[Federal Register Volume 73, Number 195 (Tuesday, October 7, 2008)]
[Notices]
[Pages 58702-58708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23755]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[FRA Emergency Order No. 26, Notice No. 1]


Emergency Order To Restrict On-Duty Railroad Operating Employees' 
Use of Cellular Telephones and Other Distracting Electronic and 
Electrical Devices

SUMMARY: This is an emergency order to restrict on-duty railroad 
operating employees from improperly using cellular telephones and other 
distracting electronic and electrical devices.

FOR FURTHER INFORMATION CONTACT: Douglas H. Taylor, Staff Director, 
Operating Practices Division, Office of Safety Assurance and 
Compliance, FRA, 1200 New Jersey Avenue, SE., RRS-11, Mail Stop 25, 
Washington, DC 20590 (telephone 202-493-6255); or Ann M. Landis, Trial 
Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., 
RCC-12, Mail Stop 10, Washington, DC 20590 (telephone 202-493-6064).

Introduction

    The Federal Railroad Administration (FRA) of the United States 
Department of Transportation (DOT) has determined that public safety 
compels issuance of this emergency order restricting the improper use 
by railroad operating employees of certain electronic and electrical 
devices. Based on the historical record, rail passenger transportation 
in the United States is an extremely safe mode of transportation. 
However, recent incidents, including one that has claimed 25 lives, 
have caused DOT and FRA to have very serious concerns about the safety 
of the improper usage of cellular telephones (cell phones) and other 
electronic and electrical devices.

Authority

    Authority to enforce Federal railroad safety laws has been 
delegated by the Secretary of Transportation to the Federal Railroad 
Administrator. 49 CFR 1.49. Railroads are subject to FRA's safety 
jurisdiction under the Federal railroad safety laws, 49 U.S.C. 20102, 
20103. FRA is authorized to issue emergency orders where an unsafe 
condition or practice ``causes an emergency situation involving a 
hazard of death or personal injury.'' 49 U.S.C. 20104. These orders may 
impose such ``restrictions and prohibitions * * * that may be necessary 
to abate the situation.'' (Ibid.)

Background

    Although most railroads have rules or procedures in place that 
prohibit or restrict the use of electronic devices such as cell phones 
and personal digital assistants (PDAs), these company rules and 
procedures have not proven effective in preventing serious train 
accidents caused by the unsafe use of such devices. That became clear 
only very recently in a decade-long course of FRA regulatory activity.

FRA Activity

    When FRA amended 49 CFR Part 220-Radio Standards and Procedures on 
January 4, 1999, it was re-titled to ``Railroad Communications,'' to 
reflect its coverage of other means of wireless communications such as 
cell phones, data radio terminals, and other forms of wireless 
communications used to convey emergency and need-to-know information. 
The revisions to Part 220 were the result of recommendations by the 
Railroad Safety Advisory Committee's (RSAC) Working Group, which 
consisted of a diverse group of subject matter experts representing a 
wide array of railroad industry stakeholders.
    In its deliberations, the Working Group examined extensive safety 
data, discussed how to improve compliance with existing Federal 
regulations on radio standards and procedures, and considered whether 
to mandate radios and other forms of wireless communications to convey 
emergency and need-to-know information. FRA sought comments on whether 
non-radio wireless communications procedures paralleling the radio 
procedures in Part 220 should be adopted for cell phones and other 
wireless devices. Particularly, FRA wanted to know whether on-radio 
wireless communications had the same opportunities for misunderstanding 
as radio transmissions and how such procedures would be enforced. After 
reviewing the comments, FRA decided, at that time, not to promulgate 
non-radio wireless communications procedures, based primarily on the 
fact that the Working Group did not consider in depth how to ensure the 
accuracy and completeness of non-radio wireless communications. 
Accordingly, in the final rule, FRA addressed only the testing and 
failure of non-radio wireless communications equipment (see 49 CFR 
220.37 and 220.38, respectively).
    However, FRA emphasized in the preamble to the final rule that the 
procedures in section 220.61 (radio transmission of mandatory 
directives) should be followed even when a cell phone or other form of 
wireless communication is used to transmit mandatory directives. FRA 
stated at the time that it reserved the right to revisit the issue of 
non-radio wireless communications procedures, if necessary.
    On March 17, 2004, FRA met with the National Transportation Safety 
Board (NTSB or Safety Board) at what they termed a ``Safety With A 
Team'' (SWAT) meeting. As the result of Safety Recommendation R-03-1, 
FRA told the Safety Board that it had instructed its inspectors to 
increase its monitoring of unauthorized use of cell phones, but that 
enforcement of any regulation in this area would be challenging. FRA 
stated that it was in the process of gathering copies of enhanced 
railroad operating rules that strengthened the restrictions railroads 
placed on the use of cell phones and that it would review all of these 
rules and procedures governing cell phone use to look for gaps, and 
consider options, to include the issuance of a FRA Safety Advisory.
    FRA also stated to the Board at the SWAT meeting that it would 
discuss the subject of cell phone usage with members of the full RSAC, 
and determine what actions, if any, FRA

