27672 Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 

Paragraph 6005 Class E Airspace Areas 

Extending Upward from 700 Feet or More 

Above the Surface of the Earth. 

* * * * * 

ASO GA E5 Columbus, GA [Amended] 

Columbus Metropolitan Airport, GA 

(Lat. 32°30′59′′ N., long. 84°56′20′′ W.) 

Lawson AAF, GA 

(Lat. 32°20′14′′ N., long. 84°59′29′′ W.) 

Lawson VOR/DME 

(Lat. 32°19′57′′ N., long. 84°59′36′′ W.) 

Lawson LOC 

(Lat. 32°20′43′′ N., long. 84°59′55′′ W.) 

That airspace extending upward from 700 

feet above the surface within a 6.8-mile 

radius of Columbus Metropolitan Airport; 

and within 1 mile each side of the 234° 

bearing from the airport extending from the 

6.8-mile radius to 7.3-miles south of the 

airport; and within a 7.6-mile radius of 

Lawson AAF; and within 2.5 miles each side 

of Lawson VOR/DME 340° radial extending 

from the 7.6-mile radius to 15 miles north of 

the VOR/DME; and within 4 miles each side 

of the Lawson LOC 145° course extending 

from the 7.6-mile radius to 10.6 miles 

southeast of Lawson AAF. 

Issued in Washington, DC, on May 7, 2010. 

Edith V. Parish, 

Manager, Airspace and Rules Group. 

[FR Doc. 2010–11851 Filed 5–17–10; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Part 1140 

[Docket No. FDA–2010–N–0136] 

RIN 0910–AG33 

Request for Comment on 

Implementation of the Family Smoking 

Prevention and Tobacco Control Act; 

Extension of Comment Period 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Advance notice of proposed 

rulemaking; extension of comment 

period. 

SUMMARY: The Food and Drug 

Administration (FDA) is extending for 

60 days the comment period for the 

advance notice of proposed rulemaking 

(ANPRM) that appeared in the Federal 

Register of March 19, 2010. In the 

ANPRM, FDA requested comments, 

data, research, or other information on 

the regulation of outdoor advertising of 

cigarettes and smokeless tobacco. The 

agency is taking this action in response 

to a request for an extension to allow 

interested persons additional time to 

submit comments. 

DATES: The comment period for the 

advance notice of proposed rulemaking, 

published March 19, 2010, at 75 FR 

13241, is extended. Submit electronic or 

written comments by July 19, 2010. 

ADDRESSES: You may submit comments, 

identified by Docket No FDA–2010–N– 

0136 and/or RIN number 0910–AG33, 

by any of the following methods: 

Electronic Submissions 

Submit electronic comments in the 

following way: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Written Submissions 

Submit written submissions in the 

following ways: 

• FAX: 301–827–6870. 

• Mail/Hand delivery/Courier (for 

paper, disk, or CD–ROM submissions): 

Division of Dockets Management (HFA– 

305), Food and Drug Administration, 

5630 Fishers Lane, rm. 1061, Rockville, 

MD 20852. 

Instructions: All submissions received 

must include the agency name and 

docket number and Regulatory 

Information Number (RIN) for this 

rulemaking. All comments received may 

be posted without change to http:// 

www.regulations.gov, including any 

personal information provided. For 

additional information on submitting 

comments, see the ‘‘Comments’’ heading 

of the SUPPLEMENTARY INFORMATION

section of this document. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov and insert the 

docket number, found in brackets in the 

heading of this document, into the 

‘‘Search’’ box and follow the prompts 

and/or go to the Division of Dockets 

Management, 5630 Fishers Lane, rm. 

1061, Rockville, MD 20852. 

FOR FURTHER INFORMATION CONTACT: 

Annette Marthaler, Center for Tobacco 

Products, Food and Drug 

Administration, 9200 Corporate Blvd., 

Rockville, MD 20850–3229, 1–877–287– 

1373, annette.marthaler@fda.hhs.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In the Federal Register of March 19, 

2010 (75 FR 13241), FDA published an 

ANPRM with a 60-day comment period 

to request data, research, information, 

and comments on whether restrictions 

on outdoor advertising of tobacco 

products are necessary to protect 

children and adolescents from the 

harms caused by tobacco use and, if 

they are, whether the restrictions under 

consideration (as identified in the 

ANPRM), or close variations would be 

justified, lawful, and appropriate. FDA 

also solicited data, research, 

information, and comments on other 

restrictions on outdoor advertising that, 

either in addition to or instead of the 

specific restrictions under 

consideration, would advance the 

public health goal of protecting children 

and adolescents from the harms caused 

by tobacco use. 

The agency has received a request for 

a 90-day extension of the comment 

period for the ANPRM. The request 

conveyed concern that the current 60- 

day comment period does not allow 

sufficient time to develop a meaningful 

response to the ANPRM. 

FDA has considered the request and 

is extending the comment period for the 

ANPRM for 60 days, until July 19, 2010. 

The agency believes that a 60-day 

extension allows adequate time for 

interested persons to submit comments 

without significantly delaying a 

rulemaking on this important issue. 

II. Comments 

Interested persons may submit to the 

Division of Dockets Management (see 

ADDRESSES) either electronic or written 

comments regarding this document. it is 

only necessary to send one set of 

comments. It is no longer necessary to 

send two copies of mailed comments. 

Identify comments with the docket 

number found in brackets in the 

heading of this document. Received 

comments may be seen in the Division 

of Dockets Management between 9 a.m. 

and 4 p.m., Monday through Friday. 

Dated: May 13, 2010. 

Leslie Kux, 

Acting Assistant Commissioner for Policy. 

[FR Doc. 2010–11799 Filed 5–17–10; 8:45 am] 

BILLING CODE 4160–01–S 

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). 

SUMMARY: FRA is proposing to amend its 

railroad communications regulations by 

restricting use of mobile telephones and 

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Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 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 

http://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 http:// 

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 http:// 

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 DirectorOperating 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 (http:// 

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. 

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27674 Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 

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 

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Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 27675 

1Ranney, Thomas A. (2008). ‘‘Driver Distraction: 

A Review of the Current State-of-Knowledge.’’ DOT 

HS 810 787. Available online at:http:// 

www.scribd.com/doc/12073978/Driver-DistractionA–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: 

http://www.nhtsa.dot.gov/portal/site/nhtsa/

template.MAXIMIZE/menuitem.8f0a41441

4e99092b477cb30343c44cc/?javax.portlet.

tpst=4670b93a0b088a006bc1d6b760008a0c_ws_

MX&javax.portlet.prp_4670b93a0b088a006b

c1d6b760008a0c_viewID=detail_view&itemID=

97b964d168516110VgnVCM1000002fd17898RCRD

&overrideViewName=Article. 

2National Highway Traffic Safety Administration 

(2009). ‘‘National Motor Vehicle Crash Causation 

Survey: Report to Congress.’’ DOT HS 811 059. 

Available online at: http://www-nrd.nhtsa.dot.gov/ 

Pubs/811059.PDF. 

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 http://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 safetyrelated 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

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-anda-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. 

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 crashassociated 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 

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27676 Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 

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: http://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: http://www.nhtsa.dot.gov/staticfiles/DOT/

NHTSA/NRD/Multimedia/PDFs/Crash%20

Avoidance/Driver%20Distraction/100Car_

ESV05summary.pdf. 

4Neale et al., supra note 3. 

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: http://www.

nhtsa.dot.gov/staticfiles/DOT/NHTSA/NRD/

Multimedia/PDFs/Crash%20Avoidance/Driver%20

Distraction/810594.pdf. 

6National Highway Traffic Safety Administration 

(2009). ‘‘Driver Electronic Device Use in 2008.’’ DOT 

HS 811 184. Available online: http://wwwnrd.nhtsa.dot.gov/Pubs/811184.PDF. 

7National Highway Traffic Safety Administration 

(2008). ‘‘Driver Electronic Device Use in 2007.’’ DOT 

HS 810 963. Available online at: http://wwwnrd.nhtsa.dot.gov/Pubs/810963.PDF. 

8NHTSA (2008) supra note 7 and NHTSA (2009) 

supra note 6. 

