70722 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Parts 217, 218, 229, and 299 

[Docket No. FRA–2016–0036, Notice No. 2] 

RIN 2130–AC51 

Locomotive Image and Audio 

Recording Devices for Passenger 

Trains 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: FRA is requiring the 

installation of inward- and outwardfacing locomotive image recording 

devices on all lead locomotives in 

passenger trains, as required by the 

Fixing America’s Surface Transportation 

Act (FAST Act). In general, the final 

rule requires that these devices record 

while a lead locomotive is in motion 

and retain the data in a crashworthy 

memory module. The rule also treats 

locomotive-mounted recording devices 

on passenger locomotives as ‘‘safety 

devices’’ under existing Federal railroad 

safety regulations to prohibit tampering 

with or disabling them. Further, this 

rule governs the use of passenger 

locomotive recordings to conduct 

operational tests to determine passenger 

railroad operating employees’ 

compliance with applicable railroad 

rules and Federal regulations. Finally, 

this rule requires Texas Central Railroad 

(TCRR) to install and maintain trainset 

image recording systems appropriate to 

TCRR’s operation. 

DATES: This final rule is effective 

November 13, 2023. 

ADDRESSES: Docket: For access to the 

docket to read background documents 

or comments received, go to https://

www.regulations.gov at any time. 

FOR FURTHER INFORMATION CONTACT: 

Brian Roberts, Attorney Adviser, Office 

of the Chief Counsel, at email: 

Brian.Roberts@dot.gov or telephone: 

(202) 306–4333; or John Mayser, 

Specialist, Office of Railroad Safety, at 

email: John.Mayser@dot.gov or 

telephone: (202) 493–8008. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

II. Discussion of Specific Comments and 

Conclusions 

A. Inward- and Outward-Facing Recording 

Devices on Freight Locomotives 

1. Requiring Inward- and Outward-Facing 

Locomotive Recording Devices on 

Freight Locomotives 

2. Application of Requirements to Freight 

Railroads That Voluntarily Install 

Inward- or Outward-Facing Locomotive 

Recording Devices 

3. Application of Requirements to Freight 

Locomotives Performing Rescue 

Operations 

B. Audio Recording Devices 

1. Requiring Audio Recorders on Passenger 

or Freight Locomotives 

2. Referencing Audio in the Definition of 

‘‘Recording Device’’ in Part 229 

C. Recording Device Run-Time/Shutoff 

When Trains Stop Moving 

D. Exclusion of Existing Installed or 

Ordered Equipment 

E. Certified Crashworthy Event Recorder 

Memory Modules 

1. Necessity of Crashworthy Memory 

Modules 

2. Potential Exemptions From the 

Crashworthy Memory Module 

Requirements 

3. Need for Stronger Memory Module 

Requirements 

4. Storing Audio Recordings on the 

Crashworthy Memory Module 

F. Outward-Facing Locomotive Image 

Recording System and Devices 

1. Placement of Outward-Facing 

Locomotive Image Recording Devices 

2. Requirements for Outward-Facing 

Locomotive Image Recorders Are Too 

Prescriptive 

G. Inward-Facing Locomotive Image 

Recording Systems and Devices 

1. Inward-Facing Recording Devices as a 

Tool To Detect Fatigue 

2. Locomotive Recording Devices and RealTime Monitoring 

3. Inward-Facing Recording Device 

Coverage of the Locomotive Cab 

4. Recording in Low-Light Conditions 

5. Frame Rate for Inward-Facing Recording 

Devices 

6. Prohibition on Recording Activities 

Within a Locomotive’s Sanitation 

Compartment 

H. Notice Provided When Locomotive 

Recording Devices Are Present 

I. Repairing, Replacing, or Removing 

Locomotive Image Recording Devices 

From Service 

1. Practicableness of the Standard 

2. Standard’s Consistency With 

Locomotive Recording Devices’ 

Designation as Safety Devices 

3. Documenting When a Locomotive Image 

Recording Device Has Been Removed 

From Service 

J. FRA Approval Process for Locomotive 

Image Recording Systems and Devices 

1. Necessity of the Approval Process 

2. Clarifying the Approval Process 

3. Application of the Approval Process to 

Freight Locomotives 

K. Implementation Period of the Rule 

1. Four-Year Implementation Period 

2. Application of the Final Rule to Image 

Recording Systems in New, 

Remanufactured, or Existing 

Locomotives 

L. Operational (Efficiency) Testing 

1. Application of the Rule’s Part 217 

Amendments to Freight Railroads 

2. Burden of the Rule’s Part 217 

Requirements 

3. Appropriateness of Using Locomotive 

Recordings for Operational Testing 

4. FRA’s Authority To Regulate the Use of 

Locomotive Audio Recordings in 

Operational Testing 

5. Effect on FRA’s Confidential Close Call 

Recording System (C3RS) 

6. Rules or Regulations Locomotive 

Recording Devices Should Address as 

Part of a Passenger Railroad’s 

Operational Testing Program 

M. Locomotive Recording Devices as Safety 

Devices Under Part 218 

N. Twelve-Hour Recording Period for 

Locomotive Image Recording Devices 

1. Appropriateness of the 12-Hour 

Recording Period 

2. Feasibility of 24 Hours of Continuous 

Recording Capability 

O. Privacy Considerations 

P. Abuse of Locomotive Recording Devices 

Q. Recording Devices’ Effect on Railroad 

Employees 

R. Download and Security Features of 

Locomotive Recording Systems 

1. Federally Mandated or IndustryAdopted Standard 

2. Standard or Crashworthy Memory 

Modules 

S. Self-Monitoring and Self-Reporting 

Systems or Devices on Locomotive Image 

Recording Systems 

1. Whether Cost of These Systems or 

Devices Was Adequately Considered 

2. Taking a Sample Download During a 

Periodic Inspection 

T. Preservation and Handling 

Requirements for Locomotive Recording 

Devices and Recordings 

1. Chain-of-Custody Requirements 

2. Prohibitions on the Public Release of 

Locomotive Recordings 

3. Application to Audio Recording Devices 

and Their Recordings 

4. Preservation Requirements Between 

Different Public Agency Rail Owners and 

Operators 

5. Providing Image and Audio Data in a 

Usable Format 

6. Permissible Uses for Locomotive 

Recording Devices 

i. FRA Should Only Set Minimum Safety 

Requirements 

ii. Application to Freight Locomotive 

Recording Devices 

U. Factual Determinations When There Are 

Discrepancies Between Locomotive 

Image and Event Recorder Data 

V. Personal Electronic Device Use and 

Locomotive Recording Devices 

W. Positive Train Control 

X. Locomotive Image Recorder Analytics 

Y. Procurement of Locomotive Recording 

Devices 

Z. Application of the Rule to GP-Style 

Long-Hood Locomotives 

AA. Inclusion of Passenger Railroad Cab 

Cars in the Rule’s Requirements 

III. Civil Penalties 

IV. Discussion of Amendments to Part 299 

Pertaining to Texas Central Railroad 

Trainset Image Recording Systems 

V. Section-by-Section Analysis 

VI. Regulatory Impact and Notices 

A. Executive Order 12866, Executive Order 

13563, and DOT Regulatory Policies and 

Procedures 


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Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 70723 

1The former Federal Railroad Safety Act of 1970, 

as codified at 49 U.S.C. 20103, provides that ‘‘[t]he 

Secretary of Transportation, as necessary, shall 

prescribe regulations and issue orders for every area 

of railroad safety supplementing laws and 

regulations in effect on October 16, 1970.’’ 

2The Secretary’s responsibility under 49 U.S.C. 

20103, 20168, and the balance of the railroad safety 

laws, is delegated to the Federal Railroad 

Administrator. 49 CFR 1.89. 

3A detailed discussion of the Statute’s 

requirements is provided in the NPRM (84 FR 

35712, 35714–35715). 4A detailed analysis of the NTSB 

Recommendations is provided in the NPRM (84 FR 

35712, 35715–35723). 5https://rsac.fra.dot.gov/radcms.rsac/task/ 

GetDocument/10. A detailed discussion of the 

RSAC proceedings is provided in the NPRM (84 FR 

35712, 35723). 6A detailed discussion of accidents investigated 

by FRA is provided in the NPRM (84 FR 35715– 

35723). 7 84 FR 35712. 

8As proposed in the NPRM, railroad carriers 

providing ‘‘intercity rail passenger transportation’’ 

and ‘‘commuter rail passenger transportation’’ are 

subject to this final rule and are the same as those 

covered by 49 U.S.C. 24102 (passenger railroads 

required to install positive train control (PTC) 

systems under 49 U.S.C. 20157(a)). 

9See 49 CFR 229.5. 

B. Regulatory Flexibility Act and Executive 

Order 13272; Certification 

C. Paperwork Reduction Act 

D. Federalism Implications 

E. Environmental Impact 

F. Executive Order 12898 (Environmental 

Justice) 

G. Executive Order 13175 (Tribal 

Consultation) 

H. Unfunded Mandates Reform Act of 1995 

I. Energy Impact 

J. Trade Impact 

K. Congressional Review Act 

Table of Abbreviations 

The following abbreviations are used 

in this document’s preamble: 

AAR—Association of American Railroads 

Amtrak—National Railroad Passenger 

Corporation 

APTA—American Public Transportation 

Association 

BLET—Brotherhood of Locomotive Engineers 

and Trainmen 

C3RS—Confidential Close Call Reporting 

System 

CFR—Code of Federal Regulations 

DOT—Department of Transportation 

FAST Act—Fixing America’s Surface 

Transportation Act 

FRA—Federal Railroad Administration 

Metra—Commuter Rail Division of the 

Illinois Regional Transportation Authority 

Metrolink—Southern California Regional Rail 

Authority 

NCTD—North Country Transit District 

NPRM—Notice of Proposed Rulemaking 

NTSB—National Transportation Safety Board 

OEM—Original equipment manufacturer 

PTC—Positive Train Control 

RIA—Regulatory Impact Analysis 

SMART—International Association of Sheet 

Metal, Air, Rail and Transportation 

Workers 

TCRR—Texas Central Railroad 

TTD—Transportation Trades Department, 

American Federation of Labor and 

Congress of Industrial Organizations (AFL– 

CIO) 

I. Executive Summary 

FRA is publishing this final rule as 

mandated by section 11411 of the FAST 

Act, codified at 49 U.S.C. 20168 (the 

Statute), and under the agency’s general 

railroad safety rulemaking authority at 

49 U.S.C. 20103.1 The Statute requires 

FRA (as the Secretary of 

Transportation’s delegate) 2 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.3 This final rule 

implements the Statute’s requirements 

regarding such recording devices on 

‘‘controlling’’ locomotives, which will 

normally be ‘‘lead’’ locomotives 

consistent with FRA’s existing 

regulations on locomotive event 

recorders. Before the Statute was 

enacted, the Railroad Safety Advisory 

Committee (RSAC) accepted a task from 

FRA in 2014 to address National 

Transportation Safety Board (NTSB) 

Safety Recommendations R–10–01 & 

–02 4 concerning locomotive-mounted 

recording devices (RSAC Task No. 14– 

01). The RSAC established the 

Recording Devices Working Group 

(Working Group) to recommend specific 

actions regarding the installation and 

use of locomotive-mounted recording 

devices, such as inward- and outwardfacing video and audio recorders.5 The 

RSAC did not vote, or reach consensus, 

on any recommendations to FRA 

regarding the adoption of regulatory text 

addressing locomotive-mounted video 

or audio recording devices. 

In light of the Statute’s mandate, 

relevant NTSB recommendations, the 

RSAC Working Group’s discussions, 

accident history, and railroad safety 

violations that FRA had investigated,6

FRA issued a notice of proposed 

rulemaking (NPRM) on July 24, 2019, 

proposing inward- and outward-facing 

image recording devices be required on 

all lead passenger train locomotives.7

FRA received comments from fifteen 

different individuals or organizations in 

response to the NPRM. 

Having carefully considered the 

public comments in response to the 

NPRM, FRA issues this final rule 

amending the regulatory requirements 

of Railroad Operating Rules (49 CFR 

part 217), Railroad Operating Practices 

(49 CFR part 218), Railroad Locomotive 

Safety Standards (49 CFR part 229), and 

Texas Central High-Speed Rail Safety 

Standards (49 CFR part 299). This final 

rule requires intercity passenger and 

commuter railroads 8 to install 

compliant image recording systems on 

the lead locomotives of all their 

passenger trains by October 12, 2027, 

except for TCRR, which is required to 

have compliant image recording systems 

installed on its trainsets prior to 

commencing revenue service, as 

specified under part 299. Further, 

beginning October 12, 2024, any 

locomotive image recording system 

installed on new, remanufactured,9 or 

existing passenger train lead 

locomotives must meet the specified 

requirements of this final rule, 

including the requirement that the last 

twelve hours of data recorded be stored 

in a memory module that meets the 

existing crashworthiness requirements 

in part 229. In addition, this final rule 

requires that all locomotive-mounted 

recording devices in passenger 

locomotives be treated as ‘‘safety 

devices’’ under part 218, subpart D, 

thereby making it a violation of 

applicable Federal regulations to tamper 

with or disable any locomotive-mounted 

recording system or device. 

FRA notes that the image recording 

device requirements for passenger train 

locomotives in this final rule 

supplement FRA’s existing locomotive 

event recorder regulation in part 229. 

Locomotive event recorders are required 

on the lead locomotives of trains 

traveling over 30 mph and already 

record numerous operational parameters 

that assist in accident/incident 

investigation and prevention (see 49 

CFR 229.135). 

FRA used a cost-benefit analysis to 

evaluate the impact of the final rule on 

passenger railroads required to install 

and maintain locomotive image 

recording devices. FRA estimated the 

low and high costs of this final rule over 

a 10-year period, using discount rates of 

3 and 7 percent, with the results shown 

in the tables below. 


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70724 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 

TABLE E.1—TOTAL 10-YEAR COSTS AND BENEFITS OF LOCOMOTIVE IMAGE RECORDING DEVICES, LOW RANGE

[Costs are in 2018 dollars, $ in millions] 

Discounted at 7% Discounted at 3% Annualized at 7% Annualized at 3% 

Costs ........................................................................................ $42.2 $46.2 $6.0 $5.4 

Cost Savings ............................................................................ 2.0 2.4 0.3 0.3 

Net Costs .......................................................................... 40.2 43.9 5.7 5.1 

Qualitative Benefit: Potential reduction in safety risk resulting from deterrence of unsafe behaviors, increase to safety culture, and information 

for accident investigation and future accident prevention. 

TABLE E.2—TOTAL 10-YEAR COSTS AND BENEFITS OF LOCOMOTIVE IMAGE RECORDING DEVICES, HIGH RANGE

[$ In millions] 

Discounted at 7% Discounted at 3% Annualized at 7% Annualized at 3% 

Costs ........................................................................................ $87.3 $94.0 $12.4 $11.0 

Cost Savings ............................................................................ 2.0 2.4 0.3 0.3 

Net Costs .......................................................................... 85.3 91.6 12.1 10.7 

Qualitative Benefit: Potential reduction in safety risk resulting from deterrence of unsafe behaviors, increase to safety culture, and information 

for accident investigation and future accident prevention. 

The primary source of expected 

benefits is the potential reduction in 

safety risk. FRA conducted a literature 

review to determine the effectiveness 

rate of inward- and outward-facing 

recording devices, but was unable to 

determine an appropriate rate. The 

benefits for the final rule are 

qualitatively discussed. The reduction 

in safety risk is expected to come 

primarily from the change in crew 

behavior. Railroads can deter unsafe 

behavior if crewmembers realize their 

actions may be observed on a frequent, 

but random, basis by railroad 

supervisors. Locomotive image 

recorders cannot directly prevent an 

accident from occurring, but rather can 

provide investigators with information 

after an accident occurs that can help to 

prevent future accidents of that type 

from occurring. 

II. Discussion of Specific Comments 

and Conclusions 

In the NPRM, FRA specifically 

requested information from the public 

as well as comments on its proposals. 

Commenters provided valuable 

information and comments on issues 

where FRA asked for comments as well 

as on various other issues. In total, FRA 

received comments from fifteen 

different individuals or organizations in 

response to the NPRM. 

An FRA employee also received an 

email from New York’s Metropolitan 

Transportation Authority providing 

information about the economic cost of 

the requirements proposed in the 

NPRM. FRA is treating that email as a 

comment and it is addressed in the 

Regulatory Impact Analysis (RIA) of this 

final rule. The full email has also been 

placed into the rulemaking docket along 

with a memorandum from FRA 

explaining the context for the email. 

Further, in its submitted comments, the 

International Association of Sheet 

Metal, Air, Rail and Transportation 

Workers (SMART) disagreed with FRA’s 

characterization in the NPRM that a 

public hearing would be provided only 

if a party was unable to adequately 

present his or her position by written 

statement; however, neither SMART, 

nor any other party, requested a public 

hearing on this rulemaking. 

Accordingly, a public hearing was not 

provided. 

Most of the comments in response to 

the NPRM are discussed below or in the 

Regulatory Impact and Notices portion 

of this final rule. The order in which the 

comments are discussed in this final 

rule, whether by issue or by commenter, 

is not intended to reflect the 

significance of the comment raised or 

the standing of the commenter. 

A. Inward- and Outward-Facing 

Recording Devices on Freight 

Locomotives 

In the NPRM, FRA did not propose to 

require the installation and use of 

inward- and outward-facing recording 

devices in freight locomotives, nor did 

FRA propose that any of the NPRM’s 

requirements apply to inward- and 

outward-facing locomotive recording 

devices that have been voluntarily 

installed by freight railroads. While FRA 

discussed the issue of inward- and 

outward-facing recording devices on 

freight locomotives at various points in 

the NPRM, FRA specifically addressed 

the issue under the heading ‘‘Mandatory 

Installment of Inward- and OutwardFacing Recording Devices on Freight 

Locomotives.’’ In that section, FRA 

discussed its decision not to propose 

such a requirement because: (1) the 

Statute did not require recording 

devices be installed on freight 

locomotives; (2) the cost of installing 

such devices could outweigh the safety 

benefits; and (3) many freight railroads, 

including all Class I railroads, had 

already installed or were in the process 

of installing such recording devices. 

In addition, FRA specifically asked 

for public comment on whether some or 

all freight railroads should be required 

to equip their locomotives with 

recording devices and, if FRA did not 

require freight railroads to install these 

devices on their locomotives, the extent 

to which the requirements proposed in 

the NPRM should apply to inward- and 

outward-facing locomotive recording 

devices on freight railroads that have 

already installed such devices or install 

such devices in the future. 

As proposed in the NPRM, FRA is 

declining to adopt any requirements 

that freight locomotives install or use 

inward- or outward-facing recording 

devices in freight locomotives, nor will 

any requirements of this rule apply to 

inward- or outward-facing locomotive 

recording devices that have been 

voluntarily installed by freight railroads. 

The Statute requires inward- and 

outward-facing image recording devices 

in controlling passenger locomotives as 

well as gives the Secretary discretion to 

require in-cab audio recording devices. 

49 U.S.C. 20168(a), (e)(1)(A). There is no 

statutory requirement to create 

standards for, or apply any of the 

requirements of this final rule to, freight 

locomotive image or audio recordings. 


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Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 70725 

10 If a locomotive is equipped with an event 

recorder or ‘‘any other locomotive mounted 

recording device or devices designed to record 

information concerning the functioning of a 

locomotive’’ and is involved in a 49 CFR part 225 

reportable accident, § 229.135(e) requires the 

railroad to preserve the data recorded for one year. 

Furthermore, FRA is not creating a 

requirement that audio devices be 

installed on freight locomotives. 

FRA did not receive comments 

showing that benefits would outweigh 

costs for freight railroads. Accordingly, 

FRA declines to require freight railroads 

to install recording devices at this time. 

However, freight locomotives that are 

used in commuter or intercity passenger 

service, other than for rescue purposes, 

are passenger locomotives and are 

subject to all the final rule’s 

requirements. In other words, freight 

locomotives that do not perform any 

passenger railroad related service, or are 

used only for rescue purposes, are not 

subject to the requirements of this final 

rule. Additional discussion on this topic 

is provided below. 

1. Requiring Inward- and OutwardFacing Locomotive Recording Devices 

on Freight Locomotives 

The Association of American 

Railroads (AAR) commented that 

requiring freight railroads to install 

locomotive recording devices was not 

necessary, as many freight railroads had 

already installed, or were in the process 

of installing, recording devices 

voluntarily. AAR stated that a survey of 

AAR’s Class I member railroads showed 

that these railroads ‘‘will have installed 

approximately 20,500 inward-facing 

cameras and 22,000 outward-facing 

cameras in the near future.’’ 

The Brotherhood of Locomotive 

Engineers and Trainmen (BLET), the 

Transportation Trades Department, 

AFL–CIO (TTD), and SMART also 

expressed opposition to FRA requiring 

freight railroads to install inward- and 

outward-facing locomotive recording 

devices. SMART agreed with FRA’s 

statement in the NPRM that the cost for 

freight railroads to implement similar 

procedures as those proposed in the 

NPRM for passenger trains may 

outweigh the potential safety benefits. 

The NTSB and Wi-Tronix, LLC (WiTronix), a company that provides 

connected solutions for locomotive 

fleets, commented that FRA should 

require inward- and outward-facing 

locomotive recording devices in freight 

locomotives. The NTSB contended that 

inward- and outward-facing audio and 

image recorders are needed in freight 

railroad operations, referencing NTSB 

Safety Recommendations R–10–01 and 

R–10–02, which were issued following 

four separate NTSB accident 

investigations involving freight rail 

operations. The NTSB asserted that the 

need for recording devices in freight 

railroad investigations is exactly the 

same as in passenger railroad 

investigations given that: (1) freight and 

passenger trains operate on the same 

tracks and both pose risks of accidents 

that have the potential to significantly 

affect the public; and (2) recorded 

information about safety issues 

identified in freight railroad accidents 

and incidents could inform, mitigate, or 

prevent similar safety issues in 

passenger railroad operations. 

Therefore, the NTSB believed it would 

be ‘‘shortsighted’’ for FRA to limit the 

rule to apply only to lead passenger 

locomotives. 

Like the NTSB, Wi-Tronix also 

commented that the rail network is 

integrated and that commuter and 

intercity passenger trains often share the 

same track and dispatch system, among 

other things, with freight trains. 

Acknowledging the increase in video 

system use for safety and operating rule 

compliance, Wi-Tronix stated that there 

‘‘are roughly 20 times the number of 

freight locomotives compared with 

passenger locomotives,’’ and the full 

safety benefits of the technology would 

not be realized without the requirement 

covering all locomotive types. 

FRA recognizes the potential safety 

benefits of locomotive recording devices 

in freight locomotives as noted in the 

NTSB’s and Wi-Tronix’s comments. 

However, FRA disagrees that the full 

safety benefits of this technology can 

only be achieved with a specific 

regulatory requirement that freight 

railroads install inward- and outwardfacing image and/or audio recorders. 

As stated in the NPRM, many freight 

railroads, including all Class I railroads, 

have either already installed or are in 

the process of installing recording 

devices in their locomotives. As noted 

by AAR in its comment, ‘‘approximately 

20,500 inward-facing cameras and 

22,000 outward-facing cameras’’ will be 

installed on AAR Class I member 

railroads ‘‘in the near future.’’ In 

addition, AAR points out in its 

comments that recordings from these 

voluntarily installed systems are already 

subject to the accident data preservation 

requirements in 49 CFR 229.135(e).10

Therefore, the data from these 

voluntarily installed devices in freight 

locomotives will be available for FRA’s 

and the NTSB’s accident investigation 

purposes, if necessary. 

Furthermore, requiring freight 

railroads to comply with the final rule’s 

requirements would be expensive with 

questionable benefit. FRA has 

investigated few, if any, freight railroad 

accidents where freight locomotive 

image data should have been present 

but was not because it was destroyed in 

the accident. Furthermore, while the 

vast majority of Class I railroads have or 

are installing inward- and outwardfacing cameras, very few short line 

railroads (Class II or Class III railroad) 

have either inward- or outward-facing 

cameras installed on their locomotives. 

In fact, for these much smaller railroads, 

FRA estimates that only 1% have 

inward-facing locomotive cameras and 

25% have outward-facing cameras 

installed on their locomotives. This is 

not necessarily surprising as Class II and 

Class III railroads are less likely to need 

locomotive cameras given the lower 

speeds, shorter distances, and the less 

regular nature of the services that these 

railroads operate. These definitionally 

smaller operations would be 

significantly affected economically if 

FRA imposed the requirements of this 

final rule to freight railroads and would 

have difficulty absorbing the cost 

without much safety benefit. 

Therefore, for the reasons explained 

above, FRA is declining to require 

freight railroads to install recording 

devices at this time. FRA will continue 

to monitor the freight industry’s 

voluntary installation of the devices and 

the effectiveness of those devices in 

freight rail operations. Based on this 

continued monitoring, FRA may take 

additional action in a separate 

proceeding to address the use of 

locomotive recording devices on freight 

railroads. 

In addition to its opposition to FRA 

requiring inward- and outward-facing 

recording devices on freight 

locomotives, AAR also suggested that 

FRA add language to part 229 mirroring 

the preemptive effect language in 

§§ 217.2 (preemptive effect of railroad 

operating rules) and 218.4 (preemptive 

effect of railroad operating practices). 

AAR asserted that both these provisions 

clarify FRA’s intent to create a national 

standard and this final rule should 

include this preemption language for 

national uniformity. AAR added that, to 

preclude the creation of a patchwork of 

conflicting state and local requirements 

applying to freight railroads, FRA 

should state that its decision to not 

propose a locomotive recording device 

requirement for freight railroads reflects 

the agency’s position that it is 

unnecessary to issue such a regulation. 

In issuing this final rule, FRA has 

sought to stay within the Statute’s 

mandate, 49 U.S.C. 20168, and not 

undertake a broader revision of part 229. 

Accordingly, FRA declines to add 


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70726 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 

11Under longstanding U.S. Supreme Court 

precedent, parts and appurtenances of locomotives 

have been held subject to field preemption. See 

Napier v. Atlantic Coastline RR. Co., 272 U.S. 605 

(1926). 

12See 49 CFR 217.9(h). 13Under § 238.5, neither the term ‘‘locomotive’’ 

nor ‘‘passenger equipment’’ ‘‘include[s] a freight 

locomotive when used to haul a passenger train due 

to failure of a passenger locomotive.’’ 14 64 FR 25540, 25578 (May 12, 1999). 

specific preemption language to part 

229.11

2. Application of Requirements to 

Freight Railroads That Voluntarily 

Install Inward- or Outward-Facing 

Locomotive Recording Devices 

In addition to FRA inviting comments 

on whether the agency should require 

the installation of inward- and outwardfacing recording devices on freight 

locomotives, FRA also sought comment 

on whether the proposed requirements 

should apply to recording devices that 

have already been installed on freight 

locomotives. Except for AAR, which 

supported FRA’s proposal to exclude 

freight trains from this proposed rule, 

all the commenters generally favored 

applying the requirements of this final 

rule to freight locomotives that have 

voluntarily installed inward- or 

outward-facing recording devices. 

Based on the same reasoning provided 

above, the NTSB commented that FRA 

should ensure the same level of safety 

for both passenger and freight railroads 

and that any recording device that either 

a passenger or freight railroad has 

voluntarily installed should be required 

to meet the minimum standards in this 

final rule. While BLET, SMART, and 

TTD all opposed requiring freight 

railroads to equip their locomotives 

with recording devices, they all agreed 

that freight railroads that voluntarily 

install such devices should nonetheless 

have to comply with the final rule’s 

railroad employee protections and 

adhere to a uniform national standard 

created by FRA and applicable to both 

freight and passenger locomotive 

recording devices, regardless of whether 

they were installed before or after the 

rule’s issuance. TTD specifically urged 

FRA to apply the final rule’s 

requirements to protect against 

employee retaliation under part 217 

operational testing, regardless of 

whether FRA requires the installation of 

the locomotive recording device(s). 

After considering the comments, FRA 

is declining to impose any of the 

requirements in this final rule on freight 

railroads that have voluntarily installed 

recording devices on their locomotives. 

However, it is FRA’s expectation that all 

railroads that voluntarily install 

recording devices on their locomotives, 

including freight railroads, will adhere 

to practices that are consistent with 

those in this final rule, such as those 

provided under new part 217 

requirements that serve to protect 

employees from targeted testing as a 

form of retaliation when railroads 

conduct operational testing using 

recording devices or their recordings. 

FRA has independent authority to 

disapprove a freight railroad’s operating 

rules testing program, required under 

Part 217.12 Therefore, if FRA finds that 

a freight railroad is not using its 

locomotive recording devices in good 

faith to fulfill the railroad’s operational 

testing requirements, but is instead 

using locomotive cameras and/or audio 

recording devices to pursue retaliation 

against its employees, FRA could 

disapprove the railroad’s operational 

testing program. FRA therefore expects 

freight railroads will adhere to the same, 

or similar, principles as being codified 

for passenger railroads, based on FRA’s 

authority under the existing provision. 

Application of the new part 217 

operational testing requirements in this 

final rule are discussed in Section II.L 

and the Section-by-Section Analysis 

below. 

3. Application of Requirement to Freight 

Locomotives Performing Rescue 

Operations 

Finally, the American Public 

Transportation Association (APTA) 

submitted a comment asking FRA 

whether freight locomotives that do not 

have inward-facing locomotive cameras 

compliant with this final rule would be 

allowed to ‘‘rescue’’ passenger trains 

that fail en route. In such situations, a 

freight locomotive ‘‘rescues’’ the failed 

passenger train by operating as the lead 

locomotive of the passenger train and 

hauling the train to its destination or 

repair point. Having considered APTA’s 

comment, this final rule includes a new 

provision, § 229.139(l), that excludes 

freight locomotives from compliance 

with the requirements of new § 229.136 

when they are performing rescue 

operations for intercity or commuter 

passenger trains. However, this 

exception applies only for the limited 

purposes of rescuing an intercity or 

commuter passenger train; a freight 

locomotive used in regular passenger 

service will not be covered by the 

exception. The exclusion is based on 

identical language in the definition of 

‘‘locomotive’’ for purposes of FRA’s 

Passenger Equipment Safety Standards 

in § 238.5 of this chapter.13 As FRA 

originally stated in establishing the 

Passenger Equipment Safety Standards, 

FRA ‘‘believes that a limited exception 

is warranted for a freight locomotive 

used to haul a passenger train due to the 

failure of the passenger train’s own 

motive power; FRA does not wish for 

the passenger train to be stranded.’’ 14

B. Audio Recording Devices 

1. Requiring Audio Recorders on 

Passenger or Freight Locomotives 

While the Statute gives FRA 

discretion to require the installation of 

audio-recording devices on passenger 

train lead locomotives and to establish 

corresponding technical details for such 

devices, FRA did not propose specific 

rule text in the NPRM that would 

require audio recording devices. Rather, 

FRA requested comment on numerous 

specific issues related to audio 

recorders, to evaluate whether to require 

audio recorders in passenger or freight 

locomotives in this final rule. 

Specifically, FRA asked about: (1) the 

usefulness of audio recordings in certain 

accident investigations; (2) what 

benefits they provide in addition to the 

benefits of image recordings; and (3) 

whether any benefits outweigh the 

installation cost for these devices, the 

cost of crashworthy memory for these 

devices, the loss of personal privacy for 

occupants inside the locomotive cab, or 

the potential that recordings from these 

devices could be abused by railroad 

supervisors. 

FRA also asked for comments on 

whether FRA should require audio 

recorders to stop recording after the 

locomotive has stopped, if FRA were to 

adopt a requirement for the installation 

of locomotive audio recorders in the 

final rule. In addition, FRA asked 

whether FRA should require exterior 

recording devices that would be capable 

of recording sounds such as the 

locomotive horn/bell, audible grade 

crossing warning devices, engine noises, 

and other sounds relevant during postaccident investigations, and what the 

utility of these recordings would be 

when weighed against the potential 

cost. In responding to these questions, 

FRA asked commenters to provide 

specific information on the costs of 

installing audio recorders. 

In response to these requests for 

comments, most parties agreed with 

FRA’s proposal not to require the 

installation of locomotive audio 

recording devices in either passenger or 

freight locomotives. Commenters who 

advocated for the installation of such 

devices pointed to their usefulness in 

post-accident investigations. Although 

FRA did not receive responses to all its 

requests for comments related to audio 

recording devices, commenters did 


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15National Transportation Safety Board, Safety 

Recommendations R–10–01 and R–10–02 (Feb. 23, 

2010); available online at: https://www.ntsb.gov/ 

safety/safety-recs/recletters/R-10-001-002.pdf. 

respond to the question of when to stop 

audio recordings in the same manner as 

they responded to the question of when 

passenger railroads should stop their 

locomotive image recordings. FRA is 

addressing those comments together in 

the next section. 

As for the question whether FRA 

should require locomotive audio 

recordings at all, BLET, TTD, and 

SMART asserted that audio recorders 

should not be required. Moreover, BLET 

and SMART specifically asked FRA to 

prohibit audio recordings within the 

locomotive cab. BLET stated that, 

although audio and image recordings 

could be used to aid in accident 

investigations, the recording devices 

would also add another level of 

distraction and discomfort for train 

crews (e.g., audio headsets) and, for the 

safety purposes of the system to be 

achieved, the devices would at a 

minimum have to be operative on each 

lead locomotive while the train is in 

motion, require crashworthy data 

storage modules, and require the 

availability of an extra headset in the 

case of an en route failure. 

