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Rule2023-21291

Locomotive Image and Audio Recording Devices for Passenger Trains

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Published

October 12, 2023

Effective

November 13, 2023

Issuing agencies

Transportation DepartmentFederal Railroad Administration

Abstract

FRA is requiring the installation of inward- and outward- facing locomotive image recording devices on all lead locomotives in passenger trains, as required by the Fixing America's Surface Transportation Act (FAST Act). In general, the final rule requires that these devices record while a lead locomotive is in motion and retain the data in a crashworthy memory module. The rule also treats locomotive-mounted recording devices on passenger locomotives as "safety devices" under existing Federal railroad safety regulations to prohibit tampering with or disabling them. Further, this rule governs the use of passenger locomotive recordings to conduct operational tests to determine passenger railroad operating employees' compliance with applicable railroad rules and Federal regulations. Finally, this rule requires Texas Central Railroad (TCRR) to install and maintain trainset image recording systems appropriate to TCRR's operation.

Full Text

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[Federal Register Volume 88, Number 196 (Thursday, October 12, 2023)]
[Rules and Regulations]
[Pages 70722-70766]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-21291]

[[Page 70721]]

Vol. 88

Thursday,

No. 196

October 12, 2023

Part III

Department of Transportation

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Federal Railroad Administration

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49 CFR Parts 217, 218, 229, et al.

Locomotive Image and Audio Recording Devices for Passenger Trains;
Final Rule

Federal Register / Vol. 88 , No. 196 / Thursday, October 12, 2023 /
Rules and Regulations

[[Page 70722]]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 217, 218, 229, and 299

[Docket No. FRA-2016-0036, Notice No. 2]
RIN 2130-AC51

Locomotive Image and Audio Recording Devices for Passenger Trains

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

ACTION: Final rule.

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SUMMARY: FRA is requiring the installation of inward- and outward-
facing locomotive image recording devices on all lead locomotives in
passenger trains, as required by the Fixing America's Surface
Transportation Act (FAST Act). In general, the final rule requires that
these devices record while a lead locomotive is in motion and retain
the data in a crashworthy memory module. The rule also treats
locomotive-mounted recording devices on passenger locomotives as
``safety devices'' under existing Federal railroad safety regulations
to prohibit tampering with or disabling them. Further, this rule
governs the use of passenger locomotive recordings to conduct
operational tests to determine passenger railroad operating employees'
compliance with applicable railroad rules and Federal regulations.
Finally, this rule requires Texas Central Railroad (TCRR) to install
and maintain trainset image recording systems appropriate to TCRR's
operation.

DATES: This final rule is effective November 13, 2023.

ADDRESSES: Docket: For access to the docket to read background
documents or comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> at
any time.

FOR FURTHER INFORMATION CONTACT: Brian Roberts, Attorney Adviser,
Office of the Chief Counsel, at email: <a href="/cdn-cgi/l/email-protection#c88abaa1a9a6e69aa7aaadbabcbb88aca7bce6afa7be"><span class="__cf_email__" data-cfemail="4d0f3f242c23631f222f283f393e0d292239632a223b">[email&#160;protected]</span></a> or
telephone: (202) 306-4333; or John Mayser, Specialist, Office of
Railroad Safety, at email: <a href="/cdn-cgi/l/email-protection#753f1a1d1b5b38140c06100735111a015b121a03"><span class="__cf_email__" data-cfemail="602a0f080e4e2d011913051220040f144e070f16">[email&#160;protected]</span></a> or telephone: (202) 493-
8008.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Discussion of Specific Comments and Conclusions
A. Inward- and Outward-Facing Recording Devices on Freight
Locomotives
1. Requiring Inward- and Outward-Facing Locomotive Recording
Devices on Freight Locomotives
2. Application of Requirements to Freight Railroads That
Voluntarily Install Inward- or Outward-Facing Locomotive Recording
Devices
3. Application of Requirements to Freight Locomotives Performing
Rescue Operations
B. Audio Recording Devices
1. Requiring Audio Recorders on Passenger or Freight Locomotives
2. Referencing Audio in the Definition of ``Recording Device''
in Part 229
C. Recording Device Run-Time/Shutoff When Trains Stop Moving
D. Exclusion of Existing Installed or Ordered Equipment
E. Certified Crashworthy Event Recorder Memory Modules
1. Necessity of Crashworthy Memory Modules
2. Potential Exemptions From the Crashworthy Memory Module
Requirements
3. Need for Stronger Memory Module Requirements
4. Storing Audio Recordings on the Crashworthy Memory Module
F. Outward-Facing Locomotive Image Recording System and Devices
1. Placement of Outward-Facing Locomotive Image Recording
Devices
2. Requirements for Outward-Facing Locomotive Image Recorders
Are Too Prescriptive
G. Inward-Facing Locomotive Image Recording Systems and Devices
1. Inward-Facing Recording Devices as a Tool To Detect Fatigue
2. Locomotive Recording Devices and Real-Time Monitoring
3. Inward-Facing Recording Device Coverage of the Locomotive Cab
4. Recording in Low-Light Conditions
5. Frame Rate for Inward-Facing Recording Devices
6. Prohibition on Recording Activities Within a Locomotive's
Sanitation Compartment
H. Notice Provided When Locomotive Recording Devices Are Present
I. Repairing, Replacing, or Removing Locomotive Image Recording
Devices From Service
1. Practicableness of the Standard
2. Standard's Consistency With Locomotive Recording Devices'
Designation as Safety Devices
3. Documenting When a Locomotive Image Recording Device Has Been
Removed From Service
J. FRA Approval Process for Locomotive Image Recording Systems
and Devices
1. Necessity of the Approval Process
2. Clarifying the Approval Process
3. Application of the Approval Process to Freight Locomotives
K. Implementation Period of the Rule
1. Four-Year Implementation Period
2. Application of the Final Rule to Image Recording Systems in
New, Remanufactured, or Existing Locomotives
L. Operational (Efficiency) Testing
1. Application of the Rule's Part 217 Amendments to Freight
Railroads
2. Burden of the Rule's Part 217 Requirements
3. Appropriateness of Using Locomotive Recordings for
Operational Testing
4. FRA's Authority To Regulate the Use of Locomotive Audio
Recordings in Operational Testing
5. Effect on FRA's Confidential Close Call Recording System
(C3RS)
6. Rules or Regulations Locomotive Recording Devices Should
Address as Part of a Passenger Railroad's Operational Testing
Program
M. Locomotive Recording Devices as Safety Devices Under Part 218
N. Twelve-Hour Recording Period for Locomotive Image Recording
Devices
1. Appropriateness of the 12-Hour Recording Period
2. Feasibility of 24 Hours of Continuous Recording Capability
O. Privacy Considerations
P. Abuse of Locomotive Recording Devices
Q. Recording Devices' Effect on Railroad Employees
R. Download and Security Features of Locomotive Recording
Systems
1. Federally Mandated or Industry-Adopted Standard
2. Standard or Crashworthy Memory Modules
S. Self-Monitoring and Self-Reporting Systems or Devices on
Locomotive Image Recording Systems
1. Whether Cost of These Systems or Devices Was Adequately
Considered
2. Taking a Sample Download During a Periodic Inspection
T. Preservation and Handling Requirements for Locomotive
Recording Devices and Recordings
1. Chain-of-Custody Requirements
2. Prohibitions on the Public Release of Locomotive Recordings
3. Application to Audio Recording Devices and Their Recordings
4. Preservation Requirements Between Different Public Agency
Rail Owners and Operators
5. Providing Image and Audio Data in a Usable Format
6. Permissible Uses for Locomotive Recording Devices
i. FRA Should Only Set Minimum Safety Requirements
ii. Application to Freight Locomotive Recording Devices
U. Factual Determinations When There Are Discrepancies Between
Locomotive Image and Event Recorder Data
V. Personal Electronic Device Use and Locomotive Recording
Devices
W. Positive Train Control
X. Locomotive Image Recorder Analytics
Y. Procurement of Locomotive Recording Devices
Z. Application of the Rule to GP-Style Long-Hood Locomotives
AA. Inclusion of Passenger Railroad Cab Cars in the Rule's
Requirements
III. Civil Penalties
IV. Discussion of Amendments to Part 299 Pertaining to Texas Central
Railroad Trainset Image Recording Systems
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
A. Executive Order 12866, Executive Order 13563, and DOT
Regulatory Policies and Procedures

[[Page 70723]]

B. Regulatory Flexibility Act and Executive Order 13272;
Certification
C. Paperwork Reduction Act
D. Federalism Implications
E. Environmental Impact
F. Executive Order 12898 (Environmental Justice)
G. Executive Order 13175 (Tribal Consultation)
H. Unfunded Mandates Reform Act of 1995
I. Energy Impact
J. Trade Impact
K. Congressional Review Act

Table of Abbreviations

The following abbreviations are used in this document's preamble:

AAR--Association of American Railroads
Amtrak--National Railroad Passenger Corporation
APTA--American Public Transportation Association
BLET--Brotherhood of Locomotive Engineers and Trainmen
C3RS--Confidential Close Call Reporting System
CFR--Code of Federal Regulations
DOT--Department of Transportation
FAST Act--Fixing America's Surface Transportation Act
FRA--Federal Railroad Administration
Metra--Commuter Rail Division of the Illinois Regional
Transportation Authority
Metrolink--Southern California Regional Rail Authority
NCTD--North Country Transit District
NPRM--Notice of Proposed Rulemaking
NTSB--National Transportation Safety Board
OEM--Original equipment manufacturer
PTC--Positive Train Control
RIA--Regulatory Impact Analysis
SMART--International Association of Sheet Metal, Air, Rail and
Transportation Workers
TCRR--Texas Central Railroad
TTD--Transportation Trades Department, American Federation of Labor
and Congress of Industrial Organizations (AFL-CIO)

I. Executive Summary

FRA is publishing this final rule as mandated by section 11411 of
the FAST Act, codified at 49 U.S.C. 20168 (the Statute), and under the
agency's general railroad safety rulemaking authority at 49 U.S.C.
20103.\1\ The Statute requires FRA (as the Secretary of
Transportation's delegate) \2\ to promulgate regulations requiring each
railroad carrier that provides regularly scheduled intercity rail
passenger or commuter rail passenger transportation to the public to
install inward- and outward-facing image recording devices in all
controlling locomotives of passenger trains.\3\ This final rule
implements the Statute's requirements regarding such recording devices
on ``controlling'' locomotives, which will normally be ``lead''
locomotives consistent with FRA's existing regulations on locomotive
event recorders. Before the Statute was enacted, the Railroad Safety
Advisory Committee (RSAC) accepted a task from FRA in 2014 to address
National Transportation Safety Board (NTSB) Safety Recommendations R-
10-01 & -02 \4\ concerning locomotive-mounted recording devices (RSAC
Task No. 14-01). The RSAC established the Recording Devices Working
Group (Working Group) to recommend specific actions regarding the
installation and use of locomotive-mounted recording devices, such as
inward- and outward-facing video and audio recorders.\5\ The RSAC did
not vote, or reach consensus, on any recommendations to FRA regarding
the adoption of regulatory text addressing locomotive-mounted video or
audio recording devices.
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\1\ The former Federal Railroad Safety Act of 1970, as codified
at 49 U.S.C. 20103, provides that ``[t]he Secretary of
Transportation, as necessary, shall prescribe regulations and issue
orders for every area of railroad safety supplementing laws and
regulations in effect on October 16, 1970.''
\2\ The Secretary's responsibility under 49 U.S.C. 20103, 20168,
and the balance of the railroad safety laws, is delegated to the
Federal Railroad Administrator. 49 CFR 1.89.
\3\ A detailed discussion of the Statute's requirements is
provided in the NPRM (84 FR 35712, 35714-35715).
\4\ A detailed analysis of the NTSB Recommendations is provided
in the NPRM (84 FR 35712, 35715-35723).
\5\ <a href="https://rsac.fra.dot.gov/radcms.rsac/task/GetDocument/10">https://rsac.fra.dot.gov/radcms.rsac/task/GetDocument/10</a>. A
detailed discussion of the RSAC proceedings is provided in the NPRM
(84 FR 35712, 35723).
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In light of the Statute's mandate, relevant NTSB recommendations,
the RSAC Working Group's discussions, accident history, and railroad
safety violations that FRA had investigated,\6\ FRA issued a notice of
proposed rulemaking (NPRM) on July 24, 2019, proposing inward- and
outward-facing image recording devices be required on all lead
passenger train locomotives.\7\ FRA received comments from fifteen
different individuals or organizations in response to the NPRM.
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\6\ A detailed discussion of accidents investigated by FRA is
provided in the NPRM (84 FR 35715-35723).
\7\ 84 FR 35712.
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Having carefully considered the public comments in response to the
NPRM, FRA issues this final rule amending the regulatory requirements
of Railroad Operating Rules (49 CFR part 217), Railroad Operating
Practices (49 CFR part 218), Railroad Locomotive Safety Standards (49
CFR part 229), and Texas Central High-Speed Rail Safety Standards (49
CFR part 299). This final rule requires intercity passenger and
commuter railroads \8\ to install compliant image recording systems on
the lead locomotives of all their passenger trains by October 12, 2027,
except for TCRR, which is required to have compliant image recording
systems installed on its trainsets prior to commencing revenue service,
as specified under part 299. Further, beginning October 12, 2024, any
locomotive image recording system installed on new, remanufactured,\9\
or existing passenger train lead locomotives must meet the specified
requirements of this final rule, including the requirement that the
last twelve hours of data recorded be stored in a memory module that
meets the existing crashworthiness requirements in part 229. In
addition, this final rule requires that all locomotive-mounted
recording devices in passenger locomotives be treated as ``safety
devices'' under part 218, subpart D, thereby making it a violation of
applicable Federal regulations to tamper with or disable any
locomotive-mounted recording system or device.
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\8\ As proposed in the NPRM, railroad carriers providing
``intercity rail passenger transportation'' and ``commuter rail
passenger transportation'' are subject to this final rule and are
the same as those covered by 49 U.S.C. 24102 (passenger railroads
required to install positive train control (PTC) systems under 49
U.S.C. 20157(a)).
\9\ See 49 CFR 229.5.
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FRA notes that the image recording device requirements for
passenger train locomotives in this final rule supplement FRA's
existing locomotive event recorder regulation in part 229. Locomotive
event recorders are required on the lead locomotives of trains
traveling over 30 mph and already record numerous operational
parameters that assist in accident/incident investigation and
prevention (see 49 CFR 229.135).
FRA used a cost-benefit analysis to evaluate the impact of the
final rule on passenger railroads required to install and maintain
locomotive image recording devices. FRA estimated the low and high
costs of this final rule over a 10-year period, using discount rates of
3 and 7 percent, with the results shown in the tables below.

[[Page 70724]]

Table E.1--Total 10-Year Costs and Benefits of Locomotive Image Recording Devices, Low Range
[Costs are in 2018 dollars, $ in millions]
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Discounted at 7% Discounted at 3% Annualized at 7% Annualized at 3%
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Costs............................... $42.2 $46.2 $6.0 $5.4
Cost Savings........................ 2.0 2.4 0.3 0.3
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Net Costs....................... 40.2 43.9 5.7 5.1
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Qualitative Benefit: Potential reduction in safety risk resulting from deterrence of unsafe behaviors, increase
to safety culture, and information for accident investigation and future accident prevention.

Table E.2--Total 10-Year Costs and Benefits of Locomotive Image Recording Devices, High Range
[$ In millions]
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Discounted at 7% Discounted at 3% Annualized at 7% Annualized at 3%
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Costs............................... $87.3 $94.0 $12.4 $11.0
Cost Savings........................ 2.0 2.4 0.3 0.3
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Net Costs....................... 85.3 91.6 12.1 10.7
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Qualitative Benefit: Potential reduction in safety risk resulting from deterrence of unsafe behaviors, increase
to safety culture, and information for accident investigation and future accident prevention.

The primary source of expected benefits is the potential reduction
in safety risk. FRA conducted a literature review to determine the
effectiveness rate of inward- and outward-facing recording devices, but
was unable to determine an appropriate rate. The benefits for the final
rule are qualitatively discussed. The reduction in safety risk is
expected to come primarily from the change in crew behavior. Railroads
can deter unsafe behavior if crewmembers realize their actions may be
observed on a frequent, but random, basis by railroad supervisors.
Locomotive image recorders cannot directly prevent an accident from
occurring, but rather can provide investigators with information after
an accident occurs that can help to prevent future accidents of that
type from occurring.

II. Discussion of Specific Comments and Conclusions

In the NPRM, FRA specifically requested information from the public
as well as comments on its proposals. Commenters provided valuable
information and comments on issues where FRA asked for comments as well
as on various other issues. In total, FRA received comments from
fifteen different individuals or organizations in response to the NPRM.
An FRA employee also received an email from New York's Metropolitan
Transportation Authority providing information about the economic cost
of the requirements proposed in the NPRM. FRA is treating that email as
a comment and it is addressed in the Regulatory Impact Analysis (RIA)
of this final rule. The full email has also been placed into the
rulemaking docket along with a memorandum from FRA explaining the
context for the email. Further, in its submitted comments, the
International Association of Sheet Metal, Air, Rail and Transportation
Workers (SMART) disagreed with FRA's characterization in the NPRM that
a public hearing would be provided only if a party was unable to
adequately present his or her position by written statement; however,
neither SMART, nor any other party, requested a public hearing on this
rulemaking. Accordingly, a public hearing was not provided.
Most of the comments in response to the NPRM are discussed below or
in the Regulatory Impact and Notices portion of this final rule. The
order in which the comments are discussed in this final rule, whether
by issue or by commenter, is not intended to reflect the significance
of the comment raised or the standing of the commenter.

A. Inward- and Outward-Facing Recording Devices on Freight Locomotives

In the NPRM, FRA did not propose to require the installation and
use of inward- and outward-facing recording devices in freight
locomotives, nor did FRA propose that any of the NPRM's requirements
apply to inward- and outward-facing locomotive recording devices that
have been voluntarily installed by freight railroads. While FRA
discussed the issue of inward- and outward-facing recording devices on
freight locomotives at various points in the NPRM, FRA specifically
addressed the issue under the heading ``Mandatory Installment of
Inward- and Outward-Facing Recording Devices on Freight Locomotives.''
In that section, FRA discussed its decision not to propose such a
requirement because: (1) the Statute did not require recording devices
be installed on freight locomotives; (2) the cost of installing such
devices could outweigh the safety benefits; and (3) many freight
railroads, including all Class I railroads, had already installed or
were in the process of installing such recording devices.
In addition, FRA specifically asked for public comment on whether
some or all freight railroads should be required to equip their
locomotives with recording devices and, if FRA did not require freight
railroads to install these devices on their locomotives, the extent to
which the requirements proposed in the NPRM should apply to inward- and
outward-facing locomotive recording devices on freight railroads that
have already installed such devices or install such devices in the
future.
As proposed in the NPRM, FRA is declining to adopt any requirements
that freight locomotives install or use inward- or outward-facing
recording devices in freight locomotives, nor will any requirements of
this rule apply to inward- or outward-facing locomotive recording
devices that have been voluntarily installed by freight railroads. The
Statute requires inward- and outward-facing image recording devices in
controlling passenger locomotives as well as gives the Secretary
discretion to require in-cab audio recording devices. 49 U.S.C.
20168(a), (e)(1)(A). There is no statutory requirement to create
standards for, or apply any of the requirements of this final rule to,
freight locomotive image or audio recordings.