[[Page 58703]]

should pursue in relation to this safety recommendation. At the full 
RSAC meeting conducted on April 27, 2004, FRA asked that the members of 
all organizations come to the next full RSAC meeting prepared to 
discuss what their current instructions were for cell phone use, 
whether they need to be improved, and whether this is a subject that 
should be tasked to a new RSAC Working Group. At this time, FRA 
explained to the Board that this new technology (cell phones and other 
wireless forms of communication) aids in reducing overcrowding of radio 
frequencies and that FRA wants to take advantage of the benefits that 
cell phones provide to the railroad industry.
    Also at this time, FRA contacted the General Code of Operating 
Rules (GCOR) Committee, concerning the enhancement of GCOR Rule 1.10 
(use of electronic devices) in the next edition of the GCOR, due to be 
published on April 3, 2005. The GCOR Committee, however, decided not to 
amend the rule at that time. Rather, their position was that each 
member road should address the cell phone issue in its individual 
special instructions.
    In a letter to the NTSB, dated May 26, 2004, FRA subsequently 
provided copies of all relevant railroad operating rules and procedures 
relating to the use of cell phones and other wireless communication 
devices. FRA's initial review of this material indicated that, while 
there is some disparity with respect to the detail of prohibitions 
concerning cell phone use, all railroads canvassed did have a rule that 
prevented and/or limited cell phone use.
    In the above-referenced letter to the Safety Board, FRA recounted 
its initial response to safety recommendation R-03-01, that it had 
changed the title of Part 220 to ``Railroad Communications'' to reflect 
coverage of other means of wireless communications such as cell phones, 
data radio terminals, and other forms of wireless communications used 
to convey emergency and need-to-know information. FRA also reminded the 
Board that the revisions to Part 220 that were effective in 1999 were 
the result of a recommendation by the full RSAC. Further, FRA 
acknowledged that there are many distractions in the course of day-to-
day train operations that could momentarily divert a crewmember's 
attention, and that cell phones were just one of those mentioned. FRA 
still believed, at that time, that the operating rules of the railroad 
adequately addressed these situations and that responsibility for 
compliance rested with company officers and supervisors. Therefore, FRA 
concluded that the railroads' enforcement of their operating rules 
governing cell phone use was sufficient to address the issue without 
the intrusiveness of Federal intervention.
    In a letter from NTSB to FRA, dated August 19, 2004, the Board 
classified safety Recommendation R-03-1 as ``Open-Acceptable 
Response.''
    At the full RSAC meeting on September 22, 2004, members came 
prepared to discuss the issue of cell phone use, whether their current 
instructions were for cell phone use, whether they needed to be 
improved, and whether this was a subject that should be tasked to a new 
RSAC Working Group. This is an issue that appears in all forms of 
transportation. FRA pointed out that the proliferation of cell phone 
technology has now made the devices a necessity, also noting, though, 
that there are many examples of how the use of these devices by 
railroad employees in locomotive cabs of moving trains can be 
distracting.
    FRA still believed, however, that Federal intervention in this area 
was not warranted at that time. FRA also acknowledged at a previous 
full RSAC meeting that, by the same token, there are many other 
distractions in the course of normal everyday train operations that 
could divert a crewmember's attention, for which there are likewise no 
Federal regulations, pointing out that some of these are far more 
invasive than cell phone use.
    The RSAC members present at the meeting unanimously restated that 
virtually all of them restrict cell phone use in one form or another, 
but also acknowledge that the use of this, and related devices, allows 
more effective communication among employees, and that many railroads 
even provide cell phones to their employees. It was also mentioned that 
redundant communication devices are now required by Federal regulation 
(Part 220) and that cell phones are one acceptable example. The 
consensus of those members present was that it was a complex issue and 
that they were not yet prepared to consider a Federal regulation in 
this area. Notwithstanding, while FRA had not yet decided what course 
of action it would follow, FRA agreed to reexamine current railroad 
operating rules and instructions on cell phone use and develop from 
that review what ``best practices'' emerge. FRA would then circulate a 
``best practices'' document among RSAC members for comments before 
forwarding it on to the NTSB.
    In a letter to NTSB, dated August 18, 2006, FRA provided the Safety 
Board with an update on the status of its recommendation R-03-01 with 
respect to cell phone use in the railroad industry. FRA noted that NTSB 
had renewed its interest in the use of cell phones by railroad 
employees as the result of a collision between two BNSF freight trains 
near Gunter, Texas, on May 19, 2004. NTSB had determined that 25 calls 
were made by crewmembers from both trains during the trip and up to the 
time of the collision, and that 22 of those calls were of a personal 
nature. FRA's update indicated to the Board that it had not yet decided 
what final course of action it would follow, but that, with the 
assistance and cooperation of the railroad's operating rules 
departments, it was still developing a ``best practices'' document. It 
was subsequently decided to task the RSAC Operating Rules Working Group 
with developing this document.
    At a meeting of the Operating Rules Working Group on September 27-
28, 2007, held in Fort Worth, Texas, also attended by a representative 
of the NTSB, it was discussed and agreed that the railroad industry, 
with a representative to facilitate the process from the FRA, a ``best 
practices'' operating rule would be developed, and that if the industry 
as a whole could adopt and enforce it, that approach would be 
considered by the Board in lieu of Federal intervention.
    At the next meeting of the GCOR Committee, on November 14-15, 2007, 
also attended by rules officers from NORAC and other major eastern 
railroads not signatory to the GCOR, and the ASLRRA, and facilitated by 
a representative from FRA, just such a ``best practices'' operating 
rule was developed and agreed upon by the GCOR Committee, the ASLRRA, 
NORAC, and other railroads present.
    At a meeting of the Operating Rules Working Group held in 
Washington, DC, on January 17-18, 2008, a draft of the ``best 
practices'' operating rule that was developed by the industry, was 
shared with the Working Group and discussed at length. It was decided 
at that meeting that while the proposed rule was acceptable, it needed 
further enhancements. The suggestion was made that FRA develop a Safety 
Advisory which would contain these additional enhancements, some of 
which were proposed at the meeting. FRA accepted this task and 
subsequently developed a proposed Safety Advisory on the use of cell 
phones and similar wireless communications devices by railroad 
operating employees.
    At a meeting of the Operating Rules Working Group held in 
Grapevine,

