Restrictions on Railroad Operating Employees' Use of Cellular Telephones and Other Electronic Devices, 59580-59604 [2010-23916]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 75, Number 186 (Monday, September 27, 2010)]
[Rules and Regulations]
[Pages 59580-59604]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-23916]



[[Page 59579]]

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Part V





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 220



Restrictions on Railroad Operating Employees' Use of Cellular 
Telephones and Other Electronic Devices Late Season; Final Rule

Federal Register / Vol. 75 , No. 186 / Monday, September 27, 2010 / 
Rules and Regulations

[[Page 59580]]


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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: Final rule; rescission of Emergency Order No. 26.

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SUMMARY: FRA is amending its railroad communications regulations by 
restricting use of mobile telephones and other distracting electronic 
devices by railroad operating employees. This rule codifies most of the 
requirements of FRA Emergency Order No. 26, which is supplanted by this 
final rule on the date it becomes effective. FRA has revised some of 
the substantive requirements of that Emergency Order as well as its 
scope to accommodate changes that FRA believes are appropriate based 
upon its experience with the Emergency Order and in response to public 
comments submitted in response to the proposed rule.

DATES: Effective March 28, 2011.

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 Chief Counsel, FRA, 1200 New Jersey 
Avenue, SE., Washington, DC 20950 (telephone: (202) 493-6064); or 
Joseph St. Peter, Trial Attorney, Office of Chief Counsel, FRA, 1200 
New Jersey Avenue, SE., Washington, DC 20950 (telephone: (202) 493-
6047).

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Background
    A. Notice of Proposed Rulemaking
    B. Effective Date
    C. Background Information
    D. Justification for the Rulemaking
    E. Legal Basis for the Rulemaking
    F. Distracted Driving Impacts All Transportation Modes
    1. Aviation
    2. Rail
    3. Motorcoach
    G. Studies
    1. FRA Study
    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)
    H. Other Efforts
    1. State Action
    2. Federal Action
II. Response to Public Comment
III. Section-by-Section Analysis
IV. 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. Background

A. Notice of Proposed Rulemaking

    On May 18, 2010, FRA published a notice of proposed rulemaking 
(NPRM) in the Federal Register proposing to restrict the use of mobile 
telephones and other distracting electronic devices by railroad 
operating employees. 75 FR 27672 (May 18, 2010). The NPRM proposed to 
codify many of the requirements of Emergency Order 26 (Order or EO 26, 
73 FR 58702 (Oct. 7, 2008)), but proposed certain changes to it in 
response to a letter challenging certain provisions of the Order. FRA 
asked for public comment on the NPRM, and received 15 comments in 
response. FRA has reviewed those comments and as a result has made 
changes for this final rule. These changes are described below.

B. Effective Date

    This final rule will take effect 180 days after its publication 
date. FRA has chosen this implementation schedule for several reasons. 
This implementation schedule will ensure no gaps in safety regulation 
occur, no gaps in examination or instruction on the requirements of the 
governing safety regulation occur, and will also accommodate 
traditional industry practices for the instruction schedule of 
operating employees.
    First, EO 26 is currently in effect, and will remain so until this 
final rule supplants it upon its effective date. All railroad operating 
employees were already required to have been trained on the 
restrictions established by EO 26. EO 26 provides no less measure of 
safety of than does this final rule, which only modifies certain 
requirements of the Order.
    Next, in response to the NPRM, the Association of American 
Railroads (AAR) submitted a comment to FRA that requested adequate time 
for railroads to implement their programs of instruction and to then 
provide that required instruction to their operating employees. As 
discussed below, this final rule allows railroads 90 days to implement 
a program of instruction, and then an additional 90 days to actually 
instruct their employees. Allowing railroads this period of time to 
implement the instruction requirements of this final rule will result 
in reduced implementation and instruction costs. As AAR's comment 
indicated, the industry practice is for railroads to finalize their 
annual rules instruction programs in the fourth quarter of the calendar 
year, and then to actually instruct their employees on those annual 
rules instruction programs in the first quarter of the next calendar 
year. Thus, based on the implementation date FRA has chosen, railroads 
should not have to alter the timing of their instruction programs or 
require their employees to attend additional instruction sessions 
outside of those already planned during the first quarter of 2011.
    As EO 26 will remain in effect until this final rule becomes 
effective, railroad operating employees will not be subject to this 
final rule until they have already been instructed on its requirements. 
This implementation schedule also ensures there will be no gap in time 
where a new railroad operating employee will perform work subject to 
the requirements of this final rule, but will not have yet been trained 
on its requirements or the requirements of a supplanted EO 26.
    In sum, this implementation schedule does not allow for any gap in 
safety regulation, as employees have been trained on the requirements 
of EO 26 and will be subject to its requirements until the final rule 
takes effect. Upon the final rule taking effect, all new and current 
railroad employees will have already been instructed on the rule's 
requirements. Finally, as discussed above, this schedule also 
accommodates a large segment of the railroad industry's traditional 
rules instruction practices.

