into service. This is a change from the proposal in the NPRM that, in
the absence of written disapproval from FRA within 90 days of FRA's
receipt of the submission, the railroad's locomotive image recording
system would be considered approved. FRA has concluded that a
transparent and conclusive approval process is required, and it would
not be in the public's interest to allow for the possibility that a
non-compliant system could be approved through unexpected events or
inadvertence. At the same time, FRA plans to publish a list of any
previously approved systems on its website for railroads' convenience,
as FRA noted in the NPRM.\31\
---------------------------------------------------------------------------

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

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

K. Implementation Period of the Rule

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

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

L. Operational (Efficiency) Testing

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

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

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

M. Locomotive Recording Devices as Safety Devices Under Part 218

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

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

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

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

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

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

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

O. Privacy Considerations

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

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

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

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

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

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

P. Abuse of Locomotive Recording Devices

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

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

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

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

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

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

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

Q. Recording Devices' Effect on Railroad Employees

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

R. Download and Security Features of Locomotive Recording Systems

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

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

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

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

recording system or any locomotive recording device.

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

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

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

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

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

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

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

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

    The final rule does not require passenger railroads to remotely
monitor their locomotives for unauthorized occupancy, though it allows
passenger railroads to use their recording device data to do so. For
further discussion on remote monitoring, please see Section II.G.
ii. Application to Freight Locomotive Recording Devices
    In its comments, BLET stated that the permissible uses for
locomotive recording device technology should apply to both passenger
and freight railroads that voluntarily install locomotive recording
devices. BLET further suggested that such a uniform set of standards
and requirements provide for the encryption of image and voice
recordings and access only by authorized personnel, to safeguard the
identities of the recorded individuals. Moreover, in the event that
surveillance data is used in disciplinary and/or certification
revocation proceedings, BLET asserted that the identities of those who
decrypt the data should be made known to the labor organizations
representing the charged employees, and that such persons be made to
testify as a witness at any discipline or revocation hearing, if
requested by the labor organizations.
    In addition, BLET commented that, in the NPRM, FRA repeated a
misperception of what cameras can do to promote safety by asking
whether there are other safety-appropriate uses for locomotive
recordings. According to BLET, cameras provide no protection against
accidents that would happen within an operational envelope, and do not
prevent electronic device usage. BLET questioned what safety goal is
achieved when a personal electronic device is found through locomotive
recording data, when the recording itself could not prevent it. BLET
also questioned the extent to which locomotive recording data in post-
accident analysis can actually help in day-to-day operations. Overall,
BLET believed locomotive recorders will serve only to document a
problem someone already knew existed and negligence over time, but that
safety will not improve as a result if the underlying issue is not
addressed.
    As previously noted, FRA lacks the justification to apply the
requirements for permissible uses of locomotive recording device
technology in this final rule to freight railroads, in accordance with
FRA's implementation of the Statute. However, it is FRA's expectation
that all railroads that voluntarily install recording devices on their
locomotive will adhere to practices that are consistent with those in
this final rule. In addition, BLET's suggestion to encrypt all
locomotive recording data would unnecessarily increase the cost of this
rulemaking, although FRA expects that encryption technology or
equivalent data protection measures will be used, given the
requirements in this final rule that such data may only be accessed by
authorized personnel and its integrity be safeguarded against
unauthorized download, deletion, or alteration. Finally, although FRA
agrees that most of the benefits of this rulemaking will come from
enhancing post-accident analysis through the information contained in
locomotive recordings, FRA strongly disagrees that locomotive recording
devices will provide no deterrence against personal electronic device
use or other safety violations occurring during railroad operations.
FRA also notes that, as identified by Congress, the recordings may
serve to document a criminal act or monitor unauthorized occupancy of a
locomotive.\46\
---------------------------------------------------------------------------

    \46\ 49 U.S.C. 20168(d)(3).
---------------------------------------------------------------------------

U. Factual Determinations When There Are Discrepancies Between
Locomotive Image and Event Recorder Data

    APTA commented that the NPRM did not address a situation where data
from

a locomotive image recorder and an event recorder do not match and
asked FRA which of the two devices will be determinative for factual
considerations. FRA expects that any such discrepancies will be
addressed on a case-by-case basis as part of the investigation
following an accident or incident, taking into account the totality of
the circumstances. This final rule does not make the data from one
device primary over the other.

V. Personal Electronic Device Use and Locomotive Recording Devices

    FRA discussed extensively in the NPRM how concerns about preventing
accidents caused by distraction involving the use of personal
electronic devices was one of the bases for this rulemaking, as well as
the focus of NTSB recommendations and RSAC Working Group discussion. As
a result, FRA received several comments about locomotive recording
devices and how they would deter crewmembers from using personal
electronic devices while performing safety sensitive service.
    BLET commented that locomotive cameras will not deter negative
behavior involving crewmembers or personal cell phone usage. BLET
asserted that evidence shows individuals continued to use their
personal phones when locomotive cameras were present, and that
locomotive cameras will just show the behavior, which is already known
to exist.
    BLET also commented that FRA did not include a discussion in the
NPRM on technology that can disrupt cell phone connectivity. BLET
stated it partnered with Amtrak on a project that demonstrated the
utility of technology that would both intercept cell phone connectivity
outside of the locomotive and alert designated supervisors in real time
of any attempt to use a cell phone. BLET found this to be a significant
safety enhancement at relatively low cost, one that operates far less
intrusively than inward-facing locomotive cameras, and noted that this
technology was not mentioned in the NPRM as a potential ``alternative
technology.''
    Wi-Tronix commented that major passenger train incidents over the
past decade proved that distracted driver operation is a critical
problem and that technology also exists to monitor such activity in
locomotive cabs. Wi-Tronix stated that the integration of image and
audio recording data and the detection of such data in cellular logs,
when integrated and synchronized with event recorder data, make an
extremely powerful tool for accident/incident investigation and to
influence behavior.
    While BLET is correct that the presence of inward-facing locomotive
recording devices will not entirely prevent the usage of personal
electronic devices when performing safety-sensitive service, the
presence of these devices will nonetheless provide a deterrent effect.
FRA found a study by the Virginia Tech Transportation Institute that
examined the change in commercial truck driver behavior when an image
recording device was within the cab of the vehicle.\47\ The study found
that the two carriers which participated experienced a 27 percent and
52 percent reduction in human factor events per miles traveled,
respectively.\48\ While these results cannot be applied directly to the
railroad industry, the study provides additional evidence that
locomotive image recording devices can alter operator behavior, and
thus reduce human factor accidents. However, as noted within the
Virginia Tech study, any altering of operational behavior is most
likely to be more prominent at the beginning of the observation period,
and behavior could revert as time passes. Further, the presence of
locomotive recording devices will help FRA and railroads identify
individuals who violate Federal regulations against personal electronic
device usage in part 220, subpart C, and various other railroad
operating rules prohibiting cell phone usage.
---------------------------------------------------------------------------

