of compliance. FRA is also concerned about the background noise levels
inside the cabs of certain locomotives and has conveyed that concern to
NTSB in the past. Because of the noise, additional equipment such as
crew headsets and intercoms with microphones might be needed to record
crew voice communications so the recordings can accurately be
deciphered by railroad managers and accident investigators. This might
also add to the cost of installing such equipment.
    In sum, FRA reiterates that it agrees with NTSB that in some post-
accident investigations audio recordings might be beneficial to help
determine causal factors. However, in light of the concerns discussed
above, FRA is continuing to evaluate whether to require audio recording
devices in this rulemaking. FRA wishes to continue to evaluate the
issue with the benefit of information from public comments submitted in
response to this NPRM. Accordingly, FRA requests comment on the
following specific questions:
     Would the utility that audio recordings might provide in
certain accident investigations, on top of the benefits accruing from
image recordings, outweigh concerns regarding: (1) The cost of
installation of these additional devices; (2) the cost of crashworthy
memory for audio recordings on passenger locomotives; (3) the potential
loss of personal privacy for occupants of a locomotive's cab; and (4)
the potential for abuse of audio recordings reviewed by railroad
supervisors that could occur? Please provide specific information on
the costs (for example, the cost of installation in dollars) in your
comments.
     If in-cab audio recordings are required in a final rule,
should FRA adopt a strict rule that requires such recorders to stop
recording once a train has stopped moving?
     In addition to in-cab recordings, should exterior
recording devices capable of recording sounds such as the locomotive
horn/bell, audible grade crossing warning devices, engine noises,
braking noises, and other sounds that may be relevant during post-
accident investigations also be required? If so, what is the utility of
such recordings when weighed against the potential costs? Please
provide specific information on the costs of installation in dollars in
your comments.
    FRA also requests public comment addressing the appropriate
technical specifications for audio recording equipment if the
installation of audio recording devices is required in a final rule.
Further, if FRA requires locomotive audio recording devices in the
final rule, should FRA restrict the usage of those recordings or
provide additional protections from public release? FRA believes
requiring such devices to be capable of recording voice conversations
conducted at typical audible levels (approximately 60-70 decibels) in
the cab would be appropriate as a general performance standard.
However, FRA requests comment addressing whether headsets with
integrated audio microphones, background noise filters, or other
specialized audio recording equipment would be necessary to reliably
capture such voice conversations based on background noise levels in a
locomotive cab. Such comments should also address appropriate technical
specifications for any such equipment and the cost.

C. Recording Device Run-Time/Shutoff When Trains Stop Moving

    During the RSAC Working Group's discussions, FRA presented proposed
rule text that would have required

locomotive image and audio recording devices to record for one hour
after a locomotive equipped with such devices had stopped moving. FRA
introduced this proposal intending to recognize the potential safety
value in recording crew actions in the moments immediately after a
train had stopped, for post-accident investigations and other incident
investigations. This proposal also attempted to consider crew privacy
concerns expressed during Working Group discussions over recording
devices continuing to record during long periods of time where no
safety-related duties might be actively performed by a train crew
(e.g., sitting stationary at a stop signal in a siding). As discussed
above, in previously responding to NTSB recommendations on the topic of
recording devices, FRA indicated to NTSB that FRA wished to avoid the
potential for unwarranted publication of private conversations on the
locomotive taking place during non-safety-critical down times that
inevitably occur in railroad operations, and to guard against erosion
of rail labor and management relationships.
    Additionally, during discussions on this topic, representatives of
APTA indicated that certain of its member passenger railroads use
locomotive-mounted and other surveillance cameras aboard rail passenger
equipment for purposes beyond the scope FRA contemplates in this NPRM.
For example, APTA explained that an in-cab or other camera on a
passenger car could be used for purposes of protecting a train operator
or other crewmember by documenting any incidents involving passengers
aboard the train, such as disputes between passengers, assaults on
train crewmembers, fare disputes, and the unauthorized entry into the
cab compartment by a passenger, among other examples. APTA stated these
cameras could help police identify perpetrators of crimes and provide
exculpatory evidence for train crews regarding events that might occur
on a passenger train. These types of events, some of which involve
State criminal law matters, go beyond FRA's safety rationale for this
proposed rule on recording crew actions to prevent railroad accidents.
As such, during RSAC discussions, APTA stated if FRA placed any limits
in a rulemaking proceeding on the operation of recording devices after
a train had stopped, passenger railroads should be exempted. APTA
indicated during Working Group discussions that its passenger railroad
members that would be subject to the requirements of this proposed rule
may prefer to have locomotive-mounted recording devices in operation
any time a train is occupied, regardless of whether a train is moving
or not. While not a passenger railroad, KCS indicated to the Working
Group that its policy is that a locomotive's image recording system is
in operation anytime a locomotive is running.
    The proposed rule text in Sec.  229.136 below is silent on the
issue of a specific recording device run-time after a locomotive has
stopped moving, and is also silent on any shut-off requirements after a
locomotive has stopped moving. Under this proposal, passenger railroads
would have discretion to decide whether locomotive recording devices
would continue to record when a locomotive is not in motion (as long as
the railroad retained the last 12 hours of operation of the locomotive
on a memory module as proposed in Sec.  229.136). FRA is requesting
comment on the appropriate approach to this issue in a final rule. FRA
specifically requests comment regarding the safety benefits of
recordings made when a locomotive is occupied but not moving, and
whether a specific run-time or shutoff requirement in a final rule
would present any technical hurdles for railroads (and, if so, their
cost in dollars). FRA also requests comment addressing the privacy
implications regarding recordings being made during down times where no
safety-related duties might be actively performed by a train crew.
Further, FRA desires comment addressing the potential risks of
overwriting valuable recorded data if an accident occurs in a remote
location and the recording devices continue to record after a train is
stopped. Finally, FRA requests comment on whether passenger railroads
should be exempt from any requirement to stop locomotive-mounted
recording devices from recording when a train is stopped.

VII. Section-by-Section Analysis

Proposed Amendments to 49 CFR Part 217 (Part 217)

