Restrictions on Railroad Operating Employees' Use of Cellular Telephones and Other Electronic Devices, 27672-27690 [2010-11484]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 75, Number 95 (Tuesday, May 18, 2010)]
[Proposed Rules]
[Pages 27672-27690]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-11484]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 220

[Docket No. FRA-2009-0118]
RIN 2130-AC21


Restrictions on Railroad Operating Employees' Use of Cellular 
Telephones and Other Electronic Devices

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to amend its railroad communications 
regulations by restricting use of mobile telephones and

[[Page 27673]]

other distracting electronic devices by railroad operating employees. 
This proposed rulemaking would codify most of the requirements of FRA 
Emergency Order No. 26, which would be supplanted by the final rule. 
FRA proposes that some of the substantive requirements of that order as 
well as its scope be changed by this rulemaking to accommodate changes 
previously recommended by a petition for review of that order and a 
number of additional amendments that FRA believes are appropriate. In 
addition, FRA is requesting comment regarding whether violations of 
this proposed subpart should be a basis for revoking a locomotive 
engineer's certification.

DATES: Written comments must be received by June 17, 2010. Comments 
received after that date will be considered to the extent possible 
without incurring additional delay or expense. FRA anticipates being 
able to resolve this rulemaking without a public, oral hearing. However 
if FRA receives a specific request for a public, oral hearing prior to 
June 17, 2010, one will be scheduled, and FRA will publish a 
supplemental notice in the Federal Register to inform interested 
parties of the date, time, and location of any such hearing.

ADDRESSES: Comments: Comments related to this Docket No. FRA-2009-0118 
may be submitted by any of the following methods:
     Federal eRulemaking Portal: Go to https://www.Regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington, 
DC 20590-0001.
     Hand Delivery: Docket Management Facility, U.S. Department 
of Transportation, West Building, Ground floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal holidays.
     Fax: 202-493-225.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Please note that all comments received will be posted 
without change to https://www.Regulations.gov, including any personal 
information provided. Please see the discussion under the Privacy Act 
heading in the Supplementary Information section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.Regulations.gov at any time or 
visit the Docket Management Facility, U.S. Department of 
Transportation, West Building, Ground floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC between 9 a.m. and 5 p.m. ET, Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Douglas H. Taylor, Staff Director-
Operating Practices, Office of Railroad Safety, FRA, 1200 New Jersey 
Avenue, SE., Washington, DC 20590 (telephone: (202) 493-6255); Ann M. 
Landis, Trial Attorney, Office of the Chief Counsel, FRA, 1200 New 
Jersey Avenue, SE., Washington, DC 20950 (telephone: (202) 493-6064); 
or Joseph St. Peter, Trial Attorney, Office of the Chief Counsel, FRA, 
1200 New Jersey Avenue, SE., Washington, DC 20950 (telephone: (202) 
493-6047).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Distracted Driving and its Transportation Safety Consequences
    A. Background Information
    B. Justification for the Rulemaking
    C. Distracted Driving Impacts All Transportation Modes
    1. Aviation
    2. Rail
    3. Motorcoach
    D. Legal Basis for the Rulemaking
    E. Studies
    1. National Motor Vehicle Crash Causation Survey (NMVCCS)
    2. 100-Car Naturalistic Driving Study
    3. National Occupant Protection Use Survey (NOPUS)
    4. Motor Vehicle Occupant Safety Survey (MVOSS)
    F. Other Efforts
    1. State Action
    2. Federal Action
II. Summary of Proposed Rule
III. Comments from Interested Parties on Railroad Operating Employee 
Use of Electronic Devices
    A. General
    B. Deadheading Employees
    C. Cameras
    D. Calculators
    E. GPS [Global Positioning System] Devices
IV. Other Considerations
    A. Medical Devices
    B. Exception for Working Wireless Communication Devices for 
Train Movements
    C. Locomotive Engineer Certification Revocation
V. Enforcement Issues
VI. Section-by-Section Analysis
VII. Regulatory Impact
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    1. Description of Regulated Entities and Impacts
    2. Certification
    C. Paperwork Reduction Act
    D. Environmental Impact
    E. Federalism Implications
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Privacy Act Statement
    I. Executive Order 12988

I. Distracted Driving and Its Transportation Safety Consequences

A. Background Information

    The increasing number of distractions for drivers has led to 
increasing safety risks. The distractions caused by cell phones (mobile 
phones/cellular phones) have been a concern for years. In addition, 
each day, drivers are distracted by eating, conversations with 
passengers, using portable electronic devices, or some other type of 
multitasking. This type of behavior results in vehicle accidents and 
significant costs to our nation's economy.
    In response to this growing problem, DOT hosted a Distracted 
Driving Summit in Washington, DC (https://www.distraction.gov/dot/). At 
the Summit, DOT brought together safety and law enforcement experts as 
well as young adults whose distracted driving had tragic consequences. 
Attendees heard the testimony of families who lost loved ones because 
someone else had chosen to send a text message, dial a phone, or become 
occupied with another activity while driving. In addition to hosting 
the Summit, DOT has reviewed recent research and has decided to take a 
more systematic look at the issue and its many dimensions.

B. Justification for the Rulemaking

    FRA has discovered numerous examples proving the danger of 
distracting electronic devices. These examples indicate the necessity 
of restrictions on the use of such electronic devices. Five of these 
accidents are described below, though all of these and more can be 
found in the full text of the Order.
    1. On June 8, 2008, a Union Pacific Railroad Company (UP) brakeman 
was struck and killed by the train to which he was assigned. FRA's 
investigation indicated that the brakeman instructed the locomotive 
engineer via radio to back the train up and that the brakeman 
subsequently walked across the track, into the path of the moving 
train. The brakeman was talking on his cell phone at the time of the 
accident.
    2. On July 1, 2006, a northward BNSF Railway Company (BNSF) freight 
train collided with the rear of a standing BNSF freight train at 
Marshall, Texas. Although there were no injuries, there were estimated 
damages of $413,194.