In response to FRA’s request for 

comments on whether to require 

exterior recording devices, BLET stated 

that all key locomotive operations, 

including throttle, braking, locomotive 

horn/bell, are already captured on the 

locomotive’s event recorder. Further, 

BLET noted that because grade crossing 

warning devices are intended to warn 

motorists, not the train crew, it would 

be more helpful instead to mount audio 

recorders at highway-grade crossing 

signal control boxes. Accordingly, BLET 

saw no value in requiring exterior 

locomotive recording devices; however, 

if FRA were to consider requiring such 

devices anyway, BLET commented that 

FRA should consider exterior audio 

devices that could be engaged or 

disengaged by selecting from the 

locomotive’s software preferences for 

the camera. BLET stated the cost to do 

so would be nominal as it is already an 

included feature on some locomotives. 

BLET further indicated that this feature 

was discussed at RSAC Working Group 

meetings. 

TTD asserted that audio recording 

devices would have a negative impact 

on train crews’ morale and the labormanagement relationship, and could 

possibly record and lead to the release 

of private conversations unrelated to 

safety-sensitive tasks. TTD noted that a 

substantial amount of information is 

already recorded or transmitted, or both, 

via on-board equipment and radio 

communications, and eventually will be 

through image recorders. Thus, TTD did 

not see how audio recording devices 

would improve safety and asserted that 

FRA should not mandate audio 

recorders in the final rule. 

SMART commented that during 

RSAC Working Group meetings, both 

railroads and labor organizations 

expressed unanimous opposition to a 

locomotive audio recorder requirement. 

SMART believed employees deserve 

some privacy protections and concurred 

with FRA’s reasoning in the NPRM that 

audio recorders should not be required. 

In addition to labor organizations, 

APTA commented that it also opposed 

requiring locomotive audio recorders. 

APTA stated that the railroad industry 

supports most of FRA’s NPRM analysis 

regarding audio recordings, and that the 

industry believes that locomotive audio 

recordings are redundant and secondary 

to both locomotive image recorders and 

pre-existing communication systems, 

such as radio. APTA also stated that 

audio recordings, like video recordings, 

are not monitored by the railroads in 

real time, and therefore, have minimal 

value in preventing accidents. 

Notwithstanding APTA’s assertion 

that the industry opposed a locomotive 

audio recorder requirement, the 

National Railroad Passenger Corporation 

(Amtrak) commented that FRA should 

create an exterior recording device 

requirement to aid in post-accident 

investigations because these devices are 

extremely beneficial in private 

litigation. Amtrak provided figures on 

the cost of installing image recording 

devices for their fleet to be $10,080 as 

well as the cost per locomotive of new 

audio equipment to be $23,349, as FRA 

requested. Additionally, in the RIA, 

FRA estimates a range that starts at 

$6,000 for each audio recording device 

up to a cost of $23,349. This lower 

estimate was based on discussions with 

FRA’s subject matter experts and online 

research. 

Amtrak also commented that the 

benefits provided by locomotive audio 

recordings would outweigh concerns 

about the potential loss of personal 

privacy for locomotive cab occupants, 

because while operating a locomotive, 

the use of audio-visual recordings 

would be a condition of employment 

applicable under the railroad’s 

enforcement of rules. In addition, 

Amtrak asserted that the benefits of 

locomotive audio devices would 

outweigh the potential for abuse by 

railroad management because Amtrak 

has an established company program 

and process in place providing that the 

use of audio and visual recordings is for 

compliance means only. 

The NTSB also urged FRA to require 

both internal and external locomotive 

audio recorders as part of this final rule. 

As noted in the NPRM, the NTSB has 

conveyed to FRA that to satisfy NTSB 

Recommendations R–10–01 & –02, FRA 

would need to include both audio and 

image recording provisions in this 

rulemaking.15 Further, in its submitted 

comments, the NTSB stated that for 

more than 10 years, voluntarilyinstalled image and audio recorders 

have assisted the NTSB with its 

investigations. According to the NTSB, 

the technology is fully developed and 

mature, and the devices are readily 

available and are already being 

manufactured, installed, and used. The 

NTSB also commented on what it 

believed to be sufficient technical 

specifications for locomotive audio 

recording devices and cited the 

recording capabilities of locomotive 

audio recording devices used by Amtrak 

as a model. The NTSB also stated that 

because memory storage requirements 

for audio recordings are significantly 

less than those for image recordings, 

additional memory for audio recordings 

should not be needed. Finally, while 

recognizing the high levels of 

background noise inside locomotive 

cabs from its experience investigating 

railroad accidents, the NTSB stated it 

did not believe that headsets or other 

specialized audio recording equipment, 

beyond what is currently being used by 

railroads that have voluntarily installed 

such devices, will be necessary. 

The NTSB cited how important both 

inward-facing locomotive image and 

audio recordings were in its 

investigation of the December 18. 2017, 

derailment of Amtrak passenger train 

501 in DuPont, Washington. According 

to the NTSB, these internal locomotive 

audio and visual recordings helped the 

agency determine that neither personal 

electronic device use nor brief 

conversations between the engineer and 

conductor were causes of the 

derailment. 

While internal locomotive audio 

recordings were useful in the NTSB’s 

investigation of the Amtrak passenger 

train 501 accident, NTSB’s comment 

states that it was audio recording 

devices inside the locomotive along 

with inward-facing locomotive video 

recording devices that helped the NTSB 

make determinations as to what could 

be excluded as the cause of the 2017 

Amtrak accident in Dupont, 

Washington. Furthermore, the NTSB 

investigation into this accident is just 

one specific investigation into one 

specific railroad accident. FRA did not 


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16See 84 FR 35712, 35716–35717. 

17 Id. at 35717. 

find any specific evidence that would 

lead the agency to believe that internal 

audio recorders would be useful in all 

accident investigations. 

Wi-Tronix also commented on FRA’s 

decision to not include an audio 

recorder proposal in the NPRM and 

agreed with the NTSB that, based upon 

its incident investigation experience 

over the years, the availability of audio 

locomotive recordings has played a 

critical role in determining the chain of 

events during an accident investigation 

and the implementation of the 

technology is essential in getting the 

‘‘step-change improvement’’ in human 

factor safety that FRA desires. WiTronix also commented on the potential 

for privacy concerns with audio 

recordings that were raised by TTD and 

SMART. Wi-Tronix believes that with 

current technology, recorded audio 

information could be sequestered and be 

made available only to regulators and 

other officials on a limited basis after an 

emergency incident. Further, Wi-Tronix 

stated that artificial intelligence and 

machine learning could use the audio 

information for analytics anonymously 

without personal information included. 

Wi-Tronix said that the implementation 

of audio recordings, in conjunction with 

video recordings, is not a major cost 

driver for system implementation. 

Finally, an anonymous commenter 

stated that installing inward and 

outward-facing recording devices could 

be beneficial when investigating 

railroad accidents. The commenter 

expressed hope that these recording 

devices will decrease the number of 

railroad related accidents. 

After considering all the comments 

received on whether audio recording 

devices should be required on lead 

passenger locomotives, FRA has 

determined that a requirement for such 

devices on lead passenger locomotives 

is not justified. Accordingly, in this 

final rule, FRA is not adopting a 

requirement for the installation of audio 

recording devices on passenger or 

freight locomotives. FRA does not 

believe that the potential added utility 

of audio recordings, in addition to 

image recordings as well as the data 

provided by a locomotive’s event 

recorder, outweighs the cost that would 

result. Indeed, while audio recording 

devices may provide some additional 

useful information in certain accident 

investigation scenarios, the overall 

usefulness of locomotive audio 

recordings is diminished by the 

statutorily mandated requirement of 

inward- and outward-facing locomotive 

cameras as well as existing requirements 

for event recorders on all lead passenger 

locomotives. Further, as previously 

stated, there is no requirement in the 

FAST Act that passenger or freight 

locomotives be equipped with either 

internal or external audio recording 

devices. Therefore, FRA is allowing 

railroads to decide whether to equip 

their locomotives with external and/or 

internal audio devices. 

Passenger locomotive cabs, unlike 

freight locomotive cabs or even 

commercial airliner cockpits, are 

typically occupied by only one 

crewmember, while additional 

crewmembers are located in the 

passenger train consist assisting 

passengers. As there is usually only one 

crewmember in the locomotive cab 

while a passenger train is in motion, it 

is unclear what information internal 

locomotive audio recorders would 

provide that inward-facing locomotive 

cameras could not. For example, as 

cited in the NPRM, in both the 2008 

Chatsworth Southern California 

Regional Rail Authority (Metrolink) 

accident,16 and the 2015 Philadelphia 

Amtrak accident,17 the locomotive 

engineers operating the trains were the 

sole occupants of the locomotive cab 

while the other crewmembers were in 

the passenger consist. Also, as TTD 

commented, a substantial amount of 

information is already recorded via 

onboard equipment and radio 

communications. Therefore, other than 

radio communications with other train 

crewmembers or the train dispatcher, 

which are often already recorded, there 

may not be any other voice 

communications inside the cab to 

record. 

External locomotive audio recorders 

are unlikely to provide much additional 

information in post-accident 

investigations. As stated by BLET, all 

key locomotive operations, including 

throttle, braking, and locomotive horn/ 

bell, are already required to be captured 

on the locomotive’s event recorder. If an 

accident occurs, this data can be 

retrieved from the event recorder. 

Combining the event recorder data with 

information gained from external 

locomotive cameras diminishes the 

need for external audio recording 

devices. Accordingly, given the 

information already available to FRA 

and other investigators from event 

recorders and locomotive cameras, FRA 

cannot justify mandating the installation 

of an external audio recording device at 

this time. 

Moreover, locomotive audio recorders 

will not greatly increase a passenger 

railroad’s ability to deter railroad safety 

violations, such as the use of prohibited 

personal electronic devices, beyond the 

deterrence already provided by inwardfacing image recorders. Because the 

locomotive engineer is typically alone 

in the locomotive cab, it is unlikely that 

audio recordings will pick up audio 

information useful to prove that a rail 

safety violation occurred that could not 

be determined from video footage. In 

fact, audio recordings might not pick up 

anything at all. 

Further, FRA shares SMART’s and 

TTD’s concern that because train crews 

might be more likely to congregate in 

the locomotive cab when not performing 

their safety-related duties (e.g., sitting in 

a siding), locomotive audio recorders 

might be more likely to pick up private 

conversations between crewmembers 

than the audio proof of a railroad safety 

violation. As stated in the NPRM, FRA 

has concerns that these time periods 

would likely include personal 

conversations between employees and 

might have much more potential for 

abuse than do inward-facing image 

recordings. While a commenter 

suggested that audio recordings might 

be sequestered in a way that they would 

only be accessible by regulators and 

other government officials, like FRA and 

the NTSB, audio recordings would share 

the same memory module as image 

recordings, and FRA anticipates that 

passenger railroads would want to 

review them as part of their part 217 

operational testing plans. 

Finally, based on information 

provided by the railroad industry, FRA 

subject matter experts, and online 

research, FRA estimates that the 

inclusion of audio recording devices 

would cost passenger railroads between 

$25.2 and $98.1 million dollars within 

the first four years of implementation to 

install on over 4,200 passenger 

locomotives. Although FRA recognizes 

that Wi-Tronix commented that the cost 

of locomotive audio recorders in 

conjunction with image recording 

device would be nominal, there may be 

only a small number of accidents where 

audio recordings might be beneficial 

and Wi-Tronix did not provide any data 

to support its cost assertion. 

FRA understands from RSAC Working 

Group discussions and its own research 

that the audio recording devices and 

microphones contained within a 

locomotive’s image recorders have some 

costs, but railroads indicate a crashhardened memory module for audio 

recordings might increase costs of 

compliance. FRA is also concerned 

about the background noise levels 

inside the cabs of certain locomotives 

and has previously conveyed that 

concern to the NTSB. Because of the 

noise, additional equipment may be 


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18See 49 U.S.C. 20168(e)(1)(A). 

needed to record crew voice 

communications so the recordings can 

accurately be deciphered by railroad 

managers and accident investigators. 

This would also be expected to add to 

the cost of installing such equipment. 

However, FRA also disagrees with 

BLET and SMART, and nothing in this 

final rule precludes passenger or freight 

railroads from voluntarily installing and 

using either internal or external 

locomotive audio recording devices as 

part of their operation, if they so choose. 

The FAST Act provided FRA with 

discretion whether to include a 

regulatory requirement for insidelocomotive audio recording devices,18

and while this rule will not require the 

installation of inside- or outside-audio 

recording devices, it will also not 

preclude the devices. However, if a 

passenger railroad chooses to install 

locomotive audio recording devices in 

their locomotives, then certain 

requirements from this rule do apply to 

those devices. 

2. Referencing Audio in the Definition 

of ‘‘Recording Device’’ in Part 229 

FRA also received a comment from 

APTA suggesting that FRA remove any 

reference to audible sounds from the 

definition of ‘‘recording device’’ as 

proposed in the NPRM. For the reasons 

discussed in Section II.T below, FRA 

disagrees and intends that audio 

recordings be subject to the preservation 

requirements and other relevant 

requirements of § 229.136. 

C. Recording Device Run-Time/Shutoff 

When Trains Stop Moving 

In the NPRM, FRA requested 

comments on a number of questions 

regarding whether FRA should set a 

specific run-time or shutoff requirement 

for locomotive recording devices. 

Specifically, FRA requested comment 

on its proposal to provide passenger 

railroads the discretion to decide 

whether locomotive recording devices 

would continue to record when a 

locomotive is not in motion, if the 

railroad retains a recording of the last 12 

hours of operation of the locomotive on 

a memory module compliant with the 

requirements proposed in § 229.136. 

FRA also asked for comments on: what 

safety benefits would result from 

recordings made when a locomotive is 

occupied, but not moving; whether a 

specific run-time or shutoff requirement 

would present any technical hurdles for 

the railroads, and if so, the cost of those 

hurdles (in dollars); the privacy 

implications of recordings being made 

during down times when the crew is not 

performing safety-related duties; the 

potential risk of data being overwritten 

if an accident occurs in a remote 

location and the device continues to 

record; and finally, whether passenger 

railroads should be exempt from any 

requirement to stop locomotive 

recording devices from recording when 

the locomotive is stopped. 

FRA received numerous responses to 

these requests for comments. Most of 

the comments focused on what the runtime/shutoff standard should be, if any. 

Both Amtrak and APTA expressed 

views consistent with FRA’s proposed 

standard that passenger railroads have 

the discretion to determine their own 

run-time/shutoff standard for 

locomotive recording devices. APTA 

noted that locomotive cabs are 

workplaces, whether occupied or not, 

and therefore they should be able to run 

their locomotive cameras continually. 

APTA asserted that allowing cameras to 

run continually would serve as a 

deterrent against locomotive safety 

device tampering, assist with potential 

criminal investigations (such as 

vandalism), and provide a valuable tool 

for railroad security. However, APTA 

stated while its members support the 

position that railroads should be able to 

record using their locomotive image 

recorders when the locomotive is 

stopped, the decision whether to record 

while the locomotive is stopped should 

be left to the individual railroad. 

Amtrak’s comments were similar to 

APTA’s. Amtrak opposed FRA adopting 

a stricter standard than that proposed in 

the NPRM. Amtrak also contended that 

railroads should be allowed to record 

after the train has stopped moving (e.g., 

for security purposes when a locomotive 

cab is unoccupied, to record mechanical 

tests such as brake tests and calendar 

day inspections). 

The NTSB commented that FRA 

should require inward-facing cameras to 

record whenever a locomotive is 

powered on, regardless if the locomotive 

is moving or stationary, and that 

railroads should not have the discretion 

to decide to stop recording when a 

locomotive is not moving. The NTSB 

stated that safety-sensitive duties 

frequently occur when locomotives are 

stationary, and there is no way to limit 

recordings to only capture safety-related 

activities. According to the NTSB, by 

recording anytime the locomotive is 

powered on, key pre-accident events 

would be recorded, such as pre-job 

briefings, and critical post-accident 

events, such as calling emergency 

services, would be recorded and 

available in post-accident analysis. The 

NTSB also asserted that requiring 

continuous recording while a 

locomotive is powered on would help 

identify those occasions when an 

employee tampers with or disables a 

safety device. 

In contrast, BLET, SMART, and TTD 

disagreed with the aforementioned 

comments as well as FRA’s proposal in 

the NPRM to provide passenger 

railroads maximum flexibility in 

determining the run-time/shutoff time 

for their recording devices. BLET 

commented that, regardless of whether 

the recorders are image or audio 

recorders, they should be shut off and 

no longer recording when the train’s 

motion has stopped and the brakes are 

applied. According to BLET, it would be 

unacceptable if the cameras can still run 

when a locomotive is stopped and 

everything over the course of a crew’s 

duty tour would be under analysis by 

the railroad. 

Further, BLET stated that the time 

when a train has stopped moving is the 

only time that a crew has available to 

eat, use the bathroom facilities, or just 

relax, noting some railroads permit and 

even encourage napping to mitigate 

employee fatigue. BLET claimed there 

are numerous studies that prove if an 

individual is recorded on camera 

continually it will increase the 

individual’s stress level, which thereby 

increases the individual’s fatigue. BLET 

also pointed out that on many 

occasions, a train crew may have 

expired under the hours of service laws 

and simply be waiting to be relieved. 

BLET asserted that no safety benefits 

would result from filming and recording 

these types of non-operational activities. 

BLET also expressed concern for train 

crewmembers’ privacy if inward-facing 

cameras record when no safety-related 

duties are being performed. BLET 

commented that cameras could record 

employees changing their clothing or 

needing to express breast milk, which 

BLET believed cannot be safely and 

perhaps lawfully done in the sanitary 

compartment. 

Finally, BLET asserted that FRA 

should not only consider a regulatory 

restriction on the run-time/shutoff for 

locomotive recording devices but 

should also address use of the cameras 

for monitoring employees. Specifically, 

BLET commented that some railroads 

have claimed the technological capacity 

to view the inside of a locomotive cab 

regardless of whether the camera’s 

output is being recorded. Therefore, 

according to BLET, not only should 

railroads be prohibited from recording 

when a locomotive is stopped, but 

railroads should also be prohibited from 

surveilling their employees when a 

locomotive is stopped and the cameras 


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70730 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 

19For example, railroad employees who operate 

trains within the United States are subject to drug 

and alcohol testing (both random and for cause) (49 

CFR part 219), operational testing (e.g., 49 CFR 

parts 217, 218, 220, 240, 242), hours of service laws 

(see 49 U.S.C. ch. 211, 49 CFR part 228), and 

regulations governing the use of personal electronic 

devices (49 CFR part 220), among many other 

requirements. 

20Skinner v. Railway Labor Executives 

Association, 489 U.S. 602, 627 (Mar. 21, 1989). 

should be deactivated when a 

locomotive is stopped. 

SMART and TTD suggested a slightly 

different standard than that proposed by 

BLET in that FRA should require 

railroads to shut off their inward-facing 

cameras five minutes after a train has 

stopped. TTD asserted that a fiveminute window of additional recording 

after the train has stopped moving 

would allow FRA the necessary time to 

gather post-accident or -incident 

investigation information, without 

infringing on the crew’s privacy. TTD 

stated that, in contrast, the standard 

proposed in the NPRM would allow the 

railroads to record at all times, even 

when the train is stopped and the crew 

is not performing any safety-sensitive 

duties. TTD asserted that there is no 

value to recording when trains are 

stopped, such as at sidings, which 

occurs with some frequency. Further, 

TTD agreed with BLET that operating a 

train is a fatiguing job and that constant 

filming of train crews will increase 

tension, and according to SMART, 

likely also result in ‘‘unsafe practices.’’ 

SMART echoed TTD’s position that 

inward-facing cameras should not 

record when trains are stopped and 

crews are not performing safetysensitive activities. Like TTD, SMART 

pointed out that crews often sit in a 

siding or at a signal for hours with no 

safety-related duties being performed. 

SMART also stated that requiring 

inward-facing locomotive cameras to 

stop recording five minutes after a train 

stops would protect against any 

personal harassment from the 

unnecessary recording of personal, but 

not safety-sensitive information. 

However, while both TTD and 

SMART believed a strict five-minute 

shutoff standard after a train has 

stopped moving is necessary for inwardfacing image recorders, both 

organizations specifically stated they 

did not object to a less prescriptive runoff/shutdown requirement for outwardfacing cameras. In fact, they stated that 

the outward-facing cameras would 

provide the security benefits cited by 

APTA and Amtrak, and protect the 

railroad by helping deter vandalism, 

theft, and other criminal activities. 

After consideration of all comments 

received on this issue, in this final rule, 

FRA is adopting the standard it 

proposed in the NPRM. FRA will not 

prescribe a mandated run-time/shutoff 

requirement for passenger locomotive 

recording devices. As will be discussed 

in greater detail below in Section II.C, 

as long as the locomotive’s required 

inward- and outward-facing cameras are 

recording anytime the locomotive is in 

motion and the passenger railroad is 

complying with all other requirements 

of the final rule described below (e.g., 

no video recording in the locomotive’s 

sanitation compartment), the railroad 

has the discretion to continue recording 

images, and audio if installed. FRA 

concluded that, as APTA and Amtrak 

pointed out in their comments, allowing 

railroads to record both inside and 

outside of the locomotive cab when the 

locomotive is not in motion can serve 

legitimate safety functions, such as 

preventing tampering, assisting with 

criminal investigations (such as 

vandalism and trespassing), and be an 

overall useful tool for railroad security. 

In addition, FRA agrees with NTSB’s 

point that recording when a locomotive 

is powered on may have potential 

informational value in post-accident 

investigations. 

As discussed in the NPRM, the 

railroad industry is highly regulated, 

and there are already a large number of 

Federal statutes and regulations 

governing railroad employees’ 

performance of safety-related duties 

when they occupy the cab of a lead 

locomotive.19 In fact, the Supreme Court 

has recognized that ‘‘the expectations of 

privacy of covered employees [here, 

train crewmembers] are diminished by 

reason of their participation in an 

industry that is regulated pervasively to 

ensure safety. . . .’’ 20 A locomotive is 

a shared work space between various 

railroad employees. During one railroad 

employee’s tour of duty, railroad 

supervisors, FRA inspectors, and other 

authorized individuals may access the 

cab of the locomotive and observe the 

employee’s actions and communications 

in the cab, at any time, without 

providing any notice. In fact, the general 

public is often able to view train 

crewmembers occupying the locomotive 

cab and certain of their actions through 

the passenger locomotive’s windows 

when the locomotive is located near a 

railroad right-of-way or a highway-rail 

grade crossing and also in certain cab 

control car configurations or at certain 

station platforms. Therefore, as 

passenger train crews can be monitored 

or frequently observed in locomotive 

cabs even without recording devices, 

they have no expectation of privacy in 

the locomotive cab, whether or not the 

locomotive is moving. 

FRA also requested and received 

comments on the potential risk of 

overwriting valuable recorded data if an 

accident occurs in a remote location and 

a locomotive’s recording device(s) 

continue to record after the accident has 

occurred and the recordings before and 

during the accident are recorded over. 

Both the NTSB and APTA submitted 

comments on this issue. 

The NTSB indicated it has found that, 

in most major accidents, the locomotive 

loses power, which stops all recording 

devices and negates the risk of 

overwriting accident data. However, the 

NTSB commented that railroads should 

put procedures in place to preserve 

recordings in the event of a less severe 

accident in a remote location where the 

locomotive does not lose power and the 

footage could be overwritten. 

APTA commented that concerns 

about passenger trains might be 

misplaced and pointed out that instead 

of passenger trains, freight trains are 

more likely to pass through or stop in 

remote areas or areas that are potentially 

harder to access, and have longer onedirection trip-duty times than commuter 

and, in some cases, intercity passenger 

trains. APTA stated that commuter 

trains trip lengths are shorter, and it is 

not uncommon for a train to travel in 

one direction leading with a 

conventional locomotive and then do a 

reverse trip in the other direction 

leading with the train’s cab car. APTA 

also maintained that crew on-duty times 

for commuter and intercity passenger 

routes are generally shorter and 

scheduled to minimize any jobs 

approaching 12 hours on duty so that 

crews have additional rest before their 

next trip, and that crews may even 

change train consists. APTA believed 

these elements contribute towards 

reducing the potential for critical video 

being overwritten in an accident. 

In addition, the NTSB commented 

that FRA should address the issue of 

buffering in this final rule to ensure that 

all critical events occurring before an 

accident occurs are recorded. The NTSB 

stated that frequently saving data to 

permanent storage from temporary 

memory—that is, buffering—will help 

prevent the loss of audio and images 

due to accidents and power disruptions, 

as it has experienced varied success 

with recording devices capturing the 

time period before an accident. The 

NTSB noted that, in the February 8, 

2018, CSX Transportation accident in 

Cayce, South Carolina, the outwardfacing image and audio recorder did not 

record critical events before the 

accident; instead, the audio stopped 


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recording a few minutes before the 

accident, and the image recording 

stopped about a minute before the 

accident, without recording the 

misaligned switch that derailed the 

train. Conversely, the NTSB cited the 

December 18, 2017, Amtrak accident 

near DuPont, Washington, where the 

inward- and outward-facing image and 

audio recordings did capture critical 

events up to the time of derailment. 

After carefully considering both 

NTSB’s and APTA’s comments, FRA 

has determined it would be premature 

to create a regulatory requirement for 

passenger railroads addressing the 

potential for data being overwritten if an 

accident occurs in a remote location 

where there is no loss of power to the 

recording device, but the memory 

module is not immediately available. 

Although FRA agrees that passenger 

railroads should consider the possibility 

that commuter or intercity passenger 

trains could have an accident in a 

location where the locomotive does not 

lose power, the footage in the memory 

module may not be readily retrieved, 

and the footage could be overwritten, 

FRA has found no evidence of such a 

passenger train accident occurring. FRA 

also agrees with APTA’s comment that, 

overall, passenger trains are far less 

likely to pass through or stop in remote 

areas when compared to freight trains. 

Therefore, lacking evidence of such a 

passenger train accident or incident 

occurring, and considering the limited 

likelihood of such a situation occurring 

in the future, FRA declines to adopt a 

regulatory provision specific to the risk 

of data being overwritten in such a 

scenario. 

D. Exclusion of Existing Installed or 

Ordered Equipment 

FRA received numerous comments 

stating that locomotive image recording 

devices previously installed or ordered 

before the publication date of the final 

rule should be excluded from 

complying with the final rule’s 

requirements. For reasons discussed 

below, FRA disagrees with the 

comments and will not allow previously 

installed or ordered locomotive image 

recording devices or voluntarily 

installed audio recording devices to be 

excluded from this final rule’s coverage. 

Instead, as proposed in the NPRM, this 

final rule provides passenger railroads 

with a four-year implementation period 

within which all of their lead 

locomotives must be brought into 

compliance with the rule’s 

requirements. 

APTA commented that FRA should 

allow exclusions for recording devices 

that have been installed or are in the 

process of being installed prior to the 

issuance of the final rule. APTA 

asserted that if FRA does not exclude 

these devices, there is a strong 

possibility that railroads that were early 

adopters of locomotive recording device 

technology will be financially penalized 

because the proposed requirements for 

image recorders would be too 

prescriptive and older locomotive 

recording devices could not comply. 

APTA also maintained that the cost to 

retrofit existing lead locomotives would 

be significant and could delay the 

availability of data for use by the 

passenger railroads as well as FRA and 

the NTSB for post-accident 

investigations. APTA stated that 76 

percent of passenger locomotives 

already have image recording devices 

installed and that 93 percent of 

passenger railroads have installed image 

recording devices in all of their 

vehicles, or are in the process of doing 

so, and that ‘‘a few large railroads’’ 

equipped, or partially equipped, their 

fleets with recording devices within the 

last year. Given APTA’s assumption that 

locomotive image recording systems 

have a life span of eight years, APTA 

believed that these railroads will lose 

most of the full life-cycle of the 

recording devices if FRA does not 

include an exclusion clause in this final 

rule. 

AAR also agreed that FRA should 

include an exclusion provision to 

protect early adopters of this 

technology. According to AAR, during 

the 2014 RSAC Working Group 

meetings FRA proposed that recording 

systems installed on locomotives prior 

to the rule’s effective date would be 

considered compliant for ten years from 

the final rule’s publication date, with 

the exception that memory modules 

would be required to meet the 

crashworthiness requirements within 

three years of publication. AAR 

therefore suggested that recording 

systems installed prior to the final rule’s 

publication date be considered 

compliant until ten years from that date, 

whether or not all of the functional 

requirements of the rule were met by the 

already-installed system. 

The North Country Transit District 

(NCTD), which operates the COASTER 

commuter rail service in Northern San 

Diego County, California, suggested that 

the final rule should exclude locomotive 

recording devices that were installed 

prior to the effective date of the final 

rule and do not meet the crashworthy 

memory module requirements. NCTD 

stated it began installing inward- and 

outward-facing cameras with audio 

recorders in 2012 and had just 

completed a global replacement of 

cameras and recording devices on its 

entire locomotive and cab car fleet. 

Finally, the Commuter Rail Division 

of the Illinois Regional Transportation 

Authority (Metra) also agreed with 

many of the same comments that 

passenger railroads have already begun 

to utilize recording equipment and, 

therefore, FRA should allow existing 

equipment to continue to be used to 

avoid punishing early adopters of the 

technology. 

Although FRA appreciates the 

concerns raised by the commenters, 

FRA does not believe it in the public’s 

interest or the interest of rail safety to 

provide an exception from the final 

rule’s requirements for locomotive 

image recorders installed prior to the 

rule’s publication date. Older cameras 

that do not meet the final rule’s 

requirements would likely not provide 

the benefits (deterrence and accident 

investigation) that the rule seeks to 

provide. As discussed above, the Cayce 

accident is a prime example of how 

accident investigations could be 

adversely affected by use of older 

camera systems, because external 

locomotive image (and audio) data was 

lost in the accident. Under the 

requirements of this final rule, 

locomotive recordings must now be 

stored on a certified crashworthy 

memory module as required by the 

FAST Act, or an alternative remote 

storage system approved by FRA. If FRA 

were to exempt older image recording 

systems from the requirements of this 

final rule, it would increase the 

likelihood of more vital accident data 

being lost by use of non-compliant 

systems. Four years is an adequate time 

for passenger railroads with installed or 

currently ordered locomotive recording 

systems to get remaining value out of 

the recording systems without unduly 

putting value maximization of current 

locomotive recording systems above 

passenger rail safety. In addition, the 

NTSB has supported FRA’s four-year 

implementation period as encouraging 

prompt implementation of the final 

rule’s requirements. As stated above and 

in the NTSB’s comment, the NTSB’s 

report from the DuPont accident showed 

there is a clear investigative benefit to 

the information obtained from 

locomotive recording devices. 

According to the NTSB, ‘‘any further 

delays beyond the proposed 4-year 

deadline would be unacceptable,’’ given 

NTSB issued Safety Recommendation 

R–10–01 in 2010. 

Passenger locomotive image recorders 

that do not meet the final rule’s 

requirements might not be sufficient to 

identify railroad safety violations as 

well as provide adequate data for postVerDate Sep<11>2014 18:18 Oct 11, 2023 Jkt 262001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\12OCR2.SGM 12OCR2

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21 49 U.S.C. 20168(b)(2). 

accident/incident analysis. Moreover, 

even if FRA were to allow previously 

installed or ordered equipment to be 

excluded from this final rule’s 

requirements, retrofitting the vast 

majority of, if not all, passenger 

locomotives would still be necessary as 

the Statute requires locomotive recorder 

data to be stored on crashworthy 

memory modules and very few, if any, 

passenger railroads currently store their 

image recordings on such modules. As 

discussed in the Section II.K below, a 

four-year implementation period is an 

adequate timeframe for passenger 

railroads to comply with the final rule. 

Passenger railroads will have four years 

to stagger any modifications or retrofits 

that are necessary to bring their 

locomotives’ recording systems into 

compliance with the final rule. 

E. Certified Crashworthy Event Recorder 

Memory Modules 

1. Necessity of Crashworthy Memory 

Modules 

FRA received numerous comments 

about the proposed requirement to store 

locomotive recorder data on a certified 

crashworthy event recorder memory 

module and potential alternatives to 

meet an appropriate crashworthiness 

level to protect stored locomotive image 

recording system data. APTA stated that 

a crashworthy memory module is 

unnecessary due to the installation of 

positive train control (PTC) on 

passenger railroads, which will 

eliminate most of the accidents that 

FRA cited in the NPRM, and that 

passenger railroads believe crashworthy 

memory retention could be achieved by 

simply positioning the recording 

devices in an area to minimize impact 

forces. However, APTA supported 

FRA’s suggestion to provide waivers for 

the memory module’s crashworthiness 

when the recording is transmitted to a 

remote location, stating the technology 

surrounding image recordings is 

advancing more quickly than the 

rulemaking process, and encouraged 

FRA to consider waivers for remote 

storage options in lieu of 

crashworthiness standards. 

Wi-Tronix raised concerns that some 

of the proposed requirements for 

inward- and outward-facing cameras, 

such as the 12 hours of required storage 

together with the crashworthy memory 

module requirement, added 

unnecessary costs to railroads without a 

justification. Understanding the final 

rule’s need for data preservation, WiTronix asserted there are other technical 

approaches that could accomplish the 

same goals on a more cost-effective 

basis, stating that cloud solutions 

accomplish the same data retention and 

have the potential to be more 

economical while creating other value 

in the process. 

Conversely, both the NTSB and 

SMART supported the proposed 

crashworthy memory module 

requirement. In addition, BLET 

commented that the paramount 

consideration and goal of the final rule 

should be a uniformity of standards 

throughout the whole railroad industry, 

whether locomotive recording devices 

be required by the Statute or voluntarily 

installed. Therefore, BLET believed it 

makes logical and economic sense to 

store all forms of recorder operational 

data (e.g., event recorder data, safetycritical PTC data, and audio/visual 

recording data) in a single storage unit 

that meets the appropriate 

crashworthiness standards in appendix 

D to part 229. BLET also stated that FRA 

should be focused on the performance 

and survivability of crashworthiness 

options, and not necessarily the cost. 

