35712 Federal Register / Vol. 84, No. 142 / Wednesday, July 24, 2019 / Proposed Rules

DEPARTMENT OF TRANSPORTATION the online instructions for submitting 2. NTSB Safety Recommendation R–07– comments; 003 Federal Railroad Administration • Mail: U.S. Department of 3. NTSB Safety Recommendations R–10–01 Transportation, Docket Operations, M– & –02 49 CFR Parts 217, 218, 229, 240 and i. 2008 Metrolink Accident at Chatsworth, 30, West Building Ground Floor, Room California 242 W12–140, 1200 New Jersey Avenue SE, ii. 2015 Amtrak Accident at Philadelphia, [Docket No. FRA–2016–0036] Washington, DC 20590; Pennsylvania • Hand Delivery: U.S. Department of iii. Other Railroad Accidents RIN 2130–AC51 Transportation, Docket Operations, B. FRA Responses to NTSB West Building Ground Floor, Room Recommendations R–10–01 & –02 & Locomotive Image and Audio W12–140, 1200 New Jersey Avenue SE, Current Position Recording Devices for Passenger Washington, DC 20590, between 9 a.m. C. Current Use of Recording Devices To Trains and 5 p.m., Monday through Friday, Improve Safety & Security in Rail and Other Modes of Transportation AGENCY: Federal Railroad except Federal holidays; or • IV. Railroad Safety Advisory Committee Administration (FRA), Department of Fax: 1–202–493–2251. Proceedings Transportation (DOT). Instructions: All submissions must V. Privacy Concerns include the agency name and docket ACTION: Notice of proposed rulemaking VI. Additional Items for Comment number or Regulatory Identification (NPRM). A. Mandatory Installment of Inward- and Number (RIN) for this rulemaking Outward-Facing Recording Devices on SUMMARY: FRA is proposing to require (2130–AC51). Note that all comments Freight Locomotives the installation of inward- and outward- received will be posted without change B. Audio Recording Devices to http://www.regulations.gov, including C. Recording Device Run-Time/Shutoff facing locomotive image recording When Trains Stop Moving devices on all lead locomotives in any personal information provided. VII. Section-by-Section Analysis passenger trains, and that these devices Please see the Privacy Act heading in VIII. Regulatory Impact and Notices record while a lead locomotive is in the SUPPLEMENTARY INFORMATION section A. Executive Order 12866, Executive Order motion and retain the data in a of this document for Privacy Act 13563, Executive Order 13771, and DOT crashworthy memory module. FRA also information related to any submitted Regulatory Policies and Procedures proposes to treat locomotive-mounted comments or materials. B. Regulatory Flexibility Act and Executive recording devices on passenger Docket: For access to the docket to Order 13272; Initial Regulatory locomotives as ‘‘safety devices’’ under read background documents or Flexibility Assessment 1. Reasons for Considering Agency Action existing Federal railroad safety comments received, go to http:// www.regulations.gov at any time or to 2. A Succinct Statement of the Objectives regulations to prohibit tampering with of, and the Legal Basis for, the Proposed or disabling them. Further, this NPRM U.S. Department of Transportation, Rule would govern the use of passenger Docket Operations, M–30, West 3. A Description of, and Where Feasible, an locomotive recordings to conduct Building Ground Floor, Room W12–140, Estimate of the Number of Small Entities operational tests to determine passenger 1200 New Jersey Avenue SE, to Which the Proposed Rule Would railroad operating employees’ Washington, DC, between 9 a.m. and 5 Apply compliance with applicable railroad p.m., Monday through Friday, except 4. A Description of the Projected Reporting, rules and Federal regulations. FRA Federal holidays. Recordkeeping, and Other Compliance Requirements of the Rule, Including an FOR FURTHER INFORMATION CONTACT: requests comment on the need for and Estimate of the Class of Small Entities effects of potential, additional safety Brian Roberts, Trial Attorney, Office of That Will Be Subject to the Requirements requirements. Chief Counsel, FRA, 1200 New Jersey and the Type of Professional Skill DATES: Written comments on this Avenue SE, RCC–10, Mail Stop 10, Necessary for Preparation of the Report proposed rule must be received on or Washington, DC 20590 (telephone (202) or Record before September 23, 2019. Comments 493–6056 or 202–493–6052); Gary G. 5. Identification, to the Extent Practicable, Fairbanks, Staff Director, Motive Power of All Relevant Federal Rules That May received after that date will be Duplicate, Overlap, or Conflict With the considered to the extent possible & Equipment Division, Office of Safety Assurance and Compliance, FRA, 1200 Proposed Rule without incurring additional expense or C. Paperwork Reduction Act delay. New Jersey Avenue SE, RRS–15, Mail D. Federalism Implications FRA anticipates being able to resolve Stop 25, Washington, DC 20590 E. Environmental Impact this rulemaking without a public (telephone (202) 493–6322); or Christian F. Executive Order 12898 (Environmental hearing. However, if prior to August 23, Holt, Operating Practices Specialist, Justice) 2019, FRA receives a specific request for Operating Practices Division, Office of G. Executive Order 13175 (Tribal a public hearing accompanied by a Safety Assurance and Compliance, FRA, Consultation) showing that the party is unable to 1200 New Jersey Avenue SE, RRS–15, H. Unfunded Mandates Reform Act of 1995 I. Energy Impact adequately present his or her position Mail Stop 25, Washington, DC 20590 (telephone (202) 366–0978). J. Trade Impact by written statement, a hearing will be K. Privacy Act scheduled and FRA will publish a SUPPLEMENTARY INFORMATION: I. Executive Summary supplemental notice in the Federal Table of Contents for Supplementary Register to inform interested parties of Information On December 4, 2015, President the date, time, and location of any such Obama signed into law the Fixing hearing. I. Executive Summary America’s Surface Transportation Act, II. Rulemaking Authority and FAST Act ADDRESSES: You may submit comments Public Law 114–94, 129 Stat. 1686 (Dec. Requirements identified by the docket number FRA– III. Background 4, 2015) (FAST Act). Section 11411 of 2016–0036 by any one of the following A. Railroad Accidents & NTSB Locomotive the FAST Act, codified in the Federal methods: Recorder Recommendations railroad safety laws at 49 U.S.C. 20168 • Federal eRulemaking Portal: Go to 1. NTSB Safety Recommendation R–97– (the Statute), requires FRA (as the http://www.regulations.gov and follow 009 Secretary of Transportation’s delegate)

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to promulgate regulations requiring each Class I railroads, are already in the costs of this proposed rule over a 10- railroad carrier that provides regularly process of voluntarily installing year period using discount rates of 3 scheduled intercity rail passenger or recording devices on their locomotives and 7 percent. For the 10-year period commuter rail passenger transportation without a Federal requirement. Finally, analyzed, the estimated quantified net to the public to install inward- and recordings from these voluntarily costs to the industry total $31,837,918 outward-facing image recording devices installed systems are already subject to (present value (PV), 7 percent), or in all controlling locomotives of the current requirements for the $34,664,317 (PV, 3 percent). The passenger trains. This NPRM proposes preservation of accident data found in annualized costs for the 10-year period to implement the FAST Act 49 CFR 229.135(e). are $4,533,003 (PV, 7 percent) and requirements regarding such recording Regardless, FRA will continue to $4,063,715 (PV, 3 percent). Some safety devices. monitor freight railroads’ installation benefits of this proposed rule could Before the FAST Act was enacted, efforts of inward- and outward-facing accrue from the collection of accident FRA announced at a May 2015 meeting locomotive recording devices and is causation information, which is critical of the Railroad Safety Advisory inviting public comment on whether to prevent future accidents. Other, Committee (RSAC) it intended to draft FRA should require freight railroads to probably larger, safety benefits could an NPRM that would propose the install these devices in some or in all accrue from deterring unsafe behaviors installation of locomotive recording their locomotives now or in the future. that cause railroad accidents (e.g., text devices in both freight and passenger In addition, FRA welcomes public messaging while operating a train). train locomotives. In 2014, the RSAC comment on the extent to which FRA Other benefits accrue from beneficial had accepted a task from FRA to address should apply the proposed requirements changes in crew behavior not directly National Transportation Safety Board in this NPRM to recording devices related to safety, such as the ability to: (NTSB) Safety Recommendations R–10– freight railroads have already installed (1) Conduct low-cost operational tests 01 & –02 on locomotive-mounted in their locomotives or will voluntarily that are currently impractical to perform recording devices (RSAC Task No. 14– install in the future. without cameras (e.g., for prohibited use 01). The RSAC established the FRA proposes that within four years of personal electronic devices), (2) Recording Devices Working Group of the date of publication of a final rule, research and improve crew safety and (Working Group) to recommend specific intercity passenger and commuter productivity practices, and (3) enhance actions regarding the installation and railroads must install compliant image investigations of potential trespassers use of locomotive-mounted recording recording systems on the lead and other unauthorized individuals. devices, such as inward- and outward- locomotives of all their passenger trains. facing video and audio recorders.1 The FRA proposes that beginning one year In addition to reviewing the NTSB RSAC did not vote, or reach consensus, after publication of a final rule, any recommendations discussed in this on any recommendations to FRA recording systems installed on new, NPRM and how other DOT modes regarding the adoption of regulatory text remanufactured,3 or existing passenger address inward- and outward-facing addressing locomotive-mounted video train lead locomotives would have to cameras in vehicles, FRA also and audio recording devices. meet the specified requirements. As conducted a literature review for In light of the FAST Act mandate, required by statute, this NPRM proposes scholarly papers and other research on relevant NTSB recommendations, the that the last twelve hours of data the benefits of inward- and outward- RSAC Working Group’s discussions, recorded by such devices on passenger facing recording devices, with a primary and recent accidents and other railroad train lead locomotives must be stored in focus on inward- and outward-facing safety violations that FRA has a memory module that meets the locomotive cameras. Although FRA investigated and is investigating, this existing crashworthiness requirements found few substantive academic or NPRM proposes to require the in FRA’s locomotive event recorder technical papers on the safety benefits installation and use of inward- and regulation at 49 CFR part 229. In of inward- and outward-facing cameras outward-facing recording devices in all addition, this NPRM proposes to treat in locomotives, FRA did identify a lead locomotives in passenger trains to locomotive-mounted recording devices relevant report prepared by the improve railroad safety. The NPRM does in passenger locomotives as ‘‘safety Transportation Safety Board of Canada not propose to require such recording devices’’ under 49 CFR part 218, subpart (TSB).4 According to TSB’s report, the devices in freight locomotives. D, thereby making it a violation of benefits of locomotive recording devices FRA is not proposing to require applicable Federal regulations to tamper include: (1) Help in post-accident inward- and outward-facing recording with or disable those locomotive- investigations; identification of devices in freight locomotives for mounted recording devices. operational and human factors that several reasons. Foremost, the FAST Act FRA notes that the proposed image contribute to accidents; (2) use of requires FRA to promulgate regulations recording device requirements for camera footage to identify desirable and requiring only commuter and intercity passenger train locomotives would undesirable behaviors of railroad passenger railroads to install inward- supplement FRA’s existing locomotive employees to determine what and outward-facing image recording event recorder regulation at 49 CFR part procedures or employee behaviors could devices in all of their controlling (or 229. Locomotive event recorders are benefit from additional training, system ‘‘lead’’) locomotives; there is no required on the lead locomotives of design or equipment changes; and (3) corresponding statutory mandate for trains traveling over 30 mph and already how the cameras could improve train freight railroads to install such devices record numerous operational parameters crew and passenger safety by identifying in their locomotives. In addition, the that assist in accident/incident cost to freight railroads of implementing investigation and prevention. 4 See Transportation Safety Board of Canada, such a requirement outweighs its FRA used a cost benefit analysis to Railway Safety Issues Investigation Report: potential safety benefits.2 Furthermore, evaluate the impact of the proposed rule Expanding the use of locomotive voice and video many freight railroads, including all on passenger locomotive image recorders in Canada. Report no. R16H0002 (2016). The report has been placed in the docket for this recording devices. FRA estimated the rulemaking and is available at: http://www.bst- 1 https://rsac.fra.dot.gov/tasks.php. tsb.gc.ca/eng/rapports-reports/rail/etudes-studies/ 2 See Regulatory Impact Analysis pg. 17. 3 See 49 CFR 229.5. r16h0002/r16h0002.asp.

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potential security risks both inside and and (3) recordings accessible for review proposed in part 218 that such outside of the locomotive cab. during an accident or incident recording devices on passenger trains be While the literature reviewed by FRA investigation. The rule text proposed in treated as ‘‘safety devices’’ under the identified several qualitative benefits § 229.136, below, would establish the applicable Federal regulation. FRA associated with locomotive recording criteria for the image recording devices proposed this during the RSAC process, devices, FRA was unable to find in its to meet these three specified standards. stating it was changing its position from literature review any sources that Paragraph (c) of the Statute requires that conveyed in a May 2010 FRA letter specifically help quantify those benefits, FRA to establish a review and approval to the Southern California Regional Rail and therefore invites comment and the process to ensure that the three Authority (Metrolink) through the submission of any data or studies that standards described in paragraph (b) are notice and comment process in this would help FRA quantify the benefits of met for image recording devices on rulemaking.5 In the 2010 letter, FRA inward- and outward-facing locomotive passenger train lead locomotives. indicated that inward-facing cameras recording devices in this rulemaking. Proposed § 229.136(g), below, would were not considered ‘‘safety devices’’ require passenger railroads to submit II. Rulemaking Authority and FAST under 49 CFR part 218. For the reasons information to FRA regarding whether Act Requirements explained in the section-by-section the recording device system installed on analysis below, FRA has changed its FRA is publishing this proposed rule a particular locomotive(s) subject to the position on this issue based on the as mandated by section 11411 of the final rule meets the established criteria. Statute and other recent developments. FAST Act, codified at 49 U.S.C. 20168 FRA plans to publish a list of any FRA notes that the letter, which FRA (the Statute), and under the agency’s previously approved systems on its has placed in the public docket for this general railroad safety rulemaking internet website for railroads’ NPRM, is consistent with paragraph (f) authority at 49 U.S.C. 20103. The former convenience. of the Statute because it stated railroad Federal Railroad Safety Act of 1970, as Paragraph (d) establishes what the disciplinary action might be appropriate codified at 49 U.S.C. 20103, provides passenger railroad carriers subject to the at a railroad’s discretion if an employee that ‘‘[t]he Secretary of Transportation, Statute may use image recordings for, were found to tamper with a locomotive as necessary, shall prescribe regulations and permits FRA to establish other recording device. and issue orders for every area of appropriate purposes. The rule text FRA Paragraph (g) of the Statute requires railroad safety supplementing laws and presented to the RSAC addressed the each passenger carrier subject to the regulations in effect on October 16, items listed in paragraph (d) (verifying FAST Act’s recording device 1970.’’ The Secretary’s responsibility that crew actions are in accordance with requirements preserve recordings for under these statutory provisions, and applicable safety laws and railroad one year after the occurrence of a the balance of the railroad safety laws, operating rules, assisting accident reportable accident or incident. This is delegated to the Federal Railroad investigations, and documenting preservation requirement for passenger Administrator. 49 CFR 1.89. violations of law). FRA has proposed an locomotive image and audio recordings The Statute requires FRA (as the amended version of the language it is being included in § 229.136 for Secretary’s delegate) to promulgate this presented to the RSAC in proposed organizational clarity with other proposed regulation for passenger train § 229.136(f)(3), below, to address this requirements for locomotive image and locomotives. FRA’s proposal FAST Act provision and specifically audio recording devices. Specifically, in implementing each statutory include the use of recordings to detect its 2010 letter to Metrolink, discussed requirement is explained in more detail the presence of unauthorized persons in above, FRA explained that locomotive in the section-by-section analysis. locomotive cabs. FRA is also requesting image recordings, like other locomotive However, in general, the Statute comment on whether other appropriate event recordings, must already be requires that by December 4, 2017, FRA safety-related uses exist for locomotive preserved for one year following an must promulgate a regulation requiring recordings. accident under existing § 229.135(e). each railroad carrier that provides Paragraph (e)(1) of the Statute gives While this existing requirement regularly scheduled intercity rail FRA discretion to similarly require includes recordings from freight passenger or commuter rail passenger audio-recording devices be installed on locomotive recording devices, the transportation to the public to install passenger train lead locomotives and to proposed preservation requirement in inward- and outward- facing image establish corresponding technical § 229.136, below, would apply only to recording devices in all controlling (or details for such devices. FRA has not passenger locomotive recording devices. ‘‘lead’’) locomotive cabs and car proposed specific rule text that would Paragraph (h) of the Statute addresses operating compartments in passenger require audio recording devices, but in a significant issue discussed during the trains. For purposes of this NPRM, FRA the preamble below requests comment RSAC process involving the public intends that railroad carriers providing on whether to require audio recording availability, including disclosure under ‘‘intercity rail passenger transportation’’ devices on passenger and freight the Freedom of Information Act (5 and ‘‘commuter rail passenger locomotives in a final rule. U.S.C. 552) (FOIA), of recordings that transportation’’ subject to this rule to be Paragraph (e)(2) of the Statute gives FRA takes possession of after a railroad the same as those covered by 49 U.S.C. FRA discretion to provide an exemption accident. Paragraph (h) is similar to the 24102 (passenger railroads required to from the inward- and outward-facing prohibition on public disclosure of install positive train control (PTC) image recording device requirements locomotive recordings NTSB takes systems under 49 U.S.C. 20157(a)). based on alternative technologies or possession of under 49 U.S.C. 1114(d). Paragraph (b) of the Statute specifies practices that provide for an equivalent Paragraph (h) prohibits FRA from that each required passenger locomotive or greater safety benefit or that are better disclosing publicly locomotive audio image recording device shall have: (1) A suited to the risks of the operation. and image recordings or transcripts of Paragraph (f) of the Statute permits minimum 12-hour continuous recording oral communications by or among train capability; (2) crash and fire protections passenger railroads to take appropriate for any in-cab image recordings stored action against employees who tamper 5 See NPRM docket; Mark H. Tessler letter to only within a controlling locomotive with audio or image recording devices Metrolink, Locomotive video cameras, (May 18, cab or cab car operating compartment; installed on their locomotives. FRA has 2010).

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employees or other operating occurrence of a locomotive recording in part, ‘‘the apparent failure of the employees, or between such operating device failure. Nonetheless, the Statute [MARC] engineer and the traincrew employees and communication center requires the railroad to repair or replace because of multiple distractions to employees, related to an accident or the recording device as soon as operate MARC train 286 according to incident FRA is investigating. FRA may practicable. FRA’s proposal in signal indications ....’’6 make public a transcript or a written § 229.136, below, is consistent with this As a result of this accident, the NTSB depiction of visual information it deems provision, and defines ‘‘as soon as made recommendation R–97–009 to relevant to the accident at the time other practicable’’ to mean that the FRA, recommending that FRA amend 49 factual reports on the accident are locomotive must be replaced as the lead CFR part 229 to ‘‘require the recording released to the public. This statutory locomotive no later than after the next of train crewmembers’ voice provision is discussed in more detail in calendar day’s inspection if the communications for exclusive use in the preamble sections addressing recording device system has not been accident investigations and with privacy and locomotive recording- repaired or replaced. appropriate limitations on the public handling below. release of such recordings.’’ 7 In making Paragraph (i) of the Statute prohibits III. Background the recommendation, NTSB stated that a railroad subject to this provision from A. Railroad Accidents & NTSB during its investigation, it could not using an in-cab audio or image Locomotive Recorder Recommendations document crew communications recording to retaliate against an regarding signal indications as the train employee. FRA believes this provision In developing this proposed rule, FRA approached the location where the to be a restatement of existing reviewed relevant railroad accidents as accident occurred and that locomotive prohibitions in Federal, State, and local well as related Safety Recommendations event recorders cannot answer questions laws that prohibit retaliation against NTSB issued to FRA involving audio about a train crew’s knowledge or railroad employees, and merely and image recordings. Based on FRA’s actions during accident investigations. establishes that recordings may not be analysis of these accidents and related All three operating crew members used as a tool to conduct such illegal NTSB Recommendations (discussed aboard MARC train 286 were killed in retaliation. FRA does not believe immediately below), FRA determined the accident. NTSB pointed to the long Congress intended this provision to that the requirements of this proposed history of cockpit voice recorders (CVR) apply to railroad rules’ violations rule would achieve safety benefits in in the aviation industry, as mandated by discovered via railroad review of audio two primary ways. First, the proposed the FAA in certain commercial aviation and video recordings under a railroad’s requirements of this NPRM, if adopted, operations since 1964.8 The NTSB established procedures. The purpose of would provide critical post-accident explained that the use of CVRs had been this section and the relevant NTSB data, which would help FRA (as well as useful during aviation accident recommendations addressing this topic other Federal and state agencies, investigations and were ‘‘an almost are to identify and address safety railroads, labor groups, and other necessary tool in documenting the violations, such as the prohibited use of stakeholders) ascertain the cause of operational decisions or mistakes of the personal electronic devices while accidents for purposes of preventing crew that lead up to an accident.’’ 9 performing safety-critical duties that future accidents. Second, FRA believes NTSB reiterated its recommendation endanger public safety. Railroads take requiring inward-facing recording after a January 1999 collision near disciplinary actions for such rules’ devices on all lead locomotives in Bryan, Ohio, involving three violations now (in the absence of passenger trains would be a deterrent Consolidated Rail Corporation (Conrail) locomotive recordings) under the against illegal and unsafe practices that freight trains. The accident occurred existing legal framework and collective can cause accidents. when westbound Conrail train Mail-9 bargaining agreements governing 1. NTSB Safety Recommendation R–97– was traveling 56 mph and struck the railroad employment. Accordingly, FRA 009 rear of a slower moving freight train understands this section to address ahead of it that was also traveling illegal retaliation implicated by existing On February 16, 1996, a Maryland westbound. Both trains derailed, with statutes such as the railroad employee Rail Commuter (MARC) passenger train derailed equipment then striking and whistleblower law at 49 U.S.C. 20109, collided with a National Railroad derailing a third freight train that was and which are addressed via grievance Passenger Corporation (Amtrak) traveling the opposite (eastbound) process remedies for wrongful discharge passenger train near Silver Spring, direction on an adjacent main track. under the Railway Labor Act, 45 U.S.C. Maryland. Eleven people were killed The NTSB found that the probable 151 et seq. Paragraph (i) is silent about and 26 people were injured as a result cause of that accident was ‘‘the failure freight locomotive recordings because of the accident. The accident occurred of the crew of train Mail-9 [striking by its terms section 11411 only applies when MARC train 286 was delayed in train] to comply with restrictive signal to passenger railroads. However, for block for a station stop while operating indications while operating at or near passenger railroads, FRA has addressed on an ‘‘approach’’ signal indication maximum authorized speed in dense Congress’ intent regarding retaliation in requiring the train to approach the next the rule text proposed below. The rule signal prepared to stop. However, 6 National Transportation Safety Board, Collision would limit the permitted uses of MARC train 286 proceeded after making and Derailment of Maryland Rail Commuter MARC locomotive recordings and proposes to the station stop as if operating on a Train 286 and National Railroad Passenger ‘‘clear’’ signal indication, could not stop Corporation Amtrak Train 29 Near Silver Spring, require that operational tests involving Maryland on February 16, 1996. Railroad Accident review of in-cab locomotive recordings for the subsequent ‘‘stop’’ signal, and Report NTSB/RAR–97/02 (July 3, 1997); available be randomly conducted within limited collided with Amtrak train 3 at online at http://www.ntsb.gov/investigations/ time frames under an established Georgetown Junction. The NTSB, which AccidentReports/Reports/RAR9702.pdf. written railroad procedure that is is the independent Federal agency 7 National Transportation Safety Board, Safety Recommendation R–97–009 (Aug. 28, 1997); subject to FRA review. charged by Congress with investigating available online at: http://www.ntsb.gov/safety/ Finally, paragraph (j) makes clear the significant transportation accidents, to safety-recs/recletters/R97_9_21.pdf. Statute does not restrict a train from include railroad accidents, found that 8 Supra, n. 6 at 51. continuing in operation upon the the probable cause of the accident was, 9 Supra, n. 6 at 52.