[[Page 27674]]

Both trains had two-person crews. The striking train had passed a 
``Stop and Proceed at Restricted Speed'' signal indication and was 
moving at 20 mph. FRA determined that the collision was caused by the 
failure of the locomotive engineer on the striking train to comply with 
restricted speed and that he was engaged in cell phone conversations 
immediately prior to the accident.
    3. On December 21, 2005, a contractor working on property of The 
Kansas City Southern Railway Company at Copeville, Texas was struck and 
killed when he stepped into the path of an approaching freight train. 
FRA's investigation disclosed that the contractor was talking on a cell 
phone at the time of the accident.
    4. One locomotive engineer died and a train conductor suffered 
serious burns when two BNSF freight trains collided head-on near 
Gunter, Texas on May 19, 2004. The collision resulted in the derailment 
of 5 locomotives and 28 cars, with damages estimated at $2,615,016. 
Approximately 3,000 gallons of diesel fuel were released from the 
locomotives, which resulted in a fire. NTSB investigators obtained 
records that showed the number and duration of cell phone calls made by 
crewmembers on both trains between 1:50 p.m. and the time of the 
accident, approximately 5:46 p.m. During this time, a total of 22 
personal cell phone calls were made and/or received by the five 
crewmembers on both trains while the trains were in motion.
    5. At 8:57 a.m. on May 28, 2002, an eastbound BNSF coal train 
collided head on with a westbound BNSF intermodal train near Clarendon, 
Texas. The conductor and engineer of the coal train received critical 
injuries. The engineer of the intermodal train was killed. The cost of 
the damages exceeded $8,000,000. The NTSB found that all four 
crewmembers involved in this accident had personal cell phones. It also 
found that the use of a cell phone by the engineer of one of the trains 
may have distracted him to the extent that he was unaware of the 
dispatcher's instructions that he stop his train at a designated point.
    On October 1, 2008, FRA issued Emergency Order No. 26 (Order or EO 
26) restricting the on-duty use of cellular telephones and other 
electronic devices. 73 FR 58702, Oct. 7, 2008). This FRA action was in 
part a response to the accidents discussed above and in part a response 
to the September 12, 2008 head-on collision between a Southern 
California Regional Rail Authority (Metrolink) commuter train and a UP 
freight train in Chatsworth, California. This accident resulted in 25 
deaths, numerous injuries, and more than $7 million in damages. 
Information discovered during the NTSB investigation indicates that the 
locomotive engineer of the Metrolink commuter train passed a stop 
signal. NTSB stated that a cell phone owned by the commuter train 
engineer was being used to send a text message within 30 seconds of the 
time of the accident.
    In the period from the effective date of the Order, October 27, 
2008, through December 7, 2009, FRA inspectors discovered approximately 
200 instances in which the Order may have been violated. FRA's Office 
of Railroad Safety recommended enforcement action against the employee 
or railroad in 36 of these instances. All 36 of these actions were 
based on a railroad employee's using an electronic device, failing to 
have its earpiece removed from the employee's ear, or failing to have 
the device turned off in a potentially unsafe situation. Of these 36 
instances, approximately half of them involved an employee using or 
failing to have a cell phone turned off while in the cab of a 
locomotive during a potentially hazardous time. In addition, 33 of the 
incidents recommended for enforcement action involved personal, as 
opposed to railroad-supplied, devices. The hazard of distracting 
electronic devices has been made abundantly and, at times, tragically 
clear. FRA inspectors have noticed a decrease in the unsafe use of 
electronic devices within locomotive cabs since the Order became 
effective, but the problem still exists.
    FRA has considered the costs and benefits of this proposed rule. 
Relative to the current requirements of EO 26, the only additional 
burden produced by the requirements of this proposed rule is that 
related to revising programs and initial training focused on the 
exceptions that this proposal would introduce. This added burden would 
total approximately $286,000. The exceptions to the existing 
restrictions on the use of electronic devices would allow for greater 
flexibility with respect to the use of certain electronic devices while 
maintaining the safety benefits intended. Thus, when compared to the 
existing requirements, the added flexibility would justify the 
relatively minor cost burden. In an effort to also evaluate the 
requirements that would be transferred from EO 26 to Part 220, FRA 
examined costs and benefits relative to conditions prior to issuance of 
EO 26 in the format of break-even analyses, which can be relied upon to 
indicate likely net benefit outcomes. Applying highly conservative 
assumptions, 20-year direct and indirect costs could total as much as 
$22.4 million (discounted at 7%) or $30.2 million (discounted at 3%). 
The break-even analyses show that, in all scenarios considered, it 
would not require an unreasonable decrease in the probability of an 
accident in order to at least break even. As discussed more completely 
in the Regulatory Impact Analysis accompanying this proposed rule, the 
frequency and severity of accidents together with the observed rising 
incidence of improper use of cell phones and other electronic devices 
strongly suggest that the elimination of improper electronic device 
usage by railroad operating employees, as proposed in this rule, will 
prevent more than one fatality every two years, and therefore, that the 
benefits of the requirements proposed exceed the costs.

C. Distracted Driving Impacts All Transportation Modes

    The use of cell phones and other electronic devices has become 
ubiquitous in American society. There is strong evidence that people 
permit electronic devices to distract them from driving all kinds of 
vehicles and that such distractions can have serious safety 
consequences.
1. Aviation
    On October 21, 2009, Northwest Airlines Flight 188 was enroute from 
San Diego to Minneapolis-St. Paul International/Wold-Chamberlain 
Airport with 144 passengers. Flight 188 overflew its destination 
airport by approximately 150 miles before air traffic controllers were 
able to contact the crew via radio. After the incident, the pilot and 
first officer told the NTSB that they had lost track of the plane's 
location because they had been distracted in the cockpit while using 
personal laptop computers and discussing airline crew scheduling 
procedures. Using personal laptop computers in the cockpit was a 
violation of airline policy, and the Federal Aviation Administration 
suspended the certificates of both the pilot and first officer on 
October 27, 2009.
2. Rail
    See the discussion above.
3. Motorcoach
    On November 14, 2004, a bus struck a bridge on the George 
Washington Parkway in Alexandria, Virginia, a serious accident that 
destroyed the roof of the motorcoach and injured 11 students, including 
one seriously. As determined by an NTSB investigation, the bus driver 
said he had been talking on a hands-free cell phone at the time