[[Page 70725]]

Furthermore, FRA is not creating a requirement that audio devices be
installed on freight locomotives.
FRA did not receive comments showing that benefits would outweigh
costs for freight railroads. Accordingly, FRA declines to require
freight railroads to install recording devices at this time. However,
freight locomotives that are used in commuter or intercity passenger
service, other than for rescue purposes, are passenger locomotives and
are subject to all the final rule's requirements. In other words,
freight locomotives that do not perform any passenger railroad related
service, or are used only for rescue purposes, are not subject to the
requirements of this final rule. Additional discussion on this topic is
provided below.
1. Requiring Inward- and Outward-Facing Locomotive Recording Devices on
Freight Locomotives
The Association of American Railroads (AAR) commented that
requiring freight railroads to install locomotive recording devices was
not necessary, as many freight railroads had already installed, or were
in the process of installing, recording devices voluntarily. AAR stated
that a survey of AAR's Class I member railroads showed that these
railroads ``will have installed approximately 20,500 inward-facing
cameras and 22,000 outward-facing cameras in the near future.''
The Brotherhood of Locomotive Engineers and Trainmen (BLET), the
Transportation Trades Department, AFL-CIO (TTD), and SMART also
expressed opposition to FRA requiring freight railroads to install
inward- and outward-facing locomotive recording devices. SMART agreed
with FRA's statement in the NPRM that the cost for freight railroads to
implement similar procedures as those proposed in the NPRM for
passenger trains may outweigh the potential safety benefits.
The NTSB and Wi-Tronix, LLC (Wi-Tronix), a company that provides
connected solutions for locomotive fleets, commented that FRA should
require inward- and outward-facing locomotive recording devices in
freight locomotives. The NTSB contended that inward- and outward-facing
audio and image recorders are needed in freight railroad operations,
referencing NTSB Safety Recommendations R-10-01 and R-10-02, which were
issued following four separate NTSB accident investigations involving
freight rail operations. The NTSB asserted that the need for recording
devices in freight railroad investigations is exactly the same as in
passenger railroad investigations given that: (1) freight and passenger
trains operate on the same tracks and both pose risks of accidents that
have the potential to significantly affect the public; and (2) recorded
information about safety issues identified in freight railroad
accidents and incidents could inform, mitigate, or prevent similar
safety issues in passenger railroad operations. Therefore, the NTSB
believed it would be ``shortsighted'' for FRA to limit the rule to
apply only to lead passenger locomotives.
Like the NTSB, Wi-Tronix also commented that the rail network is
integrated and that commuter and intercity passenger trains often share
the same track and dispatch system, among other things, with freight
trains. Acknowledging the increase in video system use for safety and
operating rule compliance, Wi-Tronix stated that there ``are roughly 20
times the number of freight locomotives compared with passenger
locomotives,'' and the full safety benefits of the technology would not
be realized without the requirement covering all locomotive types.
FRA recognizes the potential safety benefits of locomotive
recording devices in freight locomotives as noted in the NTSB's and Wi-
Tronix's comments. However, FRA disagrees that the full safety benefits
of this technology can only be achieved with a specific regulatory
requirement that freight railroads install inward- and outward-facing
image and/or audio recorders.
As stated in the NPRM, many freight railroads, including all Class
I railroads, have either already installed or are in the process of
installing recording devices in their locomotives. As noted by AAR in
its comment, ``approximately 20,500 inward-facing cameras and 22,000
outward-facing cameras'' will be installed on AAR Class I member
railroads ``in the near future.'' In addition, AAR points out in its
comments that recordings from these voluntarily installed systems are
already subject to the accident data preservation requirements in 49
CFR 229.135(e).\10\ Therefore, the data from these voluntarily
installed devices in freight locomotives will be available for FRA's
and the NTSB's accident investigation purposes, if necessary.
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\10\ If a locomotive is equipped with an event recorder or ``any
other locomotive mounted recording device or devices designed to
record information concerning the functioning of a locomotive'' and
is involved in a 49 CFR part 225 reportable accident, Sec.
229.135(e) requires the railroad to preserve the data recorded for
one year.
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Furthermore, requiring freight railroads to comply with the final
rule's requirements would be expensive with questionable benefit. FRA
has investigated few, if any, freight railroad accidents where freight
locomotive image data should have been present but was not because it
was destroyed in the accident. Furthermore, while the vast majority of
Class I railroads have or are installing inward- and outward-facing
cameras, very few short line railroads (Class II or Class III railroad)
have either inward- or outward-facing cameras installed on their
locomotives. In fact, for these much smaller railroads, FRA estimates
that only 1% have inward-facing locomotive cameras and 25% have
outward-facing cameras installed on their locomotives. This is not
necessarily surprising as Class II and Class III railroads are less
likely to need locomotive cameras given the lower speeds, shorter
distances, and the less regular nature of the services that these
railroads operate. These definitionally smaller operations would be
significantly affected economically if FRA imposed the requirements of
this final rule to freight railroads and would have difficulty
absorbing the cost without much safety benefit.
Therefore, for the reasons explained above, FRA is declining to
require freight railroads to install recording devices at this time.
FRA will continue to monitor the freight industry's voluntary
installation of the devices and the effectiveness of those devices in
freight rail operations. Based on this continued monitoring, FRA may
take additional action in a separate proceeding to address the use of
locomotive recording devices on freight railroads.
In addition to its opposition to FRA requiring inward- and outward-
facing recording devices on freight locomotives, AAR also suggested
that FRA add language to part 229 mirroring the preemptive effect
language in Sec. Sec. 217.2 (preemptive effect of railroad operating
rules) and 218.4 (preemptive effect of railroad operating practices).
AAR asserted that both these provisions clarify FRA's intent to create
a national standard and this final rule should include this preemption
language for national uniformity. AAR added that, to preclude the
creation of a patchwork of conflicting state and local requirements
applying to freight railroads, FRA should state that its decision to
not propose a locomotive recording device requirement for freight
railroads reflects the agency's position that it is unnecessary to
issue such a regulation.
In issuing this final rule, FRA has sought to stay within the
Statute's mandate, 49 U.S.C. 20168, and not undertake a broader
revision of part 229. Accordingly, FRA declines to add

[[Page 70726]]

specific preemption language to part 229.\11\
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\11\ Under longstanding U.S. Supreme Court precedent, parts and
appurtenances of locomotives have been held subject to field
preemption. See Napier v. Atlantic Coastline RR. Co., 272 U.S. 605
(1926).
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2. Application of Requirements to Freight Railroads That Voluntarily
Install Inward- or Outward-Facing Locomotive Recording Devices
In addition to FRA inviting comments on whether the agency should
require the installation of inward- and outward-facing recording
devices on freight locomotives, FRA also sought comment on whether the
proposed requirements should apply to recording devices that have
already been installed on freight locomotives. Except for AAR, which
supported FRA's proposal to exclude freight trains from this proposed
rule, all the commenters generally favored applying the requirements of
this final rule to freight locomotives that have voluntarily installed
inward- or outward-facing recording devices.
Based on the same reasoning provided above, the NTSB commented that
FRA should ensure the same level of safety for both passenger and
freight railroads and that any recording device that either a passenger
or freight railroad has voluntarily installed should be required to
meet the minimum standards in this final rule. While BLET, SMART, and
TTD all opposed requiring freight railroads to equip their locomotives
with recording devices, they all agreed that freight railroads that
voluntarily install such devices should nonetheless have to comply with
the final rule's railroad employee protections and adhere to a uniform
national standard created by FRA and applicable to both freight and
passenger locomotive recording devices, regardless of whether they were
installed before or after the rule's issuance. TTD specifically urged
FRA to apply the final rule's requirements to protect against employee
retaliation under part 217 operational testing, regardless of whether
FRA requires the installation of the locomotive recording device(s).
After considering the comments, FRA is declining to impose any of
the requirements in this final rule on freight railroads that have
voluntarily installed recording devices on their locomotives. However,
it is FRA's expectation that all railroads that voluntarily install
recording devices on their locomotives, including freight railroads,
will adhere to practices that are consistent with those in this final
rule, such as those provided under new part 217 requirements that serve
to protect employees from targeted testing as a form of retaliation
when railroads conduct operational testing using recording devices or
their recordings.
FRA has independent authority to disapprove a freight railroad's
operating rules testing program, required under Part 217.\12\
Therefore, if FRA finds that a freight railroad is not using its
locomotive recording devices in good faith to fulfill the railroad's
operational testing requirements, but is instead using locomotive
cameras and/or audio recording devices to pursue retaliation against
its employees, FRA could disapprove the railroad's operational testing
program. FRA therefore expects freight railroads will adhere to the
same, or similar, principles as being codified for passenger railroads,
based on FRA's authority under the existing provision. Application of
the new part 217 operational testing requirements in this final rule
are discussed in Section II.L and the Section-by-Section Analysis
below.
---------------------------------------------------------------------------

\12\ See 49 CFR 217.9(h).
---------------------------------------------------------------------------

3. Application of Requirement to Freight Locomotives Performing Rescue
Operations
Finally, the American Public Transportation Association (APTA)
submitted a comment asking FRA whether freight locomotives that do not
have inward-facing locomotive cameras compliant with this final rule
would be allowed to ``rescue'' passenger trains that fail en route. In
such situations, a freight locomotive ``rescues'' the failed passenger
train by operating as the lead locomotive of the passenger train and
hauling the train to its destination or repair point. Having considered
APTA's comment, this final rule includes a new provision, Sec.
229.139(l), that excludes freight locomotives from compliance with the
requirements of new Sec. 229.136 when they are performing rescue
operations for intercity or commuter passenger trains. However, this
exception applies only for the limited purposes of rescuing an
intercity or commuter passenger train; a freight locomotive used in
regular passenger service will not be covered by the exception. The
exclusion is based on identical language in the definition of
``locomotive'' for purposes of FRA's Passenger Equipment Safety
Standards in Sec. 238.5 of this chapter.\13\ As FRA originally stated
in establishing the Passenger Equipment Safety Standards, FRA
``believes that a limited exception is warranted for a freight
locomotive used to haul a passenger train due to the failure of the
passenger train's own motive power; FRA does not wish for the passenger
train to be stranded.'' \14\
---------------------------------------------------------------------------

\13\ Under Sec. 238.5, neither the term ``locomotive'' nor
``passenger equipment'' ``include[s] a freight locomotive when used
to haul a passenger train due to failure of a passenger
locomotive.''
\14\ 64 FR 25540, 25578 (May 12, 1999).
---------------------------------------------------------------------------

B. Audio Recording Devices

1. Requiring Audio Recorders on Passenger or Freight Locomotives
While the Statute gives FRA discretion to require the installation
of audio-recording devices on passenger train lead locomotives and to
establish corresponding technical details for such devices, FRA did not
propose specific rule text in the NPRM that would require audio
recording devices. Rather, FRA requested comment on numerous specific
issues related to audio recorders, to evaluate whether to require audio
recorders in passenger or freight locomotives in this final rule.
Specifically, FRA asked about: (1) the usefulness of audio recordings
in certain accident investigations; (2) what benefits they provide in
addition to the benefits of image recordings; and (3) whether any
benefits outweigh the installation cost for these devices, the cost of
crashworthy memory for these devices, the loss of personal privacy for
occupants inside the locomotive cab, or the potential that recordings
from these devices could be abused by railroad supervisors.
FRA also asked for comments on whether FRA should require audio
recorders to stop recording after the locomotive has stopped, if FRA
were to adopt a requirement for the installation of locomotive audio
recorders in the final rule. In addition, FRA asked whether FRA should
require exterior recording devices that would be capable of recording
sounds such as the locomotive horn/bell, audible grade crossing warning
devices, engine noises, and other sounds relevant during post-accident
investigations, and what the utility of these recordings would be when
weighed against the potential cost. In responding to these questions,
FRA asked commenters to provide specific information on the costs of
installing audio recorders.
In response to these requests for comments, most parties agreed
with FRA's proposal not to require the installation of locomotive audio
recording devices in either passenger or freight locomotives.
Commenters who advocated for the installation of such devices pointed
to their usefulness in post-accident investigations. Although FRA did
not receive responses to all its requests for comments related to audio
recording devices, commenters did

[[Page 70727]]

respond to the question of when to stop audio recordings in the same
manner as they responded to the question of when passenger railroads
should stop their locomotive image recordings. FRA is addressing those
comments together in the next section.
As for the question whether FRA should require locomotive audio
recordings at all, BLET, TTD, and SMART asserted that audio recorders
should not be required. Moreover, BLET and SMART specifically asked FRA
to prohibit audio recordings within the locomotive cab. BLET stated
that, although audio and image recordings could be used to aid in
accident investigations, the recording devices would also add another
level of distraction and discomfort for train crews (e.g., audio
headsets) and, for the safety purposes of the system to be achieved,
the devices would at a minimum have to be operative on each lead
locomotive while the train is in motion, require crashworthy data
storage modules, and require the availability of an extra headset in
the case of an en route failure.
In response to FRA's request for comments on whether to require
exterior recording devices, BLET stated that all key locomotive
operations, including throttle, braking, locomotive horn/bell, are
already captured on the locomotive's event recorder. Further, BLET
noted that because grade crossing warning devices are intended to warn
motorists, not the train crew, it would be more helpful instead to
mount audio recorders at highway-grade crossing signal control boxes.
Accordingly, BLET saw no value in requiring exterior locomotive
recording devices; however, if FRA were to consider requiring such
devices anyway, BLET commented that FRA should consider exterior audio
devices that could be engaged or disengaged by selecting from the
locomotive's software preferences for the camera. BLET stated the cost
to do so would be nominal as it is already an included feature on some
locomotives. BLET further indicated that this feature was discussed at
RSAC Working Group meetings.
TTD asserted that audio recording devices would have a negative
impact on train crews' morale and the labor-management relationship,
and could possibly record and lead to the release of private
conversations unrelated to safety-sensitive tasks. TTD noted that a
substantial amount of information is already recorded or transmitted,
or both, via on-board equipment and radio communications, and
eventually will be through image recorders. Thus, TTD did not see how
audio recording devices would improve safety and asserted that FRA
should not mandate audio recorders in the final rule.
SMART commented that during RSAC Working Group meetings, both
railroads and labor organizations expressed unanimous opposition to a
locomotive audio recorder requirement. SMART believed employees deserve
some privacy protections and concurred with FRA's reasoning in the NPRM
that audio recorders should not be required.
In addition to labor organizations, APTA commented that it also
opposed requiring locomotive audio recorders. APTA stated that the
railroad industry supports most of FRA's NPRM analysis regarding audio
recordings, and that the industry believes that locomotive audio
recordings are redundant and secondary to both locomotive image
recorders and pre-existing communication systems, such as radio. APTA
also stated that audio recordings, like video recordings, are not
monitored by the railroads in real time, and therefore, have minimal
value in preventing accidents.
Notwithstanding APTA's assertion that the industry opposed a
locomotive audio recorder requirement, the National Railroad Passenger
Corporation (Amtrak) commented that FRA should create an exterior
recording device requirement to aid in post-accident investigations
because these devices are extremely beneficial in private litigation.
Amtrak provided figures on the cost of installing image recording
devices for their fleet to be $10,080 as well as the cost per
locomotive of new audio equipment to be $23,349, as FRA requested.
Additionally, in the RIA, FRA estimates a range that starts at $6,000
for each audio recording device up to a cost of $23,349. This lower
estimate was based on discussions with FRA's subject matter experts and
online research.
Amtrak also commented that the benefits provided by locomotive
audio recordings would outweigh concerns about the potential loss of
personal privacy for locomotive cab occupants, because while operating
a locomotive, the use of audio-visual recordings would be a condition
of employment applicable under the railroad's enforcement of rules. In
addition, Amtrak asserted that the benefits of locomotive audio devices
would outweigh the potential for abuse by railroad management because
Amtrak has an established company program and process in place
providing that the use of audio and visual recordings is for compliance
means only.
The NTSB also urged FRA to require both internal and external
locomotive audio recorders as part of this final rule. As noted in the
NPRM, the NTSB has conveyed to FRA that to satisfy NTSB Recommendations
R-10-01 & -02, FRA would need to include both audio and image recording
provisions in this rulemaking.\15\ Further, in its submitted comments,
the NTSB stated that for more than 10 years, voluntarily-installed
image and audio recorders have assisted the NTSB with its
investigations. According to the NTSB, the technology is fully
developed and mature, and the devices are readily available and are
already being manufactured, installed, and used. The NTSB also
commented on what it believed to be sufficient technical specifications
for locomotive audio recording devices and cited the recording
capabilities of locomotive audio recording devices used by Amtrak as a
model. The NTSB also stated that because memory storage requirements
for audio recordings are significantly less than those for image
recordings, additional memory for audio recordings should not be
needed. Finally, while recognizing the high levels of background noise
inside locomotive cabs from its experience investigating railroad
accidents, the NTSB stated it did not believe that headsets or other
specialized audio recording equipment, beyond what is currently being
used by railroads that have voluntarily installed such devices, will be
necessary.
---------------------------------------------------------------------------

\15\ National Transportation Safety Board, Safety
Recommendations R-10-01 and R-10-02 (Feb. 23, 2010); available
online at: <a href="https://www.ntsb.gov/safety/safety-recs/recletters/R-10-001-002.pdf">https://www.ntsb.gov/safety/safety-recs/recletters/R-10-001-002.pdf</a>.
---------------------------------------------------------------------------

The NTSB cited how important both inward-facing locomotive image
and audio recordings were in its investigation of the December 18.
2017, derailment of Amtrak passenger train 501 in DuPont, Washington.
According to the NTSB, these internal locomotive audio and visual
recordings helped the agency determine that neither personal electronic
device use nor brief conversations between the engineer and conductor
were causes of the derailment.
While internal locomotive audio recordings were useful in the
NTSB's investigation of the Amtrak passenger train 501 accident, NTSB's
comment states that it was audio recording devices inside the
locomotive along with inward-facing locomotive video recording devices
that helped the NTSB make determinations as to what could be excluded
as the cause of the 2017 Amtrak accident in Dupont, Washington.
Furthermore, the NTSB investigation into this accident is just one
specific investigation into one specific railroad accident. FRA did not

