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



[[Page 59579]]

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Part V





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 220



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

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

[[Page 59580]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 220

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


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

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

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

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

DATES: Effective March 28, 2011.

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

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Background
    A. Notice of Proposed Rulemaking
    B. Effective Date
    C. Background Information
    D. Justification for the Rulemaking
    E. Legal Basis for the Rulemaking
    F. Distracted Driving Impacts All Transportation Modes
    1. Aviation
    2. Rail
    3. Motorcoach
    G. Studies
    1. FRA Study
    1. National Motor Vehicle Crash Causation Survey (NMVCCS)
    2. 100-Car Naturalistic Driving Study
    3. National Occupant Protection Use Survey (NOPUS)
    4. Motor Vehicle Occupant Safety Survey (MVOSS)
    H. Other Efforts
    1. State Action
    2. Federal Action
II. Response to Public Comment
III. Section-by-Section Analysis
IV. Regulatory Impact
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    1. Description of Regulated Entities and Impacts
    2. Certification
    C. Paperwork Reduction Act
    D. Environmental Impact
    E. Federalism Implications
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Privacy Act Statement
    I. Executive Order 12988

I. Background

A. Notice of Proposed Rulemaking

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

B. Effective Date

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

C. Background Information

    The increasing number of distractions for drivers has led to 
increasing safety risks. The distractions caused by cell phones (mobile 
phones/cellular phones) have been a concern for years. In addition, 
each day, drivers are distracted by eating, conversations with 
passengers, using portable electronic

[[Page 59581]]

devices, or some other type of multitasking. This type of behavior 
results in vehicle accidents and significant costs to our nation's 
economy. Parallels are easily drawn between distracted driving and the 
operation of trains while using distracting electronic devices, as 
evidenced by the examples discussed below.
    In response to this growing problem, DOT hosted a Distracted 
Driving Summit in Washington, DC (http://www.distraction.gov/dot/). At 
the Summit, DOT brought together safety and law enforcement experts as 
well as young adults whose distracted driving had tragic consequences. 
Attendees heard the testimony of families who lost loved ones because 
someone else had chosen to send a text message, dial a phone, or become 
occupied with another activity while driving. In addition to hosting 
the Summit, DOT has reviewed recent research and has decided to take a 
more systematic look at the issue and its many dimensions. Another 
Distracted Driving Summit is scheduled for September 21, 2010.

D. Justification for the Rulemaking

    FRA has discovered numerous examples of the dangers posed by 
distracting electronic devices. These examples indicate the necessity 
of restrictions on the use of such electronic devices. Five of these 
accidents are described below, though all of these and more can be 
found in the full text of the Order.
    1. On June 8, 2008, a Union Pacific Railroad Company (UP) brakeman 
was struck and killed by the train to which he was assigned. FRA's 
investigation indicated that the brakeman instructed the locomotive 
engineer via radio to back the train up and that the brakeman 
subsequently walked across the track, into the path of the moving 
train. The brakeman was talking on his cell phone at the time of the 
accident.
    2. On July 1, 2006, a northward BNSF Railway Company (BNSF) freight 
train collided with the rear of a standing BNSF freight train at 
Marshall, Texas. Although there were no injuries, there were estimated 
damages of $413,194. Both trains had two-person crews. The striking 
train had passed a ``Stop and Proceed at Restricted Speed'' signal 
indication and was moving at 20 mph. FRA determined that the collision 
was caused by the failure by the locomotive engineer on the striking 
train to comply with restricted speed and that he was engaged in cell 
phone conversations immediately prior to the accident.
    3. On December 21, 2005, a contractor working on property of The 
Kansas City Southern Railway Company at Copeville, Texas was struck and 
killed when he stepped into the path of an approaching freight train. 
FRA's investigation disclosed that the contractor was talking on a cell 
phone at the time of the accident.
    4. One locomotive engineer died and a train conductor suffered 
serious burns when two BNSF freight trains collided head-on near 
Gunter, Texas on May 19, 2004. The collision resulted in the derailment 
of 5 locomotives and 28 cars, with damages estimated at $2,615,016. 
Approximately 3,000 gallons of diesel fuel were released from the 
locomotives, which resulted in a fire. The National Transportation 
Safety Board (NTSB) investigators obtained records that showed the 
number and duration of cell phone calls made by crewmembers on both 
trains between 1:50 p.m. and the time of the accident, approximately 
5:46 p.m. During this time, a total of 22 personal cell phone calls 
were made and/or received by the five crewmembers on both trains while 
the trains were in motion.
    5. At 8:57 a.m. on May 28, 2002, an eastbound BNSF coal train 
collided head on with a westbound BNSF intermodal train near Clarendon, 
Texas. The conductor and engineer of the coal train received critical 
injuries. The engineer of the intermodal train was killed. The cost of 
the damages exceeded $8,000,000. The NTSB found that all four 
crewmembers involved in this accident had personal cell phones. It also 
found that the use of a cell phone by the engineer of one of the trains 
may have distracted him to the extent that he was unaware of the 
dispatcher's instructions that he stop his train at a designated point.
    On October 1, 2008, FRA issued EO 26 restricting the use of 
cellular telephones and other electronic devices while on duty. (73 FR 
58702, Oct. 7, 2008). This FRA action was in part a response to the 
accidents discussed above and in part a response to the September 12, 
2008 head-on collision between a Southern California Regional Rail 
Authority (Metrolink) commuter train and a UP freight train in 
Chatsworth, California. This accident resulted in 25 deaths, numerous 
injuries, and more than $7 million in damages. Information discovered 
during the NTSB investigation indicates that the locomotive engineer of 
the Metrolink commuter train passed a stop signal. NTSB stated that a 
cell phone owned by the commuter train engineer was being used to send 
a text message within 30 seconds of the time of the accident.
    In the period from the effective date of the Order, October 27, 
2008, through August 2010, FRA inspectors discovered approximately 249 
instances in which the Order may have been violated. FRA's Office of 
Railroad Safety recommended enforcement action against the employee or 
railroad in 56 of these instances. Forty-nine of these actions were 
based on a railroad employee's using an electronic device, failing to 
have its earpiece removed from the employee's ear, or failing to have 
the device turned off in a potentially unsafe situation. In addition, 
48 of the incidents recommended for enforcement action involved 
personal, as opposed to railroad-supplied, devices. These incidents 
begin to illustrate the hazards of using distracting electronic devices 
while on duty. For this reason, FRA is compelled to promulgate 
enforceable regulations to prevent the unsafe use of electronic devices 
by on-duty railroad employees.
    FRA has considered the costs and benefits of this rule. Relative to 
the current requirements of EO 26, the only additional burden produced 
by the requirements of this rule is that related to revising programs 
and initial instruction focused on the exceptions that this rule will 
introduce as well as the additional potential cost for purchasing or 
carrying cameras or calculators. This added burden will total 
approximately $696,000 (PV, 3%) or $613,000 (PV, 7%) over a 20-year 
period. The exceptions to the existing restrictions on the use of 
electronic devices will allow for greater flexibility with respect to 
the use of certain electronic devices while maintaining the safety 
benefits intended. Thus, when compared to the existing requirements, 
the added flexibility will justify the relatively minor cost burden.
    In an effort to also evaluate the requirements that will be 
transferred from EO 26 to Part 220, FRA examined costs and benefits 
relative to conditions prior to issuance of EO 26 in the format of 
break-even analyses, which can be relied upon to indicate likely net 
benefit outcomes. Applying highly conservative assumptions, 20-year 
direct and indirect costs could total as much as $31.9 million 
(discounted at 7%) or $42.9 million (discounted at 3%). The break-even 
analyses for the rule and EO 26 show that, in all scenarios considered, 
it will not require an unreasonable decrease in the probability of an 
accident in order to at least break even. As discussed more completely 
in the Regulatory Impact Analysis accompanying this rule, the frequency 
and severity of accidents together with the observed rising incidence 
of

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

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

    Congress required the Secretary to complete a study on the safety 
impact of the use of personal electronic devices by safety-related 
railroad employees by October 16, 2009, and to report to Congress on 
the results of the study within six months after its completion. See 
Sec. 405(a) and (c) of the Rail Safety Improvement Act of 2008 (RSIA), 
Public Law 110-432, Div. A, 122 Stat. 4848, Oct. 16, 2008 (122 Stat. 
4885, 49 U.S.C. 20103 note). Sec. 405(d) of the RSIA authorizes the 
Secretary to prohibit the use of personal electronic devices that may 
distract employees from safely performing their duties based on the 
conclusions of the required study. The Secretary, in turn, has 
delegated the responsibility to carry out these duties and to exercise 
this authority to the Federal Railroad Administrator. 49 CFR 1.49(oo). 
See also 49 CFR 1.49(m) for further rail safety related delegations, 
including general rulemaking authority, to the Federal Railroad 
Administrator.
    The required study, titled ``The Impact of Distracting Electronic 
Devices on the Safe Performance of Duties by Railroad Operating 
Employees'' \1\ was completed and submitted to Congress on May 27, 
2010. The study stated that FRA found that railroad operating employees 
were increasingly using distracting electronic devices in a manner that 
created hazards. As such, FRA intervention was warranted.FRA will 
continue to monitor compliance regarding the use of electronic devices 
by railroad employees.
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    \1\ FRA Report ``The Impact of Distracting Electronic Devices on 
the Safe Performance of Duties by Railroad Operating Employees'' 
(May 27, 2010). Available online at: http://www.fra.dot.gov/downloads/safety/CellPhoneReport4510.pdf.
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F. Distracted Driving Impacts All Transportation Modes

    The use of cell phones and other electronic devices has become 
ubiquitous in American society. There is strong evidence that people 
permit electronic devices to distract them from driving all kinds of 
vehicles and that such distractions can have serious safety 
consequences.
1. Aviation
    On October 21, 2009, Northwest Airlines Flight 188 was enroute from 
San Diego to Minneapolis-St. Paul International/Wold-Chamberlain 
Airport with 144 passengers. Flight 188 overflew its destination 
airport by approximately 150 miles before air traffic controllers were 
able to contact the crew via radio. After the incident, the pilot and 
first officer told the NTSB that they had lost track of the plane's 
location because they had been distracted in the cockpit while using 
personal laptop computers and discussing airline crew scheduling 
procedures. Using personal laptop computers in the cockpit was a 
violation of airline policy, and the Federal Aviation Administration 
suspended the certificates of both the pilot and first officer on 
October 27, 2009.
2. Rail
    See the discussion above.
3. Motorcoach
    On November 14, 2004, a bus struck a bridge on the George 
Washington Parkway in Alexandria, Virginia, a serious accident that 
destroyed the roof of the motorcoach and injured 11 students, including 
one seriously. As determined by an NTSB investigation, the bus driver 
said he had been talking on a hands-free cell phone at the time of the 
accident. Records from the bus driver's personal cell phone service 
provider showed that the bus driver initiated a 12-minute call on the 
morning of the accident. The driver said that he saw neither the 
warning signs nor the bridge itself before the impact. Evidence 
indicates that he did not apply any brakes before impacting the bridge. 
The NTSB concluded that the bus driver's cell phone conversation at the 
time of the accident diverted his attention from driving.
    This crash resulted in the NTSB recommendation H-06-27 that 
commercial driver's license (CDL) holders with a passenger-carrying or 
school bus endorsement be prohibited from using cell phones or other 
personal electronic devices while driving those vehicles.
    Statistics show that distraction from the primary task of driving 
presents a serious and potentially deadly danger. In 2008, 5,870 people 
lost their lives and an estimated 515,000 people were injured in 
police-reported crashes in which at least one form of driver 
distraction was reported on the crash report. While these numbers are 
significant, they may not state the true size of the problem, since it 
is difficult to identify distraction and its role in a crash. See 
http://www.dot.gov/affairs/DOT%20HS%20811%20216.pdf.
    First, the data are based largely on police accident reports that 
are conducted after the crash has occurred. These reports vary across 
police jurisdictions, thus creating potential inconsistencies in 
reporting. Some police accident reports identify distraction as a 
distinct reporting field, while others identify distraction from the 
narrative portion of the report. Further, the data includes only those 
crashes in which at least one form of driver distraction was actually 
reported by law enforcement, thus creating the potential for an 
undercount.
    In addition to, and contributing to, inconsistent reporting of 
distraction on police accident reports, there are challenges in 
determining whether the driver was distracted at the time of the crash. 
Self-reporting of negative behavior, such as distracted driving, is 
likely lower than actual occurrence of that behavior. Law enforcement 
must also rely on crash investigation information to determine if 
distraction

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was involved in those crashes with a driver death. The information 
available to law enforcement may not indicate distraction even where it 
was a cause of or a factor in the accident. For these additional 
reasons, reported crashes involving distraction may be undercounted.

