[Federal Register Volume 81, Number 26 (Tuesday, February 9, 2016)]
[Rules and Regulations]
[Pages 6775-6790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02524]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 223

[Docket No. FRA-2012-0103, Notice No. 2]
RIN 2130-AC43


Safety Glazing Standards

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

ACTION: Final rule.

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SUMMARY: In this final rule, FRA is revising and clarifying existing 
regulations related to the use of glazing materials in the windows of 
locomotives, passenger cars, and cabooses. This final rule reduces 
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 final rule also 
clarifies the application of the regulations to older 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. In 
addition, this final rule clarifies the definition of passenger car, 
updates the rule by removing certain compliance dates that are no 
longer necessary, and, in response to comments on the proposed rule, 
modifies the application of the regulations to passenger cars and 
cabooses in a railroad's fleet that are used only for private 
transportation purposes and to older locomotives used in incidental 
freight service.

DATES: This final rule is effective April 11, 2016. Petitions for 
reconsideration must be received on or before April 11, 2016. Comments 
in response to petitions for reconsideration must be received on or 
before May 24, 2016.

ADDRESSES: Petitions for reconsideration and comments on petitions for 
reconsideration: Petitions for reconsideration or comments on petitions 
for reconsideration related to Docket No. FRA-2012-0103, Notice No. 2, 
may be submitted by any of the following methods:
     Web site: The Federal eRulemaking Portal, http://www.regulations.gov. Follow the Web site's online instructions for 
submitting comments, to include petitions for reconsideration.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington, 
DC 20590.
     Hand Delivery: Docket Management Facility, U.S. Department 
of Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the 
Ground level of the West Building, 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 (2130-AC43). Note that all petitions and comments received 
will be posted without change to http://www.regulations.gov, including 
any personal information provided. Please see the Privacy Act heading 
in the SUPPLEMENTARY INFORMATION section of this document for Privacy 
Act information related to any submitted comments, petitions, or 
materials.
    Docket: For access to the docket to read background documents, any 
petition for reconsideration submitted, or comments received, go to 
http://www.regulations.gov at any time or visit the Docket Management 
Facility, U.S. Department of Transportation, 1200 New Jersey Avenue 
SE., Room W12-140 on the Ground level of the West Building, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Steve Zuiderveen, Railroad Safety 
Specialist, Motive Power & Equipment Division, Office of Safety 
Assurance and Compliance, Mail Stop 25, Federal

[[Page 6776]]

Railroad Administration, 1200 New Jersey Avenue SE., Room W35-216, 
Washington, DC 20590 (telephone 202-493-6337); or Michael Masci, Trial 
Attorney, Office of Chief Counsel, Mail Stop 10, Federal Railroad 
Administration, 1200 New Jersey Avenue SE., Room W31-115, Washington, 
DC 20590 (telephone 202-493-6037).

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Executive Summary
II. NPRM Background
    A. Executive Orders 13563 and 13610
    B. RSAC End Facing Glazing Recommendation
III. Discussion of Specific Comments and Conclusions
    A. AAR's Comments
    B. ATRRM's Comments
IV. General Overview of the Final Rule
    A. Removal of the Requirement To Stencil Certified Glazing 
Compliance on Inside Walls of Locomotive Cabs, Passenger Cars, and 
Cabooses
    B. Clarification of the Term ``Antiquated Equipment''
    C. Exclusion of Older Locomotives Used in Incidental Freight 
Service
    D. Clarification of the Terms ``Private Car'' and ``Passenger 
Car''
    E. Modification of the Application of the Safety Glazing 
Standards to Passenger Cars and Cabooses in a Railroad's Fleet That 
Are Used Only for Private Business Purposes
    F. 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
    G. Locomotives, Passenger Cars, and Cabooses That Are More Than 
50 Years Old But Built After 1945 and Equipped With Compliant 
Glazing
    H. Clarification of the Term ``End Facing Glazing Location''
    I. Removal of Compliance Phase-In Dates That Have Passed and Are 
No Longer Applicable
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13563 and DOT Regulatory Policies 
and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. Environmental Impact
    F. Executive Order 12898 (Environmental Justice)
    G. Executive Order 13175 (Tribal Consultation)
    H. Unfunded Mandates Reform Act of 1995
    I. Privacy Act

I. Executive Summary

    Beginning on January 18, 2011, the President issued a set of 
Executive Orders which require Federal agencies to review existing 
regulations and reduce the regulatory burden on industry, when 
appropriate. (See Executive Orders 13563 and 13610, discussed in more 
detail in section II of this preamble). During FRA's review of its 
Safety Glazing Standards in 49 CFR part 223 \1\ (part 223), FRA 
identified potential changes to requirements for stenciling and 
``antiquated equipment'' as opportunities to reduce paperwork and other 
economic burdens on the rail industry without adversely impacting 
safety. On September 26, 2014, FRA issued its proposed changes to these 
requirements in a notice of proposed rulemaking (NPRM). See 79 FR 
57856. After considering the comments received on the NPRM, FRA 
modifies these requirements in this final rule.
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    \1\ Unless otherwise specified, all references to CFR sections 
and parts in this document refer to title 49 of the CFR.
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    Specifically, this final rule eliminates 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 the Safety Glazing Standards. Further, 
this final rule uses a rolling, 50-year calculation to determine 
whether equipment is ``antiquated'' based on its build date--rather 
than a fixed date of 1945 or earlier--thereby eliminating the cost of 
fitting equipment more than 50 years old and used only for certain 
purposes with compliant glazing. To maintain safety in connection with 
the change to the application of the term ``antiquated equipment,'' FRA 
is clarifying requirements for emergency windows in occupied passenger 
cars operated in intercity passenger or commuter trains, and clarifying 
requirements for locomotives, passengers, and cabooses currently 
equipped with compliant glazing.
    Separately, this final rule makes 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 doing so in this final rule. Specifically, FRA 
believes that amending application of the phrase ``end facing glazing 
location'' in part 223 reduces the economic burden on the rail industry 
without adversely impacting safety.
    In addition, FRA is clarifying the application of requirements for 
private cars, and eliminating compliance phase-in dates that are no 
longer necessary. Also, in response to comments on the NPRM, this final 
rule modifies application of the safety glazing requirements to 
passenger cars and cabooses in a railroad's fleet used only for private 
transportation purposes and to older locomotives used in incidental 
freight service.

Economic Impact

    FRA believes this final rule is consistent with current industry 
practices and reduces the regulatory burden on the rail industry.
    The estimated quantified benefits or cost savings of this rule 
total $1,088,489. The present value (PV), discounted at 7 percent, of 
the estimated quantified benefits is approximately $819,479. FRA 
concludes that the industry incurs only a minimal cost of approximately 
$6,000 to take advantage of the flexibilities in this rule. Therefore, 
FRA estimates the net benefit (cost savings) of this rule is 
approximately $813,479 (PV, 7 percent).

II. NPRM Background

    Under its general statutory rulemaking authority, FRA promulgates 
and enforces rules as part of a comprehensive regulatory program to 
address all areas of railroad safety. See 49 U.S.C. 20103 and 49 CFR 
1.89. In the area of safety glazing, FRA has issued regulations 
generally found at part 223. FRA continually reviews its regulations 
and revises them as needed to: (1) Ensure the regulatory burden on the 
rail industry is not excessive; (2) clarify the application of existing 
requirements and remove requirements that are no longer necessary; and 
(3) keep pace with emerging technology, changing operational realities, 
and safety concerns. 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 and make the regulation 
more clear and concise, FRA proposed to remove the dates that have 
passed. Further, FRA specifically proposed amending the safety glazing 
requirements based on FRA's detailed analyses of the requirements and a 
recommendation from FRA's RSAC, discussed below.

A. Executive Orders 13563 and 13610

    On January 18, 2011, the President issued Executive Order 13563 
(Improving Regulation and Regulatory Review). Executive Order 13563 
requires agencies to periodically conduct retrospective analyses of 
their existing rules to identify requirements that may be outmoded, 
ineffective, insufficient, or excessively burdensome.

