Locomotive Image and Audio Recording Devices for Passenger Trains

 
CONTENT
Federal Register, Volume 84 Issue 142 (Wednesday, July 24, 2019)
[Federal Register Volume 84, Number 142 (Wednesday, July 24, 2019)]
[Proposed Rules]
[Pages 35712-35747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14407]
[[Page 35711]]
Vol. 84
Wednesday,
No. 142
July 24, 2019
Part II
Department of Transportation
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Federal Railroad Administration
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49 CFR Parts 217, 218, 229, et al.
Locomotive Image and Audio Recording Devices for Passenger Trains;
Proposed Rule
Federal Register / Vol. 84 , No. 142 / Wednesday, July 24, 2019 /
Proposed Rules
[[Page 35712]]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 217, 218, 229, 240 and 242
[Docket No. FRA-2016-0036]
RIN 2130-AC51
Locomotive Image and Audio Recording Devices for Passenger Trains
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: FRA is proposing to require the installation of inward- and
outward-facing locomotive image recording devices on all lead
locomotives in passenger trains, and that these devices record while a
lead locomotive is in motion and retain the data in a crashworthy
memory module. FRA also proposes to treat 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 NPRM would govern the use of passenger
locomotive recordings to conduct operational tests to determine
passenger railroad operating employees' compliance with applicable
railroad rules and Federal regulations. FRA requests comment on the
need for and effects of potential, additional safety requirements.
DATES: Written comments on this proposed rule must be received on or
before September 23, 2019. Comments received after that date will be
considered to the extent possible without incurring additional expense
or delay.
    FRA anticipates being able to resolve this rulemaking without a
public hearing. However, if prior to August 23, 2019, FRA receives a
specific request for a public hearing accompanied by a showing that the
party is unable to adequately present his or her position by written
statement, a hearing will be scheduled and FRA will publish a
supplemental notice in the Federal Register to inform interested
parties of the date, time, and location of any such hearing.
ADDRESSES: You may submit comments identified by the docket number FRA-
2016-0036 by any one of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting
comments;
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays; or
     Fax: 1-202-493-2251.
    Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking (2130-AC51). Note that all comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided. Please see the Privacy Act heading in the
SUPPLEMENTARY INFORMATION section of this document for Privacy Act
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Brian Roberts, Trial Attorney, Office
of Chief Counsel, FRA, 1200 New Jersey Avenue SE, RCC-10, Mail Stop 10,
Washington, DC 20590 (telephone (202) 493-6056 or 202-493-6052); Gary
G. Fairbanks, Staff Director, Motive Power & Equipment Division, Office
of Safety Assurance and Compliance, FRA, 1200 New Jersey Avenue SE,
RRS-15, Mail Stop 25, Washington, DC 20590 (telephone (202) 493-6322);
or Christian Holt, Operating Practices Specialist, Operating Practices
Division, Office of Safety Assurance and Compliance, FRA, 1200 New
Jersey Avenue SE, RRS-15, Mail Stop 25, Washington, DC 20590 (telephone
(202) 366-0978).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Executive Summary
II. Rulemaking Authority and FAST Act Requirements
III. Background
    A. Railroad Accidents & NTSB Locomotive Recorder Recommendations
    1. NTSB Safety Recommendation R-97-009
    2. NTSB Safety Recommendation R-07-003
    3. NTSB Safety Recommendations R-10-01 & -02
    i. 2008 Metrolink Accident at Chatsworth, California
    ii. 2015 Amtrak Accident at Philadelphia, Pennsylvania
    iii. Other Railroad Accidents
    B. FRA Responses to NTSB Recommendations R-10-01 & -02 & Current
Position
    C. Current Use of Recording Devices To Improve Safety & Security
in Rail and Other Modes of Transportation
IV. Railroad Safety Advisory Committee Proceedings
V. Privacy Concerns
VI. Additional Items for Comment
    A. Mandatory Installment of Inward- and Outward-Facing Recording
Devices on Freight Locomotives
    B. Audio Recording Devices
    C. Recording Device Run-Time/Shutoff When Trains Stop Moving
VII. Section-by-Section Analysis
VIII. Regulatory Impact and Notices
    A. Executive Order 12866, Executive Order 13563, Executive Order
13771, and DOT Regulatory Policies and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment
    1. Reasons for Considering Agency Action
    2. A Succinct Statement of the Objectives of, and the Legal
Basis for, the Proposed Rule
    3. A Description of, and Where Feasible, an Estimate of the
Number of Small Entities to Which the Proposed Rule Would Apply
    4. A Description of the Projected Reporting, Recordkeeping, and
Other Compliance Requirements of the Rule, Including an Estimate of
the Class of Small Entities That Will Be Subject to the Requirements
and the Type of Professional Skill Necessary for Preparation of the
Report or Record
    5. Identification, to the Extent Practicable, of All Relevant
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
    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. Privacy Act
I. Executive Summary
    On December 4, 2015, President Obama signed into law the Fixing
America's Surface Transportation Act, Public Law 114-94, 129 Stat. 1686
(Dec. 4, 2015) (FAST Act). Section 11411 of the FAST Act, codified in
the Federal railroad safety laws at 49 U.S.C. 20168 (the Statute),
requires FRA (as the Secretary of Transportation's delegate)
[[Page 35713]]
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 NPRM proposes to implement the FAST Act requirements
regarding such recording devices.
    Before the FAST Act was enacted, FRA announced at a May 2015
meeting of the Railroad Safety Advisory Committee (RSAC) it intended to
draft an NPRM that would propose the installation of locomotive
recording devices in both freight and passenger train locomotives. In
2014, the RSAC had accepted a task from FRA to address National
Transportation Safety Board (NTSB) Safety Recommendations R-10-01 & -02
on 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.\1\ The RSAC did not vote, or reach
consensus, on any recommendations to FRA regarding the adoption of
regulatory text addressing locomotive-mounted video and audio recording
devices.
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    \1\ https://rsac.fra.dot.gov/tasks.php.
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    In light of the FAST Act mandate, relevant NTSB recommendations,
the RSAC Working Group's discussions, and recent accidents and other
railroad safety violations that FRA has investigated and is
investigating, this NPRM proposes to require the installation and use
of inward- and outward-facing recording devices in all lead locomotives
in passenger trains to improve railroad safety. The NPRM does not
propose to require such recording devices in freight locomotives.
    FRA is not proposing to require inward- and outward-facing
recording devices in freight locomotives for several reasons. Foremost,
the FAST Act requires FRA to promulgate regulations requiring only
commuter and intercity passenger railroads to install inward- and
outward-facing image recording devices in all of their controlling (or
``lead'') locomotives; there is no corresponding statutory mandate for
freight railroads to install such devices in their locomotives. In
addition, the cost to freight railroads of implementing such a
requirement outweighs its potential safety benefits.\2\ Furthermore,
many freight railroads, including all Class I railroads, are already in
the process of voluntarily installing recording devices on their
locomotives without a Federal requirement. Finally, recordings from
these voluntarily installed systems are already subject to the current
requirements for the preservation of accident data found in 49 CFR
229.135(e).
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    \2\ See Regulatory Impact Analysis pg. 17.
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    Regardless, FRA will continue to monitor freight railroads'
installation efforts of inward- and outward-facing locomotive recording
devices and is inviting public comment on whether FRA should require
freight railroads to install these devices in some or in all their
locomotives now or in the future. In addition, FRA welcomes public
comment on the extent to which FRA should apply the proposed
requirements in this NPRM to recording devices freight railroads have
already installed in their locomotives or will voluntarily install in
the future.
    FRA proposes that within four years of the date of publication of a
final rule, intercity passenger and commuter railroads must install
compliant image recording systems on the lead locomotives of all their
passenger trains. FRA proposes that beginning one year after
publication of a final rule, any recording systems installed on new,
remanufactured,\3\ or existing passenger train lead locomotives would
have to meet the specified requirements. As required by statute, this
NPRM proposes that the last twelve hours of data recorded by such
devices on passenger train lead locomotives must be stored in a memory
module that meets the existing crashworthiness requirements in FRA's
locomotive event recorder regulation at 49 CFR part 229. In addition,
this NPRM proposes to treat locomotive-mounted recording devices in
passenger locomotives as ``safety devices'' under 49 CFR part 218,
subpart D, thereby making it a violation of applicable Federal
regulations to tamper with or disable those locomotive-mounted
recording devices.
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    \3\ See 49 CFR 229.5.
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    FRA notes that the proposed image recording device requirements for
passenger train locomotives would supplement FRA's existing locomotive
event recorder regulation at 49 CFR 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.
    FRA used a cost benefit analysis to evaluate the impact of the
proposed rule on passenger locomotive image recording devices. FRA
estimated the costs of this proposed rule over a 10-year period using
discount rates of 3 and 7 percent. For the 10-year period analyzed, the
estimated quantified net costs to the industry total $31,837,918
(present value (PV), 7 percent), or $34,664,317 (PV, 3 percent). The
annualized costs for the 10-year period are $4,533,003 (PV, 7 percent)
and $4,063,715 (PV, 3 percent). Some safety benefits of this proposed
rule could accrue from the collection of accident causation
information, which is critical to prevent future accidents. Other,
probably larger, safety benefits could accrue from deterring unsafe
behaviors that cause railroad accidents (e.g., text messaging while
operating a train). Other benefits accrue from beneficial changes in
crew behavior not directly related to safety, such as the ability to:
(1) Conduct low-cost operational tests that are currently impractical
to perform without cameras (e.g., for prohibited use of personal
electronic devices), (2) research and improve crew safety and
productivity practices, and (3) enhance investigations of potential
trespassers and other unauthorized individuals.
    In addition to reviewing the NTSB recommendations discussed in this
NPRM and how other DOT modes address inward- and outward-facing cameras
in vehicles, FRA also conducted a literature review for scholarly
papers and other research on the benefits of inward- and outward-facing
recording devices, with a primary focus on inward- and outward-facing
locomotive cameras. Although FRA found few substantive academic or
technical papers on the safety benefits of inward- and outward-facing
cameras in locomotives, FRA did identify a relevant report prepared by
the Transportation Safety Board of Canada (TSB).\4\ According to TSB's
report, the benefits of locomotive recording devices include: (1) Help
in post-accident investigations; identification of operational and
human factors that contribute to accidents; (2) use of camera footage
to identify desirable and undesirable behaviors of railroad employees
to determine what procedures or employee behaviors could benefit from
additional training, system design or equipment changes; and (3) how
the cameras could improve train crew and passenger safety by
identifying
[[Page 35714]]
potential security risks both inside and outside of the locomotive cab.
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    \4\ See Transportation Safety Board of Canada, Railway Safety
Issues Investigation Report: Expanding the use of locomotive voice
and video recorders in Canada. Report no. R16H0002 (2016). The
report has been placed in the docket for this rulemaking and is
available at: http://www.bst-tsb.gc.ca/eng/rapports-reports/rail/etudes-studies/r16h0002/r16h0002.asp.
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    While the literature reviewed by FRA identified several qualitative
benefits associated with locomotive recording devices, FRA was unable
to find in its literature review any sources that specifically help
quantify those benefits, and therefore invites comment and the
submission of any data or studies that would help FRA quantify the
benefits of inward- and outward-facing locomotive recording devices in
this rulemaking.
II. Rulemaking Authority and FAST Act Requirements
    FRA is publishing this proposed 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 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 these
statutory provisions, and the balance of the railroad safety laws, is
delegated to the Federal Railroad Administrator. 49 CFR 1.89.
    The Statute requires FRA (as the Secretary's delegate) to
promulgate this proposed regulation for passenger train locomotives.
FRA's proposal implementing each statutory requirement is explained in
more detail in the section-by-section analysis. However, in general,
the Statute requires that by December 4, 2017, FRA must promulgate a
regulation 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 (or ``lead'') locomotive
cabs and car operating compartments in passenger trains. For purposes
of this NPRM, FRA intends that railroad carriers providing ``intercity
rail passenger transportation'' and ``commuter rail passenger
transportation'' subject to this rule to be 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)).
    Paragraph (b) of the Statute specifies that each required passenger
locomotive image recording device shall have: (1) A minimum 12-hour
continuous recording capability; (2) crash and fire protections for any
in-cab image recordings stored only within a controlling locomotive cab
or cab car operating compartment; and (3) recordings accessible for
review during an accident or incident investigation. The rule text
proposed in Sec.  229.136, below, would establish the criteria for the
image recording devices to meet these three specified standards.
    Paragraph (c) of the Statute requires FRA to establish a review and
approval process to ensure that the three standards described in
paragraph (b) are met for image recording devices on passenger train
lead locomotives. Proposed Sec.  229.136(g), below, would require
passenger railroads to submit information to FRA regarding whether the
recording device system installed on a particular locomotive(s) subject
to the final rule meets the established criteria. FRA plans to publish
a list of any previously approved systems on its internet website for
railroads' convenience.
    Paragraph (d) establishes what the passenger railroad carriers
subject to the Statute may use image recordings for, and permits FRA to
establish other appropriate purposes. The rule text FRA presented to
the RSAC addressed the items listed in paragraph (d) (verifying that
crew actions are in accordance with applicable safety laws and railroad
operating rules, assisting accident investigations, and documenting
violations of law). FRA has proposed an amended version of the language
it presented to the RSAC in proposed Sec.  229.136(f)(3), below, to
address this FAST Act provision and specifically include the use of
recordings to detect the presence of unauthorized persons in locomotive
cabs. FRA is also requesting comment on whether other appropriate
safety-related uses exist for locomotive recordings.
    Paragraph (e)(1) of the Statute gives FRA discretion to similarly
require audio-recording devices be installed on passenger train lead
locomotives and to establish corresponding technical details for such
devices. FRA has not proposed specific rule text that would require
audio recording devices, but in the preamble below requests comment on
whether to require audio recording devices on passenger and freight
locomotives in a final rule.
    Paragraph (e)(2) of the Statute gives FRA discretion to provide an
exemption from the inward- and outward-facing image recording device
requirements based on alternative technologies or practices that
provide for an equivalent or greater safety benefit or that are better
suited to the risks of the operation.
    Paragraph (f) of the Statute permits passenger railroads to take
appropriate action against employees who tamper with audio or image
recording devices installed on their locomotives. FRA has proposed in
part 218 that such recording devices on passenger trains be treated as
``safety devices'' under the applicable Federal regulation. FRA
proposed this during the RSAC process, stating it was changing its
position from that conveyed in a May 2010 FRA letter to the Southern
California Regional Rail Authority (Metrolink) through the notice and
comment process in this rulemaking.\5\ In the 2010 letter, FRA
indicated that inward-facing cameras were not considered ``safety
devices'' under 49 CFR part 218. For the reasons explained in the
section-by-section analysis below, FRA has changed its position on this
issue based on the Statute and other recent developments. FRA notes
that the letter, which FRA has placed in the public docket for this
NPRM, is consistent with paragraph (f) of the Statute because it stated
railroad disciplinary action might be appropriate at a railroad's
discretion if an employee were found to tamper with a locomotive
recording device.
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    \5\ See NPRM docket; Mark H. Tessler letter to Metrolink,
Locomotive video cameras, (May 18, 2010).
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    Paragraph (g) of the Statute requires each passenger carrier
subject to the FAST Act's recording device requirements preserve
recordings for one year after the occurrence of a reportable accident
or incident. This preservation requirement for passenger locomotive
image and audio recordings is being included in Sec.  229.136 for
organizational clarity with other requirements for locomotive image and
audio recording devices. Specifically, in its 2010 letter to Metrolink,
discussed above, FRA explained that locomotive image recordings, like
other locomotive event recordings, must already be preserved for one
year following an accident under existing Sec.  229.135(e). While this
existing requirement includes recordings from freight locomotive
recording devices, the proposed preservation requirement in Sec.
229.136, below, would apply only to passenger locomotive recording
devices.
    Paragraph (h) of the Statute addresses a significant issue
discussed during the RSAC process involving the public availability,
including disclosure under the Freedom of Information Act (5 U.S.C.
552) (FOIA), of recordings that FRA takes possession of after a
railroad accident. Paragraph (h) is similar to the prohibition on
public disclosure of locomotive recordings NTSB takes possession of
under 49 U.S.C. 1114(d). Paragraph (h) prohibits FRA from disclosing
publicly locomotive audio and image recordings or transcripts of oral
communications by or among train
[[Page 35715]]
employees or other operating employees, or between such operating
employees and communication center employees, related to an accident or
incident FRA is investigating. FRA may make public a transcript or a
written depiction of visual information it deems relevant to the
accident at the time other factual reports on the accident are released
to the public. This statutory provision is discussed in more detail in
the preamble sections addressing privacy and locomotive recording-
handling below.
    Paragraph (i) of the Statute prohibits a railroad subject to this
provision from using an in-cab audio or image recording to retaliate
against an employee. FRA believes this provision to be a restatement of
existing prohibitions in Federal, State, and local laws that prohibit
retaliation against railroad employees, and merely establishes that
recordings may not be used as a tool to conduct such illegal
retaliation. FRA does not believe Congress intended this provision to
apply to railroad rules' violations discovered via railroad review of
audio and video recordings under a railroad's established procedures.
The purpose of this section and the relevant NTSB recommendations
addressing this topic are to identify and address safety violations,
such as the prohibited use of personal electronic devices while
performing safety-critical duties that endanger public safety.
Railroads take disciplinary actions for such rules' violations now (in
the absence of locomotive recordings) under the existing legal
framework and collective bargaining agreements governing railroad
employment. Accordingly, FRA understands this section to address
illegal retaliation implicated by existing statutes such as the
railroad employee whistleblower law at 49 U.S.C. 20109, and which are
addressed via grievance process remedies for wrongful discharge under
the Railway Labor Act, 45 U.S.C. 151 et seq. Paragraph (i) is silent
about freight locomotive recordings because by its terms section 11411
only applies to passenger railroads. However, for passenger railroads,
FRA has addressed Congress' intent regarding retaliation in the rule
text proposed below. The rule would limit the permitted uses of
locomotive recordings and proposes to require that operational tests
involving review of in-cab locomotive recordings be randomly conducted
within limited time frames under an established written railroad
procedure that is subject to FRA review.
    Finally, paragraph (j) makes clear the Statute does not restrict a
train from continuing in operation upon the occurrence of a locomotive
recording device failure. Nonetheless, the Statute requires the
railroad to repair or replace the recording device as soon as
practicable. FRA's proposal in Sec.  229.136, below, is consistent with
this provision, and defines ``as soon as practicable'' to mean that the
locomotive must be replaced as the lead locomotive no later than after
the next calendar day's inspection if the recording device system has
not been repaired or replaced.
III. Background
A. Railroad Accidents & NTSB Locomotive Recorder Recommendations
    In developing this proposed rule, FRA reviewed relevant railroad
accidents as well as related Safety Recommendations NTSB issued to FRA
involving audio and image recordings. Based on FRA's analysis of these
accidents and related NTSB Recommendations (discussed immediately
below), FRA determined that the requirements of this proposed rule
would achieve safety benefits in two primary ways. First, the proposed
requirements of this NPRM, if adopted, would provide critical post-
accident data, which would help FRA (as well as other Federal and state
agencies, railroads, labor groups, and other stakeholders) ascertain
the cause of accidents for purposes of preventing future accidents.
Second, FRA believes requiring inward-facing recording devices on all
lead locomotives in passenger trains would be a deterrent against
illegal and unsafe practices that can cause accidents.
1. NTSB Safety Recommendation R-97-009
    On February 16, 1996, a Maryland Rail Commuter (MARC) passenger
train collided with a National Railroad Passenger Corporation (Amtrak)
passenger train near Silver Spring, Maryland. Eleven people were killed
and 26 people were injured as a result of the accident. The accident
occurred when MARC train 286 was delayed in block for a station stop
while operating on an ``approach'' signal indication requiring the
train to approach the next signal prepared to stop. However, MARC train
286 proceeded after making the station stop as if operating on a
``clear'' signal indication, could not stop for the subsequent ``stop''
signal, and collided with Amtrak train 3 at Georgetown Junction. The
NTSB, which is the independent Federal agency charged by Congress with
investigating significant transportation accidents, to include railroad
accidents, found that the probable cause of the accident was, in part,
``the apparent failure of the [MARC] engineer and the traincrew because
of multiple distractions to operate MARC train 286 according to signal
indications . . . .'' \6\
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    \6\ National Transportation Safety Board, Collision and
Derailment of Maryland Rail Commuter MARC Train 286 and National
Railroad Passenger Corporation Amtrak Train 29 Near Silver Spring,
Maryland on February 16, 1996. Railroad Accident Report NTSB/RAR-97/
02 (July 3, 1997); available online at http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR9702.pdf.
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    As a result of this accident, the NTSB made recommendation R-97-009
to FRA, recommending that FRA amend 49 CFR part 229 to ``require the
recording of train crewmembers' voice communications for exclusive use
in accident investigations and with appropriate limitations on the
public release of such recordings.'' \7\ In making the recommendation,
NTSB stated that during its investigation, it could not document crew
communications regarding signal indications as the train approached the
location where the accident occurred and that locomotive event
recorders cannot answer questions about a train crew's knowledge or
actions during accident investigations. All three operating crew
members aboard MARC train 286 were killed in the accident. NTSB pointed
to the long history of cockpit voice recorders (CVR) in the aviation
industry, as mandated by the FAA in certain commercial aviation
operations since 1964.\8\ The NTSB explained that the use of CVRs had
been useful during aviation accident investigations and were ``an
almost necessary tool in documenting the operational decisions or
mistakes of the crew that lead up to an accident.'' \9\
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    \7\ National Transportation Safety Board, Safety Recommendation
R-97-009 (Aug. 28, 1997); available online at: http://www.ntsb.gov/safety/safety-recs/recletters/R97_9_21.pdf.
    \8\ Supra, n. 6 at 51.
    \9\ Supra, n. 6 at 52.
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    NTSB reiterated its recommendation after a January 1999 collision
near Bryan, Ohio, involving three Consolidated Rail Corporation
(Conrail) freight trains. The accident occurred when westbound Conrail
train Mail-9 was traveling 56 mph and struck the rear of a slower
moving freight train ahead of it that was also traveling westbound.
Both trains derailed, with derailed equipment then striking and
derailing a third freight train that was traveling the opposite
(eastbound) direction on an adjacent main track.
    The NTSB found that the probable cause of that accident was ``the
failure of the crew of train Mail-9 [striking train] to comply with
restrictive signal indications while operating at or near maximum
authorized speed in dense
[[Page 35716]]
fog.'' \10\ Both crew members of the striking train in that incident
were killed and NTSB concluded that recorded crew communications might
have provided valuable clues in reconstructing the accident, which
could have ``possibly enabled the carrier, the railroad unions, and the
Federal Railroad Administration to make systemic changes to prevent
similar accidents from occurring.'' \11\ The NTSB report also cited new
statutory authority, codified at 49 U.S.C. 1114(d), that included
provisions for the NTSB to protect such recordings from public
disclosure during accident investigations.
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    \10\ National Transportation Safety Board, Collision Involving
Three Consolidated Rail Corporation Freight Trains Operating in Fog
on a Double Main Track Near Bryan, Ohio January 17, 1999. Railroad
Accident Report NTSB/RAR-01/01 (May 9, 2001); available online at:
http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0101.pdf.
    \11\ Id. at 47.
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    FRA declined to implement NTSB Recommendation R-97-009, which only
recommended the installation of audio recorders, but not image
recording devices. At that time, FRA agreed that crew audio recordings
could be beneficial for some investigations, but conveyed its concerns
to NTSB regarding implementation of the recommendation, which included
the significant costs of such a requirement, the existing availability
of locomotive event recorder data, competing regulatory priorities, and
concern regarding the privacy and comfort of train crews.\12\ FRA
stated the recommendation might warrant re-examination in the future,
but requested it be placed in the status of ``Closed--Reconsidered.''
NTSB ultimately classified the recommendation as ``Closed--Unacceptable
Action'' in 2004.\13\
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    \12\ National Transportation Safety Board, Safety Recommendation
History for Safety Recommendation R-97-009: Available online at:
http://www.ntsb.gov/investigations/data/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-97-009.
    \13\ Id.
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2. NTSB Safety Recommendation R-07-003
    Several years later, on July 10, 2005, two Canadian National
Railway Company (CN) freight trains collided near Anding, Mississippi.
The accident occurred in single-main track territory after the crew of
a northbound CN train passed a stop signal without stopping and
collided head-on with a southbound CN train. The crews of both trains
were killed in the accident. The NTSB's probable cause finding stated
the northbound train crew's ``attention to the signals was most likely
reduced by fatigue; however, due to the lack of a locomotive cab voice
recorder or the availability of other supporting evidence, other
factors cannot be ruled out.'' \14\ The NTSB concluded that if a
locomotive voice recorder had been installed on the controlling
locomotive of the northbound train and survived the collision and
resulting fire, the recordings would ``yield a better understanding of
the cause of the accident and of the ways it might have been
prevented.'' \15\ As a result, NTSB issued Safety Recommendation R-07-
003, recommending FRA require railroads to install on locomotives a
crash and fire protected voice recorder, or combined voice and video
recorder, with the recordings only to be used for accident
investigations.\16\ The NTSB referenced several other accidents \17\ in
making this recommendation in which it believed locomotive video
recordings would have been useful in investigating the accidents.
---------------------------------------------------------------------------
    \14\ National Transportation Safety Board, Collision of Two CN
Freight Trains Anding, Mississippi July 10, 2005, Railroad Accident
Report NTSB/RAR-07/01 (Mar. 20, 2007); available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0701.pdf.
    \15\ Id.