G. Studies

    Due to differences in methodology and definitions of distraction, 
any study or survey conducted may arrive at different results and 
conclusions with respect to the involvement of driver distraction in 
causing a crash. A 2008 research paper sponsored by the National 
Highway Traffic Safety Administration (NHTSA) entitled, Driver 
Distraction: A Review of the Current State-of-Knowledge, discusses 
multiple means of measuring the effects of driver distraction including 
observational studies of driver behavior, crash-based studies, and 
experimental studies of driving performance. Each type of study has its 
own set of advantages and disadvantages.\2\
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    \2\ Ranney, Thomas A. (2008). ``Driver Distraction: A Review of 
the Current State-of-Knowledge.'' DOT HS 810 787. Available online 
at: http://www.scribd.com/doc/12073978/Driver-Distraction-A-Review-of-the-Current-StateofKnowledge. A more comprehensive listing of 
research on distracted driving, which includes links to many of the 
reports discussed in this analysis, can be found online at: http://www.nhtsa.dot.gov/portal/site/nhtsa/template.MAXIMIZE/menuitem.8f0a414414e99092b477cb30343c44cc/?javax.portlet.tpst=4670b93a0b088a006bc1d6b760008a0c_ws_MX&javax.portlet.prp_4670b93a0b088a006bc1d6b760008a0c_viewID=detail_view&itemID=97b964d168516110VgnVCM1000002fd17898RCRD&overrideViewName=Article.
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1. National Motor Vehicle Crash Causation Survey (NMVCCS)
    NHTSA recently conducted a nationwide survey of crashes involving 
light passenger vehicles with a focus on factors related to pre-crash 
events.\3\ The NMVCCS investigated a total of 6,950 crashes during the 
three-year period from January 2005 to December 2007. The report used a 
nationally representative sample of 5,471 crashes that were 
investigated during a two-and-a-half-year period from July 3, 2005, to 
December 31, 2007. Based on the sampling method of the survey, findings 
were representative of the nation as a whole.
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    \3\ NHTSA (2009). ``National Motor Vehicle Crash Causation 
Survey: Report to Congress.'' DOT HS 811 059. Available online at: 
http://www-nrd.nhtsa.dot.gov/Pubs/811059.PDF.
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    Survey researchers were able to assess the critical event that 
preceded the crash, the reason for this event, and any other associated 
factors that might have played a role. Examples of the critical event 
preceding the crash include running off the edge of the road, failure 
to stay in the proper lane, or loss of control of the vehicle. 
Researchers assessed the reason underlying this critical event and 
attributed that reason to either the driver, the condition of the 
vehicle, failure of the vehicle systems, adverse environmental 
conditions, or roadway design. Each of these areas was further broken 
down to determine more specific critical reasons. For the driver, 
critical reasons included facets of driver distraction and, therefore, 
NMVCCS was able to quantify driver distraction involvement in crashes. 
The percentages included in this discussion are based on 5,471 crashes.
    In addition to reporting distraction as the critical reason for the 
pre-crash event, NMVCCS also reported crash-associated factors. These 
are factors such as interior distractions that likely added to the 
probability of a crash occurrence. In cases where the researchers 
attributed the critical reason of the pre-crash event to a driver, 
researchers also attempted to determine the role and type of 
distraction. Of the crashes studied, about 18 percent of the drivers 
were engaged in at least one interior (i.e., in-vehicle) non-driving 
activity (e.g., looking at other occupants, dialing or hanging up a 
phone, or conversing with a passenger). For the most part, that 
activity was conversing either with other passengers or on a cell 
phone, as a total of about 12 percent of drivers in these crashes were 
engaged in conversation. Drivers between ages of 16 and 25 demonstrated 
the highest rate of being engaged in at least one interior non-driving 
activity.
2. 100-Car Naturalistic Driving Study
    The 100-Car Naturalistic Driving Study was an observational study--
via instrumented vehicles--to provide details on driver performance, 
behavior, environment, and other factors associated with critical 
incidents, near-crashes, and crashes for 100 cars over a one-year 
period.\4\ This exploratory study was conducted to determine the 
feasibility of a larger-scale study that would be more representative 
of the nation's driving behavior. Despite the small scale of the 100-
Car study, extensive information was obtained on 241 primary and 
secondary drivers over a 12- to 13-month period occurring between 
January 2003, and July 2004. The data covered approximately 2 million 
vehicle miles driven and 43,000 hours of driving. As stated in An 
Overview of the 100-Car Naturalistic Study and Findings, ``the goal of 
this study was to maximize the potential to record crash or near crash 
events through the selection of subjects with higher than average crash 
or near crash risk exposure.''\5\ In order to achieve this goal, the 
100-car study selected a larger sample of drivers who were 18-25 years 
of age and who drove more than average.
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    \4\ Dingus, T.A. et al. (2006). ``The 100-Car Naturalistic 
Driving Study, Phase II--Results of the 100-Car Field Experiment.'' 
DOT HS 810-593. Available online at: http://www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/NRD/Multimedia/PDFs/Crash%20Avoidance/Driver%20Distraction/100CarMain.pdf. Neale et al. (2005). ``An 
Overview of the 100-Car Naturalistic Study and Findings.'' NHTSA 
Paper Number 05-0400. Available online at: http://www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/NRD/Multimedia/PDFs/Crash%20Avoidance/Driver%20Distraction/100Car_ESV05summary.pdf.
    \5\ Neale et al.,supra note 3.
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    Additionally, the subjects were selected from the Northern 
Virginia/Washington, DC metropolitan area which offers primarily urban 
and suburban driving conditions, often in moderate to heavy traffic. 
This type of purposive sample served well the intentions of the study; 
however, it also created limitations on the application of the 
findings. The findings of the 100-car study cannot be generalized to 
represent the behavior of the nation's population or the potential 
causal factors for the crashes that occur across the nation's roadways.
    During the 100-car study, complete information was collected on 69 
crashes, 761 near-crashes, and 8,295 incidents. The encompassing term 
inattention was classified during this study as (1) secondary task 
involvement, (2) fatigue, (3) driving-related inattention to the 
forward roadway, and (4) non-specific eye glance away from the forward 
roadway. Secondary task involvement is defined for the study as driver 
behavior that diverts the driver's attention away from the driving 
task; this may include talking on a cell phone, eating, talking to a 
passenger, and other distracting tasks. Results of the 100-car study 
indicate that secondary task distraction contributed to over 22 percent 
of all the crashes and near-crashes recorded during the study 
period.\6\ This study found that when a secondary task took the 
driver's eyes off of the road for more than 2.0 seconds (out of a 6.0-
second time interval), the odds of a crash or near-crash event 
occurring significantly increased.
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    \6\ Klauer et al. (2006). ``The Impact of Driver Inattention on 
Near-Crash/Crash Risk: An Analysis Using the 100-Car Naturalistic 
Driving Study Data.'' DOT HS 810 594. Available online at: http://www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/NRD/Multimedia/PDFs/Crash%20Avoidance/Driver%20Distraction/810594.pdf.

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[[Page 59584]]

3. National Occupant Protection Use Survey (NOPUS)
    NHTSA's annual survey of occupant protection also collects data on 
electronic device use. NOPUS provides the only probability-based 
observed data on driver electronic device use in the United States.\7\ 
Based on the sampling method of the survey, findings are representative 
of the nation as a whole. In 2008, it was estimated that about 6 
percent of all drivers were using hand-held cell phones while driving 
during daylight hours. This finding means that about 812,000 vehicles 
on the road at any given daylight moment were being driven by someone 
using a hand-held cell phone in 2008. Survey data from the previous 
year yielded an even higher figure: according to NOPUS, in 2007 about 
1,005,000 vehicles were being driven by someone using a hand-held cell 
phone at any given daylight moment.\8\ Another finding was that in both 
2007 and 2008 an estimated 11 percent of vehicles in a typical daylight 
moment were driven by someone who was using some type of electronic 
device, either hand-held or hands-free.\9\
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    \7\ NHTSA (2009). ``Driver Electronic Device Use in 2008.'' DOT 
HS 811 184. Available online at:  http://www-nrd.nhtsa.dot.gov/Pubs/811184.PDF.
    \8\ NHTSA (2008). ``Driver Electronic Device Use in 2007.'' DOT 
HS 810 963. Available online at:  http://www-nrd.nhtsa.dot.gov/Pubs/810963.PDF.
    \9\ NHTSA (2008) supra note 7 and NHTSA (2009) supra note 6.
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4. Motor Vehicle Occupant Safety Survey (MVOSS)
    The MVOSS is a periodic national telephone survey on occupant 
protection issues. The most recent administration of the survey was in 
2007. Volume 4, Crash Injury and Emergency Medical Services Report, 
includes discussion of questions pertaining to wireless phone use in 
the vehicle.\10\ According to the report summarizing the 2007 data, 81 
percent of drivers age 16 and older usually have a wireless phone in 
the vehicle with them when they drive. Drivers over the age of 54 were 
less likely than younger drivers to have them--87 percent of 16- to 54-
year olds, 74 percent of 55-to 64-year-olds, and 63 percent of drivers 
age 65 and older. Of those drivers who usually have a wireless phone in 
the vehicle, 85 percent said they keep the phone on during all or most 
of their trips. Among drivers who keep the phone turned on when they 
drive, 64 percent always or usually answer incoming phone calls.
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    \10\ Boyle, J.M. and C. Lampkin (2008). ``2007 Motor Vehicle 
Occupant Safety Survey Volume 4: Crash Injury and Emergency Medical 
Services Report.'' DOT HS 810 977. See report summary dated March 
2009 online at: http://www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/Communication%20&%20Consumer%20Information/Traffic%20Tech%20Publications/Associated%20Files/tt371.pdf.
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    Of the drivers who usually have a wireless phone in the vehicle 
with them when they drive, 16 percent said they talk while driving 
during most or all of their trips, and 17 percent said they talk on 
their wireless phone during about half of their trips. On the other 
hand, 22 percent of individuals reported never talking on their phone 
while driving. When driving and wanting to dial the phone, 32 percent 
of those who at least occasionally talk on the phone while driving tend 
to dial the phone while driving the vehicle. An additional 37 percent 
tend to wait until they are temporarily stopped, and 19 percent tend to 
pull over to a stop to place the call. Ten percent stated they never 
dial while driving.

H. Other Efforts

1. State Action
    Texting while driving is prohibited in 30 States, the District of 
Columbia, the Virgin Islands, and Guam. A list of States and 
Territories that have taken such actions can be found at the following 
DOT Web site: http://www.distraction.gov/state-laws. Many other States 
have instituted even stricter prohibitions on the use of cell phones 
for other functions, including voice communications, while driving.
2. Federal Action
    On October 1, 2009, during DOT's Distracted Driving Summit, the 
President issued Executive Order 13513 on ``Federal Leadership on 
Reducing Text Messaging While Driving.'' Among other things, the Order 
prohibits all Federal employees from engaging in text messaging while--
    <bullet> Driving Government-owned, -leased, or -rented vehicles;
    <bullet> Driving privately-owned vehicles while on official 
Government business; and
    <bullet> Using electronic equipment supplied by the Government 
(including, but not limited to, cell phones, BlackBerries, or other 
electronic devices) while driving any vehicle.
    On April 1, 2010, the Federal Motor Carrier Safety Administration 
published a notice of proposed rulemaking which proposed to prohibit 
texting by commercial motor vehicle (CMV) drivers while operating in 
interstate commerce. 75 FR 16391 (April 1, 2010). The rule was proposed 
to improve safety on the Nation's highways by reducing the prevalence 
of distracted driving-related crashes, fatalities, and injuries 
involving drivers of commercial motor vehicles.
    On April 26, 2010, the Federal Aviation Administration issued 
Information for Operators (InFO) guidance \11\ on cockpit distractions, 
urging crewmembers to refrain from engaging in distracting tasks not 
related to flight duties, such as using personal electronic devices. 
The guidance highlighted recent incidents in which pilots had engaged 
in the use of distracting personal electronic devices while performing 
required flight duties, and called on air carriers to create policies 
limiting pilot distraction.
---------------------------------------------------------------------------

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

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

II. Response to Public Comment

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

[[Page 59585]]

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

Locomotive Engineer Certification Revocation

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

Access to Employees' Personal Cell Phone Records

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

Personal Emergencies

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

GPS Devices

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

[[Page 59586]]

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

Cameras

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

[[Page 59587]]

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

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

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

Minimum Standards

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

Authorized Business Purpose

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

[[Page 59588]]

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

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

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

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

    When EO 26 was drafted, FRA considered that it would be appropriate 
and necessary for conductors of passenger trains to use cell phones or 
other electronic devices as they dealt with passengers. For this 
reason, the only restrictions on that use when the employee was outside 
of the cab of the locomotive were that the use had to be for an 
approved business purpose and it could not interfere with the 
performance safety-sensitive duties. Subpart C does not explicitly 
address conductors or other railroad operating employees of passenger 
trains using railroad-supplied electronic devices; however, Subpart C 
retains the substantive restrictions as set forth in EO 26. Conductors 
of passenger trains wanting to use railroad-supplied electronic devices 
outside the locomotive must comply with Sec.  220.307, requiring the 
use to be for an authorized business purpose, as well as Sec.  220.305, 
which states that the employee may not use an electronic device if it 
would interfere with the employee's safety-related duties. Subpart C 
does not otherwise restrict the use of railroad-supplied electronic 
devices of conductors or assistant conductors.
    Caltrain did not specify whether its locomotive engineers currently 
use its Nextel system while in the cab. Subpart C kept the restrictions 
of EO 26 regarding a locomotive engineer using railroad-supplied 
electronic devices; engineers may not use them while on a moving train, 
when any member of the crew is on the ground or riding rolling 
equipment during a switching operation, or when any railroad employee 
is assisting in preparation of the train for movement. Assuming 
Caltrain does not fall under the exception of Sec.  220.309(f), 
Caltrain must apply for and receive a waiver for its locomotive 
engineers to use its Nextel system in other circumstances. FRA believes 
the way that the rule is currently written adequately balances the 
needs of passenger train operations and safety. Subpart C does not 
prohibit conductors on passenger trains from communication channels for 
purposes relating to railroad operations as one anonymous commenter, 
concerned about a recent commuter train's lack of air conditioning, 
implied.
    As previously discussed, Amtrak submitted a comment expressing its 
desire for FRA to clarify whether its conductors may use GPS 
technology, possibly within the cab of a controlling locomotive. Amtrak 
also requested that FRA explicitly allow railroad operating employees 
to use the cameras of a multifunctional device to take pictures of 
safety hazards. Amtrak plans to distribute conductor handheld 
electronic devices nationally in 2011. Subpart C will allow Amtrak 
employees on passenger trains to use both GPS technology and cameras to 
take pictures of safety hazards, provided that these uses are specified 
in writing and do not interfere with an employee's safety-related 
duties.
    If the employee is located inside the cab of a passenger train, 
then a conductor may use a GPS application or a camera function on a 
railroad-supplied handheld device if the crew has held a safety 
briefing and all crewmembers have unanimously agreed that it is safe to 
use the device. If a passenger crewmember is outside the cab of a 
locomotive, a conductor may use such a device to photograph a safety 
hazard if the employee complies with both Sec.  220.307, requiring the 
use to be for an authorized business purpose, and Sec.  220.303, which 
states that the employee must not use an electronic device if it would 
interfere with the employee's safety-related duties.