[[Page 6777]]

The Executive Order further requires that agencies modify, streamline, 
expand, or repeal any problematic regulatory provisions identified 
during their review. During FRA's retrospective analysis of part 223, 
the agency identified requirements for antiquated equipment in 
particular as being potentially burdensome to the regulated community. 
Specifically, the term ``antiquated equipment'' was not explicitly 
defined in the rule text, and FRA's interpretive guidance had the 
potential of imposing a progressively larger burden on a small segment 
of the industry over time. Accordingly, this final rule clarifies the 
application of these requirements and reduces their potential economic 
burden on the rail industry.
    Further, on May 10, 2012, the President issued Executive Order 
13610 (Identifying and Reducing Regulatory Burdens). Executive Order 
13610 requires agencies to take continuing steps to reassess regulatory 
requirements, and where appropriate, to streamline, improve, or 
eliminate those requirements. Executive Order 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 as appropriate. FRA 
conducted a comprehensive review of its regulations based on the 
guidance provided in Executive Order 13610 and determined that 
eliminating the stenciling requirement in Sec.  223.17 was an 
opportunity to reduce the paperwork burden on the rail industry without 
adversely impacting safety. (FRA's Executive Order 13563 review also 
identified Sec.  223.17 as a candidate for elimination.) This final 
rule eliminates this stenciling requirement.

B. RSAC End Facing Glazing Recommendation

    In addition to the changes FRA proposed in response to these 
Executive Orders, FRA's proposal was also based on an RSAC 
recommendation addressing the application of the regulations for the 
next generation of high-speed trainsets. RSAC is a forum for 
collaborative rulemaking and program development that FRA established 
in March 1996. RSAC includes representation from all of the agency's 
major stakeholder groups, including railroads, labor organizations, 
suppliers and manufacturers, and other interested parties.\2\ When 
appropriate, FRA assigns a task to RSAC, and after consideration and 
debate, RSAC may accept or reject the task. If accepted, 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. When 
a working group comes to unanimous consensus on recommendations for 
action, the package is presented to the full Committee for a vote. If 
RSAC is unable to reach consensus on a recommendation for action, the 
task is withdrawn and FRA determines the best course of action. If the 
proposal is accepted by a simple majority of RSAC, the proposal is 
formally recommended to the Administrator of FRA. FRA then determines 
what action to take on the recommendation.
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    \2\ A list of RSAC member groups includes the following: 
American Association of Private Railroad Car Owners (AAPRCO); 
American Association of State Highway and Transportation Officials 
(AASHTO); American Chemistry Council; American Petroleum Institute; 
American Public Transportation Association (APTA); American Short 
Line and Regional Railroad Association (ASLRRA); American Train 
Dispatchers Association (ATDA); Association of American Railroads 
(AAR); Association of State Rail Safety Managers (ASRSM); 
Association of Tourist Railroads and Railway Museums (ATRRM); 
Brotherhood of Locomotive Engineers and Trainmen (BLET); Brotherhood 
of Maintenance of Way Employes Division; Brotherhood of Railroad 
Signalmen (BRS); Chlorine Institute; Federal Transit Administration 
(FTA); * Fertilizer Institute; Institute of Makers of Explosives; 
International Association of Machinists and Aerospace Workers; 
International Brotherhood of Electrical Workers; Labor Council for 
Latin American Advancement; * League of Railway Industry Women; * 
National Association of Railroad Passengers (NARP); National 
Association of Railway Business Women; * National Conference of 
Firemen & Oilers; National Railroad Construction and Maintenance 
Association (NRCMA); National Railroad Passenger Corporation 
(Amtrak); National Transportation Safety Board (NTSB); * Railway 
Supply Institute (RSI); Safe Travel America (STA); Secretaria de 
Comunicaciones y Transporte; * Sheet Metal Workers International 
Association (SMWIA); Transport Canada; * Transport Workers Union of 
America (TWU); Transportation Communications International Union/BRC 
(TCIU/BRC); Transportation Security Administration (TSA); * and 
United Transportation Union (UTU).
    * Indicates associate, non-voting membership.
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    In March 2013, after RSAC's Passenger Safety Working Group \3\ 
accepted a task related to high-speed rail safety, the Working Group's 
Engineering Task Force \4\ established the Tier III Cab Glazing Task 
Group (Task Group) to focus on issues concerning safety glazing. The 
Task Group discussed glazing during four meetings held between March 
and May 2013. During the Task Group's last meeting, the Group reached 
consensus on a recommendation to apply FRA's 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 
Committee adopted the Task Group's recommendation and presented it to 
FRA for consideration. Based on FRA's experience enforcing glazing 
requirements, FRA believes that the RSAC Task Group's approach to 
identifying end facing glazing locations is appropriate to adopt 
generally for all equipment, not only high-speed trainsets, and is 
therefore doing so in this final rule. FRA believes it is helpful to 
clarify for equipment operating at conventional speeds what exterior 
locations are end facing glazing locations, to reduce the economic 
burden on the rail industry without adversely impacting safety.
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    \3\ Members of the Working Group, in addition to FRA, include 
the following: AAR, including members from BNSF Railway Company, CSX 
Transportation, Inc., and Union Pacific Railroad Company; AAPRCO; 
AASHTO; Amtrak; APTA, including members from Bombardier, Inc., 
Herzog Transit Services, Inc., Interfleet Technology, Inc. 
(Interfleet, formerly LDK Engineering, Inc.), Long Island Rail Road 
(LIRR), Maryland Transit Administration, Metro-North Commuter 
Railroad Company (Metro-North), Northeast Illinois Regional Commuter 
Railroad Corporation, Southern California Regional Rail Authority 
(Metrolink), and Southeastern Pennsylvania Transportation Authority 
(SEPTA); ASLRRA; BLET; BRS; FTA; NARP; NTSB; RSI; SMWIA; STA; TCIU/
BRC; TSA; TWU; and UTU.
    \4\ Members of the Engineering Task Force, in addition to FRA, 
include the following: AAR; AAPRCO; AASHTO, including California 
Department of Transportation, and Interfleet; APTA, including 
Alstom, Ansaldo Breda, Bombardier, Central Japan Railway Company, 
China South Locomotive and Rolling Stock Corporation, Denver 
Regional Transportation District, East Japan Railway Company, 
Faiveley Transport, GE Transportation, Japan International Transport 
Institute, Japan's Ministry of Land, Infrastructure, Transport and 
Tourism, Kawasaki, Keolis, KPS N.A., LIRR, LTK Engineering Services, 
Marsh, Metrolink, Metro-North, Nippon Sharyo, Parsons Brinckerhoff, 
PS Consulting, Safetran Systems, SEPTA, Sharma & Associates, 
Siemens, Stadler, STV, Talgo, Texas Central Railway, Veolia, Voith 
Turbo, and Wabtec; Amtrak; ASLRRA; BLET; European Railway Agency; 
International Association of Sheet Metal, Air, Rail and 
Transportation Workers (SMART), including SMWIA and UTU; NTSB; RSI, 
including Battelle Memorial Institute, and ENSCO; TCIU/BRC; and 
Transport Canada.
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III. Discussion of Specific Comments and Conclusions

    The NPRM solicited written comments from the public under the 
Administrative Procedure Act (APA) (5 U.S.C. 553). FRA also invited 
comment on a number of specific issues related to the proposed rule to 
develop the final

[[Page 6778]]

rule. Consideration of public comment is valuable, as it allows FRA to 
access additional viewpoints from interested parties and include them 
in the final rule when appropriate. By the close of the comment period 
on November 25, 2014, FRA received two sets of comments. AAR and ATRRM 
each submitted comments.