2. Potential Exemptions From the 

Crashworthy Memory Module 

Requirements 

FRA also received comments about 

exempting from the crashworthy 

memory module requirement those 

systems that can store locomotive 

recorder data safely and remotely. As 

previously stated, APTA commented 

that FRA should avoid mandating 

onboard locomotive storage of data in 

favor of more flexible storage options for 

passenger railroads, including cloud or 

remote storage. Hitachi, Ltd. (Hitachi) 

agreed with APTA that remote storage 

should be allowed and recommended 

that the rule avoid mandating onboard 

crashworthy memory storage for 

locomotive recording data. Hitachi 

stated that image processing and data 

communications technology has 

matured in transmitting real-time 

images to be stored and analyzed 

remotely at centralized locations, and 

thus the final rule should avoid 

mandating onboard locomotive storage 

in favor of remote storage options that 

make more economic sense for the 

railroad. 

The NTSB, however, disagreed with 

exempting locomotive recorders from 

crashworthiness requirements even 

when the recording system is designed 

to immediately transmit and store data 

at a remote location. The NTSB asserted 

the exemption would risk the loss of 

data when an accident occurs in an area 

where data cannot be reliably 

transmitted, such as in tunnels or 

remote regions. BLET also commented 

that wireless transmission and storage of 

locomotive audio or image data should 

be prohibited to prevent private, 

personal data from being hacked. 

In response to these comments, FRA 

emphasizes that the requirements for 

crash and fire protection of in-cab 

recordings—i.e., that each inward- and 

outward-facing image recording device 

have crash and fire protections for any 

in-cab image recordings that are stored 

only within a lead locomotive—are 

mandated by the Statute.21 To 

implement this statutory requirement, 

in § 229.136(a)(5), FRA is requiring that 

any locomotive recording device data 

(including any audio recorder data) 

stored only within the lead locomotive 

be recorded on a memory module that 

meets the established requirements for a 

certified crashworthy event recorder 

memory module described in appendix 

D to part 229, which includes protection 

against fire. If a passenger railroad 

chooses to install a locomotive image 

recording device that does not store the 

recorded data only within the lead 

locomotive, but instead stores the data 

remotely using cloud storage or other 

remote storage alternative, the railroad 

must state so in its written description 

of the technical aspects of the 

locomotive image recording system 

submitted to FRA as part of the system’s 

approval process required by 

§ 229.136(g) of this final rule. FRA 

makes clear that use of a recording 

device system relying exclusively on 

cloud storage or other remote storage 

alternative would not require a waiver 

under 49 CFR part 211, as indicated in 

the NPRM, but instead may be 

authorized through the approval process 

under § 229.136(g). 

For FRA to approve use of a 

locomotive recording device system that 

only uses remote storage for its recorded 

data, the passenger railroad must show 

conclusively how the remote storage 

system provides at least equivalent data 

protections to those provided by use of 

a certified crashworthy memory module 

under appendix D to part 229. 

Specifically, the railroad must describe 

how all of the data will be reliably and 

securely transferred to the cloud or 

other remote storage location and how 

that data will be reliably and securely 

stored and retrievable. The railroad 

must also show how the reliable and 

secure transfer of all locomotive image 

recording device data to a remote 

storage location will occur under a 

variety of situations, including 

situations involving accidents and/or 

incidents (especially in outlying or 

remote areas), system failures, or other 

similar contingencies. FRA will not 

approve the use of any locomotive 


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22National Transportation Safety Board, Safety 

Recommendation R–13–22 (Aug. 14, 2013); 

available online at: https://www.ntsb.gov/safety/ 

safety-recs/recletters/R-13-018-023.pdf. 23 69 FR 39785 (June 30, 2004). 

image recording system if the railroad 

does not clearly demonstrate both that 

the data cannot be lost due to its transfer 

from the locomotive image recording 

device to the remote storage location 

and cannot be lost or corrupted during 

storage and therefore irretrievable. This 

allows passenger railroads to enjoy the 

benefits of remote storage of data for 

these recording devices while 

preventing the potential for lost data, 

which could prove critical in a postaccident investigation, and ensuring 

that the transfer of data to the remote 

storage location is secure. 

Freight railroads that have voluntarily 

installed or are planning to voluntarily 

install inward- or outward-facing 

recording devices on their locomotives 

are not required to store the data on a 

certified crashworthy event recorder 

memory module. However, FRA 

recommends that if a freight railroad 

chooses to use a memory module, it 

should mount and position the module 

in such a way as to provide the module 

with maximum protection. 

3. Need for Stronger Memory Module 

Requirements 

FRA understands the NTSB’s 

preference for stricter recorder 

survivability standards. The NTSB has 

recommended FRA require event 

recorder data to be also 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).22 However, 

the standards in appendix D to part 229 

require a crashworthy memory module, 

which is designated to withstand the 

conditions an event recorder may 

encounter, including accident 

conditions. 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 implementation 

of PTC systems. 

As discussed in the NPRM, the 

railroad accidents that led NTSB to 

issue recommendations related to 

locomotive image and audio recording 

devices were caused by human factors— 

and nearly all were PTC-preventable. 

Thus, given the full implementation of 

PTC systems on intercity passenger and 

commuter railroad main lines, the 

likelihood of similar accidents occurring 

should be greatly reduced, if not 

eliminated. In turn, the need should 

diminish for more stringent crashworthy 

memory module requirements to 

preserve image and audio recordings for 

use to investigate accidents resulting 

from human factor causes on main 

track. 

Memory modules are acceptable that 

meet the specified performance criteria 

in either Table 1 or Table 2 of section 

C, appendix D to part 229. 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 rail industry and equipment 

manufacturers are in the best position to 

determine the exact way they will test 

for the specified performance 

parameters.23 FRA’s position remains 

the same today and notes that not 

requiring specific test procedures also 

accommodates adoption of any future 

testing methods that are developed. 

4. Storing Audio Recordings on the 

Crashworthy Memory Module 

APTA commented that it was 

opposed to requiring recordings from 

voluntarily installed recording devices 

to be stored on a certified crashworthy 

memory module under part 229, 

appendix D. FRA does not agree. 

Although this final rule does not require 

passenger railroads to install locomotive 

audio recorders, because installing such 

devices is not required by the FAST Act, 

if passenger railroads voluntarily install 

audio recording devices, the data 

recorded must be maintained on a 

crashworthy memory module to ensure 

the data is available for use by FRA as 

well as other Federal agencies (and 

railroads themselves) to conduct 

effective post-accident/incident 

investigations and more accurately 

determine the causes of accidents/ 

incidents. Accordingly, § 229.136(a)(5) 

requires any passenger locomotive 

recording device data, whether image or 

audio data, to be recorded on a certified 

crashworthy memory module as 

described in part 229, appendix D, or on 

an alternative, remote storage system, as 

approved by FRA. For further 

discussion on this final rule’s accident/ 

incident preservation requirements for 

locomotive recording devices, please see 

the discussion under § 229.136(f) in this 

rule’s Section-by-Section Analysis. 

F. Outward-Facing Locomotive Image 

Recording Systems and Devices 

1. Placement of Outward-Facing 

Locomotive Image Recording Devices 

APTA expressed concern about the 

proposal to require aligning an outwardfacing locomotive image recording 

device to point parallel to the centerline 

of tangent track on which the lead 

locomotive is traveling. APTA believed 

the proposal would require mounting 

the camera within the gauge of the track 

and stated that, because many 

locomotive designs have center collision 

posts or center doors, the cameras may 

need to be mounted on the side of the 

locomotive and be aimed towards the 

center of the track. APTA therefore 

requested the rule be clarified 

accordingly to permit such camera 

placement. 

However, the rule text needs no such 

clarification because this rule does not 

require outward-facing image recording 

devices to be mounted on the centerline 

of a passenger locomotive. FRA 

recognizes that cab car and multipleunit (MU) passenger locomotives have 

features that may inhibit the placement 

of cameras on the centerline, and FRA 

never intended to require cameras to be 

mounted on the centerline. The rule 

requires cameras to be aimed ‘‘parallel’’ 

to the centerline of tangent track, 

wherever the cameras may be placed on 

the leading end of the locomotive, and 

FRA is adopting the proposed rule text 

without change. 

2. Requirements for Outward-Facing 

Locomotive Image Recorders Are Too 

Prescriptive 

APTA commented that requiring 

outward-facing locomotive image 

recorders to be able to distinguish the 

signal aspects displayed by wayside 

signals, as proposed in the NPRM, 

would be too prescriptive and 

overcomplicate the outward-facing 

camera system. APTA preferred a more 

performance-based standard, and added 

there are multiple environmental factors 

that affect the image quality of outwardfacing camera footage that are not 

within the railroad’s control. APTA also 

stated that the proposed standard to 

record at 15 frames per second (fps) and 

the proposed resolution requirement are 

vague and would make design 

compliance subject to many factors that 

would increase costs. APTA therefore 

offered alternative language allowing 

the railroads to determine the frame rate 

and resolution for their locomotives’ 

outward-facing cameras. Similarly, WiTronix asserted that basing the 

resolution requirement for outwardfacing cameras upon whether a system 


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24FRA has exempted the locomotive’s sanitation 

compartment in paragraph (c)(3), because the 

privacy needs of the train crew outweigh, among 

other things, the potential that actions occurring in 

the sanitation compartment will cause or contribute 

to an accident/incident. 

could determine switch points from a 

50-foot distance is too subjective, and 

instead suggested that an objective, 

technical resolution specification 

should be used and implemented. AAR 

also stated that FRA should remove 

prescriptive provisions, such as the 

NPRM’s proposed requirements for 

outward-facing recording devices. 

TTD commented that it did not object 

to less prescriptive requirements on 

outward-facing cameras for the purposes 

of preventing vandalism, theft, or other 

criminal activity. However, BLET 

supported more prescriptive 

requirements for outward-facing 

locomotive image recording devices, 

commenting that it favored requiring 

locomotive recordings to have an 

accurate date/time stamp calibrated to 

coincide with the date/time stamp on 

the lead locomotive’s event recorder. 

BLET stated that investigative efforts 

would be hampered, instead of 

facilitated, if such a requirement were 

not adopted. 

Finally, Metra commented that FRA 

should permit flexibility in the selection 

and implementing of railroads’ 

locomotive image and audio recording 

systems. Specifically, Metra stated that 

if the systems meet the technical 

requirements, railroads should have 

leeway to determine the type and model 

of recording system used and what 

sound audio recording systems will 

capture (e.g., cab versus exterior bell 

and horn). 

After consideration of all comments 

received, FRA is adopting the 

requirements for outward-facing 

locomotive image recording devices in 

§ 229.136(b)(1) as proposed in the 

NPRM. FRA understands concerns that 

certain requirements for outward-facing 

cameras are prescriptive; however, this 

was FRA’s intention. As compared to 

the defined space inside a locomotive 

cab, the area outside and ahead of a 

locomotive is vast and unbounded. 

Consequently, establishing certain, more 

prescriptive, uniform performance 

parameters helps ensure that image 

recordings conform to minimum 

standards necessary for reliable, postaccident/incident investigation. A more 

performance-based approach risks 

potential variances and omission of 

necessary data. However, FRA makes 

clear that these standards are minimum 

standards, and passenger railroads do 

have considerable discretion as to how 

they want their outward-facing 

locomotive cameras to operate and 

record data. 

G. Inward-Facing Locomotive Image 

Recording Systems and Devices 

1. Inward-Facing Recording Devices as a 

Tool To Detect Fatigue 

In the NPRM, FRA discussed the 

possibility of inward-facing image 

recorders being a tool to identify fatigue, 

prevent fatigue-related accidents/ 

incidents, and identify when fatigue has 

been a relevant factor in an accident/ 

incident. However, APTA commented 

that relying on image data as a fatiguemitigation tool has limited application, 

stating it is unclear what criteria the 

industry would use to determine when 

an employee is fatigued and that such 

analysis on the part of the railroad could 

be subjective. 

This final rule requires the inwardfacing image recording systems to have 

sufficient resolution only ‘‘to record 

crewmember actions’’; FRA has not 

adopted the proposed text specifically 

addressing crewmember incapacitation. 

FRA is still hopeful that inward-facing 

locomotive cameras can be helpful 

devices to determine whether fatigue 

may have caused or contributed to an 

accident or incident. However, FRA 

agrees that requiring passenger railroad 

to make a determination that their 

inward-facing locomotive image 

recording systems have sufficient 

resolution to identify whether a 

crewmember is physically incapacitated 

is too subjective a standard. 

2. Locomotive Recording Devices and 

Real-Time Monitoring 

APTA sought clarification whether 

the proposal implied that passenger 

railroads must conduct real-time 

monitoring of their locomotive cabs. 

According to APTA, the passenger 

railroad industry does not support realtime monitoring and, if remote 

monitoring is added as a requirement, 

FRA would need to significantly adjust 

its cost burden estimates to account for 

staffing and other increased costs of 

such monitoring. As discussed in the 

Section-by-Section analysis below, FRA 

has not adopted the proposed language 

that APTA believed may imply a 

requirement to engage in real-time 

monitoring of the train crew. FRA 

intended no such requirement. 

3. Inward-Facing Recording Device 

Coverage of the Locomotive Cab 

APTA suggested changes to the 

proposal in § 229.136(c)(1) that the 

inward-facing recording system be 

positioned to provide ‘‘complete 

coverage of all areas of the controlling 

locomotive cab where a crewmember 

typically may be positioned.’’ APTA 

commented that the proposal was too 

prescriptive, stating that multiple 

designs of locomotives would require 

various solutions and therefore the 

devices should be positioned to provide 

coverage of areas of the controlling 

locomotive cab as defined by the 

operating railroad. 

Similarly, SMART disagreed with 

requiring the inward-facing image 

recorders to provide ‘‘complete’’ 

coverage of the locomotive cab, and 

instead suggested that the standard 

should provide for ‘‘overall’’ coverage. 

SMART acknowledged that an inwardfacing locomotive image recording 

device must be positioned to provide 

coverage of the controlling locomotive, 

but believed requiring ‘‘complete’’ 

coverage might be overly broad and 

imply coverage to include every minute 

area of the locomotive. 

In general, the requirement to provide 

‘‘complete’’ coverage is intended to 

ensure that the recording system not 

omit footage of crewmember actions in 

any part of the locomotive cab that 

might be vital in post-accident/incident 

investigations.24 Allowing the operating 

railroad to define the areas of the lead 

locomotive to be covered by the inwardfacing recording system or allowing 

only ‘‘overall’’ coverage may lead to a 

lack of a uniform minimum amount of 

coverage that risks omitting critical data. 

Therefore, FRA is still requiring that 

inward-facing image recording systems 

provide ‘‘complete’’ coverage of all areas 

of the controlling locomotive cab but 

puts some limits on the requirement. 

‘‘Complete’’ coverage only needs to be 

‘‘of all areas of the lead 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 clause ensures that 

passenger railroads will not be found in 

violation of the standard if their inwardfacing image recording system does not 

cover mostly inaccessible corners of the 

locomotives where activities necessary 

to operate the locomotive would not 

occur. 

4. Recording in Low-Light Conditions 

APTA opposed including the 

language in proposed paragraph 

§ 229.136(c)(1)(ii) (now in (c)(1)(iii)) 

requiring recording systems to 

automatically switch to infrared or 

another operating mode that enables the 

recording to have sufficient clarity when 

ambient light levels drop too low for 


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25Skinner v. Railway Labor Executives 

Association, 489 U.S. at 627. 

26See 49 CFR 229.136(c)(2) of this final rule. 

normal operation. Instead of what it 

termed a too prescriptive and one-sizefits-all approach, APTA believed the 

requirement should provide that the 

camera system be capable of using 

ambient light in the cab during all times 

in passenger service. Conversely, the 

NTSB agreed with FRA’s proposal. 

FRA disagrees that the proposed 

requirement for a recording system to 

switch to another operating mode to 

enable effective recording when ambient 

light levels are too low for normal 

operation is overly prescriptive. As 

proposed, the camera system may use 

any operating mode that enables the 

passenger railroad to record with 

sufficient clarity all areas of the lead 

locomotive cab where a crewmember 

typically may be positioned. Infrared 

technology is one way of meeting this 

requirement, but the use of infrared 

technology is not required. This is a key 

requirement, however, to ensure that 

regardless of the technology used to 

record inside the locomotive cab at 

nighttime or in other periods of low 

ambient light (e.g., in tunnels), the 

inward-facing cameras must still be 

capable of recording crewmember 

actions with sufficient clarity. 

Accordingly, FRA is adopting this 

requirement as proposed in the NPRM. 

In addition, BLET commented that 

locomotive technologies are already 

excessively distracting to crewmembers, 

there is no need for additional 

distractions, and cameras or 

independent light sources should never 

emit any light that distracts the crew 

from safely performing their duties or 

interferes with the crew’s vision outside 

the locomotive window. APTA also 

stated that a crew should always be able 

to use the locomotive’s sun visor to 

block direct sunlight that could affect 

the crew’s sight and the identification of 

signals or other objects outside of the 

locomotive cab windows. 

Existing FRA regulations provide that 

any illumination in low-light conditions 

cannot interfere with a crew’s vision (49 

CFR 229.127(a)), and the placement of 

image recording devices cannot obstruct 

a crew’s view of the right-of-way from 

its normal positions in the cab (49 CFR 

229.119(b)). The use of infrared 

technology itself is not a distraction to 

crewmembers and should be installed 

on a locomotive so it does not interfere 

with the ability of crewmembers to 

safely perform their duties. In addition, 

although FRA does agree that train 

crews should be able to use the 

locomotive’s sun visor to block direct 

sunlight that could affect the crews’ 

vision, FRA cautions railroads to not 

place the inward-facing cameras in such 

a way that they can be blocked by the 

train crew’s use of the locomotive visor. 

5. Frame Rate for Inward-Facing 

Recording Devices 

APTA commented that it supported 

the proposed standard to require 

inward-facing recording devices to 

record at a frame rate of at least 5 fps. 

In contrast, BLET commented that 5 fps 

could be too low a frame rate for use 

during accident reconstruction if the 

pictures are not fluid enough to capture 

action as it happens at the speed it 

happens. Although BLET understood 

that allowing inward-facing image 

recorders to record at a lower frame rate 

enabled passenger railroads to store 

more image data at a lower expense, 

BLET was concerned that the frame rate 

could create synchronization 

inaccuracies when the video and audio 

are captured or played back at different 

rates. Therefore, BLET stressed that the 

final rule should specify a frame rate 

that will prevent these types of 

inaccuracies. 

The NTSB agreed with BLET that a 

recording rate of 5 fps was not sufficient 

for inward-facing image recorders. 

According to the NTSB, because 

locomotive operating compartments 

contain numerous indicator lights and 

displays, cameras recording at 5 fps may 

not adequately capture possible 

intermittent warnings or indicator 

lights. The NTSB stated that it was not 

aware of any memory limitations that 

would necessitate such a low frame rate 

and, instead, recommended at least a 

10-fps recording rate for inward-facing 

image recorders. 

FRA understands the concerns raised 

by BLET and the NTSB. However, FRA 

is adopting 5 fps as the minimum 

standard to provide passenger railroads 

maximum flexibility to comply with the 

requirements of this final rule. As 

previously discussed in the NPRM as 

well as below, a rate of 5 fps is APTA’s 

recommended practice for the selection 

of recording systems for use in transitrelated closed circuit television 

recording systems and in low-traffic 

areas or areas where only walking-pace 

motion is likely (such as passenger 

areas). Moreover, this frame rate is only 

a minimum standard. For instance, FRA 

expects that some passenger railroads 

may install inward-facing recording 

systems with a higher frame rate to 

enhance the use of the devices for 

operational testing. In addition, under 

paragraph § 229.136(g), discussed below 

in the Section-by-Section Analysis, 

passenger railroads must provide a 

written description of the technical 

aspects of any locomotive image 

recording system installed to comply 

with this section. Under 

§ 229.136(c)(1)(i), FRA will not approve 

an image recording system that does not 

have ‘‘sufficient resolution to record 

crewmember actions,’’ even if the 

system records at a minimum frame rate 

of 5 fps. As a result, recording systems 

that cannot accurately provide 

information or sufficiently record what 

is occurring within the locomotive cab 

will not be approved prior to 

installation. 

6. Prohibition on Recording Activities 

Within a Locomotive’s Sanitation 

Compartment 

BLET and SMART both supported the 

proposed requirement that inwardfacing locomotive cameras may not 

record any activity within a 

locomotive’s sanitation compartment as 

defined in § 229.5, and that no image 

recording device be installed in a 

location where the device could record 

activities within the locomotive’s 

sanitation compartment. Although the 

Supreme Court has ruled that a 

locomotive is a workplace and therefore 

employees have no expectation of 

privacy,25 train crewmembers have an 

expectation that their actions will not be 

recorded on the locomotive’s inwardfacing recording device(s) within the 

passenger train’s sanitation 

compartment. FRA is adopting the 

proposed prohibition on recording the 

sanitation compartment in the final rule 

without substantive change.26

H. Notice Provided When Locomotive 

Recording Devices Are Present 

FRA received several comments in 

response to what, if any, notice 

passenger railroad crewmembers should 

receive that locomotive recording 

devices are present in the locomotive 

cab. APTA commented that its member 

passenger railroads have already 

addressed this issue by providing 

information using operational notices to 

affected employees. APTA also added, 

as discussed above, that courts, 

including the Supreme Court, have 

ruled that a locomotive is a workplace 

and employees have no expectation of 

privacy within it. In contrast to APTA’s 

comment, Amtrak stated that providing 

notice by Form FRA F 6180–49A alone, 

as proposed in the NPRM, was 

inadequate because it could in practice 

limit who sees the information. Instead, 

Amtrak recommended that FRA require 

signage alerting the crew that audiovisual recording devices are present. 

SMART agreed with Amtrak’s comment 


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27FRA published a 60-day Federal Register 

notice to solicit public comments on the new F 

6180–49AP form. 87 FR 50914 (August 18, 2022). 28See 49 U.S.C. 20168(j). 

that signage should be required and that 

there should also be a visible light on 

the recording device that indicates to 

crewmembers when the device is in 

operation. 

Because as noted above, 

crewmembers have no expectation of 

privacy in a locomotive cab, excluding 

the sanitation compartment, FRA has 

concluded that although it proposed to 

provide notice of recording devices to 

crewmembers via a notation on Form F 

6180–49A (Locomotive Inspection and 

Repair Record), such notice is not 

required as a matter of privacy concerns. 

Therefore, FRA will not require 

railroads to post signage alerting 

crewmembers that audio-visual 

recording devices are present. 

However, the value of requiring the 

presence of a locomotive recording 

device to be noted on a locomotive 

inspection and repair record, similar to 

§ 229.135(a)’s requirement for 

locomotive event recorders, is to ensure 

that the device is inspected and in 

proper operating condition as this rule 

requires. In this regard, as discussed 

below in Section II.I.3, when a railroad 

removes a locomotive image recording 

device from service, a qualified person 

must record the date the device was 

removed from service on Form FRA F 

6180–49AP (Passenger Locomotive 

Inspection and Repair Record). This 

requirement varies slightly from the 

requirement proposed in the NPRM, 

where FRA proposed that the notation 

indicating a locomotive image recording 

device has been removed from service 

be made under the REMARKS section of 

Form F 6180–49A. This is no longer the 

case. Instead, FRA has created a new 

form, Form F 6180–49AP, specifically 

for passenger locomotives.27 It is in the 

REMARKS section of new Form F 6180– 

49AP that a qualified person will note 

the date when a locomotive image 

recording device is removed from 

service. 

As discussed below in the section-bysection analysis for new § 229.22, 

Passenger locomotive inspection and 

repair record, Form F 6180–49AP will 

serve as the new counterpart to Form F 

6180–49A, and will include a 

designated row for entering information 

about annual testing of locomotive 

image recording devices required under 

§ 229.136, consistent with the 

designated row on Form F 6180–49A (as 

well as new Form F 6180–49AP) for 

entering information about required 

locomotive event recorder testing. FRA 

makes clear that this new form will in 

no way affect use of the F 6180–49A 

form by locomotives in freight or 

switching service, which are not subject 

to the requirements of this rule, nor will 

it affect use of the F 6180–49A form by 

passenger locomotives that are not used 

as the lead locomotives in commuter or 

intercity passenger train service. 

Further, FRA understands and does 

not dispute the legal precedent raised by 

APTA that locomotives are highly 

regulated workplaces, and employees 

have no expectation of privacy while 

performing, or ready to perform, 

operating duties within a locomotive. 

The only area where train crews do have 

an expectation of privacy is within a 

locomotive’s sanitation compartment, 

treatment of which is discussed above 

in Section II.G. 

I. Repairing, Replacing, or Removing 

Locomotive Image Recording Devices 

From Service 

1. Practicableness of the Standard 

FRA received several comments on 

the appropriateness of the standard in 

proposed § 229.136(i) that would 

require inward- and outward-facing 

locomotive image recording devices to 

be repaired or replaced at the next 

calendar day inspection or be removed 

from service. Many commenters claimed 

the standard was too burdensome and 

should be revised. APTA asserted that 

requiring these systems to be repaired or 

replaced by the next calendar day 

inspection is impractical, stating that 

locomotive image recording systems can 

fail for many different reasons, and 

repairs can sometimes take several days. 

According to APTA, the passenger 

railroad industry has limited fleet 

availability and restricting locomotives 

or trainsets due to locomotive image 

recording system failures alone could 

have a substantial impact on 

dispatching trains, potentially taking an 

entire trainset out of service when the 

cars are semi-permanently coupled. 

APTA contended that the proposed 

standard was financially unrealistic 

and, if adopted, would require the 

industry to obtain additional 

locomotives or trainsets, driving up the 

cost of the final rule and significantly 

affecting the rule’s cost-benefit analysis. 

APTA stated that the Statute prevents 

FRA from adopting a standard that 

‘‘requir[es] a railroad carrier to cease or 

restrict operations upon a technical 

failure of an inward- or outward-facing 

image recording device or in-cab audio 

device,’’ 28 and asserted that the 

operating railroad should be free to 

repair or replace the device ‘‘as soon as 

practicable’’ under the Statute. APTA 

added that, given passenger railroads’ 

voluntary installation of these devices, 

railroads find it in their best interest to 

repair or replace these devices for many 

reasons independent of Federal 

requirements. 

Metra agreed with APTA’s assertion 

that FRA’s proposed standard conflicted 

with the Statute. Metra suggested that 

FRA should interpret ‘‘as soon as 

practicable’’ under the Statute to mean 

48 hours at a minimum. Metra stated 

that, because the locomotive recording 

systems it uses require substantial 

investment in both money and 

workforce any requirement to repair or 

replace non-functioning equipment that 

provides for less than 48 hours is not 

practicable. In its comments, AAR 

agreed with Metra that ‘‘as soon as 

practicable’’ should be at least 48 hours 

from the discovery that the device has 

failed, citing the cost of image recording 

devices, the multitude of components 

that could cause the device to fail, and 

the inevitability of tampering. 

Amtrak also commented on the 

appropriateness of FRA’s proposal and 

suggested basing the standard on the 

‘‘next capable facility’’ rather than on a 

specific unit of time. According to 

Amtrak, long-distance passenger trains 

may operate for multiple days until a 

suitable repair facility is available to 

replace equipment and often calendar 

day inspections are performed at 

outlying locations where minimal 

workforces do not have the suitable 

means to replace equipment. Amtrak 

believed a requirement to repair the 

equipment at the next capable facility 

would address this concern, and that 

this standard should apply to both 

inward- and outward-facing locomotive 

cameras. 

A private citizen also commented 

that, in some situations, passenger trains 

are parked overnight far from 

comprehensive repair facilities. The 

commenter therefore believed there 

should be an allowance for locomotive 

recording devices to make it back to an 

appropriate repair facility without 

cancellation or delays to passenger 

trains. The commenter stated that 

ultimately the use and repair of the 

devices should not force passengers into 

less safe situations by requiring them to 

drive instead of taking the train, given 

that rail is a safer mode of travel. 

However, not all commenters objected 

to FRA’s proposed standard. BLET 

stated that locomotive cameras should 

be treated the same as any device 

mounted on or in a locomotive cab, 

asserting that locomotive cameras are 

appurtenances under § 229.7 and should 

be treated in a similar fashion to event 


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29Short-distance intercity passenger service 

means service provided exclusively on the 

Northeast Corridor or between cities not more than 

125 miles apart. 49 CFR 238.5. 

recorders under § 229.135. BLET 

believed the calendar day inspection 

requirement mirrors long-established 

requirements for removing event 

recorders from service under 

§ 229.135(c), is no more burdensome 

than the event recorder requirement, 

and should be included in this final 

rule. 

FRA agrees with BLET’s reasoning 

and is largely adopting the standard 

proposed in the NPRM that all inwardand outward-facing image recording 

devices either need to be repaired or 

replaced within the next calendar day 

inspection or be removed from service. 

However, after consideration and review 

of the comments received, FRA 

reexamined how this requirement 

would affect long-distance intercity 

passenger trains and is creating a new 

exception to the requirement for these 

trains. Instead of taking a lead 

locomotive on a long-distance intercity 

passenger train out of service if it cannot 

be repaired or replaced by the next 

calendar-day inspection, the locomotive 

may continue in service until arrival at 

its destination terminal or its nearest 

forward point of repair, whichever 

occurs first. At that point, the 

locomotive must be taken out of service 

until the device is repaired or replaced. 

FRA determined an exception for 

long-distance intercity passenger trains 

was necessary, taking into further 

account the implications of the 

difference between the application of 

this final rule and the locomotive event 

recorder rule in § 229.135. Section 

229.135 requires locomotive event 

recorders to be installed on both freight 

and passenger locomotives, yet this final 

rule requires locomotive image 

recording devices to be installed only on 

passenger train lead locomotives. 

Because a much smaller number of 

locomotives will be required to have 

compliant image recording devices than 

event recorders, FRA expects there will 

be a correspondingly smaller number of 

locations throughout the nation where 

properly equipped replacement 

locomotives and image recording 

devices are available, as well as where 

appropriate parts and equipment for 

repair are available. Accordingly, longdistance intercity passenger trains may 

need to travel beyond the location of 

their next calendar day inspection until 

a suitable repair facility is available to 

repair or replace the equipment, 

especially because calendar day 

inspections for long-distance intercity 

passenger trains are sometimes 

performed at outlying locations, as 

Amtrak commented. 

This exception is limited to longdistance intercity passenger trains. The 

majority of passenger locomotives in 

this Nation operate in commuter service 

or short-distance intercity passenger 

service 29—service supported by 

centralized inspection and repair 

locations. Passenger railroads operating 

trains in commuter or short-distance 

intercity passenger service are therefore 

expected to have adequate parts, 

equipment, and facilities available at 

calendar day inspection locomotives to 

repair or replace defective image 

recording systems or devices. 

2. Standard’s Consistency With 

Locomotive Recording Devices’ 

Designation as Safety Devices 

Hitachi commented that allowing a 

passenger train to continue in operation 

without the proper image recording 

capabilities until the next calendar day 

inspection conflicts with FRA’s defining 

locomotive recording devices as a safety 

device under part 218. FRA disagrees 

that there is a contradiction. Taking a 

locomotive out of service immediately 

because a safety device (e.g., a 

locomotive image recorder) is not 

working could potentially lead to a 

more dangerous safety issue (e.g., 

stranding passengers or overwhelming 

the safe capacity of station platforms). 

3. Documenting When a Locomotive 

Image Recording Device Has Been 

Removed From Service 

APTA commented that when a 

railroad removes a locomotive image 

recording device from service, the final 

rule should not require a qualified 

person to record the removal date on 

Form FRA F 6180–49A, under the 

REMARKS section. As discussed above 

in Section II.H, APTA repeated its 

objection to the NPRM’s proposed 

requirement that the railroad note the 

presence of any image or audio 

recording system on Form FRA F 6180– 

49A. APTA stated that passenger 

railroads already address the issue by 

providing information to affected 

employees through operational notices. 

In addition, APTA believed adding this 

paperwork burden is not beneficial to 

safety, and claimed that FRA has not 

considered this cost in its cost-benefit 

analysis. 

Although FRA agrees with established 

legal precedent that train crews have no 

expectation of privacy in a locomotive 

cab, excluding the sanitation 

compartment, FRA disagrees that this 

form notation requirement is a 

paperwork burden without a safety 

benefit. As discussed above in Section 

II.H, passenger railroads will be 

required to note in the REMARKS 

section of new Form FRA F 6180–49AP, 

specifically for passenger locomotives, 

when an image recording device has 

been removed from service. This 

notation will serve as a quick reference 

to inform crewmembers and other 

passenger railroad employees (e.g., 

mechanical employees responsible for 

locomotive repairs, maintenance and 

inspection) of the status of the 

locomotive’s recording devices and the 

image recording system on board any 

passenger locomotive. The final rule 

varies slightly from the requirement 

proposed in the NPRM in that such a 

notation will be made in the REMARKS 

section of Form FRA F 6180–49AP—not 

Form F FRA 6180–49A. Form F 6180– 

49A will be exclusively used by 

locomotives in freight or switching 

service and by passenger locomotives 

that are not operated as the lead 

locomotives in commuter or intercity 

passenger train service. In response to 

APTA’s cost-benefit analysis comment, 

FRA has updated its cost-benefit 

analysis to discuss that the costs are 

incorporated in locomotives’ routine 

scheduled maintenance. The removal 

from service requirements in 

§ 229.136(i) do not apply to audio 

recording devices, which are not 

required to be installed under this final 

rule. 