    \47\ Hickman, Jeffrey S., Richard J. Hanowski, and Olu Ajayi.
Evaluation of An Onboard Safety Monitoring Device In Commercial
Vehicle Operations. Report. Federal Motor Carrier Safety
Administration, Virginia Tech Transportation Institute (2009).
    \48\ Id.
---------------------------------------------------------------------------

    Moreover, aside from the deterrent effect locomotive recording
devices have in preventing personal electronic device usage, the
recording devices provide other important safety functions unrelated to
personal electronic device usage. For example, one of the primary
functions of locomotive recording devices is to provide information as
to the causes(s) of a railroad accident or incident. Therefore,
although FRA encourages the use and development of technology to
promote safety, the technology described by the commenters to detect or
prevent personal electronic device usage cannot be considered an
``alternative technology'' for purposes of the statutory requirement to
install inward- and outward-facing locomotive image recorders.

W. Positive Train Control

    Railroad carriers providing ``intercity rail passenger
transportation'' and ``commuter rail passenger transportation'' subject
to this final rule are covered by 49 U.S.C. 24102 (passenger railroads
required to install PTC systems under 49 U.S.C. 20157(a)). Although FRA
did not specifically request comments on PTC, FRA received several
comments relating to PTC technology, the nature of the overlap between
passenger railroads required to install PTC and locomotive image
recording devices, and the interaction between locomotive recording
devices and PTC systems. Specifically, commenters asserted that
passenger railroads should not be required to divert resources from
installing, maintaining, and operating PTC systems to address the
recording device requirements in this rulemaking.
    APTA cited the accidents and associated NTSB recommendations
discussed in the NPRM and stated that almost every one of the accidents
would have been prevented by a functioning PTC system. In addition,
APTA stated that most were accidents involving freight trains, not
passenger trains.
    Hitachi agreed with APTA that all the accidents discussed in the
NPRM were arguably PTC-preventable accidents. Hitachi believed that,
although image recording devices could prove useful as accident
investigation tools in the future, accident prevention should currently
be the primary focus and, as a result, railroads should not divert
valuable resources from operating and maintaining PTC equipment ``to
meet well-intentioned, but misguided FRA mandates.''
    BLET also took issue with the accidents FRA discussed in the NPRM.
BLET pointed out that two of the accidents, the 2008 accident in
Chatsworth, California, and the 1999 accident in Bryan, Ohio, led to
the NTSB recommending both the installation of PTC and the installation
of locomotive image recording devices. According to BLET, the NTSB
stated that PTC could have prevented these accidents from occurring.
Therefore, BLET questioned why locomotive image recording systems would
be appropriate where PTC is installed and operating, except perhaps to
use outward-facing cameras to document signal visibility due to dense
fog, which was at issue in the Bryan, Ohio, accident.
    Additionally, FRA received a comment from a private citizen who
stated that outward-facing locomotive recording devices offer no
preventative qualities. The commenter believed that resources dedicated
to outward-facing recording systems detract from finite resources
available for safety, installing a form of PTC technology would be a

much better use of those resources, and that this final rule should not
be adopted until PTC technology is installed on all rail miles.
    FRA understands the concerns raised by commenters and does not
dispute the commenters' assertion that many, if not all, of the
accidents cited in the NPRM could have been prevented by the
implementation of PTC systems, nor does FRA dispute the safety benefits
of PTC systems. However, PTC is not an adequate ``alternative
technology'' under the Statute, as PTC and locomotive recording devices
serve different safety functions. PTC is designed to prevent certain
accidents, and, although locomotive recording devices do have the
potential to help prevent accidents, one of the main purposes of
locomotive recording devices is to record information to provide to
investigators after an accident or incident has occurred.\49\ The
information recorded by the recording devices cannot normally be
provided by the PTC system, or other similar technology.
---------------------------------------------------------------------------

    \49\ See 49 U.S.C. 20168(d)(2) (Railroad carriers subject to the
Statute may use recordings from inward- or outward-facing image
recording devices for ``[a]ssisting in an investigation into the
causation of a reportable accident or incident'').
---------------------------------------------------------------------------

    All PTC systems must be designed to prevent train-to train
collisions, over-speed derailments, incursions into established work
zones, and movement of trains through switches left in the wrong
position, in accordance with the requirements of 49 CFR part 236,
subpart I. As touched on above, one of the primary uses of locomotive
recording devices is for investigating railroad accidents or incidents
caused by human factors where standard event recorders can provide
little or incomplete information about what occurred in the locomotive
cab prior to the accident or incident.\50\ PTC may be able to provide
some information, but not a full accounting of the train crew's actions
immediately before an accident. Therefore, PTC is not an adequate
technology to replace the locomotive recording device requirements in
the Statute.
---------------------------------------------------------------------------

    \50\ See also 49 U.S.C. 20168(d)(1) (Railroad carriers subject
to the Statute may use recordings from inward- or outward-facing
image recording devices for ``[v]erifying that train crew actions
are in accordance with applicable safety laws and the railroad
carrier's operating rules and procedures, including a system-wide
program for such verification'').
---------------------------------------------------------------------------