9Boyle, 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: http://www.nhtsa.dot.gov/staticfiles/ 

DOT/NHTSA/Communication%20&%20

Consumer%20Information/Traffic%20Tech%20

Publications/Associated%20Files/tt371.pdf. 

instrumented vehicles—to provide 

details on driver performance, behavior, 

environment, and other factors 

associated with critical incidents, nearcrashes, 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. 

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) drivingrelated 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. 

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 handheld 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 handheld 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

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. 

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 

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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 

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27678 Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 

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 standalone 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 safetyrelated 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 safetyrelated 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). 

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Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 27679 

Section 220.1 Scope 

FRA proposes to amend the scope of 

§ 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 overinclusion. The definition of ‘‘railroadsupplied 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 

§ 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 § 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 § 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 § 220.1, which provides that 

part 220 only sets minimum standards 

that must be complied with, but that 

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27680 Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 

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 § 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 § 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 RailroadSupplied 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 § 220.305, paragraph (b) of § 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 railroadsupplied 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 

§ 220.311. 

Paragraph (d) of proposed § 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 

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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 

§ 220.303 discussed above. 

Paragraph (a) of § 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 train consist, in hardcopy 

form during the course of her duties. 

However, as stated in the text of 

paragraph (a), the use of this device 

must be authorized under an applicable 

railroad operating rule. For example, if 

a freight conductor wished to utilize a 

railroad-supplied electronic device 

while in the cab of the controlling 

locomotive of a moving train for the 

purpose of accessing a railroad 

operating rule, he would be allowed to 

do so if permitted by applicable railroad 

operating rules. If railroad operating 

rules more stringent than those 

provided by this subpart prohibited the 

use of that device while on a moving 

train, then that use would be 

disallowed. Importantly, FRA also notes 

that this exception must not be read to 

permit a locomotive engineer at the 

controls of a moving train, or in any of 

the situations described in proposed 

§ 220.307(b), to use one of these devices. 

Paragraph (b) of this section 

specifically allows for the use of 

personal electronic devices in response 

to an emergency situation. This 

paragraph is meant to allow flexibility 

to this proposed regulation, as common 

sense dictates that unpredictable 

emergency situations may arise where 

use of a personal electronic device, such 

as a cell phone, may be appropriate. 

FRA contemplated this when it 

proposed § 220.303(b), which allows for 

use of a personal electronic device in 

instances where a radio failure occurs, 

but also proposes this broader 

emergency exception to build in 

flexibility where common sense 

dictates. 

Paragraph (c) sets forth the proposed 

guidelines under which an employee 

may take a photograph or video to 

document a safety hazard or violation of 

a rail safety regulation, order, or 

standard, subject to several 

requirements. This permitted use was 

suggested by the BLET and UTU, as 

discussed above. This proposed 

provision dictates that only cameras 

whose primary function is for taking 

still pictures or videos may be used. As 

stated in the rule text, a camera that is 

part of a cell phone or other electronic 

device is not included in this exception 

for the reasons explained above. Use of 

the camera to document such rail safety 

hazards or violations is only permitted 

where its use does not interfere with a 

crewmember’s performance of a safetyrelated duty, is turned off immediately 

after documentation has been made, and 

is not used by a locomotive engineer 

who is at the controls of a moving train. 

While FRA realizes the importance of 

documenting potential hazardous 

conditions, we emphasize that such 

documentation should only be made 

when the taking of the documentation 

itself would not create a hazardous 

situation. 

Paragraph (d) permits the use of a 

calculator, as also suggested by the 

BLET and UTU in response to the 

Order. The use of this device is common 

in the railroad industry for important 

safety-related purposes. Train tonnage, 

train length, and train stopping formulas 

are commonly computed using a 

calculator. An example of the safetyrelated reasons for allowing the use of 

a calculator includes the need to 

compute train length accurately so that 

a locomotive engineer (via the 

locomotive’s distance counter) can 

accurately ascertain when his or her 

train has cleared a relevant speed 

restriction, interlocking, or working 

limits. However, consistent with 

paragraph (c) above, FRA has chosen to 

limit the permissible devices under this 

paragraph to those whose primary 

purpose is as a calculator. FRA will not 

allow the use of another device, such as 

a personal cell phone that might have a 

calculator function, to be used. The 

temptation afterward to then use that 

device for another non-permissible 

electronic activity might be too great, 

and again could cause enforceability 

problems for FRA. It should be noted, 

however, that this exception should not 

be read to permit a locomotive engineer 

to use a calculator on a moving train, or 

in any of the situations described in 

proposed § 220.307(b). 

Paragraph (e) permits the use of a 

medical device, if that use is consistent 

with the railroad’s standards for medical 

fitness for duty. In putting forth this 

exception, FRA envisioned blood sugar 

monitors used by operating employees 

with diabetes, hearing aids used by 

operating employees with hearing loss, 

etc. The definition of a ‘‘medical device’’ 

was added to the definitions section of 

this part, at § 220.5, as is discussed 

above. FRA finds that the use of these 

devices does not detract from rail safety 

and in many instances may enhance it. 

For example, an operating employee 

with hearing loss who utilizes an 

electronic hearing aid may consequently 

be able to communicate via working 

radio more effectively, resulting in safer 

train operations. 

Paragraph (f) permits the use of 

wireless communication devices for 

crewmembers of trains that are exempt 

from the requirement of a working radio 

under § 220.9(b). That section exempts 

railroads that have less than 400,000 

annual employee work hours from being 

required to have a working radio on the 

controlling locomotive of certain trains 

so long as such usage is limited to 

performing the employees’ railroad 

duties. FRA proposes this exception to 

allow smaller railroads to continue to 

operate as they are presently permitted. 

The locomotives of these railroads do 

not operate at high speeds, do not 

handle regular passenger traffic, are 

only permitted to operate over joint 

territory in specific, low-speed 

circumstances, and must have working 

wireless communications aboard the 

controlling locomotive of trains 

containing placarded hazardous 

material loads. As such, FRA finds there 

is no safety risk in continuing to allow 

permitted railroads to use wireless 

communication devices in place of 

railroad radios so long as such usage by 

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railroad employees is limited to 

performing their railroad duties. It is not 

the intent of this proposed rule to affect 

in any way the use of working wireless 

communications pursuant to existing 

Part 220, as those presently permitted 

business uses have not been problematic 

in regard to safety in the past. This rule 

is instead obviously directed at the type 

of use that occurred in the railroad 

accidents described above. 

Section 220.311 Railroad Operating 

Employees in Deadhead Status 

This section proposes to establish 

guidelines for the use of an electronic 

device by operating employees in 

deadhead status. The definition of ‘‘in 

deadhead status’’ has been added to the 

‘‘definitions’’ section of this part at 

§ 220.5 as discussed above. Paragraph 

(a) of this section allows for employees 

in deadhead status to use electronic 

devices so long as that use does not 

interfere with that employee’s personal 

safety or any other employee’s 

performance of safety related duties. 

FRA proposes this loosened restriction 

on employees in deadhead status as we 

recognize that while deadheading, 

operating employees typically do not 

have any safety-related responsibilities. 

As stated above, these proposed changes 

amend the restrictions on electronic 

devices put forth in the Order in a more 

appropriate manner to address safety 

concerns. 

However, paragraph (b) of this 

proposed section limits the use of any 

electronic device by employees in 

deadhead status who are located inside 

the cab of a controlling locomotive of a 

train. Employees in deadhead status 

who are located inside the cab of a 

controlling locomotive must follow the 

identical restrictions set forth both in 

this provision and in § 220.305, 

regardless of whether the device is a 

personal electronic device or a railroadsupplied electronic device. This is to 

reflect that any use of electronic devices 

in the cab of a controlling locomotive 

has the potential to distract employees 

engaged in safety-related duties, no 

matter the status of person using a 

device. This proposed provision more 

strictly prohibits the use of any railroadsupplied device than does § 220.307, as 

employees in deadhead status typically 

do not have any safety-related 

responsibilities that would necessitate 

use of such devices. 

Section 220.313 Instruction 

This proposed section would require 

railroads to provide instruction to its 

operating employees on the substance of 

this proposed regulation if adopted. 

This instruction is obviously a 

necessary requirement if employees 

would be operationally tested by 

railroad supervisors on the substance of 

this regulation, as FRA has proposed in 

§ 220.315(a). Very simply, by requiring 

such training we also hope also to 

ensure that both railroads and their 

employees are fully aware of the 

requirements of the final regulation. 

