Federal Register / Vol. 81, No. 26 / Tuesday, February 9, 2016 / Rules and Regulations 6775

The documents that the EPA relied on action will be effective April 11, 2016 proposed rule, modifies the application for the partial deletion of OU1 and OU3 unless EPA receives adverse comments of the regulations to passenger cars and from the California Gulch Superfund by March 10, 2016. If adverse comments cabooses in a railroad’s fleet that are Site are in the docket and are available are received within the 30-day public used only for private transportation to the public in the information comment period, EPA will publish a purposes and to older locomotives used repositories. A notice of availability of timely withdrawal of this direct final in incidental freight service. the Notice of Intent for Partial Deletion notice of partial deletion before the DATES: This final rule is effective April has been published in the Leadville effective date of the partial deletion and 11, 2016. Petitions for reconsideration Herald Democrat to satisfy public it will not take effect. EPA will prepare must be received on or before April 11, participation procedures required by 40 a response to comments and continue 2016. Comments in response to CFR 300.425 (e) (4). with the deletion process on the basis of petitions for reconsideration must be The State, the Lake County the notice of intent to partially delete received on or before May 24, 2016. Commissioners, the City of Leadville are and the comments already received. ADDRESSES: Petitions for reconsideration supportive of the partial deletion of There will be no additional opportunity and comments on petitions for OU1 and OU3. The State signed a letter to comment. reconsideration: Petitions for of concurrence on October 7, 2015. List of Subjects in 40 CFR Part 300 reconsideration or comments on Determination That the Criteria for petitions for reconsideration related to Environmental protection, Air Deletion Have Been Met Docket No. FRA–2012–0103, Notice No. pollution control, Chemicals, Hazardous 2, may be submitted by any of the EPA has consulted with the State, waste, Hazardous substances, following methods: Lake County Commissioners, and the Intergovernmental relations, Penalties, • Web site: The Federal eRulemaking City of Leadville on the proposed partial Reporting and recordkeeping Portal, http://www.regulations.gov. deletion of OU1 and OU3 of the requirements, Superfund, Water Follow the Web site’s online California Gulch Site from the NPL prior pollution control, Water supply. to developing this Notice of Partial instructions for submitting comments, Dated: January 15, 2016. Deletion. Through the five-year reviews, to include petitions for reconsideration. Shaun L. McGrath, • EPA has also determined that the Fax: 202–493–2251. • Mail: Docket Management Facility, response actions taken are protective of Regional Administrator, Region 8. U.S. Department of Transportation, 1200 public health or the environment and, [FR Doc. 2016–02601 Filed 2–8–16; 8:45 am] New Jersey Avenue SE., Room W12– therefore, taking of additional remedial BILLING CODE 6560–50–P 140, Washington, DC 20590. measures is not appropriate. • The implemented remedies achieve Hand Delivery: Docket Management the degree of cleanup or protection DEPARTMENT OF TRANSPORTATION Facility, U.S. Department of specified in: for OU1, the 1988 OU1 Transportation, 1200 New Jersey ROD, 1989 OU1 AROD, the 1991 OU1 Federal Railroad Administration Avenue SE., Room W12–140 on the ESD and 2013 OU1 ESD; and for OU3, Ground level of the West Building, the 1998 OU3 ROD and the 2014 OU3 49 CFR Part 223 between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. ESD. [Docket No. FRA–2012–0103, Notice No. 2] All selected removal and remedial Instructions: All submissions must action objectives and associated cleanup RIN 2130–AC43 include the agency name and docket number or Regulatory Identification goals for OU1 and OU3 are consistent Safety Glazing Standards with agency policy and guidance. This Number (RIN) for this rulemaking partial deletion meets the completion AGENCY: Federal Railroad (2130–AC43). Note that all petitions and requirements as specified in OSWER Administration (FRA), Department of comments received will be posted Directive 9320.2–22, Close Out Transportation (DOT). without change to http:// www.regulations.gov, including any Procedures for National Priority List ACTION: Final rule. Sites. All response activities at OU1 and personal information provided. Please OU3 of the Site are complete and the SUMMARY: In this final rule, FRA is see the Privacy Act heading in the two operable units pose no revising and clarifying existing SUPPLEMENTARY INFORMATION section of unacceptable risk to human health or regulations related to the use of glazing this document for Privacy Act the environment. Therefore, EPA and materials in the windows of information related to any submitted CDPHE have determined that no further locomotives, passenger cars, and comments, petitions, or materials. response is necessary at OU1 and OU3 cabooses. This final rule reduces Docket: For access to the docket to of the Site. paperwork and other economic burdens read background documents, any on the rail industry by removing a petition for reconsideration submitted, V. Partial Deletion Action stenciling requirement for locomotives, or comments received, go to http:// The EPA, with concurrence of the passenger cars, and cabooses that are www.regulations.gov at any time or visit State through the CDPHE has required to be equipped with glazing. the Docket Management Facility, U.S. determined that all appropriate This final rule also clarifies the Department of Transportation, 1200 response actions under CERCLA, other application of the regulations to older New Jersey Avenue SE., Room W12–140 than operation, maintenance, equipment and to the end locations of on the Ground level of the West monitoring and five-year reviews, have all equipment to provide more certainty Building, between 9 a.m. and 5 p.m., been completed. Therefore, EPA is to the rail industry and more narrowly Monday through Friday, except Federal deleting all of OU1, Yak Tunnel/Water address FRA’s safety concerns. In holidays. Treatment Plant; and OU3, D&RGW Slag addition, this final rule clarifies the FOR FURTHER INFORMATION CONTACT: Easement/Railroad Yard, of the Site. definition of passenger car, updates the Steve Zuiderveen, Railroad Safety Because EPA considers this action to rule by removing certain compliance Specialist, Motive Power & Equipment be non-controversial and routine, EPA is dates that are no longer necessary, and, Division, Office of Safety Assurance and taking it without prior publication. This in response to comments on the Compliance, Mail Stop 25, Federal

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Railroad Administration, 1200 New reduce the regulatory burden on in dates that are no longer necessary. Jersey Avenue SE., Room W35–216, industry, when appropriate. (See Also, in response to comments on the Washington, DC 20590 (telephone 202– Executive Orders 13563 and 13610, NPRM, this final rule modifies 493–6337); or Michael Masci, Trial discussed in more detail in section II of application of the safety glazing Attorney, Office of Chief Counsel, Mail this preamble). During FRA’s review of requirements to passenger cars and Stop 10, Federal Railroad its Safety Glazing Standards in 49 CFR cabooses in a railroad’s fleet used only Administration, 1200 New Jersey part 223 1 (part 223), FRA identified for private transportation purposes and Avenue SE., Room W31–115, potential changes to requirements for to older locomotives used in incidental Washington, DC 20590 (telephone 202– stenciling and ‘‘antiquated equipment’’ freight service. as opportunities to reduce paperwork 493–6037). Economic Impact SUPPLEMENTARY INFORMATION: and other economic burdens on the rail industry without adversely impacting FRA believes this final rule is Table of Contents for Supplementary safety. On September 26, 2014, FRA consistent with current industry Information issued its proposed changes to these practices and reduces the regulatory I. Executive Summary requirements in a notice of proposed burden on the rail industry. II. NPRM Background rulemaking (NPRM). See 79 FR 57856. The estimated quantified benefits or A. Executive Orders 13563 and 13610 After considering the comments cost savings of this rule total $1,088,489. B. RSAC End Facing Glazing received on the NPRM, FRA modifies The present value (PV), discounted at 7 Recommendation these requirements in this final rule. percent, of the estimated quantified III. Discussion of Specific Comments and Specifically, this final rule eliminates benefits is approximately $819,479. FRA Conclusions as unnecessary the requirement to concludes that the industry incurs only A. AAR’s Comments a minimal cost of approximately $6,000 B. ATRRM’s Comments stencil inside walls of locomotive cabs, IV. General Overview of the Final Rule passenger cars, and cabooses to indicate to take advantage of the flexibilities in A. Removal of the Requirement To Stencil that the equipment contains window this rule. Therefore, FRA estimates the Certified Glazing Compliance on Inside glazing certified in compliance with the net benefit (cost savings) of this rule is Walls of Locomotive Cabs, Passenger Safety Glazing Standards. Further, this approximately $813,479 (PV, 7 percent). Cars, and Cabooses final rule uses a rolling, 50-year II. NPRM Background B. Clarification of the Term ‘‘Antiquated calculation to determine whether Equipment’’ equipment is ‘‘antiquated’’ based on its Under its general statutory C. Exclusion of Older Locomotives Used in rulemaking authority, FRA promulgates Incidental Freight Service build date—rather than a fixed date of 1945 or earlier—thereby eliminating the and enforces rules as part of a D. Clarification of the Terms ‘‘Private Car’’ comprehensive regulatory program to and ‘‘Passenger Car’’ cost of fitting equipment more than 50 E. Modification of the Application of the years old and used only for certain address all areas of railroad safety. See Safety Glazing Standards to Passenger purposes with compliant glazing. To 49 U.S.C. 20103 and 49 CFR 1.89. In the Cars and Cabooses in a Railroad’s Fleet maintain safety in connection with the area of safety glazing, FRA has issued That Are Used Only for Private Business change to the application of the term regulations generally found at part 223. Purposes ‘‘antiquated equipment,’’ FRA is FRA continually reviews its regulations F. Emergency Windows for Occupied and revises them as needed to: (1) Passenger Cars That Are More Than 50 clarifying requirements for emergency windows in occupied passenger cars Ensure the regulatory burden on the rail Years Old But Built After 1945 and industry is not excessive; (2) clarify the Operated in an Intercity Passenger or operated in intercity passenger or Commuter Train commuter trains, and clarifying application of existing requirements and G. Locomotives, Passenger Cars, and requirements for locomotives, remove requirements that are no longer Cabooses That Are More Than 50 Years passengers, and cabooses currently necessary; and (3) keep pace with Old But Built After 1945 and Equipped equipped with compliant glazing. emerging technology, changing With Compliant Glazing Separately, this final rule makes operational realities, and safety H. Clarification of the Term ‘‘End Facing changes based on a Railroad Safety concerns. FRA’s review of part 223 Glazing Location’’ identified several compliance phase-in I. Removal of Compliance Phase-In Dates Advisory Committee (RSAC) recommendation. In 2013, FRA’s RSAC dates in the regulation that have passed That Have Passed and Are No Longer and are no longer necessary. To improve Applicable recommended that FRA clarify the V. Section-by-Section Analysis application of the glazing requirements the plain language and make the VI. Regulatory Impact and Notices in part 223 to address requirements for regulation more clear and concise, FRA A. Executive Orders 12866 and 13563 and the next generation of high-speed proposed to remove the dates that have DOT Regulatory Policies and Procedures trainsets. FRA agrees that aspects of the passed. Further, FRA specifically B. Regulatory Flexibility Act and Executive RSAC recommendation are appropriate proposed amending the safety glazing Order 13272 to adopt generally for all equipment, requirements based on FRA’s detailed C. Paperwork Reduction Act analyses of the requirements and a D. Federalism Implications and is therefore doing so in this final rule. Specifically, FRA believes that recommendation from FRA’s RSAC, E. Environmental Impact discussed below. F. Executive Order 12898 (Environmental amending application of the phrase Justice) ‘‘end facing glazing location’’ in part A. Executive Orders 13563 and 13610 G. Executive Order 13175 (Tribal 223 reduces the economic burden on the On January 18, 2011, the President Consultation) rail industry without adversely issued Executive Order 13563 H. Unfunded Mandates Reform Act of 1995 impacting safety. (Improving Regulation and Regulatory I. Privacy Act In addition, FRA is clarifying the Review). Executive Order 13563 application of requirements for private I. Executive Summary requires agencies to periodically cars, and eliminating compliance phase- Beginning on January 18, 2011, the conduct retrospective analyses of their existing rules to identify requirements President issued a set of Executive 1 Unless otherwise specified, all references to CFR Orders which require Federal agencies sections and parts in this document refer to title 49 that may be outmoded, ineffective, to review existing regulations and of the CFR. insufficient, or excessively burdensome.