Operational Tests

    Section 220.315 of the NPRM contained proposed requirements related 
to operational tests. In response, FRA received three comments from 
AAR, NTSB, and the Labor Organizations. AAR's comment stated that it 
was not clear on the meaning of proposed Sec.  220.315(c) and 
questioned whether FRA implied that employees were supposed to be aware 
that operational tests were occurring. AAR asked for clarification from 
FRA on this point. In response, FRA did not intend that railroad 
employees must be notified that an operations test will occur or is 
occurring under proposed Sec.  220.315(c). The explanation for that 
proposed provision was intended to convey that once railroad employees 
became aware that an operations test was occurring, that even if use of 
electronic devices was otherwise permissible under the proposed 
regulation, that they refrain from use of any devices until the 
completion of the test. This provision was intended to help ensure that 
employees could achieve the maximum learning benefit from operational 
tests. However, in light of AAR's comment that the provision was 
confusing, and after further review, FRA has decided to delete proposed 
Sec.  220.315(c) from this final rule. FRA decided to do so as in most 
circumstances, other than a banner test, employees are not even aware 
an operational test is underway until after the test is completed. 
Thus, the proposed provision may not have been of much practical 
utility, and could have led to additional confusion.
    The NTSB's comment stated that FRA should provide more guidance to 
develop uniform standards of guidance across the railroad industry. 
NTSB stated that the use of in-cab audio and image recordings could be 
used as a deterrent, and reiterated a recommendation published as a 
result of the Chatsworth, California, Metrolink crash. That 
recommendation is that FRA require the installation of inward-facing 
video cameras and also require that railroads regularly review the 
images recorded on these cameras.
    In response to NTSB's comment, FRA has left to the railroads' 
discretion how to conduct operational tests on the requirements of this 
subpart, but has required that those tests shall be included in a 
railroad's program of tests under 49 CFR part 217. FRA has also 
required that a railroad's program be revised to include a minimum 
number of tests that must be performed. This is consistent with FRA's 
approach to

[[Page 59589]]

allowing railroads the discretion to best tailor testing to their 
specific operating situations and needs. FRA currently does not have 
regulations mandating inward-facing video cameras on locomotives to 
monitor employee's actions while operating trains. As NTSB's comment 
mentioned, requiring such cameras could raise potential privacy 
concerns. Further, no FRA regulations preclude railroads from 
installing inward-facing cameras at their own discretion should they 
want to monitor their employees actions, as some railroads currently 
do. Also, requiring inward-facing video cameras was outside the scope 
of the NPRM. Finally, 49 CFR 229.135 currently requires that most 
controlling locomotives be equipped with event recorders. Event 
recorders allow railroads to monitor how trains are operated by their 
employees.
    The Labor Organizations' comment requested that FRA expand the 
proposed Sec.  220.315(b) prohibition on calling the device of a 
locomotive engineer on a moving train. The comment proposed text that 
would prohibit railroad managers from calling the devices of all 
crewmembers during additional periods. In response to the Labor 
Organizations' comment, FRA has decided to amend the text of proposed 
Sec.  220.315(b) in this final rule. FRA has included all railroad 
operating employees rather than just locomotive engineers, expanded the 
provision to prohibit railroad managers from calling the devices of 
employees during additional safety-critical times rather than only when 
on a moving train, and limited the prohibition to calls when the 
manager knew or should have known that the crew was occupied with 
safety-critical duties. FRA has chosen to make these changes because 
structured operational tests are supposed to be fail-safe tests that do 
not create dangerous situations. The periods of time this final rule 
mandates that an employee's personal device must be turned off signify 
that the employee is performing a safety-sensitive function. Therefore, 
calling the operating employee's cell phone during those periods of 
time could create a distraction that the operational testing officer 
cannot control if the device is not turned off. As such, the rule has 
been expanded to include those times when operating employees on riding 
moving equipment, on the ground, or assisting in the preparation of 
their train for movement. By expanding this provision, FRA intends to 
reduce the risk of operational tests creating potentially dangerous 
situations.

Instruction

    Section 220.313 of the NPRM contained the proposed instruction 
requirements for this regulation. AAR commented that the proposed 
schedule in that section was impractical and that the instruction 
requirements were unnecessary. AAR stated that because EO 26 has been 
in place since October 2008, railroads and their employees have 
experience with prohibitions on electronic devices, and thus do not 
need any further instruction. The comment stated that there has not 
been a showing that employees do not understand the existing 
prohibitions, and also that a formal approval process for instruction 
programs is not needed. AAR also commented that it was 
counterproductive to train employees on both relevant railroad 
operating rules and on the requirements of this new subpart, stating 
that this could lead to confusion among employees. AAR stated that 
because of this potential confusion, that proposed Sec.  
220.313(a)(2)(iii) is unnecessary. AAR's comment proposed an alternate 
Sec.  220.313 for FRA to consider adopting.
    After reviewing AAR's comment, FRA continues to believe that the 
proposed instruction section for this regulation is necessary. This 
final rule is substantively different from EO 26, and thus railroad 
operating employees should be properly apprised of its updated 
provisions and of the consequences for non-compliance. If employees are 
going to be operationally tested on the requirements of this subpart as 
Sec.  220.315 requires, then FRA must also require that employees be 
instructed on these requirements. The instruction requirements found in 
Sec.  220.313(a)(2) are minimal, as FRA only specifically requires that 
employees be instructed on when personal devices must be turned off, 
when railroad-supplied devices may be used, and the distinction between 
possible penalties for violations of this new subpart and corresponding 
railroad operating rules. FRA specifically mentioned these three points 
to emphasize their urgent importance. As discussed in the NPRM, 
employees need to be made aware of the distinction between the 
consequences of violating railroad operating rules and the consequences 
of violating FRA's regulation, as the potential consequences of 
violation of this regulation, in terms of liability, are quite 
different from those of the railroad's system of sanctions. Other than 
these listed minimal requirements, railroads are free to use their 
discretion in instructing their employees on the requirements of this 
subpart. AAR's comment did not elaborate why it believes that no 
further instruction is necessary on this subject, other than that EO 26 
has been in place since October 2008 and railroads already have rules 
in place regarding electronic device use. FRA's response is that it 
continues to find that violations of EO 26 are occurring, and, that 
incidents continue to occur where electronic device use is a 
contributing factor. FRA believes that instruction on the requirements 
of this subpart could help to alleviate some future incidents, 
especially when the consequences of non-compliance with FRA regulations 
are explained. In the future, should FRA add violations of this subpart 
as revocable violations for locomotive engineers and conductors as it 
is contemplating, it is critical that employees have been instructed on 
these distinctions.
    Next, FRA is not requiring that railroads submit their programs 
under this section for approval, but merely reserves the right to 
review a railroad's program. The recordkeeping requirement is present 
so that FRA has a mechanism to ensure that instruction is indeed being 
performed as required, similar to other similar provisions found in 
FRA's safety regulations. FRA has built flexibility into the 
recordkeeping requirement to allow for the use of electronic records. 
Also, the dates that FRA has decided on for implementing Sec.  220.313 
fall in line with those suggested by AAR in its comment. This final 
rule will be published in advance of when AAR states most railroads 
finalize their instruction schedules. The regulation will also allow 
for sufficient time for employees to be instructed in the first quarter 
of 2011, which AAR indicates is industry norm.

Regulatory Impact Analysis

    In its comment, AAR takes issue with FRA's assertion that, ``by 
virtue of FRA promulgating prohibitions on the use of electronic 
devices, the use of such devices at inappropriate times and the number 
of accidents attributable to such use would decrease.'' AAR believes 
that FRA's assertion is unsubstantiated, that railroad operating rules 
go further in restricting the use of electronic devices than the 
proposal, and that ``there is no evidence that FRA prohibitions on the 
use of electronic devices will have a greater effect than railroad 
operating rules on the use of electronic devices or accidents 
attributable to their use.''
    FRA clarifies that the safety impact of promulgating Federal 
restrictions on the use of electronic devices is incremental in nature. 
This safety impact is largely

[[Page 59590]]

attributable to the restrictions instituted by EO 26. FRA believes that 
Federal restrictions on the use of electronic devices taken together 
with existing railroad operating rules will have a greater effect than 
solely railroad operating rules on the use of electronic devices or 
accidents attributable to their use. FRA is not claiming that the 
additional or incremental impact of Federal restrictions is greater 
than the impact of the railroad operating rules. This rule does not, of 
course, supplant railroad operating rules; it complements railroad 
operating rules. The deterrent effect of the Federal restrictions is 
cumulative with that of railroad operating rules. That is, operating 
rules presumably already have some deterrent effect on the improper use 
of electronic devices because of the implicit or explicit threat of 
punitive actions, such as dismissal from employment, that employers 
could take in response to violations of its operating rules prohibiting 
the improper use of electronic devices. Federal intervention adds yet 
another possible consequence to the improper use of electronic devices: 
Possible sanctions. These sanctions would not exist absent Federal 
regulatory action. Thus, prior to Emergency Order 26 and this rule, the 
possible consequences of being observed improperly using an electronic 
device equaled whatever action the employer took against the offending 
employee. Conversely, after the issuance of Emergency Order 26 and with 
this rulemaking, the possible consequences of being observed improperly 
using an electronic device equal the actions taken by the railroad plus 
any FRA sanctions, which may include civil penalties, the removal from 
safety-sensitive service, and disqualification from safety-sensitive 
service on any railroad.\12\
---------------------------------------------------------------------------

    \12\ There are also possible sanctions applicable to the 
employer both in Emergency Order 26 and the proposed rulemaking, but 
these may not be as salient in the individual employee's choice on 
whether to use an electronic device.
---------------------------------------------------------------------------

    The existence of a Federal rule may also serve to raise general 
employee awareness and signal the importance of the safety implications 
of improper usage of electronic devices. However, as a point of further 
clarification, it is not necessarily solely the act of restriction or 
the existence of a Federal rule alone that would be expected to 
incrementally affect individual behavior. A principal mechanism for 
effecting change in employee behavior is the possibility of sanctions 
for the inappropriate use of electronic devices. As the RIA that 
accompanied the NPRM states, by including the possibility of individual 
sanctions for the inappropriate use of electronic devices, ``FRA 
effectively increased the cost of performing railroad operations while 
distracted by electronic devices. FRA believes, in accordance with 
economic theory, that such an increase in the cost of performing 
railroad operations while distracted by electronic devices will lead 
individuals to choose to engage in such activities less often, 
resulting in safer railroad operations.''
    Furthermore, by creating Federal restrictions on the unsafe use of 
electronic devices with EO 26 and codifying the restrictions with this 
rule, FRA increases the probability of FRA inspectors observing, and 
thereby documenting, an employee who chooses to improperly use an 
electronic device in disregard of railroad operating rules and Federal 
regulations. This is because FRA inspectors have limited enforcement 
capability with respect to railroad operating rules that are not based 
on Federal regulations. Inspectors may write defects for observations 
of failure to follow railroad operating rules, but defects do not carry 
any sort of civil penalties on either the railroad or its employees. 
Furthermore, although inspectors generally write defects when they 
observe violations of railroad operating rules, inspectors may not be 
as focused on observing non-compliance with railroad operating rules, 
compared to observing non-compliance with Federal rules and emergency 
orders. In contrast, FRA inspectors have definite enforcement 
capabilities with respect to Federal regulations and emergency orders. 
Through the promulgation of Federal restrictions on the improper use of 
electronic devices, FRA inspectors become active enforcers of these 
restrictions, and such enforcement becomes a high priority for 
inspectors. As a result, the probability of FRA's observing an employee 
improperly using an electronic device increases.
    FRA also notes that railroad operating rules are subject to change 
at the railroad's discretion, without notice to FRA, and can vary from 
railroad to railroad. A Federal regulation limiting the use of 
electronic devices would ensure a uniform minimum standard that could 
only be revised with opportunity for notice and comment. A Federal 
regulation would also apply to new railroads.
    FRA asserts that issuance of this regulation will further reduce 
risk and incrementally raise safety levels. The magnitude of the 
decrease in risk is uncertain due to the lack of empirical data 
regarding electronic device usage in railroad operations. To address 
this uncertainty, the RIA contained a multitude of break-even analyses 
that inform decision-makers as to how much of a decrease in the 
probability of an accident caused by electronic device usage would be 
necessary for the expected benefits of the rule to exactly equal the 
expected costs.

Other Comments

    FRA received other comments that may not have addressed a specific 
provision of the NPRM, or that are not addressed in this section or in 
the Section-by-Section Analysis below. Five of those comments came from 
individuals, with a sixth submitted by the National Safety Council. The 
National Safety Council submitted a white paper dated March 2010, 
titled Understanding the Distracted Brain. This document addresses the 
distracted driving problem, and contains an in-depth discussion 
explaining that the use of even hands-free cell phones does not 
eliminate driver distraction. The document further explains that 
multitasking impairs a driver's performance. FRA is appreciative that 
the National Safety Council submitted this document, as it helps 
further illustrate the necessity of regulations prohibiting the use of 
distracting electronic devices while performing safety-critical 
functions such as driving, operating a train, or flying.
    Next, FRA received two comments from individuals who are generally 
opposed to this regulation. One commenter did not believe this 
regulation would be effective, stating railroads already have operating 
rules in place prohibiting the use of electronic devices, and that this 
will be a more monetarily costly rule than predicted. The commenter 
also stated that certain electronic devices have utility in the 
railroad setting. In response, although railroads have operating rules 
in place regarding the use of electronic devices, the incidents 
referenced above and in the NPRM have shown those rules are not an 
effective deterrent to keep railroad employees from using distracting 
devices in a manner that severely impacts safety. Thus, FRA views this 
regulation as necessary. Further, FRA has built in exceptions to this 
rule that the commenter discusses in order to accommodate technologies 
that are beneficial to railroad operating environments and do not 
detract from safety. The second individual commenter states the 
regulation should only apply to employees on moving trains, and that 
cell phones can help save lives in an emergency if left on. FRA 
disagrees, as there are other safety-critical times when operating 
employees are on the ground where electronic

[[Page 59591]]

device distraction can have severe consequences, such as when 
performing an inspection. Illustrating such is a December 2, 2009, 
Norfolk Southern train derailment. The train stopped after a detector 
alerted the crew to a problem, and while inspecting the train the 
conductor failed to notice a freight car that had already derailed. The 
conductor's cell phone records indicated personal cell phone use 
occurred during the period of time he was supposed to be inspecting the 
train. The train then continued on its route and a large-scale 
derailment occurred a short distance later.
    An individual commenter expressed general support for additional 
regulation of electronic devices, referencing a fellow operating 
employee's extensive cell phone use. Another commenter was strongly 
opposed to ever giving railroads access to an employee's personal cell 
phone records. As indicated above, FRA did not propose such in the 
NPRM. Finally, an anonymous commenter submitted a comment after the 
comment period had closed which discussed the June 21, 2010, MARC 
commuter train incident where passengers were stuck on a malfunctioning 
train for a lengthy time period without air conditioning during 
extremely hot weather conditions. The comment stated the final rule 
should not preclude railroad employees from using alternative channels 
to communicate to avoid future situations. As explained above and in 
the Section-by-Section Analysis, FRA has built exceptions into this 
rule to account for varying operating situations, with particular 
flexibility for railroad-supplied devices. The final rule also contains 
an exception allowing for the use of devices to respond to emergency 
situations.

III. Section-by-Section Analysis

    All section references below refer to sections in Title 49, Part 
220 of the Code of Federal Regulations (CFR). The NTSB asked FRA to 
identify sanctions for violating this subpart. As part of FRA 
regulations, railroads and individuals violating of these provisions 
are subject to civil penalties under 49 U.S.C. 21301. Individuals who 
violate the final rule also may be possibly removed from safety-
sensitive service under 49 U.S.C. 20111, and, in the future, 49 CFR 
Part 240 may be amended to revoke the locomotive engineer certification 
of engineers who fail to comply with these restrictions.

Amendments to 49 CFR Part 220 (Part 220)

Section 220.1 Scope

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

Section 220.2 Preemptive Effect

    FRA is removing this section from 49 CFR part 220 (part 220). This 
section was prescribed in 1998 and has become outdated and, therefore, 
misleading because it does not reflect post-1998 amendments to 49 
U.S.C. 20106. Such a section is unnecessary because 49 U.S.C. 20106 and 
20701-20703 and case law under those statutory provisions sufficiently 
address the preemptive effect of part 220. In other words, providing a 
separate Federal regulatory provision concerning part 220's preemptive 
effect is duplicative of statutory law and case law and, therefore, 
unnecessary.
    There has been no opportunity for public comment on this particular 
amendment in the final rule. FRA has determined, pursuant to section 4 
of the Administrative Procedure Act (5 U.S.C. 553), that prior notice 
and an opportunity for comment on the removal of Sec.  220.2 are not 
necessary. The amendment is administrative in nature and merely 
eliminates an outdated and incomplete restatement of the preemptive 
effect of part 220. FRA is not exercising its discretion in a way that 
could be informed by public comment. As such, FRA finds that notice and 
public comment procedures are ``impracticable, unnecessary, or contrary 
to the public interest'' under 5 U.S.C. 553(b)(3)(B).