    \16\ National Transportation Safety Board, Safety Recommendation
R-07-003 (Apr. 25, 2007); available online at: http://www.ntsb.gov/safety/safety-recs/recletters/R07_1_3.pdf.
    \17\ See, e.g., National Transportation Safety Board, Collision
Between Two BNSF Railway Company Freight Trains Near Gunter, Texas,
May 19, 2004, Railroad Accident Report NTSB/RAR-06/02 (June 13,
2006); National Transportation Safety Board, Collision of Union
Pacific Railroad Train MHOTU-23 With BNSF Railway Company Train
MEAP-TUL-126-D With Subsequent Derailment and Hazardous Materials
Release, Macdona, Texas, June 28, 2004, Railroad Accident Report
NTSB/RAR-06/03 (July 7, 2006); National Transportation Safety Board,
Collision of Two Union Pacific Railroad Freight Trains, Texarkana,
Arkansas, October 15, 2005, Railroad Accident Brief NTSB/RAB-06/04
(Oct. 17, 2006).
---------------------------------------------------------------------------
    FRA responded to this NTSB recommendation, stating FRA had broached
the subject of the NTSB's recommendation regarding voice recorders on
two occasions with the RSAC in 2007 without resolution, and planned to
discuss the recommendation again at a future RSAC meeting.\18\ FRA's
response also noted technical concerns with implementing the NTSB
recommendation, and discussed its previously-raised privacy and cost-
related concerns.\19\ A later NTSB response noted FRA had indeed
discussed the recommendation at a November 2007 RSAC Locomotive Working
Group meeting, and classified FRA's response to the recommendation as
``Open--Acceptable Response.'' However, Recommendation R-07-003 was
ultimately classified by NTSB as ``Closed--Unacceptable Action/
Superseded,'' on February 23, 2010, after adoption of the report
addressing the September 12, 2008, Metrolink accident in Chatsworth,
California, discussed directly below.\20\
---------------------------------------------------------------------------
    \18\ National Transportation Safety Board, Safety Recommendation
History for Safety Recommendation R-07-003: Available online at:
http://www.ntsb.gov/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-07-003.
    \19\ Id.
    \20\ Id.
---------------------------------------------------------------------------
3. NTSB Safety Recommendations R-10-01 & -02
i. 2008 Metrolink Accident at Chatsworth, California
    On September 12, 2008, in Chatsworth, California, a collision
occurred between a Metrolink passenger train and a Union Pacific
Railroad Company (UP) freight train,\21\ after the locomotive engineer
operating the Metrolink passenger train failed to stop his train for a
stop signal. As a result of the accident, 25 persons on the Metrolink
train were killed and 102 injured passengers were transported to the
hospital. Property damage was estimated to be more than $12 million.
The NTSB found the probable cause of the accident was the Metrolink
locomotive engineer's distraction due to the use of a personal cell
phone to send text messages resulting in a failure to comply with the
signal indication.\22\
---------------------------------------------------------------------------
    \21\ See National Transportation Safety Board, Collision of
Metrolink Train 111 With Union Pacific Train LOF65-12 Chatsworth,
California September 12, 2008, Accident Report NTSB/RAR-10/01 (Jan.
21, 2010); available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1001.pdf.
    \22\ Id. at 66.
---------------------------------------------------------------------------
    Shortly after the Metrolink accident, the Rail Safety Improvement
Act of 2008 \23\ (RSIA) was enacted and mandated, among other items,
that railroads install PTC systems. Also after the accident, FRA issued
its Emergency Order No. 26 (E.O. 26). 73 FR 58702 (Oct. 7, 2008). E.O.
26 prohibited railroad operating employees (typically train crew
members such as locomotive engineers and conductors) performing safety-
related duties from using or turning on electronic devices such as
personal cell phones. The requirements in E.O. 26 were codified in
amended form at 49 CFR part 220, subpart C, in an FRA final rule
published on September 27, 2010, which took effect on March 28, 2011.
75 FR 59580. Among other requirements in the final rule, railroad
operating employees are required to receive training on the
[[Page 35717]]
regulation's requirements governing the use of electronic devices while
on duty and are also required to be tested by railroad supervisors to
determine the employees' compliance with such requirements. 49 CFR
220.313-220.315.
---------------------------------------------------------------------------
    \23\ Public Law 110-432, Division A, 122 Stat. 4848 (Oct. 16,
2008).
---------------------------------------------------------------------------
    The NTSB's report on the Chatsworth accident resulted in two Safety
Recommendations, R-10-01 and R-10-02.\24\ Safety Recommendation R-10-01
superseded Safety Recommendation R-07-003, and recommended that FRA:
---------------------------------------------------------------------------
    \24\ National Transportation Safety Board, Safety
Recommendations R-10-01 and R-10-02 (Feb. 23, 2010); available
online at: http://www.ntsb.gov/safety/safety-recs/recletters/R-10-001-002.pdf.
    Require the installation, in all controlling locomotive cabs and
cab car operating compartments, of crash- and fire-protected inward-
and outward-facing audio and image recorders capable of providing
recordings to verify that train crew actions are in accordance with
rules and procedures that are essential to safety as well as train
operating conditions. The devices should have a minimum 12-hour
continuous recording capability with recordings that are easily
accessible for review, with appropriate limitations on public
release, for the investigation of accidents or for use by management
in carrying out efficiency testing and systemwide performance
monitoring programs.
    In addition, Safety Recommendation R-10-02 recommended that FRA:
    Require that railroads regularly review and use in-cab audio and
image recordings (with appropriate limitations on public release),
in conjunction with other performance data, to verify that train
crew actions are in accordance with rules and procedures that are
essential to safety.
    The NTSB's recommendations in response to the Chatsworth accident
differed from its previous recommendations regarding locomotive
recording devices. FRA believes the prior recommendations were
primarily made intending that locomotive recordings would be used as a
post-accident investigation tool with the goal of gaining insight into
accident causes to appropriately direct safety recommendations to
prevent similar accidents from occurring. Recommendations R-10-01 and
R-10-02 shared those same goals, but also recommended FRA require
regular railroad review of recordings be part of a railroad's
operational (efficiency) testing program as a proactive accident
prevention tool to gauge employee compliance with applicable rules.
Under existing 49 CFR 217.9, railroads are required to have an
operational testing program to gauge employee compliance with relevant
operating rules, timetables, and special instructions. Under the NTSB's
recommendations, FRA would also require railroads to review locomotive
image and audio recordings to conduct such operational tests.
    In issuing these recommendations, the NTSB's report on the
Chatsworth accident explained that the engineer on the Metrolink train
who caused the accident knowingly violated railroad rules regarding the
use of personal electronic devices while operating his train.\25\ The
NTSB explained that in the relative privacy of the locomotive cab, the
locomotive engineer of the Metrolink train (as is the case with most
train operations in this country) could use his personal cell phone
without any possibility of being caught, except when a railroad manager
might physically be in or near the cab of the locomotive.\26\ However,
NTSB posited that if the engineer had known he was being recorded, and
railroad supervisors would regularly review the recordings, such rules'
violations would have been deterred.\27\
---------------------------------------------------------------------------
    \25\ Supra, n. 21 at 55.
    \26\ Id. at 57.
    \27\ Id. at 58.
---------------------------------------------------------------------------
ii. 2015 Amtrak Accident at Philadelphia, Pennsylvania
    On Tuesday, May 12, 2015, Amtrak passenger train 188 (Train 188)
was traveling from Washington, DC, to New York City. Aboard the train
were five crew members and approximately 238 passengers. Shortly after
9:20 p.m., the train derailed while traveling through a curve in the
track at Frankford Junction in Philadelphia, Pennsylvania. As a result
of the accident, eight persons were killed and a significant number of
persons were seriously injured. The accident was investigated by NTSB,
which took the lead role conducting the investigation of this accident
under its legal authority. 49 U.S.C. 1101 et seq.; 49 CFR 831.2(b). As
is customary, FRA participated in the NTSB's investigation and also
investigated the accident under its own statutory authority.
    Both NTSB's \28\ and FRA's \29\ accident investigations concluded
that excessive train speed was the cause of the accident. As Train 188
approached the curve from the west, it traveled over a straightaway
with a maximum authorized passenger train speed of 80 mph. The maximum
authorized passenger train speed for the curve was 50 mph. NTSB
determined the train was traveling approximately 106 mph within the
curve's 50-mph speed restriction, exceeding the maximum authorized
speed on the straightaway by 26 mph and on the curve by 56 mph.\30\
NTSB has also indicated the locomotive engineer operating the train
made an emergency application of Train 188's air brake system, and the
train slowed to approximately 102 mph before derailing in the curve.
---------------------------------------------------------------------------
    \28\ National Transportation Safety Board, Derailment of Amtrak
Passenger Train 188, Philadelphia, Pennsylvania, May 12, 2015. NTSB
Accident Report NTSB/RAR-16/02 (May 17, 2016); available online at:
https://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1602.pdf.
    \29\ Federal Railroad Administration, Accident Investigation
Report HQ-2015-1052, Amtrak (ATK), Philadelphia, PA, May 12, 2015;
available online at: https://www.fra.dot.gov/eLib/details/L18424#p1_z50_gD_lAC.
    \30\ FRA regulations provide, in part, that it is unlawful to
``[o]perate a train or locomotive at a speed which exceeds the
maximum authorized limit by at least 10 miles per hour.'' 49 CFR
240.305(a)(2).
---------------------------------------------------------------------------
    On July 8, 2015, NTSB sent a letter to FRA reiterating NTSB
recommendations R-10-01 & -02.\31\ NTSB's letter explained the engineer
of Amtrak 188 stated he could not recall the events leading up to the
derailment, and that investigators have been unable to determine
information about the engineer's behavior in the moments leading up to
the accident.\32\ The letter indicated NTSB believes inward-facing
locomotive recorders could have provided valuable information to help
determine the cause of the accident. In sum, given that information on
the actions of the engineer before the accident was lacking, there are
potentially critical pieces of information missing about the cause of
this accident that resulted in the deaths of eight people. After this
accident occurred, Amtrak equipped its ACS-64 locomotives on the
Northeast Corridor with inward-facing cameras.
---------------------------------------------------------------------------
    \31\ National Transportation Safety Board, Safety Recommendation
History for Safety Recommendation R-10-001: Available online at:
http://www.ntsb.gov/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-10-001. NTSB also sent a letter regarding
locomotive recorder recommendations to Amtrak.
    \32\ However, the NTSB's analysis of the engineer's phone
records does not indicate that any calls, texts, or data usage
occurred during the time the engineer was operating the train.
National Transportation Safety Board, Second Update on its
Investigation into the Amtrak Derailment in Philadelphia (June 10,
2015); available online at: http://www.ntsb.gov/news/press-releases/Pages/PR20150610.aspx.
---------------------------------------------------------------------------
iii. Other Railroad Accidents
    The NTSB reiterated Safety Recommendations R-10-01 & -02 in
response to other railroad accidents at Red Oak, Iowa; \33\ Two
Harbors,
[[Page 35718]]
Minnesota; \34\ Chafee, Missouri; \35\ and Goodwell, Oklahoma,\36\
respectively. The NTSB has also made similar recommendations to
railroads regarding the installation and use of locomotive image and
audio recording devices (see, e.g., NTSB Safety Recommendations R-14-08
& -09 \37\ to the Metro-North Railroad after the December 2013 accident
near Spuyten Duyvil Station in Bronx, New York, in which four Metro-
North passengers were killed). These accidents all appear to involve
human factor causes, but absent locomotive recordings there is a lack
of information regarding the crew actions leading up the accidents.
---------------------------------------------------------------------------
    \33\ National Transportation Safety Board, Collision of BNSF
Coal Train With the Rear End of Standing BNSF Maintenance-of-Way
Equipment Train, Red Oak, Iowa April 17, 2011, NTSB Accident Report
NTSB/RAR-12/02 (Apr. 24, 2012); available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1202.pdf.
    \34\ National Transportation Safety Board, Collision of Two
Canadian National Railway Freight Trains near Two Harbors,
Minnesota, September 30, 2010. NTSB Accident Report NTSB/RAR-13/01/
SUM (Feb. 12, 2013); available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1301.pdf.
    \35\ National Transportation Safety Board, Collision of Union
Pacific Railroad Freight Train with BNSF Railway Freight Train Near
Chaffee, Missouri, May 25, 2013. NTSB Accident Report NTSB/RAR-14/02
(Nov. 17, 2014); available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1402.pdf.
    \36\ National Transportation Safety Board, Head-On Collision of
Two Union Pacific Railroad Freight Trains Near Goodwell, Oklahoma,
June 24, 2012. NTSB Accident Report NTSB/RAR-13/02 (June 18, 2013);
available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1302.pdf.
    \37\ National Transportation Safety Board, Safety
Recommendations R-14-07 & R-14-08 (Feb. 18, 2014); available online
at: http://www.ntsb.gov/safety/safety-recs/recletters/R-14-007-009.pdf.
---------------------------------------------------------------------------
    For example, in the 2011 Red Oak, Iowa, accident, a BNSF Railway
Company (BNSF) freight train crew failed to operate their train at
restricted speed as required by signal indication, and collided with
the rear end of a standing train. Both crew members of the striking
train were killed. The NTSB's probable cause determination indicated
the cause of the accident was fatigue-related.\38\ However, the NTSB
noted that without visual evidence of the crewmembers' actions while
operating the striking train, valuable information about their
performance was not available to accident investigators (a forward-
facing video recording from the striking train did not survive the
collision and subsequent fire).\39\ The NTSB's report stated that a
video recording's value in preventing future accidents ``cannot be
overstated,'' as installation of such cameras could assist in
monitoring compliance with railroads' rules and identifying fatigued
locomotive engineers, such that intervention might happen before an
accident occurs.\40\
---------------------------------------------------------------------------
    \38\ Supra, n. 33 at 72.
    \39\ Id. at 67.
    \40\ Id. at 66.
---------------------------------------------------------------------------
    The NTSB similarly discussed inward-facing cameras in its report on
the 2012 Goodwell, Oklahoma accident, which occurred when a UP crew
failed to comply with wayside signal indications and were killed in a
subsequent collision with another freight train.\41\ The NTSB indicated
that causal factors included the locomotive engineer's apparent vision
problems and the conductor's disengagement from his duties.\42\
However, NTSB stated that an inward-facing locomotive video recording
could have ``shed light on the activities of the [crew] leading up to
the collision and why the crew did not respond to wayside signals.''
\43\
---------------------------------------------------------------------------
    \41\ Supra, n. 36 at pp. 34-37.
    \42\ Id. at 44-45.
    \43\ Id. at. 35.
---------------------------------------------------------------------------
    FRA has similarly identified the value of inward-facing image
recordings for other recent accidents not listed above that might
provide the only means of conclusively determining what caused or
contributed to an accident, and, more importantly, to develop necessary
corrective actions to prevent similar train accidents from occurring.
For example, a 2013 accident near Amarillo, Texas,\44\ and a 2011
accident near Mineral Springs, North Carolina,\45\ both occurred after
train crews qualified on the physical characteristics of the territory
operated their trains significant distances past dark signals without
taking any action to slow or stop their trains. In fact, the striking
train in the Mineral Springs accident increased train speed from 31 mph
to 48 mph after passing the dark signal. The crewmembers in the Mineral
Springs accident were killed in the collision, and the crewmembers in
the Amarillo accident were, in FRA's view, unable to definitively
articulate reasons why they did not operate their train in compliance
with applicable railroad rules. The NTSB found the probable cause of
both accidents involved the crews' failure to comply with applicable
rules governing train speeds upon encountering dark signals. Inward-
facing image recordings would have provided visual information about
crew actions and performance leading up to these accidents, enabling
railroads and investigators to accurately determine the root cause of
the accidents. Without such recordings, regulatory and industry efforts
to learn about and ultimately prevent such incidents are inhibited.
---------------------------------------------------------------------------
    \44\ National Transportation Safety Board, Collision Involving
Three BNSF Railway Freight Trains near Amarillo, Texas, September
25, 2013. NTSB Accident Report NTSB/RAR-15/02 (June 25, 2015);
available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1502.pdf.
    \45\ National Transportation Safety Board, Railroad Accident
Brief NTSB/RAB-13-01 (Jan. 29, 2013); available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAB1301.pdf.
---------------------------------------------------------------------------
    The NTSB's reiteration of Safety Recommendations R-10-01 & -02 in
response to the 2010 Two Harbors, Minnesota, accident was related to
the prohibited use of personal electronic devices by train crew
members. In that accident, a CN train crew failed to properly comply
with an after-arrival mandatory directive and struck another freight
train traveling the opposite direction on single main track. The NTSB's
investigation indicated that four of the five crewmembers on the two
trains involved in the accident had used their personal cell phones
while on duty on the date of the accident contrary to applicable
railroad rules and FRA's E.O. 26 discussed above.\46\ The NTSB
concluded the use of cell phones by crewmembers on both trains involved
in the accident was a distraction to the safe operation of the
trains,\47\ and cited a list of past rail transportation accidents it
had investigated where personal electronic device use by train crews
was a causal factor.
---------------------------------------------------------------------------
    \46\ Supra, n. 34 at 20.
    \47\ Id.
---------------------------------------------------------------------------
    Those accidents include the May 2004 accident near Gunter, Texas
(cited above) where there was significant personal cell phone usage by
crew members of both trains involved in the accident while the trains
were being operated (accident resulting in the death of one train
crewmember).\48\ They also include a May 2002 accident involving two
BNSF freight trains near Clarendon, Texas,\49\ resulting in critical
injuries to the crew of a coal train where the probable cause of the
accident involved the locomotive engineer's use of a personal cell
phone during a safety-critical time period. Finally, the report cited a
May 2009 accident involving two Massachusetts Bay Transportation
Authority light rail passenger trains (not subject to FRA's
jurisdiction) in Boston, Massachusetts, stemming from the train
operator's use of a phone to send text messages resulting in injuries
to 68 persons.\50\
---------------------------------------------------------------------------
    \48\ Supra, n. 17 at p. 39.
    \49\ National Transportation Safety Board, Collision of Two
Burlington Northern Santa Fe Freight Trains Near Clarendon,Texas May
28, 2002, Railroad Accident Report NTSB/RAR-03/01 (June 3, 2003);
available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0301.pdf.
    \50\ National Transportation Safety Board, Collision of Two
Massachusetts Bay Transportation Authority Light Rail Passenger
Trains, Boston, Massachusetts, May 8, 2009, Railroad Accident Brief
NTSB/RAB-11/06 (Apr. 13, 2011); available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAB1106.pdf.
Though not subject to FRA's jurisdiction, this accident was notable
in that it was caused by a train operator's failure to respond to
signal indication because he was text messaging on a personal
electronic device.
---------------------------------------------------------------------------
[[Page 35719]]
    The NTSB's discussion in the Two Harbors report about the train
crews' prohibited personal cell phone use was in the context of the
value of locomotive recording devices and other technologies as a tool
to deter the unsafe act of the use of personal electronic devices by
train crews.\51\ The NTSB indicated that additional measures were
necessary (such as recording devices and cell phone detectors) to
combat what it described as a ``pervasive safety hazard in the rail
industry; that is, the unauthorized use of [personal electronic devices
(PEDs)] by on-duty crewmembers is too difficult to prevent by rules,
policies, and punitive consequences.'' \52\
---------------------------------------------------------------------------
    \51\ Supra, n. 34 at 23-24.
    \52\ Id. at 24.
---------------------------------------------------------------------------
    In addition to the train accidents described above that involved
the unauthorized use of personal electronic devices, FRA has
investigated several other railroad accidents or violations of Federal
railroad safety regulations related to the unauthorized use of personal
electronic devices by on-duty railroad employees. These incidents
primarily involve the use of personal cell phones.
    Despite Federal prohibitions on the use of personal electronic
devices that have been in place for many years and required training
and testing for all railroad operating employees under Sec. Sec.
220.313-220.315, railroad incidents involving the prohibited use of
personal electronic devices that endanger the lives of the public and
railroad employees continue to occur. Recently, FRA investigated a
troubling incident where a passenger railroad showed FRA a video
recording of one of its locomotive engineers who appeared to be using
his personal cell phone while operating a passenger train occupied by
over 400 passengers. The results of an investigatory subpoena indicate
the engineer appeared to routinely use his personal cell phone in
violation of the prohibitions in 49 CFR part 220 while operating
passenger trains.
    FRA is currently investigating other incidents where personal
electronic device use and train crew distraction may be at issue. FRA
will take enforcement action, if appropriate, to address violations of
Federal regulations governing the use of personal electronic devices
during safety-critical periods of time. However, FRA believes the
proactive use of locomotive recordings to perform operational tests
(i.e., to monitor compliance with Federal regulations and railroad
rules prohibiting the use of personal electronic devices) and
investigate incidents or complaints of noncompliance of which railroads
become aware, will discourage the occurrence of these safety
violations. Railroad operating employees often perform a significant
portion of their duties in the confines of locomotives and/or rail cars
or in remote locations. As noted by NTSB, these locations are often not
in the physical vicinity of, or in locations easily observed by,
railroad supervisors. As such, compliance with Federal regulations and
railroad rules governing the use of electronic devices is difficult to
determine and is often based on an honor system. Inward-facing video
recordings provide railroad supervisors and safety investigators
evidence to determine operating employee compliance with FRA and
railroad prohibitions on the use of distracting personal electronic
devices while operating trains and performing other safety-sensitive
duties. FRA is aware that railroads that have installed in-cab cameras
have detected instances of prohibited use of personal electronic device
use by operating crew members.
B. FRA Responses to NTSB Recommendations R-10-01 & -02 & Current
Position
    As discussed above, after the NTSB's initial locomotive
crewmembers' voice recorder recommendation in response to the 1996
Silver Spring, Maryland accident, FRA declined to require such devices,
noting the significant costs of such a requirement, the existing
availability of locomotive event recorder data, competing regulatory
priorities, and concern regarding the privacy and comfort of train
crews. Nonetheless, FRA's initial responses to the most recent NTSB
Safety Recommendations R-10-01 & -02 on voice and image recorders
generally supported the safety rationale behind the
recommendations.\53\ In its responses, FRA agreed with the NTSB that
these locomotive recording devices could aid in accident investigations
and play a constructive role in risk reduction efforts supported by
both employee representatives and rail carrier management. However, FRA
expressed concern to the NTSB that the use of voice and image
recordings for disciplinary purposes could ``erode morale and offer
manifold opportunities for selective enforcement and possible
retaliation against employees for reasons having nothing to do with
safety.'' \54\ FRA also wished to avoid the potential for unwarranted
publication of private conversations on the locomotive (that might take
place during times when the crew is not actively performing safety-
critical duties), and to guard against further erosion of rail labor
and management relationships.
---------------------------------------------------------------------------
    \53\ National Transportation Safety Board, Safety Recommendation
History for Safety Recommendation R-10-001: available online at:
http://www.ntsb.gov/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-10-001.
    \54\ Id.
---------------------------------------------------------------------------
    Rather than implementing the locomotive recorder recommendations at
that time, which FRA believed could have a negative influence on such
relationships, FRA instead sought to affirm the NTSB's accident
investigation and safety recommendations through other means. Among
numerous on-going railroad safety improvement efforts, FRA formed an
RSAC Electronic Device Distraction Working Group to develop strategies
aimed at curbing the distracting use of electronic devices by railroad
employees and conducted industry outreach in support of that
effort.\55\ The Electronic Device Distraction Working Group included
railroad industry, labor, and Federal government representatives. FRA
also engaged in active efforts to understand critical safety errors
through its Confidential Close Call Reporting System (C3RS) by
undertaking pilot projects with several railroads. The C3RS program is
meant to bring safety problems to the attention of railroads and FRA
before accidents occur.
---------------------------------------------------------------------------
    \55\ https://www.fra.dot.gov/Page/P0565.
---------------------------------------------------------------------------
    However, in recent years, FRA has become increasingly concerned by
human-factor caused railroad accidents, like those described above,
where there is a lack of information to conclusively determine what
caused or contributed to an accident that could help FRA determine
necessary corrective actions before similar train accidents occur. FRA
also has increasing concern because, even after Federal and industry
efforts to prohibit on-duty operating employees' use of distracting
electronic devices following the Chatsworth accident (where a
locomotive engineer who was text messaging caused the deaths of 24
railroad passengers and himself), railroad accidents and safety
violations involving such devices continue to occur. In addition, the
NTSB has stated the use of such devices in the railroad industry seems
to be pervasive.\56\
---------------------------------------------------------------------------
    \56\ Supra, n. 34 at 24.
---------------------------------------------------------------------------
    FRA has concluded the use of inward-facing cameras to combat these
safety violations that endanger public safety is warranted, and the
need to address this
[[Page 35720]]
continuing safety risk outweighs any crew concerns regarding personal
privacy while they operate trains or perform other safety-critical
functions in the cab of a railroad's locomotive. FRA believes the
proactive use of locomotive recordings will be the most valuable tool
available to railroads to deter and detect the prohibited use of
personal electronic devices, which can lead to reportable accidents.
The detection of such safety violations is difficult due to the nature
of train operations, as discussed above. Inward-facing image recordings
will also more easily provide exculpatory evidence for train
crewmembers in post-accident investigations regarding whether the
distracting use of an electronic device or other rules violations were
a causal factor. Therefore, consistent with the FAST Act, FRA is
proposing in this NPRM that inward- and outward-facing recording
devices be installed in the lead locomotives of all intercity passenger
and commuter trains.
    In December 2013, FRA indicated publicly that it would engage the
RSAC in 2014 to initiate a rulemaking on the subject of locomotive
voice and image recording devices, as discussed below, and announced in
May 2015 that it would publish an NPRM addressing the topic. FRA has
informed NTSB of its progress in addressing recommendations R-10-01 & -
02, the referral to the RSAC for consideration, and this rulemaking
proceeding. As of 2015, NTSB classified the recommendations as ``Open-
Acceptable Response'' pending the timely outcome of this rulemaking.