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The Executive Order further requires interested parties.2 When appropriate, accepted a task related to high-speed that agencies modify, streamline, FRA assigns a task to RSAC, and after rail safety, the Working Group’s expand, or repeal any problematic consideration and debate, RSAC may Engineering Task Force 4 established the regulatory provisions identified during accept or reject the task. If accepted, Tier III Cab Glazing Task Group (Task their review. During FRA’s retrospective RSAC establishes a working group that Group) to focus on issues concerning analysis of part 223, the agency possesses the appropriate expertise and safety glazing. The Task Group identified requirements for antiquated representation of interests to develop discussed glazing during four meetings equipment in particular as being recommendations to FRA for action on held between March and May 2013. potentially burdensome to the regulated the task. These recommendations are During the Task Group’s last meeting, community. Specifically, the term developed by consensus. A working the Group reached consensus on a ‘‘antiquated equipment’’ was not group may establish one or more task recommendation to apply FRA’s Safety explicitly defined in the rule text, and forces and task groups to develop facts Glazing Standards to trainsets operating FRA’s interpretive guidance had the and options on a particular aspect of a at speeds up to 220 miles per hour, potential of imposing a progressively given task. When a working group including requirements applicable to larger burden on a small segment of the comes to unanimous consensus on end facing glazing locations that focus industry over time. Accordingly, this recommendations for action, the on the exposed exterior of the trainsets. final rule clarifies the application of package is presented to the full On June 14, 2013, the full Committee these requirements and reduces their Committee for a vote. If RSAC is unable adopted the Task Group’s potential economic burden on the rail to reach consensus on a recommendation and presented it to industry. recommendation for action, the task is FRA for consideration. Based on FRA’s Further, on May 10, 2012, the withdrawn and FRA determines the best experience enforcing glazing President issued Executive Order 13610 course of action. If the proposal is requirements, FRA believes that the (Identifying and Reducing Regulatory accepted by a simple majority of RSAC, RSAC Task Group’s approach to Burdens). Executive Order 13610 the proposal is formally recommended identifying end facing glazing locations requires agencies to take continuing to the Administrator of FRA. FRA then is appropriate to adopt generally for all steps to reassess regulatory determines what action to take on the equipment, not only high-speed requirements, and where appropriate, to recommendation. trainsets, and is therefore doing so in In March 2013, after RSAC’s this final rule. FRA believes it is helpful streamline, improve, or eliminate those 3 requirements. Executive Order 13610 Passenger Safety Working Group to clarify for equipment operating at emphasizes that agencies should conventional speeds what exterior 2 prioritize ‘‘initiatives that will produce A list of RSAC member groups includes the locations are end facing glazing following: American Association of Private Railroad locations, to reduce the economic significant quantifiable monetary Car Owners (AAPRCO); American Association of savings or significant quantifiable State Highway and Transportation Officials burden on the rail industry without reductions in paperwork burdens.’’ In (AASHTO); American Chemistry Council; adversely impacting safety. American Petroleum Institute; American Public response to these instructions, DOT Transportation Association (APTA); American III. Discussion of Specific Comments carried out a Paperwork Reduction Act Short Line and Regional Railroad Association and Conclusions (ASLRRA); American Train Dispatchers Association initiative that focused on identifying The NPRM solicited written and eliminating paperwork burdens on (ATDA); Association of American Railroads (AAR); Association of State Rail Safety Managers (ASRSM); comments from the public under the the rail industry as appropriate. FRA Association of Tourist Railroads and Railway Administrative Procedure Act (APA) (5 conducted a comprehensive review of Museums (ATRRM); Brotherhood of Locomotive U.S.C. 553). FRA also invited comment Engineers and Trainmen (BLET); Brotherhood of its regulations based on the guidance on a number of specific issues related to provided in Executive Order 13610 and Maintenance of Way Employes Division; Brotherhood of Railroad Signalmen (BRS); Chlorine the proposed rule to develop the final determined that eliminating the Institute; Federal Transit Administration (FTA); * stenciling requirement in § 223.17 was Fertilizer Institute; Institute of Makers of Company (Metro-North), Northeast Illinois Regional an opportunity to reduce the paperwork Explosives; International Association of Machinists Commuter Railroad Corporation, Southern and Aerospace Workers; International Brotherhood California Regional Rail Authority (Metrolink), and burden on the rail industry without of Electrical Workers; Labor Council for Latin adversely impacting safety. (FRA’s Southeastern Pennsylvania Transportation American Advancement; * League of Railway Authority (SEPTA); ASLRRA; BLET; BRS; FTA; Executive Order 13563 review also Industry Women; * National Association of Railroad NARP; NTSB; RSI; SMWIA; STA; TCIU/BRC; TSA; identified § 223.17 as a candidate for Passengers (NARP); National Association of TWU; and UTU. Railway Business Women; * National Conference of 4 Members of the Engineering Task Force, in elimination.) This final rule eliminates Firemen & Oilers; National Railroad Construction addition to FRA, include the following: AAR; this stenciling requirement. and Maintenance Association (NRCMA); National AAPRCO; AASHTO, including California Railroad Passenger Corporation (Amtrak); National B. RSAC End Facing Glazing Department of Transportation, and Interfleet; Transportation Safety Board (NTSB); * Railway APTA, including Alstom, Ansaldo Breda, Recommendation Supply Institute (RSI); Safe Travel America (STA); Bombardier, Central Japan Railway Company, Secretaria de Comunicaciones y Transporte; * Sheet In addition to the changes FRA China South Locomotive and Rolling Stock Metal Workers International Association (SMWIA); Corporation, Denver Regional Transportation proposed in response to these Executive Transport Canada; * Transport Workers Union of District, East Japan Railway Company, Faiveley Orders, FRA’s proposal was also based America (TWU); Transportation Communications Transport, GE Transportation, Japan International on an RSAC recommendation International Union/BRC (TCIU/BRC); Transport Institute, Japan’s Ministry of Land, Transportation Security Administration (TSA); * addressing the application of the Infrastructure, Transport and Tourism, Kawasaki, and United Transportation Union (UTU). Keolis, KPS N.A., LIRR, LTK Engineering Services, regulations for the next generation of * Indicates associate, non-voting membership. Marsh, Metrolink, Metro-North, Nippon Sharyo, high-speed trainsets. RSAC is a forum 3 Members of the Working Group, in addition to Parsons Brinckerhoff, PS Consulting, Safetran for collaborative rulemaking and FRA, include the following: AAR, including Systems, SEPTA, Sharma & Associates, Siemens, program development that FRA members from BNSF Railway Company, CSX Stadler, STV, Talgo, Texas Central Railway, Veolia, Transportation, Inc., and Union Pacific Railroad Voith Turbo, and Wabtec; Amtrak; ASLRRA; BLET; established in March 1996. RSAC Company; AAPRCO; AASHTO; Amtrak; APTA, European Railway Agency; International includes representation from all of the including members from Bombardier, Inc., Herzog Association of Sheet Metal, Air, Rail and agency’s major stakeholder groups, Transit Services, Inc., Interfleet Technology, Inc. Transportation Workers (SMART), including including railroads, labor organizations, (Interfleet, formerly LDK Engineering, Inc.), Long SMWIA and UTU; NTSB; RSI, including Battelle Island Rail Road (LIRR), Maryland Transit Memorial Institute, and ENSCO; TCIU/BRC; and suppliers and manufacturers, and other Administration, Metro-North Commuter Railroad Transport Canada.

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rule. Consideration of public comment use to break or remove a window during the rule text, FRA addresses each of the is valuable, as it allows FRA to access an emergency. relevant comments in the corresponding additional viewpoints from interested In response to ATRRM’s first regulatory paragraphs of the section-by- parties and include them in the final comment, this final rule excludes from section analysis provided below. rule when appropriate. By the close of the glazing requirements a small IV. General Overview of the Final Rule the comment period on November 25, number of primarily excursion 2014, FRA received two sets of locomotives that are used in incidental A. Removal of the Requirement To comments. AAR and ATRRM each freight service when no other power is Stencil Certified Glazing Compliance on submitted comments. available. Based on its thorough review Inside Walls of Locomotive Cabs, of the issue, FRA believes it can provide Passenger Cars, and Cabooses A. AAR’s Comments this relief without having an adverse As noted above, FRA’s review of its AAR requested two changes in the impact on rail safety. A fuller discussion regulations under Executive Order final rule: (1) Confirm and clarify the of this issue is provided in section IV.C. 13563 and Executive Order 13610 glazing requirements do not apply to of this final rule. identified as a candidate for elimination business cars; and (2) remove the noise In response to ATRRM’s second § 223.17, which provided that emissions testing decal requirement in comment, FRA confirms that locomotive cabs, passenger cars, and part 210. In response to AAR’s first § 223.3(c)(1) does not require a cabooses be stenciled inside on an comment, this final rule excludes passenger car with windows that open interior wall with the type of glazing certain cars in a railroad’s fleet that are wide enough to permit egress to be present in the equipment. In particular, used only for private transportation equipped with a tool or implement to Executive Order 13610 requires agencies purposes from the glazing requirements. use to break or remove a window during to take continuing steps to reassess After reviewing favorable safety data, an emergency. FRA believes the plain regulatory requirements and, where FRA believes the glazing requirements language of § 223.3(c)(1) is clear, and appropriate, to streamline, improve, or should not apply to these cars used only read in conjunction with §§ 223.9(c) and eliminate those requirements. Executive for private transportation. A fuller 223.15(c), communicates that no tool or Order 13610 emphasizes that agencies discussion of this issue is provided in implement is required in such a case. should prioritize ‘‘initiatives that will section IV.E. of this final rule. Therefore, FRA believes that no change produce significant quantifiable AAR’s request to remove the noise is necessary and is adopting monetary savings or significant decal required in part 210 is outside the § 223.3(c)(1) as proposed. Nevertheless, quantifiable reductions in paperwork scope of this rulemaking. Therefore FRA FRA takes this opportunity to clarify the burdens.’’ In 2012, FRA conducted a cannot properly adopt it in this final language and intent of this paragraph to comprehensive review of its regulations rule. Under the APA, a final rule must avoid any confusion. The purpose for based on the guidance in Executive be based on the subjects and issues requiring an emergency window exit is Order 13610 and determined removal of identified in the NPRM. See 5 U.S.C. to help ensure passengers are not sealed the certified glazing stenciling 553. The purpose for this requirement is inside the car during an emergency requirement inside of locomotive cabs, to provide sufficient notice and when they need to exit rapidly. If the passenger cars, and cabooses is an opportunity for meaningful public window is open or can be opened wide opportunity to reduce the paperwork participation in the rulemaking. The enough to permit egress, passengers burden on the rail industry without subjects and issues raised in the NPRM should be able to exit the car through adversely impacting safety. The certified alert interested parties that rule changes that window as rapidly as they would glazing stencil was originally intended are being considered so they can take if the window were removed by a tool as an easily identifiable method for full advantage of the opportunity to or other implement. Specifically, if a railroads to demonstrate compliance comment on them. The NPRM did not window frame does not contain glass, as with the safety glazing requirements raise any issues related to existing noise in an ‘‘open air car,’’ there is no need contained in part 223 when large emissions testing requirements. Because for a tool or implement to clear the numbers of affected equipment were not FRA did not provide sufficient notice space inside the window frame where equipped with part 223 glazing. for this issue, FRA cannot make any the glass would otherwise be. Therefore, However, the need for this requirement changes in the final rule based on this no tool or implement is required. has diminished since compliance was comment. Nevertheless, FRA continues FRA carefully considered both sets of phased in for equipment existing at the to consider the merits of AAR’s comments on the NPRM while time part 223 was promulgated. (See the comment and will evaluate how to best developing this final rule. To further discussion below on removing address this issue in the future. clarify written comments, FRA compliance phase-in dates from part discussed the comments with the RSAC 223.) Moreover, in practice, FRA has B. ATRRM’s Comments Tourist and Historic Railroads and found the stencil is not always accurate, 5 ATRRM expressed support for FRA’s Private Passenger Car Working Group and that each window needs to be proposal and requested two during a meeting on December 3, 2014. examined to determine whether proper modifications in the final rule: (1) The discussion, although limited in glazing has been applied. An easy and Exclude historic or antiquated scope, helped FRA understand the reliable way to determine the locomotives that are used primarily in written comments. FRA added a copy of compliance of each window excursion, educational, recreational, or the meeting minutes to the docket for individually is to read the permanent private passenger service and also used this proceeding. The final rule text marking on each window panel required in other limited types of service from differs from the NPRM text in part by part 223, appendix A. Each window the glazing requirements; and (2) because of issues AAR and ATRRM that is equipped with certified glazing confirm and clarify that § 223.3(c)(1) raised in their comments. For changes to must be permanently marked by the would not require an ‘‘open window’’ manufacturer to indicate the type of 5 Members of the Working Group, in addition to passenger car with windows that open FRA, include the following: AAR; AAPRCO; glazing applied, which remains wide enough to permit egress to also be Amtrak; ASLRRA; ATRRM; NRCMA; NTSB; unchanged for each glazing panel’s equipped with a tool or implement to Railway Passenger Car Alliance; and SMART. service life. Appendix A requires