In paragraph (a), FRA proposes that 

each railroad maintain a written 

program that will qualify its operating 

employees for compliance with 

operating rules implementing the 

requirements of the final rule. The 

written program may be consolidated 

with the program of instruction required 

under 49 CFR 217.11. Paragraph (a)(1) 

would specifically require that the 

program include instruction on both the 

requirements of this subpart as well as 

consequences of non-compliance. 

Paragraph (a)(2) proposes that the 

written program be required to include 

instruction on specific provisions of this 

rule. FRA notes that proposed paragraph 

(a)(2)(iii) would specifically require that 

instruction be provided on the 

distinctions between the requirements 

of the final rule and any more stringent 

railroad operating rules. FRA proposes 

to mandate this instruction because of 

the different potential consequences 

involved with violation of this subpart 

versus violation of a railroad rule. If 

FRA were to find a probable violation of 

the final rule had occurred, FRA could 

attempt to take action against an 

individual employee by way of its 

authority to impose a monetary civil 

penalty or disqualification of that 

employee from safety-sensitive service. 

These actions are quite different, and in 

some instances much more severe than 

those that a railroad might take against 

an individual employee for a violation 

of its operating rules. The distinction is 

also important given FRA’s request for 

public comment above on whether 

violations of the final rule should be 

considered for purposes of locomotive 

engineer certification revocation in the 

future. 

Paragraph (b) sets the proposed 

implementation schedule for this 

section. Paragraph (b) states that within 

120 days from the publication date of 

the final rule, employees performing 

duties subject to these requirements 

shall receive instruction on the 

requirements of this subpart. Under 

paragraph (b)(1), after 120 days from the 

publication date of the final rule FRA 

proposes no further grace period and 

requires that employees receive 

recurrent training at least every three 

years. FRA expects that new operating 

employees would receive the proper 

training before being allowed to perform 

duties subject to the requirements of 

this subpart. FRA proposes a three-year 

recurrent training window in this 

paragraph because it is a standard 

industry practice to re-qualify 

employees on operating rules at least 

every three years. Finally, in paragraph 

(b)(2), FRA proposes that records 

maintenance of the training required by 

this section shall serve as 

documentation that employees have 

been qualified on the requirements of 

this subpart. 

In paragraph (c), FRA proposes that 

training records discussed in paragraph 

(b)(2) be retained at a railroad’s division 

headquarters where the employee is 

assigned. This will enable FRA to 

quickly obtain such records upon 

request if necessary. Records must be 

kept for each employee trained on the 

requirements of this subpart, and must 

be kept for three years after the end of 

the calendar year to which they relate. 

This paragraph also would allow for 

railroads to keep the required records 

electronically. 

Paragraph (d) provides a mechanism 

for FRA to review a railroad’s written 

program required under paragraph (a). 

This proposed paragraph would require 

that the Associate Administrator for 

Railroad Safety/Chief Safety Officer 

only disapprove programs of 

instruction, training, and examination 

required by this section for cause stated. 

As the disapproval decision is made for 

cause, it is significant for the railroad to 

understand exactly why FRA is 

disapproving the program; thus, FRA 

proposes that its notification of such 

disapproval be made in writing and 

specify the basis for the disapproval 

decision. If the Associate Administrator 

for Railroad Safety/Chief Safety Officer 

disapproves the program, paragraph 

(d)(1) provides that a railroad would be 

required to respond within 35 days by 

either providing submissions in support 

of its program or by amending its 

program and submitting those proposed 

amendments. Paragraph (d)(1)(ii) 

proposes that the Associate 

Administrator for Railroad Safety/Chief 

Safety Officer shall render a final 

decision in writing informing the 

railroad of FRA’s decision. Paragraph 

(d)(2) provides that a failure to submit 

a program with the necessary revisions 

to the Associate Administrator for 

Railroad Safety/Chief Safety Officer will 

be considered by FRA to be a failure to 

implement a program under this part. 

The approach as proposed in 

paragraph (d) recognizes that FRA will 

want to review such written programs 

during audits or investigations, and that 

FRA should have the authority to 

request changes to the program if it does 

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not meet the minimum requirements of 

this rule. FRA does not intend to have 

each railroad submit its program for 

review and explicit approval. Rather, 

FRA intends to review the qualification 

programs of the major railroads over a 

multi-year cycle, in connection with 

review of the overall program of 

operating rules, to determine if they are 

effective. 

Section 220.315 Operational Tests and 

Inspections; Further Restrictions on Use 

of Electronic Devices 

This section proposes to mandate that 

railroads perform operating tests to 

ensure operating employees’ 

compliance with proposed Subpart C. 

FRA also proposes this requirement to 

both help ensure that railroads provide 

employee instruction on the conditions 

of this subpart and to verify that the 

requirements of the subpart are being 

adhered to. 

Paragraph (a) sets forth specific 

guidelines on the minimum number of 

operational tests that must be performed 

by referring to the guidelines 

established in 49 CFR part 217, Railroad 

Operating Rules. Per part 217, railroads 

are already required to perform regular 

operating tests on employees. This 

paragraph would merely add the 

proposed Subpart C to that existing 

requirement. 

Paragraph (b) of this section proposes 

to prohibit railroad supervisors from 

calling or sending a text message to an 

electronic device of a locomotive 

engineer during an operating test while 

the train to which the engineer is 

assigned is moving. This is to prevent 

an operating test from posing potentially 

dangerous distractions that could 

impact rail safety. It is also meant to 

prevent the encouragement of potential 

rail safety violations. 

Finally, paragraph (c) also proposes to 

prohibit the use of electronic devices by 

operating employees during an 

operating test. This necessarily requires 

that for this prohibition to apply, that 

employees be aware that an operating 

test is being conducted, as FRA 

recognizes that during certain operating 

tests employees might not be aware a 

test is in progress. FRA proposes this 

section so that during operating tests 

employees do not attempt what might 

otherwise be a permissible use of 

devices. 

Operating tests present valuable 

learning opportunities that help to 

facilitate railroad safety. Therefore, it is 

FRA’s goal that during operating tests 

both employees and railroad supervisors 

utilize the process in a way most 

beneficial to promoting rail safety. FRA 

proposes this section to help minimize 

employee distraction to ensure that 

those opportunities are fully utilized. 

VII. Regulatory Impact 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This proposed rule is a significant 

regulatory action within the meaning of 

Executive Order 12866 and the U.S. 

Department of Transportation’s 

regulatory policies and procedures 

(DOT Order 2100.5 dated May 22, 1980; 

44 FR 11034, Feb. 26, 1979). FRA has 

made this preliminary determination by 

finding that, although the economic 

effects of the proposed regulatory action 

would not exceed the $100 million 

annual threshold as defined in 

Executive Order 12866, the rule is 

significant because of substantial public 

interest in transportation safety and 

because it is the first part of a broader 

programmatic effort to address 

distracted transportation operations. 

FRA has prepared and placed in the 

docket a regulatory impact analysis 

(RIA) addressing the economic impact 

of this final rule. 

The RIA details estimates of the costs 

likely to be induced over the first 

twenty years after promulgation. This 

analysis also includes break-even 

analyses, or estimates of the monetized 

benefits that would be necessary to 

achieve to offset the total costs of the 

proposed rule. Informed by its analysis 

of the economic effects of both EO 26 

and this proposed rule, FRA believes 

that this proposed rule will achieve the 

same safety outcome as EO 26 at a lower 

cost. The proposed rule achieves this 

outcome more cost-effectively relative to 

EO 26 by removing some restrictions on 

the usage of electronic devices by 

deadhead status employees and on the 

usage of calculators and cameras, under 

certain circumstances. These 

restrictions in EO 26 likely achieved 

little to no safety benefits, but they may 

have created substantial, unquantifiable 

opportunity costs, the removal of which 

makes this proposed rule more costeffective. The costs that may be induced 

by this proposed rule over the twentyyear period considered include both 

direct costs and indirect costs. The 

direct costs may include the cost of 

revising operational testing and 

inspections programs; the cost of 

conducting additional operational 

testing and inspections; the cost of 

training employees; and the cost of 

calculators and cameras for train crew 

use. Indirect costs may include the 

opportunity cost of railroad operating 

employees’ time spent in safety 

briefings. The summed total of the 

estimated direct costs over the first 

twenty years of the proposed rule equals 

about $12.7 million at a 3 percent 

discount rate and about $9.5 million at 

a 7 percent discount rate (in 2009 

dollars). Additionally, the indirect costs 

that may result from this proposed rule 

are estimated to equal about $30.2 

million at a 3 percent discount rate and 

$22.4 million at a 7 percent discount 

rate. The majority of the costs associated 

with implementation of the proposed 

rule would be costs that are already 

being incurred through the 

implementation of EO 26. The table 

below summarizes both the direct and 

indirect costs considered in the RIA, 

summed over the twenty-year period 

analyzed and discounted to present 

value using 3 percent and 7 percent 

discount rates. 