A. AAR's Comments

    AAR requested two changes in the final rule: (1) Confirm and 
clarify the glazing requirements do not apply to business cars; and (2) 
remove the noise emissions testing decal requirement in part 210. In 
response to AAR's first comment, this final rule excludes certain cars 
in a railroad's fleet that are used only for private transportation 
purposes from the glazing requirements. After reviewing favorable 
safety data, FRA believes the glazing requirements should not apply to 
these cars used only for private transportation. A fuller discussion of 
this issue is provided in section IV.E. of this final rule.
    AAR's request to remove the noise decal required in part 210 is 
outside the scope of this rulemaking. Therefore FRA cannot properly 
adopt it in this final rule. Under the APA, a final rule must be based 
on the subjects and issues identified in the NPRM. See 5 U.S.C. 553. 
The purpose for this requirement is to provide sufficient notice and 
opportunity for meaningful public participation in the rulemaking. The 
subjects and issues raised in the NPRM alert interested parties that 
rule changes are being considered so they can take full advantage of 
the opportunity to comment on them. The NPRM did not raise any issues 
related to existing noise emissions testing requirements. Because FRA 
did not provide sufficient notice for this issue, FRA cannot make any 
changes in the final rule based on this comment. Nevertheless, FRA 
continues to consider the merits of AAR's comment and will evaluate how 
to best address this issue in the future.

B. ATRRM's Comments

    ATRRM expressed support for FRA's proposal and requested two 
modifications in the final rule: (1) Exclude historic or antiquated 
locomotives that are used primarily in excursion, educational, 
recreational, or private passenger service and also used in other 
limited types of service from the glazing requirements; and (2) confirm 
and clarify that Sec.  223.3(c)(1) would not require an ``open window'' 
passenger car with windows that open wide enough to permit egress to 
also be equipped with a tool or implement to use to break or remove a 
window during an emergency.
    In response to ATRRM's first comment, this final rule excludes from 
the glazing requirements a small number of primarily excursion 
locomotives that are used in incidental freight service when no other 
power is available. Based on its thorough review of the issue, FRA 
believes it can provide this relief without having an adverse impact on 
rail safety. A fuller discussion of this issue is provided in section 
IV.C. of this final rule.
    In response to ATRRM's second comment, FRA confirms that Sec.  
223.3(c)(1) does not require a passenger car with windows that open 
wide enough to permit egress to be equipped with a tool or implement to 
use to break or remove a window during an emergency. FRA believes the 
plain language of Sec.  223.3(c)(1) is clear, and read in conjunction 
with Sec. Sec.  223.9(c) and 223.15(c), communicates that no tool or 
implement is required in such a case. Therefore, FRA believes that no 
change is necessary and is adopting Sec.  223.3(c)(1) as proposed. 
Nevertheless, FRA takes this opportunity to clarify the language and 
intent of this paragraph to avoid any confusion. The purpose for 
requiring an emergency window exit is to help ensure passengers are not 
sealed inside the car during an emergency when they need to exit 
rapidly. If the window is open or can be opened wide enough to permit 
egress, passengers should be able to exit the car through that window 
as rapidly as they would if the window were removed by a tool or other 
implement. Specifically, if a window frame does not contain glass, as 
in an ``open air car,'' there is no need for a tool or implement to 
clear the space inside the window frame where the glass would otherwise 
be. Therefore, no tool or implement is required.
    FRA carefully considered both sets of comments on the NPRM while 
developing this final rule. To further clarify written comments, FRA 
discussed the comments with the RSAC Tourist and Historic Railroads and 
Private Passenger Car Working Group \5\ during a meeting on December 3, 
2014. The discussion, although limited in scope, helped FRA understand 
the written comments. FRA added a copy of the meeting minutes to the 
docket for this proceeding. The final rule text differs from the NPRM 
text in part because of issues AAR and ATRRM raised in their comments. 
For changes to the rule text, FRA addresses each of the relevant 
comments in the corresponding regulatory paragraphs of the section-by-
section analysis provided below.
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    \5\ Members of the Working Group, in addition to FRA, include 
the following: AAR; AAPRCO; Amtrak; ASLRRA; ATRRM; NRCMA; NTSB; 
Railway Passenger Car Alliance; and SMART.
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IV. General Overview of the Final Rule

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

    As noted above, FRA's review of its regulations under Executive 
Order 13563 and Executive Order 13610 identified as a candidate for 
elimination Sec.  223.17, which provided 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, 
Executive Order 13610 requires agencies to take continuing steps to 
reassess regulatory requirements and, where appropriate, to streamline, 
improve, or eliminate those requirements. Executive Order 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 in 
Executive Order 13610 and determined 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 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 
discussion below on removing compliance phase-in dates from part 223.) 
Moreover, in practice, FRA has found 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 required by part 223, appendix 
A. Each window that is equipped with certified glazing must be 
permanently marked by the manufacturer to indicate the type of glazing 
applied, which remains unchanged for each glazing panel's service life. 
Appendix A requires

[[Page 6779]]

glazing to be tested and then marked according to the tests passed as 
either ``FRA Type I'' or ``FRA Type II'' glazing, depending on its 
location. 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 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. Therefore, FRA concludes that the Sec.  223.17 stenciling 
requirement is no longer necessary, and this rule eliminates the 
requirement for a certified glazing stencil located inside locomotive 
cabs, passenger cars, and cabooses.

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

    Part 223 uses the term ``antiquated equipment'' to identify 
equipment excluded from the application of part 223, if the equipment 
is operated in only specified types of service (excursion, educational, 
recreational or private transportation). However, part 223 did not 
define the term ``antiquated equipment'' and the context in which the 
term was used in the regulation did not clearly indicate its meaning. 
During implementation of part 223, FRA identified the need to clarify 
the term ``antiquated equipment'' to ensure its consistent application. 
FRA developed guidance interpreting the term in 1989, and FRA's 
Associate Administrator for Safety provided it to the agency's regional 
safety management. Subsequently, FRA made the interpretation part of a 
1990 FRA technical bulletin. For purposes of this final rule, FRA 
references the 1990 FRA technical bulletin (1990 Technical Bulletin) 
and has included it in the public docket for this rulemaking.
    The 1990 Technical Bulletin stated ``antiquated equipment,'' as 
used in part 223, meant equipment built in 1945 or earlier. However, 
FRA did not explain why it distinguished between equipment built in 
1945 or earlier from equipment built after 1945. FRA believes it chose 
1945 as the cut-off date because it was the end of World War II, the 
date was approaching approximately 50 years before the date the 
guidance was issued, and the approaching 50-year difference in time was 
consistent with FRA's treatment of other older 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, FRA uses this distinction in the Freight Car 
Safety Standards in 49 CFR part 215. Part 215 restricts the operation 
of freight cars that are more than 50 years old, measured by the date 
of original construction, 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, it should not treat freight equipment the same as 
newer equipment when used in certain types of service. As an industry 
practice, cars more than 50 years old are generally used only in 
limited freight service. However, passenger cars more than 50 years old 
have been successfully used for commuter service, which, to be clear, 
is not the type of service identified in part 223 as service for an 
educational, excursion, recreational, or private transportation 
purpose.
    FRA has applied the term ``antiquated equipment'' in the 
enforcement of part 223 consistent with FRA's 1990 Technical Bulletin 
without significant opposition until industry's response to FRA's 
implementation of 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 \6\ to conduct a study of 
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 that technical bulletin could 
conclude FRA intended for the year 1945 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.
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    \6\ The Secretary delegated the responsibility to carry out this 
mandate to FRA. See 49 CFR 1.89(b).
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    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, filed 
approximately 175 petitions for waiver from the relevant requirements 
contained in part 223 with FRA for 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 FRA's enforcement history (i.e., they had not 
previously received notice of non-compliance from FRA), they believed 
their equipment was antiquated and therefore not subject to part 223. 
Many of the petitioners were represented by AAPRCO, which submitted a 
letter to FRA in 2009, on behalf of its members expressing concern over 
FRA's interpretation of the term ``antiquated equipment.'' FRA 
responded to AAPRCO, explaining that use of the fixed date of 1945 to 
determine whether equipment was antiquated was consistent with the 
guidance in FRA's 1990 Technical Bulletin.
    Subsequently, Executive Order 13563 was issued requiring agencies 
to conduct a retrospective analysis of their existing rules. As noted 
above, that 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 based 
on that analysis. During FRA's retrospective analysis of the Safety 
Glazing Standards, FRA identified the application of its existing 
interpretation of ``antiquated equipment'' as potentially creating an 
unnecessary burden on the industry. The cost of retrofitting all non-
compliant equipment built more than 50 years before 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 modifying the term 
``antiquated equipment'' to reduce the burden on the rail industry. FRA 
believes the use of a rolling 50-year period to determine whether 
equipment is antiquated significantly reduces the burden on the rail 
industry by eliminating the cost of fitting equipment that is more than 
50 years old and used only for certain purposes with compliant glazing. 
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 also better aligns FRA's Safety Glazing 
Standards with other Federal rail safety requirements that address 
older equipment. For example, because of its age and

[[Page 6780]]

technology, a caboose built more than 50 years ago receives special 
treatment as older equipment under Sec.  215.203 of the Freight Car 
Safety Standards, but that same caboose was essentially treated by the 
Safety Glazing Standards the same as newer equipment. This rule helps 
classify equipment more consistently because of its age and ATRRM 
believes this will eliminate the need for most waivers of the glazing 
requirements, and waiver renewals, and remove a substantial burden on 
the industry.