[[Page 58704]]

Texas, on May 21-22, 2008, the proposed Safety Advisory on cell phone 
use was discussed and the document was further refined and enhanced to 
include many valuable suggestions. A final draft was then prepared for 
discussion at the next Working Group meeting.
    In the meantime, the course of events recited below was developing 
into the emergency situation FRA now addresses, persuading FRA to 
change its view of the necessity of immediate action.
    At a meeting of the Operating Rules Working Group held in Chicago, 
Illinois, on September 25-26, 2008, a draft of FRA's proposed Emergency 
Order on the use of cell phones, and other forms of wireless 
communication, was discussed and much valuable input received.

Fatal Railroad Accidents During 2008 Involving Cell Phone Use That Are 
Currently Under Investigation by National Transportation Safety Board, 
FRA, or Both

    (1) The National Transportation Safety Board (NTSB or Safety Board) 
and the FRA are currently investigating the September 12, 2008 head-on 
collision between a Southern California Regional Rail Authority 
(Metrolink) commuter train and a Union Pacific Railroad Company (UP) 
freight train at Chatsworth, California, which resulted in the deaths 
of 25 people, the injury of numerous others, and more than $7,100,500 
in damages. Although NTSB has not yet determined the probable cause of 
the accident, preliminary information indicates that the locomotive 
engineer of the Metrolink commuter train may have passed a stop signal. 
NTSB stated that a cell phone owned by the locomotive engineer was 
being used to send a text message within 30 seconds of the time of the 
accident.
    (2) On June 8, 2008, a UP brakeman was struck and killed by the 
train to which he was assigned. FRA's investigation, which has not yet 
been completed, indicates that the brakeman instructed the locomotive 
engineer via radio to back the train up and subsequently walked across 
the track, into the path of the moving train. Information indicates 
that the brakeman was talking on his cell phone at the time of the 
accident.

Train Collisions Between 2000 and 2006 in Which Cell Phone Use Was 
Involved

    (1) Marshall, Texas. 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, 
damages were estimated at $413,194. Both trains had two-person crews. 
The striking train had passed a ``Stop and Proceed at Restricted 
Speed'' signal and was moving at 20 mph. FRA determined (1) that the 
collision was caused by the failure of the locomotive engineer of the 
striking train to comply with restricted speed and (2) that the 
locomotive engineer of the striking train was engaged in cell phone 
conversations immediately prior to the accident.
    (2) San Antonio, Texas. On May 27, 2006 an eastward UP freight 
train collided head on with a westward UP freight train at San Antonio, 
Texas. There were four injuries, and damages were estimated at 
$401,779. Both trains had two-person crews. FRA determined that the 
collision was caused by the eastward train locomotive engineer's 
inattentiveness because he was engaged in a cell phone conversation and 
by the conductor's failure to supervise safe operations.
    (3) Gunter, Texas. On May 19, 2004, one locomotive engineer died, 
and a train conductor suffered serious burns when two BNSF freight 
trains collided head on near Gunter, Texas. The southbound train was 
traveling approximately 37 mph and the northbound train was traveling 
about 40 mph when the collision occurred. The trains were being 
operated under track warrant control rules on non-signaled single track 
territory. The collision resulted in the derailment of five locomotives 
and 28 cars, with damages estimated at $ 2,615,016. Approximately 3,000 
gallons of diesel fuel were released from the locomotives, which 
resulted in a fire.
    The General Code of Operating Rules and the BNSF System General 
Order Number 37 dated March 7, 2004, restricted the use of cell phones 
and other electronic devices. Cell phones were not to be used by 
crewmembers while the train or engine was moving. However, cell phone 
use was allowed while the train or engine was stopped, providing that 
such use did not interfere with required duties. Safety Board 
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. During this time, a total of 25 cell 
phone calls were made or received by the five crewmembers on both 
trains while the trains were in motion. Three of these calls were 
related to railroad business. The southbound engineer made two of the 
business-related calls, and the northbound conductor made the third.
    The southbound engineer's cell phone record showed activity between 
3:12 p.m. and 3:16 p.m. This time period coincides with the time that 
track warrant authority was being received by the conductor on the 
southbound train. (Track Warrant No. 3583 was made effective at 3:17 
p.m.) BNSF track warrant procedures required the receiver (the 
conductor on the southbound train in this case) to repeat back verbatim 
certain critical portions of the track warrant. In this instance, the 
track warrant had to be repeated back to the dispatcher several times 
before it was considered correct.
    Following the 3:17 p.m. effective time on Track Warrant No. 3583, 
the dispatcher asked the engineer on the southbound train to use his 
cell phone to call him at the Network Operations Center. The engineer 
had to call the dispatcher twice because of poor transmission or 
reception during the first call. The first call to the dispatcher was 
made at 3:22 p.m., and the second call was made at 4:02 p.m. Both calls 
were recorded. The dispatcher asked the engineer to provide additional 
assistance to the conductor in future track warrant communications. 
Event recorder data indicate that both calls were made while the train 
was in motion. The conductor on the northbound train's cell phone 
records showed a call to the BNSF work order reporting line 27 at 5:04 
p.m. Event recorder data indicate that the train was in motion at that 
time. The last cell phone activity for the southbound crew was recorded 
at 5:31 p.m. The call lasted about 2 minutes while the train was 
stopped. The last cell phone activity for the northbound crew before 
the collision was recorded at 5:24 p.m. The call lasted about 3 minutes 
while the train was moving. A 911 call was originated from the BNSF 
6351 northbound brakeman's cell phone at 5:48 p.m; the accident took 
place at approximately 5:46 p.m.
    (4) Clarendon, Texas. 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. Both trains had two-member crews, and all 
crewmembers jumped from their trains before the impact. The conductor 
and engineer of the coal train received critical injuries. The 
conductor of the intermodal train received minor injuries; the engineer 
of the intermodal train was fatally injured. The collision resulted in 
a fire that damaged or destroyed several of the locomotives and other 
railroad equipment. The cost of the damages exceeded $8,000,000.
    NTSB found that all four crewmembers involved in this accident