C. 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

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devices, or some other type of multitasking. This type of behavior 
results in vehicle accidents and significant costs to our nation's 
economy. Parallels are easily drawn between distracted driving and the 
operation of trains while using distracting electronic devices, as 
evidenced by the examples discussed below.
    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. Another 
Distracted Driving Summit is scheduled for September 21, 2010.

D. Justification for the Rulemaking

    FRA has discovered numerous examples of the dangers posed by 
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. 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 by 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. The National Transportation 
Safety Board (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 EO 26 restricting the use of 
cellular telephones and other electronic devices while on duty. (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 August 2010, FRA inspectors discovered approximately 249 
instances in which the Order may have been violated. FRA's Office of 
Railroad Safety recommended enforcement action against the employee or 
railroad in 56 of these instances. Forty-nine 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. In addition, 
48 of the incidents recommended for enforcement action involved 
personal, as opposed to railroad-supplied, devices. These incidents 
begin to illustrate the hazards of using distracting electronic devices 
while on duty. For this reason, FRA is compelled to promulgate 
enforceable regulations to prevent the unsafe use of electronic devices 
by on-duty railroad employees.
    FRA has considered the costs and benefits of this rule. Relative to 
the current requirements of EO 26, the only additional burden produced 
by the requirements of this rule is that related to revising programs 
and initial instruction focused on the exceptions that this rule will 
introduce as well as the additional potential cost for purchasing or 
carrying cameras or calculators. This added burden will total 
approximately $696,000 (PV, 3%) or $613,000 (PV, 7%) over a 20-year 
period. The exceptions to the existing restrictions on the use of 
electronic devices will 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 will justify the relatively minor cost burden.
    In an effort to also evaluate the requirements that will 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 $31.9 million 
(discounted at 7%) or $42.9 million (discounted at 3%). The break-even 
analyses for the rule and EO 26 show that, in all scenarios considered, 
it will 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 rule, the frequency 
and severity of accidents together with the observed rising incidence 
of

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improper use of cell phones and other electronic devices strongly 
suggest that the elimination of improper electronic device usage by 
railroad operating employees, as required by this rule, will prevent 
more than one fatality every two years, and therefore, that the 
monetized benefits of the requirements will likely outweigh the 
monetized costs.

                 Summary of Costs of EO 26 and This Rule
                              [In millions]
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                                Twenty-year total     Twenty-year total
                               (3% discount rate)    (7% discount rate)
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Total direct costs..........                 $12.7                  $9.5
Total indirect costs........                  30.2                  22.4
                             -------------------------------------------
Total costs.................                  42.9                  31.9
                             ===========================================
Costs attributable to this                     0.7                   0.6
 rule.......................
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E. Legal Basis for the Rulemaking

    Congress required the 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 Federal Railroad Administrator. 49 CFR 1.49(oo). 
See also 49 CFR 1.49(m) for further rail safety related delegations, 
including general rulemaking authority, to the Federal Railroad 
Administrator.
    The required study, titled ``The Impact of Distracting Electronic 
Devices on the Safe Performance of Duties by Railroad Operating 
Employees'' \1\ was completed and submitted to Congress on May 27, 
2010. The study stated that FRA found that railroad operating employees 
were increasingly using distracting electronic devices in a manner that 
created hazards. As such, FRA intervention was warranted.FRA will 
continue to monitor compliance regarding the use of electronic devices 
by railroad employees.
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    \1\ FRA Report ``The Impact of Distracting Electronic Devices on 
the Safe Performance of Duties by Railroad Operating Employees'' 
(May 27, 2010). Available online at: https://www.fra.dot.gov/downloads/safety/CellPhoneReport4510.pdf.
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F. 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 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

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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.