Section 220.5 Definitions

    FRA amends the existing ``definitions'' section for part 220 by 
both adding new definitions and amending an existing definition. FRA 
adds new definitions for the following terms: Associate Administrator 
for Railroad Safety/Chief Safety Officer, authorized business purpose, 
earpiece, electronic device, fouling a track, FRA, in deadhead status, 
medical device, personal electronic device, railroad operating 
employee, railroad-supplied electronic device, and switching operation. 
FRA also amends part 220's existing definition of ``train.''
    Of the new terms that FRA adds to this section, most of them had 
been previously defined in the Order, and proposed in the NPRM. Some of 
those definitions have been amended slightly to be more efficiently 
focused toward accomplishing the goals of this final rule. For example, 
as explained in the NPRM, in describing ``electronic device,'' FRA 
broadens that description from that found in the Order to ensure that 
the definition in this final rule includes electronic book-reading 
devices or devices used to replicate navigation of the physical world. 
We have also excepted locomotive electronic control systems and digital 
timepieces from the definition. The first exception makes clear that 
this subpart does not affect the use of any control systems or displays 
in the cab of a locomotive that facilitate the operation of a train. We 
have specified that the control systems may be fixed or portable, and 
expanded the definition by removing the phrase ``for a locomotive 
engineer'' in recognition that devices under a conductor or other 
crewmember's control may be necessary to operate a train in response to 
AAR's comment that requested both of these minor changes. This rule 
instead obviously intends to address electronic devices that are not 
part of those systems. In addition, FRA expects that a device mentioned 
in AAR's comment (one to calculate where a locomotive horn should be 
sounded) would be considered to be part of the control system.
    The second exception allows railroad operating employees the use of 
digital clocks or wristwatches whose primary functions are as 
timepieces. Timepieces are commonly used in the railroad industry to 
verify the accuracy of a locomotive's speed indicator. This function is 
safety-related in that it accurately allows a train crew to comply with 
relevant track speed limits during the course of a train's movement. 
FRA notes that this specific provision is limited to allowing the use 
of a stopwatch, wristwatch, or other similar device whose primary 
function is the keeping of time. This provision does not allow for the 
use of other devices, such as a cell phone or a personal digital 
assistant, that might have a stopwatch function but whose primary 
purpose is not that of a timepiece. FRA has so limited this exception 
specifically to timepieces as enforcement otherwise would be difficult, 
but also primarily to avoid the potential for distraction when an 
employee might turn on a cell phone with a stopwatch function in order 
to verify the train's speed, but then might proceed to use that device 
in an otherwise impermissible manner.

[[Page 59592]]

    FRA has also chosen to refer to an ``electronic or electrical 
device'' as only an ``electronic device'' in the rule. We have done so 
both for the purposes of complying with plain language directives and 
for brevity. We have also done so because ``electronic device'' is a 
more accurate descriptor of the devices meant to be subject to this 
rule. The definition of ``railroad operating employee'' has also been 
changed from that found in the Order. We have attempted to clarify 
which employees are covered by this rule in order to avoid inadvertent 
over-inclusion. The definition of ``railroad-supplied electronic 
devices'' has also been modified from the Order to mean that the term 
refers only to devices that are provided for a business purpose 
authorized by the employing railroad and not being used for something 
other than an authorized business purpose. FRA has slightly changed 
that definition in order to focus more narrowly on which devices will 
be considered railroad-supplied.
    In addition, the definition of ``railroad-supplied electronic 
device'' and ``personal electronic device'' have both been altered 
somewhat from the definitions proposed in the NPRM. NJT requested and 
received a brief meeting with FRA officials, documented in the docket, 
raising the issue that it, as well as at least one other railroad, 
allows its employees limited personal use of phones the railroad 
provides for business purposes. How the electronic devices are being 
used at any given moment determines what standards-those for personal 
or railroad-supplied devices-should apply. The definition railroad-
supplied electronic device was slightly altered to clearly reflect 
such. The amended definitions make clear that when a railroad-supplied 
device is being used for other than an authorized business purpose that 
for the purposes of this regulation that the device will be treated as 
a personal electronic device.
    The only truly new definitions that were not established in some 
form in the Order are for the following terms: ``Associate 
Administrator for Railroad Safety/Chief Safety Officer,'' ``authorized 
business purpose,'' ``earpiece,'' ``in deadhead status,'' and ``medical 
device.'' However, these definitions were proposed in the NPRM. FRA 
adds a definition for the term ``in deadhead status'' because below in 
Sec.  220.311 we explain that railroad operating employees in deadhead 
status are subject to somewhat different prohibitions on the use of 
electronic devices than are employees who are actively engaged in their 
assigned duties. The definition that we have is similar to and 
consistent with the existing definition of ``deadheading'' found in 
existing 49 CFR 228.5. FRA also adds the term ``medical device'' to the 
``definitions'' section, as below we explain that the use of any 
electronic medical devices consistent with a railroad's medical fitness 
for duty standards is exempt from the restrictions of this subpart. FRA 
wishes to make clear that medical devices such as hearing aids or blood 
sugar monitors are exempt from the prohibitions that this rule puts 
forth. FRA finds that these devices do not detract from rail safety, 
but they may actually enhance safety in some circumstances for obvious 
reasons.
    Two of the comments requested changes to the definition section. As 
noted above, in response to the Labor Organizations' comment, FRA is 
adding a definition for ``authorized business purpose.'' AAR requested 
that FRA amend its definition of ``fouling a track'' to ``an individual 
in such proximity to a track that the individual could be struck by a 
moving train or other on-track equipment.'' It reasoned that there 
would be times when, because of a wall or other physical restriction, 
an employee might not be able to move four feet away from the track to 
answer a phone call. FRA believes this scenario will be extremely rare 
and does not outweigh FRA's interest in consistency among its 
regulations: FRA's definition stems from 49 CFR 214.7. In addition, FRA 
believes that a measurement of four feet can be easier for employees to 
assess than trying to judge how close a train or on-track equipment 
will be.
    Next, FRA amends the existing definition of a ``train'' in Sec.  
220.5. The existing definition specifically references a train for 
purposes of existing Subparts A and B to include ``one or more 
locomotives coupled with or without cars requiring an air brake test in 
accordance with 49 CFR part 232 or 238 * * *''. The existing definition 
resulted from FRA's work with an RSAC Working Group and intentionally 
meant to exempt certain trains and switching operations from the 
existing part 220. That existing definition will still apply to 
Subparts A and B. However, we define ``train'' for purposes of Subpart 
C to go beyond locomotive or locomotives coupled to one or more cars 
that are subject to the requirements of an air brake test. We use a 
more inclusive definition of ``train'' in order to apply the 
prohibitions on use of electronic devices to all switching movements.
    Finally, FRA has eliminated one definition from this rule that 
appeared in the Order. The term ``wireless communication device'' has 
been eliminated, as the term ``working wireless communications'' is 
already included in existing Sec.  220.5, and encompasses the substance 
of what FRA attempted to convey with that definition in the Order, and 
also because the devices described in that definition are already 
addressed by other provisions of this rule.

Subpart C--Electronic Devices

Section 220.301 Purpose and Application

    FRA amends Part 220 by adding a new Subpart C. FRA's purpose for 
promulgating this subpart is to limit distractions caused by electronic 
devices to railroad crews. FRA means to limit these distractions in its 
effort to improve railroad safety and prevent incidents such as those 
mentioned in the preamble above, where loss of human life, injuries, 
and property damage may have been attributable to distraction by these 
devices. FRA notes that this subpart sets forth minimum standards that 
must be complied with, yet we fully anticipate that railroads will 
implement even stricter guidelines via operating rules. This is 
consistent with both existing and Sec.  220.1, which provides that part 
220 only sets minimum standards that must be complied with, but that 
railroads may adopt additional, more stringent, requirements.
    Section 301 of this subpart describes both its purpose and 
application. Paragraph (a) of this section merely restates the 
subpart's purpose as described above. Paragraph (b) makes clear that 
the subpart does not affect the use of working wireless communications 
that railroads use under the authority of existing Subparts A and B. 
Paragraph (c)(1) explains that this regulation also does not in any way 
affect the use of railroad radios. Railroad radios are an essential 
part of daily operating practices, and FRA wishes to make explicit that 
this new subpart does not apply to their use. Paragraph (c)(2) of this 
section explains that in the event of a working railroad radio failure, 
that locomotive engineers or conductors may use electronic devices 
provided that use is in accordance with the applicable railroad's 
operating rules. FRA recognizes that, in certain instances, the use of 
an electronic device such as a cell phone in place of a malfunctioning 
radio may actually enhance safety rather than harm it. For example, 
should a crew need to contact a train dispatcher regarding their 
train's movement, a cell phone might in certain instances be the best 
means of reaching such a person in the event of a radio failure, and 
may provide a higher level of safety than not

[[Page 59593]]

being able to make contact at all. So long as the device is used with 
the parameters of railroad operating rules, FRA has made this exception 
to the prohibitions on use of electronic devices discussed below.

Section 220.302 Operating Rules

    This section is a new provision that was not included in the NPRM, 
but was referred to in Sec.  220.313 where it was proposed that 
railroads instruct their employees on the operating rules implementing 
the requirements of this subpart. The reason for including this 
provision in the final rule is to ensure each railroad adopts operating 
rules that comply with the requirements of this subpart. As explained 
above, railroads are free to adopt more stringent requirements than 
those adopted here, but this provision ensures railroads cannot adopt 
operating rules that are less stringent than or are contrary to this 
final rule. FRA is aware that most railroads already have operating 
rules in place governing the use of electronic device by their 
operating employees. However, at its discretion a railroad is also free 
to simply adopt the text of this subpart as its operating rule. If the 
railroad provides electronic devices to its employees, however, it must 
specify authorized business purposes in written procedures that are 
distributed to employees.
    As stated above, FRA did not propose this section in the NPRM. 
However, this section is within the scope of the NPRM as it merely 
provides a mechanism for FRA to enforce this final rule and to ensure 
that railroads implement the requirements of the final rule. Further, 
as mentioned above, reference to railroads being required to have 
operating rules implementing the requirements of this subpart was 
proposed in Sec.  220.313 of the NPRM.

Section 220.303 General Use of Electronic Devices

    FRA adds Sec.  220.303 to this subpart to set forth general 
guidance regarding the use of electronic devices. This section would 
prohibit railroad operating employees from using electronic devices in 
any way that would detract from railroad safety, irrespective of the 
other specific provisions and exceptions to this rule. This provision 
reinforces FRA's overarching mission of ensuring safety while railroad 
employees are performing their duties. As discussed above, distractions 
resulting from the use of electronic devices can result in railroad 
accidents that have catastrophic consequences. This paragraph is also 
meant to encompass other potential uses of electronic devices that may 
arise outside those detailed or contemplated by this rule or by 
railroad operating rules.
    The Labor Organizations' pointed out that individuals beside 
railroad operating employees could be in the cab of a locomotive at 
critical times and could distract those employees from their safety-
related duties. FRA adopted the view that no one in the cab of a 
controlling locomotive should use an electronic device in a way that 
distracts a railroad operating employee from a safety-related duty and 
amended Sec.  220.303 accordingly.
    Section 220.303 is intended to be restrictive, as FRA views any use 
of electronic devices not contemplated in this subpart as capable of 
distracting employees while on duty. A commenter suggested that FRA 
prohibit everyone, including members of the public, who is fouling a 
track from using cell phones. While limiting members of the public is 
outside the scope of the NPRM, FRA believes that this provision will 
limit the most hazardous use of electronic devices by the individuals 
most often as risk.

Section 220.305 Use of Personal Electronic Devices

    This section prohibits the use of personal electronic devices while 
any safety-related duty is being performed. This provision governing 
personal electronic devices is self-explanatory, and is meant to be 
more restrictive than provisions governing railroad-supplied electronic 
devices. See Sec.  220.307 discussed below. Provisions (a) through (c) 
of this section dictate certain safety-critical times during which each 
personal electronic device must be turned off with any earpiece 
removed, and are meant to encompass the situations in which FRA finds 
it is absolutely impermissible to use a personal electronic device. FRA 
notes that compliance with this section might have prevented many of 
the accidents described above and in the Order that occurred as a 
result of distraction caused by electronic devices.