    As previously stated, the Statute requires the promulgation of
regulations requiring passenger railroads to install recording devices
in all controlling (or ``lead'') locomotives. When the locomotive
recording devices statutory mandate was enacted, the statutory mandate
to implement PTC on passenger railroads had long been in place.\51\ In
fact, between Congress' initial PTC mandate in 2008 and the Statute in
2015, Congress continued to be actively engaged in PTC policymaking
through legislation and other activities. Congress held multiple
oversight hearings about the technology and passed another piece of PTC
legislation approximately five weeks prior to the passage of the
Statute. It is clear that Congress passed the locomotive recording
devices mandate for passenger trains with the awareness that the same
passenger railroads would also be required to install PTC systems. As a
result, FRA does not believe Congress intended PTC systems to be
considered an ``alternative technology'' under the Statute that would
excuse passenger railroads from implementing locomotive recording
devices.
---------------------------------------------------------------------------

    \51\ See 49 U.S.C. 20157(a).
---------------------------------------------------------------------------

X. Locomotive Image Recorder Analytics

    Wi-Tronix commented that data created by locomotive image recorders
will need to be accessed for artificial intelligence and image
analytics purposes, stating that artificial intelligence and image
analytics are key elements to improving industry safety, as seen in the
automotive industry. As a result, Wi-Tronix asserted there needs to be
a mechanism to allow for sharing anonymous data for use in improving
safety and operations.
    FRA declines to develop a mechanism in this rule for sharing
anonymous data from locomotive image recording devices. The Statute did
not mandate the establishment of such a mechanism, and FRA expects that
passenger railroads would be reluctant to share the data due to the
need to address proprietary, liability, privacy and other potential
issues and concerns. Although FRA strongly supports the use of data to
promote safety purposes, this final rule is not the appropriate forum
for imposing such a requirement, consideration of which would require
the involvement of all stakeholders. See also the discussion under
Section II.L.5 above, noting that this final rule will not affect the
adoption of C3RS programs, which allow railroad employees to raise
safety incidents confidentially and generate reports based on such
incidents without identifying data.

Y. Procurement of Locomotive Recording Devices

    Hitachi commented that FRA should investigate and suggest updates
for procurements, to favor transit agencies, considering the best
technology or exploring the most advanced technological applications.
FRA declines to adopt this suggestion, as it is beyond the scope of
this rulemaking. FRA's purpose in this final rule is to implement the
statutory mandate to establish minimum standards for inward- and
outward-facing locomotive image recording systems for passenger
railroads. Railroads may, of course, exceed these minimum standards and
work together in procuring and applying the technology, including the
development of industry specifications and best practices consistent
with this rule.

Z. Application of the Rule to GP-Style Long-Hood Locomotives

    APTA provided a comment specific to commuter railroads that utilize
some general purpose (GP)-style locomotives with one cab only on the
short-hood end, and a narrow car body on the long-hood end. These
locomotives can operate in the lead with the long- or short-hood
forward while in revenue service. APTA sought clarification whether the
long-hood of these locomotives must comply with the final rule, even if
operated only occasionally long-hood forward, and believed that such
use should be excluded by the final rule.
    FRA disagrees with APTA's comment that these locomotives should be
excluded from the final rule's requirements. If a railroad operates
such locomotives long-hood forward in regularly scheduled passenger
service, however occasionally the locomotive configuration may be used,
the long-hood must be equipped with an outward-facing image recording
device in the direction that the locomotive is traveling. FRA disagrees
with APTA, in part, because an exclusion could incentivize use of
locomotives in this configuration. FRA addresses the costs associated
with long-hood forward use of locomotives in this final rule's RIA by
increasing the number of impacted locomotives affected by the final
rule.

AA. Inclusion of Passenger Railroad Cab Cars in the Rule's Requirements

    Wi-Tronix, believing that passenger railroad cab cars may not be
locomotives, commented that it would be critical that cab cars be
covered by this final rule's requirements applicable to locomotives.
FRA makes clear that cab cars are indeed locomotives subject to this
final rule. Cab cars are formally recognized by the existing definition
of ``control cab locomotive'' in Sec.  229.5 to mean a ``locomotive.''

III. Civil Penalties

    FRA did not request or receive any comments regarding the potential
civil penalties FRA could issue for violations of new or amended
requirements in this final rule. FRA will modify the schedule of civil
penalties on its website \52\ to reflect the requirements of the final
rule. Because such penalty schedules are statements of agency policy,
notice and comment are not required before their issuance, and FRA did
not propose a penalty schedule in the NPRM.\53\
---------------------------------------------------------------------------

    \52\ www.railroads.dot.gov.
    \53\ See 5 U.S.C. 553(b)(A).
---------------------------------------------------------------------------

    FRA is authorized to assess a civil penalty of at least $976 and
not more than $31,928 per any violation of the requirements established
in this final rule.\54\ However, penalties up to $127,712 may be
assessed for a grossly negligent violation or a pattern of repeated
violations that created an imminent hazard of death or injury to
individuals, or has caused death or injury.\55\ In accordance with the
Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by
the Federal Civil Penalties Inflation Adjustment Act Improvements Act
of 2015, these minimum and maximum penalty amounts will be adjusted for
inflation in the future.
---------------------------------------------------------------------------

    \54\ See 87 FR 15839 (Mar. 21, 2022).
    \55\ See Id.
---------------------------------------------------------------------------

IV. Discussion of Amendments to Part 299 Pertaining to Texas Central
Railroad Trainset Image Recording Systems

    Texas Central Railroad (TCRR) intends to implement a high-speed
passenger rail system by using the Tokaido Shinkansen system's service-
proven technology and by replicating Central Japan Railway Company's
(JRC) operational and maintenance practices and procedures. The
contemplated system will run between Dallas and Houston, Texas, with an
intermediate stop in Grimes County, Texas, approximately 240 miles, at
a speed not to exceed 205 mph. TCRR plans to implement the latest,
service-proven derivative of the N700 trainset and other core systems
currently in use on the Tokaido Shinkansen line, which have been
refined for high-speed operations over the last 50-plus years.
    On November 3, 2020, FRA published a final rule establishing
regulatory requirements applicable only to TCRR--a rule of particular
applicability (RPA).\56\ Such a regulation, in addition to providing
for regulatory approval, institutes a comprehensive regulatory
framework that provides TCRR clarity on the minimum Federal safety
standards that it must comply with through technology-specific,
performance-based requirements. Through the RPA, FRA is able to protect
the integrity of the Tokaido Shinkansen system as implemented in Texas,
by establishing regulatory requirements codifying the service-proven
technological, operational, and maintenance aspects of the Tokaido
Shinkansen high-speed rail system operated by JRC.
---------------------------------------------------------------------------