C. Exclusion of Older Locomotives Used in Incidental Freight Service

    In addition to clarifying the term ``antiquated equipment,'' in its 
comments, ATTRM also states FRA should clarify that the service 
historic or antiquated equipment operates in may exclude that equipment 
from the glazing requirements. Specifically, rather than exclude 
historic or antiquated locomotives used only for excursion, 
educational, recreational, or private transportation purposes, ATTRM 
requested that FRA exclude historic or antiquated locomotives that are 
used primarily in excursion, educational, recreational, or private 
passenger service and also in other limited types of service. For 
example, ATTRM stated that a steam locomotive normally used exclusively 
in mainline excursion service will sometimes be ``broken in'' in 
freight service after major mechanical work, to allow problems to be 
identified and corrected before the locomotive is used for a passenger 
train. According to ATTRM, a general system tourist railroad might also 
occasionally use a passenger locomotive on a non-excursion freight 
train if the railroad's normal freight power is temporarily out of 
service or unavailable. ATTRM made clear it is not seeking exclusion 
for locomotives used regularly in freight service but rather for 
``occasional and irregular'' use.
    FRA understands that all locomotives (except for a handful of newly 
built steam locomotives, less than ten total) currently used in 
excursion service would be considered antiquated based on the revised 
definition because they are more than 50 years old. However, many 
locomotives more than 50 years old used in excursion service are also 
used in other limited types of service but would not be excluded under 
the proposed rule. As a result, to comply with the proposed rule, 
affected railroads would need to either equip these locomotives with 
compliant certified glazing at a significant cost, or forgo using the 
locomotives for certain types of service and risk losing revenue.
    FRA believes the Safety Glazing Standards should not apply to these 
small number of excursion locomotives that are used for limited non-
excursion service when no other power is available. This is a current 
industry practice for approximately 120 locomotives. FRA's review of 
its enforcement data confirms that FRA has used its enforcement 
discretion consistently to permit limited use of such excursion 
locomotives in non-excursion service without compliant certified 
glazing. It also reveals that no accidents or incidents have been 
reported to FRA for the lack of compliant certified glazing materials 
in these locomotives. Based on a thorough review of this issue, FRA 
believes the rule can allow this current industry practice without 
having an adverse impact on rail safety. Therefore, this final rule 
provides the relief needed to permit these excursion locomotives to 
operate in incidental freight service, which includes the two specific 
scenarios ATRRM's comments identified for ``antiquated'' locomotives 
otherwise used only for excursion, educational, recreational, or 
private transportation purposes.
    In this final rule, FRA makes clear that incidental freight service 
would include when an excursion locomotive that is more than 50 years 
old has finished hauling an excursion train for the day, a couple of 
freight cars need to be switched on the railroad's property, and no 
other locomotive is ready to switch the cars. Current industry practice 
is for the excursion locomotive to switch the freight cars. The 
alternative would be to start a freight locomotive not in use, conduct 
the required safety inspection to run it in service, and then use it to 
switch the freight cars. FRA believes this alternative is too 
burdensome for industry compared to the low safety risk incurred by 
using such an excursion locomotive to switch the freight cars--
typically short moves conducted at fairly low speeds. This final rule 
allows the flexibility to use these small number of excursion 
locomotives as additional power in freight service under such limited 
circumstances. However, FRA emphasizes that these circumstances are 
limited. If a freight locomotive is in use and available for service on 
the property, the exception would not apply. Moreover, FRA expects 
railroads to have a sufficient number of locomotives available to 
satisfy their operational needs under ordinary circumstances.
    FRA also makes clear that another example of incidental freight 
service would be breaking-in a steam locomotive more than 50 years old 
in freight service after major repairs are completed as described by 
ATRRM. This conditioning service is an opportunity to stress the steam 
locomotive to ensure the repairs are effective. Excursion operations 
provide few opportunities for conditioning such locomotives in higher 
tonnage trains. Moreover, these operations typically have fairly 
regimented schedules due to seasonal considerations and customer 
demands. Using these excursion locomotives in freight service for 
conditioning in this limited manner is also advantageous because 
freight service is more frequently available. Consequently, FRA is 
excluding this conditioning service for these older locomotives from 
the glazing requirements in this final rule. However, FRA intends for 
the period to be limited to only the time necessary to condition the 
locomotive for excursion service.

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

    Previous amendments to part 223, which revised the definition of 
``passenger car'' to clarify contemporaneous revisions to the 
regulation, may have caused some unintentional confusion regarding 
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 for 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. FRA 
intended for this revision of the term ``passenger car'' 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 they apply

[[Page 6781]]

to ``passenger cars,'' which by a literal reading of the definition of 
``passenger car'' in Sec.  223.5 would have seemingly excluded 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. See 63 FR 
24675. FRA believes that the rail industry has the same understanding. 
The application of the glazing requirements to private cars is clear, 
as provided in Sec.  223.3. Section 223.3(a) states that the 
requirements in part 223 apply to any railroad rolling equipment 
operated on standard gauge track that is a part of the general railroad 
system of transportation. Section 223.3(b) excludes equipment used for 
private transportation purposes, but only if it is historical or 
antiquated. Nonetheless, to alleviate any confusion, FRA is amending 
the definition of ``passenger car,'' in Sec.  223.5 by removing the 
last sentence of the existing definition that indicates ``[t]his term 
does not include a private car.''

E. Modification of the Application of the Safety Glazing Standards to 
Passenger Cars and Cabooses in a Railroad's Fleet That Are Used Only 
for Private Transportation Purposes

    As discussed above, AAR's comments request FRA to confirm the 
glazing requirements in part 223 do not apply to railroad private 
business cars. Part 223 has not specifically used the term ``railroad 
private business cars,'' and AAR's comment does not provide a 
definition for the term. Based on FRA's experience and discussions with 
AAR during the Working Group meeting on December 3, 2014, FRA 
understands that a railroad private business car is a specially 
modified passenger car or caboose a railroad uses to conduct business 
and entertain colleagues and guests during transport. Further, FRA 
understands all but a small handful of railroad private business cars 
are more than 50 years old. Therefore, based on their age and use, 
almost all these cars will be excluded from the glazing requirements 
because of this final rule's clarification of the term ``antiquated 
equipment'' discussed in section IV.B, above. Nonetheless, FRA 
understands AAR's comment to also request that the remaining small 
handful of cars be excluded from the glazing requirements.
    FRA agrees that the remaining railroad private business cars should 
be excluded from the glazing requirements due to the limited safety 
risk. Only a small number of invited guests and employees ride these 
cars and FRA has no record of any accidents or incidents (including 
injuries) due to the lack of certified glazing materials in these cars. 
FRA has exercised its discretion to allow railroad private business 
cars that are not antiquated to operate without certified glazing. Its 
use of discretion has not had an adverse impact on safety.
    Based on a thorough review of this issue, FRA agrees with AAR's 
comment and in this final rule is excluding from the glazing 
requirements the remaining small handful of private business cars 
currently held by railroads that are not equipped with certified 
glazing. However, railroad private business cars that are currently 
equipped with certified glazing are required to continue to be equipped 
with certified glazing to maintain the current level of safety. In 
addition, all new railroad private business cars must be equipped with 
certified glazing. Furthermore, if a railroad's private car is used in 
public service, the exclusion does not apply and the car must be 
equipped with certified glazing. FRA continues to believe the cost of 
equipping a new car with certified glazing is worth the safety benefit, 
including new railroad private business cars.