G. 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.\2\
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    \2\ 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.\3\ 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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    \3\ NHTSA (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 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.\4\ 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.''\5\ 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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    \4\ 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.
    \5\ 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.\6\ 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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    \6\ 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.\7\ 
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.\8\ 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.\9\
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    \7\ NHTSA (2009). ``Driver Electronic Device Use in 2008.'' DOT 
HS 811 184. Available online at:  https://www-nrd.nhtsa.dot.gov/Pubs/811184.PDF.
    \8\ NHTSA (2008). ``Driver Electronic Device Use in 2007.'' DOT 
HS 810 963. Available online at:  https://www-nrd.nhtsa.dot.gov/Pubs/810963.PDF.
    \9\ 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.\10\ 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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    \10\ 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.

H. Other Efforts

1. State Action
    Texting while driving is prohibited in 30 States, the District of 
Columbia, the Virgin Islands, and Guam. A list of States and 
Territories that have taken such actions can be found at the following 
DOT Web site: https://www.distraction.gov/state-laws. Many other States 
have instituted even stricter prohibitions on the use of cell phones 
for other functions, including voice communications, while driving.
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 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.
    On April 1, 2010, the Federal Motor Carrier Safety Administration 
published a notice of proposed rulemaking which proposed to prohibit 
texting by commercial motor vehicle (CMV) drivers while operating in 
interstate commerce. 75 FR 16391 (April 1, 2010). The rule was proposed 
to improve safety on the Nation's highways by reducing the prevalence 
of distracted driving-related crashes, fatalities, and injuries 
involving drivers of commercial motor vehicles.
    On April 26, 2010, the Federal Aviation Administration issued 
Information for Operators (InFO) guidance \11\ on cockpit distractions, 
urging crewmembers to refrain from engaging in distracting tasks not 
related to flight duties, such as using personal electronic devices. 
The guidance highlighted recent incidents in which pilots had engaged 
in the use of distracting personal electronic devices while performing 
required flight duties, and called on air carriers to create policies 
limiting pilot distraction.
---------------------------------------------------------------------------

    \11\ InFo 10003 ``Cockpit distractions'' (April 26, 2010). 
Available online at: https://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/info/all_infos/media/2010/InFO10003.pdf.
---------------------------------------------------------------------------

    The Pipeline and Hazardous Material Safety Administration (PHMSA) 
issued ``Safety Advisory Notice: Personal Electronic Device Related 
Distractions (Safety Advisory Notice No.10-5)'' to alert the hazardous 
materials community to the dangers associated with the use of 
electronic devices while operating a commercial motor vehicle. 75 FR 
45697 (Aug. 3, 2010). In the notice, PHMSA stressed the heightened risk 
of transportation incidents involving hazardous materials when drivers 
are distracted by electronic devices. The notice urges motor carriers 
that transport hazardous materials to institute policies and provide 
awareness instruction to discourage the use of mobile telephones and 
electronic devices by motor vehicle drivers.

II. Response to Public Comment

    FRA received 15 comments in response to the NPRM. Comments were 
submitted by a wide variety of affected parties, including the American 
Association for Justice (AAJ); AAR; five labor organizations that 
submitted a joint comment, (including the United Transportation Union, 
Brotherhood of Locomotive Engineers and Trainmen, Brotherhood of 
Railroad Signalmen, Brotherhood of Maintenance of Way Employes, and the 
American Train Dispatchers Association (collectively referred to as the 
Labor Organizations)); the National Railroad Passenger Corporation 
(Amtrak); the National Transportation Safety Board (NTSB); the National 
Safety Council; the Peninsula Corridor Joint Powers Board (Caltrain); 
the Utah Transit Authority; and seven individuals. In addition, New 
Jersey Transit (NJT) contacted FRA and had a brief conversation that 
was summarized and documented in a memorandum, which is posted in the 
public docket for this rule. FRA staff extensively reviewed