In its comments, Amtrak asserted that 

a notation on form FRA F 6180–49A is 

not sufficient notice that a locomotive’s 

inward- or outward-facing camera is 

out-of-service. Instead, Amtrak 

recommended making a record in an 

electronic maintenance system and 

opening a work order for repair, along 

with applying a non-compliant tag on 

the equipment. Amtrak stated such a 

process would be similar to that for the 

failure of dynamic brakes under 

§ 232.109 of this chapter. 

FRA maintains that the requirement 

as proposed is adequate to provide 

notice that either the locomotive’s 

inward- or outward-facing camera 

system is malfunctioning. Moreover, the 

reporting of any defect on a locomotive 

is subject to the calendar day inspection 

requirements in § 229.21. However, part 

229 does not require a non-compliant 

tag to be placed on a locomotive with 

a defective event recorder under 

§ 229.135, and no such tag is required 

under this final rule. 

J. FRA Approval Process for Locomotive 

Image Recording Systems and Devices 

1. Necessity of the Approval Process 

In response to FRA’s proposal, APTA 

questioned why an approval process 


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30 49 U.S.C. 20168(c). 31 84 35714. 

was needed, stating that the recording 

system is not safety-critical. Further, 

APTA commented that FRA had not 

accounted for the approval process in 

the cost-benefit analysis, asserting that 

an approval process for any element 

increases the cost of the rule and 

implementation time. According to 

APTA, given the widespread, voluntary 

implementation of these systems, FRA 

should not require their approval and 

should, instead, allow passenger 

railroads to create and maintain a 

written description that can be made 

available upon request to FRA at any 

time. 

FRA has not adopted APTA’s 

comment. The Statute requires FRA, as 

the Secretary’s delegate, to establish a 

review and approval process for inwardand outward-facing locomotive image 

recorders.30 This final rule therefore 

includes a review and approval process 

as the Statute requires. Nonetheless, 

FRA has adjusted the economic analysis 

to include the approval process cost; for 

more detailed information on the cost, 

please see the RIA accompanying this 

final rule. Further, for the reasons 

discussed below in Section II.M, FRA 

disagrees with APTA’s assertion that 

image recording devices are not safetycritical. Notably, FRA is amending part 

218’s prohibitions against tampering 

with safety devices specifically to 

include passenger locomotive recording 

devices and is adopting § 229.136(j) to 

expressly prohibit disabling or 

interfering with passenger locomotive 

recording systems. 

2. Clarifying the Approval Process 

In commenting on proposed 

§ 229.136(g), Wi-Tronix stated that the 

approval process for locomotive 

recording devices needed clarification. 

According to Wi-Tronix, the proposed 

requirements would lead to confusion 

and delays in the marketplace because 

railroads often look for a certified 

product or service and have little desire 

to go through an additional certification 

process. Wi-Tronix requested FRA 

clarify whether suppliers can selfsubmit a system for approval, and 

believed the timelines and process 

(including each railroad needing 

separate certification) to be 

commercially impractical and lead to 

increased costs and slow the rule’s 

implementation. 

Separately, Amtrak requested 

changing the approval process 

submission timeframes, citing 

constraints due to clerical limitations 

and the logistics of acquiring 

equipment. Amtrak stated that a more 

realistic and achievable timeframe 

would be 90 days for existing systems 

and 180 days for proposed systems. 

FRA disagrees that the approval 

process is unclear. Section 229.136(g)(1) 

explains what a passenger railroad must 

include in its description of the 

technical aspects of the locomotive 

image recording system. Although the 

paragraph does not provide extensive 

technical detail, FRA does not consider 

this to be a limitation but rather to 

provide the passenger railroads 

flexibility in preparing their 

submissions. 

FRA also believes 60 days from the 

effective date of this final rule provides 

railroads sufficient time to prepare and 

submit descriptions of the technical 

aspects of their existing locomotive 

image recording systems. (Please note 

that the 60-day period after the final 

rule’s effective date reflects an earlier 

effective date than indicated in the 

NPRM, so that the overall length of the 

submission period is the same.) This 

final rule takes effect on November 13, 

2023, which is 30 days after publication 

of this final rule. Accordingly, railroads 

have a total of 90 days from this final 

rule’s publication to prepare and submit 

descriptions of the technical aspects of 

their existing locomotive image 

recording systems. Such description of 

the technical aspects may be submitted 

to FRA in electronic form. 

In this final rule, FRA is also 

correcting an error in proposed 

§ 229.136(g)(2) in which FRA stated that 

the submissions for existing systems 

must be made ‘‘not less than’’ 30 (now 

60) days after the effective date of the 

final rule. However, the explanation of 

this proposed paragraph in the NPRM’s 

Section-by-Section Analysis did 

correctly state that the submissions 

must be made ‘‘not more than’’ 30 (now 

60) days after the effective date of a final 

rule. FRA is correcting the erroneous 

language in the text of paragraph (g)(2) 

accordingly, as railroads are not 

required to wait until the end of the 

period to make their submissions. FRA 

is also revising the approval process in 

this final rule to make clear affirmative 

approval from FRA will be required 

before a passenger railroad’s inward- or 

outward-facing locomotive image 

recording system can be installed or 

placed into service. This is a change 

from the proposal in the NPRM that, in 

the absence of written disapproval from 

FRA within 90 days of FRA’s receipt of 

the submission, the railroad’s 

locomotive image recording system 

would be considered approved. FRA has 

concluded that a transparent and 

conclusive approval process is required, 

and it would not be in the public’s 

interest to allow for the possibility that 

a non-compliant system could be 

approved through unexpected events or 

inadvertence. At the same time, FRA 

plans to publish a list of any previously 

approved systems on its website for 

railroads’ convenience, as FRA noted in 

the NPRM.31

Because this final rule requires FRA’s 

affirmative approval before a locomotive 

image recording system can be installed 

or placed into service on a locomotive, 

if a railroad chooses to submit the 

required information 180 days before 

installation of these systems, consistent 

with Amtrak’s comment, FRA would 

not object. In fact, as a practical matter, 

FRA encourages railroads to make their 

submissions well in advance of the 

submission deadline, so that if the 

submission were incomplete or requires 

clarification, or if FRA were to 

disapprove any or all of a railroad’s 

submission, the railroad could timely 

respond to minimize, if not avoid 

altogether, any impact on the railroad’s 

proposed installation schedule or the 

use of railroad resources. 

Finally, in response to Wi-Tronix’s 

comment, the submission must come 

from the applying passenger railroad, as 

opposed to a supplier or other party, 

though it may of course be prepared in 

consultation with a supplier or other 

party. This is necessary as each railroad 

may use potentially different types of 

locomotives with different internal and 

external characteristics. How each 

passenger railroad complies with the 

requirements of § 229.136, such as (but 

not limited to) how the inward- and 

outward-facing locomotive cameras are 

installed or placed, is for the passenger 

railroad to describe and demonstrate. 

3. Application of the Approval Process 

to Freight Locomotives 

Finally, similar to other comments 

BLET made on the NPRM, BLET stated 

that the requirements of § 229.136(g) 

should apply whether a system is 

installed on a voluntary basis or 

mandated by law. FRA disagrees. As 

discussed previously, the requirements 

of this rulemaking do not apply to 

freight locomotives that have or will 

have installed locomotive image 

recorders. However, FRA expects that 

all railroads that voluntarily install 

recording devices on their locomotives 

will adhere to practices that are 

consistent with those in this final rule, 

and FRA invites parties with questions 

about the voluntary installation of 

recording devices on locomotives to 

contact FRA for such technical 

assistance. 


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32https://www.gazette.gc.ca/rp-pr/p1/2019/2019- 

05-25/html/reg5-eng.html. 

33https://gazette.gc.ca/rp-pr/p2/2020/2020-09- 

02/html/sor-dors178-eng.html. 

34 49 U.S.C. 20168(a). 

K. Implementation Period of the Rule 

1. Four-Year Implementation Period 

FRA received several comments about 

the proposed four-year implementation 

period within which all lead passenger 

train locomotives in commuter or 

intercity passenger service would be 

required to be equipped with compliant 

inward- and outward-facing image 

recording devices. Commenters 

provided different suggestions on how 

FRA should set the implementation date 

for the final rule. APTA stated that if 

FRA would not exclude from the final 

rule existing locomotives already 

equipped with recording devices, the 

rule should take effect 10 years from its 

publication date. APTA believed the 10- 

year period would allow passenger 

railroads to obtain the full, life-cycle 

value of locomotive image recording 

systems installed or soon to be installed, 

i.e., already under contract and 

designed. APTA contended that this 

would be a more effective use of funds, 

as most passenger railroads are public 

transportation agencies funded by 

taxpayer dollars, and also stated that 

these public agencies must adhere to 

strict, public procurement rules, and 

consequently need a considerable 

amount of time to get public agency 

procurements completed. 

Metra suggested that FRA phase-in 

the requirements with an 8-year 

implementation period in which 

passenger railroads have 70 percent of 

their locomotive fleets compliant within 

the first 5 years. Metra stated that it was 

generally supportive of FRA’s 

implementation requirement, but found 

the proposed 4-year timeframe to be 

insufficient for an entity the size of 

Metra, which has over 529 pieces of 

equipment requiring installation. 

Other commenters supported the 

proposed 4-year implementation period. 

The NTSB stated that the deadline 

would encourage prompt 

implementation of the final rule’s 

requirements. As the NTSB discussed in 

its report on the DuPont accident, and 

as discussed earlier in this final rule, 

there is a clear investigative benefit to 

the information provided by locomotive 

recording devices. The NTSB also noted 

that it had issued NTSB Safety 

Recommendation R–10–01 in 2010, on 

the need for locomotive recorder 

devices, and that any further delay 

beyond the proposed deadline in the 

NPRM would be unacceptable. SMART 

also commented that the final rule 

should allow 4 years for passenger 

railroads to install compliant recording 

devices, but sought to require that as 

compliant devices are installed on 

locomotives, railroads should comply 

with the other requirements of the final 

rule. 

FRA maintains that 4 years is an 

adequate time-period for passenger 

railroads to comply with the final rule’s 

requirements. Granting passenger 

railroads a full 10 years or a phased-in 

8 years to comply with the minimum 

requirements would be both excessive 

and not in the best interests of the 

public or rail safety. As the NTSB 

commented, recent accidents involving 

passenger trains have proven how 

valuable locomotive image recordings 

can be as part of post-accident/incident 

analysis to identify rail safety hazards. 

The 4-year period allows passenger 

railroads sufficient time to get 

significant remaining value out of their 

equipment while taking into account the 

increased post-accident investigation 

benefit and other benefits that result 

from compliance with the final rule’s 

requirements. 

2. Application of the Final Rule to 

Image Recording Systems on New, 

Remanufactured, or Existing 

Locomotives 

FRA invited comment on the 

appropriateness of the proposal that 

image recording systems installed after 

one year from the final rule’s 

publication date on new, 

remanufactured, or existing locomotives 

used in commuter or intercity passenger 

service meet the requirements of this 

final rule. Based on concerns about the 

length of the public procurement 

process, number of locomotives already 

equipped with image recording devices, 

and the lifespan of these devices, APTA 

and Hitachi asked that FRA extend the 

time to comply until after two years 

from the final rule’s publication date. 

FRA has decided against extending 

the time from one to two years because 

the one-year period is intended to 

provide an appropriate margin of time 

for passenger railroads to obtain image 

recording systems compliant with the 

requirements of this final rule for 

installation on new, remanufactured, 

and existing locomotives. These 

requirements are minimum standards 

and are achievable. In this regard, AAR 

commented that FRA should compare 

the standards in this rulemaking with 

the May 29, 2019, standards proposed 

by Transport Canada to prevent 

conflicting requirements between 

Canada and the United States.32 FRA 

compared the two standards and did not 

identify any concerns. FRA has also 

compared the final standards issued by 

Transport Canada and this final rule.33

Transport Canada’s standards for 

inward-facing cameras are more 

stringent than those in this final rule; 

however, Transport Canada’s standards 

do not require outward-facing 

locomotive cameras, which are 

specifically required by the FAST Act 

and therefore this final rule.34 Lead 

locomotives on Canadian passenger 

trains that enter the United States from 

Canada must comply with all of the 

requirements of this final rule. 

L. Operational (Efficiency) Testing 

In the NPRM, FRA discussed the 

potential benefits to railroads that use 

locomotive recording devices as part of 

their operational (efficiency) testing 

programs and proposed requirements 

for railroads choosing to use locomotive 

recording devices to conduct 

operational testing under part 217, to 

protect employees from targeted testing 

as a form of retaliation. FRA received 

various comments regarding FRA’s 

proposed amendments to part 217, and 

the agency’s existing operational testing 

requirements. 

1. Application of the Rule’s Part 217 

Amendments to Freight Railroads 

AAR commented that because 

existing part 217 applies to both 

passenger and freight railroads, FRA’s 

proposed revisions to § 217.9 (proposed 

new paragraphs (b)(3) and (4) governing 

operational testing using locomotive 

recording devices) would apply to both 

types of railroads. AAR noted that 

FRA’s stated intent in the NPRM’s 

preamble was that these provisions 

would apply to passenger railroads 

only. Accordingly, AAR suggested that 

FRA modify proposed paragraphs (b)(3) 

and (4) to specify that the paragraphs 

apply to passenger railroads only. 

AAR is correct. FRA did not intend 

proposed new paragraphs (b)(3) and (4) 

to apply to freight railroads. Therefore, 

in this final rule, FRA is clarifying its 

intent to exclude freight railroads from 

these requirements by using the word 

‘‘passenger railroad,’’ instead of 

‘‘railroad,’’ in new paragraphs (b)(3) and 

(4) of §§ 217.9. However, as discussed 

above in Section II.A.2, it is FRA’s 

expectation that all railroads that 

voluntarily install recording devices on 

their locomotives will adhere to 

practices that are consistent with those 

in this final rule, notably the new part 

217 requirements that serve to protect 

employees from targeted testing as a 

form of retaliation when railroads 


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70740 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 

conduct operational testing using 

recording devices or their recordings. 

Further, under existing § 217.9(h), FRA 

reviews railroads’ operational testing 

and inspection programs and, if 

necessary, may disapprove any such 

program for cause stated. 

2. Burden of the Rule’s Part 217 

Requirements 

APTA commented that FRA should 

not adopt in this final rule any of the 

requirements FRA proposed to add to 

§ 217.9 because the regular monitoring 

of image recordings does not need to be 

under or part of a railroad’s operational 

testing program. Instead, APTA asserted 

that passenger railroads should be 

allowed to establish their own practices 

to monitor employees’ compliance with 

rules and deter them from unsafe 

actions. APTA also contended that the 

additional burdens from the 

requirements FRA proposed may 

incentivize railroads not to use 

recording devices in operational testing 

and therefore reduce one of the benefits 

of this rulemaking. 

In addition, APTA claimed that 

requiring test subjects for operational 

testing using locomotive recorders to be 

selected at random would create an 

unnecessary cost and burden for 

passenger railroads, because the ability 

to use cameras in the railroads’ current 

operational testing plans already exists 

and this cost was not considered in the 

NPRM’s cost estimate. Finally, APTA 

objected to FRA’s proposed condition 

that operational testing be completed 

within 72 hours of the completion of the 

tested employee’s tour of duty, calling it 

impractical and indicating that such is 

allowed when testing for radio rules 

compliance. 

FRA disagrees with APTA’s comment 

that the regular monitoring of 

locomotive recordings does not need to 

be under a railroad’s operational testing 

program or that passenger railroads 

should be allowed to establish their own 

plans and practices to monitor 

employees using these recordings. 

Section 20168(i) of the Statute prevents 

in-cab audio or image recordings from 

being used to retaliate against an 

employee. New § 217.9(b)(3) requires 

passenger railroads to describe how they 

will randomly select testing subjects, 

better enabling FRA to oversee that 

passenger railroads are fulfilling the 

requirements and railroad supervisors 

are not unfairly selecting specific 

employees for operational testing as a 

form of retaliation. FRA is including incab audio recorders and their recordings 

under paragraph (b)(3), as previously 

discussed. It does not make sense to 

require passenger railroads to select 

their operational testing subjects 

randomly when using image recorders 

or their recordings without applying the 

same protections to the use of audio 

recorders and their recordings. 

FRA disagrees that the limitations on 

operational testing will cause passenger 

railroads to abandon using these devices 

for operational testing purposes 

altogether. APTA’s assertion that any 

costs associated with these limitations 

are unnecessary is flawed, in part 

because the Statute itself prohibits the 

use of locomotive recording devices as 

a medium to retaliate against 

employees. Further, the RIA 

accompanying this final rule addresses 

in more detail APTA’s claim that FRA 

has not sufficiently accounted for the 

cost of implementing a random 

selection program for locomotive 

recordings. Finally, while APTA 

compares testing for radio rules 

compliance with using locomotive 

recording devices for operational 

testing, listening to radio recordings 

provides a far more limited window into 

the crew’s activities and has far less 

potential for abuse than locomotive 

recording devices. 

3. Appropriateness of Using Locomotive 

Recordings for Operational Testing 

BLET also objected to FRA’s proposed 

revisions to § 217.9 allowing railroads to 

utilize locomotive recordings for 

operational testing purposes. BLET 

asserted that railroads have historically 

used operational testing as an indirect 

way to discipline their employees. 

According to BLET, although 

locomotive engineers are accustomed to 

how operational testing is currently 

done (e.g., sporadic skills tests in the 

field), use of recording devices would 

put engineers under ‘‘constant 

surveillance.’’ BLET believed 

crewmembers would feel continually 

watched and change how they act as a 

result, because crews would be worried 

about performing for the camera first 

and reacting to the circumstances that 

are actually occurring second, which 

would negatively impact safety. 

In contrast to BLET’s comment, FRA 

received comments from TTD, Metra, 

and SMART, in support of FRA’s 

proposed additions to § 217.9. TTD 

called FRA’s proposed requirement for 

operational testing subjects to be 

selected at random a ‘‘meaningful step 

towards fair usage of recorded images.’’ 

Metra agreed with TTD and specifically 

asked FRA to make clear in the final 

rule that passenger railroads could not 

use subjective factors in the utilization 

of locomotive recordings to conduct 

operational tests. SMART and BLET 

also ‘‘applauded’’ FRA on its proposed 

random testing requirement and 

SMART stated that the provision would 

prevent a vindictive supervisor from 

tracking an employee the supervisor 

personally dislikes for punishment, 

such as a union representative. While 

still opposed to locomotive recordings 

being used for operational testing 

purposes at all, BLET also commented 

that how the random testing 

requirement was actually practiced by 

rail carriers in the field would be the 

determining factor on carrying out the 

intent of the regulation. 

TTD also expressed its support for the 

proposed requirement that any 

operational test or inspection must be 

performed within 72 hours after the 

employee’s tour of duty. TTD called this 

a critical tenet to ensure that data 

received by the railroads is not misused 

and believed FRA should not weaken 

any of the proposed protections in a 

final rule. 

FRA agrees with TTD, Metra, and 

SMART and is adopting the proposed 

requirements in paragraphs (b)(3) and 

(4). FRA notes that APTA and BLET 

objected to the proposed requirements 

for opposing reasons. As stated above, 

APTA commented that FRA should not 

adopt any of the proposed requirements, 

not because APTA is opposed to using 

locomotive recording devices in 

operational testing, but because APTA 

believed the regulations would place 

constraints on the use of the devices 

that many passenger railroads already 

use as part of operational testing and 

cause these railroads to change their 

existing testing programs. APTA 

preferred FRA instead let railroads make 

their own decisions on how to use their 

locomotive recording devices. 

Conversely, BLET objected to the 

proposed requirements on the basis that 

railroads should not be allowed to use 

locomotive recording devices for 

operational testing in any circumstance, 

because they could be used to unfairly 

target their employees. As explained 

below, the conditions FRA is adopting 

in this final rule address the targeting of 

employees when passenger railroads use 

locomotive recording devices for part 

217 testing purposes. 

Without addressing BLET’s allegation 

that operational testing has historically 

been used to target and discipline 

employees, FRA acknowledges that the 

amendments to § 217.9 in this final rule 

are intended to ensure passenger 

railroad supervisors do not use inwardfacing locomotive cameras or in-cab 

audio recording devices to target 

specific employees. Hence, FRA’s 

insistence that subjects for operational 

testing be selected at random, that there 

must be a testing plan that FRA can 


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Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 70741 

review and disapprove for cause, and 

that all operational testing must be 

completed within 72 hours of the 

employee being tested completing his or 

her shift. BLET also commented that 

employees are used to having their 

skills sporadically tested in the field as 

opposed to the ‘‘constant surveillance’’ 

of inward-facing cameras. However, the 

new regulations require employees to be 

selected at random. Constant 

surveillance of a certain employee will 

violate the randomness requirement. 

Further, as stated previously, 

locomotive engineers and other railroad 

employees who work in a locomotive 

have no expectation of privacy, with the 

exception of the locomotive’s sanitation 

compartment. Railroad employees can 

be observed in the locomotive at various 

times by railroad management, FRA 

inspectors, or even members of the 

public. Although BLET maintained that 

the constant surveillance of railroad 

employees would negatively impact the 

employees’ behavior, passenger 

railroads have been using locomotive 

cameras long before this rulemaking 

without any such observable impact on 

passenger train safety. 

4. FRA’s Authority To Regulate the Use 

of Locomotive Audio Recordings in 

Operational Testing 

APTA commented that FRA should 

not adopt in § 217.9 any reference to 

audio recordings or related language as 

it would provide FRA with regulatory 

authority for something not within the 

scope of the NPRM or under current 

FRA regulations. FRA disagrees. FRA 

widely discussed and asked numerous 

questions about audio recording devices 

in the NPRM, in addition to raising the 

requirement in the NPRM. FRA 

specifically proposed that inward-facing 

locomotive image and in-cab audio 

recordings, if used for operational 

testing, would be subject to the 

proposed requirements in § 217.9. 

Additionally, FRA has for some time 

regulated railroads’ operational testing 

programs, and specifically what 

railroads can and cannot do as part of 

these programs. 

5. Effect on FRA’s Confidential Close 

Call Recording System (C3RS) 

BLET commented that allowing 

locomotive recording devices as an 

operational testing tool would have a 

negative effect on FRA’s C3RS program. 

C3RS is a confidential reporting system 

that allows railroad employees in the 

field to report incidents where a 

potential accident was averted, or a risk 

was mitigated. The report is generated 

by the railroad employee without fear of 

reprisal from railroad management. 

BLET stated that confidentiality is the 

key to the success of the C3RS program 

but, with the constant surveillance of 

locomotive cameras, railroads may not 

feel there is an advantage to C3RS if 

they can simply watch accumulated 

video to identify trends. According to 

BLET, when a railroad has observed 

sufficient footage it could modify its 

operational testing to increase the 

number of exceptions and consequent 

cases of employee discipline, and 

thereby ignore the underlying safety 

problem or rule violation because the 

person committing the violation would 

be removed. 

FRA does not believe that inwardfacing cameras used for operational 

testing will negatively affect FRA’s 

C3RS program. Passenger and freight 

railroads began installing inward-facing 

cameras in locomotives many years ago 

and FRA is not aware of any evidence, 

nor has BLET provided any, that these 

cameras have negatively impacted the 

C3RS program. 

6. Rules or Regulations Locomotive 

Recording Devices Should Address as 

Part of a Passenger Railroad’s 

Operational Testing Program 

BLET commented that in the event 

recorder regulation all actions required 

to be captured are enumerated in the 

regulation. However, BLET asserted that 

for image or audio data captured by a 

camera or other recording devices, the 

NPRM lacked specificity as to which 

rules or regulations the data could be 

used to determine compliance. FRA did 

not provide in the NPRM, and declines 

to do so in this final rule, specific 

guidance on how the locomotive 

cameras should be used for evaluating 

compliance with specific rules or 

regulations, other than such use must 

comport with the stated protections for 

employees. FRA expects that railroads 

will use the locomotive image recording 

devices as a tool for purposes of 

carrying out their operational testing 

program requirements, evaluating 

compliance with the rules and 

regulations they already take into 

consideration as part of their 

operational testing programs. 

M. Locomotive Recording Devices as 

Safety Devices Under Part 218 

FRA received comments from APTA, 

BLET, and the NTSB on FRA’s proposal 

to include image and audio recording 

equipment installed on a passenger train 

locomotive as a ‘‘safety device’’ under 

§ 218.53(c). APTA objected to the 

proposed changes and did not believe 

including an image recording device as 

a safety device under part 218 was 

necessary. APTA claimed that although 

tampering has not been a known issue 

for passenger railroads, the railroads 

already have internal rules and policies 

that prevent tampering with locomotive 

image recording devices. In addition, 

APTA stated that locomotive cameras 

do not need protection from the public, 

as they are not readily publicly 

accessible, and that the presence or 

operability of locomotive image 

recording devices does not affect the 

safe operation of a passenger locomotive 

or the train it is powering because these 

devices are strictly forensic in nature 

and cannot prevent any accident or 

incident. 

In contrast to APTA’s position, both 

BLET and the NTSB supported 

including locomotive recording devices 

as safety devices under part 218. The 

NTSB agreed with FRA that treating a 

locomotive-mounted image or audio 

recording device as a ‘‘safety device’’ 

will deter employees from tampering 

with or disabling one of these devices. 

BLET also agreed, but added that the 

technical requirements and standards 

for locomotive recording devices should 

be no less stringent that the 

requirements for event recorders. 

FRA agrees with the NTSB that 

including locomotive recording devices 

under the definition of ‘‘safety device’’ 

in § 218.53(c) will deter railroad 

employees from tampering with such 

devices. However, because a locomotive 

recording device is not currently 

defined as a ‘‘safety device,’’ FRA is not 

aware of the extent to which there may 

be tampering with these devices. FRA 

expects locomotive recording devices to 

be at least as, if not more, susceptible to 

tampering as event recorders, which are 

safety devices under part 218. For 

example, as stated in the NPRM, in one 

incident of tampering with an inwardfacing locomotive camera system, FRA 

viewed a recording in which an 

engineer covered the inward-facing 

cameras on his locomotive, apparently 

unaware of another camera mounted on 

the ceiling near the back wall of the cab. 

That camera recorded him appearing to 

play a game on a personal electronic 

device while operating a moving freight 

train. Accordingly, the changes to part 

218 will serve not only to discourage 

passenger railroad employees from 

tampering with these important safety 

devices, but to hold individuals who do 

engage in such tampering accountable 

under FRA’s rail safety regulations. 

Even if train crew tampering with 

locomotive image recorders would 

continue to be handled under passenger 

railroads’ rules and policies, as APTA 

suggested, this does not confer the same 

significance as a safety device subject to 

part 218. By including passenger 


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

locomotive recorders as safety devices 

under part 218, engineers and 

conductors directly risk the revocation 

of their FRA certification for tampering 

with these devices. Further, this change 

ensures that all passenger railroads 

handle tampering with locomotive 

recording devices according to uniform 

FRA standards, instead of having 

individual railroads apply potentially 

different internal rules and policies. 

FRA also disagrees with APTA that 

the presence or operability of image 

recording devices does not affect the 

safe operation of a passenger locomotive 

or the train it is powering. Although 

locomotive recording devices can 

provide information about the actions of 

train crewmembers following the 

occurrence of an accident or incident, 

properly function recording devices can 

serve additional safety purposes. In its 

comments to FRA, NCTD stated that its 

COASTER commuter rail service can 

currently observe through its inwardfacing cameras in real time when the 

equipment is in range of the railroad’s 

wireless mesh network along NCTD’s 

right-of-way. FRA notes the ability to 

observe a train crew in real time could 

provide the railroad an opportunity to 

intervene if, for example, it observed 

unauthorized persons in or around the 

locomotive cab, including closely 

monitoring interactions with 

passengers, in addition to curbing 

violations of railroad rules that could 

lead to a potentially catastrophic 

incident or accident. In this regard, WiTronix commented that the benefits of 

being able to livestream video and data 

during emergency situations would be a 

great benefit to the public, as well as 

when the train crew experiences a 

health issue or there is hostile activity 

in the locomotive cab. 

Regardless of whether locomotive 

recording devices are monitored in real 

time, the train crews’ awareness of the 

devices will deter behavior that can 

negatively affect railroad safety, such as 

crewmember cell phone use while 

performing safety-sensitive functions, 

and the presence of cameras may also 

deter unauthorized occupancy of the 

locomotive or curb actions of other 

persons who may interact with the 

crew. Although the information 

currently provided by locomotive 

recording devices is mostly forensic in 

nature, the information can be critical in 

post-accident analysis and cannot be 

obtained from other sources such as 

locomotive event recorders. For 

instance, while locomotive event 

recorders provide information on data 

elements including locomotive speed 

and the amount and time of the 

locomotive’s brake application, 

information from recording devices may 

be particularly useful in accidents 

arising from human factor causes, as 

image data can show investigators what 

the train crew was doing in the 

locomotive from a perspective that 

event recorders cannot provide. The 

railroads can then use this information 

to change railroad rules or revise their 

training programs to help prevent these 

types of accidents from reoccurring. 

This post-accident/incident data will be 

a vital source of information for FRA, 

the NTSB, and railroads to determine 

the cause of accidents/incidents as well 

as whether any action is necessary to 

prevent similar incidents from occurring 

in the future. 

FRA also received a comment from 

Metra about the addition of § 218.53(d), 

which clarifies that the requirements of 

§§ 218.59 and 218.61 do not apply to 

recording devices voluntarily installed 

on freight locomotives. Metra noted that 

because these devices are voluntarily 

installed by freight railroads, the 

railroads can operate lead freight 

locomotives without such functioning 

recording devices. Metra is correct that 

freight railroads can operate freight 

locomotives without recording devices 

in compliance with this rule. However, 

as previously discussed, unless used as 

a rescue locomotive, a freight 

locomotive used in commuter or 

intercity passenger service must comply 

with all the requirements of this final 

rule. 

N. Twelve-Hour Recording Period for 

Locomotive Image Recording Devices 

1. Appropriateness of the 12-Hour 

Recording Period 

APTA commented that although it 

understood FRA arrived at the 12-hour 

retention period for locomotive image 

recording data by reference to NTSB 

recommendations and the Statute’s 

requirements, the requirement was 

excessive and unnecessary compared to 

the requirements of other federal 

agencies. APTA stated that the Federal 

Aviation Administration requires only 

30 minutes of recording, claimed that 

the NTSB cited limited data supporting 

its recommendation for the 12-hour 

timeframe, and asserted that, unlike 

some freight trains, commuter train trip 

lengths are much shorter and ‘‘turn 

backs,’’ where the locomotive is in the 

lead in one direction and a cab car is in 

the lead in the other direction, are 

common after completing a run or 

directional trip. According to APTA, 

crew on-duty time for commuter and 

intercity passenger routes are scheduled 

to minimize jobs close to 12 hours on 

duty, some crews have a respite before 

their next trip, and some crews may also 

change train consists during their duty 

tour. APTA believed these elements 

contribute towards reducing the 

overwrite potential of critical image 

recordings available to investigate an 

incident and therefore asked that 

passenger railroads be allowed to 

determine their own time for storing 

their locomotives’ image recording data. 

APTA added that passenger railroads 

already have image recording devices in 

other vehicles in a train consist for 

security purposes and noted they are 

generally recorded onto the same 

storage system as locomotive recording 

systems; consequently, APTA asserted 

that a shorter storage duration for 

locomotive recorders is necessary from 

a capacity perspective. 

Hitachi also asserted that 12 hours of 

required recording time is excessive, 

commenting that accidents happen due 

to actions or inactions that span just 

minutes. Hitachi suggested a two-hour 

recording window would be more 

appropriate instead. 

However, the Statute specifically 

mandates that locomotive image 

recording devices be capable of a 

minimum of 12 hours of continuous 

recording.35 Accordingly, to comply 

with the Statute, this final rule cannot 

require anything less. Further, FRA 

disagrees that only the crew’s actions 

immediately before an accident or 

incident are relevant to determining the 

cause of an accident or incident. The 

visual evidence of what was occurring 

in the time leading up to an accident or 

incident, including evidence of possible 

interactions with passengers or other 

persons, as well as evidence of outside 

objects striking or even entering the cab, 

can prove useful in any subsequent 

investigation of the accident or incident. 

2. Feasibility of 24 Hours of Continuous 

Recording Capability 

Responding to FRA’s questions in the 

NPRM as to whether requiring 

passenger railroads to maintain a total of 

24 hours of continuous recording 

capability would be feasible, Amtrak 

stated that the potential cost to double 

the recording timeframe from 12 to 24 

hours would be ‘‘astronomical,’’ with 

only minimal additional benefits. 

According to Amtrak, the current 

marketplace does not have solutions 

that can capture recording time beyond 

approximately 14 hours and, under the 

hours of service laws, crews are only 

permitted 12 hours of continuous time 

on duty. 

FRA agrees with Amtrak that the cost 

of a 24-hour recording timeframe would 


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

37 Interested parties should note that FRA may 

make public a transcript or a written depiction of 

visual information that FRA deems relevant to the 

accident at the time other factual reports on the 

accident are released to the public. 

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

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

outweigh the benefits, and that such a 

lengthy amount of recording time is not 

practical or necessary. 