F. 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 clarifies application of the emergency window 
requirements in part 223 to passenger cars more than 50 years old, but 
built after 1945, by incorporating provisions in waivers FRA's Railroad 
Safety Board grated (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 for 
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.'' Under Sec.  238.5, the 
definition of ``passenger car'' is a subset of ``passenger equipment'' 
and must comply with the emergency window exit requirements in Sec.  
238.113. By contrast, the part 238 emergency window exit requirements 
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, must be equipped with emergency windows as 
provided in Sec.  223.9(c) or Sec.  223.15(c), as appropriate. In this 
rule, the application of the emergency window requirements to passenger 
equipment and passenger cars in part 238 is unchanged. However, a 
change to part 223 is needed to incorporate existing waivers of the 
requirements of part 223 that require emergency windows, in light of 
the change concerning ``antiquated equipment,'' discussed above.
    Specifically, in connection with the change to the application of 
the term ``antiquated equipment,'' FRA is revising the language in 
Sec.  223.3(b) to expressly state the exclusion provided in Sec.  
223.3(b)(3) for ``antiquated equipment,'' for purposes of emergency 
windows, does not apply to occupied passenger cars built after 1945 
when they operate in intercity passenger or commuter train service 
covered by part 238 (part 238 train). See 49 CFR 238.3. An occupied 
private car 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 must be equipped with emergency windows under Sec.  223.9(c) 
or Sec.  223.15(c) of part 223, if they are not ``historical or 
antiquated equipment'' and are not 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. As a condition to the waivers, such cars 
must be equipped with at least four emergency windows consistent 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 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 clearly marked, with legible and understandable 
instructions for its use. This final rule revises part 223 to be 
consistent with the conditions of the waivers FRA has granted and the 
proposed change to application of the term ``antiquated equipment.''
    FRA notes that passenger cars that are not covered by the 
requirements of part 238 but are occupied for an excursion, 
educational, recreational, or private purpose, and operate in a 
passenger train covered by the requirements of part 238, are subject to 
the same conditions as the train to which they are

[[Page 6782]]

coupled. Such cars are exposed to high speeds over long distances the 
same 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., an Amtrak Superliner). Consequently, 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 
use 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 emergency. Such occupied cars, built after 1945, and more 
than 50 years old, that operate in a part 238 train, must have 
emergency windows to maintain the level of safety currently provided.
    Consequently, in clarifying the application of part 223 to 
``antiquated equipment'' by using a rolling 50-year date, rather than a 
fixed date, FRA believes it must continue requiring passenger cars 
built after 1945 and more than 50 years old to comply with the 
emergency window requirements 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 is appropriate to 
remove the current requirement that such cars be equipped with these 
emergency windows, especially as the number of such cars considered 
``antiquated'' will increase due to this rulemaking. However, 
consistent with the conditions of the waivers 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. Nonetheless, as 
discussed in section III.B in response to ATRRM's comment, this final 
rule does not require a passenger car with windows that open wide 
enough to permit egress to also be equipped with a tool or implement to 
use to break or remove a window during an emergency.

G. 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 changes to application of the term 
``antiquated equipment,'' all locomotives, passenger cars, and cabooses 
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 continue to comply with those standards. Broadening the 
definition of the term ``antiquated equipment'' in this rule does not 
diminish the level of safety currently required. Accordingly, FRA does 
not intend for windows currently complying 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 the 
necessary framing arrangements in place 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.

H. 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, this rule revises 
the definition of ``end facing glazing location'' to clarify that the 
location means an ``exterior'' location. It also expressly identifies 
locations not considered to be ``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 former definition of ``end facing glazing location'' in Sec.  
223.5 does not specify that ``end facing'' means only a location at the 
exterior of a piece of equipment. As a result, the final rule clarifies 
that FRA does not consider windows facing an open end of a car, but 
located in the interior of the car, to be end facing. Thus, they do not 
require Type I glazing. For example, a vestibule door set back from the 
end frame and corner structure of a passenger car that contains a 
window does 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 
angle of incidence of 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, compared to a window 
aligned with the end frame of the car. Therefore, the likelihood of 
projectile contact is minimized.
    Further, the former definition of ``end facing glazing location'' 
contains no qualification on 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 about FRA's 
enforcement of relevant glazing requirements, which FRA intends to 
clarify in this final rule. Accordingly, this rule revises the 
definition to clarify 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 makes clear that windows in 
such doors do not require Type I glazing.
    At the same time, this rule also revises the existing definition of 
``side facing glazing location'' to clarify those locations are 
excluded from the definition of ``end facing glazing location'' and 
require Type II glazing. The former 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 are specifically excluded 
from the definition of ``end facing glazing location,'' those locations 
do not require Type I glazing. By specifically including them in the 
definition for ``side facing glazing location,'' the rule makes clear 
those locations require Type II glazing at a minimum. Thus, for 
example, locomotives, cabooses, and passenger cars built or rebuilt 
after June 30, 1980, must be equipped with certified glazing in all 
windows under 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.
    This final rule also clarifies that any location which, due to 
curvature of the glazing material, can meet the criteria for either an 
end facing location or a side facing location shall be considered an 
end facing location. This is a

[[Page 6783]]

clarification that FRA identified when preparing the final rule, noting 
that FRA had inadvertently omitted this longstanding rule text from the 
proposed rule. The revised language clarifies the continued application 
of the regulation to equipment that contains curved glazing material 
that extends beyond its side or end.

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

    This final rule removes 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 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 regulation included those compliance dates. See 48 FR 56955-
56955. For example in Sec.  223.15, ``Requirements for existing 
passenger cars,'' the regulation provided that certain passenger cars 
have until June 30, 1984, to comply with the requirements for certified 
glazing and emergency windows. Because the compliance phase-in period 
has long passed, FRA can remove the phase-in dates from part 223 
without changing the substantive effect of the requirements.

V. Section-by-Section Analysis

    This section-by-section analysis of this final rule explains the 
rationale for each section of the rule, together with the above 
discussion. The regulatory changes are organized by section number.