C. Current Use of Recording Devices To Improve Safety & Security in
Rail and Other Modes of Transportation
Aviation
    The use of recording devices to record operator actions in the
transportation industry is not new. Most notably, in 1964, the then
Federal Aviation Agency (now the DOT's FAA) published a final rule
requiring CVRs be installed on aircraft involved in certain commercial
aviation operations.\57\ These recorders are still required by FAA
regulation and are required to record at least the last two hours of
voice communication made by the flight crew, including both the
internal cockpit discussions and any radio or intercom communications.
See, e.g., 14 CFR 25.1457 and 121.359. The CVR (and also the flight
data recorder, which is similar to a locomotive's event recorder in
that it records a voluminous number of operational parameters of the
aircraft) must also be crash, fire, and water resistant per the
requirements in FAA's Technical Standard Order No. 123c.\58\ During the
RSAC Working Group meetings discussed further below, representatives of
both the FAA and a pilot's labor organization gave presentations
regarding the history and use of CVRs in the aviation industry.
---------------------------------------------------------------------------
    \57\ 29 FR 8401 (July 3, 1964).
    \58\ FAA TSC-C123c, Cockpit Voice Recorder Equipment (Dec. 19,
2013); available online at: http://rgl.faa.gov/
Regulatory_and_Guidance_Library/rgTSO.nsf/0/
c464478183dcbdc686257c450067e591/$FILE/TSO-123c.pdf.
---------------------------------------------------------------------------
    The NTSB, which has primary legal responsibility to investigate all
civil aviation accidents in this country, and FAA have both indicated
that the use of CVRs in accident investigations is an indispensable
tool to determine the cause of aviation accidents and prevent future
similar accidents from occurring. Transcripts of cockpit voice
recordings are typically included in NTSB's aviation accident reports,
and shed light on operational discussions and decisions of the flight
crew before an aviation accident.
    When a domestic accident occurs, the NTSB secures the CVR and later
organizes a group to review the audio recordings.\59\ That group
typically includes representative of the FAA, the pilot's labor
organization, and at least one pilot typed or current in the accident
aircraft model.\60\ The group may also typically include other
individuals familiar with the individual crew member's voices, those
familiar with the airline's procedures, and a representative of the
aircraft manufacturer and owner/operator.\61\ Federal law prohibits
NTSB from releasing cockpit voice recordings it obtains during aviation
accident investigations. 49 U.S.C. 1114(c). However, the Board may make
public written transcripts of the recordings, and often does so in its
aviation accident reports. Federal law in 49 U.S.C. 1154 also contains
restrictions on the use of discovery in judicial proceedings to obtain
cockpit voice recordings the NTSB has not yet made public.
---------------------------------------------------------------------------
    \59\ http://www.ntsb.gov/investigations/process/Documents/CVR_Handbook.pdf.
    \60\ National Transportation Safety Board, Cockpit Voice
Recorder Handbook for Aviation Accident Investigations (2014);
available online at: http://www.ntsb.gov/investigations/process/Documents/CVR_Handbook.pdf.
    \61\ Id.
---------------------------------------------------------------------------
    FAA significantly updated its cockpit voice recorder regulations in
a 2008 final rule.\62\ The 2008 rulemaking increased the duration of
time CVRs are required to record a crew's voice communications from 30
minutes to the current two hours, and amended certain technical
requirements governing cockpit voice (and flight data) recorders to
improve the quality of recordings and ensure CVRs and flight data
recorders retain power. The FAA indicated such changes in accordance
with NTSB recommendations were necessary because the limited duration
of cockpit voice recordings and loss of power to both CVRs and flight
recorders had arisen in the investigation of certain high profile
commercial aviation accidents in the last 20 years that are discussed
in that rulemaking's NPRM (70 FR 9752-9754, Feb. 28, 2005) (e.g., the
CVR for Alaska Airlines flight 261 that crashed and killed 88 persons
on January 31, 2000, recorded only 31 minutes of flight crew member
conversations, at the beginning of which the crew had already begun
discussing an existing mechanical problem with the aircraft).\63\
---------------------------------------------------------------------------
    \62\ 73 FR 12542 (Mar. 7, 2008).
    \63\ Id.
---------------------------------------------------------------------------
    While the FAA has long required CVRs and flight data recorders,
NTSB has also recommended that FAA require the installation of image
recording devices in the cockpit of certain commercial aviation
aircraft. The most recent NTSB Safety Recommendations on that topic are
recommendations A-15-7 & -8 to FAA,\64\ recommending that aircraft
operated under 14 CFR parts 121 or 135 that are required to be equipped
with a cockpit voice recorder and a flight data recorder also be retro-
fitted or equipped with a crash-protected cockpit image recording
system. The NTSB's rationale for such recommendation is similar to that
in its recommendations R-10-01 & -02 to FRA discussed above--that image
recordings would provide critical information about crew actions and
cockpit environment (and potentially including aircraft instrument
panel indications and switch positions) before accidents, enhancing the
accident investigation process and the identification of safety issues.
The FAA has issued a Technical Standard Order (TSO-C176(a), effective
Dec. 19, 2013)) governing the minimum performance standards for cockpit
image recorder equipment that is manufactured; however, the FAA does
not require image recorders in airplane cockpits.\65\
---------------------------------------------------------------------------
    \64\ National Transportation Safety Board, Safety
Recommendations A-15-7 & 15-8 (Jan. 22, 2015); available online at:
http://www.ntsb.gov/safety/safety-recs/recletters/a-15-001-008.pdf.
    \65\ http://rgl.faa.gov/Regulatory_and_Guidance_Library/
rgTSO.nsf/0/cb1b17b6950894bf86257c45006dcaea/$FILE/TSO-C176a.pdf.
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Commercial Motor Vehicle/Bus/Transit
    As with the increasing use of cameras in society in general, the
use of
[[Page 35721]]
recording devices in the cabs of truck-tractors, motor coaches, and
school and transit buses is increasing. In-cab cameras (both forward-
and driver-facing) are being used by motor carriers throughout the
trucking and motor coach industries.\66\ For example, Swift
Transportation Company, one of the largest motor carriers in the United
States, announced in April 2015 that it would be equipping over 6,000
of its trucks with Lytx DriveCam systems, which include forward- and
driver-facing cameras.\67\ In addition, the FMCSA has issued exemptions
from its regulations to motor carriers to allow carriers to install in-
cab cameras on a truck's windshield. See, e.g., 80 FR 14231-32, (Mar.
18, 2015); 80 FR 17818 (Apr. 2, 2015). In issuing these exemptions,
FMCSA has stated it ``believes the use of video event recorders by
fleets to deter unsafe driving behavior is likely to improve the
overall level of safety to the motoring public.'' 80 FR at 142332.
FMCSA has stated that motor carriers subject to the exemptions may use
the video event recorders to increase safety through: ``(1)
identification and remediation of risky driving behaviors such as
distracted driving and drowsiness; (2) enhanced monitoring of passenger
behavior for CMVs in passenger service; and (3) enhanced collision
review and analysis.'' Id.
---------------------------------------------------------------------------
    \66\ See e.g., Rip Watson, Truckload Carriers Broaden Efforts to
Recruit, Retain Quality Drivers, Transport Topics, Mar. 16, 2015;
available online at: http://www.lytx.com/uploads/Transport_Topics_Truckload_Carriers_0515.pdf. Cliff Abbott, In-Cab
Dash Cams Included in Newest Wave of Trucking Technology, The
Trucker, Nov. 18, 2014; available online at: https://www.thetrucker.com/News/Stories/2014/11/18/In-cabdashcamsincludedinnewestwaveoftruckingtechnology.aspx. David Z.
Morris, There's Pressure in the Industry to Monitor Truck Drivers-
and Drivers Aren't Happy, Fortune, May 26, 2015; available online
at: http://fortune.com/2015/05/26/driver-facing-truck-cameras/.
    \67\ James Jaillet, Swift, Nation's Third-Largest Fleet,
Implementing Driver-Facing, Forward-Facing Cameras In All Trucks,
Overdrive Magazine, Apr. 24, 2015; available online at: http://www.overdriveonline.com/swift-nations-third-largest-fleet-implementing-driver-facing-forward-facing-cameras-in-all-trucks/.
---------------------------------------------------------------------------
    FMCSA also granted exemptions to motor carriers to support research
on behalf of FMCSA to evaluate camera systems and to allow for data
collection. 77 FR 71028 (Nov. 28, 2012). During RSAC's October 2014
meeting, the Association of American Railroads (AAR) presented copies
of an FMCSA report published in June 2010 to the Working Group
regarding a study conducted by the Virginia Tech Transportation
Institute (VTTI) to evaluate the use of a driving behavior management
system (including driver- and forward-facing image recorders and
accelerometers) to improve commercial motor vehicle safety.\68\ The
report stated the study showed a significant reduction in ``safety-
related events'' such as collisions, near-collisions, risky driving
behaviors, and cell phone use, when trucks were equipped with
monitoring systems and accompanied by supervisor review of events and a
driver feedback program. A more recent VTTI study modeled the potential
reduction in fatal and injury crashes involving large trucks and buses
in this country if a particular event-based video system and driver
behavior modification system were used.\69\ The report stated an on-
board monitoring system involving cameras was used and suggested the
use of this system to improve safe driving behavior could prevent 727
fatal commercial motor vehicle crashes (or 20.5% of the total fatal
crashes estimated in the report) per year.\70\
---------------------------------------------------------------------------
    \68\ Federal Motor Carrier Safety Administration, Evaluating the
Safety Benefits of a Low-Cost Driving Behavior Management System in
Commercial Motor Vehicle Operations, Report No. FMCSA-RRR-10-033
(June 2010).
    \69\ Soccolich, S., and J.S. Hickman. 2014. Potential Reduction
in Large Truck and Bus Traffic Fatalities and Injuries Using LYTX's
DriveCam Program, May 2014. Blacksburg, Virginia: Virginia Tech
Transportation Institute; available online at: http://info.drivecam.com/rs/lytx/images/Lytx-VirginiaTech-Study-LivesSaved-0514.pdf.
    \70\ Id.
---------------------------------------------------------------------------
    In March 2015, the NTSB also issued a report on the use of video
systems onboard commercial motor vehicles.\71\ The report stated the
NTSB had investigated many highway accidents where video systems
recorded information critical to the accident investigation process,
and contained an in-depth discussion of the use and benefits of onboard
video systems during two recent NTSB investigations into accidents
involving buses. The report indicated that on-board video recording
systems, along with a driver feedback program, may provide for long-
term safety benefits. Such systems provide information for evaluating
the circumstances leading up to a crash, as well as data regarding
vehicle dynamics and occupant kinematics during crashes for assessing
crash survivability. The NTSB highlighted how video systems could be
improved, such as by increasing camera coverage of all passenger
seating positions and improving low-light recording capabilities. The
report concluded the use of data collected from video systems on school
buses can serve as the ``foundation for a multidisciplinary approach to
improving transportation safety.'' \72\
---------------------------------------------------------------------------
    \71\ National Transportation Safety Board, Commercial Vehicle
Onboard Video Systems, NTSB Safety Report NTSB/SR-15/01 (Mar. 3,
2015); available online at: http://www.ntsb.gov/safety/safety-studies/Documents/SR1501.pdf.
    \72\ Id.
---------------------------------------------------------------------------
    The NTSB report on the use of video systems onboard commercial
motor vehicles also made various safety-related recommendations to
camera system manufacturers, commercial motor vehicle, school bus,
transit, and motor coach industry members, and to the DOT's National
Highway Traffic Safety Administration (NHTSA). NTSB recommended
industry members utilize onboard video systems that provide visibility
forward of the vehicle, of the vehicle driver, and of each occupant
seating location (with optimized frame rates and capability for low-
light recording).\73\ NTSB recommended that NHTSA incorporate
standardized procedures into its crash database system for collecting
and using pertinent video recordings, injury information and crash data
from video-equipped buses.\74\
---------------------------------------------------------------------------
    \73\ National Transportation Safety Board, Safety Recommendation
H-15-002 (Apr. 29, 3015); available online at: http://ntsb.gov/safety/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=H-15-002.
    \74\ National Transportation Safety Board, Safety Recommendation
H-15-001 (Apr. 29, 2015); available online at: http://www.ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=H-15-001.
---------------------------------------------------------------------------
    Finally, in that report the NTSB also referenced its Safety
Recommendation H-10-010,\75\ which recommends that FMCSA:
---------------------------------------------------------------------------
    \75\ National Transportation Safety Board, Safety Recommendation
H-10-010 (Oct. 21, 2010); available online at: http://www.ntsb.gov/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=H-10-010.
[r]equire all heavy commercial vehicles to be equipped with video
event recorders that capture data in connection with the driver and
the outside environment and roadway in the event of a crash or
sudden deceleration event. The device should create recordings that
are easily accessible for review when conducting efficiency testing
and systemwide performance-monitoring programs.\76\
---------------------------------------------------------------------------
    \76\ Id.
    This recommendation, along with a corresponding recommendation that
FMCSA should require carrier review of video recordings in conjunction
with other performance data to verify safe driver actions,\77\ was made
after a June 2009 accident near Miami, Oklahoma that involved a
fatigued commercial motor vehicle (truck-tractor with semitrailer)
operator which resulted in the deaths of 10 people. FRA notes the
[[Page 35722]]
rationale for these recommendations is similar to that made to FRA in
Safety Recommendations R-10-01 & -02 discussed above, which is to aid
accident investigations and to allow an employer to conduct efficiency
testing via review of recordings to identify potentially unsafe
behaviors or actions and to take corrective action to prevent future
accidents.
---------------------------------------------------------------------------
    \77\ National Transportation Safety Board, Safety Recommendation
H-10-011 (Oct. 21, 2010); available online at: http://www.ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=H-10-011.
---------------------------------------------------------------------------
    Cameras are also widely used on transit buses in this country, both
for security (if the drivers or passengers are the victims of criminal
acts), and to record motor vehicle accidents. The American Public
Transportation Association's (APTA) ``2016 Public Transportation Fact
Book'' \78\ indicates that as of January 2015, approximately 73 percent
of public transportation buses in this country were equipped with
closed-circuit television cameras, up from approximately only 13% in
2001. The transit administrations in virtually every major city in the
United States have installed recording devices on transit buses on some
scale.\79\ During RSAC discussions, APTA representatives indicated that
recordings sometimes provide exculpatory evidence for the vehicle
operator, whether about driver actions operating the vehicle or
interactions with bus riders. In sum, the use of onboard recording
equipment on commercial motor vehicles and buses in this country is
substantial and has rapidly increased in recent years, leading to
safety gains as evidenced by the June 2010 FMCSA report on the VTTI
study.
---------------------------------------------------------------------------
    \78\ American Public Transportation Association, 2016 Public
Transportation Fact Book, 67th Ed., (Feb. 2017); available online
at: https://www.apta.com/resources/statistics/Documents/FactBook/2016-APTA-Fact-Book.pdf.
    \79\ See e.g., Washington DC (http://wmata.com/about_metro/news/PressReleaseDetail.cfm?ReleaseID=4618); Chicago (http://www.transitchicago.com/safety/cameras.aspx#about); New York City
(http://www.mta.info/news/2012/03/27/safety-first-mta-adding-more-onboard-bus-video-surveillance-cameras); Boston (http://www.mbta.com/about_the_mbta/news_events/?id=18423); Los Angeles
(http://thesource.metro.net/2014/06/26/metro-debuts-new-security-video-monitors-on-buses/); Kansas City (http://www.kcata.org/about_kcata/entries/transit_watch); Dallas (https://www.dart.org/news/DARTCNGNABIFactSheet.pdf); and Minneapolis (http://www.metrotransit.org/transit-police).
---------------------------------------------------------------------------
Rail
    The railroad industry has used locomotive-mounted image recording
devices for at least the last two decades. Railroads began installing
outward-facing cameras on a large scale in the 1990s. FRA understands
that railroads have often used forward-facing recordings to defend
themselves in litigation, particularly litigation involving highway-
rail grade crossing and trespasser accidents. FRA does not intend for
this rulemaking to affect that use of locomotive recordings. Locomotive
video recordings have also been used to document track and roadway
conditions, such as washouts, that may lead to, or have led to,
accidents. FRA's Locomotive Engineer Review Board (LERB)/Operating Crew
Review Board (OCRB), which review railroad locomotive engineer and
conductor de-certification decisions upon an engineer's or conductor's
appeal to FRA under 49 CFR parts 240 and 242, have received forward-
facing video recordings (and still-shots of such recordings) as
evidence intended to document events leading up to an event, including
wayside signal indication or the position of a switch. AAR stated
during RSAC Working Group discussions (discussed further in section IV
of the preamble below) that as of March 2014, over 20,000 outward-
facing cameras had been installed on freight and passenger locomotives.
    AAR also told the RSAC Working Group that after the 2008 Chatsworth
accident some railroads began installing inward-facing cameras as
recommended by NTSB. Metrolink installed inward-facing video cameras on
locomotives to implement NTSB's recommendations, for the stated purpose
of enhancing safety and security for the general public and for its
employees and contractors. A Metrolink presentation informed the
Working Group that as of June 2014, it had equipped 57 locomotives and
55 cab cars with ``head end video record'' capabilities, and that the
railroad reviewed the video recordings randomly to test for employee
compliance with rules governing the use of unauthorized electronic
devices, sleeping, and unauthorized persons in the cab of the
locomotive. AAR indicated during Working Group discussions in June
2014, that approximately six railroads had equipped 288 locomotives or
cab cars with inward-facing cameras since 2009.
    Moreover, as mentioned above, after the May 2015 Amtrak accident in
Philadelphia in which eight persons were killed, Amtrak announced that
it would install inward-facing cameras on all of its ACS-64 locomotives
in service on the Northeast Corridor by the end of 2015 (and on
subsequently delivered locomotives).\80\ Further, since the Working
Group discussions concluded in 2015, several passenger and freight
railroads have installed inward- and/or outward-facing recording
devices without a Federal regulation requiring such action. For
example, FRA is aware that the four largest Class I freight railroads
in this country (UP,\81\ BNSF, CSX Transportation, Inc. (CSX), and
Norfolk Southern Railway (NS)) have all either announced they would
begin installing inward-facing cameras, or have already started such
installation. In fact, UP has begun installation on a large-scale
equipping over 2,000 locomotives. In addition, Metro-North and the Long
Island Rail Road, the two busiest commuter railroads (by weekday
ridership) in this country,\82\ have also announced they would begin
installing inward- and outward-facing cameras on their locomotive
fleets.\83\ Long Island Rail Road has even begun the process of
installing cameras on their locomotives. Thus, the number of inward-
facing cameras installed on locomotives has substantially increased
since the Working Group discussions.
---------------------------------------------------------------------------
    \80\ Lori Atani and Michael Laris, Amtrak Will Install Inward-
facing Cameras on Trains, Wash. Post, May 26, 2015; available online
at: https://www.washingtonpost.com/local/trafficandcommuting/amtrak-will-install-inward-facing-cameras-on-trains/2015/05/26/a6d210fa-03b9-11e5-a428-c984eb077d4e_story.html.
    \81\ https://www.up.com/aboutup/community/safety/technology/index.htm.
    \82\ Press Release, Metropolitan Transportation Authority, Long
Island Rail Road and Metro-North Railroad Stay Busiest in Nation
(Apr. 27, 2015); available online at: http://www.mta.info/news-long-island-rail-road-metro-north-railroad-lirr-ridership/2015/04/27/long-island-rail-road-and.
    \83\ Press Release, Metropolitan Transportation Authority,
Metro-North and LIRR To Acquire Video Cameras for Trains (Nov. 17,
2014); available online at: http://www.mta.info/press-release/metro-north/metro-north-and-lirr-acquire-video-cameras-trains.
---------------------------------------------------------------------------
    At the time of the Working Group discussions, a Class I freight
railroad, The Kansas City Southern Railway Company (KCS), gave a
presentation regarding its installation of inward-facing cameras. KCS
was an early adopter of inward-facing image recorder technology in the
freight rail industry. KCS stated its recording devices are active
anytime a locomotive is powered, and that such a policy is advantageous
for: (1) Security purposes (to document trespass, theft, and other
criminal incidents that may not involve railroad employees); and (2)
crew safety, specifically to monitor crew performance to provide
information about crew actions before accidents, to investigate crew
injuries, and to validate a crew cell phone use detection alert. KCS
indicated that the forward-facing cameras on its locomotives are
equipped with microphones, but those audio-recording devices are not
used (the cabling has been removed).
    Clearly, the railroad industry's use of locomotive-mounted
recording devices
[[Page 35723]]
to improve security and railroad safety has rapidly increased. Even
though this NPRM does not require freight railroads to install inward-
and outward-facing recording devices, FRA supports and will continue to
monitor the installation efforts of freight railroads which use this
technology to improve the safety of their operations.
IV. Railroad Safety Advisory Committee Proceedings
    As discussed above, in March 2014, the RSAC formed the Recording
Device Working Group \84\ to consider specific actions regarding the
installation and use of locomotive-mounted audio and image recording
devices. The RSAC voted to adopt Task 14-01, to develop regulatory
recommendations addressing the installation and use of the recording
devices in controlling locomotive cabs. The task statement stated that
any recommendations should address installation requirements and
timelines, technical controls, recording retention periods, retrieval
of recordings, controlled custody of recordings, crashworthiness
standards, use of recordings for accident investigation and railroad
safety study purposes, and use of recordings to conduct operational
tests.
---------------------------------------------------------------------------
    \84\ The Working Group was comprised of members from the
following organizations: AASHTO; Amtrak; ASRSM; APTA; ASLRRA; AAR;
BLET; BMWED; BRS; FAA; FRA; IAMAW; NCFO; NTSB; SMART; and Transport
Canada.
---------------------------------------------------------------------------
    FRA developed Task 14-01 in response to NTSB Safety Recommendations
R-10-01 & -02 and recent railroad accidents. FRA believed it
appropriate to evaluate the adoption of regulations addressing inward-
and outward-facing locomotive recording devices to advance railroad
safety. FRA's intent was to use recordings to: (1) Assist in post-
accident/incident investigations (railroad, highway-rail grade
crossing, and trespasser); (2) assist in evaluating railroad employee
fatigue and distraction, and crew interactions; and (3) add as a
training tool for railroad employees and for conducting operational
tests of railroad employees. The Working Group was to report
recommendations to the full RSAC (or Committee) by April 1, 2015.
    The Working Group held five meetings, three of which were multi-day
meetings. The Working Group did not reach consensus on any aspect of
the task, as FRA reported to the full Committee on May 28, 2015. During
the Working Group discussions, FRA announced it intended to require
inward-facing cameras and requested the Working Group's assistance to
formulate the appropriate details and scope of a potential rulemaking.
FRA presented rule text proposals for the Working Group's
consideration. For various reasons conveyed during Working Group
discussions, labor and industry representatives expressed general
disagreement with FRA's position regarding regulatory requirements for
inward-facing cameras and other locomotive recording devices. The labor
organizations generally opposed any Federal inward-facing camera
installation requirements for crew privacy reasons, and argued that
FRA's efforts to improve railroad safety were better directed toward
other regulatory matters (e.g., fatigue, PTC implementation). Railroads
generally expressed opposition based on lack of perceived need for FRA
to regulate in the area of locomotive recording devices, expressing
concern regarding potential costs and hindrance to the advancement of
recording device technology and uses. Rather than attempting to fully
summarize the respective positions and arguments during the Working
Group process here, FRA defers to labor and industry representatives to
convey their respective positions on this NPRM's specific proposals via
the notice and comment process.
    During the RSAC process, labor and industry representatives on
separate occasions asked FRA to independently pursue a voluntary pilot
program in lieu of any FRA rulemaking proceeding. This pilot program
would have been in addition to existing inward-facing camera usage
across the railroad industry (e.g., Metrolink and KCS, which have
installed inward-facing cameras on a larger scale than other railroads
to date). The purpose of the pilot program would have been to evaluate
the impacts of additional locomotive recording device usage and for
purposes of gathering additional data. The January 2015 Working Group
meetings were canceled so that labor and industry representatives could
meet privately to discuss pilot project details. However, labor and
industry representatives reported to FRA that they were unable to reach
consensus agreement on a voluntary pilot project. At the May 28, 2015
full Committee meeting, FRA informed the Committee that, in the absence
of a Committee recommendation, FRA would initiate a rulemaking
proceeding to require locomotive recording devices based on the need to
implement the safety initiatives.
V. Privacy Concerns
    As discussed above, FRA initially expressed to NTSB it had concerns
about privacy regarding NTSB's recommendations to install locomotive-
mounted audio and image recording devices. The labor organizations also
expressed reservations regarding the installation of locomotive-mounted
recording devices based on privacy concerns during the Working Group
meetings. FRA is addressing the issue of privacy in relation to
locomotive-mounted recording devices in this NPRM. Although this
discussion focuses on privacy considerations for railroad employees,
FRA recognizes that the locomotive recordings might incidentally
capture images of members of the public through the outward-facing
camera or, depending on the configuration of the cab and the passenger
car, the inward-facing camera.
    First, there are no legal impediments preventing the agency from
requiring recording devices to be installed in the locomotive cab when
a train is being operated on the general railroad system of
transportation. As discussed above, the FAST Act mandated FRA
promulgate regulations requiring the installation of inward- and
outward- facing recording devices on lead passenger train locomotives.