Twenty-year total 

(3% discount rate) 

Twenty-year total 

(7% discount rate) 

Direct costs: 

Revising programs ............................................................................................................ $48,007.64 $45,834.97 

Performing operational tests ............................................................................................. 633,087.44 468,318.78 

Training ............................................................................................................................. 11,586,287.79 8,635,014.44 

Cameras ........................................................................................................................... 334,951.39 252,434.85 

Calculators ........................................................................................................................ 75,080.95 74,083.90 

Total direct costs ....................................................................................................... 12,677,415.21 9,475,686.94 

Indirect costs: 

Opportunity cost of additional time spent in safety briefings ........................................... 30,238,989.11 22,368,926.84 

Total indirect costs .................................................................................................... 30,238,989.11 22,368,926.84 

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27684 Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 

10 ‘‘Table of Size Standards,’’ U.S. Small Business 

Administration, January 31, 1996, 13 CFR Part 121. 

See also NAICS Codes 482111 and 482112. 

11See 68 FR 24891, May 9, 2003. 

12For further information on the calculation of 

the specific dollar limit, see 49 CFR part 1201. 

Although FRA has not estimated the 

benefits of this rule, FRA has performed 

break-even analyses using differing 

assumptions regarding the frequency 

and severity of future accidents caused 

by or linked to electronic device usage. 

In most scenarios considered, it would 

not require an unreasonable decrease in 

the annual probability of such an 

accident in order for the proposed rule 

to at least break even—in fact, for most 

cases considered, decreases in relevant 

accident probability of less than 0.10 

would make the proposed rule costbeneficial. As an alternative framework, 

FRA compared the costs of the proposed 

rule to the minimum number of 

statistical fatalities that would need to 

be prevented for the rule to be costbeneficial. Considering direct costs 

alone, if the new regulation prevented 

the loss of one-fifth of the value of a 

statistical life each year of the twentyyear period examined, the regulation 

would yield positive net benefits. If 

considering direct and indirect costs, 

the regulation would yield positive net 

benefits if it prevented the loss of just 

half of the value of a statistical life each 

year over the twenty-year period 

examined. In other words, prevention of 

one fatal accident every two years 

would justify the requirements of the 

proposed rule. For some perspective on 

the achievability of such prevention, 

FRA notes that over the period from 

2000 to 2008, electronic device usage in 

trains likely caused or contributed to 

accidents resulting in at least 30 

fatalities and over 100 injuries—an 

average of over three deaths per year, as 

well as significant train delay and 

property damages. The table below lists 

the benefits considered in the RIA. 

Benefit 

Fatalities avoided. 

Injuries avoided. 

Property damage avoided. 

Given the frequency and severity of 

accidents together with the observed 

rising incidence of improper uses of cell 

phones and other electronic devices, 

FRA is confident that the elimination of 

improper electronic device usage by 

railroad operating employees, as 

proposed in this rule, will yield safety 

benefits that will exceed the costs. FRA 

requests comments on the Regulatory 

Impact Analysis. 

B. Regulatory Flexibility Act and 

Executive Order 13272 

To ensure potential impacts of rules 

on small entities are properly 

considered, FRA developed this NPRM 

in accordance with Executive Order 

13272 (‘‘Proper Consideration of Small 

Entities in Agency Rulemaking’’) and 

DOT’s procedures and policies to 

promote compliance with the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.). 

The Regulatory Flexibility Act 

requires an agency to review regulations 

to assess their impact on small entities. 

An agency must conduct a regulatory 

flexibility analysis unless it determines 

and certifies that a rule is not expected 

to have a significant impact on a 

substantial number of small entities. 

As discussed in earlier sections of this 

preamble, FRA has discovered 

numerous examples proving the danger 

of distracting electronic devices. This 

rulemaking is intended to limit 

distractions caused by use of cellular 

telephones and other electronic devices 

in an effort to improve railroad safety 

and prevent incidents where loss of 

human life, injuries, and property 

damage may have been attributable to 

distraction by these devices. In 2008 

FRA issued Emergency Order No. 26 

restricting the on-duty use of cellular 

telephones and other electronic devices. 

This FRA action was in part a response 

to the September 12, 2008 Chatsworth 

accident, which resulted in 25 deaths, 

numerous injuries, and more than $7 

million in damages. The BLET and the 

UTU filed a Petition for Review of that 

Order citing some valid concerns. FRA 

is now proposing to codify most of the 

requirements of the Order with some 

modifications to accommodate changes 

previously recommended by a Petition 

for Review of that Order as well as a 

number of amendments that FRA 

believes are appropriate. 

FRA is certifying that the proposed 

rule will result in ‘‘no significant 

economic impact on a substantial 

number of small entities.’’ The reasons 

for this certification are explained in the 

following section of this preamble. 

1. Description of Regulated Entities and 

Impacts 

The ‘‘universe’’ of the entities under 

consideration includes only those small 

entities that can reasonably be expected 

to be directly affected by the provisions 

of this NPRM. In this case, the 

‘‘universe’’ is comprised solely of small 

railroads. 

‘‘Small entity’’ is defined in 5 U.S.C. 

601 (Sec. 601). Sec. 601(3) defines 

‘‘small entity’’ as having the same 

meaning as ‘‘small business concern’’ 

under Sec. 3 of the Small Business Act. 

This includes any small business 

concern that is independently owned 

and operated, and is not dominant in its 

field of operation. Sec. 601(4) likewise 

includes within the definition of ‘‘small 

entities’’ not-for-profit enterprises that 

are independently owned and operated, 

and are not dominant in their field of 

operations. Additionally, Sec.601(5) 

defines as ‘‘small entities’’ governments 

of cities, counties, towns, townships, 

villages, school districts, or special 

districts with populations less than 

50,000. 

The U.S. Small Business 

Administration (SBA) stipulates ‘‘size 

standards’’ for small entities. It provides 

that the largest a for-profit railroad 

business firm may be and still be 

classified as a ‘‘small entity’’ is 1,500 

employees for ‘‘Line-Haul Operating’’ 

railroads, and 500 employees for ‘‘ShortLine Operating’’ railroads.10

SBA size standards may be altered by 

Federal agencies in consultation with 

SBA, and in conjunction with public 

comment. Pursuant to the authority 

provided to it by SBA, FRA has 

published a final policy, which formally 

establishes small entities as railroads 

that meet the line haulage revenue 

requirements of a Class III railroad.11

Currently, the revenue requirement is 

$20 million or less in annual operating 

revenue, adjusted annually for inflation 

($32,113,449 for 2008). This threshold is 

based on the Surface Transportation 

Board’s threshold for a Class III railroad 

carrier, which is adjusted by applying 

the railroad revenue deflator 

adjustment.12 FRA is using this 

definition for this rulemaking. 

Approximately 700 railroads meet the 

criteria for small entity and report 

operational data to FRA. We are using 

this as our estimate of the universe of 

small entities that could be directly 

impacted by the proposed rule. Many of 

these railroads rely on cell phones for 

train operations. 

Like EO 26, the proposed rule 

contains exceptions that would allow 

railroads that have less than 400,000 

annual employee hours and that rely on 

wireless communication devices for 

certain train operations to continue to 

do so, with the same restriction that 

such usage be limited to performing the 

employees’ railroad duties. The primary 

benefactors of this flexibility are small 

railroads. FRA is clarifying that the 

exception in the Order for railroad 

operating employees to use a railroadsupplied or railroad-authorized 

electronic device to conduct train or 

switching operations ‘‘under conditions 

authorized under 49 CFR Part 220’’ is 

intended to accommodate small railroad 

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operations. The locomotives of the 

trains exempt from the requirement to 

have a working radio on the lead 

locomotive do not operate at high 

speeds, do not handle regular passenger 

traffic, are only permitted to operate 

over joint territory in specific, lowspeed circumstances, and must have 

working wireless communications 

aboard the controlling locomotive of 

trains containing placarded hazardous 

material loads. 