Section 223.3 Application

    As discussed in section IV.B of this final rule, FRA is revising 
paragraph (b)(3) to clarify the meaning of the term ``antiquated 
equipment.'' Paragraph (b)(3)(i) clarifies the meaning of ``antiquated 
equipment'' by replacing the term ``antiquated'' with the phrase ``more 
than 50 years old.'' This change clarifies that the exclusion from the 
application of the rule for ``antiquated equipment'' in this section 
applies to equipment more than 50 years old measured from the time of 
original construction. This is a rolling, 50-year calculation, and no 
longer the fixed date of 1945 or earlier. As such, some of the 
equipment that was subject to the full requirements of part 223 before 
this final rule takes effect (because it is not yet more than 50 years 
old) is excluded from certain requirements when the equipment becomes 
more than 50 years old. To qualify for the exclusion under paragraph 
(b)(3)(i), when the equipment becomes more than 50 years old, the rule 
continues to require that the equipment be used only for excursion, 
educational, recreational, or private transportation purposes.
    As discussed in section IV.C of this final rule, FRA is also 
revising paragraph (b)(3) to provide some flexibility in application of 
the glazing requirements to older locomotives used primarily in 
excursion service. Paragraph (b)(3)(i) also excludes from the glazing 
requirements locomotives that are historical or more than 50 years old 
and are used in incidental freight service. Incidental freight service 
includes operating a steam locomotive for conditioning purposes 
following major mechanical work and limited use of a passenger 
locomotive in freight service only when no other locomotive is 
available. Please note that paragraph (c), discussed below, qualifies 
the exclusion available under this paragraph (b)(3); both paragraphs 
must be read together.
    As discussed in section IV.E of this final rule, FRA is also 
revising paragraph (b)(3) to allow existing ``business cars'' to 
continue to operate without certified glazing. Paragraph (b)(3)(ii) is 
added to exclude existing cabooses and passenger cars in a railroad's 
fleet on April 11, 2016 that are used only for private transportation 
purposes and are not currently equipped with certified glazing. This 
change effectively makes the exclusion in paragraph (b)(3)(i) for 
cabooses and passenger cars that are historic or more than 50 years old 
and used only for the railroad's private transportation purposes 
available to all of the railroad's existing cabooses and passenger cars 
used only for private transportation purposes.
    In addition, as FRA proposed in the NPRM, FRA is revising paragraph 
(b)(4) to correct the reference to Sec.  223.5. Paragraph (b)(4) 
formerly contained 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 has no 
substantive effect on the application of the rule, as the definition of 
``designated service'' in Sec.  223.5 remains unchanged. Accordingly, 
this final rule removes the reference to paragraph (m) of Sec.  223.5 
so that paragraph (b)(4) instead refers to Sec.  223.5 generally.
    FRA is adding paragraph (c) to clarify the requirements applicable 
to equipment subject to the exclusion in paragraph (b)(3) of this 
section for ``antiquated equipment,'' to maintain safety in connection 
with the change to the application of this term for equipment built 
after 1945 but more than 50 years old. As discussed in sections IV.F 
and IV.H of this final rule, FRA is clarifying requirements for 
emergency windows in occupied passenger cars operated in intercity 
passenger or commuter trains, as well as clarifying requirements for 
locomotives, passenger cars, and cabooses currently equipped with 
compliant glazing. Paragraph (c) applies, as specified, to each 
locomotive, passenger car, and caboose built after 1945 more than 50 
years old and used only for excursion, educational, recreational, or 
private transportation purposes. Specifically, paragraph (c)(1) 
requires 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. Paragraph (c)(2) 
requires 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 February 9, 2016, to remain 
in compliance with those requirements. Accordingly, the final rule will 
not diminish the level of safety the regulation currently provides.

Section 223.5 Definitions

    FRA is revising three terms in this section: ``end facing glazing 
location,'' ``passenger car,'' and ``side facing glazing location.'' 
FRA is also defining ``incidental freight service.''
    Specifically, FRA is revising the definition of ``end facing 
glazing location'' by making clear the location means an ``exterior'' 
location and that dome and observation cars are included in the 
category of cars subject to the application of this definition, and by 
expressly identifying locations not considered ``end facing glazing 
location[s].'' The definition clearly excludes the coupled ends of MU 
locomotives or other equipment that is semi-permanently connected to 
each other in a train consist, and end doors

[[Page 6784]]

at locations other than the cab end of a cab car of MU locomotive. 
Instead of considering such locations to be end facing glazing 
locations requiring Type I glazing, these locations are considered side 
facing glazing locations requiring only Type II glazing, as noted 
below. Please see section IV.H of this final rule for a fuller 
discussion of the change to the definition of ``end facing glazing 
location.''
    FRA is adopting the changes to this definition as proposed in the 
NPRM but also makes clear the definition continues to provide that any 
location which, due to curvature of the glazing material, can meet the 
criteria for either an end facing location or a side facing location is 
considered an end facing location. This provision applies unless the 
location is otherwise excluded from this definition. FRA also notes 
that in the final rule this provision uses the more general term ``end 
facing'' location rather than ``front facing'' location consistent with 
the use of ``end facing'' glazing location in this final rule.
    In addition, this rule revises the definition of ``side facing 
glazing location.'' The definition now includes 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, 
these locations are considered side facing glazing locations requiring 
only Type II glazing due to the generally lower risk of an exterior 
projectile impacting the window surface.
    In addition, this rule revises the definition of ``passenger car'' 
by removing the statement that ``[t]his term does not include a private 
car.'' The revision clarifies that a private car can be considered a 
passenger car. Please see section IV.D of this final rule for a full 
discussion of this change.
    Finally, FRA is adding the term ``incidental freight service'' to 
mean the occasional and irregular use of a locomotive in freight 
service that is more than 50 years old and used primarily for 
excursion, educational, recreational, or private transportation 
purposes. Please see the discussion in section III.B and IV.C of this 
final rule, above.

Section 223.11 Requirements for Existing Locomotives

    As discussed in section IV.I of this final rule, the amendments to 
this section remove the compliance phase-in dates and related language 
from the glazing requirements for existing locomotives. As noted above, 
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 included an exception for 
locomotives that had their windows damaged by vandalism. Windows 
damaged due to vandalism were required to be replaced with compliant 
glazing sooner than the 1984 compliance phase-in date.
    Paragraph (c) removes the compliance phase-in date, June 30, 1984. 
This date is no longer needed now that it has long passed. Paragraph 
(d) removes the language that required windows damaged by vandalism to 
be replaced with compliant glazing sooner than the 1984 compliance 
phase-in date. This requirement is no longer needed because the 
compliance phase-in period has long passed and all existing 
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.
    No comments were received on this section and FRA accordingly 
adopts the changes to this section as proposed but further clarifies 
that existing yard locomotives continue to be excluded from the 
section's requirements. FRA's proposal may have inadvertently created 
an ambiguity whether this section's longstanding exception for existing 
yard locomotives continues to apply.

Section 223.13 Requirements for Existing Cabooses

    As discussed in section IV.I of this final rule, the amendments to 
this section remove the compliance phase-in dates and related language 
from the glazing requirements related to existing cabooses. As noted 
above, part 223 phased in requirements for glazing standards by 
generally allowing 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 damaged by vandalism were required to be replaced with 
compliant glazing sooner than the 1984 compliance phase-in date.
    Paragraph (c) removes the compliance phase-in date, June 30, 1984. 
This date is no longer needed now that it has long passed. Paragraph 
(d) removes the language that required windows damaged by vandalism to 
be replaced with compliant glazing sooner than the 1984 compliance 
phase-in date. This requirement is no longer needed because the 
compliance phase-in period has long passed and all cabooses, other than 
yard cabooses excluded by this section or those that satisfy the 
limited exclusions provided in Sec.  223.3, are required to be equipped 
with compliant glazing.
    FRA expressly invited comment on the NPRM on whether it needed to 
retain this section 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. No comments were received on this 
issue and this final rule makes no change to Sec.  223.9(b). No 
comments were received on Sec.  223.13 and FRA accordingly adopts the 
changes to Sec.  223.13 as proposed but clarifies that existing yard 
cabooses continue to be excluded from Sec.  223.13's requirements. 
FRA's proposal may have inadvertently created an ambiguity whether 
Sec.  223.13's longstanding exception for existing yard cabooses 
continues to apply.

Section 223.15 Requirements for Existing Passenger Cars

    As discussed in section IV.I of this final rule, the amendments to 
this section remove the compliance phase-in dates and related language 
from the glazing requirements for existing passenger cars. As noted 
above, before these changes the rule generally allowed the rail 
industry until June 30, 1984, to fit their existing passenger cars with 
compliant glazing. Windows damaged by vandalism were required to be 
replaced with compliant glazing sooner than the 1984 compliance phase-
in date.
    Paragraph (c) removes the compliance phase-in date, June 30, 1984. 
This date is no longer needed now that it has long passed. Paragraph 
(d) removes the language that required windows damaged by vandalism to 
be replaced with compliant glazing sooner than the 1984 compliance 
phase-in date. This requirement is no longer needed because 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.
    FRA expressly invited comment on the NPRM on whether it needed to 
retain this section needed 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. No comments were 
received on this issue and this final rule makes no change to Sec.  
223.9(c). No comments were received on Sec.  223.15 and FRA

[[Page 6785]]

accordingly adopts the changes to Sec.  223.15 as proposed.

Section 223.17 Identification of Equipped Locomotives, Passenger Cars 
and Cabooses

    Section Sec.  223.17 required 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 
part 223. This requirement is no longer necessary, and the final rule 
removes this entire section. As a result, this type of stenciling is no 
longer required. For a full discussion of this change, please see 
section IV.A of this final rule.