Under the proposal rule, passenger railroad employees would be on
notice of the presence of recording devices in a locomotive's cab. For
the reasons described in this preamble, and consistent with relevant
laws (including the FAST Act's mandate), court decisions, and FRA's
statutory authority to regulate all areas of railroad safety, there is
no legal requirement preventing FRA in this rulemaking from requiring
locomotive recording devices on passenger locomotives to adhere to
certain requirements.
    Second, the purpose of image and audio recordings is to deter
conduct that may lead to railroad accidents, to aid in railroad
accident investigations, and to identify action(s) necessary to prevent
accidents in the future. The railroad industry is a highly regulated
industry. Train accidents can have catastrophic consequences for the
safety of the public, railroad passengers, railroad employees and
contractors, and the environment. As such, a large number of Federal
statutes and regulations already govern railroad employees' performance
of safety-related duties when they occupy the cab of a lead locomotive.
    For example, employees who operate trains in this country are
subject to warrantless drug and alcohol testing (both random and for
cause) (49 CFR part 219), operational testing (see 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
[[Page 35724]]
governing the use of personal electronic devices (49 CFR part 220),
among many other requirements. Railroad managers and FRA inspectors can
currently occupy the cabs of locomotives at any time to observe
railroad train crew members and other employees performing their
duties, and listen to crew communications that occur in the cab. In
fact, under existing 49 CFR parts 217, 219, 220, 240, and 242,
railroads are required to make various observations of on-duty train
crewmembers performing their duties. The Supreme Court 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 . . . .''
Skinner v. Railway Labor Executives Association, 489 U.S. 602, 627
(Mar. 21, 1989).
    The cab of a locomotive is also not a location for a railroad
employee's exclusive use. During a tour of duty other railroad
employees, railroad supervisors, FRA inspectors, and other authorized
persons may access the cab of the locomotive while it is occupied by a
train crew and observe the employee's actions and communications. A
train crew member, particularly a member of a road freight crew, might
never occupy the cab of a particular locomotive again after the
completion of a tour of duty. A train crew boards a locomotive to
operate a train during an on-duty period and then alights from the
locomotive. Further, even the general public is able to view train crew
members occupying the locomotive and certain of their actions through
the windows of the locomotive when located near a railroad right-of-way
or a highway-rail grade crossing, or in certain cab control car
configurations in passenger train service. Railroad radio conversations
sent and received from a locomotive cab that may involve train
crewmembers, dispatchers, operators, and railroad managers are already
often recorded by railroads. Further, employee actions in operating
trains that would be affected by this proposed regulation are also
already recorded by locomotive event recorders required by existing
part 229 as discussed below. Therefore, this NPRM proposes that
passenger railroad employees occupying the cabs of locomotives that
would be affected by this proposal have express notice (by way of
required signage) that the locomotives are equipped with recording
devices. FRA also recommends that freight railroads provide similar
express notice (via signage or other methods) to their employees
working on locomotives with recording devices, although the agency is
not proposing to impose such a requirement in this rulemaking.
    Also, as discussed above, the goal of the FAA CVR regulations, in
effect for over 50 years, is the same as FRA's aim here, which is to
investigate and prevent transportation accidents that endanger the
lives of traveling passengers, carrier employees, and the public. 29 FR
8401. Like commercial passenger aviation operations governed by FAA CVR
regulations, FRA's proposed regulation would apply to passenger trains
that transport hundreds of people, often at high speeds.
    In addition, other FRA rulemakings that have raised privacy
considerations have been upheld because of the government's interest in
ensuring public safety. For instance, as touched on above, FRA's
initial regulation requiring warrantless drug and alcohol testing of
railroad employees \85\ was promulgated under FRA's general rail safety
rulemaking authority, challenged in Federal Court, and ultimately
upheld by the Supreme Court in Skinner. FRA promulgated its initial
drug and alcohol testing requirements (49 CFR part 219) based on the
finding that drug and alcohol abuse by covered railroad employees poses
a serious threat to public safety, as evidenced by past accident
investigations. 50 FR at 31516. The majority's decision in Skinner
stated there are ``few activities in our society more personal or
private than the passing of urine,'' and also discussed the extensive
privacy-related concerns on the subject of the contents of one's blood.
489 U.S. at 617. Nevertheless, the Court held that the drug and alcohol
testing FRA's regulations required was ``reasonable'' within the
meaning of the Fourth Amendment of the Constitution. 489 U.S. at 634.
The Court explained that due to:
---------------------------------------------------------------------------
    \85\ 50 FR 31508 (Aug. 2, 1985).
The surpassing safety interests served by toxological tests in this
context, and the diminished expectation of privacy that attaches to
information pertaining to the fitness of the covered employees, we
believe that it is reasonable to conduct such tests in the absence
of a warrant or reasonable suspicion that any particular employee
---------------------------------------------------------------------------
may be impaired.
    Id. FRA believes the safety risks this NPRM seeks to address by
recording an employee's actions while operating a train in the cab of a
locomotive are similar to those discussed in Skinner. However,
recording an employee's actions while operating a locomotive does not
present privacy interests comparable to those relating to the contents
of one's own blood or urine that the Court in Skinner weighed.
Locomotive audio and image recordings merely record the actions of
train crews and environmental and other factors while a train is
operated on behalf of a railroad, which can be observed by the naked
eye by a railroad manager \86\ or FRA inspector aboard a locomotive and
can be recorded by a locomotive's event recorder. In addition, Congress
expressly mandated FRA promulgate regulations requiring the
installation of recording devices for passenger trains under the FAST
Act.
---------------------------------------------------------------------------
    \86\ See Vega-Rodriguez v. Puerto Rico Telephone Co., 110 F.3d
174, 181 (1st Cir. 1997) (upholding employer's installation of
surveillance cameras when the employer notified employees of the
location and field of vision of the cameras: ``[t]he bottom line is
that since PRTC could [lawfully] assign humans to monitor the work
station continuously . . . it could instead carry out that lawful
task by means of unconcealed cameras . . . which record only what
the human eye could observe'').
---------------------------------------------------------------------------
    As previously stated, even in the absence of the current
Congressional action to require locomotive-mounted recording devices
and similar Federal regulatory action, the railroad industry has
installed locomotive-mounted recording devices on its locomotives for
years. FRA is not aware of any successful legal challenges to such
installation. As mentioned above, Metrolink installed in-cab audio and
video recording devices after the 2008 accident in Chatsworth,
California, that prompted NTSB Safety Recommendations R-10-01 & -02.
The BLET challenged Metrolink's installation and use of such cameras in
California State and Federal courts on the basis of privacy,
substantive due process, procedural due process, and preemption
violation claims. Neither court found the installation of such devices
unlawful. In an opinion granting Metrolink's motion for summary
judgement on the pleadings and dismissing all BLET claims, the United
States District Court for the Central District of California stated
that Metrolink's installation of locomotive audio and video recording
devices had several legitimate purposes: (1) As an accident
investigation tool; (2) to improve public safety; and (3) to test
locomotive engineers' compliance with Metrolink's operating rules.\87\
The Los Angeles County California Superior Court similarly granted
Metrolink's motion for summary judgment and entered a declaratory
judgement in
[[Page 35725]]
Metrolink's favor to resolve the BLET-filed lawsuit.\88\
---------------------------------------------------------------------------
    \87\ Bhd. of Locom. Eng. and Trainmen, et al. v. S. Cal. Reg'l
Rail Auth., No. CV 09-8286 PA (JEMx), 2010 WL 2923286 (C.D. Cal.
June 20, 2010).
    \88\ Bhd. of Locom. Engineers v. S. Cal. Reg'l Rail Auth., No.
BC424287 (Super. Ct. L.A. County Cal. June 1, 2011).
---------------------------------------------------------------------------
    KCS also voluntarily began installing inward-facing cameras for
safety- and security-related purposes ahead of most other freight
railroads in this country. KCS filed an accompanying action after the
installation of the cameras requesting a declaratory judgment that any
disputes over the installation of the cameras were ``minor'' disputes
under the Railway Labor Act. The United States District Court for the
Western District of Louisiana ruled in KCS' favor, granting KCS' motion
for summary judgment and finding that installation of the cameras
represented a ``minor'' collective bargaining dispute.\89\
---------------------------------------------------------------------------
    \89\ Kan. City S. Railway Co. v. Bhd. of Locom. Eng. and
Trainmen, No. 5:13-cv-00838-EEF-MLH (W.D. La. Jul. 24, 2013).
---------------------------------------------------------------------------
    FRA has also long required locomotive event recorders record the
operational parameters of the controlling locomotive of a train
traveling over 30 mph. 49 CFR 229.135. The purpose of this requirement
is for accident/incident investigation and prevention and is required
by statute. 49 U.S.C. 20137. FRA explained in its 2005 final rule
updating the locomotive event recorder requirements that event
recorders:
[m]ay indirectly prevent future accidents by allowing for in-depth
accident causation analysis to take place using complete
information, thereby allowing accurate causation determinations, and
the development of appropriate and effective countermeasures.
Because event recorders also allow the railroad to monitor train
handling performance and rules compliance in a widespread and
economical way, FRA believes that event recorders might have the
potential of increasing skillful train handling and encouraging
rules compliance.
70 FR 37930, 37935 (June 30, 2005). FRA's rationale in proposing to
require locomotive-mounted image recording devices on lead passenger
train locomotives (and potentially audio recording devices) here is the
same. An image recording of the train crew in the locomotive
supplements the event recorder requirement by providing railroads and
Federal and State accident investigators information regarding an
engineer's actual manipulation of locomotive controls, and about other
crew actions and environmental and other factors prior to an accident.
Importantly, such recordings, when regularly reviewed by railroads, may
also provide a deterrent to train crews' distracting use of personal
electronic devices, which the NTSB has cited as a cause of several
railroad accidents, including the catastrophic 2008 Metrolink passenger
train accident discussed above. The recordings would provide necessary
evidence to railroad management and FRA to take appropriate corrective
or enforcement actions for these serious violations of FRA regulations
and railroad rules that cause railroad accidents.
    As previously stated, FRA is declining to propose requiring the
installation of inward- and outward-facing recording devices in freight
locomotives. The FAST Act requires FRA to develop regulations that
require inward- and outward-facing image recording devices in all
passenger train lead locomotives; however, there is no corresponding
statutory mandate for freight locomotives. In addition, the cost of
implementing such a requirement for freight locomotives could outweigh
its positive safety benefits. Furthermore, many freight railroads,
including all Class I railroads, are already in the process of
voluntarily installing recording devices in their locomotives without a
Federal requirement. Therefore, FRA is declining to impose a
requirement to install recording devices on freight locomotives at this
time.
    Even though FRA does not believe there are any legal impediments
preventing FRA from promulgating a regulation requiring locomotive
audio and image recording devices, FRA still recognizes the privacy
concerns FRA conveyed to NTSB in FRA's initial responses to Safety
Recommendations R-10-01 & -02, and that railroad uses of recordings,
beyond those enumerated in this NPRM, could violate the law. This
concern is particularly relevant regarding audio recordings of
conversations in the cab of a locomotive. Examples of uses of such
recordings that could violate the law are to retaliate against an
employee based on the contents of in-cab audio recordings in violation
of 49 U.S.C. 20109 (railroad employee whistleblower law) or to
interfere with protected labor activities. The FAST Act, at 49 U.S.C.
20168(i), establishes that a passenger railroad carrier is prohibited
from using in-cab audio or image recordings to retaliate against an
employee. While enforcement of such prohibited retaliation against
employees does not lie with FRA, but rather with other Federal and
State agencies or the courts in private causes of action, FRA believes
passenger railroads should adopt and adhere to policies that strictly
prohibit such potential non-safety related abuses of locomotive
recordings in violation of the FAST Act's prohibition. FRA's proposals
discussed in the section-by-section analysis below were formulated to
fulfill this FAST Act requirement.
    FRA also believes 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. As raised during Working Group discussions, it is
not desirable for railroad employees or their families to have such
images released publicly. For example, Congress provided statutory
protections for a train's audio and image recordings that NTSB takes
possession of during the course of its accident investigations at 49
U.S.C. 1114(d) and 1154(a). When NTSB takes possession of such
locomotive recordings, it is prohibited from releasing the contents of
such recordings (except that transcripts may be released as part of its
accident investigation proceedings).
    During Working Group discussions, participants noted FRA did not
have similar statutory protections for recordings it takes possession
of during investigations, as any records FRA takes possession of during
an investigation may be required to be disclosed under FOIA. However,
49 U.S.C. 20168(h) prohibits FRA from publicly disclosing recordings
that FRA takes possession of after a railroad accident has occurred.
Paragraph (h) is similar to the FOIA exemption for locomotive
recordings given to the NTSB at 49 U.S.C. 1411(d), and 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 FRA is
investigating. 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.
    As explained during Working Group meetings, FRA believes it would
rarely take possession of recordings. For the most-serious accidents,
FRA anticipates the NTSB would take possession of such recordings as
they currently do, but that FRA would have the opportunity to view or
listen to the recordings as a party to the investigation and to conduct
its own parallel investigation. For less serious accidents or incidents
that only FRA investigates, FRA would sometimes proceed as it does now,
by having FRA inspectors view the recordings in the railroad's
possession. In instances where FRA had a legal or evidentiary need to
take physical
[[Page 35726]]
possession of a locomotive recording from a railroad after an accident,
the FAST Act now protects those recordings from public release.
    Concerns regarding a railroad's unauthorized release of locomotive
recordings and the privacy implications of such were also raised during
the Working Group meetings. Currently, in the absence of an accident
where NTSB or FRA has taken possession of a locomotive's recording
devices, a railroad's internal policies govern the handling of
locomotive audio and video recordings. Certain railroad draft policies
were shared with the Working Group during its meetings on the
railroads' procedures governing the chain-of-custody for recordings,
access to the recordings, and release of the recordings. If adhered to,
FRA believed these policies would address concerns regarding the proper
control and handling of locomotive recordings.
    Recognizing the need to ensure railroads appropriately protect
recordings that might implicate privacy-related concerns, FRA has
proposed rule text in Sec.  229.136(f) that requires passenger
railroads to adopt, and comply with, a chain-of-custody procedure
governing the handling and the release of locomotive recordings. The
chain-of-custody procedure must specifically address the preservation
and handling requirements for post-accident/incident recordings that
are provided to the NTSB or FRA during the agencies' accident
investigations. A passenger railroad's failure to comply with its
procedures would be a violation of the Federal railroad safety
regulations if Sec.  229.136(f) is adopted in a final rule in this
rulemaking.
    FRA decided against proposing specific rule text governing chain-
of-custody, handling, and release procedures industry-wide. The
industry has much experience in this area given the significant number
of locomotives that are already equipped with forward-facing cameras
(estimated by AAR at over 20,000) and length of time such locomotives
have been equipped, and, also, now with inward-facing recording
devices. The industry also has much experience in this area with
locomotive event recorders that have long been subject to preservation
and handling requirements after the occurrence of an accident under
existing Sec.  229.135(e). It is therefore more practical and cost-
effective to give railroads the discretion to continue to tailor their
individual procedures appropriately. Given the various types of
locomotive recording equipment that different railroads may choose to
utilize, the various State court evidentiary and chain-of-custody laws
and rules that railroads must comply with when the recordings are used
in litigation for the railroads' own purposes (e.g., highway-rail grade
crossing and trespasser accidents), and the potential cost of requiring
railroads to amend their existing procedures that might already be
appropriate and provide instruction on such new procedures, FRA does
not believe it appropriate to impose specific chain-of-custody and
release procedures in the regulation. Further, FRA's safety interest in
regulating in this area most strongly lies in ensuring recordings are
handled properly post-accident when turned over to NTSB or FRA upon
request, and the proposed regulation's text would expressly require the
railroads' procedures to address that point. However, FRA acknowledges
that some parties have expressed concerns regarding the public release
of image or audio recordings that do not involve a reportable accident.
Thus, FRA seeks comment from interested parties regarding whether the
final rule should include a specific prohibition on the public
disclosure by a railroad or individual of any video or audio recording.
VI. Additional Items for Comment
    FRA is requesting comment on the below significant requirements or
amendments for which it is not proposing specific regulatory text in
this NPRM, but which FRA would consider adopting in a final rule in
this proceeding.
A. Mandatory Installment of Inward- and Outward-Facing Recording
Devices on Freight Locomotives
    As previously stated, FRA is declining to propose a requirement in
this NPRM that freight railroads install and use inward- and outward-
facing recording devices in their locomotives. The FAST Act does not
require that such recording devices be installed in freight
locomotives. Further, the cost to implement such a requirement could
outweigh its safety benefits. FRA estimates that if freight locomotives
were required to have image recording devices, the 10-year cost would
be $154,990,084 (PV, 7 percent), or $168,970,287 (PV, 3 percent).\90\
Finally, many freight railroad, including all Class I railroads, have
already installed or are in the process of installing recording devices
in their locomotives. Therefore, FRA is declining to propose a
requirement to install recording devices on freight locomotives at this
time.
---------------------------------------------------------------------------
    \90\ See Regulatory Impact Analysis pg. 17.
---------------------------------------------------------------------------
    FRA will continue to monitor freight railroads and their efforts to
voluntarily install inward- and outward-facing recording devices, and
also the overall safety records of the freight railroad industry, as it
considers whether a future regulatory requirement is necessary. In the
meantime, FRA welcomes public comment on whether FRA should implement a
requirement that some or all freight railroads equip their locomotives
with inward- and outward-facing recording devices. In addition, FRA
invites comment on the extent to which FRA should apply the proposed
requirements in this NPRM to recording devices that have already been
installed by freight railroads in their locomotives. FRA also seeks
comment on whether FRA should include a specific provision that
prohibits the public release of an image or audio recording by any
railroad or person.
B. Audio Recording Devices
    The FAST Act, at 49 U.S.C. 20168(e)(1), gives FRA discretion to
require audio-recording devices be installed on lead passenger train
locomotives, and to establish corresponding technical details for such
devices. Further, the relevant NTSB recommendations that FRA is
addressing in this NPRM state that in addition to locomotive image
recordings, FRA should also require locomotives be equipped with audio
recording devices. Indeed, the NTSB sent FRA correspondence emphasizing
that to satisfy Recommendations R-10-01 & -02, FRA would need to
include both audio and image recording provisions in this
rulemaking.\91\
---------------------------------------------------------------------------
    \91\ National Transportation Safety Board, Safety Recommendation
History for Safety Recommendation R-10-01; available online at:
http://www.ntsb.gov/safety/safetyrecs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-10-001.
---------------------------------------------------------------------------
    FRA is not proposing to require the installation of locomotive
audio recording devices, but is requesting comment on whether to
require such devices in a final rule. Accordingly, FRA makes clear that
nothing proposed in this NPRM would preclude a railroad from
voluntarily installing audio recording devices in its locomotives. As
conveyed to the NTSB in FRA's initial responses to the NTSB
recommendations regarding audio recording devices, FRA agrees that in
certain accidents, audio recording devices could be useful for
conducting post-accident investigations. However, as mentioned above,
FRA still has
[[Page 35727]]
concerns about audio recordings aboard locomotives made during periods
when no safety-related duties are actively being performed (e.g.,
sitting at a stop signal in a siding). Recordings during such time
periods would likely include personal conversations between employees
and might have much more potential for abuse than do inward-facing
image recordings. Further, FRA is unsure of the added utility of audio
recordings in addition to video recordings when weighed against the
cost, the potential for abuse, and the loss of personal privacy.
    In addition, FRA believes inward-facing image recorders alone may
deter the prohibited use of personal electronic devices more
effectively than audio recorders. In most circumstances, an inward-
facing image recording of appropriate quality will enable railroad
supervisors to observe the physical actions of a train crew as they
operate the train and perform other safety-related duties, including
whether personal electronic devices are being manipulated or handled.
FRA is unsure that audio recorders would significantly improve railroad
efforts to detect such safety violations that are, in part, the impetus
for requiring railroads to regularly review a locomotive's in-cab image
recordings.
    FRA also believes that train operations are different from flight
operations regarding the utility of in-cab audio recordings during a
post-accident investigation. For example, in both the 2008 Chatsworth
Metrolink accident and the 2015 Philadelphia Amtrak accident, the
locomotive engineers operating the trains were the sole occupants of
the locomotive cab. The other train crew members were in the passenger
consist. Thus, for passenger operations, other than radio
communications with other train crewmembers or the train dispatcher
which are often already recorded, there may not be any voice
communications inside the cab to audio record. This is unlike a typical
commercial aviation operation in which multiple crew members occupy the
cockpit of an aircraft during flight and undertake numerous required
crew communications. Similarly, audio recordings inside freight
locomotive cabs, which are typically occupied by multiple crewmembers,
might provide relevant post-accident information more often than for
accidents involving passenger locomotives. However, FRA is not certain
what the utility of such an audio recording requirement might be when
weighed against the potential for abuse of such recordings in other
contexts and the overall costs of such a requirement, and considering
the availability of image recordings, locomotive event recorder data,
and radio recordings.
    In addition, as discussed above, crew radio communications are
often already recorded by railroads as part of their dispatching
systems, and are often reviewed by FRA and NTSB as part of railroad
accident investigations. FRA believes that such recordings are
generally more common (and often include yard operations on Class I and
passenger railroads) and recorded in a higher quality (digital) than in
1996, when NSTB investigated the Silver Spring, Maryland MARC train
accident discussed above and made its initial recommendation to FRA
regarding equipping locomotives with audio recorders.
    As noted, FRA also has concerns about the cost of requiring audio
recording devices on upwards of 4,500 passenger locomotives and
potentially 20,000 freight locomotives. There may be only a small
number of accidents where audio recordings might be beneficial.
Further, the cost to store data in addition to image recordings in a
memory module (with a crashworthy module for passenger locomotives)
might increase the costs of compliance with a final rule. FRA
understands from Working Group discussions and its own research that
the audio recording devices and microphones contained within a
locomotive's image recorders are not costly, 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 conveyed that concern to
NTSB in the past. Because of the noise, additional equipment such as
crew headsets and intercoms with microphones might be needed to record
crew voice communications so the recordings can accurately be
deciphered by railroad managers and accident investigators. This might
also add to the cost of installing such equipment.
    In sum, FRA reiterates that it agrees with NTSB that in some post-
accident investigations audio recordings might be beneficial to help
determine causal factors. However, in light of the concerns discussed
above, FRA is continuing to evaluate whether to require audio recording
devices in this rulemaking. FRA wishes to continue to evaluate the
issue with the benefit of information from public comments submitted in
response to this NPRM. Accordingly, FRA requests comment on the
following specific questions:
     Would the utility that audio recordings might provide in
certain accident investigations, on top of the benefits accruing from
image recordings, outweigh concerns regarding: (1) The cost of
installation of these additional devices; (2) the cost of crashworthy
memory for audio recordings on passenger locomotives; (3) the potential
loss of personal privacy for occupants of a locomotive's cab; and (4)
the potential for abuse of audio recordings reviewed by railroad
supervisors that could occur? Please provide specific information on
the costs (for example, the cost of installation in dollars) in your
comments.
     If in-cab audio recordings are required in a final rule,
should FRA adopt a strict rule that requires such recorders to stop
recording once a train has stopped moving?
     In addition to in-cab recordings, should exterior
recording devices capable of recording sounds such as the locomotive
horn/bell, audible grade crossing warning devices, engine noises,
braking noises, and other sounds that may be relevant during post-
accident investigations also be required? If so, what is the utility of
such recordings when weighed against the potential costs? Please
provide specific information on the costs of installation in dollars in
your comments.
    FRA also requests public comment addressing the appropriate
technical specifications for audio recording equipment if the
installation of audio recording devices is required in a final rule.
Further, if FRA requires locomotive audio recording devices in the
final rule, should FRA restrict the usage of those recordings or
provide additional protections from public release? FRA believes
requiring such devices to be capable of recording voice conversations
conducted at typical audible levels (approximately 60-70 decibels) in
the cab would be appropriate as a general performance standard.
However, FRA requests comment addressing whether headsets with
integrated audio microphones, background noise filters, or other
specialized audio recording equipment would be necessary to reliably
capture such voice conversations based on background noise levels in a
locomotive cab. Such comments should also address appropriate technical
specifications for any such equipment and the cost.
C. Recording Device Run-Time/Shutoff When Trains Stop Moving
    During the RSAC Working Group's discussions, FRA presented proposed
rule text that would have required
[[Page 35728]]
locomotive image and audio recording devices to record for one hour
after a locomotive equipped with such devices had stopped moving. FRA
introduced this proposal intending to recognize the potential safety
value in recording crew actions in the moments immediately after a
train had stopped, for post-accident investigations and other incident
investigations. This proposal also attempted to consider crew privacy
concerns expressed during Working Group discussions over recording
devices continuing to record during long periods of time where no
safety-related duties might be actively performed by a train crew
(e.g., sitting stationary at a stop signal in a siding). As discussed
above, in previously responding to NTSB recommendations on the topic of
recording devices, FRA indicated to NTSB that FRA wished to avoid the
potential for unwarranted publication of private conversations on the
locomotive taking place during non-safety-critical down times that
inevitably occur in railroad operations, and to guard against erosion
of rail labor and management relationships.
    Additionally, during discussions on this topic, representatives of
APTA indicated that certain of its member passenger railroads use
locomotive-mounted and other surveillance cameras aboard rail passenger
equipment for purposes beyond the scope FRA contemplates in this NPRM.
For example, APTA explained that an in-cab or other camera on a
passenger car could be used for purposes of protecting a train operator
or other crewmember by documenting any incidents involving passengers
aboard the train, such as disputes between passengers, assaults on
train crewmembers, fare disputes, and the unauthorized entry into the
cab compartment by a passenger, among other examples. APTA stated these
cameras could help police identify perpetrators of crimes and provide
exculpatory evidence for train crews regarding events that might occur
on a passenger train. These types of events, some of which involve
State criminal law matters, go beyond FRA's safety rationale for this
proposed rule on recording crew actions to prevent railroad accidents.