Section 217.9 Program of Operational Tests and Inspections;
Recordkeeping
    FRA proposes to amend part 217 to address the use of locomotive
recordings to conduct operational (efficiency) tests in passenger
trains. Part 217 has long required railroads to conduct operational
tests to determine the extent of employee compliance with railroad
operating rules, timetables, and timetable special instructions.
Section 217.9 requires railroads to specify a minimum number of
operational tests per year covering the requirements of subpart F of
part 218, FRA's regulation addressing the most frequently occurring
human-factor caused accidents involving equipment in the foul, shoving
movements, and the handling of switches and derails. Section 217.9 also
requires railroads' operational testing programs place particular
emphasis on other operating rules' violations that are likely to cause
accidents. FRA's regulation governing the use of distracting electronic
devices by on-duty railroad operating employees also addresses
operational testing. Section 220.315 requires railroads' operational
testing programs under part 217 include operational tests addressing
the restrictions on electronic device use in subpart C of part 220. The
overall intent of part 217's operational testing requirement is to
raise awareness of, and ensure compliance with, relevant railroad
operating rules to prevent the occurrence of accidents.
    In that vein, after the 2008 Chatsworth accident where the
locomotive engineer was found to have used a personal electronic device
while operating passenger trains in contravention of Metrolink
operating rules, NTSB Safety Recommendations R-10-01 & -02 recommended
using inward-facing cameras to conduct operational tests to ensure
compliance with rules prohibiting the use of distracting electronic
devices. Due to the nature of railroad operations where train crews
typically lack direct managerial supervision while traveling in the cab
of a locomotive, the NTSB explained a locomotive image recording may be
the only practical method of determining employee compliance with
prohibitions on the use of distracting electronic devices while
operating a train. The NTSB recommended FRA require railroads to
regularly review locomotive recordings to carry out efficiency tests
and system-wide performance monitoring programs, and verify that train
crew actions comply with applicable rules and procedures essential to
safety. In making these recommendations, the NTSB explained that
recordings could help railroad management prevent accidents by
identifying safety issues before they lead to injuries and loss of
life.\92\
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    \92\ National Transportation Safety Board, Reiteration of Safety
Recommendations R-10-01 & R-10-02 (July 8, 2015); available online
at: http://www.ntsb.gov/safety/safety-recs/recletters/R-10-001-002.pdf.
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    FRA agrees with NTSB that the use of in-cab recordings to conduct
operational tests is a valuable tool to improve safety, particularly
tests conducted to determine compliance with part 220's restrictions on
the use of personal electronic devices. FRA believes

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

Proposed Amendments to 49 CFR Part 218 (Part 218)

Section 218.53 Scope and Definitions
    FRA is proposing to amend existing part 218 to deem any locomotive-
mounted image or audio recording device or equipment installed in a
passenger train as a ``safety device.'' Existing part 218, subpart D
prohibits individuals from tampering with a ``safety device,'' and
defines that term to mean ``any locomotive-mounted equipment that is
used either to assure that the locomotive operator is alert, not
physically incapacitated, aware of and complying with the indications
of a signal system or other operational control system or to record
data concerning the operation of that locomotive or the train it is
powering.'' 49 CFR 218.53(c). FRA announced it intended to treat
recording devices as ``safety devices'' during Working Group
discussions.
    FRA also proposes to amend existing Sec.  218.53(c) by correcting
the reference to appendix B in the existing definition of ``safety
device'' because FRA's statement of agency policy regarding safety
devices is actually located in appendix C to part 218. This proposal
would merely correct this existing reference. Tampering with safety
devices, or knowingly operating (or permitting to be operated) a
passenger train with a disabled safety device

constitutes an event for which a passenger locomotive engineer's or
conductor's certification must be revoked under existing parts 240 and
242. Thus, under this proposal, a locomotive engineer or conductor of a
commuter or intercity passenger train found to have tampered with an
in-cab image or audio recording device under Sec. Sec.  218.55 or
218.57 shall have his or her certification revoked.
    FRA is also proposing to add a new paragraph (d) to Sec.  218.53
that makes clear the requirements in Sec. Sec.  218.59 through 218.61
do not apply to such recording devices voluntarily installed on freight
locomotives. Because these devices are voluntarily installed by the
freight railroad, the railroad can operate a lead locomotive without
such functioning recording devices.
    As discussed during Working Group meetings, in 2010 FRA responded
to a letter from Metrolink regarding whether FRA considered an inward-
facing camera on a Metrolink locomotive to be a ``safety device'' under
part 218. In its May 18, 2010, response, which FRA has added to the
public docket for this rulemaking, FRA explained to Metrolink that it
did not consider such cameras to be safety devices under part 218.\93\
At that time, railroads were not utilizing inward-facing image
recording devices on a large scale, FRA did not believe it necessary to
require installation of such devices, and FRA had not contemplated
using cameras as ``safety devices'' when formulating the tampering
restrictions in existing part 218. However, through this rulemaking's
notice and comment process, FRA is proposing to amend its position on
the treatment of in-cab audio and image recording devices on passenger
locomotives as safety devices. First, installation of such devices
would now be required by Federal regulation, as mandated by Congress in
the FAST Act. In addition, the use of such recording devices as a post-
accident investigation and safety tool has evolved rapidly in the
industry since 2010, even without Federal regulatory action.
---------------------------------------------------------------------------

    \93\ See NPRM docket; Mark H. Tessler letter to Metrolink,
Locomotive video cameras, (May 18, 2010).
---------------------------------------------------------------------------

    Passenger locomotive image and audio recording devices are like
locomotive event recorders, which are required by Sec.  229.135 in the
lead locomotives of trains traveling more than 30 mph, and which have
also long been considered safety devices by existing part 218.
Locomotive event recorders record specified parameters regarding
operation of a locomotive's controls, allowing for in-depth post-
accident causation analysis and determinations, as well as allowing
railroads to monitor locomotive engineers' train handling performance
and rules compliance. However, as NTSB conveyed, locomotive event
recorders cannot answer questions about a train crew's knowledge or
actions during accident investigations where such information is
lacking, such as for the Amtrak locomotive engineer's actions before
the May 2015 accident at Frankford Junction in Philadelphia discussed
above.
    The discussion in existing appendix C explains that part 218's
language is expansive enough to cover safety devices that may appear in
the future. Appendix C also explains that FRA may add certain safety
devices not previously considered within the scope of part 218's
tampering restrictions, should instances of tampering with such devices
be discovered. FRA has recently investigated incidents where it appears
that the locomotive engineer has willfully tampered with a locomotive's
inward-facing camera system. The engineer was operating a freight train
with a foreign railroad's locomotive in the lead. The engineer was
recorded covering inward-facing cameras on the locomotive, but was
apparently unaware of another camera mounted on the ceiling of the
engine near the back wall of the cab. That camera recorded him
appearing to play a video game on a personal electronic device while
operating the moving freight train. The railroad that owns the
locomotive discovered this apparent violation of 49 CFR part 220 during
a random review of the recording system's footage and provided that
recording to FRA.
    FRA believes image recording systems and an accompanying
prohibition on tampering with such systems in passenger locomotives
(and the accompanying consequences for tampering violations) will act
as a deterrent to prevent instances of tampering and unsafe behaviors
that the cameras would otherwise record. In the example above, the
locomotive engineer clearly modified his behavior to avoid being
detected by the locomotive's image recording system. Under the proposal
here, even covering the locomotive's camera would be a violation that
would result in loss of the locomotive engineer's certification. FRA
believes the proposed amendments to part 218 would deter a locomotive
engineer from covering the locomotive's cameras, and from subsequently
using a personal electronic device while operating a moving train. Such
a deterrent would directly improve passenger train safety.
    In-cab image and audio recording devices will supplement the
information recorded by a locomotive event recorder, and in certain
accident investigations, may answer questions regarding operator
actions (or lack of action) before a railroad accident. FRA believes
passenger locomotive in-cab recording devices are valuable railroad
safety and operational monitoring devices that should be treated as
safety devices prohibited from being willfully tampered with by 49
U.S.C. 20138 and that statute's implementing regulation at part 218,
subpart D. In sum, a recording device that is tampered with loses its
utility as a safety tool, and as a post-accident investigation tool
that might record information that could be used to prevent future
railroad accidents. Therefore, FRA believes it is reasonable to treat
image and audio recording systems on passenger trains as ``safety
devices.''
Section 218.61 Authority To Deactivate Safety Devices
    FRA is proposing to revise Sec.  218.61(c) to clarify that
locomotive image recording devices on passenger locomotives can only be
deactivated under the proposed requirements of 49 CFR 229.136. FRA is
also proposing to add language to paragraph (c) to clarify that freight
railroads that install inward- and outward facing image recording
devices do not have to follow the requirements of 49 CFR 229.136 to
deactivate their safety devices.
Appendix C to Part 218 Statement of Agency Enforcement Policy on
Tampering
    For the reasons discussed directly above, FRA is proposing to amend
existing part 218, appendix C by adding ``passenger locomotive-mounted
image and audio recording equipment'' to the list of safety devices
described in the fourth paragraph of that appendix. Such equipment
would include recording devices, any memory modules used to store
recording data, or any of these devices' electronic connections or
other appurtenances on railroad carriers that provide regularly
scheduled intercity or commuter rail passenger transportation. FRA
proposes to expressly include these recording devices in the list of
safety devices prohibited from being tampered with under part 218,
subpart D. This proposed amendment to part 218 would apply to all
passenger locomotive image and audio recording systems, regardless of
whether a final rule requires installation of such a system on a
particular passenger locomotive. Thus, even if a railroad voluntarily
chooses to install an image or audio recording