[[Page 27675]]

of the accident. Records from the bus driver's personal cell phone 
service provider showed that the bus driver initiated a 12-minute call 
on the morning of the accident. The driver said that he saw neither the 
warning signs nor the bridge itself before the impact. Evidence 
indicates that he did not apply any brakes before impacting the bridge. 
The NTSB concluded that the bus driver's cell phone conversation at the 
time of the accident diverted his attention from driving.
    This crash resulted in the NTSB recommendation H-06-27 that 
commercial driver's license (CDL) holders with a passenger-carrying or 
school bus endorsement be prohibited from using cell phones or other 
personal electronic devices while driving those vehicles.
    Statistics show that distraction from the primary task of driving 
presents a serious and potentially deadly danger. In 2008, 5,870 people 
lost their lives and an estimated 515,000 people were injured in 
police-reported crashes in which at least one form of driver 
distraction was reported on the crash report. While these numbers are 
significant, they may not state the true size of the problem, since it 
is difficult to identify distraction and its role in a crash. See 
https://www.dot.gov/affairs/DOT%20HS%20811%20216.pdf.
    First, the data are based largely on police accident reports that 
are conducted after the crash has occurred. These reports vary across 
police jurisdictions, thus creating potential inconsistencies in 
reporting. Some police accident reports identify distraction as a 
distinct reporting field, while others identify distraction from the 
narrative portion of the report. Further, the data includes only those 
crashes in which at least one form of driver distraction was actually 
reported by law enforcement, thus creating the potential for an 
undercount.
    In addition to, and contributing to, inconsistent reporting of 
distraction on police accident reports, there are challenges in 
determining whether the driver was distracted at the time of the crash. 
Self-reporting of negative behavior, such as distracted driving, is 
likely lower than actual occurrence of that behavior. Law enforcement 
must also rely on crash investigation information to determine if 
distraction was involved in those crashes with a driver death. The 
information available to law enforcement may not indicate distraction 
even where it was a cause of or a factor in the accident. For these 
additional reasons, reported crashes involving distraction may be 
undercounted.

D. Legal Basis for the Rulemaking

    Congress required the Secretary of Transportation (Secretary) to 
complete a study on the safety impact of the use of personal electronic 
devices by safety-related railroad employees by October 16, 2009, and 
to report to Congress on the results of the study within six months 
after its completion. See Sec. 405(a) and (c) of the Rail Safety 
Improvement Act of 2008 (RSIA), Public Law 110-432, Div. A, 122 Stat. 
4848, Oct. 16, 2008 (122 Stat. 4885, 49 U.S.C. 20103 note). Sec. 405(d) 
of the RSIA authorizes the Secretary to prohibit the use of personal 
electronic devices that may distract employees from safely performing 
their duties based on the conclusions of the required study. The 
Secretary, in turn, has delegated the responsibility to carry out these 
duties and to exercise this authority to the Administrator of FRA. 49 
CFR 1.49(oo). In addition, the Secretary has delegated general 
rulemaking authority to the Administrator, which FRA also is relying on 
for this proposed regulation. 49 CFR 1.49(m).

E. Studies

    Due to differences in methodology and definitions of distraction, 
any study or survey conducted may arrive at different results and 
conclusions with respect to the involvement of driver distraction in 
causing a crash. A 2008 research paper sponsored by the National 
Highway Traffic Safety Administration (NHTSA) entitled, Driver 
Distraction: A Review of the Current State-of-Knowledge, discusses 
multiple means of measuring the effects of driver distraction including 
observational studies of driver behavior, crash-based studies, and 
experimental studies of driving performance. Each type of study has its 
own set of advantages and disadvantages.\1\
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    \1\ Ranney, Thomas A. (2008). ``Driver Distraction: A Review of 
the Current State-of-Knowledge.'' DOT HS 810 787. Available online 
at:https://www.scribd.com/doc/12073978/Driver-Distraction-A-Review-of-the-Current-StateofKnowledge. A more comprehensive listing of 
research on distracted driving, which includes links to many of the 
reports discussed in this analysis, can be found online at: https://www.nhtsa.dot.gov/portal/site/nhtsa/template.MAXIMIZE/menuitem.8f0a414414e99092b477cb30343c44cc/?javax.portlet.tpst=4670b93a0b088a006bc1d6b760008a0c_ws_MX&javax.portlet.prp_4670b93a0b088a006bc1d6b760008a0c_viewID=detail_view&itemID=97b964d168516110VgnVCM1000002fd17898RCRD&overrideViewName=Article.
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1. National Motor Vehicle Crash Causation Survey (NMVCCS)
    NHTSA recently conducted a nationwide survey of crashes involving 
light passenger vehicles with a focus on factors related to pre-crash 
events.\2\ The NMVCCS investigated a total of 6,950 crashes during the 
three-year period from January 2005 to December 2007. The report used a 
nationally representative sample of 5,471 crashes that were 
investigated during a two-and-a-half-year period from July 3, 2005, to 
December 31, 2007. Based on the sampling method of the survey, findings 
were representative of the nation as a whole.
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    \2\ National Highway Traffic Safety Administration (2009). 
``National Motor Vehicle Crash Causation Survey: Report to 
Congress.'' DOT HS 811 059. Available online at: https://www-nrd.nhtsa.dot.gov/Pubs/811059.PDF.
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    Survey researchers were able to assess the critical event that 
preceded the crash, the reason for this event, and any other associated 
factors that might have played a role. Examples of the critical event 
preceding the crash include running off the edge of the road, failure 
to stay in the proper lane, or loss of control of the vehicle. 
Researchers assessed the reason underlying this critical event and 
attributed that reason to either the driver, the condition of the 
vehicle, failure of the vehicle systems, adverse environmental 
conditions, or roadway design. Each of these areas was further broken 
down to determine more specific critical reasons. For the driver, 
critical reasons included facets of driver distraction and, therefore, 
NMVCCS was able to quantify driver distraction involvement in crashes. 
The percentages included in this discussion are based on 5,471 crashes.
    In addition to reporting distraction as the critical reason for the 
pre-crash event, NMVCCS also reported crash-associated factors. These 
are factors such as interior distractions that likely added to the 
probability of a crash occurrence. In cases where the researchers 
attributed the critical reason of the pre-crash event to a driver, 
researchers also attempted to determine the role and type of 
distraction. Of the crashes studied, about 18 percent of the drivers 
were engaged in at least one interior (i.e., in-vehicle) non-driving 
activity (e.g., looking at other occupants, dialing or hanging up a 
phone, or conversing with a passenger). For the most part, that 
activity was conversing either with other passengers or on a cell 
phone, as a total of about 12 percent of drivers in these crashes were 
engaged in conversation. Drivers between ages of 16 and 25 demonstrated 
the highest rate of being engaged in at least one interior non-driving 
activity.
2. 100-Car Naturalistic Driving Study
    The 100-Car Naturalistic Driving Study was an observational study--
via