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fog.’’ 10 Both crew members of the to the signals was most likely reduced November 2007 RSAC Locomotive striking train in that incident were by fatigue; however, due to the lack of Working Group meeting, and classified killed and NTSB concluded that a locomotive cab voice recorder or the FRA’s response to the recommendation recorded crew communications might availability of other supporting as ‘‘Open—Acceptable Response.’’ have provided valuable clues in evidence, other factors cannot be ruled However, Recommendation R–07–003 reconstructing the accident, which out.’’ 14 The NTSB concluded that if a was ultimately classified by NTSB as could have ‘‘possibly enabled the locomotive voice recorder had been ‘‘Closed—Unacceptable Action/ carrier, the railroad unions, and the installed on the controlling locomotive Superseded,’’ on February 23, 2010, Federal Railroad Administration to of the northbound train and survived after adoption of the report addressing make systemic changes to prevent the collision and resulting fire, the the September 12, 2008, Metrolink similar accidents from occurring.’’ 11 recordings would ‘‘yield a better accident in Chatsworth, California, The NTSB report also cited new understanding of the cause of the discussed directly below.20 statutory authority, codified at 49 U.S.C. accident and of the ways it might have 3. NTSB Safety Recommendations R– 1114(d), that included provisions for the 15 been prevented.’’ As a result, NTSB 10–01 & –02 NTSB to protect such recordings from issued Safety Recommendation R–07– public disclosure during accident 003, recommending FRA require i. 2008 Metrolink Accident at investigations. railroads to install on locomotives a Chatsworth, California FRA declined to implement NTSB crash and fire protected voice recorder, On September 12, 2008, in Recommendation R–97–009, which only or combined voice and video recorder, Chatsworth, California, a collision recommended the installation of audio with the recordings only to be used for occurred between a Metrolink passenger recorders, but not image recording accident investigations.16 The NTSB train and a Union Pacific Railroad devices. At that time, FRA agreed that referenced several other accidents 17 in Company (UP) freight train,21 after the crew audio recordings could be making this recommendation in which locomotive engineer operating the beneficial for some investigations, but it believed locomotive video recordings Metrolink passenger train failed to stop conveyed its concerns to NTSB would have been useful in investigating his train for a stop signal. As a result of regarding implementation of the the accidents. the accident, 25 persons on the recommendation, which included the FRA responded to this NTSB Metrolink train were killed and 102 significant costs of such a requirement, recommendation, stating FRA had injured passengers were transported to the existing availability of locomotive broached the subject of the NTSB’s the hospital. Property damage was event recorder data, competing recommendation regarding voice estimated to be more than $12 million. regulatory priorities, and concern recorders on two occasions with the The NTSB found the probable cause of regarding the privacy and comfort of RSAC in 2007 without resolution, and 12 the accident was the Metrolink train crews. FRA stated the planned to discuss the recommendation locomotive engineer’s distraction due to recommendation might warrant re- again at a future RSAC meeting.18 FRA’s the use of a personal cell phone to send examination in the future, but requested response also noted technical concerns text messages resulting in a failure to it be placed in the status of ‘‘Closed— with implementing the NTSB comply with the signal indication.22 Reconsidered.’’ NTSB ultimately recommendation, and discussed its Shortly after the Metrolink accident, classified the recommendation as previously-raised privacy and cost- the Rail Safety Improvement Act of ‘‘Closed—Unacceptable Action’’ in related concerns.19 A later NTSB 2008 23 (RSIA) was enacted and 2004.13 response noted FRA had indeed mandated, among other items, that 2. NTSB Safety Recommendation R–07– discussed the recommendation at a railroads install PTC systems. Also after 003 the accident, FRA issued its Emergency 14 Several years later, on July 10, 2005, National Transportation Safety Board, Collision Order No. 26 (E.O. 26). 73 FR 58702 of Two CN Freight Trains Anding, Mississippi July (Oct. 7, 2008). E.O. 26 prohibited two Canadian National Railway 10, 2005, Railroad Accident Report NTSB/RAR–07/ Company (CN) freight trains collided 01 (Mar. 20, 2007); available online at: http:// railroad operating employees (typically near Anding, Mississippi. The accident www.ntsb.gov/investigations/AccidentReports/ train crew members such as locomotive Reports/RAR0701.pdf. engineers and conductors) performing occurred in single-main track territory 15 after the crew of a northbound CN train Id. safety-related duties from using or 16 National Transportation Safety Board, Safety turning on electronic devices such as passed a stop signal without stopping Recommendation R–07–003 (Apr. 25, 2007); and collided head-on with a available online at: http://www.ntsb.gov/safety/ personal cell phones. The requirements southbound CN train. The crews of both safety-recs/recletters/R07_1_3.pdf. in E.O. 26 were codified in amended trains were killed in the accident. The 17 See, e.g., National Transportation Safety Board, form at 49 CFR part 220, subpart C, in NTSB’s probable cause finding stated Collision Between Two BNSF Railway Company an FRA final rule published on Freight Trains Near Gunter, Texas, May 19, 2004, September 27, 2010, which took effect the northbound train crew’s ‘‘attention Railroad Accident Report NTSB/RAR–06/02 (June 13, 2006); National Transportation Safety Board, on March 28, 2011. 75 FR 59580. 10 National Transportation Safety Board, Collision Collision of Union Pacific Railroad Train MHOTU– Among other requirements in the final Involving Three Consolidated Rail Corporation 23 With BNSF Railway Company Train MEAP– rule, railroad operating employees are Freight Trains Operating in Fog on a Double Main TUL–126–D With Subsequent Derailment and required to receive training on the Track Near Bryan, Ohio January 17, 1999. Railroad Hazardous Materials Release, Macdona, Texas, Accident Report NTSB/RAR–01/01 (May 9, 2001); June 28, 2004, Railroad Accident Report NTSB/ available online at: http://www.ntsb.gov/ RAR–06/03 (July 7, 2006); National Transportation 20 Id. investigations/AccidentReports/Reports/ Safety Board, Collision of Two Union Pacific 21 See National Transportation Safety Board, RAR0101.pdf. Railroad Freight Trains, Texarkana, Arkansas, Collision of Metrolink Train 111 With Union Pacific 11 Id. at 47. October 15, 2005, Railroad Accident Brief NTSB/ Train LOF65–12 Chatsworth, California September 12 National Transportation Safety Board, Safety RAB–06/04 (Oct. 17, 2006). 12, 2008, Accident Report NTSB/RAR–10/01 (Jan. Recommendation History for Safety 18 National Transportation Safety Board, Safety 21, 2010); available online at: http://www.ntsb.gov/ Recommendation R–97–009: Available online at: Recommendation History for Safety investigations/AccidentReports/Reports/ http://www.ntsb.gov/investigations/data/_layouts/ Recommendation R–07–003: Available online at: RAR1001.pdf. ntsb.recsearch/Recommendation.aspx?Rec=R-97- http://www.ntsb.gov/_layouts/ntsb.recsearch/ 22 Id. at 66. 009. Recommendation.aspx?Rec=R-07-003. 23 Public Law 110–432, Division A, 122 Stat. 4848 13 Id. 19 Id. (Oct. 16, 2008).

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regulation’s requirements governing the require railroads to review locomotive mph. The maximum authorized use of electronic devices while on duty image and audio recordings to conduct passenger train speed for the curve was and are also required to be tested by such operational tests. 50 mph. NTSB determined the train was railroad supervisors to determine the In issuing these recommendations, the traveling approximately 106 mph within employees’ compliance with such NTSB’s report on the Chatsworth the curve’s 50-mph speed restriction, requirements. 49 CFR 220.313–220.315. accident explained that the engineer on exceeding the maximum authorized The NTSB’s report on the Chatsworth the Metrolink train who caused the speed on the straightaway by 26 mph accident resulted in two Safety accident knowingly violated railroad and on the curve by 56 mph.30 NTSB Recommendations, R–10–01 and R–10– rules regarding the use of personal has also indicated the locomotive 02.24 Safety Recommendation R–10–01 electronic devices while operating his engineer operating the train made an superseded Safety Recommendation R– train.25 The NTSB explained that in the emergency application of Train 188’s air 07–003, and recommended that FRA: relative privacy of the locomotive cab, brake system, and the train slowed to Require the installation, in all controlling the locomotive engineer of the approximately 102 mph before derailing locomotive cabs and cab car operating Metrolink train (as is the case with most in the curve. compartments, of crash- and fire-protected train operations in this country) could On July 8, 2015, NTSB sent a letter to inward- and outward-facing audio and image use his personal cell phone without any FRA reiterating NTSB recommendations recorders capable of providing recordings to possibility of being caught, except when R–10–01 & –02.31 NTSB’s letter verify that train crew actions are in a railroad manager might physically be explained the engineer of Amtrak 188 accordance with rules and procedures that in or near the cab of the locomotive.26 are essential to safety as well as train stated he could not recall the events operating conditions. The devices should However, NTSB posited that if the leading up to the derailment, and that have a minimum 12-hour continuous engineer had known he was being investigators have been unable to recording capability with recordings that are recorded, and railroad supervisors determine information about the easily accessible for review, with appropriate would regularly review the recordings, engineer’s behavior in the moments limitations on public release, for the such rules’ violations would have been leading up to the accident.32 The letter investigation of accidents or for use by deterred.27 indicated NTSB believes inward-facing management in carrying out efficiency testing and systemwide performance monitoring ii. 2015 Amtrak Accident at locomotive recorders could have programs. Philadelphia, Pennsylvania provided valuable information to help determine the cause of the accident. In In addition, Safety Recommendation R–10– On Tuesday, May 12, 2015, Amtrak 02 recommended that FRA: sum, given that information on the Require that railroads regularly review and passenger train 188 (Train 188) was actions of the engineer before the use in-cab audio and image recordings (with traveling from Washington, DC, to New accident was lacking, there are appropriate limitations on public release), in York City. Aboard the train were five potentially critical pieces of information conjunction with other performance data, to crew members and approximately 238 missing about the cause of this accident verify that train crew actions are in passengers. Shortly after 9:20 p.m., the that resulted in the deaths of eight accordance with rules and procedures that train derailed while traveling through a are essential to safety. people. After this accident occurred, curve in the track at Frankford Junction Amtrak equipped its ACS–64 The NTSB’s recommendations in in Philadelphia, Pennsylvania. As a locomotives on the Northeast Corridor response to the Chatsworth accident result of the accident, eight persons with inward-facing cameras. differed from its previous were killed and a significant number of recommendations regarding locomotive persons were seriously injured. The iii. Other Railroad Accidents accident was investigated by NTSB, recording devices. FRA believes the The NTSB reiterated Safety which took the lead role conducting the prior recommendations were primarily Recommendations R–10–01 & –02 in investigation of this accident under its made intending that locomotive response to other railroad accidents at legal authority. 49 U.S.C. 1101 et seq.; recordings would be used as a post- Red Oak, Iowa; 33 Two Harbors, accident investigation tool with the goal 49 CFR 831.2(b). As is customary, FRA of gaining insight into accident causes participated in the NTSB’s investigation 30 FRA regulations provide, in part, that it is to appropriately direct safety and also investigated the accident under unlawful to ‘‘[o]perate a train or locomotive at a recommendations to prevent similar its own statutory authority. speed which exceeds the maximum authorized accidents from occurring. Both NTSB’s 28 and FRA’s 29 accident limit by at least 10 miles per hour.’’ 49 CFR Recommendations R–10–01 and R–10– investigations concluded that excessive 240.305(a)(2). train speed was the cause of the 31 National Transportation Safety Board, Safety 02 shared those same goals, but also Recommendation History for Safety recommended FRA require regular accident. As Train 188 approached the Recommendation R–10–001: Available online at: railroad review of recordings be part of curve from the west, it traveled over a http://www.ntsb.gov/_layouts/ntsb.recsearch/ a railroad’s operational (efficiency) straightaway with a maximum Recommendation.aspx?Rec=R-10-001. NTSB also authorized passenger train speed of 80 sent a letter regarding locomotive recorder testing program as a proactive accident recommendations to Amtrak. prevention tool to gauge employee 32 However, the NTSB’s analysis of the engineer’s 25 compliance with applicable rules. Supra, n. 21 at 55. phone records does not indicate that any calls, Under existing 49 CFR 217.9, railroads 26 Id. at 57. texts, or data usage occurred during the time the 27 are required to have an operational Id. at 58. engineer was operating the train. National 28 National Transportation Safety Board, Transportation Safety Board, Second Update on its testing program to gauge employee Derailment of Amtrak Passenger Train 188, Investigation into the Amtrak Derailment in compliance with relevant operating Philadelphia, Pennsylvania, May 12, 2015. NTSB Philadelphia (June 10, 2015); available online at: rules, timetables, and special Accident Report NTSB/RAR–16/02 (May 17, 2016); http://www.ntsb.gov/news/press-releases/Pages/ instructions. Under the NTSB’s available online at: https://www.ntsb.gov/ PR20150610.aspx. investigations/AccidentReports/Reports/ 33 National Transportation Safety Board, Collision recommendations, FRA would also RAR1602.pdf. of BNSF Coal Train With the Rear End of Standing 29 Federal Railroad Administration, Accident BNSF Maintenance-of-Way Equipment Train, Red 24 National Transportation Safety Board, Safety Investigation Report HQ–2015–1052, Amtrak (ATK), Oak, Iowa April 17, 2011, NTSB Accident Report Recommendations R–10–01 and R–10–02 (Feb. 23, Philadelphia, PA, May 12, 2015; available online at: NTSB/RAR–12/02 (Apr. 24, 2012); available online 2010); available online at: http://www.ntsb.gov/ https://www.fra.dot.gov/eLib/details/L18424#p1_ at: http://www.ntsb.gov/investigations/Accident safety/safety-recs/recletters/R-10-001-002.pdf. z50_gD_lAC. Reports/Reports/RAR1202.pdf.

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Minnesota; 34 Chafee, Missouri; 35 and The NTSB similarly discussed root cause of the accidents. Without Goodwell, Oklahoma,36 respectively. inward-facing cameras in its report on such recordings, regulatory and industry The NTSB has also made similar the 2012 Goodwell, Oklahoma accident, efforts to learn about and ultimately recommendations to railroads regarding which occurred when a UP crew failed prevent such incidents are inhibited. the installation and use of locomotive to comply with wayside signal The NTSB’s reiteration of Safety image and audio recording devices (see, indications and were killed in a Recommendations R–10–01 & –02 in e.g., NTSB Safety Recommendations R– subsequent collision with another response to the 2010 Two Harbors, 14–08 & –09 37 to the Metro-North freight train.41 The NTSB indicated that Minnesota, accident was related to the Railroad after the December 2013 causal factors included the locomotive prohibited use of personal electronic accident near Spuyten Duyvil Station in engineer’s apparent vision problems and devices by train crew members. In that Bronx, New York, in which four Metro- the conductor’s disengagement from his accident, a CN train crew failed to North passengers were killed). These duties.42 However, NTSB stated that an properly comply with an after-arrival accidents all appear to involve human inward-facing locomotive video mandatory directive and struck another factor causes, but absent locomotive recording could have ‘‘shed light on the freight train traveling the opposite recordings there is a lack of information activities of the [crew] leading up to the direction on single main track. The regarding the crew actions leading up collision and why the crew did not NTSB’s investigation indicated that four the accidents. respond to wayside signals.’’ 43 of the five crewmembers on the two For example, in the 2011 Red Oak, FRA has similarly identified the value trains involved in the accident had used Iowa, accident, a BNSF Railway of inward-facing image recordings for their personal cell phones while on duty Company (BNSF) freight train crew other recent accidents not listed above on the date of the accident contrary to failed to operate their train at restricted that might provide the only means of applicable railroad rules and FRA’s E.O. speed as required by signal indication, conclusively determining what caused 26 discussed above.46 The NTSB and collided with the rear end of a or contributed to an accident, and, more concluded the use of cell phones by standing train. Both crew members of importantly, to develop necessary crewmembers on both trains involved in the striking train were killed. The corrective actions to prevent similar the accident was a distraction to the safe NTSB’s probable cause determination train accidents from occurring. For operation of the trains,47 and cited a list indicated the cause of the accident was example, a 2013 accident near Amarillo, of past rail transportation accidents it fatigue-related.38 However, the NTSB Texas,44 and a 2011 accident near had investigated where personal 45 noted that without visual evidence of Mineral Springs, North Carolina, both electronic device use by train crews was the crewmembers’ actions while occurred after train crews qualified on a causal factor. operating the striking train, valuable the physical characteristics of the Those accidents include the May 2004 information about their performance territory operated their trains significant accident near Gunter, Texas (cited was not available to accident distances past dark signals without above) where there was significant investigators (a forward-facing video taking any action to slow or stop their personal cell phone usage by crew recording from the striking train did not trains. In fact, the striking train in the members of both trains involved in the survive the collision and subsequent Mineral Springs accident increased train accident while the trains were being 39 fire). The NTSB’s report stated that a speed from 31 mph to 48 mph after operated (accident resulting in the death video recording’s value in preventing passing the dark signal. The of one train crewmember).48 They also future accidents ‘‘cannot be overstated,’’ crewmembers in the Mineral Springs include a May 2002 accident involving as installation of such cameras could accident were killed in the collision, two BNSF freight trains near Clarendon, assist in monitoring compliance with and the crewmembers in the Amarillo Texas,49 resulting in critical injuries to railroads’ rules and identifying fatigued accident were, in FRA’s view, unable to the crew of a coal train where the locomotive engineers, such that definitively articulate reasons why they probable cause of the accident involved intervention might happen before an did not operate their train in 40 the locomotive engineer’s use of a accident occurs. compliance with applicable railroad personal cell phone during a safety- rules. The NTSB found the probable critical time period. Finally, the report 34 National Transportation Safety Board, Collision cause of both accidents involved the of Two Canadian National Railway Freight Trains cited a May 2009 accident involving two near Two Harbors, Minnesota, September 30, 2010. crews’ failure to comply with applicable Massachusetts Bay Transportation NTSB Accident Report NTSB/RAR–13/01/SUM rules governing train speeds upon Authority light rail passenger trains (not (Feb. 12, 2013); available online at: http:// encountering dark signals. Inward- subject to FRA’s jurisdiction) in Boston, www.ntsb.gov/investigations/AccidentReports/ facing image recordings would have Reports/RAR1301.pdf. Massachusetts, stemming from the train 35 National Transportation Safety Board, Collision provided visual information about crew operator’s use of a phone to send text of Union Pacific Railroad Freight Train with BNSF actions and performance leading up to messages resulting in injuries to 68 Railway Freight Train Near Chaffee, Missouri, May these accidents, enabling railroads and persons.50 25, 2013. NTSB Accident Report NTSB/RAR–14/02 investigators to accurately determine the (Nov. 17, 2014); available online at: http:// www.ntsb.gov/investigations/AccidentReports/ 46 Supra, n. 34 at 20. Reports/RAR1402.pdf. 41 Supra, n. 36 at pp. 34–37. 47 Id. 36 National Transportation Safety Board, Head-On 42 Id. at 44–45. 48 Supra, n. 17 at p. 39. Collision of Two Union Pacific Railroad Freight 43 Id. at. 35. 49 National Transportation Safety Board, Collision Trains Near Goodwell, Oklahoma, June 24, 2012. 44 National Transportation Safety Board, Collision of Two Burlington Northern Santa Fe Freight Trains NTSB Accident Report NTSB/RAR–13/02 (June 18, Involving Three BNSF Railway Freight Trains near Near Clarendon,Texas May 28, 2002, Railroad 2013); available online at: http://www.ntsb.gov/ Amarillo, Texas, September 25, 2013. NTSB Accident Report NTSB/RAR–03/01 (June 3, 2003); investigations/AccidentReports/Reports/ Accident Report NTSB/RAR–15/02 (June 25, 2015); available online at: http://www.ntsb.gov/ RAR1302.pdf. available online at: http://www.ntsb.gov/ investigations/AccidentReports/Reports/ 37 National Transportation Safety Board, Safety investigations/AccidentReports/Reports/ RAR0301.pdf. Recommendations R–14–07 & R–14–08 (Feb. 18, RAR1502.pdf. 50 National Transportation Safety Board, Collision 2014); available online at: http://www.ntsb.gov/ 45 National Transportation Safety Board, Railroad of Two Massachusetts Bay Transportation Authority safety/safety-recs/recletters/R-14-007-009.pdf. Accident Brief NTSB/RAB-13-01 (Jan. 29, 2013); Light Rail Passenger Trains, Boston, Massachusetts, 38 Supra, n. 33 at 72. available online at: http://www.ntsb.gov/ May 8, 2009, Railroad Accident Brief NTSB/RAB– 39 Id. at 67. investigations/AccidentReports/Reports/ 11/06 (Apr. 13, 2011); available online at: http:// 40 Id. at 66. RAB1301.pdf. www.ntsb.gov/investigations/AccidentReports/

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The NTSB’s discussion in the Two monitor compliance with Federal for selective enforcement and possible Harbors report about the train crews’ regulations and railroad rules retaliation against employees for reasons prohibited personal cell phone use was prohibiting the use of personal having nothing to do with safety.’’ 54 in the context of the value of locomotive electronic devices) and investigate FRA also wished to avoid the potential recording devices and other incidents or complaints of for unwarranted publication of private technologies as a tool to deter the unsafe noncompliance of which railroads conversations on the locomotive (that act of the use of personal electronic become aware, will discourage the might take place during times when the devices by train crews.51 The NTSB occurrence of these safety violations. crew is not actively performing safety- indicated that additional measures were Railroad operating employees often critical duties), and to guard against necessary (such as recording devices perform a significant portion of their further erosion of rail labor and and cell phone detectors) to combat duties in the confines of locomotives management relationships. what it described as a ‘‘pervasive safety and/or rail cars or in remote locations. Rather than implementing the hazard in the rail industry; that is, the As noted by NTSB, these locations are locomotive recorder recommendations unauthorized use of [personal electronic often not in the physical vicinity of, or at that time, which FRA believed could devices (PEDs)] by on-duty in locations easily observed by, railroad have a negative influence on such crewmembers is too difficult to prevent supervisors. As such, compliance with relationships, FRA instead sought to by rules, policies, and punitive Federal regulations and railroad rules affirm the NTSB’s accident investigation consequences.’’ 52 governing the use of electronic devices and safety recommendations through In addition to the train accidents is difficult to determine and is often other means. Among numerous on-going described above that involved the based on an honor system. Inward- railroad safety improvement efforts, unauthorized use of personal electronic facing video recordings provide railroad FRA formed an RSAC Electronic Device devices, FRA has investigated several supervisors and safety investigators Distraction Working Group to develop other railroad accidents or violations of evidence to determine operating strategies aimed at curbing the Federal railroad safety regulations employee compliance with FRA and distracting use of electronic devices by related to the unauthorized use of railroad prohibitions on the use of railroad employees and conducted personal electronic devices by on-duty distracting personal electronic devices industry outreach in support of that railroad employees. These incidents while operating trains and performing effort.55 The Electronic Device primarily involve the use of personal other safety-sensitive duties. FRA is Distraction Working Group included cell phones. aware that railroads that have installed railroad industry, labor, and Federal Despite Federal prohibitions on the in-cab cameras have detected instances government representatives. FRA also use of personal electronic devices that of prohibited use of personal electronic engaged in active efforts to understand have been in place for many years and device use by operating crew members. critical safety errors through its required training and testing for all Confidential Close Call Reporting railroad operating employees under B. FRA Responses to NTSB System (C3RS) by undertaking pilot Recommendations R–10–01 & –02 & §§ 220.313–220.315, railroad incidents projects with several railroads. The Current Position involving the prohibited use of personal C3RS program is meant to bring safety electronic devices that endanger the As discussed above, after the NTSB’s problems to the attention of railroads lives of the public and railroad initial locomotive crewmembers’ voice and FRA before accidents occur. employees continue to occur. Recently, recorder recommendation in response to However, in recent years, FRA has FRA investigated a troubling incident the 1996 Silver Spring, Maryland become increasingly concerned by where a passenger railroad showed FRA accident, FRA declined to require such human-factor caused railroad accidents, a video recording of one of its devices, noting the significant costs of like those described above, where there locomotive engineers who appeared to such a requirement, the existing is a lack of information to conclusively be using his personal cell phone while availability of locomotive event recorder determine what caused or contributed to operating a passenger train occupied by data, competing regulatory priorities, an accident that could help FRA over 400 passengers. The results of an and concern regarding the privacy and determine necessary corrective actions investigatory subpoena indicate the comfort of train crews. Nonetheless, before similar train accidents occur. engineer appeared to routinely use his FRA’s initial responses to the most FRA also has increasing concern personal cell phone in violation of the recent NTSB Safety Recommendations because, even after Federal and industry prohibitions in 49 CFR part 220 while R–10–01 & -02 on voice and image efforts to prohibit on-duty operating operating passenger trains. recorders generally supported the safety employees’ use of distracting electronic FRA is currently investigating other rationale behind the devices following the Chatsworth incidents where personal electronic recommendations.53 In its responses, accident (where a locomotive engineer device use and train crew distraction FRA agreed with the NTSB that these who was text messaging caused the may be at issue. FRA will take locomotive recording devices could aid deaths of 24 railroad passengers and enforcement action, if appropriate, to in accident investigations and play a himself), railroad accidents and safety address violations of Federal regulations constructive role in risk reduction violations involving such devices governing the use of personal electronic efforts supported by both employee continue to occur. In addition, the devices during safety-critical periods of representatives and rail carrier NTSB has stated the use of such devices time. However, FRA believes the management. However, FRA expressed in the railroad industry seems to be proactive use of locomotive recordings concern to the NTSB that the use of pervasive.56 to perform operational tests (i.e., to voice and image recordings for FRA has concluded the use of inward- disciplinary purposes could ‘‘erode facing cameras to combat these safety Reports/RAB1106.pdf. Though not subject to FRA’s morale and offer manifold opportunities violations that endanger public safety is jurisdiction, this accident was notable in that it was warranted, and the need to address this caused by a train operator’s failure to respond to 53 National Transportation Safety Board, Safety signal indication because he was text messaging on Recommendation History for Safety 54 a personal electronic device. Recommendation R–10–001: available online at: Id. 51 Supra, n. 34 at 23–24. http://www.ntsb.gov/_layouts/ntsb.recsearch/ 55 https://www.fra.dot.gov/Page/P0565. 52 Id. at 24. Recommendation.aspx?Rec=R-10-001. 56 Supra, n. 34 at 24.