[[Page 58705]]

had personal cell phones. According to cell phone records obtained by 
the Safety Board, the conductor of the coal train used his cell phone 
for brief calls before the train departed Amarillo. The cell phone 
belonging to the engineer of the coal train was used for two calls 
during the morning of the accident. At 8:05 a.m., a 23-minute call 
originated from the engineer's cell phone. After the completion of this 
call, and after about 16 minutes of non-use, another call originated 
from the engineer's phone at 8:44 a.m. This time corresponds to the end 
of the last track warrant, which was given to the coal train at 8:43 
a.m. This call, which lasted about 10 minutes, was to the same number 
as the previous call. The engineer said, and telephone company records 
confirm, that the number called was that of a family member. The 
engineer said that he could not recall the substance of the telephone 
calls that day. He added that he usually called this family member, who 
was in failing health, each morning. The coal train passed the east end 
of Ashtola Siding, the location at which it should have waited for the 
arrival of the intermodal train, at about 8:47 a.m. The engineer said 
he did not remember specifically being on the phone at the time his 
train passed the east end of Ashtola Siding.
    In its investigation of the Clarendon accident, NTSB 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. NTSB 
consequently issued recommendation R-03-1 to FRA: ``Promulgate new or 
amended regulations that will control the use of cell telephones and 
similar wireless communication devices by railroad operating employees 
while on duty so that such use does not affect operational safety.''
    After the Clarendon accident and as a result of a two additional 
collisions, BNSF, on June 18, 2002, issued instructions to operating 
employees that specifically prohibited the use of cell phones and 
laptop computers while on duty, with certain exceptions. Under these 
instructions, locomotive engineers are prohibited from using cell 
phones or laptop computers while operating the controls of a 
locomotive.

Fatal Train Incidents Between 2000 and 2005 Linked With Cell Phone 
Usage

    (1) Copeville, Texas. On December 21, 2005, a contractor working on 
The Kansas City Southern Railway Company's (KCS) property 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. (2) 
Gillette, Wyoming. On December 29, 2000, a BNSF freight train operating 
on the UP was stopped on a siding at Gillette, Wyoming to allow another 
train to pass. The conductor of the stopped train exited the leading 
locomotive and crossed over the track immediately in front of the 
passing train and was struck and killed. The FRA investigation revealed 
the strong possibility that the conductor may have been distracted by 
his cell phone use.