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glazing to be tested and then marked standards and the materials used for equipment built after 1945. In addition according to the tests passed as either construction. For example, FRA uses to requesting relief from part 223, many ‘‘FRA Type I’’ or ‘‘FRA Type II’’ glazing, this distinction in the Freight Car Safety petitioners argued that based on their depending on its location. By Standards in 49 CFR part 215. Part 215 understanding of the term ‘‘antiquated considering the location of the window restricts the operation of freight cars that equipment’’ as used in part 223 and and examining the marking, FRA are more than 50 years old, measured by FRA’s enforcement history (i.e., they inspectors can apply the requirements the date of original construction, unless had not previously received notice of and determine whether the glazing use the operating railroad successfully non-compliance from FRA), they is compliant. petitions FRA for continued use. This believed their equipment was FRA believes the markings on the requirement reflects FRA’s general antiquated and therefore not subject to windows are more reliable than the belief that after 50 years, freight part 223. Many of the petitioners were stenciling located inside the equipment equipment is typically outdated and represented by AAPRCO, which in which they are installed, and that the often not in the best condition given its submitted a letter to FRA in 2009, on markings provide sufficient information years of service. Accordingly, for behalf of its members expressing to determine compliance. Therefore, purposes of safety, FRA believes that concern over FRA’s interpretation of the FRA concludes that the § 223.17 after 50 years of age, it should not treat term ‘‘antiquated equipment.’’ FRA stenciling requirement is no longer freight equipment the same as newer responded to AAPRCO, explaining that necessary, and this rule eliminates the equipment when used in certain types use of the fixed date of 1945 to requirement for a certified glazing of service. As an industry practice, cars determine whether equipment was stencil located inside locomotive cabs, more than 50 years old are generally antiquated was consistent with the passenger cars, and cabooses. used only in limited freight service. guidance in FRA’s 1990 Technical B. Clarification of the Term ‘‘Antiquated However, passenger cars more than 50 Bulletin. Subsequently, Executive Order 13563 Equipment’’ years old have been successfully used for commuter service, which, to be was issued requiring agencies to Part 223 uses the term ‘‘antiquated clear, is not the type of service conduct a retrospective analysis of their equipment’’ to identify equipment identified in part 223 as service for an existing rules. As noted above, that excluded from the application of part educational, excursion, recreational, or analysis was intended to identify 223, if the equipment is operated in private transportation purpose. requirements that may be outmoded, only specified types of service FRA has applied the term ‘‘antiquated ineffective, insufficient, or excessively (excursion, educational, recreational or equipment’’ in the enforcement of part burdensome, and lead agencies to private transportation). However, part 223 consistent with FRA’s 1990 modify, streamline, expand, or repeal 223 did not define the term ‘‘antiquated Technical Bulletin without significant such rules based on that analysis. equipment’’ and the context in which opposition until industry’s response to During FRA’s retrospective analysis of the term was used in the regulation did FRA’s implementation of section 415 of the Safety Glazing Standards, FRA not clearly indicate its meaning. During the Rail Safety Improvement Act of 2008 identified the application of its existing implementation of part 223, FRA (section 415), Public Law 110–432, interpretation of ‘‘antiquated identified the need to clarify the term Division A. Section 415 required the equipment’’ as potentially creating an ‘‘antiquated equipment’’ to ensure its Secretary of Transportation 6 to conduct unnecessary burden on the industry. consistent application. FRA developed a study of tourist and historical The cost of retrofitting all non- guidance interpreting the term in 1989, railroads for compliance with Federal compliant equipment built more than 50 and FRA’s Associate Administrator for rail safety laws. While conducting the years before the current date but after Safety provided it to the agency’s section 415 study, FRA utilized the year 1945 with compliant glazing would regional safety management. 1945 as a reference point in applying result in a considerable expense to the Subsequently, FRA made the the glazing requirements. Because the rail industry, would likely be too costly interpretation part of a 1990 FRA 1990 Technical Bulletin did not clearly for some small businesses to continue technical bulletin. For purposes of this specify that the term ‘‘antiquated operating, and would provide a nominal final rule, FRA references the 1990 FRA equipment’’ could be subject to a rolling safety benefit. Based on this technical bulletin (1990 Technical 50-year calculation, an equitable reading information, FRA is modifying the term Bulletin) and has included it in the of that technical bulletin could ‘‘antiquated equipment’’ to reduce the public docket for this rulemaking. conclude FRA intended for the year burden on the rail industry. FRA The 1990 Technical Bulletin stated 1945 to be a fixed date for determining believes the use of a rolling 50-year ‘‘antiquated equipment,’’ as used in part whether equipment is antiquated. In period to determine whether equipment 223, meant equipment built in 1945 or other words, a person could reasonably is antiquated significantly reduces the earlier. However, FRA did not explain understand that all equipment built in burden on the rail industry by why it distinguished between 1945 or earlier is antiquated, while all eliminating the cost of fitting equipment equipment built in 1945 or earlier from built after 1945 is not. that is more than 50 years old and used equipment built after 1945. FRA Following the section 415 study, FRA only for certain purposes with believes it chose 1945 as the cut-off date initiated several enforcement actions compliant glazing. In other words, FRA because it was the end of World War II, against owners of equipment in service believes that the term ‘‘antiquated the date was approaching approximately that was more than 50 years old, but equipment,’’ for purposes of part 223, 50 years before the date the guidance built after 1945. Many in the rail should mean equipment that is more was issued, and the approaching 50-year industry expressed surprise at these than 50 years old, not equipment that difference in time was consistent with enforcement actions and, as a result, was more than 50 years old as of a FRA’s treatment of other older filed approximately 175 petitions for certain, fixed date. equipment. Based on FRA’s experience, waiver from the relevant requirements This clarification also better aligns after 50 years certain equipment contained in part 223 with FRA for FRA’s Safety Glazing Standards with becomes antiquated and justifies other Federal rail safety requirements distinct treatment due to significant 6 The Secretary delegated the responsibility to that address older equipment. For changes in technology, including design carry out this mandate to FRA. See 49 CFR 1.89(b). example, because of its age and

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technology, a caboose built more than FRA believes the Safety Glazing locomotive more than 50 years old in 50 years ago receives special treatment Standards should not apply to these freight service after major repairs are as older equipment under § 215.203 of small number of excursion locomotives completed as described by ATRRM. the Freight Car Safety Standards, but that are used for limited non-excursion This conditioning service is an that same caboose was essentially service when no other power is opportunity to stress the steam treated by the Safety Glazing Standards available. This is a current industry locomotive to ensure the repairs are the same as newer equipment. This rule practice for approximately 120 effective. Excursion operations provide helps classify equipment more locomotives. FRA’s review of its few opportunities for conditioning such consistently because of its age and enforcement data confirms that FRA has locomotives in higher tonnage trains. ATRRM believes this will eliminate the used its enforcement discretion Moreover, these operations typically need for most waivers of the glazing consistently to permit limited use of have fairly regimented schedules due to requirements, and waiver renewals, and such excursion locomotives in non- seasonal considerations and customer remove a substantial burden on the excursion service without compliant demands. Using these excursion industry. certified glazing. It also reveals that no locomotives in freight service for accidents or incidents have been conditioning in this limited manner is C. Exclusion of Older Locomotives Used reported to FRA for the lack of also advantageous because freight in Incidental Freight Service compliant certified glazing materials in service is more frequently available. In addition to clarifying the term these locomotives. Based on a thorough Consequently, FRA is excluding this ‘‘antiquated equipment,’’ in its review of this issue, FRA believes the conditioning service for these older comments, ATTRM also states FRA rule can allow this current industry locomotives from the glazing should clarify that the service historic or practice without having an adverse requirements in this final rule. antiquated equipment operates in may impact on rail safety. Therefore, this However, FRA intends for the period to exclude that equipment from the glazing final rule provides the relief needed to be limited to only the time necessary to requirements. Specifically, rather than permit these excursion locomotives to condition the locomotive for excursion exclude historic or antiquated operate in incidental freight service, service. locomotives used only for excursion, which includes the two specific D. Clarification of the Terms ‘‘Private educational, recreational, or private scenarios ATRRM’s comments Car’’ and ‘‘Passenger Car’’ transportation purposes, ATTRM identified for ‘‘antiquated’’ locomotives requested that FRA exclude historic or otherwise used only for excursion, Previous amendments to part 223, antiquated locomotives that are used educational, recreational, or private which revised the definition of primarily in excursion, educational, transportation purposes. ‘‘passenger car’’ to clarify recreational, or private passenger In this final rule, FRA makes clear contemporaneous revisions to the service and also in other limited types that incidental freight service would regulation, may have caused some of service. For example, ATTRM stated include when an excursion locomotive unintentional confusion regarding that a steam locomotive normally used that is more than 50 years old has application of the glazing requirements exclusively in mainline excursion finished hauling an excursion train for to ‘‘private cars.’’ In 1998 and 1999, service will sometimes be ‘‘broken in’’ the day, a couple of freight cars need to FRA issued comprehensive regulations in freight service after major mechanical be switched on the railroad’s property, for intercity passenger and commuter work, to allow problems to be identified and no other locomotive is ready to train safety, amending part 223 among and corrected before the locomotive is switch the cars. Current industry other things to add requirements for used for a passenger train. According to practice is for the excursion locomotive emergency windows in intercity ATTRM, a general system tourist to switch the freight cars. The passenger and commuter trains, which railroad might also occasionally use a alternative would be to start a freight part 223 has long required for passenger passenger locomotive on a non- locomotive not in use, conduct the cars with certified glazing to facilitate excursion freight train if the railroad’s required safety inspection to run it in occupant egress. See 63 FR 24630 (May normal freight power is temporarily out service, and then use it to switch the 4, 1998, final rule on Passenger Train of service or unavailable. ATTRM made freight cars. FRA believes this Emergency Preparedness) and 64 FR clear it is not seeking exclusion for alternative is too burdensome for 25540 (May 12, 1999, final rule on locomotives used regularly in freight industry compared to the low safety risk Passenger Equipment Safety Standards), service but rather for ‘‘occasional and incurred by using such an excursion as amended at 73 FR 6370 (February 1, irregular’’ use. locomotive to switch the freight cars— 2008, final rule on Passenger Train FRA understands that all locomotives typically short moves conducted at Emergency Systems). The amendments (except for a handful of newly built fairly low speeds. This final rule allows to part 223 included revising the steam locomotives, less than ten total) the flexibility to use these small number definition of the term ‘‘passenger car’’ currently used in excursion service of excursion locomotives as additional by specifically excluding from the would be considered antiquated based power in freight service under such definition a ‘‘private car.’’ 63 FR 24675. on the revised definition because they limited circumstances. However, FRA FRA intended for this revision of the are more than 50 years old. However, emphasizes that these circumstances are term ‘‘passenger car’’ to clarify that many locomotives more than 50 years limited. If a freight locomotive is in use requirements being established for old used in excursion service are also and available for service on the passenger cars in intercity passenger used in other limited types of service property, the exception would not and commuter train service only, such but would not be excluded under the apply. Moreover, FRA expects railroads as new requirements in former proposed rule. As a result, to comply to have a sufficient number of § 223.9(d) for marking emergency with the proposed rule, affected locomotives available to satisfy their windows, did not apply to private cars. railroads would need to either equip operational needs under ordinary See 63 FR 24675. It was not intended to these locomotives with compliant circumstances. change the existing application of the certified glazing at a significant cost, or FRA also makes clear that another rest of part 223 to private cars. Yet, the forgo using the locomotives for certain example of incidental freight service substantive requirements contained in types of service and risk losing revenue. would be breaking-in a steam §§ 223.9 and 223.15 specify they apply