    \56\ See 85 FR 69700 (Nov. 3, 2020).
---------------------------------------------------------------------------

    On March 10, 2020, FRA published an NPRM proposing a set of safety
requirements for TCRR (the TCRR NPRM). FRA proposed to make FRA's
regulation implementing section 11411 of the FAST Act applicable to
TCRR's high-speed trainsets used in revenue service.\57\ However, the
TCRR final rule was published before this final rule implementing
section 11411 of the FAST Act. Accordingly, FRA noted in the TCRR final
rule that it would make revisions to the TCRR final rule as part of
this final rule.\58\ The amendments to Sec.  299.5 adopted in this
final rule and new Sec.  299.449 reflect these revisions.
---------------------------------------------------------------------------

    \57\ See 85 FR 14036, 14041 (Mar. 10, 2020); see also 84 FR
35712 (Jul. 24, 2019).
    \58\ See Section V.C, Trainset Image Recording System, of the
TCRR final rule, 85 FR 69700, 69714.
---------------------------------------------------------------------------

    During the 77-day comment period on the TCRR NPRM, FRA received
comments from TCRR on the topic of locomotive image recorders. TCRR
requested that FRA exercise its statutorily granted discretion under 49
U.S.C. 20168(e)(2) and exempt TCRR from the requirement to install
inward- and outward-facing image recording devices, asserting that TCRR
will implement an alternative technology or practice that provides an
equivalent or greater level of safety or is better suited to the risks
of the operation. In support of its request, TCRR stated that such
alternative technologies or practices to be employed include: a
signaling system that will comply with the requirements for PTC under
49 U.S.C. 20157 and be installed throughout the TCRR system (including
trainset maintenance facilities) and used at all speeds; a dedicated,
fully fenced (except for elevated structures), grade-separated right-
of-way; an intrusion detection system; a right-of-way barrier plan to
protect against unauthorized incursions into the right-of-way and from
adjacent highway and freight rail operations; and wind, rain, and flood
hazard detectors located at specific sites along the right-of-way.
    FRA recognizes and appreciates the mitigations that TCRR will have
in place under part 299 and that those mitigations are modeled on the
very successful Tokaido Shinkansen system. However, even with all the
mitigations TCRR is putting in place to avoid any form of accident/
incident, it is in the interest of railroad safety to require TCRR to
install image recording systems in its high-speed trainsets. Notably,
should an event occur despite the mitigations put in place by the
railroad, it will be even more crucial to have imagery from the
recording system to determine how the event occurred and/or what was
occurring in the controlling cab of the trainset in the time before and
during the event. See also the discussion under Section II.W of this
final rule, noting that FRA cannot consider PTC an adequate
``alternative technology'' to installation of inward- and outward-
facing image recording devices for purposes of the statutory exemption.
Accordingly, TCRR is not exempt from the requirement to install inward-
and outward-facing image recording devices.
    Contrary to the discussion in the TCRR NPRM, in which FRA stated it
would make appropriate conforming changes to the requirements outlined
in the NPRM, essentially making the requirements of Sec.  229.136
applicable to TCRR, FRA is adding Sec.  299.449 to part 299 to contain
the specific requirements for the image recording system applicable
only to TCRR.\59\ Placing the requirements that are specific to TCRR in
part 299 allows FRA to properly tailor the requirements to the TCRR
system and operation.
---------------------------------------------------------------------------

    \59\ The TCRR final rule explained that, because the image
recording device rulemaking was not finalized at the time the TCRR
rule was finalized, FRA would ``make any necessary changes to [the
TCRR] regulation as a part of'' the image recording device final
rule. 85 FR 69700, 69715 (Nov. 3, 2020).
---------------------------------------------------------------------------

    Section 299.449, as adopted in this final rule, reflects FRA's
efforts to tailor the locomotive image recorder requirement to TCRR's
equipment and operation and to address TCRR's comments. Section V,
Section-by-Section Analysis, below, contains a discussion of the
changes made and codified under Sec. Sec.  299.5 and 299.449, and under
appendix A to part 299, Criteria for Certification of Crashworthy Event
Recorder Memory Module. FRA has made both editorial and substantive
changes in applying the rule text in Sec.  229.136 and appendix D to
part 229 to TCRR's rule of particular applicability, part 299. The
changes ease understanding of the various requirements, as applied to
TCRR, including clarifying whether a requirement pertains to a
component of the image recording system (such as an

image recording device) or whether a requirement pertains to the image
recording system as a whole. The substantive changes were made to
tailor the rule text appropriately for TCRR's system.

V. Section-by-Section Analysis

    This section responds to public comments and identifies any changes
made from the provisions as proposed in the NPRM. Provisions that
received no comment, and are otherwise being finalized as proposed, are
not discussed again here.\60\
---------------------------------------------------------------------------

    \60\ 84 FR 35,712.
---------------------------------------------------------------------------

Amendments to 49 CFR Part 217

Section 217.9 Program of Operational Tests and Inspections;
Recordkeeping
    In this final rule, FRA is clarifying its intent to exclude freight
railroads from these requirements by using the term ``passenger
railroad,'' instead of ``railroad,'' throughout paragraphs (b)(3) and
(4).
    FRA is also adding audio recordings to paragraph (b)(3)(iii).
Although proposed paragraph (b)(3)(iii) did not expressly mention audio
recordings as subject to the 72-hour limitation on operational tests or
inspections after completion of the employee's tour of duty, the
omission of audio recordings was inadvertent and not consistent with
proposed paragraph (b)(3) as a whole. For instance, proposed paragraph
(b)(3)'s introductory text made clear that operational tests and
inspections involving inward-facing image or in-cab audio recordings
must comply with the conditions in paragraphs (b)(3)(i), (ii), and
(iii). Further, it would not make sense for FRA to require passenger
railroads to select testing subjects at random for operational testing
involving inward-facing locomotive image recordings, but allow the
potential for specific employees to be targeted for operational testing
with audio recording devices. Therefore, FRA is correcting the
inadvertent omission in this final rule. Accordingly, while the final
rule does not require passenger railroads to install audio recording
devices of any kind, if passenger railroads choose to install such
devices and then use them for operational testing, the same protections
for operational testing and use of image recorders also apply for
operational testing and use of audio recorders.