[[Page 70728]]

find any specific evidence that would lead the agency to believe that
internal audio recorders would be useful in all accident
investigations.
Wi-Tronix also commented on FRA's decision to not include an audio
recorder proposal in the NPRM and agreed with the NTSB that, based upon
its incident investigation experience over the years, the availability
of audio locomotive recordings has played a critical role in
determining the chain of events during an accident investigation and
the implementation of the technology is essential in getting the
``step-change improvement'' in human factor safety that FRA desires.
Wi-Tronix also commented on the potential for privacy concerns with
audio recordings that were raised by TTD and SMART. Wi-Tronix believes
that with current technology, recorded audio information could be
sequestered and be made available only to regulators and other
officials on a limited basis after an emergency incident. Further, Wi-
Tronix stated that artificial intelligence and machine learning could
use the audio information for analytics anonymously without personal
information included. Wi-Tronix said that the implementation of audio
recordings, in conjunction with video recordings, is not a major cost
driver for system implementation.
Finally, an anonymous commenter stated that installing inward and
outward-facing recording devices could be beneficial when investigating
railroad accidents. The commenter expressed hope that these recording
devices will decrease the number of railroad related accidents.
After considering all the comments received on whether audio
recording devices should be required on lead passenger locomotives, FRA
has determined that a requirement for such devices on lead passenger
locomotives is not justified. Accordingly, in this final rule, FRA is
not adopting a requirement for the installation of audio recording
devices on passenger or freight locomotives. FRA does not believe that
the potential added utility of audio recordings, in addition to image
recordings as well as the data provided by a locomotive's event
recorder, outweighs the cost that would result. Indeed, while audio
recording devices may provide some additional useful information in
certain accident investigation scenarios, the overall usefulness of
locomotive audio recordings is diminished by the statutorily mandated
requirement of inward- and outward-facing locomotive cameras as well as
existing requirements for event recorders on all lead passenger
locomotives. Further, as previously stated, there is no requirement in
the FAST Act that passenger or freight locomotives be equipped with
either internal or external audio recording devices. Therefore, FRA is
allowing railroads to decide whether to equip their locomotives with
external and/or internal audio devices.
Passenger locomotive cabs, unlike freight locomotive cabs or even
commercial airliner cockpits, are typically occupied by only one
crewmember, while additional crewmembers are located in the passenger
train consist assisting passengers. As there is usually only one
crewmember in the locomotive cab while a passenger train is in motion,
it is unclear what information internal locomotive audio recorders
would provide that inward-facing locomotive cameras could not. For
example, as cited in the NPRM, in both the 2008 Chatsworth Southern
California Regional Rail Authority (Metrolink) accident,\16\ and the
2015 Philadelphia Amtrak accident,\17\ the locomotive engineers
operating the trains were the sole occupants of the locomotive cab
while the other crewmembers were in the passenger consist. Also, as TTD
commented, a substantial amount of information is already recorded via
onboard equipment and radio communications. Therefore, other than radio
communications with other train crewmembers or the train dispatcher,
which are often already recorded, there may not be any other voice
communications inside the cab to record.
---------------------------------------------------------------------------

\16\ See 84 FR 35712, 35716-35717.
\17\ Id. at 35717.
---------------------------------------------------------------------------

External locomotive audio recorders are unlikely to provide much
additional information in post-accident investigations. As stated by
BLET, all key locomotive operations, including throttle, braking, and
locomotive horn/bell, are already required to be captured on the
locomotive's event recorder. If an accident occurs, this data can be
retrieved from the event recorder. Combining the event recorder data
with information gained from external locomotive cameras diminishes the
need for external audio recording devices. Accordingly, given the
information already available to FRA and other investigators from event
recorders and locomotive cameras, FRA cannot justify mandating the
installation of an external audio recording device at this time.
Moreover, locomotive audio recorders will not greatly increase a
passenger railroad's ability to deter railroad safety violations, such
as the use of prohibited personal electronic devices, beyond the
deterrence already provided by inward-facing image recorders. Because
the locomotive engineer is typically alone in the locomotive cab, it is
unlikely that audio recordings will pick up audio information useful to
prove that a rail safety violation occurred that could not be
determined from video footage. In fact, audio recordings might not pick
up anything at all.
Further, FRA shares SMART's and TTD's concern that because train
crews might be more likely to congregate in the locomotive cab when not
performing their safety-related duties (e.g., sitting in a siding),
locomotive audio recorders might be more likely to pick up private
conversations between crewmembers than the audio proof of a railroad
safety violation. As stated in the NPRM, FRA has concerns that these
time periods would likely include personal conversations between
employees and might have much more potential for abuse than do inward-
facing image recordings. While a commenter suggested that audio
recordings might be sequestered in a way that they would only be
accessible by regulators and other government officials, like FRA and
the NTSB, audio recordings would share the same memory module as image
recordings, and FRA anticipates that passenger railroads would want to
review them as part of their part 217 operational testing plans.
Finally, based on information provided by the railroad industry,
FRA subject matter experts, and online research, FRA estimates that the
inclusion of audio recording devices would cost passenger railroads
between $25.2 and $98.1 million dollars within the first four years of
implementation to install on over 4,200 passenger locomotives. Although
FRA recognizes that Wi-Tronix commented that the cost of locomotive
audio recorders in conjunction with image recording device would be
nominal, there may be only a small number of accidents where audio
recordings might be beneficial and Wi-Tronix did not provide any data
to support its cost assertion.
FRA understands from RSAC Working Group discussions and its own
research that the audio recording devices and microphones contained
within a locomotive's image recorders have some costs, but railroads
indicate a crash-hardened memory module for audio recordings might
increase costs of compliance. FRA is also concerned about the
background noise levels inside the cabs of certain locomotives and has
previously conveyed that concern to the NTSB. Because of the noise,
additional equipment may be

[[Page 70729]]

needed to record crew voice communications so the recordings can
accurately be deciphered by railroad managers and accident
investigators. This would also be expected to add to the cost of
installing such equipment.
However, FRA also disagrees with BLET and SMART, and nothing in
this final rule precludes passenger or freight railroads from
voluntarily installing and using either internal or external locomotive
audio recording devices as part of their operation, if they so choose.
The FAST Act provided FRA with discretion whether to include a
regulatory requirement for inside-locomotive audio recording
devices,\18\ and while this rule will not require the installation of
inside- or outside-audio recording devices, it will also not preclude
the devices. However, if a passenger railroad chooses to install
locomotive audio recording devices in their locomotives, then certain
requirements from this rule do apply to those devices.
---------------------------------------------------------------------------

\18\ See 49 U.S.C. 20168(e)(1)(A).
---------------------------------------------------------------------------

2. Referencing Audio in the Definition of ``Recording Device'' in Part
229
FRA also received a comment from APTA suggesting that FRA remove
any reference to audible sounds from the definition of ``recording
device'' as proposed in the NPRM. For the reasons discussed in Section
II.T below, FRA disagrees and intends that audio recordings be subject
to the preservation requirements and other relevant requirements of
Sec. 229.136.

C. Recording Device Run-Time/Shutoff When Trains Stop Moving

In the NPRM, FRA requested comments on a number of questions
regarding whether FRA should set a specific run-time or shutoff
requirement for locomotive recording devices. Specifically, FRA
requested comment on its proposal to provide passenger railroads the
discretion to decide whether locomotive recording devices would
continue to record when a locomotive is not in motion, if the railroad
retains a recording of the last 12 hours of operation of the locomotive
on a memory module compliant with the requirements proposed in Sec.
229.136. FRA also asked for comments on: what safety benefits would
result from recordings made when a locomotive is occupied, but not
moving; whether a specific run-time or shutoff requirement would
present any technical hurdles for the railroads, and if so, the cost of
those hurdles (in dollars); the privacy implications of recordings
being made during down times when the crew is not performing safety-
related duties; the potential risk of data being overwritten if an
accident occurs in a remote location and the device continues to
record; and finally, whether passenger railroads should be exempt from
any requirement to stop locomotive recording devices from recording
when the locomotive is stopped.
FRA received numerous responses to these requests for comments.
Most of the comments focused on what the run-time/shutoff standard
should be, if any. Both Amtrak and APTA expressed views consistent with
FRA's proposed standard that passenger railroads have the discretion to
determine their own run-time/shutoff standard for locomotive recording
devices. APTA noted that locomotive cabs are workplaces, whether
occupied or not, and therefore they should be able to run their
locomotive cameras continually. APTA asserted that allowing cameras to
run continually would serve as a deterrent against locomotive safety
device tampering, assist with potential criminal investigations (such
as vandalism), and provide a valuable tool for railroad security.
However, APTA stated while its members support the position that
railroads should be able to record using their locomotive image
recorders when the locomotive is stopped, the decision whether to
record while the locomotive is stopped should be left to the individual
railroad.
Amtrak's comments were similar to APTA's. Amtrak opposed FRA
adopting a stricter standard than that proposed in the NPRM. Amtrak
also contended that railroads should be allowed to record after the
train has stopped moving (e.g., for security purposes when a locomotive
cab is unoccupied, to record mechanical tests such as brake tests and
calendar day inspections).
The NTSB commented that FRA should require inward-facing cameras to
record whenever a locomotive is powered on, regardless if the
locomotive is moving or stationary, and that railroads should not have
the discretion to decide to stop recording when a locomotive is not
moving. The NTSB stated that safety-sensitive duties frequently occur
when locomotives are stationary, and there is no way to limit
recordings to only capture safety-related activities. According to the
NTSB, by recording anytime the locomotive is powered on, key pre-
accident events would be recorded, such as pre-job briefings, and
critical post-accident events, such as calling emergency services,
would be recorded and available in post-accident analysis. The NTSB
also asserted that requiring continuous recording while a locomotive is
powered on would help identify those occasions when an employee tampers
with or disables a safety device.
In contrast, BLET, SMART, and TTD disagreed with the aforementioned
comments as well as FRA's proposal in the NPRM to provide passenger
railroads maximum flexibility in determining the run-time/shutoff time
for their recording devices. BLET commented that, regardless of whether
the recorders are image or audio recorders, they should be shut off and
no longer recording when the train's motion has stopped and the brakes
are applied. According to BLET, it would be unacceptable if the cameras
can still run when a locomotive is stopped and everything over the
course of a crew's duty tour would be under analysis by the railroad.
Further, BLET stated that the time when a train has stopped moving
is the only time that a crew has available to eat, use the bathroom
facilities, or just relax, noting some railroads permit and even
encourage napping to mitigate employee fatigue. BLET claimed there are
numerous studies that prove if an individual is recorded on camera
continually it will increase the individual's stress level, which
thereby increases the individual's fatigue. BLET also pointed out that
on many occasions, a train crew may have expired under the hours of
service laws and simply be waiting to be relieved. BLET asserted that
no safety benefits would result from filming and recording these types
of non-operational activities.
BLET also expressed concern for train crewmembers' privacy if
inward-facing cameras record when no safety-related duties are being
performed. BLET commented that cameras could record employees changing
their clothing or needing to express breast milk, which BLET believed
cannot be safely and perhaps lawfully done in the sanitary compartment.
Finally, BLET asserted that FRA should not only consider a
regulatory restriction on the run-time/shutoff for locomotive recording
devices but should also address use of the cameras for monitoring
employees. Specifically, BLET commented that some railroads have
claimed the technological capacity to view the inside of a locomotive
cab regardless of whether the camera's output is being recorded.
Therefore, according to BLET, not only should railroads be prohibited
from recording when a locomotive is stopped, but railroads should also
be prohibited from surveilling their employees when a locomotive is
stopped and the cameras

[[Page 70730]]

should be deactivated when a locomotive is stopped.
SMART and TTD suggested a slightly different standard than that
proposed by BLET in that FRA should require railroads to shut off their
inward-facing cameras five minutes after a train has stopped. TTD
asserted that a five-minute window of additional recording after the
train has stopped moving would allow FRA the necessary time to gather
post-accident or -incident investigation information, without
infringing on the crew's privacy. TTD stated that, in contrast, the
standard proposed in the NPRM would allow the railroads to record at
all times, even when the train is stopped and the crew is not
performing any safety-sensitive duties. TTD asserted that there is no
value to recording when trains are stopped, such as at sidings, which
occurs with some frequency. Further, TTD agreed with BLET that
operating a train is a fatiguing job and that constant filming of train
crews will increase tension, and according to SMART, likely also result
in ``unsafe practices.''
SMART echoed TTD's position that inward-facing cameras should not
record when trains are stopped and crews are not performing safety-
sensitive activities. Like TTD, SMART pointed out that crews often sit
in a siding or at a signal for hours with no safety-related duties
being performed. SMART also stated that requiring inward-facing
locomotive cameras to stop recording five minutes after a train stops
would protect against any personal harassment from the unnecessary
recording of personal, but not safety-sensitive information.
However, while both TTD and SMART believed a strict five-minute
shutoff standard after a train has stopped moving is necessary for
inward-facing image recorders, both organizations specifically stated
they did not object to a less prescriptive run-off/shutdown requirement
for outward-facing cameras. In fact, they stated that the outward-
facing cameras would provide the security benefits cited by APTA and
Amtrak, and protect the railroad by helping deter vandalism, theft, and
other criminal activities.
After consideration of all comments received on this issue, in this
final rule, FRA is adopting the standard it proposed in the NPRM. FRA
will not prescribe a mandated run-time/shutoff requirement for
passenger locomotive recording devices. As will be discussed in greater
detail below in Section II.C, as long as the locomotive's required
inward- and outward-facing cameras are recording anytime the locomotive
is in motion and the passenger railroad is complying with all other
requirements of the final rule described below (e.g., no video
recording in the locomotive's sanitation compartment), the railroad has
the discretion to continue recording images, and audio if installed.
FRA concluded that, as APTA and Amtrak pointed out in their comments,
allowing railroads to record both inside and outside of the locomotive
cab when the locomotive is not in motion can serve legitimate safety
functions, such as preventing tampering, assisting with criminal
investigations (such as vandalism and trespassing), and be an overall
useful tool for railroad security. In addition, FRA agrees with NTSB's
point that recording when a locomotive is powered on may have potential
informational value in post-accident investigations.
As discussed in the NPRM, the railroad industry is highly
regulated, and there are already a large number of Federal statutes and
regulations governing railroad employees' performance of safety-related
duties when they occupy the cab of a lead locomotive.\19\ In fact, the
Supreme Court has recognized that ``the expectations of privacy of
covered employees [here, train crewmembers] are diminished by reason of
their participation in an industry that is regulated pervasively to
ensure safety. . . .'' \20\ A locomotive is a shared work space between
various railroad employees. During one railroad employee's tour of
duty, railroad supervisors, FRA inspectors, and other authorized
individuals may access the cab of the locomotive and observe the
employee's actions and communications in the cab, at any time, without
providing any notice. In fact, the general public is often able to view
train crewmembers occupying the locomotive cab and certain of their
actions through the passenger locomotive's windows when the locomotive
is located near a railroad right-of-way or a highway-rail grade
crossing and also in certain cab control car configurations or at
certain station platforms. Therefore, as passenger train crews can be
monitored or frequently observed in locomotive cabs even without
recording devices, they have no expectation of privacy in the
locomotive cab, whether or not the locomotive is moving.
---------------------------------------------------------------------------

\19\ For example, railroad employees who operate trains within
the United States are subject to drug and alcohol testing (both
random and for cause) (49 CFR part 219), operational testing (e.g.,
49 CFR parts 217, 218, 220, 240, 242), hours of service laws (see 49
U.S.C. ch. 211, 49 CFR part 228), and regulations governing the use
of personal electronic devices (49 CFR part 220), among many other
requirements.
\20\ Skinner v. Railway Labor Executives Association, 489 U.S.
602, 627 (Mar. 21, 1989).
---------------------------------------------------------------------------

FRA also requested and received comments on the potential risk of
overwriting valuable recorded data if an accident occurs in a remote
location and a locomotive's recording device(s) continue to record
after the accident has occurred and the recordings before and during
the accident are recorded over. Both the NTSB and APTA submitted
comments on this issue.
The NTSB indicated it has found that, in most major accidents, the
locomotive loses power, which stops all recording devices and negates
the risk of overwriting accident data. However, the NTSB commented that
railroads should put procedures in place to preserve recordings in the
event of a less severe accident in a remote location where the
locomotive does not lose power and the footage could be overwritten.
APTA commented that concerns about passenger trains might be
misplaced and pointed out that instead of passenger trains, freight
trains are more likely to pass through or stop in remote areas or areas
that are potentially harder to access, and have longer one-direction
trip-duty times than commuter and, in some cases, intercity passenger
trains. APTA stated that commuter trains trip lengths are shorter, and
it is not uncommon for a train to travel in one direction leading with
a conventional locomotive and then do a reverse trip in the other
direction leading with the train's cab car. APTA also maintained that
crew on-duty times for commuter and intercity passenger routes are
generally shorter and scheduled to minimize any jobs approaching 12
hours on duty so that crews have additional rest before their next
trip, and that crews may even change train consists. APTA believed
these elements contribute towards reducing the potential for critical
video being overwritten in an accident.
In addition, the NTSB commented that FRA should address the issue
of buffering in this final rule to ensure that all critical events
occurring before an accident occurs are recorded. The NTSB stated that
frequently saving data to permanent storage from temporary memory--that
is, buffering--will help prevent the loss of audio and images due to
accidents and power disruptions, as it has experienced varied success
with recording devices capturing the time period before an accident.
The NTSB noted that, in the February 8, 2018, CSX Transportation
accident in Cayce, South Carolina, the outward-facing image and audio
recorder did not record critical events before the accident; instead,
the audio stopped

[[Page 70731]]

recording a few minutes before the accident, and the image recording
stopped about a minute before the accident, without recording the
misaligned switch that derailed the train. Conversely, the NTSB cited
the December 18, 2017, Amtrak accident near DuPont, Washington, where
the inward- and outward-facing image and audio recordings did capture
critical events up to the time of derailment.
After carefully considering both NTSB's and APTA's comments, FRA
has determined it would be premature to create a regulatory requirement
for passenger railroads addressing the potential for data being
overwritten if an accident occurs in a remote location where there is
no loss of power to the recording device, but the memory module is not
immediately available. Although FRA agrees that passenger railroads
should consider the possibility that commuter or intercity passenger
trains could have an accident in a location where the locomotive does
not lose power, the footage in the memory module may not be readily
retrieved, and the footage could be overwritten, FRA has found no
evidence of such a passenger train accident occurring. FRA also agrees
with APTA's comment that, overall, passenger trains are far less likely
to pass through or stop in remote areas when compared to freight
trains. Therefore, lacking evidence of such a passenger train accident
or incident occurring, and considering the limited likelihood of such a
situation occurring in the future, FRA declines to adopt a regulatory
provision specific to the risk of data being overwritten in such a
scenario.