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continuing safety risk outweighs any aircraft) must also be crash, fire, and current two hours, and amended certain crew concerns regarding personal water resistant per the requirements in technical requirements governing privacy while they operate trains or FAA’s Technical Standard Order No. cockpit voice (and flight data) recorders perform other safety-critical functions in 123c.58 During the RSAC Working to improve the quality of recordings and the cab of a railroad’s locomotive. FRA Group meetings discussed further ensure CVRs and flight data recorders believes the proactive use of locomotive below, representatives of both the FAA retain power. The FAA indicated such recordings will be the most valuable and a pilot’s labor organization gave changes in accordance with NTSB tool available to railroads to deter and presentations regarding the history and recommendations were necessary detect the prohibited use of personal use of CVRs in the aviation industry. because the limited duration of cockpit electronic devices, which can lead to The NTSB, which has primary legal voice recordings and loss of power to reportable accidents. The detection of responsibility to investigate all civil both CVRs and flight recorders had such safety violations is difficult due to aviation accidents in this country, and arisen in the investigation of certain the nature of train operations, as FAA have both indicated that the use of high profile commercial aviation discussed above. Inward-facing image CVRs in accident investigations is an accidents in the last 20 years that are recordings will also more easily provide indispensable tool to determine the discussed in that rulemaking’s NPRM exculpatory evidence for train cause of aviation accidents and prevent (70 FR 9752–9754, Feb. 28, 2005) (e.g., crewmembers in post-accident future similar accidents from occurring. the CVR for Alaska Airlines flight 261 investigations regarding whether the Transcripts of cockpit voice recordings that crashed and killed 88 persons on distracting use of an electronic device or are typically included in NTSB’s January 31, 2000, recorded only 31 other rules violations were a causal aviation accident reports, and shed light minutes of flight crew member factor. Therefore, consistent with the on operational discussions and conversations, at the beginning of which FAST Act, FRA is proposing in this decisions of the flight crew before an the crew had already begun discussing NPRM that inward- and outward-facing aviation accident. an existing mechanical problem with recording devices be installed in the When a domestic accident occurs, the the aircraft).63 lead locomotives of all intercity NTSB secures the CVR and later While the FAA has long required organizes a group to review the audio CVRs and flight data recorders, NTSB passenger and commuter trains. 59 In December 2013, FRA indicated recordings. That group typically has also recommended that FAA require publicly that it would engage the RSAC includes representative of the FAA, the the installation of image recording in 2014 to initiate a rulemaking on the pilot’s labor organization, and at least devices in the cockpit of certain subject of locomotive voice and image one pilot typed or current in the commercial aviation aircraft. The most 60 recording devices, as discussed below, accident aircraft model. The group recent NTSB Safety Recommendations and announced in May 2015 that it may also typically include other on that topic are recommendations A– would publish an NPRM addressing the individuals familiar with the individual 15–7 & –8 to FAA,64 recommending that topic. FRA has informed NTSB of its crew member’s voices, those familiar aircraft operated under 14 CFR parts 121 progress in addressing with the airline’s procedures, and a or 135 that are required to be equipped recommendations R–10–01 & –02, the representative of the aircraft with a cockpit voice recorder and a 61 referral to the RSAC for consideration, manufacturer and owner/operator. flight data recorder also be retro-fitted or and this rulemaking proceeding. As of Federal law prohibits NTSB from equipped with a crash-protected cockpit 2015, NTSB classified the releasing cockpit voice recordings it image recording system. The NTSB’s recommendations as ‘‘Open-Acceptable obtains during aviation accident rationale for such recommendation is Response’’ pending the timely outcome investigations. 49 U.S.C. 1114(c). similar to that in its recommendations of this rulemaking. However, the Board may make public R–10–01 & –02 to FRA discussed written transcripts of the recordings, above—that image recordings would C. Current Use of Recording Devices To and often does so in its aviation provide critical information about crew Improve Safety & Security in Rail and accident reports. Federal law in 49 actions and cockpit environment (and Other Modes of Transportation U.S.C. 1154 also contains restrictions on potentially including aircraft instrument Aviation the use of discovery in judicial panel indications and switch positions) proceedings to obtain cockpit voice before accidents, enhancing the accident The use of recording devices to record recordings the NTSB has not yet made investigation process and the operator actions in the transportation public. identification of safety issues. The FAA industry is not new. Most notably, in FAA significantly updated its cockpit has issued a Technical Standard Order 1964, the then Federal Aviation Agency voice recorder regulations in a 2008 (TSO–C176(a), effective Dec. 19, 2013)) (now the DOT’s FAA) published a final final rule.62 The 2008 rulemaking governing the minimum performance rule requiring CVRs be installed on increased the duration of time CVRs are standards for cockpit image recorder aircraft involved in certain commercial required to record a crew’s voice 57 equipment that is manufactured; aviation operations. These recorders communications from 30 minutes to the however, the FAA does not require are still required by FAA regulation and image recorders in airplane cockpits.65 are required to record at least the last 58 FAA TSC–C123c, Cockpit Voice Recorder two hours of voice communication Equipment (Dec. 19, 2013); available online at: Commercial Motor Vehicle/Bus/Transit made by the flight crew, including both http://rgl.faa.gov/Regulatory_and_Guidance_ Library/rgTSO.nsf/0/c464478183dcbdc As with the increasing use of cameras the internal cockpit discussions and any 686257c450067e591/$FILE/TSO-123c.pdf. in society in general, the use of radio or intercom communications. See, 59 http://www.ntsb.gov/investigations/process/ e.g., 14 CFR 25.1457 and 121.359. The Documents/CVR_Handbook.pdf. 63 Id. CVR (and also the flight data recorder, 60 National Transportation Safety Board, Cockpit 64 National Transportation Safety Board, Safety which is similar to a locomotive’s event Voice Recorder Handbook for Aviation Accident Recommendations A–15–7 & 15–8 (Jan. 22, 2015); recorder in that it records a voluminous Investigations (2014); available online at: http:// available online at: http://www.ntsb.gov/safety/ www.ntsb.gov/investigations/process/Documents/ safety-recs/recletters/a-15-001-008.pdf. _ number of operational parameters of the CVR Handbook.pdf. 65 http://rgl.faa.gov/Regulatory_and_Guidance_ 61 Id. Library/rgTSO.nsf/0/cb1b17b6950894bf8 57 29 FR 8401 (July 3, 1964). 62 73 FR 12542 (Mar. 7, 2008). 6257c45006dcaea/$FILE/TSO-C176a.pdf.

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recording devices in the cabs of truck- and forward-facing image recorders and on school buses can serve as the tractors, motor coaches, and school and accelerometers) to improve commercial ‘‘foundation for a multidisciplinary transit buses is increasing. In-cab motor vehicle safety.68 The report stated approach to improving transportation cameras (both forward- and driver- the study showed a significant safety.’’ 72 facing) are being used by motor carriers reduction in ‘‘safety-related events’’ The NTSB report on the use of video throughout the trucking and motor such as collisions, near-collisions, risky systems onboard commercial motor coach industries.66 For example, Swift driving behaviors, and cell phone use, vehicles also made various safety- Transportation Company, one of the when trucks were equipped with related recommendations to camera largest motor carriers in the United monitoring systems and accompanied system manufacturers, commercial States, announced in April 2015 that it by supervisor review of events and a motor vehicle, school bus, transit, and would be equipping over 6,000 of its driver feedback program. A more recent motor coach industry members, and to trucks with Lytx DriveCam systems, VTTI study modeled the potential the DOT’s National Highway Traffic which include forward- and driver- reduction in fatal and injury crashes Safety Administration (NHTSA). NTSB facing cameras.67 In addition, the involving large trucks and buses in this recommended industry members utilize FMCSA has issued exemptions from its country if a particular event-based video onboard video systems that provide regulations to motor carriers to allow system and driver behavior modification visibility forward of the vehicle, of the carriers to install in-cab cameras on a system were used.69 The report stated vehicle driver, and of each occupant truck’s windshield. See, e.g., 80 FR an on-board monitoring system seating location (with optimized frame 14231–32, (Mar. 18, 2015); 80 FR 17818 involving cameras was used and rates and capability for low-light (Apr. 2, 2015). In issuing these suggested the use of this system to recording).73 NTSB recommended that exemptions, FMCSA has stated it improve safe driving behavior could NHTSA incorporate standardized ‘‘believes the use of video event prevent 727 fatal commercial motor procedures into its crash database recorders by fleets to deter unsafe vehicle crashes (or 20.5% of the total system for collecting and using driving behavior is likely to improve the fatal crashes estimated in the report) per pertinent video recordings, injury overall level of safety to the motoring year.70 information and crash data from video- public.’’ 80 FR at 142332. FMCSA has In March 2015, the NTSB also issued equipped buses.74 stated that motor carriers subject to the a report on the use of video systems Finally, in that report the NTSB also exemptions may use the video event onboard commercial motor vehicles.71 referenced its Safety Recommendation recorders to increase safety through: ‘‘(1) The report stated the NTSB had H–10–010,75 which recommends that identification and remediation of risky investigated many highway accidents FMCSA: driving behaviors such as distracted where video systems recorded [r]equire all heavy commercial vehicles to be driving and drowsiness; (2) enhanced information critical to the accident equipped with video event recorders that monitoring of passenger behavior for investigation process, and contained an capture data in connection with the driver CMVs in passenger service; and (3) in-depth discussion of the use and and the outside environment and roadway in enhanced collision review and benefits of onboard video systems the event of a crash or sudden deceleration analysis.’’ Id. during two recent NTSB investigations event. The device should create recordings FMCSA also granted exemptions to into accidents involving buses. The that are easily accessible for review when conducting efficiency testing and systemwide motor carriers to support research on report indicated that on-board video performance-monitoring programs.76 behalf of FMCSA to evaluate camera recording systems, along with a driver This recommendation, along with a systems and to allow for data collection. feedback program, may provide for long- corresponding recommendation that 77 FR 71028 (Nov. 28, 2012). During term safety benefits. Such systems FMCSA should require carrier review of RSAC’s October 2014 meeting, the provide information for evaluating the video recordings in conjunction with Association of American Railroads circumstances leading up to a crash, as other performance data to verify safe (AAR) presented copies of an FMCSA well as data regarding vehicle dynamics driver actions,77 was made after a June report published in June 2010 to the and occupant kinematics during crashes 2009 accident near Miami, Oklahoma Working Group regarding a study for assessing crash survivability. The that involved a fatigued commercial conducted by the Virginia Tech NTSB highlighted how video systems motor vehicle (truck-tractor with Transportation Institute (VTTI) to could be improved, such as by semitrailer) operator which resulted in evaluate the use of a driving behavior increasing camera coverage of all the deaths of 10 people. FRA notes the management system (including driver- passenger seating positions and improving low-light recording 72 Id. 66 See e.g., Rip Watson, Truckload Carriers capabilities. The report concluded the 73 National Transportation Safety Board, Safety Broaden Efforts to Recruit, Retain Quality Drivers, use of data collected from video systems Recommendation H–15–002 (Apr. 29, 3015); Transport Topics, Mar. 16, 2015; available online at: available online at: http://ntsb.gov/safety/_layouts/ http://www.lytx.com/uploads/Transport_Topics_ 68 ntsb.recsearch/Recommendation.aspx?Rec=H-15- Truckload_Carriers_0515.pdf. Cliff Abbott, In-Cab Federal Motor Carrier Safety Administration, Dash Cams Included in Newest Wave of Trucking Evaluating the Safety Benefits of a Low-Cost Driving 002. 74 Technology, The Trucker, Nov. 18, 2014; available Behavior Management System in Commercial Motor National Transportation Safety Board, Safety online at: https://www.thetrucker.com/News/ Vehicle Operations, Report No. FMCSA–RRR–10– Recommendation H–15–001 (Apr. 29, 2015); Stories/2014/11/18/In-cabdashcams 033 (June 2010). available online at: http://www.ntsb.gov/safety/ _ includedinnewestwaveoftruckingtechnology.aspx. 69 Soccolich, S., and J.S. Hickman. 2014. Potential safety-recs/ layouts/ntsb.recsearch/ David Z. Morris, There’s Pressure in the Industry to Reduction in Large Truck and Bus Traffic Fatalities Recommendation.aspx?Rec=H-15-001. Monitor Truck Drivers-and Drivers Aren’t Happy, and Injuries Using LYTX’s DriveCam Program, May 75 National Transportation Safety Board, Safety Fortune, May 26, 2015; available online at: http:// 2014. Blacksburg, Virginia: Virginia Tech Recommendation H–10–010 (Oct. 21, 2010); fortune.com/2015/05/26/driver-facing-truck- Transportation Institute; available online at: http:// available online at: http://www.ntsb.gov/_layouts/ cameras/. info.drivecam.com/rs/lytx/images/Lytx- ntsb.recsearch/Recommendation.aspx?Rec=H-10- 67 James Jaillet, Swift, Nation’s Third-Largest VirginiaTech-Study-LivesSaved-0514.pdf. 010. Fleet, Implementing Driver-Facing, Forward-Facing 70 Id. 76 Id. Cameras In All Trucks, Overdrive Magazine, Apr. 71 National Transportation Safety Board, 77 National Transportation Safety Board, Safety 24, 2015; available online at: http:// Commercial Vehicle Onboard Video Systems, NTSB Recommendation H–10–011 (Oct. 21, 2010); www.overdriveonline.com/swift-nations-third- Safety Report NTSB/SR–15/01 (Mar. 3, 2015); available online at: http://www.ntsb.gov/safety/ largest-fleet-implementing-driver-facing-forward- available online at: http://www.ntsb.gov/safety/ safety-recs/_layouts/ntsb.recsearch/ facing-cameras-in-all-trucks/. safety-studies/Documents/SR1501.pdf. Recommendation.aspx?Rec=H-10-011.

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rationale for these recommendations is involving highway-rail grade crossing Working Group discussions concluded similar to that made to FRA in Safety and trespasser accidents. FRA does not in 2015, several passenger and freight Recommendations R–10–01 & –02 intend for this rulemaking to affect that railroads have installed inward- and/or discussed above, which is to aid use of locomotive recordings. outward-facing recording devices accident investigations and to allow an Locomotive video recordings have also without a Federal regulation requiring employer to conduct efficiency testing been used to document track and such action. For example, FRA is aware via review of recordings to identify roadway conditions, such as washouts, that the four largest Class I freight potentially unsafe behaviors or actions that may lead to, or have led to, railroads in this country (UP,81 BNSF, and to take corrective action to prevent accidents. FRA’s Locomotive Engineer CSX Transportation, Inc. (CSX), and future accidents. Review Board (LERB)/Operating Crew Norfolk Southern Railway (NS)) have all Cameras are also widely used on Review Board (OCRB), which review either announced they would begin transit buses in this country, both for railroad locomotive engineer and installing inward-facing cameras, or security (if the drivers or passengers are conductor de-certification decisions have already started such installation. In the victims of criminal acts), and to upon an engineer’s or conductor’s fact, UP has begun installation on a record motor vehicle accidents. The appeal to FRA under 49 CFR parts 240 large-scale equipping over 2,000 American Public Transportation and 242, have received forward-facing locomotives. In addition, Metro-North Association’s (APTA) ‘‘2016 Public video recordings (and still-shots of such and the Long Island Rail Road, the two Transportation Fact Book’’ 78 indicates recordings) as evidence intended to busiest commuter railroads (by weekday that as of January 2015, approximately document events leading up to an event, ridership) in this country,82 have also 73 percent of public transportation including wayside signal indication or announced they would begin installing buses in this country were equipped the position of a switch. AAR stated inward- and outward-facing cameras on with closed-circuit television cameras, during RSAC Working Group their locomotive fleets.83 Long Island up from approximately only 13% in discussions (discussed further in section Rail Road has even begun the process of 2001. The transit administrations in IV of the preamble below) that as of installing cameras on their locomotives. virtually every major city in the United March 2014, over 20,000 outward-facing Thus, the number of inward-facing States have installed recording devices cameras had been installed on freight cameras installed on locomotives has 79 on transit buses on some scale. During and passenger locomotives. substantially increased since the RSAC discussions, APTA AAR also told the RSAC Working Working Group discussions. representatives indicated that Group that after the 2008 Chatsworth At the time of the Working Group recordings sometimes provide accident some railroads began installing discussions, a Class I freight railroad, exculpatory evidence for the vehicle inward-facing cameras as recommended The Kansas City Southern Railway operator, whether about driver actions by NTSB. Metrolink installed inward- Company (KCS), gave a presentation operating the vehicle or interactions facing video cameras on locomotives to regarding its installation of inward- with bus riders. In sum, the use of implement NTSB’s recommendations, facing cameras. KCS was an early onboard recording equipment on for the stated purpose of enhancing adopter of inward-facing image recorder commercial motor vehicles and buses in safety and security for the general technology in the freight rail industry. this country is substantial and has public and for its employees and KCS stated its recording devices are rapidly increased in recent years, contractors. A Metrolink presentation active anytime a locomotive is powered, leading to safety gains as evidenced by informed the Working Group that as of and that such a policy is advantageous the June 2010 FMCSA report on the June 2014, it had equipped 57 for: (1) Security purposes (to document VTTI study. locomotives and 55 cab cars with ‘‘head trespass, theft, and other criminal Rail end video record’’ capabilities, and that incidents that may not involve railroad employees); and (2) crew safety, The railroad industry has used the railroad reviewed the video specifically to monitor crew locomotive-mounted image recording recordings randomly to test for performance to provide information devices for at least the last two decades. employee compliance with rules about crew actions before accidents, to Railroads began installing outward- governing the use of unauthorized investigate crew injuries, and to validate facing cameras on a large scale in the electronic devices, sleeping, and a crew cell phone use detection alert. 1990s. FRA understands that railroads unauthorized persons in the cab of the have often used forward-facing locomotive. AAR indicated during KCS indicated that the forward-facing recordings to defend themselves in Working Group discussions in June cameras on its locomotives are equipped litigation, particularly litigation 2014, that approximately six railroads with microphones, but those audio- had equipped 288 locomotives or cab recording devices are not used (the 78 American Public Transportation Association, cars with inward-facing cameras since cabling has been removed). 2016 Public Transportation Fact Book, 67th Ed., 2009. Clearly, the railroad industry’s use of (Feb. 2017); available online at: https:// Moreover, as mentioned above, after locomotive-mounted recording devices www.apta.com/resources/statistics/Documents/ FactBook/2016-APTA-Fact-Book.pdf. the May 2015 Amtrak accident in cameras-on-trains/2015/05/26/a6d210fa-03b9-11e5- 79 See e.g., Washington DC (http://wmata.com/ Philadelphia in which eight persons a428-c984eb077d4e_story.html. about_metro/news/PressReleaseDetail. were killed, Amtrak announced that it 81 https://www.up.com/aboutup/community/ cfm?ReleaseID=4618); Chicago (http:// would install inward-facing cameras on www.transitchicago.com/safety/ safety/technology/index.htm. cameras.aspx#about); New York City (http:// all of its ACS–64 locomotives in service 82 Press Release, Metropolitan Transportation www.mta.info/news/2012/03/27/safety-first-mta- on the Northeast Corridor by the end of Authority, Long Island Rail Road and Metro-North adding-more-onboard-bus-video-surveillance- Railroad Stay Busiest in Nation (Apr. 27, 2015); _ _ 2015 (and on subsequently delivered available online at: http://www.mta.info/news-long- cameras); Boston (http://www.mbta.com/about the 80 mbta/news_events/?id=18423); Los Angeles (http:// locomotives). Further, since the island-rail-road-metro-north-railroad-lirr-ridership/ thesource.metro.net/2014/06/26/metro-debuts-new- 2015/04/27/long-island-rail-road-and. security-video-monitors-on-buses/); Kansas City 80 Lori Atani and Michael Laris, Amtrak Will 83 Press Release, Metropolitan Transportation (http://www.kcata.org/about_kcata/entries/transit_ Install Inward-facing Cameras on Trains, Wash. Authority, Metro-North and LIRR To Acquire Video watch); Dallas (https://www.dart.org/news/ Post, May 26, 2015; available online at: https:// Cameras for Trains (Nov. 17, 2014); available online DARTCNGNABIFactSheet.pdf); and Minneapolis www.washingtonpost.com/local/trafficand at: http://www.mta.info/press-release/metro-north/ (http://www.metrotransit.org/transit-police). commuting/amtrak-will-install-inward-facing- metro-north-and-lirr-acquire-video-cameras-trains.