Amendments to 49 CFR Part 218

Section 218.53 Scope and Definitions
    FRA is revising paragraph (d) of this section to make clear that
the provisions in Sec. Sec.  218.59 and 218.61 do not apply to
locomotive-mounted image or audio recording equipment on freight
locomotives. FRA's use of ``or,'' instead of ``and'' as proposed in the
NPRM, is to avoid the potential ambiguity that both image and audio
recording equipment on a freight locomotive must be present for the
exclusion to apply. It is FRA's intention that Sec. Sec.  218.59 and
218.61 will not apply to either type of recording device on a freight
locomotive, whether alone or in combination.
Section 218.61 Authority To Deactivate Safety Devices
    FRA is also revising subsection (c) of this section to read that
the requirements of this section do not apply to inward- or outward-
facing image recording devices that are installed on freight
locomotives, instead of inward- and outward-facing image recording
devices on freight locomotives. Like its revision in Sec.  218.53, FRA
is substituting the word ``and'' with ``or'' to avoid the potential
ambiguity that both an inward- and outward-facing image recording
device must be present on a freight locomotive to avoid the application
of this section, when the presence of either an inward- or outward-
facing image recording device is sufficient to avoid the section's
requirements.

Amendments to 49 CFR Part 229

Section 229.5 Definitions
    Although proposed in the NPRM, FRA is not amending this section to
add a definition for ``NTSB'' as the acronym for the National
Transportation Safety Board, an independent U.S. government
investigative agency responsible for civil transportation accident
investigation. The term is not used in any of the amended or new
language being added to part 229 by this final rule.
Section 229.21 Inspections and Tests
    FRA is making conforming changes to Sec.  229.21 to reflect the
allowance for movement beyond a calendar day inspection point of a lead
locomotive in long-distance intercity passenger train service with a
locomotive image recorder system or device defect. See the discussion
in the Section-by-Section analysis of Sec.  229.136, below, as well as
Section II.I (Repairing, Replacing, or Removing Locomotive Image
Recording Devices From Service) within the Discussion of Specific
Comments and Conclusions, above. Although not expressly proposed in the
NPRM, these changes are limited only to such long-distance intercity
passenger trains led by locomotives subject to this final rule's
locomotive image recorder requirements--and only to the handling of
such locomotive image recording systems or devices. FRA intends no
other changes to this section's application or effect.
Section 229.22 Passenger Locomotive Inspection and Repair Record
    FRA has added this section in preparing the final rule to establish
use of new Form FRA F 6180-49AP (Passenger Locomotive Inspection and
Repair Record) to collect Federally required locomotive inspection,
testing, and repair information for lead locomotives in commuter or
intercity passenger train service, including information for locomotive
recording devices. This new form is based on existing Form FRA F 6180-
49A (Locomotive Inspection and Repair Record), which has been used for
many years as the centralized record of Federally required inspection,
testing, and repair information for all locomotives, as defined broadly
in Sec.  229.5. Form FRA F 6180-49AP, as the new counterpart to Form
FRA F 6180-49A, will include a designated row for entering information
about annual testing of locomotive image recording devices required
under Sec.  229.136, consistent with the designated row on Form FRA F
6180-49A (as well as new Form FRA F 6180-49AP) for entering information
about required locomotive event recorder testing. Form FRA F 6180-49AP
will also continue to be organized to fit on one double-sided page, for
ease of use and printing and copying.
    Establishing use of the new F 6180-49AP form for lead locomotives
in commuter or intercity passenger train service will help avoid any
potential confusion for freight railroad operators as to the
application of locomotive recording device requirements under this
rule, and also conserve valuable space on the existing F 6180-49A form.
Freight railroads operate the vast majority of locomotives, and the
locomotive recording device requirements in this rule do not apply to
locomotives in freight service, or to locomotives used in switching
service. Nor will the rule affect use of the F 6180-49A form by non-
lead locomotives in commuter or intercity passenger train service.
    To phase-in use of new Form FRA F 6180-49AP for lead locomotives in
commuter or intercity passenger train service, Sec.  229.22 expressly
permits continued use and maintenance of Form FRA F 6180-49A until
October 12,

