[Federal Register Volume 84, Number 142 (Wednesday, July 24, 2019)]
[Proposed Rules]
[Pages 35712-35747]
[FR Doc No: 2019-14407]

Vol. 84

Wednesday,

No. 142

July 24, 2019

Part II

Department of Transportation

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Federal Railroad Administration

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

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

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

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 217, 218, 229, 240 and 242

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

Locomotive Image and Audio Recording Devices for Passenger Trains

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to require the installation of inward- and
outward-facing locomotive image recording devices on all lead
locomotives in passenger trains, and that these devices record while a
lead locomotive is in motion and retain the data in a crashworthy
memory module. FRA also proposes to treat locomotive-mounted recording
devices on passenger locomotives as ``safety devices'' under existing
Federal railroad safety regulations to prohibit tampering with or
disabling them. Further, this NPRM would govern the use of passenger
locomotive recordings to conduct operational tests to determine
passenger railroad operating employees' compliance with applicable
railroad rules and Federal regulations. FRA requests comment on the
need for and effects of potential, additional safety requirements.

DATES: Written comments on this proposed rule must be received on or
before September 23, 2019. Comments received after that date will be
considered to the extent possible without incurring additional expense
or delay.
    FRA anticipates being able to resolve this rulemaking without a
public hearing. However, if prior to August 23, 2019, FRA receives a
specific request for a public hearing accompanied by a showing that the
party is unable to adequately present his or her position by written
statement, a hearing will be scheduled and FRA will publish a
supplemental notice in the Federal Register to inform interested
parties of the date, time, and location of any such hearing.

ADDRESSES: You may submit comments identified by the docket number FRA-
2016-0036 by any one of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting
comments;
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays; or
     Fax: 1-202-493-2251.
    Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking (2130-AC51). Note that all comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided. Please see the Privacy Act heading in the
SUPPLEMENTARY INFORMATION section of this document for Privacy Act
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Brian Roberts, Trial Attorney, Office
of Chief Counsel, FRA, 1200 New Jersey Avenue SE, RCC-10, Mail Stop 10,
Washington, DC 20590 (telephone<PHONE_NUMBER> or<PHONE_NUMBER>); Gary
G. Fairbanks, Staff Director, Motive Power & Equipment Division, Office
of Safety Assurance and Compliance, FRA, 1200 New Jersey Avenue SE,
RRS-15, Mail Stop 25, Washington, DC 20590 (telephone<PHONE_NUMBER>);
or Christian Holt, Operating Practices Specialist, Operating Practices
Division, Office of Safety Assurance and Compliance, FRA, 1200 New
Jersey Avenue SE, RRS-15, Mail Stop 25, Washington, DC 20590 (telephone
(202) 366-0978).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Rulemaking Authority and FAST Act Requirements
III. Background
    A. Railroad Accidents & NTSB Locomotive Recorder Recommendations
    1. NTSB Safety Recommendation R-97-009
    2. NTSB Safety Recommendation R-07-003
    3. NTSB Safety Recommendations R-10-01 & -02
    i. 2008 Metrolink Accident at Chatsworth, California
    ii. 2015 Amtrak Accident at Philadelphia, Pennsylvania
    iii. Other Railroad Accidents
    B. FRA Responses to NTSB Recommendations R-10-01 & -02 & Current
Position
    C. Current Use of Recording Devices To Improve Safety & Security
in Rail and Other Modes of Transportation
IV. Railroad Safety Advisory Committee Proceedings
V. Privacy Concerns
VI. Additional Items for Comment
    A. Mandatory Installment of Inward- and Outward-Facing Recording
Devices on Freight Locomotives
    B. Audio Recording Devices
    C. Recording Device Run-Time/Shutoff When Trains Stop Moving
VII. Section-by-Section Analysis
VIII. Regulatory Impact and Notices
    A. Executive Order 12866, Executive Order 13563, Executive Order
13771, and DOT Regulatory Policies and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment
    1. Reasons for Considering Agency Action
    2. A Succinct Statement of the Objectives of, and the Legal
Basis for, the Proposed Rule
    3. A Description of, and Where Feasible, an Estimate of the
Number of Small Entities to Which the Proposed Rule Would Apply
    4. A Description of the Projected Reporting, Recordkeeping, and
Other Compliance Requirements of the Rule, Including an Estimate of
the Class of Small Entities That Will Be Subject to the Requirements
and the Type of Professional Skill Necessary for Preparation of the
Report or Record
    5. Identification, to the Extent Practicable, of All Relevant
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. Environmental Impact
    F. Executive Order 12898 (Environmental Justice)
    G. Executive Order 13175 (Tribal Consultation)
    H. Unfunded Mandates Reform Act of 1995
    I. Energy Impact
    J. Trade Impact
    K. Privacy Act

I. Executive Summary

    On December 4, 2015, President Obama signed into law the Fixing
America's Surface Transportation Act, Public Law 114-94, 129 Stat. 1686
(Dec. 4, 2015) (FAST Act). Section 11411 of the FAST Act, codified in
the Federal railroad safety laws at 49 U.S.C. 20168 (the Statute),
requires FRA (as the Secretary of Transportation's delegate)

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

potential security risks both inside and outside of the locomotive cab.
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    \4\ See Transportation Safety Board of Canada, Railway Safety
Issues Investigation Report: Expanding the use of locomotive voice
and video recorders in Canada. Report no. R16H0002 (2016). The
report has been placed in the docket for this rulemaking and is
available at: http://www.bst-tsb.gc.ca/eng/rapports-reports/rail/etudes-studies/r16h0002/r16h0002.asp.
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    While the literature reviewed by FRA identified several qualitative
benefits associated with locomotive recording devices, FRA was unable
to find in its literature review any sources that specifically help
quantify those benefits, and therefore invites comment and the
submission of any data or studies that would help FRA quantify the
benefits of inward- and outward-facing locomotive recording devices in
this rulemaking.

II. Rulemaking Authority and FAST Act Requirements

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

employees or other operating employees, or between such operating
employees and communication center employees, related to an accident or
incident FRA is investigating. FRA may make public a transcript or a
written depiction of visual information it deems relevant to the
accident at the time other factual reports on the accident are released
to the public. This statutory provision is discussed in more detail in
the preamble sections addressing privacy and locomotive recording-
handling below.
    Paragraph (i) of the Statute prohibits a railroad subject to this
provision from using an in-cab audio or image recording to retaliate
against an employee. FRA believes this provision to be a restatement of
existing prohibitions in Federal, State, and local laws that prohibit
retaliation against railroad employees, and merely establishes that
recordings may not be used as a tool to conduct such illegal
retaliation. FRA does not believe Congress intended this provision to
apply to railroad rules' violations discovered via railroad review of
audio and video recordings under a railroad's established procedures.
The purpose of this section and the relevant NTSB recommendations
addressing this topic are to identify and address safety violations,
such as the prohibited use of personal electronic devices while
performing safety-critical duties that endanger public safety.
Railroads take disciplinary actions for such rules' violations now (in
the absence of locomotive recordings) under the existing legal
framework and collective bargaining agreements governing railroad
employment. Accordingly, FRA understands this section to address
illegal retaliation implicated by existing statutes such as the
railroad employee whistleblower law at 49 U.S.C. 20109, and which are
addressed via grievance process remedies for wrongful discharge under
the Railway Labor Act, 45 U.S.C. 151 et seq. Paragraph (i) is silent
about freight locomotive recordings because by its terms section 11411
only applies to passenger railroads. However, for passenger railroads,
FRA has addressed Congress' intent regarding retaliation in the rule
text proposed below. The rule would limit the permitted uses of
locomotive recordings and proposes to require that operational tests
involving review of in-cab locomotive recordings be randomly conducted
within limited time frames under an established written railroad
procedure that is subject to FRA review.
    Finally, paragraph (j) makes clear the Statute does not restrict a
train from continuing in operation upon the occurrence of a locomotive
recording device failure. Nonetheless, the Statute requires the
railroad to repair or replace the recording device as soon as
practicable. FRA's proposal in Sec.  229.136, below, is consistent with
this provision, and defines ``as soon as practicable'' to mean that the
locomotive must be replaced as the lead locomotive no later than after
the next calendar day's inspection if the recording device system has
not been repaired or replaced.

III. Background

A. Railroad Accidents & NTSB Locomotive Recorder Recommendations

    In developing this proposed rule, FRA reviewed relevant railroad
accidents as well as related Safety Recommendations NTSB issued to FRA
involving audio and image recordings. Based on FRA's analysis of these
accidents and related NTSB Recommendations (discussed immediately
below), FRA determined that the requirements of this proposed rule
would achieve safety benefits in two primary ways. First, the proposed
requirements of this NPRM, if adopted, would provide critical post-
accident data, which would help FRA (as well as other Federal and state
agencies, railroads, labor groups, and other stakeholders) ascertain
the cause of accidents for purposes of preventing future accidents.
Second, FRA believes requiring inward-facing recording devices on all
lead locomotives in passenger trains would be a deterrent against
illegal and unsafe practices that can cause accidents.
1. NTSB Safety Recommendation R-97-009
    On February 16, 1996, a Maryland Rail Commuter (MARC) passenger
train collided with a National Railroad Passenger Corporation (Amtrak)
passenger train near Silver Spring, Maryland. Eleven people were killed
and 26 people were injured as a result of the accident. The accident
occurred when MARC train 286 was delayed in block for a station stop
while operating on an ``approach'' signal indication requiring the
train to approach the next signal prepared to stop. However, MARC train
286 proceeded after making the station stop as if operating on a
``clear'' signal indication, could not stop for the subsequent ``stop''
signal, and collided with Amtrak train 3 at Georgetown Junction. The
NTSB, which is the independent Federal agency charged by Congress with
investigating significant transportation accidents, to include railroad
accidents, found that the probable cause of the accident was, in part,
``the apparent failure of the [MARC] engineer and the traincrew because
of multiple distractions to operate MARC train 286 according to signal
indications . . . .'' \6\
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    \6\ National Transportation Safety Board, Collision and
Derailment of Maryland Rail Commuter MARC Train 286 and National
Railroad Passenger Corporation Amtrak Train 29 Near Silver Spring,
Maryland on February 16, 1996. Railroad Accident Report NTSB/RAR-97/
02 (July 3, 1997); available online at http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR9702.pdf.
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    As a result of this accident, the NTSB made recommendation R-97-009
to FRA, recommending that FRA amend 49 CFR part 229 to ``require the
recording of train crewmembers' voice communications for exclusive use
in accident investigations and with appropriate limitations on the
public release of such recordings.'' \7\ In making the recommendation,
NTSB stated that during its investigation, it could not document crew
communications regarding signal indications as the train approached the
location where the accident occurred and that locomotive event
recorders cannot answer questions about a train crew's knowledge or
actions during accident investigations. All three operating crew
members aboard MARC train 286 were killed in the accident. NTSB pointed
to the long history of cockpit voice recorders (CVR) in the aviation
industry, as mandated by the FAA in certain commercial aviation
operations since 1964.\8\ The NTSB explained that the use of CVRs had
been useful during aviation accident investigations and were ``an
almost necessary tool in documenting the operational decisions or
mistakes of the crew that lead up to an accident.'' \9\
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    \7\ National Transportation Safety Board, Safety Recommendation
R-97-009 (Aug. 28, 1997); available online at: http://www.ntsb.gov/safety/safety-recs/recletters/R97_9_21.pdf.
    \8\ Supra, n. 6 at 51.
    \9\ Supra, n. 6 at 52.
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    NTSB reiterated its recommendation after a January 1999 collision
near Bryan, Ohio, involving three Consolidated Rail Corporation
(Conrail) freight trains. The accident occurred when westbound Conrail
train Mail-9 was traveling 56 mph and struck the rear of a slower
moving freight train ahead of it that was also traveling westbound.
Both trains derailed, with derailed equipment then striking and
derailing a third freight train that was traveling the opposite
(eastbound) direction on an adjacent main track.
    The NTSB found that the probable cause of that accident was ``the
failure of the crew of train Mail-9 [striking train] to comply with
restrictive signal indications while operating at or near maximum
authorized speed in dense