[[Page 59585]]

and evaluated the comments. In this section, FRA will respond to 
comments regarding locomotive engineer certification; access to 
personal cell phone records; personal emergencies; exceptions regarding 
personal devices such as GPS and cameras; electronic devices to 
document violations of safety laws; minimum standards, authorized 
business purposes; passenger train considerations; accident reduction; 
instruction; operational tests; regulatory impact analysis; and other 
general comments. FRA will also respond to some of the smaller concerns 
within the Section-by-Section Analysis below.
    In the NPRM, FRA requested comments on four issues: (1) Whether 
violations should be the basis for revoking a locomotive engineer's 
certification; (2) whether railroads should require railroad access to 
personal cell phone records if the employee was involved in an 
accident; (3) whether devices or uses other than those specified should 
be subject to only limited restrictions; and (4) whether FRA should 
allow electronic devices to be used more liberally for personal 
emergencies.

Locomotive Engineer Certification Revocation

    FRA received five comments in response to our request for 
information on whether to amend 49 CFR part 240 (part 240). FRA 
specifically requested comment on whether violations of this final rule 
should be added as a basis for revoking a locomotive engineer's 
certification. Both the NTSB and AAR submitted comments in support of 
this proposal, stating that it would provide a deterrent to the 
improper use of electronic devices and also that such violations should 
be incorporated as the basis for revoking a conductor's certification 
in the forthcoming conductor certification regulation. The Utah Transit 
Authority commented that if part 240 were amended, that it should be at 
the discretion of the individual railroad to decide whether electronic 
device violations should be cause for decertification.
    The Labor Organizations' joint comment and a railroad employee both 
commented that they opposed amending part 240. The railroad employee 
stated that the current revocable offenses found at 49 CFR 240.117(e) 
(Sec.  240.117(e)) are absolute rules, but that this final rule 
contains numerous exceptions where it is permissible for operating 
employees to use electronic devices. The Labor Organizations' comment 
stated that accident information does not support adding violations to 
Sec.  240.117(e). The comment stated that unlike the current provisions 
of that section, a significant portion of train accidents do not result 
from use of electronic devices. These commenters also expressed concern 
that revoking an engineer's certification merely because he or she may 
have forgotten to turn a device off would be an overly harsh penalty. 
The commenters also pointed out that FRA has numerous other enforcement 
tools at its disposal should it discover violations of this regulation. 
Finally, they commented that if FRA were to amend part 240 to include 
violations of this rule as offenses mandating revocation of a 
locomotive engineer's certification, that revocation should be limited 
to instances in which a violation has occurred that contributed to one 
of the events identified in FRA's provision on post-accident 
toxicological testing (49 CFR 219.201(a)), such as a major train 
accident or a fatality.
    After reviewing the comments, and based on the serious railroad 
incidents that have occurred as a result of electronic device use, FRA 
believes that it may be appropriate to amend part 240 to allow for 
decertification in certain instances. However, FRA wishes to further 
review the issue, and to consider how it would appropriately implement 
such an amendment. Further, FRA would like to allow for this regulation 
to first take effect before making a final decision as to whether 
action to amend part 240 is necessary. As such, FRA may amend part 240 
in a future rulemaking; for example, in a rulemaking where the agency 
could simultaneously implement a consistent provision in the 
forthcoming conductor certification rule.

Access to Employees' Personal Cell Phone Records

    FRA has decided that a provision mandating that railroads require 
operating employees to provide access to personal cell phone records in 
the event of an accident is unnecessary for FRA purposes. As noted in 
the NPRM, FRA currently uses its investigative authority under 49 
U.S.C. 20107 and 49 U.S.C. 20902 to obtain personal cell phone records 
when appropriate.