The proposed rule contains additional 

flexibility that would reduce the impact 

relative to EO 26. Having considered the 

Petition for Review of the Order, FRA is 

proposing to (1) Allow 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; (2) 

allow use of cameras to document safety 

hazards or violations, except in the cab 

of the controlling locomotive of a 

moving train; and (3) exclude standalone 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. In addition, FRA is 

proposing an exception for medical 

devices to encompass both devices that 

enhance an ability to perform safetyrelated tasks, such as hearing aid, and 

other devices that protect an employee’s 

health and well-being. 

In general, small railroad costs 

associated with compliance with EO 26 

would continue to accrue under FRA’s 

proposal. Additional burden to such 

railroads would come from the 

requirement to provide instruction to its 

operating employees on the substance of 

the proposed regulation as well as the 

need to update their written programs to 

qualify its operating employees for 

compliance with operating rules 

implementing the requirements 

proposed. FRA anticipates that this 

instruction will be achieved through 

means such as distribution of written 

materials to employees, job briefings by 

supervisors or roving instructors, and 

question and answer services. FRA 

estimates that the cost of such 

instruction will come to about 15 

minutes per employee in the first year 

of the rule. Approximately 91,000 train 

and engine employees would be 

impacted, and about 20 percent of these 

would be small railroad employees. 

Assuming a cost per hour of employee 

trained of $43.37, the total cost of this 

additional instruction would be 

approximately $200,000 for small 

railroads or an average of $300 per 

railroad. Revision of programs is not 

expected to entail more than one labor 

hour per railroad. These two one-time 

costs would likely not significantly 

burden any small railroads. 

Additional railroad costs transferred 

from EO26 include the costs associated 

with performing operational tests and 

conducting periodic training. Given that 

operational tests and training associated 

with this regulation would be 

conducted with other required 

operational testing and training, the 

additional annual cost will total about 

as much as the cost in the first year for 

instruction and program revision. 

Again, this cost would likely not 

significantly burden small railroads. 

Because this rule would apply to all 

small railroads, we have concluded that 

a substantial number of small entities 

will be impacted. However, the overall 

impact on small railroads is not 

expected to be significant. FRA believes 

that the costs to small railroads 

associated with the proposed rule are 

not significant and are very similar to 

those currently incurred under EO 26. 

FRA requests comments on all aspects 

of this analysis. 

2. Certification 

Pursuant to the Regulatory Flexibility 

Act, the Federal Railroad 

Administration Administrator certifies 

that this proposed rule would not have 

a significant economic impact on a 

substantial number of small entities. 

Although a substantial number of small 

railroads could be affected by the 

proposed rule, they would not be 

significantly impacted. 

C. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501 et seq. The 

sections that contain the new and 

current information collection 

requirements, and the estimated time to 

fulfill each requirement are as follows: 

CFR Section Respondent universe Total annual 

responses 

Average time per 

response 

Total annual burden 

hours 

220.8—Waivers .............................................. 728 Railroads ............. 6 petitions .................. 1 hour ......................... 6 hours. 

220.25—Instruction in Proper Use of Radio 

Communication.

728 Railroads ............. 91,000 trained Employees.30 minutes ................. 45,500 hours. 

—Subsequent Years ............................... 728 Railroads ............. 12,540 trained Employees.30 minutes ................. 6,270 hours. 

—Operational Testing of Employees ...... 728 Railroads ............. 100,000 tests ............. 5 minutes ................... 8,333 hours. 

220.37—Testing of Radios and Wireless Devices.728 Railroads ............. 780,000 tests ............. 30 seconds ................ 6,500 hours. 

220.61—Transmission of Mandatory Directives: 

—Copying of Mandatory Directives ........ 728 Railroads ............. 7,200,000 copies ....... 1.5 minutes ................ 180,000 hours. 

—Marking Mandatory Directives ............. 728 Railroads ............. 624,000 marks ........... 15 seconds ................ 2,600 hours. 

NEW REQUIREMENTS 

220.307—Use of Railroad-Supplied Electronic Device as Specified in Writing.728 Railroads ............. 728 amended RR Op. 

codes.

1 hour ......................... 728 hours. 

—Engineer and Train Crew Briefings To 

Use RR-Supplied Electronic Device 

Inside/Outside of Locomotive Cab.

91,000 Employees ..... 5,460,000 briefings .... 1 minute ..................... 91,000 hours. 

220.313—Instruction: Railroad Written Program of Instruction.728 Railroads ............. 728 amended programs.1 hour ......................... 728 hours. 

—Implementation: Training of Employees.91,000 Employees ..... 91,000 trained Employees.15 minutes ................. 22,750 hours. 

—Records: Successful Completion of 

Training.

728 Railroads ............. 91,000 records ........... 5 minutes ................... 7,583 hours. 

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27686 Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 

CFR Section Respondent universe Total annual 

responses 

Average time per 

response 

Total annual burden 

hours 

—Approval Process: Disapproval of RR 

Written Program of Instruction or Written Response in Support of Program.

728 Railroads ............. 6 revised programs/ 

written resp.

60 minutes ................. 6 hours. 

220.315—Operational Tests/Inspections— 

Revision of RR Program of Operational 

Tests and Inspections Under Part 217 To 

Include This Subpart.

728 Railroads ............. Burden Incl. Under 

OMB No. 2130– 

0035.

Burden Incl. Under 

OMB No. 2130– 

0035.

Burden Incl. Under 

OMB No. 2130– 

0035. 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. 

Pursuant to 44 U.S.C. 3506(c)(2)(B), 

FRA solicits comments concerning: 

Whether these information collection 

requirements are necessary for the 

proper performance of the functions of 

FRA, including whether the information 

has practical utility; the accuracy of 

FRA’s estimates of the burden of the 

information collection requirements; the 

quality, utility, and clarity of the 

information to be collected; and 

whether the burden of collection of 

information on those who are to 

respond, including through the use of 

automated collection techniques or 

other forms of information technology, 

may be minimized. 

For information or a copy of the 

paperwork package submitted to OMB, 

contact Mr. Robert Brogan, FRA Office 

of Safety, Information Clearance Officer, 

at 202–493–6292, or Ms. Kimberly 

Toone, FRA Office of Administration, 

Information Clearance Officer, at 202– 

493–6132. 

Organizations and individuals 

desiring to submit comments on the 

collection of information requirements 

should direct them to Mr. Robert Brogan 

or Ms. Kimberly Toone, Federal 

Railroad Administration, 1200 New 

Jersey Avenue, SE., 3rd Floor, 

Washington, DC 20590. Comments may 

also be submitted via e-mail to Mr. 

Brogan or Ms. Toone at the following 

addresses: robert.brogan@dot.gov; 

kimberly.toone@dot.gov. 

Written comments may also be sent to 

the Office of Information and Regulatory 

Affairs (OIRA) of the Office of 

Management and Budget at 725 17th St., 

NW., Washington, DC 20503 or sent 

electronically via e-mail at the following 

address: 

oira_submissions@omb.eop.gov. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this proposed 

rule between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. The final rule will 

respond to any OMB or public 

comments on the information collection 

requirements contained in this proposal. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements 

which do not display a current OMB 

control number, if required. FRA 

intends to obtain current OMB control 

numbers for any new information 

collection requirements resulting from 

this rulemaking action prior to the 

effective date of the final rule. The OMB 

control number, when assigned, will be 

announced by separate notice in the 

Federal Register. 

D. Environmental Impact 

FRA has evaluated this NPRM in 

accordance with its ‘‘Procedures for 

Considering Environmental Impacts’’ 

(FRA’s Procedures) (64 FR 28545, May 

26, 1999) as required by the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.), other environmental 

statutes, Executive Orders, and related 

regulatory requirements. FRA has 

determined that this action is not a 

major FRA action (requiring the 

preparation of an environmental impact 

statement or environmental assessment) 

because it is categorically excluded from 

detailed environmental review pursuant 

to section 4(c)(20) of FRA’s Procedures. 