[[Page 27676]]

instrumented vehicles--to provide details on driver performance, 
behavior, environment, and other factors associated with critical 
incidents, near-crashes, and crashes for 100 cars over a one-year 
period.\3\ This exploratory study was conducted to determine the 
feasibility of a larger-scale study that would be more representative 
of the nation's driving behavior. Despite the small scale of the 100-
Car study, extensive information was obtained on 241 primary and 
secondary drivers over a 12- to 13-month period occurring between 
January, 2003, and July, 2004. The data covered approximately 2 million 
vehicle miles driven and 43,000 hours of driving. As stated in An 
Overview of the 100-Car Naturalistic Study and Findings, ``the goal of 
this study was to maximize the potential to record crash or near crash 
events through the selection of subjects with higher than average crash 
or near crash risk exposure.'' \4\ In order to achieve this goal, the 
100-car study selected a larger sample of drivers who were 18-25 years 
of age and who drove more than average.
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    \3\ Dingus, T.A. et al. (2006). ``The 100-Car Naturalistic 
Driving Study, Phase II--Results of the 100-Car Field Experiment.'' 
DOT HS 810-593. Available online at: https://www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/NRD/Multimedia/PDFs/Crash%20Avoidance/Driver%20Distraction/100CarMain.pdf. Neale et al. (2005). ``An 
Overview of the 100-Car Naturalistic Study and Findings.'' NHTSA 
Paper Number 05-0400. Available online at: https://www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/NRD/Multimedia/PDFs/Crash%20Avoidance/Driver%20Distraction/100Car_ESV05summary.pdf.
    \4\ Neale et al., supra note 3.
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    Additionally, the subjects were selected from the Northern 
Virginia/Washington, DC metropolitan area which offers primarily urban 
and suburban driving conditions, often in moderate to heavy traffic. 
This type of purposive sample served well the intentions of the study; 
however, it also created limitations on the application of the 
findings. The findings of the 100-car study cannot be generalized to 
represent the behavior of the nation's population or the potential 
causal factors for the crashes that occur across the nation's roadways.
    During the 100-car study, complete information was collected on 69 
crashes, 761 near-crashes, and 8,295 incidents. The encompassing term 
inattention was classified during this study as (1) Secondary task 
involvement, (2) fatigue, (3) driving-related inattention to the 
forward roadway, and (4) non-specific eye glance away from the forward 
roadway. Secondary task involvement is defined for the study as driver 
behavior that diverts the driver's attention away from the driving 
task; this may include talking on a cell phone, eating, talking to a 
passenger, and other distracting tasks. Results of the 100-car study 
indicate that secondary task distraction contributed to over 22 percent 
of all the crashes and near-crashes recorded during the study 
period.\5\ This study found that when a secondary task took the 
driver's eyes off of the road for more than 2.0 seconds (out of a 6.0-
second time interval), the odds of a crash or near-crash event 
occurring significantly increased.
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    \5\ Klauer et al. (2006). ``The Impact of Driver Inattention on 
Near-Crash/Crash Risk: An Analysis Using the 100-Car Naturalistic 
Driving Study Data.'' DOT HS 810 594. Available online at: https://www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/NRD/Multimedia/PDFs/Crash%20Avoidance/Driver%20Distraction/810594.pdf.
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3. National Occupant Protection Use Survey (NOPUS)
    NHTSA's annual survey of occupant protection also collects data on 
electronic device use. NOPUS provides the only probability-based 
observed data on driver electronic device use in the United States.\6\ 
Based on the sampling method of the survey, findings are representative 
of the nation as a whole. In 2008, it was estimated that about 6 
percent of all drivers were using hand-held cell phones while driving 
during daylight hours. This finding means that about 812,000 vehicles 
on the road at any given daylight moment were being driven by someone 
using a hand-held cell phone in 2008. Survey data from the previous 
year yielded an even higher figure: according to NOPUS, in 2007 about 
1,005,000 vehicles were being driven by someone using a hand-held cell 
phone at any given daylight moment.\7\ Another finding was that in both 
2007 and 2008 an estimated 11 percent of vehicles in a typical daylight 
moment were driven by someone who was using some type of electronic 
device, either hand-held or hands-free.\8\
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    \6\ National Highway Traffic Safety Administration (2009). 
``Driver Electronic Device Use in 2008.'' DOT HS 811 184. Available 
online: https://www-nrd.nhtsa.dot.gov/Pubs/811184.PDF.
    \7\ National Highway Traffic Safety Administration (2008). 
``Driver Electronic Device Use in 2007.'' DOT HS 810 963. Available 
online at: https://www-nrd.nhtsa.dot.gov/Pubs/810963.PDF.
    \8\ NHTSA (2008) supra note 7 and NHTSA (2009) supra note 6.
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4. Motor Vehicle Occupant Safety Survey (MVOSS)
    The MVOSS is a periodic national telephone survey on occupant 
protection issues. The most recent administration of the survey was in 
2007. Volume 4, Crash Injury and Emergency Medical Services Report, 
includes discussion of questions pertaining to wireless phone use in 
the vehicle.\9\ According to the report summarizing the 2007 data, 81 
percent of drivers age 16 and older usually have a wireless phone in 
the vehicle with them when they drive. Drivers over the age of 54 were 
less likely than younger drivers to have them--87 percent of 16- to 54-
year olds, 74 percent of 55- to 64-year-olds, and 63 percent of drivers 
age 65 and older. Of those drivers who usually have a wireless phone in 
the vehicle, 85 percent said they keep the phone on during all or most 
of their trips. Among drivers who keep the phone turned on when they 
drive, 64 percent always or usually answer incoming phone calls.
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    \9\ Boyle, J. M and C. Lampkin (2008). ``2007 Motor Vehicle 
Occupant Safety Survey Volume 4: Crash Injury and Emergency Medical 
Services Report.'' DOT HS 810 977. See report summary dated March 
2009 online at: https://www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/Communication%20&%20Consumer%20Information/Traffic%20Tech%20Publications/Associated%20Files/tt371.pdf.
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    Of the drivers who usually have a wireless phone in the vehicle 
with them when they drive, 16 percent said they talk while driving 
during most or all of their trips, and 17 percent said they talk on 
their wireless phone during about half of their trips. On the other 
hand, 22 percent of individuals reported never talking on their phone 
while driving. When driving and wanting to dial the phone, 32 percent 
of those who at least occasionally talk on the phone while driving tend 
to dial the phone while driving the vehicle. An additional 37 percent 
tend to wait until they are temporarily stopped, and 19 percent tend to 
pull over to a stop to place the call. Ten percent stated they never 
dial while driving.