fog.'' \10\ Both crew members of the striking train in that incident
were killed and NTSB concluded that recorded crew communications might
have provided valuable clues in reconstructing the accident, which
could have ``possibly enabled the carrier, the railroad unions, and the
Federal Railroad Administration to make systemic changes to prevent
similar accidents from occurring.'' \11\ The NTSB report also cited new
statutory authority, codified at 49 U.S.C. 1114(d), that included
provisions for the NTSB to protect such recordings from public
disclosure during accident investigations.
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    \10\ National Transportation Safety Board, Collision Involving
Three Consolidated Rail Corporation Freight Trains Operating in Fog
on a Double Main Track Near Bryan, Ohio January 17, 1999. Railroad
Accident Report NTSB/RAR-01/01 (May 9, 2001); available online at:
http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0101.pdf.
    \11\ Id. at 47.
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    FRA declined to implement NTSB Recommendation R-97-009, which only
recommended the installation of audio recorders, but not image
recording devices. At that time, FRA agreed that crew audio recordings
could be beneficial for some investigations, but conveyed its concerns
to NTSB regarding implementation of the recommendation, which included
the significant costs of such a requirement, the existing availability
of locomotive event recorder data, competing regulatory priorities, and
concern regarding the privacy and comfort of train crews.\12\ FRA
stated the recommendation might warrant re-examination in the future,
but requested it be placed in the status of ``Closed--Reconsidered.''
NTSB ultimately classified the recommendation as ``Closed--Unacceptable
Action'' in 2004.\13\
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    \12\ National Transportation Safety Board, Safety Recommendation
History for Safety Recommendation R-97-009: Available online at:
http://www.ntsb.gov/investigations/data/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-97-009.
    \13\ Id.
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2. NTSB Safety Recommendation R-07-003
    Several years later, on July 10, 2005, two Canadian National
Railway Company (CN) freight trains collided near Anding, Mississippi.
The accident occurred in single-main track territory after the crew of
a northbound CN train passed a stop signal without stopping and
collided head-on with a southbound CN train. The crews of both trains
were killed in the accident. The NTSB's probable cause finding stated
the northbound train crew's ``attention to the signals was most likely
reduced by fatigue; however, due to the lack of a locomotive cab voice
recorder or the availability of other supporting evidence, other
factors cannot be ruled out.'' \14\ The NTSB concluded that if a
locomotive voice recorder had been installed on the controlling
locomotive of the northbound train and survived the collision and
resulting fire, the recordings would ``yield a better understanding of
the cause of the accident and of the ways it might have been
prevented.'' \15\ As a result, NTSB issued Safety Recommendation R-07-
003, recommending FRA require railroads to install on locomotives a
crash and fire protected voice recorder, or combined voice and video
recorder, with the recordings only to be used for accident
investigations.\16\ The NTSB referenced several other accidents \17\ in
making this recommendation in which it believed locomotive video
recordings would have been useful in investigating the accidents.
---------------------------------------------------------------------------

    \14\ National Transportation Safety Board, Collision of Two CN
Freight Trains Anding, Mississippi July 10, 2005, Railroad Accident
Report NTSB/RAR-07/01 (Mar. 20, 2007); available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0701.pdf.
    \15\ Id.
    \16\ National Transportation Safety Board, Safety Recommendation
R-07-003 (Apr. 25, 2007); available online at: http://www.ntsb.gov/safety/safety-recs/recletters/R07_1_3.pdf.
    \17\ See, e.g., National Transportation Safety Board, Collision
Between Two BNSF Railway Company Freight Trains Near Gunter, Texas,
May 19, 2004, Railroad Accident Report NTSB/RAR-06/02 (June 13,
2006); National Transportation Safety Board, Collision of Union
Pacific Railroad Train MHOTU-23 With BNSF Railway Company Train
MEAP-TUL-126-D With Subsequent Derailment and Hazardous Materials
Release, Macdona, Texas, June 28, 2004, Railroad Accident Report
NTSB/RAR-06/03 (July 7, 2006); National Transportation Safety Board,
Collision of Two Union Pacific Railroad Freight Trains, Texarkana,
Arkansas, October 15, 2005, Railroad Accident Brief NTSB/RAB-06/04
(Oct. 17, 2006).
---------------------------------------------------------------------------

    FRA responded to this NTSB recommendation, stating FRA had broached
the subject of the NTSB's recommendation regarding voice recorders on
two occasions with the RSAC in 2007 without resolution, and planned to
discuss the recommendation again at a future RSAC meeting.\18\ FRA's
response also noted technical concerns with implementing the NTSB
recommendation, and discussed its previously-raised privacy and cost-
related concerns.\19\ A later NTSB response noted FRA had indeed
discussed the recommendation at a November 2007 RSAC Locomotive Working
Group meeting, and classified FRA's response to the recommendation as
``Open--Acceptable Response.'' However, Recommendation R-07-003 was
ultimately classified by NTSB as ``Closed--Unacceptable Action/
Superseded,'' on February 23, 2010, after adoption of the report
addressing the September 12, 2008, Metrolink accident in Chatsworth,
California, discussed directly below.\20\
---------------------------------------------------------------------------

    \18\ National Transportation Safety Board, Safety Recommendation
History for Safety Recommendation R-07-003: Available online at:
http://www.ntsb.gov/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-07-003.
    \19\ Id.
    \20\ Id.
---------------------------------------------------------------------------

3. NTSB Safety Recommendations R-10-01 & -02
i. 2008 Metrolink Accident at Chatsworth, California
    On September 12, 2008, in Chatsworth, California, a collision
occurred between a Metrolink passenger train and a Union Pacific
Railroad Company (UP) freight train,\21\ after the locomotive engineer
operating the Metrolink passenger train failed to stop his train for a
stop signal. As a result of the accident, 25 persons on the Metrolink
train were killed and 102 injured passengers were transported to the
hospital. Property damage was estimated to be more than $12 million.
The NTSB found the probable cause of the accident was the Metrolink
locomotive engineer's distraction due to the use of a personal cell
phone to send text messages resulting in a failure to comply with the
signal indication.\22\
---------------------------------------------------------------------------

    \21\ See National Transportation Safety Board, Collision of
Metrolink Train 111 With Union Pacific Train LOF65-12 Chatsworth,
California September 12, 2008, Accident Report NTSB/RAR-10/01 (Jan.
21, 2010); available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1001.pdf.
    \22\ Id. at 66.
---------------------------------------------------------------------------

    Shortly after the Metrolink accident, the Rail Safety Improvement
Act of 2008 \23\ (RSIA) was enacted and mandated, among other items,
that railroads install PTC systems. Also after the accident, FRA issued
its Emergency Order No. 26 (E.O. 26). 73 FR 58702 (Oct. 7, 2008). E.O.
26 prohibited railroad operating employees (typically train crew
members such as locomotive engineers and conductors) performing safety-
related duties from using or turning on electronic devices such as
personal cell phones. The requirements in E.O. 26 were codified in
amended form at 49 CFR part 220, subpart C, in an FRA final rule
published on September 27, 2010, which took effect on March 28, 2011.
75 FR 59580. Among other requirements in the final rule, railroad
operating employees are required to receive training on the

regulation's requirements governing the use of electronic devices while
on duty and are also required to be tested by railroad supervisors to
determine the employees' compliance with such requirements. 49 CFR
220.313-220.315.
---------------------------------------------------------------------------

    \23\ Public Law 110-432, Division A, 122 Stat. 4848 (Oct. 16,
2008).
---------------------------------------------------------------------------

    The NTSB's report on the Chatsworth accident resulted in two Safety
Recommendations, R-10-01 and R-10-02.\24\ Safety Recommendation R-10-01
superseded Safety Recommendation R-07-003, and recommended that FRA:
---------------------------------------------------------------------------

    \24\ National Transportation Safety Board, Safety
Recommendations R-10-01 and R-10-02 (Feb. 23, 2010); available
online at: http://www.ntsb.gov/safety/safety-recs/recletters/R-10-001-002.pdf.

    Require the installation, in all controlling locomotive cabs and
cab car operating compartments, of crash- and fire-protected inward-
and outward-facing audio and image recorders capable of providing
recordings to verify that train crew actions are in accordance with
rules and procedures that are essential to safety as well as train
operating conditions. The devices should have a minimum 12-hour
continuous recording capability with recordings that are easily
accessible for review, with appropriate limitations on public
release, for the investigation of accidents or for use by management
in carrying out efficiency testing and systemwide performance
monitoring programs.
    In addition, Safety Recommendation R-10-02 recommended that FRA:
    Require that railroads regularly review and use in-cab audio and
image recordings (with appropriate limitations on public release),
in conjunction with other performance data, to verify that train
crew actions are in accordance with rules and procedures that are
essential to safety.