Unsafe Behavior Observed or Otherwise Witnessed by FRA Inspectors

    During the course of regular inspection and enforcement activities, 
FRA railroad safety inspectors have observed railroad employees using 
cell phones in an unsafe manner, often in contravention of existing 
railroad rules and instructions. The inspectors took action to prevent 
an accident from occurring, but did so under FRA's general railroad 
safety authority, not pursuant to any Federal order, rule, standard or 
regulation.
    The following are examples of the unsafe behavior that FRA 
inspectors observed and corrected:
    <bullet> An FRA operating practices specialist observed a 
locomotive engineer at the controls of a moving passenger train answer 
a cell phone call from his conductor. The conductor asked the 
locomotive engineer to order a taxi cab for the crew and the locomotive 
engineer placed such a call.
    <bullet> Two FRA operating practices inspectors observed a remote-
control locomotive operator walking across the tracks with his head 
down and talking on a cell phone. The inspectors approached him, and he 
admitted that the call was not work-related.
    <bullet> An FRA operating practices inspector observed a locomotive 
engineer receive a call on a cell phone while operating the train. The 
engineer answered the call and told the caller he would return his call 
later. When the inspector questioned the engineer about his actions, 
the engineer stated that he was a union representative and he needed to 
be available to his constituents.
    <bullet> On at least two occasions, an FRA Regional Administrator 
received telephone calls from locomotive engineers with concerns about 
safety issues. During the course of the telephone calls, the Regional 
Administrator heard a train horn and asked the locomotive engineers if 
they were operating a train. When they replied in the affirmative, the 
Regional Administrator terminated the telephone calls. An FRA 
headquarters specialist recently reported having the same experience. 
On at least two other occasions, FRA field personnel observed remote-
control locomotive operators talking on a cell phone while operating 
the remote control locomotive.
    <bullet> An FRA Deputy Regional Administrator was conducting an 
initial pre-employment interview over the telephone with a locomotive 
engineer who was applying for an FRA operating practices inspector 
position. The deputy regional administrator heard a train horn in a two 
long, one short, and one long pattern and asked the candidate if he was 
operating a locomotive. The candidate replied that he was, and the 
deputy regional administrator terminated the telephone call. The 
candidate was not selected.
    <bullet> An FRA chief inspector observed an engineer on a passenger 
train use his cell phone to take a call from his conductor who was 
trying to find out what channel the engineer was working on. The train 
was operating at 5 mph in yard limits.
    <bullet> An FRA hazardous materials inspector observed a remote 
control locomotive operator talking on a cell phone while operating the 
controls of a remote control locomotive during switching operations.
    <bullet> A hazardous materials inspector observed a locomotive 
engineer initiate a phone call to the dispatcher on his personal cell 
phone for the purpose of copying a track warrant while operating the 
controls of a locomotive. Additionally, the same engineer was observed 
initiating a cell phone call to the dispatcher, while at the controls 
of a moving locomotive, releasing a track warrant, during a shoving 
move with the conductor on the point of the equipment.
    <bullet> FRA inspectors report that they frequently observe cell 
phones or PDAs within reach of locomotive engineers operating trains. 
If the devices ring, the locomotive engineers rarely answer in the 
presence of the FRA inspector, but the circumstances lead a responsible 
person to conclude that they would answer if the FRA inspector were not 
present.
    <bullet> On at least two occasions, FRA personnel have observed 
railroad employees on locomotives watching digital video disc (DVD) 
players.
    <bullet> Three days after the head-on collision in Chatsworth, an 
FRA operating practices observed a commuter rail engineer on another 
railroad answer a cell phone while awaiting a signal to depart the 
initial passenger station for his trip. The

[[Page 58706]]

locomotive engineer answered the phone after the FRA inspector had 
identified himself.
    The incidents noted above occurred in various parts of the country, 
and involved both freight and passenger trains.

Scientific Research on Cell Phones as a Distraction\1\
---------------------------------------------------------------------------

    \1\ References for this section: Brown, I.D., and Poulton, E.C. 
(1961). Measuring the spare mental capacity of car drivers by a 
subsidiary task. Ergonomics, 4, 35-40.
    Burns, P.C., Parkes, A, Burton, S., Smith, R.K., and Burch, D. 
(2002). How dangerous is driving with a mobile phone? Benchmarking 
the impairment to alcohol (TRL Report RL547). Berkshire, United 
Kingdom: TRL Limited.
    Hosking, S., Young, K.L., and Regan, M.A. (2006). The effects of 
text messaging on young novice driver performance (Report No. 246). 
Victoria, Australia: Monash University Accident Research Centre.
    McCartt, A.T., Hellinga, L.A., and Braitman, K.A. (2006). Cell 
phones and driving: Review of research. Traffic Injury Prevention, 
7, 89-106.
    McEvoy, S.P., Stevenson, M.R., McCartt, A.T., Woodward, M., 
Haworth, C., Palamara, P., and Cercarelli, R. (2005). Role of mobile 
phones in motor vehicle crashes resulting in hospital attendance: A 
case-crossover study. British Medical Journal, 331, 428-432.
    National Transportation Safety Board (2003a). Railroad accident 
report. Collision of two Burlington Northern Santa Fe freight trains 
near Clarendon, Texas. May 28, 2002 (Report No. PB2003-916301). 
Washington, DC: National Transportation Safety Board.
    National Transportation Safety Board (2003b). Highway accident 
report. Ford Explorer Sport collision with Ford Windstar minivan and 
Jeep Grand Cherokee on Interstate 95/495 near Largo, Maryland. 
February 1, 2002 (Report No. PB2003-916202). Washington, DC: 
National Transportation Safety Board.
    National Transportation Safety Board (2007). Highway accident 
report. Motorcoach collision with the Alexandria Avenue bridge 
overpass, George Washington Memorial Parkway, Alexandria, Virginia. 
November 14, 2004 (Report No. PB2007-916201). Washington, DC: 
National Transportation Safety Board.
    Parkes, A.M., Luke, T., Burns, P.C., and Lansdown, T. (2007). 
Conversations in cars: The relative hazards of mobile phones (Report 
TRL 664). Crowthorne, England: TRL Limited.
    Ranney, T. (2008). Driver distraction: A review of the current 
state-of-knowledge (Report No. DOT HS 810 704). Washington, DC: U.S. 
Department of Transportation.
    Reed, N. and Robbins, R. (2008). The effect of text messaging on 
driver behaviour. A simulator study (PPR 367). Berkshire, United 
Kingdom: TRL Limited.
    Trezise, I., Stoney, E.G., Bishop, B., Eren, J., Harkness, A., 
Langdon, C., and Mulder, T. (2006). Report of the road safety 
committee on the inquiry into driver distraction (Report No. 209). 
Melbourne, Australia: Road Safety Committee, Parliament of Victoria.
---------------------------------------------------------------------------