64 FR 28547, May 26, 1999. In 

accordance with section 4(c) and (e) of 

FRA’s Procedures, the agency has 

further concluded that no extraordinary 

circumstances exist with respect to this 

NPRM that might trigger the need for a 

more detailed environmental review. As 

a result, FRA finds that this NPRM is 

not a major Federal action significantly 

affecting the quality of the human 

environment. 

E. Federalism Implications 

Executive Order 13132, ‘‘Federalism’’ 

(64 FR 43255, Aug. 10, 1999), requires 

FRA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, the agency may not issue 

a regulation with federalism 

implications that imposes substantial 

direct compliance costs and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, the agency consults with 

State and local governments, or the 

agency consults with State and local 

government officials early in the process 

of developing the regulation. Where a 

regulation has federalism implications 

and preempts State law, the agency 

seeks to consult with State and local 

officials in the process of developing the 

regulation. 

Section 20106 of Title 49 of the 

United States Code provides that all 

regulations prescribed by the Secretary 

related to railroad safety preempt any 

State law, regulation, or order covering 

the same subject matter, except a 

provision necessary to eliminate or 

reduce an essentially local safety or 

security hazard that is not incompatible 

with a Federal law, regulation, or order, 

and that does not unreasonably burden 

interstate commerce. This NPRM 

proposes a regulation that is related to 

railroad safety and, accordingly, is 

intended to result in a final rule that has 

preemptive effect pursuant to section 

20106. The requirements of the final 

rule would be intended to establish a 

uniform Federal safety standard that 

must be met, and State requirements 

covering the same subject would be 

displaced, whether those standards are 

in the form of State statutes, regulations, 

local ordinances, or other forms of State 

law, including common law. This is 

consistent with past practice at FRA, 

and within the Department of 

Transportation. 

When FRA prescribes a final rule in 

this rulemaking, the final rule would 

not preempt an action under State law 

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Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 27687 

seeking damages for personal injury, 

death, or property damage alleging that 

a party has failed to comply with the 

Federal standard of care that would be 

established by the final rule, including 

a plan or program that would be 

required by the final rule. Provisions of 

a plan or program that exceed the 

requirements of the final rule would not 

be included in the Federal standard of 

care. This is also consistent with past 

practice at FRA, and within the 

Department of Transportation. 

FRA has analyzed this NPRM in 

accordance with the principles and 

criteria contained in Executive Order 

13132. This NPRM will not have a 

substantial effect on the States, on the 

relationship between the Federal 

government and the States, or on the 

distribution of power and 

responsibilities among various levels of 

government. This NPRM will not have 

federalism implications that impose any 

direct compliance costs on State and 

local governments. Consequently, FRA 

concludes that this NPRM has no 

federalism implications. 

F. Unfunded Mandates Reform Act of 

1995 

Pursuant to Section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and Tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in the expenditure by State, 

local, and Tribal governments, in the 

aggregate, or by the private sector, of 

$141,300,000 or more in any 1 year, and 

before promulgating any final rule for 

which a general notice of proposed 

rulemaking was published, the agency 

shall prepare a written statement’’ 

detailing the effect on State, local, and 

Tribal governments and the private 

sector. This NPRM will not result in the 

expenditure, in the aggregate, of 

$141,300,000 or more in any one year, 

and thus preparation of such a 

statement is not required. 

G. Energy Impact 

Executive Order 13211 requires 

Federal agencies to prepare a Statement 

of Energy Effects for any ‘‘significant 

energy action.’’ See 66 FR 28355 (May 

22, 2001). Under the Executive Order a 

‘‘significant energy action’’ is defined as 

any action by an agency that 

promulgates or is expected to lead to the 

promulgation of a final rule or 

regulation, including notices of inquiry, 

advance notices of proposed 

rulemaking, and notices of proposed 

rulemaking: (1)(i) That is a significant 

regulatory action under Executive Order 

12866 or any successor order, and (ii) is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or (2) that is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. FRA has 

evaluated this NPRM in accordance 

with Executive Order 13211. FRA has 

determined that this NPRM is not likely 

to have a significant adverse effect on 

the supply, distribution, or use of 

energy. Consequently, FRA has 

determined that this NPRM is not a 

‘‘significant energy action’’ within the 

meaning of the Executive Order. 

H. Privacy Act Statement 

Anyone is able to search the 

electronic form of all comments 

received into any of DOT’s dockets by 

the name of the individual submitting 

the comment (or signing the comment, 

if submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement published in the Federal 

Register on April 11, 2000 (65 FR 

19477–78), or you may visit http:// 

DocketsInfo.dot.gov. 

I. Executive Order 12988 (Civil Justice 

Reform) 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

List of Subjects in 49 CFR Part 220 

Communications, Penalties, 

Railroads, Railroad safety. 

The Proposed Rule 

For the reasons discussed in the 

preamble, FRA proposes to amend part 

220 of chapter II, subtitle B of Title 49, 

Code of Federal Regulations, as follows: 

PART 220—[AMENDED] 

1. The authority citation for part 220 

is revised to read as follows: 

Authority: 49 U.S.C. 20102–20103, 20103, 

note, 20107, 21301–21302, 21304, 21311; 28 

U.S.C. 2461, note; and 49 CFR 1.49. 

2. Revise § 220.1 to read as follows: 

§ 220.1 Scope. 

This part prescribes minimum 

requirements governing the use of 

wireless communications in connection 

with railroad operations. In addition, 

this part sets forth prohibitions, 

restrictions, and requirements that 

apply to the use of personal and 

railroad-supplied cellular telephones 

and other electronic devices. So long as 

these minimum requirements are met, 

railroads may adopt additional or more 

stringent requirements. 

3. Section § 220.5 is amended by 

adding definitions for ‘‘Earpiece,’’ 

‘‘Electronic device,’’ ‘‘Fouling a track,’’ 

‘‘In deadhead status,’’ ‘‘Medical device,’’ 

‘‘Personal electronic device,’’ ‘‘Railroad 

operating employee,’’ ‘‘Railroadsupplied electronic device,’’ and 

‘‘Switching operation,’’ and revising the 

definition of ‘‘Train’’ to read as follows: 

§ 220.5 Definitions. 

* * * * * 

Earpiece means a small speaker that is 

inserted in or held next to the ear for 

use in transmitting sounds related to an 

electronic device. 

Electronic device means an electronic 

or electrical device used to conduct oral, 

written, or visual communication; place 

or receive a telephone call; send or read 

an electronic mail message or text 

message; look at pictures; read a book or 

other written material; play a game; 

navigate the Internet; navigate the 

physical world; play, view, or listen to 

a video; play, view, or listen to a 

television broadcast; play or listen to a 

radio broadcast other than a radio 

broadcast by a railroad; play or listen to 

music; execute a computational 

function; or, perform any other function 

that is not necessary for the health or 

safety of the person and that entails the 

risk of distracting the employee or 

another railroad operating employee 

from a safety-related task. This term 

does not include— 

(1) Electronic control systems and 

information displays within the 

locomotive cab or on a remote control 

transmitter necessary for a locomotive 

engineer to operate a train or conduct 

switching operations; or 

(2) A digital watch whose only 

purpose is as a timepiece. 

* * * * * 

Fouling a track means the placement 

of an individual in such proximity to a 

track that the individual could be struck 

by a moving train or other on-track 

equipment, or in any case is within four 

feet of the nearest rail. 

* * * * * 

In deadhead status means awaiting or 

in deadhead transport from one point to 

another as a result of a railroad-issued 

verbal or written directive. 

* * * * * 

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Medical device means an instrument, 

apparatus, implement, machine, 

contrivance, implant, or other similar or 

related article (including a component 

part), or accessory that is intended for 

use in the diagnosis of disease or other 

conditions, or in the cure, mitigation, 

treatment, or prevention of disease or 

other conditions. 

Personal electronic device means an 

electronic device that was not provided 

to the railroad operating employee by 

the employing railroad for a business 

purpose. 

Railroad operating employee means a 

person performing duties subject to— 

(1) 49 U.S.C. 21103, ‘‘Limitation on 

duty hours of train employees’’ (i.e., an 

individual engaged in or connected with 

the movement of a train, including a 

hostler); 

(2) 49 U.S.C. 21103 as it was in effect 

on October 15, 2008, the day before the 

enactment of the Rail Safety 

Improvement Act of 2008, Public Law 

110–432, Div. A, 122 Stat. 4848, October 

16, 2008 (i.e., train employees providing 

commuter rail passenger transportation 

or intercity rail passenger transportation 

as defined in 49 U.S.C. 24102); or 

(3) Any Federal Railroad 

Administration regulations prescribed 

pursuant to 49 U.S.C. 21109 governing 

hours of service related to train 

employees. 

