--
     placed in designated
     service (revised
     requirement).
    --Locomotives removed from    672 railroads.....  Certification done  N/A...............  N/A.
     service until broken/                             instantly at time
     damaged windows are                               of window
     replaced with certified                           manufacture.
     glazing (revised
     requirement).
223.13--Existing Cabooses: Built  672 railroads.....  Already compliant/  N/A...............  N/A.
 or rebuilt prior to July 1,                           Already have FRA
 1980, equipped with certified                         approved waivers.
 glazing in all windows (revised
 requirement).
    --Cabooses removed from       672 railroads.....  Certification done  N/A...............  N/A.
     service until broken/                             instantly at time
     damaged windows are                               of window
     replaced with certified                           manufacture.
     glazing (revised
     requirement).
223.15--Existing Passenger Cars:  672 railroads.....  Already compliant/  N/A...............  N/A.
 Built or rebuilt prior to July                        Already have FRA
 1, 1980, equipped with                                approved waivers.
 certified glazing in all
 windows plus four emergency
 windows (revised requirement).
    --Passenger cars removed      672 railroads.....  Certification done  N/A...............  N/A.
     from service until broken/                        instantly at time
     damaged windows are                               of window
     replaced with certified                           manufacture.
     glazing (revised
     requirement).
Appendix A--Requests to glass/    5 Glass/Glazing     10 requests.......  15 minutes........  3 hours.
 glazing manufacturers for         Manufacturers.
 glazing certification
 information (current
 requirement).
    --Identification of each      5 Glass/Glazing     25,000 pieces of    480 pieces per      52 hours.
     individual unit of glazing    Manufacturers.      glazing.            hour.
     material (current
     requirement).
    --Testing of new material     5 Glass/Glazing     1 test............  14 hours..........  14 hours.
     (current requirement).        Manufacturers.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: Whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package being submitted to OMB, contact Mr. Robert 
Brogan, Information Clearance Officer, Office of Railroad Safety, at 
202-493-6292, or Ms. Kimberly Toone, FRA Records Management Officer, at 
202-493-6132.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New 
Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via email to Mr. Brogan at [email protected] or Ms. 
Toone at [email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed 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. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
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

[[Page 57867]]

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, the agency consults with 
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.
    This rule has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132. This rule would not have a 
substantial effect on the States or their political subdivisions; it 
would not impose any substantial direct compliance costs; and it would 
not affect the relationships between the Federal government and the 
States or their political subdivisions, or the distribution of power 
and responsibilities among the various levels of government. Therefore, 
the consultation and funding requirements of Executive Order 13132 do 
not apply. Nevertheless, State and local officials were involved in 
developing proposals that are addressed in this rule through the RSAC, 
which has as permanent members two organizations directly representing 
State and local interests, AASHTO and ASRSM.
    However, this rule could have preemptive effect by operation of law 
under certain provisions of the Federal railroad safety statutes, 
specifically the former Federal Railroad Safety Act of 1970 (former 
FRSA), repealed and re-codified at 49 U.S.C. 20106, and the former 
Locomotive Boiler Inspection Act (LIA) at 45 U.S.C. 22-34, repealed and 
re-codified at 49 U.S.C. 20701-20703. The former FRSA provides that 
States may not adopt or continue in effect any law, regulation, or 
order related to railroad safety or security that covers the subject 
matter of a regulation prescribed or order issued by the Secretary of 
Transportation (with respect to railroad safety matters) or the 
Secretary of Homeland Security (with respect to railroad security 
matters), except when the State law, regulation, or order qualifies 
under the ``local safety or security hazard'' exception to section 
20106. Moreover, the former LIA has been interpreted by the Supreme 
Court as preempting the field concerning locomotive safety. See Napier 
v. Atlantic Coast Line R.R., 272 U.S. 605 (1926) and Kurns v. Railroad 
Friction Products Corp., 132 S. Ct. 1261 (2012).

Environmental Impact

    FRA has evaluated this proposed regulation in accordance with its 
``Procedures for Considering Environmental Impacts'' (FRA's Procedures) 
(64 FR 28545, May 26, 1999) as required by the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, 
Executive Orders, and related regulatory requirements. FRA has 
determined that this proposed regulation is not a major FRA action 
(requiring the preparation of an environmental impact statement or 
environmental assessment) because it is categorically excluded from 
detailed environmental review pursuant to section 4(c)(20) of FRA's 
Procedures. 64 FR 28547, May 26, 1999.
    In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this 
proposed regulation is not a major Federal action significantly 
affecting the quality of the human environment.

Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), 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 the 
promulgation of any rule that includes any Federal mandate that may 
result in 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. 
The proposed rule would not result in the expenditure, in the 
aggregate, of $100,000,000 or more in any one year, and thus 
preparation of such a statement is not required.

Privacy Act

    FRA wishes to inform all potential commenters that anyone is able 
to search the electronic form of any written communications and 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). See http://www.regulations.gov/#!privacyNotice for the privacy notice of 
regulations.gov or interested parties may review DOT's complete Privacy 
Act Statement in the Federal Register published on April 11, 2000 (65 
FR 19477).