O. Privacy Considerations 

FRA received several comments 

highlighting privacy concerns with FRA 

potentially taking possession of 

locomotive recordings as part of an 

accident investigation. The NPRM 

contains a detailed discussion of these 

privacy issues, and FRA specifically 

stated that it would ‘‘rarely take 

possession of recordings.’’ In its 

comments, APTA asserted that FRA 

should state that it will ‘‘never’’ take 

possession of recordings. According to 

APTA, the NTSB has protections in 

place that would protect the release of 

such recordings (49 U.S.C. 1114(c) and 

(d)), while FRA does not. APTA stated 

that FRA inspectors should be able to 

view any video or listen to any audio 

recordings, but to prevent the release of 

sensitive data, FRA should not take 

possession of the recordings. APTA 

asserted that FRA should not be allowed 

to take possession of recordings unless 

FRA has the same statutory prohibition 

as the NTSB protecting against the 

release of information. 

The NTSB stated that it has 

longstanding legal restrictions and 

procedures in place that protect crew 

privacy and prevent the public release 

of sensitive onboard audio and video 

recovered in the accidents it 

investigates. The NTSB noted that 49 

U.S.C. 1114(c) and (d) prohibit the 

agency from publicly disclosing voice 

and video recording from inside 

locomotive cabs involved in accidents 

or incidents. The law also specifies the 

circumstances under which the NTSB 

may make public an audio transcript or 

written depiction of visual information 

relevant to an accident or incident. 

Thus, the NTSB believes that current 

Federal law protecting against the 

public release of locomotive image or 

audio recordings during NTSB 

investigations is sufficient. 

AAR also commented that the Statute 

stipulates that DOT may not disclose to 

the public ‘‘any part of an in-cab audio 

or image recording . . . related to an 

accident or incident investigated by the 

Secretary.’’ 36 According to AAR, the 

statutory language is clear that Congress 

intended to include both inward- and 

outward-facing cameras, and FRA 

should clarify in the regulatory text that 

‘‘in-cab’’ means both inward- and 

outward-facing cameras, ‘‘as 

colloquially, ‘in-cab’ refers to inwardfacing cameras only.’’ 

Finally, SMART commented that it 

supports the nondisclosure of audio and 

image recordings or transcripts of oral 

communications related to an accident 

investigated by FRA. 

As raised in the comments, valid 

privacy concerns exist on the 

appropriate protection and 

dissemination of locomotive recordings 

that are made, particularly where an 

accident has occurred and the 

recordings may be graphic and violent. 

It is not desirable for railroad employees 

or their families to have such images 

released publicly. Congress has 

previously provided statutory 

protections for a train’s audio and image 

recordings that the NTSB takes 

possession of during the course of its 

accident investigations (49 U.S.C. 

1114(d) and 1154(a)). Therefore, when 

the NTSB takes possession of such 

locomotive recordings, it is prohibited 

from releasing the contents of the 

recordings (except that transcripts may 

be released as part of its accident 

investigation proceedings). 

Similarly, the Statute (49 U.S.C. 

20168(h)) prohibits FRA from publicly 

disclosing recordings that FRA takes 

possession of after a railroad accident 

has occurred. Subsection (h) of the 

Statute, which is similar to the FOIA 

exemption for locomotive recordings 

applicable to the NTSB at 49 U.S.C. 

1114(d), prohibits FRA from disclosing 

publicly locomotive audio and image 

recordings, or transcripts of 

communications by and among train 

employees or other operating 

employees, or between such operating 

employees and communication center 

employees, related to an accident 

investigated by FRA.37 Moreover, the 

Statute does not limit these protections 

to such recordings and transcripts of 

communications involving locomotives 

used only in intercity or commuter 

passenger train service. Section 

20168(h)’s protections apply regardless 

of whether the underlying recording 

devices are required to be implemented 

by this final rule. Consequently, this 

subsection protects recordings and 

transcripts of communications involving 

locomotives on which the devices are 

voluntarily installed—notably, such 

locomotives used in freight service. In 

addition, FRA will apply these 

subsection (h) protections not just to 

recordings from inward-facing 

locomotive recording devices, but to 

recordings from outward-facing 

recording devices as well. 

The Statute’s prohibition on FRA 

disclosing publicly locomotive audio 

and image recordings or transcripts of 

oral communications among certain 

railroad employees addresses the 

concerns expressed by commenters. 

Therefore, FRA declines to adopt 

APTA’s suggestion to ‘‘never’’ take 

possession of a locomotive recording. 

As stated in the NPRM, for the most 

serious of rail accidents, FRA 

anticipates that the NTSB will take 

possession of locomotive recordings, as 

they currently do, and that FRA will 

have the opportunity to view or listen 

to the recordings as a party to the 

investigation and in conducting its own 

parallel investigation under its separate 

statutory authority (49 U.S.C. 

20107(a)(1)). However, in the vast 

majority of rail related accidents, the 

NTSB does not launch an investigation, 

and FRA is the sole Federal accident 

investigator. In these accidents or 

incidents, FRA normally attempts to 

view the recordings while they are still 

within the railroad’s possession. 

However, if necessary, FRA has the 

statutory authority and obligation, as the 

Secretary’s delegate to investigate 

railroad accidents, to take possession of 

locomotive image and audio recordings 

as part of an FRA accident investigation 

or investigation of a violation of a 

railroad safety law, regulation or 

order.38

P. Abuse of Locomotive Recording 

Devices 

FRA received several comments 

expressing concerns that locomotive 

recording systems would be used as a 

form of retaliation against railroad 

employees, even though using passenger 

locomotive recording devices to retaliate 

against employees is prohibited by the 

Statute.39 BLET commented that how 

locomotive recording devices are 

ultimately used is a critical issue for its 

members, and that the proposed rule 

contained no real protection from abuse. 

BLET asserted that, although the 

requirement that recordings be 

prohibited from being used to retaliate 

against an employee was wellintentioned, how retaliation is defined 

will be the key to ensuring whether 

Congress’ intent to prevent recordings 

from being used as devices for 

retaliation will be realized. BLET also 

stated that FRA misunderstood 

Congress’ non-retaliatory intent and that 

part 240 has been serially revised to 

thwart repeated attempts by numerous 


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

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

carriers to misuse its provisions as a 

way to discipline their certified 

engineer workforce. BLET asserted this 

will also occur with locomotive 

recording devices in the absence of a 

uniform set of standards and 

requirements for all locomotive 

recording devices that limits their use to 

legitimate accident investigations. 

Hitachi also expressed concerns with 

how locomotive recording devices 

would be used and commented that 

there is significant room for abuse if the 

proposed analytic tools are used for 

purposes outside of the narrow scope 

defined by the proposed rule. Hitachi 

therefore recommended that FRA bar 

railroad operators or owners from 

utilizing recordings for purposes other 

than training or accident investigations. 

SMART commented that FRA 

misinterpreted Congress’ intent to 

prevent the use of locomotive recording 

devices for retaliation by concluding 

that the anti-retaliation provision of the 

Statute did not apply to railroad rules 

violations discovered via locomotive 

image or audio devices.40 SMART 

claimed that the Statute is clear that incab audio or image recordings obtained 

by a passenger railroad cannot be used 

to retaliate against an employee, 49 

U.S.C. 20168(i), and therefore FRA was 

reading something into the section not 

stated in the statute. 

FRA disagrees with SMART’s 

contention that the investigation of a 

railroad safety violation violates the 

Statute’s anti-retaliation requirements. 

One of the purposes of this rulemaking 

is to use locomotive recording devices 

as a tool to identify and address safety 

violations that endanger public safety, 

such as personal electronic device usage 

while performing safety-critical duties. 

This purpose is not inconsistent with 

the Statute, which addresses retaliation 

implicated by other existing statutes 

(e.g., the railroad employee 

whistleblower law at 49 U.S.C. 20109). 

Amtrak commented that it already has 

an established company program and 

process in place governing the use of 

audio and visual recordings for 

compliance means only. 

FRA disagrees with Amtrak’s 

suggestion that a railroad’s company 

policy is sufficient to prevent retaliation 

incidents. FRA proposed in the NPRM, 

and is now adopting in this final rule, 

several requirements to prevent railroad 

retaliation against trains crews and 

other railroad employees. This final 

rule, in compliance with the Statute,41

specifically limits the purposes for 

which a passenger railroad may use a 

locomotive image or audio recording. In 

addition, to use any inward-facing 

locomotive recording device for 

operational testing, a passenger railroad 

must develop and comply with a 

program under part 217 to ensure that 

testing subjects are selected randomly 

and any operational test must be 

completed within 72 hours of an 

employee’s tour of duty. This will 

prevent the selection of specific 

candidates for operational testing or 

being subject to review on footage for an 

extended period of time to find a 

potential Federal railroad safety or 

railroad operating rule to penalize the 

employee in question. Moreover, as 

discussed above, it is FRA’s expectation 

that all railroads that voluntarily install 

recording devices on their locomotives 

will adhere to practices that are 

consistent with those required under 

this final rule, such as the new part 217 

requirements that serve to protect 

employees from targeted testing as a 

form of retaliation when railroads 

conduct operational testing using 

recording devices or their recordings. 

For further discussion about these 

requirements, relevant comments, and 

FRA’s response to those comments, 

please see Section II.L above. 

Q. Recording Devices’ Effect on Railroad 

Employees 

BLET commented that monitoring the 

day-to-day performance of workers can 

have damaging effects outside any of the 

claimed benefits of the final rule. 

According to BLET, visual or audio 

surveillance will build resentment and 

a climate of distrust between the 

railroad and its workers. BLET asserted 

that no matter the privacy protections 

and respect of use adopted in passenger 

railroad policies, railroad employees 

will resent the presence of the 

locomotive recording devices and find 

their presence offensive, and there will 

be a multitude of unforeseeable 

consequences that neither FRA, nor the 

passenger railroads have considered. 

It is likely that Congress took these 

concerns into account when mandating 

the installation of inward- and outwardfacing image recording devices in all 

regularly scheduled intercity or 

commuter rail passenger locomotives in 

the Statute. Locomotive recording 

devices are not a novel technology. 

Locomotive cameras and recording 

devices have become common within 

locomotives over the past two decades. 

FRA does not believe this final rule will 

introduce a major change to the working 

conditions of a large segment of 

passenger train crews, as suggested by 

BLET. 

R. Download and Security Features of 

Locomotive Recording Systems 

1. Federally Mandated or IndustryAdopted Standard 

FRA received several comments about 

the download and security feature 

requirements for locomotive image 

recording systems proposed in the 

NPRM (paragraph (d) of proposed 

§ 229.136). Amtrak commented that this 

final rule should not regulate the 

download and security features of these 

systems, believing an industry-adopted 

standard is better suited to fit the 

technological capabilities of locomotive 

image recording systems. APTA agreed 

with Amtrak, and commented that 

passenger railroads should be allowed 

to develop their own best practices for 

conducting inspections and 

downloading data without prescriptive 

standards, stating that passenger 

railroads have been handling these 

downloads for quite some time. 

In contrast, BLET commented that 

there should be uniform standards and 

requirements in this final rule for all 

locomotive-mounted recording systems, 

electronic downloads, and security 

features, such as encryption functions, 

etc. BLET stated that if this type of data 

is not encrypted and a strict chain of 

custody is not maintained, any 

credibility or value of using the data for 

post-accident investigation could be 

called into question. According to 

BLET, wireless transmission of audio or 

image recording data should also be 

prohibited to prevent such private, 

personal data from being hacked. 

The standard FRA adopts in this final 

rule balances the concerns of the 

commenters. The standard adopted is 

broader than that proposed in the 

NPRM, which addressed electronic 

security measures only to prevent 

unauthorized downloads of recordings. 

As adopted in this final rule, 

§ 229.136(d) requires passenger 

railroads to develop a system that 

allows only authorized downloads and 

has electronic security measures to 

prevent unauthorized access to, and 

download, deletion, or alteration of, the 

recording system or its recordings. FRA 

therefore expects that passenger rail will 

safeguard the recordings using 

encryption technology or equivalent 

data protection measures. However, this 

paragraph does not prescribe how such 

a system must be specifically created or 

structured, and recognizes that 

recordings must be accessible for review 

during an accident or incident 

investigation, as provided in 49 U.S.C. 

20168(b)(3), and may be put to other 

lawful purposes, see § 229.136(f)(3). As 

a result, these requirements further 


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FRA’s objective to protect the recording 

systems and their recordings, while 

providing railroads the flexibility on 

how to best achieve that protection, 

which will allow for differences in the 

specific systems used. For similar 

reasons, FRA disagrees that wireless 

download and transmission of audio or 

image recording data should be 

prohibited, because it would unduly 

restrict the technology that may be used. 

Whether data is downloaded and 

transmitted via wired or wireless 

technology, passenger railroads are 

responsible for ensuring the integrity of 

the process under § 229.136(d), which 

includes preventing the unauthorized 

downloading, deletion, or alteration of 

the recording system or its recordings. 

2. Standard or Crashworthy Memory 

Modules 

Hitachi commented that, as proposed, 

the requirements for download and 

security features of locomotive 

recording systems would seem to 

require both a standard and a 

crashworthy memory module. Hitachi 

stated that, if a crashworthy module 

meets all the requirements, then 

standard memory modules are 

unnecessary and could potentially 

create confusion. 

FRA has not adopted the reference to 

standard memory modules in this final 

rule, as its inclusion in the NPRM was 

in error. Locomotive recording device 

data, whether it be audio or image 

recording data, must be stored on a 

crashworthy memory module. Because 

locomotive image or audio recordings 

cannot be stored on standard memory 

modules, the download and security 

features required of locomotive 

recording systems in § 229.136(d) refer 

only to certified crashworthy memory 

modules in this final rule. 

S. Self-Monitoring and Self-Reporting 

Systems or Devices on Locomotive 

Image Recording Systems 

1. Whether Cost of These Systems or 

Devices Was Adequately Considered 

Wi-Tronix commented that 

locomotive image recording systems 

should be required to be self-monitoring 

and self-reporting, stating that the 

technology exists for these systems to 

monitor their own operational health 

and report their status. FRA agrees that 

a self-monitoring system is necessary to 

alert train crews and railroad 

maintenance crews conducting 

inspections whether the recording 

system is even working. Without a selfmonitoring system, a locomotive could 

operate for an extended period of time 

without a functioning locomotive 

camera system. 

APTA commented that the selfmonitoring capabilities in the proposal 

did not appear to be a part of FRA’s cost 

estimate for installation or ongoing 

operation and maintenance costs, and 

requested that FRA justify the 

requirement using a cost-benefit 

analysis. Although FRA did include the 

cost for self-monitoring capabilities in 

the NPRM’s RIA, as FRA assumed that 

any locomotive image recording device 

would have a self-monitoring capability 

built into the initial design, FRA has 

updated the cost based on the comments 

that were received and provided a range 

of costs to better account for any 

variance that might occur in the cost of 

such devices. 

2. Taking a Sample Download During a 

Periodic Inspection 

In addition, APTA questioned the 

requirement that railroads take a sample 

download during a periodic inspection 

to ensure that the image recording 

system is functioning properly. APTA 

stated that passenger railroads need to 

limit those with the ability to download 

and access audio/image recordings, 

asserting that many railroads do not 

allow their maintenance personnel to do 

this. According to APTA, there could be 

a need to verify proper functioning 

during the periodic inspection, but 

taking a download should not be 

required and there are other ways to 

ensure proper functionality. 

In the NPRM, FRA asked for comment 

on the types of restrictions that should 

be placed on sample recording device 

downloads from passenger train lead 

locomotives under proposed 

§ 229.136(e)(2), as FRA anticipated that 

sample downloads for inspection or 

maintenance purpose might often be 

taken by non-managerial or operating 

employees, such as mechanical 

department employees in a locomotive 

repair facility. BLET responded by 

stating it is reasonable to conclude that 

railroads will need to check images and 

recordings from time to time to ensure 

the proper functioning of the system. 

However, BLET added that the 

individual checking the system should 

not also be conducting operational 

testing, unless that individual is 

qualified to do so and is authorized to 

perform operational tests, and requested 

that FRA require all recordings used for 

inspection or testing purposes to be 

deleted once system functioning is 

confirmed. 

Based on the comments received, FRA 

is modifying the proposed requirement. 

Passenger railroads must still conduct a 

sample download from the image 

recording system’s crashworthy memory 

module; however, FRA is changing the 

frequency of the download test from a 

periodic to an annual requirement. This 

change will reduce the need for railroad 

employees to download and observe 

image recordings. Of course, passenger 

railroads may ensure the proper 

functioning of a recording system at any 

time. The authority under 

§ 229.136(f)(3)(vii) to perform 

inspection, testing, maintenance, or 

repair activities to ensure the proper 

installation and functioning of an 

inward-facing image recorder is not 

limited to fulfilling the minimum 

requirements of § 229.136(e)(2) to take a 

sample download from the image 

recording system’s crashworthy memory 

module to confirm proper operation of 

the system. 

FRA makes clear that the final rule 

requires the sample download for the 

annual test be taken directly from the 

image recording system’s crashworthy 

memory module, or its equivalent in the 

case of remote storage approved under 

§ 229.136(g). Taking the download from 

this memory module is necessary to 

ensure not only that the locomotive 

cameras are unobstructed and pointing 

in the correct position to capture crew 

activity, but to ensure that the camera 

system is properly recording to the 

memory module. For example, an 

inward-facing camera could be 

technically recording, but the camera 

could be out of focus. Further, this 

clarification is also intended to prevent 

any misunderstanding that passenger 

railroads could comply with this 

paragraph’s testing requirements by 

simply streaming a recording from an 

image recording system without 

downloading the recording from the 

system’s memory module. An actual 

download from the system’s 

crashworthy memory module is 

required to ensure the integrity and 

proper functioning of the image 

recording system. 

Although this final rule creates a 

specific annual test for locomotive 

image recording systems, passenger 

railroads must inspect the locomotive’s 

image recording devices as part of other 

locomotive inspections required under 

part 229 (e.g., daily, 33-day mechanical, 

92-day periodic, and 184-day periodic 

inspection). During these inspections, 

the passenger railroad must note and 

correct any non-complying conditions 

related to locomotive recording devices 

that can be determined from these 

inspections, especially if it can be 

determined that the locomotive 

recording device is no longer 

functioning properly or there has been 

any tampering with the locomotive 


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42While this rule delineates the allowable uses of 

image and audio recording device data, FRA notes 

that a private party may be required to disclose 

such data in a legal proceeding, such as a civil 

lawsuit, where the recording may contain probative 

information. 

43 49 U.S.C. 20168(h). The NTSB restricts the 

public release of recordings it takes possession of 

during an investigation until its final report on the 

accident or incident has been published. However, 

once the final report has been released, the NTSB 

does not restrict the owner of any investigative 

information from publicly releasing that 

information, including in-cab locomotive 

recordings. 

recording system or any locomotive 

recording device. 

T. Preservation and Handling 

Requirements for Locomotive Recording 

Devices and Recordings 

1. Chain-of-Custody Requirements 

In commenting on the preservation 

and handling requirement for passenger 

locomotive recording devices as 

proposed in the NPRM, APTA asserted 

that FRA did not account for the cost of 

the proposed chain-of-custody 

requirements as part of FRA’s cost 

estimate for ongoing operation and 

maintenance costs added. APTA 

therefore requested that FRA justify 

these costs versus the established 

benefits. FRA acknowledges it 

inadvertently omitted these costs from 

the NPRM’s RIA. FRA has revised the 

RIA accompanying this final rule 

accordingly to include these costs. 

2. Prohibitions on the Public Release of 

Locomotive Recordings 

FRA also received comments on 

whether FRA should create a specific 

provision that prohibits the public 

release of an image or audio recording 

by any person or railroad. BLET 

commented that there should be a 

restriction on public release, stating that 

without legal limitations upon 

disclosure, a regulatory scheme for 

governing the use of in-cab cameras 

presents a significant problem of public 

and personal privacy. According to 

BLET, FRA has not yet stated an 

intention to curb usage by the railroad 

carrier or shield employees from 

improper disclosure of sensitive footage, 

asserting that information from 

locomotive recorders should be strictly 

controlled to prevent posting on social 

media websites under the guises of 

promoting education and safety. BLET 

also asserted that FRA should prohibit 

a railroad from disclosing locomotive 

recording data of its employees to 

another railroad that is not the 

employing railroad. BLET added that if 

audio is recorded, it should be recorded 

on its own separate channel so it can be 

isolated for sound quality. 

APTA commented that many agencies 

providing passenger rail service have 

significant protections in place to 

prevent the release of image or audio 

recordings, but stated that a specific 

provision, even limited in scope, 

prohibiting public release would 

supplement these agencies’ existing 

policies and offer protections where 

other agencies have no such restrictions 

in place. The NTSB also commented 

that it supports FRA ensuring railroads 

have appropriate limitations established 

for the public release of in-cab audio 

and image recordings. 

Under 49 U.S.C. 20168, which 

governs the installation of audio and 

image recording devices in passenger 

train service, Congress has limited the 

uses to which passenger railroads (49 

U.S.C. 20168(d)) and the Secretary of 

Transportation (49 U.S.C. 20168(h)) can 

put locomotive image or audio 

recording device data, including those 

uses the Secretary deems appropriate 

under 49 U.S.C. 20168(d)(4). This final 

rule delineates those allowable uses of 

both image and audio recording device 

data in § 229.136(f)(3), and mere public 

disclosure is not an authorized use.42

Indeed, as noted by a commenter, 

posting on social media websites under 

the guise of promoting education and 

safety is not an authorized use, nor can 

an image or audio recording obtained by 

a passenger railroad be used to retaliate 

against an employee. 

Further, as provided in 

§ 229.136(f)(2), image or audio recording 

system data from a locomotive in 

commuter or intercity passenger service 

that has been involved in an accident/ 

incident that must be reported to FRA 

under part 225 of this chapter, can only 

be extracted and analyzed by the 

railroad for the purposes described in 

§ 229.136(f)(3). The data cannot be used 

for any other purpose except by 

direction of FRA or another Federal 

agency. Likewise, FRA may not disclose 

publicly any part of an in-cab audio or 

image recording or transcript of oral 

communications by or among train 

employees or other operating employees 

responsible for the movement and 

direction of the train, or between such 

operating employees and company 

communication centers, related to an 

accident or incident investigated by 

FRA. However, FRA may make public 

any part of a transcript or any written 

depiction of visual information that 

FRA determines is relevant to the 

accident at the time a majority of the 

other factual reports on the accident or 

incident are released to the public.43

3. Application to Audio Recording 

Devices and Their Recordings 

APTA separately commented that the 

requirements of § 229.136(f) pertaining 

to handling of recordings should not 

apply to audio recording devices or 

their recordings, stating that audio 

requirements were not part of the 

NPRM, and therefore should not be a 

part of the final rule. FRA disagrees. 

Although FRA did not propose in the 

NPRM and does not require in this final 

rule the installation of devices to record 

audio either inside or outside the 

locomotive cab, passenger railroads that 

have installed these devices or install 

these devices in the future must 

preserve resulting recordings according 

to the preservation and handling 

requirements of § 229.136(f)(2), if the 

locomotive is involved in a reportable 

accident or incident under 49 CFR part 

225. Such information will be relevant 

to an accident investigation conducted 

by FRA, the NTSB, or other investigator. 

4. Preservation Requirements Between 

Different Public Agency Rail Owners 

and Operators 

APTA asked how the rule would 

address a situation where an accident 

occurs and one public agency owns the 

rolling stock, but another agency 

operates the rolling stock. APTA sought 

clarification as to which entity would be 

required to preserve the locomotive 

recording data. 

The rule provides that the operating 

railroad at the time of the accident is 

responsible for maintaining the data. 

However, like many issues where there 

is shared usage of equipment between 

entities involved in providing passenger 

rail service, as a practical matter, FRA 

expects the entities to work such issues 

out by agreement. Such coordination 

among the entities involved in 

providing passenger rail service is also 

consistent with that expected under the 

System Safety Program rulemaking, 49 

CFR part 270. The entities may mutually 

agree on fulfilling responsibilities under 

this final rule on each other’s behalf, as 

tailored to their individual 

circumstances. 

5. Providing Image and Audio Data in a 

Usable Format 

APTA next asked how railroads could 

provide FRA or the NTSB image or 

audio data in a usable format when the 

software required for playback of such 

data downloaded from a locomotive is 

contractually controlled by a usage 

agreement involving the system’s 

original equipment manufacturer 

(OEM), and the OEM requires each user 

of the software to sign the user 


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44 49 U.S.C. 20168(d). 

45 Id. 46 49 U.S.C. 20168(d)(3). 

agreement. APTA asked how this 

situation would be handled and 

whether FRA or the NTSB would work 

directly with the OEM to acquire the 

software when the railroad has no legal 

ability to provide the software. 

This question is a good example of 

why FRA is requiring railroads to either 

provide the image and/or audio data in 

a readable format, or make available any 

platform, software, media device, etc., 

that is required to play back the image 

and/or audio data. FRA believes that 

whatever software the railroad uses 

could be put into a free format. The time 

to make a format change would be 

considered to be de minimis. FRA has 

found its accident investigations 

hindered when the recording devices 

used by passenger railroads were not in 

a usable format or the platform, 

software, or media device required the 

purchase of a system to play the image 

and/or audio data. It is not in the 

public’s interest to inhibit FRA’s use of 

locomotive image or audio recordings 

because they are in a format not readily 

accessible without the purchase of a 

unique program or other software or 

equipment from a private manufacturer. 

Therefore, it is FRA’s intention through 

this final rule that the locomotive 

recording device record image or audio 

data be in a readily accessible format, or 

the railroad provide the program or 

other software or equipment so the 

locomotive recording can be accessed. 

As noted above, entities providing 

passenger rail service may contract with 

other parties to fulfill the requirements 

of this rule and may therefore enter into 

agreements with manufacturers to 

develop their locomotive recording 

systems. FRA will not provide specific 

guidance on how the procurement and 

bidding process for such technology 

should be managed other than to 

reiterate FRA’s concern as to the 

accessibility of the locomotive recording 

device data. Unless the recordings are in 

a readily available format for 

investigators to use, the post-accident 

value of the recordings and the accident 

investigations themselves may be 

impaired. 

6. Permissible Uses for Locomotive 

Recording Devices 

i. FRA Should Only Set Minimum 

Safety Requirements 

APTA opposed FRA specifying in the 

NPRM permissible uses for locomotive 

recording device technology, asserting 

that the final rule should only set 

minimum safety requirements. APTA 

stated FRA should either not adopt such 

a proposal or instead take a broader 

approach that allows passenger 

railroads to develop their own uses for 

safety and security purposes. APTA 

cited to the experience railroads have 

using such data for several purposes, 

including investigating accidents. APTA 

added that allowing passenger railroads 

to use their locomotive image and audio 

recording devices to monitor locomotive 

cabs for unauthorized occupancy should 

be deleted as it could be interpreted as 

a requirement to use remote monitoring, 

which is not practical for the passenger 

railroad industry which operates 

thousands of trains a day. 

FRA is adopting the permissible uses 

for locomotive recording devices as 

proposed. The Statute enumerates 

certain purposes for which passenger 

railroads may use locomotive recording 

device data and authorizes FRA, as the 

Secretary’s delegate, to provide for other 

appropriate purposes.44 Therefore, it 

would be contrary to the Statute to let 

passenger railroads set such purposes. 

Further, the provision allowing 

railroads to use recorder data to monitor 

unauthorized occupancy of the lead 

locomotive cab or cab car operating 

compartment comes directly from the 

Statute.45

The final rule does not require 

passenger railroads to remotely monitor 

their locomotives for unauthorized 

occupancy, though it allows passenger 

railroads to use their recording device 

data to do so. For further discussion on 

remote monitoring, please see Section 

II.G. 

ii. Application to Freight Locomotive 

Recording Devices 

In its comments, BLET stated that the 

permissible uses for locomotive 

recording device technology should 

apply to both passenger and freight 

railroads that voluntarily install 

locomotive recording devices. BLET 

further suggested that such a uniform 

set of standards and requirements 

provide for the encryption of image and 

voice recordings and access only by 

authorized personnel, to safeguard the 

identities of the recorded individuals. 

Moreover, in the event that surveillance 

data is used in disciplinary and/or 

certification revocation proceedings, 

BLET asserted that the identities of 

those who decrypt the data should be 

made known to the labor organizations 

representing the charged employees, 

and that such persons be made to testify 

as a witness at any discipline or 

revocation hearing, if requested by the 

labor organizations. 

In addition, BLET commented that, in 

the NPRM, FRA repeated a 

misperception of what cameras can do 

to promote safety by asking whether 

there are other safety-appropriate uses 

for locomotive recordings. According to 

BLET, cameras provide no protection 

against accidents that would happen 

within an operational envelope, and do 

not prevent electronic device usage. 

BLET questioned what safety goal is 

achieved when a personal electronic 

device is found through locomotive 

recording data, when the recording itself 

could not prevent it. BLET also 

questioned the extent to which 

locomotive recording data in postaccident analysis can actually help in 

day-to-day operations. Overall, BLET 

believed locomotive recorders will serve 

only to document a problem someone 

already knew existed and negligence 

over time, but that safety will not 

improve as a result if the underlying 

issue is not addressed. 

As previously noted, FRA lacks the 

justification to apply the requirements 

for permissible uses of locomotive 

recording device technology in this final 

rule to freight railroads, in accordance 

with FRA’s implementation of the 

Statute. However, it is FRA’s 

expectation that all railroads that 

voluntarily install recording devices on 

their locomotive will adhere to practices 

that are consistent with those in this 

final rule. In addition, BLET’s 

suggestion to encrypt all locomotive 

recording data would unnecessarily 

increase the cost of this rulemaking, 

although FRA expects that encryption 

technology or equivalent data protection 

measures will be used, given the 

requirements in this final rule that such 

data may only be accessed by 

authorized personnel and its integrity be 

safeguarded against unauthorized 

download, deletion, or alteration. 

Finally, although FRA agrees that most 

of the benefits of this rulemaking will 

come from enhancing post-accident 

analysis through the information 

contained in locomotive recordings, 

FRA strongly disagrees that locomotive 

recording devices will provide no 

deterrence against personal electronic 

device use or other safety violations 

occurring during railroad operations. 

FRA also notes that, as identified by 

Congress, the recordings may serve to 

document a criminal act or monitor 

unauthorized occupancy of a 

locomotive.46

U. Factual Determinations When There 

Are Discrepancies Between Locomotive 

Image and Event Recorder Data 

APTA commented that the NPRM did 

not address a situation where data from 


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70748 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 

47Hickman, Jeffrey S., Richard J. Hanowski, and 

Olu Ajayi. Evaluation of An Onboard Safety 

Monitoring Device In Commercial Vehicle 

Operations. Report. Federal Motor Carrier Safety 

Administration, Virginia Tech Transportation 

Institute (2009). 

48 Id. 

a locomotive image recorder and an 

event recorder do not match and asked 

FRA which of the two devices will be 

determinative for factual considerations. 

FRA expects that any such 

discrepancies will be addressed on a 

case-by-case basis as part of the 

investigation following an accident or 

incident, taking into account the totality 

of the circumstances. This final rule 

does not make the data from one device 

primary over the other. 

V. Personal Electronic Device Use and 

Locomotive Recording Devices 

FRA discussed extensively in the 

NPRM how concerns about preventing 

accidents caused by distraction 

involving the use of personal electronic 

devices was one of the bases for this 

rulemaking, as well as the focus of 

NTSB recommendations and RSAC 

Working Group discussion. As a result, 

FRA received several comments about 

locomotive recording devices and how 

they would deter crewmembers from 

using personal electronic devices while 

performing safety sensitive service. 

BLET commented that locomotive 

cameras will not deter negative behavior 

involving crewmembers or personal cell 

phone usage. BLET asserted that 

evidence shows individuals continued 

to use their personal phones when 

locomotive cameras were present, and 

that locomotive cameras will just show 

the behavior, which is already known to 

exist. 

BLET also commented that FRA did 

not include a discussion in the NPRM 

on technology that can disrupt cell 

phone connectivity. BLET stated it 

partnered with Amtrak on a project that 

demonstrated the utility of technology 

that would both intercept cell phone 

connectivity outside of the locomotive 

and alert designated supervisors in real 

time of any attempt to use a cell phone. 

BLET found this to be a significant 

safety enhancement at relatively low 

cost, one that operates far less 

intrusively than inward-facing 

locomotive cameras, and noted that this 

technology was not mentioned in the 

NPRM as a potential ‘‘alternative 

technology.’’ 

Wi-Tronix commented that major 

passenger train incidents over the past 

decade proved that distracted driver 

operation is a critical problem and that 

technology also exists to monitor such 

activity in locomotive cabs. Wi-Tronix 

stated that the integration of image and 

audio recording data and the detection 

of such data in cellular logs, when 

integrated and synchronized with event 

recorder data, make an extremely 

powerful tool for accident/incident 

investigation and to influence behavior. 

While BLET is correct that the 

presence of inward-facing locomotive 

recording devices will not entirely 

prevent the usage of personal electronic 

devices when performing safetysensitive service, the presence of these 

devices will nonetheless provide a 

deterrent effect. FRA found a study by 

the Virginia Tech Transportation 

Institute that examined the change in 

commercial truck driver behavior when 

an image recording device was within 

the cab of the vehicle.47 The study 

found that the two carriers which 

participated experienced a 27 percent 

and 52 percent reduction in human 

factor events per miles traveled, 

respectively.48 While these results 

cannot be applied directly to the 

railroad industry, the study provides 

additional evidence that locomotive 

image recording devices can alter 

operator behavior, and thus reduce 

human factor accidents. However, as 

noted within the Virginia Tech study, 

any altering of operational behavior is 

most likely to be more prominent at the 

beginning of the observation period, and 

behavior could revert as time passes. 

Further, the presence of locomotive 

recording devices will help FRA and 

railroads identify individuals who 

violate Federal regulations against 

personal electronic device usage in part 

220, subpart C, and various other 

railroad operating rules prohibiting cell 

phone usage. 