    The NTSB's recommendations in response to the Chatsworth accident
differed from its previous recommendations regarding locomotive
recording devices. FRA believes the prior recommendations were
primarily made intending that locomotive recordings would be used as a
post-accident investigation tool with the goal of gaining insight into
accident causes to appropriately direct safety recommendations to
prevent similar accidents from occurring. Recommendations R-10-01 and
R-10-02 shared those same goals, but also recommended FRA require
regular railroad review of recordings be part of a railroad's
operational (efficiency) testing program as a proactive accident
prevention tool to gauge employee compliance with applicable rules.
Under existing 49 CFR 217.9, railroads are required to have an
operational testing program to gauge employee compliance with relevant
operating rules, timetables, and special instructions. Under the NTSB's
recommendations, FRA would also require railroads to review locomotive
image and audio recordings to conduct such operational tests.
    In issuing these recommendations, the NTSB's report on the
Chatsworth accident explained that the engineer on the Metrolink train
who caused the accident knowingly violated railroad rules regarding the
use of personal electronic devices while operating his train.\25\ The
NTSB explained that in the relative privacy of the locomotive cab, the
locomotive engineer of the Metrolink train (as is the case with most
train operations in this country) could use his personal cell phone
without any possibility of being caught, except when a railroad manager
might physically be in or near the cab of the locomotive.\26\ However,
NTSB posited that if the engineer had known he was being recorded, and
railroad supervisors would regularly review the recordings, such rules'
violations would have been deterred.\27\
---------------------------------------------------------------------------

    \25\ Supra, n. 21 at 55.
    \26\ Id. at 57.
    \27\ Id. at 58.
---------------------------------------------------------------------------

ii. 2015 Amtrak Accident at Philadelphia, Pennsylvania
    On Tuesday, May 12, 2015, Amtrak passenger train 188 (Train 188)
was traveling from Washington, DC, to New York City. Aboard the train
were five crew members and approximately 238 passengers. Shortly after
9:20 p.m., the train derailed while traveling through a curve in the
track at Frankford Junction in Philadelphia, Pennsylvania. As a result
of the accident, eight persons were killed and a significant number of
persons were seriously injured. The accident was investigated by NTSB,
which took the lead role conducting the investigation of this accident
under its legal authority. 49 U.S.C. 1101 et seq.; 49 CFR 831.2(b). As
is customary, FRA participated in the NTSB's investigation and also
investigated the accident under its own statutory authority.
    Both NTSB's \28\ and FRA's \29\ accident investigations concluded
that excessive train speed was the cause of the accident. As Train 188
approached the curve from the west, it traveled over a straightaway
with a maximum authorized passenger train speed of 80 mph. The maximum
authorized passenger train speed for the curve was 50 mph. NTSB
determined the train was traveling approximately 106 mph within the
curve's 50-mph speed restriction, exceeding the maximum authorized
speed on the straightaway by 26 mph and on the curve by 56 mph.\30\
NTSB has also indicated the locomotive engineer operating the train
made an emergency application of Train 188's air brake system, and the
train slowed to approximately 102 mph before derailing in the curve.
---------------------------------------------------------------------------

    \28\ National Transportation Safety Board, Derailment of Amtrak
Passenger Train 188, Philadelphia, Pennsylvania, May 12, 2015. NTSB
Accident Report NTSB/RAR-16/02 (May 17, 2016); available online at:
https://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1602.pdf.
    \29\ Federal Railroad Administration, Accident Investigation
Report HQ-2015-1052, Amtrak (ATK), Philadelphia, PA, May 12, 2015;
available online at: https://www.fra.dot.gov/eLib/details/L18424#p1_z50_gD_lAC.
    \30\ FRA regulations provide, in part, that it is unlawful to
``[o]perate a train or locomotive at a speed which exceeds the
maximum authorized limit by at least 10 miles per hour.'' 49 CFR
240.305(a)(2).
---------------------------------------------------------------------------

    On July 8, 2015, NTSB sent a letter to FRA reiterating NTSB
recommendations R-10-01 & -02.\31\ NTSB's letter explained the engineer
of Amtrak 188 stated he could not recall the events leading up to the
derailment, and that investigators have been unable to determine
information about the engineer's behavior in the moments leading up to
the accident.\32\ The letter indicated NTSB believes inward-facing
locomotive recorders could have provided valuable information to help
determine the cause of the accident. In sum, given that information on
the actions of the engineer before the accident was lacking, there are
potentially critical pieces of information missing about the cause of
this accident that resulted in the deaths of eight people. After this
accident occurred, Amtrak equipped its ACS-64 locomotives on the
Northeast Corridor with inward-facing cameras.
---------------------------------------------------------------------------

    \31\ National Transportation Safety Board, Safety Recommendation
History for Safety Recommendation R-10-001: Available online at:
http://www.ntsb.gov/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-10-001. NTSB also sent a letter regarding
locomotive recorder recommendations to Amtrak.
    \32\ However, the NTSB's analysis of the engineer's phone
records does not indicate that any calls, texts, or data usage
occurred during the time the engineer was operating the train.
National Transportation Safety Board, Second Update on its
Investigation into the Amtrak Derailment in Philadelphia (June 10,
2015); available online at: http://www.ntsb.gov/news/press-releases/Pages/PR20150610.aspx.
---------------------------------------------------------------------------

iii. Other Railroad Accidents
    The NTSB reiterated Safety Recommendations R-10-01 & -02 in
response to other railroad accidents at Red Oak, Iowa; \33\ Two
Harbors,

Minnesota; \34\ Chafee, Missouri; \35\ and Goodwell, Oklahoma,\36\
respectively. The NTSB has also made similar recommendations to
railroads regarding the installation and use of locomotive image and
audio recording devices (see, e.g., NTSB Safety Recommendations R-14-08
& -09 \37\ to the Metro-North Railroad after the December 2013 accident
near Spuyten Duyvil Station in Bronx, New York, in which four Metro-
North passengers were killed). These accidents all appear to involve
human factor causes, but absent locomotive recordings there is a lack
of information regarding the crew actions leading up the accidents.
---------------------------------------------------------------------------

    \33\ National Transportation Safety Board, Collision of BNSF
Coal Train With the Rear End of Standing BNSF Maintenance-of-Way
Equipment Train, Red Oak, Iowa April 17, 2011, NTSB Accident Report
NTSB/RAR-12/02 (Apr. 24, 2012); available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1202.pdf.
    \34\ National Transportation Safety Board, Collision of Two
Canadian National Railway Freight Trains near Two Harbors,
Minnesota, September 30, 2010. NTSB Accident Report NTSB/RAR-13/01/
SUM (Feb. 12, 2013); available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1301.pdf.
    \35\ National Transportation Safety Board, Collision of Union
Pacific Railroad Freight Train with BNSF Railway Freight Train Near
Chaffee, Missouri, May 25, 2013. NTSB Accident Report NTSB/RAR-14/02
(Nov. 17, 2014); available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1402.pdf.
    \36\ National Transportation Safety Board, Head-On Collision of
Two Union Pacific Railroad Freight Trains Near Goodwell, Oklahoma,
June 24, 2012. NTSB Accident Report NTSB/RAR-13/02 (June 18, 2013);
available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1302.pdf.
    \37\ National Transportation Safety Board, Safety
Recommendations R-14-07 & R-14-08 (Feb. 18, 2014); available online
at: http://www.ntsb.gov/safety/safety-recs/recletters/R-14-007-009.pdf.
---------------------------------------------------------------------------

    For example, in the 2011 Red Oak, Iowa, accident, a BNSF Railway
Company (BNSF) freight train crew failed to operate their train at
restricted speed as required by signal indication, and collided with
the rear end of a standing train. Both crew members of the striking
train were killed. The NTSB's probable cause determination indicated
the cause of the accident was fatigue-related.\38\ However, the NTSB
noted that without visual evidence of the crewmembers' actions while
operating the striking train, valuable information about their
performance was not available to accident investigators (a forward-
facing video recording from the striking train did not survive the
collision and subsequent fire).\39\ The NTSB's report stated that a
video recording's value in preventing future accidents ``cannot be
overstated,'' as installation of such cameras could assist in
monitoring compliance with railroads' rules and identifying fatigued
locomotive engineers, such that intervention might happen before an
accident occurs.\40\
---------------------------------------------------------------------------

    \38\ Supra, n. 33 at 72.
    \39\ Id. at 67.
    \40\ Id. at 66.
---------------------------------------------------------------------------

    The NTSB similarly discussed inward-facing cameras in its report on
the 2012 Goodwell, Oklahoma accident, which occurred when a UP crew
failed to comply with wayside signal indications and were killed in a
subsequent collision with another freight train.\41\ The NTSB indicated
that causal factors included the locomotive engineer's apparent vision
problems and the conductor's disengagement from his duties.\42\
However, NTSB stated that an inward-facing locomotive video recording
could have ``shed light on the activities of the [crew] leading up to
the collision and why the crew did not respond to wayside signals.''
\43\
---------------------------------------------------------------------------

    \41\ Supra, n. 36 at pp. 34-37.
    \42\ Id. at 44-45.
    \43\ Id. at. 35.
---------------------------------------------------------------------------

    FRA has similarly identified the value of inward-facing image
recordings for other recent accidents not listed above that might
provide the only means of conclusively determining what caused or
contributed to an accident, and, more importantly, to develop necessary
corrective actions to prevent similar train accidents from occurring.
For example, a 2013 accident near Amarillo, Texas,\44\ and a 2011
accident near Mineral Springs, North Carolina,\45\ both occurred after
train crews qualified on the physical characteristics of the territory
operated their trains significant distances past dark signals without
taking any action to slow or stop their trains. In fact, the striking
train in the Mineral Springs accident increased train speed from 31 mph
to 48 mph after passing the dark signal. The crewmembers in the Mineral
Springs accident were killed in the collision, and the crewmembers in
the Amarillo accident were, in FRA's view, unable to definitively
articulate reasons why they did not operate their train in compliance
with applicable railroad rules. The NTSB found the probable cause of
both accidents involved the crews' failure to comply with applicable
rules governing train speeds upon encountering dark signals. Inward-
facing image recordings would have provided visual information about
crew actions and performance leading up to these accidents, enabling
railroads and investigators to accurately determine the root cause of
the accidents. Without such recordings, regulatory and industry efforts
to learn about and ultimately prevent such incidents are inhibited.
---------------------------------------------------------------------------

    \44\ National Transportation Safety Board, Collision Involving
Three BNSF Railway Freight Trains near Amarillo, Texas, September
25, 2013. NTSB Accident Report NTSB/RAR-15/02 (June 25, 2015);
available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1502.pdf.
    \45\ National Transportation Safety Board, Railroad Accident
Brief NTSB/RAB-13-01 (Jan. 29, 2013); available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAB1301.pdf.
---------------------------------------------------------------------------

    The NTSB's reiteration of Safety Recommendations R-10-01 & -02 in
response to the 2010 Two Harbors, Minnesota, accident was related to
the prohibited use of personal electronic devices by train crew
members. In that accident, a CN train crew failed to properly comply
with an after-arrival mandatory directive and struck another freight
train traveling the opposite direction on single main track. The NTSB's
investigation indicated that four of the five crewmembers on the two
trains involved in the accident had used their personal cell phones
while on duty on the date of the accident contrary to applicable
railroad rules and FRA's E.O. 26 discussed above.\46\ The NTSB
concluded the use of cell phones by crewmembers on both trains involved
in the accident was a distraction to the safe operation of the
trains,\47\ and cited a list of past rail transportation accidents it
had investigated where personal electronic device use by train crews
was a causal factor.
---------------------------------------------------------------------------

    \46\ Supra, n. 34 at 20.
    \47\ Id.
---------------------------------------------------------------------------

    Those accidents include the May 2004 accident near Gunter, Texas
(cited above) where there was significant personal cell phone usage by
crew members of both trains involved in the accident while the trains
were being operated (accident resulting in the death of one train
crewmember).\48\ They also include a May 2002 accident involving two
BNSF freight trains near Clarendon, Texas,\49\ resulting in critical
injuries to the crew of a coal train where the probable cause of the
accident involved the locomotive engineer's use of a personal cell
phone during a safety-critical time period. Finally, the report cited a
May 2009 accident involving two Massachusetts Bay Transportation
Authority light rail passenger trains (not subject to FRA's
jurisdiction) in Boston, Massachusetts, stemming from the train
operator's use of a phone to send text messages resulting in injuries
to 68 persons.\50\
---------------------------------------------------------------------------

    \48\ Supra, n. 17 at p. 39.
    \49\ National Transportation Safety Board, Collision of Two
Burlington Northern Santa Fe Freight Trains Near Clarendon,Texas May
28, 2002, Railroad Accident Report NTSB/RAR-03/01 (June 3, 2003);
available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0301.pdf.
    \50\ National Transportation Safety Board, Collision of Two
Massachusetts Bay Transportation Authority Light Rail Passenger
Trains, Boston, Massachusetts, May 8, 2009, Railroad Accident Brief
NTSB/RAB-11/06 (Apr. 13, 2011); available online at: http://www.ntsb.gov/investigations/AccidentReports/Reports/RAB1106.pdf.
Though not subject to FRA's jurisdiction, this accident was notable
in that it was caused by a train operator's failure to respond to
signal indication because he was text messaging on a personal
electronic device.