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to ‘‘passenger cars,’’ which by a literal employees ride these cars and FRA has provided in § 223.9(c) or § 223.15(c), as reading of the definition of ‘‘passenger no record of any accidents or incidents appropriate. In this rule, the application car’’ in § 223.5 would have seemingly (including injuries) due to the lack of of the emergency window requirements excluded private cars. certified glazing materials in these cars. to passenger equipment and passenger However, as evidenced by the FRA has exercised its discretion to cars in part 238 is unchanged. However, ‘‘Application’’ section of part 223 allow railroad private business cars that a change to part 223 is needed to (particularly § 223.3(b)(3)), FRA’s intent are not antiquated to operate without incorporate existing waivers of the was to continue to apply the glazing certified glazing. Its use of discretion requirements of part 223 that require requirements of part 223 to private cars has not had an adverse impact on safety. emergency windows, in light of the as previously specified, as no general Based on a thorough review of this change concerning ‘‘antiquated exclusion was suggested or made. See issue, FRA agrees with AAR’s comment equipment,’’ discussed above. 63 FR 24675. FRA believes that the rail and in this final rule is excluding from Specifically, in connection with the industry has the same understanding. the glazing requirements the remaining change to the application of the term The application of the glazing small handful of private business cars ‘‘antiquated equipment,’’ FRA is requirements to private cars is clear, as currently held by railroads that are not revising the language in § 223.3(b) to provided in § 223.3. Section 223.3(a) equipped with certified glazing. expressly state the exclusion provided states that the requirements in part 223 However, railroad private business cars in § 223.3(b)(3) for ‘‘antiquated apply to any railroad rolling equipment that are currently equipped with equipment,’’ for purposes of emergency operated on standard gauge track that is certified glazing are required to windows, does not apply to occupied a part of the general railroad system of continue to be equipped with certified passenger cars built after 1945 when transportation. Section 223.3(b) glazing to maintain the current level of they operate in intercity passenger or excludes equipment used for private safety. In addition, all new railroad commuter train service covered by part transportation purposes, but only if it is private business cars must be equipped 238 (part 238 train). See 49 CFR 238.3. historical or antiquated. Nonetheless, to with certified glazing. Furthermore, if a An occupied private car operated in a alleviate any confusion, FRA is railroad’s private car is used in public train covered by the requirements of amending the definition of ‘‘passenger service, the exclusion does not apply part 238 is not required to be equipped car,’’ in § 223.5 by removing the last and the car must be equipped with with emergency windows under part sentence of the existing definition that certified glazing. FRA continues to 238; these cars must be equipped with indicates ‘‘[t]his term does not include believe the cost of equipping a new car emergency windows under § 223.9(c) or a private car.’’ with certified glazing is worth the safety § 223.15(c) of part 223, if they are not benefit, including new railroad private ‘‘historical or antiquated equipment’’ E. Modification of the Application of the business cars. and are not used for solely an excursion, Safety Glazing Standards to Passenger educational, recreational, or private Cars and Cabooses in a Railroad’s Fleet F. Emergency Windows for Occupied purpose as applicable under That Are Used Only for Private Passenger Cars That Are More Than 50 § 223.3(b)(3). See, e.g., 73 FR 6378. Transportation Purposes Years Old But Built After 1945 and However, FRA’s Railroad Safety Board Operated in an Intercity Passenger or As discussed above, AAR’s comments has granted a series of waivers that Commuter Train request FRA to confirm the glazing permit such cars that are neither requirements in part 223 do not apply This rule clarifies application of the ‘‘historical or antiquated’’ to operate in to railroad private business cars. Part emergency window requirements in part a part 238 train without certified 223 has not specifically used the term 223 to passenger cars more than 50 glazing. As a condition to the waivers, ‘‘railroad private business cars,’’ and years old, but built after 1945, by such cars must be equipped with at least AAR’s comment does not provide a incorporating provisions in waivers four emergency windows consistent definition for the term. Based on FRA’s FRA’s Railroad Safety Board grated (see, with § 223.9(c) or § 223.15(c). The experience and discussions with AAR e.g., FRA–2010–0080), without changing waivers make clear that the minimum of during the Working Group meeting on the existing regulatory framework for four emergency windows (two on each December 3, 2014, FRA understands the emergency window requirements. side) must be clearly marked. As that a railroad private business car is a Both parts 223 and 238 of this chapter specified in § 223.5, an ‘‘emergency specially modified passenger car or contain requirements for emergency window’’ means a segment of a side caboose a railroad uses to conduct windows that apply to various types of facing glazing panel designed to permit business and entertain colleagues and passenger vehicles (see, e.g., §§ 223.8, rapid and easy removal from inside the guests during transport. Further, FRA 223.9, 223.15, and 238.113). For the car during an emergency. The waivers understands all but a small handful of purposes of emergency window and further make clear that any tool required railroad private business cars are more other requirements, part 238 to remove or break the window must be than 50 years old. Therefore, based on distinguishes between categories of provided and clearly marked, with their age and use, almost all these cars passenger vehicles—namely, ‘‘passenger legible and understandable instructions will be excluded from the glazing cars’’ and ‘‘passenger equipment.’’ for its use. This final rule revises part requirements because of this final rule’s Under § 238.5, the definition of 223 to be consistent with the conditions clarification of the term ‘‘antiquated ‘‘passenger car’’ is a subset of of the waivers FRA has granted and the equipment’’ discussed in section IV.B, ‘‘passenger equipment’’ and must proposed change to application of the above. Nonetheless, FRA understands comply with the emergency window term ‘‘antiquated equipment.’’ AAR’s comment to also request that the exit requirements in § 238.113. By FRA notes that passenger cars that are remaining small handful of cars be contrast, the part 238 emergency not covered by the requirements of part excluded from the glazing requirements. window exit requirements in § 238.113 238 but are occupied for an excursion, FRA agrees that the remaining do not apply to all passenger equipment educational, recreational, or private railroad private business cars should be as defined by § 238.5. Instead, passenger purpose, and operate in a passenger excluded from the glazing requirements equipment not subject to § 238.113, train covered by the requirements of due to the limited safety risk. Only a including a private car, must be part 238, are subject to the same small number of invited guests and equipped with emergency windows as conditions as the train to which they are

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coupled. Such cars are exposed to high old, but built after 1945 and equipped Therefore, the likelihood of projectile speeds over long distances the same as with glazing that complies with the contact is minimized. the other cars in the passenger train. In glazing test standards in appendix A to Further, the former definition of ‘‘end addition, the end frame doors of such part 223, must continue to comply with facing glazing location’’ contains no cars may not line up with the end frame those standards. Broadening the qualification on the forward or rear end doors on some passenger cars subject to definition of the term ‘‘antiquated or the direction of travel of the the requirements of part 238 to which equipment’’ in this rule does not equipment. In other words, all forward they are coupled (e.g., an Amtrak diminish the level of safety currently and all rearward facing windows could Superliner). Consequently, during an required. Accordingly, FRA does not be considered end facing. This accident or incident, emergency intend for windows currently application of the term may have windows may be required as a primary complying with the impact test resulted in some confusion about FRA’s means of egress, due to a lack of end- standards in appendix A to part 223 to enforcement of relevant glazing of-car egress. Yet, passenger cars be replaced with windows that are not. requirements, which FRA intends to occupied for an excursion, educational, Moreover, given that such equipment clarify in this final rule. Accordingly, recreational, or private use not equipped would already have the necessary this rule revises the definition to clarify with part 223 compliant glazing and framing arrangements in place to the term ‘‘end facing glazing location’’ emergency windows might only be support part 223-compliant glazing, does not apply to the coupled ends of equipped with safety glass that cannot FRA expects the window panels to be MU locomotives or other equipment easily shatter or otherwise be easily replaced with like window glazing. Of that is semi-permanently connected to removed without the use of a tool or course, if equipment built after 1945 each other in a train consist, nor does other instrument, and therefore may not that is more than 50 years old is not it apply to end doors at locations other permit effective egress for occupants already fitted with compliant window than the cab end of a cab car or MU during an emergency. Such occupied glazing, then such window panels locomotive. The most notable example cars, built after 1945, and more than 50 (along with their supporting, framing of an end door at a location other than years old, that operate in a part 238 arrangements) do not have to be the cab end of a cab car or MU train, must have emergency windows to installed. locomotive is an end frame door on an maintain the level of safety currently Amfleet passenger car. The rule makes H. Clarification of the Term ‘‘End provided. clear that windows in such doors do not Consequently, in clarifying the Facing Glazing Location’’ require Type I glazing. application of part 223 to ‘‘antiquated Consistent with the RSAC Task At the same time, this rule also equipment’’ by using a rolling 50-year Group’s recommendation and to ensure revises the existing definition of ‘‘side date, rather than a fixed date, FRA consistent application of the relevant facing glazing location’’ to clarify those believes it must continue requiring requirements, this rule revises the locations are excluded from the passenger cars built after 1945 and more definition of ‘‘end facing glazing definition of ‘‘end facing glazing than 50 years old to comply with the location’’ to clarify that the location location’’ and require Type II glazing. emergency window requirements in means an ‘‘exterior’’ location. It also The former Safety Glazing Standards § 223.9(c) or § 223.15(c) if they are expressly identifies locations not require that all side facing glazing occupied and operate in an intercity or considered to be ‘‘end facing glazing locations be equipped with Type II commuter passenger train subject to part location[s]’’—namely, the coupled ends glazing. See appendix A to part 223. 238. FRA does not believe it is of multiple-unit (MU) locomotives or Because the coupled ends of MU appropriate to remove the current other equipment that is semi- locomotives or other equipment that is requirement that such cars be equipped permanently connected to each other in semi-permanently connected to each with these emergency windows, a train consist; and end doors at other in a train consist, and end doors especially as the number of such cars locations other than the cab end of a cab at locations other than the cab end of a considered ‘‘antiquated’’ will increase car of MU locomotive. cab car or MU locomotive are due to this rulemaking. However, The former definition of ‘‘end facing specifically excluded from the consistent with the conditions of the glazing location’’ in § 223.5 does not definition of ‘‘end facing glazing waivers FRA has granted, a tool or other specify that ‘‘end facing’’ means only a location,’’ those locations do not require instrument may be used to remove or location at the exterior of a piece of Type I glazing. By specifically including break the window if the tool or other equipment. As a result, the final rule them in the definition for ‘‘side facing instrument is clearly marked, and clarifies that FRA does not consider glazing location,’’ the rule makes clear legible and understandable instructions windows facing an open end of a car, those locations require Type II glazing at are provided for its use. Nonetheless, as but located in the interior of the car, to a minimum. Thus, for example, discussed in section III.B in response to be end facing. Thus, they do not require locomotives, cabooses, and passenger ATRRM’s comment, this final rule does Type I glazing. For example, a vestibule cars built or rebuilt after June 30, 1980, not require a passenger car with door set back from the end frame and must be equipped with certified glazing windows that open wide enough to corner structure of a passenger car that in all windows under § 223.9. The term permit egress to also be equipped with contains a window does not require ‘‘certified glazing’’ refers to Type I and a tool or implement to use to break or Type I glazing for the window. In this Type II glazing, as specified in appendix remove a window during an emergency. example, even if the vestibule window A to part 223. Accordingly, for such is exposed to the outside of the car, equipment locations where certified G. Locomotives, Passenger Cars, and Type I glazing is not required. Type I glazing is required, either Type I or Cabooses That Are More Than 50 Years glazing is not needed because the angle Type II glazing must be present. Old But Built After 1945 and Equipped of incidence of a projectile to that This final rule also clarifies that any With Compliant Glazing window is significantly reduced by the location which, due to curvature of the In connection with the changes to presence of the structures at the end of glazing material, can meet the criteria application of the term ‘‘antiquated the car located ahead of the plane of the for either an end facing location or a equipment,’’ all locomotives, passenger glazing material, compared to a window side facing location shall be considered cars, and cabooses more than 50 years aligned with the end frame of the car. an end facing location. This is a