D. Exclusion of Existing Installed or Ordered Equipment

FRA received numerous comments stating that locomotive image
recording devices previously installed or ordered before the
publication date of the final rule should be excluded from complying
with the final rule's requirements. For reasons discussed below, FRA
disagrees with the comments and will not allow previously installed or
ordered locomotive image recording devices or voluntarily installed
audio recording devices to be excluded from this final rule's coverage.
Instead, as proposed in the NPRM, this final rule provides passenger
railroads with a four-year implementation period within which all of
their lead locomotives must be brought into compliance with the rule's
requirements.
APTA commented that FRA should allow exclusions for recording
devices that have been installed or are in the process of being
installed prior to the issuance of the final rule. APTA asserted that
if FRA does not exclude these devices, there is a strong possibility
that railroads that were early adopters of locomotive recording device
technology will be financially penalized because the proposed
requirements for image recorders would be too prescriptive and older
locomotive recording devices could not comply. APTA also maintained
that the cost to retrofit existing lead locomotives would be
significant and could delay the availability of data for use by the
passenger railroads as well as FRA and the NTSB for post-accident
investigations. APTA stated that 76 percent of passenger locomotives
already have image recording devices installed and that 93 percent of
passenger railroads have installed image recording devices in all of
their vehicles, or are in the process of doing so, and that ``a few
large railroads'' equipped, or partially equipped, their fleets with
recording devices within the last year. Given APTA's assumption that
locomotive image recording systems have a life span of eight years,
APTA believed that these railroads will lose most of the full life-
cycle of the recording devices if FRA does not include an exclusion
clause in this final rule.
AAR also agreed that FRA should include an exclusion provision to
protect early adopters of this technology. According to AAR, during the
2014 RSAC Working Group meetings FRA proposed that recording systems
installed on locomotives prior to the rule's effective date would be
considered compliant for ten years from the final rule's publication
date, with the exception that memory modules would be required to meet
the crashworthiness requirements within three years of publication. AAR
therefore suggested that recording systems installed prior to the final
rule's publication date be considered compliant until ten years from
that date, whether or not all of the functional requirements of the
rule were met by the already-installed system.
The North Country Transit District (NCTD), which operates the
COASTER commuter rail service in Northern San Diego County, California,
suggested that the final rule should exclude locomotive recording
devices that were installed prior to the effective date of the final
rule and do not meet the crashworthy memory module requirements. NCTD
stated it began installing inward- and outward-facing cameras with
audio recorders in 2012 and had just completed a global replacement of
cameras and recording devices on its entire locomotive and cab car
fleet.
Finally, the Commuter Rail Division of the Illinois Regional
Transportation Authority (Metra) also agreed with many of the same
comments that passenger railroads have already begun to utilize
recording equipment and, therefore, FRA should allow existing equipment
to continue to be used to avoid punishing early adopters of the
technology.
Although FRA appreciates the concerns raised by the commenters, FRA
does not believe it in the public's interest or the interest of rail
safety to provide an exception from the final rule's requirements for
locomotive image recorders installed prior to the rule's publication
date. Older cameras that do not meet the final rule's requirements
would likely not provide the benefits (deterrence and accident
investigation) that the rule seeks to provide. As discussed above, the
Cayce accident is a prime example of how accident investigations could
be adversely affected by use of older camera systems, because external
locomotive image (and audio) data was lost in the accident. Under the
requirements of this final rule, locomotive recordings must now be
stored on a certified crashworthy memory module as required by the FAST
Act, or an alternative remote storage system approved by FRA. If FRA
were to exempt older image recording systems from the requirements of
this final rule, it would increase the likelihood of more vital
accident data being lost by use of non-compliant systems. Four years is
an adequate time for passenger railroads with installed or currently
ordered locomotive recording systems to get remaining value out of the
recording systems without unduly putting value maximization of current
locomotive recording systems above passenger rail safety. In addition,
the NTSB has supported FRA's four-year implementation period as
encouraging prompt implementation of the final rule's requirements. As
stated above and in the NTSB's comment, the NTSB's report from the
DuPont accident showed there is a clear investigative benefit to the
information obtained from locomotive recording devices. According to
the NTSB, ``any further delays beyond the proposed 4-year deadline
would be unacceptable,'' given NTSB issued Safety Recommendation R-10-
01 in 2010.
Passenger locomotive image recorders that do not meet the final
rule's requirements might not be sufficient to identify railroad safety
violations as well as provide adequate data for post-

[[Page 70732]]

accident/incident analysis. Moreover, even if FRA were to allow
previously installed or ordered equipment to be excluded from this
final rule's requirements, retrofitting the vast majority of, if not
all, passenger locomotives would still be necessary as the Statute
requires locomotive recorder data to be stored on crashworthy memory
modules and very few, if any, passenger railroads currently store their
image recordings on such modules. As discussed in the Section II.K
below, a four-year implementation period is an adequate timeframe for
passenger railroads to comply with the final rule. Passenger railroads
will have four years to stagger any modifications or retrofits that are
necessary to bring their locomotives' recording systems into compliance
with the final rule.

E. Certified Crashworthy Event Recorder Memory Modules

1. Necessity of Crashworthy Memory Modules
FRA received numerous comments about the proposed requirement to
store locomotive recorder data on a certified crashworthy event
recorder memory module and potential alternatives to meet an
appropriate crashworthiness level to protect stored locomotive image
recording system data. APTA stated that a crashworthy memory module is
unnecessary due to the installation of positive train control (PTC) on
passenger railroads, which will eliminate most of the accidents that
FRA cited in the NPRM, and that passenger railroads believe crashworthy
memory retention could be achieved by simply positioning the recording
devices in an area to minimize impact forces. However, APTA supported
FRA's suggestion to provide waivers for the memory module's
crashworthiness when the recording is transmitted to a remote location,
stating the technology surrounding image recordings is advancing more
quickly than the rulemaking process, and encouraged FRA to consider
waivers for remote storage options in lieu of crashworthiness
standards.
Wi-Tronix raised concerns that some of the proposed requirements
for inward- and outward-facing cameras, such as the 12 hours of
required storage together with the crashworthy memory module
requirement, added unnecessary costs to railroads without a
justification. Understanding the final rule's need for data
preservation, Wi-Tronix asserted there are other technical approaches
that could accomplish the same goals on a more cost-effective basis,
stating that cloud solutions accomplish the same data retention and
have the potential to be more economical while creating other value in
the process.
Conversely, both the NTSB and SMART supported the proposed
crashworthy memory module requirement. In addition, BLET commented that
the paramount consideration and goal of the final rule should be a
uniformity of standards throughout the whole railroad industry, whether
locomotive recording devices be required by the Statute or voluntarily
installed. Therefore, BLET believed it makes logical and economic sense
to store all forms of recorder operational data (e.g., event recorder
data, safety-critical PTC data, and audio/visual recording data) in a
single storage unit that meets the appropriate crashworthiness
standards in appendix D to part 229. BLET also stated that FRA should
be focused on the performance and survivability of crashworthiness
options, and not necessarily the cost.
2. Potential Exemptions From the Crashworthy Memory Module Requirements
FRA also received comments about exempting from the crashworthy
memory module requirement those systems that can store locomotive
recorder data safely and remotely. As previously stated, APTA commented
that FRA should avoid mandating onboard locomotive storage of data in
favor of more flexible storage options for passenger railroads,
including cloud or remote storage. Hitachi, Ltd. (Hitachi) agreed with
APTA that remote storage should be allowed and recommended that the
rule avoid mandating onboard crashworthy memory storage for locomotive
recording data. Hitachi stated that image processing and data
communications technology has matured in transmitting real-time images
to be stored and analyzed remotely at centralized locations, and thus
the final rule should avoid mandating onboard locomotive storage in
favor of remote storage options that make more economic sense for the
railroad.
The NTSB, however, disagreed with exempting locomotive recorders
from crashworthiness requirements even when the recording system is
designed to immediately transmit and store data at a remote location.
The NTSB asserted the exemption would risk the loss of data when an
accident occurs in an area where data cannot be reliably transmitted,
such as in tunnels or remote regions. BLET also commented that wireless
transmission and storage of locomotive audio or image data should be
prohibited to prevent private, personal data from being hacked.
In response to these comments, FRA emphasizes that the requirements
for crash and fire protection of in-cab recordings--i.e., that each
inward- and outward-facing image recording device have crash and fire
protections for any in-cab image recordings that are stored only within
a lead locomotive--are mandated by the Statute.\21\ To implement this
statutory requirement, in Sec. 229.136(a)(5), FRA is requiring that
any locomotive recording device data (including any audio recorder
data) stored only within the lead locomotive be recorded on a memory
module that meets the established requirements for a certified
crashworthy event recorder memory module described in appendix D to
part 229, which includes protection against fire. If a passenger
railroad chooses to install a locomotive image recording device that
does not store the recorded data only within the lead locomotive, but
instead stores the data remotely using cloud storage or other remote
storage alternative, the railroad must state so in its written
description of the technical aspects of the locomotive image recording
system submitted to FRA as part of the system's approval process
required by Sec. 229.136(g) of this final rule. FRA makes clear that
use of a recording device system relying exclusively on cloud storage
or other remote storage alternative would not require a waiver under 49
CFR part 211, as indicated in the NPRM, but instead may be authorized
through the approval process under Sec. 229.136(g).
---------------------------------------------------------------------------

\21\ 49 U.S.C. 20168(b)(2).
---------------------------------------------------------------------------

For FRA to approve use of a locomotive recording device system that
only uses remote storage for its recorded data, the passenger railroad
must show conclusively how the remote storage system provides at least
equivalent data protections to those provided by use of a certified
crashworthy memory module under appendix D to part 229. Specifically,
the railroad must describe how all of the data will be reliably and
securely transferred to the cloud or other remote storage location and
how that data will be reliably and securely stored and retrievable. The
railroad must also show how the reliable and secure transfer of all
locomotive image recording device data to a remote storage location
will occur under a variety of situations, including situations
involving accidents and/or incidents (especially in outlying or remote
areas), system failures, or other similar contingencies. FRA will not
approve the use of any locomotive

[[Page 70733]]

image recording system if the railroad does not clearly demonstrate
both that the data cannot be lost due to its transfer from the
locomotive image recording device to the remote storage location and
cannot be lost or corrupted during storage and therefore irretrievable.
This allows passenger railroads to enjoy the benefits of remote storage
of data for these recording devices while preventing the potential for
lost data, which could prove critical in a post-accident investigation,
and ensuring that the transfer of data to the remote storage location
is secure.
Freight railroads that have voluntarily installed or are planning
to voluntarily install inward- or outward-facing recording devices on
their locomotives are not required to store the data on a certified
crashworthy event recorder memory module. However, FRA recommends that
if a freight railroad chooses to use a memory module, it should mount
and position the module in such a way as to provide the module with
maximum protection.
3. Need for Stronger Memory Module Requirements
FRA understands the NTSB's preference for stricter recorder
survivability standards. The NTSB has recommended FRA require event
recorder data to be also recorded in another location remote from the
lead locomotive(s) to minimize the likelihood of data destruction in an
accident, as has occurred in certain accidents (NTSB Safety
Recommendation R-13-22).\22\ However, the standards in appendix D to
part 229 require a crashworthy memory module, which is designated to
withstand the conditions an event recorder may encounter, including
accident conditions. A new, more stringent standard that would prevent
the destruction of data in every passenger railroad accident scenario
is likely not cost-beneficial, and is also likely unnecessary given the
implementation of PTC systems.
---------------------------------------------------------------------------

\22\ National Transportation Safety Board, Safety Recommendation
R-13-22 (Aug. 14, 2013); available online at: <a href="https://www.ntsb.gov/safety/safety-recs/recletters/R-13-018-023.pdf">https://www.ntsb.gov/safety/safety-recs/recletters/R-13-018-023.pdf</a>.
---------------------------------------------------------------------------

As discussed in the NPRM, the railroad accidents that led NTSB to
issue recommendations related to locomotive image and audio recording
devices were caused by human factors--and nearly all were PTC-
preventable. Thus, given the full implementation of PTC systems on
intercity passenger and commuter railroad main lines, the likelihood of
similar accidents occurring should be greatly reduced, if not
eliminated. In turn, the need should diminish for more stringent
crashworthy memory module requirements to preserve image and audio
recordings for use to investigate accidents resulting from human factor
causes on main track.
Memory modules are acceptable that meet the specified performance
criteria in either Table 1 or Table 2 of section C, appendix D to part
229. As FRA discussed in the rulemaking promulgating the crashworthy
memory module standards, each set of criteria in Tables 1 and 2 is a
performance standard, and FRA has not included any specific test
procedures to achieve the required level of performance. FRA did not
believe it necessary to include specific testing criteria in the
regulation, as the rail industry and equipment manufacturers are in the
best position to determine the exact way they will test for the
specified performance parameters.\23\ FRA's position remains the same
today and notes that not requiring specific test procedures also
accommodates adoption of any future testing methods that are developed.
---------------------------------------------------------------------------

\23\ 69 FR 39785 (June 30, 2004).
---------------------------------------------------------------------------

4. Storing Audio Recordings on the Crashworthy Memory Module
APTA commented that it was opposed to requiring recordings from
voluntarily installed recording devices to be stored on a certified
crashworthy memory module under part 229, appendix D. FRA does not
agree. Although this final rule does not require passenger railroads to
install locomotive audio recorders, because installing such devices is
not required by the FAST Act, if passenger railroads voluntarily
install audio recording devices, the data recorded must be maintained
on a crashworthy memory module to ensure the data is available for use
by FRA as well as other Federal agencies (and railroads themselves) to
conduct effective post-accident/incident investigations and more
accurately determine the causes of accidents/incidents. Accordingly,
Sec. 229.136(a)(5) requires any passenger locomotive recording device
data, whether image or audio data, to be recorded on a certified
crashworthy memory module as described in part 229, appendix D, or on
an alternative, remote storage system, as approved by FRA. For further
discussion on this final rule's accident/incident preservation
requirements for locomotive recording devices, please see the
discussion under Sec. 229.136(f) in this rule's Section-by-Section
Analysis.

F. Outward-Facing Locomotive Image Recording Systems and Devices

1. Placement of Outward-Facing Locomotive Image Recording Devices
APTA expressed concern about the proposal to require aligning an
outward-facing locomotive image recording device to point parallel to
the centerline of tangent track on which the lead locomotive is
traveling. APTA believed the proposal would require mounting the camera
within the gauge of the track and stated that, because many locomotive
designs have center collision posts or center doors, the cameras may
need to be mounted on the side of the locomotive and be aimed towards
the center of the track. APTA therefore requested the rule be clarified
accordingly to permit such camera placement.
However, the rule text needs no such clarification because this
rule does not require outward-facing image recording devices to be
mounted on the centerline of a passenger locomotive. FRA recognizes
that cab car and multiple-unit (MU) passenger locomotives have features
that may inhibit the placement of cameras on the centerline, and FRA
never intended to require cameras to be mounted on the centerline. The
rule requires cameras to be aimed ``parallel'' to the centerline of
tangent track, wherever the cameras may be placed on the leading end of
the locomotive, and FRA is adopting the proposed rule text without
change.
2. Requirements for Outward-Facing Locomotive Image Recorders Are Too
Prescriptive
APTA commented that requiring outward-facing locomotive image
recorders to be able to distinguish the signal aspects displayed by
wayside signals, as proposed in the NPRM, would be too prescriptive and
overcomplicate the outward-facing camera system. APTA preferred a more
performance-based standard, and added there are multiple environmental
factors that affect the image quality of outward-facing camera footage
that are not within the railroad's control. APTA also stated that the
proposed standard to record at 15 frames per second (fps) and the
proposed resolution requirement are vague and would make design
compliance subject to many factors that would increase costs. APTA
therefore offered alternative language allowing the railroads to
determine the frame rate and resolution for their locomotives' outward-
facing cameras. Similarly, Wi-Tronix asserted that basing the
resolution requirement for outward-facing cameras upon whether a system

[[Page 70734]]

could determine switch points from a 50-foot distance is too
subjective, and instead suggested that an objective, technical
resolution specification should be used and implemented. AAR also
stated that FRA should remove prescriptive provisions, such as the
NPRM's proposed requirements for outward-facing recording devices.
TTD commented that it did not object to less prescriptive
requirements on outward-facing cameras for the purposes of preventing
vandalism, theft, or other criminal activity. However, BLET supported
more prescriptive requirements for outward-facing locomotive image
recording devices, commenting that it favored requiring locomotive
recordings to have an accurate date/time stamp calibrated to coincide
with the date/time stamp on the lead locomotive's event recorder. BLET
stated that investigative efforts would be hampered, instead of
facilitated, if such a requirement were not adopted.
Finally, Metra commented that FRA should permit flexibility in the
selection and implementing of railroads' locomotive image and audio
recording systems. Specifically, Metra stated that if the systems meet
the technical requirements, railroads should have leeway to determine
the type and model of recording system used and what sound audio
recording systems will capture (e.g., cab versus exterior bell and
horn).
After consideration of all comments received, FRA is adopting the
requirements for outward-facing locomotive image recording devices in
Sec. 229.136(b)(1) as proposed in the NPRM. FRA understands concerns
that certain requirements for outward-facing cameras are prescriptive;
however, this was FRA's intention. As compared to the defined space
inside a locomotive cab, the area outside and ahead of a locomotive is
vast and unbounded. Consequently, establishing certain, more
prescriptive, uniform performance parameters helps ensure that image
recordings conform to minimum standards necessary for reliable, post-
accident/incident investigation. A more performance-based approach
risks potential variances and omission of necessary data. However, FRA
makes clear that these standards are minimum standards, and passenger
railroads do have considerable discretion as to how they want their
outward-facing locomotive cameras to operate and record data.