F. Other Efforts

1. State Action
    Rhode Island recently enacted a ban on text messaging, becoming the 
19th State (in addition to the District of Columbia and Guam) to 
prohibit all drivers from using a text messaging device to write or 
send a text message while operating a motor vehicle in motion or in the 
travel portion of a roadway. The law, effective November 10, 2009, 
makes the activity a primary enforcement crime with the potential of a 
civil penalty to be imposed and a fine if convicted.
2. Federal Action
    On October 1, 2009, during DOT's Distracted Driving Summit, the 
President issued Executive Order 13513 on ``Federal Leadership on 
Reducing Text Messaging While Driving.'' Among

[[Page 27677]]

other things, the Order prohibits all Federal employees from engaging 
in text messaging while--
     Driving Government-owned, -leased, or -rented vehicles;
     Driving privately-owned vehicles while on official 
Government business; and
     Using electronic equipment supplied by the Government 
(including, but not limited to, cell phones, BlackBerries, or other 
electronic devices) while driving any vehicle.

II. Summary of Proposed Rule

    The proposed rule largely codifies E.O. 26. Some substantive 
changes have been made in response to comments from interested parties 
and practical issues that FRA discovered since the Order was issued. 
FRA is proposing to keep many of the same restrictions on personal and 
railroad-supplied devices as in the Order, but has altered them 
somewhat to account more appropriately for such issues as calculators, 
cameras, and the usage of electronic devices by deadheading employees.

III. Comments from Interested Parties on Railroad Operating Employee 
Use of Electronic Devices

A. General

    FRA has already received significant input from a Railroad Safety 
Advisory Committee (RSAC) working group on the issue of railroad 
operating employees using electronic devices. At the time that FRA 
decided to issue an emergency order, FRA had already been working 
within the RSAC's Operating Rules Working Group to create an FRA Safety 
Advisory and was near a final draft. That proposed Safety Advisory and 
the suggestions and concerns voiced by members of the RSAC were 
instrumental in FRA's development of the Order.
    Despite these previous consultations and discussions with 
stakeholders, there was still concern about some of the requirements of 
the Order. On November 14, 2008, the United Transportation Union (UTU) 
and the Brotherhood of Locomotive Engineers and Trainmen (BLET) 
(collectively, ``Unions'') jointly filed a Petition for Review 
(Petition) of the Order. The Petition cited four concerns:
    (1) The Order did not exempt deadheading employees who were in the 
body of a passenger train or railroad business car, or inside of the 
cab of locomotive that was not the lead locomotive of the train;
    (2) The Order prohibited employees from taking a picture or video 
of a safety hazard with an electronic camera;
    (3) The Order prohibited the use of calculators;
    (4) The Order prohibited the use of Global Positioning System (GPS) 
tracking devices, even to verify the accuracy of the speed indicator in 
a controlling locomotive.
This proposed rule addresses the Unions' concerns and adopts the 
substance of many of their suggestions.
    The Association of American Railroads (AAR) responded to the 
Unions' Petition in a letter dated December 3, 2008. AAR asserted that 
the changes suggested in the Petition are unnecessary, could create 
distractions, or would make E.O. 26 ``difficult, if not impossible'' to 
enforce. AAR recommended that the changes suggested in the Petition 
should be ``scrutinized'' as part of the study of the use of ``personal 
electronic devices, including cell phones, video games, and other 
distracting devices'' that is required by Sec. 405 of RSIA or discussed 
within the RSAC before being adopted. FRA shared some of these concerns 
and considered the necessity and potential distractions of each of the 
proposed exceptions of the Unions' Petition. Additionally, in this 
proposed rule, FRA is endeavoring to protect the enforceability of 
limits on the use of electronic devices.

B. Deadheading Employees

    The Petition recommended adding an exception for deadheading 
employees to use cell phones. The specific language proposed was as 
follows:

    A railroad operating employee who is deadheading may use a cell 
phone while within the body of a passenger train or railroad 
business car, or while inside the cab of a locomotive that is not 
the lead locomotive of the train on which the employee is 
deadheading.

    FRA recognizes that the scope of the Order is far-reaching and in 
some cases, covers employees in situations in which the safety hazards 
that the Order was designed to prevent do not arise. The Order 
currently states, ``Use of a personal electronic or electrical device 
to perform any function other than voice communication while on duty is 
prohibited.'' A railroad operating employee is on duty even when he or 
she is simply deadheading to a duty station, even if the deadheading 
takes places in a motor vehicle. He or she is not, however, on duty nor 
off duty, but in limbo, if deadheading from a duty station to the point 
of final release and so is not currently covered by the Order even if 
he or she is distracting a locomotive engineer operating a train by 
talking on a cell phone right next to him or her. FRA has decided to 
address the issues in deadheading directly to guard against the hazards 
of distractions by electronic devices in a more focused and consistent 
manner.
    The proposed rule allows deadheading railroad operating employees 
who are not in the cab of a controlling locomotive to use electronic 
devices if that use does not interfere with an employee's personal 
safety or performance of safety-related duties. The proposed rule would 
require deadheading employees within the cab of a controlling 
locomotive to have electronic devices turned off when the train is 
moving or in other situations in which the crewmembers responsible for 
operating the train need to be able to focus. FRA believes that these 
proposed changes would restrict the use of electronic devices in a more 
appropriate manner to address safety concerns.

C. Cameras

    The Petition also recommended that cameras be permitted to document 
safety hazards. Specifically, it recommended the following language to 
be added as an exception:

    An electronic still or video camera may be used to document a 
safety hazard or a violation of a rail safety law, regulation, order 
or standard; provided, that (1) the use of a camera in the cab of a 
moving train may only be by a crew member other than the locomotive 
engineer, and (2) the use of a camera by a train employee on the 
ground is permissible only when (a) the employee is not fouling a 
track, (b) no switching operation is underway, (c) no other safety 
duties are presently required, and (d) all members of the crew have 
been briefed that operations are suspended. The use of the 
photographic function of a cell phone is permitted under these same 
conditions.

    FRA believes that allowing employees to document safety hazards 
could be useful in certain situations, but realizes that cameras can be 
exceptionally distracting. To that end, FRA is proposing the following: 
the camera may only be used to document a safety hazard or safety 
violation; the camera must be a stand-alone device and turned off 
immediately after the picture is taken; and the locomotive engineer 
must not take pictures in the cab of the controlling locomotive of a 
moving train.
    These conditions are reasonable. EO 26 currently has no exception 
for cameras. They can, however, serve a useful purpose if used properly 
but also create unsafe situations. To that end, FRA is proposing that a 
camera may be used only by someone other than the locomotive engineer 
and only to document safety hazards. In addition, the camera must be a 
stand-alone device. Enforcement of restrictions on

[[Page 27678]]

electronic devices is already difficult because the prohibited use 
often has to be witnessed first-hand for a violation to be discovered. 
If the exception existed as recommended by the Petition, railroad 
operating employees caught using their cell phones for sending a text 
message might allege that they were using the camera function instead. 
Requiring that the camera be a stand-alone device prevents this 
enforcement problem.