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to improve security and railroad safety scope of a potential rulemaking. FRA about privacy regarding NTSB’s has rapidly increased. Even though this presented rule text proposals for the recommendations to install locomotive- NPRM does not require freight railroads Working Group’s consideration. For mounted audio and image recording to install inward- and outward-facing various reasons conveyed during devices. The labor organizations also recording devices, FRA supports and Working Group discussions, labor and expressed reservations regarding the will continue to monitor the installation industry representatives expressed installation of locomotive-mounted efforts of freight railroads which use this general disagreement with FRA’s recording devices based on privacy technology to improve the safety of their position regarding regulatory concerns during the Working Group operations. requirements for inward-facing cameras meetings. FRA is addressing the issue of and other locomotive recording devices. privacy in relation to locomotive- IV. Railroad Safety Advisory The labor organizations generally mounted recording devices in this Committee Proceedings opposed any Federal inward-facing NPRM. Although this discussion As discussed above, in March 2014, camera installation requirements for focuses on privacy considerations for the RSAC formed the Recording Device crew privacy reasons, and argued that railroad employees, FRA recognizes that Working Group 84 to consider specific FRA’s efforts to improve railroad safety the locomotive recordings might actions regarding the installation and were better directed toward other incidentally capture images of members use of locomotive-mounted audio and regulatory matters (e.g., fatigue, PTC of the public through the outward-facing image recording devices. The RSAC implementation). Railroads generally camera or, depending on the voted to adopt Task 14–01, to develop expressed opposition based on lack of configuration of the cab and the regulatory recommendations addressing perceived need for FRA to regulate in passenger car, the inward-facing camera. the installation and use of the recording the area of locomotive recording First, there are no legal impediments devices in controlling locomotive cabs. devices, expressing concern regarding preventing the agency from requiring The task statement stated that any potential costs and hindrance to the recording devices to be installed in the recommendations should address advancement of recording device locomotive cab when a train is being installation requirements and timelines, technology and uses. Rather than operated on the general railroad system technical controls, recording retention attempting to fully summarize the of transportation. As discussed above, periods, retrieval of recordings, respective positions and arguments the FAST Act mandated FRA controlled custody of recordings, during the Working Group process here, promulgate regulations requiring the crashworthiness standards, use of FRA defers to labor and industry installation of inward- and outward- recordings for accident investigation representatives to convey their facing recording devices on lead and railroad safety study purposes, and respective positions on this NPRM’s passenger train locomotives. Under the use of recordings to conduct operational specific proposals via the notice and proposal rule, passenger railroad tests. comment process. employees would be on notice of the FRA developed Task 14–01 in During the RSAC process, labor and presence of recording devices in a response to NTSB Safety industry representatives on separate locomotive’s cab. For the reasons Recommendations R–10–01 & –02 and occasions asked FRA to independently described in this preamble, and recent railroad accidents. FRA believed pursue a voluntary pilot program in lieu consistent with relevant laws (including it appropriate to evaluate the adoption of any FRA rulemaking proceeding. This the FAST Act’s mandate), court of regulations addressing inward- and pilot program would have been in decisions, and FRA’s statutory authority outward-facing locomotive recording addition to existing inward-facing to regulate all areas of railroad safety, devices to advance railroad safety. camera usage across the railroad there is no legal requirement preventing FRA’s intent was to use recordings to: industry (e.g., Metrolink and KCS, FRA in this rulemaking from requiring (1) Assist in post-accident/incident which have installed inward-facing locomotive recording devices on investigations (railroad, highway-rail cameras on a larger scale than other passenger locomotives to adhere to grade crossing, and trespasser); (2) assist railroads to date). The purpose of the certain requirements. in evaluating railroad employee fatigue pilot program would have been to Second, the purpose of image and and distraction, and crew interactions; evaluate the impacts of additional audio recordings is to deter conduct that and (3) add as a training tool for railroad locomotive recording device usage and may lead to railroad accidents, to aid in employees and for conducting for purposes of gathering additional railroad accident investigations, and to operational tests of railroad employees. data. The January 2015 Working Group identify action(s) necessary to prevent The Working Group was to report meetings were canceled so that labor accidents in the future. The railroad recommendations to the full RSAC (or and industry representatives could meet industry is a highly regulated industry. Committee) by April 1, 2015. privately to discuss pilot project details. Train accidents can have catastrophic The Working Group held five However, labor and industry consequences for the safety of the meetings, three of which were multi-day representatives reported to FRA that public, railroad passengers, railroad meetings. The Working Group did not they were unable to reach consensus employees and contractors, and the reach consensus on any aspect of the agreement on a voluntary pilot project. environment. As such, a large number of task, as FRA reported to the full At the May 28, 2015 full Committee Federal statutes and regulations already Committee on May 28, 2015. During the meeting, FRA informed the Committee govern railroad employees’ performance Working Group discussions, FRA that, in the absence of a Committee of safety-related duties when they announced it intended to require recommendation, FRA would initiate a occupy the cab of a lead locomotive. inward-facing cameras and requested rulemaking proceeding to require For example, employees who operate the Working Group’s assistance to locomotive recording devices based on trains in this country are subject to formulate the appropriate details and the need to implement the safety warrantless drug and alcohol testing initiatives. (both random and for cause) (49 CFR 84 The Working Group was comprised of members part 219), operational testing (see 49 from the following organizations: AASHTO; V. Privacy Concerns Amtrak; ASRSM; APTA; ASLRRA; AAR; BLET; CFR parts 217, 218, 220, 240, 242), BMWED; BRS; FAA; FRA; IAMAW; NCFO; NTSB; As discussed above, FRA initially hours of service laws (see 49 U.S.C. ch. SMART; and Transport Canada. expressed to NTSB it had concerns 211, 49 CFR part 228), and regulations

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governing the use of personal electronic signage or other methods) to their does not present privacy interests devices (49 CFR part 220), among many employees working on locomotives with comparable to those relating to the other requirements. Railroad managers recording devices, although the agency contents of one’s own blood or urine and FRA inspectors can currently is not proposing to impose such a that the Court in Skinner weighed. occupy the cabs of locomotives at any requirement in this rulemaking. Locomotive audio and image recordings time to observe railroad train crew Also, as discussed above, the goal of merely record the actions of train crews members and other employees the FAA CVR regulations, in effect for and environmental and other factors performing their duties, and listen to over 50 years, is the same as FRA’s aim while a train is operated on behalf of a crew communications that occur in the here, which is to investigate and prevent railroad, which can be observed by the cab. In fact, under existing 49 CFR parts transportation accidents that endanger naked eye by a railroad manager 86 or 217, 219, 220, 240, and 242, railroads the lives of traveling passengers, carrier FRA inspector aboard a locomotive and are required to make various employees, and the public. 29 FR 8401. can be recorded by a locomotive’s event observations of on-duty train Like commercial passenger aviation recorder. In addition, Congress crewmembers performing their duties. operations governed by FAA CVR expressly mandated FRA promulgate The Supreme Court recognized that ‘‘the regulations, FRA’s proposed regulation regulations requiring the installation of expectations of privacy of covered would apply to passenger trains that recording devices for passenger trains employees [here, train crewmembers] transport hundreds of people, often at under the FAST Act. are diminished by reason of their high speeds. As previously stated, even in the participation in an industry that is In addition, other FRA rulemakings absence of the current Congressional regulated pervasively to ensure safety that have raised privacy considerations action to require locomotive-mounted . . . .’’ Skinner v. Railway Labor have been upheld because of the recording devices and similar Federal Executives Association, 489 U.S. 602, government’s interest in ensuring public regulatory action, the railroad industry 627 (Mar. 21, 1989). safety. For instance, as touched on has installed locomotive-mounted above, FRA’s initial regulation requiring The cab of a locomotive is also not a recording devices on its locomotives for warrantless drug and alcohol testing of years. FRA is not aware of any location for a railroad employee’s railroad employees 85 was promulgated exclusive use. During a tour of duty successful legal challenges to such under FRA’s general rail safety installation. As mentioned above, other railroad employees, railroad rulemaking authority, challenged in supervisors, FRA inspectors, and other Metrolink installed in-cab audio and Federal Court, and ultimately upheld by video recording devices after the 2008 authorized persons may access the cab the Supreme Court in Skinner. FRA of the locomotive while it is occupied accident in Chatsworth, California, that promulgated its initial drug and alcohol prompted NTSB Safety by a train crew and observe the testing requirements (49 CFR part 219) employee’s actions and Recommendations R–10–01 & –02. The based on the finding that drug and BLET challenged Metrolink’s communications. A train crew member, alcohol abuse by covered railroad particularly a member of a road freight installation and use of such cameras in employees poses a serious threat to California State and Federal courts on crew, might never occupy the cab of a public safety, as evidenced by past particular locomotive again after the the basis of privacy, substantive due accident investigations. 50 FR at 31516. process, procedural due process, and completion of a tour of duty. A train The majority’s decision in Skinner crew boards a locomotive to operate a preemption violation claims. Neither stated there are ‘‘few activities in our court found the installation of such train during an on-duty period and then society more personal or private than alights from the locomotive. Further, devices unlawful. In an opinion the passing of urine,’’ and also granting Metrolink’s motion for even the general public is able to view discussed the extensive privacy-related train crew members occupying the summary judgement on the pleadings concerns on the subject of the contents and dismissing all BLET claims, the locomotive and certain of their actions of one’s blood. 489 U.S. at 617. through the windows of the locomotive United States District Court for the Nevertheless, the Court held that the Central District of California stated that when located near a railroad right-of- drug and alcohol testing FRA’s way or a highway-rail grade crossing, or Metrolink’s installation of locomotive regulations required was ‘‘reasonable’’ audio and video recording devices had in certain cab control car configurations within the meaning of the Fourth in passenger train service. Railroad several legitimate purposes: (1) As an Amendment of the Constitution. 489 accident investigation tool; (2) to radio conversations sent and received U.S. at 634. The Court explained that from a locomotive cab that may involve improve public safety; and (3) to test due to: locomotive engineers’ compliance with train crewmembers, dispatchers, 87 operators, and railroad managers are The surpassing safety interests served by Metrolink’s operating rules. The Los already often recorded by railroads. toxological tests in this context, and the Angeles County California Superior diminished expectation of privacy that Court similarly granted Metrolink’s Further, employee actions in operating attaches to information pertaining to the trains that would be affected by this motion for summary judgment and fitness of the covered employees, we believe entered a declaratory judgement in proposed regulation are also already that it is reasonable to conduct such tests in the absence of a warrant or reasonable recorded by locomotive event recorders 86 suspicion that any particular employee may See Vega-Rodriguez v. Puerto Rico Telephone required by existing part 229 as Co., 110 F.3d 174, 181 (1st Cir. 1997) (upholding discussed below. Therefore, this NPRM be impaired. employer’s installation of surveillance cameras proposes that passenger railroad Id. FRA believes the safety risks this when the employer notified employees of the employees occupying the cabs of NPRM seeks to address by recording an location and field of vision of the cameras: ‘‘[t]he bottom line is that since PRTC could [lawfully] locomotives that would be affected by employee’s actions while operating a assign humans to monitor the work station this proposal have express notice (by train in the cab of a locomotive are continuously . . . it could instead carry out that way of required signage) that the similar to those discussed in Skinner. lawful task by means of unconcealed cameras . . . locomotives are equipped with However, recording an employee’s which record only what the human eye could observe’’). recording devices. FRA also actions while operating a locomotive 87 Bhd. of Locom. Eng. and Trainmen, et al. v. S. recommends that freight railroads Cal. Reg’l Rail Auth., No. CV 09–8286 PA (JEMx), provide similar express notice (via 85 50 FR 31508 (Aug. 2, 1985). 2010 WL 2923286 (C.D. Cal. June 20, 2010).

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Metrolink’s favor to resolve the BLET- cause of several railroad accidents, section analysis below were formulated filed lawsuit.88 including the catastrophic 2008 to fulfill this FAST Act requirement. KCS also voluntarily began installing Metrolink passenger train accident FRA also believes valid privacy inward-facing cameras for safety- and discussed above. The recordings would concerns exist on the appropriate security-related purposes ahead of most provide necessary evidence to railroad protection and dissemination of other freight railroads in this country. management and FRA to take locomotive recordings that are made, KCS filed an accompanying action after appropriate corrective or enforcement particularly where an accident has the installation of the cameras actions for these serious violations of occurred and the recordings may be requesting a declaratory judgment that FRA regulations and railroad rules that graphic and violent. As raised during any disputes over the installation of the cause railroad accidents. Working Group discussions, it is not cameras were ‘‘minor’’ disputes under As previously stated, FRA is declining desirable for railroad employees or their the Railway Labor Act. The United to propose requiring the installation of families to have such images released States District Court for the Western inward- and outward-facing recording publicly. For example, Congress District of Louisiana ruled in KCS’ devices in freight locomotives. The provided statutory protections for a favor, granting KCS’ motion for FAST Act requires FRA to develop train’s audio and image recordings that summary judgment and finding that regulations that require inward- and NTSB takes possession of during the installation of the cameras represented a outward-facing image recording devices course of its accident investigations at ‘‘minor’’ collective bargaining dispute.89 in all passenger train lead locomotives; 49 U.S.C. 1114(d) and 1154(a). When FRA has also long required however, there is no corresponding NTSB takes possession of such locomotive event recorders record the statutory mandate for freight locomotive recordings, it is prohibited operational parameters of the locomotives. In addition, the cost of from releasing the contents of such controlling locomotive of a train implementing such a requirement for recordings (except that transcripts may traveling over 30 mph. 49 CFR 229.135. freight locomotives could outweigh its be released as part of its accident The purpose of this requirement is for positive safety benefits. Furthermore, investigation proceedings). accident/incident investigation and many freight railroads, including all During Working Group discussions, prevention and is required by statute. 49 Class I railroads, are already in the participants noted FRA did not have U.S.C. 20137. FRA explained in its 2005 process of voluntarily installing similar statutory protections for final rule updating the locomotive event recording devices in their locomotives recordings it takes possession of during recorder requirements that event without a Federal requirement. investigations, as any records FRA takes recorders: Therefore, FRA is declining to impose a possession of during an investigation requirement to install recording devices may be required to be disclosed under [m]ay indirectly prevent future accidents by FOIA. However, 49 U.S.C. 20168(h) allowing for in-depth accident causation on freight locomotives at this time. analysis to take place using complete Even though FRA does not believe prohibits FRA from publicly disclosing information, thereby allowing accurate there are any legal impediments recordings that FRA takes possession of causation determinations, and the preventing FRA from promulgating a after a railroad accident has occurred. development of appropriate and effective regulation requiring locomotive audio Paragraph (h) is similar to the FOIA countermeasures. Because event recorders and image recording devices, FRA still exemption for locomotive recordings also allow the railroad to monitor train recognizes the privacy concerns FRA given to the NTSB at 49 U.S.C. 1411(d), handling performance and rules compliance conveyed to NTSB in FRA’s initial and prohibits FRA from disclosing in a widespread and economical way, FRA responses to Safety Recommendations publicly locomotive audio and image believes that event recorders might have the R–10–01 & –02, and that railroad uses recordings, or transcripts of potential of increasing skillful train handling and encouraging rules compliance. of recordings, beyond those enumerated communications by and among train in this NPRM, could violate the law. employees or other operating 70 FR 37930, 37935 (June 30, 2005). This concern is particularly relevant employees, or between such operating FRA’s rationale in proposing to require regarding audio recordings of employees and communication center locomotive-mounted image recording conversations in the cab of a employees related to an accident FRA is devices on lead passenger train locomotive. Examples of uses of such investigating. FRA may make public a locomotives (and potentially audio recordings that could violate the law are transcript or a written depiction of recording devices) here is the same. An to retaliate against an employee based visual information that FRA deems image recording of the train crew in the on the contents of in-cab audio relevant to the accident at the time other locomotive supplements the event recordings in violation of 49 U.S.C. factual reports on the accident are recorder requirement by providing 20109 (railroad employee whistleblower released to the public. railroads and Federal and State accident law) or to interfere with protected labor As explained during Working Group investigators information regarding an activities. The FAST Act, at 49 U.S.C. meetings, FRA believes it would rarely engineer’s actual manipulation of 20168(i), establishes that a passenger take possession of recordings. For the locomotive controls, and about other railroad carrier is prohibited from using most-serious accidents, FRA anticipates crew actions and environmental and in-cab audio or image recordings to the NTSB would take possession of such other factors prior to an accident. retaliate against an employee. While recordings as they currently do, but that Importantly, such recordings, when enforcement of such prohibited FRA would have the opportunity to regularly reviewed by railroads, may retaliation against employees does not view or listen to the recordings as a also provide a deterrent to train crews’ lie with FRA, but rather with other party to the investigation and to conduct distracting use of personal electronic Federal and State agencies or the courts its own parallel investigation. For less devices, which the NTSB has cited as a in private causes of action, FRA believes serious accidents or incidents that only passenger railroads should adopt and FRA investigates, FRA would 88 Bhd. of Locom. Engineers v. S. Cal. Reg’l Rail adhere to policies that strictly prohibit sometimes proceed as it does now, by Auth., No. BC424287 (Super. Ct. L.A. County Cal. such potential non-safety related abuses having FRA inspectors view the June 1, 2011). 89 Kan. City S. Railway Co. v. Bhd. of Locom. Eng. of locomotive recordings in violation of recordings in the railroad’s possession. and Trainmen, No. 5:13–cv–00838–EEF–MLH the FAST Act’s prohibition. FRA’s In instances where FRA had a legal or (W.D. La. Jul. 24, 2013). proposals discussed in the section-by- evidentiary need to take physical

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possession of a locomotive recording and rules that railroads must comply devices on freight locomotives at this from a railroad after an accident, the with when the recordings are used in time. FAST Act now protects those recordings litigation for the railroads’ own FRA will continue to monitor freight from public release. purposes (e.g., highway-rail grade railroads and their efforts to voluntarily Concerns regarding a railroad’s crossing and trespasser accidents), and install inward- and outward-facing unauthorized release of locomotive the potential cost of requiring railroads recording devices, and also the overall recordings and the privacy implications to amend their existing procedures that safety records of the freight railroad of such were also raised during the might already be appropriate and industry, as it considers whether a Working Group meetings. Currently, in provide instruction on such new future regulatory requirement is the absence of an accident where NTSB procedures, FRA does not believe it necessary. In the meantime, FRA or FRA has taken possession of a appropriate to impose specific chain-of- welcomes public comment on whether locomotive’s recording devices, a custody and release procedures in the FRA should implement a requirement railroad’s internal policies govern the regulation. Further, FRA’s safety interest that some or all freight railroads equip handling of locomotive audio and video in regulating in this area most strongly their locomotives with inward- and recordings. Certain railroad draft lies in ensuring recordings are handled outward-facing recording devices. In policies were shared with the Working properly post-accident when turned addition, FRA invites comment on the Group during its meetings on the over to NTSB or FRA upon request, and extent to which FRA should apply the railroads’ procedures governing the the proposed regulation’s text would proposed requirements in this NPRM to chain-of-custody for recordings, access expressly require the railroads’ recording devices that have already to the recordings, and release of the procedures to address that point. been installed by freight railroads in recordings. If adhered to, FRA believed their locomotives. FRA also seeks However, FRA acknowledges that some these policies would address concerns comment on whether FRA should parties have expressed concerns regarding the proper control and include a specific provision that regarding the public release of image or handling of locomotive recordings. prohibits the public release of an image audio recordings that do not involve a Recognizing the need to ensure or audio recording by any railroad or railroads appropriately protect reportable accident. Thus, FRA seeks person. recordings that might implicate privacy- comment from interested parties related concerns, FRA has proposed rule regarding whether the final rule should B. Audio Recording Devices text in § 229.136(f) that requires include a specific prohibition on the The FAST Act, at 49 U.S.C. passenger railroads to adopt, and public disclosure by a railroad or 20168(e)(1), gives FRA discretion to comply with, a chain-of-custody individual of any video or audio require audio-recording devices be procedure governing the handling and recording. installed on lead passenger train the release of locomotive recordings. VI. Additional Items for Comment locomotives, and to establish The chain-of-custody procedure must corresponding technical details for such specifically address the preservation FRA is requesting comment on the devices. Further, the relevant NTSB and handling requirements for post- below significant requirements or recommendations that FRA is accident/incident recordings that are amendments for which it is not addressing in this NPRM state that in provided to the NTSB or FRA during the proposing specific regulatory text in this addition to locomotive image agencies’ accident investigations. A NPRM, but which FRA would consider recordings, FRA should also require passenger railroad’s failure to comply adopting in a final rule in this locomotives be equipped with audio with its procedures would be a violation proceeding. recording devices. Indeed, the NTSB of the Federal railroad safety regulations sent FRA correspondence emphasizing if § 229.136(f) is adopted in a final rule A. Mandatory Installment of Inward- that to satisfy Recommendations R–10– in this rulemaking. and Outward-Facing Recording Devices 01 & –02, FRA would need to include FRA decided against proposing on Freight Locomotives both audio and image recording specific rule text governing chain-of- provisions in this rulemaking.91 custody, handling, and release As previously stated, FRA is declining FRA is not proposing to require the procedures industry-wide. The industry to propose a requirement in this NPRM installation of locomotive audio has much experience in this area given that freight railroads install and use recording devices, but is requesting the significant number of locomotives inward- and outward-facing recording comment on whether to require such that are already equipped with forward- devices in their locomotives. The FAST devices in a final rule. Accordingly, facing cameras (estimated by AAR at Act does not require that such recording FRA makes clear that nothing proposed over 20,000) and length of time such devices be installed in freight in this NPRM would preclude a railroad locomotives have been equipped, and, locomotives. Further, the cost to from voluntarily installing audio also, now with inward-facing recording implement such a requirement could recording devices in its locomotives. As devices. The industry also has much outweigh its safety benefits. FRA conveyed to the NTSB in FRA’s initial experience in this area with locomotive estimates that if freight locomotives responses to the NTSB event recorders that have long been were required to have image recording recommendations regarding audio subject to preservation and handling devices, the 10-year cost would be recording devices, FRA agrees that in requirements after the occurrence of an $154,990,084 (PV, 7 percent), or certain accidents, audio recording accident under existing § 229.135(e). It $168,970,287 (PV, 3 percent).90 Finally, devices could be useful for conducting is therefore more practical and cost- many freight railroad, including all post-accident investigations. However, effective to give railroads the discretion Class I railroads, have already installed as mentioned above, FRA still has to continue to tailor their individual or are in the process of installing procedures appropriately. Given the recording devices in their locomotives. 91 National Transportation Safety Board, Safety various types of locomotive recording Therefore, FRA is declining to propose Recommendation History for Safety a requirement to install recording Recommendation R–10–01; available online at: equipment that different railroads may http://www.ntsb.gov/safety/safetyrecs/_layouts/ choose to utilize, the various State court ntsb.recsearch/Recommendation.aspx?Rec=R-10- evidentiary and chain-of-custody laws 90 See Regulatory Impact Analysis pg. 17. 001.

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concerns about audio recordings aboard requirement, and considering the • Would the utility that audio locomotives made during periods when availability of image recordings, recordings might provide in certain no safety-related duties are actively locomotive event recorder data, and accident investigations, on top of the being performed (e.g., sitting at a stop radio recordings. benefits accruing from image recordings, signal in a siding). Recordings during In addition, as discussed above, crew outweigh concerns regarding: (1) The such time periods would likely include radio communications are often already cost of installation of these additional personal conversations between recorded by railroads as part of their devices; (2) the cost of crashworthy employees and might have much more dispatching systems, and are often memory for audio recordings on potential for abuse than do inward- reviewed by FRA and NTSB as part of passenger locomotives; (3) the potential facing image recordings. Further, FRA is railroad accident investigations. FRA loss of personal privacy for occupants of unsure of the added utility of audio believes that such recordings are a locomotive’s cab; and (4) the potential recordings in addition to video generally more common (and often for abuse of audio recordings reviewed recordings when weighed against the include yard operations on Class I and by railroad supervisors that could cost, the potential for abuse, and the passenger railroads) and recorded in a occur? Please provide specific loss of personal privacy. higher quality (digital) than in 1996, information on the costs (for example, In addition, FRA believes inward- when NSTB investigated the Silver the cost of installation in dollars) in facing image recorders alone may deter Spring, Maryland MARC train accident your comments. • the prohibited use of personal electronic discussed above and made its initial If in-cab audio recordings are devices more effectively than audio recommendation to FRA regarding required in a final rule, should FRA recorders. In most circumstances, an equipping locomotives with audio adopt a strict rule that requires such inward-facing image recording of recorders. recorders to stop recording once a train appropriate quality will enable railroad As noted, FRA also has concerns has stopped moving? • In addition to in-cab recordings, supervisors to observe the physical about the cost of requiring audio should exterior recording devices actions of a train crew as they operate recording devices on upwards of 4,500 capable of recording sounds such as the the train and perform other safety- passenger locomotives and potentially related duties, including whether locomotive horn/bell, audible grade 20,000 freight locomotives. There may personal electronic devices are being crossing warning devices, engine noises, be only a small number of accidents manipulated or handled. FRA is unsure braking noises, and other sounds that where audio recordings might be that audio recorders would significantly may be relevant during post-accident beneficial. Further, the cost to store data improve railroad efforts to detect such investigations also be required? If so, in addition to image recordings in a safety violations that are, in part, the what is the utility of such recordings memory module (with a crashworthy impetus for requiring railroads to when weighed against the potential module for passenger locomotives) regularly review a locomotive’s in-cab costs? Please provide specific might increase the costs of compliance image recordings. information on the costs of installation FRA also believes that train with a final rule. FRA understands from in dollars in your comments. operations are different from flight Working Group discussions and its own FRA also requests public comment operations regarding the utility of in-cab research that the audio recording addressing the appropriate technical audio recordings during a post-accident devices and microphones contained specifications for audio recording investigation. For example, in both the within a locomotive’s image recorders equipment if the installation of audio 2008 Chatsworth Metrolink accident are not costly, but railroads indicate a recording devices is required in a final and the 2015 Philadelphia Amtrak crash-hardened memory module for rule. Further, if FRA requires accident, the locomotive engineers audio recordings might increase costs of locomotive audio recording devices in operating the trains were the sole compliance. FRA is also concerned the final rule, should FRA restrict the occupants of the locomotive cab. The about the background noise levels usage of those recordings or provide other train crew members were in the inside the cabs of certain locomotives additional protections from public passenger consist. Thus, for passenger and has conveyed that concern to NTSB release? FRA believes requiring such operations, other than radio in the past. Because of the noise, devices to be capable of recording voice communications with other train additional equipment such as crew conversations conducted at typical crewmembers or the train dispatcher headsets and intercoms with audible levels (approximately 60–70 which are often already recorded, there microphones might be needed to record decibels) in the cab would be may not be any voice communications crew voice communications so the appropriate as a general performance inside the cab to audio record. This is recordings can accurately be deciphered standard. However, FRA requests unlike a typical commercial aviation by railroad managers and accident comment addressing whether headsets operation in which multiple crew investigators. This might also add to the with integrated audio microphones, members occupy the cockpit of an cost of installing such equipment. background noise filters, or other aircraft during flight and undertake In sum, FRA reiterates that it agrees specialized audio recording equipment numerous required crew with NTSB that in some post-accident would be necessary to reliably capture communications. Similarly, audio investigations audio recordings might be such voice conversations based on recordings inside freight locomotive beneficial to help determine causal background noise levels in a locomotive cabs, which are typically occupied by factors. However, in light of the cab. Such comments should also multiple crewmembers, might provide concerns discussed above, FRA is address appropriate technical relevant post-accident information more continuing to evaluate whether to specifications for any such equipment often than for accidents involving require audio recording devices in this and the cost. passenger locomotives. However, FRA is rulemaking. FRA wishes to continue to not certain what the utility of such an evaluate the issue with the benefit of C. Recording Device Run-Time/Shutoff audio recording requirement might be information from public comments When Trains Stop Moving when weighed against the potential for submitted in response to this NPRM. During the RSAC Working Group’s abuse of such recordings in other Accordingly, FRA requests comment on discussions, FRA presented proposed contexts and the overall costs of such a the following specific questions: rule text that would have required