Personal Emergencies

    FRA has decided that an exception for personal emergencies would 
present significant obstacles to enforcing this subpart. An employee 
who has just been found with a cell phone turned on while on a moving 
train could easily say that the phone was on because of a sick family 
member, whether true or not. Railroads have been able to contact 
crewmember for years in the event of emergencies before cell phones by 
using the locomotive radio. In addition, if there is genuine evidence 
of a personal emergency, FRA inspectors have discretion not to 
recommend a penalty. No FRA inspector, for example, would recommend a 
penalty against a railroad operating employee who called 911 because an 
employee was having a heart attack. FRA expects railroads to also use 
reasonable discretion in the event of extenuating circumstances. If 
this proves not to be the case, FRA will revisit this issue.

GPS Devices

    After publication of EO 26, FRA received a letter challenging 
certain provisions of the Order. That letter urged FRA to amend EO 26 
to allow for the use of personal GPS devices. However, in the NPRM, FRA 
did not propose to allow any exemptions for use of personal GPS devices 
that would otherwise be in violation of the prohibitions set forth in 
the proposed regulation. In response to the NPRM, two comments 
addressed GPS devices. Amtrak commented that it understood the NPRM to 
mean that while personal GPS devices would be prohibited from being 
utilized outside the circumstances set forth in Sec.  220.305, that 
Sec.  220.307 of the proposed regulation would still allow for use of a 
GPS feature included in a railroad-supplied multifunctional device for 
an authorized business purpose. The Labor Organizations urged FRA to 
adopt a provision allowing for the use of GPS devices. The comment 
states that FRA should do so as GPS devices can aid in determining 
train speed and can help a crew more accurately determine where 
physical characteristics are located, especially during severe weather 
when visibility might be limited. The comment also states that GPS 
technology will be part of positive train control systems that will be 
able to prevent train incursions into working limits and other relevant 
operating restrictions that may be present. The comment alluded that 
personal GPS devices could help provide these same safeguards.
    In response, FRA points out that both proposed and final Subpart C 
do not prohibit the use of railroad-supplied GPS technology. First, 
railroads are free to issue railroad-supplied devices that utilize GPS 
technology. So long as those devices are used for an authorized 
business purpose in accordance with written instructions, the use of 
those devices is permissible during periods of time not otherwise 
prohibited by Sec.  220.307. Thus, Amtrak's understanding of the 
proposed regulation is correct. If railroads feel

[[Page 59586]]

that such devices are necessary for operations, they may issue them for 
use.
    However, FRA has opted not to include personal GPS devices in the 
exemptions listed in Sec.  220.309. Thus, a personal GPS device is not 
permitted to be used by a railroad operating employee in violation of 
the prohibitions set forth in Sec.  220.305. There are several reasons 
why FRA has decided such. First, locomotive engineers are required to 
be familiar with the physical characteristics of the routes over which 
they operate. This knowledge is required by both railroad operating 
rules and by part 240. Thus, engineers should already be aware of where 
sidings, road crossings, and other physical characteristics are 
located. Second, there are other suitable means that FRA has already 
accounted for in this final rule with which to determine a train's 
speed or location. Railroad mileposts along the right of way currently 
help denote a train's exact location. Measured mile markers along the 
right of way are often used along with stopwatches, which are permitted 
to be used by this regulation, to determine the accuracy of a train's 
speed indicator. Calculators are permitted to be used under this final 
rule, and can be used to determine formulas such as train stopping 
calculations. Locomotive foot-counter devices (sometimes in conjunction 
with calculators) are often used to determine when a train is clear of 
a speed restriction, interlocking, or working limits. Also, by nature, 
GPS devices are sometimes complicated devices to operate that could 
distract employees from safety-related functions. Finally, as noted 
above, if such devices are needed, the railroad is free to supply such 
devices for business purposes. FRA has not been presented with 
sufficient justification that these devices enhance railroad safety, 
especially because the above-listed means to determine train speed and 
location are already available to operating employees. Accordingly, FRA 
has chosen not to allow for the use of personal GPS devices in this 
final rule.