---------------------------------------------------------------------------

    The NTSB's discussion in the Two Harbors report about the train
crews' prohibited personal cell phone use was in the context of the
value of locomotive recording devices and other technologies as a tool
to deter the unsafe act of the use of personal electronic devices by
train crews.\51\ The NTSB indicated that additional measures were
necessary (such as recording devices and cell phone detectors) to
combat what it described as a ``pervasive safety hazard in the rail
industry; that is, the unauthorized use of [personal electronic devices
(PEDs)] by on-duty crewmembers is too difficult to prevent by rules,
policies, and punitive consequences.'' \52\
---------------------------------------------------------------------------

    \51\ Supra, n. 34 at 23-24.
    \52\ Id. at 24.
---------------------------------------------------------------------------

    In addition to the train accidents described above that involved
the unauthorized use of personal electronic devices, FRA has
investigated several other railroad accidents or violations of Federal
railroad safety regulations related to the unauthorized use of personal
electronic devices by on-duty railroad employees. These incidents
primarily involve the use of personal cell phones.
    Despite Federal prohibitions on the use of personal electronic
devices that have been in place for many years and required training
and testing for all railroad operating employees under Sec. Sec.
220.313-220.315, railroad incidents involving the prohibited use of
personal electronic devices that endanger the lives of the public and
railroad employees continue to occur. Recently, FRA investigated a
troubling incident where a passenger railroad showed FRA a video
recording of one of its locomotive engineers who appeared to be using
his personal cell phone while operating a passenger train occupied by
over 400 passengers. The results of an investigatory subpoena indicate
the engineer appeared to routinely use his personal cell phone in
violation of the prohibitions in 49 CFR part 220 while operating
passenger trains.
    FRA is currently investigating other incidents where personal
electronic device use and train crew distraction may be at issue. FRA
will take enforcement action, if appropriate, to address violations of
Federal regulations governing the use of personal electronic devices
during safety-critical periods of time. However, FRA believes the
proactive use of locomotive recordings to perform operational tests
(i.e., to monitor compliance with Federal regulations and railroad
rules prohibiting the use of personal electronic devices) and
investigate incidents or complaints of noncompliance of which railroads
become aware, will discourage the occurrence of these safety
violations. Railroad operating employees often perform a significant
portion of their duties in the confines of locomotives and/or rail cars
or in remote locations. As noted by NTSB, these locations are often not
in the physical vicinity of, or in locations easily observed by,
railroad supervisors. As such, compliance with Federal regulations and
railroad rules governing the use of electronic devices is difficult to
determine and is often based on an honor system. Inward-facing video
recordings provide railroad supervisors and safety investigators
evidence to determine operating employee compliance with FRA and
railroad prohibitions on the use of distracting personal electronic
devices while operating trains and performing other safety-sensitive
duties. FRA is aware that railroads that have installed in-cab cameras
have detected instances of prohibited use of personal electronic device
use by operating crew members.

B. FRA Responses to NTSB Recommendations R-10-01 & -02 & Current
Position

    As discussed above, after the NTSB's initial locomotive
crewmembers' voice recorder recommendation in response to the 1996
Silver Spring, Maryland accident, FRA declined to require such devices,
noting the significant costs of such a requirement, the existing
availability of locomotive event recorder data, competing regulatory
priorities, and concern regarding the privacy and comfort of train
crews. Nonetheless, FRA's initial responses to the most recent NTSB
Safety Recommendations R-10-01 & -02 on voice and image recorders
generally supported the safety rationale behind the
recommendations.\53\ In its responses, FRA agreed with the NTSB that
these locomotive recording devices could aid in accident investigations
and play a constructive role in risk reduction efforts supported by
both employee representatives and rail carrier management. However, FRA
expressed concern to the NTSB that the use of voice and image
recordings for disciplinary purposes could ``erode morale and offer
manifold opportunities for selective enforcement and possible
retaliation against employees for reasons having nothing to do with
safety.'' \54\ FRA also wished to avoid the potential for unwarranted
publication of private conversations on the locomotive (that might take
place during times when the crew is not actively performing safety-
critical duties), and to guard against further erosion of rail labor
and management relationships.
---------------------------------------------------------------------------

    \53\ National Transportation Safety Board, Safety Recommendation
History for Safety Recommendation R-10-001: available online at:
http://www.ntsb.gov/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-10-001.
    \54\ Id.
---------------------------------------------------------------------------

    Rather than implementing the locomotive recorder recommendations at
that time, which FRA believed could have a negative influence on such
relationships, FRA instead sought to affirm the NTSB's accident
investigation and safety recommendations through other means. Among
numerous on-going railroad safety improvement efforts, FRA formed an
RSAC Electronic Device Distraction Working Group to develop strategies
aimed at curbing the distracting use of electronic devices by railroad
employees and conducted industry outreach in support of that
effort.\55\ The Electronic Device Distraction Working Group included
railroad industry, labor, and Federal government representatives. FRA
also engaged in active efforts to understand critical safety errors
through its Confidential Close Call Reporting System (C3RS) by
undertaking pilot projects with several railroads. The C3RS program is
meant to bring safety problems to the attention of railroads and FRA
before accidents occur.
---------------------------------------------------------------------------

    \55\ https://www.fra.dot.gov/Page/P0565.
---------------------------------------------------------------------------

    However, in recent years, FRA has become increasingly concerned by
human-factor caused railroad accidents, like those described above,
where there is a lack of information to conclusively determine what
caused or contributed to an accident that could help FRA determine
necessary corrective actions before similar train accidents occur. FRA
also has increasing concern because, even after Federal and industry
efforts to prohibit on-duty operating employees' use of distracting
electronic devices following the Chatsworth accident (where a
locomotive engineer who was text messaging caused the deaths of 24
railroad passengers and himself), railroad accidents and safety
violations involving such devices continue to occur. In addition, the
NTSB has stated the use of such devices in the railroad industry seems
to be pervasive.\56\
---------------------------------------------------------------------------

    \56\ Supra, n. 34 at 24.
---------------------------------------------------------------------------

    FRA has concluded the use of inward-facing cameras to combat these
safety violations that endanger public safety is warranted, and the
need to address this

continuing safety risk outweighs any crew concerns regarding personal
privacy while they operate trains or perform other safety-critical
functions in the cab of a railroad's locomotive. FRA believes the
proactive use of locomotive recordings will be the most valuable tool
available to railroads to deter and detect the prohibited use of
personal electronic devices, which can lead to reportable accidents.
The detection of such safety violations is difficult due to the nature
of train operations, as discussed above. Inward-facing image recordings
will also more easily provide exculpatory evidence for train
crewmembers in post-accident investigations regarding whether the
distracting use of an electronic device or other rules violations were
a causal factor. Therefore, consistent with the FAST Act, FRA is
proposing in this NPRM that inward- and outward-facing recording
devices be installed in the lead locomotives of all intercity passenger
and commuter trains.
    In December 2013, FRA indicated publicly that it would engage the
RSAC in 2014 to initiate a rulemaking on the subject of locomotive
voice and image recording devices, as discussed below, and announced in
May 2015 that it would publish an NPRM addressing the topic. FRA has
informed NTSB of its progress in addressing recommendations R-10-01 & -
02, the referral to the RSAC for consideration, and this rulemaking
proceeding. As of 2015, NTSB classified the recommendations as ``Open-
Acceptable Response'' pending the timely outcome of this rulemaking.

C. Current Use of Recording Devices To Improve Safety & Security in
Rail and Other Modes of Transportation

Aviation
    The use of recording devices to record operator actions in the
transportation industry is not new. Most notably, in 1964, the then
Federal Aviation Agency (now the DOT's FAA) published a final rule
requiring CVRs be installed on aircraft involved in certain commercial
aviation operations.\57\ These recorders are still required by FAA
regulation and are required to record at least the last two hours of
voice communication made by the flight crew, including both the
internal cockpit discussions and any radio or intercom communications.
See, e.g., 14 CFR 25.1457 and 121.359. The CVR (and also the flight
data recorder, which is similar to a locomotive's event recorder in
that it records a voluminous number of operational parameters of the
aircraft) must also be crash, fire, and water resistant per the
requirements in FAA's Technical Standard Order No. 123c.\58\ During the
RSAC Working Group meetings discussed further below, representatives of
both the FAA and a pilot's labor organization gave presentations
regarding the history and use of CVRs in the aviation industry.
---------------------------------------------------------------------------

    \57\ 29 FR 8401 (July 3, 1964).
    \58\ FAA TSC-C123c, Cockpit Voice Recorder Equipment (Dec. 19,
2013); available online at: http://rgl.faa.gov/
Regulatory_and_Guidance_Library/rgTSO.nsf/0/
c464478183dcbdc686257c450067e591/$FILE/TSO-123c.pdf.
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    The NTSB, which has primary legal responsibility to investigate all
civil aviation accidents in this country, and FAA have both indicated
that the use of CVRs in accident investigations is an indispensable
tool to determine the cause of aviation accidents and prevent future
similar accidents from occurring. Transcripts of cockpit voice
recordings are typically included in NTSB's aviation accident reports,
and shed light on operational discussions and decisions of the flight
crew before an aviation accident.
    When a domestic accident occurs, the NTSB secures the CVR and later
organizes a group to review the audio recordings.\59\ That group
typically includes representative of the FAA, the pilot's labor
organization, and at least one pilot typed or current in the accident
aircraft model.\60\ The group may also typically include other
individuals familiar with the individual crew member's voices, those
familiar with the airline's procedures, and a representative of the
aircraft manufacturer and owner/operator.\61\ Federal law prohibits
NTSB from releasing cockpit voice recordings it obtains during aviation
accident investigations. 49 U.S.C. 1114(c). However, the Board may make
public written transcripts of the recordings, and often does so in its
aviation accident reports. Federal law in 49 U.S.C. 1154 also contains
restrictions on the use of discovery in judicial proceedings to obtain
cockpit voice recordings the NTSB has not yet made public.
---------------------------------------------------------------------------

    \59\ http://www.ntsb.gov/investigations/process/Documents/CVR_Handbook.pdf.
    \60\ National Transportation Safety Board, Cockpit Voice
Recorder Handbook for Aviation Accident Investigations (2014);
available online at: http://www.ntsb.gov/investigations/process/Documents/CVR_Handbook.pdf.
    \61\ Id.
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    FAA significantly updated its cockpit voice recorder regulations in
a 2008 final rule.\62\ The 2008 rulemaking increased the duration of
time CVRs are required to record a crew's voice communications from 30
minutes to the current two hours, and amended certain technical
requirements governing cockpit voice (and flight data) recorders to
improve the quality of recordings and ensure CVRs and flight data
recorders retain power. The FAA indicated such changes in accordance
with NTSB recommendations were necessary because the limited duration
of cockpit voice recordings and loss of power to both CVRs and flight
recorders had arisen in the investigation of certain high profile
commercial aviation accidents in the last 20 years that are discussed
in that rulemaking's NPRM (70 FR 9752-9754, Feb. 28, 2005) (e.g., the
CVR for Alaska Airlines flight 261 that crashed and killed 88 persons
on January 31, 2000, recorded only 31 minutes of flight crew member
conversations, at the beginning of which the crew had already begun
discussing an existing mechanical problem with the aircraft).\63\
---------------------------------------------------------------------------