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locomotive image and audio recording locomotive-mounted recording devices addressing the most frequently devices to record for one hour after a in operation any time a train is occurring human-factor caused locomotive equipped with such devices occupied, regardless of whether a train accidents involving equipment in the had stopped moving. FRA introduced is moving or not. While not a passenger foul, shoving movements, and the this proposal intending to recognize the railroad, KCS indicated to the Working handling of switches and derails. potential safety value in recording crew Group that its policy is that a Section 217.9 also requires railroads’ actions in the moments immediately locomotive’s image recording system is operational testing programs place after a train had stopped, for post- in operation anytime a locomotive is particular emphasis on other operating accident investigations and other running. rules’ violations that are likely to cause incident investigations. This proposal The proposed rule text in § 229.136 accidents. FRA’s regulation governing also attempted to consider crew privacy below is silent on the issue of a specific the use of distracting electronic devices concerns expressed during Working recording device run-time after a by on-duty railroad operating employees Group discussions over recording locomotive has stopped moving, and is also addresses operational testing. devices continuing to record during also silent on any shut-off requirements Section 220.315 requires railroads’ long periods of time where no safety- after a locomotive has stopped moving. operational testing programs under part related duties might be actively Under this proposal, passenger railroads 217 include operational tests addressing performed by a train crew (e.g., sitting would have discretion to decide the restrictions on electronic device use stationary at a stop signal in a siding). whether locomotive recording devices in subpart C of part 220. The overall As discussed above, in previously would continue to record when a intent of part 217’s operational testing responding to NTSB recommendations locomotive is not in motion (as long as requirement is to raise awareness of, on the topic of recording devices, FRA the railroad retained the last 12 hours of and ensure compliance with, relevant indicated to NTSB that FRA wished to operation of the locomotive on a railroad operating rules to prevent the avoid the potential for unwarranted memory module as proposed in occurrence of accidents. publication of private conversations on § 229.136). FRA is requesting comment In that vein, after the 2008 Chatsworth the locomotive taking place during non- on the appropriate approach to this accident where the locomotive engineer safety-critical down times that issue in a final rule. FRA specifically was found to have used a personal inevitably occur in railroad operations, requests comment regarding the safety electronic device while operating and to guard against erosion of rail labor benefits of recordings made when a passenger trains in contravention of and management relationships. locomotive is occupied but not moving, Metrolink operating rules, NTSB Safety and whether a specific run-time or Recommendations R–10–01 & –02 Additionally, during discussions on shutoff requirement in a final rule recommended using inward-facing this topic, representatives of APTA would present any technical hurdles for cameras to conduct operational tests to indicated that certain of its member railroads (and, if so, their cost in ensure compliance with rules passenger railroads use locomotive- dollars). FRA also requests comment prohibiting the use of distracting mounted and other surveillance cameras addressing the privacy implications electronic devices. Due to the nature of aboard rail passenger equipment for regarding recordings being made during railroad operations where train crews purposes beyond the scope FRA down times where no safety-related typically lack direct managerial contemplates in this NPRM. For duties might be actively performed by a supervision while traveling in the cab of example, APTA explained that an in-cab train crew. Further, FRA desires a locomotive, the NTSB explained a or other camera on a passenger car comment addressing the potential risks locomotive image recording may be the could be used for purposes of protecting of overwriting valuable recorded data if only practical method of determining a train operator or other crewmember by an accident occurs in a remote location employee compliance with prohibitions documenting any incidents involving and the recording devices continue to on the use of distracting electronic passengers aboard the train, such as record after a train is stopped. Finally, devices while operating a train. The disputes between passengers, assaults FRA requests comment on whether NTSB recommended FRA require on train crewmembers, fare disputes, passenger railroads should be exempt railroads to regularly review locomotive and the unauthorized entry into the cab from any requirement to stop recordings to carry out efficiency tests compartment by a passenger, among locomotive-mounted recording devices and system-wide performance other examples. APTA stated these from recording when a train is stopped. monitoring programs, and verify that cameras could help police identify train crew actions comply with VII. Section-by-Section Analysis perpetrators of crimes and provide applicable rules and procedures exculpatory evidence for train crews Proposed Amendments to 49 CFR Part essential to safety. In making these regarding events that might occur on a 217 (Part 217) recommendations, the NTSB explained passenger train. These types of events, that recordings could help railroad Section 217.9 Program of Operational some of which involve State criminal management prevent accidents by Tests and Inspections; Recordkeeping law matters, go beyond FRA’s safety identifying safety issues before they lead rationale for this proposed rule on FRA proposes to amend part 217 to to injuries and loss of life.92 recording crew actions to prevent address the use of locomotive FRA agrees with NTSB that the use of railroad accidents. As such, during recordings to conduct operational in-cab recordings to conduct operational RSAC discussions, APTA stated if FRA (efficiency) tests in passenger trains. tests is a valuable tool to improve safety, placed any limits in a rulemaking Part 217 has long required railroads to particularly tests conducted to proceeding on the operation of conduct operational tests to determine determine compliance with part 220’s recording devices after a train had the extent of employee compliance with restrictions on the use of personal stopped, passenger railroads should be railroad operating rules, timetables, and electronic devices. FRA believes exempted. APTA indicated during timetable special instructions. Section Working Group discussions that its 217.9 requires railroads to specify a 92 National Transportation Safety Board, passenger railroad members that would minimum number of operational tests Reiteration of Safety Recommendations R–10–01 & R–10–02 (July 8, 2015); available online at: http:// be subject to the requirements of this per year covering the requirements of www.ntsb.gov/safety/safety-recs/recletters/R-10- proposed rule may prefer to have subpart F of part 218, FRA’s regulation 001-002.pdf.

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passenger railroads subject to the operating trains or who otherwise incidents or to violations of Federal recording device requirements perform work in locomotive cabs. The railroad safety laws, regulations, and promulgated in a final rule will utilize language in this proposal mimics orders, or any criminal laws. FRA inward-facing image and audio language in FRA’s random drug and emphasizes it believes the best utility recordings as a method to conduct alcohol testing regulation at 49 CFR part for the use of in-cab recordings to operational tests. However, FRA has not 219. Overall, FRA believes the conduct operational tests would largely proposed requiring passenger railroads procedures for random selection of be to determine operating employees’ to utilize in-cab recordings to conduct employees for drug and alcohol testing compliance with railroad operating operational tests in this NPRM. This is procedures under part 219 have worked rules and practices addressing consistent with existing part 217, which well, and passenger railroads could use restrictions on using personal electronic generally does not mandate the methods those procedures for the random devices while performing safety-related railroads must use to conduct selection of train crewmembers for duties and to deter noncompliance. operational tests. Part 217 requires operational testing using in-cab Proposed paragraph (b)(4) provides railroads to adopt a written program of recordings. FRA may review a passenger railroad’s operational tests, and to conduct Proposed paragraph (b)(3) also procedures for conducting such operational tests according to that requires that any operational test using operational tests using in-cab recordings written program. FRA requests comment passenger in-cab image or audio under paragraph (b)(3), and FRA may on whether in a final rule the agency recordings be performed within 72 disapprove such procedures for cause should require passenger railroads to hours of the completion of the stated under existing § 217.9(h). For utilize the devices’ recordings as a employee’s tour of duty that is the example, FRA would utilize such method of performing operational tests. subject of the test. For example, if a procedures if a passenger railroad’s FRA is proposing to amend part 217 passenger train crewmember who is the written program did not have by establishing minimum requirements subject of the operational test using in- appropriate randomness protocols that passenger railroads must comply cab recordings has a tour of duty that required by proposed paragraph (b)(3). with if they choose to utilize locomotive ends at 7:00 p.m. on a Monday, a Under existing § 217.9(h), a passenger recordings to conduct operational tests. railroad manager must perform the railroad would then have 35 days to FRA proposes to amend existing operational test (review of the either amend and re-submit its written § 217.9(b) by adding a new paragraph recordings from the tour of duty that program, or to provide a written (b)(3), stating that passenger railroads ended at 7:00 p.m. on Monday) no later response in support of its program, after utilizing inward-facing locomotive than 7:00 p.m. on Thursday. This would which FRA would inform the railroad of image or audio recordings to conduct mean that any procedures required to be FRA’s final decision in writing. operational tests and inspections shall followed to perform an operational test adopt and comply with procedures in (e.g., a required debriefing with the Proposed Amendments to 49 CFR Part their written program for how such tests employee who was the subject of the 218 (Part 218) are to be conducted. Proposed test under a railroad’s program) must be Section 218.53 Scope and Definitions paragraph (b)(3) also requires railroads completed within the 72-hour period. perform such operational tests This proposal is intended to FRA is proposing to amend existing randomly. maximize the safety benefit of part 218 to deem any locomotive- As discussed during the RSAC operational testing and, again, to mounted image or audio recording process, FRA’s intent in proposing this implement Congress’ mandate that device or equipment installed in a requirement is to prevent in-cab image recordings not be used as a retaliatory passenger train as a ‘‘safety device.’’ or audio recordings from being used to tool. Concerns were raised during the Existing part 218, subpart D prohibits target employees and to implement Working Group’s discussions that an individuals from tampering with a Congress’ express requirement in the operational test performed at a much ‘‘safety device,’’ and defines that term to FAST Act that passenger railroads later date would have limited safety mean ‘‘any locomotive-mounted subject to the Statute cannot use such utility because the employee may not equipment that is used either to assure recordings to retaliate against recall the scenario in question, and, in that the locomotive operator is alert, not employees. 49 U.S.C. 20168(i). The instances where rules non-compliance physically incapacitated, aware of and proposed text of paragraph (b)(3) of this was alleged, may not be able to complying with the indications of a section would require passenger appropriately respond to and defend signal system or other operational railroads to establish objective, neutral against such an allegation. Ideally, an control system or to record data criteria for how employees subject to an operational test and the resultant concerning the operation of that operational test using in-cab recordings employee feedback would occur in near locomotive or the train it is powering.’’ are selected for such a test within a real time as many railroads’ written 49 CFR 218.53(c). FRA announced it specified time frame, so that no programs require currently. FRA’s 72- intended to treat recording devices as employee may be selected for a test hour proposal here recognizes it may ‘‘safety devices’’ during Working Group simply at the railroad’s discretion. FRA take time for a passenger railroad discussions. understands train crew members and conducting such testing to download FRA also proposes to amend existing other employees that might operate and review relevant recordings, while § 218.53(c) by correcting the reference to locomotives or perform work in ensuring any necessary discussions with appendix B in the existing definition of locomotive cabs comprise the group of the employee being tested occur without ‘‘safety device’’ because FRA’s passenger railroad employees that might undue delay, preferably as soon as statement of agency policy regarding be selected to be operationally tested. possible. FRA requests comment on this safety devices is actually located in This proposal to limit these railroads’ proposed 72-hour time-period appendix C to part 218. This proposal ‘‘exercise of discretion’’ does not mean limitation. FRA also wishes to make would merely correct this existing a railroad’s criteria cannot limit clear this proposed 72-hour limitation reference. Tampering with safety applicability of operational tests applies only to conducting operational devices, or knowingly operating (or conducted via locomotive recordings to tests and would not apply to permitting to be operated) a passenger the specific group of employees investigations of railroad accidents/ train with a disabled safety device

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constitutes an event for which a determinations, as well as allowing In-cab image and audio recording passenger locomotive engineer’s or railroads to monitor locomotive devices will supplement the conductor’s certification must be engineers’ train handling performance information recorded by a locomotive revoked under existing parts 240 and and rules compliance. However, as event recorder, and in certain accident 242. Thus, under this proposal, a NTSB conveyed, locomotive event investigations, may answer questions locomotive engineer or conductor of a recorders cannot answer questions regarding operator actions (or lack of commuter or intercity passenger train about a train crew’s knowledge or action) before a railroad accident. FRA found to have tampered with an in-cab actions during accident investigations believes passenger locomotive in-cab image or audio recording device under where such information is lacking, such recording devices are valuable railroad §§ 218.55 or 218.57 shall have his or her as for the Amtrak locomotive engineer’s safety and operational monitoring certification revoked. actions before the May 2015 accident at devices that should be treated as safety FRA is also proposing to add a new Frankford Junction in Philadelphia devices prohibited from being willfully paragraph (d) to § 218.53 that makes discussed above. tampered with by 49 U.S.C. 20138 and clear the requirements in §§ 218.59 The discussion in existing appendix C that statute’s implementing regulation at through 218.61 do not apply to such explains that part 218’s language is part 218, subpart D. In sum, a recording recording devices voluntarily installed expansive enough to cover safety device that is tampered with loses its on freight locomotives. Because these devices that may appear in the future. utility as a safety tool, and as a post- devices are voluntarily installed by the Appendix C also explains that FRA may accident investigation tool that might freight railroad, the railroad can operate add certain safety devices not record information that could be used to a lead locomotive without such previously considered within the scope prevent future railroad accidents. functioning recording devices. of part 218’s tampering restrictions, Therefore, FRA believes it is reasonable As discussed during Working Group should instances of tampering with such to treat image and audio recording meetings, in 2010 FRA responded to a devices be discovered. FRA has recently systems on passenger trains as ‘‘safety letter from Metrolink regarding whether investigated incidents where it appears devices.’’ FRA considered an inward-facing that the locomotive engineer has Section 218.61 Authority To camera on a Metrolink locomotive to be willfully tampered with a locomotive’s Deactivate Safety Devices a ‘‘safety device’’ under part 218. In its inward-facing camera system. The May 18, 2010, response, which FRA has FRA is proposing to revise § 218.61(c) engineer was operating a freight train to clarify that locomotive image added to the public docket for this with a foreign railroad’s locomotive in rulemaking, FRA explained to Metrolink recording devices on passenger the lead. The engineer was recorded locomotives can only be deactivated that it did not consider such cameras to covering inward-facing cameras on the be safety devices under part 218.93 At under the proposed requirements of 49 locomotive, but was apparently unaware CFR 229.136. FRA is also proposing to that time, railroads were not utilizing of another camera mounted on the inward-facing image recording devices add language to paragraph (c) to clarify ceiling of the engine near the back wall that freight railroads that install inward- on a large scale, FRA did not believe it of the cab. That camera recorded him necessary to require installation of such and outward facing image recording appearing to play a video game on a devices do not have to follow the devices, and FRA had not contemplated personal electronic device while using cameras as ‘‘safety devices’’ when requirements of 49 CFR 229.136 to operating the moving freight train. The deactivate their safety devices. formulating the tampering restrictions railroad that owns the locomotive in existing part 218. However, through discovered this apparent violation of 49 Appendix C to Part 218 Statement of this rulemaking’s notice and comment CFR part 220 during a random review of Agency Enforcement Policy on process, FRA is proposing to amend its the recording system’s footage and Tampering position on the treatment of in-cab provided that recording to FRA. For the reasons discussed directly audio and image recording devices on FRA believes image recording systems above, FRA is proposing to amend passenger locomotives as safety devices. and an accompanying prohibition on existing part 218, appendix C by adding First, installation of such devices would tampering with such systems in ‘‘passenger locomotive-mounted image now be required by Federal regulation, passenger locomotives (and the and audio recording equipment’’ to the as mandated by Congress in the FAST accompanying consequences for list of safety devices described in the Act. In addition, the use of such tampering violations) will act as a fourth paragraph of that appendix. Such recording devices as a post-accident deterrent to prevent instances of equipment would include recording investigation and safety tool has evolved tampering and unsafe behaviors that the devices, any memory modules used to rapidly in the industry since 2010, even cameras would otherwise record. In the store recording data, or any of these without Federal regulatory action. example above, the locomotive engineer devices’ electronic connections or other Passenger locomotive image and clearly modified his behavior to avoid appurtenances on railroad carriers that audio recording devices are like being detected by the locomotive’s provide regularly scheduled intercity or locomotive event recorders, which are image recording system. Under the commuter rail passenger transportation. required by § 229.135 in the lead proposal here, even covering the FRA proposes to expressly include these locomotives of trains traveling more locomotive’s camera would be a recording devices in the list of safety than 30 mph, and which have also long violation that would result in loss of the devices prohibited from being tampered been considered safety devices by locomotive engineer’s certification. FRA with under part 218, subpart D. This existing part 218. Locomotive event believes the proposed amendments to proposed amendment to part 218 would recorders record specified parameters part 218 would deter a locomotive apply to all passenger locomotive image regarding operation of a locomotive’s engineer from covering the locomotive’s and audio recording systems, regardless controls, allowing for in-depth post- cameras, and from subsequently using a of whether a final rule requires accident causation analysis and personal electronic device while installation of such a system on a operating a moving train. Such a particular passenger locomotive. Thus, 93 See NPRM docket; Mark H. Tessler letter to Metrolink, Locomotive video cameras, (May 18, deterrent would directly improve even if a railroad voluntarily chooses to 2010). passenger train safety. install an image or audio recording

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system on a passenger locomotive, part its longer name: The National Proposed paragraph (a) of this section 218 would still prohibit tampering with Transportation Safety Board. FRA is would require image recordings be such a system. inserting this term, so FRA can use the made ahead of the ‘‘F’’ end of the lead shorter form of ‘‘NTSB’’ in the locomotive (outward-facing) and inside Proposed Amendments to 49 CFR Part regulation. the cab of the lead locomotive (inward- 229 (Part 229) Finally, FRA is proposing to amend facing) on any train in commuter or Section 229.5 Definitions this section to add a definition for the intercity passenger service within four new term ‘‘recording device.’’ This new FRA is proposing to amend the years after the date a final rule is term would generically describe inward- existing definition in this section of the published. The rule would require and outward-facing image recording term ‘‘event recorder memory module’’ inward-facing recordings to be made on devices and any in-cab audio recording to include the portion of an event such a passenger train’s controlling devices on a passenger locomotive. Any recorder memory module (or a separate locomotive if the lead locomotive is not in-cab audio recording devices that are the controlling locomotive. The memory module) used to record any installed on a passenger locomotive, proposed rule text for this section data from a locomotive’s in-cab image or irrespective of whether such devices are would also require that if any passenger audio recording devices. This proposed required by a final rule, would be locomotive is equipped with the FRA regulation implements the FAST subject to the preservation requirements required image recording system, the Act requirement that inward- and proposed in § 229.136. system must be operating and recording outward-facing image recording devices when the train is in motion, regardless on lead passenger locomotives have Section 229.136 Locomotive Image of the train’s speed. For example, a lead crash and fire protections for any and Audio Recording Devices passenger locomotive equipped with recordings stored only within a FRA proposes to amend part 229 by image-recording devices under this controlling locomotive cab or cab car adding a new § 229.136. This new proposed paragraph must have any operating compartment. 49 U.S.C. section would establish installation and image recording devices turned on and 20168(b). As explained in the analysis technical requirements for inward- and recording the entire time the train is in for § 229.136 below, FRA is proposing outward-facing recording devices on motion. This proposal is intended to that the existing crashworthiness lead passenger locomotives. This maximize the safety benefit for lead requirements for locomotive event proposed section also would explain the passenger locomotives equipped with recorder memory modules in part 229, preservation and handling requirements image recording devices, and ensure appendix D apply to passenger for any recordings such devices make, such devices are always operative at any locomotive in-cab image or audio and the permitted uses of such point. Freight railroad that have recording devices. Thus, FRA would recordings. As mentioned in the voluntarily installed locomotive add recordings made by passenger preamble above, FRA proposes to apply recording devices do not need to adhere locomotive in-cab image or audio the requirements in this section to lead to this requirement. However, FRA recording devices to the existing locomotives in trains operated in believes such a practice may be definition of ‘‘event recorder memory intercity passenger or commuter service beneficial to freight railroads that have module’’ in this section. The only. The terms ‘‘lead locomotive,’’ such devices installed on their lead crashworthiness requirements for such ‘‘locomotive,’’ ‘‘control cab locomotive,’’ locomotives. FRA is requesting recordings would apply to recordings ‘‘DMU locomotive,’’ and ‘‘MU comment above on whether a final rule made on lead passenger locomotives, locomotive’’ would remain as defined in should also address recording and could also be used by freight existing § 229.5. requirements when trains are stopped. railroads in their locomotives but are The FAST Act mandated installation FRA has used the terminology not required by this NPRM. of recording devices only on lead ‘‘commuter or intercity passenger FRA is also proposing to amend this passenger locomotives. FRA is not service’’ in proposed paragraph (a) and section to add a definition for the new proposing to require inward- and uses similar language throughout this term ‘‘image recording system.’’ This outward-facing recording devices to be section to mean the same thing as the new term would encompass all installed in freight locomotives at this terms ‘‘intercity rail passenger or equipment that is part of the system for time for a variety of reasons that FRA commuter rail passenger transportation’’ making and retaining the image has previously stated in this NPRM. in the Statute. This language is recordings proposed in § 229.136. This Foremost, the FAST Act requires FRA to consistent with existing regulatory term would include cameras or other promulgate regulations that require all language in part 229, specifically electronic devices that capture images commuter and intercity passenger § 229.125(h), to describe this service. and any equipment that converts those railroads to install inward- and FRA clarifies here that the proposals images into usable electronic data outward-facing image recording devices in this NPRM do not apply to any image (capable of being viewed as a video) in all of their lead locomotives; recorders or any other recording devices transmitted to, and stored on, the however, there is no corresponding that are not mounted in a locomotive (or recording system’s memory module. A statutory mandate for freight railroads or control compartment of a control cab memory module on which image their locomotives. In addition, the cost locomotive) for purposes of recording recording data is stored is considered to to freight railroads of such a train crew actions or events occurring be part of the image recording system. requirement could outweigh its positive ahead of a train’s movement (outward- FRA is also proposing to amend this safety benefits, which are presented facing camera). Thus, the NPRM section to add a definition for the new earlier in this NPRM. Finally, many proposals would not apply to (or require term ‘‘NTSB.’’ This new term is the freight railroads, including virtually all installation of) any recording devices acronym for the National Transportation Class I railroads, have already begun the within the body of a passenger car, Safety Board, which is an independent process of installing locomotive mounted on poles in railroad yards, or U.S. government investigative agency recording devices in their locomotives. located on or near roadway facilities, responsible for civil transportation Therefore, FRA is declining to propose stations, or any other railroad property. accident investigation. FRA is defining requiring recording devices on freight Proposed paragraph (a)(2) contains the proposed term as a shorter form of locomotives at this time. the phase-in requirements for the