Cameras

    In Sec.  220.309(c) of the NPRM, FRA proposed allowing the use of 
``stand-alone'' cameras to document a safety hazard or a violation of a 
rail safety law, regulation, order, or standard. The proposed text 
allowed for that use if the camera was not a part of a cell phone or 
other multi-functional electronic device. Further, the proposed text 
did not allow for the use of that device by a locomotive engineer on a 
moving train. In response to this proposal, FRA received four comments, 
which are addressed in detail below.
    After reviewing all of the comments, FRA declines to expand this 
provision to allow for the use of personal cameras that are part of a 
multi-function device during the periods of time prohibited by this 
rule. However, the agency is expanding the exception to allow for the 
use of railroad-supplied multi-functional devices as a camera. In other 
words, if a railroad issues a multi-functional device that includes a 
camera feature, the camera may be utilized by operating employees for 
an authorized business purpose as specified by the railroad in writing 
in accordance with this exception. Those purposes must be approved by 
FRA. FRA has chosen to allow such use to account for devices that may 
be used in the future as part of evolving technologies that railroads 
may utilize that could enhance safety. FRA has also chosen to amend the 
proposed exception as there may be less temptation to improperly use a 
railroad-supplied device as opposed to an employee's personal device.
    Finally, FRA has changed the provision to eliminate reference to 
the use of video to document safety hazards. Many locomotives are 
already equipped with forward facing locomotive video recorders, and 
FRA is unaware of any sufficient justification to allow railroad 
operating employees an exemption to use video cameras during any 
additional periods of time outside those prohibited under Sec. Sec.  
220.303-220.305. Next, the language of the camera exemption was also 
changed to remove any reference to videos to prevent confusion. FRA 
realizes that some cameras intended for use as a camera have a video 
function, and believes those devices should be able to be used under 
this exception to take photographs. A number of cell phones, however, 
also have camera functions. By limiting this exemption to prohibit 
those devices unless they are railroad-provided and used for an 
authorized business purpose stated in writing by the railroad and 
approved by FRA, FRA avoids situations where those devices could be 
used outside these parameters by a railroad operating employee who 
claims to be documenting a safety hazard.
    AAJ commented that FRA should also allow for the use of cell phones 
to photograph safety hazards. AAJ reasoned that it was unreasonable to 
expect railroad employees to carry stand-alone cameras, and proposed 
allowing for the use of cell phone cameras if the device were turned 
off immediately after documenting the hazard. AAJ further asserted that 
railroads underreport accident and injury data and employees are thus 
at a disadvantage in ensuring safe working conditions. AAJ also 
discounted that the use of cell phone cameras presented enforceability 
problems for FRA.
    In response to AAJ's comment, FRA notes that AAJ acknowledged that 
the proposed NPRM exemption regarding use of cameras would be an 
expansion of the current allowances under EO 26. Section 220.309(c) of 
this final rule will allow for the expanded use of cameras to document 
safety hazards. However, by prohibiting cell-phone cameras except in 
narrow circumstances, FRA enhances its goal of attempting to eliminate 
the use of distracting electronic devices by railroad operating 
employees. In FRA's experience, personal cell phones account for the 
vast majority of documented instances where electronic device 
distraction contributed to railroad accidents. By disallowing the use 
of a camera that is part of a personal cell phone, the agency hopes to 
minimize use of cell phones during safety-critical times, and therefore 
prevent future accidents. Further, even outside the expanded ability to 
photograph safety hazards that this rule grants, railroad employees can 
always report these hazards to FRA or to the railroad. Lastly, FRA is 
not prohibiting employees from carrying stand-alone cameras. Whether an 
employee chooses to carry a personal camera to document potential 
safety hazards is at his or own discretion subject to railroad rules. 
Further, during the periods of time when electronic devices are not 
prohibited from being used by this regulation, employees are free to 
use their personal cell phones in any manner they wish, including the 
camera function, provided that use is in accordance with any applicable 
railroad operating rules.
    AAR requested that FRA delete this proposed camera exemption as 
unnecessary and compromising to security. AAR first reasoned, that even 
without the use of potentially distracting cameras, operating employees 
have other means of reporting safety issues to both the railroad itself 
and to FRA. Second, AAR asserted that for security reasons FRA should 
not allow for the use of cameras at all, as employees could then post 
pictures of security-sensitive locations. In response to AAR's comment, 
FRA declines to delete Sec.  220.309(c) from the final rule. As 
discussed in the NPRM, FRA realizes the importance of being able to 
document violations of railroad safety laws and potential hazardous 
conditions, and FRA does not want to infringe upon that usefulness. The 
provision in the final rule, while