    \62\ 73 FR 12542 (Mar. 7, 2008).
    \63\ Id.
---------------------------------------------------------------------------

    While the FAA has long required CVRs and flight data recorders,
NTSB has also recommended that FAA require the installation of image
recording devices in the cockpit of certain commercial aviation
aircraft. The most recent NTSB Safety Recommendations on that topic are
recommendations A-15-7 & -8 to FAA,\64\ recommending that aircraft
operated under 14 CFR parts 121 or 135 that are required to be equipped
with a cockpit voice recorder and a flight data recorder also be retro-
fitted or equipped with a crash-protected cockpit image recording
system. The NTSB's rationale for such recommendation is similar to that
in its recommendations R-10-01 & -02 to FRA discussed above--that image
recordings would provide critical information about crew actions and
cockpit environment (and potentially including aircraft instrument
panel indications and switch positions) before accidents, enhancing the
accident investigation process and the identification of safety issues.
The FAA has issued a Technical Standard Order (TSO-C176(a), effective
Dec. 19, 2013)) governing the minimum performance standards for cockpit
image recorder equipment that is manufactured; however, the FAA does
not require image recorders in airplane cockpits.\65\
---------------------------------------------------------------------------

    \64\ National Transportation Safety Board, Safety
Recommendations A-15-7 & 15-8 (Jan. 22, 2015); available online at:
http://www.ntsb.gov/safety/safety-recs/recletters/a-15-001-008.pdf.
    \65\ http://rgl.faa.gov/Regulatory_and_Guidance_Library/
rgTSO.nsf/0/cb1b17b6950894bf86257c45006dcaea/$FILE/TSO-C176a.pdf.
---------------------------------------------------------------------------

Commercial Motor Vehicle/Bus/Transit
    As with the increasing use of cameras in society in general, the
use of

recording devices in the cabs of truck-tractors, motor coaches, and
school and transit buses is increasing. In-cab cameras (both forward-
and driver-facing) are being used by motor carriers throughout the
trucking and motor coach industries.\66\ For example, Swift
Transportation Company, one of the largest motor carriers in the United
States, announced in April 2015 that it would be equipping over 6,000
of its trucks with Lytx DriveCam systems, which include forward- and
driver-facing cameras.\67\ In addition, the FMCSA has issued exemptions
from its regulations to motor carriers to allow carriers to install in-
cab cameras on a truck's windshield. See, e.g., 80 FR 14231-32, (Mar.
18, 2015); 80 FR 17818 (Apr. 2, 2015). In issuing these exemptions,
FMCSA has stated it ``believes the use of video event recorders by
fleets to deter unsafe driving behavior is likely to improve the
overall level of safety to the motoring public.'' 80 FR at 142332.
FMCSA has stated that motor carriers subject to the exemptions may use
the video event recorders to increase safety through: ``(1)
identification and remediation of risky driving behaviors such as
distracted driving and drowsiness; (2) enhanced monitoring of passenger
behavior for CMVs in passenger service; and (3) enhanced collision
review and analysis.'' Id.
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    \66\ See e.g., Rip Watson, Truckload Carriers Broaden Efforts to
Recruit, Retain Quality Drivers, Transport Topics, Mar. 16, 2015;
available online at: http://www.lytx.com/uploads/Transport_Topics_Truckload_Carriers_0515.pdf. Cliff Abbott, In-Cab
Dash Cams Included in Newest Wave of Trucking Technology, The
Trucker, Nov. 18, 2014; available online at: https://www.thetrucker.com/News/Stories/2014/11/18/In-cabdashcamsincludedinnewestwaveoftruckingtechnology.aspx. David Z.
Morris, There's Pressure in the Industry to Monitor Truck Drivers-
and Drivers Aren't Happy, Fortune, May 26, 2015; available online
at: http://fortune.com/2015/05/26/driver-facing-truck-cameras/.
    \67\ James Jaillet, Swift, Nation's Third-Largest Fleet,
Implementing Driver-Facing, Forward-Facing Cameras In All Trucks,
Overdrive Magazine, Apr. 24, 2015; available online at: http://www.overdriveonline.com/swift-nations-third-largest-fleet-implementing-driver-facing-forward-facing-cameras-in-all-trucks/.
---------------------------------------------------------------------------

    FMCSA also granted exemptions to motor carriers to support research
on behalf of FMCSA to evaluate camera systems and to allow for data
collection. 77 FR 71028 (Nov. 28, 2012). During RSAC's October 2014
meeting, the Association of American Railroads (AAR) presented copies
of an FMCSA report published in June 2010 to the Working Group
regarding a study conducted by the Virginia Tech Transportation
Institute (VTTI) to evaluate the use of a driving behavior management
system (including driver- and forward-facing image recorders and
accelerometers) to improve commercial motor vehicle safety.\68\ The
report stated the study showed a significant reduction in ``safety-
related events'' such as collisions, near-collisions, risky driving
behaviors, and cell phone use, when trucks were equipped with
monitoring systems and accompanied by supervisor review of events and a
driver feedback program. A more recent VTTI study modeled the potential
reduction in fatal and injury crashes involving large trucks and buses
in this country if a particular event-based video system and driver
behavior modification system were used.\69\ The report stated an on-
board monitoring system involving cameras was used and suggested the
use of this system to improve safe driving behavior could prevent 727
fatal commercial motor vehicle crashes (or 20.5% of the total fatal
crashes estimated in the report) per year.\70\
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    \68\ Federal Motor Carrier Safety Administration, Evaluating the
Safety Benefits of a Low-Cost Driving Behavior Management System in
Commercial Motor Vehicle Operations, Report No. FMCSA-RRR-10-033
(June 2010).
    \69\ Soccolich, S., and J.S. Hickman. 2014. Potential Reduction
in Large Truck and Bus Traffic Fatalities and Injuries Using LYTX's
DriveCam Program, May 2014. Blacksburg, Virginia: Virginia Tech
Transportation Institute; available online at: http://info.drivecam.com/rs/lytx/images/Lytx-VirginiaTech-Study-LivesSaved-0514.pdf.
    \70\ Id.
---------------------------------------------------------------------------

    In March 2015, the NTSB also issued a report on the use of video
systems onboard commercial motor vehicles.\71\ The report stated the
NTSB had investigated many highway accidents where video systems
recorded information critical to the accident investigation process,
and contained an in-depth discussion of the use and benefits of onboard
video systems during two recent NTSB investigations into accidents
involving buses. The report indicated that on-board video recording
systems, along with a driver feedback program, may provide for long-
term safety benefits. Such systems provide information for evaluating
the circumstances leading up to a crash, as well as data regarding
vehicle dynamics and occupant kinematics during crashes for assessing
crash survivability. The NTSB highlighted how video systems could be
improved, such as by increasing camera coverage of all passenger
seating positions and improving low-light recording capabilities. The
report concluded the use of data collected from video systems on school
buses can serve as the ``foundation for a multidisciplinary approach to
improving transportation safety.'' \72\
---------------------------------------------------------------------------

    \71\ National Transportation Safety Board, Commercial Vehicle
Onboard Video Systems, NTSB Safety Report NTSB/SR-15/01 (Mar. 3,
2015); available online at: http://www.ntsb.gov/safety/safety-studies/Documents/SR1501.pdf.
    \72\ Id.
---------------------------------------------------------------------------

    The NTSB report on the use of video systems onboard commercial
motor vehicles also made various safety-related recommendations to
camera system manufacturers, commercial motor vehicle, school bus,
transit, and motor coach industry members, and to the DOT's National
Highway Traffic Safety Administration (NHTSA). NTSB recommended
industry members utilize onboard video systems that provide visibility
forward of the vehicle, of the vehicle driver, and of each occupant
seating location (with optimized frame rates and capability for low-
light recording).\73\ NTSB recommended that NHTSA incorporate
standardized procedures into its crash database system for collecting
and using pertinent video recordings, injury information and crash data
from video-equipped buses.\74\
---------------------------------------------------------------------------

    \73\ National Transportation Safety Board, Safety Recommendation
H-15-002 (Apr. 29, 3015); available online at: http://ntsb.gov/safety/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=H-15-002.
    \74\ National Transportation Safety Board, Safety Recommendation
H-15-001 (Apr. 29, 2015); available online at: http://www.ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=H-15-001.
---------------------------------------------------------------------------

    Finally, in that report the NTSB also referenced its Safety
Recommendation H-10-010,\75\ which recommends that FMCSA:
---------------------------------------------------------------------------

    \75\ National Transportation Safety Board, Safety Recommendation
H-10-010 (Oct. 21, 2010); available online at: http://www.ntsb.gov/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=H-10-010.

[r]equire all heavy commercial vehicles to be equipped with video
event recorders that capture data in connection with the driver and
the outside environment and roadway in the event of a crash or
sudden deceleration event. The device should create recordings that
are easily accessible for review when conducting efficiency testing
and systemwide performance-monitoring programs.\76\
---------------------------------------------------------------------------

    \76\ Id.

    This recommendation, along with a corresponding recommendation that
FMCSA should require carrier review of video recordings in conjunction
with other performance data to verify safe driver actions,\77\ was made
after a June 2009 accident near Miami, Oklahoma that involved a
fatigued commercial motor vehicle (truck-tractor with semitrailer)
operator which resulted in the deaths of 10 people. FRA notes the

rationale for these recommendations is similar to that made to FRA in
Safety Recommendations R-10-01 & -02 discussed above, which is to aid
accident investigations and to allow an employer to conduct efficiency
testing via review of recordings to identify potentially unsafe
behaviors or actions and to take corrective action to prevent future
accidents.
---------------------------------------------------------------------------

    \77\ National Transportation Safety Board, Safety Recommendation
H-10-011 (Oct. 21, 2010); available online at: http://www.ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=H-10-011.
---------------------------------------------------------------------------

    Cameras are also widely used on transit buses in this country, both
for security (if the drivers or passengers are the victims of criminal
acts), and to record motor vehicle accidents. The American Public
Transportation Association's (APTA) ``2016 Public Transportation Fact
Book'' \78\ indicates that as of January 2015, approximately 73 percent
of public transportation buses in this country were equipped with
closed-circuit television cameras, up from approximately only 13% in
2001. The transit administrations in virtually every major city in the
United States have installed recording devices on transit buses on some
scale.\79\ During RSAC discussions, APTA representatives indicated that
recordings sometimes provide exculpatory evidence for the vehicle
operator, whether about driver actions operating the vehicle or
interactions with bus riders. In sum, the use of onboard recording
equipment on commercial motor vehicles and buses in this country is
substantial and has rapidly increased in recent years, leading to
safety gains as evidenced by the June 2010 FMCSA report on the VTTI
study.
---------------------------------------------------------------------------