List of Subjects in 49 CFR Part 223

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

The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend 
part 223 of chapter II, subtitle B of title 49, Code of Federal 
Regulations, as follows:

PART 223 [AMENDED]

0
1. The authority citation for part 223 is revised 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. Section 223.3 is amended by revising paragraphs (b)(3) and (4) and 
adding paragraph (c) to read as follows:


Sec.  223.3  Application.

* * * * *
    (b) * * *
    (3) Except as provided for in paragraph (c) of this section, 
locomotives, cabooses, and passenger cars that are historic or are more 
than 50 years old and are used only for excursion, educational, 
recreational, or private transportation purposes.
    (4) Locomotives that are used exclusively in designated service as 
defined in Sec.  223.5.
    (c) This paragraph (c) applies, as specified, to each locomotive, 
passenger car, and caboose built after 1945 that is more than 50 years 
old and is used only for excursion, educational, recreational, or 
private transportation purposes.
    (1) Each such passenger car must comply with the emergency window 
requirements contained in Sec.  223.9(c) or Sec.  223.15(c), as 
appropriate, when it is

[[Page 57868]]

occupied and operates in an intercity passenger or commuter train 
subject to part 238 of this chapter. A tool or other instrument may be 
used to remove or break an emergency window if the tool or other 
instrument is clearly marked and legible and understandable 
instructions are provided for its use.
    (2) Each such locomotive, passenger car, and caboose that is 
equipped with glazing that complies with the glazing requirements 
contained in appendix A to this part as of [DATE OF PUBLICATION OF 
FINAL RULE IN Federal Register], must remain in compliance with those 
requirements.
    3. Section 223.5 is amended by revising the terms ``end facing 
glazing location,'' ``passenger car,'' and ``side facing glazing 
location'' to read as follows:


Sec.  223.5  Definitions.

* * * * *
    End facing glazing location means any exterior location where a 
line perpendicular to the plane of the glazing material makes a 
horizontal angle of 50 degrees or less with the centerline of the 
locomotive, caboose, or passenger car, including a dome or observation 
car, except for: the coupled ends of multiple-unit (MU) locomotives or 
other equipment that is semi-permanently connected to each other in a 
train consist; and end doors of passenger cars at locations other than 
the cab end of a cab car or MU locomotive.
* * * * *
    Passenger car means a unit of rail rolling equipment intended to 
provide transportation for members of the general public and includes 
self-propelled cars designed to carry baggage, mail, express or 
passengers. This term includes a passenger coach, cab car, and an MU 
locomotive.
* * * * *
    Side facing glazing location means any location where a line 
perpendicular to the plane of the glazing material makes an angle of 
more than 50 degrees with the centerline of the locomotive, caboose or 
passenger car. A side facing glazing location also means a location at 
the coupled ends of MU locomotives or other equipment that is semi-
permanently connected to each other in a train consist, and a location 
at end doors other than at the cab end of a cab car or MU locomotive.
* * * * *
0
4. Section 223.11 is amended by revising paragraphs (c) and (d) to read 
as follows:


Sec.  223.11  Requirements for existing locomotives.

* * * * *
    (c) Except for yard locomotives and locomotives equipped as 
described in paragraphs (a) and (b) of this section, locomotives built 
or rebuilt prior to July 1, 1980, shall be equipped with certified 
glazing in all locomotive cab windows.
    (d) Each locomotive that has a locomotive cab window that is broken 
or damaged so that the window fails to permit good visibility shall 
be--
    (1) Placed in Designated Service within 48 hours of the time of 
breakage or damage; or
    (2) Removed from service until the broken or damaged window is 
replaced with certified glazing.
0
5. Section 223.13 is amended by revising paragraphs (c) and (d) to read 
as follows:


Sec.  223.13  Requirements for existing cabooses.

* * * * *
    (c) Except for yard cabooses and cabooses equipped as described in 
paragraphs (a) and (b) of this section, cabooses built or rebuilt prior 
to July 1, 1980, shall be equipped with certified glazing in all 
windows.
    (d) Each caboose that has a window that is broken or damaged so 
that the window fails to permit good visibility shall be removed from 
service until the broken or damaged window is replaced with certified 
glazing.
0
6. Section 223.15 is amended by revising paragraphs (c) and (d) to read 
as follows:


Sec.  223.15  Requirements for existing passenger cars.

* * * * *
    (c) Except for passenger cars described in paragraphs (a) and (b) 
of this section, passenger cars built or rebuilt prior to July 1, 1980, 
shall be equipped with certified glazing in all windows and a minimum 
of four emergency windows.
    (d) Each passenger car that has a window that is broken or damaged 
so that the window fails to permit good visibility shall be removed 
from service until the broken or damaged window is replaced with 
certified glazing.


Sec.  223.17  [Removed and Reserved]

0
7. Section 223.17 is removed and reserved.

    Issued in Washington, DC, on September 19, 2014.
Joseph C. Szabo,
Administrator.
[FR Doc. 2014-22919 Filed 9-25-14; 8:45 am]
BILLING CODE 4910-06-P