Appendix B to Part 223--Schedule of Civil Penalties

    Appendix B to part 223 contains a schedule of civil penalties for 
FRA to use to enforce this part. FRA is revising the schedule of civil 
penalties in this final rule to reflect revisions made to part 223. 
Because such penalty schedules are statements of agency policy, notice 
and comment are not required before they are issued. See 5 U.S.C. 
553(b)(3)(A). Nevertheless, FRA invited comments on the penalty 
schedule in the NPRM. However, FRA did not receive any comments. 
Accordingly, FRA is revising the penalty schedule to reflect the 
removal of Sec.  223.17, Identification of Equipped Locomotives, 
Passenger Cars and Cabooses, from this part.

VI. Regulatory Impact and Notices

A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    This final rule has been evaluated consistent with Executive Order 
12866 (Regulatory Planning and Review), Executive Order 13563 
(Improving Regulation and Regulatory Review), and DOT policies and 
procedures. FRA has prepared and placed in the docket a regulatory 
analysis addressing the economic impact of this final rule. FRA 
believes this final rule is consistent with current industry practices 
and reduces the regulatory burden on the rail industry.
    The analysis includes a quantitative evaluation of the benefits of 
this final rule. For entities choosing to take advantage of the new 
flexibilities and cost savings provided in this final rule, FRA 
estimates there may be a minimal cost burden associated with this rule. 
Specifically, railroads or car owners or operators may need to purchase 
small hammers or other tools for occupants to use to break windows for 
emergency egress in passenger cars now considered ``antiquated 
equipment,'' because they were built after 1945 and are more than 50 
years old, when these passenger cars are operated in intercity 
passenger or commuter trains. Additionally, railroads will 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 greatly outweigh any costs that 
may be incurred. The revisions specified in this final rule 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 $1,088,489 in cost 
savings will accrue due to the changes. The present value of this 
amount is $819,479 (discounted at 7 percent). Therefore, accounting for 
the $6,000 in voluntarily-incurred costs to take advantage of the 
flexibilities provided in this final rule, the net savings of this rule 
is approximately $813,479.
    FRA is eliminating the requirement to stencil the inside walls of 
locomotives, passenger cars, and cabooses as fully equipped with 
compliant glazing. This requirement was necessary during the 
implementation phase-in period of part 223 (in the 1980s), when large 
numbers of affected equipment were not equipped with glazing required 
by part 223. The stencil was a clear and easy way to determine whether 
compliant glazing was installed. Because the phase-in period for 
fitting equipment with certified glazing under part 223 has long 
passed, the required certification markings on the window panels have 
become more useful and reliable for FRA to determine compliance with 
part 223. The total annual cost for all affected entities to comply 
with the stenciling requirement is from $74,170 (Year 1) to $80,820 
(Year 10) (non-discounted). This variability is due to the increase in 
real wages discussed in section 6 of the accompanying analysis in the 
docket for this rulemaking. Consequently, over a 10-year period, the 
analysis finds that a total of $773,841 in cost savings will accrue 
through the elimination of this requirement. The present value of this 
amount is $578,494 (discounted at 7 percent).
    This rule revises definitions to help provide clarity to the rail 
industry and also greater consistency with other FRA regulations. 
Antiquated equipment will now be defined as equipment that is more than 
50 years old. This significantly reduces 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. Based on past practice, FRA estimates it would have received 
approximately 140 initial waiver requests over the next five years (28 
per year) if this rule were not issued. FRA is estimating the potential 
waivers that will no longer be needed over a five-year period because 
renewal waivers would have been needed every five years to avoid 
installing certified glazing. Therefore, no additional waiver 
applications would be expected after the fifth year. In years when the 
initial waiver petitions would have been submitted if this rule were 
not issued, the total annual cost for all affected entities would have 
been from $16,507 (Year 1) to $16,921 (Year 10) (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. Accordingly, a total of $83,563 in cost savings will accrue 
over 10 years due to the reduction of initial waiver requests. The 
present value of this amount is $73,260 (discounted at 7 percent).
    FRA has approved approximately 310 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 final rule was not issued, 
renewal waivers would be required to be submitted every five years to 
continue operations. Under this final rule, these waivers are no longer 
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 $18,275 
(Year 1) to $28,066 (Year 10) (non-discounted) if this rule were not 
issued. This variability is due to the rise in real wages discussed in 
section 6 of the accompanying analysis this rulemaking's docket. Over a 
10-year period, a total of $231,084 in cost savings will therefore 
accrue due to the reduction of renewal waivers. The present value of 
this amount is $167,725 (discounted at 7 percent).
    FRA notes it is revising the definition of the term ``end facing 
glazing location'' to clarify the location means

[[Page 6786]]

an ``exterior'' location and expressly identify locations not 
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 did not 
evaluate any cost savings as a result of this clarification, because 
FRA has generally enforced the regulation consistent with this 
clarification.
    FRA expressly requested comments on all aspects of the regulatory 
evaluation and its conclusions. No comments were received in response 
to FRA's request.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (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 final rule will not have a 
significant economic impact on a substantial number of small entities. 
This rule will affect small entities. However, the effect on these 
entities will be purely beneficial other than for a nominal cost 
savings offset, as it will 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. A for-profit railroad business firm may 
be considered a small entity if it has less than 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. Under 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.'' \7\ 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 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.\8\ 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 final rule.
---------------------------------------------------------------------------

    \7\ 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.
    \8\ 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 726 railroads that operate on standard 
gage track that is part of the general railroad system of 
transportation and are, therefore, subject to part 223, see 49 CFR 
223.3. Of these railroads, 44 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 
681 railroads are therefore assumed to be small railroads for the 
purpose of this assessment. However, this final rule will not impact 
most of these railroads because locomotives acquired by small railroads 
are typically older Class I locomotives already equipped with compliant 
glazing and stenciling. Similarly, any passenger cars acquired by small 
railroads from intercity passenger or commuter railroads will already 
be equipped with compliant glazing and stenciling.
    Small railroads and private car owners will likely be affected by 
the clarification that certain equipment more than 50 years old is 
considered antiquated and thereby excluded from part 223's requirements 
when operated in specified service. As a result of this change, the 
economic burden of preparing and submitting waiver petitions will be 
reduced for 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

[[Page 6787]]

receive approximately 140 initial requests for waiver of the glazing 
requirements over the next five years (28 per year) if this change were 
not made, and the approximately 310 approved waivers of glazing 
requirements would also have to be renewed every five years if this 
change were not made. When including the avoided cost of renewing the 
additional 140 initial waiver requests by making this change--a total 
of approximately 900 \9\ avoided waiver petitions--the total cost 
savings is $240,985 over 10 years, discounted at 7 percent. Of course, 
the individually allocated savings to each affected railroad or private 
car owner will be a comparatively smaller portion of the total cost 
savings.
---------------------------------------------------------------------------

    \9\ A total of approximately 900 waiver petitions will be 
avoided: 140 initial petitions in the first five years + 140 initial 
petitions renewed in the next five years + 310 approved waiver 
petitions renewed in the first five years + 310 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, because they 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 may be used to break these 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 will not have hammers or other tools already on board to 
facilitate emergency egress through windows. Therefore, for 100 of 
those private cars, car owners will have to purchase four hammers or 
other tools per car. That total cost will be approximately $5,000. 
Additionally, a minimal cost to copy and laminate instructions to use 
the hammers or other tools will also be incurred. FRA estimates this 
total cost to be $1,000 (approximately $10 per car). All these costs 
will be incurred during the first year. Therefore, the present value of 
all total costs is approximately $6,000. This $6,000 cost will easily 
be offset by the total cost savings of $240,985 from changing the 
definition of ``antiquated equipment,'' which is shared among all small 
entities. Consequently, FRA concludes this final rule will not have a 
significant economic impact on a substantial number of small entities.
    FRA certifies that this final 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 will be affected by this rule, none of these entities 
will be significantly impacted. In order to determine the significance 
of the economic impact for the final rule's RFA requirements, FRA 
expressly invited comments on the NPRM from all interested parties 
concerning the potential economic impact on small entities resulting 
from the rule. FRA did not receive comments on this issue.