As such, during RSAC discussions, APTA stated if FRA placed any limits
in a rulemaking proceeding on the operation of recording devices after
a train had stopped, passenger railroads should be exempted. APTA
indicated during Working Group discussions that its passenger railroad
members that would be subject to the requirements of this proposed rule
may prefer to have locomotive-mounted recording devices in operation
any time a train is occupied, regardless of whether a train is moving
or not. While not a passenger railroad, KCS indicated to the Working
Group that its policy is that a locomotive's image recording system is
in operation anytime a locomotive is running.
    The proposed rule text in Sec.  229.136 below is silent on the
issue of a specific recording device run-time after a locomotive has
stopped moving, and is also silent on any shut-off requirements after a
locomotive has stopped moving. Under this proposal, passenger railroads
would have discretion to decide whether locomotive recording devices
would continue to record when a locomotive is not in motion (as long as
the railroad retained the last 12 hours of operation of the locomotive
on a memory module as proposed in Sec.  229.136). FRA is requesting
comment on the appropriate approach to this issue in a final rule. FRA
specifically requests comment regarding the safety benefits of
recordings made when a locomotive is occupied but not moving, and
whether a specific run-time or shutoff requirement in a final rule
would present any technical hurdles for railroads (and, if so, their
cost in dollars). FRA also requests comment addressing the privacy
implications regarding recordings being made during down times where no
safety-related duties might be actively performed by a train crew.
Further, FRA desires comment addressing the potential risks of
overwriting valuable recorded data if an accident occurs in a remote
location and the recording devices continue to record after a train is
stopped. Finally, FRA requests comment on whether passenger railroads
should be exempt from any requirement to stop locomotive-mounted
recording devices from recording when a train is stopped.
VII. Section-by-Section Analysis
Proposed Amendments to 49 CFR Part 217 (Part 217)
Section 217.9 Program of Operational Tests and Inspections;
Recordkeeping
    FRA proposes to amend part 217 to address the use of locomotive
recordings to conduct operational (efficiency) tests in passenger
trains. Part 217 has long required railroads to conduct operational
tests to determine the extent of employee compliance with railroad
operating rules, timetables, and timetable special instructions.
Section 217.9 requires railroads to specify a minimum number of
operational tests per year covering the requirements of subpart F of
part 218, FRA's regulation addressing the most frequently occurring
human-factor caused accidents involving equipment in the foul, shoving
movements, and the handling of switches and derails. Section 217.9 also
requires railroads' operational testing programs place particular
emphasis on other operating rules' violations that are likely to cause
accidents. FRA's regulation governing the use of distracting electronic
devices by on-duty railroad operating employees also addresses
operational testing. Section 220.315 requires railroads' operational
testing programs under part 217 include operational tests addressing
the restrictions on electronic device use in subpart C of part 220. The
overall intent of part 217's operational testing requirement is to
raise awareness of, and ensure compliance with, relevant railroad
operating rules to prevent the occurrence of accidents.
    In that vein, after the 2008 Chatsworth accident where the
locomotive engineer was found to have used a personal electronic device
while operating passenger trains in contravention of Metrolink
operating rules, NTSB Safety Recommendations R-10-01 & -02 recommended
using inward-facing cameras to conduct operational tests to ensure
compliance with rules prohibiting the use of distracting electronic
devices. Due to the nature of railroad operations where train crews
typically lack direct managerial supervision while traveling in the cab
of a locomotive, the NTSB explained a locomotive image recording may be
the only practical method of determining employee compliance with
prohibitions on the use of distracting electronic devices while
operating a train. The NTSB recommended FRA require railroads to
regularly review locomotive recordings to carry out efficiency tests
and system-wide performance monitoring programs, and verify that train
crew actions comply with applicable rules and procedures essential to
safety. In making these recommendations, the NTSB explained that
recordings could help railroad management prevent accidents by
identifying safety issues before they lead to injuries and loss of
life.\92\
---------------------------------------------------------------------------
    \92\ National Transportation Safety Board, Reiteration of Safety
Recommendations R-10-01 & R-10-02 (July 8, 2015); available online
at: http://www.ntsb.gov/safety/safety-recs/recletters/R-10-001-002.pdf.
---------------------------------------------------------------------------
    FRA agrees with NTSB that the use of in-cab recordings to conduct
operational tests is a valuable tool to improve safety, particularly
tests conducted to determine compliance with part 220's restrictions on
the use of personal electronic devices. FRA believes
[[Page 35729]]
passenger railroads subject to the recording device requirements
promulgated in a final rule will utilize inward-facing image and audio
recordings as a method to conduct operational tests. However, FRA has
not proposed requiring passenger railroads to utilize in-cab recordings
to conduct operational tests in this NPRM. This is consistent with
existing part 217, which generally does not mandate the methods
railroads must use to conduct operational tests. Part 217 requires
railroads to adopt a written program of operational tests, and to
conduct operational tests according to that written program. FRA
requests comment on whether in a final rule the agency should require
passenger railroads to utilize the devices' recordings as a method of
performing operational tests.
    FRA is proposing to amend part 217 by establishing minimum
requirements that passenger railroads must comply with if they choose
to utilize locomotive recordings to conduct operational tests. FRA
proposes to amend existing Sec.  217.9(b) by adding a new paragraph
(b)(3), stating that passenger railroads utilizing inward-facing
locomotive image or audio recordings to conduct operational tests and
inspections shall adopt and comply with procedures in their written
program for how such tests are to be conducted. Proposed paragraph
(b)(3) also requires railroads perform such operational tests randomly.
    As discussed during the RSAC process, FRA's intent in proposing
this requirement is to prevent in-cab image or audio recordings from
being used to target employees and to implement Congress' express
requirement in the FAST Act that passenger railroads subject to the
Statute cannot use such recordings to retaliate against employees. 49
U.S.C. 20168(i). The proposed text of paragraph (b)(3) of this section
would require passenger railroads to establish objective, neutral
criteria for how employees subject to an operational test using in-cab
recordings are selected for such a test within a specified time frame,
so that no employee may be selected for a test simply at the railroad's
discretion. FRA understands train crew members and other employees that
might operate locomotives or perform work in locomotive cabs comprise
the group of passenger railroad employees that might be selected to be
operationally tested. This proposal to limit these railroads'
``exercise of discretion'' does not mean a railroad's criteria cannot
limit applicability of operational tests conducted via locomotive
recordings to the specific group of employees operating trains or who
otherwise perform work in locomotive cabs. The language in this
proposal mimics language in FRA's random drug and alcohol testing
regulation at 49 CFR part 219. Overall, FRA believes the procedures for
random selection of employees for drug and alcohol testing procedures
under part 219 have worked well, and passenger railroads could use
those procedures for the random selection of train crewmembers for
operational testing using in-cab recordings.
    Proposed paragraph (b)(3) also requires that any operational test
using passenger in-cab image or audio recordings be performed within 72
hours of the completion of the employee's tour of duty that is the
subject of the test. For example, if a passenger train crewmember who
is the subject of the operational test using in-cab recordings has a
tour of duty that ends at 7:00 p.m. on a Monday, a railroad manager
must perform the operational test (review of the recordings from the
tour of duty that ended at 7:00 p.m. on Monday) no later than 7:00 p.m.
on Thursday. This would mean that any procedures required to be
followed to perform an operational test (e.g., a required debriefing
with the employee who was the subject of the test under a railroad's
program) must be completed within the 72-hour period.
    This proposal is intended to maximize the safety benefit of
operational testing and, again, to implement Congress' mandate that
recordings not be used as a retaliatory tool. Concerns were raised
during the Working Group's discussions that an operational test
performed at a much later date would have limited safety utility
because the employee may not recall the scenario in question, and, in
instances where rules non-compliance was alleged, may not be able to
appropriately respond to and defend against such an allegation.
Ideally, an operational test and the resultant employee feedback would
occur in near real time as many railroads' written programs require
currently. FRA's 72-hour proposal here recognizes it may take time for
a passenger railroad conducting such testing to download and review
relevant recordings, while ensuring any necessary discussions with the
employee being tested occur without undue delay, preferably as soon as
possible. FRA requests comment on this proposed 72-hour time-period
limitation. FRA also wishes to make clear this proposed 72-hour
limitation applies only to conducting operational tests and would not
apply to investigations of railroad accidents/incidents or to
violations of Federal railroad safety laws, regulations, and orders, or
any criminal laws. FRA emphasizes it believes the best utility for the
use of in-cab recordings to conduct operational tests would largely be
to determine operating employees' compliance with railroad operating
rules and practices addressing restrictions on using personal
electronic devices while performing safety-related duties and to deter
noncompliance.
    Proposed paragraph (b)(4) provides FRA may review a passenger
railroad's procedures for conducting such operational tests using in-
cab recordings under paragraph (b)(3), and FRA may disapprove such
procedures for cause stated under existing Sec.  217.9(h). For example,
FRA would utilize such procedures if a passenger railroad's written
program did not have appropriate randomness protocols required by
proposed paragraph (b)(3). Under existing Sec.  217.9(h), a passenger
railroad would then have 35 days to either amend and re-submit its
written program, or to provide a written response in support of its
program, after which FRA would inform the railroad of FRA's final
decision in writing.
Proposed Amendments to 49 CFR Part 218 (Part 218)
Section 218.53 Scope and Definitions
    FRA is proposing to amend existing part 218 to deem any locomotive-
mounted image or audio recording device or equipment installed in a
passenger train as a ``safety device.'' Existing part 218, subpart D
prohibits individuals from tampering with a ``safety device,'' and
defines that term to mean ``any locomotive-mounted equipment that is
used either to assure that the locomotive operator is alert, not
physically incapacitated, aware of and complying with the indications
of a signal system or other operational control system or to record
data concerning the operation of that locomotive or the train it is
powering.'' 49 CFR 218.53(c). FRA announced it intended to treat
recording devices as ``safety devices'' during Working Group
discussions.
    FRA also proposes to amend existing Sec.  218.53(c) by correcting
the reference to appendix B in the existing definition of ``safety
device'' because FRA's statement of agency policy regarding safety
devices is actually located in appendix C to part 218. This proposal
would merely correct this existing reference. Tampering with safety
devices, or knowingly operating (or permitting to be operated) a
passenger train with a disabled safety device
[[Page 35730]]
constitutes an event for which a passenger locomotive engineer's or
conductor's certification must be revoked under existing parts 240 and
242. Thus, under this proposal, a locomotive engineer or conductor of a
commuter or intercity passenger train found to have tampered with an
in-cab image or audio recording device under Sec. Sec.  218.55 or
218.57 shall have his or her certification revoked.
    FRA is also proposing to add a new paragraph (d) to Sec.  218.53
that makes clear the requirements in Sec. Sec.  218.59 through 218.61
do not apply to such recording devices voluntarily installed on freight
locomotives. Because these devices are voluntarily installed by the
freight railroad, the railroad can operate a lead locomotive without
such functioning recording devices.
    As discussed during Working Group meetings, in 2010 FRA responded
to a letter from Metrolink regarding whether FRA considered an inward-
facing camera on a Metrolink locomotive to be a ``safety device'' under
part 218. In its May 18, 2010, response, which FRA has added to the
public docket for this rulemaking, FRA explained to Metrolink that it
did not consider such cameras to be safety devices under part 218.\93\
At that time, railroads were not utilizing inward-facing image
recording devices on a large scale, FRA did not believe it necessary to
require installation of such devices, and FRA had not contemplated
using cameras as ``safety devices'' when formulating the tampering
restrictions in existing part 218. However, through this rulemaking's
notice and comment process, FRA is proposing to amend its position on
the treatment of in-cab audio and image recording devices on passenger
locomotives as safety devices. First, installation of such devices
would now be required by Federal regulation, as mandated by Congress in
the FAST Act. In addition, the use of such recording devices as a post-
accident investigation and safety tool has evolved rapidly in the
industry since 2010, even without Federal regulatory action.
---------------------------------------------------------------------------
    \93\ See NPRM docket; Mark H. Tessler letter to Metrolink,
Locomotive video cameras, (May 18, 2010).
---------------------------------------------------------------------------
    Passenger locomotive image and audio recording devices are like
locomotive event recorders, which are required by Sec.  229.135 in the
lead locomotives of trains traveling more than 30 mph, and which have
also long been considered safety devices by existing part 218.
Locomotive event recorders record specified parameters regarding
operation of a locomotive's controls, allowing for in-depth post-
accident causation analysis and determinations, as well as allowing
railroads to monitor locomotive engineers' train handling performance
and rules compliance. However, as NTSB conveyed, locomotive event
recorders cannot answer questions about a train crew's knowledge or
actions during accident investigations where such information is
lacking, such as for the Amtrak locomotive engineer's actions before
the May 2015 accident at Frankford Junction in Philadelphia discussed
above.
    The discussion in existing appendix C explains that part 218's
language is expansive enough to cover safety devices that may appear in
the future. Appendix C also explains that FRA may add certain safety
devices not previously considered within the scope of part 218's
tampering restrictions, should instances of tampering with such devices
be discovered. FRA has recently investigated incidents where it appears
that the locomotive engineer has willfully tampered with a locomotive's
inward-facing camera system. The engineer was operating a freight train
with a foreign railroad's locomotive in the lead. The engineer was
recorded covering inward-facing cameras on the locomotive, but was
apparently unaware of another camera mounted on the ceiling of the
engine near the back wall of the cab. That camera recorded him
appearing to play a video game on a personal electronic device while
operating the moving freight train. The railroad that owns the
locomotive discovered this apparent violation of 49 CFR part 220 during
a random review of the recording system's footage and provided that
recording to FRA.
    FRA believes image recording systems and an accompanying
prohibition on tampering with such systems in passenger locomotives
(and the accompanying consequences for tampering violations) will act
as a deterrent to prevent instances of tampering and unsafe behaviors
that the cameras would otherwise record. In the example above, the
locomotive engineer clearly modified his behavior to avoid being
detected by the locomotive's image recording system. Under the proposal
here, even covering the locomotive's camera would be a violation that
would result in loss of the locomotive engineer's certification. FRA
believes the proposed amendments to part 218 would deter a locomotive
engineer from covering the locomotive's cameras, and from subsequently
using a personal electronic device while operating a moving train. Such
a deterrent would directly improve passenger train safety.
    In-cab image and audio recording devices will supplement the
information recorded by a locomotive event recorder, and in certain
accident investigations, may answer questions regarding operator
actions (or lack of action) before a railroad accident. FRA believes
passenger locomotive in-cab recording devices are valuable railroad
safety and operational monitoring devices that should be treated as
safety devices prohibited from being willfully tampered with by 49
U.S.C. 20138 and that statute's implementing regulation at part 218,
subpart D. In sum, a recording device that is tampered with loses its
utility as a safety tool, and as a post-accident investigation tool
that might record information that could be used to prevent future
railroad accidents. Therefore, FRA believes it is reasonable to treat
image and audio recording systems on passenger trains as ``safety
devices.''
Section 218.61 Authority To Deactivate Safety Devices
    FRA is proposing to revise Sec.  218.61(c) to clarify that
locomotive image recording devices on passenger locomotives can only be
deactivated under the proposed requirements of 49 CFR 229.136. FRA is
also proposing to add language to paragraph (c) to clarify that freight
railroads that install inward- and outward facing image recording
devices do not have to follow the requirements of 49 CFR 229.136 to
deactivate their safety devices.
Appendix C to Part 218 Statement of Agency Enforcement Policy on
Tampering
    For the reasons discussed directly above, FRA is proposing to amend
existing part 218, appendix C by adding ``passenger locomotive-mounted
image and audio recording equipment'' to the list of safety devices
described in the fourth paragraph of that appendix. Such equipment
would include recording devices, any memory modules used to store
recording data, or any of these devices' electronic connections or
other appurtenances on railroad carriers that provide regularly
scheduled intercity or commuter rail passenger transportation. FRA
proposes to expressly include these recording devices in the list of
safety devices prohibited from being tampered with under part 218,
subpart D. This proposed amendment to part 218 would apply to all
passenger locomotive image and audio recording systems, regardless of
whether a final rule requires installation of such a system on a
particular passenger locomotive. Thus, even if a railroad voluntarily
chooses to install an image or audio recording
[[Page 35731]]
system on a passenger locomotive, part 218 would still prohibit
tampering with such a system.
Proposed Amendments to 49 CFR Part 229 (Part 229)
Section 229.5 Definitions
    FRA is proposing to amend the existing definition in this section
of the term ``event recorder memory module'' to include the portion of
an event recorder memory module (or a separate memory module) used to
record any data from a locomotive's in-cab image or audio recording
devices. This proposed FRA regulation implements the FAST Act
requirement that inward- and outward-facing image recording devices on
lead passenger locomotives have crash and fire protections for any
recordings stored only within a controlling locomotive cab or cab car
operating compartment. 49 U.S.C. 20168(b). As explained in the analysis
for Sec.  229.136 below, FRA is proposing that the existing
crashworthiness requirements for locomotive event recorder memory
modules in part 229, appendix D apply to passenger locomotive in-cab
image or audio recording devices. Thus, FRA would add recordings made
by passenger locomotive in-cab image or audio recording devices to the
existing definition of ``event recorder memory module'' in this
section. The crashworthiness requirements for such recordings would
apply to recordings made on lead passenger locomotives, and could also
be used by freight railroads in their locomotives but are not required
by this NPRM.
    FRA is also proposing to amend this section to add a definition for
the new term ``image recording system.'' This new term would encompass
all equipment that is part of the system for making and retaining the
image recordings proposed in Sec.  229.136. This term would include
cameras or other electronic devices that capture images and any
equipment that converts those images into usable electronic data
(capable of being viewed as a video) transmitted to, and stored on, the
recording system's memory module. A memory module on which image
recording data is stored is considered to be part of the image
recording system.
    FRA is also proposing to amend this section to add a definition for
the new term ``NTSB.'' This new term is the acronym for the National
Transportation Safety Board, which is an independent U.S. government
investigative agency responsible for civil transportation accident
investigation. FRA is defining the proposed term as a shorter form of
its longer name: The National Transportation Safety Board. FRA is
inserting this term, so FRA can use the shorter form of ``NTSB'' in the
regulation.
    Finally, FRA is proposing to amend this section to add a definition
for the new term ``recording device.'' This new term would generically
describe inward- and outward-facing image recording devices and any in-
cab audio recording devices on a passenger locomotive. Any in-cab audio
recording devices that are installed on a passenger locomotive,
irrespective of whether such devices are required by a final rule,
would be subject to the preservation requirements proposed in Sec.
229.136.
Section 229.136 Locomotive Image and Audio Recording Devices
    FRA proposes to amend part 229 by adding a new Sec.  229.136. This
new section would establish installation and technical requirements for
inward- and outward-facing recording devices on lead passenger
locomotives. This proposed section also would explain the preservation
and handling requirements for any recordings such devices make, and the
permitted uses of such recordings. As mentioned in the preamble above,
FRA proposes to apply the requirements in this section to lead
locomotives in trains operated in intercity passenger or commuter
service only. The terms ``lead locomotive,'' ``locomotive,'' ``control
cab locomotive,'' ``DMU locomotive,'' and ``MU locomotive'' would
remain as defined in existing Sec.  229.5.
    The FAST Act mandated installation of recording devices only on
lead passenger locomotives. FRA is not proposing to require inward- and
outward-facing recording devices to be installed in freight locomotives
at this time for a variety of reasons that FRA has previously stated in
this NPRM. Foremost, the FAST Act requires FRA to promulgate
regulations that require all commuter and intercity passenger railroads
to install inward- and outward-facing image recording devices in all of
their lead locomotives; however, there is no corresponding statutory
mandate for freight railroads or their locomotives. In addition, the
cost to freight railroads of such a requirement could outweigh its
positive safety benefits, which are presented earlier in this NPRM.
Finally, many freight railroads, including virtually all Class I
railroads, have already begun the process of installing locomotive
recording devices in their locomotives. Therefore, FRA is declining to
propose requiring recording devices on freight locomotives at this
time.
    Proposed paragraph (a) of this section would require image
recordings be made ahead of the ``F'' end of the lead locomotive
(outward-facing) and inside the cab of the lead locomotive (inward-
facing) on any train in commuter or intercity passenger service within
four years after the date a final rule is published. The rule would
require inward-facing recordings to be made on such a passenger train's
controlling locomotive if the lead locomotive is not the controlling
locomotive. The proposed rule text for this section would also require
that if any passenger locomotive is equipped with the required image
recording system, the system must be operating and recording when the
train is in motion, regardless of the train's speed. For example, a
lead passenger locomotive equipped with image-recording devices under
this proposed paragraph must have any image recording devices turned on
and recording the entire time the train is in motion. This proposal is
intended to maximize the safety benefit for lead passenger locomotives
equipped with image recording devices, and ensure such devices are
always operative at any point. Freight railroad that have voluntarily
installed locomotive recording devices do not need to adhere to this
requirement. However, FRA believes such a practice may be beneficial to
freight railroads that have such devices installed on their lead
locomotives. FRA is requesting comment above on whether a final rule
should also address recording requirements when trains are stopped.
    FRA has used the terminology ``commuter or intercity passenger
service'' in proposed paragraph (a) and uses similar language
throughout this section to mean the same thing as the terms ``intercity
rail passenger or commuter rail passenger transportation'' in the
Statute. This language is consistent with existing regulatory language
in part 229, specifically Sec.  229.125(h), to describe this service.
    FRA clarifies here that the proposals in this NPRM do not apply to
any image recorders or any other recording devices that are not mounted
in a locomotive (or control compartment of a control cab locomotive)
for purposes of recording train crew actions or events occurring ahead
of a train's movement (outward-facing camera). Thus, the NPRM proposals
would not apply to (or require installation of) any recording devices
within the body of a passenger car, mounted on poles in railroad yards,
or located on or near roadway facilities, stations, or any other
railroad property.
    Proposed paragraph (a)(2) contains the phase-in requirements for
the
[[Page 35732]]
installation of image recording systems. An affected lead passenger
locomotive must be equipped with an image recording device system no
later than four years after the date a final rule is published.
However, FRA proposes to require any image recording systems installed
on a lead passenger locomotive more than one year after the date of
publication of a final rule comply with the requirements of this
section. FRA believes this proposal would help achieve prompt
implementation of a final rule's image recording system requirements,
while providing a reasonable timeframe to allow passenger railroads to
develop, obtain, and install appropriate image recording systems
(within four years of the date of publication of a final rule). As
discussed above, many passenger railroads have already installed
recording systems at their own discretion. However, some of those
systems may not fully comply with the requirements of this proposed
section. To avoid imposing unnecessary costs on industry and to avoid
penalizing early adopters of camera technology being used for safety
purposes, FRA included the proposed four-year deadline. FRA considered
the potential economic and technical burdens involved with researching,
acquiring, and installing image recording systems (and developing and
implementing relevant image recording system procedures), when
formulating this proposed installation timeline. FRA requests comment
regarding the appropriateness of the implementation dates proposed in
this section.
    FRA proposes in paragraph (a)(3) of this section that passenger
railroads must provide notice to crewmembers that they are in a
locomotive equipped with recorders via a notation on the Form FRA
F6180-49A. This proposal is intended to alert crewmembers that there is
no expectation of privacy in the cab of the locomotives while
performing duties for the railroad. FRA notes that this proposal would
also require notice if a passenger locomotive is equipped with any
audio recording devices, even if audio recording devices are not
required in a final rule but a railroad has chosen to equip a
locomotive with such devices. This proposed regulation would not apply
to freight railroads that have voluntarily installed visual or audio
recording devices in their locomotives. However, FRA encourages freight
railroads to provide notice to their crewmember that recording devices
are present.
    Paragraph (a)(4) proposes that the image recording system shall
record at least the most recent 12 hours of operation of a lead
locomotive in commuter or intercity service. This proposal would also
apply to any audio recordings if a passenger railroad installs audio
recording devices on a lead locomotive. The FAST Act requires a lead
passenger train locomotive's image recording systems to have a minimum
12-hour continuous recording capability. This 12-hour minimum recording
proposal is also consistent with NTSB Safety Recommendation R-10-01
discussed above. A 12-hour recording period would, in many instances,
capture a train crew's entire tour during the time they perform duties
under the hours of service laws. NTSB has indicated that crew ``actions
or inactions at any time during that period could set the stage for an
accident.'' \94\
---------------------------------------------------------------------------
    \94\ National Transportation Safety Board, Reiteration of Safety
Recommendations R-10-01 & R-10-02 (July 8, 2015); available online
at: http://www.ntsb.gov/safety/safety-recs/recletters/R-10-001-002.pdf.
---------------------------------------------------------------------------
    Paragraph (a)(5) proposes that locomotive recording device data
(including audio recorder data if installed) on lead locomotives in
commuter or intercity passenger service be recorded on a memory module
meeting the requirements for a certified crashworthy event recorder
memory module described in part 229, appendix D. Appendix D establishes
the general requirements for memory modules certified by their
manufacturers as crashworthy, and contains performance criteria for
survivability from fire, impact shock, crush, fluid immersion, and
hydrostatic pressure. The FAST Act requires passenger locomotive image
recording devices have crash and fire protections for any in-cab image
recordings stored only within a controlling locomotive cab or cab car
operating compartment. Further, NTSB Safety Recommendation R-10-01 also
recommended FRA require railroads to install crash- and fire-protected
inward- and outward-facing audio and image recorders. FRA is not
proposing to require passenger railroads to use a locomotive's existing
crashworthy memory module to also store image and audio recordings,
although that is an option under this proposal. Railroads may use a
memory module to store image and audio recordings separate from that
storing event recorder data meeting the requirements of appendix D.