    \78\ American Public Transportation Association, 2016 Public
Transportation Fact Book, 67th Ed., (Feb. 2017); available online
at: https://www.apta.com/resources/statistics/Documents/FactBook/2016-APTA-Fact-Book.pdf.
    \79\ See e.g., Washington DC (http://wmata.com/about_metro/news/PressReleaseDetail.cfm?ReleaseID=4618); Chicago (http://www.transitchicago.com/safety/cameras.aspx#about); New York City
(http://www.mta.info/news/2012/03/27/safety-first-mta-adding-more-onboard-bus-video-surveillance-cameras); Boston (http://www.mbta.com/about_the_mbta/news_events/?id=18423); Los Angeles
(http://thesource.metro.net/2014/06/26/metro-debuts-new-security-video-monitors-on-buses/); Kansas City (http://www.kcata.org/about_kcata/entries/transit_watch); Dallas (https://www.dart.org/news/DARTCNGNABIFactSheet.pdf); and Minneapolis (http://www.metrotransit.org/transit-police).
---------------------------------------------------------------------------

Rail
    The railroad industry has used locomotive-mounted image recording
devices for at least the last two decades. Railroads began installing
outward-facing cameras on a large scale in the 1990s. FRA understands
that railroads have often used forward-facing recordings to defend
themselves in litigation, particularly litigation involving highway-
rail grade crossing and trespasser accidents. FRA does not intend for
this rulemaking to affect that use of locomotive recordings. Locomotive
video recordings have also been used to document track and roadway
conditions, such as washouts, that may lead to, or have led to,
accidents. FRA's Locomotive Engineer Review Board (LERB)/Operating Crew
Review Board (OCRB), which review railroad locomotive engineer and
conductor de-certification decisions upon an engineer's or conductor's
appeal to FRA under 49 CFR parts 240 and 242, have received forward-
facing video recordings (and still-shots of such recordings) as
evidence intended to document events leading up to an event, including
wayside signal indication or the position of a switch. AAR stated
during RSAC Working Group discussions (discussed further in section IV
of the preamble below) that as of March 2014, over 20,000 outward-
facing cameras had been installed on freight and passenger locomotives.
    AAR also told the RSAC Working Group that after the 2008 Chatsworth
accident some railroads began installing inward-facing cameras as
recommended by NTSB. Metrolink installed inward-facing video cameras on
locomotives to implement NTSB's recommendations, for the stated purpose
of enhancing safety and security for the general public and for its
employees and contractors. A Metrolink presentation informed the
Working Group that as of June 2014, it had equipped 57 locomotives and
55 cab cars with ``head end video record'' capabilities, and that the
railroad reviewed the video recordings randomly to test for employee
compliance with rules governing the use of unauthorized electronic
devices, sleeping, and unauthorized persons in the cab of the
locomotive. AAR indicated during Working Group discussions in June
2014, that approximately six railroads had equipped 288 locomotives or
cab cars with inward-facing cameras since 2009.
    Moreover, as mentioned above, after the May 2015 Amtrak accident in
Philadelphia in which eight persons were killed, Amtrak announced that
it would install inward-facing cameras on all of its ACS-64 locomotives
in service on the Northeast Corridor by the end of 2015 (and on
subsequently delivered locomotives).\80\ Further, since the Working
Group discussions concluded in 2015, several passenger and freight
railroads have installed inward- and/or outward-facing recording
devices without a Federal regulation requiring such action. For
example, FRA is aware that the four largest Class I freight railroads
in this country (UP,\81\ BNSF, CSX Transportation, Inc. (CSX), and
Norfolk Southern Railway (NS)) have all either announced they would
begin installing inward-facing cameras, or have already started such
installation. In fact, UP has begun installation on a large-scale
equipping over 2,000 locomotives. In addition, Metro-North and the Long
Island Rail Road, the two busiest commuter railroads (by weekday
ridership) in this country,\82\ have also announced they would begin
installing inward- and outward-facing cameras on their locomotive
fleets.\83\ Long Island Rail Road has even begun the process of
installing cameras on their locomotives. Thus, the number of inward-
facing cameras installed on locomotives has substantially increased
since the Working Group discussions.
---------------------------------------------------------------------------

    \80\ Lori Atani and Michael Laris, Amtrak Will Install Inward-
facing Cameras on Trains, Wash. Post, May 26, 2015; available online
at: https://www.washingtonpost.com/local/trafficandcommuting/amtrak-will-install-inward-facing-cameras-on-trains/2015/05/26/a6d210fa-03b9-11e5-a428-c984eb077d4e_story.html.
    \81\ https://www.up.com/aboutup/community/safety/technology/index.htm.
    \82\ Press Release, Metropolitan Transportation Authority, Long
Island Rail Road and Metro-North Railroad Stay Busiest in Nation
(Apr. 27, 2015); available online at: http://www.mta.info/news-long-island-rail-road-metro-north-railroad-lirr-ridership/2015/04/27/long-island-rail-road-and.
    \83\ Press Release, Metropolitan Transportation Authority,
Metro-North and LIRR To Acquire Video Cameras for Trains (Nov. 17,
2014); available online at: http://www.mta.info/press-release/metro-north/metro-north-and-lirr-acquire-video-cameras-trains.
---------------------------------------------------------------------------

    At the time of the Working Group discussions, a Class I freight
railroad, The Kansas City Southern Railway Company (KCS), gave a
presentation regarding its installation of inward-facing cameras. KCS
was an early adopter of inward-facing image recorder technology in the
freight rail industry. KCS stated its recording devices are active
anytime a locomotive is powered, and that such a policy is advantageous
for: (1) Security purposes (to document trespass, theft, and other
criminal incidents that may not involve railroad employees); and (2)
crew safety, specifically to monitor crew performance to provide
information about crew actions before accidents, to investigate crew
injuries, and to validate a crew cell phone use detection alert. KCS
indicated that the forward-facing cameras on its locomotives are
equipped with microphones, but those audio-recording devices are not
used (the cabling has been removed).
    Clearly, the railroad industry's use of locomotive-mounted
recording devices

to improve security and railroad safety has rapidly increased. Even
though this NPRM does not require freight railroads to install inward-
and outward-facing recording devices, FRA supports and will continue to
monitor the installation efforts of freight railroads which use this
technology to improve the safety of their operations.

IV. Railroad Safety Advisory Committee Proceedings

    As discussed above, in March 2014, the RSAC formed the Recording
Device Working Group \84\ to consider specific actions regarding the
installation and use of locomotive-mounted audio and image recording
devices. The RSAC voted to adopt Task 14-01, to develop regulatory
recommendations addressing the installation and use of the recording
devices in controlling locomotive cabs. The task statement stated that
any recommendations should address installation requirements and
timelines, technical controls, recording retention periods, retrieval
of recordings, controlled custody of recordings, crashworthiness
standards, use of recordings for accident investigation and railroad
safety study purposes, and use of recordings to conduct operational
tests.
---------------------------------------------------------------------------

    \84\ The Working Group was comprised of members from the
following organizations: AASHTO; Amtrak; ASRSM; APTA; ASLRRA; AAR;
BLET; BMWED; BRS; FAA; FRA; IAMAW; NCFO; NTSB; SMART; and Transport
Canada.
---------------------------------------------------------------------------

    FRA developed Task 14-01 in response to NTSB Safety Recommendations
R-10-01 & -02 and recent railroad accidents. FRA believed it
appropriate to evaluate the adoption of regulations addressing inward-
and outward-facing locomotive recording devices to advance railroad
safety. FRA's intent was to use recordings to: (1) Assist in post-
accident/incident investigations (railroad, highway-rail grade
crossing, and trespasser); (2) assist in evaluating railroad employee
fatigue and distraction, and crew interactions; and (3) add as a
training tool for railroad employees and for conducting operational
tests of railroad employees. The Working Group was to report
recommendations to the full RSAC (or Committee) by April 1, 2015.
    The Working Group held five meetings, three of which were multi-day
meetings. The Working Group did not reach consensus on any aspect of
the task, as FRA reported to the full Committee on May 28, 2015. During
the Working Group discussions, FRA announced it intended to require
inward-facing cameras and requested the Working Group's assistance to
formulate the appropriate details and scope of a potential rulemaking.
FRA presented rule text proposals for the Working Group's
consideration. For various reasons conveyed during Working Group
discussions, labor and industry representatives expressed general
disagreement with FRA's position regarding regulatory requirements for
inward-facing cameras and other locomotive recording devices. The labor
organizations generally opposed any Federal inward-facing camera
installation requirements for crew privacy reasons, and argued that
FRA's efforts to improve railroad safety were better directed toward
other regulatory matters (e.g., fatigue, PTC implementation). Railroads
generally expressed opposition based on lack of perceived need for FRA
to regulate in the area of locomotive recording devices, expressing
concern regarding potential costs and hindrance to the advancement of
recording device technology and uses. Rather than attempting to fully
summarize the respective positions and arguments during the Working
Group process here, FRA defers to labor and industry representatives to
convey their respective positions on this NPRM's specific proposals via
the notice and comment process.
    During the RSAC process, labor and industry representatives on
separate occasions asked FRA to independently pursue a voluntary pilot
program in lieu of any FRA rulemaking proceeding. This pilot program
would have been in addition to existing inward-facing camera usage
across the railroad industry (e.g., Metrolink and KCS, which have
installed inward-facing cameras on a larger scale than other railroads
to date). The purpose of the pilot program would have been to evaluate
the impacts of additional locomotive recording device usage and for
purposes of gathering additional data. The January 2015 Working Group
meetings were canceled so that labor and industry representatives could
meet privately to discuss pilot project details. However, labor and
industry representatives reported to FRA that they were unable to reach
consensus agreement on a voluntary pilot project. At the May 28, 2015
full Committee meeting, FRA informed the Committee that, in the absence
of a Committee recommendation, FRA would initiate a rulemaking
proceeding to require locomotive recording devices based on the need to
implement the safety initiatives.