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clarification that FRA identified when equipment becomes more than 50 years reference to paragraph (m) of § 223.5 so preparing the final rule, noting that FRA old. To qualify for the exclusion under that paragraph (b)(4) instead refers to had inadvertently omitted this paragraph (b)(3)(i), when the equipment § 223.5 generally. longstanding rule text from the becomes more than 50 years old, the FRA is adding paragraph (c) to clarify proposed rule. The revised language rule continues to require that the the requirements applicable to clarifies the continued application of equipment be used only for excursion, equipment subject to the exclusion in the regulation to equipment that educational, recreational, or private paragraph (b)(3) of this section for contains curved glazing material that transportation purposes. ‘‘antiquated equipment,’’ to maintain extends beyond its side or end. As discussed in section IV.C of this safety in connection with the change to final rule, FRA is also revising the application of this term for I. Removal of Compliance Phase-In paragraph (b)(3) to provide some equipment built after 1945 but more Dates That Have Passed and Are No flexibility in application of the glazing than 50 years old. As discussed in Longer Applicable requirements to older locomotives used sections IV.F and IV.H of this final rule, This final rule removes outdated, primarily in excursion service. FRA is clarifying requirements for compliance phase-in dates and related Paragraph (b)(3)(i) also excludes from emergency windows in occupied language to make the regulation clearer. the glazing requirements locomotives passenger cars operated in intercity When the Safety Glazing Standards that are historical or more than 50 years passenger or commuter trains, as well as were published on December 31, 1979, old and are used in incidental freight clarifying requirements for locomotives, the regulation included compliance service. Incidental freight service passenger cars, and cabooses currently dates to phase-in requirements for includes operating a steam locomotive equipped with compliant glazing. equipment in existence at the time, in for conditioning purposes following Paragraph (c) applies, as specified, to addition to requirements for new major mechanical work and limited use each locomotive, passenger car, and equipment. See 44 FR 77328, 77353– of a passenger locomotive in freight caboose built after 1945 more than 50 77354. As amended by final rule on service only when no other locomotive years old and used only for excursion, December 27, 1983, the regulation is available. Please note that paragraph educational, recreational, or private included those compliance dates. See 48 (c), discussed below, qualifies the transportation purposes. Specifically, FR 56955–56955. For example in exclusion available under this paragraph (c)(1) requires each such § 223.15, ‘‘Requirements for existing paragraph (b)(3); both paragraphs must passenger car to comply with the passenger cars,’’ the regulation provided be read together. emergency window requirements that certain passenger cars have until As discussed in section IV.E of this contained in § 223.9(c) or § 223.15(c), as June 30, 1984, to comply with the final rule, FRA is also revising appropriate, when it is occupied and requirements for certified glazing and paragraph (b)(3) to allow existing operates in an intercity passenger or emergency windows. Because the ‘‘business cars’’ to continue to operate commuter train subject to part 238 of compliance phase-in period has long without certified glazing. Paragraph this chapter. A tool or other instrument passed, FRA can remove the phase-in (b)(3)(ii) is added to exclude existing may be used to remove or break an dates from part 223 without changing cabooses and passenger cars in a emergency window if the tool or other the substantive effect of the railroad’s fleet on April 11, 2016 that are instrument is clearly marked and legible requirements. used only for private transportation and understandable instructions are purposes and are not currently provided for its use. Paragraph (c)(2) V. Section-by-Section Analysis equipped with certified glazing. This requires each such locomotive, This section-by-section analysis of change effectively makes the exclusion passenger car, and caboose that is this final rule explains the rationale for in paragraph (b)(3)(i) for cabooses and equipped with glazing that complies each section of the rule, together with passenger cars that are historic or more with the glazing requirements contained the above discussion. The regulatory than 50 years old and used only for the in appendix A to this part as of February changes are organized by section railroad’s private transportation 9, 2016, to remain in compliance with number. purposes available to all of the railroad’s those requirements. Accordingly, the existing cabooses and passenger cars Section 223.3 Application final rule will not diminish the level of used only for private transportation safety the regulation currently provides. As discussed in section IV.B of this purposes. final rule, FRA is revising paragraph In addition, as FRA proposed in the Section 223.5 Definitions (b)(3) to clarify the meaning of the term NPRM, FRA is revising paragraph (b)(4) FRA is revising three terms in this ‘‘antiquated equipment.’’ Paragraph to correct the reference to § 223.5. section: ‘‘end facing glazing location,’’ (b)(3)(i) clarifies the meaning of Paragraph (b)(4) formerly contained an ‘‘passenger car,’’ and ‘‘side facing ‘‘antiquated equipment’’ by replacing exclusion for ‘‘[l]ocomotives that are glazing location.’’ FRA is also defining the term ‘‘antiquated’’ with the phrase used exclusively in designated service ‘‘incidental freight service.’’ ‘‘more than 50 years old.’’ This change as defined in § 223.5(m).’’ The reference Specifically, FRA is revising the clarifies that the exclusion from the to § 223.5(m) is outdated, as paragraph definition of ‘‘end facing glazing application of the rule for ‘‘antiquated lettering was removed from § 223.5, location’’ by making clear the location equipment’’ in this section applies to Definitions, when that section was means an ‘‘exterior’’ location and that equipment more than 50 years old reorganized and revised by the May 4, dome and observation cars are included measured from the time of original 1998 Passenger Train Emergency in the category of cars subject to the construction. This is a rolling, 50-year Preparedness final rule. See 63 FR application of this definition, and by calculation, and no longer the fixed date 24630, 24642. Removing the reference to expressly identifying locations not of 1945 or earlier. As such, some of the paragraph (m) of § 223.5 for internal considered ‘‘end facing glazing equipment that was subject to the full consistency has no substantive effect on location[s].’’ The definition clearly requirements of part 223 before this the application of the rule, as the excludes the coupled ends of MU final rule takes effect (because it is not definition of ‘‘designated service’’ in locomotives or other equipment that is yet more than 50 years old) is excluded § 223.5 remains unchanged. semi-permanently connected to each from certain requirements when the Accordingly, this final rule removes the other in a train consist, and end doors