Motor Vehicle Operation

    There is considerable scientific evidence that cell phone use, both 
for oral conversation and for text messaging, increases the risk of 
highway accidents as a result of driver distraction (Brown and Poulton, 
1961; Burns, Parkes, Burton, Smith and Burch, 2002; McCartt, Hellinga, 
and Braitman, 2006; Parkes, Luke, Burns and Lansdown, 2007; Ranney, 
2008; Reid and Robbins, 2008). ``Driver distraction'' is defined by the 
Australian Road Safety Board (Trezise, Stoney, Bishop, Eren, Harkness, 
Langdon, and Mulder, 2006) as follows:

    Driver distraction is the voluntary or involuntary diversion of 
attention from the primary driving tasks not related to impairment 
(from alcohol, drugs, fatigue, or a medical condition) where the 
diversion occurs because the driver is performing an additional task 
(or tasks) and temporarily focusing on an object, event, or person 
not related to the primary driving tasks. The diversion reduces a 
driver's situational awareness, decision making, and/or performance 
resulting, in some instances, in a collision or near-miss or 
corrective action by the driver and/or other road user.

    Use of cell phones (voice communication) while driving increases 
reaction times, causes failures to detect hazards, and to have more 
variability in lane position. A driver's use of cell phones up to 10 
minutes before a crash, or at the time of a collision, was found to be 
associated with a fourfold increased likelihood of being involved in a 
crash (McCartt et al., 2006; McEvoy, Stevenson, McCartt, Woodward, 
Haworth, Palamara, and Cercarelli 2005).
    Text messaging has similar effects on driving performance. For 
instance, Hosking, Young, and Regan (2006) found that text messaging 
caused a 400-percent increase in time looking away from the road as 
compared to driving without text messaging. Reed and Robbins (2008) 
found increased reaction times, failures to detect hazards, and large 
increases in lane position variability. The increased reaction times 
observed were greater than that caused by alcohol consumption (to legal 
limit) and cannabis. They concluded that increased mental workload, 
loss of motor control caused by holding the phone, and constant 
shifting of visual gaze resulted in significantly impaired ability to 
maintain a safe road position while text messaging.
    These research studies are bolstered by two highway accident 
investigations conducted by NTSB (NTSB, 2003b, 2007). In 2002, a Ford 
Explorer Sport landed on top of a Ford Windstar minivan that was 
subsequently hit by a Jeep Cherokee (see NTSB, 2003b). The accident 
resulted in five fatalities. NTSB determined that the probable cause of 
the collision was ``the Explorer driver's failure to maintain 
directional control of her high-profile, short-wheel base vehicle in 
the windy conditions due to a combination of inexperience, 
unfamiliarity with the vehicle, speed, and distraction caused by the 
use of handheld wireless telephone.'' (Emphasis added to original text. 
NTSB, 2003b, p. 62). In 2004, the driver of a motorcoach on the George 
Washington Memorial Parkway collided with the side and underside of an 
overpass while talking on a hands-free cell telephone (see NTSB, 2007). 
NTSB determined that the probable cause of this collision ``was the bus 
driver's failure to notice and respond to posted low-clearance warning 
signs and to the bridge itself due to cognitive distraction resulting 
from conversing on a hands-free cellular telephone while driving.'' 
(NTSB, 2007, p. 33). It should be noted that the research studies cite 
increased variability in lane position, which corresponds to the 
failure to maintain directional control of the vehicle in the 2002 
accident, and failures to detect hazards, which corresponds to the bus 
driver's lack of response to the low-clearance warnings.

Train Operations

    While there are no research studies of locomotive engineer 
distraction and safety performance, we can easily draw parallels 
between operating a motor vehicle and operating a train. Failures to 
detect hazards in either operating environment would result from the 
increase in heads-down time, constant shift of visual gaze and 
increased mental workload. In the railroad environment, this could 
result in the failure to detect signals, whistle boards, rear end 
marking devices, broken rails and other conditions that could cause 
derailments or collisions. The increased mental workload and heads-down 
time could also degrade situation awareness and result in speeding, 
excessive braking, missed radio communications, and poor train 
handling.
    A railroad accident report by NTSB (2003a) confirms the parallels 
noted above. As noted above, in 2002, two freight trains had a head-on 
collision near Clarendon, Texas. NTSB determined that the probable 
cause of this accident was ``the coal train engineer's use of a cell 
phone during the time he should have been attending to the requirements 
of the track warrant his train was operating under.'' (NTSB, 2003a, p. 
28). NTSB's findings noted that the cell phone use probably distracted 
the engineer and caused him not to take note of an after-arrival 
stipulation in the track warrant that required him to prepare his train 
to stop. Again, this is a failure to detect a hazard.

