58702 Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Notices 

considered environmentally acceptable 

for supersonic flight over land. 

The FAA is leading a panel 

discussion entitled, ‘‘State of the Art of 

Supersonics Aircraft Technology—What 

has progressed in science since 1973?’’ 

The purpose of this panel session is to 

raise public awareness on advances in 

supersonic technology, and for the FAA, 

the National Aeronautics and Space 

Administration (NASA), and industry to 

get feedback from interested persons. 

Public involvement is essential in any 

future definition of an acceptable new 

standard that would allow supersonic 

flights over land. We anticipate that this 

will be the first of many meetings 

informing the public on developments 

in the research of shaped sonic booms 

and other technical and environmental 

challenges that need to be addressed in 

developing a new supersonic airplane. 

The FAA’s presentation and panel 

discussion will take place on Friday, 

October 24, 2008, as part of the O’Hare 

Noise Compatibility Commission 

Symposium. It will be held at the Hyatt 

Rosemont Hotel, 6350 N. River Road, 

Rosemont, Illinois. 

More information about the O’Hare 

Noise Compatibility Commission can be 

found at its Web site, 

www.oharenoise.org. 

Issued in Washington, DC, on September 

24, 2008. 

Lynne Pickard, 

Acting Director of Environment and Energy. 

[FR Doc. E8–22898 Filed 10–6–08; 8:45 am] 

BILLING CODE 4910–13–M 

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 nonradio 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 

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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, 

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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 businessrelated 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 

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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: 

• 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. 

• 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. 

• 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. 

• 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. 

• 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. 

• 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. 

• 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. 

• 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. 

• 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. 

• On at least two occasions, FRA 

personnel have observed railroad 

employees on locomotives watching 

digital video disc (DVD) players. 

• 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 

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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. 

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 

Distraction1

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 lowclearance 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. 

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Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Notices 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 safetycritical 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 safetycritical 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 safetyrelated 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 

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58708 Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Notices 

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 railroadsupplied 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 railroadsupplied 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 

DEPARTMENT OF TRANSPORTATION 

Research and Innovative Technology 

Administration 

[Docket: RITA 2008–0002 BTS Paperwork 

Reduction Notice] 

Agency Information Collection; Bureau 

of Transportation Statistics; Activity 

Under OMB Review; Submission of 

Audit Reports—Part 248 

AGENCY: Bureau of Transportation 

Statistics (BTS), DOT. 

ACTION: Notice. 

SUMMARY: In compliance with the 

Paperwork Reduction Act of 1995, 

Public Law 104–13, the Bureau of 

Transportation Statistics invites the 

general public, industry and other 

governmental parties to comment on the 

continuing need for and usefulness of 

BTS requiring U.S. large certificated air 

carriers to submit two true and complete 

copies of its annual audit that is made 

by an independent public accountant. If 

a carrier does not have an annual audit, 

the carrier must file a statement that no 

audit has been performed. Comments 

are requested concerning whether (1) 

The audit reports are needed by BTS 

and DOT; (2) BTS accurately estimated 

the reporting burden; (3) there are other 

ways to enhance the quality, utility and 

clarity of the information collected; and 

(4) there are ways to minimize reporting 

burden, including the use of automated 

collection techniques or other forms of 

information technology. 

DATES: Written comments should be 

submitted by December 8, 2008. 

ADDRESSES: You may submit comments 

identified by DOT Docket ID Number 

RITA 2008–0002 by any of the following 

methods: 

Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

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