D. Calculators

    The use of calculators was another desired exception contained 
within the Petition. In particular, the Petition requested the 
following exemption:

    When mathematical calculations are required for safe train 
movement (e.g., managing correct horsepower per ton, calculating 
tons per operative brake, dynamic brake and tractive effort 
compliance, and correcting train length), it is permissible to 
perform such calculations by using an electronic calculator, or by 
using the calculator function of a cell phone or electronic 
timepiece.

    FRA agrees that train crews can have a legitimate need for a 
calculator in some instances. To that end, FRA has decided to exclude 
stand-alone calculators from all restrictions within this subpart as 
long as the calculator is used for an authorized business purpose and 
does not interfere with the performance of any employee's safety-
related duties. The proposed rule, however, does not permit the use of 
a calculator function of a cell phone or electronic timepiece, for the 
same reason that cameras must be stand-alone devices; enforcing limits 
on the use of electronic devices could be hampered by allowing some 
uses but not others of a device at any given time.

E. GPS Devices

    Noting that FRA regulations require speed indicators of most 
locomotives to be checked as soon as possible after departure, the 
Petition requested that the use of Global Positioning System (GPS) 
devices to be excluded from the Order for that purpose. The Petition 
requested an exception that stated, ``A Global Positioning Satellite 
(GPS) tracking device may be used in order to verify the accuracy of 
the speed indicator in a controlling locomotive.''
    FRA is concerned that these devices could distract operating 
employees and potentially create an unsafe situation. We do not believe 
that any potential advantage of allowing these devices outweighs the 
safety hazard involved and accordingly such use is proposed to be 
prohibited.

IV. Other Considerations

A. Medical Devices

    Beyond the suggestions and concerns formally addressed in the 
Petition, FRA has realized that the Order, in some instances, covered 
more situations and devices than was intended or desired. For example, 
some diabetics use electronic devices to monitor glucose. These devices 
arguably do not fall under the Order's exception for devices that 
enhance an individual's ability to perform safety-related tasks. FRA is 
proposing an exception for medical devices to encompass both devices 
that enhance an ability to perform safety-related tasks, such as 
hearing aid, and other devices that protect an employee's health and 
well-being.

B. Exception for Working Wireless Communication Devices for Train 
Movements

    The Order has an exception for railroad operating employees to use 
a railroad-supplied or railroad-authorized electronic device to conduct 
train or switching operations ``under conditions authorized under 49 
CFR Part 220.'' This exception was included to reflect the reality that 
many small railroads use cell phones or similar devices instead of a 
working radio and to allow those railroads to continue to do so. The 
proposed rule clarifies that this exception was only intended for small 
railroads.

C. Locomotive Engineer Certification Revocation

    FRA is considering amending 49 CFR part 240 (part 240) to add 
violations of this subpart as a basis for revoking a locomotive 
engineer's certification. See 49 CFR 240.117(e). FRA specifically 
invites comments on this issue and based on the comments received may 
include a revision of part 240 in the final rule issued in this 
rulemaking.

V. Enforcement Issues

    One of the concerns FRA had before issuing the Order was that it is 
difficult to enforce violations of restrictions on electronic devices 
by railroad employees. Unlike equipment or track problems, which can be 
readily seen, or even training violations, which must be documented, it 
is difficult to detect unauthorized use of cell phones and other 
personal electronic devices. FRA inspectors only ride with train crews 
a fraction of the time as part of the inspection process. It is 
unlikely that a locomotive engineer operating a moving train would 
begin to text message or call friends while an FRA inspector was 
present. Of course, personal cell phone records, combined with the 
operating record of the locomotive, would be able to indicate that the 
locomotive engineer was improperly calling someone while the engineer 
was supposed to be fully focused on operating a train.
    Because of the evidentiary difficulties associated with 
establishing violations of restrictions on use of electronic devices, 
and the help that personal phone records would provide, FRA considered 
adding a provision regarding those records. FRA debated requiring 
railroads to require their operating employees to allow the railroads 
access to the employees' personal cell phone records if the employees 
were involved in any accident for which the employer has a reasonable 
belief that the employees' acts or omissions contributed to the 
occurrence or severity of the accident. FRA declines to add such a 
provision at this time. A significant factor in this determination is 
the broad statutory authority that FRA has to investigate accidents, 
including the issuance of subpoenas, under 49 U.S.C. 20107 or 20902. 
When there is a reasonable belief that an accident was caused or 
affected by a railroad operating employee's actions or omissions, FRA 
will subpoena that employee's cell phone records or other personal 
records if they are related to FRA's investigation. FRA does so now. 
However, FRA is requesting comment on the utility of such a provision 
and whether it would be useful in gathering data on safety incidents 
that do not result in accidents. FRA also seeks comment on the privacy 
concerns implicated by such a measure and on any suggested procedures 
or limitations that should be followed in the event FRA ever proposed 
such a provision.
    FRA understands that this rulemaking covers a wide range of devices 
and that many of these electronic devices have become ingrained in our 
contemporary culture. FRA also understands that, in a genuine personal 
emergency, employees of some railroads have an advantage in their 
ability to be contacted through channels that the railroad has created. 
FRA did not, however, expressly include an exception for personal 
emergencies. FRA requests comments on whether an express exception 
should be created to address personal emergency situations and, if so, 
how it should be expressed.

VI. Section-by-Section Analysis

    All section references below refer to sections in Title 49, Part 
220 of the Code of Federal Regulations (CFR). FRA seeks comments on all 
proposals made in this NPRM. Proposed Amendments to 49 CFR part 220 
(part 220).

[[Page 27679]]

Section 220.1 Scope

    FRA proposes to amend the scope of Sec.  220.1 to include the new 
subpart C proposed by this NPRM. The proposed amendment states that 
part 220 now sets forth prohibitions, restrictions, and requirements 
for the use of electronic devices. It also establishes that these are 
only minimum restrictions that must be complied with and that railroads 
are free to impose stricter prohibitions at their discretion.