[[Page 59587]]

limiting the use of electronic devices, still allows for hazardous 
conditions to be documented safely. Further, FRA has no information 
that railroad employees distributing what could potentially be 
security-sensitive pictures has been an issue in the past, and this 
regulation only exempts cameras for the purposes of documenting safety 
hazards, and not for any other circumstances.
    Amtrak also commented on the use of cameras, and, similar to their 
comment on GPS devices, wanted to ensure that the proposed regulation 
would not curtail its authority to issue railroad-supplied electronic 
devices that contain a camera feature, so that its employees would be 
able to utilize that function for authorized business purposes. Amtrak 
stated that it envisioned the use of the camera function on railroad-
supplied devices being utilized to document an equipment defect or 
hazard. Amtrak stated that such use could help expedite repair requests 
and forward safety hazard information to the railroad. In response to 
Amtrak's comment, such use of a railroad-supplied device would be 
permissible under this final regulation, as is explained above.
    Finally, the Labor Organizations' joint comment stated that the 
proposed text should be expanded in the final rule to allow for the use 
of the camera feature of a cellular telephone. They stated that any 
device used to document a hazard should be permitted to be used, 
reasoning that the word of railroad employees is not usually sufficient 
for FRA to initiate investigations and that if employees do not have 
the ability to document a hazard in realtime, railroads could repair 
these conditions before an investigation can begin. Finally, the 
comment stated that it is unnecessary to require employees to carry 
several separate electronic devices in order to perform their duties.
    In response, FRA often receives complaints from railroad employees, 
and investigates them if they allege on their face a violation of a 
railroad safety regulation, law, or order. When FRA finds that those 
complaints have merit, FRA often takes enforcement action as a result. 
Next, the Labor Organizations' comment states that if a safety hazard 
is not documented at the time the employee is present, that the 
condition is often repaired. However, the goal of documenting hazards 
is that such conditions would be repaired and made safe in a timely 
fashion. Thus, FRA does not find that argument persuasive. Finally, as 
stated above in response to AAJ's comment, FRA does not require 
operating employees to carry any devices. This regulation merely sets 
the requirements for the permissible uses of certain electronic devices 
in order to eliminate distractions that have in the past had severe 
consequences. If operating employees choose to carry such devices, this 
regulation merely sets forth certain prohibitions on their use.

Comment Proposing (1) New Exception for Electronic Devices Necessary To 
Document Violations of Safety Laws or (2) Amendments to Locomotive 
Safety Standards

    The Labor Organizations' comment requests a general exception for 
``[o]ther electronic devices that are necessary to adequately document 
a safety hazard or a violation of a rail safety law, regulation, order, 
or standard, provided that the devices are turned off immediately after 
the documentation has been made.'' The Labor Organizations expressed 
their concern that a carbon monoxide detector would be subject to the 
restrictions in this subpart. In particular, FRA would consider a 
carbon monoxide detector to be excluded from the definition of 
``electronic device''. A carbon monoxide detector does not perform any 
specifically prohibited functions, and it does not entail the risk of 
distracting an employee from a safety-related task while being 
unnecessary for the employee's health and safety. In addition, FRA does 
not believe this proposed exception is necessary in general. Every FRA 
region has a toll-free phone number to report safety hazards and 
violations. As discussed above, employees can report safety hazards to 
FRA. Accordingly, no general exception for devices necessary to 
document safety hazards will be included in Subpart C.
    The Labor Organizations recommended that if FRA denied the request 
for this general exception that it instead amend 49 CFR part 229, 
Railroad Locomotive Safety Standards. Their suggestion was to allow an 
employee to refuse to operate a locomotive if the employee makes a 
good-faith determination that it does not comply with certain 
regulatory requirements, such as Sec.  229.119(d), requiring proper 
ventilation, and Sec.  229.121, locomotive cab noise. This suggestion 
is outside of the scope of the NPRM and thus will not be addressed by 
this final rule.