Moreover, aside from the deterrent 

effect locomotive recording devices 

have in preventing personal electronic 

device usage, the recording devices 

provide other important safety functions 

unrelated to personal electronic device 

usage. For example, one of the primary 

functions of locomotive recording 

devices is to provide information as to 

the causes(s) of a railroad accident or 

incident. Therefore, although FRA 

encourages the use and development of 

technology to promote safety, the 

technology described by the 

commenters to detect or prevent 

personal electronic device usage cannot 

be considered an ‘‘alternative 

technology’’ for purposes of the 

statutory requirement to install inwardand outward-facing locomotive image 

recorders. 

W. Positive Train Control 

Railroad carriers providing ‘‘intercity 

rail passenger transportation’’ and 

‘‘commuter rail passenger 

transportation’’ subject to this final rule 

are covered by 49 U.S.C. 24102 

(passenger railroads required to install 

PTC systems under 49 U.S.C. 20157(a)). 

Although FRA did not specifically 

request comments on PTC, FRA 

received several comments relating to 

PTC technology, the nature of the 

overlap between passenger railroads 

required to install PTC and locomotive 

image recording devices, and the 

interaction between locomotive 

recording devices and PTC systems. 

Specifically, commenters asserted that 

passenger railroads should not be 

required to divert resources from 

installing, maintaining, and operating 

PTC systems to address the recording 

device requirements in this rulemaking. 

APTA cited the accidents and 

associated NTSB recommendations 

discussed in the NPRM and stated that 

almost every one of the accidents would 

have been prevented by a functioning 

PTC system. In addition, APTA stated 

that most were accidents involving 

freight trains, not passenger trains. 

Hitachi agreed with APTA that all the 

accidents discussed in the NPRM were 

arguably PTC-preventable accidents. 

Hitachi believed that, although image 

recording devices could prove useful as 

accident investigation tools in the 

future, accident prevention should 

currently be the primary focus and, as 

a result, railroads should not divert 

valuable resources from operating and 

maintaining PTC equipment ‘‘to meet 

well-intentioned, but misguided FRA 

mandates.’’ 

BLET also took issue with the 

accidents FRA discussed in the NPRM. 

BLET pointed out that two of the 

accidents, the 2008 accident in 

Chatsworth, California, and the 1999 

accident in Bryan, Ohio, led to the 

NTSB recommending both the 

installation of PTC and the installation 

of locomotive image recording devices. 

According to BLET, the NTSB stated 

that PTC could have prevented these 

accidents from occurring. Therefore, 

BLET questioned why locomotive image 

recording systems would be appropriate 

where PTC is installed and operating, 

except perhaps to use outward-facing 

cameras to document signal visibility 

due to dense fog, which was at issue in 

the Bryan, Ohio, accident. 

Additionally, FRA received a 

comment from a private citizen who 

stated that outward-facing locomotive 

recording devices offer no preventative 

qualities. The commenter believed that 

resources dedicated to outward-facing 

recording systems detract from finite 

resources available for safety, installing 

a form of PTC technology would be a 


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49See 49 U.S.C. 20168(d)(2) (Railroad carriers 

subject to the Statute may use recordings from 

inward- or outward-facing image recording devices 

for ‘‘[a]ssisting in an investigation into the 

causation of a reportable accident or incident’’). 

50See also 49 U.S.C. 20168(d)(1) (Railroad 

carriers subject to the Statute may use recordings 

from inward- or outward-facing image recording 

devices for ‘‘[v]erifying that train crew actions are 

in accordance with applicable safety laws and the 

railroad carrier’s operating rules and procedures, 

including a system-wide program for such 

verification’’). 51See 49 U.S.C. 20157(a). 

much better use of those resources, and 

that this final rule should not be 

adopted until PTC technology is 

installed on all rail miles. 

FRA understands the concerns raised 

by commenters and does not dispute the 

commenters’ assertion that many, if not 

all, of the accidents cited in the NPRM 

could have been prevented by the 

implementation of PTC systems, nor 

does FRA dispute the safety benefits of 

PTC systems. However, PTC is not an 

adequate ‘‘alternative technology’’ 

under the Statute, as PTC and 

locomotive recording devices serve 

different safety functions. PTC is 

designed to prevent certain accidents, 

and, although locomotive recording 

devices do have the potential to help 

prevent accidents, one of the main 

purposes of locomotive recording 

devices is to record information to 

provide to investigators after an 

accident or incident has occurred.49 The 

information recorded by the recording 

devices cannot normally be provided by 

the PTC system, or other similar 

technology. 

All PTC systems must be designed to 

prevent train-to train collisions, overspeed derailments, incursions into 

established work zones, and movement 

of trains through switches left in the 

wrong position, in accordance with the 

requirements of 49 CFR part 236, 

subpart I. As touched on above, one of 

the primary uses of locomotive 

recording devices is for investigating 

railroad accidents or incidents caused 

by human factors where standard event 

recorders can provide little or 

incomplete information about what 

occurred in the locomotive cab prior to 

the accident or incident.50 PTC may be 

able to provide some information, but 

not a full accounting of the train crew’s 

actions immediately before an accident. 

Therefore, PTC is not an adequate 

technology to replace the locomotive 

recording device requirements in the 

Statute. 

As previously stated, the Statute 

requires the promulgation of regulations 

requiring passenger railroads to install 

recording devices in all controlling (or 

‘‘lead’’) locomotives. When the 

locomotive recording devices statutory 

mandate was enacted, the statutory 

mandate to implement PTC on 

passenger railroads had long been in 

place.51 In fact, between Congress’ 

initial PTC mandate in 2008 and the 

Statute in 2015, Congress continued to 

be actively engaged in PTC 

policymaking through legislation and 

other activities. Congress held multiple 

oversight hearings about the technology 

and passed another piece of PTC 

legislation approximately five weeks 

prior to the passage of the Statute. It is 

clear that Congress passed the 

locomotive recording devices mandate 

for passenger trains with the awareness 

that the same passenger railroads would 

also be required to install PTC systems. 

As a result, FRA does not believe 

Congress intended PTC systems to be 

considered an ‘‘alternative technology’’ 

under the Statute that would excuse 

passenger railroads from implementing 

locomotive recording devices. 

X. Locomotive Image Recorder Analytics 

Wi-Tronix commented that data 

created by locomotive image recorders 

will need to be accessed for artificial 

intelligence and image analytics 

purposes, stating that artificial 

intelligence and image analytics are key 

elements to improving industry safety, 

as seen in the automotive industry. As 

a result, Wi-Tronix asserted there needs 

to be a mechanism to allow for sharing 

anonymous data for use in improving 

safety and operations. 

FRA declines to develop a mechanism 

in this rule for sharing anonymous data 

from locomotive image recording 

devices. The Statute did not mandate 

the establishment of such a mechanism, 

and FRA expects that passenger 

railroads would be reluctant to share the 

data due to the need to address 

proprietary, liability, privacy and other 

potential issues and concerns. Although 

FRA strongly supports the use of data to 

promote safety purposes, this final rule 

is not the appropriate forum for 

imposing such a requirement, 

consideration of which would require 

the involvement of all stakeholders. See 

also the discussion under Section II.L.5 

above, noting that this final rule will not 

affect the adoption of C3RS programs, 

which allow railroad employees to raise 

safety incidents confidentially and 

generate reports based on such incidents 

without identifying data. 

Y. Procurement of Locomotive 

Recording Devices 

Hitachi commented that FRA should 

investigate and suggest updates for 

procurements, to favor transit agencies, 

considering the best technology or 

exploring the most advanced 

technological applications. FRA 

declines to adopt this suggestion, as it 

is beyond the scope of this rulemaking. 

FRA’s purpose in this final rule is to 

implement the statutory mandate to 

establish minimum standards for 

inward- and outward-facing locomotive 

image recording systems for passenger 

railroads. Railroads may, of course, 

exceed these minimum standards and 

work together in procuring and applying 

the technology, including the 

development of industry specifications 

and best practices consistent with this 

rule. 

Z. Application of the Rule to GP-Style 

Long-Hood Locomotives 

APTA provided a comment specific to 

commuter railroads that utilize some 

general purpose (GP)-style locomotives 

with one cab only on the short-hood 

end, and a narrow car body on the longhood end. These locomotives can 

operate in the lead with the long- or 

short-hood forward while in revenue 

service. APTA sought clarification 

whether the long-hood of these 

locomotives must comply with the final 

rule, even if operated only occasionally 

long-hood forward, and believed that 

such use should be excluded by the 

final rule. 

FRA disagrees with APTA’s comment 

that these locomotives should be 

excluded from the final rule’s 

requirements. If a railroad operates such 

locomotives long-hood forward in 

regularly scheduled passenger service, 

however occasionally the locomotive 

configuration may be used, the longhood must be equipped with an 

outward-facing image recording device 

in the direction that the locomotive is 

traveling. FRA disagrees with APTA, in 

part, because an exclusion could 

incentivize use of locomotives in this 

configuration. FRA addresses the costs 

associated with long-hood forward use 

of locomotives in this final rule’s RIA by 

increasing the number of impacted 

locomotives affected by the final rule. 

AA. Inclusion of Passenger Railroad Cab 

Cars in the Rule’s Requirements 

Wi-Tronix, believing that passenger 

railroad cab cars may not be 

locomotives, commented that it would 

be critical that cab cars be covered by 

this final rule’s requirements applicable 

to locomotives. FRA makes clear that 

cab cars are indeed locomotives subject 

to this final rule. Cab cars are formally 

recognized by the existing definition of 

‘‘control cab locomotive’’ in § 229.5 to 

mean a ‘‘locomotive.’’ 


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52www.railroads.dot.gov. 

53See 5 U.S.C. 553(b)(A). 

54See 87 FR 15839 (Mar. 21, 2022). 

55See Id. 

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

57See 85 FR 14036, 14041 (Mar. 10, 2020); see 

also 84 FR 35712 (Jul. 24, 2019). 

58See Section V.C, Trainset Image Recording 

System, of the TCRR final rule, 85 FR 69700, 69714. 

59The TCRR final rule explained that, because the 

image recording device rulemaking was not 

finalized at the time the TCRR rule was finalized, 

FRA would ‘‘make any necessary changes to [the 

TCRR] regulation as a part of’’ the image recording 

device final rule. 85 FR 69700, 69715 (Nov. 3, 

2020). 

III. Civil Penalties 

FRA did not request or receive any 

comments regarding the potential civil 

penalties FRA could issue for violations 

of new or amended requirements in this 

final rule. FRA will modify the schedule 

of civil penalties on its website 52 to 

reflect the requirements of the final rule. 

Because such penalty schedules are 

statements of agency policy, notice and 

comment are not required before their 

issuance, and FRA did not propose a 

penalty schedule in the NPRM.53

FRA is authorized to assess a civil 

penalty of at least $976 and not more 

than $31,928 per any violation of the 

requirements established in this final 

rule.54 However, penalties up to 

$127,712 may be assessed for a grossly 

negligent violation or a pattern of 

repeated violations that created an 

imminent hazard of death or injury to 

individuals, or has caused death or 

injury.55 In accordance with the Federal 

Civil Penalties Inflation Adjustment Act 

of 1990, as amended by the Federal 

Civil Penalties Inflation Adjustment Act 

Improvements Act of 2015, these 

minimum and maximum penalty 

amounts will be adjusted for inflation in 

the future. 

IV. Discussion of Amendments to Part 

299 Pertaining to Texas Central 

Railroad Trainset Image Recording 

Systems 

Texas Central Railroad (TCRR) 

intends to implement a high-speed 

passenger rail system by using the 

Tokaido Shinkansen system’s serviceproven technology and by replicating 

Central Japan Railway Company’s (JRC) 

operational and maintenance practices 

and procedures. The contemplated 

system will run between Dallas and 

Houston, Texas, with an intermediate 

stop in Grimes County, Texas, 

approximately 240 miles, at a speed not 

to exceed 205 mph. TCRR plans to 

implement the latest, service-proven 

derivative of the N700 trainset and other 

core systems currently in use on the 

Tokaido Shinkansen line, which have 

been refined for high-speed operations 

over the last 50-plus years. 

On November 3, 2020, FRA published 

a final rule establishing regulatory 

requirements applicable only to TCRR— 

a rule of particular applicability 

(RPA).56 Such a regulation, in addition 

to providing for regulatory approval, 

institutes a comprehensive regulatory 

framework that provides TCRR clarity 

on the minimum Federal safety 

standards that it must comply with 

through technology-specific, 

performance-based requirements. 

Through the RPA, FRA is able to protect 

the integrity of the Tokaido Shinkansen 

system as implemented in Texas, by 

establishing regulatory requirements 

codifying the service-proven 

technological, operational, and 

maintenance aspects of the Tokaido 

Shinkansen high-speed rail system 

operated by JRC. 

On March 10, 2020, FRA published an 

NPRM proposing a set of safety 

requirements for TCRR (the TCRR 

NPRM). FRA proposed to make FRA’s 

regulation implementing section 11411 

of the FAST Act applicable to TCRR’s 

high-speed trainsets used in revenue 

service.57 However, the TCRR final rule 

was published before this final rule 

implementing section 11411 of the 

FAST Act. Accordingly, FRA noted in 

the TCRR final rule that it would make 

revisions to the TCRR final rule as part 

of this final rule.58 The amendments to 

§ 299.5 adopted in this final rule and 

new § 299.449 reflect these revisions. 

During the 77-day comment period on 

the TCRR NPRM, FRA received 

comments from TCRR on the topic of 

locomotive image recorders. TCRR 

requested that FRA exercise its 

statutorily granted discretion under 49 

U.S.C. 20168(e)(2) and exempt TCRR 

from the requirement to install inwardand outward-facing image recording 

devices, asserting that TCRR will 

implement an alternative technology or 

practice that provides an equivalent or 

greater level of safety or is better suited 

to the risks of the operation. In support 

of its request, TCRR stated that such 

alternative technologies or practices to 

be employed include: a signaling system 

that will comply with the requirements 

for PTC under 49 U.S.C. 20157 and be 

installed throughout the TCRR system 

(including trainset maintenance 

facilities) and used at all speeds; a 

dedicated, fully fenced (except for 

elevated structures), grade-separated 

right-of-way; an intrusion detection 

system; a right-of-way barrier plan to 

protect against unauthorized incursions 

into the right-of-way and from adjacent 

highway and freight rail operations; and 

wind, rain, and flood hazard detectors 

located at specific sites along the rightof-way. 

FRA recognizes and appreciates the 

mitigations that TCRR will have in place 

under part 299 and that those 

mitigations are modeled on the very 

successful Tokaido Shinkansen system. 

However, even with all the mitigations 

TCRR is putting in place to avoid any 

form of accident/incident, it is in the 

interest of railroad safety to require 

TCRR to install image recording systems 

in its high-speed trainsets. Notably, 

should an event occur despite the 

mitigations put in place by the railroad, 

it will be even more crucial to have 

imagery from the recording system to 

determine how the event occurred and/ 

or what was occurring in the controlling 

cab of the trainset in the time before and 

during the event. See also the 

discussion under Section II.W of this 

final rule, noting that FRA cannot 

consider PTC an adequate ‘‘alternative 

technology’’ to installation of inwardand outward-facing image recording 

devices for purposes of the statutory 

exemption. Accordingly, TCRR is not 

exempt from the requirement to install 

inward- and outward-facing image 

recording devices. 

Contrary to the discussion in the 

TCRR NPRM, in which FRA stated it 

would make appropriate conforming 

changes to the requirements outlined in 

the NPRM, essentially making the 

requirements of § 229.136 applicable to 

TCRR, FRA is adding § 299.449 to part 

299 to contain the specific requirements 

for the image recording system 

applicable only to TCRR.59 Placing the 

requirements that are specific to TCRR 

in part 299 allows FRA to properly 

tailor the requirements to the TCRR 

system and operation. 

Section 299.449, as adopted in this 

final rule, reflects FRA’s efforts to tailor 

the locomotive image recorder 

requirement to TCRR’s equipment and 

operation and to address TCRR’s 

comments. Section V, Section-bySection Analysis, below, contains a 

discussion of the changes made and 

codified under §§ 299.5 and 299.449, 

and under appendix A to part 299, 

Criteria for Certification of Crashworthy 

Event Recorder Memory Module. FRA 

has made both editorial and substantive 

changes in applying the rule text in 

§ 229.136 and appendix D to part 229 to 

TCRR’s rule of particular applicability, 

part 299. The changes ease 

understanding of the various 

requirements, as applied to TCRR, 

including clarifying whether a 

requirement pertains to a component of 

the image recording system (such as an 


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60 84 FR 35,712. 

image recording device) or whether a 

requirement pertains to the image 

recording system as a whole. The 

substantive changes were made to tailor 

the rule text appropriately for TCRR’s 

system. 

V. Section-by-Section Analysis 

This section responds to public 

comments and identifies any changes 

made from the provisions as proposed 

in the NPRM. Provisions that received 

no comment, and are otherwise being 

finalized as proposed, are not discussed 

again here.60

Amendments to 49 CFR Part 217 

Section 217.9 Program of Operational 

Tests and Inspections; Recordkeeping 

In this final rule, FRA is clarifying its 

intent to exclude freight railroads from 

these requirements by using the term 

‘‘passenger railroad,’’ instead of 

‘‘railroad,’’ throughout paragraphs (b)(3) 

and (4). 

FRA is also adding audio recordings 

to paragraph (b)(3)(iii). Although 

proposed paragraph (b)(3)(iii) did not 

expressly mention audio recordings as 

subject to the 72-hour limitation on 

operational tests or inspections after 

completion of the employee’s tour of 

duty, the omission of audio recordings 

was inadvertent and not consistent with 

proposed paragraph (b)(3) as a whole. 

For instance, proposed paragraph 

(b)(3)’s introductory text made clear that 

operational tests and inspections 

involving inward-facing image or in-cab 

audio recordings must comply with the 

conditions in paragraphs (b)(3)(i), (ii), 

and (iii). Further, it would not make 

sense for FRA to require passenger 

railroads to select testing subjects at 

random for operational testing involving 

inward-facing locomotive image 

recordings, but allow the potential for 

specific employees to be targeted for 

operational testing with audio recording 

devices. Therefore, FRA is correcting 

the inadvertent omission in this final 

rule. Accordingly, while the final rule 

does not require passenger railroads to 

install audio recording devices of any 

kind, if passenger railroads choose to 

install such devices and then use them 

for operational testing, the same 

protections for operational testing and 

use of image recorders also apply for 

operational testing and use of audio 

recorders. 

Amendments to 49 CFR Part 218 

Section 218.53 Scope and Definitions 

FRA is revising paragraph (d) of this 

section to make clear that the provisions 

in §§ 218.59 and 218.61 do not apply to 

locomotive-mounted image or audio 

recording equipment on freight 

locomotives. FRA’s use of ‘‘or,’’ instead 

of ‘‘and’’ as proposed in the NPRM, is 

to avoid the potential ambiguity that 

both image and audio recording 

equipment on a freight locomotive must 

be present for the exclusion to apply. It 

is FRA’s intention that §§ 218.59 and 

218.61 will not apply to either type of 

recording device on a freight 

locomotive, whether alone or in 

combination. 

Section 218.61 Authority To 

Deactivate Safety Devices 

FRA is also revising subsection (c) of 

this section to read that the 

requirements of this section do not 

apply to inward- or outward-facing 

image recording devices that are 

installed on freight locomotives, instead 

of inward- and outward-facing image 

recording devices on freight 

locomotives. Like its revision in 

§ 218.53, FRA is substituting the word 

‘‘and’’ with ‘‘or’’ to avoid the potential 

ambiguity that both an inward- and 

outward-facing image recording device 

must be present on a freight locomotive 

to avoid the application of this section, 

when the presence of either an inwardor outward-facing image recording 

device is sufficient to avoid the section’s 

requirements. 

Amendments to 49 CFR Part 229 

Section 229.5 Definitions 

Although proposed in the NPRM, 

FRA is not amending this section to add 

a definition for ‘‘NTSB’’ as the acronym 

for the National Transportation Safety 

Board, an independent U.S. government 

investigative agency responsible for 

civil transportation accident 

investigation. The term is not used in 

any of the amended or new language 

being added to part 229 by this final 

rule. 

Section 229.21 Inspections and Tests 

FRA is making conforming changes to 

§ 229.21 to reflect the allowance for 

movement beyond a calendar day 

inspection point of a lead locomotive in 

long-distance intercity passenger train 

service with a locomotive image 

recorder system or device defect. See 

the discussion in the Section-by-Section 

analysis of § 229.136, below, as well as 

Section II.I (Repairing, Replacing, or 

Removing Locomotive Image Recording 

Devices From Service) within the 

Discussion of Specific Comments and 

Conclusions, above. Although not 

expressly proposed in the NPRM, these 

changes are limited only to such longdistance intercity passenger trains led 

by locomotives subject to this final 

rule’s locomotive image recorder 

requirements—and only to the handling 

of such locomotive image recording 

systems or devices. FRA intends no 

other changes to this section’s 

application or effect. 

Section 229.22 Passenger Locomotive 

Inspection and Repair Record 

FRA has added this section in 

preparing the final rule to establish use 

of new Form FRA F 6180–49AP 

(Passenger Locomotive Inspection and 

Repair Record) to collect Federally 

required locomotive inspection, testing, 

and repair information for lead 

locomotives in commuter or intercity 

passenger train service, including 

information for locomotive recording 

devices. This new form is based on 

existing Form FRA F 6180–49A 

(Locomotive Inspection and Repair 

Record), which has been used for many 

years as the centralized record of 

Federally required inspection, testing, 

and repair information for all 

locomotives, as defined broadly in 

§ 229.5. Form FRA F 6180–49AP, as the 

new counterpart to Form FRA F 6180– 

49A, will include a designated row for 

entering information about annual 

testing of locomotive image recording 

devices required under § 229.136, 

consistent with the designated row on 

Form FRA F 6180–49A (as well as new 

Form FRA F 6180–49AP) for entering 

information about required locomotive 

event recorder testing. Form FRA F 

6180–49AP will also continue to be 

organized to fit on one double-sided 

page, for ease of use and printing and 

copying. 

Establishing use of the new F 6180– 

49AP form for lead locomotives in 

commuter or intercity passenger train 

service will help avoid any potential 

confusion for freight railroad operators 

as to the application of locomotive 

recording device requirements under 

this rule, and also conserve valuable 

space on the existing F 6180–49A form. 

Freight railroads operate the vast 

majority of locomotives, and the 

locomotive recording device 

requirements in this rule do not apply 

to locomotives in freight service, or to 

locomotives used in switching service. 

Nor will the rule affect use of the F 

6180–49A form by non-lead locomotives 

in commuter or intercity passenger train 

service. 

To phase-in use of new Form FRA F 

6180–49AP for lead locomotives in 

commuter or intercity passenger train 

service, § 229.22 expressly permits 

continued use and maintenance of Form 

FRA F 6180–49A until October 12, 


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2027, when all such locomotives will be 

required to be equipped with image 

recording devices compliant with 

§ 229.136. In providing broad flexibility, 

§ 229.22 also makes clear that railroads 

may adopt use of Form FRA F 6180– 

49AP earlier than required. 

Section 229.136 Locomotive Image 

and Audio Recording Devices 

FRA is making changes in this 

section’s regulatory text from the NPRM. 

In various paragraphs, the changes 

remove redundant words or phrases 

from the proposed language to 

streamline the final rule. Where these 

and other purely stylistic textual 

changes do not modify the meaning or 

requirements of the paragraphs or this 

section, they will not be addressed in 

the analysis below. 

FRA is modifying the headings for 

paragraphs (b), (c), (d), and (e) by 

inserting the word ‘‘lead’’ into each 

paragraph heading, to clarify that only 

passenger locomotives in the lead 

position must comply with these 

paragraphs’ requirements. FRA is also 

adding clarifying text to avoid any 

confusion as to the applicability of this 

section’s requirements to recording 

devices or systems voluntarily installed 

in locomotives. FRA has therefore 

inserted ‘‘as required under paragraph 

(a)(1) or (2) of this section’’ to make 

clear that the corresponding text applies 

only to locomotives required to be 

equipped with recording devices or 

systems under paragraph (a)(1) or (2) of 

this section. 

In paragraph (a)(3), FRA has changed 

the name of the form referenced in this 

paragraph from ‘‘Form FRA F 6180– 

49A’’ to ‘‘Form FRA F 6180–49AP,’’ as 

FRA has created this new form 

specifically for passenger locomotives 

subject to the requirements in this final 

rule. Passenger railroads must still note 

the presence of any image or audio 

recording system in the REMARKS 

section; however, passenger railroads 

must use new Form FRA F 6180–49AP 

for their lead locomotives used in 

commuter or intercity passenger train 

service. 

In paragraph (a)(5), FRA is adding 

language making clear that locomotive 

recording device data can be stored on 

a certified crashworthy event recorder 

memory module or an alternative, 

remote storage system that provides 

equivalent data protections if approved 

by FRA. See Section II.E.2 (Potential 

Exemptions From the Crashworthy 

Memory Module Requirements) for a 

detailed discussion of FRA’s 

considerations in approving a remote 

storage system as part of the locomotive 

recording system approval process. FRA 

has added paragraphs (a)(5)(i) and (ii) to 

clarify when required image recording 

and voluntarily installed audio 

recording devices on lead locomotives 

must comply with the paragraph’s 

requirements. Paragraph (a)(5)(i) 

references paragraphs (a)(1) and (2) for 

when image recording devices on lead 

locomotives must comply with this 

paragraph’s requirements, while 

paragraph (a)(5)(ii) specifies when 

voluntarily installed audio recording 

devices on lead locomotives must 

comply with the same requirements. 

FRA added these paragraphs because 

the NPRM was unclear when 

voluntarily installed audio recording 

devices on lead locomotives in 

commuter or intercity passenger service 

would be required to record their data 

to a certified crashworthy event recorder 

memory module or FRA-approved 

remote storage system. 

FRA is not adopting the language 

proposed in paragraph (c)(1)(i) 

specifying that the locomotive inwardfacing camera system have sufficient 

resolution to record whether a 

crewmember is physically incapacitated 

and whether a crewmember is 

complying with the indicators of a 

signal system or other operational 

control system. Instead, FRA is simply 

retaining the requirement that the 

inward-facing camera system have 

sufficient resolution to record 

crewmember actions, without the more 

prescriptive language. FRA reiterates 

that this paragraph does not require the 

real-time monitoring of passenger train 

crews. Please see the above discussion 

in Section II.G (Inward-Facing 

Locomotive Image Recording Systems 

and Devices). 

FRA is also renumbering paragraph 

(c) for clarity. The proposed regulatory 

language in paragraph (c)(1)(ii) is now 

contained in paragraphs (c)(1)(ii) and 

(iii) in this final rule. Similarly, the 

regulatory language in proposed 

paragraphs (c)(2), (3), and (4) is now 

found in paragraphs (c)(1)(iv), (2), and 

(3), respectively. In addition, FRA is 

adding the phrase ‘‘on image 

recordings’’ in paragraph (c)(1)(iv) for 

clarity. 

FRA is modifying and broadening 

paragraph (d) from the proposal in the 

NPRM to make clear that, in addition to 

unauthorized downloads, passenger 

railroads must also take necessary 

protective measures against 

unauthorized access to the recording 

system and its recordings that could 

lead to the deletion or alteration of data. 

Likewise, paragraph (d)’s heading now 

refers to ‘‘protection requirements,’’ 

rather than ‘‘download protection 

requirements,’’ to make clear this 

paragraph’s requirements address 

measures to protect the integrity of the 

recording system more than just 

protecting against unauthorized 

downloads. In addition, as stated above 

in Section II.R (Download and Security 

Features of Locomotive Recording 

Systems), the reference to standard 

memory modules in this paragraph was 

proposed in error and has not been 

retained. 

FRA is also adding paragraphs (d)(1) 

and (2) to clarify when required image 

recording and voluntarily installed 

audio recording devices on lead 

locomotives must comply with 

paragraph (d)’s requirements. Paragraph 

(d)(1) includes requirements for image 

recording devices on lead locomotives, 

while paragraph (d)(2) addresses 

requirements for voluntarily installed 

audio recording devices on the same 

locomotives. The language FRA is 

adopting in paragraphs (d)(1) and (2) is 

nearly identical to that which FRA is 

adopting in paragraphs (a)(5)(i) and (ii). 

Similar to those new paragraphs, which 

are discussed above, FRA is adding 

these paragraphs to paragraph (d) 

because the NPRM was unclear when 

voluntarily installed audio recording 

devices on lead locomotives in 

commuter or intercity passenger service 

would have to meet the paragraph’s 

requirements. 

In paragraph (e), FRA is modifying 

paragraph (e)(1) so that it directly 

references the requirements in 

paragraph (i) for the removal from 

service and handling for repair of 

inward- and outward-facing image 

recording systems. FRA had initially 

proposed referencing the daily 

inspection requirements in § 229.21 

(Daily inspection). However, as 

discussed in Section II.I (Repairing, 

Replacing, or Removing Locomotive 

Image Recording Devices From Service), 

FRA has modified the requirements for 

the removal from service and handling 

for repair of inward- and outward-facing 

image recording systems on longdistance intercity passenger trains, as 

specified in paragraph (i) of this section. 

FRA is also modifying paragraph 

(e)(2)’s requirements based on 

comments it received, which are 

discussed above in Section II.S (SelfMonitoring and Self-Reporting Systems 

or Devices on Locomotive Image 

Recording Systems). Specifically, 

paragraph (e)(2) makes clear that the 

required sample download(s) must be 

taken directly from the image recording 

system’s crashworthy memory module, 

or FRA-approved remote storage system, 

to confirm proper operation of the 

system. Paragraph (e)(2) also now 

provides for taking the required sample 


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download(s) during a locomotive’s 

annual test required under § 229.27, 

Annual tests. 

Information concerning the results of 

this annual test must be entered on new 

Form FRA F 6180–49AP in a row 

specifically dedicated for this purpose. 

The added row on the new form 

parallels, and is directly below, the row 

for entering information concerning the 

results of event recorder tests required 

by §§ 229.25(d) and 229.27(c), and 

provides for entering the same 

information as for other required tests. 

In paragraph (f), the exception to a 

railroad’s use of image or audio 

recording device data in paragraph 

(f)(2)(ii) applies by direction of FRA or 

‘‘another Federal agency,’’ including but 

not limited to the NTSB. This change is 

consistent with the use of similar forms 

of ‘‘another Federal agency’’ throughout 

paragraph (f)(2) and clarifies that 

another Federal agency is not limited to 

the NTSB. FRA is also modifying the 

language in paragraph (f)(3)(vii) to make 

clear that a railroad may perform 

inspection, testing, maintenance, or 

repair activities on an ‘‘image or audio 

recorder,’’ and not only an ‘‘inwardfacing image recorder’’ as stated in the 

NPRM, to ensure proper installation and 

functioning. Passenger railroads may of 

course perform such activities on 

inward- or outward locomotive image or 

audio recording devices at any time. 

In paragraph (g), FRA is requiring a 

‘‘description’’ of the technical aspects of 

any locomotive image recording system 

intended to comply with this section, 

rather than a ‘‘written description’’ as 

proposed in the NPRM. In addition, 

paragraph (g) specifies an email address 

rather than a mailing address for 

submitting the description to FRA. FRA 

has made these changes to encourage 

and promote the electronic submission 

of the information to FRA. This final 

rule also clarifies that railroads should 

submit to FRA a description of the 

technical aspects of any locomotive 

image recording system ‘‘intended’’ to 

comply with the section, rather than 

after a recording system has been 

‘‘installed,’’ as stated in the NPRM. FRA 

revised this language as it is rational 

that railroads would seek FRA’s 

approval of their locomotive image 

recording systems before spending 

money to install a potentially nonapproved system on their locomotives. 

Further, FRA is correcting paragraph 

(g)(2)’s submission date requirements, to 

address an inadvertent error in the 

proposed rule, and also modifying 

paragraph (g)(3) to make clear that FRA 

must review a railroad’s submission and 

approve any locomotive image 

recording system before the system can 

be installed or put into service in 

compliance with this section. Please see 

Section II.J (FRA Approval Process for 

Locomotive Image Recording Systems 

and Devices) above, for more detailed 

discussion of these revisions. 

In paragraph (i), FRA is inserting the 

word ‘‘alone’’ into the regulatory text to 

clarify that a locomotive with only an 

out-of-service image recording device is 

not considered to be in an improper 

condition, unsafe to operate, or a noncomplying locomotive under §§ 229.7 

and 229.9. However, as unchanged from 

the NPRM, paragraph (i) also makes 

clear that a railroad must remove the 

device from service if the railroad 

knows the device is not properly 

recording. Further, when a railroad 

removes a locomotive image recording 

device from service, a qualified person 

must record the date the device was 

removed from service under the 

REMARKS section of Form FRA F 

6180–49AP—not Form FRA F 6180– 

49A. For a more extensive discussion of 

this requirement, please see Sections 

II.H (Notice Provided When Locomotive 

Recording Devices Are Present) and 

II.I.3 (Documenting When a Locomotive 

Image Recording Device Has Been 

Removed From Service), above. 

In addition, except for long-distance 

intercity passenger trains, a locomotive 

with a defective image recording device 

may remain as the lead locomotive only 

until the next calendar-day inspection 

required under § 229.21. This includes a 

lead locomotive in a commuter train 

with an image recording device found 

defective at an outlying inspection 

point, which may remain as the train’s 

lead locomotive only until the next 

calendar-day inspection required under 

§ 229.21. As discussed above in Section 

II.I (Repairing, Replacing, or Removing 

Locomotive Image Recording Devices 

From Service), FRA has expanded the 

movement-for-repair allowance for a 

long-distance intercity passenger train’s 

lead locomotive with a defective image 

recording device so that it may remain 

as the lead locomotive until arrival at its 

destination terminal or its nearest 

forward point of repair, whichever 

occurs first. 