G. Inward-Facing Locomotive Image Recording Systems and Devices

1. Inward-Facing Recording Devices as a Tool To Detect Fatigue
In the NPRM, FRA discussed the possibility of inward-facing image
recorders being a tool to identify fatigue, prevent fatigue-related
accidents/incidents, and identify when fatigue has been a relevant
factor in an accident/incident. However, APTA commented that relying on
image data as a fatigue-mitigation tool has limited application,
stating it is unclear what criteria the industry would use to determine
when an employee is fatigued and that such analysis on the part of the
railroad could be subjective.
This final rule requires the inward-facing image recording systems
to have sufficient resolution only ``to record crewmember actions'';
FRA has not adopted the proposed text specifically addressing
crewmember incapacitation. FRA is still hopeful that inward-facing
locomotive cameras can be helpful devices to determine whether fatigue
may have caused or contributed to an accident or incident. However, FRA
agrees that requiring passenger railroad to make a determination that
their inward-facing locomotive image recording systems have sufficient
resolution to identify whether a crewmember is physically incapacitated
is too subjective a standard.
2. Locomotive Recording Devices and Real-Time Monitoring
APTA sought clarification whether the proposal implied that
passenger railroads must conduct real-time monitoring of their
locomotive cabs. According to APTA, the passenger railroad industry
does not support real-time monitoring and, if remote monitoring is
added as a requirement, FRA would need to significantly adjust its cost
burden estimates to account for staffing and other increased costs of
such monitoring. As discussed in the Section-by-Section analysis below,
FRA has not adopted the proposed language that APTA believed may imply
a requirement to engage in real-time monitoring of the train crew. FRA
intended no such requirement.
3. Inward-Facing Recording Device Coverage of the Locomotive Cab
APTA suggested changes to the proposal in Sec. 229.136(c)(1) that
the inward-facing recording system be positioned to provide ``complete
coverage of all areas of the controlling locomotive cab where a
crewmember typically may be positioned.'' APTA commented that the
proposal was too prescriptive, stating that multiple designs of
locomotives would require various solutions and therefore the devices
should be positioned to provide coverage of areas of the controlling
locomotive cab as defined by the operating railroad.
Similarly, SMART disagreed with requiring the inward-facing image
recorders to provide ``complete'' coverage of the locomotive cab, and
instead suggested that the standard should provide for ``overall''
coverage. SMART acknowledged that an inward-facing locomotive image
recording device must be positioned to provide coverage of the
controlling locomotive, but believed requiring ``complete'' coverage
might be overly broad and imply coverage to include every minute area
of the locomotive.
In general, the requirement to provide ``complete'' coverage is
intended to ensure that the recording system not omit footage of
crewmember actions in any part of the locomotive cab that might be
vital in post-accident/incident investigations.\24\ Allowing the
operating railroad to define the areas of the lead locomotive to be
covered by the inward-facing recording system or allowing only
``overall'' coverage may lead to a lack of a uniform minimum amount of
coverage that risks omitting critical data. Therefore, FRA is still
requiring that inward-facing image recording systems provide
``complete'' coverage of all areas of the controlling locomotive cab
but puts some limits on the requirement. ``Complete'' coverage only
needs to be ``of all areas of the lead locomotive cab where a
crewmember typically may be positioned, including complete coverage of
the instruments and controls required to operate the controlling
locomotive in normal use.'' This clause ensures that passenger
railroads will not be found in violation of the standard if their
inward-facing image recording system does not cover mostly inaccessible
corners of the locomotives where activities necessary to operate the
locomotive would not occur.
---------------------------------------------------------------------------

\24\ FRA has exempted the locomotive's sanitation compartment in
paragraph (c)(3), because the privacy needs of the train crew
outweigh, among other things, the potential that actions occurring
in the sanitation compartment will cause or contribute to an
accident/incident.
---------------------------------------------------------------------------

4. Recording in Low-Light Conditions
APTA opposed including the language in proposed paragraph Sec.
229.136(c)(1)(ii) (now in (c)(1)(iii)) requiring recording systems to
automatically switch to infrared or another operating mode that enables
the recording to have sufficient clarity when ambient light levels drop
too low for

[[Page 70735]]

normal operation. Instead of what it termed a too prescriptive and one-
size-fits-all approach, APTA believed the requirement should provide
that the camera system be capable of using ambient light in the cab
during all times in passenger service. Conversely, the NTSB agreed with
FRA's proposal.
FRA disagrees that the proposed requirement for a recording system
to switch to another operating mode to enable effective recording when
ambient light levels are too low for normal operation is overly
prescriptive. As proposed, the camera system may use any operating mode
that enables the passenger railroad to record with sufficient clarity
all areas of the lead locomotive cab where a crewmember typically may
be positioned. Infrared technology is one way of meeting this
requirement, but the use of infrared technology is not required. This
is a key requirement, however, to ensure that regardless of the
technology used to record inside the locomotive cab at nighttime or in
other periods of low ambient light (e.g., in tunnels), the inward-
facing cameras must still be capable of recording crewmember actions
with sufficient clarity. Accordingly, FRA is adopting this requirement
as proposed in the NPRM.
In addition, BLET commented that locomotive technologies are
already excessively distracting to crewmembers, there is no need for
additional distractions, and cameras or independent light sources
should never emit any light that distracts the crew from safely
performing their duties or interferes with the crew's vision outside
the locomotive window. APTA also stated that a crew should always be
able to use the locomotive's sun visor to block direct sunlight that
could affect the crew's sight and the identification of signals or
other objects outside of the locomotive cab windows.
Existing FRA regulations provide that any illumination in low-light
conditions cannot interfere with a crew's vision (49 CFR 229.127(a)),
and the placement of image recording devices cannot obstruct a crew's
view of the right-of-way from its normal positions in the cab (49 CFR
229.119(b)). The use of infrared technology itself is not a distraction
to crewmembers and should be installed on a locomotive so it does not
interfere with the ability of crewmembers to safely perform their
duties. In addition, although FRA does agree that train crews should be
able to use the locomotive's sun visor to block direct sunlight that
could affect the crews' vision, FRA cautions railroads to not place the
inward-facing cameras in such a way that they can be blocked by the
train crew's use of the locomotive visor.
5. Frame Rate for Inward-Facing Recording Devices
APTA commented that it supported the proposed standard to require
inward-facing recording devices to record at a frame rate of at least 5
fps. In contrast, BLET commented that 5 fps could be too low a frame
rate for use during accident reconstruction if the pictures are not
fluid enough to capture action as it happens at the speed it happens.
Although BLET understood that allowing inward-facing image recorders to
record at a lower frame rate enabled passenger railroads to store more
image data at a lower expense, BLET was concerned that the frame rate
could create synchronization inaccuracies when the video and audio are
captured or played back at different rates. Therefore, BLET stressed
that the final rule should specify a frame rate that will prevent these
types of inaccuracies.
The NTSB agreed with BLET that a recording rate of 5 fps was not
sufficient for inward-facing image recorders. According to the NTSB,
because locomotive operating compartments contain numerous indicator
lights and displays, cameras recording at 5 fps may not adequately
capture possible intermittent warnings or indicator lights. The NTSB
stated that it was not aware of any memory limitations that would
necessitate such a low frame rate and, instead, recommended at least a
10-fps recording rate for inward-facing image recorders.
FRA understands the concerns raised by BLET and the NTSB. However,
FRA is adopting 5 fps as the minimum standard to provide passenger
railroads maximum flexibility to comply with the requirements of this
final rule. As previously discussed in the NPRM as well as below, a
rate of 5 fps is APTA's recommended practice for the selection of
recording systems for use in transit-related closed circuit television
recording systems and in low-traffic areas or areas where only walking-
pace motion is likely (such as passenger areas). Moreover, this frame
rate is only a minimum standard. For instance, FRA expects that some
passenger railroads may install inward-facing recording systems with a
higher frame rate to enhance the use of the devices for operational
testing. In addition, under paragraph Sec. 229.136(g), discussed below
in the Section-by-Section Analysis, passenger railroads must provide a
written description of the technical aspects of any locomotive image
recording system installed to comply with this section. Under Sec.
229.136(c)(1)(i), FRA will not approve an image recording system that
does not have ``sufficient resolution to record crewmember actions,''
even if the system records at a minimum frame rate of 5 fps. As a
result, recording systems that cannot accurately provide information or
sufficiently record what is occurring within the locomotive cab will
not be approved prior to installation.
6. Prohibition on Recording Activities Within a Locomotive's Sanitation
Compartment
BLET and SMART both supported the proposed requirement that inward-
facing locomotive cameras may not record any activity within a
locomotive's sanitation compartment as defined in Sec. 229.5, and that
no image recording device be installed in a location where the device
could record activities within the locomotive's sanitation compartment.
Although the Supreme Court has ruled that a locomotive is a workplace
and therefore employees have no expectation of privacy,\25\ train
crewmembers have an expectation that their actions will not be recorded
on the locomotive's inward-facing recording device(s) within the
passenger train's sanitation compartment. FRA is adopting the proposed
prohibition on recording the sanitation compartment in the final rule
without substantive change.\26\
---------------------------------------------------------------------------

\25\ Skinner v. Railway Labor Executives Association, 489 U.S.
at 627.
\26\ See 49 CFR 229.136(c)(2) of this final rule.
---------------------------------------------------------------------------

H. Notice Provided When Locomotive Recording Devices Are Present

FRA received several comments in response to what, if any, notice
passenger railroad crewmembers should receive that locomotive recording
devices are present in the locomotive cab. APTA commented that its
member passenger railroads have already addressed this issue by
providing information using operational notices to affected employees.
APTA also added, as discussed above, that courts, including the Supreme
Court, have ruled that a locomotive is a workplace and employees have
no expectation of privacy within it. In contrast to APTA's comment,
Amtrak stated that providing notice by Form FRA F 6180-49A alone, as
proposed in the NPRM, was inadequate because it could in practice limit
who sees the information. Instead, Amtrak recommended that FRA require
signage alerting the crew that audio-visual recording devices are
present. SMART agreed with Amtrak's comment

[[Page 70736]]

that signage should be required and that there should also be a visible
light on the recording device that indicates to crewmembers when the
device is in operation.
Because as noted above, crewmembers have no expectation of privacy
in a locomotive cab, excluding the sanitation compartment, FRA has
concluded that although it proposed to provide notice of recording
devices to crewmembers via a notation on Form F 6180-49A (Locomotive
Inspection and Repair Record), such notice is not required as a matter
of privacy concerns. Therefore, FRA will not require railroads to post
signage alerting crewmembers that audio-visual recording devices are
present.
However, the value of requiring the presence of a locomotive
recording device to be noted on a locomotive inspection and repair
record, similar to Sec. 229.135(a)'s requirement for locomotive event
recorders, is to ensure that the device is inspected and in proper
operating condition as this rule requires. In this regard, as discussed
below in Section II.I.3, when a railroad removes a locomotive image
recording device from service, a qualified person must record the date
the device was removed from service on Form FRA F 6180-49AP (Passenger
Locomotive Inspection and Repair Record). This requirement varies
slightly from the requirement proposed in the NPRM, where FRA proposed
that the notation indicating a locomotive image recording device has
been removed from service be made under the REMARKS section of Form F
6180-49A. This is no longer the case. Instead, FRA has created a new
form, Form F 6180-49AP, specifically for passenger locomotives.\27\ It
is in the REMARKS section of new Form F 6180-49AP that a qualified
person will note the date when a locomotive image recording device is
removed from service.
---------------------------------------------------------------------------

\27\ FRA published a 60-day Federal Register notice to solicit
public comments on the new F 6180-49AP form. 87 FR 50914 (August 18,
2022).
---------------------------------------------------------------------------

As discussed below in the section-by-section analysis for new Sec.
229.22, Passenger locomotive inspection and repair record, Form F 6180-
49AP will serve as the new counterpart to Form F 6180-49A, and will
include a designated row for entering information about annual testing
of locomotive image recording devices required under Sec. 229.136,
consistent with the designated row on Form F 6180-49A (as well as new
Form F 6180-49AP) for entering information about required locomotive
event recorder testing. FRA makes clear that this new form will in no
way affect use of the F 6180-49A form by locomotives in freight or
switching service, which are not subject to the requirements of this
rule, nor will it affect use of the F 6180-49A form by passenger
locomotives that are not used as the lead locomotives in commuter or
intercity passenger train service.
Further, FRA understands and does not dispute the legal precedent
raised by APTA that locomotives are highly regulated workplaces, and
employees have no expectation of privacy while performing, or ready to
perform, operating duties within a locomotive. The only area where
train crews do have an expectation of privacy is within a locomotive's
sanitation compartment, treatment of which is discussed above in
Section II.G.

I. Repairing, Replacing, or Removing Locomotive Image Recording Devices
From Service

1. Practicableness of the Standard
FRA received several comments on the appropriateness of the
standard in proposed Sec. 229.136(i) that would require inward- and
outward-facing locomotive image recording devices to be repaired or
replaced at the next calendar day inspection or be removed from
service. Many commenters claimed the standard was too burdensome and
should be revised. APTA asserted that requiring these systems to be
repaired or replaced by the next calendar day inspection is
impractical, stating that locomotive image recording systems can fail
for many different reasons, and repairs can sometimes take several
days. According to APTA, the passenger railroad industry has limited
fleet availability and restricting locomotives or trainsets due to
locomotive image recording system failures alone could have a
substantial impact on dispatching trains, potentially taking an entire
trainset out of service when the cars are semi-permanently coupled.
APTA contended that the proposed standard was financially unrealistic
and, if adopted, would require the industry to obtain additional
locomotives or trainsets, driving up the cost of the final rule and
significantly affecting the rule's cost-benefit analysis. APTA stated
that the Statute prevents FRA from adopting a standard that
``requir[es] a railroad carrier to cease or restrict operations upon a
technical failure of an inward- or outward-facing image recording
device or in-cab audio device,'' \28\ and asserted that the operating
railroad should be free to repair or replace the device ``as soon as
practicable'' under the Statute. APTA added that, given passenger
railroads' voluntary installation of these devices, railroads find it
in their best interest to repair or replace these devices for many
reasons independent of Federal requirements.
---------------------------------------------------------------------------

\28\ See 49 U.S.C. 20168(j).
---------------------------------------------------------------------------

Metra agreed with APTA's assertion that FRA's proposed standard
conflicted with the Statute. Metra suggested that FRA should interpret
``as soon as practicable'' under the Statute to mean 48 hours at a
minimum. Metra stated that, because the locomotive recording systems it
uses require substantial investment in both money and workforce any
requirement to repair or replace non-functioning equipment that
provides for less than 48 hours is not practicable. In its comments,
AAR agreed with Metra that ``as soon as practicable'' should be at
least 48 hours from the discovery that the device has failed, citing
the cost of image recording devices, the multitude of components that
could cause the device to fail, and the inevitability of tampering.
Amtrak also commented on the appropriateness of FRA's proposal and
suggested basing the standard on the ``next capable facility'' rather
than on a specific unit of time. According to Amtrak, long-distance
passenger trains may operate for multiple days until a suitable repair
facility is available to replace equipment and often calendar day
inspections are performed at outlying locations where minimal
workforces do not have the suitable means to replace equipment. Amtrak
believed a requirement to repair the equipment at the next capable
facility would address this concern, and that this standard should
apply to both inward- and outward-facing locomotive cameras.
A private citizen also commented that, in some situations,
passenger trains are parked overnight far from comprehensive repair
facilities. The commenter therefore believed there should be an
allowance for locomotive recording devices to make it back to an
appropriate repair facility without cancellation or delays to passenger
trains. The commenter stated that ultimately the use and repair of the
devices should not force passengers into less safe situations by
requiring them to drive instead of taking the train, given that rail is
a safer mode of travel.
However, not all commenters objected to FRA's proposed standard.
BLET stated that locomotive cameras should be treated the same as any
device mounted on or in a locomotive cab, asserting that locomotive
cameras are appurtenances under Sec. 229.7 and should be treated in a
similar fashion to event

[[Page 70737]]

recorders under Sec. 229.135. BLET believed the calendar day
inspection requirement mirrors long-established requirements for
removing event recorders from service under Sec. 229.135(c), is no
more burdensome than the event recorder requirement, and should be
included in this final rule.
FRA agrees with BLET's reasoning and is largely adopting the
standard proposed in the NPRM that all inward- and outward-facing image
recording devices either need to be repaired or replaced within the
next calendar day inspection or be removed from service. However, after
consideration and review of the comments received, FRA reexamined how
this requirement would affect long-distance intercity passenger trains
and is creating a new exception to the requirement for these trains.
Instead of taking a lead locomotive on a long-distance intercity
passenger train out of service if it cannot be repaired or replaced by
the next calendar-day inspection, the locomotive may continue in
service until arrival at its destination terminal or its nearest
forward point of repair, whichever occurs first. At that point, the
locomotive must be taken out of service until the device is repaired or
replaced.
FRA determined an exception for long-distance intercity passenger
trains was necessary, taking into further account the implications of
the difference between the application of this final rule and the
locomotive event recorder rule in Sec. 229.135. Section 229.135
requires locomotive event recorders to be installed on both freight and
passenger locomotives, yet this final rule requires locomotive image
recording devices to be installed only on passenger train lead
locomotives. Because a much smaller number of locomotives will be
required to have compliant image recording devices than event
recorders, FRA expects there will be a correspondingly smaller number
of locations throughout the nation where properly equipped replacement
locomotives and image recording devices are available, as well as where
appropriate parts and equipment for repair are available. Accordingly,
long-distance intercity passenger trains may need to travel beyond the
location of their next calendar day inspection until a suitable repair
facility is available to repair or replace the equipment, especially
because calendar day inspections for long-distance intercity passenger
trains are sometimes performed at outlying locations, as Amtrak
commented.
This exception is limited to long-distance intercity passenger
trains. The majority of passenger locomotives in this Nation operate in
commuter service or short-distance intercity passenger service \29\--
service supported by centralized inspection and repair locations.
Passenger railroads operating trains in commuter or short-distance
intercity passenger service are therefore expected to have adequate
parts, equipment, and facilities available at calendar day inspection
locomotives to repair or replace defective image recording systems or
devices.
---------------------------------------------------------------------------

\29\ Short-distance intercity passenger service means service
provided exclusively on the Northeast Corridor or between cities not
more than 125 miles apart. 49 CFR 238.5.
---------------------------------------------------------------------------

2. Standard's Consistency With Locomotive Recording Devices'
Designation as Safety Devices
Hitachi commented that allowing a passenger train to continue in
operation without the proper image recording capabilities until the
next calendar day inspection conflicts with FRA's defining locomotive
recording devices as a safety device under part 218. FRA disagrees that
there is a contradiction. Taking a locomotive out of service
immediately because a safety device (e.g., a locomotive image recorder)
is not working could potentially lead to a more dangerous safety issue
(e.g., stranding passengers or overwhelming the safe capacity of
station platforms).
3. Documenting When a Locomotive Image Recording Device Has Been
Removed From Service
APTA commented that when a railroad removes a locomotive image
recording device from service, the final rule should not require a
qualified person to record the removal date on Form FRA F 6180-49A,
under the REMARKS section. As discussed above in Section II.H, APTA
repeated its objection to the NPRM's proposed requirement that the
railroad note the presence of any image or audio recording system on
Form FRA F 6180-49A. APTA stated that passenger railroads already
address the issue by providing information to affected employees
through operational notices. In addition, APTA believed adding this
paperwork burden is not beneficial to safety, and claimed that FRA has
not considered this cost in its cost-benefit analysis.
Although FRA agrees with established legal precedent that train
crews have no expectation of privacy in a locomotive cab, excluding the
sanitation compartment, FRA disagrees that this form notation
requirement is a paperwork burden without a safety benefit. As
discussed above in Section II.H, passenger railroads will be required
to note in the REMARKS section of new Form FRA F 6180-49AP,
specifically for passenger locomotives, when an image recording device
has been removed from service. This notation will serve as a quick
reference to inform crewmembers and other passenger railroad employees
(e.g., mechanical employees responsible for locomotive repairs,
maintenance and inspection) of the status of the locomotive's recording
devices and the image recording system on board any passenger
locomotive. The final rule varies slightly from the requirement
proposed in the NPRM in that such a notation will be made in the
REMARKS section of Form FRA F 6180-49AP--not Form F FRA 6180-49A. Form
F 6180-49A will be exclusively used by locomotives in freight or
switching service and by passenger locomotives that are not operated as
the lead locomotives in commuter or intercity passenger train service.
In response to APTA's cost-benefit analysis comment, FRA has updated
its cost-benefit analysis to discuss that the costs are incorporated in
locomotives' routine scheduled maintenance. The removal from service
requirements in Sec. 229.136(i) do not apply to audio recording
devices, which are not required to be installed under this final rule.
In its comments, Amtrak asserted that a notation on form FRA F
6180-49A is not sufficient notice that a locomotive's inward- or
outward-facing camera is out-of-service. Instead, Amtrak recommended
making a record in an electronic maintenance system and opening a work
order for repair, along with applying a non-compliant tag on the
equipment. Amtrak stated such a process would be similar to that for
the failure of dynamic brakes under Sec. 232.109 of this chapter.
FRA maintains that the requirement as proposed is adequate to
provide notice that either the locomotive's inward- or outward-facing
camera system is malfunctioning. Moreover, the reporting of any defect
on a locomotive is subject to the calendar day inspection requirements
in Sec. 229.21. However, part 229 does not require a non-compliant tag
to be placed on a locomotive with a defective event recorder under
Sec. 229.135, and no such tag is required under this final rule.