Minimum Standards

    The Labor Organizations comment requested that FRA prohibit 
railroads from imposing more restrictions on the use of electronic 
devices than those of this rule. FRA declines to do so. Specifically, 
the Labor Organizations were concerned that railroad operating rules 
would prohibit using calculators and the use of cameras to take 
pictures of safety hazards. FRA finds it unlikely that a railroad would 
prohibit the use of a calculator. There is also a significant 
possibility that some, if not all, railroads will allow the use of 
cameras to take pictures of safety hazards. Amtrak, for example, argued 
that FRA's proposed exception be expanded to allow cameras on cell 
phones and other multi-functional devices to be used. Railroads have a 
vested interest in safety and discovering and remedying safety repairs. 
Train accidents are generally expensive. In addition, even if a 
railroad prohibited the use of cameras for this, employees will be more 
likely to report such defects to FRA. FRA declines to refuse railroads 
the right to impose more restrictive use of electronic devices.
    That railroads may impose more restrictions than Subpart C allows 
is the primary reason why FRA did not delete Sec.  220.311 (standards 
for use by deadheading employees) as AAR requested. AAR voiced its 
concern that a deadheading employee would unsafely use an electronic 
device while walking through a yard. This conduct would be prohibited 
under Sec.  220.311 as it would be interfering with the employee's 
personal safety. Nevertheless, railroads may choose to amend their 
operating rules to prohibit deadheading employees from using electronic 
devices. FRA declines to do so, noting that another commenter objected 
to any restrictions for deadheading employees.

Authorized Business Purpose

    An ``authorized business purpose'' is necessary for railroad 
operating employees to use an electronic device under the less 
restrictive circumstances of Sec.  220.307, as opposed to Sec.  220.305 
which governs personal electronic devices. The Labor Organizations 
stated their concern that a railroad would unreasonably expand the 
definition of ``authorized business purpose,'' and proposed a 
definition of ``authorized business purpose'' that, among other things, 
would require approval by FRA and would include language stating that 
an ``authorized business purpose'' is one that ``is necessary to 
report, document, or prevent an imminent safety hazard * * * '' We 
believe this suggested definition is unnecessarily restrictive, but are 
persuaded by the Labor Organization's argument that a railroad might 
consider requiring a railroad operating employee to answer questions 
regarding incidents from previous duty tours to be an ``authorized 
business purpose.'' Accordingly, FRA has defined the term as ``a 
purpose directly related

[[Page 59588]]

to the tasks that a crewmember is expected to perform during the 
current tour of duty as specified by the railroad in writing.''

Passenger Trains and Considerations Related to Use of Railroad-Supplied 
Phones

    Three commenters (Caltrain, Amtrak, and an anonymous commenter) 
were specifically concerned about the use of electronic devices by 
passenger train railroad operating employees. Caltrain, a commuter rail 
service, requested that FRA incorporate a provision of EO 26 that was 
not included in the proposed rule. The provision Caltrain referred to 
was paragraph (d)(3) of the Order, which allows operating employees to 
use railroad-supplied devices within the body of passenger trains. 
Caltrain was concerned that the exclusion of this provision would limit 
its ability to continue to use Nextel two-way communication systems. 
Those devices can receive texts from its centralized control facility 
but cannot transmit text messages or make or receive phone calls. 
Caltrain requested that paragraph (d)(3) of EO 26 be incorporated into 
Subpart C. That provision reads as follows:

    A railroad operating employee may use a railroad-supplied 
electronic or electrical device for an approved business purpose 
while on duty within the body of a passenger train or railroad 
business car. Use of the device shall not excuse the individual 
using the device from the responsibility to call or acknowledge any 
signal, inspect any passing train, or perform any other safety-
sensitive duty assigned under the railroad's operating rules and 
special instructions.

    When EO 26 was drafted, FRA considered that it would be appropriate 
and necessary for conductors of passenger trains to use cell phones or 
other electronic devices as they dealt with passengers. For this 
reason, the only restrictions on that use when the employee was outside 
of the cab of the locomotive were that the use had to be fo