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at locations other than the cab end of a locomotives. As noted above, part 223 because the compliance phase-in period cab car of MU locomotive. Instead of phased in requirements for glazing has long passed and all cabooses, other considering such locations to be end standards by generally allowing the rail than yard cabooses excluded by this facing glazing locations requiring Type industry until June 30, 1984, to fit their section or those that satisfy the limited I glazing, these locations are considered existing locomotives with compliant exclusions provided in § 223.3, are side facing glazing locations requiring glazing. The rule included an exception required to be equipped with compliant only Type II glazing, as noted below. for locomotives that had their windows glazing. Please see section IV.H of this final rule damaged by vandalism. Windows FRA expressly invited comment on for a fuller discussion of the change to damaged due to vandalism were the NPRM on whether it needed to the definition of ‘‘end facing glazing required to be replaced with compliant retain this section in the final rule and location.’’ glazing sooner than the 1984 specifically whether its requirements FRA is adopting the changes to this compliance phase-in date. could be consolidated with those for definition as proposed in the NPRM but Paragraph (c) removes the compliance new cabooses in § 223.9(b) in a revised also makes clear the definition phase-in date, June 30, 1984. This date or new section. No comments were continues to provide that any location is no longer needed now that it has long received on this issue and this final rule which, due to curvature of the glazing passed. Paragraph (d) removes the makes no change to § 223.9(b). No material, can meet the criteria for either language that required windows comments were received on § 223.13 an end facing location or a side facing damaged by vandalism to be replaced and FRA accordingly adopts the location is considered an end facing with compliant glazing sooner than the changes to § 223.13 as proposed but location. This provision applies unless 1984 compliance phase-in date. This clarifies that existing yard cabooses the location is otherwise excluded from requirement is no longer needed continue to be excluded from § 223.13’s this definition. FRA also notes that in because the compliance phase-in period requirements. FRA’s proposal may have the final rule this provision uses the has long passed and all existing inadvertently created an ambiguity more general term ‘‘end facing’’ location locomotives, other than yard whether § 223.13’s longstanding rather than ‘‘front facing’’ location locomotives excluded by this section or exception for existing yard cabooses consistent with the use of ‘‘end facing’’ locomotives that satisfy the limited continues to apply. glazing location in this final rule. exclusions provided in § 223.3, are In addition, this rule revises the required to be equipped with compliant Section 223.15 Requirements for definition of ‘‘side facing glazing glazing. Existing Passenger Cars location.’’ The definition now includes No comments were received on this As discussed in section IV.I of this the coupled ends of MU locomotives or section and FRA accordingly adopts the final rule, the amendments to this other equipment that is semi- changes to this section as proposed but section remove the compliance phase-in permanently connected to each other in further clarifies that existing yard dates and related language from the a train consist, and end doors at locomotives continue to be excluded glazing requirements for existing locations other than the cab end of a cab from the section’s requirements. FRA’s passenger cars. As noted above, before car or MU locomotive. Instead of proposal may have inadvertently these changes the rule generally allowed considering such locations to be end created an ambiguity whether this the rail industry until June 30, 1984, to facing glazing locations requiring Type section’s longstanding exception for fit their existing passenger cars with I glazing, these locations are considered existing yard locomotives continues to compliant glazing. Windows damaged side facing glazing locations requiring apply. by vandalism were required to be only Type II glazing due to the generally Section 223.13 Requirements for replaced with compliant glazing sooner lower risk of an exterior projectile Existing Cabooses than the 1984 compliance phase-in date. impacting the window surface. In addition, this rule revises the As discussed in section IV.I of this Paragraph (c) removes the compliance definition of ‘‘passenger car’’ by final rule, the amendments to this phase-in date, June 30, 1984. This date removing the statement that ‘‘[t]his term section remove the compliance phase-in is no longer needed now that it has long does not include a private car.’’ The dates and related language from the passed. Paragraph (d) removes the revision clarifies that a private car can glazing requirements related to existing language that required windows be considered a passenger car. Please cabooses. As noted above, part 223 damaged by vandalism to be replaced see section IV.D of this final rule for a phased in requirements for glazing with compliant glazing sooner than the full discussion of this change. standards by generally allowing the rail 1984 compliance phase-in date. This Finally, FRA is adding the term industry until June 30, 1984, to fit their requirement is no longer needed ‘‘incidental freight service’’ to mean the existing cabooses with compliant because the compliance phase-in period occasional and irregular use of a glazing. The rule included an exception has long passed and all passenger cars, locomotive in freight service that is for cabooses that had their windows other than those that satisfy the limited more than 50 years old and used damaged by vandalism. Windows exclusions provided in § 223.3, are primarily for excursion, educational, damaged by vandalism were required to required to be equipped with compliant recreational, or private transportation be replaced with compliant glazing glazing. purposes. Please see the discussion in sooner than the 1984 compliance phase- FRA expressly invited comment on section III.B and IV.C of this final rule, in date. the NPRM on whether it needed to above. Paragraph (c) removes the compliance retain this section needed in the final phase-in date, June 30, 1984. This date rule and specifically whether its Section 223.11 Requirements for is no longer needed now that it has long requirements could be consolidated Existing Locomotives passed. Paragraph (d) removes the with those for new passenger cars in As discussed in section IV.I of this language that required windows § 223.9(c) in a revised or new section. final rule, the amendments to this damaged by vandalism to be replaced No comments were received on this section remove the compliance phase-in with compliant glazing sooner than the issue and this final rule makes no dates and related language from the 1984 compliance phase-in date. This change to § 223.9(c). No comments were glazing requirements for existing requirement is no longer needed received on § 223.15 and FRA

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accordingly adopts the changes to egress in passenger cars now considered regulations. Antiquated equipment will § 223.15 as proposed. ‘‘antiquated equipment,’’ because they now be defined as equipment that is were built after 1945 and are more than more than 50 years old. This Section 223.17 Identification of 50 years old, when these passenger cars significantly reduces the number of Equipped Locomotives, Passenger Cars are operated in intercity passenger or waiver petitions submitted to exclude and Cabooses commuter trains. Additionally, railroads from the glazing requirements Section § 223.17 required stenciling will probably modify existing equipment that is more than 50 years on the interior wall of each locomotive specifications for new equipment orders old but built after 1945 and operated in cab, passenger car, and caboose to to remove the requirement to stencil a train for an excursion, educational, identify that the equipment is fully interior walls of the equipment as recreational, or private transportation equipped with glazing material that containing window glazing in full purpose. Based on past practice, FRA complies with part 223. This compliance with part 223. The present estimates it would have received requirement is no longer necessary, and value of total voluntary costs affected approximately 140 initial waiver the final rule removes this entire entities may incur is estimated to be requests over the next five years (28 per section. As a result, this type of approximately $6,000 over a 10-year year) if this rule were not issued. FRA stenciling is no longer required. For a period. is estimating the potential waivers that full discussion of this change, please see Overall, the benefits of this rule will no longer be needed over a five- section IV.A of this final rule. greatly outweigh any costs that may be year period because renewal waivers incurred. The revisions specified in this would have been needed every five Appendix B to Part 223—Schedule of final rule eliminate the cost of years to avoid installing certified Civil Penalties stenciling, reduce the cost of certain glazing. Therefore, no additional waiver Appendix B to part 223 contains a new passenger cars, and reduce the applications would be expected after the schedule of civil penalties for FRA to number of waivers requested by the fifth year. In years when the initial use to enforce this part. FRA is revising railroad industry. Over a 10-year period, waiver petitions would have been the schedule of civil penalties in this this analysis finds that $1,088,489 in submitted if this rule were not issued, final rule to reflect revisions made to cost savings will accrue due to the the total annual cost for all affected part 223. Because such penalty changes. The present value of this entities would have been from $16,507 schedules are statements of agency amount is $819,479 (discounted at 7 (Year 1) to $16,921 (Year 10) (non- policy, notice and comment are not percent). Therefore, accounting for the discounted). This variability is due to required before they are issued. See 5 $6,000 in voluntarily-incurred costs to the increase in real wages as discussed U.S.C. 553(b)(3)(A). Nevertheless, FRA take advantage of the flexibilities in section 6 of the accompanying invited comments on the penalty provided in this final rule, the net analysis in the docket for this schedule in the NPRM. However, FRA savings of this rule is approximately rulemaking. Accordingly, a total of did not receive any comments. $813,479. $83,563 in cost savings will accrue over Accordingly, FRA is revising the FRA is eliminating the requirement to 10 years due to the reduction of initial penalty schedule to reflect the removal stencil the inside walls of locomotives, waiver requests. The present value of of § 223.17, Identification of Equipped passenger cars, and cabooses as fully this amount is $73,260 (discounted at 7 Locomotives, Passenger Cars and equipped with compliant glazing. This percent). Cabooses, from this part. requirement was necessary during the FRA has approved approximately 310 implementation phase-in period of part waivers of glazing requirements for VI. Regulatory Impact and Notices 223 (in the 1980s), when large numbers equipment more than 50 years old but A. Executive Orders 12866 and 13563 of affected equipment were not manufactured after 1945 and operated and DOT Regulatory Policies and equipped with glazing required by part in a train for an excursion, educational, Procedures 223. The stencil was a clear and easy recreational, or private transportation way to determine whether compliant purpose. If the final rule was not issued, This final rule has been evaluated glazing was installed. Because the renewal waivers would be required to consistent with Executive Order 12866 phase-in period for fitting equipment be submitted every five years to (Regulatory Planning and Review), with certified glazing under part 223 has continue operations. Under this final Executive Order 13563 (Improving long passed, the required certification rule, these waivers are no longer Regulation and Regulatory Review), and markings on the window panels have necessary, saving the labor cost of DOT policies and procedures. FRA has become more useful and reliable for preparing and submitting each waiver prepared and placed in the docket a FRA to determine compliance with part renewal request. The total annual cost regulatory analysis addressing the 223. The total annual cost for all for all affected entities to submit economic impact of this final rule. FRA affected entities to comply with the renewal waiver petitions would have believes this final rule is consistent with stenciling requirement is from $74,170 increased from $18,275 (Year 1) to current industry practices and reduces (Year 1) to $80,820 (Year 10) (non- $28,066 (Year 10) (non-discounted) if the regulatory burden on the rail discounted). This variability is due to this rule were not issued. This industry. the increase in real wages discussed in variability is due to the rise in real The analysis includes a quantitative section 6 of the accompanying analysis wages discussed in section 6 of the evaluation of the benefits of this final in the docket for this rulemaking. accompanying analysis this rule. For entities choosing to take Consequently, over a 10-year period, the rulemaking’s docket. Over a 10-year advantage of the new flexibilities and analysis finds that a total of $773,841 in period, a total of $231,084 in cost cost savings provided in this final rule, cost savings will accrue through the savings will therefore accrue due to the FRA estimates there may be a minimal elimination of this requirement. The reduction of renewal waivers. The cost burden associated with this rule. present value of this amount is $578,494 present value of this amount is $167,725 Specifically, railroads or car owners or (discounted at 7 percent). (discounted at 7 percent). operators may need to purchase small This rule revises definitions to help FRA notes it is revising the definition hammers or other tools for occupants to provide clarity to the rail industry and of the term ‘‘end facing glazing use to break windows for emergency also greater consistency with other FRA location’’ to clarify the location means