system on a passenger locomotive, part 218 would still prohibit
tampering with such a system.

Proposed Amendments to 49 CFR Part 229 (Part 229)

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

installation of image recording systems. An affected lead passenger
locomotive must be equipped with an image recording device system no
later than four years after the date a final rule is published.
However, FRA proposes to require any image recording systems installed
on a lead passenger locomotive more than one year after the date of
publication of a final rule comply with the requirements of this
section. FRA believes this proposal would help achieve prompt
implementation of a final rule's image recording system requirements,
while providing a reasonable timeframe to allow passenger railroads to
develop, obtain, and install appropriate image recording systems
(within four years of the date of publication of a final rule). As
discussed above, many passenger railroads have already installed
recording systems at their own discretion. However, some of those
systems may not fully comply with the requirements of this proposed
section. To avoid imposing unnecessary costs on industry and to avoid
penalizing early adopters of camera technology being used for safety
purposes, FRA included the proposed four-year deadline. FRA considered
the potential economic and technical burdens involved with researching,
acquiring, and installing image recording systems (and developing and
implementing relevant image recording system procedures), when
formulating this proposed installation timeline. FRA requests comment
regarding the appropriateness of the implementation dates proposed in
this section.
    FRA proposes in paragraph (a)(3) of this section that passenger
railroads must provide notice to crewmembers that they are in a
locomotive equipped with recorders via a notation on the Form FRA
F6180-49A. This proposal is intended to alert crewmembers that there is
no expectation of privacy in the cab of the locomotives while
performing duties for the railroad. FRA notes that this proposal would
also require notice if a passenger locomotive is equipped with any
audio recording devices, even if audio recording devices are not
required in a final rule but a railroad has chosen to equip a
locomotive with such devices. This proposed regulation would not apply
to freight railroads that have voluntarily installed visual or audio
recording devices in their locomotives. However, FRA encourages freight
railroads to provide notice to their crewmember that recording devices
are present.
    Paragraph (a)(4) proposes that the image recording system shall
record at least the most recent 12 hours of operation of a lead
locomotive in commuter or intercity service. This proposal would also
apply to any audio recordings if a passenger railroad installs audio
recording devices on a lead locomotive. The FAST Act requires a lead
passenger train locomotive's image recording systems to have a minimum
12-hour continuous recording capability. This 12-hour minimum recording
proposal is also consistent with NTSB Safety Recommendation R-10-01
discussed above. A 12-hour recording period would, in many instances,
capture a train crew's entire tour during the time they perform duties
under the hours of service laws. NTSB has indicated that crew ``actions
or inactions at any time during that period could set the stage for an
accident.'' \94\
---------------------------------------------------------------------------

    \94\ National Transportation Safety Board, Reiteration of Safety
Recommendations R-10-01 & R-10-02 (July 8, 2015); available online
at: http://www.ntsb.gov/safety/safety-recs/recletters/R-10-001-002.pdf.
---------------------------------------------------------------------------

    Paragraph (a)(5) proposes that locomotive recording device data
(including audio recorder data if installed) on lead locomotives in
commuter or intercity passenger service be recorded on a memory module
meeting the requirements for a certified crashworthy event recorder
memory module described in part 229, appendix D. Appendix D establishes
the general requirements for memory modules certified by their
manufacturers as crashworthy, and contains performance criteria for
survivability from fire, impact shock, crush, fluid immersion, and
hydrostatic pressure. The FAST Act requires passenger locomotive image
recording devices have crash and fire protections for any in-cab image
recordings stored only within a controlling locomotive cab or cab car
operating compartment. Further, NTSB Safety Recommendation R-10-01 also
recommended FRA require railroads to install crash- and fire-protected
inward- and outward-facing audio and image recorders. FRA is not
proposing to require passenger railroads to use a locomotive's existing
crashworthy memory module to also store image and audio recordings,
although that is an option under this proposal. Railroads may use a
memory module to store image and audio recordings separate from that
storing event recorder data meeting the requirements of appendix D.
    The railroad industry has much experience with the standards in
appendix D, and collaboratively created these standards via RSAC
recommendations. 70 FR 37920 (June 30, 2005). In sum, FRA believes its
proposed paragraph (a)(5) with respect to passenger railroads would
fulfill the FAST Act's recording and crash and fire protection
requirements and the NTSB's technical recommendations on image
recording devices in Safety Recommendation R-10-01.
    FRA is not proposing memory module requirements for freight
railroads that have or are planning to voluntarily install inward- and
outward-facing recording devices on their locomotives. However, FRA
recommends that if the railroad choses to use a memory module, it
should mount the module in such a way as to provide the module with
maximum protection.
    In addition, eventually locomotive recording device data may
primarily be recorded on standard crashworthy memory module equipment
associated with required PTC systems, and the future costs of equipping
passenger locomotives with crashworthy memory modules might be
overstated by this NPRM's Regulatory Impact Analysis (RIA). The lead
locomotive of a train equipped and operating with a PTC system under 49
CFR part 236 must have a locomotive event recorder that records train
control data, including specific PTC system data. 49 CFR 236.1005(d).
The PTC event recorders for locomotives manufactured after October 1,
2009, must be crashworthy. Such PTC event recorders may also eventually
include the functionality to record image and audio recording device
data. FRA is aware of crashworthy PTC event recorder products already
under development that include image recording memory functions.\95\ A
single crashworthy event recorder memory module that fulfills the
existing locomotive safety requirements of part 229, the PTC
requirements of part 236, and any future image recording device
requirements adopted in this rulemaking, may make economic and
logistical sense for railroads to acquire and install on affected
locomotives. In the future, railroads may voluntarily install such a
new, single, crashworthy PTC memory module that fulfills multiple
railroad safety regulatory requirements on locomotives.
    FRA seeks comments on the proposed crashworthy memory retention
requirements for passenger locomotive recording devices discussed
above. FRA is specifically interested in making the final rule
appropriately performance-based and cost-effective. FRA believes it has
proposed a cost-effective method of meeting the FAST Act's
crashworthiness mandate for passenger train locomotive recording
devices while attempting to minimize potential regulatory costs, but is
interested in comments addressing potential