2027, when all such locomotives will be required to be equipped with
image recording devices compliant with Sec.  229.136. In providing
broad flexibility, Sec.  229.22 also makes clear that railroads may
adopt use of Form FRA F 6180-49AP earlier than required.
Section 229.136 Locomotive Image and Audio Recording Devices
    FRA is making changes in this section's regulatory text from the
NPRM. In various paragraphs, the changes remove redundant words or
phrases from the proposed language to streamline the final rule. Where
these and other purely stylistic textual changes do not modify the
meaning or requirements of the paragraphs or this section, they will
not be addressed in the analysis below.
    FRA is modifying the headings for paragraphs (b), (c), (d), and (e)
by inserting the word ``lead'' into each paragraph heading, to clarify
that only passenger locomotives in the lead position must comply with
these paragraphs' requirements. FRA is also adding clarifying text to
avoid any confusion as to the applicability of this section's
requirements to recording devices or systems voluntarily installed in
locomotives. FRA has therefore inserted ``as required under paragraph
(a)(1) or (2) of this section'' to make clear that the corresponding
text applies only to locomotives required to be equipped with recording
devices or systems under paragraph (a)(1) or (2) of this section.
    In paragraph (a)(3), FRA has changed the name of the form
referenced in this paragraph from ``Form FRA F 6180-49A'' to ``Form FRA
F 6180-49AP,'' as FRA has created this new form specifically for
passenger locomotives subject to the requirements in this final rule.
Passenger railroads must still note the presence of any image or audio
recording system in the REMARKS section; however, passenger railroads
must use new Form FRA F 6180-49AP for their lead locomotives used in
commuter or intercity passenger train service.
    In paragraph (a)(5), FRA is adding language making clear that
locomotive recording device data can be stored on a certified
crashworthy event recorder memory module or an alternative, remote
storage system that provides equivalent data protections if approved by
FRA. See Section II.E.2 (Potential Exemptions From the Crashworthy
Memory Module Requirements) for a detailed discussion of FRA's
considerations in approving a remote storage system as part of the
locomotive recording system approval process. FRA has added paragraphs
(a)(5)(i) and (ii) to clarify when required image recording and
voluntarily installed audio recording devices on lead locomotives must
comply with the paragraph's requirements. Paragraph (a)(5)(i)
references paragraphs (a)(1) and (2) for when image recording devices
on lead locomotives must comply with this paragraph's requirements,
while paragraph (a)(5)(ii) specifies when voluntarily installed audio
recording devices on lead locomotives must comply with the same
requirements. FRA added these paragraphs because the NPRM was unclear
when voluntarily installed audio recording devices on lead locomotives
in commuter or intercity passenger service would be required to record
their data to a certified crashworthy event recorder memory module or
FRA-approved remote storage system.
    FRA is not adopting the language proposed in paragraph (c)(1)(i)
specifying that the locomotive inward-facing camera system have
sufficient resolution to record whether a crewmember is physically
incapacitated and whether a crewmember is complying with the indicators
of a signal system or other operational control system. Instead, FRA is
simply retaining the requirement that the inward-facing camera system
have sufficient resolution to record crewmember actions, without the
more prescriptive language. FRA reiterates that this paragraph does not
require the real-time monitoring of passenger train crews. Please see
the above discussion in Section II.G (Inward-Facing Locomotive Image
Recording Systems and Devices).
    FRA is also renumbering paragraph (c) for clarity. The proposed
regulatory language in paragraph (c)(1)(ii) is now contained in
paragraphs (c)(1)(ii) and (iii) in this final rule. Similarly, the
regulatory language in proposed paragraphs (c)(2), (3), and (4) is now
found in paragraphs (c)(1)(iv), (2), and (3), respectively. In
addition, FRA is adding the phrase ``on image recordings'' in paragraph
(c)(1)(iv) for clarity.
    FRA is modifying and broadening paragraph (d) from the proposal in
the NPRM to make clear that, in addition to unauthorized downloads,
passenger railroads must also take necessary protective measures
against unauthorized access to the recording system and its recordings
that could lead to the deletion or alteration of data. Likewise,
paragraph (d)'s heading now refers to ``protection requirements,''
rather than ``download protection requirements,'' to make clear this
paragraph's requirements address measures to protect the integrity of
the recording system more than just protecting against unauthorized
downloads. In addition, as stated above in Section II.R (Download and
Security Features of Locomotive Recording Systems), the reference to
standard memory modules in this paragraph was proposed in error and has
not been retained.
    FRA is also adding paragraphs (d)(1) and (2) to clarify when
required image recording and voluntarily installed audio recording
devices on lead locomotives must comply with paragraph (d)'s
requirements. Paragraph (d)(1) includes requirements for image
recording devices on lead locomotives, while paragraph (d)(2) addresses
requirements for voluntarily installed audio recording devices on the
same locomotives. The language FRA is adopting in paragraphs (d)(1) and
(2) is nearly identical to that which FRA is adopting in paragraphs
(a)(5)(i) and (ii). Similar to those new paragraphs, which are
discussed above, FRA is adding these paragraphs to paragraph (d)
because the NPRM was unclear when voluntarily installed audio recording
devices on lead locomotives in commuter or intercity passenger service
would have to meet the paragraph's requirements.
    In paragraph (e), FRA is modifying paragraph (e)(1) so that it
directly references the requirements in paragraph (i) for the removal
from service and handling for repair of inward- and outward-facing
image recording systems. FRA had initially proposed referencing the
daily inspection requirements in Sec.  229.21 (Daily inspection).
However, as discussed in Section II.I (Repairing, Replacing, or
Removing Locomotive Image Recording Devices From Service), FRA has
modified the requirements for the removal from service and handling for
repair of inward- and outward-facing image recording systems on long-
distance intercity passenger trains, as specified in paragraph (i) of
this section.
    FRA is also modifying paragraph (e)(2)'s requirements based on
comments it received, which are discussed above in Section II.S (Self-
Monitoring and Self-Reporting Systems or Devices on Locomotive Image
Recording Systems). Specifically, paragraph (e)(2) makes clear that the
required sample download(s) must be taken directly from the image
recording system's crashworthy memory module, or FRA-approved remote
storage system, to confirm proper operation of the system. Paragraph
(e)(2) also now provides for taking the required sample