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installation of image recording systems. commuter or intercity service. This FAST Act’s recording and crash and fire An affected lead passenger locomotive proposal would also apply to any audio protection requirements and the NTSB’s must be equipped with an image recordings if a passenger railroad technical recommendations on image recording device system no later than installs audio recording devices on a recording devices in Safety four years after the date a final rule is lead locomotive. The FAST Act requires Recommendation R–10–01. published. However, FRA proposes to a lead passenger train locomotive’s FRA is not proposing memory module require any image recording systems image recording systems to have a requirements for freight railroads that installed on a lead passenger locomotive minimum 12-hour continuous recording have or are planning to voluntarily more than one year after the date of capability. This 12-hour minimum install inward- and outward-facing publication of a final rule comply with recording proposal is also consistent recording devices on their locomotives. the requirements of this section. FRA with NTSB Safety Recommendation R– However, FRA recommends that if the believes this proposal would help 10–01 discussed above. A 12-hour railroad choses to use a memory achieve prompt implementation of a recording period would, in many module, it should mount the module in final rule’s image recording system instances, capture a train crew’s entire such a way as to provide the module requirements, while providing a tour during the time they perform duties with maximum protection. reasonable timeframe to allow passenger under the hours of service laws. NTSB In addition, eventually locomotive railroads to develop, obtain, and install has indicated that crew ‘‘actions or recording device data may primarily be appropriate image recording systems inactions at any time during that period recorded on standard crashworthy (within four years of the date of could set the stage for an accident.’’ 94 memory module equipment associated publication of a final rule). As discussed Paragraph (a)(5) proposes that with required PTC systems, and the above, many passenger railroads have locomotive recording device data future costs of equipping passenger already installed recording systems at (including audio recorder data if locomotives with crashworthy memory their own discretion. However, some of installed) on lead locomotives in modules might be overstated by this those systems may not fully comply commuter or intercity passenger service NPRM’s Regulatory Impact Analysis with the requirements of this proposed be recorded on a memory module (RIA). The lead locomotive of a train section. To avoid imposing unnecessary meeting the requirements for a certified equipped and operating with a PTC costs on industry and to avoid crashworthy event recorder memory system under 49 CFR part 236 must penalizing early adopters of camera module described in part 229, appendix have a locomotive event recorder that technology being used for safety D. Appendix D establishes the general records train control data, including purposes, FRA included the proposed requirements for memory modules specific PTC system data. 49 CFR four-year deadline. FRA considered the certified by their manufacturers as 236.1005(d). The PTC event recorders potential economic and technical crashworthy, and contains performance for locomotives manufactured after burdens involved with researching, criteria for survivability from fire, October 1, 2009, must be crashworthy. acquiring, and installing image impact shock, crush, fluid immersion, Such PTC event recorders may also recording systems (and developing and and hydrostatic pressure. The FAST Act eventually include the functionality to implementing relevant image recording requires passenger locomotive image record image and audio recording system procedures), when formulating recording devices have crash and fire device data. FRA is aware of this proposed installation timeline. FRA protections for any in-cab image crashworthy PTC event recorder requests comment regarding the recordings stored only within a products already under development appropriateness of the implementation controlling locomotive cab or cab car that include image recording memory dates proposed in this section. operating compartment. Further, NTSB functions.95 A single crashworthy event FRA proposes in paragraph (a)(3) of Safety Recommendation R–10–01 also recorder memory module that fulfills this section that passenger railroads recommended FRA require railroads to the existing locomotive safety must provide notice to crewmembers install crash- and fire-protected inward- requirements of part 229, the PTC that they are in a locomotive equipped and outward-facing audio and image requirements of part 236, and any future with recorders via a notation on the recorders. FRA is not proposing to image recording device requirements Form FRA F6180–49A. This proposal is require passenger railroads to use a adopted in this rulemaking, may make intended to alert crewmembers that locomotive’s existing crashworthy economic and logistical sense for there is no expectation of privacy in the memory module to also store image and railroads to acquire and install on cab of the locomotives while performing audio recordings, although that is an affected locomotives. In the future, duties for the railroad. FRA notes that option under this proposal. Railroads railroads may voluntarily install such a this proposal would also require notice may use a memory module to store new, single, crashworthy PTC memory if a passenger locomotive is equipped image and audio recordings separate module that fulfills multiple railroad with any audio recording devices, even from that storing event recorder data safety regulatory requirements on if audio recording devices are not meeting the requirements of appendix locomotives. required in a final rule but a railroad has D. FRA seeks comments on the proposed chosen to equip a locomotive with such The railroad industry has much crashworthy memory retention devices. This proposed regulation experience with the standards in requirements for passenger locomotive would not apply to freight railroads that appendix D, and collaboratively created recording devices discussed above. FRA have voluntarily installed visual or these standards via RSAC is specifically interested in making the audio recording devices in their recommendations. 70 FR 37920 (June final rule appropriately performance- locomotives. However, FRA encourages 30, 2005). In sum, FRA believes its based and cost-effective. FRA believes it freight railroads to provide notice to proposed paragraph (a)(5) with respect has proposed a cost-effective method of their crewmember that recording to passenger railroads would fulfill the meeting the FAST Act’s devices are present. crashworthiness mandate for passenger Paragraph (a)(4) proposes that the 94 National Transportation Safety Board, train locomotive recording devices image recording system shall record at Reiteration of Safety Recommendations R–10–01 & while attempting to minimize potential R–10–02 (July 8, 2015); available online at: http:// least the most recent 12 hours of www.ntsb.gov/safety/safety-recs/recletters/R-10- regulatory costs, but is interested in operation of a lead locomotive in 001-002.pdf. comments addressing potential

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alternatives to meet an appropriate image recordings would be critical in inspection of the locomotive required by crashworthiness level to protect stored post-accident investigations, as most of § 229.21 unless a railroad has first locomotive image recording system the accidents described above for which replaced or repaired the recording data. the NTSB made image recording device system. FRA notes it would not consider Next, proposed paragraph (b) of this recommendations involved whether the en route image recording device section would establish the signal systems were properly failure on a passenger train’s lead requirements for the outward-facing functioning, properly displayed, and locomotive to be a violation under image recording functional capabilities complied with by train crews. existing part 218, subpart D (for on passenger trains. FRA’s proposal Second, proposed paragraph (b) operating a controlling locomotive of a would explain what must be captured would require outward-facing image train with a disabled safety device) if by outward-facing image recording recording devices on lead passenger the locomotive was not used as a devices that are installed on passenger train locomotives to be able to function passenger train’s lead locomotive after trains, but leaves it to a railroad’s in both day and lowlight/nighttime the next calendar day’s inspection as discretion to decide what equipment it conditions with illumination from the proposed. This proposal mirrors FRA’s will use to fulfill the proposed equipped locomotive’s headlight. FRA treatment of event recorders that fail en requirements (with one exception also proposes that outward-facing image route under § 229.135. FRA believes that discussed below). FRA has proposed recording devices on such passenger an image recording device that fails en general functional requirements instead locomotives record at a minimum route on a passenger train’s lead of equipment specifications to recording rate of 15 frames per second locomotive should be treated in the accommodate the development of future (fps) (or its equivalent). FRA chose to same manner as an event recorder; technologies capable of fulfilling the propose this minimum recording rate however, FRA is requesting comments outward-facing image recorder threshold to allow for more memory on the burden to passenger railroads of requirements. The proposed module storage savings than costlier requiring such a defective image requirements of paragraph (b) apply higher-speed or even continuous-action recording device to be repaired or only to outward-facing image recorders recording (generally considered to be replaced at the next calendar day installed on lead passenger train about 23 fps). Industry raised concerns inspection. locomotives. Freight railroads may about the cost of obtaining crashworthy Proposed paragraph (c) of this section choose to follow these proposed memory modules that could retain 12- would establish functional requirements requirements for outward-facing hours of higher speed and/or higher for the inward-facing image recording recording devices if they chose to install resolution image recordings during the device on passenger train lead such devices on their locomotives. Working Group meetings. FRA believes locomotives. The requirements in this However, the proposal would not a minimum 15 fps requirement will proposed paragraph do not apply to require they do so. provide accident investigators and inward-facing image recorders installed The proposed outward-facing image railroads a sufficient image recording to on freight trains. Freight railroads may recording device requirements for lead analyze the events leading up to a grade choose to follow these proposed passenger train locomotives are crossing collision or other collisions, requirements for inward-facing intended to fulfill the safety-related while balancing the industry’s stated recording devices if they chose to install investigation purposes of recording: (1) cost concern. For example, in 1⁄15 of a such devices on their locomotives. Events leading up to a train collision; (2) second a car travelling at 45 miles per However, the proposal would not highway-rail grade crossing or hour will move approximately 4.4 feet require they do so. trespasser accidents, including motor between frames. FRA believes FRA’s proposal does not specify the vehicle operator actions leading up to recordings at 15 fps are adequate to number of inward-facing recording such accidents and the functioning of fulfill the safety-related investigatory devices that would be required in a any visible active grade crossing purposes for such recordings listed passenger train’s lead locomotive, but warning devices; (3) wayside signal above, and notes this standard is the rather proposes that an installed device indications; (4) visible condition of same frame rate speed used in certain must provide complete coverage of all structures and track (e.g., position of widely available motor vehicle areas of the controlling locomotive cab switch points, broken rails where dashboard camera systems. In this where a crewmember typically may be visible, bridge conditions, washouts, section, to ensure accident investigators positioned, including complete coverage etc.) that an equipped locomotive can coordinate various sources of of the instruments and controls required approaches and travels over; and (5) any information gathered during a railroad to operate the controlling locomotive in other events relevant to a collision or accident investigation, FRA also normal use. This would include image derailment. FRA developed the proposes to require an accurate time and recording coverage of extra permanent proposed text of paragraph (b) with the date stamp be on outward-facing image seats in the cab and any jump seats. goal of requiring outward-facing image recordings. Although this NPRM does not require recording devices on passenger trains to Next, the FAST Act establishes that a multiple inward-facing recording capture images to provide more railroad is not required to cease or devices in a lead locomotive, FRA information to help the safety-related restrict operations upon a technical makes clear that nothing proposed in investigations of the above-listed events. failure of an inward- or outward-facing this NPRM would preclude a railroad First, proposed paragraph (b) requires image recording device, but that such from installing multiple image recording the recording system on passenger trains device shall be repaired or replaced ‘‘as devices in each of its locomotive cabs; to include an image recording device soon as practicable.’’ 49 U.S.C. 20168(j). however, the NPRM’s RIA assumes that aligned to point parallel to the In proposed paragraph (b), FRA has only one inward-facing camera in the centerline of tangent track on which the specified that ‘‘as soon as practicable’’ locomotive would be necessary to lead locomotive is traveling. FRA has would mean that if a passenger train’s satisfy the proposed requirements of specified that the recordings made lead locomotive’s outward-facing image this section. would have to be able to distinguish recording system fails, it could not be FRA proposes that a recording device different wayside signal aspects. FRA used as a passenger train’s lead be equipped with sufficient resolution believes this feature of outward-facing locomotive after the next calendar day’s to record train crew actions, including

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whether a train crew member is (or its equivalent), because motion in FRA is also proposing in paragraph (c) physically incapacitated or is not the cab occurs at a much lower rate than that any inward-facing image recordings complying with signal system or other in front of the lead locomotive. For in passenger train lead locomotives have operational control system indications. example, APTA’s recommended an accurate date and time stamp. FRA FRA’s intent is not to have image practice for the selection of recording believes an accurate time and date recording devices focused on the faces systems for use in transit-related closed stamp is essential to the usefulness of of the individuals in the cab, but rather circuit television recording systems 96 the recordings, especially for post- to require sufficient clarity so that, over specifies that 5 fps is the minimum accident investigations. Also, similar to a period of operation, the actions of the recommended frame rate for use in low- the proposal for outward-facing cameras cab occupants can be monitored. traffic areas or areas where only above, FRA is proposing that when FRA’s intends that an inward-facing walking-pace motion is likely (such as there is an en route failure of a image recording device on passenger passenger areas). FRA has also proposed passenger locomotive’s inward-facing train lead locomotives would have in paragraph (c) that the inward-facing image recording device, the locomotive sufficient clarity and resolution to show image recording system for passenger could not be used as a train’s lead whether occupants of the cab are using train lead locomotives be able to record locomotive after the next calendar day’s or manipulating small hand-held the desired actions using the ambient inspection of the locomotive as required personal electronic devices such as cell light in the cab. And, if ambient light by § 229.21 if the recording device is not phones. FRA is not proposing to require levels drop too low for normal first repaired or replaced. the image recording devices to be operation, the image recorders(s) should Finally, FRA has also proposed under capable of showing what was displayed automatically switch to infrared or this paragraph (c) that no recordings be on the screen of such a hand-held another operating mode that gives the made of any activities within a device, but simply whether the device recording sufficient clarity to comply passenger locomotive’s sanitation was turned on and whether a person with this rule’s requirements. FRA has compartment as defined by existing was using the device. As discussed specified using infrared technology to § 229.5. A locomotive’s sanitation above, FRA believes one of the best give sufficient image recordings in low- compartment is an enclosed proactive safety uses of an inward- light or nighttime conditions in the compartment that contains a toilet facing camera system is to conduct proposed rule text. Feedback from the facility for employee use. The Working operational tests to ensure operating industry indicates that infrared systems Group discussed this topic, and FRA employees’ compliance with the work well to provide sufficient image believes such recordings would be an restrictions on the use of personal recording clarity in low-light conditions unwarranted invasion of personal electronic devices under part 220, and does not interfere with a crew’s privacy and would likely be illegal. In subpart C. ability to see, especially out the light of those concerns, FRA is Inward-facing image recorders would locomotive’s windows. KCS’ proposing to expressly prohibit also likely be capable of allowing presentation to the Working Group recordings of any activities in a viewers to identify signs of obvious indicted that its infrared camera devices passenger locomotive’s sanitation fatigue, such as motions of the head or emit a barely distinguishable glow in compartment or placing any image body that may indicate obvious fatigue the cab of the locomotive. Infrared recording device where it would allow or whether a cab occupant appears to be image recording devices are also widely the device to record such activities. FRA asleep. For example, constant head available and relatively inexpensive to strongly recommends that freight nodding or dozing of a locomotive purchase. FRA has also referenced railroads likewise ensure that engineer, as well as the engineer ‘‘another operating mode’’ to capture voluntarily installed recording devices slumped over asleep, would be signs of using other sufficient low-light image do not infringe on the privacy of their obvious fatigue. recording capability technologies that locomotives’ sanitation compartments. As discussed at length during the Proposed paragraph (d) would require exist or may arise. FRA seeks comments RSAC Working Group Meetings, fatigue wired or wireless connections to be on whether any other technology exists is an ongoing issue in the railroad provided to ensure only authorized or is under development that may industry and is often a relevant causal passenger railroad personnel can accomplish the same purpose as factor that is considered during post- download image and audio recordings accident investigations. While FRA has infrared technology use with image from the certified crashworthy memory a number of efforts underway to address recording devices in low-light module and any other standard memory the problem of fatigue in the industry, situations. FRA reminds railroads that module. Due to potential for misuse of the inward-facing image recording any infrared or other lighting operation recordings locomotive image and audio device requirement would assist in low light conditions should not recording systems make, FRA proposes accident investigators in making more interfere with a crew’s vision (see 49 that passenger railroads use electronic accurate fatigue-related determinations, CFR 229.127(a)), and that the placement security measures to ensure only with the ultimate aim of taking actions of the image recording devices should authorized railroad personnel can to prevent future accidents caused by not obstruct a crew’s view of the right- download recordings. Such security fatigue. of-way from its normal positions in the measures could include password or Although FRA understands that cab (49 CFR 229.119(b)). passcode protection to access a memory camera systems are under development Similar to the discussion above for module. Proposed paragraph (d) would that will permit evaluating a outward-facing image recording devices, give passenger railroads discretion crewmember’s alertness based on whether to use wired or wireless 96 American Public Transportation Association patterns of eye blinks, it is not FRA’s Standards Development Program Recommended download connections and which intent to require installation of such a Practice, Selection of Cameras, Digital Recording appropriate electronic security measures system for passenger locomotives. FRA Systems, Digital High-Speed Networks and to adopt. This proposed discretion believes the proposed requirements in Trainlines for Use in Transit-Related CCTV would accommodate improved Systems, APTA IT–CCTV–RP–001–11 (June 2011); this paragraph can be met by the available online at: http://www.apta.com/resources/ electronic information security inward-facing recording device standards/Documents/APTA-IT-CCTV-RP-001- technologies that develop in the future. recording images at a rate as few as 5 fps 11.pdf. FRA seeks comments on whether

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appropriate electronic download and FRA seeks comment on whether railroad subject to FRA enforcement security features, such as encryption appropriate restrictions in a final rule action. functions, should be specified in a final should be placed on sample recording FRA has not proposed specific rule rule, or whether such features are better device downloads from passenger train text governing the chain-of-custody, addressed by individual passenger lead locomotives made under proposed handling, and release procedures railroads or an industry-adopted paragraph (e). FRA anticipates sample industry-wide. The industry has much standard. While FRA is not proposing to downloads for inspection or experience in this area given the apply paragraph (d) to voluntarily maintenance purposes might often be significant number of passenger installed inward- and outward-facing taken by non-managerial or operating locomotives already equipped with recording devices on freight employees, such as mechanical outward- and inward-facing image locomotives, FRA suggests freight department employees in a locomotive recording devices. The industry also has railroads take necessary steps to prevent repair facility. However, FRA believes experience with preservation and the unauthorized downloading of these sample downloads, like all image handling requirements for locomotive locomotive image and audio recordings. or audio recording device downloads event recorders after the occurrence of FRA also seeks comments from from passenger trains, should be subject an accident under existing § 229.135(e). interested parties as to whether the to the security proposals in § 229.136(d) Given the various types of locomotive requirements proposed in this section and (f) to avoid mishandling or misuse recording equipment that different should apply to any railroad that of locomotive recordings. Further, FRA railroads may choose to utilize, various voluntarily installs image or audio believes it may be appropriate in a final State court evidentiary and chain-of- recording devices. rule to require limiting the periodic custody laws and rules with which railroads must comply if the railroads Proposed paragraph (e) of this section inspection download to, for instance, use the recordings in litigation (e.g., would require specified inspection, the last 30 seconds of operation before highway-rail grade crossing and testing, and maintenance of locomotive the most recent normal shutdown of the trespasser accidents), and the potential image and audio recording device system. Further, a requirement that such cost of requiring railroads to amend systems on passenger train lead a download for inspection or testing existing procedures and to provide locomotives similar to those found in purposes must be deleted once proper functioning of an image recording instruction on such new procedures, FRA’s locomotive event recorder FRA does not believe it appropriate to regulation. Paragraph (e) would first system is confirmed might also be appropriate. FRA requests comment on impose specific chain-of-custody and require such a passenger locomotive’s release procedures in regulation text. image recording system (and any whether these or similar requirements are necessary in a final rule. Rather, passenger railroads must ensure installed audio recording system) have their custody and release procedures Paragraph (f) of this section proposes self-monitoring features. This means the and policies meet the requirements for preservation and handling requirements recording system can monitor its own handling recordings under the proposed for image and audio recordings on operation and display an indication to rule. FRA’s safety interest most strongly passenger locomotives’ image and audio a passenger train’s crew when any data lies in ensuring recordings are handled recording systems. Paragraph (f) would required to be stored is not stored, or properly post-accident. when the stored data does not match the implement the FAST Act’s requirements Proposed paragraph (f)(1) permits data received from the image recording to address the appropriate uses of passenger railroads to extract and devices. At a minimum, the self- passenger locomotive recordings and analyze recorded data if the original monitoring features must indicate to the protect such recordings from downloaded data file, or an unanalyzed passenger locomotive’s crew whether unauthorized release. exact copy of it, is retained in secure the system is turned on, and, in some Paragraph (f)(1) would require each custody under the railroad’s procedures fashion, that power is available to the passenger railroad subject to proposed adopted under paragraph (f)(1) and not system. This proposal leaves to the § 229.136 to adopt, maintain, and utilized for analysis or any other discretion of the passenger railroads comply with a chain-of-custody purpose except by direction of FRA or which self-monitoring features to install procedure governing the handling and another Federal agency. FRA notes the to avoid inhibiting future changes in release of any locomotive image or proposed post-accident/incident available technology that could be used audio recordings accessed by railroad preservation requirement in paragraph for system self-monitoring. Other, more personnel. As discussed in Section VI. (f)(2) would apply to any recordings sophisticated self-monitoring features, if above, in absence of an accident or made on a lead passenger locomotive available, must also indicate to a incident where FRA or another Federal equipped with image or audio recording passenger train’s crew if a fault with the agency has taken possession of a devices, without regard to whether a recording system has been detected. locomotive’s recording devices, a final rule requires a particular FRA acknowledges that some faults may railroad’s internal policies govern the locomotive to be equipped with such go undetected under these handling of locomotive audio and video devices. For example, if a passenger requirements. However, FRA believes recordings. The policies passenger railroad voluntarily chose to equip a the additional requirement for railroads establish under proposed locomotive with an audio recording download of sample recordings at the subsection (f)(1) would govern the system and that locomotive was periodic inspection intervals under chain-of-custody for recordings, access involved in an accident, the railroad proposed paragraph (e) will serve as an to the recordings, and release of the would be required to preserve the audio appropriate back-up test, similar to the recordings. The chain-of-custody recording in accordance with proposed periodic and annual inspection procedure would have to specifically paragraph (f)(2), which is discussed requirements in existing § 229.135 for address the preservation and handling below. As explained in FRA’s May 18, locomotive event recorders. FRA is requirements for post-accident/incident 2010, letter to Metrolink referenced declining to apply the requirements recordings provided to FRA or other above, such audio recordings from proposed in paragraph (e) to locomotive Federal agencies. Under this proposal, a passenger locomotives are already image and audio recording devices passenger railroad’s failure to comply subject to preservation under existing voluntarily installed by freight railroads. with its procedures would make the § 229.135(e)’s locomotive-mounted

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recording preservation requirement. mounted recording device or devices above, the NTSB has long sought to use Such recordings would continue to be designed to record information recordings to help conduct post- required to be preserved under this concerning the functioning of a accident investigations to accurately proposed paragraph. Thus, FRA’s locomotive or train.’’ FRA considers in- determine accident causes with the goal proposal regarding the preservation of cab locomotive cameras to be ‘‘other of improving railroad safety. This use locomotive recordings does not locomotive-mounted recording devices’’ will also enable passenger railroads to represent any regulatory change; within the meaning of that existing continue to utilize image recordings in however, some passenger railroads that section. litigation involving grade crossing and previously did not have inward- or Paragraph (f)(3) would establish trespasser accidents. outward-facing image recording devices permissible uses of a passenger Next, FRA has also proposed to in their lead locomotives will now have locomotive’s image or audio recordings incorporate the FAST Act’s permission to install such devices and will have to and is similar to proposed text FRA to use recordings on passenger trains to store the associated data. presented during the Working Group document any criminal acts and Paragraph (f)(2) specifies the post- meetings. While proposed paragraph unauthorized occupancy of the cab, as accident preservation requirements for (f)(3) only applies to image or audio well as the investigation of a suspected passenger locomotive image and audio recordings from passenger locomotives, or confirmed act of terrorism. It is not recordings. If a locomotive being used in FRA is asking for comments on whether FRA’s intent that any of the proposals commuter or intercity passenger service proposed paragraph (f)(3) should also in this NPRM would affect the ability of is equipped with image or audio apply to image or audio recordings from law enforcement personnel or a Federal recorders and involved in a reportable freight locomotives with voluntarily agency’s access or use of passenger accident or incident under part 225 of installed recording devices. The FAST locomotive image or audio recordings to this chapter (Part 225 reportable Act, at 49 U.S.C. 20168(d), establishes conduct criminal investigations, as is accident), this paragraph proposes that three express purposes for which expressly stated in proposed paragraph the railroad using the locomotive at the passenger railroads may use image (h) below. No current FRA regulations time of the accident or incident must recordings and gives FRA discretion to specifically address unauthorized preserve the devices’ data for analysis designate other appropriate purposes. occupancy of locomotive cabs. by FRA or other Federal agencies for up The three express purposes stated in the However, the issue of unauthorized to one year after the accident. The FAST Act are for: occupancy of the locomotive cab has purpose of this proposed provision is to arisen many times in the past in the (1) Verifying that train crew actions are in ensure data from passenger locomotive- accordance with applicable safety laws and context of railroad accidents and other mounted recording devices is retained the railroad carrier’s operating rules and FRA safety-related investigations, is for use by FRA as well as other Federal procedures, including a system-wide quite relevant information in accident agencies to effectively conduct post- program for such verification; (2) assisting in investigations, and may also arise in accident/incident investigations and an investigation into the causation of a certain criminal investigations. more accurately determine their causes. reportable accident or incident; and (3) In the FAST Act, Congress permits Additionally, this paragraph’s one-year documenting a criminal act or monitoring FRA to deem other appropriate retention requirement would fulfill the unauthorized occupancy of the controlling purposes for which passenger railroads locomotive cab or car operating could use locomotive image recordings. FAST Act’s mandate that each compartment. passenger railroad preserve recording Therefore, FRA proposes in paragraph device data for one year after the date 49 U.S.C. 20168(d). FRA has divided the (f)(3)(vii) to allow passenger railroads to of a Part 225 reportable accident. first express purpose in the FAST Act use recordings to perform inspection, To allow for analysis by FRA or other into two items under paragraph (f)(3), to testing, maintenance, or repair activities Federal agencies during investigations, expressly state passenger railroads may to ensure inward-facing image recorders paragraph (f)(2) proposes to require a use recordings to investigate a violation are properly installed and functioning. railroad to either provide the image and/ of a Federal railroad safety law, Under proposed § 229.136(e) discussed or audio data in a usable format, or regulation, or order, or a railroad’s above, FRA expects that at each periodic make available any platform, software, operating rules and procedures and to inspection § 229.23 requires, the media device, etc. that is required to conduct operational tests under § 217.9. passenger railroad conducting the play back the image and/or audio data. A railroad’s program of operational inspection of the equipped locomotive In the past, FRA has encountered testing is the existing method of would take sample download(s) to challenges in investigating accidents/ conducting such a system-wide confirm operation of the system, and, if incidents where railroads have provided verification of rules compliance. FRA’s necessary, repair the system to full data to FRA but not the means to read, regulations are issued under the operation. However, FRA also intends to view, or use the data. This proposal is authority of the Federal railroad safety allow a passenger railroad to use intended to prevent that issue. laws, and often require railroads to recordings to ensure the proper While freight locomotive recording adopt rules governing safe railroad functioning of a recording system at any devices are not covered under this operations. FRA believes Congress time, especially if a recording system proposed paragraph, preservation intended the Federal railroad safety malfunctions and requires repair. requirements for recordings from freight regulations issued under the safety laws FRA requests comment on whether locomotive recording devices can be to be included under the Statute’s other appropriate safety-related uses found in existing § 229.135(e). Section provision, and FRA also has discretion exist for locomotive recordings which it 229.135(e) already applies to any under paragraph (d)(4) of the Statute to should include in a final rule. Further, locomotive image and audio recordings include other purposes FRA deems although the FAST Act applies only to that exist on a passenger or freight appropriate. recordings that image recording devices locomotive involved in a Part 225 FRA has also incorporated the FAST make on passenger locomotives subject reportable accident. As FRA explained Act’s permission to use passenger to the Act’s requirements, FRA is in its 2010 letter to Metrolink discussed locomotive recordings to assist in requesting comment on whether above, existing § 229.135(e) applies by conducting investigations into the cause paragraph (f)(3) should apply to its plain text to ‘‘any other locomotive- of reportable accidents. As discussed recordings made by locomotives in