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

whether a train crew member is physically incapacitated or is not
complying with signal system or other operational control system
indications. FRA's intent is not to have image recording devices
focused on the faces of the individuals in the cab, but rather to
require sufficient clarity so that, over a period of operation, the
actions of the cab occupants can be monitored.
    FRA's intends that an inward-facing image recording device on
passenger train lead locomotives would have sufficient clarity and
resolution to show whether occupants of the cab are using or
manipulating small hand-held personal electronic devices such as cell
phones. FRA is not proposing to require the image recording devices to
be capable of showing what was displayed on the screen of such a hand-
held device, but simply whether the device was turned on and whether a
person was using the device. As discussed above, FRA believes one of
the best proactive safety uses of an inward-facing camera system is to
conduct operational tests to ensure operating employees' compliance
with the restrictions on the use of personal electronic devices under
part 220, subpart C.
    Inward-facing image recorders would also likely be capable of
allowing viewers to identify signs of obvious fatigue, such as motions
of the head or body that may indicate obvious fatigue or whether a cab
occupant appears to be asleep. For example, constant head nodding or
dozing of a locomotive engineer, as well as the engineer slumped over
asleep, would be signs of obvious fatigue.
    As discussed at length during the RSAC Working Group Meetings,
fatigue is an ongoing issue in the railroad industry and is often a
relevant causal factor that is considered during post-accident
investigations. While FRA has a number of efforts underway to address
the problem of fatigue in the industry, the inward-facing image
recording device requirement would assist accident investigators in
making more accurate fatigue-related determinations, with the ultimate
aim of taking actions to prevent future accidents caused by fatigue.
    Although FRA understands that camera systems are under development
that will permit evaluating a crewmember's alertness based on patterns
of eye blinks, it is not FRA's intent to require installation of such a
system for passenger locomotives. FRA believes the proposed
requirements in this paragraph can be met by the inward-facing
recording device recording images at a rate as few as 5 fps (or its
equivalent), because motion in the cab occurs at a much lower rate than
in front of the lead locomotive. For example, APTA's recommended
practice for the selection of recording systems for use in transit-
related closed circuit television recording systems \96\ specifies that
5 fps is the minimum recommended frame rate for use in low-traffic
areas or areas where only walking-pace motion is likely (such as
passenger areas). FRA has also proposed in paragraph (c) that the
inward-facing image recording system for passenger train lead
locomotives be able to record the desired actions using the ambient
light in the cab. And, if ambient light levels drop too low for normal
operation, the image recorders(s) should automatically switch to
infrared or another operating mode that gives the recording sufficient
clarity to comply with this rule's requirements. FRA has specified
using infrared technology to give sufficient image recordings in low-
light or nighttime conditions in the proposed rule text. Feedback from
the industry indicates that infrared systems work well to provide
sufficient image recording clarity in low-light conditions and does not
interfere with a crew's ability to see, especially out the locomotive's
windows. KCS' presentation to the Working Group indicted that its
infrared camera devices emit a barely distinguishable glow in the cab
of the locomotive. Infrared image recording devices are also widely
available and relatively inexpensive to purchase. FRA has also
referenced ``another operating mode'' to capture using other sufficient
low-light image recording capability technologies that exist or may
arise. FRA seeks comments on whether any other technology exists or is
under development that may accomplish the same purpose as infrared
technology use with image recording devices in low-light situations.
FRA reminds railroads that any infrared or other lighting operation in
low light conditions should not interfere with a crew's vision (see 49
CFR 229.127(a)), and that the placement of the image recording devices
should not obstruct a crew's view of the right-of-way from its normal
positions in the cab (49 CFR 229.119(b)).
---------------------------------------------------------------------------

    \96\ American Public Transportation Association Standards
Development Program Recommended Practice, Selection of Cameras,
Digital Recording Systems, Digital High-Speed Networks and
Trainlines for Use in Transit-Related CCTV Systems, APTA IT-CCTV-RP-
001-11 (June 2011); available online at: http://www.apta.com/resources/standards/Documents/APTA-IT-CCTV-RP-001-11.pdf.
---------------------------------------------------------------------------

    Similar to the discussion above for outward-facing image recording
devices, FRA is also proposing in paragraph (c) that any inward-facing
image recordings in passenger train lead locomotives have an accurate
date and time stamp. FRA believes an accurate time and date stamp is
essential to the usefulness of the recordings, especially for post-
accident investigations. Also, similar to the proposal for outward-
facing cameras above, FRA is proposing that when there is an en route
failure of a passenger locomotive's inward-facing image recording
device, the locomotive could not be used as a train's lead locomotive
after the next calendar day's inspection of the locomotive as required
by Sec.  229.21 if the recording device is not first repaired or
replaced.
    Finally, FRA has also proposed under this paragraph (c) that no
recordings be made of any activities within a passenger locomotive's
sanitation compartment as defined by existing Sec.  229.5. A
locomotive's sanitation compartment is an enclosed compartment that
contains a toilet facility for employee use. The Working Group
discussed this topic, and FRA believes such recordings would be an
unwarranted invasion of personal privacy and would likely be illegal.
In light of those concerns, FRA is proposing to expressly prohibit
recordings of any activities in a passenger locomotive's sanitation
compartment or placing any image recording device where it would allow
the device to record such activities. FRA strongly recommends that
freight railroads likewise ensure that voluntarily installed recording
devices do not infringe on the privacy of their locomotives' sanitation
compartments.
    Proposed paragraph (d) would require wired or wireless connections
to be provided to ensure only authorized passenger railroad personnel
can download image and audio recordings from the certified crashworthy
memory module and any other standard memory module. Due to potential
for misuse of recordings locomotive image and audio recording systems
make, FRA proposes that passenger railroads use electronic security
measures to ensure only authorized railroad personnel can download
recordings. Such security measures could include password or passcode
protection to access a memory module. Proposed paragraph (d) would give
passenger railroads discretion whether to use wired or wireless
download connections and which appropriate electronic security measures
to adopt. This proposed discretion would accommodate improved
electronic information security technologies that develop in the
future. FRA seeks comments on whether