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an ‘‘exterior’’ location and expressly Additionally, section 601(5) defines For further information on the identify locations not considered ‘‘end ‘‘small governmental jurisdiction’’ in calculation of the specific dollar limit, facing glazing location[s]’’—namely, the general to include governments of cities, please see 49 CFR part 1201. FRA is coupled ends of MU locomotives or counties, towns, townships, villages, using this definition of ‘‘small entity’’ other equipment that is semi- school districts, or special districts with for this final rule. permanently connected to each other in populations less than 50,000. FRA estimates that there are 726 a train consist; and end doors at The U.S. Small Business railroads that operate on standard gage locations other than the cab end of a cab Administration (SBA) stipulates ‘‘size track that is part of the general railroad car of MU locomotive. However, FRA standards’’ for small entities. A for- system of transportation and are, did not evaluate any cost savings as a profit railroad business firm may be therefore, subject to part 223, see 49 result of this clarification, because FRA considered a small entity if it has less CFR 223.3. Of these railroads, 44 are has generally enforced the regulation than 1,500 employees for ‘‘Line-Haul Class I freight railroads, Class II freight consistent with this clarification. Operating’’ railroads, and 500 railroads, commuter railroads serving FRA expressly requested comments employees for ‘‘Short-Line Operating’’ populations of 50,000 or more, or on all aspects of the regulatory railroads. See ‘‘Size Eligibility intercity passenger railroads (i.e., evaluation and its conclusions. No Provisions and Standards,’’ 13 CFR part Amtrak, a Class I railroad, and the comments were received in response to 121, subpart A. Alaska Railroad, a Class II railroad). The FRA’s request. Under exceptions provided in section remaining 681 railroads are therefore 601, Federal agencies may adopt their assumed to be small railroads for the B. Regulatory Flexibility Act and own size standards for small entities in Executive Order 13272 purpose of this assessment. However, consultation with SBA, and in this final rule will not impact most of The Regulatory Flexibility Act of 1980 conjunction with public comment. these railroads because locomotives (RFA), Public Law 96–354, as amended, Under the authority provided to it by acquired by small railroads are typically and codified as amended at 5 U.S.C. SBA, FRA has published a ‘‘Final Policy older Class I locomotives already 601–612, and Executive Order 13272 Statement Concerning Small Entities equipped with compliant glazing and (Proper Consideration of Small Entities Subject to the Railroad Safety Laws,’’ stenciling. Similarly, any passenger cars in Agency Rulemaking), 67 FR 53461, which formally establishes small acquired by small railroads from Aug. 16, 2002, require agency review of entities as including, among others, the intercity passenger or commuter proposed and final rules to assess their following: (1) The railroads classified by railroads will already be equipped with impact on ‘‘small entities’’ for purposes the Surface Transportation Board as compliant glazing and stenciling. of the RFA. An agency must prepare a Class III; and (2) commuter railroads Small railroads and private car regulatory flexibility analysis unless it ‘‘that serve populations of 50,000 or owners will likely be affected by the determines and certifies that a rule is less.’’ 7 See 68 FR 24891, May 9, 2003, clarification that certain equipment not expected to have a significant codified at appendix C to 49 CFR part more than 50 years old is considered economic impact on a substantial 209. Currently, the revenue antiquated and thereby excluded from number of small entities. Pursuant to requirements are $20 million or less in part 223’s requirements when operated the RFA, 5 U.S.C. 605(b), the annual operating revenue, adjusted in specified service. As a result of this Administrator of FRA certifies that this annually for inflation. The $20 million change, the economic burden of final rule will not have a significant limit (adjusted annually for inflation) is preparing and submitting waiver economic impact on a substantial based on the Surface Transportation petitions will be reduced for railroads number of small entities. This rule will Board’s threshold of a Class III railroad, and private car owners for equipment affect small entities. However, the effect which is adjusted by applying the that is more than 50 years old but built on these entities will be purely railroad revenue deflator adjustment.8 after 1945 and operated in a train for an beneficial other than for a nominal cost excursion, educational, recreational, or savings offset, as it will reduce their 7 In the Interim Policy Statement, 62 FR 43024, private transportation purpose. As noted costs and labor burden particularly by Aug. 11, 1997: above, FRA estimates that it would narrowing the class of equipment FRA defined ‘small entity,’ for the purpose of subject to the full requirements of the communication and enforcement policies, the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., and Class III—$20 million or less. Safety Glazing Standards regulation. the Equal Access for Justice Act, 5 U.S.C. 501 et 49 CFR 1201.1–1(a), (b)(1). STB’s General The term ‘‘small entity’’ is defined in seq., to include only railroads which are classified Instructions at 1–1 state that carriers are grouped 5 U.S.C. 601 (section 601). Section as Class III. FRA further clarified the definition to into three classes for purposes of accounting and 601(6) defines ‘‘small entity’’ as having include, in addition to Class III railroads, hazardous reporting. The three classes are as follows: the same meaning as ‘‘the terms ‘small materials shippers that meet the income level Class I: These carriers have annual carrier established for Class III railroads (those with annual operating revenues of $250 million or more after business’, ‘small organization’ and operating revenues of $20 million per year or less, applying STB’s railroad revenue deflator formula. ‘small governmental jurisdiction’ as set forth in 49 CFR 1201.1–1); railroad Class II: These carriers have annual carrier defined in paragraphs (3), (4), and (5) of contractors that meet the income level established operating revenues of less than $250 million but in for Class III railroads; and those commuter railroads excess of $20 million after applying STB’s railroad this section.’’ In turn, section 601(3) or small governmental jurisdictions that serve defines a ‘‘small business’’ as generally revenue deflator formula. populations of 50,000 or less. Class III: These carriers have annual carrier having the same meaning as ‘‘small 68 FR 24892, May 9, 2003. ‘‘The Final Policy operating revenues of $20 million or less after business concern’’ under section 3 of Statement issued today is substantially the same as applying STB’s railroad revenue deflator formula. the Small Business Act. This includes the Interim Policy Statement.’’ 68 FR 24894. See also 78 FR 21007, Apr. 8, 2013. It should be 8 any small business concern that is In general, under 49 CFR 1201.1–1, the class noted that there are some exceptions to this general into which a railroad carrier falls is determined by definition of the three classes of carriers. As one independently owned and operated, and comparing the carrier’s annual inflation-adjusted important example, STB treats families of railroads is not dominant in its field of operation. operating revenues for three consecutive years to as a single carrier for classification purposes when Next, section 601(4) defines ‘‘small the following scale after the dollar figures in the those families operate within the United States as organization’’ as generally meaning any scale are adjusted by applying the railroad revenue a single, integrated rail system. 49 CFR 1201– deflator formula: 1.1(b)(1). As another example, STB considers all not-for-profit enterprise that is Class I—$250 million or more; switching and terminal companies to be Class III independently owned and operated, and Class II—more than $20 million, but less than carriers, regardless of their operating revenues. 49 not dominant in its field of operations. $250 million; and CFR 1201–1.1(d).

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receive approximately 140 initial install small hammers or other small a significant economic impact on a requests for waiver of the glazing tools or implements to allow for substantial number of small entities. requirements over the next five years emergency egress from passenger car FRA certifies that this final rule is not (28 per year) if this change were not windows when operated in an intercity expected to have a significant economic made, and the approximately 310 passenger or commuter train. Hammers impact on a substantial number of small approved waivers of glazing may be used to break these windows in entities under the RFA or Executive requirements would also have to be case of an emergency. The population of Order 13272. Although a substantial renewed every five years if this change private cars that operate in Amtrak number of small entities will be affected were not made. When including the trains is approximately 125 cars. FRA by this rule, none of these entities will avoided cost of renewing the additional estimates that 80 percent of these cars be significantly impacted. In order to 140 initial waiver requests by making will not have hammers or other tools determine the significance of the this change—a total of approximately already on board to facilitate emergency economic impact for the final rule’s 900 9 avoided waiver petitions—the egress through windows. Therefore, for total cost savings is $240,985 over 10 100 of those private cars, car owners RFA requirements, FRA expressly years, discounted at 7 percent. Of will have to purchase four hammers or invited comments on the NPRM from all course, the individually allocated other tools per car. That total cost will interested parties concerning the savings to each affected railroad or be approximately $5,000. Additionally, potential economic impact on small private car owner will be a a minimal cost to copy and laminate entities resulting from the rule. FRA did comparatively smaller portion of the instructions to use the hammers or other not receive comments on this issue. total cost savings. tools will also be incurred. FRA C. Paperwork Reduction Act Further, for entities choosing to take estimates this total cost to be $1,000 advantage of the regulatory relief (approximately $10 per car). All these FRA is submitting the information permitted by this change to the costs will be incurred during the first collection requirements in this final rule definition of ‘‘antiquated equipment,’’ year. Therefore, the present value of all for review and approval to the Office of FRA estimates that there may be a total costs is approximately $6,000. This Management and Budget (OMB) under minimal cost burden associated with $6,000 cost will easily be offset by the the Paperwork Reduction Act of 1995 operation of such passenger cars in total cost savings of $240,985 from (44 U.S.C. 3501 et seq.). The sections intercity passenger or commuter service, changing the definition of ‘‘antiquated that contain the new information and because they will continue to be equipment,’’ which is shared among all current information collection required to have emergency windows. small entities. Consequently, FRA requirements and the estimated time to Some affected entities may choose to concludes this final rule will not have fulfill each requirement are as follows:

Average time Total annual CFR section Respondent universe Total annual responses per response burden hours

223.3(c)—Application: Passenger car emergency win- 673 railroads (100 pas- 400 marked tools with leg- 30 minutes ... 200 hours. dows—marked tools with legible and understand- senger cars with min- ible & clear instructions. able instructions near them to remove/break win- imum of 4 emergency dow for passenger cars built after 1945 that are windows). more than 50 years old and operated in intercity passenger or commuter train (new requirement). 223.11—Existing Locomotives: Built or rebuilt prior to 673 railroads ...... Already compliant/Already N/A ...... N/A. July 1, 1980, equipped with certified glazing in all have FRA approved locomotive cab windows (revised requirement). waivers. —Locomotives with cab windows broken or dam- 673 railroads ...... 15 designations ...... 30 seconds .. 0.125 hour. aged—placed in designated service (revised re- quirement). —Locomotives removed from service until broken/ 673 railroads ...... Certification done instantly N/A ...... N/A. damaged windows are replaced with certified glaz- at time of window manu- ing (revised requirement). facture. 223.13—Existing Cabooses: Built or rebuilt prior to 673 railroads ...... Already compliant/Already N/A ...... N/A. July 1, 1980, equipped with certified glazing in all have FRA approved windows (revised requirement). waivers. —Cabooses removed from service until broken/dam- 673 railroads ...... Certification done instantly N/A ...... N/A. aged windows are replaced with certified glazing at time of window manu- (revised requirement). facture. 223.15—Existing Passenger Cars: Built or rebuilt prior 673 railroads ...... Already compliant/Already N/A ...... N/A. to July 1, 1980, equipped with certified glazing in all have FRA approved windows plus four emergency windows (revised re- waivers. quirement). —Passenger cars removed from service until broken/ 673 railroads ...... Certification done instantly N/A ...... N/A. damaged windows are replaced with certified glaz- at time of window manu- ing (revised requirement). facture. Appendix A—Requests to glass/glazing manufactur- 5 Glass/Glazing Manufac- 10 requests ...... 15 minutes ... 3 hours. ers for glazing certification information (current re- turers. quirement). —Identification of each individual unit of glazing mate- 5 Glass/Glazing Manufac- 25,000 pieces of glazing ... 480 pieces 52 hours. rial (current requirement). turers. per hour.

9 A total of approximately 900 waiver petitions years + 140 initial petitions renewed in the next in the first five years + 310 approved waiver will be avoided: 140 initial petitions in the first five five years + 310 approved waiver petitions renewed petitions renewed in the next five years.

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Average time Total annual CFR section Respondent universe Total annual responses per response burden hours

—Testing of new material (current requirement) ...... 5 Glass/Glazing Manufac- 1 test ...... 14 hours ...... 14 hours. turers.