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freight service and any locomotive Like several other FRA regulations, is inoperative would not deem the audio recordings. FRA has proposed it would review a locomotive to be in an improper Proposed paragraph (g) of this section railroad’s submission within 90 days. condition, unsafe to operate, or a non- would implement the FAST Act’s FRA’s Associate Administrator for complying locomotive under §§ 229.7 recording device review and approval Railroad Safety and Chief Safety Officer and 229.9. These proposed requirements process for passenger railroads. 49 would then provide notice in writing if for removing passenger locomotive U.S.C. 20168(c). The Act requires FRA the railroad’s submission has been recording devices from service mirror to establish a review and approval disapproved. If a railroad’s system is already established requirements for process to ensure the three standards disapproved, FRA’s written notice removing locomotive event recorders described in 49 U.S.C. 20168(b) are met would specify the basis for such from service under § 229.135(c). (12-hour continuous recording disapproval. If a railroad’s system is However, if the railroad is unable to capability, crash and fire protections, disapproved, the railroad would then be repair the image recording device before and accessibility for accident prohibited from installing and utilizing the locomotive’s next calendar-day investigation review). FRA proposes the required image recording system inspection, the locomotive would have that only passenger railroads (not until it received approval of an to be placed out of service. Therefore, as freight) would have to submit amended submission. In the absence of previously stated, FRA requesting information to FRA regarding whether written disapproval from FRA, FRA comments on the burden this would put the recording device system installed on would be considered to have approved on passenger railroads. locomotives subject to the final rule the railroad’s locomotive image Proposed paragraph (j) of this section meets the established criteria. FRA has recording system. For the convenience is similar to existing § 229.135(g) of not proposed that freight railroads of both industry and FRA, FRA plans to FRA’s regulation addressing locomotive would have to submit such information, publish a list of any previously event recorders and addresses because the FAST Act’s recording approved systems on its internet tampering with a locomotive’s image or device approval provision applies only website that railroads can use as a audio recording system. As described to passenger railroads. FRA requests reference. above, FRA has proposed to include comment regarding whether in the final Proposed paragraph (h) of this section passenger locomotive recording systems rule the proposed recording system mimics existing § 229.135(f) in FRA’s as ‘‘safety devices’’ in part 218’s review and approval requirements locomotive event recorder regulation. tampering regulation. This proposed should also apply to freight railroads. This provision explains that nothing in paragraph explains the potential FRA also requests comment on the proposed § 229.136 is intended to alter ramifications for willfully disabling an potential implications of requiring the existing legal authority of law event recorder or tampering with or passenger railroads to maintain a total of enforcement officials investigating altering the data such devices record. 24 hours of continuous recording violations of State criminal laws, the FRA would consider the following capability. Specifically, FRA seeks priority of NTSB investigations under examples unlawful tampering with a comment on the potential costs and 49 U.S.C. 1131 and 1134, or the locomotive’s recording system when an benefits of such a requirement. authority of the Secretary of employee: Disables or obscures an A passenger railroad would have to Transportation to investigate railroad image recording device to prevent the submit the information to FRA for accidents under the applicable Federal device from recording the intended field review and approval at least 90 days statutes. of view, disables or interferes with a prior to installing the image recording Proposed paragraph (i) of this section microphone or other component of an system, or for existing systems, not more addresses a passenger railroad removing audio recording system, or attempts to than 30 days after the effective date of a locomotive image recording device disable or tamper with a memory a final rule. As a practical matter, FRA from service, and how it should handle module or other device that stores would encourage railroads to submit its repair. This proposed paragraph recorded data. their information to FRA well in would apply only to image recording Finally, proposed paragraph (k) of this advance of the proposed 90-day devices on locomotives in commuter or section would define the meaning of the requirement so that if FRA disapproves intercity passenger service, not term ‘‘train’’ for this section. The term of any part of a railroad’s submission, recording devices voluntarily installed train is proposed to mean a single the railroad could timely make on locomotives in freight service. locomotive, multiple locomotives amendments. This would minimize any The proposed text would allow coupled together, or one or more impact on the railroad’s proposed passenger railroads to remove a locomotives coupled together with one installation timeline or the use of locomotive image recording device from or more cars. This proposed definition railroad resources. service. In fact, if a railroad knows the clarifies that lite passenger locomotive A passenger railroad’s submission device is not properly recording, the consists or single passenger locomotives under this proposal would have to railroad would have to remove the that are operated would have to be address: (1) The image recording device from service. When the equipped with the image recording system’s minimum 12-hour continuous passenger railroad removes the devices as prescribed in this section. recording attributes; (2) the locomotive’s image recording device specifications for the crashworthy from service, a qualified person under Appendix D to Part 229 Criteria for memory module utilized to store the FRA’s regulations would have to record Certification of Crashworthy Event image recordings that complies with the the date the device was removed from Recorder Memory Module performance criteria in existing part service on Form FRA F6180.49A, under Finally, FRA proposes to amend 229, appendix D; and (3) the recording the REMARKS section. However, a existing part 229, appendix D to state system’s technical attributes and locomotive with an out-of-service image the crashworthiness standards in that procedures governing access by recording device could still act as a lead appendix also apply to a memory authorized personnel, addressing the locomotive in a passenger train until the module used to store the data recorded accessibility of the recorded data in the locomotive’s next calendar-day by the image recording devices on lead event of a railroad accident under inspection under § 229.21. The fact that passenger train locomotives required by proposed paragraph (f). the locomotive’s image recording device proposed § 229.136, and any audio

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recording devices a passenger railroad of track on the Northeast Corridor), the process at 49 CFR part 211. This installs. FRA believes the existing likelihood of similar accidents occurring exemption would be consistent with the crashworthy memory module should be eliminated or greatly reduced. intent of NTSB Recommendation R–13– requirements in appendix D intended to In turn, the need should diminish for 22 discussed above, in that data protect the microprocessor-based data more stringent crashworthy memory regarding the operation of a locomotive recorded by a locomotive’s event module requirements to preserve image that is stored remotely is not at risk of recorder are also the appropriate and audio recordings for use to being lost in an accident involving that standards for microprocessor data a lead investigate human-factor caused locomotive. passenger locomotive’s image and audio accidents on main track. VIII. Regulatory Impact and Notices recording systems record. The railroad FRA proposes that a memory module industry has extensive experience with meeting the specified performance A. Executive Order 12866, Executive the standards in appendix D, and criteria in either Table 1 or Table 2 of Order 13563, Executive Order 13771, collaboratively created these standards section C of appendix D would be and DOT Regulatory Policies and via RSAC recommendations to FRA in acceptable. As FRA discussed in the Procedures rulemaking promulgating the 2003 that were incorporated into This proposed rule is a significant Federal regulation in 2005. 70 FR 37920 crashworthy memory module standards, each set of criteria in Tables 1 and 2 is regulatory action within the meaning of (June 30, 2005). Executive Order 12866 (E.O. 12866) and Appendix D establishes the general a performance standard and FRA has not included any specific test DOT policies and procedures. See 44 FR requirements, testing sequence, and 11034 (Feb. 26, 1979). FRA made this required marking for memory modules procedures to achieve the required level of performance. FRA did not believe it determination by finding that, although certified by their manufacturers as the economic effects of this proposed crashworthy. Appendix D also contains necessary to include specific testing criteria in the regulation as the industry regulatory action would not exceed the performance criteria for memory $100 million annual threshold defined module survivability from fire, impact and manufacturers are in the best position to determine the exact way by E.O. 12866, the proposed rule is shock, crush, fluid immersion, and significant because of the substantial hydrostatic pressure. Any memory they will test for the specified performance parameters. 69 FR 39785 public interest in transportation safety. module used to store the last 12 hours The proposed rule attempts to follow of data from an image or audio (June 30, 2004). Not requiring specific test procedures also accommodates any the direction of Executive Order 13563, recording device meeting the which emphasizes the importance of performance criteria in appendix D future testing methods that develop. Finally, under the FAST Act (49 quantifying both costs and benefits, of would comply with the crashworthiness reducing costs, of harmonizing rules, proposal in this NPRM. U.S.C. 20168(e)(2)), FRA has discretion to exempt railroads from the inward- and of promoting flexibility. However, FRA understands the NTSB prefers FRA was unable to determine how stricter recorder survivability standards and outward-facing image recording device requirements based on effective locomotive image recording than those in appendix D. NTSB has devices would be at reducing accidents. recommended FRA require event alternative technologies or practices that provide for an equivalent or greater Thus, instead of presenting the recorder data to also be recorded in quantifiable benefits, FRA presented the another location remote from the lead safety benefit or are better suited to the risks of the operation. FRA believes it benefits qualitatively, as discussed locomotive(s) to minimize the further below. Finally, this proposed likelihood of data destruction in an may be appropriate to exercise this discretion under the Act to provide an rule is expected to be an E.O. 13771 accident, as has occurred in certain regulatory action. Details on the accidents. NTSB Safety exemption from the proposed crashworthiness requirements in this estimated costs of this proposed rule Recommendation R–13–22.97 However, NPRM. FRA is contemplating an can be found in the rule’s economic the existing crashworthiness standards exemption from the crashworthiness analysis. in appendix D require a memory requirements where lead passenger This NPRM directly responds to the module capable of surviving the locomotive recordings are immediately Congressional mandate in section 11411 majority of railroad accidents. FRA transmitted and stored at a remote of the FAST Act that FRA, by delegation believes a new, more stringent standard location off of the locomotives(s) when from the Secretary, require each railroad that would prevent the destruction of technology reliably allows for such a that provides intercity rail passenger or data in every passenger railroad recording system. This proposal is also commuter rail passenger transportation accident scenario is likely not cost consistent with the FAST Act’s to install image recording devices on the beneficial, and is also likely requirement for crashworthy storage controlling locomotives of passenger unnecessary given the future only when recordings are stored on a trains. FRA believes the requirements of implementation of PTC systems. controlling locomotive’s cab. 49 U.S.C. this proposed rule, as applied to As discussed above, the railroad 20168(b)(2). passenger trains, are directly or accidents in which the NTSB has Based on Working Group discussions, implicitly required by the FAST Act and discussed locomotive image and audio FRA understands that current will promote railroad safety. recording device recommendations were technology does not always permit such FRA has prepared and placed a RIA human-factor caused accidents. Nearly a wirelessly transmitted data recording addressing the economic impact of this all those human-factor caused railroad system to work effectively in all proposed rule in the Docket (Docket no. accidents were PTC-preventable. Thus, locations (e.g., at remote locations or FRA–2016–0036). The RIA details upon the implementation of PTC locations where physical features such estimates of the costs of this proposed systems (Amtrak has already as tunnels or elevation result in no rule that are likely to be incurred over implemented a PTC system on segments reliable wireless transmission of data). a ten-year period. FRA estimated the FRA requests comment on this topic, costs of this proposed rule using 97 National Transportation Safety Board, Safety Recommendation R–13–22 (Aug. 14, 2013); including whether this exemption might discount rates of 3 and 7 percent. For available online at: http://www.ntsb.gov/safety/ best be addressed on an individual the 10-year period analyzed, the safety-recs/recletters/R-13-018-023.pdf. railroad or operation via the waiver estimated quantified costs for passenger

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railroads, which must comply with all likely be much more costly to develop California. In the RIA, FRA discusses proposed requirements in the NPRM, in order to transfer the recorded data to and provides examples of how the total a present value (PV) of $31,837,918 a centralized location. FRA requests deterrent effect of locomotive image (PV, 7 percent), and $34,664,317 (PV, 3 comment regarding whether a remote recording devices could reduce negative percent). FRA is interested to learn from storage option has any utility (or is behavior because train crews know their industry stakeholders about potential feasible) at present or in the future. actions are being recorded.98 alternatives to meet a reasonable In addition to complying with the Other benefits include: (1) Giving crashworthiness level for locomotive FAST Act’s statutory mandate for image recording systems for passenger passenger locomotives, FRA’s original railroads the ability to perform locomotives. FRA believes it has reason for requiring image recording operational efficiency tests that were proposed a cost-effective method of devices to be installed in the impossible to perform in a practical meeting the FAST Act’s locomotives is the collection of causal manner without cameras (e.g., for crashworthiness mandate for passenger information. For example, in the 2015 prohibited use of personal electronic locomotives while attempting to Amtrak accident in Philadelphia, devices) and at a lower cost; (2) minimize potential regulatory costs. Pennsylvania, image recording devices providing information to research how FRA is interested in comments could have helped provide additional crews perform (both to improve safety addressing additional crashworthiness causal information during the post- and to improve productivity); (3) options, with the intent to make a final accident investigation. Causal data is providing better physical security of rule appropriately performance-based especially critical for the prevention of trains; and (4) increasing railroad and cost-effective. Specifically, FRA future accidents when no apparent productivity. seeks public input on the forces memory accident cause can be determined While FRA is declining to require systems should ideally be able to through other means. Further, images locomotive recording devices in freight withstand, and the fire resistance can become key to identifying new locomotives, many freight railroads necessary for the data to survive. As safety concerns that otherwise would be have informed FRA the above reasons discussed in the preamble above, FRA difficult to research or identify, which are why railroads are installing camera could lead FRA and the railroad may consider passenger locomotive systems even without an FRA industry to better understand areas in memory module crashworthiness regulation. FRA’s analysis shows there protection requirements unnecessary (or which safety could be improved. Other, are many factors that are difficult to met) in the future if recorded data is probably larger, safety benefits would quantify that combine to warrant the stored at a remote location off of a also primarily accrue from the proposed rule. FRA believes that given locomotive consist, safe from accident deterrence of unsafe behaviors that destruction. FRA did not propose to cause railroad accidents. For instance, current railroad business and require this option because the agency the presence of locomotive image operational practices, this analysis does not believe current technology recording devices could have deterred demonstrates the quantifiable benefits would reliably allow for such remote the engineer from text messaging while for this proposed rule would not exceed transmission and storage in all operating the Metrolink train involved the costs. instances, and such a system would in the 2008 accident at Chatsworth, Tables: Costs of the proposed rule:

TABLE 1—10-YEAR COSTS AND COST SAVINGS [Discounted, 7 and 3 percent]

Discounted Discounted Annualized Annualized Table 1. 10-year costs and cost savings (discounted, 7 and 3 percent) at 7% at 3% at 7% at 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

Net Costs ...... 31,837,918 34,664,317 4,533,003 4,063,715

B. Regulatory Flexibility Act and impact on a substantial number of small regarding the potential economic impact Executive Order 13272; Initial entities. As discussed below, FRA does on small entities that would result from Regulatory Flexibility Assessment not believe this proposed rule would the adoption of the proposals in this have a significant economic impact on NPRM. FRA will consider all The Regulatory Flexibility Act of 1980 a substantial number of small entities. information, including comments (5 U.S.C. 601 et seq.) and Executive However, FRA is requesting comments received in the public comment process, Order 13272 (67 FR 53461, Aug. 16, on whether the proposed rule would to determine whether the rule will have 2002) require agency review of proposed impact small entities. Therefore, FRA is a significant the economic impact on and final rules to assess their impacts on publishing this IRFA to aid the public small entities. small entities. An agency must prepare an Initial Regulatory Flexibility in commenting on the potential small 1. Reasons for Considering Agency Analysis (IRFA) unless it determines business impacts of the requirements in Action and certifies that a rule, if promulgated, this NPRM. FRA invites all interested FRA is initiating this NPRM in would not have a significant economic parties to submit data and information response to a statutory mandate in

98 See Benefits, Section 1.1, of the RIA for more information.

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section 11411 of the FAST Act. Section ‘‘commuter rail system’’ with annual railroads to maintain records from these 11411 requires the Secretary to receipts of less than seven million devices for one year after a reportable promulgate regulations requiring each dollars. See ‘‘Size Eligibility Provisions accident. This NPRM would also govern railroad carrier that provides regularly and Standards,’’ 13 CFR part 121 the use of the recordings to conduct scheduled intercity rail passenger or subpart A. operational tests in order to determine commuter rail passenger transportation This proposed rule would apply if a railroad employee is in compliance to the public to install inward- and primarily to railroad carriers that with applicable railroad rules and outward-facing image recording devices provide regularly scheduled intercity Federal regulations. Additionally, in all controlling locomotives of rail passenger or commuter rail passenger railroads would need to have passenger trains. passenger transportation to the public. a chain-of-custody procedure that However, one passenger railroad is specifically addresses the preservation 2. A Succinct Statement of the considered a small entity: The Hawkeye and handling requirements for post- Objectives of, and the Legal Basis for, Express (operated by the Iowa Northern accident/incident recordings provided the Proposed Rule Railway Company (IANR)). All other to FRA or the NTSB under part This NPRM proposes regulations that passenger railroad operations in the 229.136(f)(2) of this NPRM. would require each railroad carrier that United States are part of larger 5. Identification, to the Extent provides regularly scheduled intercity governmental entities whose service Practicable, of All Relevant Federal rail passenger or commuter rail jurisdictions exceed 50,000 in Rules That May Duplicate, Overlap, or passenger transportation to the public to population, and, based on the Conflict With the Proposed Rule install inward- and outward-facing definition, are not considered small image recording devices in all entities. Hawkeye Express is a short- FRA does not believe there are any controlling locomotives of passenger haul passenger railroad that is not a relevant Federal rules that duplicate, trains. If enacted, these proposed commuter railroad or an intercity overlap with, or conflict with the requirements would fulfill Section passenger railroad, and would not be proposed regulations in this NPRM. 11411 of the FAST Act, which mandates affected by the NPRM proposals. FRA invites all interested parties to the installation of these devices in all As the only small entity that could submit comments, data, and information controlling passenger train locomotives. potentially be impacted by this demonstrating the potential economic regulation is not classified as a impact on any small entity that would 3. A Description of, and Where Feasible, commuter railroad or an intercity result from the adoption of the proposed an Estimate of the Number of Small passenger railroad, it would not be language in this NPRM. FRA Entities to Which the Proposed Rule affected by the NPRM proposals; thus, particularly encourages any small entity Would Apply FRA does not believe that the provisions that could potentially be impacted by The Regulatory Flexibility Act of 1980 of the NPRM would impact any small the proposed amendments to participate (5 U.S.C. 601 et seq.) requires a review entities. However, FRA requests in the public comment process. FRA of proposed and final rules to assess comments as to the impact that the will consider all comments received their impact on small entities, unless proposed rule would have on any small during the public comment period for the Secretary certifies that the rule passenger railroad and on passenger this NPRM when making a final would not have a significant economic railroads in general. determination of the NPRM’s economic impact on a substantial number of small impact on small entities. entities. ‘‘Small entity’’ is defined in 5 4. A Description of the Projected U.S.C. 601 as a small business concern Reporting, Recordkeeping, and Other C. Paperwork Reduction Act that is independently owned and Compliance Requirements of the Rule, The information collection operated, and is not dominant in its Including an Estimate of the Class of requirements in this proposed rule are field of operation. The U.S. Small Small Entities That Will Be Subject to being submitted to the Office of Business Administration (SBA) has the Requirements and the Type of Management and Budget (OMB) for authority to regulate issues related to Professional Skill Necessary for review and approval in accordance with small businesses, and stipulates in its Preparation of the Report or Record the Paperwork Reduction Act of 1995 size standards that a ‘‘small entity’’ in In general, this NPRM would require (44 U.S.C. 3501 et seq.). The sections the railroad industry is a for profit ‘‘line- the installation of inward- and outward- that contain the new information and haul railroad’’ that has fewer than 1,500 facing locomotive image recording current information collection employees, a ‘‘short line railroad’’ with devices on all lead locomotives in requirements and the estimated time to fewer than 500 employees, or a passenger trains and requires the fulfill each requirement are as follows:

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

217.7—Operating Rules; Filing and Rec- 2 new railroads ..... 2 documents ...... 1 hour ...... 2 hours ...... 150 ordkeeping—Filing of code of operating rules, timetables, and special instruc- tions with FRA. —Amendments to code of operating 55 railroads ...... 165 revised docu- 20 minutes ...... 55 hours ...... 4,125 rules, timetables, and special in- ments. structions by Class I, Class II, Am- trak, and commuter railroads. —Class III and other railroads: Copy 5 new railroads ..... 5 submitted docu- 55 minutes ...... 5 hours ...... 375 of code of operating rules, time- ments. tables, and special instructions.

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

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

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

—Employer’s copy of written re- 755 railroads ...... 755 copies ...... 5 minutes ...... 63 hours ...... 4,725 quired by this section. —RR verification decision copies ..... 20 railroads ...... 20 copies ...... 5 minutes ...... 2 hours ...... 150 218.99—Shoving or Pushing Movement: 755 railroads ...... 32 rule revisions ... 1 hour ...... 32 hours ...... 2,400 RR operating rule complying with sec- tion’s requirements. 218.101—Leaving Equipment in the 755 railroads ...... 32 amended rules 30 minutes ...... 16 hours ...... 1,200 Clear: Operating Rule that Complies with this section. 218.103—Hand-Operated Switches: Op- 755 railroads ...... 32 revised op. 60 minutes ...... 32 hours ...... 2,400 erating Rule that Complies with this rules. section. —Job briefings: Minimum require- 755 railroads ...... 5 modified op. 30 minutes ...... 3 hours ...... 225 ments specified in operating rules. rules. 229.136—Locomotive mage Recording 4,500 passenger 4,120 notes ...... 15 seconds ...... 17 hours ...... 1,241 Systems (New Requirements)—Duty to locomotives. equip and record: Noting the presence of any image and audio recording sys- tem on each lead locomotive in inter- city and commuter rail passenger serv- ice in ‘‘Remarks’’ section of Form FRA F 6180.49A. —Image recording system capturing 4,500 passenger 4,120 recordings .. 12 hours ...... 49,440 hrs ...... 0 at least most recent 12 hours of locomotives. operation of an intercity passenger or commuter rail passenger loco- motive. —Passenger railroads voluntary 27 railroads ...... 20 c of c proce- 48 hours ...... 960 hours ...... 72,000 adoption and development of dures. chain of custody (c of c) proce- dures. —Passenger railroad preservation of 31 railroads ...... 163 saved record- 12 hours ...... 1,956 hours ...... 140,832 accident/incident data of image re- ings. cording system from locomotive using such system at time of acci- dent/incident (includes voluntary freight railroads & restates pre- vious requirement under section 229.135(e)). —Provision by passenger railroad of 31 railroads ...... 31 written descrip- 50 hours ...... 1,550 hours ...... 113,150 written description of technical as- tions/plans. pects any locomotive image re- cording system to FRA for ap- proval. —Removal of locomotive recording 31 railroads ...... 20 notations ...... 15 minutes ...... 5 hours ...... 305 device from service from loco- motive 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 requirements; the quality, utility, and Ms. Kimberly Toone, Records reviewing instructions; searching clarity of the information to be Management Officer, Federal Railroad existing data sources; gathering or collected; and whether the burden of Administration, at 202–493–6139. maintaining the needed data; and collection of information on those who Organizations and individuals reviewing the information. Pursuant to are to respond, including through the desiring to submit comments on the 44 U.S.C. 3506(c)(2)(B), FRA solicits use of automated collection techniques collection of information requirements comments concerning: Whether these or other forms of information information collection requirements are technology, may be minimized. For should direct them to Mr. Robert Brogan necessary for the proper performance of information or a copy of the paperwork or Ms. Kimberly Toone, Federal the functions of FRA, including whether package submitted to OMB, contact Mr. Railroad Administration, 1200 New the information has practical utility; the Robert Brogan, Information Clearance Jersey Avenue SE, 3rd Floor, accuracy of FRA’s estimates of the Officer, Federal Railroad Washington, DC 20590. Comments may burden of the information collection Administration, at 202–493–6292, or also be submitted via email to Mr.