FRA notes that the rule does not 

specify how a railroad shall indicate on 

the F 6180–49AP form when a 

locomotive image recording device is 

returned to service. This is intended to 

provide railroads the flexibility to 

denote this information in the 

REMARKS or the REPAIRS section of 

the F 6180–49AP form, or in an 

equivalent location. 

FRA is adding paragraph (l) to 

exclude from compliance with the 

requirements of this section freight 

locomotives acting as passenger 

locomotives when they are performing 

rescue operations for intercity or 

commuter passenger trains. Please see 

the above discussion in Section II.A.3 

(Application of Requirements to Freight 

Locomotives Performing Rescue 

Operations). 

Finally, FRA is revising the 

introductory paragraph of appendix D to 

part 229 to clarify that data from image 

and voluntarily-installed audio 

recording systems must be recorded on 

a certified crashworthy memory module 

or on an alternative, remote storage 

system that provides equivalent data 

protections and is approved by FRA. 

Amendments to 49 CFR Part 299 

Section 299.5 Definitions 

Consistent with the revisions made to 

part 229 in this final rule, FRA is adding 

three new definitions to part 299: 

‘‘Event recorder memory module’’, 

‘‘Image recording system’’, and 

‘‘Recording device’’. These define key 

components of what comprises the 

image recording system and are 

substantively similar to the definitions 

of the same terms in § 229.5. The 

definitions in part 299 differ only 

slightly from those in part 229 to reflect 

editorial revisions to harmonize the 

definitions with the rest of part 299. 

Section 299.449 Trainset Image and 

Audio Recording System 

Section 299.449 is based on § 229.136. 

Similar to § 229.136, FRA is requiring 

all TCRR high-speed passenger trainsets 

used in revenue service to be equipped 

with an image recording system as 

described under § 299.449 prior to 

commencing revenue operations. 

However, because TCRR is not yet 

operating, it does not need to avail itself 

of an implementation period for this 

requirement, as in § 229.136(a), and 

FRA has not included one. 

As provided in § 229.136(a)(3), if a 

locomotive is equipped with an image 

or audio recording system, that fact 

must be annotated on the locomotive’s 

Form FRA F 6180–49AP. FRA is not 

including this annotation requirement 

in § 299.449, however, as TCRR is not 

required to use Form FRA F 6180–49AP. 

FRA has also revised the language in 

§ 299.449(a)(4) to clarify that TCRR’s 

locomotive image recording device data 

must recorded on either a certified 

crashworthy memory module or an 

alternative, remote storage system that 

provides at least equivalent data 

protections and has been approved by 

FRA under § 299.449(g). 

In commenting on the TCRR NPRM, 

TCRR stated that the resolution 


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61See Docket No. FRA–2016–0036, Docket ID. 

FRA–2016–0036–0014 at 5–6. 

62See Docket No. FRA–2016–0036, Docket ID. 

FRA–2016–0036–0014. 

63Section 229.136(i) cross-references the 

definition of long-distance intercity passenger train 

in § 238.5, which excludes passenger trains 

operated exclusively on Amtrak’s Northeast 

Corridor regardless of the distance between large 

cities serviced. 

requirements for both outward- and 

inward-facing image recording devices 

proposed in § 229.136(b) were quite 

prescriptive and should be reexamined 

for high-speed operations. As adopted 

in this final rule, § 229.136(b) requires 

the outward-facing image recording 

device to record at a minimum frame 

rate of 15 fps and have sufficient 

resolution to record the position of 

switch points 50 feet in front of the 

leading locomotive. TCRR questioned 

the underlying rationale and the benefit 

of such a requirement on a system that 

would have a PTC system capable of 

preventing a trainset from operating 

through a misaligned switch. Further, 

TCRR noted that for a trainset operating 

at 205 mph (330 km/h) the trainset 

would travel 20 feet between frames 

using an image recording device with a 

minimum frame rate of 15 fps and 

would pass a switch that is located 50 

feet in front of the trainset within 1⁄6 of 

a second. TCRR also commented that for 

its trainsets, the outward-facing image 

recording device would be mounted at 

least 12.5 feet back from the front of the 

trainset, and thus the proposal would 

effectively require the image recording 

device to have a resolution capable of 

detecting the position of switch points 

62.5 feet in advance of the switch. 

FRA notes that TCRR raises issues 

that were not fully considered for an 

exclusive, high-speed passenger rail 

system. Accordingly, and consistent 

with FRA’s approach to regulating 

TCRR as a system, FRA is requiring the 

railroad to develop and define certain 

image recording system requirements 

for inclusion in its inspection, testing, 

and maintenance program. Specifically, 

§ 299.449(b)(4) requires TCRR to define 

the resolution requirements for 

outward-facing image recording devices 

in its inspection, testing, and 

maintenance program. TCRR must 

ensure such requirements provide 

sufficient resolution to determine the 

position of switch points 50 feet in 

advance of the trainset (wherever the 

outward-facing image recording device 

may be located) while operating at 

speeds of 170 km/h (106 mph) or below 

(TCRR track class H4 and below), and to 

capture images in daylight or with 

normal nighttime illumination from the 

trainset’s headlight, required by 

§ 299.433. As the resolution 

requirements adopted under 

§ 229.136(b)(1)(iii) are not specifically 

attuned to exclusively higher speed 

passenger rail operations as 

contemplated by TCRR, FRA has taken 

into account the conditions under 

which the outward-facing image 

recording devices are expected to 

operate. FRA notes that, with respect to 

switches, facing-point diverging moves 

present an increased risk of derailment, 

or other accident/incident, compared to 

other types of moves through a switch, 

and TCRR’s outward-facing image 

recording devices must therefore be able 

to capture the position of the switch 

points. However, FRA is also sensitive 

to TCRR’s concern that at the proposed 

maximum operating speeds of 330 km/ 

h (205 mph), it may be difficult for an 

image recording device to capture useful 

images so close to the leading edge of 

the trainset. Further, under TCRR’s 

proposed system, facing-point (switch) 

diverging moves would occur most 

commonly when entering a station 

location, at lower speeds. Thus, FRA 

believes it has harmonized the 

requirements for outward-facing image 

recording devices so that they are 

suitable for TCRR while still capturing 

images of the more crucial movements 

along TCRR’s right-of-way. 

Additionally, § 299.449(c)(1)(i) 

provides that TCRR will define the 

resolution requirements for its inwardfacing image recording devices in its 

inspection, testing, and maintenance 

program, ensuring sufficient resolution 

to record crewmember actions, 

including under the lighting conditions 

specified in § 299.449(c)(1)(iii). 

TCRR commented on the periodic 

inspection and download requirements 

in proposed paragraph § 229.136(e)(2) to 

take sample downloads of the image 

recording system to confirm operation 

of the system. TCRR agreed with 

APTA’s comment on the part 229 

proposal,61 in which APTA stated that 

railroads should be allowed to establish 

their own inspection processes for the 

image recording system. TCRR stated 

that such sampling of the image 

recording system, how often and by 

whom, should be established under 

TCRR’s inspection, testing, and 

maintenance program. With respect to 

TCRR, FRA agrees that such 

requirements should be developed and 

defined as part of TCRR’s inspection, 

testing, and maintenance program, 

consistent with FRA’s overall approach 

to the systems-based use of TCRR’s 

inspection, testing, and maintenance 

program. Accordingly, § 299.449(e)(2) 

requires TCRR to define, as part of its 

inspection, testing, and maintenance 

program for its rolling stock under 

§ 299.445, the requirements for periodic 

inspection of and taking sample 

downloads from its trainset image 

recording system. FRA also expects that 

TCRR’s training program developed 

under 49 CFR part 243 will include 

appropriate training and qualification 

requirements for the personnel who will 

be responsible for inspecting and taking 

sample downloads from the image 

recording system. 

Finally, § 299.449(i) addresses the 

removal of an image recording system or 

device from service and handling for 

repair. In commenting on proposed 

§ 229.136(i), the part 229 counterpart to 

this section, TCRR essentially echoed 

APTA’s comments on the proposal.62

Specifically, APTA commented that for 

semi-permanently coupled trainsets, 

prohibiting the use of the trainset due to 

a non-functioning image recording 

device or system could lead to an entire 

trainset being taken out of service, 

because individual cars in such trainsets 

are not typically uncoupled or freely 

switched; accordingly, if it is not 

possible to repair or replace the 

defective image recording device or 

system by the next calendar day 

inspection (or, for TCRR, the next preservice inspection), the proposal could 

lead to removing an entire trainset from 

service. TCRR therefore suggested that 

the regulatory language mirror the 

statutory language in 49 U.S.C. 20168(j), 

allowing the image recording device or 

system to be repaired or replaced ‘‘as 

soon as practicable,’’ rather than by the 

next pre-service inspection. 

Initially, FRA notes that a 

requirement to repair or replace a 

defective image recording device or 

system by the next pre-service 

inspection would mirror the 

requirement for event recorders under 

§ 299.439(d). Additionally, FRA is 

treating the image recording system as a 

safety device under part 218 and, 

accordingly, expects that the railroad 

will make preparations to be able to 

repair or replace a non-functioning 

image recording device or system within 

the timeframe permitted under the 

regulation. FRA is also treating TCRR 

trainsets similar to Amtrak’s semipermanently coupled, high-speed 

trainsets operated exclusively in a 

designated rail corridor, which are not 

subject to § 229.136(i)’s exception for 

long-distance intercity passenger 

trains.63 Moreover, FRA makes clear 

that § 299.449 does not prohibit TCRR 

from using a trainset in revenue service 

beyond the next pre-service inspection 

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functioning image recording device, 

provided the system is properly 

functioning in the cab end that is the 

leading end of the trainset. Accordingly, 

§ 299.449(i) as adopted in this final rule 

makes this distinction clear. For clarity, 

FRA provides two examples to illustrate 

application of this rule text. 

• Example 1 (Trainset A, with cab 

ends 1 and 2): Trainset A is found to 

have a non-functioning image recording 

device in cab end 1 (its outward-facing 

image recording device), and TCRR has 

it properly taken out service under 

§ 299.449(i)(2). The inward-facing 

recording device in cab end 1 is still 

fully functional, along with the event 

recorder and all image recording devices 

in cab end 2. After the image recording 

device in cab end 1 is taken out of 

service, cab end 1 can remain the 

leading cab end of the trainset only until 

the next pre-service inspection required 

under the railroad’s inspection, testing, 

and maintenance program, and then the 

railroad would be required to repair or 

replace the image recording device 

before cab end 1 could be used as the 

leading end for trainset A in revenue 

service. However, should the railroad 

elect, the railroad could keep trainset A 

in service beyond the next pre-service 

inspection so long as all image 

recording devices in cab end 2 remained 

fully functional, along with the event 

recorder and all other required 

components. The railroad is limited to 

using only cab end 2 for trainset A as 

the leading end for all revenue service 

movements. 

• Example 2 (Trainset A, with cab 

ends 1 and 2): In this example, the 

trainset’s entire image recording system 

has been discovered as non-functional 

(either each cab end has non-functional 

image recording devices, or some other 

failure is affecting the image recording 

system’s functionally as a whole), and 

has been properly taken out of service 

under § 299.449(i)(2). Trainset A can 

remain in service only until the next 

pre-service inspection required under 

the railroad’s inspection, testing, and 

maintenance program, and then the 

railroad would be required to repair or 

replace the image recording system for 

trainset A before returning it to revenue 

service. 

The distinction between the above 

examples is that in Example 2, there is 

no cab end that can serve as the leading 

end for trainset A while operating in 

revenue service. 

Finally, FRA has added paragraphs 

(k)(1) and (2) to provide the same 

employee protections as described 

under § 217.9(b)(3) and (4). As the 

rationale for the requirements is the 

same as discussed under § 217.9(b)(3) 

and (4), FRA will rely on that discussion 

without repeating here. FRA’s omission 

of paragraph (k) in the NPRM to provide 

these protections expressly was 

inadvertent, and notes that there are 

some minor differences between 

paragraph (k) and § 217.9(b)(3) and (4) 

only to harmonize the language with 

that used in part 299 for TCRR. 

Appendix A to Part 299—Criteria for 

Certification of Crashworthy Event 

Recorder Memory Module 

FRA is revising the introductory 

paragraph of appendix A to part 299 to 

harmonize the language of the appendix 

with the introductory paragraph of 

appendix D to part 229, reflecting the 

changes made in this final rule. 

VI. Regulatory Impact and Notices 

A. Executive Order 12866, Executive 

Order 13563, and DOT Regulatory 

Policies and Procedures 

This final rule was designated as 

significant by the Office of Information 

and Regulatory Affairs. The final rule 

follows 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 will be at 

reducing accidents. Thus, instead of 

presenting the quantifiable benefits, 

FRA presents the benefits qualitatively, 

as discussed further below. Details on 

the estimated costs of this final rule can 

be found in the rule’s economic 

analysis. 

This final rule 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 its passenger trains. The requirements 

of this final rule, as applied to passenger 

trains, are directly or implicitly required 

by the Statute and will promote railroad 

safety. 

FRA has prepared and placed an RIA 

addressing the economic impact of this 

final rule in the rulemaking docket 

(Docket no. FRA–2016–0036). The RIA 

provides estimates of the costs of this 

final rule that are likely to be incurred 

over a ten-year period. FRA estimates 

the low- and high-range costs of this 

final rule using discount rates of 3 and 

7 percent in the tables below. 

TABLE 1—TOTAL 10-YEAR COSTS OF LOCOMOTIVE IMAGE RECORDING DEVICES, LOW RANGE

[Costs are in 2018 dollars, in millions] 

Discounted at 7% Discounted at 3% Annualized at 7% Annualized at 3% 

Costs ........................................................................................ $42.2 $46.2 $6.0 $5.4 

Cost Savings ............................................................................ 2.0 2.4 0.3 0.3 

Net Costs .......................................................................... 40.2 43.9 5.7 5.1 

TABLE 2—TOTAL 10-YEAR COSTS OF LOCOMOTIVE IMAGE RECORDING DEVICES, HIGH RANGE

[In millions] 

Discounted at 7% Discounted at 3% Annualized at 7% Annualized at 3% 

Costs ........................................................................................ $87.3 $94.0 $12.4 $11.0 

Cost Savings ............................................................................ 2.0 2.4 0.3 0.3 

Net Costs .......................................................................... 85.3 91.6 12.1 10.7 


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70756 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 

64See Benefits, Section VIII, of the RIA for more 

information. 

As discussed in the preamble above, 

FRA may consider crashworthiness 

protection requirements unnecessary (or 

met) in the future for passenger 

locomotive image recording device 

memory modules if recorded data is 

stored at a remote location away from a 

locomotive consist, safe from accident 

destruction. FRA did not 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 costlier to develop in 

order to transfer the recorded data to a 

centralized location. 

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 safety benefits will 

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.64

The primary source of expected 

benefits is the potential reduction in 

safety risk. FRA conducted a literature 

review to determine the effectiveness 

rate of inward- and outward-facing 

recording devices, but was unable to 

determine an appropriate rate. The 

benefits for the final rule are 

qualitatively discussed. The reduction 

in safety risk is expected to come 

primarily from the change in crew 

behavior. Railroads can deter unsafe 

behavior if crewmembers realize their 

actions may be observed on a frequent, 

but random, basis by railroad 

supervisors. Locomotive image 

recorders cannot directly prevent an 

accident from occurring, but rather can 

provide investigators with information 

after an accident occurs that can help to 

prevent future accidents of that type 

from occurring. 

Although FRA is declining to require 

locomotive recording devices in freight 

locomotives, many freight railroads 

have informed FRA the above reasons 

are why railroads install 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 final rule. 

Tables: Costs of the final rule: 

TABLE 3—10-YEAR COSTS AND COST SAVINGS (LOW RANGE) 

[In millions] 

Undiscounted Discounted 

at 7% 

Discounted 

at 3% 

Annualized 

at 7% 

Annualized 

at 3% 

Costs: 

Camera ......................................................................... $40.6 $34.6 $37.7 $4.9 $4.4 

Crashworthiness ........................................................... 9.2 7.5 8.4 1.1 1.0 

Administrative Costs ..................................................... 0.1 0.1 0.1 0.0 0.0 

Governmental Costs ..................................................... 0.004 0.004 0.004 0.0006 0.0005 

Total Costs ............................................................ 49.9 42.2 46.2 6.0 5.4 

Cost Savings: 

Operational Testing ...................................................... 2.7 2.0 2.4 0.3 0.3 

Net Costs ............................................................... 47.2 40.2 43.9 5.7 5.1 

TABLE 4—10-YEAR COSTS AND COST SAVINGS (HIGH RANGE) 

[In millions] 

Undiscounted Discounted 

at 7% 

Discounted 

at 3% 

Annualized 

at 7% 

Annualized 

at 3% 

Costs: 

Camera ......................................................................... $90.6 $79.7 $85.5 $11.3 $10.0 

Crashworthiness ........................................................... 9.2 7.5 8.4 1.1 1.0 

Administrative Costs ..................................................... 0.1 0.1 0.1 0.0 0.0 

Governmental Costs ..................................................... 0.004 0.004 0.004 0.0006 0.0005 

Total Costs ............................................................ 99.9 87.3 94.0 12.4 11.0 

Cost Savings: 

Operational Testing ...................................................... 2.7 2.0 2.4 0.3 0.3 

Net Costs ............................................................... 97.2 85.3 91.6 12.1 10.7 


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Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 70757 

B. Regulatory Flexibility Act and 

Executive Order 13272; Certification 

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 

a Final Regulatory Flexibility Analysis 

(FRFA) 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 final rule will have a 

significant economic impact on a 

substantial number of small entities. 

Under section 312 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, Public Law 104– 

121, FRA has issued a final policy 

statement that formally establishes 

‘‘small entities’’ as railroads that meet 

the line-haulage revenue requirements 

of a Class III railroad, which is $20 

million or less in inflation-adjusted 

annual revenues, and commuter 

railroads or small governmental 

jurisdictions that serve populations of 

50,000 or less. See 49 CFR part 209, app. 

C. 

This final rule will apply to railroad 

carriers that provide regularly 

scheduled intercity rail or commuter 

rail passenger transportation to the 

public. FRA notes that one passenger 

railroad is considered a small entity: the 

Hawkeye Express (operated by the Iowa 

Northern Railway Company). 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 shorthaul passenger railroad that does not 

provide commuter or intercity passenger 

service, and therefore will not be 

affected by the final rule. Additionally, 

the Hawkeye Express has not been in 

operation for at least the past two years. 

FRA does not believe that the provisions 

of the final rule will significantly impact 

a substantial number of small entities. 

FRA invited 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 final 

rule. During the NPRM comment period, 

FRA did not receive any comments from 

the public or stakeholders regarding the 

impact that the final rule would have on 

small entities. 

Accordingly, the FRA Administrator 

hereby certifies this rule will not have 

a significant economic impact on a 

substantial number of small entities. 

C. Paperwork Reduction Act 

The information collection 

requirements in this final 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: 

CFR section 65 Respondent universe Total annual 

responses 

Average time per 

responses 

Total annual 

burden hours 

Total cost 

equivalent 66

217.7(a)—Operating rules; filing and recordkeeping— 

Filing of code of operating rules, timetables, and 

timetable special instructions by Class I, Class II, 

Amtrak, and commuter railroads with FRA.

2 new railroads ........... 2 documents ............... 1 hour ......................... 2 $154 

—(b) Amendments to code of operating rules, 

timetables, and timetable special instructions by 

Class I, Class II, Amtrak, and commuter railroads with FRA.

53 railroads ................. 312 revised documents.20 minutes .................. 104 8,008 

—(c) Class III and other railroads—Copy of code 

of operating rules, timetables, and timetable 

special instructions at system headquarters.

2 new railroads ........... 2 documents ............... 1 hour ......................... 2 154 

—(c) Class III and other railroads—Amendments 

to code of operating rules, timetables, and timetable special instructions at system headquarters.

714 railroads ............... 1,596 amendments ..... 15 minutes .................. 399 30,723 

217.9(b)(2)—Program of operational tests and inspections; recordkeeping—Written records documenting 

qualification of each railroad testing officer.

765 railroads ............... 4,732 records ............. 2 minutes .................... 158 12,166 

—(b)(3) Development and adoption of procedure 

ensuring random selection of employees by railroads utilizing inward-facing locomotive and incab audio recordings to conduct operational 

tests and inspections (New requirement).

36 railroads ................. 12 adopted procedures.24 hours ..................... 288 34,560 

—(c) Written program of operational tests and inspections.2 new railroads ........... 2 programs ................. 10 hours ..................... 20 2,400 

—(d)(1) Records of operational tests/inspections .. 765 railroads ............... 9,120,000 test records 

and updates.

5 minutes .................... 760,000 58,520,000 

—(d)(2) Railroad copy of current program operational tests/inspections—Amendments.53 railroads ................. 159 program revisions 70 minutes .................. 186 14,322 

—(e)(1)(i) Written quarterly review of operational 

tests/inspections by RRs other than passenger 

RRs.

8 (Amtrak + 7 Class I) 

railroads.

32 reviews .................. 2 hours ....................... 64 4,928 

—(e)(1)(ii) 6-month review of operational tests/inspections/naming of officer.7 Class I railroads ...... 14 reviews .................. 2 hours ....................... 28 2,156 

—(e)(2) 6-month review by passenger railroads 

designated officers of operational testing and inspection data.

35 (Amtrak + 34 passenger) railroads.70 reviews .................. 2 hours ....................... 140 10,780 

—(e)(3) Records of periodic reviews ...................... 50 railroads ................. 116 records ................ 1 minute ...................... 2 154 

—(f)–(g) Annual summary of operational tests and 

inspections.

50 railroads ................. 71 summary records .. 1 hour ......................... 71 5,467 

—(h)(1)(i) RR amended program of operational 

tests/inspections.

765 railroads ............... 6 revised programs .... 30 minutes .................. 3 231 

—(h)(1)(ii) FRA disapproval of RR program of 

operational tests/inspections and RR written response in support of program.

765 railroads ............... 6 supporting documents.1 hour ......................... 6 462 

217.11(a)—RR periodic instruction of employees on 

operating rules—New railroads.

2 new railroads ........... 2 written programs ..... 8 hours ....................... 16 1,232 


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70758 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 

65FRA anticipates that no procedures will be 

disapproved under § 217.9(b)(4). Additionally, the 

burdens associated under § 299.449 and appendix 

A to part 299 have been accounted for under the 

burden associated with § 229.136(f) and (g). 

66The dollar equivalent cost is derived from the 

Surface Transportation Board’s Full Year Wage A&B 

data series using the appropriate employee group 

hourly wage rate that includes 75-percent overhead 

charges. 

67The burdens for §§ 229.21, 229.136(a)(3), (e)(2), 

and 229.139(i) are covered under § 229.22. 

CFR section 65 Respondent universe Total annual 

responses 

Average time per 

responses 

Total annual 

burden hours 

Total cost 

equivalent 66

217.11(b)—RR copy of amendment of program for 

periodic instruction of employees.

765 railroads ............... 110 modified written 

programs.

30 minutes .................. 55 4,235 

218.95(a)(5)–(b)—Instruction, training, examination— 

Employee records.

765 railroads ............... 85,600 employees’ 

records.

1 minute ...................... 1,427 109,879 

—(c)(1)(i) Amended RR program of instruction, 

testing, examination.

765 railroads ............... 5 amended programs 30 minutes .................. 3 231 

218.97(b)(4)—RR copy of good faith challenge procedures.765 railroads ............... 4,732 copies to new 

employees.

6 minutes .................... 473 36,421 

218.97(c)(1) and (c)(4)—RR employee good faith challenge of RR directive.10 workers .................. 10 gd. faith challenges 15 minutes .................. 3 231 

—(c)(5) RR resolution of employee good faith 

challenge.

2 new railroads ........... 5 responses ................ 15 minutes .................. 1 77 

—(d)(1) RR officer immediate review of unresolved good faith challenge.2 new railroads ........... 3 reviews .................... 30 minutes .................. 2 154 

—(d)(2) RR officer explanation 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.

2 new railroads ........... 3 answers ................... 15 minutes .................. 1 77 

—(d)(3) Employee written/electronic protest of employer final decision.2 new railroads ........... 3 written protests ........ 15 minutes .................. 1 77 

—(d)(3) Employee copy of protest ......................... 2 new railroads ........... 3 copies ...................... 1 minute ...................... 0.1 8 

—(d)(4) Employer further review of good faith 

challenge after employee written request.

2 new railroads ........... 2 further reviews ......... 15 minutes .................. 0.5 39 

—(d)(4) RR verification decision to employee in 

writing.

2 new railroads ........... 2 decisions ................. 15 minutes .................. 0.5 39 

—(e) Recordkeeping and record retention—Employer’s copy of written procedures at division 

headquarters.

765 railroads ............... 765 copies .................. 5 minutes .................... 64 4,928 

218.99(a)—Shoving or pushing movement—RR operating rule complying with section’s requirements.2 new railroads ........... 2 rule modifications .... 1 hour ......................... 2 154 

218.101(a)–(c)—Leaving equipment in the clear—Operating rule that complies with this section.2 new railroads ........... 2 rule modifications .... 30 minutes .................. 1 77 

218.103(a)(1)—Hand-Operated Switches—Operating 

Rule that Complies with this section.

2 new railroads ........... 2 rule modifications .... 30 minutes .................. 1 77 

229.22—Locomotive image recording systems—Form 

FRA F 6180–49AP (New requirements) 67.

36 railroads ................. 4,500 passenger locomotives.15 minutes .................. 1,125 86,625 

229.136(f)(1)—Passenger railroads adoption and development of chain of custody (c of c) procedures 

(New requirements).

36 railroads ................. 12 c of c procedures .. 48 hours ..................... 576 44,352 

—(f)(2)–(3) Passenger railroad preservation of accident/incident data of image and audio recording system from locomotive using such system 

at time of accident/incident (includes voluntary 

freight railroads & restates previous requirement 

under section 229.135(e)) (New requirements).

36 railroads ................. 140 saved recordings 10 minutes .................. 23 1,771 

—(g) Locomotive image recording system approval process—Description of technical aspects any locomotive image recording system to 

FRA for approval (New requirements).

36 railroads ................. 12 descriptions/plans .. 20 hours ..................... 240 18,480 

Total ................................................................. 765 railroads ............... 9,223,047 responses .. N/A .............................. 765,488 58,955,829 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. 

For information or a copy of the 

paperwork package submitted to OMB, 

contact Ms. Arlette Mussington, 

Information Collection Clearance 

Officer, at email: Arlette.Mussington@

dot.gov or telephone: (571) 609–1285 or 

Ms. Joanne Swafford, Information 

Collection Clearance Officer, at email: 

Joanne.Swafford@dot.gov or telephone: 

(757) 897–9908. 

Organizations and individuals 

desiring to submit comments on the 

collection of information requirements 

should direct them to Ms. Arlette 

Mussington, Information Collection 

Clearance Officer, at email: 

Arlette.Mussington@dot.gov or 

telephone: (571) 609–1285 or Ms. 

Joanne Swafford, Information Collection 

Clearance Officer, at email: 

Joanne.Swafford@dot.gov or telephone: 

(757) 897–9908. 

OMB must make a decision 

concerning the collection of information 

requirements contained in this 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. FRA received two public 

comments on the information collection 

requirements contained in the NPRM. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements that 

do not display a current OMB control 

number, if required. The current OMB 

control number for this rule is 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, 


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Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 70759 

68See, e.g., Napier v. Atlantic Coastline RR. Co., 

272 U.S. 605 (1926). 

69See 40 CFR 1508.4. 

70See 23 CFR 771.116(b). 

71See 54 U.S.C. 306108. 

72See Department of Transportation Act of 1966, 

as amended (Pub. L. 89–670, 80 Stat. 931); 49 U.S.C. 

303. 

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 final rule 

under the principles and criteria 

contained in Executive Order 13132. 

This final rule could affect State and 

local governments to the extent that 

they sponsor, or exercise oversight of, 

passenger railroads. Because this final 

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 final rule 

could have preemptive effect by 

operation of law under certain 

provisions of the Federal railroad safety 

statutes, specifically the former 

Locomotive Inspection Act and the 

former Federal Railroad Safety Act of 

1970, repealed and recodified at 49 

U.S.C. 20701 et seq. and 49 U.S.C. 

20106, respectively. Section 20701 

governs all ‘‘parts and appurtenances’’ 

of locomotives, and has been held to 

occupy the field.68 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 final 

rule under the principles and criteria in 

Executive Order 13132. As explained 

above, FRA has determined this final 

rule has no federalism implications, 

other than the possible preemption of 

State laws under Federal railroad safety 

statutes, specifically 49 U.S.C. 20701 et 

seq. and 49 U.S.C. 20106. Therefore, 

preparation of a federalism summary 

impact statement for this final rule is 

not required. 

E. Environmental Impact 

Consistent with the National 

Environmental Policy Act (NEPA; 42 

U.S.C. 4321 et seq.), the Council on 

Environmental Quality’s NEPA 

implementing regulations at 40 CFR 

parts 1500 through 1508, and FRA’s 

NEPA implementing regulations at 23 

CFR part 771, FRA has evaluated this 

final rule and determined that it is 

categorically excluded from 

environmental review and therefore 

does not require the preparation of an 

environmental assessment (EA) or 

environmental impact statement (EIS). 

Categorical exclusions (CEs) are actions 

identified in an agency’s NEPA 

implementing regulations that do not 

normally have a significant impact on 

the environment and therefore do not 

require either an EA or EIS.69

Specifically, FRA has determined that 

this final rule is categorically excluded 

from detailed environmental review 

pursuant to 23 CFR 771.116(c)(15), 

‘‘[p]romulgation of rules, the issuance of 

policy statements, the waiver or 

modification of existing regulatory 

requirements, or discretionary approvals 

that do not result in significantly 

increased emissions of air or water 

pollutants or noise.’’ 

The purpose of this rulemaking is to 

require commuter and intercity 

passenger railroads to install recording 

devices on locomotives in compliance 

with this rule and use those devices to 

help investigate and prevent railroad 

accidents. This rule does not directly or 

indirectly impact any environmental 

resources and will not result in 

significantly increased emissions of air 

or water pollutants or noise. In 

analyzing the applicability of a CE, FRA 

must also consider whether unusual 

circumstances are present that would 

warrant a more detailed environmental 

review.70 FRA has concluded that no 

such unusual circumstances exist with 

respect to this final rule and it meets the 

requirements for categorical exclusion 

under 23 CFR 771.116(c)(15). 

Pursuant to Section 106 of the 

National Historic Preservation Act and 

its implementing regulations, FRA has 

determined this undertaking has no 

potential to affect historic properties.71

FRA has also determined that this 

rulemaking will not approve a project 

resulting in a use of a resource protected 

by Section 4(f).72 Further, FRA reviewed 

this final rule and found it consistent 

with Executive Order 14008, Tackling 

the Climate Crisis at Home and Abroad. 

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 5610.2C (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 final rule under 

Executive Order 12898 and the DOT 

Order and has determined it will 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 final rule 

under the principles and criteria in 

Executive Order 13175, Consultation 

and Coordination with Indian Tribal 

Governments, dated November 6, 2000. 

The final rule will not have a substantial 

direct effect on one or more Indian 

tribes, will not impose substantial direct 

compliance costs on Indian Tribal 

Governments, and will 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 


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70760 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 

73 66 FR 28355 (May 22, 2001). 

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 final 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.’’ 73 FRA evaluated this 

final rule in accordance with Executive 

Order 13211 and determined that this 

regulatory action is not a ‘‘significant 

energy action’’ within the meaning of 

the Executive order. 

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 final rule on 

foreign commerce and believes that its 

requirements are consistent with the 

Trade Agreements Act of 1979. The 

requirements are safety standards, 

which, as noted, are not considered 

unnecessary obstacles to trade. 

K. Congressional Review Act 

Pursuant to the Congressional Review 

Act (5 U.S.C. 801 et seq.), the Office of 

Information and Regulatory Affairs did 

not designate this rule as a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 

List of Subjects 

49 CFR Part 217 

Occupational safety and health, 

Penalties, Railroad employees, Railroad 

safety, Reporting and recordkeeping 

requirements. 

49 CFR Part 218 

Locomotives, Occupational safety and 

health, Penalties, Railroad employees, 

Railroad safety, and Tampering. 

49 CFR Part 229 

Locomotives, Penalties, Railroad 

employees, Railroad safety, Reporting 

and recordkeeping requirements. 

49 CFR Part 299 

High-speed rail, Railroad safety, 

Reporting and recording requirements, 

Tokaido Shinkansen. 

The Final Rule 

For the reasons discussed in the 

preamble, FRA is amending chapter II, 

subtitle B of title 49, Code of Federal 

Regulations, as follows: 

PART 217—RAILROAD OPERATING 

RULES 

The authority citation for part 217 is 

revised to read as follows: 

■ 1. Authority: 49 U.S.C. 20103, 20107, 

20168, 28 U.S.C. 2461, note; and 49 CFR 

1.89. 

Subpart A—General 

■ 2. In § 217.9, add paragraphs (b)(3) 

and (4) to read as follows: 

§ 217.9 Program of operational tests and 

inspections; recordkeeping. 

* * * * * 

(b) * * * 

(3) A passenger railroad that utilizes 

inward-facing locomotive image or incab 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 passenger 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 using locomotive 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 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, or 

orders, or any criminal laws. 