[[Page 58707]]

Findings and Order

    Based on the evidence recited above, I find that railroad operating 
employees are increasingly using cell phones and other electronic and 
electrical devices during railroad operations, in violation of railroad 
operating rules, in a manner and to an extent that these practices 
constitute an emergency situation involving a hazard of death or 
personal injury because use of these devices distracts the users' 
attention from safety-critical duties. These obviously unsafe practices 
reflect the powerful influence of pervasive private use of cell phones 
and other electronic and electrical devices; powerful intervention, in 
the form of this Emergency Order, is necessary to counteract that 
influence and to eliminate this source of extremely dangerous 
distraction in the railroad operating environment. I find that the 
unsafe conditions previously discussed create an emergency situation 
involving a hazard of death or personal injury. Accordingly, pursuant 
to the authority of 49 U.S.C. 20104, delegated to me by the Secretary 
of Transportation (49 CFR 1.49), it is hereby ordered that, on and 
after October 27, 2008, the prohibitions and restrictions described 
below shall be observed by railroad operating employees and railroads.
    (a) Scope. This order sets forth prohibitions and restrictions that 
apply to railroad operating employees' use of mobile telephones 
(commonly called cell telephones or cell phones), other electronic 
devices or electrical devices, and other portable electronic devices 
(such as portable digital video disc (DVD) players, radio receivers, 
and audio players) capable of distracting a railroad operating employee 
from a safety-critical duty (by railroad operating employees either 
while in the cab of a moving locomotive, while working on the ground in 
proximity to a live track) or while another employee of the railroad is 
assisting in preparation of the train (e.g., during an air brake test). 
This order does not restrict use of the railroad radio nor does it 
affect the use of working wireless communications under 49 CFR Part 
220.
    (b) Definitions. In this order--
    (1) 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.
    (2) Personal electronic or electrical device means an electronic or 
electrical device that was not provided to the railroad operating 
employee by the employing railroad for one or more business purposes.
    (3) Railroad operating employee means a person performing duties 
subject to 49 U.S.C. 21103, ``Limitation on duty hours of train 
employees,'' an individual engaged in or connected with the movement of 
a train, including a hostler.
    (4) Railroad-supplied electronic or electrical device means an 
electronic or electrical device provided to a railroad operating 
employee by the employing railroad for one or more business purposes.
    (5) 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.
    (6) Train means (i) a single locomotive, (ii) multiple locomotives 
coupled together, or (iii) one or more locomotives coupled with one or 
more cars.
    (7) Use of an electronic or electrical device means use of a mobile 
telephone or another electronic or electrical device to conduct an oral 
communication; place or receive a telephone call; send or read an 
electronic mail message or text message; play a game; navigate the 
Internet; 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; to execute a 
computational function, or to 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 from a safety-critical task. An 
electronic or electrical device that enhances the individual's physical 
ability to perform these tasks, such as a hearing aid, is not covered 
by this order.
    (8) Wireless communication device means an electronic device 
capable of communicating remotely. Examples include cell phones, 
personal digital assistants (PDAs) and portable computers (commonly 
called laptop computers). References to use of a wireless communication 
device include oral conversations, text messaging, electronic mail, and 
transmission or receipt of a file and one or more media.
    (c) Personal electronic and electrical devices. (1) Each personal 
electronic or electrical device must be turned off with any earpieces 
removed from the ear while on a moving train, except that, when radio 
failure occurs, a wireless communication device may be used in 
accordance with railroad rules and instructions.
    (2) Each personal electronic or electrical device must be turned 
off with any earpieces removed from the ear when a duty requires any 
railroad operating employee to be on the ground or to ride rolling 
equipment during a switching operation and during any period when 
another employee of the railroad is assisting in preparation of the 
train (e.g., during an air brake test).
    (3) Use of a personal electronic or electrical device to perform 
any function other than voice communication while on duty is 
prohibited. In no instance may a personal electronic or electrical 
device interfere with the railroad operating employee's performance of 
safety-related duties.
    (d) Railroad-supplied electronic and electrical devices. (1) The 
use of a railroad-supplied electronic or electrical device by a 
locomotive engineer (including a remote-control locomotive operator) is 
prohibited while on a moving train, or when a duty requires any member 
of the crew to be on the ground or to ride rolling equipment during a 
switching operation, or during any period when another employee of the 
railroad is assisting in preparation of the train (e.g., during an air 
brake test).
    (2) A railroad operating employee other than a locomotive engineer 
operating the controls of a moving train may use a railroad-supplied 
mobile telephone or remote computing device in the cab of a moving 
locomotive for an authorized business purpose, after a safety briefing, 
provided that all assigned personnel on the crew agree that it is safe 
to do so. Any other use is prohibited in the cab.
    (3) A railroad operating employee may use a railroad-supplied 
electronic or electrical device for an approved business purpose while 
on duty within the body of a passenger train or railroad business car. 
Use of the device shall not excuse the individual using the device from 
the responsibility to call or acknowledge any signal, inspect any 
passing train, or perform any other safety-sensitive duty assigned 
under the railroad's operating rules and special instructions.
    (4) For freight train crewmembers, a railroad operating employee 
may not use a railroad-supplied electronic or electrical device for an 
approved business purpose while on duty outside the cab unless the 
following conditions are met: (1) The employee is not fouling a track; 
(2) no switching operation is underway; (3) no other safety duties are 
presently required; and (4) all members