Section 220.307 Use of Railroad-Supplied Electronic Devices

    This section addresses the use of electronic devices that are 
supplied by the railroad to employees and are currently being used for 
business purposes. Paragraph (a) sets forth the general restriction 
that any use of these devices must be in accordance with railroad 
instructions for authorized business purposes as determined by the 
railroad. FRA also wishes to make clear that the use of railroad-
supplied devices contemplated by this provision is limited to those 
authorized by the railroad in writing. In addition, uses involving the 
taking of photographs and videos must be approved by FRA. This is to 
prevent, for example, a crewmember using a camcorder for an entire 
trip.
    Paragraph (b) sets forth the specific instances where FRA prohibits 
any use of railroad-supplied electronic devices by a locomotive 
engineer who is at the controls of a train. Similar to the conditions 
set out in Sec.  220.305, paragraph (b) of Sec.  220.307 describes 
specific instances where FRA finds distraction by electronic devices 
impermissibly interferes with railroad safety. While the actions 
specified in paragraph (b) are taking place, it is imperative that a 
locomotive engineer be attentive to his or her duties and not be 
distracted by any electronic device, regardless of whether that device 
is railroad-supplied or not. FRA also notes that paragraph (b)(3) of 
this section encompasses those times when passengers are boarding or 
alighting from a train. For example, it would be a violation of this 
regulation if a locomotive engineer at the controls of a passenger 
train was using a railroad-supplied electronic device while the train 
was stopped and passengers were boarding. Paragraph (c) sets forth the 
circumstances under which an operating employee other than a locomotive 
engineer in the situations described in paragraph (b) may use a 
personal electronic device while located in the cab of a controlling 
locomotive.
    In its NPRM, FRA proposed that paragraph (c) only permitted use of 
a mobile telephone or remote computing device under the conditions of 
that paragraph. FRA has reconsidered and believes that limiting use to 
a mobile telephone or remote computing device would be overly 
restrictive and possibly limit the use of helpful technologies that 
emerge. Devices used in these circumstances may only be used if a 
safety briefing is held by all crewmembers in the locomotive, who must 
come to an agreement that it is safe to use the device. It is FRA's 
intent that the permissible use of these devices under this paragraph 
must be for a railroad-related purpose, e.g., to contact a dispatcher, 
control operator, or yardmaster. It is not permissible to use the 
mechanisms provided by this section to use an electronic device for a 
personal use, such as making a personal phone call or watching a movie. 
When an employee uses a railroad-supplied device for personal reasons, 
the device is considered a personal device and governed accordingly. 
This provision and the provision found in paragraph

[[Page 59594]]

(d) of this section discussed below both state that they apply only to 
employees who are not in deadhead status. Different rules apply to 
employees in deadhead status, as is explained below in the analysis to 
Sec.  220.311.
    Paragraph (d) of Sec.  220.307 explains the conditions under which 
it is permissible for an operating employee who is outside the cab of a 
controlling locomotive to use a railroad-supplied device. It sets forth 
two conditions that must be met for that use to be permitted. The first 
condition is that no crewmember may be fouling a track. The second 
condition, at paragraph (d)(2) of this section, states that all 
crewmembers agree it is safe to use the device. An instance described 
in the background section of the Order discusses an incident that 
occurred on December 21, 2005, when a contractor working on The Kansas 
City Southern Railway Company was struck and killed by a train after 
fouling a track while allegedly talking on a cell phone. Although in 
that case the incident involved a contractor who was apparently not a 
train employee, FRA notes that compliance by operating employees with 
the provisions of paragraph (d) would eliminate any similar occurrences 
among operating employees resulting from the impermissible use of 
electronic devices.
    In the Order and as proposed in the NPRM, a railroad operating 
employee had to ensure that switching operations were suspended to use 
a railroad-supplied device in these circumstances. Because of this, AAR 
requested an exception for employees to use railroad-supplied devices 
inside buildings. It also recommended that FRA have Sec.  220.307(c) 
cover employees inside and outside the cab and delete paragraph (d) 
completely. FRA has loosened the restrictions of paragraph (d) in 
response to these concerns; however, it does not add an exception for 
employees inside buildings. FRA believes that crews should function as 
a unit during any particular operation and does not see an advantage to 
have one employee leaving a train to go into a building to use an 
electronic device. FRA believes that requiring the employee not to be 
fouling a track and having other crewmembers to agree it is safe to use 
a device will provide adequate safeguards without operations suspended, 
especially since any use must be for an authorized business purpose and 
cannot interfere with a railroad operating employee's performance of 
safety-related duties.

Section 220.309 Permitted Uses

    This section establishes six uses of electronic devices that FRA 
finds to be permissible. This list is intended to be exhaustive. FRA 
has specifically weighed other exceptions and uses, such as the 
proposed GPS device and personal emergency exceptions discussed above. 
After contemplating those other uses, at this time FRA does not agree 
there is a need for further permitted use of electronic devices other 
than those described here. Also, as stated in the text of this section, 
these permitted uses are subject to the requirement that the use not 
interfere with any employee's safety-related duties. This is consistent 
with the overall goals of this rule, and also specifically with the 
general prohibition established by Sec.  220.303 discussed above.
    Paragraph (a) of Sec.  220.309 refers to electronic storage devices 
that specifically hold relevant operating documents that a crew might 
need to access during the normal course of their duties, as FRA is 
aware that some railroads issue devices to their operating employees 
that contain such information. FRA views this use as no different from 
a crewmember accessing relevant paperwork, such as a railroad timetable 
or train consist, in hardcopy form during the course of her duties. 
However, as stated in the text of paragraph (a), the use of this device 
must be authorized under an applicable railroad operating rule. For 
example, if a freight conductor wished to utilize a railroad-supplied 
electronic device while in the cab of the controlling locomotive of a 
moving train for the purpose of accessing a railroad operating rule, he 
would be allowed to do so if permitted by applicable railroad operating 
rules. If railroad operating rules more stringent than those provided 
by this subpart prohibited the use of that device while on a moving 
train, then that use would be disallowed.
    Paragraph (b) of this section specifically allows for the use of 
personal electronic devices in response to an emergency situation. This 
paragraph is meant to allow flexibility to this regulation, as common 
sense dictates that unpredictable emergency situations may arise where 
use of a personal electronic device, such as a cell phone, may be 
appropriate. FRA contemplated this when it proposed Sec.  220.301(b), 
which allows for use of a personal electronic device in instances where 
a radio failure occurs, but also proposes this broader emergency 
exception to build in flexibility where common sense dictates.
    Paragraph (c) of this section is amended from that proposed in the 
NPRM. This provision specifically allows for employees to take a 
photograph of a safety hazard or a violation of a rail safety 
regulation, or order outside of those periods of time where it would 
otherwise be prohibited by Sec.  220.303 or by Sec.  220.305. However, 
it provides that only cameras may be used to take these photographs, 
unless the device is a railroad-supplied device as discussed above. A 
camera that is equipped with the ability to take video is allowed, but 
no video may be taken under this exception. As stated in the rule text, 
a camera that is part of a personal cell phone or other similar 
personal electronic device is not included in this exception. To allow 
personal cell phone cameras to be used outside the periods of time 
prohibited by Sec.  220.305 would present enforceability issues for 
FRA. More importantly, however, FRA also decided such because after 
turning on a device such as a cell phone to take a photo, FRA does not 
want to encourage or permit an employee to then continue to use the 
device. FRA wishes to avoid presenting any temptation once a device is 
turned on to then send text messages or engage in other distracting use 
of electronic devices. Use of the camera to document such rail safety 
hazards or violations is only permitted where its use does not 
interfere with a crewmember's performance of a safety-related duty, is 
turned off immediately after documentation has been made, and is not 
used by a locomotive engineer who is at the controls of a moving train. 
FRA realizes the importance of documenting hazardous conditions, but 
emphasizes that such documentation should only be made when the filming 
of the hazard itself does not create a hazardous situation. For the 
reasons explained above in response to public comments, FRA has also 
deleted reference to the use of ``video'' to document safety hazards in 
this final rule. An employee taking advantage of this exception using a 
railroad-supplied device must be using the device for an authorized 
business purpose that has been approved by FRA.
    Paragraph (d) permits the use of a calculator. The use of this 
device is common in the railroad industry for important safety-related 
purposes. Train tonnage, train length, and train stopping formulas are 
commonly computed using a calculator. An example of the safety-related 
reasons for allowing the use of a calculator includes the need to 
compute train length accurately so that a locomotive engineer (via the 
locomotive's distance counter) can accurately ascertain when his or her 
train has cleared a relevant speed

[[Page 59595]]

restriction, interlocking, or working limits. However, consistent with 
paragraph (c) above, FRA has chosen to limit the permissible devices 
under this paragraph to those whose primary purpose is as a calculator. 
FRA will not allow the use of another device, such as a personal cell 
phone that might have a calculator function.
    Paragraph (e) permits the use of a medical device, if that use is 
consistent with the railroad's standards for medical fitness for duty. 
In putting forth this exception, FRA envisioned blood sugar monitors 
used by operating employees with diabetes, hearing aids used by 
operating employees with hearing loss, etc. The definition of a 
``medical device'' was added to the definitions section of this part, 
at Sec.  220.5, as is discussed above. FRA finds that the use of these 
devices does not detract from rail safety and in many instances may 
enhance it. For example, an operating employee with hearing loss who 
utilizes an electronic hearing aid may consequently be able to 
communicate via working radio more effectively, resulting in safer 
train operations.
    Paragraph (f) permits the use of wireless communication devices for 
crewmembers of trains that are exempt from the requirement of a working 
radio under Sec.  220.9(b). That section exempts railroads that have 
less than 400,000 annual employee work hours from being required to 
have a working radio on the controlling locomotive of certain trains so 
long as such usage is limited to performing the employees' railroad 
duties. FRA created this exception to allow smaller railroads to 
continue to operate as they are presently permitted. The locomotives of 
these railroads do not operate at high speeds, do not handle regular 
passenger traffic, are only permitted to operate over joint territory 
in specific, low-speed circumstances, and must have working wireless 
communications aboard the controlling locomotive of trains containing 
placarded hazardous material loads. As such, FRA finds there is no 
safety risk in continuing to allow permitted railroads to use wireless 
communication devices in place of railroad radios so long as such usage 
by railroad employees is limited to performing their railroad duties. 
It is not the intent of this rule to affect in any way the use of 
working wireless communications pursuant to existing Part 220, as those 
presently permitted business uses have not been problematic in regard 
to safety in the past. This rule is instead obviously directed at the 
type of use that occurred in the railroad accidents described above.

Section 220.311 Railroad Operating Employees in Deadhead Status

    This section establishes guidelines for the use of an electronic 
device by operating employees in deadhead status. The definition of 
``in deadhead status'' has been added to the ``definitions'' section of 
this part at Sec.  220.5 as discussed above. Paragraph (a) of this 
section allows for employees in deadhead status to use electronic 
devices so long as that use does not interfere with any employee's 
safety or the performance of safety related duties. FRA created this 
loosened restriction on employees in deadhead status as the agency 
recognizes that while deadheading, operating employees typically do not 
have any safety-related responsibilities. As stated above, these 
changes amend the restrictions on electronic devices put forth in the 
Order in a more appropriate manner to address safety concerns.
    However, paragraph (b) of this section limits the use of any 
electronic device by employees in deadhead status who are located 
inside the cab of a controlling locomotive of a train. Employees in 
deadhead status who are located inside the cab of a controlling 
locomotive must follow the identical restrictions set forth both in 
this provision and in Sec.  220.305, regardless of whether the device 
is a personal electronic device or a railroad-supplied electronic 
device. This is to reflect that any use of electronic devices in the 
cab of a controlling locomotive has the potential to distract employees 
engaged in safety-related duties, no matter the status of person using 
a device. This provision more strictly prohibits the use of any 
railroad-supplied device than does Sec.  220.307, as employees in 
deadhead status typically do not have any safety-related 
responsibilities that would necessitate use of such devices.

Section 220.313 Instruction

    This section requires that railroads provide instruction to their 
operating employees on the operating rules implementing the 
requirements of this subpart. This instruction is necessary as 
employees must be operationally tested by railroad supervisors on the 
substance of this regulation, as FRA has required in Sec.  220.315(a). 
By requiring such instruction FRA also intends to ensure that both 
railroads and their employees are fully aware of the requirements of 
this regulation. FRA has removed the word ``training'' from this final 
rule, because ``instruction'' is the more appropriate descriptor of the 
education this section requires railroads provide their employees. 
Further, the terms were duplicative.
    In paragraph (a), FRA requires that each railroad maintain a 
written program that will qualify its operating employees for 
compliance with the requirements of this final rule. The written 
program may be consolidated with the program of instruction required 
under 49 CFR 217.11. FRA has allowed railroads 90 days to implement a 
program of instruction, as per AAR's comment that should FRA allow 
railroads appropriate time to prepare these programs for presentation 
to their employees in the first-quarter of 2011, as is discussed below. 
Paragraph (a)(1) specifically requires that the program include 
instruction on both the requirements of this subpart as well as 
consequences of non-compliance. Paragraph (a)(2) states that the 
written program must include instruction on specific provisions of this 
rule. Paragraph (a)(2)(iii) requires that instruction be provided on 
the distinctions between the requirements of this regulation and any 
more stringent railroad operating rules. FRA has decided to leave this 
provision in the final rule despite AAR's comment discussed above due 
to the different potential consequences involved with violation of this 
subpart versus violation of a railroad rule. If FRA were to find a 
probable violation of this regulation has occurred, FRA could attempt 
to take action against an individual employee by way of its authority 
to impose a monetary civil penalty or disqualification of that employee 
from safety-sensitive service. These actions are in some instances much 
more severe than those that a railroad might take against an individual 
employee for a violation of its operating rules. Also, should FRA add 
violations of this subpart as revocable violations for locomotive 
engineers and conductors as it is contemplating, it is critical that 
employees have been instructed on these distinctions.
    Paragraph (b) sets the implementation schedule for this section. 
Paragraph (b) states that within 180 days from the publication date of 
the final rule, employees performing duties subject to these 
requirements shall receive instruction on the requirements of this 
subpart. FRA has lengthened this time period from that proposed in the 
NPRM in order to allow for railroad employees to be instructed during 
first-quarter of 2011, as AAR's comment indicates is the industry norm. 
After 180 days from the publication date of the final rule, FRA expects 
that new operating employees would receive the proper instruction 
before being allowed to

[[Page 59596]]

perform duties subject to the requirements of this subpart. The three-
year recurrent instruction window in this paragraph was adopted because 
it is a standard industry practice to re-qualify employees on rules at 
least every three years. Finally, in paragraph (b)(2), FRA requires 
records maintenance of the instruction required by this section, which 
shall serve as documentation that employees have been qualified on the 
requirements of this subpart.
    In paragraph (c), FRA requires that records discussed in paragraph 
(b)(2), documenting an employee's instruction and examination, be 
retained at a railroad's division headquarters where the employee is 
assigned. This will enable FRA to quickly obtain such records upon 
request if necessary. Records must be kept for each employee instructed 
on the requirements of this subpart, and must be kept for three years 
after the end of the calendar year to which they relate. This paragraph 
allows railroads the discretion to keep the required records 
electronically.
    Paragraph (d) provides a mechanism for FRA to review a railroad's 
written program required under paragraph (a). This paragraph requires 
that the Associate Administrator for Railroad Safety/Chief Safety 
Officer only disapprove programs of instruction and examination 
required by this section for cause stated. As the disapproval decision 
is made for cause, it is significant for the railroad to understand 
exactly why FRA is disapproving the program; thus, FRA notification of 
such disapproval must be made in writing and specify the basis for the 
disapproval decision. If the Associate Administrator for Railroad 
Safety/Chief Safety Officer disapproves the program, paragraph (d)(1) 
provides that a railroad is required to respond within 35 days by 
either providing submissions in support of its program or by amending 
its program and submitting those proposed amendments. Paragraph 
(d)(1)(ii) mandates that the Associate Administrator for Railroad 
Safety/Chief Safety Officer shall render a final decision in writing 
informing the railroad of FRA's decision. Paragraph (d)(2) provides 
that a failure to submit a program with the necessary revisions to the 
Associate Administrator for Railroad Safety/Chief Safety Officer will 
be considered by FRA to be a failure to implement a program under this 
part. FRA is not requiring that each railroad submit its program for 
review and explicit approval. Rather, FRA may review the programs of 
railroads in connection with review of their overall programs of 
instruction to determine if they are effective.