(4) FRA may review a passenger 

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 

■ 3. The authority citation for part 218 

continues 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 

■ 4. In § 218.53, revise paragraph (c) and 

add paragraph (d) to read as follows: 

§ 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 §§ 218.59 and 

218.61 do not apply to locomotivemounted image or audio recording 

equipment on freight locomotives. 

■ 5. Revise § 218.61(c) to read as 

follows: 

§ 218.61 Authority to deactivate safety 

devices. 

* * * * * 

(c) If a locomotive in commuter or 

intercity passenger service is equipped 

with a device to record data concerning 

the operation of that locomotive or the 

train it is powering, that device may be 

deactivated only under the provisions of 

§ 229.135 of this chapter. Inward- and 

outward-facing image recording devices 

on commuter or intercity passenger 


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locomotives may be deactivated only 

under the provisions of § 229.136 of this 

chapter. This section does not apply to 

inward- or outward-facing image 

recording devices that are installed on 

freight locomotives. 

■ 6. In appendix C to part 218, revise 

the fifth sentence of the fourth 

paragraph of appendix C to part 218 to 

read as follows: 

Appendix C—Statement of Agency 

Enforcement Policy on Tampering 

* * * * * 

Safety Devices Covered by This Rule 

* * * This regulation applies to a variety 

of devices including equipment known as 

‘‘event recorders,’’ ‘‘alerters,’’ ‘‘deadman 

controls,’’ ‘‘automatic cab signal,’’ ‘‘cab signal 

whistles,’’ ‘‘automatic train stop equipment,’’ 

‘‘automatic train control equipment,’’ 

‘‘positive train control equipment,’’ and 

‘‘passenger locomotive-mounted image and 

audio recording equipment.’’ * * * 

* * * * * 

PART 229—RAILROAD LOCOMOTIVE 

SAFETY STANDARDS 

■ 7. The authority citation for part 229 

is revised to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20133, 

20137–38, 20143, 20168, 20701–03, 21301– 

02, 21304, 28 U.S.C. 2461, note; and 49 CFR 

1.89. 

Subpart A—General 

■ 8. In § 229.5, revise the definition of 

‘‘Event recorder memory module’’ and 

add, in alphabetical order, definitions of 

‘‘Image recording system’’ and 

‘‘Recording device’’ to read as follows: 

§ 229.5 Definitions. 

* * * * * 

Event recorder memory module means 

that portion of an event recorder used to 

retain the recorded data as described in 

§§ 229.135(b) and 229.136(a) through 

(c). 

* * * * * 

Image recording system means a 

system of cameras or other electronic 

devices that record images as described 

in § 229.136, and any components that 

convert those images into electronic 

data transmitted to, and stored on, a 

memory module. 

* * * * * 

Recording device means a device that 

records images or audible sounds, as 

described in § 229.136. 

* * * * * 

Subpart B—Inspections and Tests 

■ 9. In § 229.21, revise paragraphs (a) 

and (b) to read as follows: 

§ 229.21 Daily inspection. 

(a) Except for MU locomotives, each 

locomotive in use shall be inspected at 

least once during each calendar day. A 

written report of the inspection shall be 

made. This report shall contain the 

name of the carrier; the initials and 

number of the locomotive; the place, 

date and time of the inspection; a 

description of the non-complying 

conditions disclosed by the inspection; 

and the signature of the employee 

making the inspection. Except as 

provided in §§ 229.9, 229.136, 229.137, 

and 229.139, any conditions that 

constitute non-compliance with any 

requirement of this part shall be 

repaired before the locomotive is used. 

Except with respect to conditions that 

do not comply with §§ 229.136, 229.137, 

or 229.139, a notation shall be made on 

the report indicating the nature of the 

repairs that have been made. Repairs 

made for conditions that do not comply 

with §§ 229.136, 229.137, or 229.139 

may be noted on the report, or in 

electronic form. The person making the 

repairs shall sign the report. The report 

shall be filed and retained for at least 92 

days in the office of the carrier at the 

terminal at which the locomotive is 

cared for. A record shall be maintained 

on each locomotive showing the place, 

date and time of the previous 

inspection. 

(b) Each MU locomotive in use shall 

be inspected at least once during each 

calendar day and a written report of the 

inspection shall be made. This report 

may be part of a single master report 

covering an entire group of MU 

locomotives. If any non-complying 

conditions are found, a separate, 

individual report shall be made 

containing the name of the carrier; the 

initials and number of the locomotive; 

the place, date, and time of the 

inspection; the non-complying 

conditions found; and the signature of 

the inspector. Except as provided in 

§§ 229.9, 229.136, 229.137, and 229.139, 

any conditions that constitute noncompliance with any requirement of 

this part shall be repaired before the 

locomotive is used. Except with respect 

to conditions that do not comply with 

§§ 229.136, 229.137, or 229.139, a 

notation shall be made on the report 

indicating the nature of the repairs that 

have been made. Repairs made for 

conditions that do not comply with 

§§ 229.136, 229.137, or 229.139 may be 

noted on the report, or in electronic 

form. A notation shall be made on the 

report indicating the nature of the 

repairs that have been made. The person 

making the repairs shall sign the report. 

The report shall be filed in the office of 

the carrier at the place where the 

inspection is made or at one central 

location and retained for at least 92 

days. 

* * * * * 

■ 10. Add § 229.22 to read as follows: 

§ 229.22 Passenger locomotive inspection 

and repair record. 

(a) Application. This section applies 

only to lead locomotives of trains used 

in commuter or intercity passenger 

service, i.e., locomotives subject to the 

requirements of § 229.136. 

(b) Dates. (1) Each locomotive subject 

to the requirements of § 229.136 shall 

use and maintain Form FRA F 6180– 

49AP in accordance with the 

requirements of § 229.136, except that 

Form FRA F 6180–49A may fulfill any 

requirement in § 229.136 with respect to 

Form FRA F 6180–49AP until October 

12, 2027. 

(2) For purposes of complying with 

the inspection, testing, and repair 

recordkeeping requirements in 

§§ 229.23, 229.27, 229.29, 229.31, 

229.33, 229.55, 229.103, 229.105, 

229.114, 229.123, and 229.135 with 

respect to Form FRA F 6180–49A, each 

locomotive subject to the requirements 

of § 229.136 shall instead use and 

maintain Form FRA F 6180–49AP no 

later than October 12, 2027. 

(c) Earlier adoption. Railroads may 

adopt use of Form FRA F 6180–49AP 

earlier than required for locomotives 

subject to the requirements of § 229.136. 

(d) Effect. Nothing in this section 

affects the requirements in this part for 

use of Form FRA F 6180–49A for 

locomotives not subject to the 

requirements of § 229.136. 

Subpart C—Safety Requirements 

■ 11. Add § 229.136 to read as follows: 

§ 229.136 Locomotive image and audio 

recording devices. 

(a) Duty to equip and record. (1) 

Effective October 12, 2027, each lead 

locomotive of a train used in commuter 

or intercity passenger service must be 

equipped with an image recording 

system to record images of activities 

ahead of the locomotive in the direction 

of travel (outward-facing image 

recording device), and of activities 

inside the cab of the locomotive 

(inward-facing image recording device). 

(i) If the lead locomotive is equipped 

with an image recording system, the 

system must be turned on and recording 

whenever a train is in motion, at all 

train speeds. 

(ii) If operating circumstances cause 

the controlling locomotive to be other 

than the lead locomotive, railroads must 


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also record images of activities inside 

the cab of the controlling locomotive. 

(iii) Both cabs of a dual-cab 

locomotive shall be equipped with 

inward- and outward-facing image 

recording systems. Image recordings for 

only a dual-cab locomotive’s active cab 

and the leading end of the locomotive’s 

movement are required to be made and 

retained. 

(2) Image recording systems installed 

after October 12, 2024, on new, 

remanufactured, or existing lead 

locomotives used in commuter or 

intercity passenger service shall meet 

the requirements of this section. Lead 

locomotives used in commuter or 

intercity passenger service must be 

equipped with an image recording 

system meeting the requirements of this 

section no later than October 12, 2027. 

(3) For lead locomotives in commuter 

or intercity passenger service, railroads 

must note the presence of any image or 

audio recording systems in the 

REMARKS section of Form FRA F 

6180–49AP in the locomotive cab. 

(4) As required under paragraph (a)(1) 

or (2) of this section, the image 

recording system shall record at least 

the most recent 12 hours of operation of 

a lead locomotive in commuter or 

intercity passenger service. 

(5) Locomotive recording device data 

for each lead locomotive used in 

commuter or intercity passenger service 

shall be recorded on a memory module 

meeting the requirements for a certified 

crashworthy event recorder memory 

module described in appendix D to this 

part, or on an alternative, remote storage 

system that provides at least equivalent 

data protections and is approved by 

FRA under paragraph (g) of this section. 

(i) Paragraph (a)(5) of this section 

applies to locomotive image recording 

systems as required under paragraph 

(a)(1) or (2) of this section. 

(ii) Audio recording systems installed 

after October 12, 2024, on new, 

remanufactured, or existing lead 

locomotives used in commuter or 

intercity passenger service shall meet 

the requirements of paragraph (a)(5) of 

this section. Audio recording systems 

installed on lead locomotives in 

commuter or intercity passenger service 

must meet the requirements of 

paragraph (a)(5) of this section no later 

than October 12, 2027. 

(b) Outward-facing recording system 

requirements for lead locomotives in 

commuter or intercity passenger service. 

(1) As required under paragraph (a)(1) or 

(2) of this section, the image recording 

system shall: 

(i) Include an image recording device 

aimed parallel to the centerline of 

tangent track within the gauge on the 

front end of the locomotive; 

(ii) Be able to distinguish the signal 

aspects displayed by wayside signals; 

(iii) Record at a minimum frame rate 

of 15 frames per second (or its 

equivalent) and have sufficient 

resolution to record the position of 

switch points 50 feet in front of the 

locomotive; 

(iv) Be able to capture images in 

daylight or with normal nighttime 

illumination from the headlight of the 

locomotive; and 

(v) Include an accurate time and date 

stamp on image recordings. 

(2) If a lead locomotive in commuter 

or intercity passenger service 

experiences a technical failure of its 

outward-facing image recording system, 

then the system shall be removed from 

service and handled in accordance with 

paragraph (i) of this section. 

(c) Inward-facing image recording 

system requirements for lead 

locomotives in commuter or intercity 

passenger service. (1) As required under 

paragraph (a)(1) or (2) of this section, 

the image recording system shall 

include an image recording device 

positioned to provide complete coverage 

of all areas of the controlling locomotive 

cab where a crewmember typically may 

be positioned, including complete 

coverage of the instruments and controls 

required to operate the controlling 

locomotive in normal use, and: 

(i) Have sufficient resolution to record 

crewmember actions; 

(ii) Record at a minimum frame rate 

of 5 frames per second; 

(iii) Be capable of using ambient light 

in the cab, and when ambient light 

levels drop too low for normal 

operation, automatically switch to 

infrared or another operating mode that 

enables the recording sufficient clarity 

to comply with the requirements of this 

paragraph (c)(1); and 

(iv) Include an accurate time and date 

stamp on image recordings. 

(2) No image recordings may be made 

of any activities within a locomotive’s 

sanitation compartment as defined in 

§ 229.5, and no image recording device 

shall be installed in a location where the 

device can record activities within a 

sanitation compartment. 

(3) If a lead locomotive in commuter 

or intercity passenger service 

experiences a technical failure of its 

inward-facing image recording system, 

the system shall be removed from 

service and handled in accordance with 

paragraph (i) of this section. 

(d) Image and audio recording system 

protection requirements for lead 

locomotives in commuter or intercity 

passenger service. Railroads must 

provide convenient wired or wireless 

connections to allow authorized railroad 

personnel to download audio or image 

recordings from any certified 

crashworthy event recorder memory 

module in a lead locomotive in 

commuter or intercity passenger service. 

The railroads must use electronic 

security measures, and apply 

appropriate cybersecurity measures, to 

prevent unauthorized access to, and 

download, deletion, or alteration of, the 

recording system or its recordings. 

(1) Paragraph (d) of this section 

applies to locomotive image recording 

systems as required under paragraph 

(a)(1) or (2) of this section. 

(2) Audio recording systems installed 

after October 12, 2024, on new, 

remanufactured, or existing lead 

locomotives used in commuter or 

intercity passenger service shall meet 

the requirements of paragraph (d) of this 

section. Audio recording devices 

installed on lead locomotives in 

commuter or intercity passenger service 

must meet the requirements of 

paragraph (d) of this section no later 

than October 12, 2027. 

(e) Inspection, testing, and 

maintenance for image recording 

systems on lead locomotives in 

commuter or intercity passenger service. 

As required under paragraph (a)(1) or (2) 

of this section, the image recording 

system shall have self-monitoring 

features to assess whether the system is 

operating properly, including whether 

the system is powered on. 

(1) If a fault with the image recording 

system is detected, the locomotive may 

be used in the lead position only in 

accordance with paragraph (i) of this 

section. 

(2) As required under paragraph (a)(1) 

or (2) of this section, at each annual test 

required under § 229.27, the railroad 

conducting the inspection shall take 

sample download(s) from the image 

recording system’s crashworthy event 

recorder memory module, or an FRAapproved equivalent under paragraph 

(g) of this section, to confirm proper 

operation of the system, and, if 

necessary, repair the system to full 

operation. 

(f) Handling of recordings—(1) Chainof-custody procedure. Each railroad 

with locomotives in commuter or 

intercity passenger service subject to 

this section shall adopt, maintain, and 

comply with a chain-of-custody 

procedure governing the handling and 

the release of the locomotive image 

recordings described in paragraphs (a) 

through (c) of this section and any 

locomotive audio recordings. The chainof-custody procedure must specifically 

address the preservation and handling 


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requirements for post-accident/incident 

recordings provided to FRA or other 

Federal agencies under paragraph (f)(2) 

of this section. 

(2) Accident/incident preservation. If 

any locomotive in commuter or intercity 

passenger service equipped with an 

image or audio recording system is 

involved in an accident/incident that 

must be reported to FRA under part 225 

of this chapter, the railroad that was 

using the locomotive at the time of the 

accident shall, to the extent possible, 

and to the extent consistent with the 

safety of life and property, preserve the 

data recorded by each such device for 

analysis by FRA or other Federal 

agencies. A railroad must either provide 

the image and/or audio data in a format 

readable by FRA or other Federal 

agencies; or make available to FRA or 

other Federal agencies any platform, 

software, media device, etc., that is 

required to play back the image and/or 

audio data. This preservation 

requirement shall expire one (1) year 

after the date of the accident, unless 

FRA or another Federal agency notifies 

the railroad in writing that it must 

preserve the recording longer. Railroads 

may extract and analyze such data for 

the purposes described in paragraph 

(f)(3) of this section, only if: 

(i) The original downloaded data file, 

or an unanalyzed exact copy of it, is 

retained in secure custody under the 

railroad’s procedure adopted under 

paragraph (f)(1) of this section; and 

(ii) The original downloaded data file, 

or an unanalyzed exact copy of it, is not 

utilized for any other purpose, except by 

direction of FRA or another Federal 

agency. 

(3) Recording uses. A railroad may 

use the image and audio recordings 

from a locomotive in commuter or 

intercity passenger service subject to 

this section to: 

(i) Investigate an accident/incident 

that is required to be reported to FRA 

under part 225 of this chapter; 

(ii) Investigate a violation of a Federal 

railroad safety law, regulation, or order, 

or a railroad’s operating rules and 

procedures; 

(iii) Conduct an operational test under 

§ 217.9 of this chapter; 

(iv) Monitor for unauthorized 

occupancy of a locomotive’s cab or a 

control cab locomotive’s operating 

compartment; 

(v) Investigate a violation of a 

criminal law; 

(vi) Assist Federal agencies in the 

investigation of a suspected or 

confirmed act of terrorism; or 

(vii) Perform inspection, testing, 

maintenance, or repair activities to 

ensure the proper installation and 

functioning of an image or audio 

recorder. 

(g) Locomotive image recording 

system approval process. Each railroad 

with locomotives in commuter or 

intercity passenger service subject to 

this section must provide the FRA 

Associate Administrator for Railroad 

Safety and Chief Safety Officer with a 

description of the technical aspects of 

any locomotive image recording system 

installed to comply with this section. 

The required description must be 

submitted via electronic mail to the 

following email address: FRARRSMPE@

dot.gov. 

(1) The description must include 

information specifically addressing the 

image recording system’s: 

(i) Minimum 12-hour continuous 

recording capability; 

(ii) Crashworthiness; and 

(iii) Post-accident accessibility of the 

system’s recordings. 

(2) The railroad must submit the 

statement not less than 90 days before 

the installation of such image recording 

system, or, for existing systems, not 

more than 60 days after November 13, 

2023. 

(3) The FRA Associate Administrator 

for Railroad Safety and Chief Safety 

Officer will review a railroad’s 

submission and must approve any 

locomotive image recording system 

intended to comply with this section 

before the system can be installed or put 

into service. FRA may disapprove any 

locomotive image recording systems 

that do not meet the requirements of 

this section. 

(h) Relationship to other laws. 

Nothing in this section is intended to 

alter the legal authority of law 

enforcement officials investigating 

potential violation(s) of State criminal 

law(s), and nothing in this section is 

intended to alter in any way the priority 

of investigations under 49 U.S.C. 1131 

and 1134, or the authority of the 

Secretary of Transportation to 

investigate railroad accidents under 49 

U.S.C. 5121, 5122, 20107, 20111, 20112, 

20505, 20702, 20703, and 20902. 

(i) Removal of device from service and 

handling for repair. A railroad may 

remove from service an image recording 

device on a locomotive in commuter or 

intercity passenger service, and must 

remove the device from service if the 

railroad knows the device is not 

properly recording. When a railroad 

removes a locomotive image recording 

device from service, a qualified person 

shall record the date the device was 

removed from service on Form FRA F 

6180–49AP, under the REMARKS 

section. Except as provided in this 

paragraph, a locomotive on which an 

image recording device has been taken 

out of service as provided in this 

paragraph may remain as the lead 

locomotive only until the next calendarday inspection required under § 229.21. 

A locomotive with an inoperative image 

recording device alone is not deemed to 

be in an improper condition, unsafe to 

operate, or a non-complying locomotive 

under §§ 229.7 and 229.9. A locomotive 

in a long-distance intercity passenger 

train, as defined in § 238.5 of this 

chapter, with a non-operational image 

recording device may remain as the lead 

locomotive until arrival at its 

destination terminal or its nearest 

forward point of repair, whichever 

occurs first. 

(j) Disabling or interfering with 

locomotive-mounted audio and video 

recording equipment. Any individual 

who willfully disables or interferes with 

the intended functioning of locomotivemounted image or audio recording 

system equipment on a passenger 

locomotive, or who tampers with or 

alters the data recorded by such 

equipment, is subject to a civil penalty 

and to disqualification from performing 

safety-sensitive functions on a railroad 

as provided in parts 209 and 218 of this 

chapter. 

(k) As used in this section—Train 

means (1) A single locomotive; 

(2) Multiple locomotives coupled 

together; or 

(3) One or more locomotives coupled 

with one or more cars. 

(l) Freight rescue locomotives. The 

requirements of this section do not 

apply to a freight locomotive when used 

to haul a passenger train due to the 

failure of a passenger locomotive. 

■ 12. Revise the introductory paragraph 

of appendix D to part 229 to read as 

follows: 

Appendix D to Part 229—Criteria for 

Certification of Crashworthy Event 

Recorder Memory Module 

Section 229.135(b) requires railroads to 

equip certain locomotives with an event 

recorder that includes a certified crashworthy 

event recorder memory module. Section 

229.136(a)(1) requires passenger railroads to 

install locomotive-mounted image recording 

systems in every lead locomotive used in 

commuter or intercity passenger service. As 

required by § 229.136(a)(5), data from these 

image and voluntarily installed audio 

recording systems must be recorded on a 

certified crashworthy memory module or on 

an alternative, remote storage system that 

provides at least equivalent data protections 

and is approved by FRA under § 229.136(g). 

This appendix prescribes the requirements 

for certifying an event recorder memory 

module (ERMM) or a locomotive-mounted 

audio and/or image recording device memory 

module as crashworthy. For purposes of this 


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appendix, a locomotive-mounted audio or 

image recording device memory module is 

also considered an ERMM. This appendix 

includes the performance criteria and test 

sequence for establishing the 

crashworthiness of the ERMM and marking 

the event recorder or locomotive-mounted 

image or audio recording system containing 

the crashworthy ERMM. 

* * * * * 

PART 299—TEXAS CENTRAL 

RAILROAD HIGH-SPEED RAIL SAFETY 

STANDARDS 

■ 13. The authority citation for part 299 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20133, 

20141, 20302–20303, 20306, 20701–20702, 

21301–21302, 21304; 28 U.S.C. 2461, note; 

and 49 CFR 1.89. 

■ 14. In § 299.5, add definitions for the 

terms ‘‘Event recorder memory 

module,’’ ‘‘Image recording system’’, 

and ‘‘Image recording device’’ to read as 

follows: 

§ 299.5 Definitions. 

* * * * * 

Event recorder memory module means 

that portion of an event recorder used to 

retain the recorded data as described in 

§§ 299.439(c) and 299.449(a) through 

(c). 

* * * * * 

Image recording device means a 

device that records images, as described 

in § 299.449. 

Image recording system means a 

system of electronic devices capable of 

recording images as described in 

§ 299.449, and any components that 

convert those images into electronic 

data transmitted to, and stored on, a 

certified crashworthy memory module 

as described in appendix A to this part. 

* * * * * 

■ 15. Add § 299.449 to read as follows: 

§ 299.449 Trainset image and audio 

recording system. 

(a) Duty to equip and record. (1) Each 

trainset used in revenue service must be 

equipped with an image recording 

system comprised of— 

(i) Outward-facing image recording 

devices capable of recording images of 

the right-of-way ahead of the trainset in 

the direction of travel as further 

described in paragraph (b) of this 

section; and, 

(ii) Inward-facing image recording 

devices capable of recording images of 

crewmember activities inside the 

leading trainset cab as further described 

in paragraph (c) of this section. 

(2) The image recording system must 

be turned on and recording whenever a 

trainset is in motion, at all speeds. If 

operating circumstances cause the 

controlling cab to be other than the cab 

of the leading end of the trainset, the 

railroad must also record images of 

activities inside the controlling cab. 

(3) The trainset image recording 

system shall record at a minimum the 

most recent 12 hours of operation of a 

leading trainset cab used in revenue 

service. 

(4) Image recording device data for 

each leading trainset cab used in 

revenue service shall be recorded on a 

memory module meeting the 

requirements for a certified crashworthy 

event recorder memory module 

described in appendix A to this part or 

on an alternative, remote storage system 

that provides at least equivalent data 

protections and is approved by FRA 

under paragraph (g) of this section. 

(b) Outward-facing recording device 

requirements for leading trainset cabs 

used in revenue service. The image 

recording system shall— 

(1) Include an image recording device 

aimed parallel to the centerline of 

tangent track within the gauge on the 

leading end of the trainset; 

(2) Be able to distinguish the signal 

aspects displayed by go/no-go signals; 

(3) Record at a minimum frame rate of 

15 frames per second (or its equivalent); 

(4) Have sufficient resolution, as 

defined by the railroad in the railroad’s 

inspection, testing, and maintenance 

program under § 299.445, to record the 

position of switch points in advance of 

the trainset at speeds of 170 km/h (106 

mph) and below, and to capture images 

in daylight or with normal nighttime 

illumination from the headlight of the 

trainset; and 

(5) Include an accurate time and date 

stamp on image recordings. 

(c) Inward-facing image recording 

device requirements for leading trainset 

cabs used in revenue service. (1) The 

image recording system shall include an 

image recording device positioned to 

provide complete coverage of all areas 

of the leading trainset cab where a 

crewmember typically may be 

positioned, including complete coverage 

of the instruments and controls required 

to operate the trainset in normal use, 

and— 

(i) Have sufficient resolution, as 

defined in the railroad’s inspection, 

testing, and maintenance program under 

§ 299.445, to record crewmember 

actions; 

(ii) Record at a minimum frame rate 

of 5 frames per second; 

(iii) Be capable of using ambient light 

in the cab, and when ambient light 

levels drop too low for normal 

operation, automatically switch to 

infrared or another operating mode that 

enables the recording sufficient clarity 

to comply with the requirements of this 

paragraph (c)(1); and 

(iv) Include an accurate time and date 

stamp on image recordings. 

(2) Inward-facing image recording 

devices shall not be installed in a 

location where the device can record 

activities within a trainset cab’s 

sanitation compartment, as defined in 

§ 229.5 of this chapter, and shall not be 

used to make recordings of any 

activities within a trainset cab’s 

sanitation compartment. 

(3) If a leading trainset cab used in 

revenue service experiences a technical 

failure of its inward-facing image 

recording system, then the system shall 

be removed from service and handled in 

accordance with paragraph (i) of this 

section. 

(d) Image recording system protection 

requirements for leading trainset cabs 

used in revenue service. The railroad 

must provide convenient wired or 

wireless connections to allow 

authorized railroad personnel to 

download audio or image recordings 

from any certified crashworthy event 

recorder memory module in leading 

trainset cabs used in revenue service. 

The railroad also must use electronic 

security measure(s), and apply 

appropriate cybersecurity measures, to 

prevent unauthorized access to, and 

download, deletion, or alteration of, the 

recording system or its recordings. 

(e) Inspection, testing, and 

maintenance for image recording 

systems in leading trainset cabs used in 

revenue service. (1) The image recording 

system in trainsets used in revenue 

service shall have self-monitoring 

features to assess whether the system is 

operating properly, including whether 

the system is powered on. 

(2) Periodic inspection requirements 

for the trainset image recording system 

shall be defined in the railroad’s 

inspection, testing, and maintenance 

program required under § 299.445. As 

part of the periodic inspection, the 

railroad shall take sample download(s) 

from the image recording system’s 

crashworthy memory module to confirm 

proper operation of the system, and, if 

necessary, repair the system to full 

operation. 

(f) Handling of recordings. (1) Chainof-custody procedure. The railroad shall 

develop, adopt, maintain, and comply 

with a chain-of-custody procedure 

governing the handling and the release 

of the image recordings described in 

paragraphs (a) through (c) of this section 

and any audio recordings. The chain-ofcustody procedure must specifically 

address the preservation and handling 

requirements for post-accident/incident 


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recordings provided to FRA or other 

Federal agencies under paragraph (f)(2) 

of this section. 

(2) Accident/incident preservation. If 

any trainset equipped with an image or 

audio recording system is involved in 

an accident/incident that must be 

reported to FRA under part 225 of this 

chapter, the railroad shall, to the extent 

possible, and to the extent consistent 

with the safety of life and property, 

preserve the data recorded by the 

system for analysis by FRA or other 

Federal agencies. The railroad must 

either provide the image and/or audio 

data in a format readable by FRA or 

other Federal agencies; or make 

available to FRA or other Federal 

agencies any platform, software, media 

device, etc., that is required to play back 

the image and/or audio data. This 

preservation requirement shall expire 

one year after the date of the accident 

unless FRA or another Federal agency 

notifies the railroad in writing that it 

must preserve the recording longer. The 

railroad may extract and analyze such 

data for the purposes described in 

paragraph (f)(3) of this section, only if— 

(i) The original downloaded data file, 

or an unanalyzed exact copy of it, is 

retained in secure custody under the 

railroad’s procedure adopted under 

paragraph (f)(1) of this section; and 

(ii) It is not utilized for analysis or any 

other purpose, except by direction of 

FRA or another Federal agency. 

(3) Recording uses. Subject to the 

conditions specified in paragraph (f)(2) 

of this section, the railroad may use 

image and audio recordings from a 

leading trainset cab used in revenue 

service subject to this section to— 

(i) Investigate an accident/incident 

that is required to be reported to FRA 

under part 225 of this chapter; 

(ii) Investigate a violation of a Federal 

railroad safety law, regulation, or order, 

or the railroad’s operating rules and 

procedures; 

(iii) Conduct an operational test under 

§ 299.505; 

(iv) Monitor for unauthorized 

occupancy of a trainset’s cab or 

operating compartment; 

(v) Investigate a violation of a 

criminal law; 

(vi) Assist Federal agencies in the 

investigation of a suspected or 

confirmed act of terrorism; or 

(vii) Perform inspection, testing, 

maintenance, or repair activities to 

ensure the proper installation and 

functioning of an image or audio 

recorder as required under paragraph 

(e)(2) of this section. 

(g) Image recording system approval 

process. The railroad must submit for 

approval a description of the technical 

aspects of its trainset image recording 

system installed pursuant this section. 

The required description must be 

submitted via electronic mail to the 

following email address: FRARRSMPE@

dot.gov. 

(1) The description must specifically 

address the image recording system’s— 

(i) Minimum 12-hour continuous 

recording capability; 

(ii) Crashworthiness; and 

(iii) Post-accident accessibility of the 

system’s recordings. 

(2) The railroad must submit the 

written statement not less than 90 days 

before the installation of such image 

recording system. 

(3) The Associate Administrator will 

review the railroad’s description and 

may approve, or disapprove, the image 

recording system if it does not meet the 

requirements of this section. FRA may 

disapprove any recording systems that 

do not meet the requirements of this 

section. 

(h) Relationship to other laws. 

Nothing in this section is intended to 

alter the legal authority of law 

enforcement officials investigating 

potential violation(s) of State criminal 

law(s), and nothing in this section is 

intended to alter in any way the priority 

of investigations under 49 U.S.C. 1131 

and 1134, or the authority of the 

Secretary of Transportation to 

investigate railroad accidents under 49 

U.S.C. 5121, 5122, 20107, 20111, 20112, 

20505, 20702, 20703, and 20902. 

(i) Removal of an image recording 

system or device from service and 

handling for repair. (1) Notwithstanding 

the duty established in paragraph (a) of 

this section to equip trainsets cabs used 

in revenue service with an image 

recording system, the railroad— 

(i) May remove from service the entire 

image recording system or an image 

recording device in a leading trainset 

cab used in revenue service for any 

reason. 

(ii) Must remove from service the 

entire image recording system or an 

image recording device in a leading 

trainset cab used in revenue service if 

the railroad knows the system or device 

is not properly recording. 

(2) When a railroad removes the entire 

image recording system or an image 

recording device in a leading trainset 

cab used in revenue service from 

service, a qualified person shall record 

the date the system or device was 

removed from service in the trainset’s 

maintenance records. 

(3) A trainset on which the entire 

image recording system, or an image 

recording device in a leading trainset 

cab used in revenue service, has been 

taken out of service as provided in 

paragraphs (i)(1)(i) or (ii) of this section 

may be used as a leading trainset cab in 

revenue service only until the next preservice inspection required under the 

railroad’s inspection, testing, and 

maintenance program. 

(4) A trainset with an image recording 

device that has been taken out of service 

on only one cab end may be used in 

revenue service beyond the next preservice inspection without repair 

provided the other cab end is the 

leading end of the trainset and the 

image recording system is otherwise 

operative for that cab end. 

(5) A trainset with an inoperative 

image recording device alone is not 

deemed to be in an improper condition, 

unsafe to operate, or non-complying 

under § 299.447. However, a trainset 

with an entire image record system 

taken out of service or image recording 

devices taken out service in both cab 

ends, may not be used in revenue 

service beyond the next pre-service 

inspection required under the railroad’s 

inspection, testing, and maintenance 

program without repair or replacement 

of the non-operative system or devices. 

(j) Disabling or interfering with 

locomotive-mounted audio and video 

recording equipment. Any individual 

who willfully disables or interferes with 

the intended functioning of image or 

audio recording system equipment 

mounted in a leading trainset cab used 

in revenue service, or who tampers with 

or alters the data recorded by such 

equipment, is subject to a civil penalty 

and to disqualification from performing 

safety-sensitive functions on a railroad 

as provided in parts 209 and 218 of this 

chapter. 

(k) Employee protections. (1) If 

inward-facing image or in-cab audio 

trainset recordings are utilized to 

conduct operational tests and 

inspections under § 299.505, the 

railroad 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 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 the railroad’s discretion; and 

(iii) Require that any operational test 

or inspection using trainset image or 

audio recordings be performed within 

72 hours of the completion of the 


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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, or 

orders, or any criminal laws. 

(2) FRA may review the railroad’s 

procedure implementing paragraph 

(k)(1) of this section, and, for cause 

stated, may disapprove such procedure 

under § 299.505(h). 

■ 16. Revise the introductory paragraph 

of appendix A to part 299 to read as 

follows: 

Appendix A to Part 299—Criteria for 

Certification of Crashworthy Event 

Recorder Memory Module 

Section 299.439(c) requires that trainsets 

be equipped with an event recorder that 

includes a certified crashworthy event 

recorder memory module. Section 

299.449(a)(1) requires the railroad to install 

an image recording system in its trainsets 

used in revenue service. As required by 

§ 299.449(a)(4), data from these image 

recording systems must be recorded on a 

certified crashworthy memory module or an 

alternative, remote storage system that 

provides at least equivalent data protections 

and is approved by FRA under § 299.15. This 

appendix prescribes the requirements for 

certifying an event recorder memory module 

(ERMM) or a trainset-mounted audio and/or 

image recording device memory module as 

crashworthy. For purposes of this appendix, 

a trainset-mounted audio or image recording 

system memory module is also considered an 

ERMM. This appendix includes the 

performance criteria and test sequence for 

establishing the crashworthiness of the 

ERMM as well as the marking of the event 

recorder containing the crashworthy ERMM. 

* * * * * 

Issued in Washington, DC. 

Amitabha Bose, 

Administrator. 

[FR Doc. 2023–21291 Filed 10–11–23; 8:45 am] 

BILLING CODE 4910–06–P 


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