Section 220.5 Definitions

    FRA proposes to amend the existing ``definitions'' section for Part 
220 by both adding new definitions and amending an existing definition. 
FRA proposes to add new definitions for the following terms: earpiece; 
fouling a track; in deadhead status; medical device; electronic device; 
personal electronic device; railroad operating employee; railroad-
supplied electronic device; and switching operation. FRA also proposes 
to amend Part 220's existing definition of ``train.''
    Of the new terms that FRA proposes to add to this section, all but 
two had been previously defined in the Order. Some of those definitions 
have been amended slightly to be more efficiently focused toward 
accomplishing the goals of this proposed rule. For example, in 
describing ``electronic device,'' FRA broadens that description from 
that found in the Order to ensure that the definition in the proposed 
rule includes electronic book-reading devices or devices used to 
replicate navigation of the physical world. We have also excepted 
locomotive electronic control systems and digital timepieces from the 
definition. The first exception makes clear that this subpart does not 
affect the use of any control systems or displays in the cab of a 
locomotive that facilitate the operation of a train. This rule instead 
obviously intends to address electronic devices that are not part of 
those systems. The second exception allows railroad operating employees 
the use of digital clocks or wristwatches whose primary functions are 
as timepieces. Timepieces are commonly used in the railroad industry to 
verify the accuracy of a locomotive's speed indicator. This function is 
safety-related in that it accurately allows a train crew to comply with 
relevant track speed limits during the course of a train's movement. 
FRA notes that this specific provision is limited to allowing the use 
of a stopwatch, wristwatch, or other similar device whose primary 
function is the keeping of time. This provision does not allow for the 
use of other devices, such as a cell phone or a personal digital 
assistant, that might have a stopwatch function but whose primary 
purpose is not that of a timepiece. FRA has so limited this exception 
specifically to timepieces as enforcement otherwise would be difficult, 
but also primarily to avoid the potential for distraction when an 
employee might turn on a cell phone with a stop watch function in order 
to verify the train's speed, but then might proceed to use that device 
in an otherwise impermissible manner.
    FRA has also chosen to refer to an ``electronic or electrical 
device'' as only an ``electronic device'' in the proposed rule. We have 
done so both for the purposes of complying with plain language 
directives and for brevity. We have also done so because, based on our 
research, ``electronic device'' is a more accurate descriptor of the 
devices meant to be subject to this proposed rule. The definition of 
``railroad operating employee'' has also been changed from that found 
in the Order. We have attempted to clarify which employees are covered 
by this proposed rule in order to avoid inadvertent over-inclusion. The 
definition of ``railroad-supplied electronic devices'' has also been 
modified from the Order to mean that the term refers only to devices 
that are provided for a business purpose authorized by the employing 
railroad. FRA has slightly changed that definition in order to focus 
more narrowly on which devices will be considered railroad-supplied.
    The only truly new definitions that were not established in some 
form in the Order are for the terms ``earpiece,'' ``in deadhead 
status,'' and ``medical device.'' FRA proposes to add a definition for 
the term ``in deadhead status'' because below in proposed Sec.  220.311 
we explain that railroad operating employees in deadhead status are 
subject to somewhat different prohibitions on the use of electronic 
devices than are employees who are actively engaged in their assigned 
duties. The definition that we have proposed is similar to and 
consistent with the existing definition of ``deadheading'' found in 
existing 49 CFR 228.5. FRA also proposes adding the term ``medical 
device'' to the ``definitions'' section, as below we explain that the 
use of any electronic medical devices consistent with a railroad's 
medical fitness for duty standards is exempt from the restrictions of 
this subpart. After having had additional time since the publication of 
the Order to contemplate its effect, FRA wishes to make clear that 
medical devices such as hearing aids or blood sugar monitors are exempt 
from the prohibitions that this rule puts forth. FRA finds that these 
devices do not detract from rail safety, but they may actually enhance 
safety in some circumstances for obvious reasons.
    Next, FRA proposes to amend the existing definition of a ``train'' 
in Sec.  220.5. The existing definition specifically references a train 
for purposes of existing subparts A and B to include ``one or more 
locomotives coupled with or without cars requiring an air brake test in 
accordance with 49 CFR Part 232 or 238 * * *''. The existing definition 
resulted from FRA's work with an RSAC Working Group and intentionally 
meant to exempt certain trains and switching operations from the 
existing part 220. That existing definition will still apply to 
subparts A and B. However, we have proposed that the definition of a 
``train'' for purposes of subpart C would go beyond locomotive or 
locomotives coupled to one or more cars that are subject to the 
requirements of an air brake test. We propose a more inclusive 
definition of ``train'' in order to apply the prohibitions on use of 
electronic devices to all switching movements.
    Finally, FRA has eliminated one definition from this proposed rule 
that appeared in the Order. The term ``wireless communication device'' 
has been eliminated, as the term ``working wireless communications'' is 
already included in existing Sec.  220.5, and encompasses the substance 
of what FRA attempted to convey with that definition in the Order, and 
also because the devices described in that definition are already 
addressed by other provisions of this proposed rule.

Subpart C--Electronic Devices

Section 220.301 Purpose and Application
    FRA proposes to amend part 220 by adding a new subpart C. FRA's 
purpose for promulgating this new subpart is to limit distractions 
caused by electronic devices to railroad crews. FRA means to limit 
these distractions in its effort to improve railroad safety and prevent 
incidents such as those mentioned in the preamble above, where loss of 
human life, injuries, and property damage may have been attributable to 
distraction by these devices. FRA notes that this proposed subpart sets 
forth minimum standards that must be complied with, yet we fully 
anticipate that railroads will implement even stricter guidelines via 
operating rules. This is consistent with both existing and proposed 
Sec.  220.1, which provides that part 220 only sets minimum standards 
that must be complied with, but that

[[Page 27680]]