Section 220.315 Operational Tests and Inspections; Further Restrictions 
on Use of Electronic Devices

    This section requires that railroads perform operating tests to 
ensure operating employees' compliance with this subpart. FRA is 
requiring operating tests be performed to both ensure that railroads 
provide employee instruction on the conditions of this subpart and to 
help verify that the requirements of the subpart are being adhered to 
by railroad employees.
    Per Part 217, railroads are already required to perform regular 
operating tests. This paragraph adds Subpart C to that existing 
requirement. Paragraph (a) leaves to the railroads' discretion the 
minimum number of operational tests that must be performed by referring 
to the guidelines established in 49 CFR Part 217, Railroad Operating 
Rules. Paragraph (b) of this section prohibits railroad supervisors 
from calling or sending text message to an electronic device of an 
operating employee during an operational test while the train to which 
the employee is assigned is moving, while the employee is on the ground 
or riding rolling equipment, or while the employee is assisting in 
preparation of the train for movement. This provision has been expanded 
from that proposed in the NPRM, and is meant to prevent an operating 
test from posing potentially dangerous distractions that could impact 
rail safety. It is also meant to prevent the encouragement of potential 
rail safety violations.
    Finally, for the reasons explained in the response to the AAR's 
comment above, FRA has deleted the proposed Sec.  220.315(c) from this 
final rule. FRA has done so because in most instances, employees are 
not aware an operating test is being conducted until after the test has 
already been performed. Thus, that proposed provision could have 
created confusion. Further, after reviewing comments and deliberating 
the provision, FRA does not believe it would have been of significant 
utility.

Appendix C to Part 220 Schedule of Civil Penalties

    FRA is amending appendix C of this part to establish guideline 
penalties for subpart C. Appendix C specifies the civil penalty FRA 
will ordinarily assess for the violation of a particular provision of 
this rule. However, consistent with 49 CFR part 209, appendix A, FRA's 
Statement of Agency Policy Concerning Enforcement of the Federal 
Railroad Safety Laws, FRA reserves the right to assess a penalty up to 
the statutory maximum where circumstances warrant. Further, a penalty 
may be assessed against an individual only for a willful violation. FRA 
did not solicit public comment on this appendix as it is a statement of 
agency policy.

IV. Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rule is a significant regulatory action within the meaning of 
Executive Order 12866 and the U.S. Department of Transportation's 
regulatory policies and procedures (DOT Order 2100.5 dated May 22, 
1980; 44 FR 11034, Feb. 26, 1979). FRA has made this determination by 
finding that, although the economic effects of the regulatory action 
will not exceed the $100 million annual threshold as defined in 
Executive Order 12866, the rule is significant because of substantial 
public interest in transportation safety and because it is part of a 
broader programmatic effort to address distracted transportation 
operations. FRA has prepared and placed in the docket a regulatory 
impact analysis (RIA) addressing the economic impact of restrictions on 
traincrew use of electronic devices as well as the costs of this final 
rule.
    The RIA details estimates of the costs likely to be induced over a 
twenty year period. This analysis also includes break-even analyses, or 
estimates of the monetized benefits that will be necessary to achieve 
to offset the total costs of restricting use of electronic devices. 
Informed by its analysis of the economic effects of both EO 26 and this 
rule, FRA believes that this rule will achieve the same safety outcome 
as EO 26 at a lower cost. This rule achieves this outcome more cost-
effectively relative to EO 26 by removing some restrictions on the 
usage of electronic devices by deadhead status employees and on the 
usage of calculators and cameras, under certain circumstances. These 
restrictions in EO 26 likely achieved little to no safety benefits, but 
they may have created substantial, unquantifiable opportunity costs, 
the removal of which makes this rule more cost-effective. The costs 
that may be induced by this rule over the twenty-year period considered 
include both direct costs and indirect costs. The direct costs may 
include the cost of revising operational testing and inspections 
programs; the cost of conducting additional operational testing and 
inspections; the cost of instructing employees on the requirements of 
this rule; and the cost of calculators and cameras for train crew use. 
Indirect costs may include the

[[Page 59597]]

opportunity cost of railroad operating employees' time spent in safety 
briefings. The summed total of the estimated direct costs over twenty 
years equals about $12.7 million at a 3 percent discount rate and about 
$9.5 million at a 7 percent discount rate (in 2009 dollars). 
Additionally, the indirect costs that may result are estimated to equal 
about $30.2 million at a 3 percent discount rate and $22.4 million at a 
7 percent discount rate. The majority of the costs associated with 
implementation of the restrictions are for costs that are already being 
incurred through the implementation of EO 26. The table below 
summarizes both the direct and indirect costs of the restrictions as 
considered in the RIA, summed over the twenty-year period analyzed and 
discounted to present value using 3 percent and 7 percent discount 
rates.

------------------------------------------------------------------------
                                Twenty-year total     Twenty-year total
                               (3% discount rate)    (7% discount rate)
------------------------------------------------------------------------
Direct costs:
    Revising programs *.....             $8,348.02             $6,175.35
    Revising programs for                39,659.62             39.659.62
     rule...................
    Performing operational              633,087.44            468,318.78
     tests..................
    Instruction *...........         11,339,537.79          8,388,404.44
    Instruction on rule.....            246,610.00            246,610.00
    Cameras (potential).....            334,951.39            252,434.85
    Calculators (potential).             75,080.95             74,083.90
                             -------------------------------------------
        Total direct costs..         12,677,415.21          9,475,686.94
Indirect Costs:
    Opportunity cost of              30,238,989.11         22,368,926.84
     additional time spent
     in safety briefings *..
                             -------------------------------------------
        Total indirect costs         30,238,989.11         22,368,926.84
------------------------------------------------------------------------
* Costs already being incurred under EO 26.

    FRA also modified some provisions of the Notice of Proposed 
Rulemaking (NPRM) in this final rule. Two of these modifications were 
to remove potentially costly provisions that were very unlikely to 
yield net benefits. The first of these modifications was with respect 
to a proposal in the NPRM, at Sec.  220.307(c), which had allowed a 
limited set of railroad-supplied electronic devices to be used by 
railroad operating employees not in deadhead status, other than 
locomotive engineers, under certain circumstances and only following a 
crew safety briefing and unanimous agreement amongst the crew that such 
use would be safe.\13\ Specifically, in the NPRM, Sec.  220.307(c) had 
limited the railroad-supplied electronic devices that could be used in 
certain circumstances to ``a mobile phone or remote computing device.'' 
\14\ This limitation could have inadvertently stifled the development 
or adoption of new technologies that could be used by railroads to 
enhance productivity, safety, or for some other purpose. To avoid this 
unintended cost of potentially hindering the growth or adoption of 
technology, FRA removed the limitation, instead adopting language that 
will allow the use of any railroad-supplied electronic device under 
prescribed circumstances and following a safety briefing and unanimous 
agreement amongst crewmembers that it is safe to use the device.
---------------------------------------------------------------------------

    \13\ Federal Railroad Administration. (2010). ``Notice of 
Proposed Rulemaking: Restrictions on Railroad Operating Employees' 
Use of Cellular Telephones and Other Electronic Devices.'' Federal 
Register, May 18, Vol. 75, No. 95. Available online: http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480aef96d.
    \14\ Ibid., p. 27688.
---------------------------------------------------------------------------

    The second modification was with respect to Sec.  220.307(d)(2) in 
the NPRM, which had required that, among other conditions, operations 
be suspended when a crewmember not in deadhead status outside a cab of 
a controlling locomotive used a railroad-supplied electronic device. 
The requirement that operations be suspended could have inadvertently 
prevented the development or adoption of technologies that potentially 
enhance productivity or safety while performing operations. For 
example, if some operations are currently performed using printed or 
handwritten instructions, FRA recognizes that such instructions could 
just as easily be followed on an electronic device--a device that might 
also allow the automatic updating of data or instructions and through 
such updating increase safety for crewmembers. Thus, in the final rule, 
FRA removed the requirement that all operations be suspended before a 
crewmember uses a railroad-supplied electronic device outside the cab 
of a controlling locomotive, while still requiring that the crewmember 
not be fouling a track and that all crewmembers agree that it is safe 
to use the device prior to its use.
    Both of the modifications discussed above removed a potentially 
costly provision of the NPRM. However, no change in expected costs, 
vis-[agrave]-vis the preliminary RIA, is reflected in this final RIA 
because the preliminary RIA accompanying the NPRM had not accounted for 
these potential costs. FRA had not intended to create such burden.
    Although FRA has not estimated the total benefits associated with 
the restrictions on use of electronic devices, FRA has performed break-
even analyses using differing assumptions regarding the frequency and 
severity of future accidents caused by or linked to electronic device 
usage. In most scenarios considered, it will not require an 
unreasonable decrease in the annual probability of such an accident in 
order for this rule to at least break even--in fact, for most cases 
considered, decreases in relevant accident probability of less than 
0.10 would make the rule cost-beneficial. As an alternative framework, 
FRA compared the costs to the minimum number of statistical fatalities 
that will need to be prevented for implementation to be cost-
beneficial. Considering direct costs alone, if the new regulation 
prevented the loss of one-fifth of the value of a statistical life each 
year of the twenty-year period examined, the restrictions will yield 
positive net benefits. If considering direct and indirect costs, the 
restrictions will yield positive net benefits if it prevents the loss 
of just half of the value of a statistical life each year over the 
twenty-year period examined. In other words, prevention of one fatality 
every two years will justify the restrictions. For some perspective on 
the achievability of such prevention, FRA notes that over the period 
from 2000 to

[[Page 59598]]

2008, electronic device usage by train operating employees likely 
caused or contributed to accidents resulting in approximately 30 
fatalities and over 100 injuries--an average of over three deaths per 
year, as well as significant train delay and property damages. The 
table below lists the quantifiable benefits considered in the RIA.

------------------------------------------------------------------------
                                 Benefit
-------------------------------------------------------------------------
Fatalities avoided
Injuries avoided
Property damage avoided
------------------------------------------------------------------------

    Given the frequency and severity of accidents together with the 
observed rising incidence of improper uses of cell phones and other 
electronic devices, FRA is confident that the elimination of improper 
electronic device usage by railroad operating employees, as required by 
this rule, will yield total monetizable safety benefits that will 
likely outweigh total monetized costs.
    Relative to the requirements of EO 26, the only additional burdens 
produced by the requirements of this rule are those related to revising 
programs and initial instruction focused on the exceptions that this 
rule will introduce; the potential cost associated with purchasing 
cameras and calculators or carrying ones previously purchased and 
available for use should the need arise, which were banned under EO 26, 
but are permitted under this rule; and nominal costs associated with 
seeking FRA approval for use of railroad-supplied electronic devices 
for taking photographs and videos.
    This added burden, estimated over a 20-year period, could total as 
much as $696,000, discounted at an annual rate of 3%, or $613,000, 
discounted at a rate of 7% and is broken down as follows.

------------------------------------------------------------------------
                                                    PV (3%)     PV (7%)
------------------------------------------------------------------------
Program revision................................     $39,660     $39,660
Initial instruction.............................     246,610     246,610
Potential cost of cameras.......................     334,951     252,435
Potential cost of calculators...................      75,081      74,084
                                                 -----------------------
    Total.......................................     696,302     612,789
------------------------------------------------------------------------

    Clearly, the benefits associated with a more cost effective program 
will justify the additional costs associated with the program revisions 
and initial training focused on the exceptions introduced by the rule. 
The benefits associated with the allowance for use of cameras and 
calculators will equal or exceed the costs associated with carrying and 
using these devices in accordance with this regulation. Given that this 
is not a mandatory requirement, but rather a permissive one, cameras 
and calculators will only be used to the extent that perceived benefits 
exceed perceived costs. The benefits of seeking FRA approval for use of 
railroad-supplied electronic devices for taking photographs and videos 
will be the avoidance of unwarranted use of such devices, which would 
equal or exceed the nominal costs associated with meeting this 
requirement.

B. Regulatory Flexibility Act and Executive Order 13272

    To ensure potential impacts of rules on small entities are properly 
considered, FRA developed this rule in accordance with Executive Order 
13272 (``Proper Consideration of Small Entities in Agency Rulemaking'') 
and DOT's procedures and policies to promote compliance with the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
    The Regulatory Flexibility Act requires agencies to review 
regulations to assess their impact on small entities. An agency must 
conduct a regulatory flexibility analysis unless it determines and 
certifies that a rule is not expected to have a significant impact on a 
substantial number of small entities.
    As discussed in earlier sections of this preamble, FRA has 
discovered numerous examples proving the danger of distracting 
electronic devices. This rulemaking is intended to limit distractions 
caused by the use of cellular telephones and other electronic devices 
in an effort to improve railroad safety and prevent incidents where 
loss of human life, injuries, and property damage may have been 
attributable to distraction by these devices. In 2008, FRA issued 
Emergency Order No. 26 restricting the on-duty use of cellular 
telephones and other electronic devices. This FRA action was in part a 
response to the September 12, 2008, Chatsworth accident, which resulted 
in 25 deaths, numerous injuries, and more than $7 million in damages. 
The BLET and the UTU filed a Petition for Review of that Emergency 
Order, citing some valid concerns. FRA then issued an NPRM on May 18, 
2010, in which FRA proposed to codify most of the requirements of the 
Order with some modifications to accommodate changes that had been 
previously recommended by a Petition for Review of that Order as well 
as a number of amendments that FRA believed appropriate. FRA reviewed 
and responded to comments on its NPRM in this preamble. With this rule, 
which is slightly different from the NPRM version, as discussed above, 
FRA is finalizing the codification of its restrictions on the unsafe 
usage of electronic devices by railroad operating employees.
    FRA is certifying that this rule will result in ``no significant 
economic impact on a substantial number of small entities.'' The 
following section explains the reasons for this certification.
1. Description of Regulated Entities and Impacts
    The ``universe'' of the entities under consideration includes only 
those small entities that can reasonably be expected to be directly 
affected by the provisions of this rule. In this case, the ``universe'' 
comprises solely small railroads.
    ``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines 
a ``small entity'' as having the same meaning as ``small business 
concern'' under section 3 of the Small Business Act. This includes any 
small business concern that is independently owned and operated, and is 
not dominant in its field of operation. Section 601(4) likewise 
includes within the definition of ``small entities'' not-for-profit 
enterprises that are independently owned and operated, and are not 
dominant in their fields of operation. Additionally, Sec.  601(5) 
defines as ``small entities'' governments of cities, counties, towns, 
townships, villages, school districts, or special districts with 
populations less than 50,000.
    The U.S. Small Business Administration (SBA) stipulates ``size 
standards'' for small entities. It provides that the largest a for-
profit railroad business firm may be and still classify as a ``small 
entity'' is 1,500 employees for ``Line-Haul Operating'' railroads, and 
500 employees for ``Short-Line Operating'' railroads.\15\
---------------------------------------------------------------------------

    \15\ ``Table of Size Standards,'' U.S. Small Business 
Administration, January 31, 1996, 13 CFR Part 121. See also NAICS 
Codes 482111 and 482112.
---------------------------------------------------------------------------

    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Pursuant to the authority provided to it by SBA, FRA has 
published a final policy that formally establishes small entities as 
railroads that meet the line haulage revenue requirements of a Class 
III railroad.\16\ Currently, the revenue requirement is $20 million or 
less in annual operating revenue, adjusted annually for inflation 
($32,113,449 for 2008). This threshold is based on the Surface 
Transportation Board's (STB) threshold of a Class III railroad carrier, 
which is adjusted by applying the railroad revenue deflator 
adjustment.\17\