* * * * * 

Railroad-supplied electronic device 

means an electronic device provided to 

a railroad operating employee by the 

employing railroad for an authorized 

business purpose. 

* * * * * 

Switching operation means the 

classification of freight cars according to 

commodity or destination; assembling 

of cars for train movements; changing 

the position of cars for purposes of 

loading, unloading, or weighing; placing 

of locomotives and cars for repair or 

storage; or moving of rail equipment in 

connection with work service that does 

not constitute a train movement. 

* * * * * 

Train for purposes of Subparts A and 

B, means one or more locomotives 

coupled with or without cars, requiring 

an air brake test in accordance with 49 

CFR Part 232 or Part 238, except during 

switching operations or where the 

operation is that of classifying and 

assembling rail cars within a railroad 

yard for the purpose of making or 

breaking up trains. The term, for 

purposes of Subpart C, means: 

(1) A single locomotive, 

(2) Multiple locomotives coupled 

together, or 

(3) One or more locomotives coupled 

with one or more cars. 

* * * * * 

4. Add a new Subpart C to part 220 

to read as follows: 

Subpart C—Electronic Devices 

Sec. 

220.301 Purpose and application. 

220.303 General use of electronic devices. 

220.305 Use of personal electronic devices. 

220.307 Use of railroad-supplied electronic 

devices. 

220.309 Permitted uses. 

220.311 Railroad operating employees in 

deadhead status. 

220.313 Instruction. 

220.315 Operational tests and inspections; 

further restrictions on use of electronic 

devices. 

Subpart C—Electronic Devices 

§ 220.301 Purpose and application. 

(a) The purpose of this subpart is to 

reduce safety risks resulting from 

railroad operating employees being 

distracted by the inappropriate use of 

electronic devices, such as mobile 

telephones (cell phones or cellular 

phones) and laptop computers. 

(b) The applicability of this subpart is 

governed by § 220.3; this subpart, 

however, does not affect the use of 

working wireless communications 

pursuant to Subparts A and B. 

(c) The restrictions of this Subpart C 

do not apply— 

(1) To the working radio; or 

(2) When a working radio failure 

occurs and an electronic device is used 

in accordance with railroad rules. 

§ 220.303 General use of electronic 

devices. 

A railroad operating employee shall 

not use an electronic device if that use 

would interfere with the employee’s or 

another employee’s performance of 

safety-related duties. 

§ 220.305 Use of personal electronic 

devices. 

A railroad operating employee must 

have each personal electronic device 

turned off with any earpiece removed 

from the ear— 

(a) When on a moving train; 

(b) When any member of the crew is— 

(1) On the ground, or 

(2) Riding rolling equipment during a 

switching operation; or 

(c) When any railroad employee is 

assisting in preparation of the train for 

movement. 

§ 220.307 Use of railroad-supplied 

electronic devices. 

(a) General restriction. A railroad 

operating employee may use a railroadsupplied electronic device only for an 

authorized business purpose as 

specified by the railroad in writing. 

(b) Use by locomotive engineers 

operating controls. A locomotive 

engineer operating the controls of a train 

shall not use a railroad-supplied 

electronic device— 

(1) When on a moving train; 

(2) When any member of the crew is— 

(i) On the ground, or 

(ii) Riding rolling equipment during a 

switching operation; or 

(3) When any railroad employee is 

assisting in preparation of the train for 

movement. 

(c) Use in freight and passenger 

locomotive cabs generally. In addition to 

the restrictions on locomotive engineers 

described in paragraph (b) of this 

section, a railroad operating employee 

who is not in deadhead status shall not 

use a railroad-supplied electronic 

device in the cab of a controlling 

locomotive except for a mobile 

telephone or remote computing device 

which the employee may use only if, 

before use— 

(1) A safety briefing that includes all 

crewmembers is held; and 

(2) All crewmembers agree that it is 

safe to use the railroad-supplied mobile 

telephone or remote computing device. 

(d) Use outside freight locomotive 

cabs. A freight train crewmember who 

is not in deadhead status may use a 

railroad-supplied electronic device 

outside the cab of a controlling freight 

locomotive only if all of the following 

conditions are met: 

(1) The crewmember is not fouling a 

track; 

(2) Operations are suspended; and 

(3) All members of the crew have been 

briefed that operations are suspended. 

§ 220.309 Permitted uses. 

Notwithstanding any other limitations 

in this subpart, a railroad operating 

employee may use the following, if that 

use does not interfere with any 

employee’s performance of safetyrelated duties— 

(a) The digital storage and display 

function of an electronic device to refer 

to a railroad rule, special instruction, 

timetable, or other directive, if such use 

is authorized under a railroad operating 

rule or instruction. 

(b) An electronic device as necessary 

to respond to an emergency situation 

involving the operation of the railroad 

or encountered while performing a duty 

for the railroad. 

(c) An electronic device to take a 

photograph or video to document a 

safety hazard or a violation of a rail 

safety law, regulation, order, or 

standard, provided that— 

(1) The device’s primary function is as 

a camera for taking still pictures or 

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Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 27689 

videos (A camera that is part of a cell 

phone or other multi-functional 

electronic device is not included in this 

exception.); 

(2) The camera, unless otherwise 

permitted, is turned off immediately 

after the documentation has been made; 

and 

(3) If the camera is used in the cab of 

a moving train, the use is only by a 

crewmember other than the locomotive 

engineer. 

(d) A stand-alone calculator if used 

for an authorized business purpose. 

(e) A medical device that is consistent 

with the railroad’s standards for medical 

fitness for duty. 

(f) A wireless communication device 

to conduct train or switching operations 

if the railroad operating employee is 

part of a crew assigned to a train that is 

exempt from the requirement of a 

working radio under § 220.9(b) when 

the employing railroad has fewer than 

400,000 annual employee work hours. 

§ 220.311 Railroad operating employees in 

deadhead status. 

(a) Notwithstanding other restrictions 

in this subpart, a railroad operating 

employee who is in deadhead status and 

not inside the cab of a controlling 

locomotive may use an electronic device 

only if the employee is not using the 

device in such a way that interferes with 

any employee’s personal safety or 

performance of safety-related duties. 

(b) A railroad operating employee 

who is in deadhead status and located 

inside the cab of a controlling 

locomotive must have each electronic 

device turned off with any earpiece 

removed from the ear— 

(1) When on a moving train; 

(2) When any member of the crew is— 

(i) On the ground, or 

(ii) Riding rolling equipment during a 

switching operation; or 

(3) When any railroad employee is 

assisting in preparation of the train for 

movement. 

§ 220.313 Instruction. 

(a) Program. Beginning [90 (or 120 

where indicated) DAYS FROM THE 

DATE OF PUBLICATION OF THE 

FINAL RULE IN THE FEDERAL 

REGISTER], each railroad shall maintain 

a written program of instruction, 

training, and examination of each 

railroad operating employee and each 

supervisor of the railroad operating 

employee on the meaning and 

application of the railroad’s operating 

rules implementing the requirements of 

this subpart if these requirements are 

pertinent to the employee’s duties. If all 

requirements of this subpart are 

satisfied, a railroad may consolidate any 

portion of the instruction, training, or 

examination required by this subpart 

with the program of instruction required 

under § 217.11 of this chapter. 

(1) The written program of 

instruction, training, and examination 

shall address the requirements of this 

subpart, as well as consequences of 

noncompliance. 

(2) The written program of 

instruction, training, and examination 

shall include, but is not limited to, an 

explanation of the following: 

(i) When a railroad operating 

employee must have personal electronic 

devices turned off with the earpiece 

removed from the ear as required by this 

subpart. 

(ii) If a railroad supplies an electronic 

device to its railroad operating 

employees, when a railroad operating 

employee may use such a device. The 

employee must be trained on what 

constitutes an authorized business 

purpose. 

(iii) The potential penalties and other 

consequences of committing a violation 

of this subpart, both those imposed by 

FRA and those imposed by the railroad, 

as well as any distinction between the 

requirements of this subpart and any 

more stringent requirements imposed by 

the railroad and the related distinction 

between the two sets of potential 

consequences. 