C. Paperwork Reduction Act

    FRA is submitting the information collection requirements in this 
final rule 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 new information and current 
information collection requirements and the estimated time to fulfill 
each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                      Respondent         Total annual      Average time per      Total annual
           CFR section                 universe            responses           response          burden hours
----------------------------------------------------------------------------------------------------------------
223.3(c)--Application: Passenger  673 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:     673 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 windows    673 railroads.....  15 designations...  30 seconds........  0.125 hour.
 broken or damaged--placed in
 designated service (revised
 requirement).
--Locomotives removed from        673 railroads.....  Certification done  N/A...............  N/A.
 service until broken/damaged                          instantly at time
 windows are replaced with                             of window
 certified glazing (revised                            manufacture.
 requirement).
223.13--Existing Cabooses: Built  673 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 service   673 railroads.....  Certification done  N/A...............  N/A.
 until broken/damaged windows                          instantly at time
 are replaced with certified                           of window
 glazing (revised requirement).                        manufacture.
223.15--Existing Passenger Cars:  673 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 from     673 railroads.....  Certification done  N/A...............  N/A.
 service until broken/damaged                          instantly at time
 windows are replaced with                             of window
 certified glazing (revised                            manufacture.
 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).

[[Page 6788]]

 
--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. For information or a copy of the 
paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, Office of Railroad Safety, FRA, at 202-
493-6292, or Ms. Kimberly Toone, FRA Records Management Officer, Office 
of Information Technology, FRA, at 202-493-6132, or via email at the 
following addresses: [email protected]; [email protected].
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should send them directly to the 
Office of Management and Budget, Office of Information and Regulatory 
Affairs, Washington, DC 20503, Attention: FRA Desk Officer. Comments 
may also be sent via email to the Office of Management and Budget at 
the following address: [email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final 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 cannot 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 new information collection requirements resulting from this 
rulemaking action prior to the effective date of this final rule. The 
OMB control number, when assigned, will be announced by separate notice 
in the Federal Register.

D. Federalism Implications

    Executive Order 13132, ``Federalism'' (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 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, an 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.
    FRA has analyzed this rule under the principles and criteria in 
Executive Order 13132. This rule will not have a substantial effect on 
the States or their political subdivisions, and it will 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. In addition, 
FRA determined this regulatory action will not impose substantial 
direct compliance costs on States or their political subdivisions. 
Therefore, the consultation and funding requirements of Executive Order 
13132 do not apply. Nevertheless, State and local officials were 
involved in developing recommendations 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, 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. Section 20106 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 ``essentially local 
safety or security hazard'' exception to section 20106. Moreover, the 
Supreme Court has interpreted the former LIA to preempt the field of 
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).

E. Environmental Impact

    FRA has evaluated this final rule under the National Environmental 
Policy Act (NEPA; 42 U.S.C. 4321 et seq.), other environmental 
statutes, related regulatory requirements, and its ``Procedures for 
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545, 
May 26, 1999). FRA has determined this final rule is categorically 
excluded from detailed environmental review under section 4(c)(20) of 
FRA's Procedures, ``Promulgation of railroad safety rules and policy 
statements that do not result in significantly increased emissions of 
air or water pollutants or noise or increased traffic congestion in any 
mode of transportation.'' See 64 FR 28547, May 26, 1999. Categorical 
exclusions (CEs) are actions identified in an agency's NEPA 
implementing procedures that do not normally have a significant impact 
on the environment and therefore do not require either an environmental 
assessment (EA) or environmental impact statement (EIS). See 40 CFR 
1508.4.
    In analyzing the applicability of a CE, the agency must also 
consider whether extraordinary circumstances are present that would 
warrant a more detailed environmental review through the preparation of 
an EA or EIS. Id. Under section 4(c) and (e) of FRA's Procedures, FRA 
has further concluded that no extraordinary circumstances exist with 
respect to this regulation that might trigger the need for a more 
detailed environmental review. The purpose of this rulemaking is to 
revise and clarify existing regulations related to the use of glazing 
materials in the windows of locomotives, passenger cars, and cabooses. 
FRA does not anticipate any environmental impacts from these 
requirements and finds that there are no

[[Page 6789]]

extraordinary circumstances present in connection with this final rule.

F. Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, and DOT 
Order 5610.2(a) (91 FR 27534, May 10, 2012) 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. FRA has evaluated this final rule under Executive Order 
12898 and the DOT Order and determined it will not cause 
disproportionately high and adverse human health and environmental 
effects on minority populations or low-income populations.

G. Executive Order 13175 (Tribal Consultation)

    FRA has evaluated this final rule under the principles and criteria 
contained in Executive Order 13175, Consultation and Coordination with 
Indian Tribal Governments, dated November 6, 2000. This final rule will 
not have a substantial direct effect on one or more Indian tribes, will 
not impose substantial direct compliance costs on Indian tribal 
governments, and will not preempt tribal laws. Therefore, the funding 
and consultation requirements of Executive Order 13175 do not apply, 
and a tribal summary impact statement is not required.

H. Unfunded Mandates Reform Act of 1995

    Under Section 201 of the Unfunded Mandates Reform Act of 1995 
(Public Law 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. 
When adjusted for inflation using the Consumer Price Index for All 
Urban Consumers as published by the Bureau of Labor Statistics, the 
equivalent value of $100,000,000 in year 2014 dollars is 
$155,000,000.\10\ The final rule will 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.
---------------------------------------------------------------------------

    \10\ See DOT guidance ``2015 Threshold of Significant Regulatory 
Actions Under the Unfunded Mandates Reform Act of 1995,'' May 6, 
2015 (update), available electronically at http://www.transportation.gov/office-policy/transportation-policy/2015-threshold-significant-regulatory-actions-under-unfunded.
---------------------------------------------------------------------------

I. Privacy Act

    FRA wishes to inform all interested parties 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 Final Rule

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

PART 223 [AMENDED]

0
1. Revise the authority citation for part 223 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. In Sec.  223.3, revise paragraphs (b)(3) and (4) and add paragraph 
(c) to read as follows:


Sec.  223.3  Application.

* * * * *
    (b) * * *
    (3) Except as provided in paragraph (c) of this section:
    (i) Locomotives, cabooses, and passenger cars that are historic or 
more than 50 years old and, except for incidental freight service, are 
used only for excursion, educational, recreational, or private 
transportation purposes; and
    (ii) Cabooses and passenger cars in a railroad's fleet on April 11, 
2016 that are used only for the railroad's private transportation 
purposes. Each such railroad caboose or car that is equipped with 
glazing that complies with the glazing requirements contained in 
appendix A to this part as of February 9, 2016, must remain in 
compliance with those requirements.
    (4) Locomotives that are used exclusively in designated service as 
defined in Sec.  223.5.
    (c) Except as provided in paragraph (b)(3) of this section, 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 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 February 9, 2016, must 
remain in compliance with those requirements.

0
3. In Sec.  223.5, revise the definitions for ``End facing glazing 
location'', ``Passenger car'', and ``Side facing glazing location'' and 
add the definition for ``Incidental freight service'' in alphabetical 
order 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

[[Page 6790]]

consist; and end doors of passenger cars at locations other than the 
cab end of a cab car or MU locomotive. Any location which, due to 
curvature of the glazing material, can meet the criteria for either an 
end facing location or a side facing location shall be considered an 
end facing location.
* * * * *
    Incidental freight service means the occasional and irregular use 
of a locomotive in freight service that is more than 50 years old and 
used primarily for excursion, educational, recreational, or private 
transportation purposes.
* * * * *
    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 any 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. In Sec.  223.11, revise 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) Except for yard locomotives, 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. In Sec.  223.13, revise 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) Except for yard cabooses, 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. In Sec.  223.15, revise 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. Remove and reserve Sec.  223.17.

Appendix B to Part 223--[Amended]

0
8. In appendix B to part 223, remove the entry for Sec.  223.17.

    Issued in Washington, DC, on February 1, 2016.
Sarah Feinberg,
Administrator.
[FR Doc. 2016-02524 Filed 2-8-16; 8:45 am]
BILLING CODE 4910-06-P