J. FRA Approval Process for Locomotive Image Recording Systems and
Devices

1. Necessity of the Approval Process
In response to FRA's proposal, APTA questioned why an approval
process

[[Page 70738]]

was needed, stating that the recording system is not safety-critical.
Further, APTA commented that FRA had not accounted for the approval
process in the cost-benefit analysis, asserting that an approval
process for any element increases the cost of the rule and
implementation time. According to APTA, given the widespread, voluntary
implementation of these systems, FRA should not require their approval
and should, instead, allow passenger railroads to create and maintain a
written description that can be made available upon request to FRA at
any time.
FRA has not adopted APTA's comment. The Statute requires FRA, as
the Secretary's delegate, to establish a review and approval process
for inward- and outward-facing locomotive image recorders.\30\ This
final rule therefore includes a review and approval process as the
Statute requires. Nonetheless, FRA has adjusted the economic analysis
to include the approval process cost; for more detailed information on
the cost, please see the RIA accompanying this final rule. Further, for
the reasons discussed below in Section II.M, FRA disagrees with APTA's
assertion that image recording devices are not safety-critical.
Notably, FRA is amending part 218's prohibitions against tampering with
safety devices specifically to include passenger locomotive recording
devices and is adopting Sec. 229.136(j) to expressly prohibit
disabling or interfering with passenger locomotive recording systems.
---------------------------------------------------------------------------

\30\ 49 U.S.C. 20168(c).
---------------------------------------------------------------------------

2. Clarifying the Approval Process
In commenting on proposed Sec. 229.136(g), Wi-Tronix stated that
the approval process for locomotive recording devices needed
clarification. According to Wi-Tronix, the proposed requirements would
lead to confusion and delays in the marketplace because railroads often
look for a certified product or service and have little desire to go
through an additional certification process. Wi-Tronix requested FRA
clarify whether suppliers can self-submit a system for approval, and
believed the timelines and process (including each railroad needing
separate certification) to be commercially impractical and lead to
increased costs and slow the rule's implementation.
Separately, Amtrak requested changing the approval process
submission timeframes, citing constraints due to clerical limitations
and the logistics of acquiring equipment. Amtrak stated that a more
realistic and achievable timeframe would be 90 days for existing
systems and 180 days for proposed systems.
FRA disagrees that the approval process is unclear. Section
229.136(g)(1) explains what a passenger railroad must include in its
description of the technical aspects of the locomotive image recording
system. Although the paragraph does not provide extensive technical
detail, FRA does not consider this to be a limitation but rather to
provide the passenger railroads flexibility in preparing their
submissions.
FRA also believes 60 days from the effective date of this final
rule provides railroads sufficient time to prepare and submit
descriptions of the technical aspects of their existing locomotive
image recording systems. (Please note that the 60-day period after the
final rule's effective date reflects an earlier effective date than
indicated in the NPRM, so that the overall length of the submission
period is the same.) This final rule takes effect on November 13, 2023,
which is 30 days after publication of this final rule. Accordingly,
railroads have a total of 90 days from this final rule's publication to
prepare and submit descriptions of the technical aspects of their
existing locomotive image recording systems. Such description of the
technical aspects may be submitted to FRA in electronic form.
In this final rule, FRA is also correcting an error in proposed
Sec. 229.136(g)(2) in which FRA stated that the submissions for
existing systems must be made ``not less than'' 30 (now 60) days after
the effective date of the final rule. However, the explanation of this
proposed paragraph in the NPRM's Section-by-Section Analysis did
correctly state that the submissions must be made ``not more than'' 30
(now 60) days after the effective date of a final rule. FRA is
correcting the erroneous language in the text of paragraph (g)(2)
accordingly, as railroads are not required to wait until the end of the
period to make their submissions. FRA is also revising the approval
process in this final rule to make clear affirmative approval from FRA
will be required before a passenger railroad's inward- or outward-
facing locomotive image recording system can be installed or placed
into service. This is a change from the proposal in the NPRM that, in
the absence of written disapproval from FRA within 90 days of FRA's
receipt of the submission, the railroad's locomotive image recording
system would be considered approved. FRA has concluded that a
transparent and conclusive approval process is required, and it would
not be in the public's interest to allow for the possibility that a
non-compliant system could be approved through unexpected events or
inadvertence. At the same time, FRA plans to publish a list of any
previously approved systems on its website for railroads' convenience,
as FRA noted in the NPRM.\31\
---------------------------------------------------------------------------

\31\ 84 35714.
---------------------------------------------------------------------------

Because this final rule requires FRA's affirmative approval before
a locomotive image recording system can be installed or placed into
service on a locomotive, if a railroad chooses to submit the required
information 180 days before installation of these systems, consistent
with Amtrak's comment, FRA would not object. In fact, as a practical
matter, FRA encourages railroads to make their submissions well in
advance of the submission deadline, so that if the submission were
incomplete or requires clarification, or if FRA were to disapprove any
or all of a railroad's submission, the railroad could timely respond to
minimize, if not avoid altogether, any impact on the railroad's
proposed installation schedule or the use of railroad resources.
Finally, in response to Wi-Tronix's comment, the submission must
come from the applying passenger railroad, as opposed to a supplier or
other party, though it may of course be prepared in consultation with a
supplier or other party. This is necessary as each railroad may use
potentially different types of locomotives with different internal and
external characteristics. How each passenger railroad complies with the
requirements of Sec. 229.136, such as (but not limited to) how the
inward- and outward-facing locomotive cameras are installed or placed,
is for the passenger railroad to describe and demonstrate.
3. Application of the Approval Process to Freight Locomotives
Finally, similar to other comments BLET made on the NPRM, BLET
stated that the requirements of Sec. 229.136(g) should apply whether a
system is installed on a voluntary basis or mandated by law. FRA
disagrees. As discussed previously, the requirements of this rulemaking
do not apply to freight locomotives that have or will have installed
locomotive image recorders. However, FRA expects that all railroads
that voluntarily install recording devices on their locomotives will
adhere to practices that are consistent with those in this final rule,
and FRA invites parties with questions about the voluntary installation
of recording devices on locomotives to contact FRA for such technical
assistance.

[[Page 70739]]

K. Implementation Period of the Rule

1. Four-Year Implementation Period
FRA received several comments about the proposed four-year
implementation period within which all lead passenger train locomotives
in commuter or intercity passenger service would be required to be
equipped with compliant inward- and outward-facing image recording
devices. Commenters provided different suggestions on how FRA should
set the implementation date for the final rule. APTA stated that if FRA
would not exclude from the final rule existing locomotives already
equipped with recording devices, the rule should take effect 10 years
from its publication date. APTA believed the 10-year period would allow
passenger railroads to obtain the full, life-cycle value of locomotive
image recording systems installed or soon to be installed, i.e.,
already under contract and designed. APTA contended that this would be
a more effective use of funds, as most passenger railroads are public
transportation agencies funded by taxpayer dollars, and also stated
that these public agencies must adhere to strict, public procurement
rules, and consequently need a considerable amount of time to get
public agency procurements completed.
Metra suggested that FRA phase-in the requirements with an 8-year
implementation period in which passenger railroads have 70 percent of
their locomotive fleets compliant within the first 5 years. Metra
stated that it was generally supportive of FRA's implementation
requirement, but found the proposed 4-year timeframe to be insufficient
for an entity the size of Metra, which has over 529 pieces of equipment
requiring installation.
Other commenters supported the proposed 4-year implementation
period. The NTSB stated that the deadline would encourage prompt
implementation of the final rule's requirements. As the NTSB discussed
in its report on the DuPont accident, and as discussed earlier in this
final rule, there is a clear investigative benefit to the information
provided by locomotive recording devices. The NTSB also noted that it
had issued NTSB Safety Recommendation R-10-01 in 2010, on the need for
locomotive recorder devices, and that any further delay beyond the
proposed deadline in the NPRM would be unacceptable. SMART also
commented that the final rule should allow 4 years for passenger
railroads to install compliant recording devices, but sought to require
that as compliant devices are installed on locomotives, railroads
should comply with the other requirements of the final rule.
FRA maintains that 4 years is an adequate time-period for passenger
railroads to comply with the final rule's requirements. Granting
passenger railroads a full 10 years or a phased-in 8 years to comply
with the minimum requirements would be both excessive and not in the
best interests of the public or rail safety. As the NTSB commented,
recent accidents involving passenger trains have proven how valuable
locomotive image recordings can be as part of post-accident/incident
analysis to identify rail safety hazards. The 4-year period allows
passenger railroads sufficient time to get significant remaining value
out of their equipment while taking into account the increased post-
accident investigation benefit and other benefits that result from
compliance with the final rule's requirements.
2. Application of the Final Rule to Image Recording Systems on New,
Remanufactured, or Existing Locomotives
FRA invited comment on the appropriateness of the proposal that
image recording systems installed after one year from the final rule's
publication date on new, remanufactured, or existing locomotives used
in commuter or intercity passenger service meet the requirements of
this final rule. Based on concerns about the length of the public
procurement process, number of locomotives already equipped with image
recording devices, and the lifespan of these devices, APTA and Hitachi
asked that FRA extend the time to comply until after two years from the
final rule's publication date.
FRA has decided against extending the time from one to two years
because the one-year period is intended to provide an appropriate
margin of time for passenger railroads to obtain image recording
systems compliant with the requirements of this final rule for
installation on new, remanufactured, and existing locomotives. These
requirements are minimum standards and are achievable. In this regard,
AAR commented that FRA should compare the standards in this rulemaking
with the May 29, 2019, standards proposed by Transport Canada to
prevent conflicting requirements between Canada and the United
States.\32\ FRA compared the two standards and did not identify any
concerns. FRA has also compared the final standards issued by Transport
Canada and this final rule.\33\ Transport Canada's standards for
inward-facing cameras are more stringent than those in this final rule;
however, Transport Canada's standards do not require outward-facing
locomotive cameras, which are specifically required by the FAST Act and
therefore this final rule.\34\ Lead locomotives on Canadian passenger
trains that enter the United States from Canada must comply with all of
the requirements of this final rule.
---------------------------------------------------------------------------

\32\ <a href="https://www.gazette.gc.ca/rp-pr/p1/2019/2019-05-25/html/reg5-eng.html">https://www.gazette.gc.ca/rp-pr/p1/2019/2019-05-25/html/reg5-eng.html</a>.
\33\ <a href="https://gazette.gc.ca/rp-pr/p2/2020/2020-09-02/html/sor-dors178-eng.html">https://gazette.gc.ca/rp-pr/p2/2020/2020-09-02/html/sor-dors178-eng.html</a>.
\34\ 49 U.S.C. 20168(a).
---------------------------------------------------------------------------

L. Operational (Efficiency) Testing

In the NPRM, FRA discussed the potential benefits to railroads that
use locomotive recording devices as part of their operational
(efficiency) testing programs and proposed requirements for railroads
choosing to use locomotive recording devices to conduct operational
testing under part 217, to protect employees from targeted testing as a
form of retaliation. FRA received various comments regarding FRA's
proposed amendments to part 217, and the agency's existing operational
testing requirements.
1. Application of the Rule's Part 217 Amendments to Freight Railroads
AAR commented that because existing part 217 applies to both
passenger and freight railroads, FRA's proposed revisions to Sec.
217.9 (proposed new paragraphs (b)(3) and (4) governing operational
testing using locomotive recording devices) would apply to both types
of railroads. AAR noted that FRA's stated intent in the NPRM's preamble
was that these provisions would apply to passenger railroads only.
Accordingly, AAR suggested that FRA modify proposed paragraphs (b)(3)
and (4) to specify that the paragraphs apply to passenger railroads
only.
AAR is correct. FRA did not intend proposed new paragraphs (b)(3)
and (4) to apply to freight railroads. Therefore, in this final rule,
FRA is clarifying its intent to exclude freight railroads from these
requirements by using the word ``passenger railroad,'' instead of
``railroad,'' in new paragraphs (b)(3) and (4) of Sec. Sec. 217.9.
However, as discussed above in Section II.A.2, it is FRA's expectation
that all railroads that voluntarily install recording devices on their
locomotives will adhere to practices that are consistent with those in
this final rule, notably the new part 217 requirements that serve to
protect employees from targeted testing as a form of retaliation when
railroads

[[Page 70740]]

conduct operational testing using recording devices or their
recordings. Further, under existing Sec. 217.9(h), FRA reviews
railroads' operational testing and inspection programs and, if
necessary, may disapprove any such program for cause stated.
2. Burden of the Rule's Part 217 Requirements
APTA commented that FRA should not adopt in this final rule any of
the requirements FRA proposed to add to Sec. 217.9 because the regular
monitoring of image recordings does not need to be under or part of a
railroad's operational testing program. Instead, APTA asserted that
passenger railroads should be allowed to establish their own practices
to monitor employees' compliance with rules and deter them from unsafe
actions. APTA also contended that the additional burdens from the
requirements FRA proposed may incentivize railroads not to use
recording devices in operational testing and therefore reduce one of
the benefits of this rulemaking.
In addition, APTA claimed that requiring test subjects for
operational testing using locomotive recorders to be selected at random
would create an unnecessary cost and burden for passenger railroads,
because the ability to use cameras in the railroads' current
operational testing plans already exists and this cost was not
considered in the NPRM's cost estimate. Finally, APTA objected to FRA's
proposed condition that operational testing be completed within 72
hours of the completion of the tested employee's tour of duty, calling
it impractical and indicating that such is allowed when testing for
radio rules compliance.
FRA disagrees with APTA's comment that the regular monitoring of
locomotive recordings does not need to be under a railroad's
operational testing program or that passenger railroads should be
allowed to establish their own plans and practices to monitor employees
using these recordings. Section 20168(i) of the Statute prevents in-cab
audio or image recordings from being used to retaliate against an
employee. New Sec. 217.9(b)(3) requires passenger railroads to
describe how they will randomly select testing subjects, better
enabling FRA to oversee that passenger railroads are fulfilling the
requirements and railroad supervisors are not unfairly selecting
specific employees for operational testing as a form of retaliation.
FRA is including in-cab audio recorders and their recordings under
paragraph (b)(3), as previously discussed. It does not make sense to
require passenger railroads to select their operational testing
subjects randomly when using image recorders or their recordings
without applying the same protections to the use of audio recorders and
their recordings.
FRA disagrees that the limitations on operational testing will
cause passenger railroads to abandon using these devices for
operational testing purposes altogether. APTA's assertion that any
costs associated with these limitations are unnecessary is flawed, in
part because the Statute itself prohibits the use of locomotive
recording devices as a medium to retaliate against employees. Further,
the RIA accompanying this final rule addresses in more detail APTA's
claim that FRA has not sufficiently accounted for the cost of
implementing a random selection program for locomotive recordings.
Finally, while APTA compares testing for radio rules compliance with
using locomotive recording devices for operational testing, listening
to radio recordings provides a far more limited window into the crew's
activities and has far less potential for abuse than locomotive
recording devices.
3. Appropriateness of Using Locomotive Recordings for Operational
Testing
BLET also objected to FRA's proposed revisions to Sec. 217.9
allowing railroads to utilize locomotive recordings for operational
testing purposes. BLET asserted that railroads have historically used
operational testing as an indirect way to discipline their employees.
According to BLET, although locomotive engineers are accustomed to how
operational testing is currently done (e.g., sporadic skills tests in
the field), use of recording devices would put engineers under
``constant surveillance.'' BLET believed crewmembers would feel
continually watched and change how they act as a result, because crews
would be worried about performing for the camera first and reacting to
the circumstances that are actually occurring second, which would
negatively impact safety.
In contrast to BLET's comment, FRA received comments from TTD,
Metra, and SMART, in support of FRA's proposed additions to Sec.
217.9. TTD called FRA's proposed requirement for operational testing
subjects to be selected at random a ``meaningful step towards fair
usage of recorded images.'' Metra agreed with TTD and specifically
asked FRA to make clear in the final rule that passenger railroads
could not use subjective factors in the utilization of locomotive
recordings to conduct operational tests. SMART and BLET also
``applauded'' FRA on its proposed random testing requirement and SMART
stated that the provision would prevent a vindictive supervisor from
tracking an employee the supervisor personally dislikes for punishment,
such as a union representative. While still opposed to locomotive
recordings being used for operational testing purposes at all, BLET
also commented that how the random testing requirement was actually
practiced by rail carriers in the field would be the determining factor
on carrying out the intent of the regulation.
TTD also expressed its support for the proposed requirement that
any operational test or inspection must be performed within 72 hours
after the employee's tour of duty. TTD called this a critical tenet to
ensure that data received by the railroads is not misused and believed
FRA should not weaken any of the proposed protections in a final rule.
FRA agrees with TTD, Metra, and SMART and is adopting the proposed
requirements in paragraphs (b)(3) and (4). FRA notes that APTA and BLET
objected to the proposed requirements for opposing reasons. As stated
above, APTA commented that FRA should not adopt any of the proposed
requirements, not because APTA is opposed to using locomotive recording
devices in operational testing, but because APTA believed the
regulations would place constraints on the use of the devices that many
passenger railroads already use as part of operational testing and
cause these railroads to change their existing testing programs. APTA
preferred FRA instead let railroads make their own decisions on how to
use their locomotive recording devices. Conversely, BLET objected to
the proposed requirements on the basis that railroads should not be
allowed to use locomotive recording devices for operational testing in
any circumstance, because they could be used to unfairly target their
employees. As explained below, the conditions FRA is adopting in this
final rule address the targeting of employees when passenger railroads
use locomotive recording devices for part 217 testing purposes.
Without addressing BLET's allegation that operational testing has
historically been used to target and discipline employees, FRA
acknowledges that the amendments to Sec. 217.9 in this final rule are
intended to ensure passenger railroad supervisors do not use inward-
facing locomotive cameras or in-cab audio recording devices to target
specific employees. Hence, FRA's insistence that subjects for
operational testing be selected at random, that there must be a testing
plan that FRA can

[[Page 70741]]

review and disapprove for cause, and that all operational testing must
be completed within 72 hours of the employee being tested completing
his or her shift. BLET also commented that employees are used to having
their skills sporadically tested in the field as opposed to the
``constant surveillance'' of inward-facing cameras. However, the new
regulations require employees to be selected at random. Constant
surveillance of a certain employee will violate the randomness
requirement.
Further, as stated previously, locomotive engineers and other
railroad employees who work in a locomotive have no expectation of
privacy, with the exception of the locomotive's sanitation compartment.
Railroad employees can be observed in the locomotive at various times
by railroad management, FRA inspectors, or even members of the public.
Although BLET maintained that the constant surveillance of railroad
employees would negatively impact the employees' behavior, passenger
railroads have been using locomotive cameras long before this
rulemaking without any such observable impact on passenger train
safety.
4. FRA's Authority To Regulate the Use of Locomotive Audio Recordings
in Operational Testing
APTA commented that FRA should not adopt in Sec. 217.9 any
reference to audio recordings or related language as it would provide
FRA with regulatory authority for something not within the scope of the
NPRM or under current FRA regulations. FRA disagrees. FRA widely
discussed and asked numerous questions about audio recording devices in
the NPRM, in addition to raising the requirement in the NPRM. FRA
specifically proposed that inward-facing locomotive image and in-cab
audio recordings, if used for operational testing, would be subject to
the proposed requirements in Sec. 217.9. Additionally, FRA has for
some time regulated railroads' operational testing programs, and
specifically what railroads can and cannot do as part of these
programs.
5. Effect on FRA's Confidential Close Call Recording System (C3RS)
BLET commented that allowing locomotive recording devices as an
operational testing tool would have a negative effect on FRA's C3RS
program. C3RS is a confidential reporting system that allows railroad
employees in the field to report incidents where a potential accident
was averted, or a risk was mitigated. The report is generated by the
railroad employee without fear of reprisal from railroad management.
BLET stated that confidentiality is the key to the success of the C3RS
program but, with the constant surveillance of locomotive cameras,
railroads may not feel there is an advantage to C3RS if they can simply
watch accumulated video to identify trends. According to BLET, when a
railroad has observed sufficient footage it could modify its
operational testing to increase the number of exceptions and consequent
cases of employee discipline, and thereby ignore the underlying safety
problem or rule violation because the person committing the violation
would be removed.
FRA does not believe that inward-facing cameras used for
operational testing will negatively affect FRA's C3RS program.
Passenger and freight railroads began installing inward-facing cameras
in locomotives many years ago and FRA is not aware of any evidence, nor
has BLET provided any, that these cameras have negatively impacted the
C3RS program.
6. Rules or Regulations Locomotive Recording Devices Should Address as
Part of a Passenger Railroad's Operational Testing Program
BLET commented that in the event recorder regulation all actions
required to be captured are enumerated in the regulation. However, BLET
asserted that for image or audio data captured by a camera or other
recording devices, the NPRM lacked specificity as to which rules or
regulations the data could be used to determine compliance. FRA did not
provide in the NPRM, and declines to do so in this final rule, specific
guidance on how the locomotive cameras should be used for evaluating
compliance with specific rules or regulations, other than such use must
comport with the stated protections for employees. FRA expects that
railroads will use the locomotive image recording devices as a tool for
purposes of carrying out their operational testing program
requirements, evaluating compliance with the rules and regulations they
already take into consideration as part of their operational testing
programs.