[[Page 59599]]

FRA is using the STB's threshold in its definition of ``small 
entities'' for this rule.
---------------------------------------------------------------------------

    \16\ See 68 FR 24891 (May 9, 2003).
    \17\ For further information on the calculation of the specific 
dollar limit, please see 49 CFR Part 1201.
---------------------------------------------------------------------------

    Approximately 700 railroads meet the criteria for small entities 
and report operational data to FRA. FRA is using this as our estimate 
of the universe of small entities that could be directly impacted by 
this rule. Many of these railroads rely on cell phones for train 
operations.
    Like EO 26, this rule contains exceptions that would allow 
railroads that have fewer than 400,000 annual employee hours and that 
rely on wireless communication devices for certain train operations to 
continue to do so, with the same restriction that such usage be limited 
to performing the employees' railroad duties. The primary benefactors 
of this flexibility are small railroads. FRA is clarifying that the 
exception in the Order for railroad operating employees to use 
railroad-supplied or railroad-authorized electronic devices to conduct 
train or switching operations ``under conditions authorized under 49 
CFR Part 220'' was intended to accommodate small railroad operations. 
The locomotives of the trains exempt from the requirement to have a 
working radio on the lead locomotive do not operate at high speeds, do 
not handle regular passenger traffic, are only permitted to operate 
over joint territory in specific low-speed circumstances, and must have 
working wireless communications aboard the controlling locomotive of 
trains containing placarded hazardous material loads.
    This rule contains additional flexibility that would reduce the 
impact relative to EO 26. With this rule, FRA will: (1) Allow 
deadheading railroad operating employees who are not in the cab of a 
controlling locomotive to use electronic devices if that use does not 
interfere with an employee's personal safety or performance of safety-
related duties; (2) allow use of cameras to document safety hazards or 
violations, except in the cab of the controlling locomotive of a moving 
train; and (3) exclude standalone calculators from all restrictions 
within this subpart as long as the calculator is used for an authorized 
business purpose and does not interfere with the performance of any 
employee's safety-related duties. In addition, FRA is creating an 
exception for medical devices to encompass both devices that enhance an 
ability to perform safety-related tasks, such as a hearing aid, and 
other devices that protect an employee's health and well-being.
    In general, small railroad costs associated with compliance with EO 
26 would continue to accrue under FRA's rule. Additional burden to such 
railroads would come from the requirement to provide instruction to its 
operating employees on the substance of the regulation as well as the 
need to update their written programs to qualify its operating 
employees for compliance with operating rules implementing the new 
requirements. FRA anticipates that this instruction will be achieved 
through means such as distribution of written materials to employees, 
job briefings by supervisors or roving instructors, and question-and-
answer services. FRA estimates that the time cost of such instruction 
will come to about 15 minutes per employee in the first year of the 
rule. Approximately 91,000 train and engine employees will be impacted, 
and about 20 percent of these will be small railroad employees. 
Assuming a cost per hour of employee instructed of $43.37, the total 
cost of this additional instruction will be approximately $200,000 for 
small railroads or an average of $300 per railroad. Revision of 
programs is not expected to entail more than 1 labor hour per railroad. 
These two costs--that of additional instruction and that of revising 
programs--will likely not significantly burden any small railroads.
    Additional railroad costs transferred from EO 26 include the costs 
associated with performing operational tests and conducting periodic 
instruction. Given that operational tests and instruction associated 
with this regulation will be conducted with other required operational 
testing and instruction, the additional annual cost will total about as 
much as the cost in the first year for instruction and program 
revision. Again, this cost will likely not significantly burden small 
railroads.
    Because this rule will apply to all small railroads, FRA has 
concluded that a substantial number of small entities will be impacted. 
However, the overall impact on small railroads is not expected to be 
significant. FRA believes that the costs to small railroads associated 
with this rule are not significant and are very similar to those 
currently incurred under EO 26.
    In the NPRM, FRA certified that the proposal would likely not 
result in a significant economic impact on a substantial number of 
small entities and requested comments on all aspects of its supporting 
analysis. No comments were received.
2. Certification
    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the FRA Administrator certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities. Although a substantial number of small railroads could be 
affected by the rule, they will not be significantly impacted.

C. Paperwork Reduction Act

    The information collection requirements in this final rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the new and current information collection 
requirements, and the estimated time to fulfill each requirement are as 
follows:

----------------------------------------------------------------------------------------------------------------
                                      Respondent         Total annual      Average time per      Total annual
           CFR Section                 universe            responses           response          burden hours
----------------------------------------------------------------------------------------------------------------
220.8--Waivers..................  728 Railroads.....  6 petitions.......  1 hour............  6 hours.
220.25--Instruction in Proper     728 Railroads.....  91,000 trained      30 minutes........  45,500 hours.
 Use of Radio Communication.                           Employees.
    --Subsequent Years..........  728 Railroads.....  12,540 trained      30 minutes........  6,270 hours.
                                                       Employees.
    --Operational Testing of      728 Railroads.....  100,000 tests.....  5 minutes.........  8,333 hours.
     Employees.
220.37--Testing of Radios and     728 Railroads.....  780,000 tests.....  30 seconds........  6,500 hours.
 Wireless Devices.
220.61--Transmission of
 Mandatory Directives
    --Copying of Mandatory        728 Railroads.....  7,200,000 copies..  1.5 minutes.......  180,000 hours.
     Directives.
    --Marking Mandatory           728 Railroads.....  624,000 marks.....  15 seconds........  2,600 hours.
     Directives.
----------------------------------------------------------------------------------------------------------------

[[Page 59600]]

 
                                                New Requirements
----------------------------------------------------------------------------------------------------------------
220.302--Operational Rules That   728 Railroads.....  Burden Incl. Under  Burden Incl. Under  Burden Incl. Under
 Comply with this Subpart.                             OMB No. 2130-0035.  OMB No. 2130-0035.  OMB No. 2130-
                                                                                               0035.
    --Revision of RR Operational
     Rules in Part 217 to Comply
     with this Supart.
220.307--Use of Railroad-         728 Railroads.....  728 amended RR Op.  1 hour............  728 hours.
 Supplied Electronic Device As                         codes, 50
 Specified in Writing.                                 documents.
    --Written documents           728 Railroads.....                      1 hour............  50 hours.
     submitted to FRA specifying
     authorized business purpose
     for taking photo/video w/
     railroad-supplied
     electronic device.
    --Engineer and Train Crew     91,000 hours......  5,460,000           1 minute..........  91,000 hours.
     Briefings to Use RR-                              briefings.
     Supplied Electronic Device
     Inside/Outside of
     Locomotive Cab.
220.313--Instruction Railroad     728 Railroads.....  728 amended         1 hour............  728 hours.
 Written Program of Instruction.                       programs.
    --Implementation: Training    91,000 Employees..  91,000 trained      15 minutes........  22,750 hours.
     of Employees.                                     Employees.
    --Records: Successful         728 Railroads.....  91,000 records....  5 minutes.........  7,583 hours.
     Completion of Training.
    Approval Process:             728 Railroads.....  6 revised programs/ 60 minutes........  6 hours.
     Disapproval of RR Written                         written resp.
     Program of Instruction or
     Written Response in Support
     of Program.
220.315--Operational Tests/       728 Railroads.....  Burden Incl. Under  Burden Incl. Under  Burden Incl. Under
 Inspections.                                          OMB <greek-i>2130-  OMB <greek-i>2130-  OMB <greek-i>2130-
                                                       0579.               0579.               0579.
    --Revision of RR Program of
     Operational Tests and
     Inspections under Part 217
     to Include This Subpart.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB, contact Robert Brogan at 202-493-
6292 or Ms. Kimberly Toone at 202-493-6132 or via e-mail at the 
following addresses: <a href="/cdn-cgi/l/email-protection#33415c515641471d51415c54525d73575c471d545c45"><span class="__cf_email__" data-cfemail="e0928f82859294ce82928f87818ea0848f94ce878f96">[email protected]</span></a>; <a href="/cdn-cgi/l/email-protection#bbd0d2d6d9dec9d7c295cfd4d4d5defbdfd4cf95dcd4cd"><span class="__cf_email__" data-cfemail="9ff4f6f2fdfaedf3e6b1ebf0f0f1fadffbf0ebb1f8f0e9">[email protected]</span></a>.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, 725 17th St., NW., Washington, DC 20590; 
Attention: FRA OMB Desk Officer. Comments may also be sent via e-mail 
to the Office of Management and Budget at the following address: <a href="/cdn-cgi/l/email-protection#cba4a2b9aa94b8bea9a6a2b8b8a2a4a5b88ba4a6a9e5aea4bbe5aca4bd"><span class="__cf_email__" data-cfemail="ef80869d8eb09c9a8d82869c9c8680819caf80828dc18a809fc1888099">[email protected]</span></a>.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

D. Environmental Impact

    FRA has evaluated this final rule in accordance with its 
``Procedures for Considering Environmental Impacts'' (FRA's Procedures) 
(64 FR 28545, May 26, 1999) as required by the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, 
Executive Orders, and related regulatory requirements. FRA has 
determined that this action is not a major FRA action (requiring the 
preparation of an environmental impact statement or environmental 
assessment) because it is categorically excluded from detailed 
environmental review pursuant to section 4(c)(20) of FRA's Procedures. 
64 FR 28547, May 26, 1999. In accordance with section 4(c) and (e) of 
FRA's Procedures, the agency has further concluded that no 
extraordinary circumstances exist with respect to this final rule that 
triggered the need for a more detailed environmental review. As a 
result, FRA finds that this final rule is not a major Federal action 
significantly affecting the quality of the human environment.

E. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, the agency consults with State and local governments, or 
the agency consults with State and local government officials early in 
the process of developing the regulation. Where a

[[Page 59601]]

regulation has federalism implications and preempts State law, the 
agency seeks to consult with State and local officials in the process 
of developing the regulation.
    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132. FRA has determined 
that the final rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, nor on the distribution of power and responsibilities among the 
various levels of government. In addition, FRA has determined that the 
final rule will not impose substantial direct compliance costs on State 
and local governments. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply.
    However, this final rule could have preemptive effect by operation 
of law under certain provisions of the Federal railroad safety 
statutes, specifically the former Federal Railroad Safety Act of 1970 
(former FRSA), repealed and recodified at 49 U.S.C 20106, and the 
former Locomotive-Boiler Inspection Act (former LBIA), repealed and 
recodified at 49 U.S.C. 20701-20703. See Pub. L. 103-272. The former 
FRSA provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or order issued by the 
Secretary of Transportation (with respect to railroad safety matters) 
or the Secretary of Homeland Security (with respect to railroad 
security matters), except when the State law, regulation, or order 
qualifies under the ``local safety or security hazard'' exception to 
Sec.  20106. Moreover, the former LBIA has been interpreted by the 
Supreme Court as preempting the entire field of locomotive safety. See 
Napier v. Atlantic Coast R.R., 272 U.S. 605, 611; 47 S.Ct. 207, 209 
(1926).
    In sum, FRA has analyzed this final rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this final rule has no 
federalism implications, other than the possible preemption of State 
laws under the former FRSA and the former LBIA. Accordingly, FRA has 
determined that preparation of a federalism summary impact statement 
for this final rule is not required.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in the expenditure by State, local, and tribal governments, in 
the aggregate, or by the private sector, of $140,800,000 or more in any 
1 year, and before promulgating any final rule for which a general 
notice of proposed rulemaking was published, the agency shall prepare a 
written statement'' detailing the effect on State, local, and tribal 
governments and the private sector. This final rule will not result in 
the expenditure, in the aggregate, of $140,800,000 or more in any one 
year, and thus preparation of such a statement is not required.

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' See 
66 FR 28355 (May 22, 2001). Under the Executive Order a ``significant 
energy action'' is defined as any action by an agency that promulgates 
or is expected to lead to the promulgation of a final rule or 
regulation, including notices of inquiry, advance notices of proposed 
rulemaking, and notices of proposed rulemaking: (1)(i) That is a 
significant regulatory action under Executive Order 12866 or any 
successor order, and (ii) is likely to have a significant adverse 
effect on the supply, distribution, or use of energy; or (2) that is 
designated by the Administrator of the Office of Information and 
Regulatory Affairs as a significant energy action. FRA has evaluated 
this final rule in accordance with Executive Order 13211. FRA has 
determined that this final rule is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. 
Consequently, FRA has determined that this final rule is not a 
``significant energy action'' within the meaning of the Executive 
Order.

H. Privacy Act Statement

    Anyone is able to search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc). You may review DOT's 
complete Privacy Act Statement published in the Federal Register on 
April 11, 2000 (65 FR 19477-78), or you may visit http://DocketsInfo.dot.gov.

I. Executive Order 12988 (Civil Justice Reform)

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

List of Subjects in 49 CFR Part 220

    Communications, Penalties, Railroads, Railroad safety.

The Rule

0
In consideration of the foregoing, FRA amends chapter II, subtitle B of 
title 49, Code of Federal Regulations, as follows:

PART 220--[AMENDED]

0
1. The authority citation for Part 220 is revised to read as follows:

    Authority:  49 U.S.C. 20102-20103, 20103, note, 20107, 21301-
21302, 20701-20703, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 
1.49.



0
2. Section 220.1 is revised to read as follows:


Sec.  220.1  Scope.

    This part prescribes minimum requirements governing the use of 
wireless communications in connection with railroad operations. In 
addition, this part sets forth prohibitions, restrictions, and 
requirements that apply to the use of personal and railroad-supplied 
cellular telephones and other electronic devices. So long as these 
minimum requirements are met, railroads may adopt additional or more 
stringent requirements.


Sec.  220.2  [Removed and Reserved]

0
3. Section 220.2 is removed and reserved.


0
4. Section 220.5 is amended by revising the introductory text; adding 
definitions in alphabetical order for ``Associate Administrator for 
Railroad Safety/Chief Safety Officer,'' ``Authorized business 
purpose,'' ``Earpiece,'' ``Electronic device,'' ``Fouling a track,'' 
``FRA,'' ``In deadhead status,'' ``Medical device,'' ``Personal 
electronic device,'' ``Railroad operating employee,'' ``Railroad-
supplied electronic device,'' and ``Switching operation''; and revising 
the definition of ``Train'' to read as follows:


Sec.  220.5  Definitions.