[[Page 58708]]

of the crew have been briefed that operations are suspended.
    (e) Operational testing. (1) The railroad's program of operational 
tests and inspections under 49 CFR Part 217 shall be revised as 
necessary to include the requirements of this order and shall 
specifically include a minimum number of operational tests and 
inspections, subject to adjustment as appropriate.
    (2) When conducting tests and inspections under 49 CFR Part 217, a 
railroad officer, manager or supervisor is prohibited from calling the 
personal electronic or electrical device or the railroad-supplied 
electronic or electrical device used by a locomotive engineer while the 
train to which the locomotive engineer is assigned is moving.
    (3) When an operational test involves stopping a train, 
interrupting a switching operation, or interrupting an activity 
involving other employees of the railroad (e.g., through use of a 
banner, signal, or radio communication), the limitations set forth in 
this order regarding use of electronic and electrical devices shall 
continue to be in effect even though the train movement, switching 
operation, or other activity is temporarily suspended.
    (f) Exceptions. Notwithstanding any other provision of this order--
    (1) A railroad operating employee may use the digital storage and 
display function of a personal or railroad-supplied 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;
    (2) Railroad operating employees may use a personal or railroad-
supplied wireless communication device as necessary to respond to an 
emergency situation involving the operation of the railroad or 
encountered while performing a duty for the railroad;
    (3) A locomotive engineer (including a remote-control locomotive 
operator) may use electronic control systems and informational displays 
presented to the locomotive engineer within the locomotive cab or on a 
remote control transmitter to operate a train or conduct a switching 
operation, including functions associated with controlling switches;
    (4) Under conditions authorized under 49 CFR Part 220, a railroad 
operating employee may use a railroad-supplied or railroad-authorized 
working wireless communication device, in lieu of the railroad radio, 
to conduct train or switching operations;
    (5) A railroad employee may refer to a digital timepiece to 
ascertain the time of day or to verify the accuracy of speed 
indicators.
    (g) Training. Each railroad shall instruct each of its railroad 
operating employees and supervisors of railroad operating employees 
concerning the requirements of this order and implementing railroad 
rules and instructions. Such instruction shall be sufficient to ensure 
that the requirements of this order are understood, including any 
relevant distinctions between the minimum requirements of this rule and 
any more stringent requirements implemented by the railroad.
    (h) Sanctions. (1) Any individual who willfully violates a 
prohibition stated in this order or uses any of the described devices 
without observing any of the restrictions stated in this order is 
subject to civil penalties under 49 U.S.C. 21301.
    (2) In addition, such an individual whose violation of this order 
demonstrates the individual's unfitness for safety-sensitive service 
may be removed from safety-sensitive service on the railroad under 49 
U.S.C. 20111.
    (3) A railroad that violates this order may be subject to civil 
penalties under 49 U.S.C. 21301.
    (4) FRA may, through the Attorney General, also seek injunctive 
relief to enforce this order. 49 U.S.C. 20112.

Relief

    A railroad may obtain relief from this order by adopting other 
means of ensuring that railroad operating employees are not distracted 
from their duties by use of electronic or electrical devices or by 
implementing technology that will prevent inappropriate acts and 
omissions from resulting in injury to persons. Such relief may be 
obtained by petition to the FRA Associate Administrator for Safety 
establishing that the alternative means provide equivalent safety.
    FRA anticipates that it will utilize the existing Railroad Safety 
Committee Operating Practices Working Group in the formulation of an 
amendment to 49 CFR Part 220 to address comprehensively the safety 
implications of the use of electronic devices by railroad employees. 
Until that is accomplished, this emergency order is necessary to reduce 
the likelihood of additional accidents caused by the unsafe use of 
electronic devices.

Effective Date and Notice To Affected Persons

    On and after October 27, 2008, the prohibitions and restrictions 
described above shall be observed by railroads and railroad operating 
employees. Notice of this Emergency Order will be provided by 
publishing it in the Federal Register.

Review

    Opportunity for formal review of this emergency order will be 
provided in accordance with 49 U.S.C. 20104(b) and section 554 of title 
5 of the United States Code. Administrative procedures governing such 
review are found at 49 CFR part 211. See 49 CFR 211.47, 211.71, 211.73, 
211.75, and 211.77.

    Issued in Washington, DC, on October 1, 2008.
Joseph H. Boardman,
Administrator.
 [FR Doc. E8-23755 Filed 10-6-08; 8:45 am]
BILLING CODE 4910-06-P