M. Locomotive Recording Devices as Safety Devices Under Part 218

FRA received comments from APTA, BLET, and the NTSB on FRA's
proposal to include image and audio recording equipment installed on a
passenger train locomotive as a ``safety device'' under Sec.
218.53(c). APTA objected to the proposed changes and did not believe
including an image recording device as a safety device under part 218
was necessary. APTA claimed that although tampering has not been a
known issue for passenger railroads, the railroads already have
internal rules and policies that prevent tampering with locomotive
image recording devices. In addition, APTA stated that locomotive
cameras do not need protection from the public, as they are not readily
publicly accessible, and that the presence or operability of locomotive
image recording devices does not affect the safe operation of a
passenger locomotive or the train it is powering because these devices
are strictly forensic in nature and cannot prevent any accident or
incident.
In contrast to APTA's position, both BLET and the NTSB supported
including locomotive recording devices as safety devices under part
218. The NTSB agreed with FRA that treating a locomotive-mounted image
or audio recording device as a ``safety device'' will deter employees
from tampering with or disabling one of these devices. BLET also
agreed, but added that the technical requirements and standards for
locomotive recording devices should be no less stringent that the
requirements for event recorders.
FRA agrees with the NTSB that including locomotive recording
devices under the definition of ``safety device'' in Sec. 218.53(c)
will deter railroad employees from tampering with such devices.
However, because a locomotive recording device is not currently defined
as a ``safety device,'' FRA is not aware of the extent to which there
may be tampering with these devices. FRA expects locomotive recording
devices to be at least as, if not more, susceptible to tampering as
event recorders, which are safety devices under part 218. For example,
as stated in the NPRM, in one incident of tampering with an inward-
facing locomotive camera system, FRA viewed a recording in which an
engineer covered the inward-facing cameras on his locomotive,
apparently unaware of another camera mounted on the ceiling near the
back wall of the cab. That camera recorded him appearing to play a game
on a personal electronic device while operating a moving freight train.
Accordingly, the changes to part 218 will serve not only to discourage
passenger railroad employees from tampering with these important safety
devices, but to hold individuals who do engage in such tampering
accountable under FRA's rail safety regulations.
Even if train crew tampering with locomotive image recorders would
continue to be handled under passenger railroads' rules and policies,
as APTA suggested, this does not confer the same significance as a
safety device subject to part 218. By including passenger

[[Page 70742]]

locomotive recorders as safety devices under part 218, engineers and
conductors directly risk the revocation of their FRA certification for
tampering with these devices. Further, this change ensures that all
passenger railroads handle tampering with locomotive recording devices
according to uniform FRA standards, instead of having individual
railroads apply potentially different internal rules and policies.
FRA also disagrees with APTA that the presence or operability of
image recording devices does not affect the safe operation of a
passenger locomotive or the train it is powering. Although locomotive
recording devices can provide information about the actions of train
crewmembers following the occurrence of an accident or incident,
properly function recording devices can serve additional safety
purposes. In its comments to FRA, NCTD stated that its COASTER commuter
rail service can currently observe through its inward-facing cameras in
real time when the equipment is in range of the railroad's wireless
mesh network along NCTD's right-of-way. FRA notes the ability to
observe a train crew in real time could provide the railroad an
opportunity to intervene if, for example, it observed unauthorized
persons in or around the locomotive cab, including closely monitoring
interactions with passengers, in addition to curbing violations of
railroad rules that could lead to a potentially catastrophic incident
or accident. In this regard, Wi-Tronix commented that the benefits of
being able to livestream video and data during emergency situations
would be a great benefit to the public, as well as when the train crew
experiences a health issue or there is hostile activity in the
locomotive cab.
Regardless of whether locomotive recording devices are monitored in
real time, the train crews' awareness of the devices will deter
behavior that can negatively affect railroad safety, such as crewmember
cell phone use while performing safety-sensitive functions, and the
presence of cameras may also deter unauthorized occupancy of the
locomotive or curb actions of other persons who may interact with the
crew. Although the information currently provided by locomotive
recording devices is mostly forensic in nature, the information can be
critical in post-accident analysis and cannot be obtained from other
sources such as locomotive event recorders. For instance, while
locomotive event recorders provide information on data elements
including locomotive speed and the amount and time of the locomotive's
brake application, information from recording devices may be
particularly useful in accidents arising from human factor causes, as
image data can show investigators what the train crew was doing in the
locomotive from a perspective that event recorders cannot provide. The
railroads can then use this information to change railroad rules or
revise their training programs to help prevent these types of accidents
from reoccurring. This post-accident/incident data will be a vital
source of information for FRA, the NTSB, and railroads to determine the
cause of accidents/incidents as well as whether any action is necessary
to prevent similar incidents from occurring in the future.
FRA also received a comment from Metra about the addition of Sec.
218.53(d), which clarifies that the requirements of Sec. Sec. 218.59
and 218.61 do not apply to recording devices voluntarily installed on
freight locomotives. Metra noted that because these devices are
voluntarily installed by freight railroads, the railroads can operate
lead freight locomotives without such functioning recording devices.
Metra is correct that freight railroads can operate freight locomotives
without recording devices in compliance with this rule. However, as
previously discussed, unless used as a rescue locomotive, a freight
locomotive used in commuter or intercity passenger service must comply
with all the requirements of this final rule.

N. Twelve-Hour Recording Period for Locomotive Image Recording Devices

1. Appropriateness of the 12-Hour Recording Period
APTA commented that although it understood FRA arrived at the 12-
hour retention period for locomotive image recording data by reference
to NTSB recommendations and the Statute's requirements, the requirement
was excessive and unnecessary compared to the requirements of other
federal agencies. APTA stated that the Federal Aviation Administration
requires only 30 minutes of recording, claimed that the NTSB cited
limited data supporting its recommendation for the 12-hour timeframe,
and asserted that, unlike some freight trains, commuter train trip
lengths are much shorter and ``turn backs,'' where the locomotive is in
the lead in one direction and a cab car is in the lead in the other
direction, are common after completing a run or directional trip.
According to APTA, crew on-duty time for commuter and intercity
passenger routes are scheduled to minimize jobs close to 12 hours on
duty, some crews have a respite before their next trip, and some crews
may also change train consists during their duty tour. APTA believed
these elements contribute towards reducing the overwrite potential of
critical image recordings available to investigate an incident and
therefore asked that passenger railroads be allowed to determine their
own time for storing their locomotives' image recording data. APTA
added that passenger railroads already have image recording devices in
other vehicles in a train consist for security purposes and noted they
are generally recorded onto the same storage system as locomotive
recording systems; consequently, APTA asserted that a shorter storage
duration for locomotive recorders is necessary from a capacity
perspective.
Hitachi also asserted that 12 hours of required recording time is
excessive, commenting that accidents happen due to actions or inactions
that span just minutes. Hitachi suggested a two-hour recording window
would be more appropriate instead.
However, the Statute specifically mandates that locomotive image
recording devices be capable of a minimum of 12 hours of continuous
recording.\35\ Accordingly, to comply with the Statute, this final rule
cannot require anything less. Further, FRA disagrees that only the
crew's actions immediately before an accident or incident are relevant
to determining the cause of an accident or incident. The visual
evidence of what was occurring in the time leading up to an accident or
incident, including evidence of possible interactions with passengers
or other persons, as well as evidence of outside objects striking or
even entering the cab, can prove useful in any subsequent investigation
of the accident or incident.
---------------------------------------------------------------------------

\35\ 49 U.S.C. 20168(b)(1).
---------------------------------------------------------------------------

2. Feasibility of 24 Hours of Continuous Recording Capability
Responding to FRA's questions in the NPRM as to whether requiring
passenger railroads to maintain a total of 24 hours of continuous
recording capability would be feasible, Amtrak stated that the
potential cost to double the recording timeframe from 12 to 24 hours
would be ``astronomical,'' with only minimal additional benefits.
According to Amtrak, the current marketplace does not have solutions
that can capture recording time beyond approximately 14 hours and,
under the hours of service laws, crews are only permitted 12 hours of
continuous time on duty.
FRA agrees with Amtrak that the cost of a 24-hour recording
timeframe would

[[Page 70743]]

outweigh the benefits, and that such a lengthy amount of recording time
is not practical or necessary.

O. Privacy Considerations

FRA received several comments highlighting privacy concerns with
FRA potentially taking possession of locomotive recordings as part of
an accident investigation. The NPRM contains a detailed discussion of
these privacy issues, and FRA specifically stated that it would
``rarely take possession of recordings.'' In its comments, APTA
asserted that FRA should state that it will ``never'' take possession
of recordings. According to APTA, the NTSB has protections in place
that would protect the release of such recordings (49 U.S.C. 1114(c)
and (d)), while FRA does not. APTA stated that FRA inspectors should be
able to view any video or listen to any audio recordings, but to
prevent the release of sensitive data, FRA should not take possession
of the recordings. APTA asserted that FRA should not be allowed to take
possession of recordings unless FRA has the same statutory prohibition
as the NTSB protecting against the release of information.
The NTSB stated that it has longstanding legal restrictions and
procedures in place that protect crew privacy and prevent the public
release of sensitive onboard audio and video recovered in the accidents
it investigates. The NTSB noted that 49 U.S.C. 1114(c) and (d) prohibit
the agency from publicly disclosing voice and video recording from
inside locomotive cabs involved in accidents or incidents. The law also
specifies the circumstances under which the NTSB may make public an
audio transcript or written depiction of visual information relevant to
an accident or incident. Thus, the NTSB believes that current Federal
law protecting against the public release of locomotive image or audio
recordings during NTSB investigations is sufficient.
AAR also commented that the Statute stipulates that DOT may not
disclose to the public ``any part of an in-cab audio or image recording
. . . related to an accident or incident investigated by the
Secretary.'' \36\ According to AAR, the statutory language is clear
that Congress intended to include both inward- and outward-facing
cameras, and FRA should clarify in the regulatory text that ``in-cab''
means both inward- and outward-facing cameras, ``as colloquially, `in-
cab' refers to inward-facing cameras only.''
---------------------------------------------------------------------------

\36\ 49 U.S.C. 20168(h).
---------------------------------------------------------------------------

Finally, SMART commented that it supports the nondisclosure of
audio and image recordings or transcripts of oral communications
related to an accident investigated by FRA.
As raised in the comments, valid privacy concerns exist on the
appropriate protection and dissemination of locomotive recordings that
are made, particularly where an accident has occurred and the
recordings may be graphic and violent. It is not desirable for railroad
employees or their families to have such images released publicly.
Congress has previously provided statutory protections for a train's
audio and image recordings that the NTSB takes possession of during the
course of its accident investigations (49 U.S.C. 1114(d) and 1154(a)).
Therefore, when the NTSB takes possession of such locomotive
recordings, it is prohibited from releasing the contents of the
recordings (except that transcripts may be released as part of its
accident investigation proceedings).
Similarly, the Statute (49 U.S.C. 20168(h)) prohibits FRA from
publicly disclosing recordings that FRA takes possession of after a
railroad accident has occurred. Subsection (h) of the Statute, which is
similar to the FOIA exemption for locomotive recordings applicable to
the NTSB at 49 U.S.C. 1114(d), prohibits FRA from disclosing publicly
locomotive audio and image recordings, or transcripts of communications
by and among train employees or other operating employees, or between
such operating employees and communication center employees, related to
an accident investigated by FRA.\37\ Moreover, the Statute does not
limit these protections to such recordings and transcripts of
communications involving locomotives used only in intercity or commuter
passenger train service. Section 20168(h)'s protections apply
regardless of whether the underlying recording devices are required to
be implemented by this final rule. Consequently, this subsection
protects recordings and transcripts of communications involving
locomotives on which the devices are voluntarily installed--notably,
such locomotives used in freight service. In addition, FRA will apply
these subsection (h) protections not just to recordings from inward-
facing locomotive recording devices, but to recordings from outward-
facing recording devices as well.
---------------------------------------------------------------------------

\37\ Interested parties should note that FRA may make public a
transcript or a written depiction of visual information that FRA
deems relevant to the accident at the time other factual reports on
the accident are released to the public.
---------------------------------------------------------------------------

The Statute's prohibition on FRA disclosing publicly locomotive
audio and image recordings or transcripts of oral communications among
certain railroad employees addresses the concerns expressed by
commenters. Therefore, FRA declines to adopt APTA's suggestion to
``never'' take possession of a locomotive recording. As stated in the
NPRM, for the most serious of rail accidents, FRA anticipates that the
NTSB will take possession of locomotive recordings, as they currently
do, and that FRA will have the opportunity to view or listen to the
recordings as a party to the investigation and in conducting its own
parallel investigation under its separate statutory authority (49
U.S.C. 20107(a)(1)). However, in the vast majority of rail related
accidents, the NTSB does not launch an investigation, and FRA is the
sole Federal accident investigator. In these accidents or incidents,
FRA normally attempts to view the recordings while they are still
within the railroad's possession. However, if necessary, FRA has the
statutory authority and obligation, as the Secretary's delegate to
investigate railroad accidents, to take possession of locomotive image
and audio recordings as part of an FRA accident investigation or
investigation of a violation of a railroad safety law, regulation or
order.\38\
---------------------------------------------------------------------------

\38\ See 49 U.S.C. 20107(c).
---------------------------------------------------------------------------

P. Abuse of Locomotive Recording Devices

FRA received several comments expressing concerns that locomotive
recording systems would be used as a form of retaliation against
railroad employees, even though using passenger locomotive recording
devices to retaliate against employees is prohibited by the
Statute.\39\ BLET commented that how locomotive recording devices are
ultimately used is a critical issue for its members, and that the
proposed rule contained no real protection from abuse. BLET asserted
that, although the requirement that recordings be prohibited from being
used to retaliate against an employee was well-intentioned, how
retaliation is defined will be the key to ensuring whether Congress'
intent to prevent recordings from being used as devices for retaliation
will be realized. BLET also stated that FRA misunderstood Congress'
non-retaliatory intent and that part 240 has been serially revised to
thwart repeated attempts by numerous

[[Page 70744]]

carriers to misuse its provisions as a way to discipline their
certified engineer workforce. BLET asserted this will also occur with
locomotive recording devices in the absence of a uniform set of
standards and requirements for all locomotive recording devices that
limits their use to legitimate accident investigations.
---------------------------------------------------------------------------

\39\ 49 U.S.C. 20168(i).
---------------------------------------------------------------------------

Hitachi also expressed concerns with how locomotive recording
devices would be used and commented that there is significant room for
abuse if the proposed analytic tools are used for purposes outside of
the narrow scope defined by the proposed rule. Hitachi therefore
recommended that FRA bar railroad operators or owners from utilizing
recordings for purposes other than training or accident investigations.
SMART commented that FRA misinterpreted Congress' intent to prevent
the use of locomotive recording devices for retaliation by concluding
that the anti-retaliation provision of the Statute did not apply to
railroad rules violations discovered via locomotive image or audio
devices.\40\ SMART claimed that the Statute is clear that in-cab audio
or image recordings obtained by a passenger railroad cannot be used to
retaliate against an employee, 49 U.S.C. 20168(i), and therefore FRA
was reading something into the section not stated in the statute.
---------------------------------------------------------------------------

\40\ 84 FR 35712, 35715 (July 24, 2019).
---------------------------------------------------------------------------

FRA disagrees with SMART's contention that the investigation of a
railroad safety violation violates the Statute's anti-retaliation
requirements. One of the purposes of this rulemaking is to use
locomotive recording devices as a tool to identify and address safety
violations that endanger public safety, such as personal electronic
device usage while performing safety-critical duties. This purpose is
not inconsistent with the Statute, which addresses retaliation
implicated by other existing statutes (e.g., the railroad employee
whistleblower law at 49 U.S.C. 20109).
Amtrak commented that it already has an established company program
and process in place governing the use of audio and visual recordings
for compliance means only.
FRA disagrees with Amtrak's suggestion that a railroad's company
policy is sufficient to prevent retaliation incidents. FRA proposed in
the NPRM, and is now adopting in this final rule, several requirements
to prevent railroad retaliation against trains crews and other railroad
employees. This final rule, in compliance with the Statute,\41\
specifically limits the purposes for which a passenger railroad may use
a locomotive image or audio recording. In addition, to use any inward-
facing locomotive recording device for operational testing, a passenger
railroad must develop and comply with a program under part 217 to
ensure that testing subjects are selected randomly and any operational
test must be completed within 72 hours of an employee's tour of duty.
This will prevent the selection of specific candidates for operational
testing or being subject to review on footage for an extended period of
time to find a potential Federal railroad safety or railroad operating
rule to penalize the employee in question. Moreover, as discussed
above, it is FRA's expectation that all railroads that voluntarily
install recording devices on their locomotives will adhere to practices
that are consistent with those required under this final rule, such as
the new part 217 requirements that serve to protect employees from
targeted testing as a form of retaliation when railroads conduct
operational testing using recording devices or their recordings. For
further discussion about these requirements, relevant comments, and
FRA's response to those comments, please see Section II.L above.
---------------------------------------------------------------------------

\41\ See 49 U.S.C. 20168(d).
---------------------------------------------------------------------------

Q. Recording Devices' Effect on Railroad Employees

BLET commented that monitoring the day-to-day performance of
workers can have damaging effects outside any of the claimed benefits
of the final rule. According to BLET, visual or audio surveillance will
build resentment and a climate of distrust between the railroad and its
workers. BLET asserted that no matter the privacy protections and
respect of use adopted in passenger railroad policies, railroad
employees will resent the presence of the locomotive recording devices
and find their presence offensive, and there will be a multitude of
unforeseeable consequences that neither FRA, nor the passenger
railroads have considered.
It is likely that Congress took these concerns into account when
mandating the installation of inward- and outward-facing image
recording devices in all regularly scheduled intercity or commuter rail
passenger locomotives in the Statute. Locomotive recording devices are
not a novel technology. Locomotive cameras and recording devices have
become common within locomotives over the past two decades. FRA does
not believe this final rule will introduce a major change to the
working conditions of a large segment of passenger train crews, as
suggested by BLET.