    The railroad industry has much experience with the standards in
appendix D, and collaboratively created these standards via RSAC
recommendations. 70 FR 37920 (June 30, 2005). In sum, FRA believes its
proposed paragraph (a)(5) with respect to passenger railroads would
fulfill the FAST Act's recording and crash and fire protection
requirements and the NTSB's technical recommendations on image
recording devices in Safety Recommendation R-10-01.
    FRA is not proposing memory module requirements for freight
railroads that have or are planning to voluntarily install inward- and
outward-facing recording devices on their locomotives. However, FRA
recommends that if the railroad choses to use a memory module, it
should mount the module in such a way as to provide the module with
maximum protection.
    In addition, eventually locomotive recording device data may
primarily be recorded on standard crashworthy memory module equipment
associated with required PTC systems, and the future costs of equipping
passenger locomotives with crashworthy memory modules might be
overstated by this NPRM's Regulatory Impact Analysis (RIA). The lead
locomotive of a train equipped and operating with a PTC system under 49
CFR part 236 must have a locomotive event recorder that records train
control data, including specific PTC system data. 49 CFR 236.1005(d).
The PTC event recorders for locomotives manufactured after October 1,
2009, must be crashworthy. Such PTC event recorders may also eventually
include the functionality to record image and audio recording device
data. FRA is aware of crashworthy PTC event recorder products already
under development that include image recording memory functions.\95\ A
single crashworthy event recorder memory module that fulfills the
existing locomotive safety requirements of part 229, the PTC
requirements of part 236, and any future image recording device
requirements adopted in this rulemaking, may make economic and
logistical sense for railroads to acquire and install on affected
locomotives. In the future, railroads may voluntarily install such a
new, single, crashworthy PTC memory module that fulfills multiple
railroad safety regulatory requirements on locomotives.
    FRA seeks comments on the proposed crashworthy memory retention
requirements for passenger locomotive recording devices discussed
above. FRA is specifically interested in making the final rule
appropriately performance-based and cost-effective. FRA believes it has
proposed a cost-effective method of meeting the FAST Act's
crashworthiness mandate for passenger train locomotive recording
devices while attempting to minimize potential regulatory costs, but is
interested in comments addressing potential
[[Page 35733]]
alternatives to meet an appropriate crashworthiness level to protect
stored locomotive image recording system data.
    Next, proposed paragraph (b) of this section would establish the
requirements for the outward-facing image recording functional
capabilities on passenger trains. FRA's proposal would explain what
must be captured by outward-facing image recording devices that are
installed on passenger trains, but leaves it to a railroad's discretion
to decide what equipment it will use to fulfill the proposed
requirements (with one exception discussed below). FRA has proposed
general functional requirements instead of equipment specifications to
accommodate the development of future technologies capable of
fulfilling the outward-facing image recorder requirements. The proposed
requirements of paragraph (b) apply only to outward-facing image
recorders installed on lead passenger train locomotives. Freight
railroads may choose to follow these proposed requirements for outward-
facing recording devices if they chose to install such devices on their
locomotives. However, the proposal would not require they do so.
    The proposed outward-facing image recording device requirements for
lead passenger train locomotives are intended to fulfill the safety-
related investigation purposes of recording: (1) Events leading up to a
train collision; (2) highway-rail grade crossing or trespasser
accidents, including motor vehicle operator actions leading up to such
accidents and the functioning of any visible active grade crossing
warning devices; (3) wayside signal indications; (4) visible condition
of structures and track (e.g., position of switch points, broken rails
where visible, bridge conditions, washouts, etc.) that an equipped
locomotive approaches and travels over; and (5) any other events
relevant to a collision or derailment. FRA developed the proposed text
of paragraph (b) with the goal of requiring outward-facing image
recording devices on passenger trains to capture images to provide more
information to help the safety-related investigations of the above-
listed events.
    First, proposed paragraph (b) requires the recording system on
passenger trains to include an image recording device aligned to point
parallel to the centerline of tangent track on which the lead
locomotive is traveling. FRA has specified that the recordings made
would have to be able to distinguish different wayside signal aspects.
FRA believes this feature of outward-facing image recordings would be
critical in post-accident investigations, as most of the accidents
described above for which the NTSB made image recording device
recommendations involved whether signal systems were properly
functioning, properly displayed, and complied with by train crews.
    Second, proposed paragraph (b) would require outward-facing image
recording devices on lead passenger train locomotives to be able to
function in both day and lowlight/nighttime conditions with
illumination from the equipped locomotive's headlight. FRA also
proposes that outward-facing image recording devices on such passenger
locomotives record at a minimum recording rate of 15 frames per second
(fps) (or its equivalent). FRA chose to propose this minimum recording
rate threshold to allow for more memory module storage savings than
costlier higher-speed or even continuous-action recording (generally
considered to be about 23 fps). Industry raised concerns about the cost
of obtaining crashworthy memory modules that could retain 12-hours of
higher speed and/or higher resolution image recordings during the
Working Group meetings. FRA believes a minimum 15 fps requirement will
provide accident investigators and railroads a sufficient image
recording to analyze the events leading up to a grade crossing
collision or other collisions, while balancing the industry's stated
cost concern. For example, in \1/15\ of a second a car travelling at 45
miles per hour will move approximately 4.4 feet between frames. FRA
believes recordings at 15 fps are adequate to fulfill the safety-
related investigatory purposes for such recordings listed above, and
notes this standard is the same frame rate speed used in certain widely
available motor vehicle dashboard camera systems. In this section, to
ensure accident investigators can coordinate various sources of
information gathered during a railroad accident investigation, FRA also
proposes to require an accurate time and date stamp be on outward-
facing image recordings.
    Next, the FAST Act establishes that a railroad is not required to
cease or restrict operations upon a technical failure of an inward- or
outward-facing image recording device, but that such device shall be
repaired or replaced ``as soon as practicable.'' 49 U.S.C. 20168(j). In
proposed paragraph (b), FRA has specified that ``as soon as
practicable'' would mean that if a passenger train's lead locomotive's
outward-facing image recording system fails, it could not be used as a
passenger train's lead locomotive after the next calendar day's
inspection of the locomotive required by Sec.  229.21 unless a railroad
has first replaced or repaired the recording system. FRA notes it would
not consider the en route image recording device failure on a passenger
train's lead locomotive to be a violation under existing part 218,
subpart D (for operating a controlling locomotive of a train with a
disabled safety device) if the locomotive was not used as a passenger
train's lead locomotive after the next calendar day's inspection as
proposed. This proposal mirrors FRA's treatment of event recorders that
fail en route under Sec.  229.135. FRA believes that an image recording
device that fails en route on a passenger train's lead locomotive
should be treated in the same manner as an event recorder; however, FRA
is requesting comments on the burden to passenger railroads of
requiring such a defective image recording device to be repaired or
replaced at the next calendar day inspection.
    Proposed paragraph (c) of this section would establish functional
requirements for the inward-facing image recording device on passenger
train lead locomotives. The requirements in this proposed paragraph do
not apply to inward-facing image recorders installed on freight trains.
Freight railroads may choose to follow these proposed requirements for
inward-facing recording devices if they chose to install such devices
on their locomotives. However, the proposal would not require they do
so.
    FRA's proposal does not specify the number of inward-facing
recording devices that would be required in a passenger train's lead
locomotive, but rather proposes that an installed device must provide
complete coverage of all areas of the controlling 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 would include image recording coverage
of extra permanent seats in the cab and any jump seats. Although this
NPRM does not require multiple inward-facing recording devices in a
lead locomotive, FRA makes clear that nothing proposed in this NPRM
would preclude a railroad from installing multiple image recording
devices in each of its locomotive cabs; however, the NPRM's RIA assumes
that only one inward-facing camera in the locomotive would be necessary
to satisfy the proposed requirements of this section.
    FRA proposes that a recording device be equipped with sufficient
resolution to record train crew actions, including
[[Page 35734]]
whether a train crew member is physically incapacitated or is not
complying with signal system or other operational control system
indications. FRA's intent is not to have image recording devices
focused on the faces of the individuals in the cab, but rather to
require sufficient clarity so that, over a period of operation, the
actions of the cab occupants can be monitored.
    FRA's intends that an inward-facing image recording device on
passenger train lead locomotives would have sufficient clarity and
resolution to show whether occupants of the cab are using or
manipulating small hand-held personal electronic devices such as cell
phones. FRA is not proposing to require the image recording devices to
be capable of showing what was displayed on the screen of such a hand-
held device, but simply whether the device was turned on and whether a
person was using the device. As discussed above, FRA believes one of
the best proactive safety uses of an inward-facing camera system is to
conduct operational tests to ensure operating employees' compliance
with the restrictions on the use of personal electronic devices under
part 220, subpart C.
    Inward-facing image recorders would also likely be capable of
allowing viewers to identify signs of obvious fatigue, such as motions
of the head or body that may indicate obvious fatigue or whether a cab
occupant appears to be asleep. For example, constant head nodding or
dozing of a locomotive engineer, as well as the engineer slumped over
asleep, would be signs of obvious fatigue.
    As discussed at length during the RSAC Working Group Meetings,
fatigue is an ongoing issue in the railroad industry and is often a
relevant causal factor that is considered during post-accident
investigations. While FRA has a number of efforts underway to address
the problem of fatigue in the industry, the inward-facing image
recording device requirement would assist accident investigators in
making more accurate fatigue-related determinations, with the ultimate
aim of taking actions to prevent future accidents caused by fatigue.
    Although FRA understands that camera systems are under development
that will permit evaluating a crewmember's alertness based on patterns
of eye blinks, it is not FRA's intent to require installation of such a
system for passenger locomotives. FRA believes the proposed
requirements in this paragraph can be met by the inward-facing
recording device recording images at a rate as few as 5 fps (or its
equivalent), because motion in the cab occurs at a much lower rate than
in front of the lead locomotive. For example, APTA's recommended
practice for the selection of recording systems for use in transit-
related closed circuit television recording systems \96\ specifies that
5 fps is the minimum recommended frame rate for use in low-traffic
areas or areas where only walking-pace motion is likely (such as
passenger areas). FRA has also proposed in paragraph (c) that the
inward-facing image recording system for passenger train lead
locomotives be able to record the desired actions using the ambient
light in the cab. And, if ambient light levels drop too low for normal
operation, the image recorders(s) should automatically switch to
infrared or another operating mode that gives the recording sufficient
clarity to comply with this rule's requirements. FRA has specified
using infrared technology to give sufficient image recordings in low-
light or nighttime conditions in the proposed rule text. Feedback from
the industry indicates that infrared systems work well to provide
sufficient image recording clarity in low-light conditions and does not
interfere with a crew's ability to see, especially out the locomotive's
windows. KCS' presentation to the Working Group indicted that its
infrared camera devices emit a barely distinguishable glow in the cab
of the locomotive. Infrared image recording devices are also widely
available and relatively inexpensive to purchase. FRA has also
referenced ``another operating mode'' to capture using other sufficient
low-light image recording capability technologies that exist or may
arise. FRA seeks comments on whether any other technology exists or is
under development that may accomplish the same purpose as infrared
technology use with image recording devices in low-light situations.
FRA reminds railroads that any infrared or other lighting operation in
low light conditions should not interfere with a crew's vision (see 49
CFR 229.127(a)), and that the placement of the image recording devices
should not obstruct a crew's view of the right-of-way from its normal
positions in the cab (49 CFR 229.119(b)).
---------------------------------------------------------------------------
    \96\ American Public Transportation Association Standards
Development Program Recommended Practice, Selection of Cameras,
Digital Recording Systems, Digital High-Speed Networks and
Trainlines for Use in Transit-Related CCTV Systems, APTA IT-CCTV-RP-
001-11 (June 2011); available online at: http://www.apta.com/resources/standards/Documents/APTA-IT-CCTV-RP-001-11.pdf.
---------------------------------------------------------------------------
    Similar to the discussion above for outward-facing image recording
devices, FRA is also proposing in paragraph (c) that any inward-facing
image recordings in passenger train lead locomotives have an accurate
date and time stamp. FRA believes an accurate time and date stamp is
essential to the usefulness of the recordings, especially for post-
accident investigations. Also, similar to the proposal for outward-
facing cameras above, FRA is proposing that when there is an en route
failure of a passenger locomotive's inward-facing image recording
device, the locomotive could not be used as a train's lead locomotive
after the next calendar day's inspection of the locomotive as required
by Sec.  229.21 if the recording device is not first repaired or
replaced.
    Finally, FRA has also proposed under this paragraph (c) that no
recordings be made of any activities within a passenger locomotive's
sanitation compartment as defined by existing Sec.  229.5. A
locomotive's sanitation compartment is an enclosed compartment that
contains a toilet facility for employee use. The Working Group
discussed this topic, and FRA believes such recordings would be an
unwarranted invasion of personal privacy and would likely be illegal.
In light of those concerns, FRA is proposing to expressly prohibit
recordings of any activities in a passenger locomotive's sanitation
compartment or placing any image recording device where it would allow
the device to record such activities. FRA strongly recommends that
freight railroads likewise ensure that voluntarily installed recording
devices do not infringe on the privacy of their locomotives' sanitation
compartments.
    Proposed paragraph (d) would require wired or wireless connections
to be provided to ensure only authorized passenger railroad personnel
can download image and audio recordings from the certified crashworthy
memory module and any other standard memory module. Due to potential
for misuse of recordings locomotive image and audio recording systems
make, FRA proposes that passenger railroads use electronic security
measures to ensure only authorized railroad personnel can download
recordings. Such security measures could include password or passcode
protection to access a memory module. Proposed paragraph (d) would give
passenger railroads discretion whether to use wired or wireless
download connections and which appropriate electronic security measures
to adopt. This proposed discretion would accommodate improved
electronic information security technologies that develop in the
future. FRA seeks comments on whether
[[Page 35735]]
appropriate electronic download and security features, such as
encryption functions, should be specified in a final rule, or whether
such features are better addressed by individual passenger railroads or
an industry-adopted standard. While FRA is not proposing to apply
paragraph (d) to voluntarily installed inward- and outward-facing
recording devices on freight locomotives, FRA suggests freight
railroads take necessary steps to prevent the unauthorized downloading
of locomotive image and audio recordings. FRA also seeks comments from
interested parties as to whether the requirements proposed in this
section should apply to any railroad that voluntarily installs image or
audio recording devices.
    Proposed paragraph (e) of this section would require specified
inspection, testing, and maintenance of locomotive image and audio
recording device systems on passenger train lead locomotives similar to
those found in FRA's locomotive event recorder regulation. Paragraph
(e) would first require such a passenger locomotive's image recording
system (and any installed audio recording system) have self-monitoring
features. This means the recording system can monitor its own operation
and display an indication to a passenger train's crew when any data
required to be stored is not stored, or when the stored data does not
match the data received from the image recording devices. At a minimum,
the self-monitoring features must indicate to the passenger
locomotive's crew whether the system is turned on, and, in some
fashion, that power is available to the system. This proposal leaves to
the discretion of the passenger railroads which self-monitoring
features to install to avoid inhibiting future changes in available
technology that could be used for system self-monitoring. Other, more
sophisticated self-monitoring features, if available, must also
indicate to a passenger train's crew if a fault with the recording
system has been detected. FRA acknowledges that some faults may go
undetected under these requirements. However, FRA believes the
additional requirement for download of sample recordings at the
periodic inspection intervals under proposed paragraph (e) will serve
as an appropriate back-up test, similar to the periodic and annual
inspection requirements in existing Sec.  229.135 for locomotive event
recorders. FRA is declining to apply the requirements proposed in
paragraph (e) to locomotive image and audio recording devices
voluntarily installed by freight railroads.
    FRA seeks comment on whether appropriate restrictions in a final
rule should be placed on sample recording device downloads from
passenger train lead locomotives made under proposed paragraph (e). FRA
anticipates sample downloads for inspection or maintenance purposes
might often be taken by non-managerial or operating employees, such as
mechanical department employees in a locomotive repair facility.
However, FRA believes these sample downloads, like all image or audio
recording device downloads from passenger trains, should be subject to
the security proposals in Sec.  229.136(d) and (f) to avoid mishandling
or misuse of locomotive recordings. Further, FRA believes it may be
appropriate in a final rule to require limiting the periodic inspection
download to, for instance, the last 30 seconds of operation before the
most recent normal shutdown of the system. Further, a requirement that
such a download for inspection or testing purposes must be deleted once
proper functioning of an image recording system is confirmed might also
be appropriate. FRA requests comment on whether these or similar
requirements are necessary in a final rule.
    Paragraph (f) of this section proposes preservation and handling
requirements for image and audio recordings on passenger locomotives'
image and audio recording systems. Paragraph (f) would implement the
FAST Act's requirements to address the appropriate uses of passenger
locomotive recordings and protect such recordings from unauthorized
release.
    Paragraph (f)(1) would require each passenger railroad subject to
proposed Sec.  229.136 to adopt, maintain, and comply with a chain-of-
custody procedure governing the handling and release of any locomotive
image or audio recordings accessed by railroad personnel. As discussed
in Section VI. above, in absence of an accident or incident where FRA
or another Federal agency has taken possession of a locomotive's
recording devices, a railroad's internal policies govern the handling
of locomotive audio and video recordings. The policies passenger
railroads establish under proposed subsection (f)(1) would govern the
chain-of-custody for recordings, access to the recordings, and release
of the recordings. The chain-of-custody procedure would have to
specifically address the preservation and handling requirements for
post-accident/incident recordings provided to FRA or other Federal
agencies. Under this proposal, a passenger railroad's failure to comply
with its procedures would make the railroad subject to FRA enforcement
action.
    FRA has not proposed specific rule text governing the chain-of-
custody, handling, and release procedures industry-wide. The industry
has much experience in this area given the significant number of
passenger locomotives already equipped with outward- and inward-facing
image recording devices. The industry also has experience with
preservation and handling requirements for locomotive event recorders
after the occurrence of an accident under existing Sec.  229.135(e).
Given the various types of locomotive recording equipment that
different railroads may choose to utilize, various State court
evidentiary and chain-of-custody laws and rules with which railroads
must comply if the railroads use the recordings in litigation (e.g.,
highway-rail grade crossing and trespasser accidents), and the
potential cost of requiring railroads to amend existing procedures and
to provide instruction on such new procedures, FRA does not believe it
appropriate to impose specific chain-of-custody and release procedures
in regulation text. Rather, passenger railroads must ensure their
custody and release procedures and policies meet the requirements for
handling recordings under the proposed rule. FRA's safety interest most
strongly lies in ensuring recordings are handled properly post-
accident.
    Proposed paragraph (f)(1) permits passenger railroads to extract
and analyze recorded data if the original downloaded data file, or an
unanalyzed exact copy of it, is retained in secure custody under the
railroad's procedures adopted under paragraph (f)(1) and not utilized
for analysis or any other purpose except by direction of FRA or another
Federal agency. FRA notes the proposed post-accident/incident
preservation requirement in paragraph (f)(2) would apply to any
recordings made on a lead passenger locomotive equipped with image or
audio recording devices, without regard to whether a final rule
requires a particular locomotive to be equipped with such devices. For
example, if a passenger railroad voluntarily chose to equip a
locomotive with an audio recording system and that locomotive was
involved in an accident, the railroad would be required to preserve the
audio recording in accordance with proposed paragraph (f)(2), which is
discussed below. As explained in FRA's May 18, 2010, letter to
Metrolink referenced above, such audio recordings from passenger
locomotives are already subject to preservation under existing Sec.
229.135(e)'s locomotive-mounted
[[Page 35736]]
recording preservation requirement. Such recordings would continue to
be required to be preserved under this proposed paragraph. Thus, FRA's
proposal regarding the preservation of locomotive recordings does not
represent any regulatory change; however, some passenger railroads that
previously did not have inward- or outward-facing image recording
devices in their lead locomotives will now have to install such devices
and will have to store the associated data.
    Paragraph (f)(2) specifies the post-accident preservation
requirements for passenger locomotive image and audio recordings. If a
locomotive being used in commuter or intercity passenger service is
equipped with image or audio recorders and involved in a reportable
accident or incident under part 225 of this chapter (Part 225
reportable accident), this paragraph proposes that the railroad using
the locomotive at the time of the accident or incident must preserve
the devices' data for analysis by FRA or other Federal agencies for up
to one year after the accident. The purpose of this proposed provision
is to ensure data from passenger locomotive-mounted recording devices
is retained for use by FRA as well as other Federal agencies to
effectively conduct post-accident/incident investigations and more
accurately determine their causes. Additionally, this paragraph's one-
year retention requirement would fulfill the FAST Act's mandate that
each passenger railroad preserve recording device data for one year
after the date of a Part 225 reportable accident.
    To allow for analysis by FRA or other Federal agencies during
investigations, paragraph (f)(2) proposes to require a railroad to
either provide the image and/or audio data in a usable format, or make
available any platform, software, media device, etc. that is required
to play back the image and/or audio data. In the past, FRA has
encountered challenges in investigating accidents/incidents where
railroads have provided data to FRA but not the means to read, view, or
use the data. This proposal is intended to prevent that issue.
    While freight locomotive recording devices are not covered under
this proposed paragraph, preservation requirements for recordings from
freight locomotive recording devices can be found in existing Sec.
229.135(e). Section 229.135(e) already applies to any locomotive image
and audio recordings that exist on a passenger or freight locomotive
involved in a Part 225 reportable accident. As FRA explained in its
2010 letter to Metrolink discussed above, existing Sec.  229.135(e)
applies by its plain text to ``any other locomotive-mounted recording
device or devices designed to record information concerning the
functioning of a locomotive or train.'' FRA considers in-cab locomotive
cameras to be ``other locomotive-mounted recording devices'' within the
meaning of that existing section.
    Paragraph (f)(3) would establish permissible uses of a passenger
locomotive's image or audio recordings and is similar to proposed text
FRA presented during the Working Group meetings. While proposed
paragraph (f)(3) only applies to image or audio recordings from
passenger locomotives, FRA is asking for comments on whether proposed
paragraph (f)(3) should also apply to image or audio recordings from
freight locomotives with voluntarily installed recording devices. The
FAST Act, at 49 U.S.C. 20168(d), establishes three express purposes for
which passenger railroads may use image recordings and gives FRA
discretion to designate other appropriate purposes. The three express
purposes stated in the FAST Act are for:
    (1) Verifying that train crew actions are in accordance with
applicable safety laws and the railroad carrier's operating rules
and procedures, including a system-wide program for such
verification; (2) assisting in an investigation into the causation
of a reportable accident or incident; and (3) documenting a criminal
act or monitoring unauthorized occupancy of the controlling
locomotive cab or car operating compartment.
49 U.S.C. 20168(d). FRA has divided the first express purpose in the
FAST Act into two items under paragraph (f)(3), to expressly state
passenger railroads may use recordings to investigate a violation of a
Federal railroad safety law, regulation, or order, or a railroad's
operating rules and procedures and to conduct operational tests under
Sec.  217.9. A railroad's program of operational testing is the
existing method of conducting such a system-wide verification of rules
compliance. FRA's regulations are issued under the authority of the
Federal railroad safety laws, and often require railroads to adopt
rules governing safe railroad operations. FRA believes Congress
intended the Federal railroad safety regulations issued under the
safety laws to be included under the Statute's provision, and FRA also
has discretion under paragraph (d)(4) of the Statute to include other
purposes FRA deems appropriate.
    FRA has also incorporated the FAST Act's permission to use
passenger locomotive recordings to assist in conducting investigations
into the cause of reportable accidents. As discussed above, the NTSB
has long sought to use recordings to help conduct post-accident
investigations to accurately determine accident causes with the goal of
improving railroad safety. This use will also enable passenger
railroads to continue to utilize image recordings in litigation
involving grade crossing and trespasser accidents.
    Next, FRA has also proposed to incorporate the FAST Act's
permission to use recordings on passenger trains to document any
criminal acts and unauthorized occupancy of the cab, as well as the
investigation of a suspected or confirmed act of terrorism. It is not
FRA's intent that any of the proposals in this NPRM would affect the
ability of law enforcement personnel or a Federal agency's access or
use of passenger locomotive image or audio recordings to conduct
criminal investigations, as is expressly stated in proposed paragraph
(h) below. No current FRA regulations specifically address unauthorized
occupancy of locomotive cabs. However, the issue of unauthorized
occupancy of the locomotive cab has arisen many times in the past in
the context of railroad accidents and other FRA safety-related
investigations, is quite relevant information in accident
investigations, and may also arise in certain criminal investigations.
    In the FAST Act, Congress permits FRA to deem other appropriate
purposes for which passenger railroads could use locomotive image
recordings. Therefore, FRA proposes in paragraph (f)(3)(vii) to allow
passenger railroads to use recordings to perform inspection, testing,
maintenance, or repair activities to ensure inward-facing image
recorders are properly installed and functioning. Under proposed Sec.
229.136(e) discussed above, FRA expects that at each periodic
inspection Sec.  229.23 requires, the passenger railroad conducting the
inspection of the equipped locomotive would take sample download(s) to
confirm operation of the system, and, if necessary, repair the system
to full operation. However, FRA also intends to allow a passenger
railroad to use recordings to ensure the proper functioning of a
recording system at any time, especially if a recording system
malfunctions and requires repair.
    FRA requests comment on whether other appropriate safety-related
uses exist for locomotive recordings which it should include in a final
rule. Further, although the FAST Act applies only to recordings that
image recording devices make on passenger locomotives subject to the
Act's requirements, FRA is requesting comment on whether paragraph
(f)(3) should apply to recordings made by locomotives in
[[Page 35737]]
freight service and any locomotive audio recordings.
