Locomotive Image and Audio Recording Devices for Passenger Trains

Federal RegisterOct 12, 2023

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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.

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

https://www.regulations.gov

at any time.

FOR FURTHER INFORMATION CONTACT:

Brian Roberts, Attorney Adviser, Office of the Chief Counsel, at email:

Brian.Roberts@dot.gov

or telephone: (202) 306-4333; or John Mayser, Specialist, Office of Railroad Safety, at email:

John.Mayser@dot.gov

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

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.

The Statute requires FRA (as the Secretary of Transportation's delegate)

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.

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

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.

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.

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.”

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.

A detailed discussion of the Statute's requirements is provided in the NPRM (84 FR 35712, 35714-35715).

A detailed analysis of the NTSB Recommendations is provided in the NPRM (84 FR 35712, 35715-35723).

https://rsac.fra.dot.gov/radcms.rsac/task/GetDocument/10.

A detailed discussion of the RSAC proceedings is provided in the NPRM (84 FR 35712, 35723).

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,

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.

FRA received comments from fifteen different individuals or organizations in response to the NPRM.

A detailed discussion of accidents investigated by FRA is provided in the NPRM (84 FR 35715-35723).

84 FR 35712.

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

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,

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.

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)).

See

49 CFR 229.5.

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.

Table E.1—Total 10-Year Costs and Benefits of Locomotive Image Recording Devices, Low Range

[Costs are in 2018 dollars, $ in millions]

Discounted at 7%

Discounted at 3%

Annualized at 7%

Annualized at 3%

Costs

$42.2

$46.2

$6.0

$5.4

Cost Savings

2.0

2.4

0.3

Net Costs

40.2

43.9

5.7

5.1

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]

Discounted at 7%

Discounted at 3%

Annualized at 7%

Annualized at 3%

Costs

$87.3

$94.0

$12.4

$11.0

Cost Savings

2.0

2.4

0.3

Net Costs

85.3

91.6

12.1

10.7

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.

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).

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.

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, § 229.135(e) requires the railroad to preserve the data recorded for one year.

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 §§ 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

specific preemption language to part 229.

Under longstanding U.S. Supreme Court precedent, parts and appurtenances of locomotives have been held subject to field preemption.

See Napier

Atlantic Coastline RR. Co.,

272 U.S. 605 (1926).

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.

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.

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, § 229.139(l), that excludes freight locomotives from compliance with the requirements of new § 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 § 238.5 of this chapter.

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.”

Under § 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.”

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

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.

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.

National Transportation Safety Board,

Safety Recommendations R-10-01 and R-10-02

(Feb. 23, 2010); available online at:

https://www.ntsb.gov/safety/safety-recs/recletters/R-10-001-002.pdf.

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

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,

and the 2015 Philadelphia Amtrak accident,

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.

See

84 FR 35712, 35716-35717.

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

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,

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.

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 § 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 § 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

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.

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. . . .”

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.

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.

Skinner

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

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-

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.

To implement this statutory requirement, in § 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 § 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 § 229.136(g).

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

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).

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.

National Transportation Safety Board,

Safety Recommendation R-13-22

(Aug. 14, 2013); available online at:

https://www.ntsb.gov/safety/safety-recs/recletters/R-13-018-023.pdf.

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.

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.

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, § 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 § 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

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 § 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 § 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.

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.

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 § 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

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 § 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 § 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 § 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,

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.

Skinner

Railway Labor Executives Association,

489 U.S. at 627.

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

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 § 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.

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.

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 § 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 § 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 § 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,”

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.

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 § 229.7 and should be treated in a similar fashion to event

recorders under § 229.135. BLET believed the calendar day inspection requirement mirrors long-established requirements for removing event recorders from service under § 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 § 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

—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.

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 § 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 § 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 § 229.21. However, part 229 does not require a non-compliant tag to be placed on a locomotive with a defective event recorder under § 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

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.

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 § 229.136(j) to expressly prohibit disabling or interfering with passenger locomotive recording systems.

49 U.S.C. 20168(c).

2. Clarifying the Approval Process

In commenting on proposed § 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 § 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.

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 § 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 § 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.

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.

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.

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.

Lead locomotives on Canadian passenger trains that enter the United States from Canada must comply with all of the requirements of this final rule.

https://www.gazette.gc.ca/rp-pr/p1/2019/2019-05-25/html/reg5-eng.html

https://gazette.gc.ca/rp-pr/p2/2020/2020-09-02/html/sor-dors178-eng.html

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 § 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 §§ 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

conduct operational testing using recording devices or their recordings. Further, under existing § 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 § 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 § 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 § 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 § 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 § 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

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 § 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 § 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 § 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 § 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

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 § 218.53(d), which clarifies that the requirements of §§ 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.

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.

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

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.”

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.”

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.

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.

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.

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.

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

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