R. Download and Security Features of Locomotive Recording Systems

1. Federally Mandated or Industry-Adopted Standard
FRA received several comments about the download and security
feature requirements for locomotive image recording systems proposed in
the NPRM (paragraph (d) of proposed Sec. 229.136). Amtrak commented
that this final rule should not regulate the download and security
features of these systems, believing an industry-adopted standard is
better suited to fit the technological capabilities of locomotive image
recording systems. APTA agreed with Amtrak, and commented that
passenger railroads should be allowed to develop their own best
practices for conducting inspections and downloading data without
prescriptive standards, stating that passenger railroads have been
handling these downloads for quite some time.
In contrast, BLET commented that there should be uniform standards
and requirements in this final rule for all locomotive-mounted
recording systems, electronic downloads, and security features, such as
encryption functions, etc. BLET stated that if this type of data is not
encrypted and a strict chain of custody is not maintained, any
credibility or value of using the data for post-accident investigation
could be called into question. According to BLET, wireless transmission
of audio or image recording data should also be prohibited to prevent
such private, personal data from being hacked.
The standard FRA adopts in this final rule balances the concerns of
the commenters. The standard adopted is broader than that proposed in
the NPRM, which addressed electronic security measures only to prevent
unauthorized downloads of recordings. As adopted in this final rule,
Sec. 229.136(d) requires passenger railroads to develop a system that
allows only authorized downloads and has electronic security measures
to prevent unauthorized access to, and download, deletion, or
alteration of, the recording system or its recordings. FRA therefore
expects that passenger rail will safeguard the recordings using
encryption technology or equivalent data protection measures. However,
this paragraph does not prescribe how such a system must be
specifically created or structured, and recognizes that recordings must
be accessible for review during an accident or incident investigation,
as provided in 49 U.S.C. 20168(b)(3), and may be put to other lawful
purposes, see Sec. 229.136(f)(3). As a result, these requirements
further

[[Page 70745]]

FRA's objective to protect the recording systems and their recordings,
while providing railroads the flexibility on how to best achieve that
protection, which will allow for differences in the specific systems
used. For similar reasons, FRA disagrees that wireless download and
transmission of audio or image recording data should be prohibited,
because it would unduly restrict the technology that may be used.
Whether data is downloaded and transmitted via wired or wireless
technology, passenger railroads are responsible for ensuring the
integrity of the process under Sec. 229.136(d), which includes
preventing the unauthorized downloading, deletion, or alteration of the
recording system or its recordings.
2. Standard or Crashworthy Memory Modules
Hitachi commented that, as proposed, the requirements for download
and security features of locomotive recording systems would seem to
require both a standard and a crashworthy memory module. Hitachi stated
that, if a crashworthy module meets all the requirements, then standard
memory modules are unnecessary and could potentially create confusion.
FRA has not adopted the reference to standard memory modules in
this final rule, as its inclusion in the NPRM was in error. Locomotive
recording device data, whether it be audio or image recording data,
must be stored on a crashworthy memory module. Because locomotive image
or audio recordings cannot be stored on standard memory modules, the
download and security features required of locomotive recording systems
in Sec. 229.136(d) refer only to certified crashworthy memory modules
in this final rule.

S. Self-Monitoring and Self-Reporting Systems or Devices on Locomotive
Image Recording Systems

1. Whether Cost of These Systems or Devices Was Adequately Considered
Wi-Tronix commented that locomotive image recording systems should
be required to be self-monitoring and self-reporting, stating that the
technology exists for these systems to monitor their own operational
health and report their status. FRA agrees that a self-monitoring
system is necessary to alert train crews and railroad maintenance crews
conducting inspections whether the recording system is even working.
Without a self-monitoring system, a locomotive could operate for an
extended period of time without a functioning locomotive camera system.
APTA commented that the self-monitoring capabilities in the
proposal did not appear to be a part of FRA's cost estimate for
installation or ongoing operation and maintenance costs, and requested
that FRA justify the requirement using a cost-benefit analysis.
Although FRA did include the cost for self-monitoring capabilities in
the NPRM's RIA, as FRA assumed that any locomotive image recording
device would have a self-monitoring capability built into the initial
design, FRA has updated the cost based on the comments that were
received and provided a range of costs to better account for any
variance that might occur in the cost of such devices.
2. Taking a Sample Download During a Periodic Inspection
In addition, APTA questioned the requirement that railroads take a
sample download during a periodic inspection to ensure that the image
recording system is functioning properly. APTA stated that passenger
railroads need to limit those with the ability to download and access
audio/image recordings, asserting that many railroads do not allow
their maintenance personnel to do this. According to APTA, there could
be a need to verify proper functioning during the periodic inspection,
but taking a download should not be required and there are other ways
to ensure proper functionality.
In the NPRM, FRA asked for comment on the types of restrictions
that should be placed on sample recording device downloads from
passenger train lead locomotives under proposed Sec. 229.136(e)(2), as
FRA anticipated that sample downloads for inspection or maintenance
purpose might often be taken by non-managerial or operating employees,
such as mechanical department employees in a locomotive repair
facility. BLET responded by stating it is reasonable to conclude that
railroads will need to check images and recordings from time to time to
ensure the proper functioning of the system. However, BLET added that
the individual checking the system should not also be conducting
operational testing, unless that individual is qualified to do so and
is authorized to perform operational tests, and requested that FRA
require all recordings used for inspection or testing purposes to be
deleted once system functioning is confirmed.
Based on the comments received, FRA is modifying the proposed
requirement. Passenger railroads must still conduct a sample download
from the image recording system's crashworthy memory module; however,
FRA is changing the frequency of the download test from a periodic to
an annual requirement. This change will reduce the need for railroad
employees to download and observe image recordings. Of course,
passenger railroads may ensure the proper functioning of a recording
system at any time. The authority under Sec. 229.136(f)(3)(vii) to
perform inspection, testing, maintenance, or repair activities to
ensure the proper installation and functioning of an inward-facing
image recorder is not limited to fulfilling the minimum requirements of
Sec. 229.136(e)(2) to take a sample download from the image recording
system's crashworthy memory module to confirm proper operation of the
system.
FRA makes clear that the final rule requires the sample download
for the annual test be taken directly from the image recording system's
crashworthy memory module, or its equivalent in the case of remote
storage approved under Sec. 229.136(g). Taking the download from this
memory module is necessary to ensure not only that the locomotive
cameras are unobstructed and pointing in the correct position to
capture crew activity, but to ensure that the camera system is properly
recording to the memory module. For example, an inward-facing camera
could be technically recording, but the camera could be out of focus.
Further, this clarification is also intended to prevent any
misunderstanding that passenger railroads could comply with this
paragraph's testing requirements by simply streaming a recording from
an image recording system without downloading the recording from the
system's memory module. An actual download from the system's
crashworthy memory module is required to ensure the integrity and
proper functioning of the image recording system.
Although this final rule creates a specific annual test for
locomotive image recording systems, passenger railroads must inspect
the locomotive's image recording devices as part of other locomotive
inspections required under part 229 (e.g., daily, 33-day mechanical,
92-day periodic, and 184-day periodic inspection). During these
inspections, the passenger railroad must note and correct any non-
complying conditions related to locomotive recording devices that can
be determined from these inspections, especially if it can be
determined that the locomotive recording device is no longer
functioning properly or there has been any tampering with the
locomotive

[[Page 70746]]

recording system or any locomotive recording device.

T. Preservation and Handling Requirements for Locomotive Recording
Devices and Recordings

1. Chain-of-Custody Requirements
In commenting on the preservation and handling requirement for
passenger locomotive recording devices as proposed in the NPRM, APTA
asserted that FRA did not account for the cost of the proposed chain-
of-custody requirements as part of FRA's cost estimate for ongoing
operation and maintenance costs added. APTA therefore requested that
FRA justify these costs versus the established benefits. FRA
acknowledges it inadvertently omitted these costs from the NPRM's RIA.
FRA has revised the RIA accompanying this final rule accordingly to
include these costs.
2. Prohibitions on the Public Release of Locomotive Recordings
FRA also received comments on whether FRA should create a specific
provision that prohibits the public release of an image or audio
recording by any person or railroad. BLET commented that there should
be a restriction on public release, stating that without legal
limitations upon disclosure, a regulatory scheme for governing the use
of in-cab cameras presents a significant problem of public and personal
privacy. According to BLET, FRA has not yet stated an intention to curb
usage by the railroad carrier or shield employees from improper
disclosure of sensitive footage, asserting that information from
locomotive recorders should be strictly controlled to prevent posting
on social media websites under the guises of promoting education and
safety. BLET also asserted that FRA should prohibit a railroad from
disclosing locomotive recording data of its employees to another
railroad that is not the employing railroad. BLET added that if audio
is recorded, it should be recorded on its own separate channel so it
can be isolated for sound quality.
APTA commented that many agencies providing passenger rail service
have significant protections in place to prevent the release of image
or audio recordings, but stated that a specific provision, even limited
in scope, prohibiting public release would supplement these agencies'
existing policies and offer protections where other agencies have no
such restrictions in place. The NTSB also commented that it supports
FRA ensuring railroads have appropriate limitations established for the
public release of in-cab audio and image recordings.
Under 49 U.S.C. 20168, which governs the installation of audio and
image recording devices in passenger train service, Congress has
limited the uses to which passenger railroads (49 U.S.C. 20168(d)) and
the Secretary of Transportation (49 U.S.C. 20168(h)) can put locomotive
image or audio recording device data, including those uses the
Secretary deems appropriate under 49 U.S.C. 20168(d)(4). This final
rule delineates those allowable uses of both image and audio recording
device data in Sec. 229.136(f)(3), and mere public disclosure is not
an authorized use.\42\ Indeed, as noted by a commenter, posting on
social media websites under the guise of promoting education and safety
is not an authorized use, nor can an image or audio recording obtained
by a passenger railroad be used to retaliate against an employee.
---------------------------------------------------------------------------

\42\ While this rule delineates the allowable uses of image and
audio recording device data, FRA notes that a private party may be
required to disclose such data in a legal proceeding, such as a
civil lawsuit, where the recording may contain probative
information.
---------------------------------------------------------------------------

Further, as provided in Sec. 229.136(f)(2), image or audio
recording system data from a locomotive in commuter or intercity
passenger service that has been involved in an accident/incident that
must be reported to FRA under part 225 of this chapter, can only be
extracted and analyzed by the railroad for the purposes described in
Sec. 229.136(f)(3). The data cannot be used for any other purpose
except by direction of FRA or another Federal agency. Likewise, FRA may
not disclose publicly any part of an in-cab audio or image recording or
transcript of oral communications by or among train employees or other
operating employees responsible for the movement and direction of the
train, or between such operating employees and company communication
centers, related to an accident or incident investigated by FRA.
However, FRA may make public any part of a transcript or any written
depiction of visual information that FRA determines is relevant to the
accident at the time a majority of the other factual reports on the
accident or incident are released to the public.\43\
---------------------------------------------------------------------------

\43\ 49 U.S.C. 20168(h). The NTSB restricts the public release
of recordings it takes possession of during an investigation until
its final report on the accident or incident has been published.
However, once the final report has been released, the NTSB does not
restrict the owner of any investigative information from publicly
releasing that information, including in-cab locomotive recordings.
---------------------------------------------------------------------------

3. Application to Audio Recording Devices and Their Recordings
APTA separately commented that the requirements of Sec. 229.136(f)
pertaining to handling of recordings should not apply to audio
recording devices or their recordings, stating that audio requirements
were not part of the NPRM, and therefore should not be a part of the
final rule. FRA disagrees. Although FRA did not propose in the NPRM and
does not require in this final rule the installation of devices to
record audio either inside or outside the locomotive cab, passenger
railroads that have installed these devices or install these devices in
the future must preserve resulting recordings according to the
preservation and handling requirements of Sec. 229.136(f)(2), if the
locomotive is involved in a reportable accident or incident under 49
CFR part 225. Such information will be relevant to an accident
investigation conducted by FRA, the NTSB, or other investigator.
4. Preservation Requirements Between Different Public Agency Rail
Owners and Operators
APTA asked how the rule would address a situation where an accident
occurs and one public agency owns the rolling stock, but another agency
operates the rolling stock. APTA sought clarification as to which
entity would be required to preserve the locomotive recording data.
The rule provides that the operating railroad at the time of the
accident is responsible for maintaining the data. However, like many
issues where there is shared usage of equipment between entities
involved in providing passenger rail service, as a practical matter,
FRA expects the entities to work such issues out by agreement. Such
coordination among the entities involved in providing passenger rail
service is also consistent with that expected under the System Safety
Program rulemaking, 49 CFR part 270. The entities may mutually agree on
fulfilling responsibilities under this final rule on each other's
behalf, as tailored to their individual circumstances.
5. Providing Image and Audio Data in a Usable Format
APTA next asked how railroads could provide FRA or the NTSB image
or audio data in a usable format when the software required for
playback of such data downloaded from a locomotive is contractually
controlled by a usage agreement involving the system's original
equipment manufacturer (OEM), and the OEM requires each user of the
software to sign the user

[[Page 70747]]

agreement. APTA asked how this situation would be handled and whether
FRA or the NTSB would work directly with the OEM to acquire the
software when the railroad has no legal ability to provide the
software.
This question is a good example of why FRA is requiring railroads
to either provide the image and/or audio data in a readable format, or
make available any platform, software, media device, etc., that is
required to play back the image and/or audio data. FRA believes that
whatever software the railroad uses could be put into a free format.
The time to make a format change would be considered to be de minimis.
FRA has found its accident investigations hindered when the recording
devices used by passenger railroads were not in a usable format or the
platform, software, or media device required the purchase of a system
to play the image and/or audio data. It is not in the public's interest
to inhibit FRA's use of locomotive image or audio recordings because
they are in a format not readily accessible without the purchase of a
unique program or other software or equipment from a private
manufacturer. Therefore, it is FRA's intention through this final rule
that the locomotive recording device record image or audio data be in a
readily accessible format, or the railroad provide the program or other
software or equipment so the locomotive recording can be accessed.
As noted above, entities providing passenger rail service may
contract with other parties to fulfill the requirements of this rule
and may therefore enter into agreements with manufacturers to develop
their locomotive recording systems. FRA will not provide specific
guidance on how the procurement and bidding process for such technology
should be managed other than to reiterate FRA's concern as to the
accessibility of the locomotive recording device data. Unless the
recordings are in a readily available format for investigators to use,
the post-accident value of the recordings and the accident
investigations themselves may be impaired.
6. Permissible Uses for Locomotive Recording Devices
i. FRA Should Only Set Minimum Safety Requirements
APTA opposed FRA specifying in the NPRM permissible uses for
locomotive recording device technology, asserting that the final rule
should only set minimum safety requirements. APTA stated FRA should
either not adopt such a proposal or instead take a broader approach
that allows passenger railroads to develop their own uses for safety
and security purposes. APTA cited to the experience railroads have
using such data for several purposes, including investigating
accidents. APTA added that allowing passenger railroads to use their
locomotive image and audio recording devices to monitor locomotive cabs
for unauthorized occupancy should be deleted as it could be interpreted
as a requirement to use remote monitoring, which is not practical for
the passenger railroad industry which operates thousands of trains a
day.
FRA is adopting the permissible uses for locomotive recording
devices as proposed. The Statute enumerates certain purposes for which
passenger railroads may use locomotive recording device data and
authorizes FRA, as the Secretary's delegate, to provide for other
appropriate purposes.\44\ Therefore, it would be contrary to the
Statute to let passenger railroads set such purposes. Further, the
provision allowing railroads to use recorder data to monitor
unauthorized occupancy of the lead locomotive cab or cab car operating
compartment comes directly from the Statute.\45\
---------------------------------------------------------------------------

\44\ 49 U.S.C. 20168(d).
\45\ Id.
---------------------------------------------------------------------------

The final rule does not require passenger railroads to remotely
monitor their locomotives for unauthorized occupancy, though it allows
passenger railroads to use their recording device data to do so. For
further discussion on remote monitoring, please see Section II.G.
ii. Application to Freight Locomotive Recording Devices
In its comments, BLET stated that the permissible uses for
locomotive recording device technology should apply to both passenger
and freight railroads that voluntarily install locomotive recording
devices. BLET further suggested that such a uniform set of standards
and requirements provide for the encryption of image and voice
recordings and access only by authorized personnel, to safeguard the
identities of the recorded individuals. Moreover, in the event that
surveillance data is used in disciplinary and/or certification
revocation proceedings, BLET asserted that the identities of those who
decrypt the data should be made known to the labor organizations
representing the charged employees, and that such persons be made to
testify as a witness at any discipline or revocation hearing, if
requested by the labor organizations.
In addition, BLET commented that, in the NPRM, FRA repeated a
misperception of what cameras can do to promote safety by asking
whether there are other safety-appropriate uses for locomotive
recordings. According to BLET, cameras provide no protection against
accidents that would happen within an operational envelope, and do not
prevent electronic device usage. BLET questioned what safety goal is
achieved when a personal electronic device is found through locomotive
recording data, when the recording itself could not prevent it. BLET
also questioned the extent to which locomotive recording data in post-
accident analysis can actually help in day-to-day operations. Overall,
BLET believed locomotive recorders will serve only to document a
problem someone already knew existed and negligence over time, but that
safety will not improve as a result if the underlying issue is not
addressed.
As previously noted, FRA lacks the justification to apply the
requirements for permissible uses of locomotive recording device
technology in this final rule to freight railroads, in accordance with
FRA's implementation of the Statute. However, it is FRA's expectation
that all railroads that voluntarily install recording devices on their
locomotive will adhere to practices that are cons

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