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

recording preservation requirement. Such recordings would continue to
be required to be preserved under this proposed paragraph. Thus, FRA's
proposal regarding the preservation of locomotive recordings does not
represent any regulatory change; however, some passenger railroads that
previously did not have inward- or outward-facing image recording
devices in their lead locomotives will now have to install such devices
and will have to store the associated data.
    Paragraph (f)(2) specifies the post-accident preservation
requirements for passenger locomotive image and audio recordings. If a
locomotive being used in commuter or intercity passenger service is
equipped with image or audio recorders and involved in a reportable
accident or incident under part 225 of this chapter (Part 225
reportable accident), this paragraph proposes that the railroad using
the locomotive at the time of the accident or incident must preserve
the devices' data for analysis by FRA or other Federal agencies for up
to one year after the accident. The purpose of this proposed provision
is to ensure data from passenger locomotive-mounted recording devices
is retained for use by FRA as well as other Federal agencies to
effectively conduct post-accident/incident investigations and more
accurately determine their causes. Additionally, this paragraph's one-
year retention requirement would fulfill the FAST Act's mandate that
each passenger railroad preserve recording device data for one year
after the date of a Part 225 reportable accident.
    To allow for analysis by FRA or other Federal agencies during
investigations, paragraph (f)(2) proposes to require a railroad to
either provide the image and/or audio data in a usable format, or make
available any platform, software, media device, etc. that is required
to play back the image and/or audio data. In the past, FRA has
encountered challenges in investigating accidents/incidents where
railroads have provided data to FRA but not the means to read, view, or
use the data. This proposal is intended to prevent that issue.
    While freight locomotive recording devices are not covered under
this proposed paragraph, preservation requirements for recordings from
freight locomotive recording devices can be found in existing Sec.
229.135(e). Section 229.135(e) already applies to any locomotive image
and audio recordings that exist on a passenger or freight locomotive
involved in a Part 225 reportable accident. As FRA explained in its
2010 letter to Metrolink discussed above, existing Sec.  229.135(e)
applies by its plain text to ``any other locomotive-mounted recording
device or devices designed to record information concerning the
functioning of a locomotive or train.'' FRA considers in-cab locomotive
cameras to be ``other locomotive-mounted recording devices'' within the
meaning of that existing section.
    Paragraph (f)(3) would establish permissible uses of a passenger
locomotive's image or audio recordings and is similar to proposed text
FRA presented during the Working Group meetings. While proposed
paragraph (f)(3) only applies to image or audio recordings from
passenger locomotives, FRA is asking for comments on whether proposed
paragraph (f)(3) should also apply to image or audio recordings from
freight locomotives with voluntarily installed recording devices. The
FAST Act, at 49 U.S.C. 20168(d), establishes three express purposes for
which passenger railroads may use image recordings and gives FRA
discretion to designate other appropriate purposes. The three express
purposes stated in the FAST Act are for:

    (1) Verifying that train crew actions are in accordance with
applicable safety laws and the railroad carrier's operating rules
and procedures, including a system-wide program for such
verification; (2) assisting in an investigation into the causation
of a reportable accident or incident; and (3) documenting a criminal
act or monitoring unauthorized occupancy of the controlling
locomotive cab or car operating compartment.

49 U.S.C. 20168(d). FRA has divided the first express purpose in the
FAST Act into two items under paragraph (f)(3), to expressly state
passenger railroads may use recordings to investigate a violation of a
Federal railroad safety law, regulation, or order, or a railroad's
operating rules and procedures and to conduct operational tests under
Sec.  217.9. A railroad's program of operational testing is the
existing method of conducting such a system-wide verification of rules
compliance. FRA's regulations are issued under the authority of the
Federal railroad safety laws, and often require railroads to adopt
rules governing safe railroad operations. FRA believes Congress
intended the Federal railroad safety regulations issued under the
safety laws to be included under the Statute's provision, and FRA also
has discretion under paragraph (d)(4) of the Statute to include other
purposes FRA deems appropriate.
    FRA has also incorporated the FAST Act's permission to use
passenger locomotive recordings to assist in conducting investigations
into the cause of reportable accidents. As discussed above, the NTSB
has long sought to use recordings to help conduct post-accident
investigations to accurately determine accident causes with the goal of
improving railroad safety. This use will also enable passenger
railroads to continue to utilize image recordings in litigation
involving grade crossing and trespasser accidents.
    Next, FRA has also proposed to incorporate the FAST Act's
permission to use recordings on passenger trains to document any
criminal acts and unauthorized occupancy of the cab, as well as the
investigation of a suspected or confirmed act of terrorism. It is not
FRA's intent that any of the proposals in this NPRM would affect the
ability of law enforcement personnel or a Federal agency's access or
use of passenger locomotive image or audio recordings to conduct
criminal investigations, as is expressly stated in proposed paragraph
(h) below. No current FRA regulations specifically address unauthorized
occupancy of locomotive cabs. However, the issue of unauthorized
occupancy of the locomotive cab has arisen many times in the past in
the context of railroad accidents and other FRA safety-related
investigations, is quite relevant information in accident
investigations, and may also arise in certain criminal investigations.
    In the FAST Act, Congress permits FRA to deem other appropriate
purposes for which passenger railroads could use locomotive image
recordings. Therefore, FRA proposes in paragraph (f)(3)(vii) to allow
passenger railroads to use recordings to perform inspection, testing,
maintenance, or repair activities to ensure inward-facing image
recorders are properly installed and functioning. Under proposed Sec.
229.136(e) discussed above, FRA expects that at each periodic
inspection Sec.  229.23 requires, the passenger railroad conducting the
inspection of the equipped locomotive would take sample download(s) to
confirm operation of the system, and, if necessary, repair the system
to full operation. However, FRA also intends to allow a passenger
railroad to use recordings to ensure the proper functioning of a
recording system at any time, especially if a recording system
malfunctions and requires repair.
    FRA requests comment on whether other appropriate safety-related
uses exist for locomotive recordings which it should include in a final
rule. Further, although the FAST Act applies only to recordings that
image recording devices make on passenger locomotives subject to the
Act's requirements, FRA is requesting comment on whether paragraph
(f)(3) should apply to recordings made by locomotives in

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

recording devices a passenger railroad installs. FRA believes the
existing crashworthy memory module requirements in appendix D intended
to protect the microprocessor-based data recorded by a locomotive's
event recorder are also the appropriate standards for microprocessor
data a lead passenger locomotive's image and audio recording systems
record. The railroad industry has extensive experience with the
standards in appendix D, and collaboratively created these standards
via RSAC recommendations to FRA in 2003 that were incorporated into
Federal regulation in 2005. 70 FR 37920 (June 30, 2005).
    Appendix D establishes the general requirements, testing sequence,
and required marking for memory modules certified by their
manufacturers as crashworthy. Appendix D also contains performance
criteria for memory module survivability from fire, impact shock,
crush, fluid immersion, and hydrostatic pressure. Any memory module
used to store the last 12 hours of data from an image or audio
recording device meeting the performance criteria in appendix D would
comply with the crashworthiness proposal in this NPRM.
    FRA understands the NTSB prefers stricter recorder survivability
standards than those in appendix D. NTSB has recommended FRA require
event recorder data to also be recorded in another location remote from
the lead locomotive(s) to minimize the likelihood of data destruction
in an accident, as has occurred in certain accidents. NTSB Safety
Recommendation R-13-22.\97\ However, the existing crashworthiness
standards in appendix D require a memory module capable of surviving
the majority of railroad accidents. FRA believes a new, more stringent
standard that would prevent the destruction of data in every passenger
railroad accident scenario is likely not cost beneficial, and is also
likely unnecessary given the future implementation of PTC systems.
---------------------------------------------------------------------------

    \97\ National Transportation Safety Board, Safety Recommendation
R-13-22 (Aug. 14, 2013); available online at: http://www.ntsb.gov/safety/safety-recs/recletters/R-13-018-023.pdf.
---------------------------------------------------------------------------