    As used in this part, the term--
* * * * *

[[Page 59602]]

    Associate Administrator for Railroad Safety/Chief Safety Officer 
means either the Associate Administrator for Railroad Safety/Chief 
Safety Officer, Federal Railroad Administration, 1200 New Jersey Ave., 
SE., Washington, DC 20590 or that person's delegate.
    Authorized business purpose means a purpose directly related to the 
tasks that a crewmember is expected to perform during the current tour 
of duty as specified by the railroad in writing.
* * * * *
    Earpiece means a small speaker that is inserted in, or held next 
to, the ear for use in transmitting sounds related to an electronic 
device.
    Electronic device means an electronic or electrical device used to 
conduct oral, written, or visual communication; place or receive a 
telephone call; send or read an electronic mail message or text 
message; look at pictures; read a book or other written material; play 
a game; navigate the Internet; navigate the physical world; play, view, 
or listen to a video; play, view, or listen to a television broadcast; 
play or listen to a radio broadcast other than a radio broadcast by a 
railroad; play or listen to music; execute a computational function; 
or, perform any other function that is not necessary for the health or 
safety of the person and that entails the risk of distracting the 
employee or another railroad operating employee from a safety-related 
task. This term does not include--
    (1) Electronic control systems and information displays within the 
locomotive cab (whether the displays or systems be fixed or portable) 
or on a remote control transmitter necessary to operate a train or 
conduct switching operations; or
    (2) A digital watch whose only purpose is as a timepiece.
* * * * *
    Fouling a track means the placement of an individual in such 
proximity to a track that the individual could be struck by a moving 
train or other on-track equipment, or in any case is within four feet 
of the nearest rail.
    FRA means the Federal Railroad Administration.
* * * * *
    In deadhead status means awaiting or in deadhead transport from one 
point to another as a result of a railroad-issued verbal or written 
directive.
* * * * *
    Medical device means an instrument, apparatus, implement, machine, 
contrivance, implant, or other similar or related article (including a 
component part), or accessory that is intended for use in the diagnosis 
of disease or other conditions, or in the cure, mitigation, treatment, 
or prevention of disease or other conditions.
    Personal electronic device means an electronic device that was not 
provided to the railroad operating employee by the employing railroad 
for a business purpose.
    Railroad operating employee means a person performing duties 
subject to--
    (1) An individual engaged in or connected with the movement of a 
train, including a hostler, as defined in 49 U.S.C. 21101(5), who is 
subject to 49 U.S.C. 21103 effective July 16, 2009;
    (2) A train employee providing commuter rail passenger 
transportation or intercity rail passenger transportation as defined in 
49 U.S.C. 24102 who, pursuant to 49 U.S.C. 21102(c), is subject to 49 
U.S.C. 21103 as it was in effect on October 15, 2008; or
    (3) An individual subject to any Federal Railroad Administration 
regulations prescribed pursuant to 49 U.S.C. 21109 governing the hours 
of service of train employees.
* * * * *
    Railroad-supplied electronic device means an electronic device 
provided to a railroad operating employee by the employing railroad for 
an authorized business purpose. A railroad-supplied device will be 
considered a personal electronic device when it is being used by the 
employee for a purpose other than an authorized business purpose.
* * * * *
    Switching operation means the classification of rail cars according 
to commodity or destination; assembling of cars for train movements; 
changing the position of cars for purposes of loading, unloading, or 
weighing; placing of locomotives and cars for repair or storage; or 
moving of rail equipment in connection with work service that does not 
constitute a train movement.
* * * * *
    Train, for purposes of subparts A and B of this part, means one or 
more locomotives coupled with or without cars, requiring an air brake 
test in accordance with 49 CFR part 232 or part 238, except during 
switching operations or where the operation is that of classifying and 
assembling rail cars within a railroad yard for the purpose of making 
or breaking up trains. The term, for purposes of subpart C of this 
part, means--
    (1) A single locomotive,
    (2) Multiple locomotives coupled together, or
    (3) One or more locomotives coupled with one or more cars.
* * * * *

0
5. Add a new subpart C to part 220 to read as follows:
Subpart C--Electronic Devices
Sec.
Sec.  220.301 Purpose and application.
Sec.  220.302 Operating rules implementing the requirements of this 
subpart.
Sec.  220.303 General use of electronic devices.
Sec.  220.305 Use of personal electronic devices.
Sec.  220.307 Use of railroad-supplied electronic devices.
Sec.  220.309 Permitted uses; exceptions to other restrictions.
Sec.  220.311 Railroad operating employees in deadhead status.
Sec.  220.313 Instruction.
Sec.  220.315 Operational tests and inspections; further 
restrictions on use of electronic devices.

Subpart C--Electronic Devices


Sec.  220.301   Purpose and application.

    (a) The purpose of this subpart is to reduce safety risks resulting 
from railroad operating employees being distracted by the inappropriate 
use of electronic devices, such as mobile telephones (cell phones or 
cellular phones) and laptop computers.
    (b) The applicability of this subpart is governed by Sec.  220.3; 
this subpart, however, does not affect the use of working wireless 
communications pursuant to subparts A and B of this part.
    (c) The restrictions of this subpart C do not apply--
    (1) To the working radio; or
    (2) When a working radio failure occurs and an electronic device is 
used in accordance with railroad rules.


Sec.  220.302  Operating rules implementing the requirements of this 
subpart.

    Each railroad shall adopt operating rules that implement the 
requirements of this subpart.


Sec.  220.303  General use of electronic devices.

    A railroad operating employee shall not use an electronic device if 
that use would interfere with the employee's or another railroad 
operating employee's performance of safety-related duties. No 
individual in the cab of a controlling locomotive shall use an 
electronic device if that use would interfere with a railroad operating 
employee's performance of safety-related duties.


Sec.  220.305  Use of personal electronic devices.

    A railroad operating employee must have each personal electronic 
device turned off with any earpiece removed from the ear--
    (a) When on a moving train;
    (b) When any member of the crew is--

[[Page 59603]]

    (1) On the ground, or
    (2) Riding rolling equipment during a switching operation; or
    (c) When any railroad employee is assisting in preparation of the 
train for movement.


Sec.  220.307  Use of railroad-supplied electronic devices.

    (a) General restriction. A railroad operating employee may use a 
railroad-supplied electronic device only for an authorized business 
purpose as specified by the railroad in writing. An authorized business 
purpose involving the taking of a photograph or video must be approved 
by FRA. A railroad subject to this subpart must submit to FRA's 
Associate Administrator for Railroad Safety/Chief Safety Officer a 
document specifying in writing the authorized business purpose(s) 
involving the taking of a photograph or video for which a railroad-
supplied electronic device may be used by the carrier's railroad 
operating employees.
    (b) Use by locomotive engineers operating controls. A locomotive 
engineer operating the controls of a train shall not use a railroad-
supplied electronic device--
    (1) When on a moving train;
    (2) When any member of the crew is--
    (i) On the ground, or
    (ii) Riding rolling equipment during a switching operation; or
    (3) When any railroad employee is assisting in preparation of the 
train for movement.
    (c) Use in freight and passenger locomotive cabs generally. In 
addition to the restrictions on locomotive engineers described in 
paragraph (b) of this section, a railroad operating employee who is not 
in deadhead status shall not use a railroad-supplied electronic device 
in the cab of a controlling locomotive unless--
    (1) A safety briefing that includes all crewmembers is held; and
    (2) All crewmembers agree that it is safe to use the device.
    (d) Use outside freight locomotive cabs. A freight train crewmember 
who is not in deadhead status may use a railroad-supplied electronic 
device outside the cab of a controlling freight locomotive only if all 
of the following conditions are met:
    (1) The crewmember is not fouling a track; and
    (2) All crewmembers agree it is safe to use the device.


Sec.  220.309  Permitted uses; exceptions to other restrictions.

    Notwithstanding any other limitations in this subpart, a railroad 
operating employee may use the following, if that use does not 
interfere with any employee's performance of safety-related duties--
    (a) The digital storage and display function of an electronic 
device to refer to a railroad rule, special instruction, timetable, or 
other directive, if such use is authorized under a railroad operating 
rule or instruction.
    (b) An electronic device as necessary to respond to an emergency 
situation involving the operation of the railroad or encountered while 
performing a duty for the railroad.
    (c) An electronic device to take a photograph of a safety hazard or 
a violation of a rail safety law, regulation, order, or standard, 
provided that--
    (1) A camera that is part of a cell phone or other similar multi-
functional electronic device is not included in this exception unless 
it is a railroad-supplied device and is used for an authorized business 
purpose;
    (2) The camera, unless otherwise permitted, is turned off 
immediately after the documentation has been made; and
    (3) If the camera is used in the cab of a moving train, the use is 
only by a crewmember other than the locomotive engineer.
    (d) A stand-alone calculator if used for an authorized business 
purpose.
    (e) A medical device that is consistent with the railroad's 
standards for medical fitness for duty.
    (f) A wireless communication device to conduct train or switching 
operations if the railroad operating employee is part of a crew 
assigned to a train that is exempt under Sec.  220.9(b) from the 
requirement of a working radio when the employing railroad has fewer 
than 400,000 annual employee work hours.


Sec.  220.311  Railroad operating employees in deadhead status.

    (a) Notwithstanding any other restrictions in this subpart, a 
railroad operating employee who is in deadhead status and not inside 
the cab of a controlling locomotive may use an electronic device only 
if the employee is not using the device in such a way that interferes 
with any railroad operating employee's personal safety or performance 
of safety-related duties.
    (b) A railroad operating employee who is in deadhead status and 
located inside the cab of a controlling locomotive must have each 
electronic device turned off with any earpiece removed from the ear--
    (1) When on a moving train;
    (2) When any member of the crew is--
    (i) On the ground, or
    (ii) Riding rolling equipment during a switching operation; or
    (3) When any railroad employee is assisting in preparation of the 
train for movement.


Sec.  220.313  Instruction.

    (a) Program. Beginning December 27, 2010, each railroad shall 
maintain a written program of instruction and examination of each 
railroad operating employee and each supervisor of the railroad 
operating employee on the meaning and application of the railroad's 
operating rules implementing the requirements of this subpart if these 
requirements are pertinent to the employee's duties. If all 
requirements of this subpart are satisfied, a railroad may consolidate 
any portion of the instruction or examination required by this subpart 
with the program of instruction required under Sec.  217.11 of this 
chapter.
    (1) The written program of instruction and examination shall 
address the requirements of this subpart, as well as consequences of 
noncompliance.
    (2) The written program of instruction and examination shall 
include, but is not limited to, an explanation of the following:
    (i) When a railroad operating employee must have personal 
electronic devices turned off with the earpiece removed from the ear as 
required by this subpart.
    (ii) If a railroad supplies an electronic device to its railroad 
operating employees, when a railroad operating employee may use such a 
device. The employee must be instructed on what constitutes an 
authorized business purpose.
    (iii) The potential penalties and other consequences of committing 
a violation of this subpart, both those imposed by the Federal Railroad 
Administration (FRA) and those imposed by the railroad, as well as any 
distinction between the requirements of this subpart and any more 
stringent requirements imposed by the railroad and the related 
distinction between the two sets of potential consequences.
    (b) Implementation schedule. Each employee performing duties 
subject to the requirements in this subpart shall be initially 
instructed prior to March 28, 2011.
    (1) Beginning March 28, 2011, no employee shall perform work 
requiring compliance with the operating rules implementing the 
requirements of this subpart unless the employee has been instructed on 
requirements of this subpart within the previous three years.
    (2) The records of successful completion of instruction and 
examination required by this section

[[Page 59604]]

shall document the instruction of each employee under this subpart.
    (c) Records. Written records documenting successful completion of 
instruction and examination of each employee and of his or her 
supervisors shall be made and shall be retained at the railroad's 
system headquarters and at the division headquarters for each division 
where the employee is assigned for three calendar years after the end 
of the calendar year to which they relate and made available to 
representatives of FRA for inspection and copying during normal 
business hours. Each railroad to which this part applies is authorized 
to retain a program, or any records maintained to prove compliance with 
such a program, by electronic recordkeeping in accordance with 
Sec. Sec.  217.9(g) and 217.11(c) of this chapter.
    (d) Approval process. Upon review of the program of instruction and 
examination required by this section, the Associate Administrator for 
Railroad Safety/Chief Safety Officer may, for cause stated, disapprove 
the program. Notification of such disapproval shall be made in writing 
and specify the basis for the disapproval.
    (1) If the Associate Administrator for Railroad Safety/Chief Safety 
Officer disapproves the program, the railroad has 35 days from the date 
of the written notification of such disapproval to--
    (i) Amend its program and submit it to the Associate Administrator 
for Railroad Safety/Chief Safety Officer for approval; or
    (ii) Provide a written response in support of the program to the 
Associate Administrator for Railroad Safety/Chief Safety Officer, who 
informs the railroad of FRA's final decision in writing.
    (2) A failure to submit the program with the necessary revisions to 
the Associate Administrator for Railroad Safety/Chief Safety Officer in 
accordance with this paragraph is considered a failure to implement a 
program under this subpart.


Sec.  220.315  Operational tests and inspections; further restrictions 
on use of electronic devices.

    (a) The railroad's program of operational tests and inspections 
under part 217 of this chapter shall be revised as necessary to include 
this subpart and shall specifically include a minimum number of 
operational tests and inspections, subject to adjustment as 
appropriate.
    (b) When conducting a test or inspection under part 217 of this 
chapter, a railroad officer, manager, or supervisor is prohibited from 
calling the personal electronic device or the railroad-supplied 
electronic device used by a railroad operating employee while the 
railroad officer, manager, or supervisor knows or should have known 
that--
    (1) The train to which the employee is assigned is moving;
    (2) The employee is--
    (i) On the ground;
    (ii) Riding rolling equipment during switching operations; or
    (iii) Assisting in preparation of the train to which the employee 
is assigned for movement.


0
6. Appendix C to part 220 is amended by adding footnote 2 to the first 
column heading ``Section,'' and adding an entry for subpart C to read 
as follows:

         Appendix C to Part 220--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                                Willful
                    Section \2\                     Violation  violation
------------------------------------------------------------------------
 
                                * * * * *
           Subpart C--Electronic Devices
220.302 Operating rules...........................     9,500     17,000
220.303 General; interfering with safety-related       9,500     17,000
 duties...........................................
220.305 Personal electronic device turned on while     5,500     10,000
 prohibited.......................................
     (a)-(c) Personal device in use while              9,500     17,000
     prohibited...................................
220.307 Railroad-supplied device turned on while       5,500     10,000
 prohibited.......................................
    (a) Use not authorized by railroad in writing.     9,500     17,000
     (b)-(d) Railroad-supplied devices in use          9,500     17,000
     while prohibited.............................
220.311 Railroad operating employees in deadhead
 status:
     (a)..........................................     9,500     17,000
    (b) Devices turned on while prohibited; or....     5,500     10,000
    device in use while prohibited................     9,500     17,000
220.313 Program of instruction:
     (a)-(d)......................................     9,500     17,000
220.315 Operational tests and inspections:
     (a)-(b)......................................     9,500     17,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 220. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.


    Issued in Washington, DC, on September 17, 2010.
Karen J. Hedlund,
Chief Counsel, Federal Railroad Administration.
[FR Doc. 2010-23916 Filed 9-21-10; 4:15 pm]
BILLING CODE 4910-06-P


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