(b) Implementation schedule. Each 

employee performing duties subject to 

the requirements in this subpart shall be 

initially trained prior to [90 (or 120 

where indicated) DAYS FROM THE 

DATE OF PUBLICATION OF THE 

FINAL RULE IN THE FEDERAL 

REGISTER]. 

(1) Beginning [90 (or 120 where 

indicated) DAYS FROM THE DATE OF 

PUBLICATION OF THE FINAL RULE 

IN THE FEDERAL REGISTER], no 

employee shall perform work requiring 

compliance with the operating rules 

implementing the requirements of this 

subpart unless the employee has been 

trained on these rules within the 

previous three years. 

(2) The records of successful 

completion of instruction, examination 

and training required by this section 

shall document the instruction of each 

employee under this subpart. 

(c) Records. Written records 

documenting successful completion of 

instruction, training, and examination of 

each employee and of his or her 

supervisors shall be made and shall be 

retained at the railroad’s system 

headquarters and at the division 

headquarters for each division where 

the employee is assigned for three 

calendar years after the end of the 

calendar year to which they relate and 

made available to representatives of 

FRA for inspection and copying during 

normal business hours. Each railroad to 

which this part applies is authorized to 

retain a program, or any records 

maintained to prove compliance with 

such a program, by electronic 

recordkeeping in accordance with 

§§ 217.9(g) and 217.11(c) of this chapter. 

(d) Approval process. Upon review of 

the program of instruction, training, and 

examination required by this section, 

the Associate Administrator for Railroad 

Safety/Chief Safety Officer may, for 

cause stated, disapprove the program. 

Notification of such disapproval shall be 

made in writing and specify the basis 

for the disapproval. 

(1) If the Associate Administrator for 

Railroad Safety/Chief Safety Officer 

disapproves the program, the railroad 

has 35 days from the date of the written 

notification of such disapproval to— 

(i) Amend its program and submit it 

to the Associate Administrator for 

Railroad Safety/Chief Safety Officer for 

approval; or 

(ii) Provide a written response in 

support of the program to the Associate 

Administrator for Railroad Safety/Chief 

Safety Officer, who informs the railroad 

of FRA’s final decision in writing. 

(2) A failure to submit the program 

with the necessary revisions to the 

Associate Administrator for Railroad 

Safety/Chief Safety Officer in 

accordance with this paragraph is 

considered a failure to implement a 

program under this subpart. 

§ 220.315 Operational tests and 

inspections; further restrictions on use of 

electronic devices. 

(a) The railroad’s program of 

operational tests and inspections under 

Part 217 of this chapter shall be revised 

as necessary to include this subpart and 

shall specifically include a minimum 

number of operational tests and 

inspections, subject to adjustment as 

appropriate. 

(b) When conducting a test or 

inspection under Part 217 of this 

chapter, a railroad officer, manager, or 

supervisor is prohibited from calling the 

personal electronic device or the 

railroad-supplied electronic device used 

by a locomotive engineer while the train 

to which the locomotive engineer is 

assigned is moving. 

(c) When an operational test involves 

stopping a train, interrupting a 

switching operation, or interrupting an 

activity involving another employee 

involved with the movement of the train 

(e.g., through the use of a banner, signal, 

or radio communication), the 

limitations on the use of electronic 

devices set forth in this subpart 

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27690 Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Proposed Rules 

continue to be in effect although the 

train movement, switching operation, or 

other activity is temporarily suspended. 

Issued in Washington, DC, on May 7, 2010. 

Karen Rae, 

Deputy Administrator, Federal Railroad 

Administration. 

[FR Doc. 2010–11484 Filed 5–17–10; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–ES–2009–0054] 

[MO 92210–0–0009–B4] 

RIN 1018–AW20 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Ambrosia pumila (San 

Diego ambrosia) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

reopening of the comment period on our 

August 27, 2009, proposed rule to 

designate critical habitat for Ambrosia 

pumila (San Diego ambrosia). We also 

announce the availability of the draft 

economic analysis (DEA), revisions to 

proposed critical habitat, and an 

amended required determinations 

section of the proposal. We are 

reopening the comment period to allow 

all interested parties an opportunity to 

comment simultaneously on the 

proposed critical habitat, the associated 

DEA, the proposed addition of three 

subunits based on new information, and 

the amended required determinations 

section. If you submitted comments 

previously, you do not need to resubmit 

them because we have already 

incorporated them into the public 

record and will fully consider them in 

preparation of the final rule. 

DATES: The comment period for the 

proposed rule published August 27, 

2009, at 74 FR 44238, is reopened. We 

will consider comments from all 

interested parties received or 

postmarked on or before June 17, 2010. 

Please note that if you use the Federal 

eRulemaking Portal (see ADDRESSES

section, below), the deadline for 

submitting an electronic comment is 

11:59 p.m. Eastern Time on this date. 

Any comments that we receive after the 

closing date may not be considered in 

the final decision on this action. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

on docket number FWS–R8–ES–2009– 

0054. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R8– 

ES–2009–0054; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, U.S. Fish and 

Wildlife Service, Carlsbad Fish and 

Wildlife Office, 6010 Hidden Valley 

Road, Suite 101, Carlsbad, CA 92011; 

telephone (760) 431–9440; facsimile 

(760) 431–5901. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at (800) 877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We intend that any final action 

resulting from the proposed rule is 

based on the best scientific data 

available and will be accurate and as 

effective as possible. Therefore, we 

request comments or information from 

other concerned government agencies, 

the scientific community, industry, and 

any other interested party during this 

reopened comment period on the 

proposed rule to designate critical 

habitat for Ambrosia pumila (San Diego 

ambrosia) that was published in the 

Federal Register on August 27, 2009 (74 

FR 44238), including comments on the 

addition of subunits 3B, 4D, and 5B to 

the proposed critical habitat; the DEA of 

the revised proposed designation; and 

the amended required determinations 

provided in this document. We are 

particularly interested in comments 

concerning: 

(1) The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the 

Endangered Species Act of 1973, as 

amended (Act; 16 U.S.C. 1531 et seq.), 

including whether there are threats to 

the species from human activity, the 

degree of which can be expected to 

increase due to the designation, and 

whether that increase in threat 

outweighs the benefit of designation 

such that the designation is not prudent. 

(2) Specific information that may 

assist us in clarifying or identifying 

more specific primary constituent 

elements (PCEs). Available information 

does not identify a consistent pattern in 

specific life-history requirements and 

habitat types where this species is 

found. For these reasons, the PCEs in 

the proposed rule are broad and based 

on our assessment of the ecosystem 

settings in which the species has most 

frequently been detected and our best 

assessment regarding its life-history 

requisites. We specifically seek 

information that may assist us in 

defining those physical and biological 

features essential to the conservation of 

the species which may require special 

management considerations or 

protection, or in identifying specific 

areas outside the geographical area 

occupied by the species at the time it 

was listed that may be essential for the 

conservation of the species. In 

particular, answers to the following 

questions may be helpful to clarify or 

identify more specific PCEs of A. 

pumila habitat: 

• Does the species reproduce via seed? 

If so, does the species rely on some 

aspect of its environment to trigger seed 

germination? 

•What are the key factors determining 

why the species occupies the particular 

areas it occupies (but not other areas 

with the same habitat type)? For 

example, what role does proximity to 

waterways or vernal pools play? 

(3) Specific information on: 

•The amount and distribution of areas 

proposed as critical habitat for 

Ambrosia pumila; 

• Areas occupied at the time of listing 

that contain features essential to the 

conservation of the species and why we 

should include or exclude these areas in 

the designation; and 

• Areas not occupied at the time of 

listing that are essential for the 

conservation of the species and why. 

(4) How the proposed critical habitat 

boundaries could be refined to more 

closely circumscribe the areas identified 

as essential. We also seek 

recommendations to improve the 

methodology used to delineate the areas 

proposed as critical habitat; we 

especially seek comments regarding 

how we might more accurately 

determine how much area beyond the 

surface covered by above-ground stems 

that we need to include for each 

occurrence of Ambrosia pumila in the 

critical habitat designation to ensure 

that habitat areas include unseen 

underground portions (rhizomes) of A. 

pumila plants (see step number 4 in the 

Methods section of the proposed critical 

habitat rule (74 FR 44246, August 27, 

2009)). 

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