    Proposed paragraph (g) of this section would implement the FAST
Act's recording device review and approval process for passenger
railroads. 49 U.S.C. 20168(c). The Act requires FRA to establish a
review and approval process to ensure the three standards described in
49 U.S.C. 20168(b) are met (12-hour continuous recording capability,
crash and fire protections, and accessibility for accident
investigation review). FRA proposes that only passenger railroads (not
freight) would have to submit information to FRA regarding whether the
recording device system installed on locomotives subject to the final
rule meets the established criteria. FRA has not proposed that freight
railroads would have to submit such information, because the FAST Act's
recording device approval provision applies only to passenger
railroads. FRA requests comment regarding whether in the final rule the
proposed recording system review and approval requirements should also
apply to freight railroads. FRA also requests comment on the potential
implications of requiring passenger railroads to maintain a total of 24
hours of continuous recording capability. Specifically, FRA seeks
comment on the potential costs and benefits of such a requirement.
    A passenger railroad would have to submit the information to FRA
for review and approval at least 90 days prior to installing the image
recording system, or for existing systems, not more than 30 days after
the effective date of a final rule. As a practical matter, FRA would
encourage railroads to submit their information to FRA well in advance
of the proposed 90-day requirement so that if FRA disapproves of any
part of a railroad's submission, the railroad could timely make
amendments. This would minimize any impact on the railroad's proposed
installation timeline or the use of railroad resources.
    A passenger railroad's submission under this proposal would have to
address: (1) The image recording system's minimum 12-hour continuous
recording attributes; (2) the specifications for the crashworthy memory
module utilized to store the image recordings that complies with the
performance criteria in existing part 229, appendix D; and (3) the
recording system's technical attributes and procedures governing access
by authorized personnel, addressing the accessibility of the recorded
data in the event of a railroad accident under proposed paragraph (f).
    Like several other FRA regulations, FRA has proposed it would
review a railroad's submission within 90 days. FRA's Associate
Administrator for Railroad Safety and Chief Safety Officer would then
provide notice in writing if the railroad's submission has been
disapproved. If a railroad's system is disapproved, FRA's written
notice would specify the basis for such disapproval. If a railroad's
system is disapproved, the railroad would then be prohibited from
installing and utilizing the required image recording system until it
received approval of an amended submission. In the absence of written
disapproval from FRA, FRA would be considered to have approved the
railroad's locomotive image recording system. For the convenience of
both industry and FRA, FRA plans to publish a list of any previously
approved systems on its internet website that railroads can use as a
reference.
    Proposed paragraph (h) of this section mimics existing Sec.
229.135(f) in FRA's locomotive event recorder regulation. This
provision explains that nothing in proposed Sec.  229.136 is intended
to alter the existing legal authority of law enforcement officials
investigating violations of State criminal laws, the priority of NTSB
investigations under 49 U.S.C. 1131 and 1134, or the authority of the
Secretary of Transportation to investigate railroad accidents under the
applicable Federal statutes.
    Proposed paragraph (i) of this section addresses a passenger
railroad removing a locomotive image recording device from service, and
how it should handle its repair. This proposed paragraph would apply
only to image recording devices on locomotives in commuter or intercity
passenger service, not recording devices voluntarily installed on
locomotives in freight service.
    The proposed text would allow passenger railroads to remove a
locomotive image recording device from service. In fact, if a railroad
knows the device is not properly recording, the railroad would have to
remove the device from service. When the passenger railroad removes the
locomotive's image recording device from service, a qualified person
under FRA's regulations would have to record the date the device was
removed from service on Form FRA F6180.49A, under the REMARKS section.
However, a locomotive with an out-of-service image recording device
could still act as a lead locomotive in a passenger train until the
locomotive's next calendar-day inspection under Sec.  229.21. The fact
that the locomotive's image recording device is inoperative would not
deem the locomotive to be in an improper condition, unsafe to operate,
or a non-complying locomotive under Sec. Sec.  229.7 and 229.9. These
proposed requirements for removing passenger locomotive recording
devices from service mirror already established requirements for
removing locomotive event recorders from service under Sec.
229.135(c). However, if the railroad is unable to repair the image
recording device before the locomotive's next calendar-day inspection,
the locomotive would have to be placed out of service. Therefore, as
previously stated, FRA requesting comments on the burden this would put
on passenger railroads.
    Proposed paragraph (j) of this section is similar to existing Sec.
229.135(g) of FRA's regulation addressing locomotive event recorders
and addresses tampering with a locomotive's image or audio recording
system. As described above, FRA has proposed to include passenger
locomotive recording systems as ``safety devices'' in part 218's
tampering regulation. This proposed paragraph explains the potential
ramifications for willfully disabling an event recorder or tampering
with or altering the data such devices record. FRA would consider the
following examples unlawful tampering with a locomotive's recording
system when an employee: Disables or obscures an image recording device
to prevent the device from recording the intended field of view,
disables or interferes with a microphone or other component of an audio
recording system, or attempts to disable or tamper with a memory module
or other device that stores recorded data.
    Finally, proposed paragraph (k) of this section would define the
meaning of the term ``train'' for this section. The term train is
proposed to mean a single locomotive, multiple locomotives coupled
together, or one or more locomotives coupled together with one or more
cars. This proposed definition clarifies that lite passenger locomotive
consists or single passenger locomotives that are operated would have
to be equipped with the image recording devices as prescribed in this
section.
Appendix D to Part 229 Criteria for Certification of Crashworthy Event
Recorder Memory Module
    Finally, FRA proposes to amend existing part 229, appendix D to
state the crashworthiness standards in that appendix also apply to a
memory module used to store the data recorded by the image recording
devices on lead passenger train locomotives required by proposed Sec.
229.136, and any audio
[[Page 35738]]
recording devices a passenger railroad installs. FRA believes the
existing crashworthy memory module requirements in appendix D intended
to protect the microprocessor-based data recorded by a locomotive's
event recorder are also the appropriate standards for microprocessor
data a lead passenger locomotive's image and audio recording systems
record. The railroad industry has extensive experience with the
standards in appendix D, and collaboratively created these standards
via RSAC recommendations to FRA in 2003 that were incorporated into
Federal regulation in 2005. 70 FR 37920 (June 30, 2005).
    Appendix D establishes the general requirements, testing sequence,
and required marking for memory modules certified by their
manufacturers as crashworthy. Appendix D also contains performance
criteria for memory module survivability from fire, impact shock,
crush, fluid immersion, and hydrostatic pressure. Any memory module
used to store the last 12 hours of data from an image or audio
recording device meeting the performance criteria in appendix D would
comply with the crashworthiness proposal in this NPRM.
    FRA understands the NTSB prefers stricter recorder survivability
standards than those in appendix D. NTSB has recommended FRA require
event recorder data to also be 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.\97\ However, the existing crashworthiness
standards in appendix D require a memory module capable of surviving
the majority of railroad accidents. FRA believes 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 future implementation of PTC systems.
---------------------------------------------------------------------------
    \97\ National Transportation Safety Board, Safety Recommendation
R-13-22 (Aug. 14, 2013); available online at: http://www.ntsb.gov/safety/safety-recs/recletters/R-13-018-023.pdf.
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    As discussed above, the railroad accidents in which the NTSB has
discussed locomotive image and audio recording device recommendations
were human-factor caused accidents. Nearly all those human-factor
caused railroad accidents were PTC-preventable. Thus, upon the
implementation of PTC systems (Amtrak has already implemented a PTC
system on segments of track on the Northeast Corridor), the likelihood
of similar accidents occurring should be eliminated or greatly reduced.
In turn, the need should diminish for more stringent crashworthy memory
module requirements to preserve image and audio recordings for use to
investigate human-factor caused accidents on main track.
    FRA proposes that a memory module meeting the specified performance
criteria in either Table 1 or Table 2 of section C of appendix D would
be acceptable. 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 industry and manufacturers are in the best position
to determine the exact way they will test for the specified performance
parameters. 69 FR 39785 (June 30, 2004). Not requiring specific test
procedures also accommodates any future testing methods that develop.
    Finally, under the FAST Act (49 U.S.C. 20168(e)(2)), FRA has
discretion to exempt railroads from the inward- and outward-facing
image recording device requirements based on alternative technologies
or practices that provide for an equivalent or greater safety benefit
or are better suited to the risks of the operation. FRA believes it may
be appropriate to exercise this discretion under the Act to provide an
exemption from the proposed crashworthiness requirements in this NPRM.
FRA is contemplating an exemption from the crashworthiness requirements
where lead passenger locomotive recordings are immediately transmitted
and stored at a remote location off of the locomotives(s) when
technology reliably allows for such a recording system. This proposal
is also consistent with the FAST Act's requirement for crashworthy
storage only when recordings are stored on a controlling locomotive's
cab. 49 U.S.C. 20168(b)(2).
    Based on Working Group discussions, FRA understands that current
technology does not always permit such a wirelessly transmitted data
recording system to work effectively in all locations (e.g., at remote
locations or locations where physical features such as tunnels or
elevation result in no reliable wireless transmission of data). FRA
requests comment on this topic, including whether this exemption might
best be addressed on an individual railroad or operation via the waiver
process at 49 CFR part 211. This exemption would be consistent with the
intent of NTSB Recommendation R-13-22 discussed above, in that data
regarding the operation of a locomotive that is stored remotely is not
at risk of being lost in an accident involving that locomotive.
VIII. Regulatory Impact and Notices
A. Executive Order 12866, Executive Order 13563, Executive Order 13771,
and DOT Regulatory Policies and Procedures
    This proposed rule is a significant regulatory action within the
meaning of Executive Order 12866 (E.O. 12866) and DOT policies and
procedures. See 44 FR 11034 (Feb. 26, 1979). FRA made this
determination by finding that, although the economic effects of this
proposed regulatory action would not exceed the $100 million annual
threshold defined by E.O. 12866, the proposed rule is significant
because of the substantial public interest in transportation safety.
The proposed rule attempts to follow the direction of Executive Order
13563, which emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. However, FRA was unable to determine how effective
locomotive image recording devices would be at reducing accidents.
Thus, instead of presenting the quantifiable benefits, FRA presented
the benefits qualitatively, as discussed further below. Finally, this
proposed rule is expected to be an E.O. 13771 regulatory action.
Details on the estimated costs of this proposed rule can be found in
the rule's economic analysis.
    This NPRM directly responds to the Congressional mandate in section
11411 of the FAST Act that FRA, by delegation from the Secretary,
require each railroad that provides intercity rail passenger or
commuter rail passenger transportation to install image recording
devices on the controlling locomotives of passenger trains. FRA
believes the requirements of this proposed rule, as applied to
passenger trains, are directly or implicitly required by the FAST Act
and will promote railroad safety.
    FRA has prepared and placed a RIA addressing the economic impact of
this proposed rule in the Docket (Docket no. FRA-2016-0036). The RIA
details estimates of the costs of this proposed rule that are likely to
be incurred over a ten-year period. FRA estimated the costs of this
proposed rule using discount rates of 3 and 7 percent. For the 10-year
period analyzed, the estimated quantified costs for passenger
[[Page 35739]]
railroads, which must comply with all proposed requirements in the
NPRM, total a present value (PV) of $31,837,918 (PV, 7 percent), and
$34,664,317 (PV, 3 percent). FRA is interested to learn from industry
stakeholders about potential alternatives to meet a reasonable
crashworthiness level for locomotive image recording systems for
passenger locomotives. FRA believes it has proposed a cost-effective
method of meeting the FAST Act's crashworthiness mandate for passenger
locomotives while attempting to minimize potential regulatory costs.
FRA is interested in comments addressing additional crashworthiness
options, with the intent to make a final rule appropriately
performance-based and cost-effective. Specifically, FRA seeks public
input on the forces memory systems should ideally be able to withstand,
and the fire resistance necessary for the data to survive. As discussed
in the preamble above, FRA may consider passenger locomotive memory
module crashworthiness protection requirements unnecessary (or met) in
the future if recorded data is stored at a remote location off of a
locomotive consist, safe from accident destruction. FRA did not propose
to require this option because the agency does not believe current
technology would reliably allow for such remote transmission and
storage in all instances, and such a system would likely be much more
costly to develop in order to transfer the recorded data to a
centralized location. FRA requests comment regarding whether a remote
storage option has any utility (or is feasible) at present or in the
future.
    In addition to complying with the FAST Act's statutory mandate for
passenger locomotives, FRA's original reason for requiring image
recording devices to be installed in the locomotives is the collection
of causal information. For example, in the 2015 Amtrak accident in
Philadelphia, Pennsylvania, image recording devices could have helped
provide additional causal information during the post-accident
investigation. Causal data is especially critical for the prevention of
future accidents when no apparent accident cause can be determined
through other means. Further, images can become key to identifying new
safety concerns that otherwise would be difficult to research or
identify, which could lead FRA and the railroad industry to better
understand areas in which safety could be improved. Other, probably
larger, safety benefits would also primarily accrue from the deterrence
of unsafe behaviors that cause railroad accidents. For instance, the
presence of locomotive image recording devices could have deterred the
engineer from text messaging while operating the Metrolink train
involved in the 2008 accident at Chatsworth, California. In the RIA,
FRA discusses and provides examples of how the deterrent effect of
locomotive image recording devices could reduce negative behavior
because train crews know their actions are being recorded.\98\
---------------------------------------------------------------------------
    \98\ See Benefits, Section 1.1, of the RIA for more information.
---------------------------------------------------------------------------
    Other benefits include: (1) Giving railroads the ability to perform
operational efficiency tests that were impossible to perform in a
practical manner without cameras (e.g., for prohibited use of personal
electronic devices) and at a lower cost; (2) providing information to
research how crews perform (both to improve safety and to improve
productivity); (3) providing better physical security of trains; and
(4) increasing railroad productivity.
    While FRA is declining to require locomotive recording devices in
freight locomotives, many freight railroads have informed FRA the above
reasons are why railroads are installing camera systems even without an
FRA regulation. FRA's analysis shows there are many factors that are
difficult to quantify that combine to warrant the proposed rule. FRA
believes that given current railroad business and operational
practices, this analysis demonstrates the quantifiable benefits for
this proposed rule would not exceed the costs.
    Tables: Costs of the proposed rule:
                                     Table 1--10-Year Costs and Cost Savings
                                          [Discounted, 7 and 3 percent]
----------------------------------------------------------------------------------------------------------------
     Table 1. 10-year costs and cost savings      Discounted  at  Discounted  at  Annualized  at  Annualized  at
          (discounted, 7 and 3 percent)                 7%              3%              7%              3%
----------------------------------------------------------------------------------------------------------------
Costs...........................................     $32,884,651     $35,915,229      $4,682,035      $4,210,360
    Camera......................................      27,441,173      29,956,299       3,907,006       3,511,792
    Crashworthiness.............................       5,443,479       5,958,929         775,029         698,568
Cost Savings:
    Operational Testing Benefits................       1,046,734       1,250,912         149,031         146,645
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
        Net Costs...............................      31,837,918      34,664,317       4,533,003       4,063,715
----------------------------------------------------------------------------------------------------------------
B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment
    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency
review of proposed and final rules to assess their impacts on small
entities. An agency must prepare an Initial Regulatory Flexibility
Analysis (IRFA) unless it determines and certifies that a rule, if
promulgated, would not have a significant economic impact on a
substantial number of small entities. As discussed below, FRA does not
believe this proposed rule would have a significant economic impact on
a substantial number of small entities. However, FRA is requesting
comments on whether the proposed rule would impact small entities.
Therefore, FRA is publishing this IRFA to aid the public in commenting
on the potential small business impacts of the requirements in this
NPRM. FRA invites all interested parties to submit data and information
regarding the potential economic impact on small entities that would
result from the adoption of the proposals in this NPRM. FRA will
consider all information, including comments received in the public
comment process, to determine whether the rule will have a significant
the economic impact on small entities.
1. Reasons for Considering Agency Action
    FRA is initiating this NPRM in response to a statutory mandate in
[[Page 35740]]
section 11411 of the FAST Act. Section 11411 requires the Secretary 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.
2. A Succinct Statement of the Objectives of, and the Legal Basis for,
the Proposed Rule
    This NPRM proposes regulations that would require 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. If enacted, these proposed
requirements would fulfill Section 11411 of the FAST Act, which
mandates the installation of these devices in all controlling passenger
train locomotives.
3. A Description of, and Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Would Apply
    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires a review of proposed and final rules to assess their impact on
small entities, unless the Secretary certifies that the rule would not
have a significant economic impact on a substantial number of small
entities. ``Small entity'' is defined in 5 U.S.C. 601 as a small
business concern that is independently owned and operated, and is not
dominant in its field of operation. The U.S. Small Business
Administration (SBA) has authority to regulate issues related to small
businesses, and stipulates in its size standards that a ``small
entity'' in the railroad industry is a for profit ``line-haul
railroad'' that has fewer than 1,500 employees, a ``short line
railroad'' with fewer than 500 employees, or a ``commuter rail system''
with annual receipts of less than seven million dollars. See ``Size
Eligibility Provisions and Standards,'' 13 CFR part 121 subpart A.
    This proposed rule would apply primarily to railroad carriers that
provide regularly scheduled intercity rail passenger or commuter rail
passenger transportation to the public. However, one passenger railroad
is considered a small entity: The Hawkeye Express (operated by the Iowa
Northern Railway Company (IANR)). All other passenger railroad
operations in the United States are part of larger governmental
entities whose service jurisdictions exceed 50,000 in population, and,
based on the definition, are not considered small entities. Hawkeye
Express is a short-haul passenger railroad that is not a commuter
railroad or an intercity passenger railroad, and would not be affected
by the NPRM proposals.
    As the only small entity that could potentially be impacted by this
regulation is not classified as a commuter railroad or an intercity
passenger railroad, it would not be affected by the NPRM proposals;
thus, FRA does not believe that the provisions of the NPRM would impact
any small entities. However, FRA requests comments as to the impact
that the proposed rule would have on any small passenger railroad and
on passenger railroads in general.
4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the Class
of Small Entities That Will Be Subject to the Requirements and the Type
of Professional Skill Necessary for Preparation of the Report or Record
    In general, this NPRM would require the installation of inward- and
outward-facing locomotive image recording devices on all lead
locomotives in passenger trains and requires the railroads to maintain
records from these devices for one year after a reportable accident.
This NPRM would also govern the use of the recordings to conduct
operational tests in order to determine if a railroad employee is in
compliance with applicable railroad rules and Federal regulations.
Additionally, passenger railroads would need to have a chain-of-custody
procedure that specifically addresses the preservation and handling
requirements for post-accident/incident recordings provided to FRA or
the NTSB under part 229.136(f)(2) of this NPRM.
5. Identification, to the Extent Practicable, of All Relevant Federal
Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule
    FRA does not believe there are any relevant Federal rules that
duplicate, overlap with, or conflict with the proposed regulations in
this NPRM.
    FRA invites all interested parties to submit comments, data, and
information demonstrating the potential economic impact on any small
entity that would result from the adoption of the proposed language in
this NPRM. FRA particularly encourages any small entity that could
potentially be impacted by the proposed amendments to participate in
the public comment process. FRA will consider all comments received
during the public comment period for this NPRM when making a final
determination of the NPRM's economic impact on small entities.
C. Paperwork Reduction Act
    The information collection requirements in this proposed rule are
being submitted to the Office of Management and Budget (OMB) for review
and approval in accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). The sections that contain the new information and
current information collection requirements and the estimated time to
fulfill each requirement are as follows:
----------------------------------------------------------------------------------------------------------------
                                                                                                   Total  annual
                                 Respondent      Total annual     Average time     Total annual       dollar
         CFR section              universe        responses       per response     burden hours     equivalent
                                                                                                       cost
----------------------------------------------------------------------------------------------------------------
217.7--Operating Rules;       2 new railroads  2 documents....  1 hour.........  2 hours........             150
 Filing and Recordkeeping--
 Filing of code of operating
 rules, timetables, and
 special instructions with
 FRA.
    --Amendments to code of   55 railroads...  165 revised      20 minutes.....  55 hours.......           4,125
     operating rules,                           documents.
     timetables, and special
     instructions by Class
     I, Class II, Amtrak,
     and commuter railroads.
    --Class III and other     5 new railroads  5 submitted      55 minutes.....  5 hours........             375
     railroads: Copy of code                    documents.
     of operating rules,
     timetables, and special
     instructions.
[[Page 35741]]

    --Class III railroads:    704 railroads..  2,112            15 minutes.....  528 hours......          39,600
     Amendments to code of                      amendments.
     operating rules,
     timetables, and special
     instructions.
217.9--Program of             755 railroads..  4,732 records..  2 minutes......  158 hours......          11,534
 Operational Tests: Written
 record of each railroad
 testing officer.
    --Development and         45 railroads...  40 adopted       24 hours.......  960 hours......          72,000
     adoption of procedure                      procedures.
     ensuring random
     selection of employees
     by railroads utilizing
     inward-facing
     locomotive and in-cab
     audio recordings to
     conduct operational
     tests and inspections
     (New Requirement).
    --Written program of      5 new railroads  5 programs.....  9.92 hours 1     50 hours.......           5,850
     operational tests and                                       minute.
     inspections.
    --Records of operational  755 railroads..  9,120,000        70 minutes.....  152,000 hrs....      11,096,000
     tests/inspections.                         records.
    --Railroad copy of        55 railroads...  165 program      2 hours........  193 hours......          14,475
     current program                            revisions.
     operational tests/
     inspections--amendments.
    --Written quarterly       37 railroads...  148 reviews....  2 hrs/5 sec....  296 hours......          21,608
     review of operational
     tests/inspections by RR.
    --6-month review of       37 railroads...  74 reviews + 37  ...............  148 hours......          10,804
     operational tests/                         names.
     inspections/naming of
     officer.
    --6-month review by       Amtrak + 33      68 reviews + 34  2 hrs/5 sec....  136 hours......           9,928
     passenger railroads       railroads.       names.
     designated officers of
     operational testing and
     inspection data.
    --Records of periodic     71 railroads...  290 records....  1 minute.......  5 hours........             375
     reviews.
    --Annual summary of       71 railroads...  71 summary       61 minutes.....  72 hours.......           5,400
     operational tests and                      records.
     inspections.
    --FRA disapproval of RR   755 railroads..  5 support        1 hour.........  5 hours........             375
     program of operational                     documents.
     tests/inspections and
     RR written response in
     support of program.
    --RR amended program of   755 railroads..  5 revised        30 minutes.....  3 hours........             225
     operational tests/                         programs.
     inspections.
217.11--....................
    --RR copy of program for  5 new railroads  5 program        8 hours........  40 hours.......           3,000
     periodic instruction of                    copies.
     employees.
    --RR copy of amendment    755 railroads..  110 copies.....  30 minutes.....  55 hours.......           4,125
     of program for periodic
     instruction of
     employees.
218.95--Instruction,          755 railroads..  98,000 records.  1 minute.......  1,633 hours....         122,475
 training, examination--
 employee records.
    --RR written response to  755 railroads..  5 responses....  1 hour.........  5 hours........             375
     FRA disapproval of
     program of instruction,
     testing, examination.
    --Amended RR program of   755 railroads..  5 amended        30 minutes.....  3 hours........             225
     instruction, testing,                      programs.
     examination.
218.97--RR copy of good       755 railroads..  4,732 copies...  6 minutes......  473 hours......          35,475
 faith challenge procedures.
    --RR employee good faith  98,000 workers.  15 gd. faith     10 minutes.....  3 hours........             219
     challenge of RR                            challenges.
     directive.
    --RR resolution of        15 railroads...  15 responses...  5 minutes......  1 hour.........              73
     employee good faith
     challenge.
    --RR officer immediate    15 railroads...  5 reviews......  30 minutes.....  3 hours........             219
     review of unresolved
     good faith challenge.
    --RR officer explanation  15 railroads...  5 answers......  1 minute.......  .08 hour.......               6
     to employee that
     Federal law may protect
     against employer
     retaliation for refusal
     to carry out work if
     employee refusal is a
     lawful, good faith act.
    --Employee written/       10 railroads...  10 protests....  15 minutes.....  3 hours........             219
     electronic protest of
     employer final decision.
    --Employee copy of        10 railroads...  10 copies......  1 minute.......  .17 hour.......              12
     protest.
    --Employer further        10 railroads...  3 requests + 3   15 minutes.....  2 hours........             146
     review of good faith                       reviews.
     challenge after
     employee written
     request.
    --RR verification         10 railroads...  10 decisions...  10 minutes.....  2 hours........             146
     decision to employee in
     writing.
[[Page 35742]]

    --Employer's copy of      755 railroads..  755 copies.....  5 minutes......  63 hours.......           4,725
     written required by
     this section.
    --RR verification         20 railroads...  20 copies......  5 minutes......  2 hours........             150
     decision copies.
218.99--Shoving or Pushing    755 railroads..  32 rule          1 hour.........  32 hours.......           2,400
 Movement: RR operating rule                    revisions.
 complying with section's
 requirements.
218.101--Leaving Equipment    755 railroads..  32 amended       30 minutes.....  16 hours.......           1,200
 in the Clear: Operating                        rules.
 Rule that Complies with
 this section.
218.103--Hand-Operated        755 railroads..  32 revised op.   60 minutes.....  32 hours.......           2,400
 Switches: Operating Rule                       rules.
 that Complies with this
 section.
    --Job briefings: Minimum  755 railroads..  5 modified op.   30 minutes.....  3 hours........             225
     requirements specified                     rules.
     in operating rules.
229.136--Locomotive mage      4,500 passenger  4,120 notes....  15 seconds.....  17 hours.......           1,241
 Recording Systems (New        locomotives.