V. Privacy Concerns

    As discussed above, FRA initially expressed to NTSB it had concerns
about privacy regarding NTSB's recommendations to install locomotive-
mounted audio and image recording devices. The labor organizations also
expressed reservations regarding the installation of locomotive-mounted
recording devices based on privacy concerns during the Working Group
meetings. FRA is addressing the issue of privacy in relation to
locomotive-mounted recording devices in this NPRM. Although this
discussion focuses on privacy considerations for railroad employees,
FRA recognizes that the locomotive recordings might incidentally
capture images of members of the public through the outward-facing
camera or, depending on the configuration of the cab and the passenger
car, the inward-facing camera.
    First, there are no legal impediments preventing the agency from
requiring recording devices to be installed in the locomotive cab when
a train is being operated on the general railroad system of
transportation. As discussed above, the FAST Act mandated FRA
promulgate regulations requiring the installation of inward- and
outward- facing recording devices on lead passenger train locomotives.
Under the proposal rule, passenger railroad employees would be on
notice of the presence of recording devices in a locomotive's cab. For
the reasons described in this preamble, and consistent with relevant
laws (including the FAST Act's mandate), court decisions, and FRA's
statutory authority to regulate all areas of railroad safety, there is
no legal requirement preventing FRA in this rulemaking from requiring
locomotive recording devices on passenger locomotives to adhere to
certain requirements.
    Second, the purpose of image and audio recordings is to deter
conduct that may lead to railroad accidents, to aid in railroad
accident investigations, and to identify action(s) necessary to prevent
accidents in the future. The railroad industry is a highly regulated
industry. Train accidents can have catastrophic consequences for the
safety of the public, railroad passengers, railroad employees and
contractors, and the environment. As such, a large number of Federal
statutes and regulations already govern railroad employees' performance
of safety-related duties when they occupy the cab of a lead locomotive.
    For example, employees who operate trains in this country are
subject to warrantless drug and alcohol testing (both random and for
cause) (49 CFR part 219), operational testing (see 49 CFR parts 217,
218, 220, 240, 242), hours of service laws (see 49 U.S.C. ch. 211, 49
CFR part 228), and regulations

governing the use of personal electronic devices (49 CFR part 220),
among many other requirements. Railroad managers and FRA inspectors can
currently occupy the cabs of locomotives at any time to observe
railroad train crew members and other employees performing their
duties, and listen to crew communications that occur in the cab. In
fact, under existing 49 CFR parts 217, 219, 220, 240, and 242,
railroads are required to make various observations of on-duty train
crewmembers performing their duties. The Supreme Court recognized that
``the expectations of privacy of covered employees [here, train
crewmembers] are diminished by reason of their participation in an
industry that is regulated pervasively to ensure safety . . . .''
Skinner v. Railway Labor Executives Association, 489 U.S. 602, 627
(Mar. 21, 1989).
    The cab of a locomotive is also not a location for a railroad
employee's exclusive use. During a tour of duty other railroad
employees, railroad supervisors, FRA inspectors, and other authorized
persons may access the cab of the locomotive while it is occupied by a
train crew and observe the employee's actions and communications. A
train crew member, particularly a member of a road freight crew, might
never occupy the cab of a particular locomotive again after the
completion of a tour of duty. A train crew boards a locomotive to
operate a train during an on-duty period and then alights from the
locomotive. Further, even the general public is able to view train crew
members occupying the locomotive and certain of their actions through
the windows of the locomotive when located near a railroad right-of-way
or a highway-rail grade crossing, or in certain cab control car
configurations in passenger train service. Railroad radio conversations
sent and received from a locomotive cab that may involve train
crewmembers, dispatchers, operators, and railroad managers are already
often recorded by railroads. Further, employee actions in operating
trains that would be affected by this proposed regulation are also
already recorded by locomotive event recorders required by existing
part 229 as discussed below. Therefore, this NPRM proposes that
passenger railroad employees occupying the cabs of locomotives that
would be affected by this proposal have express notice (by way of
required signage) that the locomotives are equipped with recording
devices. FRA also recommends that freight railroads provide similar
express notice (via signage or other methods) to their employees
working on locomotives with recording devices, although the agency is
not proposing to impose such a requirement in this rulemaking.
    Also, as discussed above, the goal of the FAA CVR regulations, in
effect for over 50 years, is the same as FRA's aim here, which is to
investigate and prevent transportation accidents that endanger the
lives of traveling passengers, carrier employees, and the public. 29 FR
8401. Like commercial passenger aviation operations governed by FAA CVR
regulations, FRA's proposed regulation would apply to passenger trains
that transport hundreds of people, often at high speeds.
    In addition, other FRA rulemakings that have raised privacy
considerations have been upheld because of the government's interest in
ensuring public safety. For instance, as touched on above, FRA's
initial regulation requiring warrantless drug and alcohol testing of
railroad employees \85\ was promulgated under FRA's general rail safety
rulemaking authority, challenged in Federal Court, and ultimately
upheld by the Supreme Court in Skinner. FRA promulgated its initial
drug and alcohol testing requirements (49 CFR part 219) based on the
finding that drug and alcohol abuse by covered railroad employees poses
a serious threat to public safety, as evidenced by past accident
investigations. 50 FR at 31516. The majority's decision in Skinner
stated there are ``few activities in our society more personal or
private than the passing of urine,'' and also discussed the extensive
privacy-related concerns on the subject of the contents of one's blood.
489 U.S. at 617. Nevertheless, the Court held that the drug and alcohol
testing FRA's regulations required was ``reasonable'' within the
meaning of the Fourth Amendment of the Constitution. 489 U.S. at 634.
The Court explained that due to:
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    \85\ 50 FR 31508 (Aug. 2, 1985).

The surpassing safety interests served by toxological tests in this
context, and the diminished expectation of privacy that attaches to
information pertaining to the fitness of the covered employees, we
believe that it is reasonable to conduct such tests in the absence
of a warrant or reasonable suspicion that any particular employee
---------------------------------------------------------------------------
may be impaired.

    Id. FRA believes the safety risks this NPRM seeks to address by
recording an employee's actions while operating a train in the cab of a
locomotive are similar to those discussed in Skinner. However,
recording an employee's actions while operating a locomotive does not
present privacy interests comparable to those relating to the contents
of one's own blood or urine that the Court in Skinner weighed.
Locomotive audio and image recordings merely record the actions of
train crews and environmental and other factors while a train is
operated on behalf of a railroad, which can be observed by the naked
eye by a railroad manager \86\ or FRA inspector aboard a locomotive and
can be recorded by a locomotive's event recorder. In addition, Congress
expressly mandated FRA promulgate regulations requiring the
installation of recording devices for passenger trains under the FAST
Act.
---------------------------------------------------------------------------

    \86\ See Vega-Rodriguez v. Puerto Rico Telephone Co., 110 F.3d
174, 181 (1st Cir. 1997) (upholding employer's installation of
surveillance cameras when the employer notified employees of the
location and field of vision of the cameras: ``[t]he bottom line is
that since PRTC could [lawfully] assign humans to monitor the work
station continuously . . . it could instead carry out that lawful
task by means of unconcealed cameras . . . which record only what
the human eye could observe'').
---------------------------------------------------------------------------

    As previously stated, even in the absence of the current
Congressional action to require locomotive-mounted recording devices
and similar Federal regulatory action, the railroad industry has
installed locomotive-mounted recording devices on its locomotives for
years. FRA is not aware of any successful legal challenges to such
installation. As mentioned above, Metrolink installed in-cab audio and
video recording devices after the 2008 accident in Chatsworth,
California, that prompted NTSB Safety Recommendations R-10-01 & -02.
The BLET challenged Metrolink's installation and use of such cameras in
California State and Federal courts on the basis of privacy,
substantive due process, procedural due process, and preemption
violation claims. Neither court found the installation of such devices
unlawful. In an opinion granting Metrolink's motion for summary
judgement on the pleadings and dismissing all BLET claims, the United
States District Court for the Central District of California stated
that Metrolink's installation of locomotive audio and video recording
devices had several legitimate purposes: (1) As an accident
investigation tool; (2) to improve public safety; and (3) to test
locomotive engineers' compliance with Metrolink's operating rules.\87\
The Los Angeles County California Superior Court similarly granted
Metrolink's motion for summary judgment and entered a declaratory
judgement in

Metrolink's favor to resolve the BLET-filed lawsuit.\88\
---------------------------------------------------------------------------

    \87\ Bhd. of Locom. Eng. and Trainmen, et al. v. S. Cal. Reg'l
Rail Auth., No. CV 09-8286 PA (JEMx), 2010 WL 2923286 (C.D. Cal.
June 20, 2010).
    \88\ Bhd. of Locom. Engineers v. S. Cal. Reg'l Rail Auth., No.
BC424287 (Super. Ct. L.A. County Cal. June 1, 2011).
---------------------------------------------------------------------------

    KCS also voluntarily began installing inward-facing cameras for
safety- and security-related purposes ahead of most other freight
railroads in this country. KCS filed an accompanying action after the
installation of the cameras requesting a declaratory judgment that any
disputes over the installation of the cameras were ``minor'' disputes
under the Railway Labor Act. The United States District Court for the
Western District of Louisiana ruled in KCS' favor, granting KCS' motion
for summary judgment and finding that installation of the cameras
represented a ``minor'' collective bargaining dispute.\89\
---------------------------------------------------------------------------

    \89\ Kan. City S. Railway Co. v. Bhd. of Locom. Eng. and
Trainmen, No. 5:13-cv-00838-EEF-MLH (W.D. La. Jul. 24, 2013).
---------------------------------------------------------------------------

    FRA has also long required locomotive event recorders record the
operational parameters of the controlling locomotive of a train
traveling over 30 mph. 49 CFR 229.135. The purpose of this requirement
is for accident/incident investigation and prevention and is required
by statute. 49 U.S.C. 20137. FRA explained in its 2005 final rule
updating the locomotive event recorder requirements that event
recorders:

[m]ay indirectly prevent future accidents by allowing for in-depth
accident causation analysis to take place using complete
information, thereby allowing accurate causation determinations, and
the development of appropriate and effective countermeasures.
Because event recorders also allow the railroad to monitor train
handling performance and rules compliance in a widespread and
economical way, FRA believes that event recorders might have the
potential of increasing skillful train handling and encouraging
rules compliance.