All estimates include the time for on the relationship between the national by the Secretary of Transportation (with reviewing instructions; searching government and the States, or on the respect to railroad safety matters) or the existing data sources; gathering or distribution of power and Secretary of Homeland Security (with maintaining the needed data; and responsibilities among the various respect to railroad security matters), reviewing the information. For levels of government.’’ Under Executive except when the State law, regulation, information or a copy of the paperwork Order 13132, an agency may not issue or order qualifies under the ‘‘essentially package submitted to OMB, contact Mr. a regulation with federalism local safety or security hazard’’ Robert Brogan, Information Clearance implications that imposes substantial exception to section 20106. Moreover, Officer, Office of Railroad Safety, FRA, direct compliance costs and that is not the Supreme Court has interpreted the at 202–493–6292, or Ms. Kimberly required by statute, unless the Federal former LIA to preempt the field of Toone, FRA Records Management government provides the funds locomotive safety. See Napier v. Officer, Office of Information necessary to pay the direct compliance Atlantic Coast Line R.R., 272 U.S. 605 Technology, FRA, at 202–493–6132, or costs incurred by State and local (1926) and Kurns v. Railroad Friction via email at the following addresses: governments, or the agency consults Products Corp., 132 S. Ct. 1261 (2012). [email protected]; Kim.Toone@ with State and local government E. Environmental Impact dot.gov. officials early in the process of Organizations and individuals developing the regulation. Where a FRA has evaluated this final rule desiring to submit comments on the regulation has federalism implications under the National Environmental collection of information requirements and preempts State law, the agency Policy Act (NEPA; 42 U.S.C. 4321 et should send them directly to the Office seeks to consult with State and local seq.), other environmental statutes, of Management and Budget, Office of officials in the process of developing the related regulatory requirements, and its Information and Regulatory Affairs, regulation. ‘‘Procedures for Considering Washington, DC 20503, Attention: FRA FRA has analyzed this rule under the Environmental Impacts’’ (FRA’s Desk Officer. Comments may also be principles and criteria in Executive Procedures) (64 FR 28545, May 26, sent via email to the Office of Order 13132. This rule will not have a 1999). FRA has determined this final Management and Budget at the substantial effect on the States or their rule is categorically excluded from following address: oira_submissions@ political subdivisions, and it will not detailed environmental review under omb.eop.gov. affect the relationships between the section 4(c)(20) of FRA’s Procedures, OMB is required to make a decision Federal government and the States or ‘‘Promulgation of railroad safety rules concerning the collection of information their political subdivisions, or the and policy statements that do not result requirements contained in this final rule distribution of power and in significantly increased emissions of between 30 and 60 days after responsibilities among the various air or water pollutants or noise or publication of this document in the levels of government. In addition, FRA increased traffic congestion in any mode Federal Register. Therefore, a comment determined this regulatory action will of transportation.’’ See 64 FR 28547, to OMB is best assured of having its full not impose substantial direct May 26, 1999. Categorical exclusions effect if OMB receives it within 30 days compliance costs on States or their (CEs) are actions identified in an of publication. political subdivisions. Therefore, the agency’s NEPA implementing FRA cannot impose a penalty on consultation and funding requirements procedures that do not normally have a persons for violating information of Executive Order 13132 do not apply. significant impact on the environment collection requirements which do not Nevertheless, State and local officials and therefore do not require either an display a current OMB control number, were involved in developing environmental assessment (EA) or if required. FRA intends to obtain recommendations that are addressed in environmental impact statement (EIS). current OMB control numbers for new this rule through the RSAC, which has See 40 CFR 1508.4. information collection requirements as permanent members two In analyzing the applicability of a CE, resulting from this rulemaking action organizations directly representing State the agency must also consider whether prior to the effective date of this final and local interests, AASHTO and extraordinary circumstances are present rule. The OMB control number, when ASRSM. that would warrant a more detailed assigned, will be announced by separate However, this rule could have environmental review through the notice in the Federal Register. preemptive effect by operation of law preparation of an EA or EIS. Id. Under under certain provisions of the Federal section 4(c) and (e) of FRA’s Procedures, D. Federalism Implications railroad safety statutes, specifically the FRA has further concluded that no Executive Order 13132, ‘‘Federalism’’ former Federal Railroad Safety Act of extraordinary circumstances exist with (64 FR 43255, Aug. 10, 1999), requires 1970, repealed and re-codified at 49 respect to this regulation that might FRA to develop an accountable process U.S.C 20106, and the former Locomotive trigger the need for a more detailed to ensure ‘‘meaningful and timely input Boiler Inspection Act (LIA) at 45 U.S.C. environmental review. The purpose of by State and local officials in the 22–34, repealed and re-codified at 49 this rulemaking is to revise and clarify development of regulatory policies that U.S.C. 20701–20703. Section 20106 existing regulations related to the use of have federalism implications.’’ ‘‘Policies provides that States may not adopt or glazing materials in the windows of that have federalism implications’’ are continue in effect any law, regulation, or locomotives, passenger cars, and defined in the Executive Order to order related to railroad safety or cabooses. FRA does not anticipate any include regulations that have security that covers the subject matter of environmental impacts from these ‘‘substantial direct effects on the States, a regulation prescribed or order issued requirements and finds that there are no

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extraordinary circumstances present in local, and tribal governments, in the (b) * * * connection with this final rule. aggregate, or by the private sector, of (3) Except as provided in paragraph $100,000,000 or more (adjusted (c) of this section: F. Executive Order 12898 annually for inflation) in any 1 year, and (i) Locomotives, cabooses, and (Environmental Justice) before promulgating any final rule for passenger cars that are historic or more Executive Order 12898, Federal which a general notice of proposed than 50 years old and, except for Actions to Address Environmental rulemaking was published, the agency incidental freight service, are used only Justice in Minority Populations and shall prepare a written statement’’ for excursion, educational, recreational, Low-Income Populations, and DOT detailing the effect on State, local, and or private transportation purposes; and Order 5610.2(a) (91 FR 27534, May 10, tribal governments and the private (ii) Cabooses and passenger cars in a 2012) require DOT agencies to achieve sector. When adjusted for inflation railroad’s fleet on April 11, 2016 that are environmental justice as part of their using the Consumer Price Index for All used only for the railroad’s private mission by identifying and addressing, Urban Consumers as published by the transportation purposes. Each such as appropriate, disproportionately high Bureau of Labor Statistics, the railroad caboose or car that is equipped and adverse human health or equivalent value of $100,000,000 in year with glazing that complies with the environmental effects, including 2014 dollars is $155,000,000.10 The glazing requirements contained in interrelated social and economic effects, final rule will not result in the appendix A to this part as of February of their programs, policies, and expenditure, in the aggregate, of 9, 2016, must remain in compliance activities on minority populations and $100,000,000 or more in any one year, with those requirements. low-income populations. The DOT and thus preparation of such a (4) Locomotives that are used Order instructs DOT agencies to address statement is not required. exclusively in designated service as compliance with Executive Order 12898 defined in § 223.5. and requirements within the DOT Order I. Privacy Act (c) Except as provided in paragraph in rulemaking activities, as appropriate. FRA wishes to inform all interested (b)(3) of this section, this paragraph (c) FRA has evaluated this final rule under parties that anyone is able to search the applies, as specified, to each Executive Order 12898 and the DOT electronic form of any written locomotive, passenger car, and caboose Order and determined it will not cause communications and comments built after 1945 that is more than 50 disproportionately high and adverse received into any of our dockets by the years old and is used only for excursion, human health and environmental effects name of the individual submitting the educational, recreational, or private on minority populations or low-income comment (or signing the comment, if transportation purposes. populations. submitted on behalf of an association, (1) Each such passenger car must business, labor union, etc.). See http:// comply with the emergency window G. Executive Order 13175 (Tribal www.regulations.gov/#!privacyNotice requirements contained in § 223.9(c) or Consultation) for the privacy notice of regulations.gov § 223.15(c), as appropriate, when it is FRA has evaluated this final rule or interested parties may review DOT’s occupied and operates in an intercity under the principles and criteria complete Privacy Act Statement in the passenger or commuter train subject to contained in Executive Order 13175, Federal Register published on April 11, part 238 of this chapter. A tool or other Consultation and Coordination with 2000, 65 FR 19477. instrument may be used to remove or Indian Tribal Governments, dated break an emergency window if the tool List of Subjects in 49 CFR Part 223 November 6, 2000. This final rule will or other instrument is clearly marked not have a substantial direct effect on Glazing standards, Penalties, Railroad and legible and understandable one or more Indian tribes, will not safety, Reporting and recordkeeping instructions are provided for its use. impose substantial direct compliance requirements. (2) Each such locomotive, passenger costs on Indian tribal governments, and The Final Rule car, and caboose that is equipped with will not preempt tribal laws. Therefore, glazing that complies with the glazing the funding and consultation For the reasons discussed in the requirements contained in appendix A requirements of Executive Order 13175 preamble, FRA amends part 223 of to this part as of February 9, 2016, must do not apply, and a tribal summary chapter II, subtitle B of title 49, Code of remain in compliance with those impact statement is not required. Federal Regulations, as follows: requirements. ■ H. Unfunded Mandates Reform Act of PART 223 [AMENDED] 3. In § 223.5, revise the definitions for 1995 ‘‘End facing glazing location’’, ■ 1. Revise the authority citation for part ‘‘Passenger car’’, and ‘‘Side facing Under Section 201 of the Unfunded 223 to read as follows: glazing location’’ and add the definition Mandates Reform Act of 1995 (Public for ‘‘Incidental freight service’’ in Law 104–4, 2 U.S.C. 1531), each Federal Authority: 49 U.S.C. 20102–20103, 20133, 20701–20702, 21301–21302, 21304; 28 U.S.C. alphabetical order to read as follows: agency ‘‘shall, unless otherwise 2461, note; and 49 CFR 1.89. prohibited by law, assess the effects of § 223.5 Definitions. ■ Federal regulatory actions on State, 2. In § 223.3, revise paragraphs (b)(3) * * * * * local, and tribal governments, and the and (4) and add paragraph (c) to read as End facing glazing location means any private sector (other than to the extent follows: exterior location where a line that such regulations incorporate § 223.3 Application. perpendicular to the plane of the glazing requirements specifically set forth in * * * * * material makes a horizontal angle of 50 law).’’ Section 202 of the Act (2 U.S.C. degrees or less with the centerline of the 1532) further requires that ‘‘before 10 See DOT guidance ‘‘2015 Threshold of locomotive, caboose, or passenger car, promulgating any general notice of Significant Regulatory Actions Under the Unfunded including a dome or observation car, proposed rulemaking that is likely to Mandates Reform Act of 1995,’’ May 6, 2015 except for: The coupled ends of result in the promulgation of any rule (update), available electronically at http://www. multiple-unit (MU) locomotives or other transportation.gov/office-policy/transportation- that includes any Federal mandate that policy/2015-threshold-significant-regulatory- equipment that is semi-permanently may result in expenditure by State, actions-under-unfunded. connected to each other in a train

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consist; and end doors of passenger cars ■ 4. In § 223.11, revise paragraphs (c) or damaged window is replaced with at locations other than the cab end of a and (d) to read as follows: certified glazing. cab car or MU locomotive. Any location * * * * * which, due to curvature of the glazing § 223.11 Requirements for existing locomotives. material, can meet the criteria for either ■ 6. In § 223.15, revise paragraphs (c) an end facing location or a side facing * * * * * and (d) to read as follows: location shall be considered an end (c) Except for yard locomotives and facing location. locomotives equipped as described in § 223.15 Requirements for existing paragraphs (a) and (b) of this section, passenger cars. * * * * * Incidental freight service means the locomotives built or rebuilt prior to July * * * * * 1, 1980, shall be equipped with certified occasional and irregular use of a (c) Except for passenger cars locomotive in freight service that is glazing in all locomotive cab windows. (d) Except for yard locomotives, each described in paragraphs (a) and (b) of more than 50 years old and used locomotive that has a locomotive cab this section, passenger cars built or primarily for excursion, educational, window that is broken or damaged so rebuilt prior to July 1, 1980, shall be recreational, or private transportation that the window fails to permit good equipped with certified glazing in all purposes. visibility shall be— windows and a minimum of four * * * * * (1) Placed in Designated Service emergency windows. Passenger car means a unit of rail within 48 hours of the time of breakage rolling equipment intended to provide (d) Each passenger car that has a or damage; or window that is broken or damaged so transportation for members of the (2) Removed from service until the general public and includes self- that the window fails to permit good broken or damaged window is replaced visibility shall be removed from service propelled cars designed to carry with certified glazing. baggage, mail, express or passengers. until the broken or damaged window is * * * * * This term includes a passenger coach, replaced with certified glazing. ■ 5. In § 223.13, revise paragraphs (c) cab car, and an MU locomotive. * * * * * and (d) to read as follows: * * * * * § 223.17 [Removed and Reserved] Side facing glazing location means § 223.13 Requirements for existing any location where a line perpendicular cabooses. ■ 7. Remove and reserve § 223.17. to any plane of the glazing material * * * * * makes an angle of more than 50 degrees (c) Except for yard cabooses and Appendix B to Part 223—[Amended] with the centerline of the locomotive, cabooses equipped as described in caboose or passenger car. A side facing paragraphs (a) and (b) of this section, ■ 8. In appendix B to part 223, remove glazing location also means a location at cabooses built or rebuilt prior to July 1, the entry for § 223.17. the coupled ends of MU locomotives or 1980, shall be equipped with certified Issued in Washington, DC, on February 1, other equipment that is semi- glazing in all windows. 2016. permanently connected to each other in (d) Except for yard cabooses, each Sarah Feinberg, a train consist, and a location at end caboose that has a window that is doors other than at the cab end of a cab broken or damaged so that the window Administrator. car or MU locomotive. fails to permit good visibility shall be [FR Doc. 2016–02524 Filed 2–8–16; 8:45 am] * * * * * removed from service until the broken BILLING CODE 4910–06–P

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