download(s) during a locomotive's annual test required under Sec.
229.27, Annual tests.
    Information concerning the results of this annual test must be
entered on new Form FRA F 6180-49AP in a row specifically dedicated for
this purpose. The added row on the new form parallels, and is directly
below, the row for entering information concerning the results of event
recorder tests required by Sec. Sec.  229.25(d) and 229.27(c), and
provides for entering the same information as for other required tests.
    In paragraph (f), the exception to a railroad's use of image or
audio recording device data in paragraph (f)(2)(ii) applies by
direction of FRA or ``another Federal agency,'' including but not
limited to the NTSB. This change is consistent with the use of similar
forms of ``another Federal agency'' throughout paragraph (f)(2) and
clarifies that another Federal agency is not limited to the NTSB. FRA
is also modifying the language in paragraph (f)(3)(vii) to make clear
that a railroad may perform inspection, testing, maintenance, or repair
activities on an ``image or audio recorder,'' and not only an ``inward-
facing image recorder'' as stated in the NPRM, to ensure proper
installation and functioning. Passenger railroads may of course perform
such activities on inward- or outward locomotive image or audio
recording devices at any time.
    In paragraph (g), FRA is requiring a ``description'' of the
technical aspects of any locomotive image recording system intended to
comply with this section, rather than a ``written description'' as
proposed in the NPRM. In addition, paragraph (g) specifies an email
address rather than a mailing address for submitting the description to
FRA. FRA has made these changes to encourage and promote the electronic
submission of the information to FRA. This final rule also clarifies
that railroads should submit to FRA a description of the technical
aspects of any locomotive image recording system ``intended'' to comply
with the section, rather than after a recording system has been
``installed,'' as stated in the NPRM. FRA revised this language as it
is rational that railroads would seek FRA's approval of their
locomotive image recording systems before spending money to install a
potentially non-approved system on their locomotives.
    Further, FRA is correcting paragraph (g)(2)'s submission date
requirements, to address an inadvertent error in the proposed rule, and
also modifying paragraph (g)(3) to make clear that FRA must review a
railroad's submission and approve any locomotive image recording system
before the system can be installed or put into service in compliance
with this section. Please see Section II.J (FRA Approval Process for
Locomotive Image Recording Systems and Devices) above, for more
detailed discussion of these revisions.
    In paragraph (i), FRA is inserting the word ``alone'' into the
regulatory text to clarify that a locomotive with only an out-of-
service image recording device is not considered to be in an improper
condition, unsafe to operate, or a non-complying locomotive under
Sec. Sec.  229.7 and 229.9. However, as unchanged from the NPRM,
paragraph (i) also makes clear that a railroad must remove the device
from service if the railroad knows the device is not properly
recording. Further, when a railroad removes a locomotive image
recording device from service, a qualified person must record the date
the device was removed from service under the REMARKS section of Form
FRA F 6180-49AP--not Form FRA F 6180-49A. For a more extensive
discussion of this requirement, please see Sections II.H (Notice
Provided When Locomotive Recording Devices Are Present) and II.I.3
(Documenting When a Locomotive Image Recording Device Has Been Removed
From Service), above.
    In addition, except for long-distance intercity passenger trains, a
locomotive with a defective image recording device may remain as the
lead locomotive only until the next calendar-day inspection required
under Sec.  229.21. This includes a lead locomotive in a commuter train
with an image recording device found defective at an outlying
inspection point, which may remain as the train's lead locomotive only
until the next calendar-day inspection required under Sec.  229.21. As
discussed above in Section II.I (Repairing, Replacing, or Removing
Locomotive Image Recording Devices From Service), FRA has expanded the
movement-for-repair allowance for a long-distance intercity passenger
train's lead locomotive with a defective image recording device so that
it may remain as the lead locomotive until arrival at its destination
terminal or its nearest forward point of repair, whichever occurs
first.
    FRA notes that the rule does not specify how a railroad shall
indicate on the F 6180-49AP form when a locomotive image recording
device is returned to service. This is intended to provide railroads
the flexibility to denote this information in the REMARKS or the
REPAIRS section of the F 6180-49AP form, or in an equivalent location.
    FRA is adding paragraph (l) to exclude from compliance with the
requirements of this section freight locomotives acting as passenger
locomotives when they are performing rescue operations for intercity or
commuter passenger trains. Please see the above discussion in Section
II.A.3 (Application of Requirements to Freight Locomotives Performing
Rescue Operations).
    Finally, FRA is revising the introductory paragraph of appendix D
to part 229 to clarify that data from image and voluntarily-installed
audio recording systems must be recorded on a certified crashworthy
memory module or on an alternative, remote storage system that provides
equivalent data protections and is approved by FRA.

Amendments to 49 CFR Part 299

Section 299.5 Definitions
    Consistent with the revisions made to part 229 in this final rule,
FRA is adding three new definitions to part 299: ``Event recorder
memory module'', ``Image recording system'', and ``Recording device''.
These define key components of what comprises the image recording
system and are substantively similar to the definitions of the same
terms in Sec.  229.5. The definitions in part 299 differ only slightly
from those in part 229 to reflect editorial revisions to harmonize the
definitions with the rest of part 299.
Section 299.449 Trainset Image and Audio Recording System
    Section 299.449 is based on Sec.  229.136. Similar to Sec.
229.136, FRA is requiring all TCRR high-speed passenger trainsets used
in revenue service to be equipped with an image recording system as
described under Sec.  299.449 prior to commencing revenue operations.
However, because TCRR is not yet operating, it does not need to avail
itself of an implementation period for this requirement, as in Sec.
229.136(a), and FRA has not included one.
    As provided in Sec.  229.136(a)(3), if a locomotive is equipped
with an image or audio recording system, that fact must be annotated on
the locomotive's Form FRA F 6180-49AP. FRA is not including this
annotation requirement in Sec.  299.449, however, as TCRR is not
required to use Form FRA F 6180-49AP.
    FRA has also revised the language in Sec.  299.449(a)(4) to clarify
that TCRR's locomotive image recording device data must recorded on
either a certified crashworthy memory module or an alternative, remote
storage system that provides at least equivalent data protections and
has been approved by FRA under Sec.  299.449(g).
    In commenting on the TCRR NPRM, TCRR stated that the resolution