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Brogan at [email protected], or to to the extent that they sponsor, or In analyzing the applicability of a CE, Ms. Toone at [email protected]. exercise oversight of, passenger the agency must also consider whether OMB is required to make a decision railroads. Because this proposed rule is extraordinary circumstances are present concerning the collection of information required by Federal statute for passenger that would warrant a more detailed requirements contained in this proposed railroads under 49 U.S.C. 20168, the environmental review through the rule between 30 and 60 days after consultation and funding requirements preparation of an EA or EIS. Id. Under publication of this document in the of Executive Order 13132 do not apply. section 4(c) and (e) of FRA’s Procedures, Federal Register. Therefore, a comment However, this proposed rule could have the agency has further concluded that to OMB is best assured of having its full preemptive effect by operation of law no extraordinary circumstances exist effect if OMB receives it within 30 days under certain provisions of the Federal with respect to this proposed regulation of publication. The final rule will railroad safety statutes, specifically the that might trigger the need for a more respond to any OMB or public former Federal Railroad Safety Act of detailed environmental review. The comments on the information collection 1970, repealed and recodified at 49 purpose of this rulemaking is to propose requirements contained in this proposal. U.S.C. 20106. Section 20106 provides that passenger railroads install FRA is not authorized to impose a that States may not adopt or continue in recording devices on locomotives and penalty on persons for violating effect any law, regulation, or order use those devices to help investigate information collection requirements related to railroad safety or security that and prevent railroad accidents. FRA which do not display a current OMB covers the subject matter of a regulation does not anticipate any environmental control number, if required. FRA prescribed or order issued by the impacts from these proposed intends to obtain current OMB control Secretary of Transportation (with requirements and finds there are no numbers for any new information respect to railroad safety matters) or the extraordinary circumstances present in collection requirements resulting from Secretary of Homeland Security (with connection with this proposed rule. this rulemaking action prior to the respect to railroad security matters), F. Executive Order 12898 effective date of the final rule. The OMB except when the State law, regulation, (Environmental Justice) control number, when assigned, will be or order qualifies under the ‘‘essentially announced by separate notice in the local safety or security hazard’’ Executive Order 12898, Federal Federal Register. FRA will be seeking exception to section 20106. Actions to Address Environmental approval for the information collection In sum, FRA has analyzed this Justice in Minority Populations and requirements associated with this rule proposed rule under the principles and Low-Income Populations, and DOT under OMB No. 2130–0035. criteria in Executive Order 13132. As Order 5610.2(a) (91 FR 27534 May 10, 2012) require DOT agencies to achieve D. Federalism Implications explained above, FRA has determined this proposed rule has no federalism environmental justice as part of their Executive Order 13132, ‘‘Federalism’’ implications, other than the possible mission by identifying and addressing, (64 FR 43255, Aug. 10, 1999), requires preemption of State laws under Federal as appropriate, disproportionately high FRA to develop an accountable process railroad safety statutes, specifically 49 and adverse human health or to ensure ‘‘meaningful and timely input U.S.C. 20106. Therefore, preparation of environmental effects, including by State and local officials in the a federalism summary impact statement interrelated social and economic effects, development of regulatory policies that for this proposed rule is not required. of their programs, policies, and have federalism implications.’’ ‘‘Policies activities on minority populations and that have federalism implications’’ are E. Environmental Impact low-income populations. The DOT defined in the Executive Order to FRA has evaluated this proposed rule Order instructs DOT agencies to address include regulations that have consistent with the National compliance with Executive Order 12898 ‘‘substantial direct effects on the States, Environmental Policy Act (NEPA; 42 and requirements within the DOT Order on the relationship between the national U.S.C. 4321 et seq.), other in rulemaking activities, as appropriate. government and the States, or on the environmental statutes, related FRA has evaluated this proposed rule distribution of power and regulatory requirements, and its under Executive Order 12898 and the responsibilities among the various ‘‘Procedures for Considering DOT Order and has determined it would levels of government.’’ Under Executive Environmental Impacts’’ (FRA’s not cause disproportionately high and Order 13132, the agency may not issue Procedures) (64 FR 28545, May 26, adverse human health and a regulation with federalism 1999). FRA has determined that this environmental effects on minority implications that imposes substantial proposed rule is categorically excluded populations or low-income populations. direct compliance costs and that is not from detailed environmental review required by statute, unless the Federal pursuant to section 4(c)(20) of FRA’s G. Executive Order 13175 (Tribal government provides the funds NEPA Procedures, ‘‘Promulgation of Consultation) necessary to pay the direct compliance railroad safety rules and policy FRA has evaluated this proposed rule costs incurred by State and local statements that do not result in under the principles and criteria in governments, or the agency consults significantly increased emissions of air Executive Order 13175, Consultation with State and local government or water pollutants or noise or increased and Coordination with Indian Tribal officials early in the process of traffic congestion in any mode of Governments, dated November 6, 2000. developing the regulation. Where a transportation.’’ See 64 FR 28547, May The proposed rule would not have a regulation has federalism implications 26, 1999. Categorical exclusions (CEs) substantial direct effect on one or more and preempts State law, the agency are actions identified in an agency’s Indian tribes, would not impose seeks to consult with State and local NEPA implementing procedures that do substantial direct compliance costs on officials in the process of developing the not normally have a significant impact Indian tribal governments, and would regulation. on the environment and therefore do not not preempt tribal laws. Therefore, the FRA has analyzed this NPRM under require either an environmental funding and consultation requirements the principles and criteria contained in assessment (EA) or environmental of Executive Order 13175 do not apply, Executive Order 13132. This NPRM impact statement (EIS). See 40 CFR and a tribal summary impact statement could affect State and local governments 1508.4. is not required.

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H. Unfunded Mandates Reform Act of energy action’’ within the meaning of List of Subjects 1995 Executive Order 13211. 49 CFR Part 217 Under Section 201 of the Unfunded Executive Order 13783, ‘‘Promoting Occupational safety and health, Mandates Reform Act of 1995 (Pub. L. Energy Independence and Economic Penalties, Railroad employees, Railroad 104–4, 2 U.S.C. 1531), each Federal Growth,’’ requires Federal agencies to safety, Reporting and recordkeeping agency ‘‘shall, unless otherwise review regulations to determine whether requirements. prohibited by law, assess the effects of they potentially burden the Federal regulatory actions on State, development or use of domestically 49 CFR Part 218 local, and tribal governments, and the produced energy resources, with Occupational safety and health, private sector (other than to the extent particular attention to oil, natural gas, Penalties, Railroad employees, Railroad that such regulations incorporate coal, and nuclear energy resources. 82 safety, Locomotives, and Tampering. requirements specifically set forth in FR 16093 (March 31, 2017). Executive law).’’ Section 202 of the Unfunded Order 13783 defines ‘‘burden’’ to mean 49 CFR Part 229 Mandates Reform Act (2 U.S.C. 1532) unnecessarily obstruct, delay, curtail, or Locomotives, Penalties, Railroad further requires that before otherwise impose significant costs on employees, Railroad safety, Reporting promulgating any general notice of the siting, permitting, production, and recordkeeping requirements. proposed rulemaking that is likely to utilization, transmission, or delivery of result in the promulgation of any rule energy resources. FRA determined this The Proposed Rule that includes any Federal mandate that proposed rule will not potentially For the reasons discussed in the may result in expenditure by State, burden the development or use of preamble, FRA proposes to amend local, and tribal governments, in the domestically produced energy chapter II, subtitle B of title 49, Code of aggregate, or by the private sector, of resources. Federal Regulations, as follows: $100,000,000 or more (adjusted annually for inflation) in any 1 year, and J. Trade Impact PART 217—RAILROAD OPERATING before promulgating any final rule for RULES The Trade Agreements Act of 1979 which a general notice of proposed (Pub. L. 96–39, 19 U.S.C. 2501 et seq.) rulemaking was published, the agency ■ 1. The authority citation for part 217 prohibits Federal agencies from shall prepare a written statement is revised to read as follows: engaging in any standards setting or detailing the effect on State, local, and Authority: 49 U.S.C. 20103, 20107, 20168, related activities that create unnecessary tribal governments and the private 28 U.S.C. 2461, note; and 49 CFR 1.89. obstacles to the foreign commerce of the sector. This proposed rule will not United States. Legitimate domestic ■ Subpart A—General result in the expenditure, in the objectives, such as safety, are not ■ 2. In § 217.9, add paragraphs (b)(3) aggregate, of $100,000,000 or more (as considered unnecessary obstacles. The and (4) to read as follows: adjusted annually for inflation) in any statute also requires consideration of one year, and thus preparation of such § 217.9 Program of operational tests and international standards and, where a statement is not required. inspections; recordkeeping. appropriate, that they be the basis for * * * * * I. Energy Impact U.S. standards. FRA has assessed the (b) * * * Executive Order 13211 requires potential effect of this proposed rule on (3) A railroad that utilizes inward- Federal agencies to prepare a Statement foreign commerce and believes that its facing locomotive image or in-cab audio of Energy Effects for any ‘‘significant requirements are consistent with the recordings to conduct operational tests energy action.’’ 66 FR 28355 (May 22, Trade Agreements Act of 1979. The and inspections shall adopt and comply 2001). Under the Executive Order, a requirements proposed are safety with a procedure in its operational tests ‘‘significant energy action’’ is defined as standards, which, as noted, are not and inspections program that ensures any action by an agency (normally considered unnecessary obstacles to employees are randomly subject to such published in the Federal Register) that trade. operational tests and inspections promulgates or is expected to lead to the K. Privacy Act involving image or audio recordings. promulgation of a final rule or The procedure adopted by a railroad regulation, including notices of inquiry, In accordance with 5 U.S.C. 553(c), must: advance notices of proposed DOT solicits comments from the public (i) Establish objective, neutral criteria rulemaking, and notices of proposed to better inform its rulemaking process. to ensure every employee subject to rulemaking: (1)(i) That is a significant DOT posts these comments, without such operational tests and inspections is regulatory action under Executive Order edit, to www.regulations.gov, as selected randomly for such operational 12866 or any successor order, and (ii) is described in the system of records tests and inspections within a specified likely to have a significant adverse effect notice, DOT/ALL–14 FDMS, accessible time frame; on the supply, distribution, or use of through www.dot.gov/privacy. In order (ii) Not permit subjective factors to energy; or (2) that is designated by the to facilitate comment tracking and play a role in selection, i.e., no Administrator of the Office of response, we encourage commenters to employee may be selected based on the Information and Regulatory Affairs as a provide their name, or the name of their exercise of a railroad’s discretion; and significant energy action. FRA has organization; however, submission of (iii) Require that any operational test evaluated this proposed rule in names is completely optional. Whether or inspection performed using accordance with Executive Order 13211. or not commenters identify themselves, locomotive image recordings be FRA has determined that the proposals all timely comments will be fully performed within 72 hours of the in this rule are not likely to have a considered. If you wish to provide completion of the employee’s tour of significant adverse effect on the supply, comments containing proprietary or duty that is the subject of the distribution, or use of energy. confidential information, please contact operational test. Any operational test Consequently, FRA has determined that the agency for alternate submission performed more than 72 hours after the this proposed rule is not a ‘‘significant instructions. completion of the tour of duty that is the

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subject of the test is a violation of this Appendix C to Part 218—Statement of recording system to record images of section. The 72-hour limitation does not Agency Enforcement Policy on activities ahead of the locomotive in the apply to investigations of railroad Tampering direction of travel (outward-facing accidents/incidents or to violations of * * * * * image recording device), and of Federal railroad safety laws, regulations, activities inside the cab of the and orders, or any criminal laws. Safety Devices Covered by This Rule locomotive (inward-facing image (4) FRA may review a railroad’s * * * This regulation applies to a variety recording device). procedure implementing paragraph of devices including equipment known as (i) If the lead locomotive is equipped (b)(3) of this section, and, for cause ‘‘event recorders,’’ ‘‘alerters,’’ ‘‘deadman with an image recording system, the stated, may disapprove such procedure controls,’’ ‘‘automatic cab signal,’’ ‘‘cab signal system must be turned on and recording under paragraph (h) of this section. whistles,’’ ‘‘automatic train stop equipment,’’ ‘‘automatic train control equipment,’’ whenever a train is in motion, at all * * * * * ‘‘positive train control equipment,’’ and train speeds. ‘‘passenger locomotive-mounted image and (ii) If operating circumstances cause PART 218—RAILROAD OPERATING audio recording equipment.’’ * * * the controlling locomotive to be other PRACTICES * * * * * than the lead locomotive, railroads must ■ 3. The authority citation for part 218 also record images of activities inside is revised to read as follows: PART 229—RAILROAD LOCOMOTIVE the cab of the controlling locomotive. SAFETY STANDARDS (iii) Both cabs of a dual-cab Authority: 49 U.S.C. 20103, 20107, 20131, locomotive shall be equipped with ■ 20138, 20144, 20168, 28 U.S.C. 2461, note; 7. The authority citation for part 229 inward- and outward-facing image and 49 CFR 1.89. is revised to read as follows: recording systems. Image recordings for Subpart D—Prohibition Against Authority: 49 U.S.C. 20103, 20107, 20133, only a dual-cab locomotive’s active cab 20137–38, 20143, 20168, 20701–03, 21301– Tampering With Safety Devices and the leading end of the locomotive’s 02, 21304, 28 U.S.C. 2461, note; and 49 CFR movement are required to be made and ■ 4. In § 218.53, revise paragraph (c) and 1.89. retained. add paragraph (d) to read as follows: Subpart A—General (2) Image recording systems installed § 218.53 Scope and definitions. after [DATE 1 YEAR AFTER DATE OF ■ 8. In § 229.5, revise the definition of PUBLICATION OF FINAL RULE] on * * * * * ‘‘event recorder memory module’’ and new, remanufactured, or existing lead (c) Safety Device means any add in alphabetical order definitions of locomotives used in commuter or locomotive-mounted equipment used ‘‘image recording system,’’ ‘‘NTSB,’’ and intercity passenger service shall meet either to assure the locomotive engineer ‘‘recording device’’ to read as follows: the requirements of this section. Lead is alert, not physically incapacitated, locomotives used in commuter or § 229.5 Definitions. and aware of and complying with the intercity passenger service must be indications of a signal system or other * * * * * equipped with an image recording operational control system, or a system Event recorder memory module means system meeting the requirements of this used to record data concerning the that portion of an event recorder used to section no later than [DATE 4 YEARS operations of that locomotive or the retain the recorded data as described in AFTER DATE OF PUBLICATION OF train it is powering. See appendix C to §§ 229.135(b) and 229.136(a) through FINAL RULE]. this part for a statement of agency policy (c). (3) For lead locomotives in commuter on this subject. * * * * * or intercity passenger service, railroads (d) The provisions in §§ 218.59 and Image recording system means a must note the presence of any image 218.61 do not apply to locomotive- system of cameras or other electronic and audio recording systems in the mounted image and audio recording devices that record images as described REMARKS section of the Form FRA equipment on freight locomotives. in § 229.136, and any components that F6180–49A in the locomotive cab. ■ 5. In § 218.61, revise paragraph (c) to convert those images into electronic (4) The image recording system shall read as follows: data transmitted to, and stored on, a record at least the most recent 12 hours § 218.61 Authority to deactivate safety memory module. of operation of a lead locomotive in devices. * * * * * commuter or intercity passenger service. * * * * * NTSB means the National (5) Locomotive recording device data (c) If a locomotive in commuter or Transportation Safety Board. for each lead locomotive used in intercity passenger service is equipped * * * * * commuter or intercity passenger service with a device to record data concerning Recording device means a device that shall be recorded on a memory module the operation of that locomotive or the records images or audible sounds, as meeting the requirements for a certified train it is powering, that device may be described in § 229.136. crashworthy event recorder memory deactivated only under the provisions of * * * * * module described in appendix D to this § 229.135 of this chapter. Inward- and part. outward-facing image recording devices Subpart C—Safety Requirements (b) Outward-facing recording system on commuter or intercity passenger ■ 9. Add § 229.136 to read as follows: requirements for locomotives in locomotives may be deactivated only commuter or intercity passenger service. under the provisions of § 229.136 of this § 229.136 Locomotive image and audio (1) The outward-facing image recording chapter. This section does not apply to recording devices. system for lead locomotives in inward- and outward-facing image (a) Duty to equip and record. (1) commuter or intercity passenger service recording devices that are installed on Effective [DATE 4 YEARS AFTER DATE shall: freight locomotives. OF PUBLICATION OF FINAL RULE], (i) Include an image recording device ■ 6. In appendix C to part 218, revise each lead locomotive of a train used in aimed parallel to the centerline of the fifth sentence of the fourth commuter or intercity passenger service tangent track within the gauge on the paragraph to read as follows: must be equipped with an image front end of the locomotive;

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(ii) Be able to distinguish the signal then the system shall be removed from analysis by FRA or other Federal aspects displayed by wayside signals; service and handled in accordance with agencies. A railroad must either provide (iii) Record at a frame rate of a paragraph (i) of this section. the image and/or audio data in a format minimum of 15 frames per second (or its (d) Image and audio recording system readable by FRA or other Federal equivalent) and have sufficient download protection requirements for agencies; or make available to FRA or resolution to record the position of locomotives in commuter or intercity other Federal agencies any platform, switch points 50 feet in front of the passenger service. Railroads must software, media device, etc. that is locomotive; provide convenient wire or wireless required to play back the image and/or (iv) Be able to capture images in connections to allow authorized railroad audio data. This preservation daylight or with normal nighttime personnel to download audio or image requirement shall expire one (1) year illumination from the headlight of the recordings from both any standard after the date of the accident unless FRA locomotive; and memory module and a certified or another Federal agency notifies the (v) Include an accurate time and date crashworthy memory module in lead railroad in writing that it must preserve stamp on outward-facing image locomotives in commuter or intercity the recording longer. Railroads may recordings. passenger service. The railroads also extract and analyze such data for the (2) If a lead locomotive in commuter must use electronic security measure(s) purposes described in paragraph (f)(3) of or intercity passenger service to prevent unauthorized download of this section, only if: experiences a technical failure of its the recordings. (i) The original downloaded data file, outward-facing image recording system, (e) Inspection, testing, and or an unanalyzed exact copy of it, is then the system shall be removed from maintenance for image recording retained in secure custody under the service and handled in accordance with systems on locomotives in commuter or railroad’s procedure adopted under paragraph (i) of this section. intercity passenger service. The image paragraph (f)(1) of this section; and (c) Inward-facing image recording recording system on lead locomotives in (ii) It is not utilized for analysis or any system requirements for locomotives in commuter or intercity passenger service other purpose, except by direction of commuter or intercity passenger service. shall have self-monitoring features to FRA or NTSB. (1) The inward-facing image recording assess whether the system is operating (3) Recording uses. A railroad may properly, including whether the system system on lead locomotives in use the image and audio recordings is powered on. commuter or intercity passenger service from a locomotive in commuter or shall include image recording device (1) If a fault with the image recording system is detected, the locomotive shall intercity passenger service subject to positioned to provide complete coverage this section to: of all areas of the controlling locomotive not be used in the lead position after its (i) Investigate an accident/incident cab where a crewmember typically may next daily inspection required under that is required to be reported to FRA be positioned, including complete § 229.21. under part 225 of this chapter; coverage of the instruments and controls (2) At each periodic inspection (ii) Investigate a violation of a Federal required to operate the controlling required under § 229.23, the railroad railroad safety law, regulation, or order, locomotive in normal use, and: conducting the inspection shall take (i) Have sufficient resolution to record sample download(s) to confirm or a railroad’s operating rules and crewmember actions, including whether operation of the system, and, if procedures; a crewmember is physically necessary, repair the system to full (iii) Conduct an operational test under incapacitated and whether a operation. § 217.9 of this chapter; crewmember is complying with the (f) Handling of recordings—(1) Chain- (iv) Monitor for unauthorized indications of a signal system or other of-custody procedure. Each railroad occupancy of a locomotive’s cab or a operational control system; and with locomotives in commuter or control cab locomotive’s operating (ii) Record at a frame rate of at least intercity passenger service subject to compartment; 5 frames per second and be capable of this section shall adopt, maintain, and (v) Investigate a violation of a using ambient light in the cab, and comply with a chain-of-custody criminal law; when ambient light levels drop too low procedure governing the handling and (vi) Assist Federal agencies in the for normal operation, automatically the release of the locomotive image investigation of a suspected or switch to infrared or another operating recordings described in paragraphs (a) confirmed act of terrorism; or mode that enables the recording through (c) of this section and any (vii) Perform inspection, testing, sufficient clarity to comply with the locomotive audio recordings. The chain- maintenance, or repair activities to requirements of this paragraph (c)(1). of-custody procedure must specifically ensure the proper installation and (2) The inward-facing recording(s) on address the preservation and handling functioning of an inward-facing image lead locomotives in commuter or requirements for post-accident/incident recorder. intercity passenger service shall include recordings provided to FRA or other (g) Locomotive image recording an accurate time and date stamp. Federal agencies under paragraph (f)(2) system approval process. Each railroad (3) No inward-facing image recordings of this section. with locomotives in commuter or on locomotives in commuter or intercity (2) Accident/incident preservation. If intercity passenger service subject to passenger service may be made of any any locomotive in commuter or intercity this section must provide the Associate activities within a locomotive’s passenger service is equipped with an Administrator for Railroad Safety and sanitation compartment as defined in image or audio recording system and is Chief Safety Officer, Federal Railroad § 229.5, and no image recording device involved in an accident/incident that Administration, RRS–15, 1200 New shall be installed in a location where the must be reported to FRA under part 225 Jersey Avenue SE, Washington, DC device can record activities within a of this chapter, the railroad that was 20590, with a written description of the sanitation compartment. using the locomotive at the time of the technical aspects of any locomotive (4) If a lead locomotive in commuter accident shall, to the extent possible, image recording system installed to or intercity passenger service and to the extent consistent with the comply with this section. experiences a technical failure of its safety of life and property, preserve the (1) The written description must inward-facing image recording system, data recorded by each such device for include information specifically

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addressing the image recording with image recording devices, a railroad (3) One or more locomotives coupled system’s: may remove from service an image with one or more cars. (i) Minimum 12-hour continuous recording device on a locomotive in ■ 10. Revise the introductory text of recording capability; commuter or intercity passenger service, appendix D to part 229 to read as (ii) Crashworthiness; and and must remove the device from follows: (iii) Post-accident accessibility of the service if the railroad knows the device system’s recordings. is not properly recording. When a Appendix D to Part 229—Criteria for (2) The railroad must submit the railroad removes a locomotive image Certification of Crashworthy Event written statement not less than 90 days recording device from service, a Recorder Memory Module before the installation of such image qualified person shall record the date Section 229.135(b) requires railroads to recording system, or, for existing the device was removed from service on systems, not less than 30 days after equip certain locomotives with an event Form FRA F6180–49A, under the recorder that includes a certified crashworthy [EFFECTIVE DATE OF FINAL RULE]. REMARKS section. A locomotive on memory module. Section 229.136(a)(1) (3) The FRA Associate Administrator which an image recording device has requires passenger railroads to install for Railroad Safety and Chief Safety been taken out of service as provided in locomotive-mounted image recording Officer will review a railroad’s this paragraph may remain as the lead systems in every lead locomotive used in submission and may disapprove any locomotive only until the next calendar- commuter or intercity passenger service. recordings systems that do not meet the day inspection required under § 229.21. Section 229.136(a)(5) requires that data from requirements of this section. FRA will A locomotive with an inoperative image these image recording systems be recorded notify the railroad of its disapproval in recording device is not deemed to be in on a certified crashworthy memory module. writing within 90 days of FRA’s receipt an improper condition, unsafe to This appendix prescribes the requirements of the railroad’s written submission, and operate, or a non-complying locomotive for certifying an event recorder memory shall specify the basis for any under §§ 229.7 and 229.9. module (ERMM) or a locomotive-mounted disapproval decision. (j) Disabling or interfering with audio and/or image recording device memory (h) Relationship to other laws. locomotive-mounted audio and video module as crashworthy. For purposes of this appendix, a locomotive-mounted audio or Nothing in this section is intended to recording equipment. Any individual alter the legal authority of law image recording device memory module is who willfully disables or interferes with also considered an ERMM. This appendix enforcement officials investigating the intended functioning of locomotive- includes the performance criteria and test potential violation(s) of State criminal mounted image or audio recording sequence for establishing the law(s), and nothing in this section is system equipment on a passenger crashworthiness of the ERMM and marking intended to alter in any way the priority locomotive, or who tampers with or the event recorder or locomotive-mounted of NTSB investigations under 49 U.S.C. alters the data recorded by such image or audio recording system containing 1131 and 1134, or the authority of the equipment, is subject to a civil penalty the crashworthy ERMM. Secretary of Transportation to and to disqualification from performing * * * * * investigate railroad accidents under 49 safety-sensitive functions on a railroad Issued in Washington, DC. U.S.C. 5121, 5122, 20107, 20111, 20112, as provided in parts 209 and 218 of this 20505, 20702, 20703, and 20902. chapter. Ronald L. Batory, (i) Removal of device from service and (k) As used in this section—Train Administrator, Federal Railroad handling for repair. Notwithstanding means: (1) A single locomotive; Administration. the duty established in paragraph (a) of (2) Multiple locomotives coupled [FR Doc. 2019–14407 Filed 7–23–19; 8:45 am] this section to equip certain locomotives together; or BILLING CODE 4910–06–P

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