 Requirements)--Duty to
 equip and record: Noting
 the presence of any image
 and audio recording system
 on each lead locomotive in
 intercity and commuter rail
 passenger service in
 ``Remarks'' section of Form
 FRA F 6180.49A.
    --Image recording system  4,500 passenger  4,120            12 hours.......  49,440 hrs.....               0
     capturing at least most   locomotives.     recordings.
     recent 12 hours of
     operation of an
     intercity passenger or
     commuter rail passenger
     locomotive.
    --Passenger railroads     27 railroads...  20 c of c        48 hours.......  960 hours......          72,000
     voluntary adoption and                     procedures.
     development of chain of
     custody (c of c)
     procedures.
    --Passenger railroad      31 railroads...  163 saved        12 hours.......  1,956 hours....         140,832
     preservation of                            recordings.
     accident/incident data
     of image recording
     system from locomotive
     using such system at
     time of accident/
     incident (includes
     voluntary freight
     railroads & restates
     previous requirement
     under section
     229.135(e)).
    --Provision by passenger  31 railroads...  31 written       50 hours.......  1,550 hours....         113,150
     railroad of written                        descriptions/
     description of                             plans.
     technical aspects any
     locomotive image
     recording system to FRA
     for approval.
    --Removal of locomotive   31 railroads...  20 notations...  15 minutes.....  5 hours........             305
     recording device from
     service from locomotive
     in commuter or
     intercity passenger
     service and handling
     for repair: Notation on
     Form FRA 6180.49A in
     ``Remarks'' section of
     date the device was
     removed from service.
                             -----------------------------------------------------------------------------------
        Total...............  N/A............  9,240,241......  N/A............  210,915........      11,470,639
----------------------------------------------------------------------------------------------------------------
    All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning: Whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, Federal Railroad Administration, at 202-
493-6292, or Ms. Kimberly Toone, Records Management Officer, Federal
Railroad Administration, at 202-493-6139.
    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New
Jersey Avenue SE, 3rd Floor, Washington, DC 20590. Comments may also be
submitted via email to Mr.
[[Page 35743]]
Brogan at [email protected], or to Ms. Toone at [email protected].
    OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register. FRA will be seeking approval for the
information collection requirements associated with this rule under OMB
No. 2130-0035.
D. Federalism Implications
    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, or the agency consults with State and local government
officials early in the process of developing the regulation. Where a
regulation has federalism implications and preempts State law, the
agency seeks to consult with State and local officials in the process
of developing the regulation.
    FRA has analyzed this NPRM under the principles and criteria
contained in Executive Order 13132. This NPRM could affect State and
local governments to the extent that they sponsor, or exercise
oversight of, passenger railroads. Because this proposed rule is
required by Federal statute for passenger railroads under 49 U.S.C.
20168, the consultation and funding requirements of Executive Order
13132 do not apply. However, this proposed rule could have preemptive
effect by operation of law under certain provisions of the Federal
railroad safety statutes, specifically the former Federal Railroad
Safety Act of 1970, repealed and recodified at 49 U.S.C. 20106. Section
20106 provides that States may not adopt or continue in effect any law,
regulation, or order related to railroad safety or security that covers
the subject matter of a regulation prescribed or order issued by the
Secretary of Transportation (with respect to railroad safety matters)
or the Secretary of Homeland Security (with respect to railroad
security matters), except when the State law, regulation, or order
qualifies under the ``essentially local safety or security hazard''
exception to section 20106.
    In sum, FRA has analyzed this proposed rule under the principles
and criteria in Executive Order 13132. As explained above, FRA has
determined this proposed rule has no federalism implications, other
than the possible preemption of State laws under Federal railroad
safety statutes, specifically 49 U.S.C. 20106. Therefore, preparation
of a federalism summary impact statement for this proposed rule is not
required.
E. Environmental Impact
    FRA has evaluated this proposed rule consistent with the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), other
environmental statutes, related regulatory requirements, and its
``Procedures for Considering Environmental Impacts'' (FRA's Procedures)
(64 FR 28545, May 26, 1999). FRA has determined that this proposed rule
is categorically excluded from detailed environmental review pursuant
to section 4(c)(20) of FRA's NEPA Procedures, ``Promulgation of
railroad safety rules and policy statements that do not result in
significantly increased emissions of air or water pollutants or noise
or increased traffic congestion in any mode of transportation.'' See 64
FR 28547, May 26, 1999. Categorical exclusions (CEs) are actions
identified in an agency's NEPA implementing procedures that do not
normally have a significant impact on the environment and therefore do
not require either an environmental assessment (EA) or environmental
impact statement (EIS). See 40 CFR 1508.4.
    In analyzing the applicability of a CE, the agency must also
consider whether extraordinary circumstances are present that would
warrant a more detailed environmental review through the preparation of
an EA or EIS. Id. Under section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this proposed regulation that might trigger the need
for a more detailed environmental review. The purpose of this
rulemaking is to propose that passenger railroads install recording
devices on locomotives and use those devices to help investigate and
prevent railroad accidents. FRA does not anticipate any environmental
impacts from these proposed requirements and finds there are no
extraordinary circumstances present in connection with this proposed
rule.
F. Executive Order 12898 (Environmental Justice)
    Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2(a) (91 FR 27534 May 10, 2012) require DOT agencies to
achieve environmental justice as part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects, including interrelated social
and economic effects, of their programs, policies, and activities on
minority populations and low-income populations. The DOT Order
instructs DOT agencies to address compliance with Executive Order 12898
and requirements within the DOT Order in rulemaking activities, as
appropriate. FRA has evaluated this proposed rule under Executive Order
12898 and the DOT Order and has determined it would not cause
disproportionately high and adverse human health and environmental
effects on minority populations or low-income populations.
G. Executive Order 13175 (Tribal Consultation)
    FRA has evaluated this proposed rule under the principles and
criteria in Executive Order 13175, Consultation and Coordination with
Indian Tribal Governments, dated November 6, 2000. The proposed rule
would not have a substantial direct effect on one or more Indian
tribes, would not impose substantial direct compliance costs on Indian
tribal governments, and would not preempt tribal laws. Therefore, the
funding and consultation requirements of Executive Order 13175 do not
apply, and a tribal summary impact statement is not required.
[[Page 35744]]
H. Unfunded Mandates Reform Act of 1995
    Under Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub.
L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless otherwise
prohibited by law, assess the effects of Federal regulatory actions on
State, local, and tribal governments, and the private sector (other
than to the extent that such regulations incorporate requirements
specifically set forth in law).'' Section 202 of the Unfunded Mandates
Reform Act (2 U.S.C. 1532) further requires that before promulgating
any general notice of proposed rulemaking that is likely to result in
the promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) in any 1 year, and before promulgating any
final rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a written statement detailing the
effect on State, local, and tribal governments and the private sector.
This proposed rule will not result in the expenditure, in the
aggregate, of $100,000,000 or more (as adjusted annually for inflation)
in any one year, and thus preparation of such a statement is not
required.
I. Energy Impact
    Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) That is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) that is designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. FRA has evaluated this proposed rule in accordance with
Executive Order 13211. FRA has determined that the proposals in this
rule are not likely to have a significant adverse effect on the supply,
distribution, or use of energy. Consequently, FRA has determined that
this proposed rule is not a ``significant energy action'' within the
meaning of Executive Order 13211.
    Executive Order 13783, ``Promoting Energy Independence and Economic
Growth,'' requires Federal agencies to review regulations to determine
whether they potentially burden the development or use of domestically
produced energy resources, with particular attention to oil, natural
gas, coal, and nuclear energy resources. 82 FR 16093 (March 31, 2017).
Executive Order 13783 defines ``burden'' to mean unnecessarily
obstruct, delay, curtail, or otherwise impose significant costs on the
siting, permitting, production, utilization, transmission, or delivery
of energy resources. FRA determined this proposed rule will not
potentially burden the development or use of domestically produced
energy resources.
J. Trade Impact
    The Trade Agreements Act of 1979 (Pub. L. 96-39, 19 U.S.C. 2501 et
seq.) prohibits Federal agencies from engaging in any standards setting
or related activities that create unnecessary obstacles to the foreign
commerce of the United States. Legitimate domestic objectives, such as
safety, are not considered unnecessary obstacles. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards. FRA has
assessed the potential effect of this proposed rule on foreign commerce
and believes that its requirements are consistent with the Trade
Agreements Act of 1979. The requirements proposed are safety standards,
which, as noted, are not considered unnecessary obstacles to trade.
K. Privacy Act
    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, to www.regulations.gov, as described in the
system of records notice, DOT/ALL-14 FDMS, accessible through
www.dot.gov/privacy. In order to facilitate comment tracking and
response, we encourage commenters to provide their name, or the name of
their organization; however, submission of names is completely
optional. Whether or not commenters identify themselves, all timely
comments will be fully considered. If you wish to provide comments
containing proprietary or confidential information, please contact the
agency for alternate submission instructions.
List of Subjects
49 CFR Part 217
    Occupational safety and health, Penalties, Railroad employees,
Railroad safety, Reporting and recordkeeping requirements.
49 CFR Part 218
    Occupational safety and health, Penalties, Railroad employees,
Railroad safety, Locomotives, and Tampering.
49 CFR Part 229
    Locomotives, Penalties, Railroad employees, Railroad safety,
Reporting and recordkeeping requirements.
The Proposed Rule
    For the reasons discussed in the preamble, FRA proposes to amend
chapter II, subtitle B of title 49, Code of Federal Regulations, as
follows:
PART 217--RAILROAD OPERATING RULES
0
1. The authority citation for part 217 is revised to read as follows:
    Authority: 49 U.S.C. 20103, 20107, 20168, 28 U.S.C. 2461, note;
and 49 CFR 1.89.
0
Subpart A--General
0
2. In Sec.  217.9, add paragraphs (b)(3) and (4) to read as follows:
Sec.  217.9  Program of operational tests and inspections;
recordkeeping.
* * * * *
    (b) * * *
    (3) A railroad that utilizes inward-facing locomotive image or in-
cab audio recordings to conduct operational tests and inspections shall
adopt and comply with a procedure in its operational tests and
inspections program that ensures employees are randomly subject to such
operational tests and inspections involving image or audio recordings.
The procedure adopted by a railroad must:
    (i) Establish objective, neutral criteria to ensure every employee
subject to such operational tests and inspections is selected randomly
for such operational tests and inspections within a specified time
frame;
    (ii) Not permit subjective factors to play a role in selection,
i.e., no employee may be selected based on the exercise of a railroad's
discretion; and
    (iii) Require that any operational test or inspection performed
using locomotive image recordings be performed within 72 hours of the
completion of the employee's tour of duty that is the subject of the
operational test. Any operational test performed more than 72 hours
after the completion of the tour of duty that is the
[[Page 35745]]
subject of the test is a violation of this section. The 72-hour
limitation does not apply to investigations of railroad accidents/
incidents or to violations of Federal railroad safety laws,
regulations, and orders, or any criminal laws.
    (4) FRA may review a railroad's procedure implementing paragraph
(b)(3) of this section, and, for cause stated, may disapprove such
procedure under paragraph (h) of this section.
* * * * *
PART 218--RAILROAD OPERATING PRACTICES
0
3. The authority citation for part 218 is revised to read as follows:
    Authority: 49 U.S.C. 20103, 20107, 20131, 20138, 20144, 20168,
28 U.S.C. 2461, note; and 49 CFR 1.89.
Subpart D--Prohibition Against Tampering With Safety Devices
0
4. In Sec.  218.53, revise paragraph (c) and add paragraph (d) to read
as follows:
Sec.  218.53  Scope and definitions.
* * * * *
    (c) Safety Device means any locomotive-mounted equipment used
either to assure the locomotive engineer is alert, not physically
incapacitated, and aware of and complying with the indications of a
signal system or other operational control system, or a system used to
record data concerning the operations of that locomotive or the train
it is powering. See appendix C to this part for a statement of agency
policy on this subject.
    (d) The provisions in Sec. Sec.  218.59 and 218.61 do not apply to
locomotive-mounted image and audio recording equipment on freight
locomotives.
0
 5. In Sec.  218.61, revise paragraph (c) to read as follows:
Sec.  218.61  Authority to deactivate safety devices.
* * * * *
    (c) If a locomotive in commuter or intercity passenger service is
equipped with a device to record data concerning the operation of that
locomotive or the train it is powering, that device may be deactivated
only under the provisions of Sec.  229.135 of this chapter. Inward- and
outward-facing image recording devices on commuter or intercity
passenger locomotives may be deactivated only under the provisions of
Sec.  229.136 of this chapter. This section does not apply to inward-
and outward-facing image recording devices that are installed on
freight locomotives.
0
6. In appendix C to part 218, revise the fifth sentence of the fourth
paragraph to read as follows:
Appendix C to Part 218--Statement of Agency Enforcement Policy on
Tampering
* * * * *
Safety Devices Covered by This Rule
    * * * This regulation applies to a variety of devices including
equipment known as ``event recorders,'' ``alerters,'' ``deadman
controls,'' ``automatic cab signal,'' ``cab signal whistles,''
``automatic train stop equipment,'' ``automatic train control
equipment,'' ``positive train control equipment,'' and ``passenger
locomotive-mounted image and audio recording equipment.'' * * *
* * * * *
PART 229--RAILROAD LOCOMOTIVE SAFETY STANDARDS
0
7. The authority citation for part 229 is revised to read as follows:
    Authority: 49 U.S.C. 20103, 20107, 20133, 20137-38, 20143,
20168, 20701-03, 21301-02, 21304, 28 U.S.C. 2461, note; and 49 CFR
1.89.
Subpart A--General
0
8. In Sec.  229.5, revise the definition of ``event recorder memory
module'' and add in alphabetical order definitions of ``image recording
system,'' ``NTSB,'' and ``recording device'' to read as follows:
Sec.  229.5  Definitions.
* * * * *
    Event recorder memory module means that portion of an event
recorder used to retain the recorded data as described in Sec. Sec.
229.135(b) and 229.136(a) through (c).
* * * * *
    Image recording system means a system of cameras or other
electronic devices that record images as described in Sec.  229.136,
and any components that convert those images into electronic data
transmitted to, and stored on, a memory module.
* * * * *
    NTSB means the National Transportation Safety Board.
* * * * *
    Recording device means a device that records images or audible
sounds, as described in Sec.  229.136.
* * * * *
Subpart C--Safety Requirements
0
9. Add Sec.  229.136 to read as follows:
Sec.  229.136  Locomotive image and audio recording devices.
    (a) Duty to equip and record. (1) Effective [DATE 4 YEARS AFTER
DATE OF PUBLICATION OF FINAL RULE], each lead locomotive of a train
used in commuter or intercity passenger service must be equipped with
an image recording system to record images of activities ahead of the
locomotive in the direction of travel (outward-facing image recording
device), and of activities inside the cab of the locomotive (inward-
facing image recording device).
    (i) If the lead locomotive is equipped with an image recording
system, the system must be turned on and recording whenever a train is
in motion, at all train speeds.
    (ii) If operating circumstances cause the controlling locomotive to
be other than the lead locomotive, railroads must also record images of
activities inside the cab of the controlling locomotive.
    (iii) Both cabs of a dual-cab locomotive shall be equipped with
inward- and outward-facing image recording systems. Image recordings
for only a dual-cab locomotive's active cab and the leading end of the
locomotive's movement are required to be made and retained.
    (2) Image recording systems installed after [DATE 1 YEAR AFTER DATE
OF PUBLICATION OF FINAL RULE] on new, remanufactured, or existing lead
locomotives used in commuter or intercity passenger service shall meet
the requirements of this section. Lead locomotives used in commuter or
intercity passenger service must be equipped with an image recording
system meeting the requirements of this section no later than [DATE 4
YEARS AFTER DATE OF PUBLICATION OF FINAL RULE].
    (3) For lead locomotives in commuter or intercity passenger
service, railroads must note the presence of any image and audio
recording systems in the REMARKS section of the Form FRA F6180-49A in
the locomotive cab.
    (4) The image recording system shall record at least the most
recent 12 hours of operation of a lead locomotive in commuter or
intercity passenger service.
    (5) Locomotive recording device data for each lead locomotive used
in commuter or intercity passenger service shall be recorded on a
memory module meeting the requirements for a certified crashworthy
event recorder memory module described in appendix D to this part.
    (b) Outward-facing recording system requirements for locomotives in
commuter or intercity passenger service. (1) The outward-facing image
recording system for lead locomotives in commuter or intercity
passenger service shall:
    (i) Include an image recording device aimed parallel to the
centerline of tangent track within the gauge on the front end of the
locomotive;
[[Page 35746]]
    (ii) Be able to distinguish the signal aspects displayed by wayside
signals;
    (iii) Record at a frame rate of a minimum of 15 frames per second
(or its equivalent) and have sufficient resolution to record the
position of switch points 50 feet in front of the locomotive;
    (iv) Be able to capture images in daylight or with normal nighttime
illumination from the headlight of the locomotive; and
    (v) Include an accurate time and date stamp on outward-facing image
recordings.
    (2) If a lead locomotive in commuter or intercity passenger service
experiences a technical failure of its outward-facing image recording
system, then the system shall be removed from service and handled in
accordance with paragraph (i) of this section.
    (c) Inward-facing image recording system requirements for
locomotives in commuter or intercity passenger service. (1) The inward-
facing image recording system on lead locomotives in commuter or
intercity passenger service shall include image recording device
positioned to provide complete coverage of all areas of the controlling
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, and:
    (i) Have sufficient resolution to record crewmember actions,
including whether a crewmember is physically incapacitated and whether
a crewmember is complying with the indications of a signal system or
other operational control system; and
    (ii) Record at a frame rate of at least 5 frames per second and be
capable of using ambient light in the cab, and when ambient light
levels drop too low for normal operation, automatically switch to
infrared or another operating mode that enables the recording
sufficient clarity to comply with the requirements of this paragraph
(c)(1).
    (2) The inward-facing recording(s) on lead locomotives in commuter
or intercity passenger service shall include an accurate time and date
stamp.
    (3) No inward-facing image recordings on locomotives in commuter or
intercity passenger service may be made of any activities within a
locomotive's sanitation compartment as defined in Sec.  229.5, and no
image recording device shall be installed in a location where the
device can record activities within a sanitation compartment.
    (4) If a lead locomotive in commuter or intercity passenger service
experiences a technical failure of its inward-facing image recording
system, then the system shall be removed from service and handled in
accordance with paragraph (i) of this section.
    (d) Image and audio recording system download protection
requirements for locomotives in commuter or intercity passenger
service. Railroads must provide convenient wire or wireless connections
to allow authorized railroad personnel to download audio or image
recordings from both any standard memory module and a certified
crashworthy memory module in lead locomotives in commuter or intercity
passenger service. The railroads also must use electronic security
measure(s) to prevent unauthorized download of the recordings.
    (e) Inspection, testing, and maintenance for image recording
systems on locomotives in commuter or intercity passenger service. The
image recording system on lead locomotives in commuter or intercity
passenger service shall have self-monitoring features to assess whether
the system is operating properly, including whether the system is
powered on.
    (1) If a fault with the image recording system is detected, the
locomotive shall not be used in the lead position after its next daily
inspection required under Sec.  229.21.
    (2) At each periodic inspection required under Sec.  229.23, the
railroad conducting the inspection shall take sample download(s) to
confirm operation of the system, and, if necessary, repair the system
to full operation.
    (f) Handling of recordings--(1) Chain-of-custody procedure. Each
railroad with locomotives in commuter or intercity passenger service
subject to this section shall adopt, maintain, and comply with a chain-
of-custody procedure governing the handling and the release of the
locomotive image recordings described in paragraphs (a) through (c) of
this section and any locomotive audio recordings. The chain-of-custody
procedure must specifically address the preservation and handling
requirements for post-accident/incident recordings provided to FRA or
other Federal agencies under paragraph (f)(2) of this section.
    (2) Accident/incident preservation. If any locomotive in commuter
or intercity passenger service is equipped with an image or audio
recording system and is involved in an accident/incident that must be
reported to FRA under part 225 of this chapter, the railroad that was
using the locomotive at the time of the accident shall, to the extent
possible, and to the extent consistent with the safety of life and
property, preserve the data recorded by each such device for analysis
by FRA or other Federal agencies. A railroad must either provide the
image and/or audio data in a format readable by FRA or other Federal
agencies; or make available to FRA or other Federal agencies any
platform, software, media device, etc. that is required to play back
the image and/or audio data. This preservation requirement shall expire
one (1) year after the date of the accident unless FRA or another
Federal agency notifies the railroad in writing that it must preserve
the recording longer. Railroads may extract and analyze such data for
the purposes described in paragraph (f)(3) of this section, only if:
    (i) The original downloaded data file, or an unanalyzed exact copy
of it, is retained in secure custody under the railroad's procedure
adopted under paragraph (f)(1) of this section; and
    (ii) It is not utilized for analysis or any other purpose, except
by direction of FRA or NTSB.
    (3) Recording uses. A railroad may use the image and audio
recordings from a locomotive in commuter or intercity passenger service
subject to this section to:
    (i) Investigate an accident/incident that is required to be
reported to FRA under part 225 of this chapter;
    (ii) Investigate a violation of a Federal railroad safety law,
regulation, or order, or a railroad's operating rules and procedures;
    (iii) Conduct an operational test under Sec.  217.9 of this
chapter;
    (iv) Monitor for unauthorized occupancy of a locomotive's cab or a
control cab locomotive's operating compartment;
    (v) Investigate a violation of a criminal law;
    (vi) Assist Federal agencies in the investigation of a suspected or
confirmed act of terrorism; or
    (vii) Perform inspection, testing, maintenance, or repair
activities to ensure the proper installation and functioning of an
inward-facing image recorder.
    (g) Locomotive image recording system approval process. Each
railroad with locomotives in commuter or intercity passenger service
subject to this section must provide the Associate Administrator for
Railroad Safety and Chief Safety Officer, Federal Railroad
Administration, RRS-15, 1200 New Jersey Avenue SE, Washington, DC
20590, with a written description of the technical aspects of any
locomotive image recording system installed to comply with this
section.
    (1) The written description must include information specifically
[[Page 35747]]
addressing the image recording system's:
    (i) Minimum 12-hour continuous recording capability;
    (ii) Crashworthiness; and
    (iii) Post-accident accessibility of the system's recordings.
    (2) The railroad must submit the written statement not less than 90
days before the installation of such image recording system, or, for
existing systems, not less than 30 days after [EFFECTIVE DATE OF FINAL
RULE].
    (3) The FRA Associate Administrator for Railroad Safety and Chief
Safety Officer will review a railroad's submission and may disapprove
any recordings systems that do not meet the requirements of this
section. FRA will notify the railroad of its disapproval in writing
within 90 days of FRA's receipt of the railroad's written submission,
and shall specify the basis for any disapproval decision.
    (h) Relationship to other laws. Nothing in this section is intended
to alter the legal authority of law enforcement officials investigating
potential violation(s) of State criminal law(s), and nothing in this
section is intended to alter in any way the priority of NTSB
investigations under 49 U.S.C. 1131 and 1134, or the authority of the
Secretary of Transportation to investigate railroad accidents under 49
U.S.C. 5121, 5122, 20107, 20111, 20112, 20505, 20702, 20703, and 20902.
    (i) Removal of device from service and handling for repair.
Notwithstanding the duty established in paragraph (a) of this section
to equip certain locomotives with image recording devices, a railroad
may remove from service an image recording device on a locomotive in
commuter or intercity passenger service, and must remove the device
from service if the railroad knows the device is not properly
recording. When a railroad removes a locomotive image recording device
from service, a qualified person shall record the date the device was
removed from service on Form FRA F6180-49A, under the REMARKS section.
A locomotive on which an image recording device has been taken out of
service as provided in this paragraph may remain as the lead locomotive
only until the next calendar-day inspection required under Sec.
229.21. A locomotive with an inoperative image recording device is not
deemed to be in an improper condition, unsafe to operate, or a non-
complying locomotive under Sec. Sec.  229.7 and 229.9.
    (j) Disabling or interfering with locomotive-mounted audio and
video recording equipment. Any individual who willfully disables or
interferes with the intended functioning of locomotive-mounted image or
audio recording system equipment on a passenger locomotive, or who
tampers with or alters the data recorded by such equipment, is subject
to a civil penalty and to disqualification from performing safety-
sensitive functions on a railroad as provided in parts 209 and 218 of
this chapter.
    (k) As used in this section--Train means: (1) A single locomotive;
    (2) Multiple locomotives coupled together; or
    (3) One or more locomotives coupled with one or more cars.
0
10. Revise the introductory text of appendix D to part 229 to read as
follows:
Appendix D to Part 229--Criteria for Certification of Crashworthy Event
Recorder Memory Module
    Section 229.135(b) requires railroads to equip certain
locomotives with an event recorder that includes a certified
crashworthy memory module. Section 229.136(a)(1) requires passenger
railroads to install locomotive-mounted image recording systems in
every lead locomotive used in commuter or intercity passenger
service. Section 229.136(a)(5) requires that data from these image
recording systems be recorded on a certified crashworthy memory
module. This appendix prescribes the requirements for certifying an
event recorder memory module (ERMM) or a locomotive-mounted audio
and/or image recording device memory module as crashworthy. For
purposes of this appendix, a locomotive-mounted audio or image
recording device memory module is also considered an ERMM. This
appendix includes the performance criteria and test sequence for
establishing the crashworthiness of the ERMM and marking the event
recorder or locomotive-mounted image or audio recording system
containing the crashworthy ERMM.
* * * * *
    Issued in Washington, DC.
Ronald L. Batory,
Administrator, Federal Railroad Administration.
[FR Doc. 2019-14407 Filed 7-23-19; 8:45 am]
BILLING CODE 4910-06-P