requirements for both outward- and inward-facing image recording
devices proposed in Sec.  229.136(b) were quite prescriptive and should
be reexamined for high-speed operations. As adopted in this final rule,
Sec.  229.136(b) requires the outward-facing image recording device to
record at a minimum frame rate of 15 fps and have sufficient resolution
to record the position of switch points 50 feet in front of the leading
locomotive. TCRR questioned the underlying rationale and the benefit of
such a requirement on a system that would have a PTC system capable of
preventing a trainset from operating through a misaligned switch.
Further, TCRR noted that for a trainset operating at 205 mph (330 km/h)
the trainset would travel 20 feet between frames using an image
recording device with a minimum frame rate of 15 fps and would pass a
switch that is located 50 feet in front of the trainset within \1/6\ of
a second. TCRR also commented that for its trainsets, the outward-
facing image recording device would be mounted at least 12.5 feet back
from the front of the trainset, and thus the proposal would effectively
require the image recording device to have a resolution capable of
detecting the position of switch points 62.5 feet in advance of the
switch.
    FRA notes that TCRR raises issues that were not fully considered
for an exclusive, high-speed passenger rail system. Accordingly, and
consistent with FRA's approach to regulating TCRR as a system, FRA is
requiring the railroad to develop and define certain image recording
system requirements for inclusion in its inspection, testing, and
maintenance program. Specifically, Sec.  299.449(b)(4) requires TCRR to
define the resolution requirements for outward-facing image recording
devices in its inspection, testing, and maintenance program. TCRR must
ensure such requirements provide sufficient resolution to determine the
position of switch points 50 feet in advance of the trainset (wherever
the outward-facing image recording device may be located) while
operating at speeds of 170 km/h (106 mph) or below (TCRR track class H4
and below), and to capture images in daylight or with normal nighttime
illumination from the trainset's headlight, required by Sec.  299.433.
As the resolution requirements adopted under Sec.  229.136(b)(1)(iii)
are not specifically attuned to exclusively higher speed passenger rail
operations as contemplated by TCRR, FRA has taken into account the
conditions under which the outward-facing image recording devices are
expected to operate. FRA notes that, with respect to switches, facing-
point diverging moves present an increased risk of derailment, or other
accident/incident, compared to other types of moves through a switch,
and TCRR's outward-facing image recording devices must therefore be
able to capture the position of the switch points. However, FRA is also
sensitive to TCRR's concern that at the proposed maximum operating
speeds of 330 km/h (205 mph), it may be difficult for an image
recording device to capture useful images so close to the leading edge
of the trainset. Further, under TCRR's proposed system, facing-point
(switch) diverging moves would occur most commonly when entering a
station location, at lower speeds. Thus, FRA believes it has harmonized
the requirements for outward-facing image recording devices so that
they are suitable for TCRR while still capturing images of the more
crucial movements along TCRR's right-of-way.
    Additionally, Sec.  299.449(c)(1)(i) provides that TCRR will define
the resolution requirements for its inward-facing image recording
devices in its inspection, testing, and maintenance program, ensuring
sufficient resolution to record crewmember actions, including under the
lighting conditions specified in Sec.  299.449(c)(1)(iii).
    TCRR commented on the periodic inspection and download requirements
in proposed paragraph Sec.  229.136(e)(2) to take sample downloads of
the image recording system to confirm operation of the system. TCRR
agreed with APTA's comment on the part 229 proposal,\61\ in which APTA
stated that railroads should be allowed to establish their own
inspection processes for the image recording system. TCRR stated that
such sampling of the image recording system, how often and by whom,
should be established under TCRR's inspection, testing, and maintenance
program. With respect to TCRR, FRA agrees that such requirements should
be developed and defined as part of TCRR's inspection, testing, and
maintenance program, consistent with FRA's overall approach to the
systems-based use of TCRR's inspection, testing, and maintenance
program. Accordingly, Sec.  299.449(e)(2) requires TCRR to define, as
part of its inspection, testing, and maintenance program for its
rolling stock under Sec.  299.445, the requirements for periodic
inspection of and taking sample downloads from its trainset image
recording system. FRA also expects that TCRR's training program
developed under 49 CFR part 243 will include appropriate training and
qualification requirements for the personnel who will be responsible
for inspecting and taking sample downloads from the image recording
system.
---------------------------------------------------------------------------

    \61\ See Docket No. FRA-2016-0036, Docket ID. FRA-2016-0036-0014
at 5-6.
---------------------------------------------------------------------------

    Finally, Sec.  299.449(i) addresses the removal of an image
recording system or device from service and handling for repair. In
commenting on proposed Sec.  229.136(i), the part 229 counterpart to
this section, TCRR essentially echoed APTA's comments on the
proposal.\62\ Specifically, APTA commented that for semi-permanently
coupled trainsets, prohibiting the use of the trainset due to a non-
functioning image recording device or system could lead to an entire
trainset being taken out of service, because individual cars in such
trainsets are not typically uncoupled or freely switched; accordingly,
if it is not possible to repair or replace the defective image
recording device or system by the next calendar day inspection (or, for
TCRR, the next pre-service inspection), the proposal could lead to
removing an entire trainset from service. TCRR therefore suggested that
the regulatory language mirror the statutory language in 49 U.S.C.
20168(j), allowing the image recording device or system to be repaired
or replaced ``as soon as practicable,'' rather than by the next pre-
service inspection.
---------------------------------------------------------------------------

    \62\ See Docket No. FRA-2016-0036, Docket ID. FRA-2016-0036-
0014.
---------------------------------------------------------------------------

    Initially, FRA notes that a requirement to repair or replace a
defective image recording device or system by the next pre-service
inspection would mirror the requirement for event recorders under Sec.
299.439(d). Additionally, FRA is treating the image recording system as
a safety device under part 218 and, accordingly, expects that the
railroad will make preparations to be able to repair or replace a non-
functioning image recording device or system within the timeframe
permitted under the regulation. FRA is also treating TCRR trainsets
similar to Amtrak's semi-permanently coupled, high-speed trainsets
operated exclusively in a designated rail corridor, which are not
subject to Sec.  229.136(i)'s exception for long-distance intercity
passenger trains.\63\ Moreover, FRA makes clear that Sec.  299.449 does
not prohibit TCRR from using a trainset in revenue service beyond the
next pre-service inspection that has only one cab end with a non-

functioning image recording device, provided the system is properly
functioning in the cab end that is the leading end of the trainset.
Accordingly, Sec.  299.449(i) as adopted in this final rule makes this
distinction clear. For clarity, FRA provides two examples to illustrate
application of this rule text.
---------------------------------------------------------------------------

    \63\ Section 229.136(i) cross-references the definition of long-
distance intercity passenger train in Sec.  238.5, which excludes
passenger trains operated exclusively on Amtrak's Northeast Corridor
regardless of the distance between large cities serviced.
---------------------------------------------------------------------------

     Example 1 (Trainset A, with cab ends 1 and 2): Trainset A
is found to have a non-functioning image recording device in cab end 1
(its outward-facing image recording device), and TCRR has it properly
taken out service under Sec.  299.449(i)(2). The inward-facing
recording device in cab end 1 is still fully functional, along with the
event recorder and all image recording devices in cab end 2. After the
image recording device in cab end 1 is taken out of service, cab end 1
can remain the leading cab end of the trainset only until the next pre-
service inspection required under the railroad's inspection, testing,
and maintenance program, and then the railroad would be required to
repair or replace the image recording device before cab end 1 could be
used as the leading end for trainset A in revenue service. However,
should the railroad elect, the railroad could keep trainset A in
service beyond the next pre-service inspection so long as all image
recording devices in cab end 2 remained fully functional, along with
the event recorder and all other required components. The railroad is