    As discussed above, the railroad accidents in which the NTSB has
discussed locomotive image and audio recording device recommendations
were human-factor caused accidents. Nearly all those human-factor
caused railroad accidents were PTC-preventable. Thus, upon the
implementation of PTC systems (Amtrak has already implemented a PTC
system on segments of track on the Northeast Corridor), the likelihood
of similar accidents occurring should be eliminated or greatly reduced.
In turn, the need should diminish for more stringent crashworthy memory
module requirements to preserve image and audio recordings for use to
investigate human-factor caused accidents on main track.
    FRA proposes that a memory module meeting the specified performance
criteria in either Table 1 or Table 2 of section C of appendix D would
be acceptable. As FRA discussed in the rulemaking promulgating the
crashworthy memory module standards, each set of criteria in Tables 1
and 2 is a performance standard and FRA has not included any specific
test procedures to achieve the required level of performance. FRA did
not believe it necessary to include specific testing criteria in the
regulation as the industry and manufacturers are in the best position
to determine the exact way they will test for the specified performance
parameters. 69 FR 39785 (June 30, 2004). Not requiring specific test
procedures also accommodates any future testing methods that develop.
    Finally, under the FAST Act (49 U.S.C. 20168(e)(2)), FRA has
discretion to exempt railroads from the inward- and outward-facing
image recording device requirements based on alternative technologies
or practices that provide for an equivalent or greater safety benefit
or are better suited to the risks of the operation. FRA believes it may
be appropriate to exercise this discretion under the Act to provide an
exemption from the proposed crashworthiness requirements in this NPRM.
FRA is contemplating an exemption from the crashworthiness requirements
where lead passenger locomotive recordings are immediately transmitted
and stored at a remote location off of the locomotives(s) when
technology reliably allows for such a recording system. This proposal
is also consistent with the FAST Act's requirement for crashworthy
storage only when recordings are stored on a controlling locomotive's
cab. 49 U.S.C. 20168(b)(2).
    Based on Working Group discussions, FRA understands that current
technology does not always permit such a wirelessly transmitted data
recording system to work effectively in all locations (e.g., at remote
locations or locations where physical features such as tunnels or
elevation result in no reliable wireless transmission of data). FRA
requests comment on this topic, including whether this exemption might
best be addressed on an individual railroad or operation via the waiver
process at 49 CFR part 211. This exemption would be consistent with the
intent of NTSB Recommendation R-13-22 discussed above, in that data
regarding the operation of a locomotive that is stored remotely is not
at risk of being lost in an accident involving that locomotive.

VIII. Regulatory Impact and Notices

A. Executive Order 12866, Executive Order 13563, Executive Order 13771,
and DOT Regulatory Policies and Procedures

    This proposed rule is a significant regulatory action within the
meaning of Executive Order 12866 (E.O. 12866) and DOT policies and
procedures. See 44 FR 11034 (Feb. 26, 1979). FRA made this
determination by finding that, although the economic effects of this
proposed regulatory action would not exceed the $100 million annual
threshold defined by E.O. 12866, the proposed rule is significant
because of the substantial public interest in transportation safety.
The proposed rule attempts to follow the direction of Executive Order
13563, which emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. However, FRA was unable to determine how effective
locomotive image recording devices would be at reducing accidents.
Thus, instead of presenting the quantifiable benefits, FRA presented
the benefits qualitatively, as discussed further below. Finally, this
proposed rule is expected to be an E.O. 13771 regulatory action.
Details on the estimated costs of this proposed rule can be found in
the rule's economic analysis.
    This NPRM directly responds to the Congressional mandate in section
11411 of the FAST Act that FRA, by delegation from the Secretary,
require each railroad that provides intercity rail passenger or
commuter rail passenger transportation to install image recording
devices on the controlling locomotives of passenger trains. FRA
believes the requirements of this proposed rule, as applied to
passenger trains, are directly or implicitly required by the FAST Act
and will promote railroad safety.
    FRA has prepared and placed a RIA addressing the economic impact of
this proposed rule in the Docket (Docket no. FRA-2016-0036). The RIA
details estimates of the costs of this proposed rule that are likely to
be incurred over a ten-year period. FRA estimated the costs of this
proposed rule using discount rates of 3 and 7 percent. For the 10-year
period analyzed, the estimated quantified costs for passenger

railroads, which must comply with all proposed requirements in the
NPRM, total a present value (PV) of $31,837,918 (PV, 7 percent), and
$34,664,317 (PV, 3 percent). FRA is interested to learn from industry
stakeholders about potential alternatives to meet a reasonable
crashworthiness level for locomotive image recording systems for
passenger locomotives. FRA believes it has proposed a cost-effective
method of meeting the FAST Act's crashworthiness mandate for passenger
locomotives while attempting to minimize potential regulatory costs.
FRA is interested in comments addressing additional crashworthiness
options, with the intent to make a final rule appropriately
performance-based and cost-effective. Specifically, FRA seeks public
input on the forces memory systems should ideally be able to withstand,
and the fire resistance necessary for the data to survive. As discussed
in the preamble above, FRA may consider passenger locomotive memory
module crashworthiness protection requirements unnecessary (or met) in
the future if recorded data is stored at a remote location off of a
locomotive consist, safe from accident destruction. FRA did not propose
to require this option because the agency does not believe current
technology would reliably allow for such remote transmission and
storage in all instances, and such a system would likely be much more
costly to develop in order to transfer the recorded data to a
centralized location. FRA requests comment regarding whether a remote
storage option has any utility (or is feasible) at present or in the
future.
    In addition to complying with the FAST Act's statutory mandate for
passenger locomotives, FRA's original reason for requiring image
recording devices to be installed in the locomotives is the collection
of causal information. For example, in the 2015 Amtrak accident in
Philadelphia, Pennsylvania, image recording devices could have helped
provide additional causal information during the post-accident
investigation. Causal data is especially critical for the prevention of
future accidents when no apparent accident cause can be determined
through other means. Further, images can become key to identifying new
safety concerns that otherwise would be difficult to research or
identify, which could lead FRA and the railroad industry to better
understand areas in which safety could be improved. Other, probably
larger, safety benefits would also primarily accrue from the deterrence
of unsafe behaviors that cause railroad accidents. For instance, the
presence of locomotive image recording devices could have deterred the
engineer from text messaging while operating the Metrolink train
involved in the 2008 accident at Chatsworth, California. In the RIA,
FRA discusses and provides examples of how the deterrent effect of
locomotive image recording devices could reduce negative behavior
because train crews know their actions are being recorded.\98\
---------------------------------------------------------------------------

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

    Other benefits include: (1) Giving railroads the ability to perform
operational efficiency tests that were impossible to perform in a
practical manner without cameras (e.g., for prohibited use of personal
electronic devices) and at a lower cost; (2) providing information to
research how crews perform (both to improve safety and to improve
productivity); (3) providing better physical security of trains; and
(4) increasing railroad productivity.
    While FRA is declining to require locomotive recording devices in
freight locomotives, many freight railroads have informed FRA the above
reasons are why railroads are installing camera systems even without an
FRA regulation. FRA's analysis shows there are many factors that are
difficult to quantify that combine to warrant the proposed rule. FRA
believes that given current railroad business and operational
practices, this analysis demonstrates the quantifiable benefits for
this proposed rule would not exceed the costs.
    Tables: Costs of the proposed rule:

                                     Table 1--10-Year Costs and Cost Savings
                                          [Discounted, 7 and 3 percent]
----------------------------------------------------------------------------------------------------------------
     Table 1. 10-year costs and cost savings      Discounted  at  Discounted  at  Annualized  at  Annualized  at
          (discounted, 7 and 3 percent)                 7%              3%              7%              3%
----------------------------------------------------------------------------------------------------------------
Costs...........................................     $32,884,651     $35,915,229      $4,682,035      $4,210,360
    Camera......................................      27,441,173      29,956,299       3,907,006       3,511,792
    Crashworthiness.............................       5,443,479       5,958,929         775,029         698,568
Cost Savings:
    Operational Testing Benefits................       1,046,734       1,250,912         149,031         146,645
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
        Net Costs...............................      31,837,918      34,664,317       4,533,003       4,063,715
----------------------------------------------------------------------------------------------------------------

B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment

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

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

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule are
being submitted to the Office of Management and Budget (OMB) for review
and approval in accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). The sections that contain the new information and
current information collection requirements and the estimated time to
fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                Total  annual
                                 Respondent      Total annual     Average time     Total annual       dollar
         CFR section              universe        responses       per response     burden hours     equivalent
                                                                                cost
----------------------------------------------------------------------------------------------------------------
217.7--Operating Rules;       2 new railroads  2 documents....  1 hour.........  2 hours........             150
 Filing and Recordkeeping--
 Filing of code of operating
 rules, timetables, and
 special instructions with
 FRA.
    --Amendments to code of   55 railroads...  165 revised      20 minutes.....  55 hours.......           4,125
     operating rules,                           documents.
     timetables, and special
     instructions by Class
     I, Class II, Amtrak,
     and commuter railroads.
    --Class III and other     5 new railroads  5 submitted      55 minutes.....  5 hours........             375
     railroads: Copy of code                    documents.
     of operating rules,
     timetables, and special
     instructions.

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

    --Employer's copy of      755 railroads..  755 copies.....  5 minutes......  63 hours.......           4,725
     written required by
     this section.
    --RR verification         20 railroads...  20 copies......  5 minutes......  2 hours........             150
     decision copies.
218.99--Shoving or Pushing    755 railroads..  32 rule          1 hour.........  32 hours.......           2,400
 Movement: RR operating rule                    revisions.
 complying with section's
 requirements.
218.101--Leaving Equipment    755 railroads..  32 amended       30 minutes.....  16 hours.......           1,200
 in the Clear: Operating                        rules.
 Rule that Complies with
 this section.
218.103--Hand-Operated        755 railroads..  32 revised op.   60 minutes.....  32 hours.......           2,400
 Switches: Operating Rule                       rules.
 that Complies with this
 section.
    --Job briefings: Minimum  755 railroads..  5 modified op.   30 minutes.....  3 hours........             225
     requirements specified                     rules.
     in operating rules.
229.136--Locomotive mage      4,500 passenger  4,120 notes....  15 seconds.....  17 hours.......           1,241
 Recording Systems (New        locomotives.
 Requirements)--Duty to
 equip and record: Noting
 the presence of any image
 and audio recording system
 on each lead locomotive in
 intercity and commuter rail
 passenger service in
 ``Remarks'' section of Form
 FRA F 6180.49A.
    --Image recording system  4,500 passenger  4,120            12 hours.......  49,440 hrs.....               0
     capturing at least most   locomotives.     recordings.
     recent 12 hours of
     operation of an
     intercity passenger or
     commuter rail passenger
     locomotive.
    --Passenger railroads     27 railroads...  20 c of c        48 hours.......  960 hours......          72,000
     voluntary adoption and                     procedures.
     development of chain of
     custody (c of c)
     procedures.
    --Passenger railroad      31 railroads...  163 saved        12 hours.......  1,956 hours....         140,832
     preservation of                            recordings.
     accident/incident data
     of image recording
     system from locomotive
     using such system at
     time of accident/
     incident (includes
     voluntary freight
     railroads & restates
     previous requirement
     under section
     229.135(e)).
    --Provision by passenger  31 railroads...  31 written       50 hours.......  1,550 hours....         113,150
     railroad of written                        descriptions/
     description of                             plans.
     technical aspects any
     locomotive image
     recording system to FRA
     for approval.
    --Removal of locomotive   31 railroads...  20 notations...  15 minutes.....  5 hours........             305
     recording device from
     service from locomotive
     in commuter or
     intercity passenger
     service and handling
     for repair: Notation on
     Form FRA 6180.49A in
     ``Remarks'' section of
     date the device was
     removed from service.
                             -----------------------------------------------------------------------------------
        Total...............  N/A............  9,240,241......  N/A............  210,915........      11,470,639
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning: Whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, Federal Railroad Administration, at 202-
493-6292, or Ms. Kimberly Toone, Records Management Officer, Federal
Railroad Administration, at<PHONE_NUMBER>.
    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New
Jersey Avenue SE, 3rd Floor, Washington, DC 20590. Comments may also be
submitted via email to Mr.

Brogan at<EMAIL_ADDRESS>or to Ms. Toone at 1b507276354f7474757e5b7f746f357c746d.
    OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register. FRA will be seeking approval for the
information collection requirements associated with this rule under OMB
No. 2130-0035.

D. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, or the agency consults with State and local government
officials early in the process of developing the regulation. Where a
regulation has federalism implications and preempts State law, the
agency seeks to consult with State and local officials in the process
of developing the regulation.
    FRA has analyzed this NPRM under the principles and criteria
contained in Executive Order 13132. This NPRM could affect State and
local governments to the extent that they sponsor, or exercise
oversight of, passenger railroads. Because this proposed rule is
required by Federal statute for passenger railroads under 49 U.S.C.
20168, the consultation and funding requirements of Executive Order
13132 do not apply. However, this proposed rule could have preemptive
effect by operation of law under certain provisions of the Federal
railroad safety statutes, specifically the former Federal Railroad
Safety Act of 1970, repealed and recodified at 49 U.S.C. 20106. Section
20106 provides that States may not adopt or continue in effect any law,
regulation, or order related to railroad safety or security that covers
the subject matter of a regulation prescribed or order issued by the
Secretary of Transportation (with respect to railroad safety matters)
or the Secretary of Homeland Security (with respect to railroad
security matters), except when the State law, regulation, or order
qualifies under the ``essentially local safety or security hazard''
exception to section 20106.
    In sum, FRA has analyzed this proposed rule under the principles
and criteria in Executive Order 13132. As explained above, FRA has
determined this proposed rule has no federalism implications, other
than the possible preemption of State laws under Federal railroad
safety statutes, specifically 49 U.S.C. 20106. Therefore, preparation
of a federalism summary impact statement for this proposed rule is not
required.

E. Environmental Impact

    FRA has evaluated this proposed rule consistent with the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), other
environmental statutes, related regulatory requirements, and its
``Procedures for Considering Environmental Impacts'' (FRA's Procedures)
(64 FR 28545, May 26, 1999). FRA has determined that this proposed rule
is categorically excluded from detailed environmental review pursuant
to section 4(c)(20) of FRA's NEPA Procedures, ``Promulgation of
railroad safety rules and policy statements that do not result in
significantly increased emissions of air or water pollutants or noise
or increased traffic congestion in any mode of transportation.'' See 64
FR 28547, May 26, 1999. Categorical exclusions (CEs) are actions
identified in an agency's NEPA implementing procedures that do not
normally have a significant impact on the environment and therefore do
not require either an environmental assessment (EA) or environmental
impact statement (EIS). See 40 CFR 1508.4.
    In analyzing the applicability of a CE, the agency must also
consider whether extraordinary circumstances are present that would
warrant a more detailed environmental review through the preparation of
an EA or EIS. Id. Under section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this proposed regulation that might trigger the need
for a more detailed environmental review. The purpose of this
rulemaking is to propose that passenger railroads install recording
devices on locomotives and use those devices to help investigate and
prevent railroad accidents. FRA does not anticipate any environmental
impacts from these proposed requirements and finds there are no
extraordinary circumstances present in connection with this proposed
rule.

F. Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2(a) (91 FR 27534 May 10, 2012) require DOT agencies to
achieve environmental justice as part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects, including interrelated social
and economic effects, of their programs, policies, and activities on
minority populations and low-income populations. The DOT Order
instructs DOT agencies to address compliance with Executive Order 12898
and requirements within the DOT Order in rulemaking activities, as
appropriate. FRA has evaluated this proposed rule under Executive Order
12898 and the DOT Order and has determined it would not cause
disproportionately high and adverse human health and environmental
effects on minority populations or low-income populations.

G. Executive Order 13175 (Tribal Consultation)

    FRA has evaluated this proposed rule under the principles and
criteria in Executive Order 13175, Consultation and Coordination with
Indian Tribal Governments, dated November 6, 2000. The proposed rule
would not have a substantial direct effect on one or more Indian
tribes, would not impose substantial direct compliance costs on Indian
tribal governments, and would not preempt tribal laws. Therefore, the
funding and consultation requirements of Executive Order 13175 do not
apply, and a tribal summary impact statement is not required.

H. Unfunded Mandates Reform Act of 1995

    Under Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub.
L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless otherwise
prohibited by law, assess the effects of Federal regulatory actions on
State, local, and tribal governments, and the private sector (other
than to the extent that such regulations incorporate requirements
specifically set forth in law).'' Section 202 of the Unfunded Mandates
Reform Act (2 U.S.C. 1532) further requires that before promulgating
any general notice of proposed rulemaking that is likely to result in
the promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) in any 1 year, and before promulgating any
final rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a written statement detailing the
effect on State, local, and tribal governments and the private sector.
This proposed rule will not result in the expenditure, in the
aggregate, of $100,000,000 or more (as adjusted annually for inflation)
in any one year, and thus preparation of such a statement is not
required.

I. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) That is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) that is designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. FRA has evaluated this proposed rule in accordance with
Executive Order 13211. FRA has determined that the proposals in this
rule are not likely to have a significant adverse effect on the supply,
distribution, or use of energy. Consequently, FRA has determined that
this proposed rule is not a ``significant energy action'' within the
meaning of Executive Order 13211.
    Executive Order 13783, ``Promoting Energy Independence and Economic
Growth,'' requires Federal agencies to review regulations to determine
whether they potentially burden the development or use of domestically
produced energy resources, with particular attention to oil, natural
gas, coal, and nuclear energy resources. 82 FR 16093 (March 31, 2017).
Executive Order 13783 defines ``burden'' to mean unnecessarily
obstruct, delay, curtail, or otherwise impose significant costs on the
siting, permitting, production, utilization, transmission, or delivery
of energy resources. FRA determined this proposed rule will not
potentially burden the development or use of domestically produced
energy resources.

J. Trade Impact

    The Trade Agreements Act of 1979 (Pub. L. 96-39, 19 U.S.C. 2501 et
seq.) prohibits Federal agencies from engaging in any standards setting
or related activities that create unnecessary obstacles to the foreign
commerce of the United States. Legitimate domestic objectives, such as
safety, are not considered unnecessary obstacles. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards. FRA has
assessed the potential effect of this proposed rule on foreign commerce
and believes that its requirements are consistent with the Trade
Agreements Act of 1979. The requirements proposed are safety standards,
which, as noted, are not considered unnecessary obstacles to trade.

K. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, to www.regulations.gov, as described in the
system of records notice, DOT/ALL-14 FDMS, accessible through
www.dot.gov/privacy. In order to facilitate comment tracking and
response, we encourage commenters to provide their name, or the name of
their organization; however, submission of names is completely
optional. Whether or not commenters identify themselves, all timely
comments will be fully considered. If you wish to provide comments
containing proprietary or confidential information, please contact the
agency for alternate submission instructions.

List of Subjects

49 CFR Part 217

    Occupational safety and health, Penalties, Railroad employees,
Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 218

    Occupational safety and health, Penalties, Railroad employees,
Railroad safety, Locomotives, and Tampering.

49 CFR Part 229

    Locomotives, Penalties, Railroad employees, Railroad safety,
Reporting and recordkeeping requirements.

The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend
chapter II, subtitle B of title 49, Code of Federal Regulations, as
follows:

PART 217--RAILROAD OPERATING RULES

0
1. The authority citation for part 217 is revised to read as follows:

    Authority: 49 U.S.C. 20103, 20107, 20168, 28 U.S.C. 2461, note;
and 49 CFR 1.89.

0
Subpart A--General
0
2. In Sec.  217.9, add paragraphs (b)(3) and (4) to read as follows:

Sec.  217.9  Program of operational tests and inspections;
recordkeeping.

* * * * *
    (b) * * *
    (3) A railroad that utilizes inward-facing locomotive image or in-
cab audio recordings to conduct operational tests and inspections shall
adopt and comply with a procedure in its operational tests and
inspections program that ensures employees are randomly subject to such
operational tests and inspections involving image or audio recordings.
The procedure adopted by a railroad must:
    (i) Establish objective, neutral criteria to ensure every employee
subject to such operational tests and inspections is selected randomly
for such operational tests and inspections within a specified time
frame;
    (ii) Not permit subjective factors to play a role in selection,
i.e., no employee may be selected based on the exercise of a railroad's
discretion; and
    (iii) Require that any operational test or inspection performed
using locomotive image recordings be performed within 72 hours of the
completion of the employee's tour of duty that is the subject of the
operational test. Any operational test performed more than 72 hours
after the completion of the tour of duty that is the

subject of the test is a violation of this section. The 72-hour
limitation does not apply to investigations of railroad accidents/
incidents or to violations of Federal railroad safety laws,
regulations, and orders, or any criminal laws.
    (4) FRA may review a railroad's procedure implementing paragraph
(b)(3) of this section, and, for cause stated, may disapprove such
procedure under paragraph (h) of this section.
* * * * *

PART 218--RAILROAD OPERATING PRACTICES

0
3. The authority citation for part 218 is revised to read as follows:

    Authority: 49 U.S.C. 20103, 20107, 20131, 20138, 20144, 20168,
28 U.S.C. 2461, note; and 49 CFR 1.89.

Subpart D--Prohibition Against Tampering With Safety Devices

0
4. In Sec.  218.53, revise paragraph (c) and add paragraph (d) to read
as follows:

Sec.  218.53  Scope and definitions.

* * * * *
    (c) Safety Device means any locomotive-mounted equipment used
either to assure the locomotive engineer is alert, not physically
incapacitated, and aware of and complying with the indications of a
signal system or other operational control system, or a system used to
record data concerning the operations of that locomotive or the train
it is powering. See appendix C to this part for a statement of agency
policy on this subject.
    (d) The provisions in Sec. Sec.  218.59 and 218.61 do not apply to