70 FR 37930, 37935 (June 30, 2005). FRA's rationale in proposing to
require locomotive-mounted image recording devices on lead passenger
train locomotives (and potentially audio recording devices) here is the
same. An image recording of the train crew in the locomotive
supplements the event recorder requirement by providing railroads and
Federal and State accident investigators information regarding an
engineer's actual manipulation of locomotive controls, and about other
crew actions and environmental and other factors prior to an accident.
Importantly, such recordings, when regularly reviewed by railroads, may
also provide a deterrent to train crews' distracting use of personal
electronic devices, which the NTSB has cited as a cause of several
railroad accidents, including the catastrophic 2008 Metrolink passenger
train accident discussed above. The recordings would provide necessary
evidence to railroad management and FRA to take appropriate corrective
or enforcement actions for these serious violations of FRA regulations
and railroad rules that cause railroad accidents.
    As previously stated, FRA is declining to propose requiring the
installation of inward- and outward-facing recording devices in freight
locomotives. The FAST Act requires FRA to develop regulations that
require inward- and outward-facing image recording devices in all
passenger train lead locomotives; however, there is no corresponding
statutory mandate for freight locomotives. In addition, the cost of
implementing such a requirement for freight locomotives could outweigh
its positive safety benefits. Furthermore, many freight railroads,
including all Class I railroads, are already in the process of
voluntarily installing recording devices in their locomotives without a
Federal requirement. Therefore, FRA is declining to impose a
requirement to install recording devices on freight locomotives at this
time.
    Even though FRA does not believe there are any legal impediments
preventing FRA from promulgating a regulation requiring locomotive
audio and image recording devices, FRA still recognizes the privacy
concerns FRA conveyed to NTSB in FRA's initial responses to Safety
Recommendations R-10-01 & -02, and that railroad uses of recordings,
beyond those enumerated in this NPRM, could violate the law. This
concern is particularly relevant regarding audio recordings of
conversations in the cab of a locomotive. Examples of uses of such
recordings that could violate the law are to retaliate against an
employee based on the contents of in-cab audio recordings in violation
of 49 U.S.C. 20109 (railroad employee whistleblower law) or to
interfere with protected labor activities. The FAST Act, at 49 U.S.C.
20168(i), establishes that a passenger railroad carrier is prohibited
from using in-cab audio or image recordings to retaliate against an
employee. While enforcement of such prohibited retaliation against
employees does not lie with FRA, but rather with other Federal and
State agencies or the courts in private causes of action, FRA believes
passenger railroads should adopt and adhere to policies that strictly
prohibit such potential non-safety related abuses of locomotive
recordings in violation of the FAST Act's prohibition. FRA's proposals
discussed in the section-by-section analysis below were formulated to
fulfill this FAST Act requirement.
    FRA also believes valid privacy concerns exist on the appropriate
protection and dissemination of locomotive recordings that are made,
particularly where an accident has occurred and the recordings may be
graphic and violent. As raised during Working Group discussions, it is
not desirable for railroad employees or their families to have such
images released publicly. For example, Congress provided statutory
protections for a train's audio and image recordings that NTSB takes
possession of during the course of its accident investigations at 49
U.S.C. 1114(d) and 1154(a). When NTSB takes possession of such
locomotive recordings, it is prohibited from releasing the contents of
such recordings (except that transcripts may be released as part of its
accident investigation proceedings).
    During Working Group discussions, participants noted FRA did not
have similar statutory protections for recordings it takes possession
of during investigations, as any records FRA takes possession of during
an investigation may be required to be disclosed under FOIA. However,
49 U.S.C. 20168(h) prohibits FRA from publicly disclosing recordings
that FRA takes possession of after a railroad accident has occurred.
Paragraph (h) is similar to the FOIA exemption for locomotive
recordings given to the NTSB at 49 U.S.C. 1411(d), and prohibits FRA
from disclosing publicly locomotive audio and image recordings, or
transcripts of communications by and among train employees or other
operating employees, or between such operating employees and
communication center employees related to an accident FRA is
investigating. FRA may make public a transcript or a written depiction
of visual information that FRA deems relevant to the accident at the
time other factual reports on the accident are released to the public.
    As explained during Working Group meetings, FRA believes it would
rarely take possession of recordings. For the most-serious accidents,
FRA anticipates the NTSB would take possession of such recordings as
they currently do, but that FRA would have the opportunity to view or
listen to the recordings as a party to the investigation and to conduct
its own parallel investigation. For less serious accidents or incidents
that only FRA investigates, FRA would sometimes proceed as it does now,
by having FRA inspectors view the recordings in the railroad's
possession. In instances where FRA had a legal or evidentiary need to
take physical

possession of a locomotive recording from a railroad after an accident,
the FAST Act now protects those recordings from public release.
    Concerns regarding a railroad's unauthorized release of locomotive
recordings and the privacy implications of such were also raised during
the Working Group meetings. Currently, in the absence of an accident
where NTSB or FRA has taken possession of a locomotive's recording
devices, a railroad's internal policies govern the handling of
locomotive audio and video recordings. Certain railroad draft policies
were shared with the Working Group during its meetings on the
railroads' procedures governing the chain-of-custody for recordings,
access to the recordings, and release of the recordings. If adhered to,
FRA believed these policies would address concerns regarding the proper
control and handling of locomotive recordings.
    Recognizing the need to ensure railroads appropriately protect
recordings that might implicate privacy-related concerns, FRA has
proposed rule text in Sec.  229.136(f) that requires passenger
railroads to adopt, and comply with, a chain-of-custody procedure
governing the handling and the release of locomotive recordings. The
chain-of-custody procedure must specifically address the preservation
and handling requirements for post-accident/incident recordings that
are provided to the NTSB or FRA during the agencies' accident
investigations. A passenger railroad's failure to comply with its
procedures would be a violation of the Federal railroad safety
regulations if Sec.  229.136(f) is adopted in a final rule in this
rulemaking.
    FRA decided against proposing specific rule text governing chain-
of-custody, handling, and release procedures industry-wide. The
industry has much experience in this area given the significant number
of locomotives that are already equipped with forward-facing cameras
(estimated by AAR at over 20,000) and length of time such locomotives
have been equipped, and, also, now with inward-facing recording
devices. The industry also has much experience in this area with
locomotive event recorders that have long been subject to preservation
and handling requirements after the occurrence of an accident under
existing Sec.  229.135(e). It is therefore more practical and cost-
effective to give railroads the discretion to continue to tailor their
individual procedures appropriately. Given the various types of
locomotive recording equipment that different railroads may choose to
utilize, the various State court evidentiary and chain-of-custody laws
and rules that railroads must comply with when the recordings are used
in litigation for the railroads' own purposes (e.g., highway-rail grade
crossing and trespasser accidents), and the potential cost of requiring
railroads to amend their existing procedures that might already be
appropriate and provide instruction on such new procedures, FRA does
not believe it appropriate to impose specific chain-of-custody and
release procedures in the regulation. Further, FRA's safety interest in
regulating in this area most strongly lies in ensuring recordings are
handled properly post-accident when turned over to NTSB or FRA upon
request, and the proposed regulation's text would expressly require the
railroads' procedures to address that point. However, FRA acknowledges
that some parties have expressed concerns regarding the public release
of image or audio recordings that do not involve a reportable accident.
Thus, FRA seeks comment from interested parties regarding whether the
final rule should include a specific prohibition on the public
disclosure by a railroad or individual of any video or audio recording.

VI. Additional Items for Comment

    FRA is requesting comment on the below significant requirements or
amendments for which it is not proposing specific regulatory text in
this NPRM, but which FRA would consider adopting in a final rule in
this proceeding.

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

    As previously stated, FRA is declining to propose a requirement in
this NPRM that freight railroads install and use inward- and outward-
facing recording devices in their locomotives. The FAST Act does not
require that such recording devices be installed in freight
locomotives. Further, the cost to implement such a requirement could
outweigh its safety benefits. FRA estimates that if freight locomotives
were required to have image recording devices, the 10-year cost would
be $154,990,084 (PV, 7 percent), or $168,970,287 (PV, 3 percent).\90\
Finally, many freight railroad, including all Class I railroads, have
already installed or are in the process of installing recording devices
in their locomotives. Therefore, FRA is declining to propose a
requirement to install recording devices on freight locomotives at this
time.
---------------------------------------------------------------------------

    \90\ See Regulatory Impact Analysis pg. 17.
---------------------------------------------------------------------------

    FRA will continue to monitor freight railroads and their efforts to
voluntarily install inward- and outward-facing recording devices, and
also the overall safety records of the freight railroad industry, as it
considers whether a future regulatory requirement is necessary. In the
meantime, FRA welcomes public comment on whether FRA should implement a
requirement that some or all freight railroads equip their locomotives
with inward- and outward-facing recording devices. In addition, FRA
invites comment on the extent to which FRA should apply the proposed
requirements in this NPRM to recording devices that have already been
installed by freight railroads in their locomotives. FRA also seeks
comment on whether FRA should include a specific provision that
prohibits the public release of an image or audio recording by any
railroad or person.

B. Audio Recording Devices

    The FAST Act, at 49 U.S.C. 20168(e)(1), gives FRA discretion to
require audio-recording devices be installed on lead passenger train
locomotives, and to establish corresponding technical details for such
devices. Further, the relevant NTSB recommendations that FRA is
addressing in this NPRM state that in addition to locomotive image
recordings, FRA should also require locomotives be equipped with audio
recording devices. Indeed, the NTSB sent FRA correspondence emphasizing
that to satisfy Recommendations R-10-01 & -02, FRA would need to
include both audio and image recording provisions in this
rulemaking.\91\
---------------------------------------------------------------------------

    \91\ National Transportation Safety Board, Safety Recommendation
History for Safety Recommendation R-10-01; available online at:
http://www.ntsb.gov/safety/safetyrecs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-10-001.
---------------------------------------------------------------------------

    FRA is not proposing to require the installation of locomotive
audio recording devices, but is requesting comment on whether to
require such devices in a final rule. Accordingly, FRA makes clear that
nothing proposed in this NPRM would preclude a railroad from
voluntarily installing audio recording devices in its locomotives. As
conveyed to the NTSB in FRA's initial responses to the NTSB
recommendations regarding audio recording devices, FRA agrees that in
certain accidents, audio recording devices could be useful for
conducting post-accident investigations. However, as mentioned above,
FRA still has

concerns about audio recordings aboard locomotives made during periods
when no safety-related duties are actively being performed (e.g.,
sitting at a stop signal in a siding). Recordings during such time
periods would likely include personal conversations between employees
and might have much more potential for abuse than do inward-facing
image recordings. Further, FRA is unsure of the added utility of audio
recordings in addition to video recordings when weighed against the
cost, the potential for abuse, and the loss of personal privacy.
    In addition, FRA believes inward-facing image recorders alone may
deter the prohibited use of personal electronic devices more
effectively than audio recorders. In most circumstances, an inward-
facing image recording of appropriate quality will enable railroad
supervisors to observe the physical actions of a train crew as they
operate the train and perform other safety-related duties, including
whether personal electronic devices are being manipulated or handled.
FRA is unsure that audio recorders would significantly improve railroad
efforts to detect such safety violations that are, in part, the impetus
for requiring railroads to regularly review a locomotive's in-cab image
recordings.
    FRA also believes that train operations are different from flight
operations regarding the utility of in-cab audio recordings during a
post-accident investigation. For example, in both the 2008 Chatsworth
Metrolink accident and the 2015 Philadelphia Amtrak accident, the
locomotive engineers operating the trains were the sole occupants of
the locomotive cab. The other train crew members were in the passenger
consist. Thus, for passenger operations, other than radio
communications with other train crewmembers or the train dispatcher
which are often already recorded, there may not be any voice
communications inside the cab to audio record. This is unlike a typical
commercial aviation operation in which multiple crew members occupy the
cockpit of an aircraft during flight and undertake numerous required
crew communications. Similarly, audio recordings inside freight
locomotive cabs, which are typically occupied by multiple crewmembers,
might provide relevant post-accident information more often than for
accidents involving passenger locomotives. However, FRA is not certain
what the utility of such an audio recording requirement might be when
weighed against the potential for abuse of such recordings in other
contexts and the overall costs of such a requirement, and considering
the availability of image recordings, locomotive event recorder data,
and radio recordings.
    In addition, as discussed above, crew radio communications are
often already recorded by railroads as part of their dispatching
systems, and are often reviewed by FRA and NTSB as part of railroad
accident investigations. FRA believes that such recordings are
generally more common (and often include yard operations on Class I and
passenger railroads) and recorded in a higher quality (digital) than in
1996, when NSTB investigated the Silver Spring, Maryland MARC train
accident discussed above and made its initial recommendation to FRA
regarding equipping locomotives with audio recorders.
    As noted, FRA also has concerns about the cost of requiring audio
recording devices on upwards of 4,500 passenger locomotives and
potentially 20,000 freight locomotives. There may be only a small
number of accidents where audio recordings might be beneficial.
Further, the cost to store data in addition to image recordings in a
memory module (with a crashworthy module for passenger locomotives)
might increase the costs of compliance with a final rule. FRA
understands from Working Group discussions and its own research that
the audio recording devices and microphones contained within a
locomotive's image recorders are not costly, but railroads indicate a
crash-hardened memory module for audio recordings might increase costs