railroads may adopt additional, more stringent, requirements.
    Section 301 of this new proposed subpart describes both its purpose 
and application. Paragraph (a) of this section merely restates the new 
subpart's purpose as described above. Paragraph (b) makes clear that 
the new proposed subpart does not affect the use of working wireless 
communications that railroads use under the authority of existing 
subparts A and B. Paragraph (c)(1) explains that this proposed 
regulation also does not in any way propose to affect the use of 
railroad radios. Railroad radios are an essential part of daily 
operating practices, and FRA wishes to make explicit that this new 
subpart does not apply to their use. Proposed paragraph (c)(2) of this 
section explains that in the event of a working railroad radio failure, 
that locomotive engineers or conductors may use electronic devices 
provided that use is in accordance with the applicable railroad's 
operating rules. FRA recognizes that in certain instances the use of an 
electronic device such as a cell phone in place of a malfunctioning 
radio may actually enhance safety rather than harm it. For example, 
should a crew need to contact a train dispatcher regarding their 
train's movement, a cell phone might in certain instances be the best 
means of reaching such a person in the event of a radio failure, and 
may provide a higher level of safety than not being able to make 
contact at all. So long as the device is used with the parameters of 
railroad operating rules, FRA has made this exception to the 
prohibitions on use of electronic devices discussed below.
Section 220.303 General Use of Electronic Devices
    FRA is proposing to add Sec.  220.303 to this new subpart to set 
forth general guidance regarding the use of electronic devices. This 
proposed section would prohibit railroad operating employees from using 
electronic devices in any way that would detract from railroad safety, 
irrespective of the other specific provisions and exceptions to this 
rule. This provision reinforces FRA's overarching mission of ensuring 
safety while railroad employees are performing their duties. As 
discussed above, distractions resulting from the use of electronic 
devices can result in railroad accidents that have catastrophic 
consequences. This paragraph is also meant to encompass other potential 
uses of electronic devices that may arise outside those detailed or 
contemplated by this proposed rule or by railroad operating rules. 
Section 220.303 is intended to be restrictive, as FRA views any use of 
electronic devices not contemplated in this proposed subpart as capable 
of distracting employees while on duty.
Section 220.305 Use of Personal Electronic Devices
    This section is being proposed to prohibit the use of personal 
electronic devices while any safety-related duty is being performed. 
This provision governing personal electronic devices is self-
explanatory, and is meant to be more restrictive than provisions 
governing railroad-suppled electronic devices. See proposed Sec.  
220.307 discussed below. Provisions (a) through (c) of this proposed 
section dictate certain safety-critical times during which each 
personal electronic device must be turned off with any earpiece 
removed, and are meant to encompass the situations in which FRA finds 
it is absolutely impermissible to use a personal electronic device. FRA 
notes that compliance with this proposed section might have prevented 
many of the accidents described above and in the Order that occurred as 
a result of distraction caused by electronic devices.
Section 220.307 Use of Railroad-Supplied Electronic Devices
    This section is proposed to address the use of electronic devices 
that are supplied by the railroad to employees, other than a working 
railroad radio. Paragraph (a) sets forth the general restriction that 
any use of these devices must be in accordance with railroad 
instructions for authorized business purposes as determined by the 
railroad. FRA also wishes to make clear that the use of railroad-
supplied devices contemplated by this provision is limited to those 
authorized by the railroad in writing.
    Paragraph (b) sets forth the specific instances where FRA proposes 
to prohibit any use of railroad-supplied electronic devices by a 
locomotive engineer who is at the controls of a train. Similar to the 
conditions set out in Sec.  220.305, paragraph (b) of Sec.  220.307 
describes specific instances where FRA finds distraction by electronic 
devices impermissibly interferes with railroad safety. While the 
actions specified in paragraph (b) are taking place, it is imperative 
that a locomotive engineer be attentive to his or her duties and not be 
distracted by any electronic device, regardless of whether that device 
is railroad-supplied or not. FRA also notes that it considers paragraph 
(b)(3) of this section to encompass those times when passengers are 
boarding or alighting from a train. For example, if a locomotive 
engineer at the controls of a passenger train was using a railroad-
supplied electronic device while the train was stopped and passengers 
were boarding, FRA views that conduct as a violation of this proposed 
regulation. Paragraph (c) sets forth the circumstances under which an 
operating employee other than a locomotive engineer in the situations 
described in paragraph (b) may use a personal electronic device while 
located in the cab of a controlling locomotive. This paragraph (c) 
states that it only proposes to permit use of a mobile telephone or 
remote computing device. These two devices may only be used if a safety 
briefing is held by all crewmembers in the locomotive, who must then 
also come to an agreement that it is safe to use the device. It is 
FRA's intent that the permissible use of these devices under this 
paragraph must be for a railroad-related purpose, e.g., to contact a 
dispatcher, control operator, or yardmaster. It is not permissible to 
use the mechanisms provided by this section to use an electronic device 
for a personal use, such as making a personal phone call or watching a 
movie. FRA has also chosen to restrict the number of devices that may 
be used to only two. By limiting the type of devices that are permitted 
to be used under the authority of this paragraph, FRA is attempting to 
ensure minimum distractions and narrow the scope of this provision. 
This provision and the provision found in paragraph (d) of this section 
discussed below both state that they apply only to employees who are 
not in deadhead status. Different rules apply to employees in deadhead 
status, as is explained below in the analysis to Sec.  220.311.
    Paragraph (d) of proposed Sec.  220.307 explains the conditions 
under which it is permissible for an operating employee who is outside 
the cab of a controlling locomotive to use a railroad-supplied device. 
It sets forth three conditions that must be met for that use to be 
permitted. The first condition is that no crewmember may be fouling a 
track. The second condition, at paragraph (d)(2) of this proposed 
section, states that all operations must be suspended. For example, 
this provision requires that no switching operations are being 
performed, no portion of an air brake test is in progress, or 
essentially that no duties are presently required of the crewmember, 
including railroad radio communications. The third condition is that 
all crewmembers must be briefed that operations have been suspended 
before use of a device under this provision is permissible. An instance 
described in the background section of

[[Page 27681]]

the Order discusses an incident that occurred on December 21, 2005, 
when a contractor working on The Kansas City Southern Railway Company 
was struck and killed by a train after fouling a track while allegedly 
talking on a cell phone. Although in that case the incident involved a 
contractor who was apparently not a train employee, FRA notes that 
compliance by operating employees with the provisions of paragraph (d) 
would eliminate any similar occurrences among operating employees 
resulting from the impermissible use of electronic devices.
Section 220.309 Permitted Uses
    This section proposes to establish six uses of electronic devices 
that FRA finds to be permissible. This list is intended to be 
exhaustive. FRA has specifically weighed other exceptions and uses, 
such as the BLET and UTU's proposed GPS device exception discussed 
above. After contemplating those other uses, at this time FRA does not 
agree there is a need for further permitted use of electronic devices 
other than those described here. However, we welcome additional comment 
and input on this subject. Also, as stated in the text of this section, 
these permitted uses are subject to the requirement that the use not 
interfere with any employee's safety-related duties. This is consistent 
with the overall goals of this proposed rule, and also specifically 
with the general prohibition established by proposed Sec.  220.303 
discussed above.
    Paragraph (a) of Sec.  220.309 refers to electronic storage devices 
that specifically hold relevant operating documents that a crew might 
need to access during the normal course of their duties, as FRA is 
aware that some railroads issue devices to their operating employees 
that contain such information. FRA views this use as no different from 
a crewmember accessing relevant paperwork, such as a railroad timetable 
or